      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-13-00593-CV



                                     Bridgett Henties, Appellant

                                                    v.

    James Schweppe, Administrator for the Estate of Michael L. Henties, Deceased, and
               Trustee of the Michael L. Henties Estate Trust, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT
          NO. C2011-0810D, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                              MEMORANDUM OPINION


                The disputed issue in this appeal is the ownership of a piece of real property (the

Property) located in Comal County, Texas. After James Schweppe, as administrator of the Estate

of Michael L. Henties and as trustee of the Michael L. Henties Estate Trust (the Estate), filed a notice

of lis pendens giving notice of a potential dispute over ownership of the Property, Bridgett Henties

filed suit in district court seeking a declaration that she owned the property in fee simple. In her suit,

she asserted causes of action for trespass to try title, to quiet title, and for breach of contract against

the Estate. The Estate filed counter-claims for declaratory relief and for damages pursuant to the

Theft Liability Act. After a bench trial, the court rendered judgment for the Estate. Bridgett1

perfected this appeal and in six issues challenges the trial court’s judgment. Most of her six issues


        1
         Because Bridgett Henties and Michael Henties share a surname, for clarity we will refer
to them by their given names.
reduce in essence to legal and factual sufficiency challenges to the trial court’s judgment. We

will affirm.


                     FACTUAL AND PROCEDURAL BACKGROUND

               Bridgett and Michael married in 2002 and resided in Cincinnati, Ohio.

Approximately two years after they married, they purchased the Property located in Comal County,

Texas, intending to one day build a retirement home there. Michael was later diagnosed with lung

cancer and died in January 2010. After Michael’s death, certain unidentified disputes arose between

Bridgett and the Estate. The disputes were settled by execution of a Settlement Agreement in

January 2011. Thereafter, in May 2011, Bridgett filed in the Comal County deed records what

purported to be a Quitclaim Deed executed by Michael on May 8, 2009, conveying to Bridgett all

of his rights, title, and interest in the Property. Doubting the validity and authenticity of the

Quitclaim Deed, the Estate filed a notice of lis pendens in Comal County giving notice of a dispute

of ownership or property rights concerning the Property. That prompted Bridgett to file this suit,

which at the time of trial included the following:


       •       a request for declarations that: (1) she had superior title to the Property as
               evidenced by the Quitclaim Deed, (2) she owned the Property in fee simple,
               (3) the Estate’s claims to the property were unenforceable and invalid, and
               (4) any claims to the Property were foreclosed by the January 2011
               Settlement Agreement;

       •       an action for trespass to try title and a petition to quiet title and remove a
               cloud on title arising out of the notice of lis pendens;

       •       a claim that the Estate breached the January 2011 Settlement Agreement by
               filing the notice of lis pendens;



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       •       a request that the notice of lis pendens be expunged; and

       •       a request for attorneys’ fees.


The Estate filed a general denial along with a request for a declaration that the Quitclaim Deed was

invalid and that one-half of the Property belonged to the Estate. The Estate also sought actual and

statutory damages and attorneys’ fees pursuant to the Theft Liability Act. See Tex. Civ. Prac.

& Rem. Code §§ 134.001-.005.

               The case was tried to the court. In support of her claim to have title to the Property,

Bridgett relied on the Quitclaim Deed dated May 8, 2009, which she claimed Michael signed in a

restaurant in El Paso, Texas. The Quitclaim Deed, which for unknown reasons bears the logo of the

Texas Department of Transportation in the upper left-hand corner, recites as follows:


       That, Michael L. Henties of 8919 Terwilliger’s Trail, Cincinnati OH 45249,
       hereinafter referred to as THE GRANTOR(S), for and in consideration of the sum
       of TEN AND NO/100 DOLLARS ($10.00) cash and other good and valuable
       consideration to it in hand paid by Bridgett Baez Henties, the GRANTEE, the receipt
       of which is hereby acknowledged, and for which no lien is retained, either expressed
       or implied, have Quitclaimed and do by these presents Bargain, Sell, Release and
       forever Quitclaim unto the State of Texas all of Grantors’ rights, title, interest, claim
       and demand in and to that certain tract or parcel of land, situated in the County of
       Comal, State of Texas, conveys and quit claims to Bridgett Baez Henties, of
       8919 Terwilliger’s Trail, Cincinnati OH 45249, the GRANTEES(S), the following
       described parcel of land or real estate, situated in the County of Comal, State
       of Texas, together with all after acquired title of the Grantor(s) therein
       (legal description):

       Lot 1348, MYSTIC SHORES, UNIT ELEVEN, according to map or plat recorded
       in Volume 15, Pages 40-49, Comal County, Texas Map and Plat Records.

       TO HAVE AND TO HOLD for said purposes together with all and singular the
       rights, privileges, and appurtenances thereto in any manner belonging unto the said



                                                  3
        State of Texas forever. Executed on the 8th day of May, 2009, date of the
        acknowledgment, and effective on the 8th day of May, 2009.

        GRANTOR:_______[signature]_______________
                 [handwritten “Michael L. Henties”]

        IN WITNESS WHEREOF, this instrument is executed on this the 8th day of May,
        2009

        _____Hilda Elena Carrasco__________                      __________[signature]______

        _____Cynthia Bernal_______________                       __________[signature]______

        _____Regina Allemang______________                       __________[signature]______


The Quitclaim Deed also included the acknowledgment of Notary Public Martha A. Ayala,

which stated: “This instrument was acknowledged before me on this 8th day of May 2009 by

Michael Henties.” The Deed was witnessed by Hilda Elena Carrasco, Cynthia Bernal, and

Regina Allemang. Carrasco is Bridgett’s sister, and Bernal and Ayala are friends of Carrasco’s.

                Bridgett testified that the signature on the Quitclaim Deed was Michael’s. The

undisputed evidence at trial was that Michael was admitted to a hospital in Cincinnati, Ohio, for lung

surgery on May 4, 2009, and was discharged from the hospital on May 7, 2009, with a chest incision

that was expected to drain and a chest dressing that needed to be changed regularly. Bridgett

testified that, although she did not know how he got there, Michael was in El Paso, Texas, the

following day, May 8, 2009, and signed the Quitclaim Deed there. Bridgett testified that it was not

uncommon for Michael to go on long trips immediately following a release from the hospital.

Bridgett agreed that Michael’s Chase credit card and American Express card activity included no

charges related to travel, lodging, meals, rental car, or airline tickets that would indicate that Michael



                                                    4
had traveled to El Paso on May 7 or 8, 2009. Michael’s Chase credit card was, however, used at a

Speedway store in Cincinnati, Ohio, on May 9, 2009. Bridgett testified that she and her two

daughters had charging privileges on the Chase credit card. Bridgett also testified that the signature

on the Quitclaim Deed matched Michael’s signature on his hospital discharge papers.

               Martha Ayala, the notary public who notarized Michael’s signature on the Quitclaim

Deed, testified that she did not know either Bridgett or Michael before May 8, 2009. Ayala testified

that she did not remember notarizing the Quitclaim Deed and that she no longer had her notary book

because it was in her vehicle when it was stolen in Juarez, Mexico in the summer of 2011.

               Carrasco testified that Michael called her early in the afternoon of May 8, 2009, and

that she met him between four and six o’clock that afternoon. They met at a restaurant in northeast

El Paso called La Paloma. Carrasco brought Bernal with her and met Michael and Ayala at the

restaurant. They stayed at the restaurant for 20 to 30 minutes. Carrasco said she did not ask, and

did not know, why Michael had traveled to El Paso to sign a document he could have signed in Ohio.

Carrasco testified that she was not sure who Regina Allemang was but believed she was someone

at the restaurant. Carrasco testified she believed that Michael brought the typed Quitclaim Deed with

him, but she could not explain how the names of the witnesses could have already been typed on the

document when no one had ever met Allemang before, and Michael could not have known in

advance the name of a bystander who would be asked to witness his signature.

               After trial, the court rendered judgment in the Estate’s favor. Declaring the Quitclaim

Deed to be forged and invalid, the court expunged it and also declared that the Estate owns a

one-half undivided interest in the Property. The court awarded the Estate statutory damages of



                                                  5
$1,000, $57,933.50 for reasonable and necessary attorneys’ fees, and $2,144.48 for court costs. See

id. § 134.005(a)(1), (b). Bridgett filed a motion for new trial, which was overruled by operation of

law. Bridgett also filed a request for findings of fact and conclusions of law. When the trial court

did not enter findings and conclusions, Bridgett filed a notice of past due findings of fact and

conclusions of law and perfected this appeal.


                                            DISCUSSION

                The trial court found that Michael did not sign the Quitclaim Deed and that his

signature thereon was forged. This finding was included in the trial court’s final judgment rather

than in separately filed findings of fact and conclusions of law. In her first issue, Bridgett complains

that including findings in the judgment was “improper” and, consequently, “cannot support the trial

court’s ruling on appeal.” See Tex. R. Civ. P. 299a (“Findings of fact shall not be recited in a

judgment. If there is a conflict between findings of fact recited in a judgment in violation of this rule

and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate

purposes. Findings of fact shall be filed with the clerk of the court as a document or documents

separate and apart from the judgment.”). We understand Bridgett to argue that the findings of fact

set forth in the judgment are a nullity, and the absence of an express finding that Michael did not sign

the Quitclaim Deed requires rendition of judgment in her favor.

                In the present case, the findings contained in the judgment, though technically in

violation of Rule 299a, still have probative value and are valid as findings. See In re C.A.B.,

289 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Moreover, the absence of

separately filed findings of fact and conclusions of law has not harmed Bridgett because it is obvious

                                                   6
that the trial court ruled against Bridgett because it found that Michael did not sign the Quitclaim

Deed and that his signature on it was forged. Bridgett need not speculate here about the reason the

trial court ruled against her; in fact, she challenges this very ruling in her fourth appellate issue. We

overrule Bridgett’s first issue.

                 In her fourth appellate issue, Bridgett challenges the legal and factual sufficiency of

the evidence supporting the trial court’s findings that Michael did not sign the Quitclaim Deed and

that his signature thereon was forged. In her fifth issue, Bridgett claims that, because the evidence

is insufficient to support that finding, she is entitled to judgment on her suit to quiet title. Bridgett

was the plaintiff in this suit in which she sought confirmation that she was the owner of the property

because Michael had conveyed it to her in the Quitclaim Deed. Bridgett, therefore, had the burden

of proving that the Quitclaim Deed was valid. When a party attacks the legal sufficiency of an

adverse finding on an issue on which she had the burden of proof, she must demonstrate that the

evidence establishes that issue as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241

(Tex. 2001). “In reviewing a ‘matter of law’ challenge, the reviewing court must first examine the

record for evidence that supports the finding, while ignoring all evidence to the contrary. If there

is no evidence to support the finding, the reviewing court will then examine the entire record to

determine if the contrary proposition is established as a matter of law.” Id. (citations omitted). Only

if the contrary proposition is conclusively established may we sustain the legal-sufficiency

challenge. Id.

                 There is evidence supporting the trial court’s finding that Michael did not sign the

Quitclaim Deed. The evidence at trial showed that Michael was discharged from a hospital in Ohio



                                                   7
on May 7, 2009, after undergoing invasive chest surgery to treat lung cancer, making it unlikely that

he would appear in El Paso, Texas, the next day to sign a document he could have signed at home.

Michael’s credit card receipts showed no charges outside the State of Ohio, and there is no indication

that he traveled by car, plane, or otherwise to El Paso on or around May 8, 2009. Bridgett had no

idea how Michael came to be in El Paso the day after his surgery. Moreover, the signature on the

Quitclaim Deed and the signature on Michael’s hospital discharge papers are dissimilar in many

respects. Indeed, it appears that the signature on the Quitclaim Deed misspelled Michael’s name,

spelling it “Micheal.” We overrule Bridgett’s legal-sufficiency challenge to the trial court’s finding

that Michael did not sign the Quitclaim Deed himself and that his signature was forged.

                When a party challenges the factual sufficiency of an adverse finding on which she

had the burden of proof, she must demonstrate that the adverse finding is against the great weight

and preponderance of the evidence. Id. at 242. The evidence in this case does not preponderate

against the trial court’s finding that Michael did not sign the Quitclaim Deed as Bridgett asserts. The

testimony of interested witnesses that, one day after undergoing invasive chest surgery, Michael

traveled to El Paso, Texas, called his sister-in-law with no advance notice and asked her to meet him

at a restaurant where he produced a document that already had typed on it the names of people he

did not know were going to be there to witness his signature is not sufficiently compelling for us to

conclude that the trial court’s finding that Michael did not sign the Quitclaim Deed is against the

great weight and preponderance of the evidence. In a bench trial, the trial court has the right to

accept or reject any part or all of a witness’s testimony. G. Prop. Mgmt., Ltd. v. Multivest Fin. Servs.

of Tex., Inc., 219 S.W.3d 37, 49 (Tex. App.—San Antonio 2006, no pet.). The court may believe



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one witness and disbelieve others and may resolve inconsistencies in any witness’s testimony. Id.

The trial court could reasonably have disbelieved the events described by the witnesses who claimed

that Michael signed the Quitclaim Deed. Therefore, Bridgett’s factual-sufficiency challenge also

fails. We overrule the fourth and fifth issues.

                In her third issue, Bridgett contends she is entitled to judgment in her favor on each

of her causes of action because the parties entered into a Settlement Agreement in which, according

to Bridgett, the Estate “agreed not to pursue any claims, known or unknown, relating to the

administration of the Estate.” As an initial matter, the Settlement Agreement does not include a

covenant not to sue. Rather, the Estate released any claims arising out of “the Estate-related

Disputes,” which are defined in the Settlement Agreement as “disputes [which] have arisen between

the parties with reference to certain claims made by each of them against the other concerning

various matters resulting from or pertaining to the death of Michael L. Henties and the administration

of the Estate.” Thus, to be an “Estate-related Dispute” for purposes of the Settlement Agreement,

the dispute must have been one that had arisen at the time the Settlement Agreement was executed

in January 2011. There is no evidence that the dispute over ownership of the Property arose before

January 2011 or even before May 31, 2011, when Bridgett recorded the Quitclaim Deed. Even if

the dispute over the Property is within the scope of the Settlement Agreement’s general release

language, Bridgett has provided no authority for her assertion that the release relieved her of her

burden of proving that, as she claimed in each of the causes of action included in the petition she

filed, the Quitclaim Deed was a valid conveyance. Because we have overruled Bridgett’s challenges

to the trial court’s finding that it was not, she is not entitled to judgment in her favor on any claims



                                                   9
that depend on the validity of the Quitclaim Deed. Nor could the Estate have been found to have

breached a contract by asserting a counterclaim in this case. First, the only claim the Estate asserted

was a counterclaim responsive to Bridgett’s request for declaratory relief.2 Second, it is plain from

reading the Settlement Agreement that the Estate did not promise to refrain from filing suit based

on any of the released claims. See Westergren v. National Prop. Holdings, Ltd., 409 S.W.3d 110,

142 (Tex. App.—Houston [14th Dist.] 2013, pet. filed) (released parties would only have claim for

breach of contract if agreement in question also contained language in which releasing parties agreed

not to file suit based on any of released claims). The existence of the Settlement Agreement does

not entitle Bridgett to judgment as a matter of law on her claims for breach of contract, declaratory

judgment, trespass to try title, or to quiet title. We overrule the third issue.

                In her second issue, Bridgett contends that, because the Estate did not plead a cause

of action for trespass to try title, its pleadings, consisting of a request for a declaratory judgment, “do

not support any judgment regarding the validity of the deed.” To the contrary, section 37.007(a) of

the Uniform Declaratory Judgments Act expressly provides:


        A person interested under a deed [] may have determined any question of
        construction or validity arising under the instrument [] and obtain a declaration of
        rights, status, or other legal relations thereunder.




        2
         A lis pendens does not constitute a claim of ownership of property. See Tex. Prop. Code
§ 12.007. Rather, it is simply a procedure whereby a party seeking affirmative relief in an action
involving title to real property to litigation may put third parties on notice of the existence of the
dispute. In the present case, there was no litigation pending at the time the Estate filed the lis
pendens. The litigation was initiated by Bridgett, not the Estate.

                                                    10
Tex. Civ. Prac. & Rem. Code § 37.004(a). Moreover, Bridgett’s own trespass-to-try-title action

provided a proper vehicle for the court’s adjudication that she did not have sole ownership of the

Property. We overrule the second issue.

               In her sixth issue, Bridgett asserts that she was entitled to judgment in her favor on

the Estate’s claim that she violated the Theft Liability Act because the Quitclaim Deed conveyed her

the interest in the Property that she claimed. Because the trial court found that the Quitclaim Deed

was a forgery and therefore could not have conveyed Michael’s interest in the Property to her, and

because we have overruled Bridgett’s challenges to this finding, we overrule her sixth issue.


                                         CONCLUSION

               Having overruled each of Bridgett’s six appellate issues, we affirm the trial

court’s judgment.



                                              _____________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: June 3, 2014




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