Court of Appeals of Texas, Fourth District, San Antonio
Yolanda H. MONTOYA and Daniel Lopez, Appellants
Rosemary H. GUTIERREZ, Appellee
the 131st Judicial District Court, Bexar County, Texas Trial
Court No. 2014CI07335 Honorable Karen H. Pozza, Judge
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Luz Elena D. Chapa, Justice
C. MARTINEZ, JUSTICE
Yolanda H. Montoya and Daniel Lopez (collectively the
"Appellants") appeal the trial court's judgment
quieting title in favor of Appellee Rosemary Gutierrez. The
Appellants argue the trial court erred in granting title in
favor of Gutierrez as a bona fide purchaser because Gutierrez
failed to assert her status as a bona fide purchaser as an
affirmative defense in her pleadings. We agree, and,
consequently, reverse the trial court's judgment and
remand the case for further proceedings consistent with this
September 1, 2006, Eduardo Herrera executed a deed granting
real property to Montoya. Herrera then deeded the same
property to Gutierrez on September 29, 2006. Gutierrez filed
her deed in the county property records on October 6, 2006.
Montoya subsequently filed her deed in the county property
records on October 26, 2006. Thus, although Montoya received
her deed first, she recorded it after Gutierrez recorded her
deed. On May 11, 2007, Montoya then executed a deed granting
an undivided one-half interest in the property to her son,
was living on the property at the time that Herrera executed
the two deeds and has continued to live on the property. The
Appellants filed a trespass to try title suit against
Gutierrez seeking title to and possession of the property and
recovery for lost rents and profits during the time of their
purported dispossession. Gutierrez filed a general denial
along with the sole affirmative defense of limitations in
regard to any rent occurring more than two years prior to the
filing of the suit. Gutierrez did not assert any
counterclaims in her answer and did not amend her pleadings
to include a bona fide purchaser defense or counterclaim. The
first time Gutierrez asserted her status as a bona fide
purchaser was in her response to a motion for summary
case proceeded to a bench trial, and the Appellants argued at
trial that Gutierrez's failure to assert her status as a
bona fide purchaser as an affirmative defense in her
pleadings precluded her from arguing the defense at trial.
Before the trial court heard evidence and argument on the
bona fide purchaser defense, the Appellants expressly stated
on the record that they were not trying the affirmative
defense of bona fide purchaser by consent. Nevertheless, much
of the trial testimony revolved around the bona fide
purchaser defense, and the trial court granted judgment
declaring Gutierrez as the sole owner of the property. The
trial court granted the Appellants a lien against the
property in the sum of $16, 583.64 for the reimbursement of
taxes paid on the property. Montoya and Lopez appeal, arguing
that the trial court erred by granting title to Gutierrez as
a bona fide purchaser when Gutierrez did not raise that
defense in her pleadings.
nonjury trial, "[w]here findings of fact and conclusions
of law are not properly requested and none are filed, the
judgment of the trial court must be affirmed if it can be
upheld on any legal theory that finds support in the
evidence." In re W.E.R., 669 S.W.2d 716, 717
(Tex. 1984) (per curiam); see also Rivas v. Rivas,
452 S.W.3d 49, 56 (Tex. App.-El Paso 2014, no pet.) ("If
the appellate court determines the evidence supports a theory
raised by the pleadings or tried by consent, then it is
presumed that the trial court made the necessary findings and
conclusions to support a recovery on that theory."
(citing Lemons v. EMW Mfg. Co., 747 S.W.2d 372 (Tex.
1988) (per curiam))). The judgment of the trial court,
however, "shall conform to the pleadings" of the
parties. Tex.R.Civ.P. 301. Thus, "a trial court may not
grant relief in the absence of pleadings to support such
relief." In re G.M., No. 04-13-00689-CV, 2014
WL 1242662, at *3 (Tex. App.- San Antonio Mar. 26, 2014, no
pet.) (mem. op.).
regards to what must be pleaded by a party, Rule 94 of the
Texas Rules of Civil Procedure mandates: "In a pleading
to a preceding pleading, a party shall set forth
affirmatively . . . any . . . matter constituting an
avoidance or affirmative defense." Tex.R.Civ.P. 94.
"Status as a bona fide purchaser is an affirmative
defense." Madison v. Gordon, 39 S.W.3d 604, 606
(Tex. 2001) (per curiam). Generally, affirmative defenses are
waived if they are not raised in a party's pleadings.
Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d
844, 851 (Tex. App.- Dallas 2005, pet. denied).
the record shows that Gutierrez did not plead her status as a
bona fide purchaser in her answer, and neither did she amend
her pleadings to include the affirmative defense.
See Tex. R. Civ. P. 94. Gutierrez asserts the
pleading requirements were satisfied when she alleged her
bona fide purchaser status in her response to the
Appellants' motion for summary judgment. However, a
summary judgment response is not a pleading, and including an
affirmative defense in a summary judgment response
"cannot . . . invoke an otherwise unpled affirmative
defense." Miller v. Argumaniz, 479 S.W.3d 306,
310 (Tex. App.-El Paso 2015, pet. denied); see In re
S.A.P., 156 S.W.3d 574, 576 n.3 (Tex. 2005) (per curiam)
("[A] motion for summary judgment is not a
pleading."). Because Gutierrez did not affirmatively
plead her bona fide purchaser status, the defense was waived.
See Madison, 39 S.W.3d at 606; Compass
Bank, 152 S.W.3d at 851.
"[w]hen issues not raised by the pleadings are tried by
[the] express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the
pleadings." Tex.R.Civ.P. 67. Therefore, Gutierrez's
only avenue for relief as a bona fide purchaser was if the
issue had been tried by consent. "Trial by consent is
intended to cover the exceptional case where it clearly
appears from the record as a whole that the parties tried the
unpleaded issue." Compass Bank, 152 S.W.3d at
854. It is not a "general rule of practice and should be
applied with care, and never in a doubtful situation."
Id. "To determine whether an issue was tried by
consent, an appellate court must examine the record for
evidence of the trial of the issue, not just
admission of evidence on the issue." Cont'l
Homes of Tex., L.P. v. City of San Antonio, 275 S.W.3d
9, 16 (Tex. App.-San Antonio 2008, pet. denied). A matter is
considered to have been tried by consent when evidence
regarding the unpled issue "is developed under
circumstances indicating both parties understood the issue
was in the case," and the other party failed to make an
appropriate complaint. Id.
the Appellants' counsel expressly stated at the beginning
of trial: "If you fail to plead [bona fide purchaser as
an affirmative defense], then you can't argue it, so
we're not going to try it by consent in this case."
The Appellants' counsel obtained a running objection on
the matter and, additionally, objected three times to the
relevance of opposing counsel's line of questioning
whenever the questioning broached an element of the bona fide
purchaser affirmative defense. Each of the Appellants'
counsel's objections were overruled by ...