Opinion
No. 01-02-00918-CV.
Opinion issued July 3, 2003.
Appeal from the 151st District Court, Harris County, Texas, Trial Court Cause No. 2000-65242.
Christina M. Putman, 4400 One Houston Center, 1221 McKinney, Houston, TX 77010, Hon. Walter J. Cicack, Adams Reese, 1221 McKinney, Suite 4400, Houston, TX 77010, attorneys for appellant.
Michael C. O'Connor, O'Connor Craig, 2500 Tanglewilde, Suite 222, Houston, TX 77063, attorneys for appelle.
Panel consists of Justices HEDGES, NUCHIA, and KEYES.
MEMORANDUM OPINION
Appellant, Tasneem Khan, appeals the summary judgment rendered in favor of appellee, Ali Yazdchi, in Khan's suit for trespass to try title to a condominium unit allegedly conveyed by Yazdchi to Khan. We reverse and remand.
BACKGROUND
In her second amended petition, Khan alleged the following facts: In June 1997, Yazdchi and Khan entered into an oral agreement in which Yazdchi was to convey condominium unit 662 to Khan upon receipt of $32,000 paid by Khan. Yazdchi could continue to reside in unit 662 for a reasonable period of time for a monthly rent of $350. Khan paid the $32,000 in two payments, one in June and the second in September or October 1997. In February 1997, Yazdchi, using the alias, "Ali Yazdi," had conveyed unit 662 to "Mike Jones," another of Yazdchi's aliases, and, on October 15, 1997, as "Mike Jones," conveyed unit 662 to Khan. Yazdchi continued to live in unit 662, but never paid rent.
The petition further alleged that Yazdchi fraudulently represented to Khan that he had performed his part of the agreement by delivering a "Substitute Trustee's Deed" to Khan, with the instruction that Khan's husband, Mohammed, sign as substitute trustee, thereby conveying legal title to unit 662 to Khan. In the alternative, Khan pleaded that Yazdchi's actions gave rise to a constructive trust in which Yazdchi held the legal title to unit 662 in trust for Khan, who held equitable title. Khan's petition asserted that Yazdchi was barred from denying execution and delivery of the deeds and was barred from pleading the statute of frauds by, among other defenses, quasi, promissory, and equitable estoppel.
Yazdchi moved for summary judgment on the grounds that (1) Khan's suit for trespass to try title was barred by the statute of frauds because it was based on an unenforceable oral agreement for the sale of real estate; (2) Khan's claims for fraud, estoppel, and constructive trust failed because they were based on the same facts as the claim to title; and (3) there was no evidence that (a) Yazdchi agreed to sign an agreement that would satisfy the statute of frauds, (b) Khan relied on a promise to her detriment, (c) the substitute trustee's deed was through a regular chain of title, (d) unit 662 was the subject of a valid foreclosure by Mohammed Khan, (e) Mohammed Khan was validly appointed as substitute trustee, (f) Yazdchi executed or authorized the execution of the deed from Yazdi to Jones or the deed from Jones to Khan, and (g) Yazdchi or Jones delivered or authorized the delivery of the deeds to Khan.
The trial court granted Yazdchi's motion without specifying the ground or grounds upon which it was granted. In two issues on appeal, Khan contends that (1) she presented more than a scintilla of evidence to overcome Yazdchi's motion for summary judgment and (2) the trial court erred in denying Khan's motion for new trial.
DISCUSSION
Standard of Review
Summary judgment under rule 166a(c) is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Lawson v. B Four Corp., 888 S.W.2d 31, 34 (Tex.App.-Houston [1st Dist.] 1994, writ denied). As movant, the defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff's causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st Dist.] 1993, writ denied). A defendant moving for summary judgment on an affirmative defense must establish that defense as a matter of law. Long Distance Int'l, Inc. v. Telefonos de Mexico, 49 S.W.3d 347, 350-51 (Tex. 2001).
Under rule 166a(i), a party is entitled to summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R.Civ.P. 166a(i). Thus, a no-evidence summary judgment is similar to a directed verdict. Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The motion for summary judgment may not be general, but must state the elements on which there is no evidence. Tex.R.Civ.P. 166a(i). The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. See id.; Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The party with the burden of proof at trial has the same burden of proof in the summary judgment proceeding. Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797, 799-800 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).
In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Flameout Design, 994 S.W.2d at 834. We will take all evidence favorable to the nonmovant as true. Lawson, 888 S.W.2d at 34. We will affirm the summary judgment if any of the theories advanced in the motion for summary judgment and preserved on appeal are meritorious. See State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Trespass-to-Try-Title Cause of Action
A trespass-to-try-title action is a procedure by which claims to title or the right of possession may be adjudicated. Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994). The plaintiff has the burden to establish superior title by showing it has (1) title emanating from the sovereignty of the soil, (2) a superior title in itself emanating from a common source, (3) title by adverse possession, or (4) title by earlier possession coupled with proof that possession has not been abandoned. Id.
In this case, Khan sought to establish that she had superior title by way of a deed signed and delivered to her by Yazdchi. Thus, title claimed by Khan and Yazdchi emanate from a common source — Yazdchi's grantor.
Khan's Summary Judgment Evidence
In her first issue, Khan contends that she presented sufficient summary judgment evidence to defeat Yazdchi's motion for summary judgment.
Yazdchi's no-evidence motion for summary judgment challenged the single element of Khan's cause of action — superior title — by asserting that there was no evidence that Yazdchi executed the deeds and no evidence that Yazdchi delivered the deeds to Khan. Yazdchi did not deny that he used the names "Ali Yazdi" and "Mike Jones" as aliases.
Yazdchi's no-evidence assertions regarding the substitute trustee's deed are not considered here because they are irrelevant. Khan's claim to title was under the deed signed by Mike Jones, not the substitute trustee's deed.
In her response to the motion for summary judgment, Khan attached the following evidence:
1. Khan's affidavit, in which she averred that she had had an oral agreement with Yazdchi to buy unit 662 for $32,000 and had paid him, through her husband Mohammed, two payments of $16,000 each, one in June and one in September 1997. She stated that Yazdchi had agreed to pay her $350 per month rent after she paid the $32,000 until he moved out of the unit. She further stated that Yazdchi had called her and said he was going to fax the executed deed to her home. After the deed was faxed to Khan, Yazdchi called and asked if she had received it and said he was going to record it at the courthouse. In the deed that he faxed to her, Mike Jones, as grantor, conveyed title to unit 662 to Tasneem Khan.
Attached to the affidavit were a copy of a general warranty deed by which Ali Yazdi conveyed unit 662 to Mike Jones, and a copy of the general warranty deed by which Mike Jones conveyed unit 662 to T. Khan.
2. Mohammed Khan's affidavit, in which he averred that, in accordance with an oral agreement and on behalf of his wife, he had paid $16,000 to Yazdchi in June 1997 and $16,000 to Yazdchi on or about October 1, 1997 for the purchase of unit 662. Mohammed stated that, after the final payment, Yazdchi told him that he had already signed a deed conveying the unit from Mike Jones to Khan and would record the deed in the Harris County Clerk's record and then send the deed to Mohammed. Mohammed stated that Yazdchi faxed a copy of the executed deed to the Khans' home that same day and that, in the deed, the grantor was Mike Jones and the grantee was T. Khan. Mohammed further stated that the attached certified copy of an agreed judgment, signed by Yazdchi on his own behalf, showed that Ali Yazdi and Mike Jones were two of the many aliases used by Yazdchi.
Attached to the affidavit were a copy of the general warranty deed conveying unit 662 from Mike Jones to T. Khan and a copy of an agreed final judgment in No. 1999-57020, State of Texas v. Ali Yazdchi, in the 61st District Court of Harris County, showing in the style of the case that Yazdchi was also known by 23 individual names and five commercial names.
3. The affidavit of James R. Cornelius, an attorney who had represented Yazdchi in a suit against the condominium homeowners association for wrongful foreclosure. Cornelius averred that he was acquainted with Ali Yazdi and knew that he used several aliases, including Yazdchi and Mike Jones. Cornelius stated that Yazdchi had brought Mohammed Khan to Cornelius's office on several occasions and, in Mohammed's presence, informed Cornelius that Mohammed had purchased unit 662, which would be deeded to Mohammed's wife. Cornelius stated that Yazdchi instructed him to continue the litigation so that he (Yazdchi) could give clear title to Khan and would not have to return the money. Cornelius further stated that the lawsuit was settled and record title to the condominium was returned to the state in which it had been held prior to the foreclosure. Cornelius stated that the three attached exhibits were true and correct copies of deeds that Yazdchi had provided Cornelius and that were used in the lawsuit against the homeowners association.
Attached to the affidavit were copies of a general warranty deed in which Francine Young conveyed unit 662 to A. Yazdi, the deed conveying the unit from A. Yazdi to Mike Jones, and the deed conveying the unit from Mike Jones to T. Khan.
These three affidavits are some evidence that (1) Yazdchi orally agreed to sell unit 662 to Khan for $32,000; (2) Khan paid $32,000 to Yazdchi; (3) Yazdchi, using the alias "Mike Jones," executed a deed to unit 662, conveying the unit to Khan; and (4) Yazdchi delivered the deed to Khan by fax. These affidavits are also some evidence that the chain of title to unit 662 ran from Young through Yazdchi (as Yazdi, then Jones) to Khan. Therefore, Khan produced some evidence that she had superior title to unit 662. The trial court thus erred if it rendered summary judgment on the ground that there was no evidence that Yazdchi executed the deeds and no evidence that Yazdchi delivered the deeds to Khan.
Statute-of-Frauds Defense
In his motion for summary judgment, Yazdchi also asserted, as an affirmative defense, that Khan's claims were barred by the statute of frauds because she was seeking to enforce an oral agreement for the sale of real estate. Khan contends that the statute of frauds is inapplicable because of the written deeds.
Khan's claim that she had legal title was based on the deed, executed by Mike Jones, that conveyed unit 662 to her. The fact that the original agreement to sell unit 662 was oral became immaterial after Yazdchi conveyed the property to Khan by signed deed. See Bishop v. Williams, 223 S.W. 512, 525-26 (Tex.Civ.App.-Austin 1920, writ ref'd) (noting that conveyance by deed rendered fact of oral agreement to convey immaterial) ; Allen v. Beard, 165 S.W.2d 913, 915 (Tex.Civ.App.-Texarkana 1942, no writ) (holding that question of whether agreement to convey was in writing became immaterial after executed deed passed title). Therefore, the statute of frauds does not apply to Khan's claim to legal title to unit 662. The trial court thus erred if it rendered summary judgment on the ground of Yazdchi's statute-of-frauds defense.
The Deeds Conveying Unit 662
On appeal, Yazdchi argues for the first time that the deeds relied on by Khan were forgeries. In his motion, Yazdchi did not assert, as a ground for summary judgment, that the deeds were forgeries. Therefore, we cannot consider this argument on appeal. See Tex.R.Civ.P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (holding that motion for summary judgment must expressly present grounds upon which it is made).
CONCLUSION
We sustain Khan's first issue. Because the first issue is dispositive of this appeal, we need not reach Khan's second issue. We reverse the judgment of the trial court and remand the cause for proceedings consistent with this opinion.