Southside Partners v. Collazo Enterprises, LLC ( 2017 )


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  •                                                                                 ACCEPTED
    11-16-00346-CV
    ELEVENTH COURT OF APPEALS
    EASTLAND, TEXAS
    6/7/2017 12:19:34 PM
    SHERRY WILLIAMSON
    CLERK
    Case No. 11-16-00346-CV
    FILED IN
    11th COURT OF APPEALS
    EASTLAND, TEXAS
    IN THE COURT OF APPEALS    06/07/17 12:19:34 PM
    FOR   THE ELEVENTH DISTRICT OF TEXASSHERRY WILLIAMSON
    Clerk
    EASTLAND, TEXAS
    SOUTHSIDE PARTNERS,
    Appellant
    V.
    COLLAZO ENTERPRISES, LLC,
    Appellee
    On Appeal from Cause No. CV1408293A; in the 35th Judicial District
    Court of Brown County, Texas
    Honorable Rick Morris, Judge Presiding
    APPELLEE’S BRIEF
    Andrew Oliver
    State Bar No. 24046556
    Oliver Law Office
    9951 Anderson Mill Road, Suite 201
    Austin, Texas 78750
    Telephone: (512) 233-1103
    Fax: (512) 551-0330
    aoliver@oliverlawoffice.com
    ATTORNEY FOR APPELLEE
    COLLAZO ENTERPRISES, LLC
    Identity of Parties and Counsel
    Appellee Collazo Enterprises, LLC makes the following identification
    of parties and counsel:
    Appellant: Southside Partners
    William W. Ruth
    1406 E. Main, Suite 200
    Fredericksburg, Texas 78624
    (325) 642-9802
    (325) 641-0527 (Facsimile)
    TRIAL AND APPELLATE COUNSEL FOR SOUTHSIDE PARTNERS
    Charles Scarborough
    P.O. Box 356
    Abilene, Texas 79604
    (325) 672-8477
    APPELLATE COUNSEL FOR SOUTHSIDE PARTNERS
    James Chapman
    501 W. Main #109
    Fredericksburg, Texas 78624
    (830) 997-3269
    APPELLATE COUNSEL FOR SOUTHSIDE PARTNERS
    Appellee: Collazo Enterprises, LLC
    Andrew Oliver
    State Bar No. 24046556
    Oliver Law Office
    9951 Anderson Mill Road, Suite 201
    Austin, Texas 78750
    Telephone: (512) 233-1103
    Fax: (512) 551-0330
    aoliver@oliverlawoffice.com
    TRIAL AND APPELLATE COUNSEL FOR COLLAZO ENTERPRISES,
    LLC
    ii
    Table of Contents
    Identity of Parties and Counsel…………………………………….……..ii
    Table of Contents…………………………………………………...…….iii
    Index of Authorities………………………………………………..….….vi
    Statement of the Case……………………………………………….…...viii
    Statement Regarding Oral Argument…………………….………………..x
    Issues Presented…………………………………………….……………..xi
    Statement of Facts……………………………………………...…………..1
    Summary of the Argument……………………………………..…….........3
    Argument…………………………………………………………...……...6
    I. Collazo Enterprises, LLC is a Bona Fide Purchaser
    as a Matter of Law ………………….……….…………….…………6
    A. There is No Disputed Issue of Material Fact With Respect to
    Collazo Enterprises, LLC’s Lack of Actual Notice of
    Southside Partners’ Claims……………………………..…………6
    i.    Collazo Enterprises, LLC Satisfied its
    Evidentiary Burden…………………………………………7
    ii.   Southside Partners Failed to Create a Disputed
    Issue of Material Fact Regarding Actual Notice…………...8
    a. Evidence Submitted Prior to the Summary
    Judgment Hearing.............................................................8
    b. Evidence Submitted After the Summary
    Judgment Hearing……………………………………….9
    iii
    B. There is No Disputed Issue of Material Fact With
    Respect to Collazo Enterprises, LLC Not Being Charged
    with Constructive Notice of Southside Partners’ Claims………..10
    C. There is No Disputed Issue of Material Fact With
    Respect to Collazo Enterprises, LLC Paying
    Valuable Consideration for the Property………………………...13
    i.    Collazo Enterprises, LLC Satisfied its
    Evidentiary Burden………………………………………..13
    ii.   Southside Partners Failed to Create a Disputed
    Issue of Material Fact Regarding Valuable
    Consideration……………………………………………...14
    a. Evidence Submitted Prior to the Summary
    Judgment Hearing..........................................................14
    b. Evidence Submitted After the Summary
    Judgment Hearing……………………………………...15
    II.      The Special Warranty Deed to Collazo Enterprises, LLC
    Gives it Standing to Assert the Affirmative Defense of
    Bona Fide Purchaser ………………………………………….....16
    III.     The Trial Court Did Not Abuse Its Discretion by
    Granting the Motion for Summary Judgment Because
    Southside Partners Failed to Comply With
    Procedures for Requesting Additional Discovery ………………17
    A. Motion for Continuance Not Timely Filed………………………18
    B. Southside Partners Did Not Preserve Issue for Appeal………….19
    C. Trial Court Did Not Abuse Its Discretion………………………..20
    D. No Due Process Violation………………………………………..21
    IV.      Southside Partners Did Not Argue Issues Related to
    Chains of Title at Trial and Waived this Argument on Appeal…22
    iv
    Prayer………………………………………………………………………25
    Certificate of Compliance………………………………………………….26
    Certificate of Service………………………………………………………26
    v
    Index of Authorities
    Cases
    Alford v. Krum, 
    671 S.W.2d 870
    , 872 (Tex. 1984)………………………...11
    Castleberry v. New Hampshire Ins. Co., 
    367 S.W.3d 505
    (Tex. App.-Texarkana 2012, pet. denied)……………………….4, 10, 16, 23
    Choctaw Properties, L.L.C. v. Aledo I.S.D., 
    127 S.W.3d 235
    (Tex. App.- Waco 2003, no pet.)……………………………………………7
    Coastal Cement Sand, Inc. v. First Interstate Cred Alliance, Inc.
    
    956 S.W.2d 562
    , 567 (Tex. App.-Houston[ 14th Dist.] 1997, pet. denied)...24
    Cockrell v. Tex. Gulf Sulphur Co., 
    299 S.W.2d 672
    , 675 (Tex. 1956)…….11
    Colvin v. Alta Mesa Resources, Inc., 
    920 S.W.2d 688
    (Tex. App.- Houston[1st Dist.] 1996, writ denied)…………………………..6
    Cooksey v. Sinder, S.W.2d 253 (Tex. 1984)………………………………...6
    Davis v. Andrews, 
    361 S.W.2d 419
    (Tex. Civ. App.-Dallas 1962, writ ref’d n.r.e.)……………………………..11
    Graham v. Prochaska, 
    429 S.W.3d 650
    , 655
    (Tex. App.- San Antonio 2013, pet. denied)……………………………….11
    Hue Nguyen v. Chapa, 
    305 S.W.3d 316
    (Tex. App.-Houston[14th Dist.] 2009, pet denied)…………………………..6
    Huling v. Moore, 
    194 S.W. 188
    (Tex. Civ. App.- San Antonio 1917, writ refused)…………………………23
    Johnson v. Marti, 
    214 S.W. 726
    (Tex. Civ. App.- Fort Worth 1919, writ ref’d n.r.e.)……………………….16
    Jones v. Wal-Mart Stores, Inc.
    
    892 S.W.2d 144
    , (Tex. App.-Houston 1995, no writ)…………………….24
    vi
    Luckel v. White, 
    819 S.W.2d 459
    (Tex. 1991)……………………………..11
    Mathews v. Eldridge, 
    424 U.S. 319
    (1976)………………………………...21
    Natural Gas Pipeline Co. of America v. Justiss,
    
    397 S.W.3d 150
    , 156 (Tex. 2012)………………………………………….13
    Neeley v. Intercity Management Corp., 
    623 S.W.2d 942
    (Tex. App.-Houston [1st Dist.] 1981, no writ)……………………………...14
    Nguyen v. Short, How, Frels & Heitz, LLC, 
    108 S.W.3d 558
    (Tex. App.- Dallas 2003, pet. denied)………………………………...5, 6, 19
    Nicholson v. Memorial Hosp. System, 
    722 S.W.2d 746
    , 749
    (Tex. Civ. App.-Houston[14th Dist.] 1986, writ ref’d n.r.e)……………….14
    Paul v. Houston Oil Co. of Tex., 
    211 S.W.2d 345
    , 356
    (Tex. Civ. App.-Waco 1945, writ ref’d n.r.e.)……………………………..16
    Southwest Country Enterprises v. Lucky Lade Oil Co.,
    
    991 S.W.2d 490
    (Tex. App.- Fort Worth 1999, pet. denied)………………19
    Speck v. First Evangelical Church of Houston, 
    235 S.W.3d 811
    (Tex. App.-Houston[1st Dist.] 2007, no pet.)……………………4, 10, 16, 23
    Veltmann v. Damon, 
    701 S.W.2d 247
    , 247-248 (Tex. 1985)………………11
    Yowell v. Piper Aircraft Corp., 
    703 S.W.2d 630
    , 635 (Tex. 1986)………...20
    Statutes
    Tex. R. Civ. P. 166a(c)…………………………………………..4, 10, 16, 22
    Tex. R. Civ. P. 166a(d)………………………………………………………8
    Tex. R. Civ. P. 166a(f)……………………………………………………..24
    Tex. R. Civ. P. 166a(g)…………………………………………………18, 19
    Tex. R. App. P. 33.1(a)………………………………………………...20, 23
    vii
    Statement of the Case
    Appellant Southside Partners filed suit on August 1, 2014 seeking,
    among other relief against different parties, to set aside the sale of property
    from the United States of America to Appellee Collazo Enterprises, LLC.
    On July 20, 2015, Appellee Collazo Enterprises, LLC filed a traditional
    motion for summary judgment on its affirmative defense of bona fide
    purchaser [C.R. 118]. This motion was heard on August 14, 2015 [R.R. 4].
    Appellant Southside Partners was not seeking a motion to compel or alleging
    non-compliance with discovery requests           against Appellee Collazo
    Enterprises, LLC [R.R. 12].
    After the hearing and without requesting leave of court, Appellant
    Southside Partners began filing additional responses to Appellee Collazo
    Enterprises, LLC’s traditional motion for summary judgment that raised new
    arguments, factual allegations, and attached evidence that is being relied on
    by Appellant Southside Partners in this appeal [C.R. 275-299, 300-327, 336-
    360]. Appellee Collazo Enterprises, LLC responded to these various post-
    hearing filings [C.R. 328-335, 361-363].
    On April 3, 2016 the Court granted Appellee Collazo Enterprises,
    LLC’s traditional motion for summary judgment [C.R. 364]. On May 20,
    viii
    2016, Appellee Collazo Enterprises, LLC filed an Amended Motion for
    Entry of Order [C.R. 364].
    On June 17, 2016, Appellant Southside Partners filed his Objections
    to Defendant Collazo Enterprises, LLC’s Proposed Order and Motion for
    Continuance [C.R. 367]. On June 23, 2016, Appellee Collazo Enterprises,
    LLC filed its Reply to Plaintiff’s Objection to Proposed Order and Motion
    for Continuance [C.R. 403].
    On July 7, 2016, the trial court signed the proposed form of Order
    Granting Defendant Collazo Enterprises, LLC’s Traditional Motion for
    Summary Judgment that was submitted by Appellee Collazo Enterprises,
    LLC [C.R. 409].
    On August 8, 2016, Appellee Southside Partners filed a Motion for
    Reconsideration [C.R. 411], which was addressed when Appellant removed
    the case to federal court. The case was then remanded back to state court.
    On December 2, 2016, Appellee Southside Partners filed a Notice of
    Appeal [C.R. 427].
    On February 2, 2017, the claims between Appellant Southside
    Partners and Appellee Collazo Enterprises, LLC were severed into a separate
    cause which is being appealed herein [C.R. 433-436].
    ix
    Statement Regarding Oral Argument
    Appellee Collazo Enterprises, LLC does not believe oral argument is
    necessary. The law regarding the affirmative defense of bona fide purchaser
    is well-established and the nature of the arguments being raised by Appellant
    Southside Partners are of such a nature that the Court would most likely not
    benefit from oral argument. However, to the extent that the Court wishes to
    hear oral argument from Appellant Southside Partners, then in such event,
    Appellee Collazo Enterprises, LLC requests that it also be allowed to present
    oral argument.
    x
    Issues Presented
    1.     Was Collazo Enterprises, LLC entitled to judgment as a matter
    of law on its affirmative defense of bona fide purchaser? The trial court
    correctly held that Collazo Enterprises, LLC satisfied its evidentiary burden
    and was entitled to judgment as a matter of law on its affirmative defense of
    bona fide purchaser.
    2.     Did Southside Partners waive its arguments and evidence that
    were not raised for the first time until after the hearing on Collazo
    Enterprises, LLC’s motion for summary judgment? As a matter of law, the
    post-hearing filings and evidence submitted by Southside Partners were
    waived and should not be considered by the Court because Southside
    Partners did not request leave of the trial court to file the evidence and have
    it considered by the trial court.
    3.     Did Southside Partners timely file his motion for continuance?
    As a matter of law, a motion for continuance filed after a court has ruled on
    motion for summary judgment is untimely and cannot be raised in an appeal.
    4.     Did Southside Partners preserve the issue of his motion for
    continuance for review by this Court? As a matter of law, Southside Partners
    did not preserve this issue for appeal because he never set his motion for
    continuance for hearing or obtained a ruling on the motion for continuance.
    xi
    5.    Did the trial court violate Southside Partners’ due process rights
    by granting Collazo Enterprises, LLC’s Traditional Motion for Summary
    Judgment despite the post-hearing filings of Southside Partners? Because
    Southside Partners did not comply with the Texas Rules of Civil Procedure
    there was no violation of Southside Partners’ due process rights.
    xii
    Statement of Facts
    Appellee Collazo Enterprises, LLC would allege and show the
    pertinent facts for the Court to consider are as follows:
    Appellant Southside Partners (William W. Ruth) purchased the
    property in question (the “property”) at a July 2002 tax sale [C.R. 7]. On
    September 13, 2002, Appellant Southside Partners (as William W. Ruth)
    executed a Special Warranty Deed conveying the property to William Taylor
    Crow, Colby Crow, and Tanner Crow (the “Crown children”) [C.R. 125-
    127].    The Special Warranty Deed did not reserve any interest in the
    property in Appellant Southside Partners [C.R. 125].
    On September 12, 2006, James A. Crow filed Cause No. CV0609369;
    James A. Crow v. William Taylor Crow, et al.; in the 35th Judicial District
    Court of Brown County, Texas (“Crow Lawsuit”) against the Crow children
    who were the owners of record of the property at that time [C.R. 129]. On
    May 11, 2007, the trial court in the Crow Lawsuit rendered judgment that
    James A. Crow was the owner of the property [C.R. 143-144].
    On April 12, 2013, an Agreed Final Order Regarding Forfeiture
    Regarding 26.63 Acres of Land Property was signed in a federal criminal
    proceeding filed by the United States of America against James Crow [C.R.
    1
    146-149].   As a result of the forfeiture, the United States of America
    acquired title to the property [C.R. 147-148].
    On June 9, 2014, the United States of America conveyed the property
    to Appellee Collazo Enterprises, LLC by Special Warranty Deed [C.R. 150-
    158]. The purchase price for the property was $25,000 [C.R. 159]. The
    property is in a flood zone [C.R. 159].          At the time Appellee Collazo
    Enterprises, LLC acquired the property, Lou Collazo, who is the principal of
    Appellee Collazo Enterprises, LLC was not aware of any claims of William
    Ruth, either individually or as Southside Partners or under any other name or
    alias was claiming an interest in the property [C.R. 159].
    There are a number of other factual allegations contained in the
    Statement of Facts section of Appellant Southside Partners’ Brief of
    Appellant. However, many of these facts should be completely disregarded
    by the Court because they were not alleged and evidence was not submitted
    to support these facts until after the hearing on the motion for summary
    judgment.
    2
    Summary of the Argument
    As plead at the time of the hearing on Collazo Enterprises, LLC’s
    Traditional Motion for Summary Judgment, this case primarily involved a
    straightforward analysis of documents in the chain of title to Collazo
    Enterprises, LLC and whether or not those documents evidenced the
    ownership claim of Southside Partners to an undivided one half (1/2) interest
    in the property. Southside Partners’ own petition states that he purchased
    the property at a tax sale prior to September 13, 2002 [C.R. 7], that he then
    gave a deed on or about September 13, 2002 to the Crow children [C.R. 7],
    and that James Crow later filed suit against only the Crow children to put
    title to the property in his name [C.R. 7-11]. The question of law before the
    Court is whether or not the deed to the Crow children reserved an interest in
    the property in William W. Ruth, who is Southside Partners.
    Collazo Enterprises, LLC is unquestionably a bona fide purchaser for
    value as a matter of law and satisfied its burden at the hearing on its
    Traditional Motion for Summary Judgment. As argued in Collazo
    Enterprises, LLC’s Traditional Motion for Summary Judgment, the
    Warranty Deed signed by William W. Ruth to the Crow children did not
    reserve or except any interest from the conveyance, and thus there would
    have been no need to join William W. Ruth/Southside Partners in the lawsuit
    3
    filed by James Crow because he did not appear to be an owner of record
    [C.R. 120-122]. Thus, there was no notice of Southside Partners’ claims.
    Perhaps as a result of sensing the deficiency of his summary judgment
    arguments, Southside Partners has embarked on an ever changing story (that
    continues through his Brief of Appellant) in an attempt to defeat Collazo
    Enterprises, LLC’s Traditional Motion for Summary Judgment. In what
    began as a baseless and unpled allegation that the Warranty Deed of record
    was not signed by Southside Partners, has continued to further evolve
    beyond the facts as pled in Southside Partners’ petition to the point of
    absurdity. Fortunately for this Court, it is spared from having to wade
    through Southside Partners’ arguments filed after the summary judgment
    hearing because Southside Partners failed to request leave of court for his
    arguments and evidence to be considered. As a result, these arguments and
    evidence have been waived and are not part of the summary judgment
    record. Tex. R. Civ. P. 166a(c); Castleberry v. New Hampshire Ins. Co.,
    
    367 S.W.3d 505
    (Tex. App.-Texarkana 2012, pet. denied); Speck v. First
    Evangelical Church of Houston, 
    235 S.W.3d 811
    (Tex. App.-Houston[1st
    Dist.] 2007, no pet.). Thus, the Court should not consider any of Southside
    4
    Partners’ post-hearing filings when reviewing the trial court’s ruling on
    Collazo Enterprises, LLC’s Traditional Motion for Summary Judgment1.
    Similarly, Southside Partners did not file a motion for continuance
    until after the trial court granted Collazo Enterprises, LLC’s Traditional
    Motion for Summary Judgment, which was untimely. Nguyen v. Short,
    How, Frels & Heitz, LLC, 
    108 S.W.3d 558
    , 562-563 (Tex. App.- Dallas
    2003, pet. denied). In addition to not timely filing his motion, Southside
    Partners never requested a hearing on his motion for continuance or obtained
    a ruling on the continuance. As a result, he has waived his right to complain
    on appeal about the trial court not granting his motion for continuance.
    Because of Southside Partners’ failure to adhere to the Texas Rules of
    Civil Procedure, it will not be an abuse of discretion or violation of
    Southside Partners’ due process rights to disregard his post-hearing filings,
    and giving them their proper weight- which is none- the Court should affirm
    the trial court’s granting of Collazo Enterprises, LLC’s Traditional Motion
    for Summary Judgment.
    1
    However, even if Southside Partners did not waive his ability to have his post-hearing
    evidence considered by the Court, which is assumed solely for the sake of argument,
    there are still numerous evidentiary issues that exist with Southside Partners’ evidence.
    For example, much of the evidence is either conclusory or based on hearsay or
    unauthenticated and thus is unquestionably not competent summary judgment evidence.
    5
    Argument
    I.    Collazo Enterprises, LLC is a Bona Fide Purchaser as a Matter of
    Law
    In order to prevail on its affirmative defense of bona fide purchaser,
    Collazo Enterprises, LLC was required to show that it made a good faith
    purchase of the property for valuable consideration without actual or
    constructive notice of Plaintiff’s claim. Cooksey v. Sinder, S.W.2d 253 (Tex.
    1984); Colvin v. Alta Mesa Resources, Inc., 
    920 S.W.2d 688
    (Tex. App.-
    Houston[1st Dist.] 1996, writ denied).    A party’s status as a bona fide
    purchaser is a question of law when there is no room for ordinary minds to
    differ about the conclusions that can be drawn from the evidence. Hue
    Nguyen v. Chapa, 
    305 S.W.3d 316
    (Tex. App.-Houston[14th Dist.] 2009, pet
    denied).
    As will be shown below, Collazo Enterprises, LLC presented
    competent summary judgment evidence on the required elements of its
    affirmative defense of bona fide purchaser, and Southside Partners failed to
    provide competent summary judgment evidence in response. The trial court
    correctly granted Collazo Enterprises, LLC’s Traditional Motion for
    Summary Judgment, and this Court should affirm the trial court’s judgment.
    A.    There is No Disputed Issue of Material Fact With Respect to Collazo
    Enterprises, LLC’s Lack of Actual Notice of Southside Partner’s
    Claims
    6
    i.     Collazo Enterprises, LLC Satisfied its Evidentiary Burden
    In support of its Traditional Motion for Summary Judgment, Collazo
    Enterprises, LLC attached the Affidavit of Collazo Enterprises, LLC, which
    was signed by Lou Collazo, who is the principal of Collazo Enterprises,
    LLC. In the affidavit, Lou Collazo stated that he was never informed of the
    claims of William Ruth, either individually or as Southside Partners, to the
    property [C.R. 159-160]. This clear and unequivocal testimony supports the
    claim that Collazo Enterprises, LLC did not have actual notice of Southside
    Partners’ claims.
    The Court should overrule Southside Partners’ objection that the
    affidavit of Lou Collazo is conclusory on the issue of actual notice. A
    statement is only conclusory if it lacks the underlying facts to support it.
    Choctaw Properties, L.L.C. v. Aledo I.S.D., 
    127 S.W.3d 235
    (Tex. App.-
    Waco 2003, no pet.). Not only does the affidavit contain the necessary
    underlying facts, such as that Mr. Collazo was personally involved in the
    transaction and was the only individual of Collazo Enterprises, LLC
    involved in the purchase of the property, but he goes on to say that he was
    never informed of the claims of Southside Partners.
    What more was needed to establish the lack of actual notice?
    Certainly the answer is nothing, and for the Court to agree with Southside
    7
    Partners that such testimony was conclusory, would require Mr. Collazo to
    state each and every person who did not inform him of the claims of
    Southside Partners, which is certainly not required for this statement in the
    affidavit to not be conclusory.
    Thus, having presented evidence that there was no actual knowledge
    of the claims of Southside Partners, it was incumbent upon Southside
    Partners to submit competent summary judgment evidence seven days
    before the hearing to raise a fact issue on this point and show that Lou
    Collazo had been informed of Southside Partners’ claims. Tex. R. Civ. P.
    166a(d).
    ii. Southside Partners Failed to Create a Disputed Issue of Material
    Fact Regarding Actual Notice
    a. Evidence Submitted Prior to the Summary Judgment Hearing
    At the time of the hearing, Southside Partners failed to submit any
    evidence of any kind that purported to show an individual contacted Lou
    Collazo and advised him of Southside Partners’ claims. At best, Southside
    Partners submitted evidence that he told Steve Jumes, an attorney
    representing the United States of America, about his claims. Even if you
    assume this statement is true for the sake of argument, there was no evidence
    that Steve Jumes then informed Collazo Enterprises, LLC about his
    conversations with Southside Partners.
    8
    Similarly, Southside Partners did not plead or submit evidence on any
    activities conducted by him on the property that would have given Collazo
    Enterprises, LLC notice of his claims. However, given that the property is
    an unimproved tract located in a flood plain [C.R. 159, 189], Southside
    Partners would be hard pressed to show how he allegedly possessed the
    property in such a manner so as to give Collazo Enterprises, LLC notice of
    his claims.
    It was incumbent upon Southside Partners to timely present evidence
    on this issue of whether or not Collazo Enterprises, LLC had actual notice of
    Southside Partners’ claims, and Southside Partners failed to present any such
    evidence at the hearing on Collazo Enterprises, LLC’s Traditional Motion
    for Summary Judgment.
    b. Evidence Submitted After the Summary Judgment Hearing
    After the hearing on Collazo Enterprises, LLC’s Traditional Motion
    for Summary Judgment, Southside Partners submitted four of his own
    affidavits and other evidence that unsuccessfully attempt to create a fact
    issue with regard to actual notice. At no time did Southside Partners request
    leave of Court for this evidence to be considered as part of the summary
    judgment record. It is therefore not a part of the summary judgment record
    and Southside Partners has waived his right to rely on this evidence. Tex. R.
    9
    Civ. P. 166a(c); Castleberry v. New Hampshire Ins. Co., 
    367 S.W.3d 505
    (Tex. App.-Texarkana 2012, pet. denied); Speck v. First Evangelical Church
    of Houston, 
    235 S.W.3d 811
    (Tex. App.-Houston[1st Dist.] 2007, no pet.).
    The Court should not consider any of Southside Partners’ filings that were
    submitted to the trial court after the hearing.
    B.    There is No Disputed Issue of Material Fact With Respect to Collazo
    Enterprises, LLC’s Not Being Charged With Constructive Notice of
    Southside Partners’ Claims
    In addition to actual notice, a Court will consider whether or not there
    are matters appearing in the deed records that would put a party on notice of
    another’s claims to the property. In this case, there is nothing of record that
    would have put Collazo Enterprises, LLC on notice of Southside Partners’
    claims to reserving a one half interest in the property.         The granting
    language in the Warranty Deed of record from Southside Partners to the
    Crow children states:
    10
    The interpretation of a deed is a question on law. Luckel v. White, 
    819 S.W.2d 459
    (Tex. 1991). The Court is to ascertain the intent of the parties
    from all of the language in the deed, and must strive to harmonize all parts
    of the deed and to give effects to all of its provisions. 
    Id. The question
    is not
    what the parties intended to say, but what they did say in the deed. Alford v.
    Krum, 
    671 S.W.2d 870
    , 872 (Tex. 1984).
    The granting clause prevails over all other provisions in a deed.
    Veltmann v. Damon, 
    701 S.W.2d 247
    , 247-248 (Tex. 1985). A deed will be
    construed to confer upon the grantee the greatest estate that the terms of the
    instrument will permit. Davis v. Andrews, 
    361 S.W.2d 419
    (Tex. Civ. App.-
    Dallas 1962, writ ref’d n.r.e.); see also, Graham v. Prochaska, 
    429 S.W.3d 650
    , 655 (Tex. App.- San Antonio 2013, pet. denied)(“[A] warranty deed
    will pass all of the estate owned by the grantor at the time of the conveyance
    unless there are reservations or exceptions which reduce the estate
    conveyed.”), citing, Cockrell v. Tex. Gulf Sulphur Co., 
    299 S.W.2d 672
    , 675
    (Tex. 1956).
    A reservation must be made by clear language and Courts do not favor
    reservations by implications.     
    Graham 429 S.W.3d at 655
    .           Similarly,
    exceptions must identify the property to be excepted from the larger
    conveyance with reasonable certainty. 
    Graham 429 S.W.3d at 655
    -656.
    11
    Because the Warranty Deed signed by Southside Partners does not
    reserve or except any of the property from the conveyance to the Crow
    children, and each of the children is granted “an undivided interest in all” of
    the property at issue, there was nothing that would have put Collazo
    Enterprises, LLC on notice of Southside Partners’ claims that he retained an
    undivided one-half interest in the property. It was and is proper to construe
    the Warranty Deed as conveying all of Southside Partners’ interest in the
    property to the Crow children.
    Given the language of the Warranty Deed, there was no need, at least
    appearing of record, for James Crow to add Southside Partners as a party to
    the Crow Lawsuit because Southside Partners had already conveyed the
    property and was not an owner of record at the time the lawsuit was filed.
    The Judgement rendered in the Crow Lawsuit ordered that title to the
    property was quieted in James A. Crow. The undisputed summary judgment
    evidence establishes that after the Judgment was rendered in the Crow
    Lawsuit, title eventually passed to Collazo Enterprises, LLC.
    The other allegations of Southside Partners regarding the alleged
    fraud committed by James Crow do not concern matters appearing of record
    in the Official Public Records of Brown County, Texas. Collazo Enterprises,
    LLC was not involved in any of those situations and had no knowledge of
    12
    them at the time of its purchase; it is without question that Collazo
    Enterprises, LLC cannot be charged with notice of those facts.
    For the foregoing reasons, even if Southside Partners claims to have
    retained a one-half interest in the Property in the Warranty Deed are true,
    that interest was not reflected in the Warranty Deed he signed2 and did not
    otherwise appear of record in the Official Public Records of Brown County,
    Texas at the time Collazo Enterprises, LLC purchased the property, and
    Collazo Enterprises, LLC is a bona fide purchaser for value as a matter of
    law.
    C.       There is no disputed issue of material fact with respect to Collazo
    Enterprises, LLC paying valuable consideration of the property
    i.       Collazo Enterprises, LLC Satisfied its Evidentiary Burden
    Collazo Enterprises, LLC purchased the property from United States
    of America for $25,000 [C.R. 159]. The property is 26.63 acres [C.R. 150].
    Thus the purchase price paid by Collazo Enterprises, LLC was
    approximately $1,000 per acre. The Affidavit of Collazo Enterprises, LLC
    sets forth the opinion and basis for the value of the property [C.R.159].
    Natural Gas Pipeline Co. of America v. Justiss, 
    397 S.W.3d 150
    , 156 (Tex.
    2
    With respect to the allegation that Southside Partners alleges he did not sign this Warranty Deed, please
    see the arguments contained in Section IV of this Appellee’s Brief, pages 23-24). Southside Partners’
    allegations that he did not sign this deed should be disregarded by the Court.
    13
    2012) (holding that a property owner may testify about the value of his or
    her property).
    In order to satisfy the valuable consideration element of its bona fide
    purchaser affirmative defense, Collazo Enterprises, LLC only needs to show
    that it did not pay a grossly inadequate sales price. Neeley v. Intercity
    Management Corp., 
    623 S.W.2d 942
    (Tex. App.-Houston [1st Dist.] 1981,
    no writ).
    ii. Southside Partners Failed to Create a Disputed Issue of Material
    Fact Regarding Valuable Consideration
    a. Evidence Submitted by Southside Partners Prior to the Summary
    Judgment Hearing
    Southside Partner’s evidence submitted on the issue of value at the
    time of the hearing was a reference to a partial deposition transcript of James
    Crow attached to Plaintiffs’ Amended Petition.        As a matter of law, a
    pleading is not summary judgment evidence. Nicholson v. Memorial Hosp.
    System, 
    722 S.W.2d 746
    , 749 (Tex. Civ. App.-Houston[14th Dist.] 1986, writ
    ref’d n.r.e). Even if pleadings were considered to be competent summary
    judgment evidence, this statement is conclusory because there are no facts to
    establish that the property being discussed in the transcript is in fact the
    property in question in this lawsuit and the statements are based on the
    hearsay of James Crow in a separate legal proceeding.
    14
    Southside Partners’ also attached its own letter to Steve Jumes [C.R.
    189-191] as part of his summary judgment response. Curiously, Southside
    Partners redacted out almost all of the statements of value he placed on the
    property in the letter.        However, it appears Southside Partners
    unintentionally failed to redact one of the statements of value and his letter
    in the summary judgment record states that “I do not believe that the
    property has increased in value much more than the $500 an acre I paid for
    the property back in 2000.” [C.R. 191]. He also goes on to state that value
    for a “much more expensive, 8-acre tract involving all the ‘frontage’”[C.R.
    191] was recently purchased for $1,000 an acre [C.R.189]. Thus, Southside
    Partners’ own summary judgment evidence establishes the value of the
    property as worth not much more than the $500 an acre.
    Given than Collazo Enterprises, LLC paid approximately $1,000 an
    acre, there is no disputed issue of material fact that the purchase price paid
    by Collazo Enterprises, LLC was not grossly inadequate and satisfied the
    valuable consideration element necessary for Collazo Enterprises, LLC to be
    a bona fide purchaser as a matter of law.
    b. Evidence Submitted by Southside Partners After the Summary
    Judgment Hearing
    As with the evidence submitted on the issue of actual notice, the
    evidence submitted by Southside Partners after the hearing on Collazo
    15
    Enterprises, LLC’s Traditional Motion for Summary Judgment was without
    leave of court and therefore Southside Partners cannot rely on it. Tex. R.
    Civ. P. 166a(c); Castleberry v. New Hampshire Ins. Co., 
    367 S.W.3d 505
    (Tex. App.-Texarkana 2012, pet. denied); Speck v. First Evangelical Church
    of Houston, 
    235 S.W.3d 811
    (Tex. App.-Houston[1st Dist.] 2007, no pet.).
    II.   The Special Warranty Deed to Collazo Enterprises, LLC Gives it
    Standing to Assert the Affirmative Defense of Bona Fide
    Purchaser
    Texas case law specifically holds that a party claiming title under a
    special warranty deed can claim the affirmative defense of bona fide
    purchaser. Johnson v. Marti, 
    214 S.W. 726
    (Tex. Civ. App.- Fort Worth
    1919, writ ref’d n.r.e.); see also, Paul v. Houston Oil Co. of Tex., 
    211 S.W.2d 345
    , 356 (Tex. Civ. App.-Waco 1945, writ ref’d n.r.e.)(“It is true
    that this deed contains a special warranty but under the great weight of
    authority, such special warranty does not carry any notice of defects of title
    to the grantee”). The Special Warranty Deed to Collazo Enterprises, LLC
    most certainly contains a warranty of title, and the authority cited above
    unquestionably supports Collazo Enterprises, LLC’s ability to successfully
    assert the bona fide purchaser defense and that it will only be charged with
    notice of facts appearing of record in the chain of title.
    16
    The cases cited by Southside Partners only address the issue of
    whether a party taking title under a quitclaim deed or other form of deed that
    does not contain a covenant of warranty can be bona fide purchasers. None
    of Southside Partners’ cases hold that a party taking title under a special
    warranty deed cannot allege the affirmative defense of bona fide purchaser
    or that a party taking title under a special warranty deed is put on notice of
    unrecorded defects in the chain of title. The cases are distinguishable on the
    facts and inapplicable to the case now before the Court.
    III.   The Trial Court Did Not Abuse Its Discretion by Granting the
    Motion for Summary Judgment Because Southside Partners
    Failed to Comply With Procedures for Requesting Additional
    Discovery
    Southside Partners now argues that it was an abuse of discretion for
    the trial court to grant Collazo Enterprises, LLC’s Traditional Motion for
    Summary Judgment when discovery was allegedly needed on outstanding
    issues of fact.
    However, Collazo Enterprises, LLC has fully and completely
    responded to Southside Partners’ discovery requests. This was confirmed at
    the hearing on Collazo Enterprises, LLC’s Traditional Motion for Summary
    Judgment during the following exchange to the trial court:
    17
    If Southside Partners wanted to continue the hearing to allow for
    additional discovery to be conducted, he should have either filed an affidavit
    under the provisions of Tex. R. Civ. P. 166a(g) or filed a verified motion for
    continuance prior to the hearing. Southside Partners took neither such action
    and proceeded with the hearing, including an announcement of ready [R.R.
    4].
    A.     Motion for Continuance Not Timely Filed
    It was not until after the Court ruled on Collazo Enterprises, LLC’s
    Traditional Motion for Summary Judgment that Southside Partners filed his
    motion for continuance [C.R. 367]. As a matter of law, this was untimely.
    18
    Nguyen v. Short, How, Frels & Heitz, LLC, 
    108 S.W.3d 558
    , 562-563 (Tex.
    App.- Dallas 2003, pet. denied); See also, Tex. R. Civ. P. 166a(g).
    To the extent that Southside Partners now complains that Tonya
    Patton was not identified in the disclosure response of Collazo Enterprises,
    LLC, Southside Partners fails to appreciate the fact that Tonya Patton was in
    no way involved in the purchase of the property, is not an owner of Collazo
    Enterprises, LLC, and there was absolutely no need for Collazo Enterprises,
    LLC to identify her as a person with knowledge. If any party was required
    to disclose Tonya Patton as a person with knowledge, it would be Southside
    Partners and not Collazo Enterprises, LLC3. Additionally, it was well within
    Southside Partners’ ability to “remember” his conversations with Tonya
    Patton prior to the hearing on Collazo Enterprises, LLC’s Motion for
    Summary Judgment.
    B.     Southside Partners Did Not Preserve Issue for Appeal
    In addition to being untimely, Southside Partners never took any
    action on his motion for continuance after filing it. Because Southside
    Partners never obtained a hearing or ruling on the motion for continuance he
    did not preserve this issue for appeal. Southwest Country Enterprises v.
    Lucky Lade Oil Co., 
    991 S.W.2d 490
    (Tex. App.- Fort Worth 1999, pet.
    3
    Also, Collazo Enterprises, LLC disputes that the alleged conversations between
    Southside Partners and Tonya Patton took place.
    19
    denied). Obtaining a ruling on his motion for continuance would be required
    by Southside Partners even if the motion for continuance was timely filed.
    Tex. R. App. P. 33.1(a)
    C.     Trial Court Did Not Abuse Its Discretion
    Because the Texas Rules of Civil Procedure set forth the methods for
    requesting a continuance when a party cannot adequately respond to a
    motion for summary judgment and needs to conduct discovery, and
    Southside Partner failed to adhere to those procedures (see arguments A and
    B above), there was no abuse of the trial court’s discretion when it granted
    Collazo Enterprises, LLC’s Motion for Summary Judgment. Simply put, it
    was well within the trial court’s discretion to disregard the post-hearing
    arguments and evidence presented by Southside Partners. Yowell v. Piper
    Aircraft Corp., 
    703 S.W.2d 630
    , 635 (Tex. 1986) (holding that when
    deciding whether a trial court abused its discretion, the appellate court does
    not substitute its judgment for that of the trial court, but only decides
    whether the trial court's action was arbitrary and unreasonable; and that
    before an appellate court reverses the trial court's discretionary ruling, it
    should appear clearly from the record that there has been a disregard of the
    rights of a party.)
    20
    The cases cited by Southside Partners are distinguishable because in
    those cases there was a motion before the court and a refusal of the court to
    conduct a hearing or rule on the motion. Here, the trial court was never
    requested to rule and Southside Partners never set his untimely motion for
    hearing. Under these circumstances, where no request for a hearing was
    made to the trial court and no ruling was given, there is no abuse of
    discretion.
    E.      No Due Process Violation
    Southside Partners argues, without citing to any authority, that his due
    process rights have been violated. Due process requires consideration of
    three factors: (1) the private interest that will be affected by the official
    action; (2) the risk of an erroneous deprivation of such interests through the
    procedures used, and probable value of any of additional procedural
    safeguards, and (3) the government’s interest, including the fiscal and
    administrative burdens that the additional or substitute procedures to be
    involved. Mathews v. Eldridge, 
    424 U.S. 319
    (1976). Here, Southside
    Partners, who is a licensed attorney, was presumably well aware of the
    Texas Rules of Civil Procedure and should have been aware of the timing
    and method for requesting a continuance and presenting late filed summary
    judgment evidence. Also, there is nothing in the record indicating that
    21
    Southside Partners attempted to comply with these procedures and was not
    allowed to do so by the trial court.
    It would represent a gross miscarriage of justice if a party such as
    Southside Partners could plead his case, attend a hearing on a motion for
    summary judgment against his claims, and then without leave of court and
    before the ruling on the motion, amend his petition and late file evidence
    that could have easily been presented prior to the hearing but was not.       If
    anything, allowing such disregard for the Texas Rules of Civil Procedure
    and reversing the trial court’s judgment would result in a due process
    violation against Collazo Enterprises, LLC.
    IV.   Southside Partners Did Not Argue Issues Related to Chains of
    Title at Trial and Waived this Argument on Appeal
    In his appeal, Southside Partners raises for the first time that the chain
    of title predating his Warranty Deed to the Crow children creates a title issue
    that evidences his claim to retaining an undivided one half interest in the
    property. This argument was not plead nor was any evidence presented on
    this issue at the time of the hearing on Collazo Enterprises, LLC’s
    Traditional Motion for Summary Judgment. Nor was a motion for leave
    ever filed to allow this argument to be presented to the trial court and
    included in the summary judgment record. As a result, this argument has
    been waived and cannot be alleged on appeal. Tex. R. Civ. P. 166a(c); Tex.
    22
    R. App. P. 33.1(a); Castleberry v. New Hampshire Ins. Co., 
    367 S.W.3d 505
    (Tex. App.-Texarkana 2012, pet. denied); Speck v. First Evangelical Church
    of Houston, 
    235 S.W.3d 811
    (Tex. App.-Houston[1st Dist.] 2007, no pet.).
    However, even if this argument was not waived, and assuming so
    solely for the sake of argument, the Sheriff’s Deed attached as Appendix
    Item A in no way evidences Southside Partners’ desire to retain a one half
    interest in the property.    Furthermore, the long held doctrine of after
    acquired title will resolve any issues associated with the Brown County
    Sheriff’s delay in execution of the Sheriff’s Tax Deed from the July 2002 tax
    sale. See, Huling v. Moore, 
    194 S.W. 188
    (Tex. Civ. App.- San Antonio
    1917, writ refused) (holding that when a party gives a warranty deed and
    later acquires title to the land previously conveyed in said warranty deed, the
    land passes to the grantee in the warranty deed as if originally conveyed).
    Lastly, there is no competent summary judgment evidence that
    Southside Partners did not execute the Warranty Deed attached as Exhibit B
    to the Brief of Appellant. As pointed out in Collazo Enterprises, LLC’s
    reply to Southside Partners’ summary judgment response [C.R. 269, fn. 1],
    the “affidavit” of William W. Ruth attached to the response contains the
    statement “I have read Plaintiff’s Response to Defendant Collazo
    Enterprises, LLC’s motion for summary judgment…” and purports to be
    23
    notarized on July 15, 2015 [C.R. 178-179]; however, Collazo Enterprises,
    LLC’s Traditional Motion for Summary Judgment was not served until July
    17, 2015 [C.R. 124]. As a result, the jurat is necessarily not authentic
    because Southside Partners could not have responded to a motion he had not
    yet received. Despite receiving notice of this deficiency, Southside Partners
    never requested leave or took any other action to amend his “affidavit”. An
    unsworn statement is not competent summary judgment evidence. Coastal
    Cement Sand, Inc. v. First Interstate Cred Alliance, Inc. 
    956 S.W.2d 562
    ,
    567 (Tex. App.-Houston[ 14th Dist.] 1997, pet. denied); Tex. R. Civ. P.
    166a(f).
    In addition to there being no competent summary judgment evidence,
    this factual allegation was unpled by Southside Partners in his petition on
    file at the time of the hearing, and Collazo Enterprises, LLC objected to the
    allegation not being pled [C.R. 269-270]. Thus, this allegation was not at
    issue before the trial court and should not form the basis for reversing the
    trial court’s judgment. Jones v. Wal-Mart Stores, Inc., 
    892 S.W.2d 144
    ,
    (Tex. App.-Houston 1995, no writ)(holding that unpled allegation raised for
    the first time in a summary judgment response was not properly at issue
    before the trial court).
    24
    Prayer
    For the forgoing reasons Appellee Collazo Enterprises, LLC
    respectfully requests that this Court affirm the Order Granting Defendant
    Collazo Enterprises, LLC’s Traditional Motion for Summary Judgment
    signed by the trial court on July 7, 2016, deny all relief sought by Appellant
    Southside Partners in this appeal, and grant such other and further relief to
    Appellee Collazo Enterprises, LLC to which it may be justly entitled.
    Respectfully submitted,
    OLIVER LAW OFFICE
    By_________________________
    Andrew Oliver
    State Bar No. 24046556
    9951 Anderson Mill Road
    Suite 201
    Austin, Texas 78750
    Telephone: (512) 233-1103
    Fax: (512) 551-0330
    aolive@oliverlawoffice.com
    ATTORNEY FOR APPELLEE
    COLLAZO ENTERPRISES, LLC
    25
    Certificate of Compliance
    As requested by Tex. R. App. P. 9.4(i)(3), the undersigned counsel
    does hereby certify that that the foregoing Appellee’s Brief is 5,005 words in
    size 14 Times New Roman font, except for footnotes which are size 12.
    ______________________
    Andrew Oliver
    Certificate of Service
    As required by Rule 21, I hereby certify that on the 7th day of June
    2017, I served this document on the following attorneys of record and parties
    by a method of service authorized under Tex. R. App. P. 9.5 as follows:
    Via E-Service:
    William W. Ruth
    1406 E. Main, Suite 200
    Fredericksburg, Texas 78624
    Via Certified Mail Return Receipt Requested:
    Charles Scarborough
    P.O. Box 356
    Abilene, Texas 79604
    James Chapman
    501 W. Main #109
    Fredericksburg, Texas 78624
    ________________________
    Andrew Oliver
    26