Montoya v. Gutierrez

          From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2014CI07335 Honorable Karen H. Pozza, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          REBECA C. MARTINEZ, JUSTICE

         Appellants 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 opinion.

         Background

         On 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, Daniel Lopez.

         Gutierrez 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 judgment.

         The 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.

         Discussion

         In a 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."^[1] 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.).

         With 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).^[2] 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).

         Here, 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.

         However, "[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.

         Here, 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 ...