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Texas Quiet Title

Texas Quiet Title

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Published by Jeff Wilner
Quiet Title in Texas requires elements to be met as well as a form. This is out of the law library in Tarrant County. "Suit to Quiet Title"... LexisNexis Texas Litigation Guide by Dorsaneo 257.syn / 17-257. Stop Foreclosure by showing fraud in the Land Records. Facing Foreclosure? Want to Stop Foreclosure Fast? Learn how to defend your home against the fraud by Using Mortgage Foreclosure Defenses to Save Your Home and stop the foreclosure action dead in its tracks. Beat the banks in foreclosure and get your home for free. Affirmative Consumer Defenses, Breach of Contract, Assignment Fraud, Bifurcation, Forgery, Securitization and Fraud Litigation are new terms for Defenses to Foreclosure. The rate of foreclosure in the nation has reached an amazing all time high. TILA, HOEPA, RESPA and FDCPA violations; Your Bank is Breaking the Law by Foreclosing on Your Home Illegally. Defend yourself! It's important to find an attorney who has trial experience and understands contract law. A good alternative is to use bankruptcy and the strong protections of the Automatic Stay to save your home. Get a Title Search, Forensic Mortgage Audit and or Securitization Audit. Challenge a foreclosure by bringing a defense on fraudulent and predatory lending practices. Until recently, successful defenses against foreclosure were relatively rare, But now more homeowners are successfully challenging foreclosure actions in many different ways. Fight Mortgage Foreclosure and Keep Your House! Assignment Fraud; Your lender has tainted your land records and now has to prove up a complete Chain of Title or Chain of Assignments. Raise a defense to the foreclosure action. The foreclosing party doesn't follow state procedural requirements, and commits multiple felonies in the process of stealing your home. Securitization of your note is conversion and thereby illegal! Separation of the note from the mortgage, (bifurcation), is a nullity. Learn Common Foreclosure Defenses and approaches to defending against foreclosure. Fight Foreclosure Fraud. Assignment Fraud in the Land Records. Mortgage Servicing Fraud leads to Wrongful Foreclosure. Stop illegal foreclosure.
Texas rules of civil procedure rule 735 and rule 736 expedited foreclosure. Explained in easy terms includes examples and cases to follow. Separation of note and mortgage - bifurcation.
MERS for dummies. Learn how to sever the collateral link. Business records affidavits and how to destroy them. Clouded titles. Power of attorney and their significance.
Land records recordations and their importance. Broken chains of assignments and there importance in a court of law. The importance of jurisdiction and standing explained. TILA and RESPA violations are a long and drawn out battle. Specific laws with charts and graphs. Our system takes them out by the ankles. Standing or lack there of is the answer. We show you how.
Wrongful Foreclosure, foreclosure scams, Land Records Fraud, Indenture fraud, it's all just another fraud. Notary Fraud is a big problem. Judicial and non judicial foreclosures and how they work. Assignment Fraud is national and rampant! Business record affidavits and what they mean. Mortgage Servicing Fraud, Clouded title, Bogus Assignments, broken chain of assignments, securities fraud, deceptive practices, Separation of note and mortgage, Bogus business records, investment fraud, Bank Fraud, TILA violations, RESPA violations, FDCPA violations, bificuration.
Learn how to sever the collateral link.
... common fraud schemes - Assignment as an instrument of fraud - fair debt collection and practices act - truth in lending act - Fannie Mae - Freddie Mac.
Explained in easy terms includes examples and cases to follow.
... produce the note - breach of contract - standing - jurisdiction.
Mers for dummies.
... texas rules of civil procedure rule 735 and rule 736 expedited foreclosure.
Business records affidavits and how to destroy them.
... stop foreclosure -
Quiet Title in Texas requires elements to be met as well as a form. This is out of the law library in Tarrant County. "Suit to Quiet Title"... LexisNexis Texas Litigation Guide by Dorsaneo 257.syn / 17-257. Stop Foreclosure by showing fraud in the Land Records. Facing Foreclosure? Want to Stop Foreclosure Fast? Learn how to defend your home against the fraud by Using Mortgage Foreclosure Defenses to Save Your Home and stop the foreclosure action dead in its tracks. Beat the banks in foreclosure and get your home for free. Affirmative Consumer Defenses, Breach of Contract, Assignment Fraud, Bifurcation, Forgery, Securitization and Fraud Litigation are new terms for Defenses to Foreclosure. The rate of foreclosure in the nation has reached an amazing all time high. TILA, HOEPA, RESPA and FDCPA violations; Your Bank is Breaking the Law by Foreclosing on Your Home Illegally. Defend yourself! It's important to find an attorney who has trial experience and understands contract law. A good alternative is to use bankruptcy and the strong protections of the Automatic Stay to save your home. Get a Title Search, Forensic Mortgage Audit and or Securitization Audit. Challenge a foreclosure by bringing a defense on fraudulent and predatory lending practices. Until recently, successful defenses against foreclosure were relatively rare, But now more homeowners are successfully challenging foreclosure actions in many different ways. Fight Mortgage Foreclosure and Keep Your House! Assignment Fraud; Your lender has tainted your land records and now has to prove up a complete Chain of Title or Chain of Assignments. Raise a defense to the foreclosure action. The foreclosing party doesn't follow state procedural requirements, and commits multiple felonies in the process of stealing your home. Securitization of your note is conversion and thereby illegal! Separation of the note from the mortgage, (bifurcation), is a nullity. Learn Common Foreclosure Defenses and approaches to defending against foreclosure. Fight Foreclosure Fraud. Assignment Fraud in the Land Records. Mortgage Servicing Fraud leads to Wrongful Foreclosure. Stop illegal foreclosure.
Texas rules of civil procedure rule 735 and rule 736 expedited foreclosure. Explained in easy terms includes examples and cases to follow. Separation of note and mortgage - bifurcation.
MERS for dummies. Learn how to sever the collateral link. Business records affidavits and how to destroy them. Clouded titles. Power of attorney and their significance.
Land records recordations and their importance. Broken chains of assignments and there importance in a court of law. The importance of jurisdiction and standing explained. TILA and RESPA violations are a long and drawn out battle. Specific laws with charts and graphs. Our system takes them out by the ankles. Standing or lack there of is the answer. We show you how.
Wrongful Foreclosure, foreclosure scams, Land Records Fraud, Indenture fraud, it's all just another fraud. Notary Fraud is a big problem. Judicial and non judicial foreclosures and how they work. Assignment Fraud is national and rampant! Business record affidavits and what they mean. Mortgage Servicing Fraud, Clouded title, Bogus Assignments, broken chain of assignments, securities fraud, deceptive practices, Separation of note and mortgage, Bogus business records, investment fraud, Bank Fraud, TILA violations, RESPA violations, FDCPA violations, bificuration.
Learn how to sever the collateral link.
... common fraud schemes - Assignment as an instrument of fraud - fair debt collection and practices act - truth in lending act - Fannie Mae - Freddie Mac.
Explained in easy terms includes examples and cases to follow.
... produce the note - breach of contract - standing - jurisdiction.
Mers for dummies.
... texas rules of civil procedure rule 735 and rule 736 expedited foreclosure.
Business records affidavits and how to destroy them.
... stop foreclosure -

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Published by: Jeff Wilner on Nov 23, 2010
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PART I.

LEGAL BACKGROUND

A. Action to Remove Cloud .and Quiet Title

§ 257.01 Nature and Purpose of Action to Remove Cloud and Quiet TItle

[I]-Cause of Action Explained

It is not uncommon for one person to claim some right or interest in a piece of property and another person to dispute that claim by contending it is invalid or unenforceable. These claims take several forms, as illustrated in [2], below, ranging from a claimed ownership interest in all or part: of the property to an ass~rti.on ~f a ~en or other e,?CUfIlbra~ce against the property. ~he ~,s?u~e?, chum IS said to cast a shadow on the title to the property by creating a cloud on the title. To settle the dispute and clear the title, the circumstances may leave the title holder with no clear-cut legal remedy other than an action to quiet title or, as it is sometimes called, a suit to remove a cloud from the title [see Dittmar v. Alamo Nat'l Co., 132 Tex. 44, 118 S.W.2d 298, 301-302 (1938)-applying remedy to quiet title to personalty]. To paraphrase an early opinion of the Texas Supreme Court, the action enables the holder of the feeblest equity to remove from his or her way to the title any unlawful hindrance having the appearance of a better right [Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (1886); see Bell v. Ott, 606 S.W.2d 942, 952 (Civ. App.Waco 1980, ref. n.r.e.)--quoting from Thomson v. Locker

The cloud on the title may have been created by a deed, contract, judgment, or other instrument, whether recorded or not [Best Investment Company v. Parkhill, 429 S.W.2d 531, 534 (Civ. App.-Corpus Christi 1968, dis. w.o.j.), see Texan Dev. Co. v. Hodges, 237 S.W.2d 436,439 (Civ. App.-Amarillo 1951, no writ)-unrecorded contract was cloud on title]. Yet, the person contesting its validity may not have beep a party to the instrument creating it so that the traditional remedies of rescission or reformation are unavailable. Similarly, the cloud may not be an opposing claim for title and possession or the complaining party may not be an ownership claimant, eliminating resort to the statutory action for trespass to try title. In these situations, when other remedies are not available, the action to quiet title can be used to establish that the adverse party's claim is invalid or unenforceable and without impact on the title to the property in question. Successful prosecution of the action will result in a court decree or declaration that the adverse claim is invalid and, thus, clear or "quiet" the title to the property and "remove the cloud" [see Southwest Guar. Trust Co. v. Hardy Rd. 13.4 JOint Venture, 981 S.W.2d 951,957 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)-upholding trial court's judgment (1) declaring title quieted, (2) "removing, annulling, and holding for naught" all clouds on

(Malthew Bender'" Co .• Inc.)

(Rel.60-111OO Pub.719)

257-6

257-7

LEGAL BACKGROUND

§ 257.01[2]

it, and (3) declaring certain lien invalid and unenforceable]. However, the successful prosecution of a suit to quiet title cannot result in the recovery of damages for harm caused by the' existence of the cloud on the title [see § 257.06[2]]. Recovery of money damages requires the complaining party to add and establish the elements of some legal remedy such as an action for slander of title [see § 257.10 et seq.]

[2]- Typical Targets of Suit to Quiet Title

The purpose of the traditional suit to quiet title is to remove a cloud from the title created by an invalid claim .. It follows that the claim may take one of several forms and the resolution of its invalidity will depend on one or more areas of substantive law. From reported modem opinions, examples of clouds or claims targeted for removal through suits to quiet title include the following:

Real Properly Ownership Claims

• A right of first refusal to purchase, allegedly lost by the holder's failure to accept an offer to sell [Ellis v. Waldrop, 656 S.W.2d 902, 903-904 (Tex. 1983)].

v.

• A city's claim of a right-of-way easement recorded only in the city's records and referenced in a deed only as a "proposed road" [James J. Hartnett, P.C. v. City of Dallas, 5 S.W.3d 384, 385-386 (Tex. App.-FQrt Worth 1999, pet. dism'dl].

• , A claim of ownership under a parol gift and adverse possession

[Dickson v. Dickson, 993 S.W.2d 735; 736 (Tex. App.-Houston [14th Dist.] 19~, no pet.)].

• A claim to a: mineral interest based ona conveyance from the State of Oklahoma before the final ascertainment of the Texas-Oklahoma border [Jones v. P.A.W.N. Enterprises, 988S.W.2d 812, 815--817 (Tex. App.-:-Amarillo ,!999, pet. denied)].

A claim of ownership of both surface and mineral rights obtained through a deed of trust foreclosure allegedly conducted in violation

of the lienor's agreement not to foreclose on the mineral estate [Wright v. E.P. Operating Ltd. Partnership, 978 S.W.2d 684, 684 (Tex. App.-Eastland 1998, pet. denied)].

.A lessee's assertion of continued.rights under an oil and gas lease

. after expiration of the primary term and cessation of production [Exploracion De La Estrella v, Birdwell, 858 S.W.2d 549, 551-552 (Tex. App.-El Paso 1993, no writ); Kidd v. Hoggett, 331 S.W.2d 515, 517 (Civ. App.c--San Antonio 1959, ref. n.r.e.i],

Lien Claims

, (Matthew Bender'" Co .• Inc.)

(Rel.60-111OO Pub.719)

§ 257.01[3][a]

SUIT TO QUIET TITLE

257-8

• A lien claimed to secure unpaid maintenance fees and filed by a homeowner's association allegedly without authority to do so [Gorman v. Countrywood Prop. Owner'sAss'n, 1 S.W.3d 915,917 (Tex. App.-Beaumont 1999, pet. denied)].

• A deed of trust lien allegedly created without authority of the property's owner [Southwest Guar. Trust Co. v. Hardy Rd. 13.4 JOint Venture,981 S.W.2d 951, 952-953 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)-property was held by individual as trustee for unnamed beneficiary] ..

• A judgment lien alleged to be unenforceable against the petitioner's homestead [Tarrant Bank v. Miller, 833 S.W.2d 666, 667 (Tex. App.-Eastland 1992, den.), First National Bank at Lubbock v. John E. Mitchell Company, 727 S.W.2d 360, 361 (Tex.· App;Amarillo 1987, ref. n.r.e.)].

• A subcontractor's mechanic's lien allegedly HIed without compyling with the controlling statutes [Industrial Structure & Fabrication v. Arrowhead Industrial Water, Inc., 888 S.W.2d 840, 841-842 (Tex. App.-Houston [Ist Dist.] 1994, no writ)].

Personal Property Claims

• •

A claim by the former owner of property to excess funds following

a foreclosure sale for non-payment of taxes [Syntax, Inc. v. Hall,

899 S.W.2d 189, 189-190 (Tex. 1995)~laim was upheld to defeat action to quiet title brought by purchaser at trustee's sale].

• An oil lessee's claim that gas being produced from an oil well was casinghead gas and not exclusively within a gas lease on the same land [Amarillo Oil Co. v. Energy-Agri Prods., 794 S.W.2d 20,21-22 (Tex. 1990)].

[3]-Other Actions to Clear Title Distinguished [a]-Importance of Making Distinction

The equitable cause of action to quiet title or remove a cloud should not be confused with other actions that may have the effect of clearing or establishing title, such as a suit in trespass to try title or an action to rescind or reform a deed or other contract [see [b]-[d], below]. The goal of an action to quiet title is not to establish the superiority of the petitioner's title or declare the invalidity or correct the irregularity of some instrument the petitioner was unlawfully induced to sign; rather, its purpose is to nullify the effect of the disputed claim or encumbrance (the "cloud") that affects or impairs the title to the property when no other means exist to establish that the claim is invalid

(Mattbew Bender '" Co .• Inc.)

(Rel.6(}...111OO Pub.719)

257·9

LEGAL BACKGROUND

§ 257.01[3][b]

or unenforceable [see Sadler v. Duvall, 815 S.W.2d 285, 293 n.2 (Tex. App.-Texarkana 1991, den.); Vanguard Equities, Inc. v. Sellers, 587 S.W.2d 521, 525 (Civ. App---Corpus Christi 1979, no writ)].

Maintaining the distinctions among remedies is most helpful when the plaintiff J must eliminate or correct a document in a chain of title. An action for reformation

or for rescission may be joined as a preliminary step toward establishing the plaintiff's interest, invalidating the defendant's claim, or both [see Alkas v. United Sav. Ass'n of Texas, Inc., 672 S.W.2d 852, 858 (Tex. App.-Corpus Christi 1984, ref. ii.r.e.j]. On the other hand, the title document subject to rescission or reformation may be the only cloud on the title and eliminating or correcting it may provide all the relief the plaintiff needs. Nevertheless, an action to quiet title is often added to a suit for reformation or rescission out of an abundance ofcaution

or through the application of an overbroad or generic definition of "quieting title" [see, e.g., Henderson v. Henderson, 694 S.W.2d 31, 33 (Tex. App.-Corpus Christi 1985, ref. n.r.e.) (action to quiet title joined with action by grantee to reform deed to show grantee's correct namej]. The addition of a prayer to quiet title in a suit having its only purpose as rescinding or reforming a title document may be a misuse of the action to quiet title in the technical sense; moreover, it would appear redundant, although harmless, for the resulting judgment to state the legal effect of the rescission or reformation granted as. quieting the title or removing any cloud created by the offending document. ..

Practitioners and judges often use the terms "action to quiet title" or "suit to remove a cloud" in a broad sense, encompassing any action with that result. The broader application may stem from the wording and interpretation of the venue statute by which the venue of an action affecting the title to land, especially a suit to 'quiet titleot to remove an encumbrance, is placed in the county where the property is located [see Tex. Civ. Prac. & Rem. Code § 15.011; see also 1 McDonald, Texas Civil Practice § 4.22S-observing that in venue controversies, the action to quiet title receives a construction broader than that historically accorded to the' equitable bill of the same name]. Technically, however, actions / such as those in trespass to try title or to rescind or reform a document are not the same as the traditional action to quiet title or remove a cloud even though the end result may have that effect as a practical matter: Although it may be appropriate to determine a venue question to lump these other actions into a broad category

to mandate litigation in the county where the property is 'located, the overinclusive characterization of the action may lead to an erroneous determination of other issues, particularly the issues of the pleading and proof required, limitations, damages, and attorney's fees.

',-.

[b] Trespass to Try Title

The action known as trespass to try title is statutory, comprising a suit for title and possession of land by a party claiming the legal or equitable title against

(ReI. 87-1112007 Puh,719)

§ 257 .01[3][b]

SUIT TO QUIET TITLE

257-10

another party asserting a conflicting possessory right [see Ch. 251, Trespass to Try Title]. In essence, the plaintiff must claim an ownership interest in real property and can prevail only by establishing that interest as a valid and superior one. An action in trespass to try title is purely statutory [Tex. Prop. Code § 22.001-22.004; see Martin v. Amerman, 133 S.W.3d 262, 264-265 (Tex. 2004) (noting that statutory trespass-to-try-title action replaced common-law action in ejectment)] and is governed by special pleading and proof requirements established by the Texas Rules of Civil Procedure [Tex. R. Civ. P. 783-809; see generally Ch. 251, Trespass to Try Title]. Success in a trespass-to-try-title action depends .on the strength of the petitioner's title, not the weakness of the adversary's claim [Martin v. Amerman', 133 S.W.3d 262,265 (Tex. 2004); Land v. Turner, 377 S.W.2d 181, 183 (Tex. 1964),; Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226, 226 (1961)].

/ When both the plaintiff and the defendant claim title and possession of property, \ it appears that the plaintiff may elect to bring a suit to quiet title or remove a cloud created by the deed or other evidence, of the defendant's claim [see, e.g. Dickson

v. Dickson, 993 S.W.2d 735, 736 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (devisee under will attempted suit to quiet title to defeat defendant's claim of parol gift and adverse possession)]. The major drawback in bringing suit to quiet title is that the resulting judgment would not directly affirm the.plaintiff's claim to title. Rather, it would only eliminate the defendant's claim, leaving ~e validity of the plaintiff's title dependent-on the usual examination of remaining public records. Moreover, no money damages are recoverable in a suit to quiet title [Ellis v. Waldrop, 656 S.W.2d 902,904-905 (Tex. 1983) (damages depend on successful prosecution of action for slander of title); see § 257.06[2]]. On the other hand, a petitioner who establishes superior title, in a trespass to try title action may.recover for loss of rents and profits and other damages to compensate for any harm to the property causedby the defendant's presence [Tex. R. Civ. P. 783ft); see Ch. 251, Trespass to Try Title].

Often, the claim of one of the parties is based on title by limitation, also known as adverse possession [see Ch. 250, Adverse Possession]. In a trespass-to-try-title action in which a claim or defense of adverse possession is in issue, recovery of attorney's fees by the prevailing party is authorized when certain notice procedures have been followed [see Tex. Civ. Prac. & Rem. Code § 16.034]. If this attorney's fee statute is inapplicable because there is no claim or defense of adverse possession [see Smith v. Brooks, 825 S.W.2d 208, 210-211 (Tex. App.e--Texarkana 1992, no writ) (mere plea of "not guilty" does not raise defense of adverse possession, so fee statute inapplicable)], there must be some other statutory basis for an award of attorney's fees. The statutes governing trespassto-try-title actions do not themselves provide any general authorization for attorney's fees [see generally Ch. 251, Trespass to Try Title]. Therefore, when an action must be brought as a trespass-to-try-title action [see Tex. Prop. Code § 22.001(a) (trespass-to-try-title action is "the method of determining title" to real

(ReI. 87-1112007 Pub,719)

257.11

LEGAL BACKGROUND

§ 257.01[3][c]

property)], the parties to the action may not obtain an award of attorney's fees by styling the action as one for a declaratory judgment [see Martin v. Amerman, 133 S.W.3d 262, 265-267 (Tex. 2004)]. Despite the exclusive remedy provisions of the trespass-to-try-title statute, a declaratory judgment is nevertheless available when the "sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties" [Tex. Civ. Prac. & Rem. Code § 37.004(c); see Lile v. Smith, 291 S.W.3d 75, 78 (Tex. App.- Texarkana 2009, no pet.) (when there was no real controversy over boundary line, and parties simply disputed who owned title based on existing boundaries, Tex. Civ. Prac. & Rem. Code § 37.004(c) was inapplicable, and claim had to be brought as trespass-to-try-title action, not as declaratory judgment action)]. In those circumstances, declaratory relief to resolve a boundary dispute is available, as is an accompanying award of attorney's fees [see Tex. Civ. Prac. & Rem. Code § 37.009]. In any context other than boundary disputes, however, declaratory relief may not be sought as a method to obtain attorney's fees that would not be available under the trespass-to-try-title statutes [see Ch. 251, Trespass to Try Title; Ch. 280, Adjoining Landowners], and some other statutory basis for the fee claim must be present [see generally Ch. 22, Attorney's Fees].

[c] Rescission

The equitable remedy of rescission is the appropriate vehicle for a party who has been induced to execute and deliver a title document through fraud, mistake, incapacity, duress, or the like [see Ch. 52, Rescission, Ch. 254, Deeds and Conveyances]. Although successful prosecution of an action to rescind a document may have the effect of quieting or clearing title to the property (insofar as the title is clouded or affected by that document), it requires compliance with certain rules of law, such as a rule requiring the return of ally consideration received, and is subject to the four-year statute of limitation running from the date the complaining party knew or should have known that grounds to rescind existed [Tex. Civ. Prac. & Rem. Code § 16.051; see Ch. 72, Limitation of Actions]. On the other hand, there is no limitation

. period barring an action to quiet title because the cloud's existence is an ongoing wrong [see § 257.05[1]].

In a rescission action, damages may be awarded, and, at least when fraud is the ground for rescission, attorney's fees may be recovered from the opposing party [Maeberry v. Gayle, 955 S.W.2d 875, 881-882 (Tex. App.-Corpus Christi 1997, no writ); Tex. Bus. & Com. Code § 27.01(e)]. Damages are not recoverable in an equitable action to remove a cloud, absent joinder and proof of the claim of slander of title [see § 257.06[2]]; attorney's fees may be recoverable if the quiet title action can be brought under the Declaratory Judgments Act [see § 257.01[4]].

In some situations, it may be advisable to bring both an action for rescission and to quiet title. The plaintiff may have been unlawfully induced to execute some instrument that conveyed or encumbered all or part of the plaintiff's interest and eliminating that instrument may be a necessary step in establishing the plaintiff's right to invalidate the defendant's adverse claim.

(ReI. 97·5/2010 Pub.719)

§ 257.01[3][d]

SUIT TO QUIEf TITLE

257-12

[d]' Reformation

When a party to a title instrument contends that the document does not set out the true terms of the transaction, the party may seek the equitable remedy of reformation. On proof of the terms of the actual, intended agreement, coupled with proof that the written instrument is in error due to mutual mistake or a unilateral mistake accompanied by the adversary's inequitable conduct, the court's judgment may, in effect, rewrite the document to reflect the parties' intent [see Ch. 53, Reformation; Davis v. Grammer, 750 S.W.2d 766, 767-768 (Tex. 1988)]. Recording on the appropriate public records an attested copy of a judgment reforming a title document may be all that is required to dear or quiet the title to the property with regard to the specific mistake corrected by the reformation. But, if the correction elevates the plaintiff's title over an interest or right claimed by the defendant, the plaintiff should join the reformation plea with a suit to quiet title, seeking a declaration that the defendant's claim is invalid in view of the plaintiff's reformed title [see Alkas v. United Say. Ass'n of Texas, Inc., 672S,W.2d 852,858 (Tex. App.-Corpus Christi 1984, ref.

n.r.e.)]. ,

The four-year statute of limitation and the discovery rule ordinarily apply to a suit for reformation [see Tex. Civ. Prac. & Rem. Code § 16.051; Ch. 53, Reformation], unlike a suit to quiet title [see § 257.05[1]]. Damages and attorney's fees may be obtained, depending on either proof of fraudulent conduct [see Tex. Bus. & Com. Code § 27,01l or joinder of a suit to enforce a contract as reformed [see generally Tex. Civ. Prac. & Rem. Code § 38.001].

[e] Slander' of Title

The tort action known as slander of title is similar to a suit in equity to remove a cloud from the title and the two are often joined in a single action. An action for slander of title requires elements in addition to the hindrance to the plaintiff's interest [see § 257.1O-covenige of slander of title]. A slander of title petitioner must also plead and prove that the Cloud was placed on the title by the defendant acting "with malice" [see § 257.11[2][c]] and that it caused the plaintiff to lose a specific sale of the property [see § 257.11 [2][d]; Ellis v. Waldrop, 656·S.W.2d902, 905 (Tex. 1983)]. Unlike an equitable action to quiet title, an action for slander of title may result in an award of damages against the wrongdoer [pampell Interests v. Wolle, 797 S.W.2d 392, 395 (Tex. App.-Austin 1990, no writ); se~ § 257.13[1]].

[4] Using Declaratory Judgments Act for Action to Quiet Title [a] Interpretation of Declaratory Judgment Act

In the context of attempts to remove a cloud from the title to real estate, it appears that the Declaratory Judgments Act (DJA) may be used [Tex. Civ. Prac. & Rem. Code § 37.001 et seq.]. Of particular importance is the DJA's provision that the court, in any lawsuit brought under the DJA, may award reasonable and necessary attorney's fees as are equitable and just [Tex. Civ. Prac. & Rem. Code § 37.009]. No other statute or rule of law exists to authorize the recovery of attorney's fees by the petitioner in a suit to quiet title [Sadler v: Duvall, 815 S.W.2d 285, 293-294 (Tex. App.-Texarkana 1991, den.)]. Thus, if the action can be brought as one for declaratory relief, the

(ReI. 97·5/2010 Pub.719)

257-13

LEGAL BACKGROUND

§ 257.01[4][b]

recovery of attorney's fees becomes a possibility, subject to the trial court's discretion.

The DJAbffers a procedure for the judicial 'determination of, among other things not pertinent here, "any question of construction or validity" arising under an instrument Or contract.. Of particular note is the statute's provision for use of the procedure by (1) a .person "interested" under a deed or other writing' constituting a contract or (2) a personwhoserights or other legal relations areraffected'tby a contract [Tex. Civ, Prac. & Rem. Code §.37.004(a)]. Further, the DJA expressly states that this enumeration does not limit or restrict the .general powers conferred by the act to declare rights, status.orother.legal relations [Tex. Civ, Prac, & Rem. Code.§ 37.003(c)].Accordingly, the DJA .should be .liberally construed and "pot hedged about by technicalities" [Anderson v .. McRae, 495 S,W.2d 351,356 (Civ. App.-Texarkana 1973, no writ) (citing Cobb vHarrington, 144Tex. 360, 190 S.W.2d 709, 714 (1945»; see Ch,45, Declaratory Reliefi. , '

Accordingly; a suit to ,'remove a cloud from the title to real property appears to fall within the Iiteral provisions of the .DJA if the suit questions the construction or validity ora deed, contract, or 'other document affecting title [Duncan Land & Exploration, Inc .• v: Littlepage, 984 S.W:2d'318, 333-334 (Tex. App.-FortWorth 1998, pet. denied) (termination of oil lease: based on. quiet title and slander of title claims may be brought

as declaratory.judgment.action); Anderson v. McRae, 495 S:W2d' 351, 356 (Civ, App-v-Texarkana 1973, no writ) (declaratory action to remove cloud and, declare rights involving easementj]. This 'position gainssupport from some cases in which a declaratory judgmeat-acrlonwas used to remove a cloud from the title to' property with no apparent argument from theropposingparty-that theDfA was inapplicable [see, e.g., Indus, Structure & Fabrication; md.v. Arrowhead-Indus. Water, Inc., 888S;W.2d 840, 844--845 (Tex. App.c=Houston {I st Dist.] 1994,; no writ) ; Exploracion.De La Estrella

v. Birdwell, 858 S.W.2d 549,551 (Tex. App.-Eastland 1993, no writ); Tarrant Bank

v. Miller, ,83~ S.W.2d,,666,.666 (Tex; App.c-Easrland 1992, den.)].

[hi .,; Eft'ect!of'AvailabilityofOtherRemedy on Award of Attorney's ""Fees·'

, ,:, 'i, - ,-). t_' , '. . - :-

As diScus.'~ed'fu § 257.0f[4J[a], a quiet title .action that turns on the validity or

cdrtstructiqnof a deed; contract; or diller document affecting title is often broughtas a de¢l&atdry jUdg1Jle~r adion: The propriety of declaratory relief, however.Jras been placed iflLc6n'iroversy;bythe' decision of the 'Texas Supreme Court in Martin v. Amerman '[Mattm~. Amerril$;' 133 ~.W:3d 262, 267-268 (TeX::'2004)). which held that'a trespass~to~trY-titie action .is' 'the exclusive method of determining title to real

,j: " ""' "_" ·':oi:'·"-'·;· - -, ._ ." /. ,

property. so that a party may:ndt'See}c declaratoryreliefin a trespass-to-try-title action.

Th_o~gh'that decisipn" was 'later limited' and, partially overruled by legislation, ded*a.toryreliefan~ art accompanyingaward ofattorney's fees is available under that statute' only when the "sole issue'[as to tide is the boundary line between adjoining propeiti~s [Tex. Civ. Prac.' & Rein: Code §37.004(c); see Ch. 251, Trespass to Try T~W~;'Ch. :280, Adjoining Ui~lYners].Iri'oth¢r contexts, the decision in Martin will continue to' govern the' propriety of declaratory relief and accompanying awards of attorney's fee awards in trespass-to-try-title actions [Lile v. Smith, 291 S.W.3d 75,78 (Tex. App.c--Iexarkana 2009, no pet.) (when there was no real controversy over

(ReI. 98·8/2010 Pub,719)

)

SUIT TO Qumr TITLE'

257-14

boundary: Iine, and parties simply disputed-who owned title based on existing bmmd~ies,Tex. Civ, Prac. & Rem..Code § 37,OO4(c) was inapplicable, and claim had tobe, ,b,I'Ollght as trespass-to-try-tltle action, npt asdeclaratory judgment actionj],

The decisioninMa'rtin~ however, focused on the exclusivity of the statutoryremedy of a tn!Spas;s~tO'-try~title'acti6il:Asliitjto quiet title/ortilie other hand; is an equitable remedy that is not-gevernedexclusivelyby aspecificstatutory proeedure.-Underthis limiting construction of Martin; declaratory relief-and an awardof attorney's fees should be available in a quiet title action. For example, there is authority decided after Martihthat a suit t8 removeaprohibiied-lien 'from homestead property may' be brought as'a declaratory jlfdgmell't action, 'and attorney'sfeesmay be awarded,' even-though an incidental, effectofthe declaration is to quiet, title in the 'homestead 'owner [Florey v, Estate -of McC6h1lell, 212 S.W:3d '439, 448~9' (Tex. App-c-Austin 2006;, pet. denied); see Fairfield Fin. Group, Inc. v. Synnott, 300 S.W.3d316, 323 ; (Tex. App.-,.,,-AustiJil2Q.09,;llopet.) };,' That .authority, however.focused on the-incidental. effect of the declaratory relief sought.andthe court specifically stated that if .the true aim-of the.Isuit.is to remove a cloud-on title, declaratory- relief.and.attomey's fees are not available [see Florey.wBstate of Mc9onnell, 212S.W.3d 439,448 (Tex. App.,..,..,.,Austin 2006"petdenied)i("attorney"s feesare.net.recoverable ina suit.to quiet title, 'as that: action it'S. traditionally' known")] . Under this-view ~ when the rtrue- intent of thesuitis to clear':titl€\'a quiet title action cannot be recharacterizedas adeclaratory.judgmens action in order-to obtain attorney's: fees- {Elijah' Ragira/Vip Lodging Group, Inc, v •. Vip Lodging.·9r.op<p,inc., 301S·.W.3clL 147,.757 (Tex~,·;App."4'"EI Pas02009~.pet.filed) (thoughpleadings-asked for declaratory.judgment, suit.aetually: seughtito determine', parties 'rights to (real properties; removal, of cloud.ofaitle, and to'quiet title to ttactsjD. dispute; so; suit-was .quiet. title act jon and.trial.court's -award of attorney's fees Was

hnpfoper.)].' ' , ' , i ,- . /; , . ' .; _',

Several cases thkt 'pred~teV Mlirtin; tecogrifz~ the:proprietY "ofdetlaratory relief in quiettitle,\,\ctio.ns'[Qunc~ ltand,_:~;E;~plpr~P.qnj"Inc;iy,,,,qttlepage,,984, S.\Vi2d 318, 333-334 (Tex. App.-Fort Worth 1998, pet. denied) (termination of oil lease based on qJ.}ieq~t~an5t(~l'Wd~r.?f, tit}RcJ~~. m~x, be R~ought, (!.S declara,toryjp~~!)1ent<j.Cti<?r); And~r~ v:McRae,.49~, S.W.+d)5tl~6(qv. App.~Tt1xar}(fUla 1973., no wpt)

_",- '_;, '; ',_,; _',', -~~' -.~ j/" . .'.: "_ ~;!_i-J .• ,--:~_,;, I .' •. __ .J-} ',".~ ~.l'. ~.; !' .. ' ,;,' _.' __ ~,\<'.

(~y?l<lf~fPlY a~t~q~ t9J~,p1<?v~c~R~~,~d ge.~.larf,r~~t~ m~~l~MB~~~~W~~t)l·lP,rg~ef: cases" aJjeclar~tory jltq~ent ~,cti~?~ was !US~9,;~9,-~empye~:c1owl~fr9rp,~he ti~l~ .to

, ,_ " . I < _ ~ • ,_ .~ I"" '." ", _ - _ • • ' '~ ,- '_-. '. _, " , , ,,, _- - . _, _, ,- ' .. ' .'." ,_ !, '!

property r with : nO,ppparent ,~~ment ,frolll; the .opposing ,pagy that ,gec'l~atory relief

was unaYliilable [sef" :'~'$'? IrlqHs.,S~cwre" 8?Fabqcilt~ql!:" l~~.,y Arrowb,~a4Ipdus. Water,Inc., 888S.W.2d'840, ,844-&~5 (Tex. Apl';THo~~ion [isiDist.] 1~94, nQwpt); E~p~o.racionI>e La-Estrella vBirdwell, 858 S.W.24, 549~,~51 ,('tex.App.~Eastland 1'99:ti19. 'Vlit);J';arrap.t Bank v. :Mi~ei, ,a~3s.w.i( 6661 669 • ('rex.1}pp'7~().$ti~~ 19~f' deJ:Ln,,'.:Th~re, isc,smrrfll'Y' ~¥th9rity:, however,' tha,t precludes a decl~at0o/ judgment actioJ;l if the suit was in reality one.to. quie; title [Southwest Guar, Trust <:0.. v.Hardy ~9. l3.4 Joint'V~pture, 98LSrW.2(951, 9$7. (T~x. App.i-Houston [l~tDist.] lQ98, pet: d~nie~D (litt~rnets fees anddeclaratoryjudgment not available iii quiet t1f.1e

action to cancel deed of " .' " , '

, < f ., . 'I' t .-" I:' .,'" .... ,

.', " \,', ,'; , (Tea continuedon page 257-1f)

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257-15

LEGAL BACKGROUND

§ 257.02[2][a] .

trust; citing Barfield v. Holland, 844 S.W.2d 759, 771 (Tex. App.-Tyler 1992, den.)].

§ 257.02 Elements of Cause of Action to Quiet Title [l]-Generally Stated

A litigant who seeks to remove a cloud from a title to property must plead and prove three basic elements. The petitioner must show (1) an interest in specific property, (2) that title to the property is affected by a claim by the defendant, and (3) that the claim, although facially valid, is invalid or unenforceable [see, e.g., Sadler v. Duvall, 815 S.W.2d 285, 293 n.2 (Tex. App.- Texarkana 1991, den.), La Fleaur v. Kinard, 161 S.W.2d 144, 147 (Civ. App.-Beaumont 1942, ref. w.o.m.)]. The invalidity or unenforceability of the adverse claim must be pleaded and proved in accordance with the substantive law theory employed for attacking the claim [see [2][c], below].

For a guide to drafting the plaintiff's petition to quiet title, see § 257.50[2].

A form of the petition is in § 257.100[2]'

[2]-Specific Elements

[a]-Petitioner's Interest in Specific Property

A plaintiff who seeks to quiet title must plead and prove an ownership interest in a specific property [see Bell v. Ott, 606 S.W.2d 942, 952-953 (Civ. App.-Waco 1980, ref. n.r.e.)]. That does not mean, however, that the petitioner must cifer evidence tracing the title back to the sovereign or a source in common with'tte defendant, as is true in trespass to try title actions, unless that proof is necessary to establish that the defendant's claim is invalid or unenforceable because it is inferior to the plaintiffs superior title [Katz v. Rodriguez, 563 S.W.2d 627, 629-630 (Civ. App.-Corpus Christi 1977, ref. n.r.e.)]. Ordinarily, offering proof of record title to an interest in the property is sufficient [Exploracion De La Estrella v. Birdwell, 858 S.W.2d 549,553 (Tex. App.~EI Paso 1993, no writ)]. In doing so, the plaintiff may have to resort to an additional remedy, such as reformation of a document in the chain of title [see Alkas v. United Sav. Ass'n of Texas, Inc., 672 S.W.2d 852, 858 (Tex. App.-Corpus Christi 1984, ref. n.r.e.)-purchaser at foreclosure sale, suing to remove cloud cast by judgment liens, relied on reformation of deed of trust to establish inception of title prior to perfection of liens, thereby proving their unenforceability] .

The petitioner's interest need not be a fee simple interest [Dalton v. Davis, 1 S.W.2d 571, 572 (Comm. App. 1928, holding approved)-claim of interest of some kind is prerequisite to relief] nor must the petitioner be in actual possession of the property [Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783,

(Re1.74-8104 Pub.719)

- ......

\.

>

§ 257.02[2][b]

SUIT TO QUIET TITLE

257-16

.·1

785 (1941)-lessor's suit to declare oil lease terminated). For example, an interest in minerals in place created by the typical oil and gas lease is sufficient [see Amarillo Oil Co. v. Energy-Agri Prods., 794 S.W.2d 20, 22 (Tex. 1990)lessee's suit to quiet title to gas in specific formation covered by lease; In re Stroud Oil Properties, Inc., llO S.W.3d 18, 25 (Tex. App.-Waco 2002, no pet.)-oil company that possessed mineral interest could bring quiet title action against development company to remove cloud on title to minerals). An equitable interest, such as that created by an enforceable contract to purchase the property, is an interest that can be protected by a suit to quiet title [Henry v. Mr. M Convenience Stores, Inc., 543 S.W.2d 393,396 (Civ. App.-Houston [14th Dist.] 1976, ref. n.r.e.)].

When the property in issue is real estate, the pleading should set out the legal description of the land, preferably with reference to the place where the key title document is recorded. The description may be in a document attached to and referenced by the pleading [T.R.C.P. 59; Sanchez v. Carey, 409 S.W.2d 458, 460 (Civ. App.-Corpus Christi 1966, no writ)-pleading that referred to attached photocopy of engineer's plat sufficiently identified property].

[b ]-Existence of Adverse Claim

The pleadings and proof in an action to quiet title must allege that the defendant is asserting some type of claim that affects the title to the property in question. The petition should rel/llr to the specific document or documents clouding the title, and every document to be declared invalid or unenforceable should be introduced into evidence [Bibby v. Preston, 555 S.W.2d 898, 902 (Civ. App.-Tyler 1977, no writ)]. An offending document need not have been recorded on the public records; its existence and facial validity is all that is required to form the basis of a suit to remove it as a cloud on the title [In re Stroud Oil Properties, Ine., 110 S.W.3d 18, 25-27 (Tex. App.-Waco 2002, no pet.j=-joint development agreement between oil-and-gas lessee and development company could create cloud on title even though development company had not filed agreement in county records and had never claimed interest in minerals; Texan Dev. Co. v. Hodges, 237 S.W.2d 436, 439 (Civ. App.Amarillo 1951, no writ)-document need not be filed of record to create cloud on title].

The adverse claim clouding the title may be one for ownership of all or some lesser interest in the property, including a claim for a lien or other encumbrance. The proof must show that the outstanding claim appears on its face to be valid and that if it was valid, it would affect or impair the plaintiffs title or interest in the property [Best Inv. Co. v. Parkhill, 429 S.W.2d 531,534 (Civ. App.-Corpus Christi 1968, dis. w.o.j.)-instrument void on its face is not cloud on title; see In re Stroud Oil Properties, Inc., 110 S.W.3d 18, 27-28 (Tex. App.-Waco 2002, no pet.)-joint development agreement between oil and

(ReI.74-8/04 Pub.719)

I

257-17

LEGAL BACKGROUND

§ 257.02[2][c]

',-. I

gas lessee and development company that contemplated potential forfeiture of minerals on breach of agreement constituted adverse claim and encumbrance on lessee's title that could form basis of quiet title action; see Tarrant Bank v. Miller, 833 S.W.2d 666, 667-668 (Tex. App.-Eastland 1992, den.)abstract of judgment was cloud on title notwithstanding unenforceability of judgment lien on homestead property].

[c]-Invalidity or Unenforceability of Adverse Claim

An adverse claim, to constitute a cloud on the title removable by the court, must be one that is valid on its face but is proved by extrinsic evidence to be invalid or unenforceable [Sadler v. Duvall, 815 S.W.2d 285, 283 n.2 (Tex. App.-Texarkana 1991, den.), Best Inv. Co. v. Parkhill, 429 S.W.2d 531, 534 (Civ. App.-Corpus Christi 1968, dis. w.o.j.l]. Thus, the petitioner's pleading and proof in a suit to quiet title must show some fatal flaw or fallacy that nullifies the claim's apparent affect on the property's title. To do so, the petitioner relies on the law governing the particular transaction alleged to have created the cloud and construct the pleadings and proof accordingly. To illustrate this interplay of the controlling law, consider the following examples:

• The statutory scheme for a former property owner to recover excess funds received by a taxing authority following the sale of the property for non-payment of taxes governed whether the former owner's claim toliPe funds created a cloud on the title of the new owner [Syntax, Inc. v. Hall,899, S.W.2d 189, 190 (Tex. 1995)claim held valid and quiet title suit was unsuccessful].

• The validity of a claim to gas extracted from a certain field depended on the legal definition of "casinghead gas" as that term is used in oil and gas law [Amarillo Oil Co. v. Energy-Agri Prods., 794 S.W.2d 20, 24-25 (Tex. 1990)].

• Compliance with and interpretation of curative statutes controlled the outcome of an effort to invalidate a claim to a mineral interest [Jones v. P.A.W.N. Enterprises, 988 S.W.2d 812, 815-818 (Tex. App.-Amarillo 1999, pet. denied)].

• The fact that the defendant's judgment lien could not be enforced against the plaintiffs property required pleading and proof that the property was the plaintiffs homestead and the underlying debt was not one excepted from the statute exempting the homestead from forced sale for nonpayment of debts [see Tarrant Bank v. Miller, 833 S.W.2d 666, 667-668 (Tex. App.-Eastland 1992, den.)].

• The rules oflaw governing a subsequent lien claimant's susceptibility to reformation of a prior deed of trust lien controlled the outcome of a suit to quiet title by the purchaser under the deed

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§ 257.03[1]

SUIT TO QUIET TITLE

257-18

of trust. Under those rules, with the plaintiff entitled to reform the deed of trust to include property erroneously omitted from the description, the plaintiff showed a superior title that could not be encumbered by the judgment liens filed against the omitted property [Alkas v. United Sav. Ass'n of Texas, Inc., 672 S.W.2d 852, 858 (Tex. App.-Corpus Christi 1984, ref. n.r.e.)].

• The law requiring a certain time of possession before any resale of land under a contract for a deed from the Veteran's Land Board was held to determine the validity of a purchaser'S subsequent attempt to sell an interest in the property before the time expired [Murren v. Foster, 674 S.W.2d 406, 410 (Tex. App.-Amarillo 1984, no wnti].

The unenforceability of the defendant's claim may depend on the superiority of the plaintiffs claim. For example, a prior unrecorded easement is not enforceable against a purchaser of the property who is not aware of the easement's existence. The purchaser could prevail in a suit to remove the easement claim as a cloud on the title if the purchaser proved lack of actual or constructive notice of the easement [see Mann v. Old Republic Nat'l Title Ins. Co., 975 S.W.2d 347,350 (Tex. App.-Houston [14th Dist.] 1998, no pet.), see also ~ey v. Medley, 683 S.W.2d 877, 879 (Tex. App.-Corpus Christi 1984, no writ)-burden of proof is on person claiming bond fide purchaser status]. Similarly, a plaintiffs title obtained through foreclosure of a deed of trust was found to be superior to a deed dated before the foreclosure but Signed only by the grantee [Sanchez v. Telles, 960 S.W.2d 762, 767 (Tex. App.-EI Paso 1997,pet. denied)-grantee was not bona fide purchaser because unSigned deed was void and not conveyance].

§ 257.03 Parties [1 ]-Plaintiffs

Standing to bring an action to quiet title rests with any party who owns any interest in the property involved [Bell v. Ott, 606 S.W.2d 942,953 (Civ. App.Waco 1980, ref. n.r.e.)-party who owned no interest but "intended" to buy an interest if title could be cleared was not entitled to judgment quieting title; see § 257.02[2][a]]. An equitable interest arising from a contract to purchase the property is sufficient to create standing to sue to remove a cloud [Henry v. Mr. M Convenience Stores, Inc., 543 S.W.2d 393,396 (Civ. App.-Houston [14th Dist.] 1976, ref. n.r.e.), Ojeda v. Ojeda, 461 S.W.2d 487, 488 (Civ. App.Austin 1970, ref. n.r.e.)-equitable title by performance under oral contract to purchase].

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I

25749

LEGAL BACKGROUND

§ 257.04[1] [a]

[2] Defendants

The obvious defendants in a suit to quiet title are, parties who claim an interest or right in the property by reason of the alleged cloud on the title [see Tex. R. Civ. P. 39 (compulsory joinder of party rule; Tex. Civ. Prac. & Rem. Code §" 37.006(a)-Dedaratory Judgments Act]. Conversely, a person who 'claims no inter-est in the property should not be joined even if the personwas a party to the document orother matter alleged to constitute the offending cloud [Outlaw v. Bowen, 285 S.W.2d 280,284 (CiV. App.c--Amarillc 1955, ref. n.r.e.) (prior grantee in mineral deed; under whom plaintiff claimed title, was' not required to be joined as party in suit

toinvalidate forfeiture clause inmineral deedj].' ,

• '. I

lthas been held unnecessaryto join parties who hold nonpossessory interests that

would riot be affected by the judgmentsought; for instance, the holder ,of~ mortgage on the property in question [see, e.g., Williams v. Ballard, 722 S.W.2d '9, 11 (Tex. App.-Dallas 1986, no writ)). The basis for the holding in Williams v. Baliard appears to be not that the missing party Iackedsufficient interest for compulsory joinder, but thatbecause-the party's absence from thelitigation could only harm the plaintiff, the defendant could notobjectto the nonjoiriderTWilliams v. Ballard, 722 S'.W2d 9; 11 (Tex. App.-Dallas 1986, no writ)). On the other hand, if the cloud to be removed is on real property and is claimed by the estate of a decedent, the heirs of the decedent should be made parties defendant along with any executor or administrator of the estate [Tex.Civ. Prac. & Relli. Code' § 17.002; Love v. Woerndell, 737 s~w.2il' 50, 51-52 (Tex. App.---Ban Antonio 1987, den.) (sta~teJsmandatorysuchthat actioiI to remove"canc~llation deed" executed by person who 'died' before ~uit was filed had to, be brought: against person's heirs and, executor of person's estate);se~, § 257.04[2]-venue of action againstestate of decedent, minor, or incompetent].

• :' '. , .' • " ."' ._ ~. , ! _-,

§257.04 ' Jurisdiction and Venue [1] Jurisdiction ;'-

[a] Power to Adjudicate Title.to Texas Real Estate

A Texas court is empowered to adjudicate title to Texas property and affect-the rights of the parties to Texas property even if-the defendant is a nonresident [see Shaffer v. Heitner, 433 U.S. 186, 207"':'208, 97 S. Ct. 2569, 53_L. Ed. 2d 683 (1977); see also K.D.F. v..Rex, 878 S.W.2d '589, 591~592 (Tex. 1994); Tex. Civ. Prac. & Rem. Code § 17.003).' Moreover, jurisdiction can.be exercised to .quiet title to Texas real estate against a transient, a person whose-residence is unlrnown [Tex. Civ. Prac. & Rem. Codef ,17.003; Tex. R. Civ. P. 810], or an unknown owner or claimant (as, for example, a person claiming an interest in land conveyed to a trustee without disclosing the name of the owner of the beneficial interest) [Tex. Civ. Prac. & Rem. Code § 17.005]. Procedures are available for service of citation in such cases [Tex. R. Civ. P. 811, 108, 114-116; see Ch. 31, Service on Residents, Ch. 32, Personal Jurisdiction and Service Nonresidents).

Note that for the court to render any judgment requiring a defendant to perform any act or pay money, as when the quiet title action is combined with a suit for damages for slander of title, a stronger showing of the relationship among the defendant, the

(Rei. 94-812009 Pub,719)

..... ..._ .. ~--

", <,

-c.,

§257i04[1][b]

SUIT TO QUIET liTLE

257-20

forum, and the litigation may be required [see Ch. 60, Special Appearance]. ,

Subject Mattei- Jurfsdlction

, '

, ' Ordinarily; a suit 'to quiet title is filed in ~ district court, the Texas trial court. of general subject matter jurisdiction TIex. Const. art. 5, §8; Tex. Gov't Code §§ 24.067, 24.008; se,eTex. Gov't Code §§ 26.043, 27 .031 (preventing jurisdiction of land title suits .in constitutional county courts. and justice courtsj]. But in some

.,' , - ", .:;. .... -.

counties, a statutory R9unty court may exist. that bas the jurisdictional power to hear

suits involving realestate titles [see, e.g., Tex. Gov't Code § 25.1032 (Harris County Civil Courtsj]. Moreover, if the 'litigation is by or against the administrator or executor of a decedent's estate or the guardian of the estate of a minor or incompetent, a court with probate jurisdiction: handling the estate has jurisdiction to 'hear the suit to .. quiet title as a matter "appertaining to" the estate [Tex. Prob.Code' §§ 5A,607; see aZ;o th.!

2, Jurisdiction'of Texas Co~rts].· ,

, I .1; r" ...

If the, action seeks to quiet title to personal property, the value ofthe property is consideredas t~e;:amount in controversy. The action must be filed in a court having subject matter jurisdiction.over that amount of money [see.Ch, 2, Jurisdiction of Texas

Courts]. 'i

[2] Venue

11 •

The venue of a .suit to quiet title depends .on whether the property in question is real

, '., ' ", -,_ .. ' ", -. •. "', ~ _..l - _;. '- ." _ ' ' ,

or personal property .. If the property is real .estate, venuefor a quiet title actiori is

mandatcry in the coun~y in which all or part of.the realproperty is located' [Tex. eiv. Prac."&Rem. Code § i'5.011; Madera ProductionCo, v. Atlantic RlGhfield Co~'~: 107

.. - - ,r' ,- .,.... ' __ ,", . , ' 'I'

S.W.3d 652, 656-658 (l'ex:App:- rexarkana,.2003, pet: denied) (suit' for damages on

contract relating to mineral interests required determination of ownership and title to those interests, and so was subject to mandatory venue provisionjjiA declaratory judgment action that effectively seeks to remove an encumbrance is in essence a suit to quiet title, and is therefore subject to the mandatory venue provision [In re Applied Chern. Magnesias Corp., '206 8,W:3d 114, 11~n9 (Tex. ,2006) (declaratory judgment action was-indirect means of quieting title todisputed mineral estate, and-was-therefore subject to.mandatoryvenue under Tex. Csv, Prac. & Rem: Code § 15.011); Airvantage, L.L.C. v. TBANProperties,# I,LT.D., 269 S.W.3d 254, 258:.;_260 (Tex. App:-Dallas 2008,: no pet.) (suit seeking declaratory judgment removing lis pendens was one to remove encumbrance and quiet title to property; and was therefore within mandatory venue statute); Northern Natural Gas v. Chis os Joint Yen. I, 142 S.W.3d 447,452-453

, (Text-continued on page257~21)

(ReI. 94-812009 Pub,719)

257·21

LEGAL BACKGROUND

§257.05[1]

(Tex. App.-ElPaso 2004, no pet.) (declaratory judgment action that sought to remove encumbrance from leasehold interest was subject to mandatory venue)]. If the plaintiff joins two or more claims arising from the same transaction or occurrence, and one of those claims is a claim to quiet title or .other claim subject to the real property mandatory venue provision, the suit must be brought in the county required. by the mandatory venue provision [Tex. Civ. Prac. & Rem. Code § 15.004; see Caldwell Nat'l Bank v. O'Neil, 785 S.W.2d 840, 843 (Tex. App.-El Paso 1990, den.) (suit seeking relief in addition to removing cloud from title does not preclude.application of Tex. Civ.Prac, & Rem. Code § 15.011, as long as dominant purpose of suit is to quiet title)].

If the property is personalty, the general venue rule applies: the suit maybe brought in the county where all or a substantial part of the events or omissions giving rise to the cause of action occurred, in the county of the defendant's residence at the time the cause of action accrued if the defendant is a natural person or, if the defendant is not a natural person, in the county of defendant's principal office in Texasj'Iex. Civ. Prac. & Rem. Code § l5:002(a); see Ch. 61, Venue].

In determining the prope~ venue' of any action, the court must base its decision 011' the facts existing at the time the cause of action accrued [Tex. Civ. Prac. & Rem.' Code § 15.006]. Thus, venue of a quiet title action is determined as of the time the cloud on the title was created, and the defendant may not defeat the application of the mandatory venue provision by disclaiming ally interest in the real property [in re Stroud Oil Properties, Inc., 110 S.W.3d 18, 25-26 (Tex. App.-Waco 2002, ang'. proceeding) (mandamus to set aside venue transfer order granted because plaintiff brought quiet title action in venue mandated by Tex. Civ. Prac. & Rem. Code §, 15.011; disclaimer 'of defendant of any title' may have mooted quiet title claim, but was irrelevant to initial venue determination)]. Similarly, the application of the mandatory venue provision turns on the rights asserted and the relief sought in' the petition, not how the cause of' action is described by the parties, so that a declaratory judgment action that effectively seeks relief within the mandatory venue provision is required to be brought in the county where the real estate is located [Northern Natural Gas v. Chisos Joint Ven. I, 142 S.W.3d 447, 452-453 (Tex. App.-El Paso 2004, no pet.) (declaratory relief sought would remove encumbrance from leasehold interesn]. Similarly, an action asserting a claim of fraud in procuring a deed of trust and seeking a permanent injunction against foreclosure has the practical effect of cancellation and removal of the deed of trust as an encumbranceon the title to the property, therefore bringing the suit within the mandatory venue provision [In re City Nat'l Bank, 257 S.W.3d, 452,454-455 (Tex. App.-Tyler '2008, orig. proceedingj].

, .!'

§257.05 Defensive Matters

[1] Limitations

Ordinarily; an action to quiet title to' land will never be time-barred because the injury to the property's title is continuous, so that the general four-year statute of limitations [see Tex. Civ.Prac. & Rem. Code § ,16.051J, would start anew each day the offending cloud on the title exists [Watson v. Rochririll, 155 S.W.2d783, 785, 137

(ReI. 92-212009 Pub,719)

<,

§ 257.05[1]

SUIT TO QUIET TInE

257·22

Tex. 565 (1941)]. Examination of the plaintiff's theory of action, however, may reveal that the quiet title action depends on the successful assertion of a request to reform or rescind a title document [see § 257.01 [3][c] , [d] (differences between theories of action)]. If that is the case, the residual four-year statute of limitations may be applicable [Tex. Civ. Prac. & Rem. Code § 16.051; see § 257.110[2] (form of answer pleading limitations)], but does not begin to run until the cause of action for reformation or rescission was discovered or, by reasonable diligence, should have been discovered [Brown v. Havard, 593 S.W.2d 939, 944 (Tex. 1980); Lathem v. Richey, 772 S.W.2d 249, 253 (Tex. App.-Dallas 1989, den.); see Ch. 52, Rescission, Ch. 53, Reformation]. Similarly, if the plaintiff's theory of the case alleges fraud with respect to ,a title document, the four-year statute of limitations applicable to fraud may bar quiet title relief In one case, for example, the court of appeals held that a fraud claim based on alleged errors in a deed conveying an easement was barred by limitations; however, the court of appeals nevertheless ordered removal of the easement based on the plaintiff's alternative quiet title theory, holding that no statute of limitations barred the equitable action. The Texas Supreme Court reversed as to the latter disposition, holding that because the alleged fraud merely made the deed voidable, not void, the plaintiffwas obliged to bring the fraud action within the four-year limitations period. Having failed to do so, the plaintiff could not recast the claim as one to quiet title [Ford v.Exxon Mobil, 235 S.W.3d 615, 618-619 (Tex. 2007) (once limitations has expired for setting aside deed for fraud, limitations bar cannot be evaded by asserting alternative.claim in equity)].

Texas courts have also recognized a blanket exception to the four-year statute of limitation for reformation claims brought by grantors who remain in possession of land that was inadvertently included in a deed by mutual mistake, as long as no rights of bona fide purchasers have intervened [Sullivan v. Barnett, 471 S.W.2d 39, 47 (Tex. 1971}; Henderson v. Henderson, 694 S.W.2d 31, 36 (Tex. App.-Corpus Christi 1985, ref. n.r.e.)]. If the suit alleges a right of recovery of title or an interest in property due to a mere technical defect in an instrument filed with the country clerk, the limitations period. depends on when the instrument was filed. For instruments filed before Sept. 1, 2007, the action must be brought within four years of the filing; however, for instruments filed on or after that date, the action must be brought within two years of the filing [Tex. Civ.Prac. & Rem. Code § 16.033(a) (as amended by Acts 2007, 80th Leg., ch. 819, § 2)].

.. A limitation defense may also come into play if the defendant is claiming adverse possession-that is, title by limitation. In other words, when the plaintiff seeks to quiet title by removing a cloud cast by the defendant's ownership and possession claim [see, e.g., Dickson v. Dickson, 993 S.W.2d 735, 736 (Tex. App.-Houston [14th Dist.] 1999, no pet.)], the suit must be filed before the defendant perfects title by adverse possession [Carr v. City of Cisco, 161 S.W.3d 522, 524 (Tex. App.-Eastland 2004, pet. denied), cert.denied, 544 U.S. 921 (2005) (plaintiff's claim to quiet title to strip of land on lakefront was barred when defendant had adversely possessed and used land for more than 10 years under Tex. Civ. Prac. & Rem. Code § 16.026(a)); see Stone v. Brown; 621 S.W.2d 182, 183 (Tex. App=-Texarkana 1981, ref. n.r.e.) (amended

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l

257-22.1

LEGAL BACKGROUND

§ 257.05[2]

pleading of title to tract of land covered by affidavit of adverse possession not subject to plea of limitation); see generally Ch. 250, Adverse Possession].

Laches, a defense similar to limitations, bars equitable relief. Laches, in legal significance, is inexcusable delay in asserting an equitable right resulting in injury to an opposing party. Thus, to apply the defense of laches in an action to quiet title, the circumstances must show some harm or inequity the defendant suffered because of the delay. For example, laches was held inapplicable to a suit to remove a cloud on title and to invalidate a mineral deed, notwithstanding a delay of more than 25 years after the plaintiff took title to the property expressly subject to the mineral deed. The court of appeals reasoned that no one ever attempted to take possession of the minerals until the defendant installed an oil rig on the property; and, promptly after that, the plaintiff filed suit [Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387, 391 (Tex. App.-Houston [1st Dist.] 1982, ref. n.r.e.)]. Though laches is similar to limitations, it is a separate equitable affirmative defense that must be specifically pleaded [see Tex. R. Civ. P. 94], and raising the issue of limitations is not sufficient to also raise laches [Exxon Mobil Chem. Co. v. Ford, .187 S.W.3d 154, 160 n.7 (Tex. App.-Beaumont 2006), rev'd on other grounds, 235 S.W.3d 615 (Tex. 2007) (because defendant raised limitations defense only, not laches, court would not consider whether laches might bar equitable claim to quiet title in plaintiff)]. However, if legal relief is precluded by the expiration of the statute of limitations, the plaintiff may not obtain the same relief by recasting the claim as one in equity to quiet title [Ford v. Exxon Mobil, 235 S.W.3d 615, 618-619 (Tex. 2007) (once limitations has expired for setting aside deed for fraud, limitations bar cannot be evaded by asserting alternative quiet title claim in equity)].

[2] Other Affirmative Defenses

The availability of affirmative defenses in a suit to quiet title usually depends on the legal theory underlying the plaintiff's challenge to the validity or enforceability of the claim alleged to create a cloud on the plaintiff's title [see § 257.02[2][c]]. For example, in an action to remove a cloud created by an oil lease claimed to have been terminated by cessation of operations, the

(Text continued on page 257-23)

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._' ..... , '_

257-23

LEGAL BACKGROUND

§ 257.05[4][b]

defendant asserted estoppel. Under the controlling law, if it could be established that the plaintiff repudiated the lease while it was in existence, the plaintiff would have been estopped from claiming the forfeiture based on the defendant's failure to conduct operations to maintain the lease's effectiveness [Exploracion De La Estrella v. Birdwell, 858 S.W.2d 549, 554-555 (Tex. App.Eastland 1993, no writ)].

[3]-Request for Award of Attorney's Fees for Successful Defense

The defendant may concede the point that the Declaratory Judgments Act is a proper vehicle for seeking a decree quieting title to property [see §§ 257.01[4], 257.51] and, by the authority of the DJA, invoke the trial judge'S discretion to award attorney's fees for a successful defense of the litigation [City of Holliday v. Wood, 914 S.W.2d 175,178 (Tex. App.-Fort Worth 1995, no writ)]. To do so, the defendant's answer should request recovery of reasonable and necessary attorney's fees for the time spent in the defense of the quiet title action [see Fitzgerald v. Antoine Nat'l Bank, 980 S.W.2d 228, 232-235 (Tex. App.-Houston [14th Dist.] 1998, no pet.), see § 257.110[2]-form of answer].

[4]-CountercIaim for Afflrmative Relief [a]~uieting or Vesting of Title in Defendant

A defendant may decide to counterclaim to establish the validity of the defendant's own claim to the property interest in question [T.R.C.P. 97; see Ch. 71, Cross-Claim and Counterclaim]' The counterclaim may take the form of a suit in trespass to try title when the defendant claims a possessory interest and may include a request for other remedies such as reformation or rescission. By a quiet title counterclaim, the defendant undertakes the burden to prove its own interest in the property and the invalidity or unenforceability of the right asserted by the plaintiff [see § 257.02[1]; see also Dittmar v. Alamo Nat'l Co., 132 Tex. 44, 118 S.W.2d 298, 299-301 (1938)]. If the defendant is successful in the proof, the judgment can have the effect of quieting title to the defendant's claim [see White v. Cooksey, 253 S.W. 548, 549 (Civ. App.Beaumont 1923, dis. w.o.j.)-requiring pleading for affirmative relief before court could quiet title in defendant].

[b ]....;_CJaim for Improvements

If a defendant's claim was possessory and the defendant made good faith improvements, the defendant may counterclaim for recovery of the fair value of the improvements [see Eubank v. Twin Mountain Oil Corp., 406 S.W.2d 789, 792 (Civ. App.-Eastland 1966, ref. n.r.e.)-suit to remove mineral lease as cloud on title; defendant was allowed recovery of value of removable casing left in wells].

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1

§ 257.05[5]

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257-24

[5]-Disclaimer

When the instrument to be removed as a cloud by a quiet title action purports to create an interest in the defendant and is recognized by the defendant to be in error, the defendant may benefit by filing a disclaimer of interest. A disclaimer entitles the plaintiff, without the need to introduce evidence, to a judgment against the disclaiming defendant for the property disclaimed [Jordan v. Exxon Corp., 802 S.W.2d 880,883 (Tex. App.-Texarkana 1991, no writ)-

... disclaimer need only assert that defendant does not claim any title or interest and does not assert any claim to land in question; contra Texan Dev. Co. v. Hodges, 237 S.W.2d 436, 440 (Civ. App.-Amarillo 1951, no writ)-dicta indicating plaintiffs cause should be dismissed if defendant disclaims all interest]. Considering the discretionary nature of an award of attorney's fees if the quiet title suit is brought under the Declaratory Judgments Act [see § 257.01[4]], disclaiming any interest and allowing the plaintiff to obtain the declaration without proof could have the effect of the defendant's avoiding or lessening liability for the plaintiffs attorney's fees [but see Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 334-335 (Tex. App.-Fort Worth 1998, pet. denied)-defendant's offer, after litigation commenced, to withdraw offending document was no defense to liability for plaintiffs attorney's fees incurred in suit to remove document as cloud on title].

The making of such a disclaimer, however, does not affect the venue of an action to quiet title, so that the action must be brought in the county in which all or part of the real property is located [In re Stroud Oil Properties, Inc., llO S.W.3d 18, 25-26 (Tex. App.-Waco 2002, no pet.)-mandamus to set aside venue transfer order granted because plaintiff brought quiet title action in venue mandated by statute; disclaimer of defendant of any title may have mooted quiet title claim but was irrelevant to initial venue determination; see C.P.R.C. § 15.011-venue provision for quiet title action].

§ 257.06 Relief Available

[I)-Declaration Removing Cloud and Quieting Title

The primary relief to be obtained by a suit to quiet title is a judicial declaration that the particular matter clouding the title is an invalid or unenforceable infringement [see, e.g., Amarillo Oil Co. v. Energy-Agri Prods., 794 S.W.2d20, 28 (Tex. 1990)-opinion "quieting title" to certain gas; see also Southwest Guar. Trust Co. v. Hardy Rd. 13.4 JOint Venture, 981 S.W.2d 951, 957 (Tex. App.-Houston [Ist Dist.] 1998, pet. deniedj=-noting trial court's overly inclusive judgment declaring title quieted, "removing, annulling, holding for naught" all clouds on title, declaring certain lien invalid and unenforceable, and precluding foreclosure]' The wording of the request for declaratory relief

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257-25

LEGAL BACKGROUND

§ 257.06[3]

.. - .

and of the judgment should be prepared with, the aim to satisfy a future title examiner that the hindrance or cloud on the title is no longer of consequence [see §§ 257.52[IJ, 257.120[2]].

[2]· Damages Not Recoverable' for Mere Suit to Quiet Title

Even if~ plaintiff establishes the elements of an action to quiet title, the plaintiff is not €?ntitled to recover money damages [Ellis v. Waldrop, 656 S.W:2d 902, 903~904 (Tex. 1983)J. However, the plaintiff may go further and plead and prove the additional elements to make acase for slander of title and, if the proof establishes harm resulting fromthe loss of a spedfi~ sale due to the existence of the' cloud on the title, money damages are recoverable' [Ellis v. Waldrop, 656 S,W.2d 902" 903~964; (Tex. 1983); Southwest Guar, Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.:2d 951, 952-953 (r~~. A,lW·':_Houston [Ist, Dist.] 1998, pet. denied); Pampell Iriterests v.Wolle, 797 S.W.~d 392, 395 (Tex. ~pp.:-,iAustin 1990, no writ); see § 257,.lOJ. Or, the facts may offerthe plaintiffanother theory for recovery of damages, such as a cause of, action for trespis's, conversion, or similar tort that resulted in compensable harm or injury to the property [see Sailler y. Duvall, 815 S.W.2d 285, 286 (Tex. App.-Texarkana 1991, den.) (damages forconversion of timber awarded in quiet title suit)].

[3]" Attorney's Fees;

In general.attorney's fees' are not availablein a suit to quiet title [Sadler v. Duvall, 815S.W.2d 285, 293i.:.294 (Tex. App.-Texarkana 1991, pet. denied) (no recovery of attorney's fees in absente of' statutej]. Attorney's fees, however, are available iIi actions under the Declaratory Judgments Act [Tex. Civ. Prac. & Rem. Code § 37.009]; Aceordingly, if 'a quiet title"action can 'be brought as, an action under the DJA, attorney's fees may he recovered [Duncan Land & Exploration, Inc.v. Littlepage,' 984 S.W2d 318, 333-334 (TexApp.c-Port'Worth 1998, pet. denied) (termination of oil l~ase' based on quiet title and 'slander of title claims may be brought as declaratory judgment action); Anderson v.'McRae,'495 S.W.2d 351, 356 (Civ. App.-Texarkana 1973,. no writ) (declaratory action to - remove cloud and declare rights involving easementj]: Although the Texas Supreme Court has determinedthat a trespass-to-trytitle-action is the exclusive method of determining title to realproperty so that a party may notseekdeclaratory relief in such an action [Martin v. Amerman, 133 S.W.3d 262,267-268 (Tex. 2001'J;seegenerally Ch. 251, Trespass to TryTitles, that decision probably should-not bereadtopreclude declaratory relief and attorney's fees in quiet title adions [see § 257.01[4]__:,_use of DJA in quiettitle actions],

Accordingly, it appears that a quiet title action should be urged as one for declaratory relief, a request for recovery of attorney's fees set out in the pleadings, and evidence offered to support a finding ofa dollar amount as a reasonable and necessary fee for the plaintiff's lawyer [see Tex. Civ. Prac. & Rem. Code § 37.009; see also Ch. 22, Attorney S Fees J. The burden is on the defendant to raise the issue of the use of the D1A asa procedural vehicle ro quiet title and obtain an attomey'sfees award. The issue may .be " raised by special exception to the pleading and proper objections to the evidence and jury questions [see Boatman v. Lites.: nO S.W,2d 41, 43 (Tex. App;-;-:::Tyler 1998, no pet.)].

,

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§257.07.

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257-26

§ 257.07 Correcting Deed Records ' Post-Judgment

The final steps in quieting title to property, after the petitioner has established the elements of the cause of action for the trier of fact, are the rendition of a judgment that removes the cloud from, (he title and, when, the property is real estate; recordation of that judgment in the judgment records in the county where the land is located. The Judgment should c~nform to the usual rules for judgments, with the traditional phrases to identify the parties, but making certain that the names used correspond exactly to' the names shown on the title" 'documents in question [see . §§ 257.52[2], 257.120[2]-form of judgment; see also Ch. 131, Judgments. Most importantly, the judgment should exprysslyn,ullify or invalidate the document or other indicia of the adverse claimthatclouds the title, with specific reference to the place where the document is recorded, if it i~, and with a full legal description of the property [see A.H. Belo Corp. v. Sanders, 598 S.W.2d 7; 10 (Civ, App.-Texarkana 1980, rio writ) (going' further and suggestingthat court should have entered order discharging and cancelling ail' offending instruments. and ordering county clerks to' make entries in judgment

records showingdischarge andcancellationof all offending instrumentsj]. ".

Once the 'judgment 'is renderedand becomes, final, a copy ,should be prepared for recording by the county clerk of the county where the landis located. A copy or an abstract of the judgment can be recorded when the document is' attested under the signature and seal of the ,~ourt [Tex. Prop. Code§ 12.013; Tex. Local Gov't Code § 191.007]. Theonly.statute describing an abstract of a judgment is directed at using an abstract to perfect a lien to secure a money judgment [see Tex. Prop. Code §§ ,?2.002:-~2.003; see also Ch. ,132, Enforcement, of Judgments]. Although itrnay.be acceptable to use an abstract that substantially conforms to those statut.ory requirements, the better .practice ~Qt;clearin:g ~ land.titleis to submit an attested copy of , the judgment itself to the.countyclerk for recording in the judgment .records in, the county [see §§:?57.?2[2L 257.121[2]-form of clerk's certificate attesting to judgment], Once recorded, the judgment will be indexed under the names.of the partiesto, the lawsuit [see Tex. Local Gov't Code § 193.004]. Apy subsequent title examination should include a seasch of.the.judgment records in the county and reveal the existence of the judgment, properly recorded" verbatim and clearly .stating the invalidity or unenforceability of the. adverse claim. If the judgment also awards money damages, <!S for slander of title, and the defendant does-not pay ,or a writ of execution or turnover order is of no. avail, the usual abstract of judgment <ran be obtained and .recorded.on the judgment records of any county where the defendant may own or acquire property subject to execution [see Ch. 132, Enforcement of Judgments].

§§ 257.08-257.09 Reserved

B. Action for Slander of Title § 257.10 Nature and Purpose of Action

The traditional-action known as slander of title is a tort action, aimed at obtaining compensation for the property owner's loss caused by another's malicious disparagement of the property's 'title [see A.H. Belo Corp. v. Sanders, 632 S.W.2d 145, 145-:146 (Tex. 1982)]. Ordinarily the action. is joined with one seeking a judicial declaration to

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\.

257-27

LEGAL BACKGROUND

§ 257~11[2][a]

... ~ .

quiet the title by removing the cloud createdby.thedocument or.claim constituting the disparagement [see, e.g., Ellis v. Waldrop, 656 S.W.2d 902, 903 (Tex. 1983); see §§ 257.50[2][c], 257.101 [2]-form of allegation for slander of title]. The relationship of the actions is close, with one court of appeals having said that any suit to remove a cloud from the' title that also seeks damages is aslander oftitle suit [Texas Am. Corp. v, Woodbridge Joint Venture, 809, S.W,2d 299, 304 (Tex. App.~Fort Worth 1991, den.)]. Nevertheless, without successfully pursuing a slander of. title action, the; property owner cannot recover damages caused by another's invalid or unenforceable assertion of some il1terest in the property. Proving tpe elements ofa quiet title action alone [see § 257,02[2]] cannot result in a sustainable award of money damages [Ellis

v. Waldrop, 656 S.W.2d902, 904-905 (Tex. 198'3)]. .

The matters that disparage a 'property title and that may subject a party to liability for slander of title are the same matters 'that cloud the title, as that phrase is used in defining the action to quiet title [.~ee, §257.01[3]] .. An invalid lien claim against homestead property is one frequent example [Ramsey v. Davis; 261 S.W.3d 811, 817 (Tex. App.c-Dallas 2008, pet. denied) (refusal torelease lien created by abstracted judgment can be slander of title); Tarrant Bank v. Miller, 833 S.W.2d 666, 667 (Tex. App.-Eastland 1992, writ denied)). Other instances may involve oil andgas interests, such as an oil property pooling agreement by a lessee whose lease had expired [PampeU Interests, Iric. v. Wolle, 797S.W.2d 392, 393 (Tex. App.-Austin1990,no writ)] and an affidavit declaring the termination of an oil and gas lease [Duncan Land & Exploration, Inc. v. Littlepage, 984S.W.2d 318, 322-323 (Tex. App.-Fort Worth 1998,pe1. deniedj], Filing in the countydeed records an invalid' contract for the purchaseof commercial property may also be slander of title [Elijah RagiralVip Lodging Group, Inc, v Vip Lodging Group, Illc.,:JOl S.W.3d 147, 758'-759 (Tex'. App.-EI Paso 2009, pet. filed (evidence was legally but nor factually sufficient to support jury's finding that defendant did not slander title by filing thernemoranda; failure tofind that defendant slandered title wasmanifestly unjustj].: . . '

§ 257.11 ' Elements of Cause of Act jon for Slander of Title

[I] Petitioner's Interest in Specific Real Property

The 'pleadings' and proof must establish that' the plaintiff has an interest 'in the specific' real estate 'claimed to have been slandered or "disparaged [Williams v. Jennings, 755 S.W.2d 874, 879-880 (T~x. App.v-Houston [14th Dist.] 1988,q~n.); see § 257.02[2][a]]. Ordinarily, a slander of title suit is lodged by it person Claiming a fee ownership arid able to prove r~cord title; however, it may be that title bylimitation, if shown to have been perfected, is sufficient to provide standing .to assert the cause of action [ef S~ta Fe Energy Operating Partners L.P., Y. Carrillo, 948 S.W.2d 780, 784 n.1 (Tex. App.-San Antonio 1997, den.) (expressly not deciding whether limitation

title is enough to allow suit for slander of titlej]." ' . ,

[2] Defendant's Conduct That Disparaged Title

[~] Publi~ation or ''Utterance''

'.r ...

; ,

The courts invariably use the historic language when reciting that the plaintiff must

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<,

§ 257.11[2][b]

SUIT TO QUIET TITLE

257-28

prove the defendant "uttered' or .published disparaging words" [see Elijah Ragira/Vip Lodging Group, 'Inc. v. Vip Lodging Group, Inc., 301 S.W.3d 747, 758-759 (Tex. App.-EI Paso 2009; pet. filed); Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 331-332 (Tex. App.-Fort Worth 1998, pet. denied)]. In fact, what is typically shown to satisfy the requirement is that the defendant actually caused some document to be placed on the deedrecords that clouded or interfered with the interest held by the plaintiff [see § 257.02[2][b] (proof of adverse claim in suit to quiet title)]. In one case, for example, the defendant signed and recorded an affidavit saying that the plaintiff's oil and gas lease hadterminated due to the lack of production in commercial quantities [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318,323 (Tex. App.-Fort Worth 1998, pet. denied); see also Williams v. Jennings, 755 S.W.2d 874, 882 (Tex. App.-Houston [14th Dist.] 1988, den.) (when oil and gas lease containing falseclairn of. interest in property was recorded, that was sufficient publication for slander of title claim)]. In another, the "uttering and. publishing" consisted of the defendant's obtaining and filing an 'abstract of judgment in an effort to perfect a lien on the plaintiff's property [A.H. Belo Corp. v. Sanders, 632 S.W.2d 145, 145 (Tex. 1982)].

[b] Falsity

The falsity of the words uttered or published with reference to the plaintiff's land title is a key element in slander of title lawsuits. Because the allegedly disparaging words usually evidence some claim the defendant asserts to the plaintiff's property, the validity (or truthfulness) of those. words is criticalIsee § 257.02[2][cH. The falsity element is satisfied if the plaintiff proves. that the right or interest asserted, by the defendant is invalid or. unenforceable [see Ellis v. Waldrop, 656 S.W.2d 902,903-905 (Tex. 1983) (failure to release recorded but unenforceable right of first refusal slanders title); Elijah Ragira/Vip Lodging Group, Inc. v. Vip Lodging Group.Tnc., 301 S.W.3d 747, 758-759 (Tex. App.~EI Paso 2009, pet. filed) (because prospective purchaser of property failed to fulfill condition precedent, contracts were terminated and purchaser had no interest in property, so filing memoranda of contracts in county deed records claiming such interest was false and disparagingj], For example, a lessee's execution of an oil lease that recited that the lessor owned an interest in the property when the lessor in fact owned no interest' was heid to be a 'sufficient utterance or 'publication of a falsity by. the' lessee [Williams v, Jennings, 755 S.W.2d 874, 882 (Tex. App.c-Houston [14th Dist.] 1988, den.I]. Similarly, an abstract of judgment or other lien claim against homestead property is false for slander of title purposes if the lien is not' valid under the constittid~Jlal and statutory restrictions for such liens' [Ramsey v. Davis,.261S;W.3d81i, 811 (Tex.. App.-Dallas 2008, pet. denied); Tarrant Bank v. Miller,'833 S.W.2d 666,667-668 (Tex. App.-Eastland 1992, den.); see generally Ch,

255, Re~l Property 'Security Interests]. .

[c] Malice

In a slander of title action, the defendant's utterance or publication of false, disparaging words must have been malicious [Williams v. Jennings, 755 S.W.2d 874, 886 (Tex-App.c=Houston [l4th Dist.] 1988, den.)]. As a general rule, malice for this

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257-29

LEGAL'BACKGROUND

§ 257;11[2][dJ

purpose means deliberate conduct without reasonable cause; that is, "legal malice" as opposed to "actual-malice" [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W;2d 318, 331-332 (Tex. App.-Fort Worth 1998, pet. denied); Kidd v. Haggett, 331 S.W.2d 515;518 (Civ.App.-San Antonio 1959, ref. n.r.e.); see Ramsey v. Davis, 261 S.W.3d 811, 817~818 (Tex. App.-Dallas 2008, pet. denied) (when lien claimant was informed that property was homestead but still refused to release lien.there was sufficient evidence of malice to support slander of title claim); see also § 257.13[2] (actual malice supports recovery of exemplary damages)]. Malice has been characterized in the slander of title context as the opposite of good faith [Murren v. Foster, 674 S.W.2d 406,412 (Tex.App.c-Amarillo 1984, no writ)]. Conduct considered "privileged," such as asserting a claim ina pleading filed in court, cannot be malicious conduct on which to base a slander of title action [see § 257.12[3]].

A defendant was found to have acted with reasonable cause (and not .guilty of malicious conduct) when it took additional oil leases from record title holders -in disparagement of the limitation title claimed by the plaintiff, the defendant's original lessor. The court considered that' the lease between .the .plaintiff and the defendant contained a proportionate reduction clause that recognized that the plaintiff might not own the entire interest Thus, the Iessee was justified in getting leases from the owners of record [Santa Fe Energy, Operating Partners Lp" v. Carrillo, 948 S.W.2d 780, 785~786 (Tex. App.-San Antonio 1997, den,)]. On: the other hand, a defendant was found to have acted with.malice, intending, to harm the plaintiff and disrupt a pending sale, when it foreclosed under a deed of trust given by the plaintiffs lessee without the plaintiff's joinder or consent [American Nat'l Bank & Trust Co. v. First Wisconsin Mortgage. Trust, 577 S.W.2d 312, 316 (Tex. App.c-Beaumont 1979,' ref. n.r.e.j].

I d] Loss of Specific Sale

:'1' : .'. . .

To recover dam<;tges ,{or slander of title" the plaintiff must establish that the offending title document (theclqud, or disparagement.created by the defendant) caused the loss of a specific.sale of an interest in real property [A.H. Bela Corp. v. Sanders, 632 S.W.2d 145, 146 (Tex. 1982\~hell Oil Co: v. Howth, 13,8J'ex. 357, 159 S.W.2d 483, 490 (1942); see Ramsey v. Davis, 261 S.W.3d 811, 817 (Tex. App.-Dallas 2008, pet. denied) (when both homeowner and prospective purchaser testified that salefell through because of invalid lienclaim on home.jhere was sufficient evidence, of loss of specific sale); see also Elijah Ragira/Vip Lodging Group, Inc. v. Vip Lodging Group, Inc., 301 S.W.3d 747, 758-759 (Tex. App.-El Paso 2009, pet. filed) (when plaintiff testified thatsale of property to city fell through due to cloud on title, and defendant candidly admitted filing 'false documents in deed records precisely' to prevent that sale, jury'sfinding that defendant did not slander title was against the great weight of the evidence and manifestly unjust)]. The loss of a definite oil lease was held to be equivalent to' theloss of a specific saie, considering that a mineral lease is, in effect, a conveyance of an interest in real estate [Williams v. Jennings, 755 S.W.2d 874, 885 (Tex. App.-Houston [14th Dist.] 1988, den.)].

It is not enough to prove some other financial loss; the requirement for the loss of a sale of at least some interest in the property appears to be absolute. For example, a developer claimed that.the cloud on its title prevented the funding of a development

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§ 257.12[1]

SUIT TO QUIET TITLE

257·30

loan and resulted in continuing payments of higher interest on the interim financing. The developer did not seek to sell the property, at least not until the title was cleared, the loan funded, and the property improved as planned. Nonetheless, the only relief the developer could obtain on those facts was a decree removing the cloud from the title; without proving the loss of a specific sale, no damages could be recovered [Ellis v. Waldrop, ,656 S.W.2d 902, 904-905 (Tex. 1983)].

§ 257.12 Defensive Issues

[1] Limitations

An action for slander of title to realty is governed by the two-year statute of limitation [Tex. Civ. Prac. & Rem. Code § 16.003; see Ch. 72, Limitation of Actionsi. The two-year period in which to file suit begins the day the plaintiff loses a specific sale of the property because of the .adverse claim or cloud on its title [Hill v. Heritage Resources, 964 S.W.2d 89, 116 (Tex. App.-El Paso 1997, pet. denied); Kidd v. Hoggett,.331 S.W.2d 515, 520 (Civ. App.~San Antonio 1959, ref. n.r.e.)]. Failure to file suit within that time limit creates a defense that must be affirmatively pleaded or it will be waived [Tex. R Civ. P. 94; see § 257.111[2]].

In neither Hilltust Kidd was there discussion of the applicability of the one-year statute of limitation, expressly applicable to suits for "slander" [see Tex. Civ. Prac. & Rem. Code § 16~002(a)). Arguably, the one-year limit applies to the traditional action of defamation of character or reputation by slander, not to an action for the disparagement of a real estate title by malicious assertion of a false claim.

[2] Acting on Advice of Counsel

To rebut the plaintiff's contention that the defendant's adverse Claim or other allegedly slanderous conduct was malicious, the defense may show that the defendant consulted with counsel and acted with a bona fide belief that the claim or contention asserted was valid [Humble Oil & Ref. Co. v. Luckel, 171 S.W.2d 902, 906 (Civ, App.-Galveston 1943, ref. w.o.m.)]. Evidence of reliance on counsel may not establish good faith as a matter of law, but is a consideration for the fact finder in deciding the malice issue [Murren V. Foster, 674 S.W.2d 406, 412 (Tex. App.-Amarillo 1984, no writ)). Because the defense is one that inferentially rebuts an element of the plaintiff's case; it should be affirmatively set out in the defendant's aIlswer [see §§ 257.51, 257.110[2]-form of answer].

In this connection, a caution may be appropriate. The reliance-on-counsel argument may backfire if the attorney based the advice on facts related by the client and the client was guilty of "malice" (in the sense of a reckless disregard for the truth) in ascertaining and relating those facts [see Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333 (Tex. App.-Fort Worth 1998, pet. denied)].

[3] Privileged Conduct

Conduct authorized by law may be considered privileged, grvmg the person reasonable cause to do the act claimed to have disparaged a title. For example, in one case, the defendant's filing of a notice of lis pendens while attempting toappeal an unfavorable judgment was said to be "privileged" conduct. Although the filing blocked

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LEGAL BACKGROUND

§ 257.12[3]

the plaintiff's sale of property to a third party, the defendant was not liable for slander of title; the privilege afforded to file the notice prevented the conduct from being malicious [Prappas v. Meyerland Community Improvement Ass'n, 795 S.W.2d 794, 795-798 (Tex. App.-Houston [14th Dist.] 1990, den.)]. Similarly, it has been said that a party to a lawsuit cannot commit slander of title by the party's pleadings; pleadings are privileged such that a good faith pleading of an adverse interest in property cannot be malicious [Hill v. Heritage Resources, 964 S.W.2d 89, 129 (Tex. App.-EI Paso 1997, pet. denied); Hauglum v. Durst, 769 S.W.2d 646, 653-654 (Tex. App.-Corpus Christi 1989, no writ)]. By analogy to the more established law of libel, it appears that a privilege, as a defense to slander of a real estate title, may be lost by abuse, as when pleading allegations are not relevant to the proceeding or when the words used are so groundless as to indicate an ulterior or malicious motive [see Ch. 333, Libel and Slander]. Moreover, privilege is an affirmative defense that should be specifically set out in the defendant's answer [Tex. R. Civ. P. 94; see §§ 257.51, 257.111 [2]-form of defensive allegations].

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LEGAL BACKGROUND

§ 257.13[2]

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§ 257.13 Recovery Obtainable [l]-Actual Damages

A plaintiff who establishes each element of the cause of action for slander of title may recover actual damages as compensation for the loss of the specific sale of the prop(:(rty [see § 257.11[2][d]]. The loss is equal to the amount the plaintiff would have realized from the sale less the amount for which the property could be sold at the time of trial with the cloud removed [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333 (Tex. App.-Fort Worth 1998, pet. denied); Williams v. Jennings, 755 S.W,2d 874, 885 (Tex. App.-Houston [14th Dist.] 1988, den.)-evidence showed no possibility of sale at time of trial even if adverse claim was removed].

[2]-Exemplary Damages

As in other tort actions, exemplary damages may be recovered on clear and convincing.proof that the defendant's conduct was fraudulent or malicious [C .. P.RC. § 41.003(a); see Ch. 20, Damages in Tort]. The "malice" required to be established to recover exemplary damages is actual malice, as contrasted with legal malice as an element of the cause of action for slander of title [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 331-332 (Tex. App.-Fort Worth 1998, pet. denied); Kidd v. Hoggett, 331 S.W.2d.515, 518 (Civ. App.-San Antonio 1959, ref. n.r.e.)]. Thus, recovery of exemplary damages depends on a finding that the defendant acted either (1) with a specific intent to cause substantial injury or (2) with a conscious indifference to the rights of others and an actual, subjective awareness of the extreme risk of potential harm [C.P.RC. § 41.001(7)]. In Williams v. Jennings [755 S.W.2d 874 (Tex. App.-Houston [14th Dist.] 1988, den.))' the required malice to justify exemplary damages resulted not from the defendant's initial act of uttering a false document disparaging title, but from the unjustified refusal to promptly deliver a release of the offending claim [Williams v. Jennings, 755 S.W.2d 874, 886 (Tex. App.-Houston [14th Dist.] 1988, den.)-case was decided before statute defining malice was enacted; jury charge defined malice as "acting with ill will, bad or evil motive, or such gross indifference to the rights of the plaintiff as to amount to a willful and wanton act"].

The usual limits on exemplary damages apply in slander of title suits. That is, exemplary damages cannot exceed the greater of (1) $200,000 or (2) a sum calculated by first doubling the economic damages and then adding no more than $750,000 of any noneconomic damages [C.P.RC. § 41.008(b); see C.P.RC. § 41.008(c)-avoiding limit if defendant violated Penal Code by, for example, forgery, securing execution of document by deception, or fraudulently destroying, removing, or concealing a writing].

(Matthew Sender & Co .• Inc.)

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[3]-Attorney's Fees

There is no authority for the recovery of attorney's fees for the successful prosecution of a suit for slander of title [see Sadler v. Duvall, 815 S.W.2d 285, 29~294 (Tex. App.-Texarkana 1991, den.)). However, when the suit is joined with an action to remove theslanderous document and quiet the title to the property, the plaintiff should be entitled to recover attorney's fees for that portion of the litigation. As discussed in § 257.01[4], a suit to quiet title appears to be an appropriate matter for determination under the Declaratory Judgments Act, which expressly provides for an award of attorney's fees as part of the relief granted [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318,' 33~334 (Tex. App.-Fort Worth 1998, pet. denied)-upholding attorney's fees in slander of title and quiet title action; see C.P.R.C. § 38.001 et seq.].

The evidence offered to establish the necessity of the attorney's services and the reasoriableness of the fees sought should relate only to the handling of the issues involved in the quiet title action. In proving the necessity of services rendered, the attorney's efforts to prove the elements of the quiet title action should be segregated' from the work performed to establish malice and damages, elements of the slander action only [American Nat'l Bank & Trust Co. v. First Wisconsin Mortgage Trust, 577 S.W.2d 312, 319-320 (Tex. App.Beaumont 1979, ref. n.r.e.)).

(Matthew Bender'" Co .. lnc.)

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PART II. PROCEDURAL GUIDE

§ 257.50 Bringing Suit to Remedy Impaired Title

[I]-Preliminary Steps

(1) Ascertain that traditional suit to clear title by removing cloud is most appropriate remedy, considering:

(a) Facts reveal existence of claim that appears valid on its face, can be shown to be invalid or unenforceable, and adversely affects (or clouds) prospective plaintiffs title to interest in property, such as [see §§ 257.01[1], [2], 257.02[1)):

NOTE: An action to. quiet title is a remedy available to remove from the title any unlawful hindrance having the appearance of a better right [Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (1886); see Bell v. Ott, 606 S.W.2d 942, 952 (Civ. App.-Waco 1980, ref. n.r.e.)]. The burden is on the petitioner to plead and prove the invalidity or unenforceability of the adverse claim [Sadler v. Duvall, 815 S.W.2d 285, 283 n.2 (Tex. App.-Texarkana 1991, den.)] under the controlling substantive law that undergirds the defendant's claim [see § 257.02[2][c]]. The remedy of quieting title is an equitable remedy and not a mechanism for the recovery of damages [see § 257.06[2]]; it is a means to nullify some outstanding claim that, on its face, challenges the plaintitT's claim to an interest in the property.

(i) Abstract of judgment rendered against plaintiff filed in county where plaintiff owns homestead property.

(ii) , Document affecting title made without authority by stranger to title, such as deed of trust, mineral lease, or' conveyance of property interest.

(iii) . Invalid lien asserted against property.

(h) Opposing claim to part of property due to overlapping boundary.

(v) Mineral lease that has terminated because lessee failed to comply with provisions in lease.

(b) Make certain that plaintiff can establish legal or equitable title to all or some interest in. property in question [see § 257.02[2][a]].

NOTE: The quiet title remedy is available to even the "holder of the feeblest equity" in real or personal property [Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (1886)]. For example, a party having acquired an equitable interest in land by contract can sue to quiet title [Henry v. Mr. M Convenience Stores, Inc., 543 S.W.2d 393,396 (Civ. App.-Houston [14th Dist.] 1976, ref. n.r.e.)].

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(c) Review facts to be certain that suit for trespass to try title is not more suitable remedy, considering [see § 257.01[3][b]; Ch. 251, Trespass 'to Try Title]:

(i) Trespass to try title action is available to solve dispute between parties both claiming possessory interests in property.

(ii) Plaintiff in trespass to try title action must trace right to title back to sovereign or, at least, to source in common with defendant.

(iii) Plaintiff in trespass to try title action can prevail only

on strength of petitioner's title, not on invalidity of opponent's title.

Final judgment in trespass to try title action may, unlike judgment in suit to quiet. title:

(A) Decree tide as vested in plaintiff.

(B) Award plaintiff money damages for loss of rents, profits, or injury to property [see § 257.06[2]-money damages not available in suit to quiet title].

(iv)

(2) Determine need to add additional claim for rescission or reformation of title document [see § 257.01[3][c], [d]; see also Ch. 52, Rescission, Ch ... ,53, Reforrna.tion].

NOTE: When the only "cloud" on the title is a document the plaintiff is entitled to rescind 01' reform (as for fraud, mutual mistake, or other inequitable conduct on the part of the other party to the document), an action for rescission or reformation may be the only relief the plaintiff needs. However, when elimination or correction of a title document is necessary to establish the plaintiff's interest as superior to another person's adverse claim and thus invalidate that claim or prove itsinCeriority, the plaintiff must urge the grounds for rescission or reformation of the docunient and request the removal of the defendant's claim as a cloud on the title [see § 257.01 [3][a]] .

. (3) . Obtain full and correct legal description of property involved, together with certified copies of documents necessary to establish existence .of [seeCh. 120A, Presentation of Proof]:

(a) Plaintiffs interest [see' § 257.02[2][a]].

(b) Adverse claim sought to be removed as cloud on title [see § 257.02[2][b]] .

. (4) Research law and gather authorities as necessary to support contention that claim constituting cloud on title is invalid or unenforceable [see § 257.02[2][c]].

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PROCEDURAL GUIDE

§ 257.50[1]

(5) Maintain accurate records of time and expenses incurred in developing elements of cause of action to quiet title to present evidence at trial to justify plaintiffs recovery of reasonable and necessary attorney's fees [see § 257.06[3]].

NOTE: In general, attorney's fees are not available in a suit to quiet title [Sadler v. Duvall, 815 S.W.2d 285,293-294 (Tex. App.-Texarkana 1991, pet. denied)]. Attorney's fees, however, are available in actions under the Declaratory Judgments Act [C.P.R.C. § 37.009], so that if a quiet title action can be brought as an action under the DJA, attorney's fees may be recovered [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333-334 (Tex. App.-Fort Worth 1998, pet. denied)]. Although declaratory relief and attorney's fees are not available in a statutory trespass-to-try-title action, which is the exclusive method of adjudicating title to real property [Martin v. Amerman, 133 S.W.3d 262, 267-268 (Tex. 2004)], that principle should not preclude the availability of declaratory relief and attorney's fees in quiet title actions [see § 257.01[4]-use of DJA in quiet title actions].

(6) If prospective plaintiff lost specific sale or other conveyance of interest in property to third party for definite sum of money because of clouded title, consider adding action for slander of title if [see §§ 257.10, 257.11[2][d]; Ellis v. Waldrop, 656 S.W.2d 902, 904-905 (Tex. 1983)]:

NOTE: Although an action to remove a cloud from the title to property cannot be barred by limitations (other than by the adversary's perfecting title by adverse possession), the tort action for slander of title must be brought within two years after the plaintiff's lost sale [see § 257.12(1]].

(a) Facts exist to establish that defendant is responsible for existence of cloud on title [see § 257.11[2][a], [b]].

(b) Facts justify conclusion that defendant clouded title maliciously, that is, deliberately and without reasonable cause [see § 257.11[2][c]].

(7) If slander of title suit is to be joined with action to quiet title, preparation should include:

(a) Gathering of evidence of plaintiffs specific lost opportunity to sell property to another [see § 257.11[2][d]].

(b) Arranging for expert testimony to establish value of plaintiffs interest in property without cloud on title and as of the time of trial [see § 257.11[2][d]].

(c) Segregating attorney's time spent and expenses incurred dealing with issues relating only to slander of title suit, for which attorney's fees are not recoverable.

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(8)

Understand that other parties claiming present possessory interests in the property should be joined if feasible [see § 257.0.3[1], [2]; T.R.C.P. 39].

NOTE: If the action is by or against the estate of a deceased person, the executor or administrator of the estate and the decedent's heirs should be made parties and may be regarded as indispensable [C.P.R.C. § 17.002; see T.R.C.P. 39(b); see also Love v. Woerndell, 737 S.W.2d 50,51-52 (Tex. App.-San Antonio 1987, den.)]. Moreover, the action may be subject to removal to a statutory probate court where the estate is pending [Prob. C. §§ SA, SB, 607, 608; see § 257.04[2]].

(9) Make demand on defendant for release or removal of evidence of adverse claim, considering:

(a) Recording release or similar document invalidating defendant's claim may be as effective to clear plaintiffs title as judicial decree but may require corresponding release of all damage claims.

(b) Defendant may file disclaimer in response to litigation, arguably negating existence of adverse claim, an essential element of plaintiffs cause of action to quiet title [see § 257.0.5[5]; see also § 257.Q2[2][b]].

(c) Defendant's refusal to release or otherwise acknowledge invalidity of claim may enhance evidence of malice if plaintiff seeks damages for slander of title [see Williams v. Jennings, 755 S.W.2d 874, 886 (Tex. App.-Houston [14th Dist.] 1988, den.)].

(10.) If suit to quiet title is to be filed and if plaintiff s interest does not appear clearly of record, consider filing notice of lis pendens [see Prop. C. §§ 12.0.0.7, 13.0.0.4; see also Ch. 254, Deeds and Conveyances] .

[2]-Preparing the Petition [a]-Introductory Provisions

(1) Prepare pleading following usual rules for civil cases, including [see § 257.1QQ[2]-form of petition; see also Ch. 11, Plaintiffs Original Petition]:

(a) Caption, with place for cause number, showing style of case

and court where petition will be filed.

NOTE: If the action is to quiet title to real estate, it must be filed in a district court or a statutory county court tbat bas jurisdiction over land title disputes [see § 257.04[1)[b]]. If the property involved is personalty, the value of the

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PROCEDURAL GUIDE

§ 257.50[2][b]

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property is the gauge for determining the subject matter jurisdiction of the court and the usual venue rules apply; that is, the action may proceed in any county where all or a substantial part of the events giving rise to the action accrued or where the defendant resides or, if the defendant is not a natural person, in the county of the defendant's principal Texas office [see C.P.RoC. § 15.002(a); see cs, 61, Venue).

(b) Title and introductory paragraph.

(c) In first numbered paragraph of petition, allegation of dis-

covery level [see T.R.C.P. 190].

NOTE: A suit to quiet title ordinarily will be governed by Level 2, the "default" level, because it does not seek monetary relief of $50,000 or less, excluding attorney's fees and costs (Levell), and usually is not a complex case requiring a tailored discovery control plan (Level 3). Even if a suit for slander of title or other tort claim for monetary relief is joined in the action, Level 2 may be appropriate so as not 'to limit the damages sought to $50,000 or less [see Cb. 11, PlIli.ntiffs 0rigi1Ull Petition).

(2) State names of parties and their respective residences or places where citation may be served [T.R.C.P. 79; see § 257.100[2J; see also Ch. 12, Pleading the PartiesJ, being aware that:

(a) Personal jurisdiction over defendant for quiet title suit may be based on presence of real property in Texas, but more contact may be required if money judgment against that defendant is requested [see § 257.04[IJ[aJ; Ch. 32, Citation on Nonresidents].

(b) Proper venue is in county where all or part of land is located and may be based on other allegations of petition showing theory of action as one to quiet title and proof that property in question is in county where suit is filed [C.P.R.C. § 15.011; § 257.04[2]; Ch. 61, Venue].

(c) Parties' names should be stated exactly as they appear in any title records reflecting the respective claims in issue.

[b]-Allegations to Quiet Title by Removing Cloud

(1) Set out extent and nature of plaintiffs interest in specifically described property [see §§ 257.02[2][a], 257.100[2]].

NOTE: The full legal description of the property should be alleged. If that description is lengthy, as for example a ''metes and bounds" description of rural acreage, it may be incorporated into the petition by referring to a true copy of a deed or other document attached to the pleading as an exhibit [T.R.C.P. 59).

(2) If inferiority or other infirmity of adverse claim depends on elimination or correction of document in plaintiff's chain of title,

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§ 257.50[2][b]

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make appropriate allegations for relief as required by law of rescission or reformation [see Ch. 52, Rescission, Ch. 53, Reformation] .

(3) Describe claim or contention constituting cloud or hindrance on plaintiffs interest, referring to and attaching as exhibit any document evidencing adverse claim [see §§ 257.02[2][b], 257.100[2]form of petition].

NOTE: For an adverse claim to be a cloud removable by the court's decree, . the claim must appear on its face to be one that, if it was valid, would affect or impair the plaintiff's title or interest in the property [Best Inv. Co. v. Parkhill, 429 S.W.2d 531, 534 (Civ. App.-Corpus Christi 1968, dis. w.o.j.)].

(4) State grounds to invalidate defendant's claim or show it is ineffective or unenforceable against plaintiffs interest, following substantive law governing validity of particular claim, such as [see §§ 257.02[2][c], 257.100[2]-form of petition]:

(a) Rules governing construction of deeds [see James J. Hartnett, P.C. v. City of Dallas, 5 S.W.3d 384, 386-387 (Tex. App.-Fort Worth 1999, no pet.)-involving application of rules for determining "adjoinder" boundary by reference to artificial object; Wright v. E.P. Operating LP, 978 S.W.2d 684, 685-688 (Tex. App.-Eastland 1998, pet. deniedi-> applying rules for interpretation of "reservations" and "exceptions"] .

(b) Law defining right of party holding property as trustee to encumber land by deed of trust [see Southwest Guar. Trust Co. v. Hardy Rd. 13.4 joint Venture, 981 S.W.2d 951, 952- 953(Tex. App.-Houston [Ist Dist.] 1998, pet. denied)].

(c) Oil and gas law determining when lease terminates for nonproduction after primary term [see Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 331-332 (Tex. App.-Fort Worth 1998, pet. denied); Exploracion De La Estrella v. Birdwell, 858 S.W.2d 549, 551-553 (Tex. App.-Eastland 1993, no writ)].

(d) Law governing lapse of right of first refusal to acquire real estate [see Ellis v. Waldrop, 656 S.W.2d 902,903-904 (Tex.

1983)]. .

(e) Law of adverse possession [see Dickson v. Dickson, 993 S.W.2d 735, 736 (Tex. App.-Houston [14th Dist.] 1999, no pet.)}.

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PROCEDURAL GUIDE

§ 257.50[2][c]

(f) Laws exempting homestead property from forced sale for nonpayment of certain debts [see Tarrant Bank v. Miller, 833 S.W.2d 666, 668 (Tex. App.-Eastland 1992, den.)].

(g) Rules determining bona fide purchaser status as necessary to defeat adverse claim alleged to be cloud on title [see, e.g., Medley v. Medley, 683 S.W.2d 877, 878-879 (Tex. App.Corpus Christi 1984, no writ)-junior grantee with first recorded deed versus senior grantee under second recorded deed].

(5) Include allegations that plaintiff incurred reasonable and necessary expenses for services of attorney in prosecution of action [see Ch. 22, Attorney's Fees].

NOTE: In general, attorney's fees are not available in a suit to quiet title [Sadler

. v. Duvall, 815 S.W.2d 285,293-294 (Tex. App.-Texarkana 1991, pet. denied)].

Attorney's fees, however, are available in actions under the Declaratory Judgments Act [C.P .R.C. § 37.009], so that if a quiet title action can be brought as an action under the DJA, attorney's fees may be recovered [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333-334 (Tex. App.-Fort Worth 1998, pet. denied)]. Although declaratory relief and attorney's fees are not available in a statutory trespass-to-try-title action, which is the exclusive method of adjudicating title to real property [Martin v. Amerman, 133 S.W.3d 262, 267-268 (Tex. 2004)], that principle should not preclude the availability of declaratory relief and attorney's fees in quiet title actions [see § 257;01[4]use of DJA in quiet title actions].

[c]-Allegations to Recover Damages for Slander of Title

NOTE: It is not necessary to include slander of title allegations in order to proceed with a suit to remove a cloud from the title to property. However, it is necessary to add a tort-based theory of action such as one for slander of title to attempt to recover money damages from the party responsible for clouding the title. A slander of title action affords an opportunity for a monetary recovery by a plaintiff who has lost a specific sale of the interest in the property because of the existence of the "cloud" or adverse claim [see § 257.10).

(1) State that defendant's conduct in making the adverse claim, the "cloud" on plaintiff's interest described in preceding allegations, was undertaken maliciously in that defendant lacked reasonable cause to make contention or claim [see §§ 257.11[2][c], 257.101[2]-form of allegation].

NOTE: The allegations set out in the part of the pleading stating a cause of action to remove a cloud from the title usually will supply the essential elements that the defendant uttered or published false words that disparaged the plaintiff's interest [see § 257.11[2][a), [b)].

(2) Allege that, as direct result of defendant's claim or contention, plaintiff lost specific, definite sale (or mineral lease) of property

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to third party [see §§ 257.11[2][d], 257.101[2]-forrn of allegation] including:

(a) Date proposed sale failed.

(b) Net present value of consideration plaintiff was to have received from sale.

Allege reasonable fair market value of plaintiffs interest, without title clouded by defendant's claim, at present time [see §§ 257.13[1], 257.101[2]-forrn of allegation].

NOTE: Damages. for slander of title are measured by the difference between the amount the plaintiff would have received if the sale could have been completed and the value of the property, with the cloud removed, at the time of trial [see § 257.13[1]; Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W. 318, 333 (Tex. App.-Fort Worth 1998, pet. denied); Williams v. Jennings, 755 S.W.2d 874, 885 (Tex.App.-Houston [14th Dist.] 1988, deo.)].

If appropriate under facts, continue with allegations that defendant's acts or omissions were intended to harm plaintiff or committed with actual, conscious indifference to plaintiffs rights, as necessary to support recovery of exemplary damages [see § 257.13[2]; C.P.R.C. § 41.001(7); see also Ch. 20, Damages in Tort].

[d)-Prayer for Relief

(3)

(4)

(1) Close pleading with prayer or request for relief sought, including [see § 257.100[2]-forrn of petition]:

(a) Declaratory judgment invalidating defendant's claim and . quieting title of property in plaintiff.

(b) Allowing plaintiff recovery of reasonable and necessary attorney's fees and costs.

(c) Awarding other relief to which plaintiff is shown to be entitled.

(2) If slander of title or other tort-based action is joined, add prayer for award of damages against defendant for amount within court's jurisdictional limits [TR.C.P. 47], together with prejudgment and post judgment interest as allowed by law [see § 257.101[2]-forrn of allegation of slander of title].

§ 257.51 Preparing Defendant's Answer

NOTE: Be certain that there is no need to contest either the court's assertion of jurisdiction over a nonresident defendant or the plaintiff's venue choice [see § 257.04[1], [2]; see also Ch. 60, Special Appearance, Ch. 61, Venue]. Bear in

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§ 257.51

mind that the court's jurisdiction over Texas property empowers it to clear title to the land and that venue is proper, if not mandatory, in the county where the land is located, except when a decedent's estate is a party, In that case, the lawsuit may be transferred to a statutory probate court in which an estate is pending,even if that court is in some other county [see § 257.04[1], [2]]. File the answer on the merits after and subject to any challenge to the exercise of jurisdiction or a motion to transfer venue.

(1) Follow usual procedure for drafting defendant's original answer, setting out [see § 257.110[2]-form of answer; see also Ch. 70, Answer]:

NOTE: H the defendant has no interest in the property and is willing to abandon the claim alleged by the plaintiff to exist, the defendant may file a disclaimer. That would result, it appears, in a judgment quieting title in favor of the plaintiff without the need for proof [see § 257.05[5]].

(a) Special exceptions, as necessary, such as [T.RC.P. 91]:

(I) To object to allegations for recovery of attorney's fees as unauthorized due to misuse of Declaratory Judgments Act [see § 257.01[4]; Boatman v. Lites, 970 S.W.2d 41,43 (Tex. App.-Tyler 1998, no pet.)].

(ii) To require plaintiff to specify maximum amount of damages sought [T.RC.P. 47].

(iii) To point out other defect or insufficiency of plaintiff's allegations.

(b) General denial (T.RC.P. 92]'

(c) Specific denial, to be supported by sworn affidavit, if necessary to counter allegations such as [T.RC.P. 93]:

(i) Allegation that defendant or authorized agent executed written instrument.

(ii) Allegation that written instrument is supported by consideration.

(2) Consider asserting defense that plaintiff's remedy is barred by limitations when [see § 257.05[1]]:

NOTE: Because the wrong sought to be remedied-the cloud on plaintiff's title-is ongoing, the period for limitation begins anew each day; a limitation defense can never arise to bar a typical suit to quiet title [see Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 785 (1941)].

(a) Plaintiff's success depends on reforming or rescinding an instrument in chain of title and not more than four years have elapsed since plaintiff discovered or should have discovered grounds for relief [see, e.g., Broyles v. Lawrence,

(Re1.74-8104 Pub.719)

§257.51

SUIT TO QUIET TITLE

257-42

632 S.W.2d 184, 186-188 (Tex. App.-Austin 1982, no writ)].

NOTE: If the plaintiff has retained possession of property purportedly conveyed by an instrument the plaintiff seeks to reform or rescind and there has been no intervention of a bona fide purchaser, the plaintiff's action is within a "blanket exception" to the four-year statute of limitation and may proceed despite the lapse of time [Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471, 474 (1949); Henderson v. Henderson, 694 S.W.2d 31, 36 (TeL App.-Corpus Christi 1985, ref. n.r.e.)].

(b) Validity of defendant's claim depends on defendant's perfecting limitation title by adverse possession [see Dickson v. Dickson, 993 S.W.2d 735, 736 (Tex. App.-Houston [14th Dist.] 1999, no pet.), see also Ch. 250, Adverse

Possession]. .

(3) Set out other affirmative defenses to defeat plaintiffs charge that defendant's claim to interest in property is invalid or unenforceable, according to substantive law governing claim, such as [T.R.C.P. 94]:

(a) Estoppel or waiver, as by conduct recognizing validity of

defendant's claim or interest [see Exploracion De La Estrella v. Birdwell, 858 S.W.2d 549, 554-555 (Tex. App.Eastland 1993, no writ)].

(b) Illegality of forfeiture clause, relied on by plaintiff to destroy defendant's chain 'of title [see Outlaw v. Bowen, 285 S.W.2d 280, 283-284 (Tex. App.-Amarillo 1955, ref. n.r.e.)invalid forfeiture clause urged as cloud on title].

(c) Bona fide purchaser status, as when seeking to establish defendant's interest as superior to plaintiffs claim [see, e.g., Gomez v. De Gonzales, 248 S.W.2d 268,270 (Civ. App.San Antonio 1952, no writ)-grantor in title chain lacked capacity to convey and purchaser for value did not establish lack of notice of grantor's incapacity].

(4) If plaintiff charges additional cause for slander of title, consider affirmatively pleading defensive theories of [see § 257.111[2]fonn of defensive allegation]:

(a) Reliance on advice of attorney, as inferentially rebutting plaintiffs charge of malicious conduct in slander of plaintiffs title [see § 257.12[2]].

(b) Privilege to make statements alleged to constitute slander, such as when asserting claim in pleadings or filing lis pendens [see § 257.12[3]].

(Re1.74-8I04 Pub.719)

I

...... ,

257-43

PROCEDURAL GUIDE

§ 257.52[1]

(5) Add affirmative request for recovery of attorney's fees for defense of allegations to quiet title, unless insisting that use of declaratory judgments procedure in quiet title litigation is improper [see §§ 257.05[3], 257.01[4], 257.110[2]-form of answer].

(6) If advisable, add counterclaim to declare invalidity of plaintiffs claim of right or title and quiet title in defendant [see § 257.05[4][a]].

(7) Conclude answer with summary of relief requested, signature block for counsel, and certificate showing service of answer on attorney for plaintiff [T.R.C.P. 57, 21, 21a; see § 257.110[2]-form of answer].

NOTE: H the answer includes any denials required by Civil Procedure Rule 93 to be made under oath, append the appropriate affidavit [see Ch. 70, Answer].

§ 257.52 Preparing and Using Judgment to Clear Title [1]~Preparing Judgment

(1) As successful party obtaining judgment quieting title, prepare draft of judgment for signature of trial judge that, in addition to usual recitations [see §§ 257.07, 257.120[2]~form of judgment];

NOTE: A party seeking to. quiet title should plan to have an attested copy of the judgment placed on the judgment records of the county where the land is located [see [2], below]. To qualify for recordation, the judgment should conform to the physical requirements set out in Local Government Code Section 191.007, including the use of no smaller than 8'point type and a heading or title clearly identifying the document as a judgment [see Local Gov. C. § 191.007].

(a) Names all parties to the litigation, using names as shown on title records to evidence respective claims.

(b) Identifies property in question by full legal description, preferably with reference to place where title was recorded in successful party's name [see § 257.02[2][a]].

(c) Identifies document found to cloud title, reciting place of recording, if any [see § 257.02[2][b]].

(d) Declares invalidity or unenforceability of claim asserted and clouding title, with specific reference to any document and place of recording [see § 257.02[2][c]].

(e) Quiets title in successful party petitioning for such relief [see § 257.06[1]].

(ReL 74-8/04 Pub.719)

'"

"' .

........

<,

-c.,

§ 257.52[2]

SUIT TO QUIET TITLE

257-44

...• i

(f) Awards recovery of attorney's fees by successful party from adverse party [see § 257.06[3]].

(g) Taxes costs of court against unsuccessful party.

(h) Contains place for signature of judge, date signed, and, preferably, approvals of counsel as to form.

(2) If lawsuit included action for slander of title and petitioner was successful in obtaining verdict and damage award, include paragraph in judgment awarding plaintiff [see § 257.120[2]-form of judgment; see also Ch. 131, Judgment]:

(a) Set sum of money found as damages [see § 257.13[1]].

(b) Prejudgment and post judgment interest.

Provide copy of proposed judgment to attorneys for other parties to lawsuit [T.R.C.P. 305].

(3)

(4) Submit judgment to trial judge for Signature.

[2]-Recording Judgment to Clear Title

(1) Once judgment is final, append certificate to copy of judgment for clerk of court where judgment was rendered to attest to authenticity of document by [see §§ 257.07, 257.121[2]-form of clerk's

certificate attesting to judgment]: '

(a) Signing and dating certificate.

(b) Affixing official seal.

(2) Present attested copy of judgment to county clerk in county where land is located and [see § 257.07]:

(a) Request recordation of copy in judgment records of county [see Prop. C. § 12.013-authorizing recording of attested, sealed copy of judgment].

(b) Pay appropriate recording fee.

(ReL74-8/04 Pub.719)

I

PART ill. FORMS

A. Petitioner's Forms

§ 257.100 Plaintiff's Petition to Remove Cloud and Quiet Title

[I]-Comment

[a]-Use of Form

This form is a petition for use by a party claiming a right or interest in property to seek a judicial decree invalidating or declaring unenforceable another party's claim that hinders or "clouds" the petitioner's title [see §§ 257.01[1], 257.50[1]]. It should not be used if the petitioner asks only to rescind some title instrument the petitioner signed [see § 257.01[3][c]; see Ch. 52, Rescission] or for a decree conforming an erroneous document to reflect the true intent of the parties [see § 257.01[3][d]; see Ch. 53, Reformation]; however, rescission or reformation of a title document may be alleged as part of the plaintiffs case when necessary to establish the plaintiffs right or title to be cleared.

The plaintiff must be a party having some legal or equitable interest in the property; a mere intention to own theinterest at a future date is not sufficient [see § 257.03[1]]. The adverse claimant must be named as a defendant and all other parties who claim or hold an interest that could be affected by the outcome of the suit should be joined if feasible [see § 257.03[2]]. If the title to be quieted is to real property, the lawsuit must be filed in a court having subject-matter jurisdiction to decide real estate title disputes [see § 257.04[I][b]] and in the county where the real property is located [see § 257.04[2]]. In other cases, the value of the personal property involved must be within the court's subject matter jurisdiction and the usual rules apply to determine proper venue [see Ch. 2, Jurisdiction of Texas Courts, Ch. 61, Venue]. Citation must be served on the defendants as in other civil cases [see Ch. 31, Citation on Residents, Ch. 32, Citation on Nonresidents]'

If the petitioner's right to the property and the defendant's adverse claim are both possessory interests, it may be advantageous for the petitioner to assert the cause of action of trespass to try title [see § 257.01[3[b]]; the resulting judgment, if the petitioner is successful, will have the effect of declaring title in the plaintiff rather than merely invalidating the defendant's claim [see Ch. 251, Trespass to Try Title].

[b ]-Elem~nts of Cause of Action to Quiet Title

The petition to remove a cloud and quiet title should allege three essential elements [see §§ 257.02[1], 257.50[2]; Sadler v. Duvall, 815 S.W.2d 285, 293

(ReI. 7 4-8/04 Pub.719)

257-45

---.,,_

§ 2S7.100[1][c]

SUIT TO QUIET TITLE

257-46

n.2 (Tex. App.-Texarkana 1991, den.), La Fleaur v. Kinard, 161 S.W.2d 144, 147 (Civ. App.-Beaumont 1942, ref. w.o.m.l]:

1. The petitioner's legal or equitable interest in specific property [see § 257.02[2] [a]].

2. The existence of a claim by the defendant that appears valid on its face and interferes with or hinders the petitioner's title [see § 257.02[2][b]].

3. The invalidity or unenforceability of the defendant's claim [see § 257.02[2][c]].

[c]-Relief Requested

The object of a suit to quiet title is to obtain a judicial decree declaring the defendant's specific claim invalid or unenforceable; that is, a court order quieting title to the property by removing the cloud cast by the defendant's claim or contention. The petition should request the exact declaration the plaintiff seeks [see § 257.06[1]].

A suit to quiet title, by itself, is not a proper method to obtain a judgment for money damages as compensation for harm caused by the existence of the defendant's adverse claim [see § 257.06[2]; Ellis v. Waldrop, 656 S.W.2d 902, 903--904 (Tex. 1983)]. However, an action based on another theory that allows for a damages recovery may be added. For example, if the cloud on the title cast by the defendant's claim prevented the plaintiff from concluding a specific sale of the property, the lawsuit could include an action for slander of title and result in the plaintiff's recovery of damages [see § 257.101[2]-form of additional allegations].

In general, attorney's fees are not available in a suit to quiet title [Sadler

v. Duvall, 815 S.W.2d 285, 293-294 (Tex. App.-Texarkana 1991, den.)-no recovery of attorney's fees in absence of authorizing statute; see § 257.06[2]]. However, attorney's fees are available in actions under the Declaratory Judgments Act [C.P.R.C. § 37.009]. Accordingly, if a quiet title action can be brought as an action under the DJA, attorney's fees may be recovered [Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318,333--334 (Tex. App.Fort Worth 1998, pet. deniedj-e-termination of oil lease based on quiet title and slander of title claims may be brought as declaratory judgment action; Anderson v. McRae, 495 S.W.2d 351, 356 (Civ. App.-Texarkana 1973, no writ)-declaratory action to remove cloud and declare rights involving easement]. Although the Texas Supreme Court has held that a trespass-to-try-title action is the exclusive method of determining title to real property, thus barring declaratory relief in such an action [Martin v. Amerman, 133 S.W.3d 262, 267- 268 (Tex. 2004); see generally Ch. 251, Trespass to Try Title], that decision does not address the viability of declaratory relief and attorney's fees in quiet title actions [see § 257.01[4]-use of DJA in quiet title actions]. Accordingly,

• (&£1.74-8/04 Pub.719)

I

257-47

FORMS

§ 257.100[2]

'{.,

r--

the petition should set out plaintiffs having incurred liability for reasonable attorney's fees for services necessarily rendered and to be rendered in the prosecution of the lawsuit and ask for judgment against the defendant for those fees [see § 257.06[3]].

[d]-Discovery Level

A suit to quiet title that does not seek monetary damages or that is brought as a declaratory relief action will normally be governed by a Level 2 discovery control plan [see T.RC.P. 190.3]. This is because the suit does not seek monetary relief of $50,000 or less, excluding attorney's fees and costs (Level 1), and usually is not a complex case requiring a tailored discovery control plan (Level 3) [see T.RC.P. 190.2, 190.4]. Even if a suit for slander of title or other tort claim for monetary relief is joined in the action, Level 2 may be appropriate so as not to limit the damages sought to $50,000 or less [see T.RC.P. 190; see also Ch. 11, Plaintiffs Original Petition].

[2]-Form

No. _

v.

} IN THE COURT

OF COUNTY, TEXAS

___ - JUDICIAL DISTRICT

____ [name of plaintiff]

____ [name of defendant]

PLAINTIFF'S ORIGINAL PETITION TO THE HONORABLE COURT:

____ [Name], the plaintiff, petitions the court pursuant to the Declaratory Judgments Act, Chapter 37 of the Civil Practice and Remedies Code, for a declaration of the invalidity of a certain document and claim made by the defendant, [name], in order to quiet title to property in which the plaintiff has an interest, and for cause of action shows:

1. Selection of Discovery Level

!

The plaintiff [affirmatively pleads that (he or she

or it) seeks only monetary relief aggregating $50,000 or less, excluding costs, prejudgment interest, and attorney's fees under Civil Procedure Rule 190.2 or pleads that discovery should be conducted in accordance with a discovery control plan under Civil Procedure Rule 190.3 or pleads that discovery should be conducted in accordance with a tailored discovery control plan under Civil Procedure Rule 190.4].

(Rel.74-8104 Pub.719)

; .

§ 257.100[2]

SUIT TO QUIET TITLE

257-48

2. Parties and Service Instructions

The plaintiff is [a corporation or an individual or as the case may

be], residing in County, Texas. The defendant is [an

individual or specify type of entity], [residing or having a principal

place of business] in . County, Texas. Citation may be served on

the defendant [if legal entity: by serving (name), its

duly authorized agent for service.] at [street and city address], ____ County, Texas.

3. Plaintiffs Interest in Property

The plaintiff is the owner of [if interest is less than fee simple,

describe interest of plaintiff, e.g., the surface rights in] a certain tract of land located in [name of county] County, Texas, as more particularly

described in a deed to the plaintiff dated [date of conveyance

creating plaintiffs interest], recorded in Vol. , page , of

the Deed Records of County, Texas, a copy of which is attached as Exhibit A and incorporated by reference.

4. Defendant's Claim as Cloud on Title

On [date defendant'S claim commenced), the defendant

____ [state conduct creating claim, e.g., accepted and caused to be recorded] a certain [describe instrument or other evidence of claim, e.g., Deed of Trust Signed by (name) as grantor, purporting to create a lien for security purposes on (part of) the plaintiffs property as described in Paragraph 3, above]. A true copy of the [title of instrument evidencing cloud on title] is attached as Exhibit B and incorporated by reference.

5. Invalidity of Defendant's Claim

The [description of defendant's claim, e.g., deed of trust] under

which the defendant asserts an interest that interferes with the plaintiffs title, although appearing valid on its face, is in fact invalid and of no force or effect. The plaintiff will show that [allege grounds to invalidate defendant's claim, e.g., the person who executed the document had no title or interest in the property described and had no authority, actual or apparent, to encumber the plaintiffs property].

6. Attorney's Fees

The plaintiff has retained the law finn whose name is subscribed to this petition to represent the plaintiff in this action and has agreed to pay the firm (ReL 74-8104 Pub.719)

I

257-49

FORMS

§ 257.101[1][a]

a reasonable fee for necessary services. An award of attorney's fees to the plaintiff would be equitable and just and authorized by Section 37.009 of the Civil Practice and Remedies Code.

[If action for slander of title to be added, insert allegations from § 257.101[2]]

..• ~ • ,I

WHEREFORE, the plaintiff requests that the defendant be cited to appear and answer and that, on final hearing, the plaintiff have judgment as follows:

1. Declaring that the [describe claim or document to be removed

from title] is invalid [and unenforceable], ordering it removed from the title to the property made the subject of this litigation, and quieting title in the plaintiff.

2. Awarding the plaintiff judgment against the defendant for attorney's fees and costs of suit, together with such other and further relief to which the plaintiff may be justly entitled.

-- __ [If slander of title or other cause of action is joined, summarize

additional recovery or relief sought. See § 257.101[2]].

Respectfully submitted, ---- [firm name, if any]

By: [Signature]

____ [typed name] ____ [address]

____ [telephone number] ____ [fax number] ____ [state bar i.d. number]

Attorney for Plaintiff [name]

§ 257.101 Allegations for Addition of Slander of Title Action

[1~Comment

[a]-Use of Form

This form contains allegations that can be added to a petition to quiet title when the plaintiff seeks damages for slander of title [see §§ 257.10, 257.50[2][cJ]. The form includes a phrase to be added to the petition's prayer, asking for a money judgment and prejudgment and postjudgment interest. The cause of action is for injury to property, not for defamation, and is governed by the two-year statute of limitation, not the one-year statute [C.P.R.C. §§ 16.003, 16.002; see § 257.12[1]] and requires personal jurisdiction over the defendant.

(ReI.74-8104 Pub.719)

§ 257.101[1][b]

SUIT TO QUIET TITLE

257-50

"I

[b ]-Elements of Cause of Action for Slander of Title

The pleading as a whole must allege that [see Williams v. Jennings, 755 S.W.2d 874, 886 (Tex. App.-Houston [14th Dist.] 1988, den.)):

1. The plaintiff owns an interest in specific real property (an allegation set out as part of the suit to quiet title) [see § 257.11[1]].

2. The defendant is responsible for making or publishing words that are false, such as a claim to some interest in or lien on the property, and therefore disparage or interfere with the plaintiffs claim to the interest in property (a requirement usually satisfied as part of the allegations of the defendant's adverse claim in the suit to quiet title) [see § 257.11[2][a], [b]].

3. The defendant, in making or publishing the disparaging words (or false claim), acted with legal malice, meaning the defendant's conduct was deliberate and without reasonable cause [see § 257.11[2][c]).

4. As a result of the defendant's having made or published the false claim, the plaintiff was unable to complete a definite opportunity to sell the interest to a specific third party for a certain sum of money [see § 257.11[2][d]; Ellis

v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983)].

5. The fair market value of the property at the time of trial, without the cloud on the title created by the defendant's false claim, is zero or a stated sum of money.

[c)-Damages Recoverable

The actual damages recoverable for slander of title is the difference between (1) the money lost when the sale to a third party failed and (2) the value of the property, without the cloud, at the time of trial [see § 257.13[1]; Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W. 318, 333 (Tex. App.-Fort Worth 1998, pet. denied)]. If the plaintiff seeks exemplary damages in addition, the pleading and proof must show that the defendant acted with "actual" malice, as in other tort actions in which exemplary damages are requested [see § 257.13[2]; C.P.R.C. § 41.003(a); see also Ch. 20, Damages in Tort].

[2]-Form

[Add to petition to quiet title. See § 257.100[2]] 7. Defendant's Slander of Plaintiffs Title

The defendant's assertion of the invalid claim, as set out in the preceding paragraphs of this petition, amounted to an utterance and publication of false words, disparaging the plaintiffs title to the property described on Exhibit A. At all material times, the defendant acted with malice, making the false claim deliberately and without any reasonable grounds for doing so.

(ReL 74-8/04 Pub.719)

I

257-51

FORMS

§ 257.110[1][a]

-- !

8. Plaintiffs Damages

As a direct and proximate result of the defendant's malicious claim and interference with the plaintiffs rightful interest in the property made the subject of this litigation, the plaintiff was unable to complete a sale of that interest. On [date], a third party had made the plaintiff a definite

offer to acquire the plaintiffs interest for a consideration worth $, _

However, the offer was withdrawn and the pending sale totally frustrated when the third party discovered the defendant's false assertions during a routine title examination. The plaintiff will show that the present fair market value of the [plaintiffs interest in] property is no more than $ , even assuming that the court removes the cloud on the title cast by the defendant's wrongful and malicious claim.

[Add to prayer of petition to quiet title. See § 257.100[2]]

3. Awarding the plaintiff judgment against the defendant for a sum of money within the jurisdictional limits of the court, together with prejudgment and post judgment interest as allowed by law.

B. Defendant's Forms

§ 257.110 Original Answer in Suit to Quiet Title [l]-Comment

raJ-Use of Form

This form is an original answer for use by a defendant in a suit to quiet title who intends to defend the validity of the claim alleged to be a cloud on the plaintiffs title [see § 257.51]. In addition to the defensive stances indicated by the allegations in the form, the answer may include a counterclaim for affirmative relief [see T.R.C.P. 85, 97; see also Ch. 71, Cross-Claim and Counterclaim], such as a request to invalidate the plaintiffs claim or to validate the defendant's asserted right and, in either event, to quiet or vest title in the defendant to the extent claimed [see § 257.05[ 4][a]]. To that end, the counterclaim may be drafted by modifying the form for a plaintiffs petition in § 257.100[2] or adapting a petition in trespass to try title [see Ch. 251, Trespass to Try Title].

If the defendant does not claim any right, title, or interest in the property, the defendant may want to include a disclaimer of interest [see § 257.05[5]], ..but answer the plaintiffs lawsuit to defend against any liability for or seek recovery of attorney's fees and costs. If the petition served on the defendant contains additional allegations seeking damages for slander of title, other defenses may be necessary, as illustrated in § 257.111[2].

(Re1.74-8104 Pub.719)

§ 257.110[l][b]

SUIT TO QUIET TITLE

257-52

\-.,.

The responsive pleading must be filed timely, ordinarily before 10 a.m. on the Monday following the expiration of 20 days after citation was served on the defendant [T.RC.P. 99(b); see Ch. 70, Answer], and after and subject to any special appearance motion to challenge the court's exercise of personal jurisdiction [T.RC.P. 120a; see Ch. 60, Special Appearance] or a motion to transfer venue [T.RC.P. 86; see Ch. 61, Venue].

[b]-Contents of Answer

[i]-Special Exceptions and Denials

The answer may contain special exceptions to the plaintiffs pleading, pointing out any defect, omission, or other insufficiency of the plaintiffs allegations [T.RC.P. 91; see also [iii], below]. The defendant's answer must contain a general denial [T.RC.P. 92], calling on the plaintiff to sustain the burdens of going forward with the evidence and proving the essential elements of the cause of action. And, if the defendant wants to avoid admitting any fact alleged by the plaintiff that is set out in Civil Procedure Rule 93, the answer must contain a verified denial of that fact. For example, it is likely in land title litigation that the plaintiff will allege that an instrument was Signed by the defendant or the defendant's authorized agent or that an instrument was supported by consideration; these allegations will be admitted unless denied under oath [T.RC.P. 93; see Ch. 70, Answer].

[ii]-Affirmative Defenses

The affirmative defenses to the plaintiffs contention that the defendant's claim is invalid depend mainly on the theory of law under which the invalidity is charged [see §§ 257.05[2], 257.51]. Although the issues vary greatly [see § 257.01[2]-examples of quiet title litigation], affirmative defenses often arising in land title disputes include estoppel, illegality, ambiguity, limitation, and bona fide purchaser status. Each of these defenses must be set out affirmatively by the defendant [T.RC.P. 94].

With regard to the limitation defense, as a general rule, there is no time limit for bringing a suit to quiet title [Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 785 (1941)]. However, a statute of limitation may be an affirmative defense in some circumstances [see § 257.05[1]]. In one possible situation, the plaintiff may ask the court to rescind or reform some title document in order to establish the plaintiffs interest as superior to the defendant's claim; remedies ordinarily subject to the four-year statute of limitation. In another common fact pattern, the defendant's claim may consist of a right or title acquired by adverse possession or use, requiring the affirmative assertion of one or more statutes of limitation [see § 257.05[1]]. In each of these circumstances, the defendant should lodge a counterclaim to affirm the right or title claimed by the defendant [see § 257.05[ 4][aJ].

(Re1.74-8/04 Pub.719)

I

"'-- ..

257-53

FORMS

§ 257.110[1][b]

[iii] Contest of or Request for Attorney's Fees

The defense may choose different paths regarding the issue of attorney's fees in quiet title litigation. The defendant may object to the plaintiff's characterizing the quiet title action as a suit for declaratory relief and asking for an award of attorney's fees under the authority of the Declaratory Judgments Act (DJA) [Tex. Civ. Prac. & Rem. Code § 37.009; see § 257.01[4]]. In general, attorney's fees are not available in a suit to quiet title [Sadler v. Duvall, 815 S.W.2d 285, 293-294 (Tex. App.-Texarkana 1991, den.); see § 257.06[2]]. However, because attorney's fees are available in actions under the DJA [Tex. Civ. Prac .. & Rem. Code § 37.009], a plaintiff will often elect to plead a quiet title action 'under the DJA [e.g., Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333-334 (Tex. App.-Fort Worth 1998, pet. denied) (termination of oil lease based on quiet title and slander of title claims may be brought as declaratory. judgment action)]. If an. action necessarily involves a determination of title over disputed land.. the action generally must be brought as a trespass-to-try-title action,' and may not be brought as a declaratory judgment action in order to obtain attorney's .fees [see Martin v. Amerman, 133 S.W.3d 262, 267-268 (Tex. 2004) (boundary dispute determines title to land, and therefore is trespass-to-try-title action)]; however, declaratory relief is available when the "sole issue" as to title is the boundary line between adjoining properties [Tex. Civ. Prac. &: Rem. Code § 37.004(c)]. Moreover, the limitations on declaratory relief and attorney's fees in statutory trespass-to-try-title actions do not' apply to the equitable action of a suit to quiet title [see § 257.01[4] (use of declaratory judgment in quiet title actions)]

If the plaintiff has elected to plead the quiet title action as one under the DJA, the defendant must 'then decide whether to oppose that characterization [e.g., Southwest Guar. Trust Co. v. Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951,957 (Tex. App.-Houston [1st Dist.] 1998, pet. denied) (attorney's fees and declaratory judgment not available in quiet title action to cancel deed of trust)]. Because ~ suit under the DJA allows it fee award to either party, the defendant may actually have no objection to proceeding in an action for declaratory relief, which will allow the defendant to recover attorney's fees not otherwise available in a quiet title action. But if the defendant objects to the possibility of declaratory relief, special exceptions to the plaintiff's petition aimed at striking the claim for declaratory relief and attorney's fees allegations are available as a method for making the objection Isee [i], above; Boatman v. Lites, 970 S.W.2d 41,43 (Tex. App.-Tyler 1998, no pet.)].

Finally, even if the plaintiff has elected not to plead the applicability of the DJA to the quiet title action, the defendant may wish to do so in order to provide a basis for a subsequent award of attorney's fees in the action.

(ReI. 87·1112007 Pub.719)

§ 257.110[2]

SUIT TO QUIET TnLE

257-54

[2] Form

[Caption. See § 257.100[1]] DEFENDANT'S ORIGINAL ANSWER TO THE HONORABLE COURT:

____ --'- [Name], the defendant, [add, if appropriate: subject to the

foregoing (special appearance or motion to transfer venue)] files

this original answer to the plaintiff's original petition and shows:

[Optional special exceptions, if advisable to point out defect in plaintiff's

, . pleading] ..

1. Special Exceptions

The defendant specially excepts to paragraph of the plaintiff's

original petition and asks the court to order the plaintiff to replead, ____ ~_ [omitting or correcting] the petition because [state reasons for exception, e.g., the allegations that the plaintiff has retained an attorney and has and will incur liability for the attorney's fees in a reasonable amount are irrelevant to any issues in this litigation. There are no grounds or authority for plaintiff's recovery of attorney's fees in a suit to quiet title].

[Continue with special exceptions as necessary, then proceed with answer, as

follows] ,

2. General Denial

The defendant denies every allegation in plaintiff's original petition and demands proof by a preponderance of the credible evidence.

[Include special denials, to be supported by affidavit, as appropriate. See Ch. 70, Answer].

[Continue by adding affirmative defenses, if any, as in following example] 3. Affirmative Defense: Limitation

[Four-year statute as bar to preliminary equitable relief]

The plaintiff's request that the court order [rescission or

reformation] of [identify document in question, e.g., the reservation clause in the mineral deed of January 15, 1993] is a remedy barred by lapse of time because the plaintiff did not institute the lawsuit seeking that relief until more than four years after any such cause of action accrued and more than four years after the plaintiff discovered or should have discovered the existence of grounds for such relief.

[If defendant's right to property interest was perfected by adverse possession or

(ReI. 87-1112007 Pub.719)

257-54.1

FORMS

§ 257.110[2]

use, allege facts as required by applicable statute of limitation. See Ch. 250, Adverse Possession]

[If defendant takes position that quiet title action is appropriate under Declaratory Judgments Act, add request for recovery of attorney's fees incurred in defense]

4. Attorney's Fees

To handle the defense against the charges made by the plaintiff against the defendant's lawful interests, the defendant has engaged the services of the attorney whose name is subscribed to this answer. Pursuant to Section 37.009 of the Civil-Practice and Remedies Code, the defendant asks the court for judgment against the plaintiff for a sum equal to the reasonable and necessary attorney's fees incurred and to be incurred in the defense, including any appeals, of this litigation.

[Add any counterclaim to quiet title in defendant by adapting form in § 257.100[2]. Alternatively, if defendant's claim is for possession, consider framing counterclaim as action for trespass to try title. See Ch. 251, Trespass to Try Title].

(Text continued on page 257-55)

(ReI. 87·1112007 Pub.719)

~"-'

257-55

FORMS

§ 257.110[2]

[Continue to conclude answer] [Add counterclaim, if appropriate] WHEREFORE, the defendant requests:

1. That the court make an order sustaining the defendan'ts special exception to the petition, requiring the plaintiff to amend the petition before __ -- [date], and providing that, if the plaintiff fails or refuses to amend, the claim for [identify defective allegation made subject to exception, e.g., attorney's fees] will be stricken and dismissed.

2. That the court render judgment that the plaintiff take nothing by this suit, awarding the defendant recovery of all costs [and attorney's fees. incurred in the defense, together with interest as allowed by law].

3. [Summarize relief sought by counterclaim, if any, e.g., That

the court render judgment on the defendant's counterclaim by declaring that the plaintiffs claim to any right or interest inthe property in question is invalid and quieting tide to the property in the defendant].

4. That the court render judgment that the defendant-recover all costs and attorney's fees, and have such other relief to which the defendant may be justly

. entitled. .

[Signature. See § 257.100[21l

[Append affidavit to verify any special denials under T.R.C.P. 93] CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above Defendant's Original Answer has this day been [delivered in person or delivered in person by my agent or delivered by courier with receipted delivery or sent by certified mail or sent by telephonic document transfer before 5:00 p.m. of the recipient's local time] to [name, address, and designation, including telecopier number if sent by telecopier, e.g., attorney of record for (name of

party), at (address) ] .

____ [signature] Attorney for defendant

(Matthew Bender & Co .. Inc.)

(Rel.60-111OO Pub.719)

§ 257.111[I][a]

SUIT TO QUIET TITLE

257-56

§ 257.111 Defensive.Allegations in Suit Including Action for Slander of Title

[I)-Comment [a)-Use of Form

This form contains allegations that may be addedto the defendant's answer to a suit to quiet title [see § 257.110[2]] when the plaintiff has joined an action for damages for slander of title [see § 257.101[2]]. The slander cause of action effectively adds elements claiming (1) that the defendant is the party who made or recorded a false statement that disparaged the plaintiffs title and (2) that the defendant did so maliciously [see § 257.11[2][a]-[c]]. The defensive postures set out in these allegations may be taken to defeat these additional

elements. .

[b ]-Defensive Allegations

Among the defenses likely to be available to an action for slander of title, illustrated by a paragraph in the form below, include:

1. The bar oflimitation, considering that an action for slander of title must be brought within two years after the plaintiff lost a specific sale of the property because of the disparaging assertion [see § 257.12[1]; C.P.R.C. § 16.003; Hill v. Heritage Resources, 964 S.W.2d 89, 116 (Tex. App.-EI Paso 1997, pet. deniedl],

2. The fact that the defendant acted in good faith reliance on the advice of an attorney, thus inferentially rebutting any charge of maliciousness [see . § 257.12[2]; see also Ch, 70, Answer-discussing advisability of affirmatively pleading inferential rebuttal defenses].

3. The privileged nature of the defendant's conduct alleged to have been malicious [see § 257.12[3]].

[2]-Form

[Add one or more of the following to defendant's answer. See § 257.110[2]]

__ [Paragraph number]. Affirmative Defense: Limitation

The plaintiffs cause of action, the existence of which the defendant denies, is nevertheless barred by the two-year statute of limitation set out in Section 16.003(a) of the Civil Practice and Remedies Code because the plaintiff failed to institute the action within two years after the plaintiff allegedly lost the opportunity to sell the property in question.

(Matthew Bender & Co.. Inc.)

(Rel.60-lliOO Pub.719)

257-57

FORMS

§ 257.120[1][a]

'.,".

_' _ [Paragraph number]. Affirmative Defense: Reliance on Advice of Counsel

The defendant, in taking all actions to establish the validity of _

[describe defendant's claim alleged to be cloud on title, e.g., the oil and gas lease of (date)], relied in good faith on the advice of an attorney and thus acted with reasonable cause and without any malicious intent.

__ [Paragraph number]. Affirmative Defense: Privilege

Any claim the plaintiff may allege for slander of title based on statements or assertions contained in [describe document on which plaintiffs action based, e.g., a notice of lis pendens] is barred by the doctrine of privilege. The defendant has a legal right to. [make or sign or record or as the case may bel' such a document and the statements and claims contained . it in are within the privilege and free from liability for slander of title.

C. Judgment and Related Forms

§ 257.120 Judgment Quieting Title; Optional Award for Slander of Title '

[I]-Comment [a]~U~e of Form

This form is a proposed judgment for the trial judge'S signature to be prepared by a successful petitioner in a suit to quiet title [see § 257.52[1]]. The form illustrates a paragraph awarding damages that can be included when , ,'the petitioner pleaded and proved the additional cause of action for slander of title. '

. The pe,tition~r's attorney must serve a copy of _the proposed judgment on opposingcounseljsee T.R.GP. 305]. As a matter of courtesy. the drafter should ask counsel for the opposing parties to approve the form of the judgment. The original of the judgment IS submitted to the trial judge for signature and entry by the court clerk. The court clerk cari be requested to attest to a' copy of the judgment and that copy delivered to the county clerk for recording on the judgment records to finalize the removal of the cloud' on the title [see § 257.121[2]-fonn of clerk's certificate]. If the judgment awards the plaintiff a money judgment that is not paid promptly; collection efforts may commence by preparing and filing an abstract of the judgment in any county where the defendant has property and requesting the issuance of a writ of execution [see Ch. 132, Enforcement of Judgments].

(Matthew Bender & Co., Inc.)

(Rel.60-111OO Pub.719)

...... ~ ....

..... ,

~ ..

. -~'"

§ 2S7.120[1l[b]

SUIT TO QUIET TITLE

257-58 .

.,. ...

[b]-Contents of Judgment

The judgment must identify the parties and should state their names exactly as they appear on the title records. The judgment must identify the property in question, preferably by reciting the legal description of the property and referring to the volume and. page in the county deed records where the petitioner's title document is recorded. The judgment should specifically identify the claim considered to cloud the title, referring to the place where any document evidencing the cloud has been recorded. The invalidity or unenforceability of the adverse claim must be stated, using language that makes clear that the claim is of no force or effect with reference to the petitioner's property title [see § 257.07].

The judgment may also provide for the recovery of the petitioner's attorney's fees, if the quiet title action is properly asserted under the Declaratory Judgments Act [see § 257.06[3]].' If the petitioner included and successfully prosecuted an' additional cause of action such as one for slander of title, the judgment may award damages and interest [see § 257.13[1]].

[2]-Form

[Cdption. See § 257.100[2j] JUDGMENT

On [date trial began], this cause came on to be heard and

____ [name of plaintiffJ, the plaintiff, appeared in person and by attorney and announced .ready for trial. The defendant]s], , [name(s)] ____ [recite appearance or default 'as to each defendant, e.g., appeared

. in person and by attorney and announced ready for trial. [Recite

whether jury was demanded and used, e.g., No jury having been demanded, all questions of fact were submitted to the court or A jury having been demanded, a jury consisting of 12 qualified jurors was duly empaneled and the case proceeded to trial]. [if tried before jury, add: At the conclusion of the evidence, all questions of fact were submitted to the jury by the court's charge. After deliberation, the jury returned its verdict by answering the questions of fact in the charge].

The court, [based on the jury's findings or after hearing the

evidence and arguments of counsel] is of the opinion that the plaintiff is entitled to the following judgment:

IT IS ORDERED that the' [identify adverse claim found to cloud

title, e.g., Deed of Trust dated (date), Signed by (name)

as grantor, recorded at Vol. ,page , of the Deed of Trust

Records of County, Texas.] is invalid and of no force and effect.

(Matthew Bender & Co .. Inc.)

(Rel.60-111OO Pub.7(9)

257-59

FORMS

§ 257.121[1]

.. -1

IT IS FURTHER ORDERED that the title to the following described real property is quieted in [name]: That certain tract or parcel of land in County, Texas, described as [legal description by lot, block, and subdivision, metes and bounds, or as the case mo.y be], and being

the same property conveyed by a Deed dated [date of conveyance

to plaintiff] and recorded in Vol. , page , of the Deed

Records of County, Texas.

IT IS FURTHER ORDERED that the plaintiff recover from the defendant attorney's fees in the sum of $ for services rendered' in this proceeding through the trial of this case. In the event of an appeal by the defendant to the court of appeals, if the appeal is unsuccessful, the plaintiff will be further entitled to $ as a reasonable attorney's fee; in the event of an appeal

. by the defendant to the Texas Supreme Court, if the appeal is unsuccessful, the plaintiff will be entitled to an additional $ . The sum, so awarded may be collected along with the sums due under this judgment by the methods .set forth above and by any other process or remedy available.

[If action for slander of title was successful. add]

IT IS FURTHER ORDERED that [name of plaintiff] recover

from [name of defendant] actual damages in the sum of

$ , with interest at the rate of percent per annum from

____ [date] until the day of this judgment and thereafter at the rate of ___ percent per annum until paid.

All costs of court expended or incurred in this cause are taxed against [name and party deSignation]. All writs and processes for the enforcement and collection of this judgment or the costs of court may issue as necessary. All relief not expressly granted is denied.

SIGNED on [date].

JUDGE PRESIDING

Approved as to form:

[Signature. See § 257.100[2]]

§ 257.121 Clerk's Certificate Attesting to Judgment [l]-Comment-Use of Fohn

This form is a certificate to be appended to a copy of the final judgment quieting title, then the document presented to the court clerk to sign and affix the court's seal [see §§ 257.07, 257.52[2]]. Once attested by the court clerk,

(Matthew Bender 81. Co .• Inc.)

(ReI.60-II/OO Pub.719)

§ 257.121[2]

SUIT TO QUIET TITLE

257-60

the judgment can be recorded by the county clerk in the judgment records of the county where the real estate is located [Prop. C. § 12.013, Local Gov. C. § 191.007]. Anyone examining the title to the property in the future will be on notice that the cloud has been removed.

v

STATE OF TEXAS

COUNTY OF _

[Add at bottom of copy of judgment]

} A~S;~

.:.,"

The foregoing document is a .trueand correct copy of the Judgment duly

rendered by the [identify court] in County, Texas, on

, [date] and entered in the minutes of the Court at [place

entered by clerk], to certify which witness my official signature and seal of the

court on [date].

____ [Name of clerk]

DISTRICT CLERK, _

COUNTY, TEXAS

[Court's seal]

By: .; [signature line], Deputy

(Mauhew Bender'" Co .• Inc.)

(Rel.60-111OO Pub.719)

PART IV. RESEARCH GUIDE

§ 257.200 Texas Constitution

jurisdiction of district court. Tex. Const. Art. 5 § 8

.. :.,

§ 257.201 Texas Statutes and Rules [l]-Statutes

Abstractofjudgment: perfection of judgment lien. Prop. C. §§ 52.002,

52.003'

Attorney's fees; declaratory judgment action. C.P.RC. § 37.009 Decedent's estate as party; joinder of heirs. C.P.RC. § 17.002 Decedent's estate as party; transfer of action to court handling estate.

Prob.C. §§ 5, 5A

Declaratory Judgments Act. C.P.RC. § 37.001 et seq.

Exemplary damages; definition of "malice" for recovery. C.P.RC. § 41.001

'Exemplary damages; limits on amount. C.P.RC. § 41.008

Guardian of incompetent or minor as party; transfer of action to court handling estate.Prob. C. § 607

. Jurisdiction of district courts. Gov. C. §§ 24.007, 24.008 Limitation; general' four-year statute. c.r.a.c. § 16.051

Limitation; two-year statute for most tort actions. C.P.RC. § 16.003 Recording documents in county records; requirements. Prop. C.

'§ 12.013; Local Gov. C. § 191.007' .

Suing party whose residence is unknown: C.P.RC. § 1 T003

,'. ..' :' . I

Suing party whose identity is unknown: C.P.RC. § 17.005

Venue, general rule. q.P.RC. ~ 15.002(a)

Venue, suit 'to quiet title. C.P.RC. § 15.011

[2]...;.i.;.Rules

Attachment of exhibit to pleadings. T.RC.P. 59

Citation when residence or identity of party is unknown. T.RC.P. 108,

114-116, 811

Counterclaim for affirmative reliefT.R.C.P. 85, 97 Defenses, affirmative pleadings required. T.~.C.P. 94 Denials, generally. T.RC.P .. 92

Denials required to be under oath. T.RC.P. 93 "

(Matthew Bender It Cc.. Inc.)

(Rel.6(}..ll,oo Pub,719)

257-61

§ 257.202[1]

SUIT TO QUIET TITLE.

257--62

'1·,.

Parties needed for just adjudication. T.RC.P. ,39 Party whose residence is unknown. T.RC.P. 810 Pleading amount in controversy. T.RGP. 47 Special exception to pleadings. T.RC.P. 91

§ 257.202 Case Law

[l]-Examples of Clouds on Titles

Title to casinghead gas produced from oil well is proper subject of action to quiet title. Amarillo Oil Co. v. Energy-AgriJProds., 794 S.W.2d

20, 22 (Tex. 1990)' dJt

Right of first refusal, appearing valid on, its face.vis cloud on title. Ellis v. Waldrop, 656 S.W.2d 902, 904 (Tex. 1983)

Invalidity of easement can be determined in suit to quiet title. James J.

Hartnett, P.C. v, City of Dallas, 5 S.W.3d 384, 386-387 (Tex. App.Fort Worth 1999, no pet. h.)

Claim of title by parol gift and adverse possession is cloud on title that can be attacked by suit to quiet title. Dickson v. Dickson, 993 S.W.2d 735, 736-:-739 (Tex. App.-Houston [14th Dist.] 1999, no pet.)

Judgment lien, unenforceable against plaintiffs homestead, is cloud on title removable in equity, subjecting lienor to liability for damages for slander-of title. Tarrant Bank v. Miller, 833 S.W.2d 666, 667 (Tex.

App.-Eastland 1992, den.) ' ..

Mechanic's and materialman's lien, validon its face but filed without compling with controlling statutes, is removable cloud on property owner's title. Industrial Structure & Fabrication v. Arrowhead Indus. Water, Inc., 888 S.W.2d 840, 842-844 (Tex. App':LHouston [Ist Dist.] 1994, no writ) .

Termination of oil and g~ lease can be determined insuit to quiet title.

Duncan Land & Exploration, Inc. v. Littlepage,984 S.W.2d 318,323- 331 (Tex. App.-Fort Worth 1998, pet. denied); Exploracion De La Estrella v. Birdwell, 858 S.W.2d 549, 551 (Tex. App.-Eastland 1993, no writ)

[2]-Jurisdiction and Venue

Quiet title action against prior grantor having legal guardian must be transferred from court in county where land is located to court where guardianship is pending. Henry v. Lagrone, 842 S.W.2d 324,327-328 (Tex. App.-Amarillo 1992, orig. proceeding)

(Matthew Bender '" Co .. Inc.)

(Rel.60-1I1OO Pub.719)

257-63

RESEARCH GUIDE

§ 257.202[4]

, [3]-Interest Necessary for Standing to Sue

Holder of "feeblest equity" can sue for removal of cloud on title. Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (1886); Bell v. Ott, 606 S.W.2d 942, 952 (Civ. App.s--Waco 1980, ref. n.r.e.)

Lessor's or lessee's interest in minerals in place is sufficient to confer standing for suit to remove cloud from title to minerals. Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 785 (1941); Amarillo Oil Co. v. Energy-Agri Prods., 794 S.W.2d 20, 22 (Tex. 1990)

Quiet title petitioner is not requited to prove superior title or trace title hack to sovereign. Exploracion De La Estrella v. Birdwell, 858 S.W.2d 549, 553 (Tex. App-c-Eastland 1993, no writ)

Plaintiff seeking to quiet title must establish some ownership interest; mere intention to acquire interest in future is insufficient. Bell v. Ott, 606 S.W.2d942, 952-953 (Civ. App.-Waco 1980, ref. n.r.e.)

Equitable interest under contract to purchase realty is sufficient to proceed with suit to quiet title. Henry v. Mr. M Convenience Stores, Inc., 543 S.W.2d 393,,396 (Civ. App.-Houston [14th Dist.] 1976, ref. n.r.e.)

[4]-Necessity to Prove Invalidity of Adverse. Claim

Purchaser at foreclosure sale was not entitled to judgment removing cloud from title when prooffailed to invalidate former owner's claim to excess funds alleged to constitute cloud. Syntax, Inc. v. Hall, 899 S.W.2d 189, 190-192 (Tex. 1995)

. Plaintiff could reform .document in chain of title to establish superior interest and resulting invalidity of defendant's claim. Alkas v. United Say. Ass'n of Texas, Inc., 672 S.W.2d 852, 858 (Tex. App.-Corpus Christi 1984, ref. n.r.e)

Abstract of judgment was cloud on title to plaintiffs homestead, removable by suit to quiet title, because extrinsic evidence was necessary to establish homestead and defeat facial validity of judgment lien. Tarrant' Bank v. Miller, 833 S.W.2d 666,667--668 (Tex. App.Eastland 1992, den.)

Cloud on title exists when outstanding claim or encumbrance appears valid on its face and would affect or impair title to property. Sadler v. Duvall, 815 S.W.2d 285, 293 n.2 (Tex. App.-Texarkana 1991, den.)

Cloud on title is any unlawful hindrance to plaintiffs interest that has appearance of greater right. Bell v. Ott, 606 S.W.2d 942, 952 (Civ. App.~Waco 1980, ref n.r.e.)-quoting from Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 115 (1886)

(Matthew Bender'" Co .• Inc.)

(Rel.60-111OO Pub.719)

§ 257.202[5][a]

SUIT TO QUIET TITLE

257--M

Invalid instrument i~ removable cloud on title even if unrecorded. Texan Dev. Co. v. Hodges, 237 S.W.2d 436,439 (Civ. App.-Amarillo 1951, no writ)

[5]-Additional Elements for Slander of Title Action [a]-Malicious Publication of False Claim Disparaging Title

. Slander of title can be shown by proof that defendant maliciously uttered or published disparaging words that were falseand caused plaintiff to lose specific sale of property. Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 331-?3.2(Tex. App.i--Fort Worth 1998, pet. denied); Hill v. Herita_geReS'ources, 964 S.W.2d 89, 110

(Tex. App.-EI Paso 1997, pet. denied) .

Malice, as element of action for slander of title, was negated by evidence that defendant mineral lessee had right, pursuant to proportionate reduction clause in mineral lease with plaintiff claiming limitation title, to obtain additional lease from party claiming record title. Santa Fe 'Energy Operating Partners LP v. Carrillo, 948 S:W.2d 780, 783- 785 (Tex. App.-San Antonio 1997, den.)

Slander of title was proved when (1) defendant's mineral lease with third party stated that defendant had interest in property, false statement made without reasonable cause; (2) lease was recorded, constituting publication; and (3) plaintiffs title was disparaged because plaintiff could not enter into mineral lease until cloud on title was removed. Williams v. Jennings, 755 S.W.2d 874, 882 (Tex. App.-Houston [14th Dist.] 1988, den.)

Malice, as element of slander of title, means deliberate conduct without reasonable cause. Duncan Land & Exploration, Inc. v. Littlepage, 984 . S.W.2d 318, 331-332 (Tex. App.-Fort Worth 1998, pet. denied); Kidd v. Hoggett, 331 S.W.2d 515,518 (Civ. App._:_San Antonio 1959, reLn.r;e.)

Evidence that defendant consulted with counsel and acted with bona fide belief that claim was valid was relevant to detenniriation of malice in slander of title action. Humble Oil & Ref. Co. v. Luckel, 171 S.W.2d 902, 906 (Civ. App.-Galveston 1943, ref. w.o.m.), MUITen v. Foster, 674 S.W.2d 406, 412 (Tex. App.-Amarillo 1984, no writ)

[b ]-Loss of Specific Sale

Slander of title recovery requires proof of loss of specific .sale, mere expense of higher interest due to loss of ability to obtain development loan is insufficient to recover damages. Ellis v, Waldrop, 656 S.W.2d 902, 905 (Tex. 1983)

(Manhew Bender & Co .• Inc.)

(ReI.60-1l1OO I"ub,}19)

~57·(jS

. REsEAR<;:H GUIDE

§ 257.202[8]

Plaintiff must prove loss of specific sale,not mere impairment of vendability, to recover damages, for.slanderof title, AH. Belo Corp, v,Sanders,632 S.W.2d 145, 146 (Tex. 1982);. Texas.Am, .Corp .. .v. Woodbridge Jo~t, Venture, 809 s.wza 299, 304 (Tex. App.-Fort Worth 1991, den.)

[6] Damages'

Damages are not recoverablein action' to quiettitle absent proof of elements of cause of action for slander of title, including loss of specific sale of property due to cloud on tiUe:'Ellis v:Waldiop, 656 S.W.2d 902, 905·(-Tex. 1983); Pampell Interests.Tnc. v.

Wolle, 79is\V.2d 392,. 395"(Tex. App.::'::_Austin' 1990, no writ) . . .

..' . '_'.} "_ .

Quiet title action, which affords no monetaryrecovery, can be properly joined with tort action such as for conversion of timber to allow recovery of damages. Sadler, v. Duvall, 815 S.W.2d 285,286 (Tex. App.-Texark.~a 1991, den.)

Failure to release invalid claim was undertak~n with 'actual malice, justifying imposition of "exemplary damages. Williams v: Jennings, 755 S.W.2d 874, 882 (Tex. App.e--Houston

"[14th Dist,'] 1985, den.) , ,

, ) , ",' .c, , , \ . .

[7] Limitation

Once limitations has expired for setting aside deed for fraud, limitations bar cannot be ,evaded by asserting alternative .quiet title claim ill equity. Ford v. Exxon Mobil, 235 S.W.3d 615, 618-619 (Tex. 2007) "

Cloud on title causes continuous injury. such that limitation never runs. Watson v.

Rochmill, 155 S.W.2d 783, 785, 137 Tex. 565 (1941); Stone v. Brown, 621 S.W.2d

182, 183 (Tex. App=-Texarkana 1981, ref: n.r.e.) - .

Suit to quiet title by having title document reformed is governed by four-year statute of limitations, subject to discovery rule; however, blanket exception to limitations exists if grantor remained in possession and no intervening rights of bona fide purchaser exist. Strong v. Garrett, 224 S.W.2d 471, 148 Tex. 265, 274 (1949); Henderson v. Henderson, 694 S.W.2d 31, 36 (Tex. App.-Corpus Christi 1985, ref. n.r.e.)

Action for slander of title is within two-year statute of limitations, beginning when loss of specific sale occurs. Hill v. Heritage Resources, 964 S.W.2d 89, 116 (Tex. App.-EI Paso 1997, pet. denied)

[8] Attorney's Fees

Boundary dispute must be brought as trespass-to-try-title action and cannot be presented as declaratory judgment action in order to obtain award of attorney fees. Martin v. Amerman, 133 S.W.3d 262,267-268 (Tex. 2004)

Plaintiff may recover attorney's fees in suit to declare oil lease terminated as authorized by Declaratory Judgments Act. Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318, 333-334 (Tex. App.-Fort Worth 1998, pet. denied)

Attorney's fees are not allowed in suit to quiet title because court is not required to construe or interpret any contract. Southwest Guar. Trust Co. v. Hardy Rd .. 13.4 Joint Venture, 981 S.W.2d 951, 957 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)

Attorney's fees are not recoverable in action to quiet title because general attorney's fees statute is not applicable. Sadler v. Duvall, 815 S.W.2d 285, 293-294 (Tex. App.-Texarkana 1991, den.)

Defendant must raise issue of propriety of award of attorney's fees such as by taking special exception to plaintiff's pleading for the award. Boatman v. Lites, 970 S.W.2d 41,43 (Tex. App.-Tyler 1998, no pet.)

(ReI. 89-5/2008 Pub.719)

'--

-. ,

§ 257.202[9]

SUIT TO Qinsr T!TI.E

'257-66

Attorney's fees are not allowed-as part of recovery for slander of title. Texas Am. Corp. v, - Woodbridge Joint Venture, 809 S .. W,2d 299, 304 (Tex. App.~Fort Worth 1991, den.); Williams v. Jennings, 755' S.w'2ii"874, 886 (Tex. App._:_Hbustori [14th Dist.] 1988,

den.) -

Attorney's fees are proper in suit under declaratory judgments statute to remove cloud from title and declare rights of parties with regard, to easement. Anderson v. McRae,

495 S:W,2d 351~ 356 (Civ.~App:~texarkami 1973, no writ) -: ,

Proof of attorney's time and effort in pursuit of declaratory judgment must be segregated from services rendered to establish malice and damages, elements of slander 'of title for which attorney's fees are not recoverable. American Nat'l Bank & Trust Co. v. First ! WisconsinMortgage Trust, 577 s.w.sa 312, 319-320 (Tex. App.e-Beaumont 1979, refn.re.)

, [9] Privilege Defense to Slander of Title

Communication during civil action l.S privileged and cannot form basis .for action for slander of title. Hill v. Heritage Resources, 964 S.w'2d 89, 129 (Tex. App.~EI Paso 1997, pet. denied); Hauglum v.Durst, 769 S.w'2d 646, 653 (Tex. App.--Corpus Christi 1989, no writ)

.Filing of lis pendens is privileged conduct, not subjecting filer to liability for slander of title. Prappas v. Meyerland Community Improvement Ass'n, 795 S.w'2d 794,795-799

(Tex. App.--Houston [14th Dist.] 1990, den.) .' ', "

§ 257.203 ,LaW' Reviews and Periodicals

" -

McConnell, Slander of Title: Onward Through the Fog, 24 S. rex. LJ. 171 (1983)

§ 257.204 Text References

TEXAS TRANSACTU)N GI,JIDE, en, 78, Curing TitleDefects

( -

.. :;'.

(ReI. 89-512008 Pub,719)

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