      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00558-CV



                Happy Jack Ranch, Inc. and Frederick J. Behrend, Appellants

                                                 v.

   HH&L Development, Inc.; Matthew Stolhandske, Trustee; Michael Strnad, Appellees


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
       NO. C2010-1022A, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This appeal from a suit to quiet titles arises from a colorful and ultimately ill-fated

business relationship between Frederick J. Behrend and Michael Strnad. Behrend and Strnad were

engaged in the bail bond business. During the 1990s, Behrend’s company—Happy Jack Ranch, Inc.

(Happy Jack)—deeded to Strnad several tracts of land in Comal County. Although the general

warranty deeds did not identify any trust or beneficiary status, Behrend and Happy Jack (collectively

appellants) contend there was an oral agreement that Strnad would hold only nominal title to the

properties in trust for Behrend’s benefit. The appellants contend the purpose of the conveyances was

to allow Strnad to use the properties as security for issuing bail bonds.

               In June 1998, a federal grand jury indicted Strnad and Behrend for tax evasion and

other tax violations arising from their bail bond business. Strnad pleaded guilty to a lesser charge

of failing to file a tax return and received probation. Behrend, however, pleaded guilty to the

charged offenses and was sentenced to fifteen years’ imprisonment. The factual basis Behrend
signed in support of his plea stated that he had conspired to defraud the IRS from collecting income

taxes on revenues earned on his bail bond business, in part by placing his assets in Strnad’s name,

and then later attempting to murder Strnad to prevent him from providing incriminating evidence.

                While Behrend was in prison for these crimes, Strnad conveyed title to the

four properties at issue in this suit to Matthew Stolhandske in September 2001. In 2004, Stolhandske

conveyed the properties to HH&L Development, Inc. (HH&L). Both Stolhandske and HH&L waited

until 2005 to record their deeds with the county clerk. On July 26, 2010, the appellants filed this suit

to quiet title against Strnad, Stolhandske, and HH&L (collectively appellees) seeking to have the

deeds to Stolhandske and HH&L declared void based on a default judgment taken against Strnad in

a previous suit. The trial court granted a motion to dismiss the appellants’ claims and entered a final

judgment granting Strnad $20,750 in attorney’s fees. We affirm in part, concluding the four-year

statute of limitations applicable to suits to quiet title clouded by voidable deeds bars the appellants’

claims. We conclude, however, the trial court’s award of attorney’s fees was an abuse of discretion.


                                PROCEDURAL BACKGROUND

                The business relationship between Behrend and Strnad has generated many

civil lawsuits and criminal investigations. As the parties are familiar with the complex procedural

background of this suit, we will discuss only those facts necessary to render our decision. See

Tex. R. App. P. 47.1 (stating appellate court opinions should be as brief as practicable in addressing

issues necessary to final disposition), 47.4 (stating memorandum opinions should be no longer than

necessary to advise parties of court’s decision and basic reasons for it).




                                                   2
               The lengthy civil litigation battle amongst the parties to this suit began in April 2003,

almost two years after Strnad deeded the properties at issue to Stolhandske. In their first lawsuit,

Behrend sued both Strnad and Stolhandske, alleging that Strnad held real estate properties in

trust for his benefit and that Strnad and Stolhandske had conspired to deprive him of his property

by transferring the titles to Stolhandske.1 While this first suit was still pending, Behrend—on

October 8, 2003—filed a second suit in the same county. The second suit, however, was against

Strnad only and sought a declaration that he held several properties in trust for Behrend’s benefit,

including the four tracts at issue in this suit. Behrend filed this second suit more than two years

after Strnad had transferred title to the properties but did not sue nor seek a declaration against

Stolhandske. After Strnad failed to file an answer in this second suit, the trial court entered on

December 17, 2003, a default judgment declaring that Strnad held the properties in trust for

Behrend’s benefit and vesting Behrend with lawful title.

               On October 15, 2009, Behrend eventually nonsuited the first lawsuit he had filed

against both Strnad and Stolhandske. The following year, on July 26, 2010, the appellants filed the

present lawsuit against Strnad, Stolhandske, and HH&L Development seeking to quiet title to the

four tracts of land. The appellants alleged that Behrend was the lawful owner of the properties under

the default judgment and that the deeds to Stolhandske and HH&L were void and clouded his title.

The appellants further alleged that Strnad and Stolhandske had been aware of Behrend’s equitable

interest in the properties. Strnad filed a motion to dismiss and motion for summary judgment,

which was joined by the other defendants, contending Behrend lacked standing to challenge the

       1
           Strnad transferred multiple properties to Stolhandske, only four of which are at issue in
this suit. The record is unclear as to whether Behrend’s original petition in this prior suit sought a
declaration regarding the four tracts at issue in this suit.

                                                  3
conveyances because he was not a named beneficiary under the deeds and asserting affirmative

defenses of limitations, res judicata and in pari delicto.2 After a hearing, the trial court granted the

motion to dismiss without specifying the grounds for the ruling and entered a final judgment

dismissing all of the appellants’ claims and awarding Strnad $20,750 in attorney’s fees.

                On appeal, the appellants contend the trial court erred by granting the motion to

dismiss because: (1) the motion was an impermissible collateral attack on Behrend’s 2003 default

judgment; (2) the appellants have standing to challenge the deeds and the motion to dismiss was an

improper procedural vehicle for asserting affirmative defenses; and (3) the appellees failed to prove

their affirmative defenses as a matter of law. The appellants additionally challenge the trial court’s

award of attorney’s fees, contending Strnad’s evidence of attorney’s fees was inadmissible and that

there were no statutory grounds for awarding fees.


                                      MOTION TO DISMISS

                The complex history of these properties presents a morass of legal issues. The

dispositive issue, however, is whether the statute of limitations bars the appellants from raising any

of these arguments in a suit filed almost a decade after Strnad transferred title to the properties. As

a preliminary matter, we must first address the appellants’ procedural complaint that a motion

to dismiss was not the proper procedural vehicle for asserting an affirmative defense of limitations.

The appellants correctly contend that a “defendant seeking a dismissal based on an affirmative

defense such as statute of limitations must first file a special exception or a motion for summary


       2
           The affirmative defense of in pari delicto requires Texas courts, as a general rule, to deny
relief to a party to an illegal contract. See Lewis v. Davis, 199 S.W.2d 146, 151 (Tex. 1947); Geis
v. Colina Del Rio, LP, 362 S.W.3d 100, 106 (Tex. App.—San Antonio 2011, pet. denied).

                                                   4
judgment giving the plaintiff an opportunity to respond.” See Tullis v. Georgia-Pac. Corp.,

45 S.W.3d 118, 128 (Tex. App.—Fort Worth 2000, no pet.); see also In re D.K.M., 242 S.W.3d 863,

865 (Tex. App.—Austin 2007, no pet.) (“[A]ffirmative defense such as running of limitations should

be raised through a motion for summary judgment, not through a motion to dismiss . . . .”).

               Strnad, however, did file a motion for summary judgment on the limitations issue

more than twenty-one days before the trial court’s hearing and incorporated by reference the motion

for summary judgment into his amended dismissal motion. See Tullis, 45 S.W.3d at 128 (defendant

seeking dismissal based on affirmative defense such as limitations must first file special exception

or motion for summary judgment giving plaintiff opportunity to respond). The other defendants

joined the summary judgment motion and also filed individual summary judgment motions on

the grounds of limitations. Moreover, after the summary judgment was filed, Behrend amended

his pleadings twice and filed a response asserting the same defense to limitations that he raises in

this appeal. See Hunter v. Johnson, 25 S.W.3d 247, 250 n.5 (Tex. App.—El Paso 2000, no pet.)

(trial court must allow plaintiff opportunity to develop defenses to statute of limitations when

defendant raises affirmative defense in motion to dismiss). Accordingly, we conclude—under

these particular facts—that any procedural error resulting from asserting an affirmative defense

through a motion to dismiss was cured through the incorporated motion for summary judgment

asserting the same affirmative defense. Cf. O’Carolan v. Hopper, 414 S.W.3d 288, 297 n.4

(Tex. App.—Austin 2013, no pet.) (concluding procedural error resulting from asserting limitations

defense through motion to strike pleadings not cured by filing summary judgment on different

grounds). Therefore, we will review the record as if summary judgment was granted to determine

whether the movants established their affirmative defense as a matter of law. See Briggs v. Toyota

                                                 5
Mfg. of Tex., 337 S.W.3d 275, 281 (Tex. App.—San Antonio 2010, no pet.) (treating dismissal as

summary judgment and evaluating the record as if summary judgment was granted to determine

whether movant satisfied its summary-judgment burden); see also Pipes v. Hemingway, 358 S.W.3d

438, 447 (Tex. App.—Dallas 2012, no pet.) (same).3


                                          LIMITATIONS

               Accordingly, we turn to the appellants’ substantive complaint that limitations did not

bar their claims as a matter of law. Although this suit seeks to set aside deeds executed almost a

decade ago, the appellants contend their suit is viable because a suit to quiet title is not subject to

limitations. Only if a deed is void or has expired by its own terms, however, is there no limitations

period for an equitable action to remove cloud on title. Ford v. Exxon Mobil Chem. Co., 235 S.W.3d

615, 618 (Tex. 2007). “But the same rule does not apply when a deed is voidable rather than void.”

Id. If a deed is merely voidable, the four-year statute of limitations will apply to the suit. Id.

               In this case, if the four-year statute of limitations applies, the limitations period began

to run, at the very least, when Stolhandske and HH&L recorded their deeds—on June 24, 2005, and

April 18, 2005, respectively. See Tex. Prop. Code § 13.002 (recorded deed is notice to all persons

of existence of instrument). Behrend, however, filed this lawsuit on July 26, 2010, which is well

outside the four-year statute of limitations. Consequently, we need not determine the exact date of

       3
          Even if the motion for summary judgment was insufficient to cure error, we would hold
that the procedural error was harmless because we cannot conclude the error probably caused
the rendition of an improper judgment, nor did it prevent Behrend from properly presenting
this issue on appeal. See Tex. R. App. P. 44.1(a); O’Carolan v. Hopper, 414 S.W.3d 288, 297
(Tex. App.—Austin 2013, no pet.) (improperly asserting affirmative defense of limitations through
motion to strike not reversible error when it did not prevent appellant from asserting issue on
appeal).


                                                   6
accrual because, regardless of which date we apply, the lawsuit was not filed within the four-year

limitations period.4 Thus, the question before us is whether the deeds were void or merely voidable

and subject to limitations. See id.

               The question of whether a deed is void or voidable depends on its effect upon the title

at the time it was executed and delivered. Slaughter v. Qualls, 162 S.W.2d 671, 674 (Tex. 1942);

Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied). A void deed is

“without vitality or legal effect.” Slaughter, 162 S.W.2d at 674. Conversely, a voidable deed

“operates to accomplish the thing sought to be accomplished, until the fatal vice in the transaction

has been judicially ascertained and declared.” Id. “When a deed is merely voidable, equity will

not intervene as the claimant has an adequate legal remedy.” Ford, 235 S.W.3d at 618. Thus, “if

removal of the cloud depends on a tort or contract claim, it must be brought within the applicable

limitations period.” Ditta v. Conte, 298 S.W.3d 187, 192 (Tex. 2009). A party may not attack a

facially valid, and thus voidable, deed merely by pleading in equity. Ford, 235 S.W.3d at 618.

               Here, the appellants’ suit to quiet title turns on the validity of Strnad’s conveyances

to Stolhandske. At the time of these conveyances, Strnad held title to the properties at issue through

general warranty deeds from Happy Jack. As the deeds from Happy Jack did not identify a trust or

a beneficiary, the chain of title showed that Strnad held fee simple title to the properties. Thus,

on the face of the titles, Strnad had the legal authority to convey the deeds, and the conveyances

to Stolhandske were facially valid and effective at the time of execution. Further, the fact that the

deeds were not immediately recorded did not render the conveyances void. Rather, recording a deed


       4
         There is evidence in the record that Behrend discovered the conveyances prior to the deeds
being recorded.

                                                  7
is not necessary to pass title. Thornton v. Rains, 299 S.W.2d 287, 288 (Tex. 1957). An unrecorded

deed is binding on the parties to the conveyance and is only “void as to a creditor or to a subsequent

purchaser for valuable consideration without notice.” Tex. Prop. Code § 13.001. Here, Behrend is

not a creditor or subsequent purchaser. Therefore, the delay in recording did not render the deeds

void. See id.

                Accordingly, we conclude that—at the time the deeds were executed—the

conveyances to Stolhandske were facially valid, and thus voidable and subject to limitations. The

question remains, however, as to the effect of the declaratory judgment against Strnad declaring that

Strnad had held the properties in trust and vesting Behrend with title, but entered after Strnad had

already effectively deeded the properties to Stolhandske and without his joinder. “A final judgment

that establishes title or right to possession in an action to recover real property is conclusive against

the party from whom the property is recovered and against a person claiming the property through

that party by a title that arises after the action is initiated.” Id. § 22.003. Here, however, Stolhandske

was not a party to the lawsuit and obtained title to the properties before Behrend initiated the

proceedings. As such, we cannot conclude that the default judgment rendered Stolhandske’s deeds

void. See id.; Richardson v. Reid, 188 S.W.2d 248, 252–53 (Tex. Civ. App.—Beaumont 1945,

no writ) (judgment involving interest in land does not limit or defeat interest already vested in person

who was not made party to suit).

                Moreover, regardless of whether Strnad held the properties in trust for Behrend, the

existence of the trust would not render Strnad’s prior conveyances to Stolhandske void. Rather, the

Legislature has provided that when “property is conveyed or transferred to a trustee in trust but the

conveyance or transfer does not identify the trust or disclose the names of the beneficiaries, the

                                                    8
trustee may convey, transfer, or encumber the title to the property without subsequent question by

a person who claims to be a beneficiary under the trust.” Tex. Prop. Code § 114.082. As the deeds

from Happy Jack to Strnad did not disclose a trust or a beneficiary, Strnad had statutory authority

to convey title to the property “without subsequent question” from Behrend. See id. As such, the

existence of the trust would not render Strnad’s prior conveyances void.5

               Accordingly, we conclude limitations bars the appellants’ claims and affirm the

judgment of the trial court dismissing the appellants’ suit to quiet title.


                                           Attorney’s Fees

               In their second issue on appeal, the appellants contend the trial court abused its

discretion in awarding against them jointly and severally $20,750 for Strnad’s attorney’s fees. Strnad

had moved for attorney’s fees under the Uniform Declaratory Judgments Act (UDJA), contending

fees were warranted because of Behrend’s history of vexatious litigation and violence against Strnad.

The trial court made no findings of fact in support of the award, and the order does not specify

the legal basis for awarding attorney’s fees. “Absent a contract or statute, trial courts do not have

inherent authority to require a losing party to pay the prevailing party’s fees.” Tony Gullo Motors

I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006).

               In their last amended petition, the appellants pleaded their case as a suit to quiet title

and requested that Strnad and HH&L’s deeds be declared null and void and that the cloud on


       5
           Behrend pleaded in this suit that Strnad and Stolhandske were aware of his beneficial
interest in the properties, and in prior suits, has alleged that they conspired to defraud him of his
property. We note that, at best, this allegation would render the deeds merely voidable and subject
to limitations. “Deeds obtained by fraud are voidable rather than void, and remain effective until
set aside.” Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007).

                                                   9
Behrend’s title be removed. Because the appellants sought declaratory relief, Strnad contended the

trial court had discretion to award attorney’s fees under the UDJA. See Tex. Civ. Prac. & Rem.

Code § 37.009 (allowing under UDJA “reasonable and necessary attorney’s fees as are equitable

and just”). The Texas Supreme Court, however, has held that the trespass-to-try-title statute is the

exclusive method to adjudicate rival claims of title and possession to real property. See Coinmach

Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 926 (Tex. 2013) (when trespass-to-title

statute governs parties’ substantive claims, plaintiff may not proceed alternatively under UDJA to

recover its attorney’s fees); Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004) (same); see also

Tex. Prop. Code § 22.001 (“A trespass to try title action is the method of determining title to lands,

tenements, or other real property.”). The Legislature did not provide for attorney’s fees in such

actions. Martin, 133 S.W.3d at 267. Thus, when “the trespass-to-try-title statute governs the parties’

substantive claims,” attorney’s fees are not alternatively recoverable under the UDJA. Id.

                Here, the appellants sought to adjudicate rival claims of title and possession of

real property. A suit to quiet title that requires determination of the parties’ possessory rights to

real property, as in this case, is essentially the equivalent to a trespass-to-try-title action. See Parker

v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also

Coinmach Corp., 417 S.W.3d at 926 (determination of possessory rights “is the very relief that the

trespass-to-try-title statute governs”). As such, the trespass-to-try-title statute was the appellants’

exclusive remedy, and the trial court abused its discretion by awarding attorney’s fees under the

UDJA. See Coinmach Corp., 417 S.W.3d at 926.6

        6
         As the trial court failed to make findings to support the award or otherwise specify what
acts or omissions by the appellants warranted sanctions, an award of attorney’s fees under either
Chapter 10 of the Civil Practice and Remedies Code or Texas Rule of Civil Procedure 13 would also

                                                    10
                                         CONCLUSION

               We conclude limitations barred the appellants’ claims and affirm the trial court’s

dismissal of the suit. We, however, conclude the trial court abused its discretion by awarding

attorney’s fees to Strnad without a statutory basis to support the award. Accordingly, we reform the

judgment to delete the award of attorney’s fees. We affirm the judgment as reformed.



                                              __________________________________________

                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Puryear and Goodwin

Reformed and, as Reformed, Affirmed

Filed: March 27, 2015




be an abuse of discretion. See Tex. Civ. Prac. & Rem. Code § 10.005 (“A court shall describe in
an order imposing a sanction under this chapter the conduct the court has determined violated
Section 10.001 and explain the basis for the sanction imposed.”); Tex. R. Civ. P. 13 (“No sanctions
under this rule may be imposed except for good cause, the particulars of which must be stated in the
sanction order.”).

                                                11
