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



                        MEMORANDUM OPINION

      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 her homestead to her caretaker, Gonzalez.           We
reverse the trial court’s grant of summary judgment with respect to Pulido’s

forgery allegation, cancellation of the notice of lis pendens, declaration that

Gonzalez is fee simple owner of the property, and grant of summary judgment with

respect to Gonzalez’s counterclaim to quiet title, and we remand for further

proceedings with respect to these claims only.

                                   Background

      In September 2007, Pulido executed a notarized warranty deed conveying

her homestead to Gonzalez, which was recorded in the real property records of

Harris County the following month. A year later Pulido sued Gonzalez to set aside

the warranty deed on the basis of undue influence, fraud/misrepresentation, and

forgery.1 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 lis pendens, declare it invalid and unenforceable, and declare

Gonzalez the true owner of the property in fee simple.

      Pulido contends that at the time she allegedly signed the warranty deed she

was elderly, in poor health, and living with Gonzalez, who was responsible for her

care, and, according to Pulido, mistreating her.2 Pulido, who denies signing the

1
      Pulido later amended her petition to add a claim under the Texas Theft Liability
      Act. Pulido is not, however, challenging the trial court’s grant of summary
      judgment in Gonzalez’s favor with respect to that claim.
2
      Gonzalez emphatically denies ever mistreating Pulido while Pulido was living
      with her.

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warranty deed, testified that she believes that Gonzalez forged her signature on the

document. Pulido also argues 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.

         Gonzalez filed a hybrid motion for summary judgment on both traditional

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

evidence).    Gonzalez argued that she was entitled to a 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. 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.

                                Standard of Review

         When a summary judgment motion is filed as a hybrid motion based upon

both no-evidence and traditional grounds, we first review the trial court’s judgment

under the no-evidence standard of review. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004); E. Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d

                                          3
813, 816 (Tex. App.—Fort Worth 2007, pet. denied). If the movant has filed a

proper no-evidence motion for summary judgment and the non-movant has failed

to produce more than a scintilla of evidence under the standards of Rule 166a(i),

there is no need to analyze whether the movant’s summary judgment proof

satisfied the burden set forth for traditional summary judgment under Rule 166a(c).

TEX. R. CIV. P. 166a(c), (i); E. Hill Marine, 229 S.W.3d at 816.

      A no-evidence summary judgment is essentially a directed verdict granted

before trial; thus, we apply a legal-sufficiency standard of review. See City of

Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (“[T]he test for legal

sufficiency should be the same for summary judgments, directed verdicts,

judgments notwithstanding the verdict, and appellate no-evidence review.”).

Accordingly, 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. Id. at 810. 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. Chapman, 118 S.W.3d

742, 751 (Tex. 2003). More than a scintilla of evidence exists when the evidence

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“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)).

      To prevail on a traditional summary-judgment motion asserted under Rule

166a(c) a movant need 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. of DeSoto, Tex., 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 our review, we 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).

                                 Undue Influence

      Pulido contends that the trial court erred in granting summary judgment with

respect to her undue influence claim on no-evidence grounds because Pulido

produced more than a scintilla of evidence with respect to every element of the

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claim. Undue influence requires: (1) the existence and exertion of an influence, (2)

the effective operation of such influence so as to subvert or overpower the mind of

the maker of the document at the time of execution of the document, and (3) the

execution of the document which the maker thereof would not have executed but

for such influence. See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).

Thus, in order to establish undue influence in this case Pulido must prove that

Gonzalez exercised such dominion and control over her mind, under the facts and

circumstances then existing, that Gonzalez overcame Pulido’s free will and caused

Pulido to do something that, had it not been for Gonzalez’s exercise of influence,

she otherwise would not have done. See Dubree v. Blackwell, 67 S.W.3d 286, 291

(Tex. App.—Amarillo 2001, no pet.).

      The Texas Supreme Court has repeatedly observed 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 922). Among other factors,

courts consider:

      • the circumstances surrounding 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;
                                             6
      • 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
      • the improvidence of the transaction by reason of unjust, unreasonable, or
        unnatural disposition of the property.

See Guthrie v. Suiter, 934 S.W.2d 820, 831 (Tex. App.—Houston [1st Dist.] 1996,

no writ). Proof of undue influence may be established by circumstantial evidence,

but must be probative of the issue and not merely create a surmise or suspicion that

such influence existed at the time the document was executed. Reynolds v. Park,

485 S.W.2d 807, 813 (Tex. Civ. App.—Amarillo 1972, writ ref’d n.r.e.). Undue

influence cannot be inferred by opportunity alone because “[t]here must be some

evidence to show that the influence was not only present, but [that it was] in fact

exerted with respect to the [execution of the document] itself.” Cotten v. Cotten,

169 S.W.3d 824, 827 (Tex. App.—Dallas 2005, pet. denied).

      Pulido testified that at the time she purportedly signed the warranty deed she

was elderly, in poor health, and living with Gonzalez, who was responsible for her

care. According to Pulido, Gonzalez mistreated her during the year she was in her

care and kept Pulido isolated from her family. Such evidence raises, at most, a

fact issue as to whether Gonzalez had an opportunity to exert influence over

Pulido.   “Mere opportunity to unduly influence [someone] is no proof that

influence has actually been exerted.” Guthrie, 934 S.W.2d at 832 (citing Miller v.

Flyr, 447 S.W.2d 195, 202–03 (Tex. Civ. App.—Amarillo 1969, writ ref’d n.r.e.)).

                                         7
Nothing in the summary judgment record raises a fact issue that Gonzalez actually

“coerced, intimidated, or otherwise forced” Pulido to sign the warranty deed. See

id. In fact, Pulido herself testified that she never signed any documents against her

will and that she was never under any pressure by Gonzalez to sign anything.

Pulido further testified that she always knew what was going on and that she would

read through a document before signing it.

      We overrule Pulido’s first issue.

                            Fraud/Misrepresentation

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

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

misrepresentation to her; (2) the representation 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 should act upon it; (5) Pulido acted in

reliance on the representation; and (6) Pulido thereby suffered injury. Aquaplex,

Inc. v. Rancho La Valencia, 297 S.W.3d 768, 774 (Tex. 2009).

      Pulido argues that her deposition testimony is sufficient to defeat a no-

evidence summary judgment on this issue. In particular, Pulido points to her

testimony that: (1) she never intended to convey her home to Gonzalez; (2) she

denied signing the warranty deed; (3) she testified that if she signed the warranty

                                          8
deed, she did not know what she was doing; and (4) she testified that Gonzalez was

“tricky.” Pulido suggests in her briefing that Gonzalez obtained Pulido’s signature

on the deed by “misrepresenting the document she was signing” and argues that the

previously discussed evidence “obviously establishes fraud on [Gonzalez’s part]

since, if [Pulido] signed the Deed, she obviously did not know the significance of

it.”

       There is no evidence that Gonzalez ever made a material misrepresentation

to Pulido about the deed, much less the nature of that misrepresentation. There is

also no evidence that Pulido signed the deed in reliance upon such a

misrepresentation. On the contrary, Pulido repeatedly denied ever signing the

deed. Although she testified that if she signed the warranty deed, she did not know

what she was doing, this evidence—in addition to Pulido’s other testimony—

merely raises a suspicion of fraud which is insufficient to defeat a no-evidence

motion for summary judgment. See King Ranch, 118 S.W.3d at 751 (stating that

less than a scintilla of evidence exists when evidence is so weak as to do no more

than create mere surmise or suspicion of fact).

       We overrule Pulido’s second issue.

                                      Forgery

       Pulido argues she raised at least a scintilla of evidence in support of her




                                         9
forgery allegation because she testified that she did not sign the deed.3

      A forged deed is void. Dyson Descendant Corp. v. Sonat Exploration Co.,

861 S.W.2d 942, 947 (Tex. App.—Houston [1st Dist.] 1993, no writ); Morris v.

Wells Fargo Bank, N.A., 334 S.W.3d 838, 843 (Tex. App.—Dallas 2011, no pet.).

A deed that is void may be set aside or cancelled. See Nobles v. Marcus, 533

S.W.2d 923, 925 (Tex. 1976) (determining whether deed could be set aside due to

forgery). To constitute a forgery, “the signing must be by one who purports to act

as another.” Id. at 926; cf. TEX. PENAL CODE ANN. § 32.21(a)(1)(A)(i) (West 2011)

(defining “forge” as “to alter, make, complete, execute, or authenticate any writing

so that it purports . . . to be the act of another who did not authorize that act.”).

      The deed in question was notarized and contains a standard certificate of

acknowledgment which constitutes prima facie evidence that Pulido personally

appeared before the notary and acknowledged that she executed the deed for the

purposes and consideration therein expressed. See Bell v. Sharif-Munir-Davidson

Dev. Corp., 738 S.W.2d 326 (Tex. App.—Dallas 1987, writ denied) (citing Stout v.


3
      Gonzalez also argues that she was entitled to summary judgment on Pulido’s
      forgery claim because Pulido is barred from asserting her forgery claim on the
      basis of judicial estoppel. On the contrary, Pulido is not estopped from asserting
      her forgery claim merely because she advanced a seemingly contradictory position
      (fraud) earlier in the same proceeding. See Galley v. Apollo Associated Servs.,
      Ltd., 177 S.W.3d 523, 529 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
      (“Judicial estoppel does not apply to contradictory positions taken in the same
      proceeding”) (emphasis added).

                                           10
Oliveira, 153 S.W.2d 590, 596–97 (Tex. Civ. App.—El Paso 1941, writ ref’d

w.o.m.) (stating certificate of acknowledgment is prima facie evidence that party

appeared before the notary and executed document in question for purposes and

consideration therein expressed)). To raise a fact issue as to the validity of the

document based on the allegedly forged signature, Pulido must present some

evidence that she did not appear before the notary or that if she did, the notary

practiced some fraud upon her. Id.

      Here, Pulido repeatedly denied signing the deed. She also testified that she

had no intention of conveying her home to Gonzalez and she denied ever telling

Gonzalez that she wanted to give her the house in consideration for taking care of

her and managing her affairs.

      Q.    (Pulido’s counsel) Is this clearly not your signature or you don’t
            remember signing this document?
      A.    (Pulido) No, it’s not my signature.
      Q.    So do you believe that Esther forged this signature?
      A.    Sure.
      Q.    So you believe that she has title to your house because she
            forged this document.
      A.    I don’t know what she did but I know I’m telling you I never
            signed [any] papers to her on my property.

Taking Pulido’s testimony as true, indulging every reasonable inference in her

favor, and resolving all doubts in Pulido’s favor—as we must—we conclude that

Pulido’s testimony raises more than a scintilla of evidence with respect to this

                                        11
issue. Thus, the trial court erred in granting Gonzalez a no-evidence summary

judgment with respect to Pulido’s forgery allegation. See King Ranch, 118 S.W.3d

at 751.

      We sustain Pulido’s third issue.

    Counterclaim to Quiet Title and Cancellation of Notice of Lis Pendens

      Gonzalez also moved for traditional summary judgment on her counterclaim

to quiet title and sought cancelation of the notice of lis pendens, arguing that the

warranty deed from Pulido established her superior title to the property. See Essex

Crane Rental Corp. v. Carter, 371 S.W.3d 366, 387–88 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied) (stating suit to quiet title relies on invalidity of

defendant’s claim to property and that plaintiff in suit to quite title has burden of

supplying proof necessary to establish her superior title). Title to land, however,

cannot pass under a forged deed which is void ab initio and inoperative. See

Sonat, 861 S.W.2d at 947; Bellaire Kirkpatrick Joint Venture v. Loots, 826 S.W.2d

205, 207 (Tex. App.—Fort Worth 1992, writ denied). Although Pulido is not

expressly challenging the trial court’s granting of summary judgment on

Gonzalez’s counterclaim or its cancellation of the notice of lis pendens, the trial

court’s resolution of these issues was clearly dependent upon its erroneous

conclusion that Pulido had failed to produce at least a scintilla of evidence in

support of her forgery allegation, and thus, Gonzalez was entitled to a no-evidence

                                         12
summary judgment with respect to this issue. Having concluded that the trial court

erred in granting Gonzalez a no-evidence summary judgment with respect to

Pulido’s forgery allegation, we also reverse the portions of the judgment canceling

the notice of lis pendens, declaring Gonzalez the fee simple owner of the property,

and granting summary judgment on Gonzalez’s counterclaim to quiet title.

                                   Conclusion

      We reverse the portions of the trial court’s judgment granting summary

judgment with respect to Pulido’s forgery allegation, canceling the notice of lis

pendens, declaring Gonzalez the fee simple owner of the property, and granting

summary judgment with respect to Gonzalez’s counterclaim to quiet title, and we

remand for further proceedings with respect to these claims only.




                                             Jim Sharp
                                             Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Keyes, concurring and dissenting.




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