Leticia Rodriguez 'Cross-Appellee' v. Lydia Rodriguez and Robert Pereida 'Cross-Appellants' ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00171-CV
Leticia RODRIGUEZ,
Appellant/Cross-Appellee
v.
Lydia RODRIGUEZ and Robert Pereida,
Appellees/Cross-Appellants
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CI19456
Honorable Cynthia Marie Chapa, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Irene Rios, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: December 21, 2022
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
This is an appeal from a judgment awarding title to real property to Leticia Rodriguez.
Leticia appeals the amount of damages awarded to her, arguing the trial court erred in reducing
her award in an amount equal to “improvements testified to by Defendants [Lydia Rodriguez and
Robert Pereida].” In addition, Lydia and Robert have filed a cross-appeal, arguing the trial court
erred in awarding title to the property in question to Leticia. We affirm in part, and reverse and
render in part.
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BACKGROUND
The property at issue is a house located on Jewell Street in San Antonio that was previously
owned by Francisca Rodriguez (Leticia and Lydia’s mother). During her lifetime, Francisca
executed four deeds with respect to her Jewell Street home (“the Property”). On March 3, 2008,
Francisca conveyed a fee simple interest to Leticia (“2008 Deed”). On June 27, 2008, Francisca
signed a Correction Special Warranty Gift Deed that conveyed the Property to Leticia but reserved
a life estate (“2008 Correction Deed”). On February 27, 2011, Francisca conveyed the Property to
Lydia (“2011 Deed”). On October 29, 2015, the day Francisca died, Lydia acting as “attorney in
fact” for Francisca executed a warranty deed that conveyed the Property to herself and her then
husband Robert Pereida (“2015 Deed”).
Francisca purchased the Property in 1960 and lived there until September 2009. Leticia
lived at the Property from March 2008 until she was evicted by Francisca in March 2011. Lydia,
acting on behalf of Francisca through a power of attorney, filed a forcible detainer action, arguing
that Francisca had a right to possess the Property by virtue of her life estate as enunciated in the
2008 Correction Deed. On May 10, 2011, the trial court granted a writ of possession in favor of
Francisca, and Francisca regained possession of the Property. On October 29, 2015, after suffering
from cardiac arrest, Francisca passed away.
On October 10, 2017, Leticia filed suit against Lydia and Robert, alleging that she had not
learned of the 2011 Deed or the 2015 Deed “until after her mother passed away.” She stated that
due to these subsequent deeds, she had an existing cloud on title to the Property. At the time of the
bench trial, Leticia’s live pleading (her Third Amended Petition) alleged a trespass to try title
action, seeking declaration that (1) the 2008 Deed conveyed a fee simple interest in the Property
to Leticia; or (2) alternatively, the 2008 Correction Deed conveyed the remainder interest in the
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Property to Leticia. Leticia also brought a suit to quiet title, arguing that because Francisca no
longer owned a fee simple interest in the Property after 2008, the 2011 and 2015 Deeds were void.
In response to the lawsuit, Lydia and Robert countersued. In their live petition (First
Amended Counterpetition), they alleged Leticia fraudulently induced Francisca to execute the
2008 Deed. They also alleged that after Leticia was evicted from the Property in 2011, they had
adversely possessed the Property.
After a bench trial, the trial court signed a final judgment, granting relief for Leticia on her
trespass to try title suit and denying Lydia and Robert’s claims for adverse possession and
fraudulent inducement. The final judgment granted Leticia “title, conclusive against [Lydia and
Robert], to the real property at issue in this cause of action.” It also declared the 2011 Deed and
the 2015 Deed “invalid and of no legal consequence.” It further found that the 2008 Correction
Deed “correct[ed] and supplant[ed]” the 2008 Deed. The final judgment further stated that Leticia
was entitled to a writ of possession ordering her to be placed in possession of the Property. Finally,
the final judgment ordered that Leticia recover from Lydia and Robert, jointly and severally,
damages “in the net amount of $900.00, representing the value for the use and occupation of the
Property at $600.00 per month from November 1, 2015, through October 1, 2020, reduced by
improvements testified to by Defendants [Lydia and Robert].”
Leticia appealed the final judgment, arguing that the trial court erred in reducing the
amount of damages awarded to her by “improvements testified to by Defendants [Lydia and
Robert].” Lydia and Robert filed a cross-appeal, arguing that (1) the trial court lacked subject-
matter jurisdiction over Leticia’s claims; (2) the trial court erred in determining that Leticia
obtained title to the property by virtue of the 2008 Correction Deed; and (3) assuming Leticia
obtained title to the Property by virtue of the 2008 Correction Deed, “her 2017 action would have
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been time-barred in view of her 2011 ouster and Lydia’s continuous adverse possession
thereafter.” We will first address the arguments made in Lydia and Robert’s cross-appeal.
SUBJECT MATTER JURISDICTION
“Jurisdiction” refers to “the power of a court, under the Constitution and laws, to determine
the merits of an action between parties and to render a judgment.” Gordon v. Jones, 196 S.W.3d
376, 382 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “Subject-matter jurisdiction refers to the
court’s power to hear a particular type of suit.” Id.; see CSR Ltd. v. Link, 925 S.W.2d 591, 594
(Tex. 1996). Subject-matter jurisdiction “exists by operation of law only, and cannot be conferred
upon any court by consent or waiver.” Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000).
Lydia and Robert argue for the first time on appeal that the trial court lacked subject matter
jurisdiction over the underlying lawsuit because only a statutory probate court would have subject
matter jurisdiction over Leticia’s cause of action. According to Lydia and Robert, Francisca’s heirs
were indispensable parties to Leticia’s cause of action pursuant to Texas Rule of Civil Procedure
39(b) and should have been joined in the underlying action. They reason that because the heirs
should have been joined as indispensable parties, only a statutory probate court would have subject
matter jurisdiction over Leticia’s claims. The basis of their argument stems from the possibility,
as they see it, that none of the four deeds at issue in the underlying case were valid. In making this
argument, they recognize that they did not argue the heirs were indispensable parties in the trial
court. Nevertheless, they argue that preserving error was not necessary because the trial court’s
failure to join the heirs as indispensable parties was fundamental error that deprived the trial court
of subject matter jurisdiction. In response, Leticia emphasizes that Lydia and Robert’s argument
is based on the mere possibility that Francisca’s heirs had some interest in the Property. Leticia
argues that the trial court, as a district court with general jurisdiction, had subject matter
jurisdiction over her trespass to try title suit.
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“Under circumstances such as this, where jurisdiction is challenged for the first time on
appeal, [the supreme court] ha[s] noted that plaintiffs do not have the same opportunities to
replead, direct discovery to, or otherwise address the jurisdictional issue as they have when
standing is raised in the trial court.” RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 429 (Tex.
2016). “Thus, when an appellate court is the first to consider jurisdictional issues, it construes the
pleadings in favor of the plaintiff and, if necessary, reviews the record for evidence supporting
jurisdiction.” Id.Here, in her petition, Leticia pled a trespass-to-try-title claim. “An action in trespass-to-
try-title, or to quiet title, is a procedure by which rival claims to title or right of possession to real
property may be adjudicated.” Gordon, 196 S.W.3d at 382. A district court “has general, subject-
matter jurisdiction over suits involving title to land.” Id.; see TEX. CONST. art. V, § 8 (district court
has exclusive, original jurisdiction of “all actions, proceedings, and remedies,” except when the
constitution or other law confers jurisdiction on some other court); TEX. GOV’T CODE § 24.007
(“The district court has the jurisdiction provided by Article V, Section 8 of the Texas
Constitution.”); TEX. PROP. CODE § 22.001–.045 (governing trespass-to-try-title actions). As a
district court, the trial court had subject-matter jurisdiction over Leticia’s claim. Further, the
pleadings in this case do not raise the issue of Francisca’s heirs having an interest in the Property.
It is undisputed that the four deeds at issue in the underlying litigation were executed before
Francisca’s death. Thus, there was no issue in the trial court that the Property could have
transferred to Francisca’s estate upon her death. Instead, Leticia challenged the deeds conveyed to
Lydia on the ground that the Property had previously been conveyed to Leticia. In reviewing this
appellate record, we find no basis to hold the trial court lacked subject-matter jurisdiction over the
underlying suit. See Brown v. Snider Indus., LLP, 528 S.W.3d 620, 625 & n.6 (Tex. App.—
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Texarkana 2017, pet. denied) (rejecting appellant’s argument in trespass to try title action that the
trial court’s failure to compel joinder amounted to fundamental error).
We note that in support of their argument, Lydia and Robert rely heavily on a memorandum
opinion issued by the Thirteenth Court of Appeals: In re Frank Schuster Farms, Inc., No. 13-10-
00225-CV, 2010 WL 2638481 (Tex. App.—Corpus Christi-Edinburg June 29, 2010, orig.
proceeding [mand. denied]) (mem. op.). That case, however, is factually distinguishable. In
Schuster Farms, the property at issue belonged to the decedent’s estate. Id. at *1. The decedent
had created a corporation for the purpose of farming land that he owned; however, he did not
transfer all of the land he owned to the corporation. Id. Thus, when he died, some of the land
transferred to his estate. Id. Later, it was discovered that this land had not been distributed to the
heirs in the probate proceeding. Id. Nevertheless, the corporation used the land, “but did not pay
rent on the tracts or otherwise compensate the decedent’s heirs, nor did it share royalties on the
mineral interests.” Id. One of the heirs sued the corporation in probate court, alleging that it had
misrepresented the contents of her father’s estate, converted the estate’s assets, and committed
fraud, statutory fraud, negligent misrepresentation, and breach of fiduciary duty. Id. Five months
later, the estate’s executor transferred its interest in the land to the heirs. Id. A year later, the
corporation sued the heir in district court, seeking to quiet title to the land at issue by arguing it
owned title through adverse possession. Id. The heir then filed in the probate court a motion to
transfer the district court action to probate court. The probate court granted the motion and signed
“an order transferring the district court cause to itself and ordered that the district court cause be
consolidated with the pending probate proceeding.” Id.
The corporation then sought mandamus relief, arguing that “because the decedent’s estate
conveyed whatever interest it might have had in the subject properties to the heirs during the
pendency of the probate proceeding but prior to the initiation of the district court proceeding, the
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district court proceeding was not related to a pending probate proceeding.” Id. at *5. The court of
appeals rejected this argument, explaining that the lawsuit in district court involved “title to and
ownership of land and [was] one pertaining to the collection, settlement, and distribution of the
estate of the decedent.” Id. “Accordingly, under the former law, the lawsuit in the district court
was appertaining to or incident to an estate under the explicit terms of the probate code, and thus
the probate court had statutory authority to transfer that lawsuit to itself.” Id. In the instant case,
however, there is no allegation that the Property transferred to Francisca’s estate. As a matter of
fact, it is undisputed that all four deeds were executed before her death. Additionally, unlike in
Schuster Farms, there is no pending probate proceeding. Accordingly, the analysis in Schuster
Farms simply does not apply to the facts of this case.
2008 CORRECTION DEED
The trial court determined that (1) the 2008 Correction Deed corrected and supplanted the
2008 Deed and that (2) based on the 2008 Correction Deed, Leticia was entitled to a writ of
possession. On appeal, Lydia and Robert argue the trial court erred in finding the 2008 Correction
Deed valid because they believe the 2008 Correction Deed would have only transferred title to
Leticia after she had paid the outstanding property taxes. In support of this argument, they point
to language in the deed itself. “The construction of an unambiguous deed is a question of law for
the court,” which we review de novo. Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017) (quoting
Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991)). “When construing an unambiguous deed, our
primary duty is to ascertain the intent of the parties from all of the language within the four corners
of the deed.” Id.“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 that reduce the estate conveyed.” Cook v.
Nissimov, 580 S.W.3d 745, 751 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (citing Day
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& Co., Inc. v. Texland Petroleum, Inc., 786 S.W.2d 667, 668 (Tex. 1990)). Thus, “[a]n owner who
wishes to reserve a right or easement from conveying with the conveyed property must make the
reservation by clear language.” Id. at 751-52 (emphasis added).
“The words ‘exception’ and ‘reservation,’ though at times used interchangeably, each has
its own separate meaning.” Id. at 752. “A reservation is the creation of a new right in favor of the
grantor.” Id. “An exception, by contrast, operates to exclude some interest from the grant.” Id.
“Although an ‘exception’ can refer to any ‘mere exclusion from the grant,’ a ‘reservation’ must
‘always be in favor of and for the benefit of the grantor.’” Id. (quoting Perryman v. Spartan Tex.
Six Cap. Partners, Ltd., 546 S.W.3d 110, 199 (Tex. 2018)). As a general rule, reservations and
exceptions in a deed are strongly construed against the grantor and in favor of the grantee. Reagan
v. Marathon Oil Co., 50 S.W.3d 70, 80 (Tex. App.—Waco 2001, no pet.); Graham v. Kuzmich,
876 S.W.2d 446, 449 (Tex. App.—Corpus Christi-Edinburg 1994, no pet.). Finally, “when
construing obligations in a deed, we look to its plain language.” Chicago Title Ins. Co. v. Cochran
Invs., Inc., 602 S.W.3d 895, 904 (Tex. 2020).
The 2008 Correction Deed states the following:
Reservations from Conveyance:
For Grantor and Grantor’s assigns, a reservation of the full possession, benefit,
and use of the Property for the remainder of the life of Grantor, as a life estate.
Grounds for Corrected Conveyance:
This conveyance corrects a warranty deed from Grantor to Grantee, dated
March 3, 2008 . . . signed in error. The original deed did not contain the life estate
which the grantor was to reserve for herself nor did it contain a provision for the
grantee to take subject to the outstanding ad valorem tax liability.
Exceptions to Conveyance and Warranty:
Validly existing easements, rights-of-way, and prescriptive rights, whether of
record or not; all presently recorded and validly existing instruments, other than
conveyances of the surface fee estate, that affect the Property; and taxes for 2008
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and for prior years, which Grantee assumes and agrees to pay, and subsequent
assessments for that and prior years due to change in land usage, ownership, or
both, the payment of which Grantee assumes.
Grantor, for the Consideration and subject to the Reservations from
Conveyance and the Exceptions to Conveyance and Warranty, grants, gives, and
conveys to Grantee the Property, together with all and singular the rights and
appurtenances thereto in any way belonging, to have and to hold it to Grantee and
Grantee’s heirs, successors, and assigns forever. Grantor binds Grantor and
Grantor’s heirs and successors to warrant and forever defend all and singular the
Property to Grantee and Grantee’s heirs, successors, and assigns against every
person whomsoever lawfully claiming or to claim the same or any part thereof when
the claim is by, through, or under Grantor but not otherwise, except as to the
Reservations from Conveyance and the Exceptions to Conveyance and Warranty.
As a material part of the Consideration for this deed, Grantor and Grantee agree
that Grantee is taking the Property “AS IS” with any and all latent and patent defects
and that there is no warranty by Grantor that the Property has a particular financial
value or is fit for a particular purpose. Grantee acknowledges and stipulates that
Grantee is not relying on any representation, statement, or other assertion with
respect to the Property condition but is relying on Grantee’s examination of the
Property. Grantee takes the Property with the express understanding and stipulation
that there are no express or implied warranties except for limited warranties of title
set forth in this deed.
The plain language of the 2008 Correction Deed clearly reserves a life estate for Francisca.
Lydia and Robert argue that the deed also conditioned the passage of title to Leticia upon her
payment of “taxes for 2008 and for prior years.” We disagree with this interpretation of the deed.
The phrase “taxes for 2008 and for prior years, which Grantee assumes and agrees to pay” is found
in the paragraph titled “Exceptions to Conveyance and Warranty.” Lydia and Robert contend the
phrase refers to an exception from title. However, such an interpretation is illogical as liability for
payment of property taxes is not part of the estate conveyed. See Rancho Viejo Cattle Co. v. ANB
Cattle Co., 642 S.W.3d 850, 859 (Tex. App.—San Antonio 2021, pet. filed) (explaining that “[f]ee
ownership is the right to possess the entire bundle of sticks”—that is, “the entire group of rights—
the right to use, possess, and dispose—associated with the property”). Instead, property taxes are
imposed on real property by taxing units. See TEX. TAX CODE §§ 1.02, 1.04, 11.01. Accordingly,
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for the phrase “taxes for 2008 and for prior years” to make logical sense in the context of the entire
deed, the phrase must refer to the concept of liability. That is, the phrase communicates that
Grantor does not warrant the payment of past taxes; thus, the language places the Grantee on notice
that the payment of taxes for 2008 and prior years may still be outstanding and that the Grantor is
not promising the payment of any taxes assessed before conveyance. See Franz v. Katy Indep. Sch.
Dist., 35 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“One who purchases
property does so subject to any delinquent taxes.”).
This interpretation is consistent with the language contained in other provisions of the deed.
Lydia and Robert argue the “subject to” clause in the granting paragraph reflects the grantor’s
intent for title to pass only when the property taxes were paid. “Generally, ‘the principal function
of a subject-to clause in a deed is to protect a grantor against a claim for breach of warranty when
some mineral’ or other interest is outstanding.” See Barrow Shaver Res. Co. v. NETX Acquisitions,
LLC, No. 06-20-00081-CV, 2021 WL 3571394, at *5 (Tex. App.—Texarkana Aug. 13, 2021, pet.
denied) (quoting Wenske, 521 S.W.3d at 796). Here, the granting clause states that “Grantor, for
the Consideration and subject to the Reservations from Conveyance and the Exceptions to
Conveyance and Warranty, grants, gives, and conveys to Grantee the Property, together with all
and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to
Grantee and Grantee’s heirs, successors, and assigns forever.” (emphasis added). In reading the
entire deed as a whole document, we conclude this “subject to” language is consistent with our
interpretation of the phrase “taxes for 2008 and prior years” referring to the concept of warranty.
Consistent with our interpretation, the granting clause grants and conveys the Property to Leticia
subject to the reservation (i.e., Francisca’s life estate) and the Exceptions to Conveyance (i.e., any
validly existing easements, rights-of-way, and prescriptive rights) and Warranty (i.e., the liability
for past and future taxes on the Property). Accordingly, we disagree with Lydia and Robert that
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the passage of title was conditioned on the payment of taxes. We conclude the “subject to” clause
does not affect the interest conveyed to Leticia because the subject to clause is intended to protect
the grantor from claims for breach of warranty.
Lydia and Robert further argue that the phrase “agrees to pay” imposes an obligation on
Leticia and makes the passage of title conditional. As noted, the phrase in question states, “taxes
for 2008 and for prior years, which Grantee assumes and agrees to pay, and subsequent
assessments for that and prior years due to change in land usage, ownership, or both, the payment
of which Grantee assumes.” We disagree with Lydia and Robert that this language makes the entire
deed conditional. The language is consistent with a warranty provision, as it is emphasizing that
the Grantor has not warranted payment of taxes and the Grantee has instead agreed to pay that
obligation imposed by taxing units. We thus hold that Leticia’s title to the Property was not
conditioned on her payment of the taxes. Accordingly, the trial court did not err in finding the 2008
Correction Deed valid, and the later 2011 and 2015 deeds invalid and of no consequence.
ADVERSE POSSESSION
Lydia and Robert also bring an issue with respect to adverse possession. Having held that
the 2008 Correction Deed passed title to Leticia, we need not address Lydia and Robert’s adverse
possession argument with respect to the first 2008 Deed. With respect to the 2008 Correction Deed,
the record reflects that Francisca evicted Leticia from the Property in 2011 because Francisca’s
life estate gave her greater right of possession. Thus, Francisca evicting Leticia from the Property
in 2011 was not inconsistent or hostile to Leticia’s interest in the Property. See TEX. CIV. PRAC. &
REM. CODE ANN. § 16.021(1). We conclude Lydia and Robert’s adverse possession argument has
no merit.
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DAMAGES
Having addressed Lydia and Robert’s cross-appeal, we now consider Leticia’s appellate
issue: whether the trial court erred in reducing the damages awarded to her by “improvements
testified to by Defendants [Lydia and Robert].” Leticia argues Lydia and Robert were required to
affirmatively plea for an offset in the amount of improvements they made to the Property, and
because they failed to do so, the trial court erred in reducing Leticia’s award.
A judgment must conform to the pleadings filed in a case. TEX. R. CIV. P. 301. “Thus, a
party may not be granted relief in the absence of pleadings to support that relief.” Cunningham v.
Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983). As noted, the trial court’s judgment in this case
awarded damages to Leticia “in the net amount of $900.00, representing the value for the use and
occupation of the Property at $600.00 per month from November 1, 2015, through October 1,
2020, reduced by improvements testified to by Defendants [Lydia and Robert].” (emphasis added).
Section 22.021 of the Texas Property Code, titled “Claim for Improvements,” allows a defendant
in a trespass to try title action to seek compensation for improvements to the property upon certain
specified pleadings and proof. See Lemus v. Aguilar, 491 S.W.3d 51, 61 (Tex. App.—San Antonio
2016, no pet.) (“Texas Property Code section 22.021 does not allow for direct reimbursement for
money spent, but rather for the value of the improvements offset by the value of use and
occupancy.”). Specifically, section 22.021 requires a defendant in a trespass to try title action to
plead:
(1) that the defendant and those under whom the defendant claims have had good faith
adverse possession of the property in controversy for at least one year before the date
the action began;
(2) that they or the defendant made permanent and valuable improvements to the property
while in possession;
(3) the grounds for the claim;
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(4) the identity of the improvements; and
(5) the value of each improvement.
TEX. PROP. CODE § 22.021(c). Thus, for the trial court’s judgment to conform with the pleadings
in this case, Lydia and Robert needed in their pleadings to state a claim for improvements pursuant
to section 22.021.
In response, Lydia and Robert emphasize the general legal principle that the trial court, as
fact finder, had discretion to adjust Leticia’s award. See Vela v. Wagner & Brown, Ltd., 203 S.W.3d
37, 49 (Tex. App.—San Antonio 2006, no pet.) (explaining that the “jury generally has had broad
discretion to award damages within the range of evidence presented at trial”). Lydia and Robert’s
argument, however, ignores the fact that the trial court in its judgment specifically stated it reduced
Leticia’s award by “improvements testified to by Defendants [Lydia and Robert].” Thus, the trial
court explicitly credited Lydia and Robert for improvements they made. Accordingly, unless Lydia
and Robert’s pleadings support such a claim under section 22.021 (or unless the issue was tried by
consent), the trial court erred in signing a judgment that did not conform to the pleadings. See
Montoya v. Gutierrez, No. 04-19-00070-CV, 2019 WL 5580263, at *3 (Tex. App.—San Antonio
2019, no pet.) (holding that because defendant did not plead her affirmative bona fide purchaser
defense and because the issue was not tried by consent, the trial court erred in signing a judgment
“based on her bona fide purchaser defense when it was neither pleaded [n]or tried by consent”).
We first consider whether Lydia and Robert’s pleadings state a claim for improvements pursuant
to section 22.021.
Texas is a fair notice pleading jurisdiction. See TEX. R. CIV. P. 45; In re M.G.N., 491
S.W.3d 386, 406 (Tex. App.—San Antonio 2016, pet. denied). Under this standard, we look to
“whether the opposing party can ascertain from the pleading the nature and basic issues of the
controversy and what testimony will be relevant.” Porterfield v. Deutsche Bank Nat’l Tr. Co., No.
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04-20-00151-CV, 2021 WL 4976560, at *12 (Tex. App.—San Antonio 2021, pet. denied).
Because Leticia did not specially except to Lydia and Robert’s pleadings, we construe those
pleadings liberally in Lydia and Robert’s favor. See id.In support of their assertion that they gave Leticia fair notice of their claim for
improvements made, Lydia and Robert point to paragraphs four and five of their live pleadings:
4. At the time Counter Defendant [Leticia] was court-ordered to vacate the
premises, in May 2011, Counter Defendant Leticia Rodriguez destroyed the
residence, making it unhabitable. Counter Defendant took the home’s air
conditioner, damaged electrical and telephone wiring, and destroyed interior walls,
depriving her mother of a safe and healthy living environment. Counter
Defendant’s conduct is inconsistent with claiming ownership of the destroyed
property. Counter Plaintiff claims that Counter Defendant Leticia Rodriguez never
owned the property based on the fraudulent inducement by which she obtained
documents, [and] Counter Defendant Leticia has abused and exploited an elderly
person.
5. To protect Francisca Rodriguez, and her property, Counter Plaintiff Lydia
Rodriguez then moved into the residence, paid the property taxes and all other
utilities and maintenance and repair expenses beginning in 2011. Counter Plaintiff
now claims total and complete ownership by adverse possession in that she has held
the land in peaceable and adverse possession from that day to the present.
Construing these allegations liberally, we conclude Leticia was not fairly notified of a claim for
improvements under section 22.021. Paragraph four discusses allegations relating to Leticia’s
actions being inconsistent with ownership. Paragraph five discusses facts relating to adverse
possession. The only statement about improvements is a phrase in one sentence about Lydia paying
“repair expenses.” There are no allegations regarding the “the identity of the improvements” or
“the value of each improvement” as required under section 22.021. Therefore, we conclude Lydia
and Robert’s live pleadings do not state a claim for improvements under section 22.021. 1
1
We note that in their brief, Lydia and Robert argue they have an “equitable” claim for improvements, but provide no
authority for why the explicit requirements of section 22.021 would not have supplanted any equitable claim.
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Because Lydia and Robert’s live pleadings do not conform to the offset they were credited
in the trial court’s judgment, the trial court erred in granting that offset unless the issue was tried
by consent. See Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (holding that because the trial court’s judgment did not conform to the pleadings,
the trial court erred in granting such relief “in the absence of pleadings to support such relief or
trial by consent”). “If issues not raised by the pleadings are tried by express or implied consent of
the parties, these issues shall be treated as if they had been raised by the pleadings.” Flowers v.
Flowers, 407 S.W.3d 452, 458 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see also TEX. R.
CIV. P. 67, 301. “To determine whether the issue was tried by consent, we must examine the record
not for evidence of the issue, but rather for evidence of trial of the issue.” Flowers, 407 S.W.3d at
458. Here, the record does not reflect that the issue regarding Lydia and Robert being credited an
offset for improvements made was tried by consent. During opening statement, Leticia’s counsel
emphasized to the court that Lydia and Robert had not made a claim for improvements in their
pleadings. Again, during closing argument, Leticia’s counsel emphasized multiple times that Lydia
and Robert had not pled a claim for improvements. Because we conclude Leticia did not allow
Lydia and Robert’s claim for improvements to be tried by consent, we hold the trial court erred in
reducing the amount of damages awarded Leticia by the amount of improvements made by Lydia
and Robert, as Lydia and Robert’s live pleadings do not support such a claim for improvements.
See id.; Moneyhon, 278 S.W.3d at 878. 2
2
We note that in responding to Leticia’s issue, Lydia and Robert argue there is no evidence to support damages in the
amount of $600.00 per month for occupation and use of the Property, pointing to evidence that Leticia damaged the
Property when she lived there previously. However, it is undisputed that the Property had been repaired during
Francisca’s life when she had possession of the Property, and there was ample evidence that $600 per month for
occupation and use of the Property was reasonable. In essence, Lydia and Robert are complaining that they expended
money for improvements; however, as explained, because they failed to plead a claim for improvements, they are not
entitled to be credited that amount in the final judgment.
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04-21-00171-CV
CONCLUSION
Because we conclude that Leticia’s title to the Property was not conditioned on her
payment of the taxes, we hold the trial court did not err in finding the 2008 Correction Deed valid,
and the later 2011 and 2015 deeds invalid and of no consequence. Further, we find no merit in
Lydia and Robert’s adverse possession argument. Finally, we hold the trial court erred in reducing
Leticia’s award “by improvements testified to by Defendants [Lydia and Robert],” because Lydia
and Robert’s pleadings do not support a claim for improvements and the issue was not tried by
consent. Therefore, we reverse the portion of the trial court’s judgment reducing Leticia’s award
“by improvements testified to by Defendants” and render judgment that Leticia recover from Lydia
and Robert, jointly and severally, damages in the amount of $35,400, representing the value for
the use and occupation of the Property at $600.00 per month from November 1, 2015, through
October 1, 2020. We affirm the remainder of the trial court’s judgment.
Liza A. Rodriguez, Justice
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