Opinion issued August 24, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00160-CV

———————————

GEORGE M. LEE, Appellant

V.

GALLERIA LOOP NOTE HOLDER LLC AND TIG ROMSPEN US 

MASTER MORTGAGE LP, Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Case No. 2020-12442

MEMORANDUM OPINION

This declaratory judgment action arises from the foreclosure of two senior 

liens on a commercial property and the subsequent foreclosure sale of the property 

to the senior lienholder, which resulted in the extinguishment of appellant George 
2

M. Lee’s junior lien on the property. The trial court granted summary judgment 

against Lee on his claims seeking declarations that the foreclosure sale was invalid 

because the senior liens merged with title to the property prior to the foreclosure sale

and that the substitute trustee’s deed was defective and void. On appeal, Lee raises 

three issues: (1) the trial court erred by granting summary judgment because a 

genuine issue of material fact existed on his alter-ego merger claim and the summary 

judgment motion did not address all parts of this claim; (2) Lee’s affidavit in support 

of his summary judgment response constituted competent evidence and was not a 

sham affidavit; and (3) the substitute trustee’s deed was defective and void, the 

defects could not be cured by a correction deed, and the deed therefore conveyed

nothing. We affirm.

Background

The real property that is the subject of this appeal is a commercial building 

located in Houston (the “subject property”). In 2012 and 2014, the owner of the 

subject property, 1001 West Loop, LP (“1001 West Loop”), obtained loans from 

MidFirst Bank secured by deeds of trust and liens on the property. These two liens 

were the senior liens on the property.

In July 2014, Lee loaned nearly $3 million to 1001 West Loop secured by a 

deed of trust and lien on the subject property. The deed of trust expressly 
3

subordinated Lee’s lien to MidFirst Bank’s two senior liens. The deed of trust was 

signed by Ali Choudhri as president of 1001 West Loop’s corporate general partner.

By May 2019, 1001 West Loop had defaulted on the MidFirst Bank loans. 

Appellee Galleria Loop Note Holder LLC (“Galleria”) decided to purchase the 

defaulted loans. On May 30, Galleria’s sole member, appellee TIG Romspen US 

Master Mortgage LP (“Romspen”), issued a written resolution stating that Galleria 

and Romspen had entered into a loan agreement with Choudhri, and Romspen

appointed Choudhri as the chief executive officer of Galleria and authorized him to 

take action to execute and deliver the loan documents.1In a May 30 letter to Galleria, 

Romspen committed to loaning Galleria the funds necessary to purchase the senior 

liens on the subject property. Choudhri signed the letter accepting the loan on behalf 

of Galleria, and he personally guaranteed the loan. On May 31, Romspen issued a 

promissory note to Galleria for $18,500,000. The parties also entered into an 

assignment of leases and rents. Also on May 31, Romspen, Galleria, and Choudhri 

entered into a membership interest option agreement granting Choudhri a call option 

to purchase 100% of the membership interest in Galleria. Finally, on May 31, 

Galleria purchased the senior liens from MidFirst Bank, effectively making Galleria 

the senior lienholder on the subject property.

1 Although various individuals and entities were involved in the transactions relevant 

here, the only parties to these proceedings are Lee, Galleria, and Romspen.
4

The following month, in June 2019, Galleria foreclosed on the senior liens 

and posted notice of a substitute trustee’s sale on the subject property. The sale was 

eventually held on September 3, 2019. Galleria was the only bidder on the subject 

property at the foreclosure sale, and the substitute trustee conveyed the property to 

Galleria by a substitute trustee’s deed. The record indicates that at least two 

correction deeds were also filed.

Hours after Galleria made its winning bid, Choudhri exercised the option to 

purchase all of the membership interest in Galleria. The following day, Galleria and 

Romspen entered into a deed of trust securing Romspen’s loan to Galleria with a 

lien on the subject property. However, no proceeds remained from the foreclosure 

sale to pay off the junior liens, including Lee’s lien, and those liens were therefore 

extinguished. See Kothari v. Oyervidez, 373 S.W.3d 801, 807 (Tex. App.—Houston 

[1st Dist.] 2012, pet. denied) (“Under Texas law, generally, if, after a valid 

foreclosure of a senior lien, a junior lien is not satisfied from the proceeds of a sale, 

then the junior lien is extinguished.”).

In February 2020, Lee filed suit against Galleria alleging that both 1001 West 

Loop—the pre-foreclosure owner of the subject property—and Galleria—the preforeclosure senior lienholder and post-foreclosure owner of the subject property—

were alter ego entities used by Choudhri to perpetrate fraud on the junior creditors 

of loans secured by the subject property, including Lee. Lee sought two declaratory 
5

judgments. First, he requested a declaration that the foreclosure sale of the subject 

property was void because prior to the sale, Choudhri, through alter-ego entities,

owned both legal title to the subject property and equitable title as the senior 

lienholder, and therefore the two titles merged together and extinguished the senior 

liens leaving nothing to foreclose on. Consequently, Lee alleged that his lien 

remained as the superior lien on the subject property. Lee also sought a declaration 

that the substitute trustee’s deed was fatally defective, could not be corrected by 

correction deed, and therefore did not convey legal title of the subject property to 

Galleria.

Galleria filed an answer denying Lee’s claims. Galleria also asserted a 

counterclaim against Lee for a declaration that he has no valid lien on the property.

Romspen filed a petition in intervention and an application for temporary and 

permanent injunctions. See TEX. R. CIV. P. 60. Romspen asserted two causes of 

action against Lee for trespass to try title and suit to quiet title. Romspen also 

requested that the trial court enjoin Lee from attempting to foreclose on or cloud title 

to the subject property.

Romspen filed a combined no-evidence and traditional motion for summary 

judgment on all of Lee’s claims and its suit for quiet title. Romspen argued that Lee 

lacked any valid interest in the subject property because his lien had been 

extinguished pursuant to a valid substitute trustee’s sale of the property following 
6

foreclosure. It also argued that Lee had no evidence of several elements of the merger 

doctrine or evidence that Choudhri used any entity as an alter ego. It further argued 

that the alleged defects in the substitute trustee’s deed did not invalidate the 

conveyance to Galleria. Finally, Romspen argued that it was entitled to summary 

judgment on its suit to quiet title.

Romspen attached numerous documents in support of its motion. It attached 

an affidavit from Wesley Roitman, the vice president of Romspen’s corporate 

general partner, describing the details of the transactions in dispute here. Roitman 

averred that Romspen financed Galleria’s purchase of the senior liens from MidFirst 

Bank and that Romspen was the sole member of Galleria at the time of the 

foreclosure sale. Roitman also averred that Choudhri never had an interest in or 

worked for Romspen and that Choudhri did not have an ownership interest in 

Galleria before the foreclosure sale. Rather, Choudhri exercised an option to 

purchase all the ownership interest in Galleria “sometime after 6:00 p.m. CT on 

September 3, 2019,” which was the day of the foreclosure sale.

Romspen’s motion also relied on deeds of trust executed in 2012 and 2014 

securing MidFirst Bank’s liens on the subject property. Choudhri signed both deeds 

of trust on behalf of 1001 West Loop’s corporate general partner. The motion also 

attached the May 2019 agreement between MidFirst Bank and Galleria to sell the 

two superior liens. This agreement was signed by Roitman on behalf of Galleria, and 
7

Choudhri signed the agreement in several capacities: president of 1001 West Loop, 

the borrower of the secured loans from MidFirst Bank; guarantor of the loans in his 

individual capacity; and president of Jetall Companies, Inc., which is not a party to 

this proceeding. Romspen’s motion also attached the notices of the substitute

trustee’s foreclosure sale; email correspondence between Choudhri, Roitman, and 

other third parties on September 3, 2019, concerning Galleria’s purchase of the 

subject property at the foreclosure sale and Choudhri’s subsequent exercise of the 

option to purchase the entire membership interest in Galleria; the substitute trustee’s 

deed and two correction deeds; a deed of trust between Galleria and Romspen, dated

September 4, 2019, granting a secured lien on the subject property to Romspen the 

day after the foreclosure sale; and an excerpt of a transcript of Lee’s deposition in 

this case.

Lee filed a response arguing that fact issues precluded summary judgment. He 

argued that the loan documents attached to Romspen’s summary judgment motion 

controverted Roitman’s affidavit. He also argued that other documents created a fact 

issue concerning whether Choudhri used alter ego entities to own the senior liens on 

and legal title to the subject property at the same time.

Lee relied on his own affidavit averring that Choudhri had admitted to Lee 

that Choudhri owned the subject property through various entities. Lee also averred 

that Choudhri admitted “that he owned 100% of the beneficial interest in [Galleria] 
8

and had arranged for a refinance of the property through that entity.” Lee further 

averred that:

Ali [Choudhri] told me he had changed his mind and he was going to 

foreclose the MidFirst Bank liens . . . that he had purchased with 

[Romspen] refinancing funds to cut my [Lee’s] and other inferior liens 

on the Property pursuant to an agreement he had expressly made with 

[Romspen] to acquire the Property free of inferior liens to be used by 

Ali. Ali told me he had gotten ownership and control of the Property 

through [Galleria] by his agreement with [Romspen] and didn’t need to 

pay me.

Lee’s response also attached documents showing that Romspen loaned 

Galleria $18,500,000 to acquire the senior liens on the subject property, and the 

parties intended that the subject property was to be used by Choudhri. A May 30, 

2019 letter from Romspen to Galleria showed an agreement for Romspen to loan the 

funds, and a May 31, 2019 promissory note evidenced the loan. On May 30, 2019,

Romspen—as Galleria’s then sole-member—entered written resolutions appointing 

Choudhri as Galleria’s chief executive officer and granting him authority to 

complete the loan process. Finally, on May 31, 2019, Romspen, Galleria, and 

Choudhri executed a membership interest option agreement granting Choudhri an 

assignable call option to purchase “100% of the issued and outstanding membership 

interest of [Galleria.]” This agreement stated that the purpose of the separate loan 

agreement was “to acquire certain real property” which “is intended to be used by 

the Optionholder,” whom the option agreement defined as Choudhri.
9

Romspen filed a reply in support of its motion. It first argued that Lee’s 

affidavit was a sham because it contradicted his prior deposition testimony. 

Romspen argued that, at his deposition, Lee denied knowing who owned or 

controlled Galleria, whether Galleria had an interest in the subject property, or 

whether and to what extent Galleria had relationships with Choudhri or Romspen. 

Lee also denied having heard of Romspen prior to the lawsuit. Romspen further 

argued that Lee denied having any personal knowledge that the titleholder and 

lienholder estates on the subject property had merged together; rather, Lee testified 

that the basis for his claim was his attorney’s investigation and conclusion. The 

record does not include a ruling on these objections. Romspen also replied on the 

merits.

The trial court granted Romspen’s motion for summary judgment. The 

judgment found that Romspen prevailed on its suit to quiet title; “Romspen has the 

exclusive right as senior lienholder to the Property”; and Romspen had established 

its entitlement to an injunction. The judgment denied Lee’s request for declaratory 

relief and permanently enjoined Lee from, without leave of court, seeking to 

foreclose on the property, filing notices of lis pendens affecting the property, or 

taking any action which could cloud title to the property. The order expressly denied 

all other relief and stated that it is a final judgment on all of Lee’s claims. The court 
10

later entered a separate order granting Romspen’s unopposed motion for entry of 

final judgment. This appeal followed.2

Summary Judgment

On appeal, Lee argues that (1) summary judgment was improper because fact 

issues exist concerning his claim of alter-ego merger and the summary judgment 

motion did not address all parts of this claim; (2) Lee’s summary judgment affidavit 

was competent summary judgment evidence and not a sham affidavit; and (3) the 

substitute trustee’s deed was defective and void, and the defects could not be cured 

by correction deed.

A. Standard of Review

We review an order granting a motion for summary judgment de novo. JLB 

Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021); W. Loop Hosp., 

LLC v. Houston Galleria Lodging Assocs., LLC, 649 S.W.3d 461, 479 (Tex. App.—

Houston [1st Dist.] 2022, pet. denied). When a trial court does not specify the 

grounds for the ruling, we must affirm if any ground advanced in the motion is 

meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); see 

also W. Loop Hosp., 649 S.W.3d at 480 (stating that when summary judgment order 

2 Galleria did not file an appellate brief.
11

does not specify ground for ruling, appealing party must negate all possible grounds 

upon which order could have been granted).

When, as here, a party moves for summary judgment on both traditional and 

no-evidence grounds, we address the no-evidence bases first. W. Loop Hosp., 649 

S.W.3d at 479; see Merriman, 407 S.W.3d at 248 (“[I]f the non-movant fails to 

produce legally sufficient evidence to meet his burden as to the no-evidence motion, 

there is no need to analyze whether the movant satisfied its burden under the 

traditional motion.”). If the nonmovant does not meet his burden under the noevidence motion, there is no need to address the traditional grounds because they 

necessarily fail. W. Loop Hosp., 649 S.W.3d at 479. Any claims that survive noevidence review are then reviewed under the traditional standard. Id.

A party may move for no-evidence summary judgment after an adequate time 

for discovery. TEX. R. CIV. P. 166a(i). “The motion must state the elements as to 

which there is no evidence.” Id. No-evidence summary judgment is proper when 

there is no evidence of one or more essential elements of a claim or defense on which 

the adverse party bears the burden of proof at trial. W. Loop Hosp., 649 S.W.3d at 

479. A no-evidence summary judgment motion shifts the burden to the nonmovant 

to present evidence raising a genuine issue of material fact on each element 

challenged in the motion. TEX. R. CIV. P. 166a(i); Merriman, 407 S.W.3d at 248; W. 

Loop Hosp., 649 S.W.3d at 479.
12

In our review of a summary judgment ruling, we take as true all evidence 

favorable to the nonmovant, and we indulge every reasonable inference and resolve 

any doubts in the nonmovant’s favor. JLB Builders, 622 S.W.3d at 864; W. Loop 

Hosp., 649 S.W.3d at 480. We will sustain a no-evidence challenge when “(a) there 

is a complete absence of evidence of a vital fact, (b) the court is barred by rules of 

law or of evidence from giving weight to the only evidence offered to prove a vital 

fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or 

(d) the evidence conclusively establishes the opposite of the vital fact.” Merriman, 

407 S.W.3d at 248 (quoting King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751

(Tex. 2003)). More than a scintilla of evidence exists if the evidence rises to a level 

that would enable reasonable and fair-minded people to differ in their conclusions. 

King Ranch, 118 S.W.3d at 751; W. Loop Hosp., 649 S.W.3d at 480.

B. Merger of Estates by Alter Ego

In his first issue, Lee argues that a genuine issue of material fact exists 

concerning his alter-ego merger claim.

3

3 Lee also argues that summary judgment was improper because Romspen’s summary 

judgment motion did not address all bases of Lee’s merger claim. He argues that 

Romspen addressed Lee’s claim that Choudhri exercised an option to purchase the 

membership interest in Galleria, but it did not address his claim that Galleria was an 

alter ego of Choudhri. We disagree. Although the summary judgment motion 

addressed the claim concerning the option on traditional grounds—that is, by 

presenting evidence that Choudhri did not exercise his option until after 

foreclosure—the motion also asserted no-evidence grounds concerning several 

specific elements of merger, including ownership of both legal and equitable title. 

The no-evidence grounds asserted in the motion shifted the burden to Lee to present 
13

In his live petition, Lee alleged that both 1001 West Loop and Galleria were 

alter-ego entities of Choudhri that he used “to perpetrate frauds on his existing 

creditors.” Lee alleged that when, prior to foreclosure, Choudhri held legal title to 

the subject property through 1001 West Loop and equitable title to the subject 

property through Galleria, the senior liens merged with ownership of the property, 

thereby extinguishing the senior liens and rendering the foreclosure sale void. Lee 

alleged that Galleria was the alter ego of Choudhri based on Choudhri’s exercise of 

the option to purchase Galleria’s membership interest. Lee also alleged that defects 

in the substitute trustee’s deed rendered the conveyance of the subject property void, 

and the defects could not be cured by correction deeds. Lee sought two declarations: 

(1) ownership of the property merged with the senior liens, which extinguished the 

senior liens, rendered the foreclosure sale invalid, and established Lee’s lien as the 

senior lien on the property; and (2) the defective substitute trustee’s deed failed to 

transfer any title to the subject property.

Romspen moved for summary judgment on both no-evidence and traditional 

grounds. Romspen primarily argued that Lee had no evidence of several elements 

evidence raising a genuine issue of material fact on each element challenged in the 

motion. TEX. R. CIV. P. 166a(i); Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 

248 (Tex. 2013); W. Loop Hosp., LLC v. Houston Galleria Lodging Assocs., LLC, 

649 S.W.3d 461, 479 (Tex. App.—Houston [1st Dist.] 2022, pet. denied). Because 

we conclude below that Lee did not meet this burden, we do not consider the 

traditional grounds. See W. Loop Hosp., 649 S.W.3d at 479.
14

required to establish a merger of legal and equitable titles to the subject property. 

Concerning Lee’s claim that Choudhri owned the subject property prior to 

foreclosure through alter-ego entities, Romspen argued that “Lee has no evidence 

Choudhri owned or controlled Galleria or Romspen [Galleria’s sole member prior 

to foreclosure] at the time of Foreclosure.” As a traditional ground, Romspen argued 

that Choudhri did not exercise his option to purchase the ownership interest in 

Galleria until after the foreclosure sale, at which time Galleria no longer owned the 

liens on the subject property.

We first consider whether Lee presented evidence raising a fact issue on the 

challenged elements of the merger doctrine. See W. Loop Hosp., 649 S.W.3d at 479 

(stating that when party moves for both no-evidence and traditional summary 

judgment, courts consider no-evidence grounds first).

Merger of estates occurs when a lesser estate is absorbed into a greater estate.

Steger v. Muenster Drilling Co., 134 S.W.3d 359, 376 (Tex. App.—Fort Worth 

2003, pet. denied); Smith v. U.S. Nat’l Bank of Galveston, 767 S.W.2d 820, 823 

(Tex. App.—Texarkana 1989, writ denied) (“Merger is the absorption or 

extinguishment of one estate or contract in another, and is largely a question of 

intent.”). “Generally, when one acquires fee simple title to land, all prior liens, 

inferior titles and interests owned by him are merged into a superior title, unless a 

different intent is shown.” Smith, 767 S.W.2d at 823. The merger doctrine, which is 
15

disfavored in Texas, applies to lienholder estates as well as to titleholder estates. 

Steger, 134 S.W.3d at 376. The merger doctrine requires proof of six elements:

(1) the existence of a greater and lesser estate;

(2) both estates must unite in the same owner;

(3) both estates must be owned in the same right;

(4) there must be no intervening estate;

(5) merger must not be contrary to the intention of the owner of the 

two estates; and

(6) merger must not be disadvantageous to the owner of the two estates.

Flag-Redfern Oil Co. v. Humble Expl. Co., 744 S.W.2d 6, 9 (Tex. 1987); Steger, 134 

S.W.3d at 376; Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 754 (Tex. App.—

Houston [1st Dist.] 2000, no pet.).

Romspen’s summary judgment motion argued that Lee had no evidence of 

elements two, three, five, and six.

In this case, identifying the owner of legal title and the owner of equitable title 

to the subject property under the second element of the merger doctrine requires 

determining whether to disregard the corporate fiction to find that Choudhri, through 

alleged alter ego entities 1001 West Loop and Galleria, was the actual owner of the 

titleholder and lienholder estates. This is because the appellate record shows that, 

prior to foreclosure, the record owner of legal title to the subject property was 1001 

West Loop, and the record owner of equitable title to the property was Galleria. To 

establish that these estates were owned by the same owner, Lee asks the Court to 
16

disregard the corporate fiction and find that 1001 West Loop and Galleria were alter 

egos of Choudhri and, hence, Choudhri was the true owner of both estates.

“A bedrock principle of corporate law is that an individual can incorporate a 

business and thereby normally shield himself from personal liability for the 

corporation’s contractual obligations.” U.S. KingKing, LLC v. Precision Energy 

Servs., Inc., 555 S.W.3d 200, 212 (Tex. App.—Houston [1st Dist.] 2018, no pet.) 

(quoting Willis v. Donnelly, 199 S.W.3d 262, 271 (Tex. 2006)). However, the

corporate veil may be pierced upon a theory of alter ego “where a corporation is 

organized and operated as a mere tool or business conduit of another . . . .” Tryco 

Enters. v. Robinson, 390 S.W.3d 497, 508 (Tex. App.—Houston [1st Dist.] 2012, 

pet. dism’d) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986)).

Alter ego applies “when there is such unity between corporation and 

individual that the separateness of the corporation has ceased and holding only the 

corporation liable would result in injustice.” Id. (quoting Castleberry, 721 S.W.2d 

at 272); see Wilson v. Davis, 305 S.W.3d 57, 69–70 (Tex. App.—Houston [1st Dist.] 

2009, no pet.) (“[I]f the shareholders themselves disregard the separation of the 

corporate enterprise, the law will also disregard it so far as necessary to protect 

individual and corporate creditors.”) (quoting Castleberry, 721 S.W.2d at 272). We 

determine whether an entity is an alter ego of an individual “from the total dealings 

of the corporation and the individual, including the degree to which corporate 
17

formalities have been followed and corporate and individual property have been kept 

separately”; “the amount of financial interest, ownership, and control the individual 

maintains over the corporation”; and “whether the corporation has been used for 

personal purposes.” Tryco Enters., 390 S.W.3d at 508 (quoting Castleberry, 721 

S.W.2d at 272).

Disregarding the corporate fiction involves two considerations: (1) the 

relationship between the individual and the entity; and (2) whether the use of limited 

liability was illegitimate. SSP Partners v. Gladstrong Invs. (USA) Corp., 275 S.W.3d 

444, 455 (Tex. 2008); U.S. KingKing, 555 S.W.3d at 213; Tryco Enters., 390 S.W.3d 

at 508. To establish alter-ego liability, the plaintiff must show that (1) the entity on 

which it seeks to impose liability is the alter ego of the debtor; and (2) the corporate 

fiction was used for an illegitimate purpose, that is, to perpetrate an actual fraud on 

the plaintiff for the defendant’s direct personal benefit. U.S. KingKing, 555 S.W.3d 

at 213–14; Tryco Enters., 390 S.W.3d at 508; TEX. BUS. ORGS. CODE § 21.223(b). 

“Generally, alter ego will not apply to disregard the corporate form absent 

exceptional circumstances.” U.S. KingKing, 555 S.W.3d at 214 (quoting Nugent v. 

Est. of Ellickson, 543 S.W.3d 243, 265 (Tex. App.—Houston [14th Dist.] 2018, no 

pet.)).
18

1. Summary Judgment Evidence

Lee’s theory is that Choudhri owned both the legal title and the equitable title 

to the subject property, and therefore the two estates merged into him and 

extinguished the senior liens on the property prior to foreclosure and the substitute

trustee’s sale of the property. To raise a fact issue on whether the two estates merged 

into the same owner under the second element of the merger doctrine, therefore, Lee 

was required to present at least a scintilla of evidence that prior to foreclosure, 1001 

West Loop—the titleholder—and Galleria—the lienholder—were alter ego entities 

of Choudhri. See Merriman, 407 S.W.3d at 248; Flag-Redfern Oil, 744 S.W.2d at 9; 

Tryco Enters., 390 S.W.3d at 508.

Lee relies on several documents to make this showing. First, a letter from 

Romspen committing to loan Galleria the funds to buy the senior liens on the subject 

property stated that there was a beneficial owner subject to the loan terms, although 

the document did not identify the beneficial owner. Second, the membership interest 

option agreement stated that the purpose of the loan was to acquire the subject 

property “which is intended to be used by the Optionholder (Choudhri)[.]” Third, 

Lee argues that Choudhri signed each of the loan documents individually and as 

Galleria’s authorized agent, and he did so prior to the foreclosure sale. Fourth, 

Romspen’s written resolution appointed Choudhri as Galleria’s chief executive 

officer and authorized him to act on Galleria’s behalf before the foreclosure sale.
19

This evidence does not raise a fact issue on whether Galleria was an alter ego 

of Choudhri prior to foreclosure. See Merriman, 407 S.W.3d at 248. These few 

documents give almost no insight into the “total dealings” of Galleria and Choudhri. 

See Tryco Enters., 390 S.W.3d at 508 (quoting Castleberry, 721 S.W.2d at 272). At 

best, these documents show that Choudhri had control over Galleria through 

Romspen’s appointment of him as Galleria’ chief executive officer, he signed 

documents on behalf of Galleria, and Romspen and Galleria intended that the 

property would be used by Choudhri. See id. Crucially, however, these documents 

do not show whether Galleria’s corporate formalities were followed, whether 

Galleria and Choudhri generally kept their respective properties separate, whether 

Choudhri had any ownership interest in Galleria prior to exercising his option to 

purchase its ownership interest after the foreclosure sale, or whether Choudhri used 

Galleria for personal purposes. See id. This evidence falls short of raising a fact issue 

on whether there is such unity between Choudhri and Galleria that the two are no 

longer separate. See id.; see also Merriman, 407 S.W.3d at 248 (stating that appellate 

court will sustain no-evidence challenge when, among other things, evidence is no 

more than scintilla); King Ranch, 118 S.W.3d at 751 (stating that more than scintilla 

of evidence exists when evidence rises to level that would enable reasonable and 

fair-minded people to differ in their conclusions). Thus, we conclude that the Lee 
20

did not meet his burden to raise a fact issue on whether Galleria was an alter ego of 

Choudhri such that Choudhri was the true owner of the lienholder estate.

Nor did Lee present any evidence showing that 1001 West Loop was an alter 

ego of Choudhri. The motion for summary judgment argued that there was no 

evidence of the second element of merger: that both estates united in the same owner.

See Flag-Redfern Oil, 744 S.W.2d at 9; Steger, 134 S.W.3d at 376. To defeat this 

no-evidence challenge, Lee was required to present evidence raising a fact issue on 

whether Choudhri owned not just the lienholder estate (through Galleria), but also 

on whether he simultaneously owned the titleholder estate (through 1001 West 

Loop) prior to the foreclosure sale. See Merriman, 407 S.W.3d at 248 (stating that 

no-evidence summary judgment motion shifts burden to nonmovant to present 

evidence raising fact issue on each element challenged in motion). Lee did not point 

to any evidence in his summary judgment response that raised a fact issue on whether 

1001 West Loop was an alter ego of Choudhri. Nor does he do so on appeal. Thus, 

we conclude that Lee did not meet his burden to raise a fact issue concerning the 

second element of the merger doctrine: that both estates united in the same owner.

2. Lee’s Affidavit

In his second issue—which we construe as a subpart of his first issue—Lee 

argues that his summary judgment affidavit constituted competent summary 

judgment proof raising a fact issue on the alter-ego merger claim and that the 
21

affidavit was not a sham. Romspen responds that the affidavit contradicted Lee’s 

prior deposition testimony, and therefore the affidavit was a sham.

The sham affidavit rule prohibits a nonmovant from submitting an affidavit 

that directly contradicts prior testimony, without explanation, in an attempt to raise 

a fact issue to survive summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 

85, 90 (Tex. 2018). The basis for the rule is to distinguish genuine fact issues from 

non-genuine fact issues under Rule of Civil Procedure 166a. Id. at 86; see TEX. R.

CIV. P. 166a(c), (i). When an affidavit contradicts earlier deposition testimony and 

appears to the trial court to be a sham designed to avoid summary judgment, the trial 

court may require a sufficient explanation and, in the absence of one, may grant 

summary judgment. Lujan, 555 S.W.3d at 90. A contradictory affidavit may be 

warranted when, for example, the contradiction is based on newly discovered 

evidence or confusion about what was asked during a deposition. Id. In such a 

circumstance, an affidavit, though facially inconsistent, should be considered upon 

sufficient explanation. Id.

Absent a timely objection and a ruling from the trial court on the objection, 

however, a complaint that a summary-judgment affidavit is a sham is waived for 

purposes of appellate review. Parkway Dental Assocs., P.A. v. Ho & Huang Props., 

L.P., 391 S.W.3d 596, 604 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Scott 

v. Hunt, No. 01-11-00042-CV, 2012 WL 983339, at *5 (Tex. App.—Houston [1st 
22

Dist.] Mar. 22, 2012, no pet.) (mem. op.); see also TEX. R. APP. P. 33.1(a). An 

objection that an affidavit is a sham is one that complains of a defect in form, not 

substance. Scott, 2012 WL 983339, at *5; Hogan v. J. Higgins Trucking, Inc., 197 

S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.). A party must object in writing 

and obtain an express or implied ruling from the trial court to preserve a complaint 

about the form of summary judgment evidence. Scott, 2012 WL 983339, at *5; TEX.

R. CIV. P. 166a(f); TEX. R. APP. P. 33.1(a)(2)(A). “[A] trial court’s ruling on an 

objection to summary judgment evidence is not implicit in its ruling on the motion 

for summary judgment.” Scott, 2012 WL 983339, at *5 (quoting Delfino v. Perry 

Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2006, no pet.)).

When the trial court does not rule on a challenge to a purported sham affidavit, 

we presume that the court considered the affidavit as competent summary judgment 

evidence. See Parkway Dental Assocs., 391 S.W.3d at 604 (stating that party waived 

complaint that affidavit was sham by failing to timely object and obtain ruling on 

objection); Scott, 2012 WL 983339, at *5; see also Tejada v. Gernale, 363 S.W.3d 

699, 707 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“We note that the trial 

court did not strike Raskin’s affidavit as a sham. Given that the trial court considered 

the affidavit as summary-judgment evidence and Raskin proffered an explanation 

for the change, we decline to strike the affidavit on appeal.”).
23

In this case, Romspen’s reply in support of its summary judgment motion 

argued that Lee’s summary judgment affidavit was a sham because it contradicted 

his prior deposition testimony, and Romspen provided examples of the alleged 

inconsistencies. Romspen argued that “Lee cannot suddenly contradict his prior 

testimony to create a fact issue to survive summary judgment.” Romspen did not, 

however, request that the trial court strike the affidavit, and the trial court did not 

rule on the complaint. Therefore, we presume that the trial court considered the 

affidavit, and we conclude that Romspen has waived any challenge to defects in the 

form of the affidavit, including whether it was a sham. See Parkway Dental Assocs., 

391 S.W.3d at 604; Scott, 2012 WL 983339, at *5.

In his affidavit, Lee averred in relevant part that:

Ali [Choudhri] has always indicated to me that the Property was his, 

that he controlled it, and held ownership of the various entities he 

transferred record ownership to over the period of my [Lee’s] loan. In 

fact, [before the foreclosure sale] he indicated that he owned 100% of 

the beneficial interest in [Galleria] and had arranged for a refinance of 

the property through an entity and that if I would agree to a reduced 

payoff on my loan . . . , he would agree to pay that amount out of the 

refinancing funds . . . .

Subsequently, Ali told me he had changed his mind and he was going 

to foreclose the MidFirst Bank liens, which were prior in time to my 

lien, that he had purchased with [Romspen] refinancing funds to cut my 

and other inferior liens on the Property pursuant to an agreement he had 

expressly made with [Romspen] to acquire the Property free of inferior 

liens to be used by Ali. Ali told me he had gotten ownership and control 

of the Property through [Galleria] by his agreement with [Romspen] 

and didn’t need to pay me.
24

This affidavit does not create a fact issue on whether Galleria was an alter ego 

of Choudhri. While it may show that Choudhri owned all the beneficial interest in 

Galleria prior to foreclosure, Lee’s theory is that Choudhri owned the liens on the 

subject property through Galleria. See Tryco Enters., 390 S.W.3d at 508. The 

affidavit does not address information relevant to an alter-ego claim, such as whether 

Galleria followed corporate formalities and kept other property separate from 

Choudhri’s property or whether Choudhri used Galleria for personal purposes. See 

id. In short, Lee’s affidavit does not establish that, “from the total dealings” of 

Galleria and Choudhri, “there is such unity between [Galleria] and [Choudhri] that 

the separateness of the corporation has ceased . . . .” See id.

Furthermore, the affidavit does not mention 1001 West Loop, the preforeclosure-sale owner of the subject property, at all. See Steger, 134 S.W.3d at 376 

(stating that merger requires proof that both estates united in same owner). The 

affidavit generally refers to ownership of the subject property, stating that Choudhri 

admitted he owned and controlled the property through various entities. But this does 

not establish that 1001 West Loop—which held legal title to the property when 

Galleria held equitable title—was an alter ego of Choudhri. Nor does the affidavit 

offer any insight into the total dealings between Choudhri and 1001 West Loop;

show whether 1001 West Loop’s corporate formalities were followed or its property 

kept separate from Choudhri’s property; show the amount of financial interest, 
25

ownership, and control Choudhri held in 1001 West Loop; or show whether 

Choudhri used 1001 West Loop for personal purposes. See Tryco Enters., 390 

S.W.3d at 508.

We conclude that Lee did not meet his burden to present a scintilla of evidence 

that either Galleria or 1001 West Loop was an alter ego of Choudhri prior to the 

foreclosure sale, and therefore that Choudhri was the actual owner of the lienholder 

estate and the titleholder estate at the same time. See Merriman, 407 S.W.3d at 248; 

TEX.R.CIV. P. 166a(i). Thus, there is no evidence in the record before us establishing 

the second merger element: that legal and equitable title united in one owner. See 

Flag-Redfern Oil, 744 S.W.2d at 9; Steger, 134 S.W.3d at 376; Franz, 35 S.W.3d at 

754. We therefore hold that the trial court did not err by granting summary judgment 

in Romspen’s favor on Lee’s claim of alter-ego merger.4 We overrule Lee’s first and 

second issues.

4 Because Lee did not meet his burden to establish that he presented a scintilla of 

evidence on one element of merger, we need not consider the remaining no-evidence 

grounds or the traditional grounds concerning this claim. See Merriman, 407 S.W.3d 

at 248 (stating that no-evidence motion for summary judgment shifts burden to 

nonmovant to present evidence raising fact issue on each element challenged in 

motion); W. Loop Hosp., 649 S.W.3d at 479 (stating that if nonmovant does not 

meet burden on no-evidence ground, court need not address traditional grounds 

because they necessarily fail); TEX. R. APP. P. 47.1.
26

C. Validity of Substitute Trustee’s Deed

In his third issue, Lee argues that defects in the substitute trustee’s deed

rendered it void, and the defects could not be cured by correction deed.5

“A conveyance of an estate of inheritance, a freehold, or an estate for more 

than one year, in land and tenements, must be in writing and must be subscribed and 

delivered by the conveyor or by the conveyor’s agent authorized in writing.” TEX.

PROP.CODE § 5.021; see Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 43 (Tex. 

App.—Houston [1st Dist.] 2011, no pet.) (“There is, however, no longer a 

requirement that a deed or instrument to effect the conveyance of real property must 

have all the formal parts of a deed recognized at common law or technical 

language.”). This Court has held that there are four “essential characteristics of a 

deed” that constitute a legally valid conveyance:

(1) a grantor and a grantee can be ascertained from the instrument as 

a whole;

(2) there are operative words of grant showing the grantor’s 

intention to convey to the grantee title to a real property interest;

5 Lee does not argue that the correction deeds failed to cure the deficiencies. Rather,

he argues that a correction instrument could not be used at all because the 

conveyance did not otherwise comply with all requirements in Property Code 

Chapter 51 for the sale of real property under a power of sale, specifically the 

requirement in section 51.002(b)(3) that written notice of the trustee’s sale be sent 

by certified mail to each debtor. See TEX. PROP. CODE §§ 5.027(b) (prohibiting use 

of correction instrument for purposes of sale of real property under power of sale 

pursuant to Chapter 51 unless conveyance complied with all Chapter 51 

requirements), 51.002(b)(3). Because we conclude that the original deed was not 

defective, we do not reach these sub-issues. See TEX. R. APP. P. 47.1.
27

(3) the property is sufficiently described; and

(4) the instrument is signed and acknowledged by the grantor.

Gordon, 352 S.W.3d at 43; see also Green v. Canon, 33 S.W.3d 855, 858 (Tex. 

App.—Houston [14th Dist.] 2000, pet. denied). Lee argues that the substitute 

trustee’s deed does not identify the grantor and grantee and does not contain

operative words conveying the property.

The construction of an unambiguous deed is a question of law for the court. 

Gordon, 352 S.W.3d at 43. Our primary duty in construing a deed is to ascertain the 

parties’ intent from the language contained within the four corners of the deed. 

Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991); Gordon, 352 S.W.3d at 43. We 

must strive to harmonize and give effect to all parts of the instrument. Luckel, 819 

S.W.2d at 462; Gordon, 352 S.W.3d at 43. Whether a deed is ambiguous is also a 

question of law. Gordon, 352 S.W.3d at 43. If a deed is worded in such a way that it 

can be given a definite or certain legal meaning, then the deed is not ambiguous. Id. 

If the deed is susceptible to a single meaning, the court is confined to the plain 

language of the deed. Id.

The substitute trustee’s deed recited that a promissory note existed, which was

secured by a deed of trust to the subject property, and that the deed of trust was 

delivered to substitute trustee Kamelia Namazi Momin. The deed also recited several 

conditions of “[t]his conveyance[.]” The habendum clause stated:
28

TO HAVE AND TO HOLD the above-described property, together 

with all and singular the rights and appurtenances thereto in anywise 

belonging, unto it, the said [Galleria], its successors and assigns, 

forever, in fee simple; and I, the said KAMELIA NAMAZI MOMIN, 

do hereby bind [Galleria], his heirs, executors and administrators, 

forever against every person whomsoever lawfully claiming or to claim 

the same, or any part thereof as fully as I, KAMELIA NAMAZI 

MOMIN, as Trustee, lawfully can do: HOWEVER, WITHOUT 

COVENANTS OR WARRANTIES, EXPRESSED OR IMPLIED, OR 

ANY LIABILITY WHATSOEVER ON ME PERSONALLY[.]”

The deed is signed by Momin as “Trustee,” and it is notarized.

Lee first contends that the substitute trustee’s deed does not sufficiently 

identify the grantor and the grantee.

6 Lee argues that Momin and Galleria are 

identified only in the part of the deed referencing the secured note, but neither is 

identified as grantor or grantee. Lee also argues that the habendum clause implies 

that Galleria is both the grantor and the grantee. We disagree.

Momin and Galleria are the only two individuals or entities named in the deed. 

This Court has previously held that a deed sufficiently identifies a grantee where the 

person appears in the habendum clause as the person who is “to have and to hold” 

6 Both parties’ arguments assume that the proper grantor to a conveyance of real 

property under a substitute trustee’s deed is the substitute trustee. Accordingly, for 

purposes of our analysis, we assume without deciding that the grantor was Momin, 

the substitute trustee. See Stephenson v. LeBoeuf, 16 S.W.3d 829, 836–37 (Tex. 

App.—Houston [14th Dist.] 2000, pet. denied) (op. on reh’g) (stating that trustee’s 

authority to sell deed for parties after foreclosure of lien is derived from deed of 

trust); see also Mosby v. Post Oak Bank, 401 S.W.3d 183, 186 (Tex. App.—Houston 

[14th Dist.] 2011, pet. denied) (stating that substitute trustee’s deed was signed by 

trustee).
29

the property. Harris v. Strawbridge, 330 S.W.2d 911, 915 (Tex. App.—Houston 

1959, writ ref’d n.r.e.). Here, the habendum clause states that Galleria is to have and 

to hold the described property in fee simple, and thus Galleria is sufficiently 

identified as the grantee. See id.; Gordon, 352 S.W.3d at 43 (stating that conveyance 

is valid where grantor and grantee can be ascertained from instrument as whole).

Moreover, Momin is the only other person or entity named in the deed, and 

she signed the deed. See Gordon, 352 S.W.3d at 43 (stating that grantor must sign 

and acknowledge deed); see also Harris, 330 S.W.2d at 915 (concluding that deed 

sufficiently identifies grantor where deed states person was paid consideration and 

person signed and acknowledged instrument). Lee has not provided any legal 

authority supporting his argument that the deed does not sufficiently identify the 

grantor and the grantee. Because we can ascertain the grantor and the grantee from 

the instrument as a whole, we conclude that the substitute trustee’s deed sufficiently 

identified the grantor and the grantee. See Gordon, 352 S.W.3d at 43.

Lee also argues that the deed does not contain operative words of conveyance.

A document can operate as a deed only if it conveys an interest in property. Id.

Without operative words of grant showing the grantor’s intention to convey an 

interest in property to the grantee, an instrument is not a deed. Id. at 44. Words of 

grant are necessary because, without them, it would not be possible to determine 

what portion of ownership (e.g., 100% or something less) or type of ownership 
30

interest (e.g., fee simple or, for example, an easement) is being conveyed. Cohen v. 

Tour Partners, Ltd., No. 01-15-00705-CV, 2017 WL 1528776, at *6 (Tex. App.—

Houston [1st Dist.] Apr. 27, 2017, no pet.) (mem. op.). A conveyance of land does 

not require magic language or particular terms, but it must at least identify the 

interest being conveyed. Id.; Gordon, 352 S.W.3d at 43; Green, 33 S.W.3d at 858–

59.

“[T]he words ‘to have and to hold the above[-]described land * * * unto the 

said [grantee], her heirs or assigns forever’ show an intention to convey title in fee 

simple to [the grantee].” Harris, 330 S.W.2d at 916. If these words appear anywhere 

in the deed, including in the habendum clause, it is sufficient. Id. In this case, the 

habendum clause of the substitute trustee’s deed included this precise language, and 

we can determine from this language the portion and type of ownership being 

conveyed to Galleria. See Cohen, 2017 WL 1528776, at *6; Gordon, 352 S.W.3d at 

44. We therefore conclude that the deed contained sufficient words of conveyance.

Lee counters that a habendum clause cannot provide missing grant language 

in a deed. As support for this argument, Lee relies on Veltmann v. Damon, in which 

a granting clause in a deed conveyed the grantor’s “undivided one-half (1/2) interest” 

in property subject to a life estate retained by the grantor, but the habendum clause 

recited that the grantee was to have and to hold all of the property, including the 

grantor’s spouse’s other undivided one-half interest in the property that was not 
31

included in the granting clause. 701 S.W.2d 247, 247–48 (Tex. 1985) (per curiam). 

Because the granting clause “obviously conflict[ed] with the deed’s habendum 

clause,” the Texas Supreme Court held that the appellate court erred by interpreting 

the deed to convey more than the grantor’s undivided one-half interest as stated in 

the granting clause. Id. at 248. In this case, by contrast, the habendum clause does 

not conflict with a granting clause, and therefore Veltmann is inapposite.

We conclude that the original substitute trustee’s deed sufficiently identified 

the grantor and the grantee and contained operative words of grant. Accordingly, we 

hold that the trial court did not err by granting summary judgment against Lee on his

declaratory claim that the deed was void. We overrule Lee’s third issue.

Conclusion

We affirm the judgment of the trial court.

April L. Farris

Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.