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

On July 25, 2017 a Motion,Ex Parte 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.

Preview
NO. 17-DCV-243655

DAVID H. HAMILTON, AS TRUSTEE § INTHE DISTRICT COURT
OFT. H. TRUST §
Plaintiff, §
§
§ 4BATH JUDICIAL DISTRICT
§
ROBERT G. PATE ANDJUDY K. PATE §
Defendants. § OF FORT BEND COUNTY, TEXAS

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME Defendants, Robert G. Pate and Judy K. Pate, Movants herein, and request

the Court to enter Summary Judgment in favor of Movants on the counterclaims and affirmative

defense set forth herein and against Plaintiff David H. Hamilton, individually and as Trustee of T.

H. Trust, and all other Cross- Defendants and Counter- Defendants (hereinafter Non-Movants), and

in support thereof, show the Court the following:

FACTS/PROCEDURAL HISTORY

Cross-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 Intemal Revenue

Service to the Cross-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

11 attached to this Motion for Summary Judgment.)
B. The deed to Cross- Plaintiffs
from the Intemal 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. (Exhibit 10.)

Said Certificate referred to the ownership of the Property by JAB Development Company as

evidenced by a General Warranty Deed executed by Cross-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. (Exhibit 8.)

C. The lien of the Intemal 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. (Exhibit 9).

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. (Hereinafter sometimes referred to as the “Fraudulent Substitute Trustee’s Deed”,

Exhibit 12). The Fraudulent Substitute Trustee’s Deed names T.H. Trust as Trustee. Hamilton is

Trustee of T.H. Trust. Said Fraudulent Substitute Trustee’s Deed has created a cloud on the title

of Cross-Plaintiffs’ Property.
MU TiiC-tar-miamede)
e) oXe)a me)mmLACM lam aXe) ella m CMM ac-1C--lale Mle
le \Val Gm ar-1K-]
rec

Pesce
Bishop Affidavit
of Ownership
ry

eC rir
Pate Purchases
Land at IRS Auction
Peer ii
IRS Deed to Pate
Cere

Eo Ed ny Ey Eo) EO Eu Ee Eo ED Ee Eo Eu

Il.

ARGUMENTS & AUTHORITIES

Movants can demonstrate Movants are entitled to summary judgment as a matter

of law on the counterclaims and the affirmative defense set forth herein.

B. When a Movant moves for summary judgment, it is not required
to prove the

amount
of the damages, only that damages
were incurred. Because Movants can prove the case

as a matter
of law, and because Movants need not prove the amount of damages, Movants are

entitled to summary judgment.

C. There are no genuine issues of material fact in this case; therefore, the Court may

decide this case on the summary judgment evidence included in the appendix to this motion, which

Tex. R. Civ. P. 166a(a)
II.

PLAINTIFF’S TRESPASS TO TRY TITLE FAILS

The plaintiff in an action in trespass-to-try-title must recover, if at all, on the

strength of the plaintiff's own title and may not rely on the weakness of the defendant's title.

Recovery by proof of title may be had by proving: (1) a regular chain of conveyances
from the

sovereignty of the soil; (2) a superior title out of a common source; (3) title by limitation; or (4)

title by prior possession coupled with proof that the possession has not been abandoned.

B. A plaintiff may recover in trespass to try title by proving a regular chain of

conveyances from the sovereignty of the soil. In order to prove title in this manner, the plaintiff

must establish a land grant or patent from the state or sovereignty showing
that the title vested in

the original grantee or patentee has passed by successive conveyances to the plaintiff.

C. Under
the Texas Rules of Civil Procedure, a party may recover
in a trespass to try

title action by tracing title to a common sourve without having to go behind that common source.

Kilpatrickv. McKenzie, 230 S.W.3d 207, 214 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (when plaintiff fails
to establish right to title in trespass-to-try-title action, judgment must be enteredfor defendant even if defendant fails
to establish pleaded title, because “harsh” nule is that plaintiff may recover only when own title has been affirmatively
proven); Singleton v. Terrel, 727 S.W.2d 688, (Tex. App.—Texarkana 1987, no writ) (argument that title claim.
of defendants was faulty was irrelevant in absence of showing of plaintiffs’ title); Reinhardtv. North, 507 S.W.2d
589, 591 (Tex. Civ. App.—Waco 1974, writ ref’d n.re.); Gray v. Joyce, 485 S.W.2d 311, 313 (Tex. Civ. App.—Tyler
1972, writ ref’'d mre.)
Bacon v. Jordan, 763 S.W.2d 395, 396-397 (Tex. 1988) (listing elements of trespass-to-try-title case); Hines v.
Pointer, 523 S.W.2d 733, 738 (Tex. Civ. App.—Fort Worth 1975, writ ref’'d nre.); see Land v. Tuer, 377 S.W.2d.
181, 183 (Tex. 1964); Comelius v. Armstrong, 695 S.W.2d 48, 50 (Tex. App.—Tyler 1985, writ ref’d nre.)
(plaintiff’
s failure to prove title by any of four methods was fatal to plaintiff’ s right to recover in trespass-to-try-title
action)
Radcliffe v. Tidal Petroleum, Inc., 521 S.W.3d 375, 379 (Tex. App.—San Antonio 2017, pet. denied); Coker v.
Geisendorff, 370 S.W.3d 8, 12 (Tex. App.—Texarkana 2012, no pet.); Kilpatrickv. McKenzie, 230 S.W.3d 207, 214
(Tex. App.—Houston [14th Dist.] 2006, no pet); Oswald v. Staton, 421 S.W.2d 174, 175 (Tex. Civ. App.— Waco
1967, writ ref’d mre.)
Mills v. Snyder, 8 S.W.2d 790, 791 (Tex. Civ. App.—San Antonio 1928, no writ); see, e.g., Coker v. Geisendorff,
370 S.W.3d 8, 13 (Tex. App.—Texarkana 2012, no pet.) (abstract of title showed regular and uninterrupted chain of
title from sovereign to plaintiffs as to disputed tract)
v. Ricane Enters., 884 S.W.2d 763, 768 (Tex. 1994); Watkins v. Certain Teed Products Corporation, 231
S.W.2d 981, 984 (Tex. Civ. App.—Amarillo 1950, no writ); Tex. R. Civ. P. 798; see Gipson Jelks v. Gipson, 468
S.W.3d 600, 603-604 (Tex. App.— Houston [14th Dist.] 2015, no pet.) (when sisters each claimed title from common
source
of their mother, it was not necessary to introduce deed granting title to mother)

4
To prove title from a common source, a plaintiff must connect title with the common sourve by a

complete chain of title, connect the defendant’s title to the same source, and prove that the

plaintiff’s claim or title is superior
to that of the defendant.

Non-Movant has asserted a cause of action for trespass to try title in Non-Movant's

original petition; however, Movants are entitled to a summary judgment as a matter of law because

Non- Movants cannot prove the absence of the element of superiortitle in the Plaintiff. Specifically,

Non- Movant has failed to respond to discovery requests for proof of Non- Movants’ superior title,

and Non-Movants have wholly failed and refused to do so.

Movants
are entitled to summary judgment
as a matter of law.

IV.

AFFIRMATIVE DEFENSE: NO DECLARATORY JUDGMENT PERMITTED

Plaintiff has requested a declaratory judgment in relation
to its trespass to try title

claim. In Martin
v. Amerman , the Texas Supreme Court determined that because the Property

Code provides that a trespass-to-try-title action is the sole method of determining title to land or

real property , a party may neither avoid the pleading and proof requirements of the trespass-to-

try-title action, nor supplement the remedies available in such an action by styling it as an action

fora declaratory judgment.!° A trespass-to-try-title action is the exclusive remedy for determining

title to land.

B. Therefore, plaintiff is not entitled to a declaratory judgment on its trespass to try

title claim as a matter
of law.

rs v. Ricane Enters., 884 S.W.2d 763, 768 (Tex. 1994); Dames v. Strong, 659 S.W.2d 127, 131 (Tex. App.—
Houston [14th Dist.] 1983, no writ) (citing secondary authority)
Martinv. Amerman, 133 S.W.3d 262, 265-267 (Tex. 2004)

See
Vv

AFFIRMATIVE DEFENSE: FAILURE TO COMPLY WITH THE CONDITION
PRECEDENT FOR ATTORNEY’S FEES

Plaintiff has requested recovery of his attomeys fees pursuant to his claim for

trespass to try title. As to the statutory prerequisites
for an award of attomey’s fees in such a

case, the person seeking recovery of possession must send to the party unlawfully in possession a

written notice and demand to vacate the premises, by registered or certified mail, at least 10 days

before filing the claim for recovery of possession.!!

B. In this case, the plaintiff failed to make any such demand fought prior to filing suit

and is therefore not entitled to recover attomey’s fees as a matter
of law.

VI.

COUNTERCLAIM: CLAIM TO REMOVE CLOUD FROM TITLE

Movants filed a counterclaim against Non-Movants seeking affirmative relief to

remove the Fraudulent Substitute Trustee’s Deed as a cloud on Movants’ title to the Property.

B. Alitigant who seeks to remove a cloud fromaititle to property must plead and prove

three basic elements. The petitioner
must show (1) an interest in specific property, (2) that title to

the property is affected by a claim by the defendant, and (3) that
the claim, although facially valid,

is invalid or unenforceable.'?

C. Movants’ interest
in the Property
as is shown in the chain of title starting with the

deed from Counter Defendant Bishop to JAB Development Company (“Bishop Deed”) (Exhibit

8), followed by the IRS lien filed in the real property records against all real property owned by

JAB Development (Exhibit 9), followed by the deed from the IRS of the interest of JAB

See, e.g., Sadler v. Duvall, 815 S.W.2d 285, 293 n.2 (Tex. App.—Texarkana 1991, writ denied); La Fleaur v.
Kinard, 161 S.W.2d 144, 147 (Tex. Civ. App.— Beaumont 1942, writ ref’d w.o.m)

6
Development to the Movants. (Exhibits 10 and 11). The aforementioned documents in the real

property records which are evidence of Movants’ title to the Property.

Movants’ title to the Property is affected
by the Fraudulent Substitute Trustee Deed.

filed by the Non-Movants subsequent to the date of the deed from the IRS to the Movants. A true

and correct copy of the Fraudulent Substitute Trustee Deed is attached hereto as Exhibit 12.

Although the Fraudulent Substitute Trustee’ s Deed may be valid on its face without

reference to the entirety of the real property records, as shown by the exhibits described in the

immediately preceding two paragraphs, it is invalid under the property recording laws of the State

of Texas. The Non-Movants had knowledge of Movant's interest in the Property as provided by

Tex. Prop. Code §13.002. A conveyance of real property or interest
in real property is void as to a

purchaser for valuable consideration without notice unless the instrument has been filed for record

as required by law. As shown by the attached Exhibits, the Fraudulent Substitute Trustee Deed is

invalid as to Movants because it was filed subsequent to the date of filing of the IRS deed to the

Movants.

F Movants claim there is no genuine issue of material fact as to any element of its

claim to remove the cloud from Movants’ title and include affidavits, discovery, documentary

evidence and Non- Movant's pleadings as summary judgment evidence, referenced
in an appendix

attached hereto, filed with this motion and incorporated by such reference for all purposes as if

recited verbatim herein.

Tex. Prop. Code §13.001.
VIL.

COUNTERCLAIM: CLAIM FOR STATUTORY AND COMMON-LAW FRAUD

Movants filed a counterclaim against Non-Movant seeking affirmative relief for

Common Law Fraud.

B. To successfully assert fraud, the pleader must allege facts showing the following:'*

1 A material representation was made. In this case, the Plaintiffs
made material

representations
to the grantee named in the Bishop
Deed and to all successors and assigns

as set forth in the real property records in that they represented that the title to the property

was in Bishop. Bishop further represented in two affidavits, copies of which are attached

hereto as Exhibits
5 and 7, that he personally owned the note and debt referred to ina deed

of trust which he later foreclosed. In his current pleadings, Bishop back tracks on all such

warranties.

2. The representation was false. In this case, the Defendants/Counter- Plaintiffs

relied upon such representations in making their decision to bid on and purchase the

property.
3, It was made with knowledge that it was false or was made recklessly without

any knowledge
of its truth. All such representations
were made by Bishop in writing,

and filed for record in the real property records. Bishop made such representations with

knowledge of the underlying facts or recklessly made such representations to be relied

upon by all persons who would later become interested in the property.

Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487, 491 (Tex. 1973); Albritton v. Henry S. Miller
Co., 608 S.W.2d 693, 695 (Tex. Civ. App.—Dallas 1980, writ ref’d nre.); Neuhaus v. Kain, 557 S.W.2d 125, 136
(Tex. Civ. App—Corpus Christi 1977, writ ref’ dn.re.).

8
4. It was made with the intent that it should be acted upon. The Plaintiffs made

the false representations
with the intent that persons subsequently interested
in the property

could act upon those representations.

5, The Defendant acted in reliance on it. Defendant/Counter- Plaintiffs would not

have bid on or purchase the property if the false representations had not been made and

they relied upon the false representations when they bid on and purchase the property.

6. The Defendant suffered injury as a result of his or her reliance

Defendants/Counter- Plaintiffs have suffered an injury as a result of their reliance upon the

false representations of the Plaintiffs in that they have paid money for the property, have

not been repaid, and incurred attomeys’ fees, and will continue
to be damaged until title to

the property is cleared.

7, As a result, all of the elements of fraud having been committed are evidenced in

this case.

C. Movants claim there is no genuine issue of material fact as to any element
of

Common Law Fraud and include affidavits, discovery, documentary evidence and Non-Movant's

Pleadings as summary judgment evidence, referenced in an appendix attached hereto, filed with

this motion
and incorporated by such reference for all purposes as if recited verbatim herein.

VII.

COUNTERCLAIM: BREACH OF WARRANTY OF TITLE

In the altemative, Movants filed a counterclaim against Non-Movant seeking

affirmative relief for breach of warranty of title, specifically the title to the Property granted by

Cross-Defendant George Bishop to JAB Development Company 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 (the “Bishop Deed”), a copy of which is attached hereto as Exhibit 8.

B. To state a cause of action for breach of covenant of warranty of title, the Movants

must plead and prove: (1) execution and delivery of the deed containing the covenant; (2) the

terms of the covenant; (3) performance by Movants of any conditions precedent!®; (4) facts

showing a partial or total failure of title, and the actual or constructive eviction of the Movants; (5)

the consideration
paid by Movants; (6) the value of the land or interest lost. Each of these matters

is addressed below.

C. The Bishop Deed was executed by Bishop as indicated by his signature on the deed

attached hereto as Exhibit 8. The deed has been recorded in the real property records for over ten

years and was presumptively delivered. Under applicable law, Movants are entitled to rely on the

validity of Bishop's Deed.

The tems of the covenant breached is the general warranty implied by the name of

the document and the language contained in the granting paragraph of the deed, as well
as general

teal estate law applicable in Texas. Additionally, Bishop signed two certain affidavits, copies of

which are attached hereto as Exhibits 5 and 7, and filed the same in the real property records just

a few days before filing the Bishop Deed. In those affidavits, Bishop claimed that he had title to

and the authority
to sell the Property. Further, Bishop has stated in a recorded voicemail left at the

office of the undersigned attomey on September 29, 2017 that “I never had any interest in this

property.” A swom transcript of the voicemail is attached hereto as Exhibit D. Bishop's statement

is directly contrary to the warranties made in the deed, being either an admission of the fraudulent

See Tex. R. Civ. P. 54

10
character
of the Bishop Deed and the two affidavits, or evidence of an intentional false statement

made to a fellow attomey in violation of the legal profession’s disciplinary rules.

Until broken, a covenant of warranty of title runs with the land.!® Thus, it inures
to

the benefit
of the grantee, the grantee’s heirs and assigns,” and the subsequent purchaser who is

evicted by one with superior title.® On breach
of the covenant, the evicted grantee
may elect to

sue any one or all of the warrantors in his or her chain
of title.!°

F No conditions precedent exist which need to be satisfied by the Movants.

If this court fails to find that title to the Property is in the Movants, such finding

shall constitute a partial or total failure of title and a constructive eviction of the Movants.

The consideration paid by the Movants is $176,000.00, such amount having been

paid to the IRS for acquisition of the interest of JAB Development Company, as shown in Exhibit

I The value of the property is $2,500,000.00 as proved by the affidavit of Movant

Robert Pate, attached hereto as ExhibitA.

J Movants claim there is no genuine issue of material fact as to any element
of

Movants’ and include affidavits, discovery, documentary evidence and Non-Movant's pleadings

as summary judgment evidence, referenced in an appendix attached hereto, filed with this motion

and incorporated
by such reference
for all purposes as if recited verbatim herein.

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)
Flanniken v. Neal, 67 Tex. 629, 4 S.W. 212, 214 (1887)
Wiggins v. Stephens, 246 S.W. 84, 86 (Comm. App. 1922, jdgmt. adopted)], even though that purchaser claims title
through a quitclaim, Saunders v. Flanniken, 77 Tex. 662, 14 S.W. 236, 236 (1890) or a sheriff’s deed Flanniken v.
Neal, 67 Tex. 629, 4 S.W. 212, 214 (1887)
Penney v. Woody, 147 S.W. 872, 874 (Tex. Civ. App.—Amanillo 1912, no writ)

11
x

COUNTERCLAIM: DECLARATORY JUDGMENTS ACT

In the context of attempts to remove a cloud from the title to real estate, it appears

that the Declaratory Judgments Act (DJA) may be used.”° Of particular importance is the DJA’s

provision that the court, in any lawsuit brought under the DJA, may award reasonable and

necessary attomey’s fees as are equitable and just.2! No other statute or rule of law exists to

authorize the recovery of attomey’s fees by the petitioner in a suit to quiet title”* Thus, if the

action can be brought as one for declaratory relief, the recovery of attomey’s fees becomes a

possibility, subject to the trial court’s discretion.

B. The DJA offers a procedure for the judicial determination of, among other things

not pertinent here, “any question of construction or validity” arising under an instrument or

contract. Of particular note is the statute’s provision for use of the procedure by (1) a person

“interested” under a deed or other writing constituting a contract or (2) a person whose rights or

other legal relations are “ ected” by a contract.? Further, the DJA expressly states that this

enumeration does not limit or restrict the general powers conferred
by the DJA to declare rights,

status, or other legal relations.** Accordingly, the DJA should be liberally construed and “not

hedged about by technicalities,”2

Sadler v. Duvall, 815 S.W.2d 285, 293-294 (Tex. App.—Texarkana 1991, writ denied)

Anderson v. McRae, 495 S.W.2d 351, 356 (Tex. Civ. App.—Texarkana 1973, no wait) (citing Cobb v. Harrington,
144 Tex. 360, 190 S.W.2d 709, 714 (1945)); see Ch. 45, Declaratory Relief

12
C. Accordingly, a suit to remove a cloud from the title to real property appears to fall

within the literal provisions of the DJA if the suit questions the construction or validity of a deed,

contract, or other document affecting title.

Movants have raised a request to the court for declaratory relief. In order
to be

entitled to such relief, movants are required to show that there is ajusticiable controversy between

the parties.”” Movants
are further required to show that they have ajusticiable interest
in the subject

matter of the suit in order to maintain an action for a declaratory judgment.”

As shown by the affidavits of the Movant attached hereto as Exhibit A, there exists

ajusticiable controversy between the parties in that the purported foreclosure deed filed by the

Movants casts a cloud on the title of the Movants, that Movants relied upon the false and fraudulent

representations in the deed executed by George Bishop, and that Non- Movants have breached the

warranties of title contained
in said deed.

COUNTERCLAIM: FILING OF FRAUDULENT LIENS

Movant filed a counterclaim against Non-Movant seeking affirmative relief for

filing a fraudulent claim against real property in violation of Tex. Prac. &Rem. Code §12.001 et

. Movant
is required to prove that Movant owns an interest in the disputed property, that Non-

Movant had knowledge that his filings were fraudulent, that Non-Movant
had intent to have the

Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333-334 (Tex. App.—Fort Worth 1998, pet.
denied) (termination
of oil lease based on quiet title and slander
of title claims may be brought
as declaratory judgment
action); Anderson v. McRae, 495 S.W.2d 351, 356 (Tex. Civ. App.—Texarkana 1973, no writ) (declaratory action to
remove cloud and declare rights involving easement)
Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620, 624-625 (Tex. 2011); Robinson v. Parker, 353 S.W.3d 753, 756
(Tex. 2011) (no evidence of concrete injury); Brooks v. Northglen Ass’n., 141 S.W.3d 158, 163-164 (Tex. 2004);
California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780, 781 (1960); Mims-Brown v.
Brown, 428 S.W.3d 366, 377 (Tex. App.—Dallas 2014, no pet.) (no justiciable controversy); City of Helotes v. Miller,
243 S.W.3d 704, 708-709 (Tex. App.—San Antonio 2007, no pet.)
Rawiings v. Gonzalez, 407 S.W.3d 420, 425-426 (Tex. App.—Dallas 2013, no pet.

13
same legal effect as the documents they purport to represent and that Non-Movant had intent to

cause injury.

B. If the court determines
that the Movants owned no interest
in the Property, then that

determination
must be made on the basis that the Bishop’s Deed is fraudulent
and that it contains

representations by Bishop which are false. On the other hand, if the court determines that Movant

does own the Property, then the determination must be made that the Bishop Deed truly conveys

an interest in the Property
to JAB Development Company. That deed having been executed
by

Non-Movants, then the Fraudulent Substitute Trustee Deed must indeed
be fraudulent because it

‘was signed and filed by and at the direction of the same Non- Movant who signed the Bishop Deed.

Non-Movants simply cannot have it both ways.

C. There is no dispute that Non-Movant had knowledge that one or both of their

filings, specifically the Fraudulent Bishop Deed or the Fraudulent Substitute Trustee Deed, was

fraudulent at the time that it was filed by them.

There is no dispute that Non-Movant intended that the fraudulent instruments

should have the same effect as true deeds is demonstrated by the fact that the Bishop Deed was

additionally supported by two affidavits by Bishop to the same effect that he had the right to

convey
the property. Neither can there be any dispute that the Nonmovant intended that the

Fraudulent Substitute Trustee Deed should have the same effect as a true deed for the reason that

the Nonmovants had constructive knowledge of the IRS deed to the Movants and that the Non-

Movants filed this trespass to try title lawsuit even before they filed The Fraudulent Substitute

Trustee Deed.

That there is no dispute that Non- Movant intended to cause Movant financial injury

or mental anguish or emotional distress can be implied from the facts hereinabove stated.

14
F Movant claims there is no genuine issue of material fact as to any element
of filing

a fraudulent instrument and includes affidavits and documentary evidence as summary judgment

evidence, referenced in an appendix attached hereto, filed with this motion and incorporated by

such reference
for all purposes as if recited verbatim herein. Under
the applicable statute, Movant

is entitled to recover $10,000.00
in statutory damages for each of the two fraudulent instruments.

XI.

COUNTERCLAIM: CONSPIRACY TO DEFRAUD COUNTER-PLAINITFFS

All three
of the Cross-Defendants have acted in combination with the intentions to

accomplish the fraud upon the Counter Plaintiffs hereinabove described. The Non- Movants have

a meeting of the minds to commit one or more unlawful, overt acts, and damages
to the Movants

have resulted. All such acts were done intentionally in order to accomplish the unlawful purposes

herein described or to accomplish the lawful purposes by unlawful means as herein described.

Each of the Non-Movants is responsible for all acts done by all of the Cross-Defendants in

furtherance of their unlawful combination.

B. A conspiracy is a combination
by two or more persons to accomplish an unlawful

purpose or to accomplish a lawful purpose by unlawful means.”° The essential elements of a

conspiracy
are (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds

on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the

proximate result.° A specific intent to agree to accomplish
the unlawful purpose
or to accomplish

the lawful purpose by unlawful means is also required.*' Conspiracy is a “derivative” tort, in that

a defendant’ s liability for conspiracy depends on participation in some underlying tort for which

Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983)
Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983)
Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995)

15
the plaintiff seeks to hold at least one of the named defendants liable.** Once a conspiracy is

proved, each conspirator is responsible for all acts done by any of the conspirators in furtherance

of the unlawful combination.

C. As set forth in the Affidavit of Robert Pate attached hereto and the documents

attached as Exhibits and found in the public records, all of the Non-Movants satisfy the

requirements for participating in the conspiracy herein described.

XI.

REQUEST FOR SUMMARY JUDGMENT

If summary judgment for Movants is not rendered on the entire cause or for all relief

requested, and if a trial is necessary on some of the issues in this cause, Movants request the Court,

after examining the pleadings and summary judgment evidence before it and after interrogating

counsel to ascertain those material facts that are in good faith actually controverted, to make an

order specifying those facts that appear to be without substantial controversy
and directing such

further proceedings
in the action that are just.

XIII.

PRAYER

‘WHEREFORE, PREMISES CONSIDERED, Movants pray that:

The Court set this matter for hearing, with notice to Non-Movants, and that upon

completion of said hearing the Court grants Movants' Motion for Summary Judgment, and that

Movants have the following:

Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (if fraud claims properly maintainable, claims of conspiracy
related to fraud may be proper)
Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 926 (Tex. 1979)

16
1 Judgment against Nonmovants as to their claim for trespass to try title, or

altematively, should the Court find some facts to be controverted, Movants be granted a partial

summary judgment specifying those facts that appear to be without substantial controversy;

2. Judgment against Nonmovants for statutory and commorlaw fraud, or

altematively, should the Court find some facts to be controverted, Movants be granted a partial

summary judgment specifying those facts that appear to be without substantial controversy;

3, Judgment in favor of Movants on their claim to remove the cloud from the title of

the Property, or altematively, should the Court find some facts to be controverted, Movants be

granted
a partial summary judgment specifying those facts that appear to be without substantial

controversy;

4. Judgment against Nonmovants for breach of their warranty of title, or altematively,

should the Court find some facts to be controverted, Movants be granted a partial summary

judgment specifying
those facts that appear to be without substantial controversy;

5, Judgment against Nonmovants and in favor of Movants on the movants’ request for

a declaratory judgment granting the relief requested, or altematively, should the Court find some

facts to be controverted, Movants
be granted a partial summary judgment specifying
those facts

that appear to be without substantial controversy;

6. Judgment for breach of Tex. Prac. & Rem. Code§ 12.001 et sec and award of

statutory penalties of at least $20,000.00.

7, Judgment for damages of not less than $2,500,000.00

8. Pre-judgment and post-judgment interest as provided by law;

9, Judgment for attomey’'s fees as prayed for and proved by affidavit attached hereto

pursuant to the Declaratory Judgments Act;

17
10. Costs
of suit; and

11. Movants be granted such other and further relief, special or general, at law or in

equity, as may be shown that Movants are justly entitled to receive.

Respectfully submitted,

THE HOLOWAY JONES LAW FIRM PLLC

By: _/s/ Russell C. Jones
Russell C. Jones
Texas Bar No. 10954300
Email: rjones@jonesattomeys.com
407 Julie Rivers Drive
Sugar Land, TX 77478
Tel. (281) 242-8100
Fax. (281) 242-7474.
Attomey for Defendants/Counter- Plaintiffs
Robert G. Pate and Judy K. Pate

CERTIFICATE OF SERVICE

I certify
that on the 21% day of October, 2019 a tue and correct copy of Defendants' Motion
for Summary Judgment was served on George M. Bishop electronically through the electronic
filing manager.

/s/ Russell C. Jones
Russell C. Jones

18
NO. 17-DCV-243655

DAVID H. HAMILTON, AS TRUSTEE § INTHE DISTRICT COURT
OFT. H. TRUST
Plaintiff,

4BATH JUDICIAL DISTRICT

ROBERT G. PATE ANDJUDY K. PATE

Defendants. OF FORT BEND COUNTY, TEXAS

APPENDIX TO
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

All judgment evidence in this appendix is incorporated by reference into
Defendants’ Motion for Summary Judgment.

I Affidavits

Affidavit of Robert G. Pate attesting
to certain facts and to
the authenticity of certain documents attached hereto Exhibit

Affidavit of Russell C Jones attesting to the authenticity of
certain documents attached hereto. Exhibit

Affidavit of Russell C. Jones attesting
to the amount and
reasonableness of attomey fees. Exhibit

IL Transcript

Transcript of voicemail message received by Russell C
Jones from George Bishop dated September 29, 2017. Exhibit D

Il. Unrecorded Documents

a IRS Notice of Auction of Property Exhibit E

b. Movants’ check in payment of Property Exhibit F

19
IV. Documentary Evidence ExhibitG

Date Clerk's
Recorded File No.

Special Warranty Deed with Vendor's Lien
DMM Holdings to Coastal 11/9/2000 2000096355
Statutory Notice to Purchasers of Real Property
FBL No. 12 2/11/2005 2005017263
Deed of Trust Grantor: Coastal Sun Borrower:
Grand Parkway Equities 8/17/2005 2005100438
Appointment of Substitute Trustee Deed of
Trust Aug 9, 2005 10/5/2007 2007124343
Affidavit of Service by the Holder of the Note
George M Bishop 10/16/2007 2007128782
Affidavit of Service by Substitute Trustee KM
Bishop 10/16/2007 2007128783
Affidavit of Note Holder George M Bishop 10/16/2007 2007128784
General Warranty Deed George M. Bishop to
JAB Development (the “Bishop Deed”) 7/16/2009 2009072850
Notice of Federal Tax Lien JAB Development 2/12/2013 2013017291
10. Certificate of Sale of Seized Property JAB
Development 3/16/2017 2017028085
11 Quitclaim Deed JAB to Judy & Robert Pate 9/20/2017 2017103169
12. Substitute Trustee's Deed - Deed of Trust Aug
9, 2005 (“Fraudulent Substitute Trustee’s
Deed”) 2017106823
13. Notice of Lis Pendens 17 DCV_243655 12/28/2018 2018142398
14. Notice of Lis Pendens 17 DCV_243655 7/8/2019 2019073743

20
E.

nr
OD MN &

ih
oe

g.
at
lof
a
SS QB

if Bz
BZ>
C=
Is 2a
of &|
223
8a 53
se
gee

frmermnenent, a

oF ola
3

ies
th
oe
sa

Sze
3252
ome
Poe a} R
=m 2a
ne2
SS
E
saw
5

A mon wor

BR 5
qd.
mS
g
oe

s.
i IQ
me
gc
gE. a.
=.
R
ms
a.
i Ee. ae
BR
no
22
= me 3
oe s. OS
On Or Or
vw
m

a
2.

g. B.
E

s.
St
g. gE.

=.
Oe me
SZu sa
Bes
bZz
assz
ong
Po N< o>
= p>
aegz
2>
Sao

v
mR

Department of the Treasury - Internal Revenue Service

Notice of Public Auction Sale
Under the authority in Internal Rei ie.Code section 6331, the property described below has
been seized for nonpayment of int venue taxes due from
JAB DEVELOPMENT COMPANY
The property will be sold at public auction as provided by internal Revenue Code section 6335
and related regulations.
Date of Sale: March 16 2047

Time of Sale: 10:00 AM with registration at 9:30AM

Place of Sale: Fort Bend County Clerk, 301. Jacksol ichmond, TX - (Outside in front to the side of front door)

Title Offered Only the right, title, and interest of JAB DEVELOPMENT COMPANY.
in and to the property will be offered for sale. ifrequested, the Internal Revenue Service will
furnish information about possible encumbrances, which may be useful in determining the value
of the interest being sold. (See "Wature-of Title" for further details.)

Description of Being 4.7695 acres of land in the KNIGHT’AND WHITE LEAGUE, A-46 THE | & G.N. RAILROAD
Property:
COMPANY SURVEY, A-353 AND-THE WILLIAM STANLY SURVEY, A-599, Fort Bend County, Texas,
as per the metes and bounds description

The proper Is jescribed in Instruments 2009072850 in the.deed:recol of Fort Bend County:Clerk
of Courts in Te:
This property is a vacant parcel of land; logated at Skinner Ln, Richmond, TX 77406 and identified as
PPIN R34118.

Minimum,Bid $120,162.24

Mail in Bids accepted

Property may be Drive by Viewing only
Inspected at:

Payment Terms: oO Full payment required on acceptance-of highest bid
[X] Deferred payment as follows: 20% deposit required upon acceptance of the highest bid,
with the remaining balance due no Jater than April 14, 2017.

Form of Payment: All payments must be by cash, a certified, cashier's, or treasurer’s check drawn on any bank or
trust company incorporated under the laws of the United States or under the laws of any State,
Territory, or poss

Case Info

Judge

James H. Shoemake Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 21, 2019

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

For full print and download access, please subscribe at https://www.trellis.law/.

Motion,Ex Parte: T.H. Trust vs Robert G Pate and Judy K Pate

Preview

Related Topics

Case Info

Parties