13. I was not present when my rubber stamp signature was used or when [Figueroa] notarized the stamped signature. Further Affiant sayeth naught.
In summary, Hunegnaw averred, in pertinent part, that (1) his alleged signatures on the deeds transferring the property to Antony were made with the stamp, (2) Hunegnaw did not authorize use of the stamp to transfer the property, (3) the deeds were executed without his knowledge, and (4) contrary to the notary’s attestation, Hunegnaw was not present when the deeds were executed and notarized and did not request her notarizations. We conclude such averments, if admissible and not controverted by conclusive evidence, are sufficient to raise a genuine issue of material fact on whether the deeds were forged.
Parker contends Hunegnaw did not raise a fact issue for several reasons: (1) Hunegnaw did not aver that his statements are true; (2) the statements are conclusory; and (3) by executing the POA and providing Herbert the stamp, Hunegnaw authorized his signatures. We disagree with all of these arguments.
1. No averment that statements are true
A notary attested on the affidavit that it was “SWORN TO AND SUBSCRIBED” by Hunegnaw before the notary, but Hunegnaw did not aver that his statements are true and correct. However, Parker waived her challenge to any such defect because the record does not demonstrate she objected and obtained a ruling in the trial court.
A contention that an affiant’s failure to state his assertions are true and correct is a complaint regarding a defect in form, which the complaining party waives by failing to object and obtain a ruling in the trial court. Garcia v. Bank of Am. Corp., 375 S.W.3d 322, 330 n.9 (Tex. App.-Houston [14th Dist.] 2012, no pet.); New AAA Apartment Plumbers, Inc. v. DPMC–Briarcliff, L.P., No. 14–05– 00485–CV, 2006 WL 2827275, *2 (Tex. App.-Houston [14th Dist.] Oct. 5, 2006, no pet.) (mem. op.); see Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 736 (Tex. App.-Houston [14th Dist.] 2013, pet. filed) (en banc).
The trial court signed the order denying the plea six days after Hunegnaw filed the affidavit. Parker did not file any objections to Hunegnaw’s affidavit during this period, despite the trial court’s earlier indication that it would consider evidence filed after the hearing. On appeal, Parker does not mention the failure to object, much less advance any reason that she lacked an opportunity to object. Further, there is no record of the hearing at which the trial court heard the motion to reconsider, to show Parker objected at that time.
Parker filed her own motion to reconsider after the trial court signed the order. In that motion, Parker objected to the affidavit but did not make the same challenge to the form of the affidavit that she raises on appeal. Parker objected that the affidavit was self-serving, conclusory, contained unsubstantiated opinions, and was based on hearsay, although she did not obtain a ruling on these objections or object to the lack of a ruling. Parker did not object that Hunegnaw failed to aver his statements are true, assuming without deciding that such an objection after the trial court’s order would have preserved error.
Accordingly, Parker waived her appellate complaint that Hunegnaw failed to aver his statements are true.
2. Contention that statements are conclusory
Parker further contends the affidavit contained conclusory statements. This complaint is a challenge to an alleged substantive defect, which Parker may raise on appeal even if she did not timely object in the trial court and obtain a ruling. See Pico v. Capriccio Italian Restaurant, Inc., 209 S.W.3d 902, 909 (Tex. App.- Houston [14th Dist.] 2006, no pet.). A conclusory statement is “one that does not provide the underlying facts to support the conclusion.” Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (quoting Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1997, no writ)). A conclusory statement in an affidavit unsupported by facts is insufficient to defeat summary judgment. C.A. Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).
We acknowledge some of the averments challenged by Parker are arguably conclusory, particularly Hunegnaw’s multiple references to Herbert’s actions as “fraudulent” and “unlawful.” However, Hunegnaw’s affidavit raised a fact issue on whether the deeds were forged even if we disregard those statements. The pertinent averments-that Hunegnaw’s alleged signatures on the deeds were made with the stamp, he did not authorize use of the stamp to transfer the property, and the deeds were executed and notarized without his knowledge or presence-are not conclusory. These are statements of fact which do not require underlying support.
In fact, Parker cites only one of those averments as purportedly conclusory- the statement that “it was discovered” the signatures were made with the stamp. Parker asserts Hunegnaw failed to provide facts about who made the discovery and how it was made. However, immediately before this statement, Hunegnaw averred, “After learning of the fraudulent and unlawful transfer, I obtained a copy of the transfer documents from The Harris County Clerk.” Construing the statements in context, it is reasonable to infer Hunegnaw personally discovered the use of the stamp by reviewing the deeds.
3. The POA and the stamp
Parker contends Hunegnaw authorized Herbert to sell the property by giving Herbert the POA and the stamp of Hunegnaw’s signature. Parker suggests the authorization was provided through either each act alone or a combination of these acts. Irrespective of the parties’ dispute on whether the POA applied to all of Hunegnaw’s property or only lots 36F and 36G (not sold to the City), the POA clearly provided it would take effect “upon [Hunegnaw's] disability or incapacity.” There is no evidence, and Parker does not suggest, Hunegnaw was disabled or incapacitated when the property was transferred to Antony.
Parker suggests the fact Hunegnaw traveled abroad for significant periods indicates he meant for the POA to take effect immediately upon its execution because he needed someone to manage his affairs. However, such a conclusion is contrary to the express terms of the POA providing it would take effect upon Hunegnaw’s disability or incapacity. There is no evidence that, contrary to such terms, Hunegnaw meant for the POA to take effect immediately, assuming without deciding the POA could be orally modified. In fact, Hunegnaw’s affidavit negates such intention. Moreover, under our standard of review, we may not indulge the inference suggested by Parker, in her favor. Instead, we may indulge an inference in favor of Hunegnaw, that, by limiting the events triggering the POA, he may have made other provisions for managing his affairs while we was abroad, unless he became disabled or incapacitated.
Additionally, Parker contends that Hunegnaw’s giving Herbert the stamp of his signature, in conjunction with the POA, established Hunegnaw intended to vest Herbert with immediate authority to manage Hunegnaw’s affairs. Again, the affidavit negates such intention. Further, there is a contrary inference that Hunegnaw gave Herbert the stamp in case one of the events triggering Hunegnaw’s authority under the POA occurred.
Parker also suggests that, regardless of Hunegnaw’s intentions, giving Herbert the stamp necessarily authorized Herbert to transact business on Hunegnaw’s behalf by making Herbert his agent, implied if not express. Parker cites only one Texas case, an unpublished opinion, in support. In CRS Ins. Agency Inc. v. Moore General Agency, Inc., No. 09–95–196 CV, 1997 WL 34388, *5–6 (Tex. App.-Beaumont Jan. 30, 1997, no pet.) (not designated for publication), the court held the evidence was sufficient to support a finding, after a bench trial, that the defendant company was a party to the contract at issue which bore its representative’s signature. The representative testified he did not sign the contract or grant his employee who was shown as witness authority to sign on his behalf. Id. at *5. The court held that even if the trial court believed the representative did not personally sign the contract, the court could have found he gave the employee authority to sign on his behalf. Id. The court stated that, by allowing the employee to possess and control the representative’s signature stamp, the representative clothed the employee with apparent authority to use the representative’s signature to legally bind the company. Id.
CRS is distinguishable from the present case in pertinent respects. That case was an appeal from a bench trial; thus, the appellate court was required to uphold the judgment as long as sufficient evidence supported the finding that the representative signed, or authorized his signature on, the contract; and the trial court was free to weigh the evidence, disbelieve the representative’s testimony, and discount controverting evidence. See id. at *5–6. In contrast, under the summary-judgment standard, Parker must conclusively establish that Hunegnaw vested Herbert with immediate authority to use the stamp for any purpose; and we are required to believe Hunegnaw’s testimony negating such authority. Moreover, the CRS court cited other evidence showing the employee was given authority to sign business documents with the stamp and she used it on other relevant documents. Id. at *5. In contrast, there is no other evidence demonstrating Hunegnaw intended to vest Herbert with such authority.
In summary, Hunegnaw raised a genuine issue of material fact on whether the deeds transferring the property to Antony were forged and thus whether the City was a bona fide purchaser and holds superior title.[3] We overrule Parker’s first issue.
B. Contention that Hunegnaw “dealt” with the “alleged deceiver”
In her second issue, Parker contends that even if there is a fact issue on whether the deeds were forged, Hunegnaw, not the City, is the innocent party who must bear the loss because he was the party who “dealt” with Herbert. However, the fact that a forgery in a chain of title precludes bona fide purchaser status negates that Hunegnaw is necessarily the party who must bear the loss. Instead, the fact issue to be resolved is whether the deeds were forged, and disposition of the title dispute does not turn on the fact that Hunegnaw dealt with Herbert. Accordingly, we overrule Parker’s second issue.
C. Hunegnaw’s failure to immediately challenge the transfers
We next consider Parker’s additional suggestion, in the body of her brief, that Hunegnaw is precluded from challenging the City’s title because he failed to take action immediately upon learning of the transfers to Antony. Parker emphasizes that Hunegnaw admitted he learned of the transfers to Antony in “summer 2008, ” yet Hunegnaw “ did nothing” before the City bought the property on September 4, 2008. Parker suggests that, immediately after learning of the transfers to Antony, Hunegnaw should have sued Herbert and Antony and filed a revocation of the POA, “thereby notifying the world” that Herbert lacked authority to make the transfers.
Construing the affidavit in the light most favorable to Hunegnaw, his using the general term “summer 2008″ does not conclusively mean before September 4, 2008; persons may have different interpretations of when “summer” ends, especially considering that summer does not officially end until later in September. Thus, Parker has not established Hunegnaw learned of the transfers to Antony before the sale to the City. Further, Parker’s suggestion hinges on the unproven proposition that the POA authorized the transfers and therefore it was necessary for Hunegnaw to revoke the POA.
Regardless, Parker does not cite any authority supporting the proposition that Hunegnaw is precluded from challenging the City’s alleged title by his failure to take one or both of the above-listed actions before the City purchased the property. In fact, Parker does not identify on what theory she relies-whether waiver, estoppel, ratification, or some other theory. Nevertheless, neither consent, waiver, nor estoppel can give any legal effect to a forged deed. Commonwealth Land, 889 S.W.2d at 318; Bellaire Kirkpatrick, 826 S.W.2d at 210. Accordingly, Parker has not established that Hunegnaw is precluded from challenging the City’s title by his failure to immediately challenge the transfers to Antony.
D. Contention that Parker is the incorrect official for an ultra vires suit
In her third issue, Parker contends that, even if Hunegnaw could prove superior title, Parker is the incorrect official to be named as a defendant because she is not the official acting ultra vires.
In support, Parker first relies on the fact that the City bought the land before Parker became mayor. We rejected this same contention in Parker I. See 364 S.W.3d at 407. We held that Hunegnaw does not merely complain about an official’s action of purchasing the property on behalf of the City; rather, Hunegnaw alleges that Parker, as current mayor, continues to wrongfully possess the property under an incorrect claim that the City holds superior title. Id.
Parker next argues the property is used as a city park and therefore is under the control of the Houston Parks and Recreation Department, not the mayor. However, Parker did not present evidence in the trial court (1) demonstrating the use of the property, (2) establishing the identity of the official(s) holding and controlling the property, (3) negating that Parker lacks any control over decisions regarding the property even if it is under the purview of the Parks and Recreation Department, or (4) addressing whether a mayor may always be considered as an official acting on behalf of the city when there a title dispute between a party claiming ownership of property held by a city. On appeal, Parker makes a general reference to an extensive webpage for the City’s Parks and Recreation Department, purporting to show the property is used for a certain park, but she did not mention this webpage in her plea or attach it as evidence.
In fact, in the plea, Parker did not present the argument she now raises on appeal. Parker asserted only that she is not acting ultra vires because the City holds superior title to the property. Parker failed to contend, as argued on appeal, that even if the City does not hold superior title, Parker is not the official holding and controlling the property and asserting the City’s ownership. We recognize the recent authority from the Supreme Court of Texas holding a claim of immunity by a governmental entity may be raised for first time on appeal because the claim is an issue implicating subject matter jurisdiction. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 94–97 (Tex. 2012). However, we emphasize Parker’s failure to present the argument in the trial court as demonstrating why there is no supporting evidence in the record.
The argument raised on appeal is not a matter of the sufficiency of Hunegnaw’s pleadings but rather implicates the merits of his complaint; i.e., whether Parker is exercising control over the property. Therefore, Parker was required to present evidence, sufficient under the summary-judgment standard, to establish her contention. See Miranda, 133 S.W.3d at 227–28. Even if Parker was not required to raise the argument in the trial court, none of the evidence otherwise presented in the trial court establishes she has no control over the property. Finally, because Parker did not raise her contention in the trial court or present supporting evidence, Hunegnaw has had no opportunity to present evidence opposing such contention.
Accordingly, Parker has failed to establish she is the incorrect defendant for Hunegnaw’s ultra vires suit. We overrule Parker’s third issue.
III. Conclusion
In summary, Parker failed to prove the City holds superior title to the property or that an ultra vires suit may not otherwise be asserted against Parker. Accordingly, the trial court did not err by rejecting Parker’s claim that she enjoys governmental immunity and denying her second amended plea to the jurisdiction or alternatively motion for summary judgment.
We affirm the trial court’s order.
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