United States Court of Appeals

for the Fifth Circuit

No. 21-40365

Nicholas Fugedi, in his capacity as Trustee Carb Pura Vida 

Trust,

Plaintiff—Appellant,

versus

Initram, Incorporated; RJL Realty, L.L.C.; Eternal 

Investments, L.L.C.; Bruce Robinson; Dale Pilgeram, et 

al

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:19-CV-249

Before Richman, Chief Judge, and Clement and Engelhardt, 

Circuit Judges.

Per Curiam:*

Nicholas Fugedi, as trustee for the CARB PURA VIDA Trust (the 

trust), filed suit to quiet title to real property in Houston, Texas. Both parties 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 29, 2022

Lyle W. Cayce

Clerk

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moved for summary judgment, and the district court granted Initram’s 

motion. Because the court erred as a matter of law, we vacate and remand.

I

The district court’s characterization of this case is accurate: “[the] 

dispute is contentious and involves multiple parties. The [p]roperty [at 

issue] is burdened with many liens and has a convoluted history of 

conveyances. On top of that, there are salacious allegations of fraud and other 

skulduggery.”1

 But despite the whirlwind of allegations and accusations, the 

claim on appeal is straightforward. Fugedi, as trustee for the trust, seeks to 

quiet title to property in Houston, Texas (the property) against the many 

named defendants (Initram).

Yale Development, LLC, executed and recorded a General Warranty 

Deed (the deed) in which it sold and conveyed the property to a grantee 

identified as the “CARB Pura Vida Trust.” Although Fugedi is the trustee 

of the trust, he was not named in the deed. Little more than a week later, 

Fugedi filed this action to quiet title.2 During the litigation and before 

summary judgment, Initram argued that the deed was invalid because it 

purported to convey directly to the trust, a nonentity under Texas law. To 

remedy this potential cloud on his title, Fugedi executed a corrected deed 

with Yale Development, and he entered that deed and an affidavit from the 

closer of the original deed into the record. The corrected deed lists as the 

grantee, “Nicholas Fugedi in his capacity as Trustee of the CARB Pura Vida 

Trust, a Michigan trust,” and the affidavit clarifies that Fugedi was always 

1 Fugedi v. United Rentals (N. Am.) Inc., No. 3:19-CV-00249, 2021 WL 1220032, at 

*1 (S.D. Tex. Mar. 31, 2021).

2 Fugedi eventually amended the complaint to bring a trespass to try title claim as 

well as a claim for declaratory relief.

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meant to take the property in his capacity as trustee and that it was a 

scrivener’s error for the original deed to state otherwise.

Texas law allows for certain changes to be made under the deed 

correction statutes, Texas Property Code §§ 5.027-.030. Fugedi argued that 

the corrected deed made a nonmaterial change and that the affidavit satisfied 

the statute’s requirements for making such a change. He contends that the 

correction merely clarified in what capacity the parties were acting,3 and that 

because the change was nonmaterial, all the statute required was an affidavit 

from someone with personal knowledge, such as the closer of the original 

deed.4 Fugedi also argued that because the trust is a Michigan trust, 

Michigan law should apply and that under Michigan law, trusts can hold 

property.

The district court disagreed. The court first decided that, as a matter 

of Texas law, (1) trusts are a relationship rather than a legal entity and are 

incapable of holding title to property; and (2) a deed must contain both a valid 

grantor and grantee in legal existence.5

 The court then concluded that, 

because the trust is not a legal entity, the original deed was void because it 

purported to convey property to a grantee that was not in legal existence.6 

The court then decided that the corrected deed purported to correct a 

material—rather than nonmaterial—change because it attempted to 

substitute grantees.7

 The court characterized this decision as “a close call,” 

3 See Tex. Prop. Code Ann. §§ 5.027-.030.

4 Id. § 5.028.

5 Fugedi, 2021 WL 1220032, at *3.

6 Id.

7 Id.

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distinguishing the substitution of grantees from corrections to “the capacity 

of the grantor and grantee.”8

Because the court decided that the correction was a material change, 

it decided that § 5.029 of the deed correction statute applied. As a result, the 

corrective instrument needed to be “executed by each party to the recorded 

original instrument of conveyance . . . or, if applicable, a party’s heirs, 

successors, or assigns.”9 The court concluded that because the original 

conveyance was signed by the trust and did not identify a legally recognizable 

trustee, it was invalid10 and “[n]o amount of correction instruments 

filed . . . will change that.”11 The court added that, even if the statute allowed 

this type of error to be corrected, “it is simply impossible to comply with 

§ 5.029 because the alleged grantee [the trust] can’t sign the correction 

instrument.”12

The court then quickly disposed of the remaining arguments. It 

decided that Texas law likely applied because the property was located in 

Texas and, in the alternative, that Michigan law was the same as Texas law 

in that a trust could not hold title to property.13 Because Fugedi could not 

8 Id. (citing inter alia Pense v. Bennett, No. 06-20-00030-CV, 2020 WL 5948801, at 

*5 n.9 (Tex. App.—Texarkana Oct. 8, 2020, no pet.); AIC Mgmt. Co. v. AT&T Mobility 

LLC, No. 01-16-00896-CV, 2018 WL 1189865, at *7 (Tex. App.—Houston [1st Dist.] Mar. 

8, 2018, pet. denied)).

9 Id. at *4 (quoting Tex. Prop. Code Ann. § 5.029(b)).

10 The court called the deed “invalid as a matter of law” in its memorandum and 

order but revised that to say “void” in the final judgment.

11 Fugedi, 2021 WL 1220032, at *4.

12 Id. (citing AIC Mgmt., 2018 WL 1189865, at *9).

13 Id. Fugedi’s contention that Michigan law applies is incorrect. This is a dispute 

concerning conveyances and interests in real property located in Texas, so Texas law 

applies. Colden v. Alexander, 171 S.W.2d 328, 335 (Tex. 1943); see also Pellow v. Cade, 990 

S.W.2d 307, 314 (Tex. App.—Texarkana 1999, no pet.) (holding that under Texas law, 

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prove title in his trespass to try title claim, the court held that his quiet title 

and declaratory relief claims failed.14 The court denied Fugedi’s motion for 

summary judgment and granted Initram’s cross-motion for summary 

judgment “to the extent that it requests [Fugedi] take nothing by this suit 

against Defendants, and Fugedi is adjudicated to possess no right, title, claim, 

or interest to the Property.”15 Fugedi timely appealed.

Once in this court, Initram moved to dismiss, seeking damages and an 

antisuit injunction. Initram argued that dismissal was appropriate “because 

the issues on appeal are no longer in controversy and [Fugedi] no longer has 

a legally cognizable interest in the outcome of the case” since new 

whistleblower evidence allegedly proved that the trust is a sham operated by 

Texas citizen Lloyd Kelley.

II

We review a grant of summary judgment de novo.16 Summary 

judgment should be granted if there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.17 We view the 

evidence in the light most favorable to the nonmoving party.18 Vacatur and 

remand are appropriate if the district court misapplies a legal standard.19 

“[q]uestions concerning title to real estate, the validity of conveyances, warranties, and 

foreclosures are determined by the law of the situs”) (citing Colden, 171 S.W.2d at 335).

14 Fugedi, 2021 WL 1220032, at *4.

15 Id. at *5.

16 Molina v. Home Depot USA, Inc., 20 F.4th 166, 168 (5th Cir. 2021).

17 Fed. R. Civ. P. 56(a).

18 Molina, 20 F.4th at 168-69.

19 See United States v. Bittner, 19 F.4th 734, 748-49 (5th Cir. 2021), cert. granted, 142 

S. Ct. 2833 (2022) (vacating and remanding when the district court construed a statute 

incorrectly).

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When determining Texas law, this court looks first to “the final decisions of 

the . . . Supreme Court [of Texas].”20 If those decisions provide inadequate 

guidance, then this court can determine “how [the Supreme Court of Texas] 

would resolve the issue if presented with the same case.”21

A

The district court erred when it concluded that the deed was null and 

void. The district court correctly concluded that a trust is a relationship, not 

a legal entity, and that a grantee must be in legal existence for a grant to be 

valid.22 But no Texas court has gone so far as to hold that all deeds naming a 

trust as a grantee are null and void or that the error is not correctable under 

the deed correction statute. Indeed, there have been cases in which Texas 

courts have not voided a deed even when confronted with a trust holding 

property in its own name.23 At most, the deed was invalid.

1

However, it appears that the deed is valid under Texas law. Texas 

courts have long recognized a certain amount of flexibility in naming the 

grantee, and Texas state court decisions indicate that courts would read the 

20 In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).

21 Id.

22 See, e.g., Ray Malooly Tr. v. Juhl, 186 S.W.3d 568, 570 (Tex. 2006) (per curiam); 

Parham Fam. Ltd. P’ship v. Morgan, 434 S.W.3d 774, 787-88 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.).

23 See Tanya L. McCabe Tr. v. Ranger Energy LLC, 531 S.W.3d 783, 784, 798-800 

(Tex. App.—Houston [1st Dist.] 2016, pet. denied) (holding that a defective correction 

instrument “did not divest the Trusts of their overriding royalty interests” without 

discussion of whether a deed in which a trust seemingly holds property is void) (emphasis 

added); Transcon. Realty Invs., Inc. v. John T. Lupton Tr., 286 S.W.3d 635 (Tex. App.—

Dallas 2009, no pet.) (not discussing whether the trust itself could hold property or whether 

it would be a void trust).

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original deed to convey to Fugedi in his capacity as trustee rather than to the 

trust itself. “Every deed of conveyance must have a grantee. But it is a 

mistake to suppose that any mere formalities are necessary to its 

validity. . . . The grantee need not be named.”24 “If, from the whole 

instrument, a grantor and grantee can be ascertained . . . it is a deed which is 

legally effective as a conveyance.”25

“[M]ere formalities are [not] necessary to [a deed’s] validity,” and 

Texas courts would have inferred that Fugedi was the grantee.26 In Vineyard 

v. O’Connor,27 for example, the Supreme Court of Texas inferred the identity 

of the grantee when none was listed.28 That court would likely do the same 

here. The deed in this case does list a grantee, but the grantee is a nonentity 

incapable of holding property itself. As in Vineyard, this would seem not to 

satisfy the legal requirements for a conveyance. But Fugedi was the trustee 

at the time of the original deed and remains so today. As trustee, he was the 

only entity capable of holding property for the benefit of the trust. As in 

Vineyard, Texas courts may infer here that Fugedi was the party to be named 

as grantee. He is the obvious party that should have been named rather than 

the trust itself. Finally, the affidavit submitted as part of Fugedi’s § 5.028 

24 Vineyard v. O’Connor, 36 S.W. 424, 425 (Tex. 1896) (emphasis added).

25 Harlan v. Vetter, 732 S.W.2d 390, 392 (Tex. App—Eastland 1987, writ ref’d 

n.r.e.) (emphasis added).

26 Vineyard, 36 S.W. at 425.

27 36 S.W. 424.

28 Id. at 425.

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correction clarifies that Fugedi was indeed supposed to be the original 

grantee.

Initram argues that Vineyard is inapposite because the deed at issue in

Vineyard made references to the eventual grantee even though it did not 

explicitly name that individual as the grantee.29 This distinction is unavailing 

because, as Texas law makes clear, Fugedi is the only individual who could

take the property for the benefit of the trust.30 The identity of the proper 

grantee can be ascertained from context just as in Vineyard.

31

B

Even assuming the Texas courts would not save the original deed by 

reading in Fugedi as grantee, Fugedi validly made a nonmaterial correction 

to the deed. The district court erred in concluding that the change was 

material.

Section 5.028 allows a party to a deed to make a nonmaterial 

correction to that deed so long as it submits an affidavit from someone with 

personal knowledge of the original deed explaining the correction.32 The 

statute lists several different types of nonmaterial clarifications that a party 

can make under § 5.028.33 Texas courts have recognized a clarification to the 

29 Vineyard, 36 S.W. at 425 (“It describes . . . Genereaux as being the party of the 

second part.”).

30 See Tex. Prop. Code Ann. § 113.002 (outlining the broad general powers of 

trustees including any “that are necessary or appropriate to carry out the purposes of the 

trust”); see also id. §§ 113.001-.031.

31 See Harlan v. Vetter, 732 S.W.2d 390, 392 (Tex. App—Eastland 1987, writ ref’d 

n.r.e.) (“If, from the whole instrument, a grantor and grantee can be ascertained . . . it is a 

deed which is legally effective as a conveyance.”) (emphasis added).

32 Tex. Prop. Code Ann. § 5.028.

33 Id.

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capacity of one of the parties to the deed to be nonmaterial.34 The Supreme 

Court of Texas has even recognized that correction deeds prior to the 

enactment of the statutes could be used to correct the capacity in which the 

grantor conveys the land.35

In Pense v. Bennett,36 a Texas appellate court explained that a 

correction affidavit that changed the description of the grantor from solely 

the guardian of an incapacitated person to reflect that the individual was also 

acting as trustee on behalf of the person’s management trust was a 

nonmaterial change because it simply clarified in what capacity the grantor 

was conveying land.37 Similarly, in Myrad, the Supreme Court of Texas held 

that clarifications as to capacity are allowable corrections, even before the 

deed correction statute was passed.38

The district court concluded and Initram argued that the correction 

was material because it substituted a new grantee. They relied on AIC 

Management Co. v. AT&T Mobility, LLC,39 but the case is inapposite. In AIC, 

34 Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746, 750 (Tex. 2009) 

(“[A] correction deed may be used to correct a defective description of a grantor’s 

capacity.”); see also Pense v. Bennett, No. 06-20-00030-CV, 2020 WL 5948801, at *5-6 n.9-

10 (Tex. App.—Texarkana Oct. 8, 2020, no pet.) (holding that affidavits of correction that 

“corrected the capacity of the grantor and grantee” were nonmaterial changes made in 

accordance with § 5.028).

35 Myrad, 300 S.W.3d at 750 (citing Humble Oil & Refin. Co. v. Mullican, 192 S.W.2d 

770, 771-72 (Tex. 1946)).

36 No. 06-20-00030-CV, 2020 WL 5948801.

37 Id. at *5.

38 Myrad, 300 S.W.3d at 750.

39 No. 01-16-00896-CV, 2018 WL 1189865 (Tex. App.—Houston [1st Dist.] 2018, 

no pet.).

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the original deed listed Aldine ISD as the grantee.40 Several years later, the 

grantor executed a correction affidavit listing AIC as the new grantee in place 

of Aldine ISD.41 Because the correction affidavit substituted an entirely new 

party as grantee, the court decided that the change was material and needed 

to comply with § 5.029.42 Unlike in AIC, Fugedi has always been part of the 

transaction because he is the trustee for the trust. It was Fugedi who signed 

the original deed and corrected deed, and the property is still held in trust. 

All the corrected deed does is clarify in what capacity Fugedi was acting. He 

is not a new third party to the transaction like AIC was.43

It is true that no Texas court has explicitly held that § 5.028 applies in 

a situation exactly like this one, but the only difference here is that the change 

in capacity is from that of the trust itself to that of trustee rather than a change 

in guardianship or the addition of a trustee capacity. Unlike these changes 

that Texas courts have explicitly approved, the change in this case involves 

an original grantee that is technically incapable of holding property. But there 

is little daylight between this type of change and the standard clarification to 

capacity usually allowed under the statute. Further, Texas courts have long 

recognized flexibility about technical naming requirements, as in Vineyard in 

which the Supreme Court of Texas inferred a grantee to save the grant.

No Texas court has gone so far as to declare all deeds that convey to 

trusts void. In fact, Texas courts are likely to have given the grant a reading 

that would have saved it, treating Fugedi as the grantee even though he was 

40 Id. at *2.

41 Id.

42 Id. at *8.

43 We need not and will not consider whether Fugedi would be a proper party to a 

material change under § 5.029.

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not named. Even if the Texas courts did not, the deed correction statute is 

broad and allowed Fugedi to file his affidavit clarifying the capacity in which 

he acted—a nonmaterial change. The district court erred in holding 

otherwise.

III

Initram argues, in the alternative, that we should affirm because it 

validly foreclosed on the property prior to the conveyance. Initram also 

moved this court to dismiss the appeal in light of new evidence purporting to 

establish the trust as a sham concocted by Texas individuals, thereby 

destroying diversity jurisdiction. The district court did not address the 

foreclosure argument in its order, and the district court never had the 

opportunity to review this new evidence of fraud presented for the first time 

to this court.

Because the district court erred as a matter of law in declaring the deed 

void and the change material, vacatur and remand are appropriate. 44 We 

need not reach the parties’ additional arguments concerning foreclosure.

Further, we generally do not consider new evidence on appeal.

45 We decline 

to do so now with regard to Initram’s evidence of fraud. To the extent that 

diversity jurisdiction is in question, remand is the appropriate remedy when 

“our jurisdiction remains unclear, ‘but there is some reason to believe that 

jurisdiction exists.’”46

44 See United States v. Bittner, 19 F.4th 734, 748-49 (5th Cir. 2021), cert. granted, 

142 S. Ct. 2833 (2022) (vacating and remanding when the district court construed a statute 

incorrectly).

45 See MidCap Media Fin., LLC v. Pathway Data, Inc., 929 F.3d 310, 315 (5th Cir. 

2019).

46 Id. at 316 (quoting Molett v. Penrod Drilling Co., 872 F.2d 1221, 1228 (5th Cir. 

1989) (per curiam)).

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* * *

Accordingly, we VACATE the district court’s order and REMAND

for further proceedings not inconsistent with this opinion. We DENY all

outstanding motions. 

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