Concurring and Dissenting Opinion issued August 29, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-12-00100-CV
                            ———————————
                    MARIA ANTONIA PULIDO, Appellant
                                         V.
       EVANGELINA ESTHER GUTIERREZ GONZALEZ, Appellee



                    On Appeal from the 129th District Court
                             Harris County, Texas
                       Trial Court Case No. 2008-63772


            CONCURRING AND DISSENTING OPINION

      I respectfully dissent. This is a classic case of an appellate panel’s failing to

see the woods for the trees and, thereby, falling into error. Appellant, Maria

Antonia Pulido, appeals the trial court’s grant of summary judgment in favor of

appellee, Evangelina Esther Gutierrez Gonzalez, in Pulido’s suit to set aside the
warranty deed conveying Pulido’s homestead to Gonzalez, her caregiver. The

majority affirms the no-evidence and traditional summary judgment on undue

influence and fraudulent procurement of a deed. It also reverses the trial court’s

grant of summary judgment and remands with respect to Pulido’s allegation of

forgery of the deed by Gonzalez and Gonzalez’s counterclaim to quiet title and

cancel lis pendens.

      The majority ignores or deems irrelevant all summary judgment evidence

produced by Pulido, the non-movant, on undue influence and fraudulent

procurement of a deed and affirms the no-evidence summary judgment on these

claims, contradicting of the standard of review of no-evidence summary judgment.

It then hammers the nail into the coffin of Pulido’s undue influence claim by, in

addition, affirming traditional summary judgment as to that claim—again ignoring

the fact that Pulido has raised a material fact issue on every element of undue

influence. The majority then, inconsistently, reverses the no-evidence summary

judgment finding the deed not forged as a matter of law, and it remands for trial the

single issue of whether the signature on the deed was a forgery—after declaring all

evidence that would show the inextricably intertwined circumstances under which

the deed was signed irrelevant. This holding is contradictory to the majority’s

declaration that, as a matter of law, the deed was not procured by fraud. If the

deed in favor of Gonzalez was forged, it was necessarily procured by fraud. The

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majority’s opinion thus produces an un-triable case and denies the non-movant her

day in court on a fact-intensive claim. The only possible outcome of the case on

remand is that Pulido will be required to prove that the signature on the deed is not

hers.    But, even if she can prove that, after this court has declared that all

circumstantial evidence of forgery and all motive for the forgery of the deed are

immaterial as a matter of law, she will not be entitled to prove that the deed was

procured by fraud because this court has declared that, as a matter of law, it was

not.

        I would reverse the summary judgment in its entirety and remand for trial on

the ground that this case presents numerous material fact issues, including fact

issues with respect to Gonzalez’s exercise of undue influence over Pulido and

fraudulent procurement of the deed.

                                    Background

        Pulido and Gonzalez were long-time friends from church. When Pulido

needed assistance with daily errands and activities, Gonzalez would offer to help

her. Following her discharge from a hospital stay in mid-2007, Pulido needed

more assistance with daily living. Gonzalez offered to take Pulido into her home.

Pulido was eighty-three years old and in poor health when she left her own home

for Gonzalez’s. During the year Pulido remained in Gonzalez’s home, Pulido

testified that she was prevented from returning to her home. She did not take a

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bath, did not brush her hair, ate just one meal a day, and lost weight. She was

weak and sick while at Gonzalez’s home, and she testified that she could not eat

because of the mistreatment. Pulido further testified that Gonzalez took all of her

government checks and that she was not allowed to use the phone unless she paid

for it, so she was unable to contact anyone.

      On September 2, 2007, shortly after Pulido was taken into Gonzalez’s home,

a notarized warranty deed conveying Pulido’s homestead to Gonzalez, was signed.

The deed was recorded in the Harris County Real Property Records the following

month. Gonzalez claimed Pulido signed the deed in the presence of a notary.

Pulido denied Gonzalez’s contentions and testified by deposition that Gonzalez

forged her signature. Pulido also argued, in the alternative, that, if she did sign the

deed, she only did so because Gonzalez misrepresented the purpose of the

document and tricked her into signing it. Pulido also testified by deposition that

she had no intention of conveying her home to Gonzalez, and she denied that she

wanted to give her house to Gonzalez in return for Gonzalez’s taking care of her.

      In October 2008, one year after the deed was executed conveying Pulido’s

homestead to Gonzalez, Pulido filed suit against Gonzalez to set aside the warranty

deed on the basis of undue influence, fraud/misrepresentation, and forgery. Pulido

also filed a notice of lis pendens on the property. Gonzalez answered and filed a

counterclaim to quiet title to the property, asking the court to cancel the notice of

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lis pendens, declare the lis pendens invalid and unenforceable, and declare

Gonzalez the true owner of the property in fee simple. In addition, Gonzalez

produced a “Notice of Claim of Lien,” predicated on a loan of $10,000 from

Gonzalez and Aurelia G. Leon to Pulido. Pulido testified that she knew what a lien

was and that she received no loan from Gonzalez or Leon. Rather, the lien was a

forgery.

      Gonzalez filed a hybrid motion for summary judgment on both traditional

and no-evidence grounds.     TEX. R. CIV. P. 166a(c) (traditional), 166a(i) (no-

evidence).   Gonzalez argued that she was entitled to no-evidence summary

judgment with respect to Pulido’s undue influence, fraud/misrepresentation, and

forgery claims and traditional summary judgment with respect to Pulido’s undue

influence claim. Gonzalez also moved for traditional summary judgment on her

counterclaim to quiet title. She did not, however, move for summary judgment on

the $10,000 loan.

      The trial court granted Gonzalez’s motion in its entirety and signed a final

judgment (1) ordering that Pulido take nothing on her claims against Gonzalez,

(2) canceling the notice of lis pendens Pulido filed, (3) declaring Gonzalez the fee

simple owner of the property, and (4) awarding Gonzalez court costs. I would

reverse the summary judgment and remand the case for trial on all claims.




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                                  Undue Influence

      The trial court granted Gonzalez no-evidence and traditional summary

judgment on Pulido’s claim of undue influence. The majority affirms the summary

judgment on this issue. I would reverse it.

      As the majority states, undue influence requires: (1) the existence and

exertion of influence, (2) the effective operation of the influence so as to subvert or

overpower the mind of the maker of the document at the time of its execution, and

(3) the execution of the document which the maker would not have executed but

for the exercise of such influence. See Rothermel v. Duncan, 369 S.W.2d 917, 922

(Tex. 1963). Undue influence is applicable to a deed as well as to a will. Quiroga

v. Mannelli, No. 01-09-00315-CV, 2011 WL 944399, at *4 (Tex. App.—Houston

[1st Dist.] Mar. 17, 2011, no pet.) (mem. op.) (“In Texas, the rules guiding

determination of the existence of under influence apply substantially alike to wills,

deeds, and other instruments.”) (citing Wils v. Robinson, 934 S.W.2d 774, 780

(Tex. App.—Houston [14th Dist.] 1996), writ granted, judgm’t vacated w.r.m., 938

S.W.2d 717 (Tex. 1997)). It may be proved by circumstantial as well as direct

evidence. Rothermel, 369 S.W.2d at 922. Whether the grantee under the deed

exerted undue influence on the grantor is an ultimate question of fact for the fact

finder. Green v. Earnest, 840 S.W.2d 119, 123 (Tex. App.—El Paso 1992, writ

denied).

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      It is well established that “every case of undue influence must be decided on

its own peculiar facts.” Pearce v. Cross, 414 S.W.2d 457, 462 (Tex. 1966) (citing

Rothermel, 369 S.W.2d at 923). In determining whether undue influence was in

fact exercised, the court assesses the opportunities existing to exert the influence,

the circumstances surrounding the execution of the document, the existence of any

fraudulent motive, and whether the person executing the document was habitually

subjected to the control of the party accused. Estate of Davis, 920 S.W.2d 463,

466 (Tex. App.—Amarillo 1996, writ denied).

      In determining whether undue influence was exercised, courts consider, as

the majority states:

      • the circumstances surrounding the drafting and execution of the
      instrument;

      • the relationship between the grantor and the grantee;

      • the motive, character, and conduct of the persons benefitted by the
      instrument;

      • the participation by the beneficiary in the preparation or execution of
      the instrument;

      • the words and acts of the parties;

      • the interest in and opportunity for the exercise of undue influence;

      • the physical and mental condition of the grantor at the time of the
      instrument’s execution, including the extent to which she was
      dependent upon and subject to the control of the grantee; and



                                             7
      • the improvidence of the transaction by reason of unjust,
      unreasonable, or unnatural disposition of the property.

Guthrie v. Suiter, 934 S.W.2d 820, 831 (Tex. App.—Houston [1st Dist.] 1996, no

writ); see In re Estate of Graham, 69 S.W.3d 598, 609–10 (Tex. App.—Corpus

Christi 2001, no pet.). Furthermore, the supreme court has stated:

      In the absence of direct evidence all of the circumstances shown or
      established by the evidence should be considered; and even though
      none of the circumstances standing alone would be sufficient to show
      the elements of undue influence, if when considered together they
      produce a reasonable belief that an undue influence was exerted that
      subverted or overpowered the mind of the [person] and resulted in the
      execution of the [document] in controversy, the evidence is sufficient
      to sustain such conclusion.

Rothermel, 369 S.W.2d at 922.

      The majority also correctly states the standard of review of no-evidence

summary judgment. Specifically, a proper no-evidence summary judgment must

be affirmed when the record shows one of the following: (1) there is no evidence

on the challenged element; (2) the evidence offered to prove the challenged

element is no more than a scintilla; (3) the evidence establishes the opposite of the

challenged element; or (4) the court is barred by law or the rules of evidence from

considering the only evidence offered to prove the challenged element. See TEX.

R. CIV. P. 166a(i); City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

Less than a scintilla of evidence exists when the evidence is so weak as to do no

more than create a mere surmise or suspicion of a fact. King Ranch, Inc. v.

                                         8
Chapman, 118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla of evidence

exists when the evidence “rises to a level that would enable more reasonable and

fair-minded people to differ in their conclusions.”        Id. (citing Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

      The majority likewise correctly states the standard of review for traditional

summary judgment. To prevail on a traditional summary-judgment motion,

asserted under Rule 166a(c), a movantmust prove that there is no genuine issue

regarding any material fact and that it is entitled to judgment as a matter of law.

See TEX. R. CIV. P. 166a(c).      A defendant moving for traditional summary

judgment must either (1) disprove at least one element of the plaintiff's cause of

action or (2) plead and conclusively establish each essential element of an

affirmative defense to rebut the plaintiff’s cause. See IHS Cedars Treatment Ctr.,

Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).         A matter is conclusively

established if reasonable people could not differ as to the conclusion to be drawn

from the evidence. See City of Keller, 168 S.W.3d at 816. In reviewing a motion

for traditional summary judgment, the appellate courts take the non-movant’s

competent evidence as true, indulge every reasonable inference in favor of the non-

movant, and resolve all doubts in favor of the non-movant. Diversicare Gen.

Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).




                                        9
        Here, Pulido has clearly produced more than a scintilla of evidence on

each of the factors that go to the proof of undue influence. See Guthrie, 934

S.W.2d at 831. Thus the majority’s affirming Gonzalez’s no-evidence summary

judgment is clearly erroneous. Nor does the majority credit any of the evidence

produced by Pulido as raising a material fact issue on undue influence; even

though Pulido’s evidence goes to the factors used to prove undue influence, and it

is well established that proof of undue influence is peculiarly fact-intensive; and

even though the supreme court has expressly stated that “[i]n the absence of direct

evidence all of the circumstances shown or established by the evidence should be

considered” in proving undue influence. See Rothermel, 369 S.W.2d at 922.

Rather, the majority simply states, conclusorily, that the evidence produced by

Pulido on each of the factors used to prove undue influence “raises, at most, a fact

issue as to whether Gonzalez had an opportunity to exert influence over Pulido.”

Slip Op. at 7–8 (emphasis in majority opinion).

        The majority thus completely discounts as “no proof” of undue influence

evidence of (1) the circumstances surrounding the drafting and execution of the

deed of Pulido’s homestead to Gonzalez; (2) the relationship between Pulido, the

grantor, and Gonzalez, the grantee; (3) the motive, character, and conduct of

Gonzalez, who benefitted by the instrument; (4) Gonzalez’s participation in the

preparation or execution of the instrument; (5) the words and acts of the parties;

                                        10
(6) the interest in and opportunity for the exercise of undue influence by Gonzalez;

(7) Pulido’s physical and mental condition at the time of the instrument’s

execution, including the extent to which she was dependent upon and subject to

Gonzalez’s control; and (6) the improvidence of the deeding of Pulido’s homestead

to a woman she met at church and who, as shown by more than a scintilla of

evidence, was keeping Pulido captive and isolated at the time of executive of the

deed of her homestead over to her. causing an unjust, unreasonable, or unnatural

disposition of the property. See Guthrie, 934 S.W.2d at 831. The majority’s

conclusion that Pulido produced no evidence of undue influence—or what legally

constitutes no evidence—is simply contradictory to the standard of review of both

summary judgment and undue influence under established law. On the type of

review employed by the majority, proof of undue influence is impossible.

      Considering the summary judgment evidence in the light most favorable to

Pulido, the non-movant, as we must, I conclude that the summary judgment

evidence is more than sufficient to raise a material fact issue as to Gonzalez’s

exercise of undue influence over Pulido. The evidence shows that the relationship

between Pulido and Gonzalez was one between an elderly patient left alone and

unable to care for herself after her discharge from the hospital, on the one hand,

and a church friend and voluntary caregiver on the other. At the time Pulido

purportedly signed the warranty deed conveying her homestead to Gonzalez, she

                                        11
was elderly, in poor health, and had been living with Gonzalez in Gonzalez’s house

since her discharge from the hospital. Pulido testified that Gonzalez mistreated her

during the year she was in her care and kept her secluded and isolated in

Gonzalez’s own house. Gonzalez took Pulido’s government checks and charged

her to use the telephone so that she was unable to contact anyone. Not long after

Pulido moved into Gonzalez’s house, Pulido purportedly executed the deed to her

homestead over to Gonzalez before a notary. Yet there is no evidence that the

person who appeared before the notary and signed the deed was actually Pulido

and not Gonzalez. Nor is there any evidence from the notary or from any other

witness to the transaction regarding the circumstances under which the deed was

actually drafted and signed other than Pulido’s testimony that Gonzalez was

“tricky” and that, if she signed the deed, she did not know what she was signing.

Finally, it is at least arguably unreasonable and unnatural for an elderly woman,

living alone and in need of assistance after release from the hospital, not only to

move into a voluntary caregiver’s house, but to live there in isolation for a year and

to turn over her government checks to the caregiver, leaving herself without money

even to pay to make telephone calls. It is even more unreasonable and unnatural

for an elderly woman in these circumstances to deed over her homestead to that

caregiver without contacting, consulting, or conferring with anyone else.




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      I conclude that the summary judgment evidence of the circumstances

surrounding the transaction provide substantially more than a scintilla of proof to

sustain a reasonable belief that Gonzalez exerted an undue influence over Pulido

that subverted or overpowered Pulido’s mind and resulted in the execution of the

deed of Pulido’s homestead to Gonzalez, which would not have been executed but

for the exercise of such influence. See Rothermel, 369 S.W.2d at 922. I would,

therefore, sustain Pulido’s first issue.

      I would reverse the summary judgment in favor of Gonzalez on Pulido’s

undue influence claim and remand this issue for trial on its facts. See TEX. R. CIV.

P. 166a(c) (stating that traditional summary judgment may be granted when there

is “no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law”); TEX. R. CIV. P. 166a(i) (no-evidence summary

judgment may be granted when “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”); Green, 840 S.W.2d at 123 (whether grantee under deed exerted

undue influence on grantor is ultimate question of fact for fact finder).

                              Fraud/Misrepresentation

      The trial court also granted Gonzalez’s no-evidence motion for summary

judgment on Pulido’s claim that Gonzales procured the deed to her homestead by




                                           13
fraud. The majority affirms the summary judgment on this issue as well. Again, I

would reverse.

      In order to establish that the deed was procured as the result of a fraud

perpetrated by Gonzalez, Pulido must establish that (1) Gonzalez made a material

misrepresentation (2) that was false; (3) when the representation was made,

Gonzalez knew it was false or made it recklessly without the knowledge of the

truth and as a positive assertion; (4) Gonzalez made the representation with the

intent that Pulido act upon it; (5) Pulido acted in reliance on the representation; and

(6) Pulido thereby suffered injury. Aquaplex, Inc. v. Rancho La Valencia, Inc., 297

S.W.3d 768, 774 (Tex. 2009).

      Pulido testified that she never signed the deed evidencing the gift of her

homestead to Gonzalez. She further testified that if she did sign it she did not

know what it was and that Gonzales was “tricky.” The deed was executed while

Pulido was secluded in Gonzalez’s home, and it was promptly filed in the Harris

County Real Property Records. Pulido also testified that a “Notice of Lien” placed

on her homestead, reflecting her liability on a $10,000 loan from Gonzalez and

Aurelia G. Leon to her, was a forgery and that she received no loan from either

woman.

      If the deed was forged, the signature on the forged deed constitutes a

fraudulent misrepresentation made to deprive Pulido of her homestead to her harm,

                                          14
and it is one that succeeded in harming her. If it was not forged, but its nature was

misrepresented to Pulido, that likewise is a material misrepresentation made to

deprive Pulido of her homestead to her harm, and one that succeeded.             See

Aquaplex, 297 S.W.3d at 774. If either misrepresentation was, in fact, made by

Gonzalez, it would follow that she knew it was false and that she made it with the

intent that Pulido act on it and convey her home to Gonzales. It is an undisputed

fact that the deed conveyed the home to Gonzalez, depriving Pulido of her property

and, thereby, necessarily harming her unless the conveyance was voluntary—a

point for which the only evidence is Gonzalez’s testimony, which is disputed by

Pulido, the non-movant. Either way, there is more than a scintilla of evidence to

support Pulido’s fraud claim, beginning with the evidence the majority itself

credits as raising material fact issues as to forgery.

      Taking Pulido’s deposition testimony as true for purposes of summary

judgment, as we must, I would hold that there is more than a scintilla of evidence

of fraud by Gonzalez as well. See Rubio, 185 S.W.3d at 846 (observing that, in

reviewing summary judgment, reviewing courts take non-movant’s competent

evidence as true, indulge every reasonable inference in favor of non-movant, and

resolve all doubts in favor of non-movant).




                                           15
         I would sustain Pulido’s second issue, as well as her first. I would reverse

the summary judgment in favor of Gonzalez on Pulido’s fraud/misrepresentation

claim and remand the issue for trial before the finder of fact.

                                        Forgery

         Finally, I agree with the majority that Pulido presented more than a scintilla

of evidence in support of her forgery allegation and that, therefore, Gonzalez

cannot prevail on her counterclaim to quiet title and cancel notice of lis pendens at

this stage in the litigation. The summary judgment entered in favor of Gonzalez on

forgery and on her counterclaim must be reversed and remanded. I join the

majority opinion on these issues. However, I emphasize that it makes no sense for

this court simultaneously to declare that, as a matter of law, the deed to Pulido’s

homestead was not procured by fraud, i.e., that it was not procured by either a

forged or a coerced signature, and that whether the deed was forged is a triable

issue.




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                                    Conclusion

      I would reverse the trial court’s judgment and remand the case for trial on all

issues.



                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Keyes, concurring and dissenting.




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