Gordon v. Jones (Tex.App.- Houston [1st Dist.] May 29, 2008)(Radack) (real estate law, trespass
to try title action, TTTT, multiple appeals, no findings of facts, no transcript)
AFFIRM TC JUDGMENT: Opinion by
Chief Justice Sherry Radack
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00500-CV Ronald X. Gordon v. Mildred Jones
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Hon. Brady G. Elliott  

MEMORANDUM OPINION

After a bench trial, the trial court rendered a take nothing judgment in favor or appellees, Mildred Jones
and James Albro, on Ronald X. Gordon's trespass to try title and fraud claims. We affirm.

BACKGROUND

A brief recitation of this history of this case, portions of which have twice been appealed to this Court, is
required.

The County Court Case (Gordon I)

In August 2001, Gordon filed an application in Fort Bend county court to determine the heirship of his
father's and his father's cousin's estates. Gordon v. Jones, 196 S.W. 3d 376, 378 (Tex. App.--Houston
[1st Dist.] 2006, no pet.) (hereinafter "Gordon II"). Gordon's pleadings in county court alleged that he
was the sole heir of his father, who was the sole heir of his father's cousin, and that his father's cousin's
will had been fraudulently probated in Wharton County, when it should have been probated in Fort
Bend County. Id. at 378-79. In May 2002, the county court dismissed appellant's applications to
determine heirship for want of jurisdiction. Gordon appealed the dismissal of the application to
determine his father's heirship. Id. at 379. This Court held that, although appellant's assertions of fraud
and attorney misconduct were improper in an heirship proceeding, such impropriety did not divest the
county court of subject-matter jurisdiction. Gordon v. Albro, No. 01-02-00681-CV, slip op. at 6, 2003
WL 2002543 at *2 (Tex. App.--Houston [1st Dist.] May 1, 2003, no pet.) (hereinafter, "Gordon I"). On
remand, appellant proceeded in county court solely on the determination-of-heirship proceeding, but
not his fraud and attorney misconduct claims. Gordon II, 196 S.W. 3d at 379. The county court tried
Gordon's application to determine his father's heirship, and rendered judgment that disposed of the
disputed property and awarded Gordon 100% of his father's real and personal property. Id. at 379-80.
That judgment put an end to the Gordon I litigation in county court.

The District Court Case (Gordon II)

While the county court case was on appeal, Gordon filed a trespass-to-try-title action in Fort Bend
district court. Gordon II, 196 S.W.3d at 379. In addition to his claims to quiet title, Gordon again alleged
fraud and attorney misconduct relating to the probate of his father's cousin's will. Id. After the county
court case proceeded to judgment on remand, the district court granted Albro's motion to dismiss the
district court case based on the theory of dominant jurisdiction. Id. at 380. Gordon appealed the
dismissal of the district court case. On appeal, this Court noted that the doctrine of dominant
jurisdiction related to venue, not subject matter jurisdiction, id. at 382-83, and concluded that the
district court did, in fact, have subject matter jurisdiction over the trespass-to-try-title and fraud claims
raised in Gordon's district court pleadings. Id. at 382. This Court further concluded that dismissal with
prejudice was not a proper remedy in a situation involving a request for a dismissal based on the
doctrine of dominant jurisdiction. Id. at 386. Because the county court case had proceeded to final
judgment on remand before the district court dismissed Gordon's district court claims with prejudice,
this Court noted that the district court had "summarily disposed of [Gordon's district court claims] by
precluding [him] from ever reasserting them." Id. Put simply, Gordon's fraud and trespass to try title
claims could never be tried because of the trial court's erroneous dismissal with prejudice. Accordingly,
we reversed and remanded for further proceedings. Id.

On remand, a bench trial was held on Gordon's claims and the court rendered a judgment that Gordon
take nothing by way of his claims. The judgment further awarded Jones title and possession to a one
acre tract of land and Albro title and possession to a 23.13 acre tract of land. No findings of fact and
conclusions of law were requested or filed.

This appeal followed. There is no reporter's record from the bench trial.

LAW AND ANALYSIS

In issues one and five, appellant contends the trial court refused to consider his fraud claims in
violation of this Court's judgment in Gordon II, 196 S.W.3d 376. In issue two, appellant contends the
trial court erred in rendering judgment in favor of Jones and Albro on his trespass to try title claims
because the evidence shows that there were defects in Albro's abstract of title and that Gordon was in
prior possession of the land at issue. In issue three, Gordon contends the trial court erred by granting
judgment in Jones's favor because a pretrial order precluded Jones from presenting evidence of her
claim at trial because of her failure to file an abstract of title. Finally, in issue four, Gordon contends the
trial court erred in granting judgment in favor of Jones and Albro because of misconduct by their
attorney, who, Gordon alleges, signed pleadings in bad faith.

When, as here, there are no findings of fact and conclusions of law and no reporter's record included
in the record on appeal, the reviewing court presumes that all facts necessary to support the judgment
have been found. See Commercial Credit Corp. v. Smith, 187 S.W.2d 363, 365 (Tex. 1945). Only when
fundamental error is shown on the face of the record is the appellant entitled to reversal of the trial
court's judgment. Id., Ette v. Arlington Bank of Commerce, 764 S.W.2d 594, 595 (Tex. App.--Fort Worth
1989, no writ).

Nothing in the record shows that the trial court refused to consider Gordon's fraud claims, and we
presume that facts necessary to support the trial court's take nothing judgment on fraud were found.
See Commercial Credit, 187 S.W.2d at 365. In fact, the judgment recites that "all matters of fact and
things in controversy were submitted to the court."

Accordingly, we overrule issues one and five.

Although the record contains a motion filed by Gordon alleging defects in Albro's abstract of title, there
is no evidence that the trial court ruled on such motion, nor is there evidence from the bench trial
showing such defects. Gordon also alleges that he proved prior possession of the property. Again,
there is no evidence from the bench trial to show such prior possession, and we presume the facts
necessary to support the trial court's judgment were found. Id.

Accordingly, we overrule issue two.

Gordon also alleges that the judgment in Jones's favor cannot stand because she failed to file an
abstract of title at trial. Again, there is no evidence in the record to show that Jones did not file an
abstract, and we presume the facts necessary to support the trial court's judgment were found. Id.

Accordingly, we overrule issue three.

Finally, Gordon alleges that the trial court erred in awarding judgment to Jones and Albro in light of
their attorney's misconduct. There is no evidence in the appellate record to show the attorney's
misconduct, and we presume the facts necessary to support the trial court's judgment were found. Id.

Accordingly, we overrule issue four.

CONCLUSION

Gordon alleges no fundamental error on the face of the record. Therefore, we affirm the judgment of
the trial court.

Sherry Radack

Chief Justice




Panel consists of Chief Justice Radack and Justices Jennings and Bland.