Mayor still remains as defendant in trespass-to-try title lawsuit

 

Mayor Annise Parker, in her individual and official capacity v. Afework Hunegnaw, 14-13-00031-CV (Tex. App. – Houston [14th Dist.], February 27, 2014).

Mayor Parker appeals the denial of her second amended plea to the jurisdiction in this trespass-to-try-title suit. The 14th District Court of Appeals affirmed the denial.

Hunegnaw owed several lots and executed a durable power of attorney (“POA”) to an agent to handle the property, including selling or conveying. Hunegnaw asserts the instrument applied only to lots 36F and G while Mayor Parker contends it applied to all property in the track. In 2004 five lots were transferred to one Treasa Antony vie deed bearing Hunegnaw’s signature which was a stamp given to his agent under the POA. Antony sold three lots to the City of Houston via general warranty deed. Hunegnaw asserts the deeds were invalid because Antony’s deeds were forged and not authorized. Hunegnaw sued the agent, Antony, the notary, and the City’s sitting mayor at the time. He asserts the City is wrongfully withholding possession of the property.  Mayor Parker asserts the claims against the City are barred by governmental immunity and the Mayor, as a public official, is also immune unless she acted in an ultra vires manner. The trial court denied the plea, Parker appealed, this court previously affirmed the denial in a former opinion.  The court notes that in the former opinion, no claims against Parker were viable against her individually, but only in her official capacity.  Parker filed a second plea/MSJ with supporting evidence. The trial court denied the 2nd  plea/MSJ and Mayor Parker appealed.

The court first held that the fact a grantee is an innocent purchaser is immaterial because one cannot obtain bona fide purchaser status when there is a forged deed. The court analyzed several challenges to Hunegnaw’s affidavit but determined Parker waived several by not objecting, they were complaints as to defects in form, most (but admittedly not all) of the statements are supported by evidence and therefore not conclusory, the court’s standard of review does not permit the inferences argued by Parker, and Hunegnaw properly raised genuine issues of material fact precluding both the plea and MSJ.  The court next concluded that it is unclear whether Hunegnaw learned of the alleged fraud prior to the City’s purchase and should have acted since the definition of “the summer of 2004” is open to different interpretations. Finally, even though Parker was not the mayor at the time of the transfer, she is the one currently “wrongfully possessing” the property.  While Parker asserts it is the head of the Parks and Recreation Department is the proper official, she presented no evidence identifying the official, negating she lacks control over the decisions regarding the property, or that the department head is the proper party. As a result, the trial court properly denied her 2nd Plea and MSJ.

If you would like to read this opinion click here.  Panel: Justices McCally, Donovan, and Brown. Opinion by Justice Donovan. The attorneys listed for Mayor Parker are Malinda York Crouch and John B. Wallace.  The attorney listed for Hunegnaw is Bill Lee Voss.