## NO. 12

- 19

- 00348

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

DONNIE RAE THOMPSON, SR

. , APPELLANT

V.

SHAWN DAVIS , APPELLEE §

§

§ APPEAL FROM THE 294TH

DISTRICT COURT

VAN ZANDT COUNTY, TEXAS

MEMORA N DUM OPINION Donnie Rae Thompson, Sr. appeals from a n adverse judgment rendered in Shawn D a vis ’ s suit f o r declaratory judgment . In two issues, Thompson asserts that the trial co u r t lacked jurisd iction at the time it rendered judgment in f avor of Davis on his forgery c laim, and improperly found for Davis, a nd Intervenors, Stacie Etheridge and Tammy Harger, on their forgery claim . We affirm.

B ACKGROUND Shortly before his death in 200 8, Danny D. D avis, Shawn Davis ’ s fath er, pur por tedly conveyed a t hree

- acre tract of land to Th ompson. Shawn Davis sued Thomps on pursuant to the Declaratory Judgments Act , alleging that Thompson or another person forged his father ’ s signature on the deed, and requestin g the court declare that the general wa rranty deed is void ab
initi o

. Alt ernativ ely, D av is alleged failure of co nsideration and tha t the deed was procured by fraud, undue influence, a nd du ress, and at the time the deed was signed, his father lacked mental capacity, mak ing the d eed voidable. Stacie Etheri dge and T a mmy Harger , Shawn Da vis ’ s siblings , intervened, asse rting the same caus es of action

.2 Thompson filed a motion for traditional summary j udgment asserting entitlement to judg ment because limitations have run on Davis ’ s ca uses of action for fraud, undue influence,
and duress. Th e trial court ruled on the motio n as follows :

IT I S THEREFORE ORDERED that Defendant ’ s Traditional Motion for Summary Judgment is GRANTED in part and with respect to the clai ms of procurement by fraud, undue infl uence , duress, insufficient mental capacity, and lack of consideration. T h e Defendan t ’ s Tradi tional Mot ion for Summary Judgment is DENIED in part and with respect to the claim of forgery.

The order on the motion for summary judgment w as signed October 24, 2019 . On
October 25, a trial be fore the court was held on the forgery c laim

. Neither Thom pson nor his attorney appeared at the trial. Davis, Harger, and Etheridge appeared and presented evidence on
the forgery c l aim . After the heari ng, the trial court rendered judgment setting a side the 2008
deed as void ab initio , and dec reeing that Danny D avis died intestate owning the three acres, and
D a vis, Harger, a nd Ether i dge, as his heirs, each own an undivided one

- third interest. Referencing the o rder on Thom p son ’ s motion for summary ju dgmen t, the co urt ’ s order states
that it fi na lly disposes of all parties a nd all claims.

J URISDICTION
I n his first issue, Thompson contends the trial court lost jurisdiction when, on Octo ber 24, 2019, Thompson filed a notice of appeal from the sum mary judgment ord e r signed that same day. Therefore, the argument conti nues, the trial court d id not have jurisd iction when it held the merits hearing on October 25 and later rendered a judgment

. A notice of appeal invokes the jurisdiction of the appe llat e cou rt. See T EX

. R. A PP

. P. 25.1(b); Alexander Dubo se Jefferson & Town send LLP v. Chevron Phillips Chem. Co ., L.P. , 540 S.W.3d 577, 581 (Tex. 2018 ) (per curiam)

. The filing of a notice of appea l does not divest the trial court of its p lenary power , so the t rial cour t has the power t o perfo rm certain acts

. See
T EX

. R. C IV

. P. 306a, 308; E s t

y v. Beal Bank S.S.B. , 298 S.W.3d 280 , 294 (Tex. App.

― Dallas 2009, no pet. ). However, u pon perfection of the appeal, the trial court loses jurisdic tion of the case, pending the appeal , in respe ct to all ma tters that in t erfere with th e app ellate functions. See Panhandle Const. Co. v. Lindsey , 72 S.W.2d 1068 , 1072 ( Tex . 1934). The trial court may not3 then take any action in the cause with respect to the su bject matter of the appeal. Se e B ichse l v.
Heard , 328 S.W.2d 462, 466 ( Tex. Civ

. App

. ― S an A ntonio 1959 , no writ )

. However, a summary judgment which does n ot dispose of all partie s an d issues is not final, but rather is interlocutory. See Lehmann v. Har

- Con Corp. , 39 S .W.3d 191, 199

- 200 (Tex. 200 1). In the absence of a special statute o r jud icially c reated exception, interlocutory orders are not appealab le. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 5 1.014 (West Supp. 2020 );
T EX

. R. C IV

. P. 168; Sabre Travel Int ’ l, Ltd. v. Deutsche Lu f

thansa AG , 5 6 7 S.W. 3 d 7 25 , 7 3 6 (Tex. 20 19 )

. T he October 24 order gr an ting in pa rt and denying in part Thompson ’ s moti on for

summary judgment did not dispose of Davis ’ s forgery claim and, therefore, was not a final judgment or a ppealable. See Far m Bureau Cty. Mut. Ins. Co. v. Rogers , 455 S.W.3d 161, 164 (Tex. 2015) (per curiam)

. Acco rdingly , the trial cou rt retained jur is diction and had jurisdic tion
at the time of the Oct o ber 25 hearing and when the October 2 8 fina l judgment was signed. This
conclu si on is supported by th e scheme for perfec ting appeals set out in the Texas Rules of Appellate Procedure.
With certain exc ep tions, a notice of appeal must be filed within thirty days after the judgment is signed. T EX

. R. A PP

. P. 26.1. Thus, a notice of appeal is premature if i t is filed
before t he judgment i s signed. In re No rris , 371 S.W.3d 546, 552 (Tex. App.

― Austin 2012, orig. proceeding). If a n otice of appeal is filed for a nona p pealable judgment, the notice of appeal will be deemed premature and then deemed timely filed if the record demo nstrates that
the judgment has become final. See T EX

. R. A PP

. P

. 27

. 1(a)

. Furthe r, if a trial cou rt modifies an order or judgment after it has been appealed, our rules direct the appellate court to “ treat the appeal as from the subsequent order or judgment

. ” Id . 27. 3. Complian ce with t his requirement would be impossible i f the trial court lost ju risdiction after the notice of appeal was filed. The October 24, 2019 notice of appeal premature ly invoked the jurisdiction of this court , but it did not divest the trial court of jurisdic tion

. The trial cou rt had jur isdiction w hen i t sign ed
the second judgment dis posing of the remai ning claim

. At that time , the October 24 partial summary j udgment merged into th e second judgment, ma king it a f inal judgment. See Newco
Dri lling Co . v. Weyand , 960 S. W.2d 654, 656 ( T ex. 1998) (per curiam)

. T he pr emature notice of appeal then beca me effective to appeal the entire cause. T EX

. R. A PP

. P. 27.1(a) ; Lerma v.4 Forbes , 144 S.W.3d 16, 18 (Tex. App.

― El Paso 2004, no pet.)

. W e overrule Thompson ’ s fir st issue.

F ORGERY In his second issue, Thompson asse rts “ t he trial court erred w hen proceeding on the
bench t rial merits he aring on October 25, 2019, when it had lost jurisdiction. ” As explained above, T hompson ’ s motion for summary judgment did not address Davis ’ s forgery allegatio n , and the trial court ha d j urisdiction to hear the remaining claim in the suit.
Add itionally, Thomp so n appears to comp lain that D a vis ’ s petition did not adequately provide no t ice of his forgery claim. Davis ’ s live pleading alleged that Thompson or an other person signed Danny D. Davis ’ s name to the deed, thereby committing forgery. Additionally,
Davis stated in the pleadi ng that the deed was void ab initio because the signatu r e on the deed is
not the si gnature of Danny D. Davis, the deed does not transfer ti tle, and the property passes to Danny D. Davis ’ s heirs. Therefore, Thompson had notice of the forgery claim. Thompson did not file special exceptions complaining of any d efects in the p leadings or otherwise raise this compla i nt in the trial court , and it is therefore waived. See T EX

. R. C IV

. P. 90 ; Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of America , 3 4 1 S.W.3d 3 23 , 3 4 5

- 4 6 (Tex. 20 1 1 )

. Thompson also argue s tha t forgery is a criminal act, not a civil cause of ac ti o n. He explains that , for this reas on , he and coun sel intentionally did not appear “ to part ic ip ate in a ‘ null

an d vo i d ’ merits he aring

. . .. ” Davis ’ s petit ion alleged that the deed to Thompson is voi d ab
initio because his father ’ s signature was forged, the deed did not transfer title, and the land

pass ed to Danny D. Davis ’ s he irs. A forged deed is void ab initio and passes no title

. Morris v. Wells Fargo Bank, N.A. , 334 S.W.3d 838, 843 (Tex. App.

― Dal las 2011, no pet.). Forgery is a

soun d allegation by which to attack the validity of a deed in a civil action. 1 See Bellaire Kirkpatrick Join t V ent ure v. Loots , 826 S.W.2d 205, 209

- 10 (Tex. App.

― Fort Worth 1992, writ

1 We note that forgery of deeds is commonly asserted in trespass to try title causes of action rather than declaratory judgment actions

. Although Davis couched his petition in terms of a declaratory judgment suit , in asking that the deed be declared voi d ab initio , he is asking to adju dicate rival cl aims of title to the land. The tr ial court ordered that Davis, Harger, and Ether idge each own an undivided one
- third interest in the property at issue. Therefore, this is a trespass to tr y title cause of ac tion. See T EX

. P ROP

. C ODE A NN

. § 22.001(a) (West 2014 ) ; Vernon v. Perrien , 390 S. W.3d 47, 54

- 55 (Tex. App.

― El Paso 2012 , pet. de nied )

. The Declaratory Ju dgments Act provides a procedural method for determining the validity of deeds, but it cannot be used to adjudicate title. See J ordan v. Bustamante , 158 S.W.3d 29, 34

- 35 (Tex. App.

― Houston [14 th Dist.] 2005, pet. denied ). Howeve r, Thompson neither object ed to the petition in the trial court n or attempted to raise a complain t on appeal that the petit i on was defective

.5 denied); Nagel v. Temple , 459 S.W .2 d 497, 500 (Tex. Civ. App.

― Houston [1 4 th Dist.] 1970,
writ ref ’ d n.r. e .).
Fin ally, t o the extent Thompson is contending the forgery claim is part of the fra u d claim that was barred by a four

- year limitations period and disposed of by s ummary judgment , we disagree. Either t he ten

- year or twenty

- five

- ye ar limitations period appl ie s to recover real

prop er ty und er a forged deed. See T EX

. C IV

. P RAC

. & R E M

. C ODE A NN

. §§ 16.026, 16.028 ( West
2002 ); W ilhite v. Davis , 298 S.W.2d 928, 934 Dallas 1957, no writ) (a pplying ten

- year statute of limitations in trespass to t ry title suit involving a forged deed)

. We overr ul e Thom pson ’ s second
issue.

D ISPOSITION Because Thomps on raises no valid complaints, w e affirm the tr ial court ’ s judgment.

B RIAN H OYLE Justice
Opin i on delivered October 14 , 2020. Pan el consisted of Wor then, C. J., Hoyle, J., and Neel ey, J.

## COURT OF APPEALS

TWELFTH COURT OF A PPEALS DISTRICT OF TEXAS

JUDGMENT

OCTO BER 14 , 2020

NO. 12

- 19

- 00348

- CV

DONNIE RA E T HOMPSON, SR

. , App ellant V. SHAWN DAV IS , Appe llee

Appeal from the 294th District Court
of Van Zand t County, Texas (Tr.Ct.No. 13

- 00076 )

THIS CAUSE came to be heard on the appellate record and br i efs filed herein, and the same being consid ered, it is the opinion of this court that there was no error in the judgment.
It is therefore OR D ERED, ADJUDGED and DECREED that the judgment of
the court below be in all thin gs affirmed , and that all costs of this ap peal are hereby adjudged against the appellant, DONNI E RAE THOMPSON, SR

. , fo r w hich execution may issue, and
that th is de cision be certif ied to the court b elow for observance. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.