Jay Cohen v. Tour Partners, LTD., Dennis J. Wilkerson, and Eighteen Investments, Inc.
01-15-00705-CV
| Tex. App. | Apr 27, 2017Background
- Cohen formerly owned one-third interest in property at 2017 Preston Avenue; title passed through multiple entities including Preston Realty (Dilick), Tour Partners, and later Ellington.
- A February 2010 instrument labeled a “Special Warranty Deed” was recorded naming Preston Realty as grantor and Tour Partners as grantee but contained no operative conveyance language identifying what interest, if any, was transferred.
- Cohen learned of the 2010 filing in April 2010, litigated related matters in multiple suits, and ultimately asserted a TUFTA (fraudulent-transfer) claim and other counterclaims against Tour Partners in Suit Number Three in 2013.
- Tour Partners moved for summary judgment in Suit Three, arguing Cohen’s claims were time-barred (limitations) because the 2010 filing perfected a transfer; it also raised no-evidence grounds and later a res judicata argument.
- After a hearing, Cohen filed a brief characterizing the 2010 instrument as “nothing more than a quitclaim deed”; the trial court treated that as a judicial admission, held the 2010 filing perfected a transfer, and granted summary judgment on limitations grounds.
- The court of appeals reversed: it held (1) Cohen’s characterization was a legal question and not a judicial admission; (2) the 2010 instrument, lacking operative words of grant, was not a deed as a matter of law and therefore did not perfect a TUFTA transfer or start accrual of Cohen’s claims; and (3) alternative no-evidence and res judicata grounds were not resolved and the case was remanded.
Issues
| Issue | Cohen's Argument | Tour Partners' Argument | Held |
|---|---|---|---|
| Whether Cohen’s post-hearing statement that the 2010 instrument is “nothing more than a quitclaim deed” constituted a judicial admission | Statement was clarification of counsel’s legal position and cannot bind client on a question of law | The concession admitted the 2010 instrument at least qualified as a quitclaim deed, starting limitations | Not a judicial admission — parties cannot judicially admit questions of law; court erred to treat it as such |
| Whether the 2010 recorded instrument was a deed (thus perfecting a transfer for TUFTA accrual) | Instrument has no operative words of grant and therefore is not a deed; it conveyed nothing so limitations did not begin in 2010 | The recorded instrument, even as a quitclaim, perfected a transfer when recorded, starting TUFTA’s 4-year accrual | The instrument is not a deed as matter of law (no words of grant); it conveyed nothing and did not start TUFTA limitations |
| Whether Cohen’s unjust-enrichment and fraud claims accrued in 2010 based on his knowledge of the 2010 filing | Because the instrument transferred nothing, Cohen suffered no injury in 2010 and limitations did not accrue then | Recording and Cohen’s knowledge of the 2010 filing began accrual of these claims | Trial court erred; knowledge of the 2010 filing did not start accrual because the instrument conferred no benefit/injury |
| Whether alternative grounds (no-evidence, res judicata) support affirmance of summary judgment | Opposed — he lacked discovery/time to respond to no-evidence points; res judicata not finally adjudicated | Sought affirmance on no-evidence and, via cross-appeal, argued res judicata would bar claims | Appellate court declined to affirm on unruled alternative grounds; remanded for further proceedings and possible discovery |
Key Cases Cited
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (standard of review for summary judgment)
- Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) (defendant must negate at least one element or establish affirmative defense in traditional summary judgment)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (evidence viewed in light most favorable to nonmovant on summary judgment)
- Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32 (Tex. App.—Houston [1st Dist.] 2011) (construction of deed is question of law; four essential characteristics of a deed)
- Geodyne Energy Income Prod. P’ship I-E v. Newton Corp., 161 S.W.3d 482 (Tex. 2005) (distinguishing warranty deed and quitclaim; courts look to instrument language to decide whether it conveys property or merely grantor’s rights)
- Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323 (Tex. 2011) (elements of fraud and limitations period)