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Terrell v. Price

Court of Appeals of Texas, First District

July 13, 2017

CURTIS L. TERRELL, JR., TANYA A. WALL, AND LORNA K. FINCH, Appellants
v.
ANGELA T. PRICE AND KEVIN HALE, Appellees

         On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2015-15566

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

          MEMORANDUM OPINION

          Terry Jennings Justice

         Appellants, Curtis L. Terrell, Jr., Tanya A. Wall, and Lorna K. Finch, challenge the trial court's order denying their motion to compel arbitration in their suit against appellees, Angela T. Price and Kevin Hale, for trespass to try title.[1] In their sole issue, appellants contend that the trial court erred in denying their motion to compel arbitration.[2]

         We affirm.

         Background

         In their second amended petition, appellants alleged that they and Price were the fee simple owners and tenants in common of real property described as Lot 19, Block 5, Forest Home Addition, in Houston (the "property"). Price asked appellants to sign a "two-page document, " which she represented would authorize her to pay the property taxes. After each appellant signed the document, Price "added pages" to "convert it to a general warranty deed conveying the property to herself." She also added the acknowledgement of a notary public, Dottie R. Smith, [3] who purportedly witnessed each appellant signing the document. Appellants asserted that they did not sign the document in Smith's presence, and Price subsequently conveyed the property by general warranty deed to Hale.

         Appellants further alleged that "[b]oth deeds are void and/or voidable" as Price procured the initial deed from them by fraud. Further, Price's recording of the deed constituted a cloud on their title to the property, and her failure or refusal to remove the cloud was willful and without justification or excuse. Appellants sought an order declaring both deeds "void, " removing the cloud on their title, and awarding them actual and exemplary damages and attorney's fees.

         Price answered, generally denying the allegations. Hale also answered, generally denying the allegations, while also specifically denying that appellants were entitled to attorney's fees. Hale further asserted, as an affirmative defense, that he was a bona fide purchaser. He also brought a counterclaim against appellants and a cross-claim against Price for breach of warranty of title.

         On January 5, 2016, the parties, after attending mediation, entered into a settlement agreement, which they filed in the trial court.[4] Pursuant to the settlement agreement, the parties agreed to certain exchanges and distributions related to the parties' lawsuit in Harris County Probate Court No. 2, [5] to certain exchanges pertaining to the instant trespass-to-try-title action, and that any dispute over the terms of the agreement would be subject to binding arbitration, as follows:

1. The parties agree to file a motion to abate the litigation pending the resolution of the Estate of Willie Lee Barnes [the "Estate"], currently pending as Cause 417417 in Probate Court No. 2, Harris County, Texas.
2. [Price] shall gift her interest in the real and personal property in the Estate of Willie Lee Barnes to [appellants].
3. In exchange for the consideration given by [Price] in the preceding paragraph, [appellants] agree that [Price] shall receive cash from the Estate . . . .
4. [Terrell], as executor of the Estate, shall distribute the remaining cash in the Estate to all beneficiaries in equal portions. . . .
5. WFG National Title Insurance Company, as insurer for [Hale], shall pay to attorney [for Price] $2, 500.00 . . . in full and final settlement of all claims.
6. Upon distribution of the cash proceeds the parties shall dismiss the pending lawsuit with prejudice.
7. The parties agree to cooperate to prepare and execute all necessary documents to effect the terms of this agreement.
8. The parties agree that any dispute over the terms of this agreement shall be subject to binding arbitration with Judge Eric Andell.
9. The parties agree to do all things necessary to ensure that clear title to the property [that is] the subject of this suit is fully vested in [Hale].
. . . .
11. The parties agree to use good faith and best efforts to complete all actions agreed to within this agreement ...

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