Court of Appeals of Texas, Fourth District, San Antonio
the 438th Judicial District Court, Bexar County, Texas Trial
Court No. 2015-CI-20809 Honorable David A. Canales, Judge
on Motion for Rehearing
Bryan Marion, Chief Justice Marialyn Barnard, Justice
Patricia O. Alvarez, Justice.
Patricia O. Alvarez, Justice.
motion for rehearing is denied. This court's opinion and
judgment dated June 14, 2017 are withdrawn, and this opinion
and judgment are substituted. We substitute this opinion to
add a footnote setting forth our reason for reversing the
trial court's no-evidence summary judgment as to
appellants' trespass-to-try-title claim.
Beatrice Vasquez and Darryl De La Cruz appeal a summary
judgment granted in favor of Appellees Old Austin Road Land
Trust; Joseph Anthony Pizzini, individually, and as trustee
of Old Austin Road Land Trust; and John Price. Appellants
contend the trial court erred in granting a traditional
summary judgment on the appellees' affirmative defenses
of bona fide purchaser and collateral estoppel. Appellants
further contend the trial court erred in granting a
no-evidence summary judgment on their DTPA, fraudulent
transfer, civil conspiracy, and intentional infliction of
emotional distress claims. Finally, appellants contend the
trial court erred in ruling on objections to the summary
1998, De La Cruz acquired a lot in Selma, Texas. De La Cruz
allowed Vasquez, his aunt, to build a house on the lot.
1999, De La Cruz executed a deed conveying the property to
Ralph Carpenter. De La Cruz and Vasquez subsequently sued
Carpenter for DTPA violations arising from the conveyance. A
jury found Carpenter engaged in "false, misleading
and/or deceptive acts or practices that Beatrice Vasquez
relied on to her detriment" and an unconscionable action
or course of action against Appellants, and it awarded
Vasquez $210, 980.00 in damages.
April 19, 2013, Carpenter conveyed the property to Old Austin
Road Land Trust. On May 17, 2013, the appellants filed the
underlying lawsuit against Carpenter and the appellees
asserting numerous causes of action. The appellants obtained
a temporary injunction ordering Carpenter and the appellees
to cease any type of action that would interfere with
Vasquez's quiet possession of the property during the
pendency of the lawsuit.
appellees filed a hybrid motion for summary judgment. In
their traditional motion, they moved for summary judgment on
their affirmative defenses of bona fide purchaser and
collateral estoppel. In their no-evidence motion, they
challenged each of the appellants' claims asserted
against them. The trial court signed an order granting the
appellees' motion for summary judgment and severed the
judgment into a separate cause.
review the grant of [a] summary judgment de novo."
Katy Venture, Ltd. v. Cremona Bistro Corp., 469
S.W.3d 160, 163 (Tex. 2015). To prevail on a traditional
motion for summary judgment, the movant must show "there
is no genuine issue as to any material fact and the [movant]
is entitled to judgment as a matter of law."
Tex.R.Civ.P. 166a(c); accord Katy Venture, 469
S.W.3d at 163. A trial court must grant a no-evidence motion
for summary judgment unless the nonmovant raises a genuine
issue of material fact on each challenged element of the
nonmovant's claims. KCM Fin. LLC v. Bradshaw,
457 S.W.3d 70, 79 (Tex. 2015). We take as true all evidence
favorable to the nonmovant, resolve all conflicts in the
evidence in the nonmovant's favor, and indulge every
reasonable inference and resolve any doubts in the
nonmovant's favor. Katy Venture, 469 S.W.3d at
Judgment In Favor of Carpenter
appellants generally challenge the trial court's order
granting summary judgment on any of their claims against
Carpenter. Carpenter was not a party to the summary judgment
proceedings because he did not file a motion for summary
judgment or otherwise join the appellees' motion. "A
trial court may not grant summary judgment in favor of a
party that does not properly move for it by motion."
Willy v. Winkler, No. 01-10-00115-CV, 2010 WL
5187719, at *2 (Tex. App.-Houston [1st Dist.] Dec. 23, 2010,
no pet.) (mem. op.) (citing Teer v. Duddleston, 664
S.W.2d 702, 703 (Tex. 1984) (holding the trial court erred in
adjudicating the rights of a party who did not move for
summary judgment)). Accordingly, those portions of the trial
court's order granting summary judgment on any of the
appellants' claims against Carpenter are reversed. In
addition, to the extent the trial court's severance order
severed any of the appellants' claims against Carpenter
into the severed cause, that portion of the severance order
is also reversed, and all of the appellants' claims
against Carpenter remain pending in the original cause.
appellees moved for traditional summary judgment on their
affirmative defense of bona fide purchaser. The appellees
asserted this defense in response to the appellants'
trespass-to-try-title claim and the appellants' request
to void the conveyance of the property from Carpenter to the
appellees under the Texas Uniform Fraudulent Transfer Act
(TUFTA). See Tex. Bus. & Com. Code Ann.
§§ 24.001-.013 (West 2015 & Supp. 2016).
Bona Fide Purchaser Defense to Title Dispute
as a bona fide purchaser is an affirmative defense to a title
dispute." Madison v. Gordon, 39 S.W.3d 604, 606
(Tex. 2001). To be a bona fide purchaser, "one must
acquire property in good faith, for value, and without notice
of any third-party claim or interest." Id.
"Notice may be constructive or actual."
Id. "Constructive notice is notice the law