Motion for Summary Adjudication in T.H. Trust vs Robert G Pate and Judy K Pate| Trellis.Law

On July 25, 2017 a Answer was filed involving a dispute between T.H. Trust, and Pate, Judy K, Pate, Robert G, for Other Civil in the District Court of Fort Bend County.

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NO. 17-DCV-243655

DAVID H. HAMILTON, AS TRUSTEE§ IN THE DISTRICT COURT
OF T. H. TRUST §
Plaintiff and Counter-Defendant, §
§
Vv. §
ROBERT G. PATE AND JUDY K. PATE§ 434TH JUDICIAL DISTRICT
Defendants and Counter-Plaintiffs §
§
V §
GEORGE M. BISHOP, K. M. BISHOP§
AND DAVID H. HAMILTON,§
INDIVIDUALLY , §
Cross-Defendants § OF FORT BEND COUNTY, TEXAS

DEFENDANTS' RESPONSE TO PLAINTIFFS' THIRD AMENDED
MOTION FOR PARTIAL SUMMARY JUDGMENT ON QUESTIONS OF LAW

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME, subject to their Motion for Continuance, Defendants, Robert G. Pate and

Judy K. Pate, Defendants/Cross-Plaintiffs herein, and request this Honorable Court to DENY

Plaintiffs/Cross-Defendants' Third Amended Motion for Partial Summary Judgment.

INTRODUCTION

A When a movant files a motion for summary judgment based on summary

judgment evidence, the court can grant the motion only when the movant's evidence proves,
as a
matter of law, all the elements of the movant's cause of action or defense, or disproves the facts

of at least one element in the non-movant's cause or defense.

B. When evaluating a motion for summary judgment, the court must:

1 Assume all the non-movant's proof is true;

2. Indulge every reasonable inference in favor of the non-movant; and
3 Resolve all doubts about the existence of a genuine issue of material fact

against the movant.

Il.

FACTS/PROCEDURAL HISTORY

A Defendants/Counter-Plaintiffs are the owners in fee of a certain tract of real

property located in Fort Bend County, Texas generally described as 4.7695 acres of land in the

Knight and White League, A-46, the I. & G.N. Railroad Company Survey, A-353, and the

William Stanley Survey, A-599, Fort Bend County, Texas, and more fully described in that deed

from the Internal Revenue Service to the Defendants/Counter-Plaintiffs dated September 19,

2017, and recorded at Clerk’s File No. 2017103169 of the Official Records of Fort Bend County,

Texas (the “Property”). (See Exhibit 1.)

B The deed to Defendants/Counter-Plaintiffs from the Internal Revenue Service

occurred as a result of the purchase of the Property on or about March 16, 2007 pursuant to a

Certificate of Sale to Seize Property in the name of JAB Development Company, the Certificate

being recorded at Clerk’s File No. 2017028085 of the Official Records of Fort Bend County,

Texas. (See Exhibit 2.) Said Certificate referred to the ownership of the Property by JAB

Development Corporation as evidenced by a General Warranty Deed executed by Defendant

George M. Bishop, individually and as Trustee, and recorded at Clerk’s File No. 2009072850 of

the Deed Records of the Fort Bend County Clerk of Fort Bend County, Texas. (See Exhibit 3.)

Cc The lien of the Internal Revenue Service had been perfected by a Notice of

Federal Tax Lien filed against JAB Development Corporation recorded at Clerk’s File No.

2013017291 of the Official Records of Fort Bend County, Texas. (See Exhibit 4.)

D On or about October 2, 2017, G. Bishop and K. Bishop filed a document entitled
Substitute Trustee’s Deed under Clerk’s File No. 2017106823 of the Official Records of Fort

Bend County, Texas. The substitute Trustee’s Deed names T.H. Trust as Trustee. Hamilton is

Trustee of T.H. Trust. (See Exhibit 5.) Said Substitute Trustee’s Deed has created a cloud on the

title of Defendants/Counter-Plaintiffs’ Property.1

19) OF al [ee CeleriKs NG teh)
oe i
Coastal ed of
Trust to Mulligan
eed
Bishop Affid
of Ownership
Pera

.
IRS Notices
Auction of Property
ene

Brae
IRS Deed to Pate

Ee crs Phe bee bo Ee En EL DEe Eo a ‘eo
I.

HAMILTON’S BURDEN TO SHOW TITLE CANNOT BE MET

A Hamilton cannot meet his burden of showing title in TH Trust based
upon
the strength of his own title. The plaintiff in a suit to try title, such as
this one, must show the
strength of its own title and cannot rely upon any defect in the title of the
Defendant in order to
prevail. Here, there are three serious defects in the Plaintiff's title to the propert
y which the
Plaintiff cannot overcome.

B. First, the conveyance upon which the Plaintiff depends is the Fraudulent
Substitute Trustee’s Deed filed in 2017. (See Exhibit 5.) However,
state statutory law and case

law both clearly establish that the lien of a defaulted Note secured
by real estate becomes
unenforceable four years after the date of the default, (See Tex.C.
Prac. & Rem. Cod §16.035.)

The default occurred, according to Bishop's own affidavit, on August 9, 2006.
See Exhibit 6.
Therefore the enforceability of the Note expired on August 9, 2010. Plaintiff's allegation that a
foreclosure sale occurred sometime shortly after August 2008 is not binding
on the Pates or any
other third parties for the reason that no evidence of a foreclosure sale was ever
recorded within
the four year allowed time. Therefore Hamilton’s right to enforce that lien, by filing a trustee’s

deed or otherwise, expired in 2010, and any act to enforce the lien by
filing a deed in 2017, is
void.

Cc Second, the conveyance upon which the Plaintiff depends was filed
in 2017.
Ignoring for the moment the invalidity of the Fraudulent Substitute Trustee’s
Deed based simply
upon the expiration of the underlying lien, the Fraudulent Substit
ute Trustee’s Deed was filed

after Defendant Bishop signed the Bishop General Warranty Deed in favor
of JAB Development
in 2009, transferring his interest in the property, both individually and as trustee to JAB

Development. All interest of JAB in the Property passed to the Pates, via the IRS.

D Third, the Fraudulent Substitute Trustee’s Deed fails for want of consideration

and fraud. On its face, the deed fails to cite the existence of any consideration. Moreover,

Plaintiff cannot show any payment of consideration for the reason that there was none.

E In the Bishop General Warranty Deed, Bishop warranted his title to the property,

and that warranty could be relied upon by JAB Development as the grantee of the Bishop Deed,

and by the Internal Revenue Service when filed its lien on JAB. By federal law, the Pates

acquired the interest of both JAB and the IRS by way of the tax sale. A Deed filed by Bishop

after those events is out of the chain of title as derived from the common source of the interests

of all parties and is junior to all prior filed instruments, including the IRS lien.

F. Thus, the title of the Plaintiffs is defective in at least three ways, and the Plaintiff

cannot prevail in this trespass to try title suit on the basis of the strength of its own title.

Iv.

HAMILTON'S MOTION FOR NO EVIDENCE SUMMARY JUDGMENT ON
QUESTIONS OF LAW FAILS DUE TO THE FAILURE OF TITLE IN TH TRUST

A Hamilton has brought this claim as a trespass to try title suit. In such a suit, the

plaintiff cannot prevail and claim title to property without prevailing on his own title without

reference to any weaknesses in the defendant's title.

B Hamilton has failed to provide the abstract of judgment which the law requires

him to provide in order to prove his title in a trespass to try title suit. In the absence of such

proof, he cannot prevail.
Cc Hamilton has failed to prove title for the reasons that (1) the lien which was

allegedly foreclosed at a foreclosure sale became unenforceable in 2010, and therefore the deed

by which TH trust allegedly took an interest in the property by virtue of the filing of the

Fraudulent Trustee's Deed in 2017 fails and conveys no title to TH Trust; (2) the Fraudulent

Trustee's Deed filed in 2017 fails for lack of consideration; and (3) the Fraudulent Trustee's

Deed was filed outside of the chain of title created by The Bishop Deed.

D. Having failed to be able to prove the trust's title, Hamilton attempts to then attack

Pate's title as the basis for the remainder of the allegations contained in his Motion for Summary

Judgment on Questions of law.

E. Because Hamilton does not have and cannot prove his own title in the property, in

a trespass to try title suit he has no standing to complain about the title of the Pates. His

numerous complaints in his Motion for Summary Judgment on Questions of Law all grow out of

his allegations that the Pates themselves have no interest in the property. In fact, as hereinafter

shown, the Pates do have a real property interest in the property, and that interest is superior to

any interest of Hamilton or TH Trust if, for no other reason, Hamilton fails to prove any interest

in the property of his own.

Vv.

THE IRS DEED CONVEYED AN INTEREST IN THE REAL PROPERTY

A Plaintiffs/Cross-Defendants claim that the Pates have no interest in the

property which is the subject of this litigation for the reason that the Pates allegedly took the

property from the Internal Revenue Service by virtue of a quitclaim deed.
B Plaintiff/Cross-Defendants have offered no summary judgment evidence

in support of their allegation except the LR.S. deed itself. A copy of the IRS deed is attached

hereto as Exhibit 1.

Cc Defendants/Cross-Plaintiffs claim a genuine issue of material fact exists as

to Plaintifffs/Cross-Defendants' claim and submit affidavits, discovery, documentary evidence

and Plaintiffs/Cross-Defendants' pleadings, as summary judgment evidence, referenced in an

appendix attached hereto, filed with this response and incorporated by such reference for all

purposes as if recited verbatim herein.

VI.

HAMILTON'S MOTION MISSTATES LAW ON QUITCLAIM DEEDS

A The claims of Hamilton in his Motion for Partial Summary Judgment on

Questions of Law misstate the state law and ignore the federal law applicable.

B In attempting to disparage Pate's deed from the IRS, Hamilton's Motion

merely restates the trope that a quitclaim deed conveys no interest in property and attempts to

simply classify the IRS deed as a quitclaim. Even the case that Hamilton cites, Rogers v. Ricine

Enterprises, 884 S.W. 2d 763 (Tex.1994), the court only concluded that the deed in question was

a quitclaim after examining its language in detail and determining that the deed's "essence" was

that of a quitclaim. The court went on to acknowledge that the deed nevertheless "passe[d] the

interest of the grantor "to the grantee.

Cc Moreover, a covenant of warranty of title runs with the land [Wiggins v.

Stephens, 246 S.W. 84, 86 (Comm. App. 1922, jdgmt. adopted); see Compton v. Trico Oil Co.,

120 S.W.2d 534, 538 (Tex. Civ. App.-Dallas 1938, writ ref’d 22], Thus it inures to the benefit of

the grantee, the grantee’s heirs and assigns [Flanniken v. Neal, 67 Tex. 629, 4 S.W. 212, 214
(1887)], and the subsequent purchaser who is evicted by the one with superior title [Wiggins
v.
Stephens, 246 S.W. 84, 86 (Comm. App. 1922, Jdgmt, adopted], even though that purchase
r
claims title through a quitclaim [Saunders v. Flanniken, 77 Tex. 662, 1 S.W. 236, 236 (1890)]
or
a sheriff's deed [Flanniken v. Neal, 67 Tex. 629, 4 S.W. 212, 214 (1887)].

D The applicable state law actually provides that a quit claim deed will
convey whatever title the seller had just as effectively as a warranty deed.
Harrison Oil Co. v.

Sherman, 66 S.W.2d 701, 705 (Tex.App.-Beaumont 1933, writ refd); see, e.g., Victoria
Bank &
Trust Co. v. Cooley, 417 S.W.2d 814,817 (Tex.App.-Houston [ Ist Dist.J 1967,
writ refd n.r.e.)
(grantees acquired fee-simple title under quitclaim deed).

E A quitclaim deed conveys to the grantee whatever right, title, or interest

the grantor has in the premises at the time of executing and delivering the instrume
nt. Loft v.
Lott, 370 S.W.2d 463 (Tex. 1963). Where the grantor owns the fee at the time of executing a

quitclaim deed the grantor's title is conveyed as fully and effectively as if the grantor had
given a
deed purporting to convey the fee. Farhart v. Pope, 384 S.W.2d 932 (Tex. Civ. App. Waco

1964), writ refused n.r.e., (Apr. 28, 1965). If the grantor's interest in the land is less than the

fee, a quitclaim deed is effective to convey to the grantee all right, title, and interest that the

grantor had in the property at the time of the conveyance. Bell v. Smith, 532 S.W.2d 680 (Tex.

Civ. App. Fort Worth 1976).

Vi.

INTERPRETATION OF QUITCLAIM DEEDS UNDER TEXAS LAW

A A granting clause need not contain technical or “magic” words, nor those

previously necessary at common law to transfer title to realty [see Tex. Prop. Code § 5.001;
see
also Moody v. Moody National Bank of Galveston, 522 8.W.2d 710, 716 (Civ. App—Ho
uston
[14th Dist.] 1975, ref. n.r.e) Rather, a deed is valid and accomplishes an effective conveyance if

the grantor’s intent to convey title is expressed in plain English [see Atlantic Richfield Co. v.

Exxon Corp., 663 S.W.2d 858, 867 (Tex. App—Houston [14th Dist.] 1983), rev’d on other

grounds, 678 S.W.2d 944 (Tex. 1984)]. It is the intent of the grantor as expressed by the

language in the deed that determines the effectiveness of a purported conveyance [see Luckel v.

White, 819 S.W.2d 459, 461 (Tex. 1991)].

B. The Property Code not only abolishes the necessity of using words

required by common-law principles, it goes further and proclaims that the parties to a

conveyance may use any form not in contravention of law [Tex. Prop. Code § 5.022(c)].

Cc The "four corners" rule has come to be the controlling principle for

solving disputes over deed provisions. For example, the rational of Luckel was applied in a

boundary dispute involving the property description in a deed [Garza v. Maddux, 988 S.W.2d

280, 287-288 (Tex. App.-Corpus Christi 1998, pet. denied)]. The four-corners rule was invoked

to determine the intent expressed by a clause purporting to reserve the mineral interest [Eastin v.

Dial, 288 S.W.3d 491, 500 (Tex. App.-San Antonio 2009, no pet.); Morrison v. Robinson, 226

S.W.3d 472, 474-475 (Tex. App.-Waco 2006, pet. denied); Wright v. E.P. Operating
Ltd. Partnership, 978 S.W.2d 684, 687, n.8 (Tex. App.-Eastland 1998, pet. denied)], to determine

the intent expressed by a clause purporting to reserve a life estate in a portion of the royalties to

be paid on production of oil and gas from the conveyed property [Stewman Ranch, Inc. y.

Double M Ranch, 192 S.W.3d 808, 810-813 (Tex. App.-Eastland 2006, pet. denied)], to

determine whether sub-surface water rights were reserved from surface estate conveyed by

warranty deed [City of Del Rio v. Clayton Sam Colt, 269 S.W.3d 613, 616-619 (Tex. App.-San

Antonio 2008, pet. denied)], to determine whether mineral interests or royalty interests were
conveyed by mineral deeds [Garza v. Prolithic
Energy Co., L.P., 195 S.W.3d 137, 142-146
(Tex.
App.-San Antonio 2006, pet. denied)], to ascertain the intended ownership of a roadway
[Templeton v. Dreiss, 961 S.W.2d 645,
657 (Tex. App.-San Antonio 1998, pet.
denied), and to
determine the extent of recreational right
s granted [Cherokee Water Co. v. Free
man, 33 §.W.3d
349, 353 (Tex. App.-Texarkana 2000, no
pet.)].

D. The intent that governs is not the intent
that the parties meant but failed to
express, but the intent that is expressed [Winegar v. Martin, 304 S.W.3d 661, 665 (Tex.
App.-Fort Worth 2010, no pet h.); Eastin v.
Dial, 288 S.W.3d 491, 500 (Tex. App.-San
Antonio
2009, no pet.); Johnson v. Conner, 260 S.W.3d 575, 579 (Tex. App. -Tyler 2008, no
pet.);
Cherokee Water Co. y. Freeman, 33 S.W.3d 349,
353 (Tex. App. -Texarkana 2000, no pet.)
].
Deed interpretation is a three-step process:

. The court attempts to ascertain the grantor's intent by examining
language of the deed. the plain

The court next applies pertinent rules
of construction to the deed, including
applicable law. all

The court then considers extrinsic evid
lence to aid interpretation [Cherokee Water
Co. v. Freeman, 33 8.W.3d 349, 353
( Tex. App.-Texarkana 2000, no pet.)].

E In determining a deed's legal effect, whether as to grant
, exception,
reservation, consideration, or other feature,
the inquiry is not determined from a singl
e word,
clause, or part, but from every word, claus
e, and part that is pertinent [Winegar
vy. Martin, 304
S.W.3d 661, 665 (Tex. App.-Fort Worth 2010,
no pet h.)].
F. A court will construe a deed to confer
on the grantee the greatest estate
that the terms of the instrument will perm
it /Eastin v. Dial, 288 $.W.3d 491, 500
(Tex. App.-San
Antonio 2009, no pet.); Johnson v. Conn
er, 260 S.W.3d 575, 579 (Tex. App. -Tyl
er 2008, no

10
pet.); McMillan v. Dooley, 144 S.W.3d 159, 185 (Tex. App.-Eastland 2004, pet. denied); see City

of Del Rio v. Clayton Sam Colt, 269 S.W.3d 613, 616 (Tex. App.-San Antonio 2008, pet. denied)

(courts generally view grants in deed expansively and reservations restrictively)]. A deed passes

all of the estate the grantor owned at the time of the conveyance unless it includes reservations or

exceptions that reduce the estate conveyed [Eastin v. Dial, 288 S.W.3d 491, 500 (Tex. App.-San

Antonio 2009, no pet.); Johnson v. Conner, 260 S.W.3d 575, 579-580 (Tex. App.-Tyler 2008, no

pet.).

Viol.

FEDERAL TAX DEEDS ARE MORE THAN SIMPLE
QUITCLAIMS UNDER FEDERAL LAW

A Hamilton's Motion attempts to put the burden of proof on the Pates on the

question of whether the ILR.S. had title to the property at the time of execution of the IRS deed

misstates applicable federal law.

B Such unsupported statements misdirect the Court by misstating the law

applicable to the ILR.S. deeds. The deed is not merely a quitclaim deed having all of the

attributes of Texas law described above; it carries the support of federal law. The Internal

Revenue Code provides as follows:

ERC. § 6339(b)(1) Deed As Evidence - The deed of sale given pursuant to section
6338 shall be prima facie evidence of the facts therein stated: and

IRC. § 6339(b)(2) Deed As Conveyance Of Title - [SJuch deed shall be
considered and operate as a conveyance of all the right, title, and interest the
party delinquent had in and to the real property thus sold at the time the lien of
the United States attached thereto.

il
C. § 6339(b)(1) provides prima facie evidence that
JAB owned the property.
The Pates have no burden to prove that the IRS or
JAB had any interest in the property conveyed
by the IRS deed.

D In this case, the LR.S. Deed conveyed all of
the interest of the JAB
Development in the subject property to the Pates.
26 U.S.C. 6336 provides that the deed given

by the LR.S." -. Shall be considered and operate as a conve
yance of all the right, title, and interest
the party delinquent had in and to the real property
thus sold at the time the lien of the United
States attached thereto. "In other words, the deed
conveyed all interest of JAB Development
Corporation d.b.a. JAB Development Company had
at the time of the filing of the applicable IRS
lien. Those interests included the tight to enforce
the warranty of title contained in the deed
which granted the property to JAB Development; i.e.
the “Bishop Deed” from George M. Bishop
to JAB Development.

E. As provided in the LR.S. lien document itself, a copy
of which is attached
hereto, as Exhibit 4, the lien is on ": ‘all property and rights to the
property belonging to this
taxpayer for the amount of these taxes, and addit
ional penalties, interest, and costs that may
accrue." The taxpayer is identified as "JAB Deve
lopm ent Corporation JAB Development
Company a corporation." The lien was filed on Febru
ary 12, 2013 and therefore the quitclaim
deed of the LR.S. to Defendants/Cross-Plaintiffs conve
yed the interest of JAB Development as of
that date.

F "All property and rights" of the named taxpayers inclu
ded the right to rely
on the chain of title, including the representations and
warranties made in the Bishop Deed. The
Bishop deed named JAB Development Company, a Texas corporation, as the grantee of the
property, and included representations and warranties
of title enforceable by JAB Development.

12
The deed from the Internal Revenue Service to the Pates even referenced the Bishop Deed as

being the source of title to the property, and such reference is prima facie evidence of the right of

the Pates to rely on the warranty of title contained in the Bishop Deed. The right to rely upon the

representations and warranties expressed in the Bishop Deed passed directly from JAB to the

Pates under federal law.

IX.

STATE TAX DEEDS ARE MORE THAN
SIMPLE QUITCLAIMS UNDER TEXAS LAW

A Similarly, tax deeds selling property to pay taxes under state law are subject to

specific rights under state statutory law. Just as the Internal Revenue Code adds statutory

clarification for LR.S. tax deeds, Texas statutory law adds clarification to sheriff's tax deeds at

the local level.

B The tax deed vests good and perfect title in the purchaser or the purchaser’s

assigns to the interest owned by the defendant in the property subject to the foreclosure,

including the defendant’s right to the use and possession of the property, subject only to the

defendant’s right of redemption and certain restrictive covenants or easements 2 [Tex. Tax Code

§ 34.01(n); see Hutson v. Tri-County Properties, LLC, 240 S.W.3d 484, 489-490 (Tex.

App.—Fort Worth 2007, pet. denied) (when tax purchaser produced tax deed executed several

years earlier, purchaser established ownership, and when there was no evidence to contrary, it

would be presumed that ownership continued to time of summary judgment for purchaser); Hawk

The deed vests good and perfect title in the purchaser or the purchaser's assigns to the
interest owned by the defendant in the property subject to the foreclosure, including the
defendant's right to the use and possession of the property, subject only to the defendant's
right of redemption . . . The deed may be impeached only for fraud.

13
v. E.K. Arledge, Inc., 107 S.W.3d 79, 83 (Tex. App.—Eastland 2003, pet. denied) (foreclosure and

sale of property to satisfy tax lien extinguished preexisting liens on property, and subsequent

foreclosure sale under those liens was invalid)].

Cc The tax deed passes title of “the interest owned by the defendant.” That is, if the

named defendant in the foreclosure suit in fact had the fee no interest in the property, the tax sale

and deed pass the fee estate, but if the defendant owned no interest, the tax suit and deed would

pass nothing. [Memorial Park Med. Ctr., Inc. v. River Bend Devel. Group, L.P., 264 S.W.3d 810,

813-817 (Tex. App.—Eastland 2008, no pet.).

TEXAS RECOGNITION OF IRS TAX DEEDS

A The effect of I.R.S. tax deeds has been interpreted under related provisions of the

Internal Revenue Code in disputes between (a) the affected taxpayer or the taxpayer’s lienholder

and (b) the government or the grantee named in the deed; In each case, the court found that the

tax sale deed was valid and passed the interest of the underlying taxpayer to the grantee of the

tax deed. Moreover, the courts have applied related provisions of the Internal Revenue Code in

their determination of the effect of the I.R.S. deed on the outcome of the case. Courts would be

expected to similarly apply §6339 as well.

B. In Johnston v Bennett, 176 S.W.3d 41 (Tex. Civ App.—Hou [1* Dist.]) 2004, the

court found that an I.R.S. tax deed was effective to show ownership in the grantee of the deed for

purposes of the three-year adverse possession statute.

Cc In McCann v. Spencer Plantation Investments, No. 01-16-00098- CV (Tex.Civ.

App. - Hou. [1* Dist.] 2017, the appellate court found in favor of the grantee of an IRS tax deed

14
in a case where the underlying taxpayer had sued the grantee in a suit to quiet title to the

property.

D. In WMC y¥. Moss, No. 01-10-00948-CV- (Tex.Civ.App. - Hou [1* Dist.] 2011, the

appellate court ruled that a tax sale deed from the IRS could not be challenged by reason of the

failure of the IRS to comply with section 6335(a) &(b) because those protections are for the

benefit of the taxpayer, not the government, a third party, or the public interest. Because the

appellant was not the taxpayer, its challenge to the tax sale deed was denied.

E. Texas cases have repeatedly recognized the validity of federal tax lien deeds as

against parties who are not the affected taxpayer. In this case, the affected taxpayer is not a

party, and Texas law therefore cannot challenge the title passed to the Pates.

XI.

BISHOP’S DEED TO JAB DEVELOPMENT

A Hamilton wrongly alleges that the Bishop Deed is a quitclaim deed and therefore

did not transfer title.

B Plaintiff/Cross-Defendants have offered no summary judgment evidence in

support of their allegation except the Bishop Deed itself.

Cc. Defendants/Cross-Plaintiffs claim a genuine issue of material fact exists as to

Plaintiffs/Cross-Defendants' claim and submit affidavits, discovery, documentary evidence and

Plaintiffs/Cross-Defendants' pleadings, as summary judgment evidence, referenced in an

appendix attached hereto, filed with this response and incorporated by such reference for all

purposes as if recited verbatim herein.

D. Where a general warranty deed purports to "grant, sell and convey" to the grantee

all interest that the grantor holds in the tract, express warranties arise by virtue of the deed's

15
general warranty provision, and implied warranties arise by virtue of the use of the words "grant,

sell and convey." Fannin Inv. & Development Co. v. Neuhaus, 427 S.W.2d 82 (Tex. Civ. App.

Houston 14th Dist. 1968).

E It is noted that Bishop himself signed the deed. There is no dispute in that regard.

There is no dispute that Mr. Bishop understood the document that he was signing. There is no

dispute that there is any other instrument in the public record which disputes the terms of the

deed, its representations, or its warranties.

F. The deed states on its face that it is a “General Warranty Deed.” It contains the

language that it “grants, sells, and conveys to Grantee the Property, together with all and singular

the rights and appurtenances therein in any way belonging, to have and to hold it to grantee and

grantee’s heirs, successors, and assigns forever.” Bishop falsely argues that it contains no

express or implied warranties except for those limited warranties contained in the deed. Indeed,

as noted above, Texas law is that warranties of title arise by virtue of the use of the words “grant,

sell and convey.” Hamilton and Bishop also claim in their motion that the Bishop Deed contains

no “habendum clause.” In fact, the habendum clauses quoted above can be found in the deed

and the first sentence of the first full paragraph on page 2 of the deed. The argument that the

deed is invalid for lack of a habendum clause is clearly false.

G The grantor in a warranty deed transfers all of the grantor's interest in the subject

land unless there are reservations or exceptions that reduce the estate conveyed. Granted, there

are exceptions contained in the deed. However, they do not limit the warranty of title. The

stated exceptions essentially limit title to be subject to recorded exceptions to title, such as

easements, restrictions oil and gas leases, etc. Additionally, it provides that the property is

transferred in an "as is" condition and without warranty of suitability for a particular purpose.

16
However, the deed is clear that the grantee is "taking the property" and that the exception relates

only to the condition to the property, not to the title to the property.

H. A grantor who has warranted title to a tract by its deed is estopped to assert

anything in derogation of the grantee's title. Wade v. Brockmann, 404 S.W.2d 622 (Tex. Civ.

App. Austin 1966), writ refused n.r.e., (Oct. 12, 1966).

I. The grantor in a general warranty deed transfers all of the grantor's interest in the

subject land, unless there are reservations or exceptions that reduce the estate conveyed.

J As a matter of law, the Bishop deed is a general warranty deed.

XI.

QUITCLAIM ALONE DOES NOT DEFEAT AN INNOCENT PURCHASER STATUS

A A purchaser under a quitclaim deed from the intermediate seller takes the interest

of that seller, and therefore takes a good title, regardless of what notice the purchaser may have,

if the seller acquired the land as a bona fide purchaser. Laffare V. Knight, 101 SW. 1034 (Tex.

Civ. App. Fort Worth 1907). Thus, taking under a quitclaim deed does not defeat the innocent

purchaser status of the grantees of a predecessor in title who had purchased under a warranty

deed without notice of an adverse claim. Reagan v. Andrews, 241 S.W.2d 249 (Tex Civ. App.

Fort Worth 1951).

B In this case, Hamilton claims that the Pates took the property under a quitclaim

deed, a suggestion which the Pates dispute, as set forth above. However, even if such is true,

which the Pates deny, they nevertheless are entitled to enforce all of the rights of their

predecessor in title, being JAB Development Corporation d.b.a. JAB Development Company,

whose title was transferred to the Pates by the IRS deed. JAB of course, held title pursuant to

17
the Bishop Deed, which by its terms is a general warranty deed. The Pates have all of the rights

of JAB, and therefore have the right to claim innocent purchaser status transferred to it by JAB.

XIII.

CONCLUSION

The Court should deny Hamilton's Third Motion for Partial Summary Judgment on

Questions of Law.

PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants/Cross-Plaintiffs pray that

this Court will deny Plaintiffs' Third Amended Motion for Partial Summary Judgment on

Questions of Law, or order such other relief as may be appropriate.

Respectfully submitted,

THE HOLOWAY JONES LAW FIRM PLLC

By: /s/ Russell C. Jones
Russell C. Jones
Texas Bar No. 10954300
Email: rjones@jonesattorneys.com
407 Julie Rivers Drive
Sugar Land, TX 77478
Tel. (281) 242-8100
Fax. (281) 242-7474
Attorney for Defendants
Judy K. Pate

18
CERTIFICATE OF SERVICE

I certify that on June 44°%021 a true and correct copy of Defendants' Response to
Plaintiffs' Third Amended Motion for Partial S; Judgment on Questions of Law was
served on Jeffrey R. Vaughan and George M. Bishop electrohically through the electronic filing

Cap2 —
manager.

RUSSELL C. JONES

19
NO. 17-DCV-243655

DAVID H. HAMILTON, AS TRUSTEE OF T. H. TRUST
§ IN THE DISTRICT COURT
§
Plaintiff and Counter-Defendant, §
§
Vv. §
ROBERT G. PATE AND JUDY K. PATES§ 434TH JUDICIAL DISTRICT
Defendants and Counter-Plaintiffs §
§
Vv. §
GEORGE M. BISHOP, K. M. BISHOP§
AND DAVID H. HAMILTON,§
INDIVIDUALLY ,
Cross-Defendants § OF FORT BEND COUNTY, TEXAS

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally appeared Russell C.

Jones who swore on oath that the following facts are true:

"My name is Russell C Jones. I am over the age of 18 years, of sound mind and fully

competent to make this affidavit. I have personal knowledge of the facts herein stated and they

are all true and correct.

"I verify that all copies of discovery and documents attached in the appendix to the

Defendants' Response to Plaintiffs’ Third Amended Motion for Partial Summary Judgment On

Questions of Law are true and correct copies of the original documents."
STUDY COTE _
2 0GHR Lamy TRIDETG
—

FILED AND RECORDED
OFFICIAL PUBLIC RECORDS
Cparn, Pehareh
a
Laura Richard, County Clerk
Fort Bend County, Texas
Nareh 18, 2017 01:40:68 Pn
FEE;
CERT
$16.00 JE
2017028085
EXHIBIT “3”
DEFENDANTS’ RESPONSE
TO PLAINTIFF’S THIRD
AMENDED MOTION FOR
PARTIAL SUMMARY
JUDGMENT ON
QUESTIONS OF LAW
« + th teeta wet

Pr
AT et sneer
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE 4 NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION
FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL
SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
General Warranty Deed

Date: NOVEMBER 12, 2007
Grantor: GEORGE M. BISHOP, individually and as Trustee
Grantor's Mailing Address:

GEORGE M. BISHOP
6922 Aldemey Dr,
Houston, ‘Texas 77055
Harris County

Grantee: JAB DEVELOPMENT COMPANY, a Toxas corporation
Grantee's Mailing Address:

JAB DEVELOPMENT COMPANY
316 N. John Young Parkwsy, Suite 5
Kissimmee, Fla. 34741

Consideration:

Cash and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,
Property Gincluding any improvenients):
That certain 4.7695 acres of land in the KNIGHT AND WHITE LEAGUE, A46,
THE I & GN. RAILROAD COMPANY SURVEY, A-353 , AND THE WILLIAM
STANLEY SURVEY, A-599, Fort Bond County, Texas, as per the metes and. bonds
description attached hereto and made a part hereof.
Reservations from Conveyance:

None

Exceptions to Conveyance and Warranty:

Validly existing casements, rights-of-way, and prescriptive rights, whether of record ornot;
all presently recorded and validly existing restrictions, reservations, covenants, conditions, elland
gas leases, mineral interests, and water interests outstanding in persons other than Gratitor, andother
instruments, other than conveyancesof the surface fee estate, that affect the Property; vali existing,
rights of adjoining ownets in any walls and fences situated on a common bount > any
discrepancies, conflicts, or shartages in arca or boundary lines; any encroachments or overlapping,

EXHIBIT 3

steep ete
Manu anne

of improvements: all tights, obligations, and other matters arisiy
Fort Bend County Texas; and taxes fifor 2007, which ng from and existing by reasonofthe
Grant €& assum nes and agrees to yy, aT
subsequent assessments for that
and pri ior years due to change in laid w: sage, ownership,
payment of which Grantee assumes. or boll dae

Grantor, for the Considera tion and subject to the Reservations
Exceptions to Conveyance and Warranty, grants, sells, and conve ftom Conveyance and the
ys to Gra
with all and singular the rights and appurtenanees thereto in any way belongnte the
e Property, togther
ing, to have and tohold
it to Grantee and Grantee's hi cits, successors, and assigns for ever. Grantor binds Grantor and
Grantor's heirs and successors to warrant and forever defend all and sin, gular the Property to Grantee:
and Grantee's heirs, success ors, and assigns against every person whor
nis soever lawfully claiming or
to claim the same or any part thereof, except as to the Reserv
Exceptivns to Conyeyane and Warranty. ations from Conveyance and the

Asa material par of the Consideration jor this deed, , Grantor and Grantee agree that Gantee
is taking the Property "AS IS" with any and al] latent and patent
defects and that there isno waranty
by Grantor that the Property has a particular Ginancial vat lue
or is fit for a particular purpose. Gintee
acknowledges and stipulate: s that Grantee is not relyi Ing on any
assertion with respect to tbe Property condilion bu t is representation. statement, or other
Property,
relying on Grantee's examination of the
Grantec takes the Property wit ith the express understandin
no express or implicd warranties except for Limited warranties
fe
: and stipulation that there are
of ti it set forth in this deed.
When the context requires, singular nouns and pronouns
include the plural,

“OL.
GEORGE ™ SHOP, individuaily and as trust

STATE OF TEXAS )
COUNTY OF FORT BEND )
This instrument was acknowledged before me an
November 12, 2007, hy GEORGE M. BISHOP, individually 2008, effective
and in the capacity as Trustee,

CLE Presta
ly commission expires: en l4¢-BOID

she attest
14 mun naa eere

AFTER RECORDING RETURN TO:
Bousquet & Devine P.C.
9225 ity Freeway # 103
Houston, Tx 77024
Tel: (713) 827-8000
Tax: (713) 827-0096

Temtememeernuranre (eit atone Ailing Ont VIS eee NIE ere HERE, r

Case Info

Judge

James H. Shoemake Track Judge’s New Case

Case No.

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Document Filed Date

June 21, 2021

Case Filing Date

July 25, 2017

County

Parties

Alicia M. Matsushima Attorneys for Defendants
Alicia M. Matsushima Attorney for the Appellee
Alicia M. Matsushima Attorney for the Defendant
Bishop, George M. Appellant
Bishop, George M. Counter-plaintiff
Bishop, George M. Cross Defendant
Bishop, K M Cross Defendant
George M. Bishop, III Attorney for the Plaintiff
Hamilton, David H Counter-defendant
Jeffrey R. Vaughan Attorney
Pate, Judy K Appellee
Pate, Judy K Counter-defendant
Pate, Judy K Counter-plaintiff
Pate, Judy K Cross Plaintiff
Pate, Judy K Defendant
Pate, Robert G Appellee
Pate, Robert G Counter-defendant
Pate, Robert G Counter-plaintiff
Pate, Robert G Cross Plaintiff
Pate, Robert G Defendant
Russell C. Jones Attorneys for Defendants
Russell C. Jones Attorney for the Defendant
T.H. Trust Appellant
T.H. Trust Plaintiff
Richard Fuqua Attorney
Moises Liberato Attorneys for Defendants

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Answer: T.H. Trust vs Robert G Pate and Judy K Pate

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