                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00421-CV

JACK BREWER, INDIVIDUALLY                                          APPELLANT
AND D/B/A RESOLUTION TRUST
CO.

                                       V.

GREEN LIZARD HOLDINGS, L.L.C.                                       APPELLEE
SERIES SR


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        FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                                  OPINION

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      This is an appeal from a summary judgment for Green Lizard Holdings,

L.L.C. Series SR, on its claim for removal of a fraudulent lien against Jack

Brewer, individually and doing business as Resolution Trust Co. We affirm.

                                 Background

      Appellee sued appellant under sections 12.001–.002 of the Texas Civil

Practice and Remedies Code, the fraudulent lien statute. Specifically, appellee
contended that after it had purchased a lot in the city of Plano, Denton County,

Texas on May 1, 2012 at a delinquent tax sale, it had discovered that appellant

was occupying the property under a fraudulent deed purportedly signed by a

representative of LTG Jackson Joint Venture, the prior owner of the property.

Appellee also claimed that appellant had further filed a mechanic’s lien on the

property for services rendered after he had recorded the purportedly fraudulent

deed.

        In his answer, appellant claimed that appellee lacked standing 1 to bring the

suit because the foreclosure sale at which appellee purchased the property was

invalid, because appellee’s claims are barred by estoppel, and because

attorney’s fees are not available in what appellant refers to as an action to quiet

title. He also brought a counterclaim seeking a declaratory judgment voiding the

sale at which appellee bought the property. Appellant argued that because the

cashier’s check by which appellee purchased the property is from a Sydney

Bellamy, not appellee, there is no evidence that appellee provided the tax

certificate required by section 34.015(b)(1)–(2) of the tax code. Tex. Tax Code

Ann. § 34.015(b)(1)–(2) (West 2008).

        Appellee then moved for a traditional summary judgment on the following

grounds: (1) it had standing as the owner of the property to bring suit; (2) it

proved as a matter of law that the prior owner did not convey the property to

        1
        In an amended answer, he claimed that appellee lacked capacity to sue
him.


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anyone at any time before the property was sold at a foreclosure sale to Wells

Fargo Bank, National Association; (3) the tax sale at which appellee purchased

its interest was regular and valid; and (4) appellee was entitled to reasonable

attorney’s fees.   See Tex. R. Civ. P. 166a(a).         The trial court granted the

summary     judgment    and    rendered    a   final   judgment   for   appellee   on

September 27, 2012.

                        Propriety of Summary Judgment

      In two issues, appellant contends that the trial court erred by granting the

summary judgment motion on its merits and that the summary judgment is not

final because it did not dispose of his counterclaim. Included in the argument

under his first issue are his contentions that the trial court erred by overruling his

objections to certain parts of appellee’s summary judgment evidence:               the

affidavits and attached exhibits of David Kochalka and Robert Miller.

Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).           A plaintiff is entitled to


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summary judgment on a cause of action if it conclusively proves all essential

elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986).

Objections to Summary Judgment Evidence

      Appellant objected to Kochalka’s affidavit on the grounds that it was

conclusory, not the best evidence, and did not show an adequate basis of his

knowledge of the subject matter.      In his affidavit, Kochalka averred that he

“is/was” the president of Jackson Ventures, Inc. and a partner in LTG Jackson

Joint Venture, which had owned the lot in Plano, Denton County, Texas. He

further averred that to the best of his knowledge and belief, the joint venture was

the sole owner of the property from September 26, 2008 through April 5, 2011

and that it never sold the property before the foreclosure sale to Wells Fargo on

April 5, 2011. Finally, he averred,

             7. I have no knowledge of a Special Warranty Deed dated
      April 1, 2011 and filed as Instrument Number 2011-92666 in the
      Deed records of Denton County on September 30, 2011 which
      purports to show that LTG Jackson JV sold the Property to an
      entity calling itself Resolution Trust Co.

             8. Neither I, nor any member of my firm, LTG Ventures,
      Inc., nor any authorized member of Jackson Ventures, or LTG
      Jackson JV sold the Property prior to the foreclosure sale
      4/5/2011. I do not know, nor have I ever known the signatory on
      that document, Cecil Englhardt. At no time did I authorize Cecil
      Englhardt or anyone else to execute a deed on behalf of LTG
      Jackson Joint Venture to Resolution Trust Co.

            9.[] I do not know, nor have I ever known a company
      called Resolution Trust Co owned by someone named Jack
      Brewer, nor do I know a person by that name.


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      A corporate employee is generally presumed to possess personal

knowledge of facts that he or she would learn in the usual course of employment

without having to otherwise prove personal knowledge.            See, e.g., Energico

Prod., Inc. v. Frost Nat’l Bank, No. 02-11-00148-CV, 2012 WL 254093, at *6

(Tex. App.—Fort Worth Jan. 26, 2012, pets. denied) (mem. op.).             Therefore,

Kochalka’s identification of himself as a partner in the joint venture that formerly

owned the property sufficiently showed his position and responsibilities and, thus,

was sufficient to show his personal knowledge so that his recitation of facts

regarding the entity was not conclusory.        Id.   Likewise, the affidavit is not

inadmissible under the best evidence rule. Id.

      Appellant’s objections to Miller’s affidavit are similar: that it is self-serving

and conclusory and that it does not show personal knowledge. He also claimed

that the exhibits attached to the affidavit were not sufficient to prove appellee’s

standing or cause of action and further objected to Miller’s averments regarding

attorney’s fees.

      Miller averred that he had been hired to represent appellee in the suit and

that a reasonable fee for his services would be $1,800.            He also attached

certified copies of documents as summary judgment evidence.             Miller filed a

supplemental affidavit in which he detailed additional services provided to

appellee in the case; he also stated that he has been an attorney in Dallas

County since 1978 and is familiar with a reasonable fee for the type of services



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provided.   He further detailed the Arthur Andersen factors applicable to this

particular case and why they justified a total fee of $4,500 (at the rate of $300 an

hour for fifteen hours). See Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997) (op. on reh’g).           Miller filed second and third

supplemental affidavits, detailing additional services provided to appellee as a

result of additional filings and hearings.

      An affidavit filed by a summary judgment movant’s attorney that sets forth

his qualifications, his opinion regarding reasonable attorney’s fees, and the basis

for his opinion is not conclusory and will be sufficient to support summary

judgment if uncontroverted. Sundance Minerals, L.P. v. Moore, 354 S.W.3d 507,

514 (Tex. App.––Fort Worth 2011, pet. denied); see also Tex. Civ. Prac. & Rem.

Code Ann. § 12.002(b)(3) (West Supp. 2012) (providing that a person injured

under the statute may recover reasonable attorney’s fees).

Summary Judgment

      Appellant’s objections to the documents attached to Miller’s affidavit go to

the question of whether appellee met its summary judgment burden of proof to

show that there is no fact issue and that it is entitled to summary judgment.

Thus, we will review whether the trial court properly granted summary judgment.

      In addition to Kochalka’s and Miller’s affidavits, appellee presented the

following summary judgment evidence:             (1) the special warranty deed to

Resolution Trust Co. purportedly signed by Cecil Englhardt as “Authorized Agent”

of LTG Jackson Joint Venture, on April 1, 2011, which was filed in the Denton


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County property records on September 30, 2011; (2) the mechanic’s lien affidavit

filed by appellant on April 30, 2012; (3) a Certificate of Acknowledgement filed by

appellant on April 30, 2012 acknowledging his acceptance of the April 1, 2011

deed and ownership of the property; (4) a May 1, 2012 sheriff’s deed

acknowledging the sale of the property to appellee to satisfy a judgment lien on

the property against Wells Fargo for delinquent taxes; and (5) an April 5, 2011

Substitute Trustee’s Deed to Wells Fargo evidencing foreclosure on the deed of

trust from LTG Jackson Joint Venture as borrower. Also attached to the deed is

an affidavit from the substitute trustee averring that written notice of default and

opportunity to cure within twenty days was given after which he wrote the debtor

giving notice of acceleration of the note’s maturity, in accordance with the deed

of trust; that the notices were mailed via certified mail, return receipt requested,

to the debtor at the most current address; that he concluded that the

requirements of section 51.002(d) of the property code had been fulfilled; that he

mailed a notice of foreclosure sale to the debtor on March 14, 2011, the same

day he posted the notice of foreclosure on the courthouse door and filed the

notice with the clerk of Denton County; and that he confirmed with the official

federal database that the debtor is not in the military.

      In his response, appellant contended that an inadequate time for discovery

had passed and that he had not received sufficient notice of the motion.

According to appellant, he did not receive the summary judgment motion until

August 8, 2012. The trial court heard appellee’s motion on September 27, 2012.


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Appellant did not attach evidence relevant to appellee’s claims or his

counterclaim.

         To establish its claim for a fraudulent claim against real property, appellee

had to conclusively prove as a matter of law that appellant (1) made, presented,

or used a document with knowledge that it was a fraudulent claim against real

property, (2) intended the document be given legal effect, and (3) intended to

cause financial injury. Tex. Civ. Prac. & Rem. Code Ann. § 12.002(a); Bernard v.

Bank of Am., N.A., No. 04-12-00088-CV, 2013 WL 441749, at *4 (Tex. App.—

San Antonio Feb. 6, 2013, no pet.) (mem. op.). Appellee presented evidence

that a corporate officer of the entity from which appellant purported to take his

title to the property had no knowledge of appellant and that the entity never

conveyed property to appellant. The deed appellant recorded in the property

records is dated before the foreclosure but was not recorded until several months

later.    In his own answer, appellant states that he knew the property was

abandoned, neglected, and about to be foreclosed on and that he moved in and

began making repairs. Although he claimed in his answer that he persuaded a

representative of “the current owner” to deed him the property because that

owner had failed to maintain the property, he provided no evidence contradicting

appellee’s evidence that no authorized representative of the prior owner did so.

Nor did he provide any evidence that he filed the documents to protect a

legitimate interest in the property.        Additionally, the mechanic’s lien and

certificate of acknowledgment were both filed on April 30, 2012, the day before


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the tax sale. We conclude and hold that the trial court properly granted summary

judgment for appellee on its fraudulent lien claim.      See Bernard, 2013 WL

441749, at *4. We overrule appellant’s first issue.

                        Finality of Summary Judgment

      In his second issue, appellant argues that the summary judgment is not

final because it did not dispose of his counterclaim. However, appellee moved

for summary judgment on appellant’s counterclaim under rule 166a(b),

contending that as a matter of law, appellant’s counterclaim was not viable

because section 34.015(b)(1)–(2) requires the “person” purchasing the property

to file a tax certificate and that “person” as defined in the Code Construction Act

does not mean the individual members or shareholders of a corporate entity.

See Tex. Tax Code Ann. § 34.015(b)(1)–(2); Tex. Gov’t Code Ann. § 311.005(2)

(West 2013) (defining “[p]erson” as a “corporation, organization, government or

governmental subdivision or agency, business trust, estate, trust, partnership,

association, and any other legal entity”); Tex. R. Civ. P. 166a(b). Appellant did

not argue any alternative construction in his response, and the trial court’s final

judgment, by granting relief on appellee’s motion for summary judgment,

necessarily denied appellant’s counterclaim. See Karen Corp. v. The Burlington

N. & Santa Fe Ry. Co., 107 S.W.3d 118, 125 (Tex. App.––Fort Worth 2003, pet.

denied). We overrule appellant’s second issue.




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                                Conclusion

     Having overruled both of appellant’s issues, we affirm the trial court’s

judgment.




                                         CHARLES BLEIL
                                         JUSTICE

PANEL: GARDNER and WALKER, JJ.; CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: July 18, 2013




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