Rey Ortiz v. Luis Manuel Singleterry

NUMBER 13-14-00494-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

REY ORTIZ, Appellant,

v.

LUIS MANUEL SINGLETERRY, Appellee.

On appeal from the 92nd District Court
of Hidalgo County, Texas.

MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez

Appellant, Rey Ortiz, appeals a $28,500 award of attorney’s fees assessed against

him and his attorneys in an election contest he filed against appellee Luis Manuel

Singleterry regarding the March 4, 2014 Democratic Primary Election for the 92nd District
Court of Hidalgo County, Texas.1 See TEX. ELEC. CODE ANN. § 232.002 (West, Westlaw

through 2013 3d C.S.) (“Any candidate in an election may contest the election.”). We

reverse and render.

I. BACKGROUND

Ortiz was a candidate for judge of the 92nd District Court of Hidalgo County, Texas

in the Democratic Primary Election. The challenged election was held on March 4, 2014,

and the final canvass was held on March 14, 2014. During the voting in this election, a

voter reported in a well-documented incident that his vote for one candidate in one of the

races on the ballot repeatedly reflected as a vote for a different candidate on the voting

machine he utilized.

On March 19, 2014, in response to the voting error report, the District Attorney of

Hidalgo County impounded the voting machines and ballots used in the Democratic

Primary Election in Hidalgo County. See id. § 273.001(b) (West, Westlaw through 2013

3d C.S.). On March 22, 2014, Ortiz filed his contest pursuant to the election code. See

id. In his original petition, Ortiz alleged, in relevant part, as follows:

5. This suit is brought for the purpose of contesting the Hidalgo
County 92nd Judicial District Court, Democratic Primary Election. Said
election was held on March 4, 2014, and the Canvass was conducted on
March 14, 2014 at which time the official election results were determined
to be as follows:

Candidate Votes Received Percent

Miguel Wise 5,145 12.35%

Luis Manuel Singleterry 24,127 57.79%

1 This Court previously reversed and remanded the trial court’s orders granting a plea to the

jurisdiction in the underlying case and in a companion case. See Cuellar v. Maldonado, Nos. 13-14-00228-
CV & 13-14-00230-CV, 2014 WL 2158135, at *1 (Tex. App.—Corpus Christi May 16, 2014, no pet.) (mem.
op.) (consolidated opinion). By separate opinion issued this same date, this Court addresses the trial
court’s imposition of sanctions in the companion case. See Cuellar v. Maldonado, No. 13-14-00491-CV,
2015 WL ___, at *_ (Tex. App.—Corpus Christi Mar. 5, 2015, no pet. h.) (mem. op.).

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 Rey Ortiz 12,466 29.86%

Contestee Luis Manuel Singleterry was declared the winner because
he received more than 50% of the votes.

6. Contestant will prove by clear and convincing evidence that a
sufficient number of illegal votes were counted to affect the outcome of the
election; that either through malfunction or illegal manipulation, voters who
voted for one candidate had their votes re-cast for other candidates and that
persons who voted for Rey Ortiz had their votes counted for one of the other
candidates (Exh. A); election machines either malfunctioned or were
illegally tampered with to affect the outcome of the election (Exhs. A & B);
election officials or other persons officially involved in the administration of
the election witnessed that election machines appeared to either
malfunction or were tampered with so that the outcome of the election was
affected (Exhs. B & C); many complaints were brought to the attention of
the Hidalgo County Elections Administrator to raise doubts concerning the
accuracy of the election results and of the functioning of the election
machines Id.; the election process failed to count legal votes, and/or
engaged in other fraud or illegal conduct or made mistakes that precluded
an accurate count of the vote cast.

7. Contestant would also aver that there were irregularities in the
casting and counting of ballots in this election to the extent that the true
outcome would result in the Contestant being declared the winner or that
the true election result cannot be ascertained, thereby requiring the voiding
of the election and the need for a new election.

8. Contestant would also aver that the election machines used
in the election be inspected by the appropriate expert or authority
designated by the Court to determine if the election machines were either
faulty or were tampered with so that the true outcome of the election was
affected.

Exhibit A to the petition was an incident report completed by Benito Garza detailing

that he attempted to vote for Rene Guerra in the district attorney’s race; however, the

voting machine he utilized repeatedly cast his vote in favor of Guerra’s opponent. After

seeking assistance from voting officials, Garza’s vote was canceled, and he utilized a

different machine to cast his vote.

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 Exhibit B to the petition consisted of an affidavit from Richard Alvarez, an executive

assistant to the Hidalgo County Judge. He stated that the first day of early voting in the

Democratic primary election commenced on February 18, 2014. Early that morning, he

received a call informing him that a voting problem had occurred at Precinct 3. He

immediately went to the polling site. Upon arrival, Alvarez was informed that voter Benito

Garza had cast a vote in the race for Hidalgo County District Attorney for the incumbent

Rene Guerra, but upon review of the ballot, he discovered that the voting machine

indicated a vote for Guerra’s opponent. Alvarez was told and he verified that an election

judge at the polling site had witnessed the above described occurrence and that Garza

had attempted numerous times to cast his vote for Guerra, but the voting machine

continued to list his vote as having been cast for Guerra’s opponent.

Alvarez stated that he recommended to the election judge at the polling place that

the voting machine used by Garza be segregated and removed from service so that it

could be examined and the cause for the malfunction be determined. Garza was allowed

to vote on a separate machine, and the malfunctioning machine was taken out of

commission. However, the election judge then informed the Hidalgo County elections

division about the issue. The Elections Division sent an employee to examine and

recalibrate the voting machine. The voting machine was recalibrated and placed back in

use.

Exhibit C to Ortiz’s petition consisted of several letters sent to the Hidalgo County

Judge requesting an investigation into the accuracy of the voting machines. One of the

letters was signed by several individuals and stated that it “has been brought to our

attention that numerous inconsistencies and discrepancies have appeared in our analysis

of each candidate’s races. We therefore ask that a forensic expert inspect each voting

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machine to ensure that they have not malfunctioned or been subjected to fraud or

tampering.” The letter explained that the “integrity of the voting process is what is at

issue. We ask that you take appropriate action to ensure that this and future elections

will be without question.”

In response to the contest, Singleterry filed a plea to the jurisdiction, which was

granted by the district court. Ortiz appealed that order, and we reversed and remanded.

Cuellar v. Maldonado, Nos. 13-14-00228-CV & 13-14-00230-CV, 2014 WL 2158135, at

*1 (Tex. App.—Corpus Christi May 16, 2014, no pet.) (mem. op.) (consolidated opinion).

Subsequently and during the course of the election contest, Ortiz attempted to

obtain access to the voting machines by attempting to intervene in the proceedings

initiated by the district attorney’s office, resulting in the impoundment of the voting

machines, and by seeking permission to allow his own expert to examine the machines.

His requests were denied. The trial of this cause was reset three times in order to obtain

the results of the forensic examination of the voting machines.

The forensic report on the voting machines was not issued until August 5, 2014.

The report found “no evidence to conclude that tampering had occurred” with any of the

voting machines. On August 13, 2014, the parties appeared for trial, and in view of the

forensic report, Ortiz nonsuited his case. The parties proceeded to hear Singleterry’s

request for attorney’s fees and sanctions against Ortiz. After an evidentiary hearing, the

trial court awarded Singleterry $28,500 as attorney’s fees against Ortiz and his attorneys,

jointly and severally, and further awarded costs of court and post-judgment interest.

This appeal ensued. Ortiz raises four issues: (1) the trial court lacked the authority

to issue the challenged order in this case because he had filed a timely, mandatory

objection to the assignment of the trial court; (2) the trial court lacked the authority to grant

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attorney’s fees in an election contest given that the election code does not authorize an

award of attorney’s fees and no other authority authorizing such an award exists; (3)

assuming that the attorney’s fees awarded were sanctions, the trial court erred in granting

the sanctions because Singleterry did not file a pleading seeking sanctions; and (4) the

trial court erred in granting attorney’s fees as sanctions because Singleterry failed to meet

his burden under any statute or rule authorizing sanctions and failed to meet his burden

to prove the amount of attorney’s fees was reasonable and necessary.2

II. ELECTION CONTESTS

The focus of a trial court’s inquiry in an election contest is set out in section

221.003(a) of the election code as follows:

(a) The tribunal hearing an election contest shall attempt to ascertain
whether the outcome of the contested election, as shown by the final
canvass, is not true because:

(1) illegal votes were counted; or

(2) an election officer or other person officially involved in the
administration of the election:

(A) prevented eligible voters from voting;

(B) failed to count legal votes; or

(C) engaged in other fraud or illegal conduct or made a
mistake.

TEX. ELEC. CODE ANN. § 221.003(a) (West, Westlaw through 2013 3d C.S.). “To set aside

the outcome of an election, the contestant must prove by clear and convincing evidence

2 Ortiz’s brief was filed on December 5, 2014. On February 23, 2015, this Court set the case for

submission on February 26, 2015 pursuant to the appellate rules. See TEX. R. APP. P. R. 39.8 (delineating
the requirements for the appellate clerk to provide notification of the date that a case is set for submission);
Id. R. 2 (allowing appellate courts to suspend a rule’s operation in a particular case and order a different
procedure). On February 24, 2015, Singleterry filed an amended motion for leave to file his brief and
tendered his brief to the Court that same day. We grant leave and accept Singleterry’s brief as filed.

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that a violation of the election code occurred and such violation materially affected the

outcome of the election.” Duncan–Hubert v. Mitchell, 310 S.W.3d 92, 97–98 (Tex. App.—

Dallas 2010, pet. denied); see Gonzalez v. Villarreal, 251 S.W.3d 763, 773, 777–78 (Tex.

App.—Corpus Christi 2008, pet. dism’d w.o.j.); see also Regalado v. Munoz, No. 13-14-

00274-CV, 2014 WL 3542056, at *2 (Tex. App.—Corpus Christi July 17, 2014, no pet.)

(mem. op.); Vazaldua v. Muñoz, No. 13–14–00275–CV, 2014 WL 2937014, at *6 (Tex.

App.—Corpus Christi June 20, 2014, no pet.) (mem. op.). An election’s outcome may be

materially affected when a different and correct result would have been reached in the

absence of irregularities, or if irregularities in the conduct of the election render it

impossible to determine the majority of the voters’ true will. Duncan–Hubert, 310 S.W.2d

at 98; see Gonzalez, 251 S.W.3d at 778; see also Vazaldua, 2014 WL 2937014, at *6.

It is an undeniable feature of our political system and tradition that an “individual’s

right to vote . . . is protected as a fundamental right.” Veasey v. Perry, No. 13–CV–00193,

2014 WL 5090258, at *41 (S.D.Tex. Oct. 9, 2014), stayed by 769 F.3d 890 (5th Cir. (Tex.)

Oct. 14, 2014) (citing Burdick v. Takushi, 504 U.S. 428, 433–34 (1992); Kusper v.

Pontikes, 414 U.S. 51, 55 (1973)). Specifically with regard to the facts of this case, we

note that several federal circuits have held a “voting machine malfunction is the

paradigmatic example of a ‘garden variety’ election dispute.” See, e.g., Shannon v.

Jacobowitz, 394 F.3d 90, 96 (2d Cir. 2005); Griffin v. Burns, 570 F.2d 1065, 1076 (1st Cir.

1978); Hennings v. Grafton, 523 F.2d 861, 864–65 (7th Cir. 1975); see also Broyles v.

State of Tex., 618 F.Supp.2d 661, 694 (S.D.Tex. 2009).

III. OBJECTION TO ASSIGNMENT

In his first issue, Ortiz contends that the trial court lacked the authority to issue any

orders in this case because he had filed a timely, mandatory objection to the assignment

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of the trial judge. Ortiz contends that chapter 74 of the Texas Government Code, which

establishes the procedures for the appointment of judges, applies to this case, and thus

the trial court’s recusal was automatic once he timely objected.

Following this Court’s remand of this case to the trial court, the Presiding Judge of

the Fifth Administrative Judicial Region, the Honorable J. Rolando Olvera, assigned the

Honorable J. Manuel Bañales to hear the case. On June 2, 2014, Ortiz filed an objection

to the assignment of Judge Bañales. On June 3, 2014, Judge Olvera overruled the

objection as per the following order:

Each Contestant, MARLA CUELLAR and REY ORTIZ, in the above
captioned causes, has filed an Objection to Assignment against Judge J.
Manuel Bañales, Senior Judge, the Judge assigned to each cause. Each
objection was filed under § 74.053 of the Government Code.

These two causes are election contests brought under § 231 and §
232 of the Election Code. In an election contest, the judge of the judicial
district in which an election contest is filed is automatically disqualified from
presiding in the cause. Section 231.004(b), Elec. C., requires that the
Presiding Judge of the Administrative Judicial Region shall then appoint a
special judge to preside in the contest. The assigned judge must not reside
in the territory covered by the election contest. Judge Bañales does not
reside in the territory covered by the election contest. Judge Bañales was
assigned under § 231.004(b), Elec. C.

Section 74.053(a) and (b), Govt. C., provide that a party in a civil
case may file an objection to a judge assigned “to a trial court under this
chapter” [emphasis added]. Judge Bañales was not assigned under
[c]hapter 74 of the Government Code. The plain language of §74.053, Govt.
C., provides that an objection under § 74.053, Govt. C., applies only to an
assignment under [c]hapter 74 of the Government Code. Accordingly, the
Contestants’ objections must be overruled.

IT IS THEREFORE ORDERED that the Contestants’ objections to
the assignment of Judge J. Manuel Bañales in these election contests be
and are each OVERRULED.

Section 74.053 of the Texas Government Code provides:

(a) When a judge is assigned to a trial court under this chapter:

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 (1) the order of assignment must state whether the judge is an
active, former, retired, or senior judge; and

(2) the presiding judge shall, if it is reasonable and practicable
and if time permits, give notice of the assignment to each
attorney representing a party to the case that is to be heard
in whole or part by the assigned judge.

(b) If a party to a civil case files a timely objection to the assignment, the
judge shall not hear the case. Except as provided by Subsection (d),
each party to the case is only entitled to one objection under this
section for that case.

(c) An objection under this section must be filed not later than the
seventh day after the date the party receives actual notice of the
assignment or before the date the first hearing or trial, including
pretrial hearings, commences, whichever date occurs earlier. The
presiding judge may extend the time to file an objection under this
section on written motion by a party who demonstrates good cause.

(d) An assigned judge or justice who was defeated in the last primary or
general election for which the judge or justice was a candidate for
the judicial office held by the judge or justice may not sit in a case if
either party objects to the judge or justice.

(e) An active judge assigned under this chapter is not subject to an
objection.

(f) For purposes of this section, notice of an assignment may be given
and an objection to an assignment may be filed by electronic mail.

(g) In this section, “party” includes multiple parties aligned in a case as
determined by the presiding judge.

TEX. GOV’T CODE ANN. § 74.053 (West, Westlaw through 2013 3d C.S.) (emphasis added).

If a properly filed objection under this statute is timely, the assigned judge’s

disqualification is automatic. Id. § 74.053(b); In re Canales, 52 S.W.3d 698, 701 (Tex.

2001) (orig. proceeding); In re Honea, 415 S.W.3d 888, 890 (Tex. App.—Eastland 2013,

orig. proceeding).

Ortiz contends that the procedures set out in chapter 74 have been consistently

applied to assignments made in election contest cases, and thus Judge Bañales should

9
have been automatically disqualified from hearing the election contest. In support of this

contention, Ortiz cites Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996) (per curiam),

and Flores v. Velasco, 68 S.W.3d 86, 87 (Tex. App.—Dallas 2001, no pet.). These cases

are election contests. However, neither case addresses the applicability, or lack thereof,

of the chapter 74 procedures to recusals in election contest cases.

Section 74.053 states explicitly that it applies “when a judge is assigned under this

chapter.” See TEX. GOV’T CODE ANN. § 74.053 (emphasis added). In accordance with

the statutory language, this section has been held to be applicable only when a judge is

assigned by the presiding judge of the administrative judicial region pursuant to chapter

74. See Cabrera v. Cedarapids Inc., 834 S.W.2d 615, 617(Tex. App.—Houston [14th

Dist.] 1992, writ denied as improvidently granted, 847 S.W.2d 247 (Tex. 1993); Erbs v.

Bedard, 760 S.W.2d 750, 755 (Tex. App.—Dallas 1988, orig. proceeding); R.J. Gallagher

Co. v. White, 709 S.W.2d 379, 381 (Tex. App.—Houston [14th Dist.] 1986, no writ); see

also In re Flores, 53 S.W.3d 428, 431 (Tex. App.—San Antonio 2001, no pet.) (holding

that presiding judge of the administrative district who was hearing a recusal motion was

not subject to a section 74.053 objection); Gonzalez v. Ables, 945 S.W.2d 253, 254 (Tex.

App.—San Antonio 1997, no pet.) (holding that statutory procedures under section 74.053

were not applicable where judges exchanged benches under state constitutional

provision for judges to hold courts for each other when they deem it expedient); Weidner

v. Marlin, 937 S.W.2d 601, 604 (Tex. App.—San Antonio 1996, no writ) (concluding that

visiting judge’s assignment was pursuant to government code section 75.003; therefore,

the judge was not assigned by the presiding judge of the administrative judicial region

and a section 74.053 objection to the assignment was not appropriate); State ex rel.

Holmes v. Lanford, 837 S.W.2d 705, 710 (Tex. App.—Houston [14th Dist.] 1992, orig.

10
proceeding) (explaining that a party cannot “object under section 74.053 . . . to a judge

who is not otherwise assigned to the case in accordance with the provisions of the

[c]hapter 74”); Meuth v. Hartgrove, 811 S.W.2d 626, 628 (Tex. App.—Austin 1990, writ

denied) (concluding that a section 74.053 objection does not apply to assignment of trial

judge by county administrative judge rather than presiding judge of the administrative

judicial region).

In the instant case, Judge Olvera assigned Judge Bañales to hear the case

pursuant to the provisions of the election code rather than chapter 74. Accordingly, the

section 74.053 objection was not applicable, and Judge Bañales was not automatically

disqualified by virtue of Ortiz’s objection. We overrule Ortiz’s first issue.

IV. BASIS FOR ATTORNEY’S FEES AWARD

In his second issue, Ortiz contends the trial court lacked the authority to grant

attorney’s fees because the election code does not authorize an award of attorney’s fees

and no other authority authorizes such an award. In his third issue, Ortiz argues that,

assuming the attorney’s fees were awarded as sanctions, the trial court erred in granting

the sanctions because Singleterry did not file a pleading seeking sanctions. We address

these issues together.

We review a trial court’s decision to either grant or deny attorney’s fees under an

abuse of discretion standard. See Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143,

163 (Tex. 2004); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Hudspeth Cnty.

Underground Water Conservation Dist. No. 1 v. Guitar Holding Co., 355 S.W.3d 428, 435

(Tex. App.—El Paso 2011, pet. denied). Texas adheres to the American Rule for the

award of attorney’s fees, under which attorney’s fees are recoverable in a suit only if

permitted by statute or by contract. See 1/2 Price Checks Cashed v. United Auto. Ins.

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Co., 344 S.W.3d 378, 382 (Tex. 2011); Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l

Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex. 2009); Tony Gullo Motors I, L.P. v.

Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006).

The trial court’s order awarding the attorney’s fees states, in relevant part:

As in any case, the award of sanctions, attorney’s fees or costs must
be pled in the party’s petition or answer or in a motion for sanctions. Except
in a limited number or actions, without a filed pleading or motion for
sanctions, attorney’s fees or costs, a party is not entitled to recover on any
of these items. In addition, a party may recover only what he or she pleads
for.

The Court finds that Contestee SINGLETERRY’s claim for attorney’s
fees or costs is found in his Original Answer, in which he makes a general
claim for attorney’s fees or costs, but did not ask for sanctions. He did not
amend his Answer to include a sanctions award nor did he file a motion for
sanctions. His claim is therefore limited to attorney’s fees or costs.

....

Robert Salinas, attorney for Contestee SINGLETERRY, testified on
his client’s claim for sanctions, attorney’s fees and costs. The record details
his work on the case. In sum, for the amount of hours that he worked on
the case at his hourly rate, he requested attorney’s fees of $28,500.00 and
costs of court. He also requested sanctions from Contestant ORTIZ and
his counsel, Rolando Rios, in the amount of $25,000.00. However, it is not
necessary to discuss Mr. Salinas’ testimony in support of his claim for
sanctions, because his claim for sanctions is not supported by his pleadings
or by motion.

The Court will award Contestee SINGLETERRY attorney’s fees of
$28,500.00 and costs of court. The Court will deny Contestee
SINGLETERRY any award for sanctions against the Contestant or his
counsel.
....

IT IS FURTHER ORDERED that, in Cause No. C: 2191-14-A, in the
cause Rey Ortiz v. Luis Manuel Singleterry, in the 92nd District Court of
Hidalgo County, Contestee LUIS MANUEL SINGLETERRY be and is
hereby awarded attorney’s fees in the amount of $28,500.00 and that
Contestant REY ORTIZ and his attorneys, Rolando Rios, Jose Garza and
Martin Golando, are jointly and severally liable for sanctions and attorney’s
fees in the amount of $28,500, all costs of court, and post-judgment interest

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 on this entire amount from today’s date at the rate of 5% until satisfied, for
which let execution issue.

Singleterry’s answer to the election contest includes a request for attorney’s fees

“as allowed by law” but provides no authority for the request. There is no statute or rule

authorizing the award of attorney’s fees in this matter. Accordingly, to the extent that the

trial court’s order could be considered as an award of attorney’s fees, the trial court

abused its discretion in rendering the award. See 1/2 Price Checks Cashed, 344 S.W.3d

at 382; Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 120; Tony Gullo Motors

I, L.P., 212 S.W.3d at 310–11. We thus sustain Ortiz’s second issue and proceed to

address his third issue contending that the trial court erred if it awarded the attorney’s

fees as sanctions.

As stated in the trial court’s order, Singleterry did not file pleadings requesting

sanctions against Ortiz. Nevertheless, the trial court’s order inconsistently denied

sanctions on this ground and yet referred to the award of “sanctions and attorney’s fees.”

Based on the language of the order at issue in this appeal, it is apparent that the trial court

did not intend to award the attorney’s fees to Singleterry as sanctions “because his claim

for sanctions is not supported by his pleadings or by motion.”

The purpose of pleadings is to give an adversary notice of claims, defenses, and

the relief sought. Chevron Phillips Chem. Co. v. Kingwood Crossroads, L.P., 346 S.W.3d

37, 64–65 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see Perez v. Briercroft

Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991). A trial court cannot enter judgment on a

theory of recovery not sufficiently set forth in the pleadings or otherwise tried by consent.

Chevron Phillips Chem. Co., 346 S.W.3d at 64; see TEX. R. CIV. P. 301 (providing that the

“judgment of the court shall conform to the pleadings”).

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 On appeal, Singleterry contends that he “did file an independent written motion for

sanctions.” Our review of the clerk’s record indicates that Singleterry filed a “Brief in

Support of Contestee’s Request for Attorney’s Fees, Costs, and Sanctions” the day after

the trial court rendered the sanction order at issue in this case. There is no indication in

the record that the trial court allowed leave for this untimely filing, and accordingly, we do

not consider it herein as a basis for the imposition of sanctions. See, e.g., Rodriguez v.

Crutchfield, 301 S.W.3d 772, 775 (Tex. App.—Dallas 2009, no pet.); Denman v. Citgo

Pipeline Co., 123 S.W.3d 728, 735 (Tex. App.—Texarkana 2003, no pet.); Mitchell v.

LaFlamme, 60 S.W.3d 123, 132 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Singleterry also contends that the imposition of sanctions should be affirmed

because the issue was tried by consent. The “trial by consent” doctrine is only intended

to cover the “exceptional” case in which it “clearly” appears from the record as a whole

that the parties tried the unpleaded issue; it is not intended to establish a general rule of

practice and should be applied with care. Guillory v. Boykins, 442 S.W.3d 682, 690 (Tex.

App.—Houston [1st Dist.] 2014, no pet.); see In re A.B.H., 266 S.W.3d 596, 600 (Tex.

App.—Fort Worth 2008, no pet.); Greene v. Young, 174 S.W.3d 291, 301 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied); Mastin v. Mastin, 70 S.W.3d 148, 154 (Tex. App.—

San Antonio 2001, no pet.); Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 281 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied). To determine whether the issue was tried

by consent, we examine the record, not for evidence pertaining to the issue, but rather

for evidence that the issue was actually tried. Guillory, 442 S.W.3d at 690; Greene, 174

S.W.3d at 301. A party’s unpleaded issue may be deemed tried by consent when

evidence on the issue is developed under circumstances indicating both parties

understood the issue was present in the case, and the other party failed to make an

14
appropriate complaint. Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537,

567 (Tex. App.—San Antonio 2011, no pet.). When evidence relevant to both a pleaded

and an unpleaded issue has been admitted without objection, the doctrine of trial by

consent should generally not be applied. Johnston, 9 S.W.3d at 281.

The evidence introduced at the August 13, 2014 hearing resulting in the order at

issue herein was relevant to both a pleaded issue, Singleterry’s request for attorney’s

fees, and the unpleaded request for sanctions. Moreover, the sanctions hearing was a

consolidated proceeding in which the trial court also heard the companion case which

involved specific pleadings seeking sanctions. In short, the evidence pertaining to

attorney’s fees was not developed under circumstances indicating that both parties

understood that the issue of sanctions was being tried. See id. Based on the foregoing

and the trial court’s express language concluding that Singleterry’s claim was “limited to

attorney’s fees or costs” rather than sanctions, we conclude that this is not an

“exceptional” case where the “trial by consent” doctrine is “clearly warranted” to support

an award of sanctions. See, e.g., Prize Energy Res., L.P., 345 S.W.3d at 567; Greene,

174 S.W.3d at 301; Johnston, 9 S.W.3d at 281.

Singleterry further contends that we should affirm the trial court’s imposition of

sanctions on grounds that the trial court had the authority to sua sponte issue the sanction

order. While the trial court can sua sponte award sanctions, the trial court did not provide

the parties with notice prior to the hearing that it intended to utilize its inherent power to

do so. See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997) (orig. proceeding) (per curiam);

Pine v. Deblieux, 405 S.W.3d 140, 150 (Tex. App.—Houston [1st Dist.] 2013, no pet.);

see also Metzger v. Sebek, 892 S.W.2d 20, 51 (Tex. App.—Houston [1st Dist.] 1994, writ

denied). In the absence of such notice, the trial court erred if it awarded the fees as

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sanctions. See TransAm. Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991);

Shilling v. Gough, 393 S.W.3d 555, 560 (Tex. App.—Dallas 2013, no pet.); Magnuson v.

Mullen, 65 S.W.3d 815, 823 (Tex. App.—Fort Worth 2002, pet. denied). Accordingly, to

the extent that the trial court’s order could be construed as an award of sanctions, we

conclude that the award was unsupported by the pleadings, and we sustain Ortiz’s third

issue.

V. CONCLUSION

Having sustained Ortiz’s second and third issues, we need not address his fourth

issue. See TEX. R. APP. P. 47.1, 47.4. We reverse the trial court’s order and render

judgment that Singleterry take nothing on his claim for attorney’s fees.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the
5th day of March, 2015.

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