Kirwan v. Garber

366 F.Supp.3d 818

Brenda J. KIRWAN, Plaintiff,

v.Sheryl GARBER, Defendant.

Case No. MO:18-CV-00060-DC

United States District Court, W.D. Texas, Midland-Odessa Division.

Signed February 13, 2019

Joseph A. Baker, Tyler J. Eyrich, Cotton Bledsoe Tighe & Dawson, P.C., Midland, TX, for Plaintiffs.

Arthur F. Selander, Rachel Lee Hytken, Quilling, Selander, Lownds, Winslett and Moser, P.C., Dallas, TX, for Defendants.

ORDER ON PARTIES' MOTIONS

DAVID COUNTS, UNITED STATES DISTRICT JUDGE

BEFORE THE COURT is Plaintiff Brenda J. Kirwan's Motion for Partial Summary Judgment filed on May 25, 2018 (Doc. 15), Defendant Sheryl Garber's Motion for Summary Judgment filed on December 7, 2018 (Doc. 51), Plaintiff's Motion for Summary Judgment on Defendant's Defenses of Estoppel and Unjust Enrichment filed December 7, 2018 (Doc. 52), Plaintiff's Motion for Partial Summary Judgment on Delivery, Constructive Notice, and Bona Fide Purchaser filed December 7, 2018 (Doc. 53), Plaintiff's Motion to Strike Defendant's Summary Judgment Evidence filed December 21, 2018 (Doc. 54), and Plaintiff's Unopposed Motion for Hearing filed January 29, 2019 (Doc. 58).

The parties have timely filed responses and replies to all motions.

After due consideration of the pleadings, the applicable law, and the record, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment (Doc. 51) and Plaintiff's Motion for Summary Judgment on Defendant's Defenses (Doc. 52). Moreover, the Court DENIES Plaintiff's Motion for Partial Summary Judgement (Doc. 15), Plaintiff's Motion for Partial Summary Judgment on Delivery, Constructive Notice, and Bona Fide Purchaser (Doc. 53), Plaintiff's Motion to Strike Defendant's Summary Judgment Evidence (Doc. 54), and Plaintiff's Unopposed Motion for Hearing (Doc. 58). Id.

I. BACKGROUND

On December 5, 2002, William Ouzts (Ouzts) executed a document titled Special Warranty Deed (the alleged Deed), which was typed and printed by Thomas J. Kirwan, a notary public and Plaintiff Brenda J. Kirwan's husband, naming Plaintiff, Ouzts' daughter, as the grantee to several condominium units (the Property). (Doc. 15 at 23). Plaintiff's husband acknowledged the alleged Deed on the same date it was executed. Id. The alleged Deed contains the following words of conveyance, habendum clause, and warranty clause:

Grantor, grants, sells, and conveys to Grantee as her sole and separate property all of Grantor's interest in the Property described in Exhibit "A" attached hereto, together with all and singular the rights and appurtenances thereto in any wise belonging, to have and hold to Grantee, Grantee's heirs, executors, administrators, successors, or assigns forever. Grantor binds Grantor and Grantor's heirs, executors, administrators, and successors to warrant and forever defend all and singular the property to Grantee and Grantee's heirs, executors, administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.

Id. The final sentence in the alleged Deed is in bold and states:

It is specifically understood and agreed however that the property described in Exhibit "A" shall not vest unto Grantee until the demise of the Grantor.

Id. The alleged Deed was filed for record in Midland County on June 3, 2003. Id.

On August 15, 2003, Ouzts unilaterally executed a document titled Deed of Rescission (Rescission Deed), which states that Ouzts "cancels, rescinds and nullifies" the alleged Deed, and filed it for record in Midland County on August 25, 2003, without Plaintiff's signature. Id. On December 23, 2004, Ouzts executed another document titled Warranty Deed with Vendor's Lien (Warranty Deed) selling the same property described in the alleged Deed to Defendant and her now deceased husband, Lloyd Garber. (Doc. 15 at 34). The Warranty Deed was filed for record in Midland County on January 4, 2005. Id.

On July 29, 2017, Ouzts died. (Docs. 51, 54). Thereafter, Plaintiff requested that Defendant relinquish possession, custody, and control of the Property. (Doc. 54 at 4). Defendant refused, claiming title to the Property under the Warranty Deed. Id. On February 9, 2018, Plaintiff filed suit in the 441st District Court of Midland, Texas, raising claims for declaratory judgment, trespass to try title, and assumpsit (money had and received). (Doc. 1-3 at 11–12). Defendant removed the case to this Court on diversity grounds on April 3, 2018. (Doc. 1 at 2).

On May 25, 2018, Plaintiff filed a Motion for Partial Summary Judgment, almost five months before the discovery deadline.

(Doc. 15). Plaintiff argues that: (1) the alleged Deed, once executed and delivered to Plaintiff, gave Plaintiff a remainder interest in the fee simple title to the property described therein; (2) Ouzts, via the final provision in the alleged Deed, reserved for himself no more than a life estate; and (3) when Ouzts passed away on July 29, 2018, Plaintiff became the owner of a fee simple title to the Property. Id. at 1. Defendant counters that partial summary judgment is not warranted because there are genuine and material factual disputes regarding whether the alleged Deed is actually a deed or testamentary in character. (Doc. 19). Further, Defendant argues that even if the alleged Deed is, in fact, a deed, there is a genuine and material factual dispute as to whether the alleged Deed was delivered to Plaintiff and adequately acknowledged. Id.

After the discovery deadline, the parties filed a series of Motions:

1. Defendant's Motion for Summary Judgement. Defendant's Motion raises three points: (1) that because the alleged deed is testamentary in nature, not a deed, Ouzts effectively revoked or canceled conveyance; thus, Plaintiff has no interest in the Property; (2) alternatively, that the alleged Deed is a terminable, non-testamentary instrument, and Plaintiff's rights terminated when Defendant took title; and (3) that Defendant is a bona fide purchaser who cuts off Plaintiff's interest under the alleged Deed. Moreover, that Plaintiff cannot bring a declaratory judgment claim. (Doc. 51).

2. Plaintiff's Motion for Summary Judgement on Defendant's Defenses of Estoppel and Unjust Enrichment. Plaintiff's Motion argues that: (1) there is no evidence supporting Defendant's defenses for estoppel and unjust enrichment; (2) alternatively, that the summary judgment evidence negates the elements of Defendant's estoppel and unjust enrichment defenses; and (3) Plaintiff reasserts her Motion for Partial Summary Judgment filed on May 25, 2018. (Doc. 52).

3. Plaintiff's Motion for Summary Judgment on Delivery, Constructive Notice, and Bona Fide Purchaser. Plaintiff argues that the evidence contradicts Defendant's assertions that Ouzts did not deliver the alleged Deed, that Defendant lacked notice of the alleged Deed, and that Defendant was a bona fide purchaser. (Doc. 53).

4. Plaintiff's Motion for Hearing. Plaintiff requests a hearing on all pending motions. (Doc. 58).

Both parties have timely responded and replied to all Motions––the final reply was filed on December 28, 2018. (See Docs. 54, 55, 56, 57). Based on the parties' Motions, the issues before the Court are the following: (1) whether the alleged Deed is testamentary in character, a terminable, non-testamentary instrument, or a valid deed of conveyance; (2) whether Defendant was a bona fide purchaser; (3) whether Defendant's defenses are viable; and (4) whether Plaintiff's declaratory judgment cause of action is viable.

As a preliminary matter, the Court finds that it is able to rule on the motions absent a hearing; thus, the Court DENIES Plaintiff's Unopposed Motion for Hearing. (Doc. 58).

II. LEGAL STANDARD

Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must examine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251–52, 106 S.Ct. 2505. In making this determination, the Court must consider the record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on file, and drawing all justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors Corp. , 278 F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the evidence or evaluate the credibility of witnesses. Id.

The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party's case, then the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party cannot rest on the mere allegations of the pleadings to sustain this burden. Fed. R. Civ. P. 56(e) ; Anderson , 477 U.S. at 248, 106 S.Ct. 2505. "After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted." Caboni , 278 F.3d at 451. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

III. DISCUSSION

Plaintiff's claims for trespass to try title, declaratory judgment, and money had and received are premised on a dispute of land between Plaintiff and Defendant. A trespass to try title claim "is a method of determining title to...