Elizabeth A. Lousteau and Brett Clanton v. Jaime L. Noriega and Sonia A. Noriega

ACCEPTED
01-15-00254-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/27/2015 7:45:02 PM
CHRISTOPHER PRINE
CLERK

No. 01-15-00254-CV
IN THE
FILED IN
FIRST COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
Houston, Texas 8/27/2015 7:45:02 PM
CHRISTOPHER A. PRINE
Clerk

ELIZABETH A. LOUSTEAU AND BRETT CLANTON
Defendants/Appellants,
v.
JAIME L. NORIEGA AND SONIA A. NORIEGA
Plaintiffs/Appellees.

Appeal from the 151st Judicial District Court
Harris County, Texas
No. 2013-35448-B

APPELLANTS’ BRIEF

Marianne G. Robak, TBA 24048508
email: mgrobak@law-crg.com
1770 St. James Place, Suite 150
CERSONSKY, ROSEN & GARCIA, P.C.
Houston, Texas 77056
Tel: (713) 600-8500; FAX (713) 600-8585
ATTORNEYS FOR APPELLANTS,
ELIZABETH A. LOUSTEAU AND BRETT
CLANTON
 No. 01-15-00254-CV
IN THE
FIRST COURT OF APPEALS
Houston, Texas

ELIZABETH A. LOUSTEAU AND BRETT CLANTON
Defendants/Appellants,
v.
JAIME L. NORIEGA AND SONIA A. NORIEGA
Plaintiffs/Appellees.

Appeal from the 151st Judicial District Court
Harris County, Texas
No. 2013-35448-B

APPELLANTS’ BRIEF

TO THE HONORABLE COURT OF APPEALS:

COME NOW, Appellants Elizabeth A. Lousteau and Brett Clanton, and file this,

their brief pursuant to Texas Rule of Appellate Procedure 38, and respectfully request

that the judgment of the trial court be reversed and that this Court render a judgment in

accordance with the jury’s findings.

ii
 IDENTITY OF PARTIES AND COUNSEL

Elizabeth A. Lousteau and Brett Clanton., Defendants/Appellants:
CERSONSKY, ROSEN & GARCIA, P.C.
Marianne G. Robak, TBA 24048508
email: mgrobak@law-crg.com
1770 St. James Place, Suite 150
Houston, Texas 77056
Tel: (713) 600-8500; FAX (713) 600-8585

Counsel for Appellants

Jaime L. Noriega And Sonia A. Noriega, Plaintiffs/Appellees:

Swanson Law Firm, PLLC
Sarahjane “SJ” Davidson Swanson, TBA 24036441
email: sjswanson@swansonpllc.com
310 Main, Ste. 201
Houston, Texas 77056
Tel:(713) 881-9742; FAX: (713) 583-2444

Counsel for Appellees

iii
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………….……..iii
TABLE OF CONTENTS………………………………………………………….iv
TABLES OF AUTHORITIES…………………………………………………...vii
I. STATEMENT OF THE CASE…………………………………….………..1
II. STATEMENT REGARDING ORAL ARGUMENT……………………….3
III. ISSUES PRESENTED………………………………………………………3
IV. STATEMENT OF FACTS………………………………………………….4
V. SUMMARY OF ARGUMENT…………………………………….……...20
VI. ARGUMENT………………………………………………………………29
A. The trial court erred in disregarding the jury’s finding on a fact issue
……………………………………………………………………….29
B. The trial court erred by finding that abandonment was NOT tried by
consent................................................................................................32
i. Standard of Review...................................................................32
ii. The trial court abused its discretion..........................................32
iii. The abandonment issue was apparent on the face of Appellees’
live pleading at the time of trial, therefore it could not have
been waived by Appellants.......................................................33
iv. The abandonment issue was also on the Appellants' live
pleading at time of trial.............................................................35
v. Whether Appellees abandoned their alleged homestead
was tried by consent..................................................................36
vii. Both parties presented evidence on abandonment and it
was understood to be contested................................................39
a. Appellees opened the door in their Opening
Statement........................................................................40
b. Appellees testified repeatedly about their 'intent to
return' in trial..................................................................42

iv
 c. Evidence regarding 'temporary leasing' shows that
whether the alleged homestead status of 314 Goldenrod
was abandoned was at issue...........................................47
1. Evidence was presented regarding the rental
agreements............................................................49
2. The jury was instructed on how a temporary
rental effects a homestead
designation...........................................................50
d. Appellees did not preserve error by either objecting
to the evidence, objecting to the jury charge, or
objection to the jury findings regarding whether
314 was Appellees' homestead in 2014, therefore,
the objections were waived............................................52
1. Appellees had no objection to the testimony…...53
2. Appellees had no objections to the Jury
Charge..................................................................54
3. There were no objections to the Jury's finding in
Question 2............................................................56
C. The trial court erred in disregarding the jury’s finding on question
number 2, as it was material................................................................57
i. Standard of Review..................................................................57
ii. The record shows that the jury’s finding was material, thus
the trial court erred in disregarding jury’s finding to question
number immaterial....................................................................58
a. The pleadings and the evidence at trial supported the
findings in Question 2....................................................62
D. The trial court erred in submitting Question 1 to the
Jury......................................................................................................64
i. Standard of Review...................................................................64
ii. Question 1 was not a controlling question................................65
iii. The homestead status of 314 Goldenrod in 1994 was not in
dispute.......................................................................................67
iv. The trial court's submission of Question 1 to the jury caused
v
 the rendition of an improper judgment....................................68
E. The trial court erred by not issuing a final judgment..........................69
i. Standard of Review...................................................................69
ii. The trial court erred by not issuing a final judgment after the
merits of the case had been tried to a jury and the jury
rendered a verdict.....................................................................69
a. Wrongful writ of execution was waived by
Appellees........................................................................70
b. The trial court's actions have created piecemeal trial,
which is prohibited.........................................................71
F. The trial court erred by severing the wrongful execution claim from
the Judgment after trial.......................................................................73
G. The trial court erred when it awarded damages to Appellees.............74
H. Conclusion..........................................................................................77
VII. Prayer………………………………………………………………………80
CERTIFICATE OF COMPLIANCE …………………………………………..…82
APPENDIX …………………………………………………………………...…83

vi
 TABLE OF AUTHORITIES
Cases
Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) ..............................................................................................59
Acad. of Skills & Knowledge, Inc. v. Charter Sch., USA, Inc., 260 S.W.3d 529, 534
(Tex. App.-Tyler 2008, pet. denied) .....................................................................57
Aero Energy, Inc. v. Circle Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985) .........53
Allied Mgmt. Corp. v. Houston Poly Bag, Inc., 01-88-00643-CV, 1989 WL 66200,
at *3-4 (Tex. App.—Houston [1st Dist.] June 8, 1989, no writ) ..........................60
Armstrong v. Hix, 107 Tex. 194, 175 S. W. 430......................................................30
BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) ........................75
Billy Smith Enterprises, Inc. v. Hutchison Const., Inc., 261 S.W.3d 370, 377-78
(Tex. App.—Austin 2008, pet. dism'd) ................................................................59
Blum v. Rogers, 78 Tex. 530, 15 S.W. 115, 117 (1890) ..........................................47
Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 515 (Tex. 1998) .. 21, 28
Brown, 78 B.R. 486, 487 (Bankr. N.D. Tex 1987) ..................................................47
C & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966)..................57
Cambio v. Briers, 01-10-00807-CV, 2015 WL 2229274, at *3 (Tex. App.—
Houston [1st Dist.] May 12, 2015, no. pet. h.) .....................................................59
Carr v. Jaffe Aircraft Corporation, 884 S.W.2d 797, 799 (Tex.App.—San Antonio
1994, no writ) ................................................................................................. 29, 30
Carver v. Gray, 140 S.W.2d 227, 231 (Tex. Civ. App. —Amarillo 1940, writ
dism'd judgmt. cor.) ................................................................................. 23, 40, 48
Cecil v. Smith, 804 S.W.2d 227, 231 (Tex. Civ. App – Amarillo 1940, writ dism’d
judgmt. cor.) ..........................................................................................................55
Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 813 (Tex. App.—Texarkana
2004, pet. denied)..................................................................................................62
City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995) .......................58
Clark & Loftus v. Pearce, 80 Tex. 146, 15 S. W. 787 .............................................30
Clark v. Trailways, Inc., 774 S.W.2d, 644, 647 (Tex.1989) ...................................52
Cole v. Crawford, 69 Tex. 124, 5 S.W. 646, 648 (1887).........................................63
Coombs v. Fazzio, 386 S.W.2d 650, 653 (Tex. Civ. App.—San Antonio 1965), writ
refused NRE (Apr. 28, 1965) ................................................................................60
Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619 (Tex.Civ.App.—
Beaumont 1978, writ ref'd n.r.e.) ..........................................................................64

vii
Dodd v. Harper, 670 S.W.2d 646, 649 (Tex. App. – Houston [1st Dist.] 1983, no
writ). ......................................................................................................................22
Drake Interiors, L.L.C., v. Thomas, 433 S.W.3d 841, 847-48 (Tex.App. - Houston
[14th Dist.] 2014, no pet.) .....................................................................................47
Eggemeyer v. Eggemeyer, 623 S.W.2d 462, 465 (Tex. App - Waco, 1981, writ
dism'd) ...................................................................................................... 23, 40, 45
Farrington V. First Nat’l Bank of Bellville, 753 S.W.2d 248, 251 (Tex. App. –
Houston [1st Dist.] 1988, writ denied) ..................................................................23
Gann v. Montgomery, 210 S.W.2d 255, 257–58 (Tex. Civ. App.—Fort Worth
1948, writ ref'd n.r.e. .............................................................................................22
Gardner v. Douglass, 64 Tex. 76 (1885) .................................................................26
Gomez v. Franco, 677 S.W.2d 231, 234 (Tex.App.—Corpus Christi 1984, no writ)
...............................................................................................................................65
Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin 1993, no writ) .........73
Gulf, C. & S.F. Ry. Co. v. Canty, 285 S.W. 296, 299 (Comm'n App. 1926) ..........30
Highlands Ins. Co. v. Baugh, 605 S.W.2d 314, 319 (Tex. Civ. App.—Eastland
1980, no writ). .......................................................................................................28
Hollifield v. Hilton, 515 S.W.2d 717, 721 (Tex.Civ.App.-Fort Worth 1974, writ
ref'd n.r.e.) .............................................................................................................47
Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638 (Tex.
App.—Houston [1st Dist.] 2003, pet. denied) ......................................................56
Hume v. Schintz, 90 Tex. 72, 36 S. W. 429 .............................................................30
Iley v. Hughes, 311 S.W.2d 648, 651 (1958) ...........................................................71
In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204, 213 (Tex. 2009)
...............................................................................................................................29
In re Educap, Inc., 01-12-00546-CV, 2012 WL 3224110, at *3 (Tex. App.—
Houston [1st Dist.] Aug. 7, 2012, no pet.)............................................................68
In re Norris, 421 B.R. 782, 790 (S.D.Tex. 2009) ............................................. 23, 48
Inman v. Orndorff, 596 S.W.2d 236, 238 (Tex. Civ. App. – Houston [1st Dist.]
1980, no writ) ........................................................................................................73
Johnson v. Whitehurst, 952 S.W.2d 441, 449 (Tex.App. - Houston [1st Dist.], writ
ref;d n.r.e.).............................................................................................................66
Ked-Wick Corp. v. Levinton, 681 S.W.2d 851, 855 (Tex. App. – Houston [14th
Dist.] 1984, no writ) ..............................................................................................63
Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App. -- San Antonio 2001, no pet.) ...33
Land Title Co. of Dallas, Inc. v. F.M.Stigler, Inc., 609 S.W.2d 754, 756 (Tex.
1980) .....................................................................................................................32
viii
Lee v. Lee, 411 S.W.3d 95, 106-07 (Tex. App. -- [1st Dist.] 2013, no pet.) .... 37, 38
Lewkowicz v. El Paso Apparel Corp., 625 S.W.2d 301, 303 (Tex.1981) ...............34
Lloyd v. Brinck, 35 Tex. 1 ........................................................................................30
Lone Star Gas Co. v. Railroad Commission of Texas, 767 S.W.2d 709, 710
(Tex.1989).............................................................................................................76
Long Bell Lumber Co. V. Miller, 240 S.W.2d 405, 406 (Tex. Civ. App. – Amarillo
1951, no writ) ................................................................................................. 23, 47
McMillan v. Warner 38 Tex. 410, 411 (Tex.1873) ............................. 23, 26, 40, 45
Moore v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App. – Tyler 206, pet. denied)...64
Neller v. Kirschke, 922 S.W.2d 182, 187 (Tex. App. – Houston [1st Dist.] 1995,
writ denied) ...........................................................................................................55
NRG Exploration, Inc. v. Rauch, 671 S.W.2d 649, 653 (Tex.App.—Austin, 1984,
writ ref'd n.r.e.) .....................................................................................................76
Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922 no wr., (1936) ..............54
Park v. Escalera Ranch Owners’ Ass’n, Inc., 2015 WL 737424, at 17, - S.W.3d –
(Tex. App. – Austin Feb. 13, 2015, no pet. h.) .....................................................33
Perry v. Dearing, 345 F.3d 303, 318 (5th Cir. 2003) ..............................................47
Phillips v. Phillips, 820 S.W.2d 785 (Tex.1991) ........................................ 32, 33, 34
Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.-Tyler 2007, pet.
denied)...................................................................................................................57
Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 567 (Tex. App. –
San Antonio 2011, no pet.) ...................................................................................38
Prudential Corp. v. Bazaman, 512 S.W.2d 85, 91 (Tex. Civ. App. – Corpus Christi
1974, no writ) ........................................................................................................73
Railway Co. v. McArthur, 96 Tex. 65, 70 S. W. 317 ...............................................30
Railway Co. v. Muse, 109 Tex. 352, 207 S. W. 897, 4 A. L. R. 613. ......................30
Railway Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415 ..............................................30
Ramos v. FritoLay, Inc., 784 S.W.2d 667, 668 (Tex.1990) ....................................70
Raney v. White, 267 S.W.2d 199, 200 (Tex. Civ. App. – San Antonio 1954, writ
ref’d) .....................................................................................................................32
Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 110 (Tex.App.-Eastland
1992, writ denied) .................................................................................................55
Rosales v. Williams, 2010 WL 457536, at 6 (Tex.App.-Houston [1st Dist.] 2001,
no pet.) ........................................................................................................... 33, 34
RR Maloan Investments, Inc. v. New HGE, Inc., 428 S.W.3d 355, 362 (Tex.App.—
Houston [14th Dist.] 2014), reh'g overruled (May 1, 2014) .......................... 33, 34
Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997) ...............................................56
ix
Saloman v. Lesay, 369 S.W.3d 540, 550 (Tex.App.--Houston [1st Dist.] 2012, no
pet.) .......................................................................................................................22
Sanchez v. Telles, 960 S.W.2d 762, 769 (Tex. App. 1997); West v. Austin Nat'l
Bank, 427 S.W.2d 906, 911–12 (Tex.Civ.App.-San Antonio 1968, writ ref'd
n.r.e.) .....................................................................................................................26
Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 416, 423 (Tex.App.-Beaumont 1999,
writ denied) ...........................................................................................................55
Shamoun v. Shough, 377 S.W.3d 63, 69 (Tex.App.-Dallas 2012, pet. denied).......62
Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex.1992) ............................. 33, 34
Shupe, 192 S.W.3d at 579 ........................................................................................64
Silvio v. Boggan, 01-10-00081-CV, 2012 WL 524420, at *3-4 (Tex. App.—
Houston [1st Dist.] Feb. 16, 2012, pet. denied) ....................................................59
Simank v. Alford, 441 S.W.2d 234, 237 (Tex.App.-Austin 1969, writ ref'd n.r.e) ..26
Sinko v. City of San Antonio, 702 S.W.2d 201, 208 (Tex.App.—San Antonio 1985,
writ ref'd n.r.e.) .....................................................................................................64
Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.1991)70
Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). 53, 57, 58
Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex. App. – Houston [1st Dist.] 1993, writ
denied ....................................................................................................................38
Strauss v. La Mark, 366 S.W.2d 555, 557 (Tex. 1963) ...........................................70
Tall Timbers Corp. v. Anderson, 370 S.W.2d 214 (Tex.Civ.App.1963), rev'd on
other grounds, 378 S.W.2d 16 (Tex.1964) ...........................................................76
Texas Building & Mortgage Co. v. Morris, 123 S.W.2d 365, 371
(Tex.Civ.App.1938) ....................................................................................... 47, 48
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30, n. 29. (Tex. 1994) .............71
Traywick v. Goodrich, 364 S.W.2d 190, 191 (Tex. 1963) ......................................30
Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 863 (Tex. App.—Austin 2001,
pet. denied)............................................................................................................62
Tucker v. Graham Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin
1993, no writ) ........................................................................................................74
Uvalde Rock Asphalt Co. v. Warren, 127 Tex. 137, 91 S.W.2d 321, 324 (1936) ...47
Wal–Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 722 (Tex.App.-San Antonio
1995, no writ) ........................................................................................................29
Wang v. Gonzalez, 2013 WL 174576, at 8 (Tex. App.—Houston [1st Dist.] Jan. 17,
2013, no pet.) ................................................................................................. 61, 62
West v. Austin National Bank (San Antonio Tex.Civ.App.1968)............... 23, 40, 45
Whiteman v. Burkey, 282 S.W. 788 (Tex.1926) ......................................................22
x
Yates v. Home Building & Loan Co., 103 S.W.2d 1081, 1085 (Tex. Civ. App.
1937) .....................................................................................................................47
Statutes
TEX. CIV. PRAC & REM. CODE ANN. § 37.002 (Vernon 2008) ......................................... 74
TEX. CIV. PRAC & REM. CODE ANN. § 37.003(a) (Vernon 2008) ..................................... 75
Tex. Const. art. I, § 15, art. V, § 10 ................................................................................... 29
Tex. Prop. Code § 41.005(c) ............................................................................................. 22
TEX. R. CIV. P. 274. ..................................................................................................... 53, 55
TEX. R. CIV. P. 279 ............................................................................................................ 70
Tex. R. Civ. P. 295 ............................................................................................................ 55
Tex. R. Civ. P. 300 ...................................................................................................... 29, 74
TEX. R. CIV. P. 41 ........................................................................................................ 18, 73
TEX. R. CIV. P.277, 278................................................................................................... 64
Tex. R. Evid. 103(a)(1) ...................................................................................................... 51
TEX.R. CIV. P. 67 ....................................................................................................... 31, 35
TEX.R.APP.P. 43.2(c) ......................................................................................................... 79
TEX.R.APP.P. 43.4. ............................................................................................................ 79
TEX.R.CIV.P. 277 and 279 ................................................................................................. 64
TEX.R.CIV.P. 278 .............................................................................................................. 64
Texas Civil Practice and Remedies Code § 34.022 ........................................................... 75
Texas Rule of Civil Procedure 94 ..................................................................................... 32

xi
 I. STATEMENT OF THE CASE

Pursuant to Texas Rule of Appellate Procedure, 38.2(d), Appellants offer the

following statement:

March 17, 2014 Plaintiff, Jaime L. Noriega and Sonia A. Noriega file the
Original Petition for Bill or Review and Application for
Injunction.
April 11, 2014 Injunction hearing held.
April 14, 2014 Partial Temporary Injunction granted. On that same date,
Appellees filed the First Amended Petition, Application
for Injunctive Relief and Suit for Declaratory Relief. the
trial is preferentially set for September 1, 2014. C.R. at 4;
C.R. at 7.
April 15, 2014 Defendants' Original Answer is filed that contained a
general denial.
June 23, 2014 Appellees filed Plaintiffs’1st Supplemental Petition To
Plaintiffs’ 1st Amended Petition For Bill Of Review And
Suit For Declaratory Relief that added a cause of action
for wrongful execution. C.R. at 18.
July 17, 2014 Defendants' First Amended Answer is filed alleging
various affirmative defenses, including abandonment.
July 21, 2014 Defendants file their Second Amended Answer that
included the above-mentioned affirmative defenses, as
well as a specific denial regarding Appellees' right to
attorney fees. S. C.R. at 3.
August 23, 2014 Pleadings deadline passes.
August 24, 2014 Appellees file a Motion to Strike the Amended Answers
based on 'surprise.' The Motion alternatively requests a
continuance of the trial. C.R. at 22.
August 28, 2014 Appellants filed a Motion for Leave to Amend Pleading
after the pleadings deadline has passed to remove all
affirmative defenses. C.R. at 28.
September 10, 2014 The court signs an order that only grants the Motion for

1
 Leave to Amend Pleading regarding the attorney "fee
issue only." C.R. at 34.
November 6, 2014 A two-day jury trial commences.
November 7, 2014 The jury deliberates and renders verdict in favor of
Appellants. C.R. at 56.
December 22, 2014 The trial court issues an Interlocutory Judgment that
disregarded the jury's' finding to Jury Question Number 2
and awards damages to Appellees to be delivered to
Appellees within 30 days of the Interlocutory Judgment
being signed. No supersedeas bond was set. The trial court
indicates that, even though the claim for wrongful
execution was not submitted to the jury, Appellees may
still pursue the claim. C.R. at 65.
January 20, 2015 Appellants filed an Emergency Motion to Delay
Enforcement of Provision in Interlocutory Judgment or to
Set a Supersedeas Bond for the Value of the Deed to 314
Goldenrod or to Permit Placement of the Deed into the
Registry of the Court. C.R. at 68.
January 21, 2015 Trial court permits placement of the deed into the Registry
of the Court, but denies all other grounds of the
emergency motion. No supersedeas bond is set. C.R. at 81.
January 21, 2015 Appellants file a Motion to Modify. C.R. at 82.
February 13, 2015 Trial court sua sponte consolidates the case with Cause
No. 2013-35448; Elizabeth A. Lousteau and Brett Clanton
v. Jaime L. Noriega and Sonia A. Noriega In the 151st
Judicial District of Harris County, Texas ("the Underlying
Lawsuit" or "the 2013 Lawsuit") Thereafter, sua sponte,
severs the bill of review and declaratory judgment action
from the wrongful execution case, making the bill of
review and declaratory judgment final and appealable. The
severed cause is now styled Cause No. 2013-35448-B;
Elizabeth A. Lousteau and Brett Clanton v. Jaime L.
Noriega and Sonia A. Noriega In the 151st Judicial District
of Harris County, Texas. ("the Severed Lawsuit") No
supersedeas bond is set. C.R. at 150.
February 27, 2015 Hearing on Motion to Modify takes place without a
Response having been filed by Appellees. The Motion is
2
 denied.
March 11, 2015 Appellants object to the consolidation and severance. C.R.
at 154.
March 16, 2015 The Notice of Appeal is filed in both the 2013 Lawsuit
and the Severed Lawsuit. C.R. at 158.
May 8, 2015 Appellants file a Motion to Set Supersedeas Bond. C.R.
164.
June 2, 2015 The trial court denies the motion for supersedeas bond. It
appears the basis for the court' s order is that the placing of
the deed into the Registry of the Court is sufficient bond.
S.C.R. at 15.
June 3, 2015 Appellants file a Motion to Reconsider Order of June 2,
2015.
June 16, 2015 The trial court denies Appellants' Motion to Reconsider
stating that the deposit of the deed into the Registry of the
Court provides Defendants relief from judgment and that
no further supersedeas is ordered. S.C.R. at 16.
June 23, 2015 Appellants file a Motion to Confirm Authority to Direct
Rental Payments During Pendency of Appeal. S.C.R. at
18.
July 7, 2015 The Motion to Confirm is denied. S.C.R. at 21.

II. STATEMENT REGARDING ORAL ARGUMENT

Appellants request oral argument.

III. ISSUES PRESENTED

Issue Number 1: Did the trial court abuse its discretion when it disregarded the

jury’s finding on a fact issue?

3
Issue Number 2: Did the trial court abuse its discretion by determining that the

issue of 'whether Appellees abandoned their alleged homestead after they moved to

Chicago, Illinois' was not tried by consent?

Issue Number 3: Was Jury Question 2 material because it went to the heart of the

dispute regarding 'whether 314 Goldenrod was Appellees' homestead when the

execution took place on March 4, 2014,' and because evidence was presented to the

jury on it, without objection?

Issue Number 4: Whether the trial court abused its discretion by submitting

Question 1 to the jury even though it was not supported by pleadings and was not

controlling?

Issue Number 5: Whether the trial court abused its discretion when it issued an

interlocutory judgment after trial when there had been no pre-trial severance or

bifurcation of any claims before trial?

Issue Number 6: Whether the trial court abused its discretion when it awarded

damages and/or specific performance in the Interlocutory Judgment when no cause

of action supporting damages has been decided by the jury?

Issue Number 7: Whether the trial court erred in severing the wrongful execution

claim from the judgment, post-trial?

IV. STATEMENT OF THE FACTS

a. Undisputed Facts Regarding the Underlying Lawsuit

4
 The following facts are undisputed. At all relevant times, Appellants,

Elizabeth Lousteau and Brett Clanton ("Appellants"), lived at 316 Goldenrod

Street, Houston Texas 77009 ("316 Goldenrod"). See the Reporter's Record

(hereinafter referred to as "R.R") at 105-16 and R.R. 3 at 109. Prior to March 4,

2014, the property next door, 314 Goldenrod Street, Houston Texas 77009 ("314

Goldenrod") was owned by Appellees, Jaime L. Noriega and Sonia A. Noriega

("Appellees"). However, the Appellees had not lived at 314 Goldenrod since 2006,

when they moved to Chicago, Illinois. R.R. 2 at 92. On or about June 13, 3013,

Appellants filed suit against Appellees seeking money damages for a nuisance and

trespass. See page 8 of the Corrected Clerk's Record filed with the 1st Court of

Appeals on June 10, 2015, which will hereinafter be referred to as "C.R." 1

Appellants alleged in their lawsuit that the roof of Appellees' garage structure

trespassed onto Appellants' property, which caused damage from water runoff from

the roof. The lawsuit filed by Appellants is styled Cause No. 2013-35448;

Elizabeth A. Lousteau and Brett Clanton v. Jaime L. Noriega and Sonia A. Noriega

1
Please note that there are two "original" clerk's records on file on this Appeal. The first
clerk record filed was incorrect and was missing many crucial documents and contained
numerous unnecessary documents. Therefore, the clerks filed a "corrected" clerk's record
that was substantially correct on June 10, 2015. Some documents were still missing and
the record needed supplementing to include some pleadings and rulings that were filed
after the initial clerk's record had been requested, so the supplemental clerk's record was
filed on August 26, 2015.
5
In the 151st Judicial District of Harris County, Texas. ("the Underlying Lawsuit" or

"the 2013 Lawsuit"). C.R. at 8.

It is undisputed that neither Appellee answered the lawsuit. C.R. at 6 - 17. It

is also undisputed that returns of service were filed with the trial court for alleged

service on Appellees. C.R. at 9. It is also undisputed that motions for default were

filed by Appellants against each Appellee. C.R. 10-11. After hearing on the

motions, the motions were granted. C.R. at 10; C.R. at 6 - 17. In the orders, the

trial court found that Appellees were served with process and failed to appear. C.R.

at 12. The trial court entered into a judgment, in cause number 2013-35448, in

favor of Appellants in the amount of $62,000.00 plus $3,368.76 in attorney fees.

Id.

b. Writ of Execution on the Default Judgment

It is undisputed that on November 19, 2013, Appellants filed a request for

abstract of the default judgment. C.R. at 10. The abstract was issued by the District

Clerk, as requested. Id. Appellants then filed for a writ of execution, which was

issued on December 23, 2013. C.R. at 11. It is also undisputed that the execution

sale took place on March 4, 2014 where Appellants purchased, pursuant to a

Sheriff’s Deed, 314 Goldenrod. Id.

c. The 2014 Lawsuit

6
 On March 17, 2014, less than two weeks after the sale of 314 Goldenrod

took place, the Noriegas filed a lawsuit against Appellants styled Cause No. 2014-

14152; Jaime L. Noriega and Sonia A. Noriega v. Elizabeth A. Lousteau and Brett

Clanton; In the 151st Judicial District of Harris County, Texas. ("2014 Lawsuit").

The 2014 Lawsuit contained three claims: (1) a Bill of Review alleging that the

Noriegas were not served with process; (2) a Declaratory Judgment, requesting that

the trial court declare the Property to be the Noriegas' homestead, and (3) a cause

of action for damages for wrongful execution. C.R. at 6-17 and C.R. at 18-21.

Plaintiffs' First Amended Petition for Bill of Review, Application for

Injunctive Relief, and Suit for Declaratory Judgment ("Amended Petition"), which

was filed on April 14, 2014, alleged that Appellees did not receive notice of the

Underlying Lawsuit. C.R. at 7. Appellees filed the declaratory judgment action

asking the trial court to "declare and enter judgment as to the Plaintiffs' claim of

the subject property at 314 Goldenrod, Houston, Texas, as their homestead, thus

exempt from seizure and execution." C.R. at 14. In that same Amended Petition,

Appellants pled that "the Noriegas have never abandoned their homestead,

conversely, they intend to return to Houston at some point and live in the home."

C.R. at 15. Pleading further, Appellees stated that 314 Goldenrod "has always been

used and claimed as their homestead, and they have never abandoned it as their

homestead." Id. Thereafter, on June 23, 2014, Appellees filed Plaintiffs' 1st

7
Supplemental Petition to Plaintiffs' 1st Amended Petition for Bill of Review and

Suit for Declaratory Relief (“First Supplemental Petition”). The First Supplemental

Petition asserted a cause of action for wrongful writ of execution. C.R. at 18. In

that pleading, Appellees prayed for actual damages "from Defendants' wrongful

execution against Plaintiffs' homestead." C.R. at 21.

After receiving the amended and supplemental pleadings, and prior to the

deadline to file pleadings had passed, Appellants filed their second amended

answer alleging several affirmative defenses, including abandonment, a specific

denial regarding attorney’s fees, and a counterclaim for declaratory relief. See the

Supplemental Clerk's Record filed on August 26, 2015 (hereinafter referred to as

"S.C.R.") at 3. After the answer was filed, Appellees moved to strike Appellants'

timely filed amended answer by claiming it was filed too close to the deadline to

file amended pleadings. C.R. at 22-26. In that motion, Appellees also moved for a

continuance of the trial. C.R. 22 - 26. In fact, the pleading deadline had not passed.

However, the pleadings deadline had passed by the time Appellees Motion to

Strike was filed. In an attempt to move the case to trial and due to the fact that the

pleadings deadline had past at the point in time that the Motion to Strike had been

filed, Appellants filed a motion for leave to amend their pleadings to remove the

affirmative defenses and the counterclaim. C.R. at 28. In the Motion, Appellants

stated: "While Defendants timely amended their pleadings to include well founded

8
affirmative defenses.....in the interest of an expeditious resolution of this matter,

Defendants had elected to withdraw the affirmative defenses.....so this case can go

to trial." Id. The trial court partially granted the motion "relating to the fee issue,

only." C.R. at 34.

After extensive discovery was conducted on whether Appellees were served

with process in the Underlying Lawsuit, Appellants agreed that the preponderance

of the evidence showed that Appellees were not served with process. Therefore,

prior to trial, Appellants stipulated to that issue. S.C.R. at 9. The trial court set

aside the default judgment in the Underlying Lawsuit. C.R. at 66.

d. The Jury Trial

The record shows that what remained to be tried was the declaratory

judgment action regarding whether 314 Goldenrod is Appellees' homestead and the

cause of action for wrongful writ of execution as set forth in the Amended Petition

and the First Supplemental Petition. On November 7, 2014, the case was tried to a

jury. C.R. at 56-64.

i. Opening Statement

During Appellees' Opening Statement, the jury was told by Appellees that

"The issue in contention, the moment you've all been waiting for, we're going to

clarify what it is. The issue in contention, 314 Goldenrod in Houston Texas, is

Jaime and Sonia Noriega's homestead. That's the issue." R.R. 2 at 6 (emphasis

9
added). Appellees then told the jury that the Appellees bought 314 Goldenrod in

1994. R.R. 2 at 9. Appellees never told the jury during opening statement the date

they moved into 314 Goldenrod or that they lived there in 1994. R.R. 2 at 5 - 17.

Instead, the jury was told that "they lived there in this home for quite awhile." R.R

2 at 9. The jury was then told that Appellees moved to Chicago, Illinois in 2006

and that they have leased 314 Goldenrod out "on a one-year basis multiple times to

different tenants." R.R. 2 at 13.

During the Opening Statement, Appellees told the jury "at every moment in

time and especially in 2006, that they intended to come back here to their home."

R.R. 2 at 12. Counsel for Appellees told the jury that "they're actually going to

make that move back in the next few years." R.R. 2 at 16. The jury was also

instructed by counsel for Appellees "...that a homestead, once designated, remains

a homestead until it is somehow -- it goes away" (R.R. 2 at 8). Nothing regarding

the cause of action for wrongful execution action was mentioned in Opening

Statement. R.R. 2 at 5 - 17.

ii. Testimony of Dr. Noriega

During their case in chief, Appellee Dr. Jaime L. Noriega testified that he

and his family currently live in Chicago, Illinois. R.R. 2 at 26. He also testified that

he has lived in five different places since moving to Chicago in 2006. R.R. 2 at 32.

While Dr. Noriega testified that they purchased 314 Goldenrod in December of

10
1994 (R.R. 2 at 36.), the record shows no testimony as to the date they moved in.

Dr. Noriega testified that he would not have been legally able to file for a

homestead tax exemption in 1994 because they "had not lived there for the amount

of time that is necessary. We just bought it like the 30th of December." R.R. 2 at

59. Dr. Noriega then testified that while he did later obtain a homestead tax

exemption for 314 Goldenrod, he removed it in 2006 "because it was clear that you

could not claim tax exemption if you did not live there." R.R. 2 at 63.

Dr. Noriega was questioned, at length, by his counsel regarding his and his

wife’s intent to return to 314 Goldenrod at some point in the future. R.R 2 at 76-87.

When asked what his plans were for the future concerning 314 Goldenrod, Dr.

Noriega testified "It's always been our plan to return there to live there." R.R. 2 at

76. Dr. Noriega then listed off several factors that are in his alleged decision to

return to 314 Goldenrod to live. R.R. 2 at 76-82.

During cross-examination, Dr. Noriega testified that his primary residence is

in Chicago, Illinois, that his job is in Illinois, his family lives in Chicago, Illinois,

he is registered to vote in Illinois, and he has an Illinois driver's license. R.R. 2 at

98-106. He then testified that he has no immediate plans to move back to Houston.

R.R. 2 at 114. To this evidence, Appellees’ counsel made no objection to "lack of

pleading" regarding the 'abandonment' issue being allegedly waived or "defect in

pleading" at any time when Appellants' counsel questioned Dr. Noriega about his

11
intent to return to 314 Goldenrod. R.R. 2 at 87-106. When Dr. Noriega was being

examined about a tree growing in the back wall of 314 Goldenrod, Appellees'

counsel objected, claiming that the question was not relevant. R.R. 2 at 112.

Appellants' counsel responded stating that the testimony "goes to the intent to

return to the home -- to the property." R.R. 2 at 112. The only response from

Appellees' counsel was: "And now she's testifying. I object to that." No response

about the significance of testimony regarding the Appellees' 'intent to return' was

made. Id. The trial court overruled Appellees' objection finding that the testimony

regarding the condition of the property "has some relevance." Id. No testimony was

elicited about the wrongful execution cause of action.

iii. Testimony of Brandi Brown - the Tenant Residing at 314
Goldenrod.
Appellees called the current tenant of 314 Goldenrod, Brandi Brown, to

testify about her lease of the property. R.R. 3 at 59. When Ms. Brown testified that

the lease "could go on forever," no objection was waged. R.R. 3 at 63. Ms. Brown

also testified about the condition of 314 Goldenrod. She testified regarding a

plumbing problem and a flooring repair that she reported to the Appellees when

she moved in and that Appellees did not pay for the repairs. R.R. 3 at 65. Ms.

Brown testified that she paid for the repairs herself. Id. Ms. Brown testified that

there are three huge dead trees in the backyard. R.R. 3 at 66. She then testified that

one of the trees is growing into the back wall of 314 Goldenrod. R.R. 3 at 66. She

12
also testified that she is concerned for the safety of the house as the roots of the

tree are growing under the house, causing it to shift. Id. When asked whether Ms.

Brown thought the trees could fall on a neighbor's house, Appellees' objected to the

relevance of the question. Id. The trial court referred counsel to the ruling made

regarding the condition of the house earlier in the trial when it overruled the

relevance objection (i.e. it is relevant regarding the 'intent to return'). Id. Ms.

Brown answered the question by stating that she thought the trees could fall on a

neighbor's house if there is a large storm. R.R. 3 at 67. Throughout Ms. Brown's

testimony, there was never an objection waged that Ms. Brown living there had

nothing to do with the homestead status of the home in 1994.

iv. Testimony from Sonia A. Noriega

Appellee, Sonia A. Noriega, also testified at trial. During direct examination,

Mrs. Noriega testified about her plans to return to 314 Goldenrod. R.R. 3 at 76-82.

She testified that "we've always thought of rebuilding and having, like, a New

Orleans style home there and retiring." R.R. 3 at 76. She then stated that "Our

plans are to come back to our home." Id. When asked if she agreed with Dr.

Noriega's testimony he gave to the jury, she stated that she did. R.R. 3 at 77. She

testified that she shares the factors Dr. Noriega testified about regarding his plans

for the future. R.R. 3 at 78. Mrs. Noriega then testified that she and her daughter

13
have a Houston cell phone number because they plan to return to Houston. R.R. 3

at 82. No testimony was given about the wrongful execution cause of action.

v. Testimony of Elizabeth Lousteau

Appellant, Elizabeth Lousteau testified that she moved next door to 314

Goldenrod in 2007. R.R. 3 at 106. Since she has lived next door to 314 Goldenrod,

the Appellees never lived there. Id. Ms. Lousteau knew that Appellees did not live

at 314 Goldenrod on March 4, 2014. Id. Ms. Lousteau also testified that at times

during the past eight years she has lived next door, that 314 Goldenrod had been

vacant - in between tenants. Id. Ms. Lousteau testified that she looked on the Harris

County Appraisal District's website to see if there was a homestead designation

and there was not. R.R. 3 at 107.

vi. Testimony of Brett Clanton

Appellant, Brett Clanton testified that he is married to Ms. Lousteau and that

they have been married for ten years. R.R. 3 at 108-109. They live with their three

children next door to 314 Goldenrod. R.R. 3 at 109. Mr. Clanton testified that the

Appellees never lived next door to them. Id.

vii. Objection to the Testimony of Appellants' Previous Lawyer,
Natalie Barletta.

When Appellants called Natalie Barletta to the stand to testify, Appellees

objected. R.R. 3 at 111. The objection was "So everything Ms. Barletta did was to

pursue execution on that judgment. And these are the documents that Ms. Robak
14
had that I objected to that are the writ of execution and the notices and the

constable's deed and so forth. All of that has to do with the underlying judgment,

which is -- I mean, it hadn't come in. It's not appropriate... " R.R. 3 at 110-111.

Counsel for Appellants responded by stating that: The only thing we are going to

have her testify about is what she did to see whether this property was designated

as a homestead." R.R. 3 at 112. Counsel continued: "The only thing I was going to

talk to her about was what she did. Like, did you go look at the property records.

Did you look at HCAD? What did you find? ... what did you do to see whether or

not there was a homestead?" Id. The trial court excluded Ms. Barletta's testimony.

viii. Charge Conference and Jury Charge

After the two-day jury trial concluded, the following questions were

submitted to the jury:

Question 1: Do you find that the real property and
improvements commonly known as 314 Goldenrod,
Houston, Texas was the homestead of Jaime L. Noriega
and/or Sonia A. Noriega when they purchased the
property in December of 1994? ("Question 1")

Question 2: Do you find that the real property and
improvements commonly known as 314 Goldenrod,
Houston, Texas was the homestead of Jaime L. Noriega
and/or Sonia A. Noriega on March 4, 2014? ("Question
2")

15
C.R. 2 at 56-64. No question was submitted to the jury regarding the wrongful

execution or damages related thereto. Id. Likewise, no question was submitted to

the jury regarding damages or specific performance.

During the Charge Conference, Appellants objected to Question 1, on the

grounds that there was no basis in law or fact for the question. R.R. 3 at 120.

Appellants objected because the declaratory judgment action was regarding

whether 314 Goldenrod was Appellees' homestead when the execution took place

on March 4, 2014, not whether it was Appellees' homestead in 1994. Id. The

objection was overruled. R.R. 3 at 122. Appellees had no objections to Question 1.

R.R. 3 at 119.

When asked whether Appellees had any objections to Question 2, Appellees

responded "No, Your Honor, we have no objections to Question 2 or the

instructions." R.R. 3 at 122. Appellants asserted one objection regarding one of the

instructions, which has no bearing on this Appeal. R.R. 3 at 124.

ix. The Verdict

The jury answered Question 1 "Yes." The jury answered Question 2, "No."

C.R. 2 at 56-64. The jury found that 314 Goldenrod was not the Appellees'

homestead on March 4, 2014. C.R. 2 at 60. The jury did not make a finding on

wrongful execution claim. C.R. 2 at 56-64.

d. The Judgment

16
 The trial court issued an interlocutory judgment on December 22, 2014

declaring that 314 Goldenrod was the Appellees' homestead on March 4, 2014.

("the Interlocutory Judgment") C.R. at 65 (emphasis added). The trial court

referred, in its judgment, to the disregarding of the jury’s findings in Question 2

stating that: "The Court concluded that the first question and answer are material

and dispositive and that the second question and answer are immaterial and should

be disregarded." Id. Furthermore, the trial court awarded damages to Appellees by

voiding the execution sale, returning possession of 314 Goldenrod, including

Appellants' Deed to Appellees, within 30 days of the date of the judgment, and

ordering Appellants to notify the current tenant to pay all future rental payments to

Appellees within 30 days of the date of judgment. C.R. at 66-67. Additionally,

Appellants were ordered to produce documents, keys, leases, written

communications with tenants, and other indicia of ownership to Appellees within

30 days of the date of the judgment. Id. The trial court then found that "Plaintiffs

further wish to go forward on a claim for damages for wrongful execution, which

the Court will likely permit, subject to any dispositive motions on that subject by

Defendants," C.R. at 67. No supersedeas bond amount was set. Id.

e. Post-Judgment Motions and Orders

Due to the trial court's orders within the Interlocutory Judgment being, in

effect, final prior to the judgment being appealable, Appellants filed Defendants'

17
Emergency Motion to Delay Enforcement of Provision in Interlocutory Judgment

or to Set a Supersedeas Bond for the Value of the Deed to 314 Goldenrod or to

Permit Placement of the Deed Into the Registry of the Court. C.R. at 68-73. After

an emergency hearing took place, the trial court signed an order requiring

Appellants to place the Sheriff’s Deed in the registry of the court. C.R. 1 at 81. In

the Order Depositing Funds Into Registry, the trial court specifically stated that

"This Order does not effect this Court's Interlocutory Judgment of December 22,

2015 (sic) in any other way." Id. No supersedeas bond was set. Id.

Appellants then filed a Motion to Modify while the trial court still had

plenary power. C.R. at 82. No response was filed by Appellees. The Motion was

denied. Again, no supersedeas bond was set. Id.

The trial court then, by order signed on February 13, 2015, consolidated the

2014 Lawsuit into the 2013 Lawsuit. Also by order signed on February 13, 2015,

the trial court, sua sponte, severed the Interlocutory Judgment from the 2013

Lawsuit, in part, creating 2013-35448-B ("the Severed Case"). C.R. at 150.2 In the

order, the trial court stated; "It is therefore ORDERED that Plaintiff Jaime L.

2
The 2013 Lawsuit is also being appealed in cause number 01-15-00341-CV, which is also
assigned to the First Court of Appeals, the brief of which will be filed as soon as Appellants'
Motion to Consolidate is ruled on. The Motion to Consolidate was filed on July 10, 2015, but as
of the date of the filing of this Brief, no ruling had been made. Therefore, Appellants are filing
this Appeal based on the grounds relating to 01-15-00254-CV alone, as well as the measures
taken by the trial court in the 2013 Lawsuit issuing the severance. Appellants will be requesting
an extension in cause number 01-15-00341-CV. Should the cases be consolidated, an amended
appeal will need to be filed to reflect the consolidation.
18
Noriega and Sonia A. Noriega's causes of action for Bill of Review and

Declaratory Judgment, as adjudicated in the Court's December 22, 2014

Interlocutory Judgment in 2014-14152 against Defendants Brett Clanton and

Elizabeth A. Lousteau are hereby severed from this consolidated case into a new

case." Id. Appellants objected to both the consolidation and the severance on the

grounds that the 2014 Lawsuit had been submitted to a jury, a verdict had been

rendered, and a judgment had been signed, so severing a cause of action after

judgment was improper, according to TEX.R.CIV.PRO. 41. C.R. at 154. The

objections were overruled. Appellants objected to the consolidation and severance

orders signed by the trial court. C.R. at 154-156. No response was filed by

Appellees. The objections were overruled.

On or about March 11, 2015, the trial court signed an Order Vacating

February 13, 2015 Order In Part wherein the trial court put the Bill of Review

matter back with the 2013 Lawsuit thereby making the judgment in the Severed

Case final and appealable regarding the declaratory judgment action only. C.R. at

152-153. The damages and specific performance awarded by the trial court in

conjunction with the declaratory judgment action remained in the Severed Case.

C.R. at 153. No supersedeas bond was set.

Appellants filed the Notice of Appeal on March 16, 2015. C.R. at 158.

19
 After the Notice of Appeal was filed, Appellants, again, moved for the trial

court to set a supersedeas bond. C.R. at 164. The motion was denied. S.C.R at 15.

In that Order, it appears the trial court was under the impression that Appellees

were the parties that placed a deed into the Registry of the Court. Id. Based on that

apparent misunderstanding, the trial court stated that security has been provided in

this case. Id. In fact, Appellees had not filed their deed with the Registry of the

Court. Appellants did. So, Appellants filed a Motion to Reconsider, which was

denied. S.C.R. at 16. Based on the language in the original denial order on June 2,

2015, it appeared the trial court believed there to be ample security to supersede

the Judgment, so that, as a result, Appellants could proceed to retake possession of

314 Goldenrod and commence receiving the rental payments to which they are

entitled. But, to be sure, Appellants filed a Motion to Confirm Authority to Direct

Rental Payments During Pendency of Appeal. S.C.R. at 18. That Motion was

denied. S.C.R. at 21. As of the date of filing this Appellate Brief, Appellants have

not been able to obtain to obtain a supersedeas bond amount from the trial court.

V. SUMMARY OF THE ARGUMENT

The case that was presented to the jury was about whether 314 Goldenrod is

Appellees' homestead. Although a claim for wrongful execution was plead by

Appellees, it was never presented to the jury by way of testimony, evidence, or in a

jury question. C.R. at 56-64. Likewise, there was no jury question about actual

20
damages or specific performance. Id. Since the wrongful execution claim (and

damages related thereto) was waived by Appellees, the only issue to be determined

by the jury was whether 314 Goldenrod should be declared as Appellees’

homestead on March 4, 2014, thus making it exempt from execution.3

After a 2-day trial to a jury regarding whether 314 Goldenrod was Appellees'

homestead, two questions were submitted to the jury regarding the homestead

issue. The first question asked whether 314 Goldenrod was Appellees' homestead

when they purchased it in 1994. C.R. at 59. The second question asked whether

314 Goldenrod was Appellees' homestead on March 4, 2014, which is the date the

execution took place. C.R. at 60. While wrongful execution was a cause of action

in the Appellees' live pleading at time of trial, no evidence was presented on the

claim and no jury question was submitted to the jury on wrongful execution. C.R.

at 56 - 64. The jury’s verdict was that 314 Goldenrod was Appellees' homestead in

1994, but it was no longer their homestead by the time the execution took place on

March 4, 2014. Id.

Despite the jury's finding, the evidence to support it, and the Appellees'

failure to file any post-verdict motions, the trial court disregarded the jury's

findings and held that 314 was Appellees’ homestead in 2014 and that Appellants

3
Appellees also asked the jury about reasonable and necessary attorney fees, but since no cause
of action supporting damages was decided by the jury, the trial court properly disregarded the
jury question on attorney fees. In any event, whether attorney fees were found by the jury is not a
part of this Appeal.
21
had to return possession of the property to Appellees within 30 days of the

judgment. C.R. at 65-67. The trial court justified its decision by citing a section of

Saloman v. Lesay, which states: Once a homestead was found to have been

established, it could only lose such designation by abandonment, alienation, or

death. Saloman v. Lesay, 369 S.W.3d 540, 554-57 (Tex.App.--Houston [1st Dist.]

2012, no pet.); C.R. at 65. Incidentally, Salomon was a case where the Appellant

had a homestead designation on file and lived in the homestead at the time of the

execution. Id. at 550. The trial court stated that "because the affirmative defense of

abandonment was waived by Defendants, it could not have been found and,

further, was not tried by consent." C.R. at 65-66. The trial court continued by

finding that "the 'intent' element is a creature of the initial attachment of the

homestead designation..." Id. at 66.

The trial court abused its discretion when it disregarded the jury's findings

on a fact issue. Furthermore, the trial court was wrong on the law it applied to this

case. First and foremost, whether a parcel of real property is someone's homestead

is a fact issue for a jury to decide. Brown v. Bank of Galveston, Nat'l Ass'n, 963

S.W.2d 511, 515 (Tex. 1998). In determining whether a parcel of real property is

someone's homestead, a jury is to look at whether the real property was designated

as a homestead in the real property records, the county appraisal district's records,

or if no designation is found, whether the homestead claimant is using and

22
enjoying a property as a home. Dodd v. Harper, 670 S.W.2d 646, 649 (Tex. App. –

Houston [1st Dist.] 1983, no writ).

The Texas Property Code states that in order to designate property as a

homestead, the homeowner must have filed the designation with either the real

property records of the county in which the property is located or with the

appraisal district. Specifically, the Texas Property Code states that:

"To designate property as a homestead, a person or
persons, as applicable, must make the designation in an
instrument that is signed and acknowledged or proved in
the manner required for the recording of other
instruments. The person or persons must file the
designation with the county clerk of the county in which
all or part of the property is located." TEX. PROP. CODE §
41.005(c)(emphasis added).
Homestead rights have their origin in constitutional and statutory provisions,

not in the common law. Gann v. Montgomery, 210 S.W.2d 255, 257–58 (Tex. Civ.

App.—Fort Worth 1948, writ ref'd n.r.e.). There are no exemptions except those

provided by law. Id. Courts cannot protect that which is not homestead. Id., citing

Whiteman v. Burkey, 282 S.W. 788 (Tex.1926).

When no evidence of homestead exemption is found to have been filed, the

courts have found that "the mere act of using and enjoying a property as a home, a

person qualifies for the protections mandated by the Texas Constitution.” Saloman

v. Lesay, 369 S.W.3d 540, 550 (Tex.App.--Houston [1st Dist.] 2012, no pet.)

quoting Dodd v. Harper, 670 S.W.2d 646, 649 (Tex.App-- Houston [1st Dist.]

23
1983, no writ). Once a homestead claimant proves that property is their

homestead, there is a presumption that the homestead continues in the absence of

evidence to the contrary.” (citation omitted)); Farrington V. First Nat’l Bank of

Bellville, 753 S.W.2d 248, 251 (Tex. App. – Houston [1st Dist.] 1988, writ denied);

Long Bell Lumber Co. V. Miller, 240 S.W.2d 405, 406 (Tex. Civ. App. – Amarillo

1951, no writ).

When a homestead claimant moves from their homestead, as is the case

here, the question of whether such property remains their homestead is dependent

primarily upon the intention of the claimant. McMillan v. Warner 38 Tex. 410,

411 (Tex.1873); West v. Austin National Bank (San Antonio Tex.Civ.App.1968)

and Eggemeyer v. Eggemeyer, 623 S.W.2d 462, 465 (Tex. App - Waco, 1981, writ

dism'd). The renting of the homestead, prolonged absence, and other circumstances

and conduct of the owner of a homestead, are proper subjects to be considered in

determining whether a homestead has been abandoned. Carver v. Gray, 140

S.W.2d 227, 231 (Tex. Civ. App. —Amarillo 1940, writ dism'd judgmt. cor.)

(emphasis added). Whether a debtor temporarily rented out portions of his

homestead property, or whether he did so permanently in such a manner as to

abandon property as his homestead, is a question of fact under Texas law, on

which the party opposing the homestead claim carries the burden of proof. In re

Norris, 421 B.R. 782, 790 (S.D.Tex. 2009)(relying on Perry, which interpreted

24
long-standing Texas laws regarding 'temporary leasing'). The determination of

whether or not the renting is temporary or permanent is dependent upon the intent

of the head of the family as to whether or not he will again use the property as a

homestead. If it be his intent to again use the property as a homestead, the rental is

temporary; but if it be his intent not to again so use it, then it is permanent; and this

is so without reference to the length of time covered by the rental contract."4

Houston Chronicle Pub. Co. v. Allen, 70 S.W.2d 482, 484 (Tex. Civ. App.—

Beaumont 1934, no writ).

Herein lies the main issue the jury was to decide in the present case. If 314

Goldenrod was ever considered to be Appellees' homestead, did they abandon it

when they moved to Chicago, Illinois in 2006? The jury was provided a plethora of

evidence that showed the alleged homestead exemption ceased to exist once

Appellees moved away in 2006. See Testimony Chart in Subsection B,

hereinbelow. Appellees admitted in their testimony that no one in their family has

lived at 314 Goldenrod since 2006. R.R. 2 at 99-100. Since moving to Chicago in

2006, 314 Goldenrod has been rented out to various tenants. R.R. 2 at 100; R.R. 3

at 77. Since 2006, 314 Goldenrod has also been vacant. Id. Appellees testified that

there are no immediate plans to return. R.R. 2 at 114; R.R. 3 at 77. While
4
Appellants note that the trial court also erred when it alleged in the Interlocutory Judgment that
'intent' element is a creature of the initial attachment of the homestead designation, and is not
something that fluctuates or goes away, thereby destroying the homestead nature of the
property." The case law clearly indicates that there is an 'intent' element applied when
determining whether a lease was temporary or permanent.
25
Appellees testified that they intend to return to 314 Goldenrod sometime in the

future, they admit to having no immediate plans to return. R.R. 2 at 114-116; R.R.

3 at 77.

Likewise, the alleged reasons for wanting to return appeared illogical. For

example, Appellees told the jury that they want to move back to 314 Goldenrod

once their daughter goes off to college to save on expenses. R.R. 2 at 79. But, then

they testified that they want to move back so their daughter can be close to her

family. R.R. 2 at 77. They also testified that they want to retire in Houston. R.R. 3

at 76. But, they also testified that Dr. Noriega wants to get a job at University of

Houston so he can move back. R.R. 2 at 82. There were numerous obvious

inconsistencies as to whether they wanted to move back to retire or so that Dr.

Noriega could find work. If they are wanting their daughter to be near family, it

was unclear why they would wait to move back until after she goes off to college?

It is clear why the jury was apparently skeptical of the testimony about Appellees'

intentions to return to 314 Goldenrod, and then why they found that in 2014, 314

Goldenrod was no longer Appellees' homestead.

The case law shows that where a homestead claimant moves from property

that has been previously impressed with homestead character, the question of

whether such property continues as a homestead is dependent primarily upon the

intention of the claimant. Sanchez v. Telles, 960 S.W.2d 762, 769 (Tex. App.

26
1997); West v. Austin Nat'l Bank, 427 S.W.2d 906, 911–12 (Tex.Civ.App.-San

Antonio 1968, writ ref'd n.r.e.) (citing McMillan v. Warner, 38 Tex. 410, 411

(1873)). In order to find that a property is someone's homestead when no

homestead filing is found, as in this case, it is essential that there be an existing

bona fide intention to dedicate the property as a homestead, and the intent must be

accompanied by such acts of preparation and such prompt subsequent occupation

as will amount to notice of the dedication. Simank v. Alford, 441 S.W.2d 234, 237

(Tex.App.-Austin 1969, writ ref'd n.r.e) (citing Gardner v. Douglass, 64 Tex. 76

(1885)). No evidence was presented by Appellees that showed an existing bona

fide intention to dedicate the property as a homestead. The fact of the matter is,

Appellees testified that their family moved out of 314 Goldenrod in 2006 and have

never returned. Therefore, the homestead exemption had been abandoned.

Appellants, Elizabeth Lousteau and Brett Clanton, submit that the trial court

abused its discretion when it issued the Interlocutory Judgment which ordered,

among other things, that the issue of whether Appellees abandoned their alleged

homestead when they moved to Chicago, Illinois was waived by Appellants and

not tried by consent. In fact, abandonment was tried by consent from all parties.

The issue of abandonment was anticipated in Appellees' pleadings and was present

on both parties' live pleadings at time of trial. Secondly, a majority of the evidence

presented at trial by Plaintiffs went only to whether Appellees abandoned their

27
homestead exemption by moving to Chicago in 2006 without an intent to return to

314 Goldenrod. Pleading in anticipation of the abandonment defense, and eliciting

the testimony on 'intent to return' shows that they understood abandonment was an

issue in this case. Therefore, the trial court erred in finding that abandonment was

not tried by consent.

Additionally, because Jury Question 2, asking whether 314 Goldenrod was

Appellees’ homestead on March 4, 2014, was material to the issues being tried, the

trial court abused of discretion when it disregarded it.

Furthermore, the trial court erred in submitting Question 1 to the jury, as it was

not controlling and, standing alone, could not have awarded Appellees the

declaratory relief they were requesting. After all, Question 1 dealt with the

homestead status of 314 Goldenrod in 1994 and the property was not executed on

until 2014. As evidence by the testimony at trial in this matter, a lot can happen in

twenty years. Furthermore, there was no testimony or evidence that showed

Appellees qualified for a homestead exemption in December of 1994.

The court also erred in issuing an interlocutory judgment after trial, finding that

Appellees can continue to pursue their claim for wrongful execution, despite it

being waived at trial.

28
 Finally, the trial court erred by awarding damages to Appellees by requiring the

rental payments from the current tenant be paid to Appellees when no liability for

any cause of action awarding damages was found by a jury.

As a result, Appellants are seeking a reversal of the Interlocutory Judgment,

that this Court render a judgment that orders that 314 Goldenrod was not

Appellees' homestead on March 4, 2014, and that Appellees take nothing by way

of their claim for wrongful execution, as it was waived, no question on wrongful

execution having been submitted to the jury.

VI. ARGUMENT

A. The trial court erred in disregarding the jury’s finding on a fact
issue.

The trial court erred when it entered the Interlocutory Judgment that

disregarded the jury's finding in Question 2 because whether or not a piece of

property is someone's homestead is a fact issue for a jury to decide. Brown v. Bank

of Galveston, Supra. A court has no authority to substitute its finding for that of a

jury. Highlands Ins. Co. v. Baugh, 605 S.W.2d 314, 319 (Tex. Civ. App.—

Eastland 1980, no writ). Texas Rule of Civil Procedure 300 provides:

Where a special verdict is rendered.....the court shall
render judgment thereon unless set aside or a new trial is
granted, or judgment is rendered notwithstanding verdict
or jury finding under these rules.

29
TEX. R. CIV. P. 300. No Judgment Notwithstanding the Verdict, Motion to Set

Aside, or Motion for New Trial was filed by Appellees in this case.

Question 2 went directly to whether 314 Goldenrod was Appellees'

homestead on March 4, 2014. C.R. at 60. By disregarding the jury's verdict on the

homestead issue, sua sponte, the trial court substituted its own views for that of the

jury without a valid basis. Such an action is inapposite of the Texas Constitution's

guarantee of a trial by jury, as well as the Supreme Court's requirement that trial

courts enter judgments on the verdicts rendered by the juries. See, e.g., In re

Columbia Medical Center of Las Colinas, 290 S.W.3d 204, 213 (Tex. 2009)(case

dicta discussing the importance of issuing a judgment on a jury's verdict).

The Texas Constitution sets forth that: "The right of trial by jury shall

remain inviolate." See Tex. Const. art. I, § 15, art. V, § 10. Jury trials are essential

to our constitutionally provided method for resolving disputes when the parties

themselves are unable to do so. See Wal–Mart Stores, Inc. v. Seale, 904 S.W.2d

718, 722 (Tex. App.-San Antonio 1995, no writ); Tex. Const. art. I, § 15, art. V, §

10. In Wal–Mart Stores, Inc. v. Seale, the appellate court recognized that a jury's

decision is not to be tampered with lightly, regardless of whether it favors the

plaintiff or the defendant. See Wal-Mart, 904 S.W.2d 718, 722. The jury has, and

should have, the final word on facts. Carr v. Jaffe Aircraft Corporation, 884

S.W.2d 797, 799 (Tex. App.—San Antonio 1994, no writ).

30
 Not only did the trial court disregard the Constitution when it disregarded

Question 2, it also disregarded the Supreme Court's mandate which requires trial

courts to abide by their ministerial duty to enter a judgment on the verdict.

Traywick v. Goodrich, 364 S.W.2d 190, 191 (Tex. 1963).

It is the well-settled law of this State that:

“the entry of judgment upon a valid verdict involves no judicial or
discretionary powers, but is simply a ministerial act...”

Gulf, C. & S.F. Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897 (1919) (Comm'n

App. 1926) (citing Lloyd v. Brinck, 35 Tex. 1 (1872); Clark v. Pearce, 80 Tex.

146, 15 S.W. 787, (1891); Hume v. Schintz, 90 Tex. 72, , 36 S.W. 429 (1896);

Houston & T.C.R. Co. v. Strycharski, 92 Tex. 1, , 37 S.W. 415, (1896); St. Louis

S.W. Ry. Co. of Texas v. McArthur, 96 Tex. 65, , 70 S.W. 317 (1902); Armstrong

v. Hix, 107 Tex. 194, , 175 S.W. 430 (1915); Railway Co. v. Muse, 109 Tex. 352,

207 S. W. 897, 4 A. L. R. 613). A jury in this State has great power, as it should,

when determining a fact issue. Carr v. Jaffe Aircraft Corporation, 884 S.W.2d

797, 799 (Tex.App.—San Antonio 1994, no writ)(a case involving a trial court's

erroneous disregard of a jury finding by granting a new trial). Jurors are “the sole

judges of the credibility of the witnesses and the weight to be given to their

testimony.” Id. In the present case, when the trial court disregarded the finding of

twelve jurors, it erred, as it violated the Constitution and more than 100 years of

Texas case law that has upheld juries' findings on fact issues. For that reason, the
31
judgment should be reversed and a judgment rendered for Appellants consistent

with the jury's verdict: that 314 Goldenrod was not the Appellees' homestead on

March 4, 2014 and take nothing on their claim for wrongful execution.

B. The trial court erred by finding that abandonment was NOT tried
by consent.

i. Standard of Review.

An issue is tried by consent when both parties present evidence on an issue

and the issue is developed during trial without objection. Ingram v. Deere, 288

S.W.3d 886, 893 (Tex.2009); see TEX.R. CIV. P. 67 (issues not raised in pleadings

that are tried by consent are “treated in all respects as if they had been raised in the

pleadings”). The trial court has broad discretion in determining whether an

unpleaded claim has been tried by implied consent of the parties. Compass Bank v.

MFP Fin. Servs., Inc., 152 S.W.3d 844, 855 (Tex.App. - Dallas, pet. denied)

ii. The trial court abused its discretion.

The trial court erred when it determined that the abandonment issue was not

tried by consent because not only was the defense pled in both parties' live

pleadings at time of trial, the reporter's record is abundant with testimony elicited

by both parties without objection regarding their intent to return to 314 Goldenrod

at some point in the future. But also, Appellees did not object, in the Charge

Conference, to the submission of jury question number 2 that went directly to the

abandonment issue. R.R. 3 at 122. Finally, neither the clerk's record or reporter's
32
record show that a motion for directed verdict, motion for judgment

notwithstanding the verdict, or motion for new trial was filed by Appellees that

would indicate any disagreement with the jury's findings. Clearly, by Appellees'

own actions (or lack thereof), abandonment was tried by consent, and the trial

court erred in finding, sua sponte, that abandonment was not tried by consent.

iii. The abandonment issue was apparent on the face of Appellees’
live pleading at the time of trial, therefore it could not have been
waived by Appellants.

Abandonment was not waived by Appellants because it was apparent on the

face of Appellees' pleadings at time of trial. Abandonment is traditionally an

affirmative defense that needs to be pleaded, according to Texas Rule of Civil

Procedure 94. However, the requirement that affirmative defenses be pled is not

absolute. Rule 94’s purpose “is to give the opposing party notice of the defensive

issue to be tried.”Land Title Co. of Dallas, Inc. v. F.M.Stigler, Inc., 609 S.W.2d

754, 756 (Tex. 1980). Therefore, it is axiomatic that when a Plaintiff in a lawsuit

has pleadings that anticipate a defense, such as is the case with the Appellees' Suit

for Declaratory Judgment, there is no need to identify the defense. Phillips v.

Phillips, 820 S.W.2d 785 (Tex.1991) (citing Raney v. White, 267 S.W.2d 199, 200

(Tex. Civ. App. – San Antonio 1954, writ ref’d)).

In fact, in Phillips, the Supreme Court held that "when a plaintiff in his

pleadings anticipates defensive matters and pleads them, the defendant may rely

33
upon defenses though his only pleading is a general denial.” Id. The Phillips

exception was followed by the Supreme Court in Shoemake v. Fogel, Ltd., 826

S.W.2d 933, 937 (Tex.1992). The Phillips exception was also relied upon by this

Court in Rosales v. Williams, 2010 WL 457536, at 6 (Tex.App.-Houston [1st Dist.]

2001, no pet.) and the 14th Court of Appeals in RR Maloan Investments, Inc. v.

New HGE, Inc., 428 S.W.3d 355, 362 (Tex.App.—Houston [14th Dist.] 2014),

reh'g overruled (May 1, 2014). Many other appellate courts throughout Texas have

also relied on the Phillips exception. See for example Park v. Escalera Ranch

Owners’ Ass’n, Inc., 2015 WL 737424, at 17, - S.W.3d – (Tex. App. – Austin Feb.

13, 2015, no pet. h.); and Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App. -- San

Antonio 2001, no pet.).

In 2010, this Court analyzed the Phillips exception in its holding in Rosales

v. Williams. See Williams, 2010 WL 457536 at 6. The parties were disputing

whether 'mitigation of damages' was tried by consent. Id. at 2. While Rosales had

not pled the affirmative defense of 'mitigation of damages,' the record showed that

Williams pled that "Plaintiffs reasonably mitigated their damages." Id. at 3. In its

holding, this Court relied upon the Phillips exception when it held that Williams

anticipated the defense of 'mitigation of damages’ in the pleadings, which allowed

Rosales to properly respond with a general denial. This Court properly found that:

"Because the plaintiffs' petition claimed they reasonably mitigated damages, the

34
defendants' filing of a general denial, “den[ying] each and every allegation of

Plaintiffs' Original Petition,” put failure to mitigate at issue in the case. Id. at 3.

This Court should hold similarly in the present case. Here, Appellees pled

that “The Noriegas have never abandoned their homestead, conversely, they intend

to return to Houston at some point and live in the future." C.R. at 15 (Paragraph

38). Next, Appellees pled that "they have never abandoned (314 Goldenrod) as

their homestead." See Id. (Paragraph 40). Since Appellees put the defense at issue

in the case, Appellants did not need to affirmatively plead it. See Phillips 826

S.W.2d 933; Williams at 6; RR Maloan Investments, Inc. 428 S.W.3d at 362;

Shoemake v. Fogel, Ltd., 826 S.W.2d 933 (Tex.1992); Lewkowicz v. El Paso

Apparel Corp., 625 S.W.2d 301, 303 (Tex.1981). Therefore, abandonment did not

need to be specifically plead for by Appellants in order for them to use the defense.

Thus, abandonment was not waived by Appellants and Question 2 should not have

been disregarded by the trial court.

iv. The abandonment issue was also on the Appellants' live pleading
at time of trial.

As referenced in the Statement of the Facts, Appellants pled the affirmative

defense of abandonment in their Second Amended Answer. S.C.R. at 3. When

Appellees’ filed a motion to strike the defenses or, in the alternative, a lengthy

continuance, Appellants filed a motion for leave to amend its pleadings to remove

those defenses so that the case could move forward to trial. C.R. at 28. The trial
35
court only granted Appellants' motion for leave regarding the "fees issue only."

C.R. at 34. In fact, this portion of the Order was hand-written in by the trial court.

Id. Therefore, all other grounds for the motion for leave, including the portion

wherein Appellants requested to remove 'abandonment' from its Second Amended

Answer, were not granted. No motion to reconsider or motion for clarification was

filed by Appellees. Thus, at trial, the record shows that abandonment was an

affirmative defense in Appellants' live pleading. Therefore, Question 2 should not

have been disregarded by the trial court.

v. Whether Appellees abandoned their alleged homestead was tried
by consent.

If this Court finds that the issue of whether Appellees' abandoned their

homestead exemption by March 4, 2014 was not on the face of either of the parties'

pleadings at time of trial, it should find that the issue was nevertheless tried by

consent. An issue is tried by consent when both parties present evidence on an

issue and the issue is developed during trial without objection. Sage St. Assocs. v.

Northdale Constr. Co., 863 S.W.2d 438, 445–46 (Tex. 1993); Ingram v. Deere,

288 S.W.3d 886, 893 (Tex. 2009); see TEX.R. CIV. P. 67 (issues not raised in

pleadings that are tried by consent are “treated in all respects as if they had been

raised in the pleadings”).

In Sage St., Supra, the Supreme Court discussed whether the trial court

should have submitted a contract's ambiguity to the jury, although neither party
36
pleaded it. Sage St., 863 S.W.2d at 444–46. In analyzing the issue, the Supreme

Court determined that because both parties presented conflicting testimony on the

subject and allowed the issue to be raised in the jury charge, the contract's

ambiguity was tried by consent. Id. (finding that the record showed that the jury

was called upon to resolve the issue by virtue of the fact a jury question was

submitted to them on the issue). The Supreme Court later reiterated its holding in

Sage St. when it ruled on the same issue in Ingram v. Deere, 288 S.W.3d 886, 893

(Tex.2009). Here, not only did both parties present evidence at trial to affirm or

controvert whether Appellees abandoned 314 Goldenrod when they moved to

Chicago, Illinois in 2006, never to return, but also, Appellees submitted the issue in

the jury charge regarding whether 314 Goldenrod remained their homestead on

March 4, 2014. Further, Appellees did not object to the jury's finding regarding it!

C.R. at 56-64. In the present case, the abandonment issue was clearly developed at

trial, and both parties understood that it was contested, as in Sage St. and Ingram.

Sage St., 863 S.W.2d at 444–46; Ingram 288 S.W.3d at 893. Accordingly, the trial

court abused its discretion by disregarding the finding in Jury Question 2.

This Court recently analyzed the issue regarding whether an unpled defense

of 'bad faith' was tried by consent. See Lee v. Lee, 411 S.W.3d 95, 106-07 (Tex.

37
App. -- [1st Dist.] 2013, no pet.)5. In the Lee case, the trial court awarded treble

damages by finding that section 93.011 of the Texas Property Code’s “bad faith”

provision applied to the case, despite the lack of pleadings, lack of testimony

regarding bad faith, and no jury question addressing bad faith, such that the jury

could have awarded treble damages pursuant to the Texas Property Code. See Lee

v. Lee, 411 S.W.3d at 106. In the Lee opinion, this Court properly applied the Sage

St. and Ingram holdings when detailing the standard for determining whether an

upled issue was tried by consent.

The ultimate holding in Lee was that the record showed a 'dearth' of

evidence that the parties tried the issue of bad faith. Id. at 107. (No testimony was

elicited on whether his actions were in bad faith and the landlord also did not

present evidence to attempt to rebut the presumption of bad faith.) Likewise, the

record in Lee showed that the plaintiff had not included an instruction for bad faith,

or damages related thereto, in the jury charge. Id. Therefore, this Court found that

the trial court erred in awarding the treble damages -- as there was no evidence

presented at trial and no question submitted to the jury regarding treble damages.

The present case presents the exact opposite record. In fact, testimony regarding

whether Appellee's abandoned their homestead was abundant throughout the trial.

The testimony shows that both parties presented evidence on abandonment and

5
The Lee appeal came out of the 151st Judicial District Court in Harris County, as does the
present case.
38
understood it to be contested. Lee v. Lee at 107; Prize Energy Res., L.P. v. Cliff

Hoskins, Inc., 345 S.W.3d 537, 567 (Tex. App. – San Antonio 2011, no pet.); see

also Ingram, 288 S.W.3d at 892–93 (issue tried by consent when both parties

presented evidence at trial on it and it was submitted in the jury charge).

vi. Both parties presented evidence on abandonment and it was
understood to be contested.
The court erred when it stated in its Interlocutory Judgment that "...the

affirmative defense of abandonment was waived by Defendants, it could not have

been found and, further, was not tried by consent." C.R. at 65. To determine

whether an unpleaded issue was tried by consent, the trial court examines the

record not for evidence of the issue, but rather for evidence of trial of the issue.

Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex. App. – Houston [1st Dist.] 1993, writ

denied). In the present case, the record shows that the abandonment issue was

tried. Both parties included the abandonment issue in their live pleadings at time of

trial and offered testimony regarding abandonment during trial. Further, Appellees

did not object to the introduction of abandonment evidence or to the jury question

that necessarily went to the heart of the issue of abandonment by asking is 314

Goldenrod was Appellees' homestead on March 4, 2014. Therefore, as explained in

more detail below, the evidence in the record shows that the issue of whether

Appellees abandoned 314 Goldenrod when they moved to Chicago, Illinois was, in

fact, tried.

39
 a. Appellees opened the door in their Opening Statement

By telling the jury that Appellees moved to Chicago, Illinois in 2006, but

that they intend to return to Houston and live at 314 Goldenrod again in the future,

the door to the issue of whether Appellees’ abandoned their homestead had been

opened.

For example, in the opening statement, counsel for Appellees told the jury “a

homestead, once designated, remains a homestead until it is somehow – it goes

away.” R.R. 2 at 8. From there on, the opening statement was replete with

references to the Appellees’ intent to return to 314 Goldenrod after they moved to

Chicago in 2006. The jury was also told that the Appellees still live in Chicago

“temporarily.” R.R 2 at 16. The jury was then told that Appellees have leased 314

Goldenrod out “on a one-year basis multiple times to different tenants.” R.R. 2 at

13. Despite later testimony that Chicago, Illinois is their primary residence (R.R. 2

at 101), counsel for Appellees told the jury “You’re going to hear from both of the

Noriegas that at every moment in time and especially in 2006, they intended to

come back here to their home.” R.R. 2 at 12. Appellees’ counsel even explained to

the jury that “Their parents are still here….That’s something that the Noriegas

keep in mind and are factors in helping them to decide when they’re actually going

to make that move back in the next few years.” R.R. 2 at 16. Thereafter, and as

explained more particularly in the chart hereinbelow, Appellees testified repeatedly

40
about their intent to return to 314 Goldenrod. If the issue of whether they

abandoned their homestead when they moved to Chicago, Illinois in 2006 was not

at issue in the trial, Appellees should have never told the jury of Appellees’ future

intentions to return to 314 Goldenrod. Furthermore, they should have objected to

'relevance' anytime the subject of 'intent to return' was brought up in trial.

Texas courts have held that when a homestead claimant moves from their

homestead, the question of whether such property remains their homestead is

dependent primarily upon the intention of the claimant. McMillan v. Warner 38

Tex. 410, 411 (Tex.1873); West v. Austin National Bank (San Antonio

Tex.Civ.App.1968) and Eggemeyer v. Eggemeyer, 623 S.W.2d 462, 465 (Tex. App

- Waco, 1981, writ dism'd). The renting of the homestead, prolonged absence, and

other circumstances and conduct of the owner of a homestead, are proper subjects

to be considered in determining whether a homestead has been abandoned. Carver

v. Gray, 140 S.W.2d 227, 231(Tex. Civ. App. —Amarillo 1940, writ dism'd

judgmt. cor.) (emphasis added).

The offerings of counsel in the Opening Statement regarding Appellees’

intent to return to 314 Goldenrod were only relevant to support Appellees’ claim

that they did not abandon their alleged homestead.

41
 b. Appellees testified repeatedly about their 'intent to return' in
trial.

The evidence in the reporter's record shows that all parties presented

evidence regarding the issue of whether Appellees abandoned their homestead

when they moved to Chicago, Illinois in 2006, therefore, the issue was tried by

consent. No objections to this testimony were made. Below is a Testimony Chart

containing a summary of the testimony of Dr. Jaime L. Noriega attempting to

disprove that he and his wife had abandoned their alleged homestead:

Testimony Chart

Direct Examination Testimony of Appellee, Dr. Jaime Record Cite
Noriega
Dr. Noriega testified about the alleged temporary lease to R.R. 2 at 51-53
Brandi Brown.
Dr. Noriega testified that after he moved to Chicago, his R.R. 2 at 66.
intention towards 314 Goldenrod as being his homestead
had not changed.
Q. And you have -- have you ever made any sort of an R.R. 2 at 71.
agreement with anybody that would change your
homestead claim to the document -- I'm sorry, to the
property?
A. No.
Dr. Noriega testified that he and his wife leased 314 R.R. 2 at 71-71
Goldenrod.
Q. What are your plans for the future concerning 314 R.R. 2 at 76
Goldenrod?
A. It's always been our plan to return there to live there.
Q. Are there factors that are in your decision about when R.R. 2 at 77
you will return to 314 Goldenrod to live?
A. So one of the factors was our daughter's education.

42
Another factor is my parents. They are elderly, they're in
their late 70's, and they live less than two miles away. So
it's always been our hope to be back with family.
Something else that has weighed very heavily is that we
have an only child. So all she has is her cousins. And they
all live here. There's a few that live in Corpus Christi, a
few hundred miles away, but certainly that's closer than
Chicago. So for all those reasons, we've always had in
mind to return to Houston to live in our home.
Q. And how do you like Houston as a place to live? R.R. 2 at 78
A. We've always liked it.
Q. And so how do you like living in Chicago? Id.
A. It's fine. It's a very expensive city to live in. So all the
wonderful things you hear about, well, you have to be able
to afford them.
Q. So, let's talk about that. The cost of living? R.R. 2 at 79
A. Yes, it's incredibly high....living in Houston would be
rent free. We would own it outright and that would lower
our budget significantly....
Q. Would you have any rent -- would you have a rent R.R. 2 at 79-80
expense at all if you moved back to your home at 314
Goldenrod?
A. No, we would not.
Dr. Noriega testified at length about what it means to be a R.R. 2 at 80-82.
tenured professor and why he had to teach at another
university for a certain amount of time before trying to
come back to the Houston to teach at University of
Houston.
Dr. Noriega testified that getting a job at the University of R.R. 2 at 82.
Houston would fit into his "plan" to come back to
Houston.

On cross examination, Dr. Noriega testified as follows:
Cross Examination Testimony from Dr. Jaime Noriega Record Cite
Q. In your affidavit you testified that...we did not abandon R.R. 2 at 93

43
the property as our homestead just because we changed the
tax exemption. Did I read that right?
A. Yes.
Q. You did not intend for 314 Goldenrod to be your R.R. 2 at 98
homestead with HCAD for homestead tax purposes on
March 4, 2014?
A. That is correct.
Q. 314 Goldenrod was also not designated as your R.R. 2 at 99
homestead with the Harris County Real Property Records
on March 4th, 2014, was it?
A. I do not believe so, no.
Q. And you admit that you and your family moved out of R.R. 2 at 99-100
314 Goldenrod sometime in 2006, correct?
A. Yes
Dr. Noriega testified that since moving to Chicago, no one R.R. 2 at 100
in his family has lived at 314 Goldenrod.
Dr. Noriega testified that since moving to Chicago, there Id.
have been times that 314 Goldenrod was vacant.
Dr. Noriega testified that since 2006, 314 Goldenrod has Id.
had tenants living there on and off.
Q. Your primary residence was in Chicago, Illinois on Id.
March 4, 2014
A. Yes.
Q. So you have to be in Illinois to conduct your job? Id.
A. Yes
Dr. Noriega testified that he lives in Chicago, his primary R.R. at 101-108.
address is in Chicago, his voter's registration card is in
Illinois, he has an Illinois driver's license, he spends most
of his non-working hours in his home in Chicago, he keeps
his clothing there, his bills are sent there, the address his
employers and daughter's school have is his Chicago,
Illinois address.
Q: So, you do not have any immediate plans to return to R.R. 2 at 114
Houston, do you?
A. Not immediate.
Q: You don't have movers backed or booked to move Id.

44
back?
A: No.
Dr. Noriega testified that he does not have a job located R.R. 115-116.
here in Houston.

Sonia Noriega's testimony was also full of statements regarding her intention

to move back and retire at 314 Goldenrod:

Direct Examination of Sonia Noriega
Ms. Noriega testified that she plans to come back to 314 R.R. 3 at 76
Goldenrod one day. She loves the location of 314
Goldenrod and standing on the roof to see all of Houston.
She always thought of rebuilding and having a New
Orleans style home there, retiring, and being near family.
Ms. Noriega and her husband plan to come back to R.R. 3 at 77.
Houston after their child finishes high school and goes to
college.
Ms. Noriega agrees with her husband's testimony Id.
regarding their intent to return to 314 Goldenrod.
Ms. Noriega's cell phone number still has a Houston area R.R. 3 at 81-82
code because "I plan to return."
Appellees' daughter also has a Houston cell phone number R.R. 3 at 82
because she knows "we're going to eventually come back
to Houston."

If the trial court's homestead law analysis in the Interlocutory Judgment is

correct and "the 'intent' element is a creature of the initial attachment of the

homestead designation, and is not something that fluctuates or goes away, thereby

destroying the homestead nature of the property" (C.R. at 66), all of the above

summarized testimony would have been wholly irrelevant to the homestead issue.
45
Because that testimony could not have been relevant to the initial attachment of the

homestead designation, the testimony would only be relevant to prove that the

Noriegas did not abandon their alleged homestead exemption when they moved

from 314 Goldenrod. There is no other purpose for presenting that evidence as it

did not go to prove any element required to show the initial attachment of

homestead exemption in 1994 or wrongful execution claim. Since there is no cause

of action pled by Appellees where testimony regarding ‘moving away from their

home,’ their ‘intent to return to their home sometime in the future’, or ‘renting the

home to tenants’ is remotely relevant, and that testimony goes directly to whether

Appellees abandoned their alleged homestead, it is clear that ‘whether the alleged

homestead was abandoned when Appellees moved to Chicago, Illinois’ was one of

the main issues being tried.

The case law has found that once a homestead claimant moves from

property which has been previously impressed with the homestead character, the

question of whether such property constitutes a homestead is dependent primarily

upon the intention of the claimant. McMillan v. Warner 38 Tex. 410, 411

(Tex.1873); West v. Austin National Bank (San Antonio Tex.Civ.App.1968) and

Eggemeyer v. Eggemeyer, 623 S.W.2d 462, 465 (Tex. App - Waco, 1981, writ

dism'd). Because disproving that Appellees abandoned their homestead when they

moved away from it was the only possible purpose for their counsel to have

46
elicited testimony regarding their intentions after they moved to Chicago and

whether they intended to return to 314 Goldenrod in the future, the abandonment

issue was tried by consent. Likewise, since all of the above testimony was

presented at trial, without objection, and it could have only gone to support the

abandonment issue, any defects in the pleading (as alleged by the trial court, not

either of the parties), should be waived. Ingram v. Deere, 288 S.W.3d 886, 893

(Tex.2009) (“When both parties present evidence on an issue and the issue is

developed during trial without objection, any defects in the pleadings are cured at

trial, and the defects are waived.”).

c. Evidence regarding 'temporary leasing' shows that whether the
alleged homestead status of 314 Goldenrod was abandoned was at
issue.

By eliciting testimony on the alleged temporary renting and not objecting to

the jury instruction on temporary renting, Appellees showed that they knew the

issue being tried was whether 314 Goldenrod had lost its homestead character by

way of abandonment when they moved to Chicago and rented 314 Goldenrod out

to tenants. Question 2 had the following instruction:

Temporary renting of a homestead does not, by itself,
change its homestead character if the homestead claimant
has not acquired another homestead. C.R. at 60.

Texas courts have consistently linked 'abandonment' with whether the

property was temporarily - or permanently leased to others. It is true that

47
temporary renting of the homestead does not, by itself, constitute abandonment.

Drake Interiors, L.L.C., v. Thomas, 433 S.W.3d 841, 847-48 (Tex.App. - Houston

[14th Dist.] 2014, no pet.); Hollifield v. Hilton, 515 S.W.2d 717, 721

(Tex.Civ.App.-Fort Worth 1974, writ ref'd n.r.e.). It is axiomatic that if temporary

leasing of a homestead cannot, by itself, constitute abandonment, permanent

leasing of a homestead can constitute abandonment. In fact, since before 1908,

Texas Courts have consistently held that one who rents a section of his property

continuously to others, abandons that portion of his property for purposes of the

homestead laws. Autry v. Reasor, 102 Tex. 123, 113 S.W. 748 (1908). See also,

Blum v. Rogers, 78 Tex. 530, 15 S.W. 115, 117 (1890); Uvalde Rock Asphalt Co.

v. Warren, 127 Tex. 137, 91 S.W.2d 321, 324 (1936); Yates v. Home Building &

Loan Co., 103 S.W.2d 1081, 1085 (Tex. Civ. App. 1937); Texas Building &

Mortgage Co. v. Morris, 123 S.W.2d 365, 371 (Tex. Civ. App. 1938); and Long

Bell Lumber Co. V. Miller, 240 S.W.2d 405, 406 (Tex. Civ. App. – Amarillo 1951,

no writ).

Federal Courts, when interpreting Texas state law, have also held that

continuous renting of a parcel of property does not make a homestead. Perry v.

Dearing, 345 F.3d 303, 318 (5th Cir. 2003); In re Brown, 78 B.R. 486, 487

(Bankr. N.D. Tex 1987) (stating that Texas “case law does not regard the

continuous rental of farmland as a use “for the purposes of a home.”) These cases

48
hold that by permanently renting the property to others, the owners surrender

possession and control of the property. See, e.g., Texas Building & Mortgage Co.

v. Morris, 123 S.W.2d 365, 371 (Tex.Civ.App.1938). In so doing, they evince an

intention to abandon it for homestead purposes. Id. Thus, the renting of the

homestead, prolonged absence, and other circumstances and conduct of the owner

of a homestead, are proper subjects to be considered in determining the question of

abandonment. Carver v. Gray, 140 S.W.2d 227, 231(Tex. Civ. App. —Amarillo

1940, writ dism'd judgmt. cor.) (emphasis added). Whether a debtor temporarily

rented out portions of his homestead property, or whether he did so permanently in

such a manner as to abandon property as his homestead, is a question of fact under

Texas law, on which the party opposing the homestead claim carries burden of

proof. In re Norris, 421 B.R. 782, 790 (S.D.Tex. 2009) (relying on Perry, which

interpreted long-standing Texas laws regarding 'temporary leasing'). Given these

cases and the evidence elicited by Appellees at trial, it should have been

abundantly clear to the trial court that whether Appellees’ abandoned their

homestead by continuously renting it out to others was tried by consent.

1. Evidence was presented regarding the rental agreements.

Appellants met that burden by presenting evidence of the permanent renting

of 314 Goldenrod from 2006 to present by and through the testimony of the

Appellees, Dr. Noriega (See chart in Subsection B), Ms. Noriega (See chart in

49
Subsection B), the tenant, Brandi Brown, and the Appellants, Elizabeth Lousteau,

and Brett Clanton. Appellants even elicited testimony through the current tenant,

Brandi Brown, that her lease could go on forever. R.R. 3 at 63. No objection was

made to any of those lines of questioning that could have preserved a challenge to

the testimony on appeal.

Furthermore, Appellees offered their own testimony, as well as testimony

from the current tenant at 314 Goldenrod, that went directly to the 'temporary

renting' and 'abandonment' issues. Dr. Noriega testified that they rented 314

Goldenrod to tenants on and off throughout the years since they moved to Chicago.

R.R. 2 at 100. He further testified that it was vacant at times, as well. Id.

Clearly, the only reason to explain to a jury, by way of jury instructions, that

a 'temporary leasing' does not mean the homestead status was abandoned is to help

the jury understand what constitutes abandonment. Given this instruction and the

jury's finding on whether 314 Goldenrod remained the homestead of Appellees in

2014, it would have been more reasonable and in line with the Texas Constitution

and the Texas Rules of Civil Procedure, for the trial court to determine that the jury

concluded that 314 Goldenrod was permanently leased, and thus, abandoned,

rather than disregarding the jury's answer to Question 2 altogether.

2. The jury was instructed on how a temporary rental affects a
homestead designation.

50
 Even further, if the trial court's justification that the "intent" element only

applies to the initial attachment of a homestead, then the need for an instruction on

'temporary leasing' would have been moot. Since the instruction on temporary

leasing was provided to the jury, without objection, one reasonable explanation of

the jury’s findings is that the jury determined that 314 Goldenrod was Appellees’

homestead when they bought it in 1994, but that it ceased being their homestead

when they moved to Chicago and never returned. Clearly, the jury found that it

was not Appellees’ homestead in 2014. In Houston Chronicle Publishing Company

v. Allen, the Court of Appeals in Beaumont set forth the following rule: "The

determination of whether or not the renting is temporary or permanent is dependent

upon the intent of the head of the family as to whether or not he will again use the

property as a homestead. If it be his intent to again use the property as a

homestead, the rental is temporary; but if it be his intent not to again so use it, then

it is permanent; and this is so without reference to the length of time covered by

the rental contract."6 Houston Chronicle Pub. Co. v. Allen, 70 S.W.2d 482, 484

(Tex. Civ. App.—Beaumont 1934, no writ). Where surrender of use and

occupancy of homestead property to tenant is with intent that property shall not

6
Appellants note that the trial court was also mistaken when it alleged in the Interlocutory
Judgment that "the 'intent' element is a creature of the initial attachment of the homestead
designation, and is not something that fluctuates or goes away, thereby destroying the homestead
nature of the property." The case law clearly indicates that there in an 'intent' element applied
when determining whether a lease was temporary or permanent.
51
again be used as homestead, abandonment is complete, though term covered by

rental contract is for short period of time. Id.

Since the instruction of 'temporary renting' was included in the Charge - and

not objected to by Appellees - it is clear that the issue of whether Appellees

abandoned their alleged homestead by moving to Chicago and continuously

leasing it to tenants was tried by consent. Therefore, the trial court erred when it

disregarded Question 2 and determined that whether Appellees abandoned their

homestead was not tried by consent. The judgment should be reversed and this

Court should render a new judgment that accurately reflects the jury's findings --

that 314 Goldenrod was not Appellees' homestead on March 4, 2014.

d. Appellees did not preserve error by either objecting to the
evidence, objecting to the jury charge, or objecting to the jury
findings regarding whether 314 was Appellees' homestead in
2014, therefore, any objections were waived.

The trial court should not have disregarded Question 2 because Appellees

failed to preserve error by objecting to it on any ground including, but not limited

to, fault in pleading. Ingram, Supra.; Sage Street, Supra. Furthermore, Appellees

did not object during the trial when testimony was elicited from a witness about

whether 314 Goldenrod was Appellees' homestead in 2014, whether Appellees had

an intent to return to 314 Goldenrod in the future, or the temporary/permanent

leasing of 314 Goldenrod. Failure to object to testimony at the time of introduction

or at any other time during the trial is fatal. TEX.R.EVID. 103(a)(1). “In order to
52
preserve a complaint for appellate review, a party must have presented to the trial

court a timely request, objection or motion ...” Clark v. Trailways, Inc., 774

S.W.2d, 644, 647 (Tex.1989). The evidence in the reporter's record shows that all

parties presented evidence regarding abandonment without objection and that the

defense was tried by consent of all parties; therefore, it was not waived and was

properly decided by the jury.

1. Appellees had no objection to the testimony.

There was no evidence in the record that would indicate Appellees

challenged the admission of evidence or testimony regarding Appellees'

abandonment, intent to return, or their rental of 314 Goldenrod, therefore any

argument that abandonment was not tried by consent is waived. If - according to

the trial court - intent only applies to the initial attachment of the homestead

designation, Plaintiffs should have objected to all testimony regarding the

designation of the property after it was initially dedicated as Plaintiffs' homestead

in 1994. After all, any testimony elicited after Appellees testified regarding the

alleged initial dedication of the homestead would have not been relevant

unless whether Appellees intended to abandon their alleged homestead was at

issue.7 The record shows that no such objections were made. Appellees clearly did

7
Please note that there was no testimony regarding when Appellees initially moved into 314
Goldenrod in order to "occupy" it. Therefore, there was no evidence presented to the jury
regarding "occupancy," which is a required element in order to establish homestead.
53
not object to any testimony regarding their alleged 'intent to return' or lack of

'intent to return' as it was in their direct testimony and no objection was asserted.

Likewise, Appellees did not object to any testimony about the leasing of 314

Goldenrod to Brandi Brown, and others -- which also goes directly to whether

Appellees abandoned their homestead after they moved to Chicago in 2006.

2. Appellees had no objections to the Jury Charge.

In fact, Question 2 was proposed by Appellees in their Proposed Jury

Charge. C.R. at 52. In fact, the title of that proposed question was "Continuing

Homestead". Id. When asked by the Court: "All right. Moving on to Question 2.

Plaintiff, any objection?" Appellees' responded: "No, Your Honor, we have no

objections to Question 2 or the instructions." R.R. 2 at 122. It is well settled in this

State that where no objection is made to a defective submission of a controlling

issue constituting a component element of a ground of recovery or a defense . . .

failure to object is considered as a waiver of the defective submission of such

issue. The applicable rule is Rule 274 of the Texas Rules of Civil Procedure,

which states in part:

A party objecting to a charge must point out distinctly the
objectionable matter and the grounds of the objection.
Any complaint as to a question, definition, or instruction,
on account of any defect, omission, or fault in pleading,
is waived unless specifically included in the objections.

54
TEX. R. CIV. P. 274. (emphasis added); see also Spencer v. Eagle Star Ins. Co. of

Am., 876 S.W.2d 154, 157 (Tex. 1994); Aero Energy, Inc. v. Circle Drilling Co.,

699 S.W.2d 821, 822 (Tex. 1985); Allen v. American Nat’l Ins. Co., 380 S.W.2d

604, 609 (Tex. 1964). This rule is largely the restatement of a statutory provision in

existence at the time the Rules of Civil Procedure went into effect. In discussing

the practice, Chief Justice McClendon, speaking for the Austin Court of Civil

Appeals in Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922, no wr.,

(1936), said:

‘Where, however, the ground (of recovery or defense) is
submitted, however erroneously or incompletely, the
parties are thereby put upon notice that the jury's answers
to the issues actually submitted will form the basis of the
court's judgment thereafter to be rendered thereon. It then
becomes the duty of each party to point out errors of
omission or commission, or be held estopped from
thereafter urging them.’ (Italics supplied.)

Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922, 930 no wr., (1936).

Therefore, this Court should not have disregarded the jury's finding to jury

question number 2, as it was properly submitted, not objected to, and ample

evidence was presented at trial to support the jury's finding on it. Clearly,

Appellees were put upon notice that the jury's answers to the issues actually

submitted would form the basis of the court's judgment. Their failure to object to

its submission should have been deemed a waiver by the trial court. Allen v.

American National Insurance Company, 380 S.W.2d 604, 609 (Tex. 1964) (where
55
no objection is made to a defective submission of a controlling issue constituting a

component element of a ground of recovery or a defense and a judgment is

rendered thereon, such judgment will not be reversed because the failure to object

is considered as a waiver of the defective submission of such issue). Because the

Appellees failed to object to Question 2, the trial court should not have disregarded

it on the ground that it is immaterial, that it goes to an alleged unpled issue or

defense, or for any other reason, per Rule 274 of the Texas Rules of Civil

Procedure.

3. There were no objections to the Jury's finding in Question 2.

Likewise, Appellees did not object to the jury's finding in Question 2 before

the jury was discharged. Texas courts have held that an objection to conflicts in the

jury's answers must be made before the jury is discharged to preserve the issue for

appeal or that objection is waived. Sears, Roebuck & Co. v. Kunze, 996 S.W.2d

416, 423 (Tex.App.-Beaumont 1999, writ denied); Roling v. Alamo Group (USA),

Inc., 840 S.W.2d 107, 110 (Tex.App.-Eastland 1992, writ denied); see also TEX. R.

CIV. P. 295 (authorizing trial court to direct jury to reform judgment if questions

are in conflict). Additionally, taking one or more of those steps is the only way

Appellees could have preserved their challenge or given notice to the trial court (or

appellate court) that they challenge the jury's finding. Cecil v. Smith, 804 S.W.2d

227, 231 (Tex. Civ. App – Amarillo 1940, writ dism’d judgmt. cor.); Neller v.

56
Kirschke, 922 S.W.2d 182, 187 (Tex. App. – Houston [1st Dist.] 1995, writ denied).

Because Appellees made no objections during trial, the Charge Conference, before

the jury was discharged, or in any post-judgment pleadings, the trial court erred in

disregarding jury question number 2, as the issue of abandonment was obviously

tried by consent.

Because the abandonment issue was on the face of both parties' pleadings at

the time of trial, the fact that the evidence was presented at trial regarding 'intent to

return' and whether 314 Goldenrod was allegedly temporarily leased when

Appellees moved to Chicago, Appellees' lack of objections to the abandonment

evidence at any time, a reversal of the trial court's Interlocutory Judgment is

necessary. Thereafter, this Court should render a verdict that comports with the

jury's finding, that 314 Goldenrod was not the homestead of Appellees when it was

executed on in 2014.

C. The trial court erred in disregarding the jury’s finding on
question number 2, as it was material.

i. Standard of Review

When a trial court’s ruling to disregard a finding is based on a legal

conclusion, the appellate court’s review is de novo. Houston Lighting & Power Co.

v. City of Wharton, 101 S.W.3d 633, 638 (Tex. App.—Houston [1st Dist.] 2003,

pet. denied) Compass Bank v. MFP Fin. Services, Inc., 152 S.W.3d 844, 854 (Tex.

App.—Dallas 2005, pet. denied). A jury finding is immaterial only if the question

57
should not have been submitted or if the question, though properly submitted, was

rendered immaterial by other findings. Salinas v. Rafati, 948 S.W.2d 286, 288

(Tex. 1997); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157

(Tex.1994) (citing C & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194

(Tex.1966)). Therefore, the review of the trial court’s disregard of the jury finding

as immaterial is de novo.

ii. The record shows that the jury’s finding was material, thus the
trial court erred in disregarding jury’s finding to question
number 2 as immaterial.

The appellate court should reverse the trial court's Interlocutory Judgment

and render a verdict that reflects the jury's finding in Question 2 because a de novo

review of the pleadings and the evidence presented at trial shows that whether 314

Goldenrod was Appellees' homestead on March 4, 2014 when the execution took

place was material. See Testimony Chart in Subsection B herein. Question 2 was

not only material, it went to the heart of the dispute. A fact is “material” if it affects

the ultimate outcome of the lawsuit under the governing law. Acad. of Skills &

Knowledge, Inc. v. Charter Sch., USA, Inc., 260 S.W.3d 529, 534 (Tex. App.-Tyler

2008, pet. denied); Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.-

Tyler 2007, pet. denied).

This Court should follow the Supreme Court when it ruled, in Spencer v.

Eagle Star Inc. Co. of Am., that a jury question was material because "it was the

58
heart of the Spencers' case." Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d

154, 157 (Tex. 1994). In Spencer, the Supreme Court ultimately found that since

the jury question at issue was material, the trial court could not disregard the jury's

answer and render judgment notwithstanding the verdict. In the present case, and

by virtue of Appellees' pleadings, their testimony, and the fact that they submitted

Question 2, without objection, everyone knew that the material issue to be decided

by the jury is if 314 Goldenrod was the Appellees' homestead on March 4, 2014. In

fact, Appellees' opening statement admitted that is the issue when counsel told the

jury that their job is to clarify whether 314 Goldenrod is Appellees' homestead.

R.R. 2 at 6. Counsel did not ask the jury to find that 314 Goldenrod was Appellees'

homestead in 1994 because the execution took place in 2014! Simply put, the issue

to be decided was not whether 314 Goldenrod was their homestead in December of

1994. Because jury question number 2 goes to the heart of the declaratory

judgment action, it should not have been found to be immaterial by the trial

court.

The Spencer Court found that there are only three instances where a question

can be found to be immaterial:

1. It should not have been submitted;

2. When it was properly submitted but has been rendered immaterial by
other findings; or

59
 3. When it calls for a finding beyond the province of the jury, such as a
question of law.

Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). The

Supreme Court has also held that a question may be immaterial if the finding is

found elsewhere in the verdict or cannot change the verdict’s effect. City of

Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). Courts have typically

found that jury answers are immaterial when a predicate question renders a later

finding immaterial. For example:

- a question negating liability makes a damage finding
immaterial;

- a statute or law precludes a finding on an issue;

- an affirmative defense vitiates a finding of liability, e.g.
ratification renders finding of fraud immaterial;
- an affirmative answer on an alternate theory of relief
renders a negative answer on another theory immaterial;
- answers on general questions are disregarded in favor of
specific answers; and finally,

- a finding may be immaterial if not pled or tried by
consent and the question was properly objected to before
being submitted to the jury.

See e.g. Cambio v. Briers, 2015 WL 2229274, at 3 (Tex. App.—Houston [1st

Dist.] May 12, 2015, no. pet. h.) (holding answer on questions on predicate

questions rendered following questions immaterial); see also Billy Smith

Enterprises, Inc. v. Hutchison Const., Inc., 261 S.W.3d 370, 377-78 (Tex. App.—

Austin 2008, pet. dism'd) (holding that finding of violation of ‘Prompt Pay Act’
60
was immaterial if no money was owed); see also Silvio v. Boggan, 01-10-00081-

CV, 2012 WL 524420, at *3-4 (Tex. App.—Houston [1st Dist.] Feb. 16, 2012, pet.

denied) (holding finding that deed was valid made question regarding

consideration immaterial); see also Abetter Trucking Co. v. Arizpe, 113 S.W.3d

503, 508 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding court may

disregard finding of duty of good faith if there is a finding of agency as both

established a fiduciary relationship); see also Allied Mgmt. Corp. v. Houston Poly

Bag, Inc., 01-88-00643-CV, 1989 WL 66200, at 3-4 (Tex. App.—Houston [1st

Dist.] June 8, 1989, no writ) (holding that court may disregard finding negating

estoppel when jury found failure to timely perform because failure to timely

perform is specific while estoppel is general); see also Coombs v. Fazzio, 386

S.W.2d 650, 653 (Tex. Civ. App.—San Antonio 1965), writ refused NRE (Apr. 28,

1965) (finding court may disregard where submission was objected to before sent

to jury and therefore not pled or tried by consent).

The record shows that none of the above examples occurred in this case. To

the contrary, Question 2 goes directly to the dispute, which is: Was 314 Goldenrod

the Noriega’s homestead when the execution took place on March 4, 2014?

Because this was, arguably, the only issue being tried, it is axiomatic that whether

Appellees' abandoned their alleged homestead when they moved to Chicago was

obviously an issue. Not only that, but the abandonment issue was present in the

61
parties' pleadings, was part of Plaintiffs’ opening statement, was repeatedly

referred to by both parties in the evidence throughout trial, was testified to by the

Appellees and was part of the submission to the jury in both of the instructions

(through the instruction of temporary rental and by Question 2 regarding the status

of the homestead in 2014). See Testimony Chart in Section B herein. The jury

definitively and correctly answered this question in the negative and such finding

was dispositive in this case.

a. The pleadings and the evidence at trial supported the findings in
Question 2.
Because the pleadings and the evidence presented at trial support the jury's

findings in Question 2, the trial court should have read the two jury questions

consistently with one another, rather than disregarding Question 2. Wang v.

Gonzalez, 2013 WL 174576, at 8 (Tex. App.—Houston [1st Dist.] Jan. 17, 2013,

no pet.).

In Wang v. Gonzalez, this Court dealt with a trial court's Judgment

Notwithstanding the Verdict ("JNOV") regarding two jury questions that pertained

to the ownership of an excavator. Question Number One asked, “Did [Wang] have

an agreement with Jose Gonzalez for Jose Gonzalez to retain ownership of the

excavator in question after completion of the demolition of [Wang's] motels?” The

jury answered “no.” Question Number Eleven asked the jury to determine the

percentage of Wang's and Gonzalez's respective ownership interests in the

62
excavator. The jury responded “50%” for each party. Wang moved for a JNOV on

the grounds that the jury's answer to Question 1 made their answer to Question 11

immaterial. The trial court disagreed, as did this Court. In doing so, this Court

determined that since it was possible for the jury's answers to these two questions

to be read consistently with each other, the trial court was correct in not

disregarding the jury's findings. In support of its determination, this Court relied on

Shamoun v. Shough, which held "[W]e may not strike down jury answers on the

basis of conflict if there is any reasonable basis on which they can be reconciled."

See Shamoun v. Shough, 377 S.W.3d 63, 69 (Tex.App.-Dallas 2012, pet. denied).

On this issue, this Court ultimately concluded that, "because some evidence

supported the jury's finding... the trial court properly denied Wang's motion for

JNOV concerning this finding." See Cherokee Water Co. v. Freeman, 145 S.W.3d

809, 813 (Tex. App.—Texarkana 2004, pet. denied); Trinity Indus., Inc. v.

Ashland, Inc., 53 S.W.3d 852, 863 (Tex. App.—Austin 2001, pet. denied); and

Wang, 2013 WL 174576 at 7.

In the present case, no JNOV, motion to set aside, or motion for new trial

was filed. In fact, review of the record reveals that all of the parties were satisfied

with the jury’s findings. Because no objections were raised or post-judgment

motions filed, the effect of the trial court's disregard of a material jury finding is

akin to a sua sponte JNOV. If the trial court found any inconsistency with the

63
jury's answers to Question 1 and Question 2, it could have certainly reconciled the

two questions with one another, as the trial court (and this Court) did in Wang, by

determining that 314 Goldenrod may have been Appellees' homestead in

December of 1994, but that it ceased being their homestead in 2014 because

Appellees abandoned the homestead by moving to Chicago with no immediate

intent to return and/or by continuously leasing 314 Goldenrod to tenants.

The conclusion that Question 2 was material is inevitable by a simple review

of the record in this case. From early on in the lawsuit, Appellees made certain that

Question 2 had a logical connection with the consequential facts to their case. On a

de novo review of the pleadings, the testimony at trial, and the evidence presented

to the jury, this Court should find that Question 2 was material and should not have

been disregarded. Therefore, this Court should reverse the Interlocutory Judgment

and render a declaratory judgment that declares 314 Goldenrod to not be

Appellees' homestead on March 4, 2104 on the basis that Question 2 was material

and should not have been disregarded.

D. The trial court erred in submitting Question 1 to the Jury.

i. Standard of Review.
Submission of questions to the jury is a matter within the discretion of the

trial court. Cole v. Crawford, 69 Tex. 124, 5 S.W. 646, 648 (1887); Ked-Wick

Corp. v. Levinton, 681 S.W.2d 851, 855 (Tex. App. – Houston [14th Dist.] 1984, no

64
writ). A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner, or if it acts without reference to any guiding rules or principles. Downer v.

Aquamarine Operators, Inc.,701 S.W.2d 238, 241–42 (Tex.1985); A trial court

has wide discretion in submitting instructions and jury questions. Id. This

discretion is subject only to the requirement that the questions submitted must (1)

control the disposition of the case; (2) be raised by the pleadings and the evidence;

and (3) properly submit the disputed issues for the jury's determination. TEX.R.

CIV. P.277 and 278; Moore v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App. – Tyler

206, pet. denied) ; see also Shupe, 192 S.W.3d at 579 (“When a trial court refuses

to submit a requested instruction on an issue raised by the pleadings and evidence,

the question on appeal is whether the request was reasonably necessary to enable

the jury to render a proper verdict.”).

ii. Question 1 was not a controlling question.

The trial court erred in submitting Question 1 to the jury because it was not

supported by the pleadings and, thus, was not a controlling question. Trial courts

are required to submit the controlling questions raised by the pleadings and the

evidence, and once the controlling questions have been submitted, does not err in

refusing to submit other questions and various shades of the same question. Sinko

v. City of San Antonio, 702 S.W.2d 201, 208 (Tex.App.—San Antonio 1985, writ

ref'd n.r.e.); TEX.R.CIV.P. 278. Under TEX.R.CIV.P. 277 and 279, all parties are

65
entitled to have controlling issues that are raised by the written pleadings and

evidence submitted to the jury. Dennis Weaver Chevrolet, Inc. v. Chadwick, 575

S.W.2d 619 (Tex.Civ.App.—Beaumont 1978, writ ref'd n.r.e.)(emphasis added). A

controlling question is one which, if answered favorably on the theory in which it

is presented, will support a basis for judgment for the proponent of the issue.

Gomez v. Franco, 677 S.W.2d 231, 234 (Tex.App.—Corpus Christi 1984, no writ).

Whether 314 Goldenrod was Appellees' homestead in 1994 had no bearing on the

declaratory judgment action. Therefore, the answer to Question 1, alone, could not

have formed the basis for the declaratory judgment, as plead by Appellees.

The only issue that was to be decided by the jury at trial was the declaratory

judgment issue, which asked the trial court to declare 314 Goldenrod, Houston,

Texas as Appellees' homestead, thus exempt from seizure and execution. C.R. at

14 (Paragraph 34). Despite the lack of support in the pleadings, the trial court

submitted Question 1, which asked whether 314 Goldenrod was Appellees'

homestead in December of 1994. C.R. at 59. Furthermore, it would not have

mattered the status of 314 Goldenrod in 1994, as the property was not executed on

until 2014! As evidenced by the reporter's record in this case, a lot can happen in

20 years. Since the declaratory judgment action was not filed until 2014, whether

314 Goldenrod was Appellees' homestead in 1994 would not have controlled the

outcome of the declaratory judgment action. The controlling question posed to the

66
jury is found in Question 2, which asked whether 314 Goldenrod was Appellees'

homestead on March 4, 2014, the date that Appellants executed on it.

Appellants properly objected to Question 1, during the Charge Conference,

by objecting to the ground that:

"Yes, Judge, we have an objection to Question No. 1 as
this declaratory judgment action that was tried today was
always expressed by Counsel and by the Court that this
case would be regarding whether or not 314 Goldenrod,
Houston, Texas 77009 was the Noriegas' homestead on
March 4th, 2014. This was not a declaratory judgment to
declare whether it was their homestead in December of
1994. Therefore, this question is improper and it's
misleading to the jury. And I'm at a loss as to what the
Court is planning to do with this question once it's
answered. As for the -- there's no basis in law or fact for
this question." R.R. 3 at 120.
The trial court overruled the objection. R.R. 3 at 122. Because declaring

314 Goldenrod as Appellees' homestead was not raised by the pleadings and could

not have determined the declaratory judgment action, as plead, it was abuse of

discretion for the question to be submitted to the jury. Johnson v. Whitehurst, 952

S.W.2d 441, 449 (Tex.App. - Houston [1st Dist.], writ ref;d n.r.e.).

iii. The homestead status of 314 Goldenrod in 1994 was not in
dispute.
While the homestead status of 314 Goldenrod when Appellees purchased it

in 1994 may have been relevant to proving the initial homestead status of the

property, that issue was most definitely not the ultimate issue in dispute. After all,

67
even if Question 1 were the only issue submitted to the jury, the trial court still

could not have declared 314 Goldenrod as Appellees' homestead in 2014, when the

declaratory judgment action was filed because 'homestead' is a fact issue for a jury

to decide. Appellees brought the claim for declaratory relief on the grounds that the

execution sale to Appellants should be set aside, as 314 Goldenrod is their

homestead.8 C.R. at 14. As the execution sale took place on March 4, 2014, it is

axiomatic that March 4, 2014 is the crucial date for which Appellees need to have

314 Goldenrod declared as a homestead! Therefore, the trial court erred in

submitting Question 1 to the jury, as the homestead status of 314 Goldenrod in

1994 was not in dispute.

iv. The trial court's submission of Question 1 to the jury caused the
rendition of an improper judgment.
Because, in the judgment, the trial court chose to consider the jury's finding

in Question 1 and disregard the jury's finding in Question 2, the submission of

Question 1 clearly caused the rendition of an improper judgment. Therefore, the

judgment should be reversed. Furthermore, since Question 2 was properly

submitted, was not objected to, goes to the heart of the dispute, and is dispositive,

8
It is to be noted that while Appellees appear to contend that a court is permitted to set aside a
sale in a declaratory judgment action, Appellants have found no statute or case law to support
this theory of recovery. To the contrary, the Declaratory Judgment Act was designed to permit
courts to declare rights, status, and other legal relations. See TEX.CIV. PRAC & REM. CODE
§37.002(b). It appears that a cause of action to set aside the execution sale would have needed to
be filed in order to set aside the sale of 314 Goldenrod. No such cause of action was filed.
Furthermore, no such cause of action was tried to the jury. Therefore, the cause of action was
waived.
68
this Court should render a judgment declaring that 314 Goldenrod was not

Appellees' homestead when it was executed on in 2014.

E. The trial court erred by not issuing a final judgment.

i. Standard of Review

A trial court's failure to render a final judgment is reviewed as an abuse of

discretion. In re Educap, Inc., 2012 WL 3224110, at *3 (Tex. App.—Houston [1st

Dist.] Aug. 7, 2012, no pet.).

ii. The trial court erred by not issuing a final judgment after the
merits of the case had been tried to a jury and the jury rendered a
verdict.

The trial court erred by issuing an interlocutory judgment in an apparent

attempt to keep the cause of action for wrongful execution alive, though it was

waived by Appellees. Importantly, the trial court impliedly admitted its error when

it attempted to make the interlocutory judgment final by signing a sua sponte post

trial severance of the wrongful execution action. C.R. at 150 - 151. Had the cause

of action been properly severed or bifurcated before the trial, this measure would

not have been needed. The fact of the matter is that wrongful execution was on the

live pleadings at time of trial and the record shows no motion to bifurcate or - more

importantly - no orders severing/bifurcating it before trial commenced and the jury

rendered its verdict. Further, the record is clear that Appellees waived this cause of

action by failing to pursue it at trial or by seeking a finding from the jury regarding

69
wrongful execution. Accordingly, the cause of action for wrongful writ of

execution was waived by Appellees and the court should have issued a final

judgment instead of an interlocutory judgment.

a. Wrongful writ of execution was waived by Appellees.

Because all issues were either tried or waived, the Judgment should have

been final, not interlocutory. Thus, the trial court erred in the Interlocutory

Judgment when it stated: "Plaintiffs further wish to go forward on a claim for

damages for wrongful execution, which the Court will likely permit, subject to any

dispositive motions on that subject by Defendants." C.R. at 111.

During the Charge Conference, Appellees even discussed the wrongful

execution cause of action when their counsel stated that the "wrongful execution in

the supplemental petition was filed in July. So the declaratory judgment action was

filed before the TI was issued and before the cause of action seeking damages was

filed." R.R. 3 at 126. After acknowledging the cause of action, Appellees failed to

propose a question on it. C.R. at 100-107. Furthermore, during trial, when

Appellants attempted to call their previous counsel, Natalie Barletta to the stand to

testify regarding the wrongful execution claim (the steps she took to ensure 314

Goldenrod was not the Appellees' homestead before executing on it), Appellees

objected. R.R. 3 at 109-116. Counsel for Appellees stated: "So everything Ms.

Barletta did was to pursue execution on that judgment. And these are the

70
documents that Ms. Robak had that I objected to that are the writ of execution and

the notices and the constable's deed and so forth. All of that has to do with the

underlying judgment, which is -- I mean, it hadn't come in. It's not appropriate... "

R.R. 2. at 110-111.

The general rule is that the plaintiff has the burden to obtain affirmative

answers to jury questions as to the necessary elements of his cause of action. TEX.

R. CIV. P. 279; Ramos v. FritoLay, Inc., 784 S.W.2d 667, 668 (Tex.1990);

Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.1991).

If an entire theory is omitted from the charge, that theory of recovery is waived.

Strauss v. La Mark, 366 S.W.2d 555, 557 (Tex. 1963). The record shows no

motion or order to bifurcate the cause of action for wrongful writ of execution

prior to the verdict being rendered. Furthermore, Appellees did not submit a

question to the jury on this issue which was pled, and the jury did not determine

the claim of wrongful writ of execution. C.R. at 100-107. Respectfully, the trial

court may not now determine damages on a cause of action properly pled for but

not submitted to the jury. The Interlocutory Judgment should be reversed and a

final judgment e rendered in favor of Appellants that the claim for wrongful writ of

execution is denied as waived by Appellees.

71
 b. The trial court's actions have created piecemeal trial, which is
prohibited.

The law is clear that because Plaintiffs did not submit a jury question

regarding wrongful writ of execution, they waived that claim. Permitting this case

to go on after a jury trial would be against the long standing policy and practice

against “piecemeal trials.” Iley v. Hughes, 311 S.W.2d 648, 651 (1958). The

Supreme Court recognizes that the term 'piecemeal' is defined as “one piece at a

time; in pieces or fragments; or done, made or accomplished piece by piece, or in a

fragmentary way.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30, n. 29.

(Tex. 1994)(citing Webster’s Ninth New Collegiate Dictionary (1988)). The trial

court's issuance of an interlocutory judgment after a trial on the merits had been

conducted (and no bifurcation or severance order had been issued pre-trial) is

prohibited, or it would amount to a piecemeal trial.

In Iley, the Supreme Court said: “[T]he public interest, the interests of

litigants and the administration of justice [are] better served by rules of trial which

avoid a multiplicity of suits.” Id. Rule 174b allows a separate trial to avoid

prejudice (so usually on the issue of punitive damages). However, in the instant

case, there was no motion and no allegation of prejudice, to support a

separate/severed/bifurcated trial. The Supreme Court, in Transportation Ins. Co. v.

Moriel, stated that although it remained resolute that piecemeal trials should be

avoided, punitive damage cases should be the exception to the rule. Transportation
72
Ins. Co. v. Moriel, 879 S.W.2d at 30, n. 29. The present case is not a punitive

damages case; therefore the Moriel exception does not apply. Furthermore, without

any motion or order, there was no way Appellants could have been put on notice

before trial, or provided with an adequate opportunity to respond, to the wrongful

execution claim being tried separately (and pursuant to a separately signed order to

bifurcate). The actions of the trial court in, sua sponte, ordering that the Appellants

try the merits of this case more than once, without notice or good cause -

needlessly increasing their cost in attorney fees - is abuse of discretion. Thus, the

Interlocutory Judgment should be reversed and rendered to be a final judgment.

F. The trial court erred by severing the wrongful execution claim
from the Judgment after trial.

In an apparent attempt to remedy the mistake made by signing an

interlocutory judgment after a trial on the merits, the trial court severed the cause

of action for wrongful writ of execution after trial. In doing so, the trial court

apparently ignored the fact that no motion to bifurcate the wrongful execution

claim was ever filed, no order bifurcating or severing wrongful execution was ever

signed, and Appellees waived this cause of action by not submitting a jury question

on it. Even further, no post-verdict motions were filed requesting any relief

regarding the waiver of the wrongful execution claim. The court erred because

severing a case after it has gone to a jury is prohibited, pursuant to Rule 41 of the

Texas Rules of Civil Procedure. In particular, Rule 41 provides as follows:
73
 Misjoinder of parties is not ground for dismissal of an action. Parties
may be dropped or added, or suits filed separately may be
consolidated, or actions which have been improperly joined may be
severed and each ground of recovery improperly joined may be
docketed as a separate suit between the same parties, by order of the
court on motion of any party or on its own initiative at any stage of
the action, before the time of submission to the jury or to the court if
trial is without a jury, on such terms as are just. Any claim against a
party may be severed and proceeded with separately.

TEX. R. CIV. P. 41(emphasis added). Therefore, since the sua sponte severance

took place after the time of submission to the jury, this Court should find that the

trial court erred. The severance should be disregarded by this Court and a final

judgment that provides a ruling that wrongful execution was waived in the jury

trial should be rendered by this Court.

G. The trial court erred when it awarded damages to Appellees.

The trial court erred by issuing damages/specific performance when the jury

verdict did not award damages. Simply put, the pleadings related to the declaratory

judgment action only, and asked the trial court to declare 314 Goldenrod as

Appellees' homestead. See Paragraphs 34 and 41 of Plaintiffs' First Amended

Petition. C.R. at 15. No suit to set aside an execution sale was filed or, more

importantly, presented to a jury. See, e.g., Inman v. Orndorff, 596 S.W.2d 236, 238

(Tex. Civ. App. – Houston [1st Dist.] 1980, no writ), Prudential Corp. v. Bazaman,

512 S.W.2d 85, 91 (Tex. Civ. App. – Corpus Christi 1974, no writ); Green v.

Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin 1993, no writ) (op. on reh'g).

74
Because no suit to set aside execution sale was filed, no jury questions regarding

damages were submitted to the jury, and that issue clearly was not tried by consent

(as no testimony regarding actual damages or specific performance was offered by

Appellees), awarding damages and/or specific performance was an abuse of

discretion by the trial court. Texas Rule of Civil Procedure 300 states:

The judgment of the court shall conform to the pleadings,
the nature of the case proved and the verdict, if any, and
shall be so framed as to give the party all the relief to
which he may be entitled either in law or equity.
TEX.R.CIV.PRO 300.

While the pleadings do pray for the court to set aside the sale of 314

Goldenrod, the only cause of action that was pled for by Appellees that could have

awarded actual damages or specific performance was the wrongful execution

claim, which was waived. The case presented to the jury was not regarding the

setting aside of an execution sale. The only case presented to the jury was the

declaratory judgment action regarding whether 314 Goldenrod is Appellees

homestead. Therefore, other than declaring that 314 Goldenrod was not Appellees'

homestead when it was executed on in 2014, there was nothing else to do.

Declaring that 314 Goldenrod is not Appellees' homestead is where the trial court

should have stopped. A declaratory judgment is a remedial action that determines

the rights of the parties and affords relief from uncertainty with respect to rights,

status, and legal relations. TEX. CIV. PRAC & REM. CODE ANN. § 37.002 (Vernon

75
2008); Tucker v. Graham Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. –

Austin 1993, no writ) Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin

1993, no writ). Thus, “a court of record, within its jurisdiction has power to declare

rights, status, and other legal relations whether or not further relief could be

claimed.” TEX. CIV. PRAC & REM. CODE ANN. § 37.003(a) (Vernon 2008). A

declaratory judgment is not available to settle legal disputes already pending before

the court. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990). As

such, every ruling after the declaration regarding the homestead status of 314

Goldenrod was erroneous, as the Appellees did not pursue their wrongful writ of

execution cause of action that allowed for damages or file a suit to set aside the

execution sale.

Instead, the trial court stated, in the Interlocutory Judgment, that "Next, with

respect to whether the Plaintiffs must now sue for the fair market value of the

home after the writ of execution sale, or may have the home returned, the Court

believes they are entitled to the return of the home." C.R. at 67. With all due

respect to the trial court, there was no trial on wrongful execution, no suit to set

aside the execution sale pled, no plea for damages under TEXAS CIVIL PRACTICE

AND REMEDIES CODE § 34.022, and no other cause of action presented to the jury

that would have awarded possession of 314 Goldenrod and all future rental

payments to Appellees. Even further, no liability was found by the jury that could

76
have awarded damages. Going beyond the suit for declaratory judgment, and

issuing a judgment awarding damages to Appellees, was a clear abuse of

discretion. The damages awarded (setting aside the sale, handing over the deed,

foregoing rental payments on the property) were all sought by Appellees in relation

to the bill of review action or the wrongful writ of execution, both of which were

not a part of the trial in this case. Because the trial court abused its discretion in

awarding any damages, or in the nature of specific performance (handing the deed

to 314 Goldenrod to Appellees) in the Interlocutory Judgment, this Court should

reverse the trial court's finding that the sale of 314 Goldenrod is set aside. This is

because 314 Goldenrod was not the homestead of the Appellees at the time of

execution, March 4, 2014.

H. Conclusion

In conclusion, the trial court erred in finding that Question 2 was immaterial

and should be disregarded. When a trial court has erred in entering a declaratory

judgment, it is the appellate court's duty to render such judgment as the trial court

should have rendered. See Lone Star Gas Co. v. Railroad Commission of Texas,

767 S.W.2d 709, 710 (Tex.1989); NRG Exploration, Inc. v. Rauch, 671 S.W.2d

649, 653 (Tex.App.—Austin, 1984, writ ref'd n.r.e.); Tall Timbers Corp. v.

Anderson, 370 S.W.2d 214 (Tex.Civ.App.1963), rev'd on other grounds, 378

S.W.2d 16 (Tex.1964). It is clear from the record, the Texas Constitution, the

77
Supreme Court’s mandates, the Texas Rules of Civil Procedure, and the case law

cited herein, that the trial court erred in rendering judgment in favor of Appellees

on the basis that abandonment was not tried by consent. Clearly, the pleadings, the

testimony and other evidence at trial showed that whether 314 Goldenrod was

Appellees' homestead on March 4, 2014 was material, as it went to the heart of the

case. Appellees certainly knew it was an issue to be tried, as they anticipated it in

their own pleadings. C.R. at 15. Furthermore, the issue was tried by consent of all

parties, as evidence of Appellees' move to Chicago, the leasing of 314 Goldenrod

while they live in Chicago, and their alleged 'intent to return' to 314 Goldenrod

show that whether 314 Goldenrod remained their homestead was presented by all

parties to the lawsuit, without objection. Lastly, the fact that the Appellees

proposed Question 2 and did not object to its submission to the jury or the

instruction about temporary renting shows that the issue was tried by consent.

Even further, this Court should find that the trial court erred in submitting

Question 1 to the jury as it was not a controlling issue and was not supported by

the pleadings or the law. The declaratory judgment action was not requesting that

the trial court declare 314 Goldenrod as Appellees' homestead in 1994. The trial

court was asked to declare 314 Goldenrod as Appellees' homestead when they filed

the declaratory judgment, in 2014. Furthermore, the facts are clear that the

declaration was sought after Appellants' executed on 314 Goldenrod on March 4,

78
2014. Therefore, the only way for Appellees to undo that execution was to have a

court declare that, at the time of the execution, 314 Goldenrod was Appellees'

homestead. Since Question 1 only asked whether 314 Goldenrod was Appellees'

homestead in 1994, it was not controlling and should not have been submitted.

Additionally, this Court should find that the trial court erred in signing an

interlocutory judgment, post-trial when no severance or bifurcation order had been

signed before trial commenced. The record shows that wrongful execution was in

the live pleadings at time of trial, and was thus, waived by Appellees' failure to

present evidence or submit a question on wrongful execution to the jury. C.R. at

18-21. Furthermore, the record shows no severance or bifurcation of the wrongful

execution case before trial commenced that would have justified the trial court's

finding that the cause of action was not waived by Appellees. Simply put, the

claim was not pursued by Appellees in the trial. Therefore, the trial court should

have found that the claim was waived.

Lastly, this Court should reverse the trial court's finding that the sale of 314

Goldenrod is set aside on the grounds that it was not the homestead of Appellees at

the time of execution. There was no liability question that would have given rise to

damages or specific performance. The only claim pursued in the trial was the claim

for declaratory judgment on whether 314 Goldenrod is Appellees' homestead.

Therefore, other than declaring 314 Goldenrod was not Appellees' homestead -

79
there was nothing else to do. Going beyond the suit for declaratory judgment, by

issuing a judgment awarding damages to Appellees, was a clear abuse of

discretion. The damages awarded setting aside the sale, handing over the deed,

foregoing rental payments on the property should be reversed, as the trial court

abused its discretion. Furthermore, Appellees should be required to return the

rental payments they have been receiving since January 1, 2015 to Appellants, as

they are the owners of 314 Goldenrod and should have been receiving the

payments but for the trial court’s erroneous Judgment.

VI. PRAYER

For all these reasons, Appellants, Elizabeth Lousteau and Brett Clanton

prays that this Court reverse the Interlocutory Judgment and render a judgment

finding that 314 Goldenrod was not Appellees' homestead on March 4, 2014 and

that Appellees take nothing by way of their claim for wrongful execution, as no

question on wrongful execution was submitted to the jury. TEX.R.APP.P. 43.2(c).

Furthermore, upon reversing the judgment for damages, the Appellants pray that

Appellees be ordered to remit all rental payments they received from the current

tenant from December 22, 2014 to the date of the signing of the reversal to

Appellants.9 Appellants further pray that they be awarded their appellate costs -

9
Please recall that even though Appellants filed numerous motions requesting that the trial court
set a supersedeas bond, each motion was denied. Therefore, Appellants could not supersede the
80
including preparation costs for the clerk's record and the reporter's record -- that

were incurred by Appellants pursuant to TEX.R.APP.P. 43.4.

Respectfully submitted,

CERSONSKY, ROSEN & GARCIA, P.C.

By: /s/ Marianne G. Robak
Marianne G. Robak
mgrobak@law-crg.com
State Bar: 24048508
M. H. Cersonsky
mhcersonsky@law-crg.com
State Bar: 04048500
1770 Saint James Place, Suite 150
Houston, Texas 77056
Telephone: (713) 600-8500
Fax: (713) 600-8585

Attorneys for Defendants,
Elizabeth A. Lousteau and Brett Clanton

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was forwarded to
all counsel of record on this 27th day of August, 2015, as follows:
Via electronic filing manager
Sarahjane “SJ” Davidson Swanson
Swanson Law Firm, PLLC
310 Main, Ste. 201
Houston, TX 77056

/s/ Marianne G. Robak
Marianne G. Robak

judgment during the pendency of this Appeal. To date, the amount of rental income lost is
$11,200.00.
81
 CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9, the undersigned hereby
certifies that, upon reliance of the word count of the computer program used to
generate the document, the word count for all sections, excluding the caption,
identity of the parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of the issues
presented, statement of jurisdiction, statement of procedural history, signature,
proof of service, certificate, certificate of compliance and appendix is: 20,168.

Marianne G. Robak
Marianne G. Robak

82
 APPENDIX
TAB STATUTE

1 Vernon’s Ann. Texas Consti. Art. 1, § 15

2 TX Rules of Civil Procedure, Rule 41

3 TX Rules of Civil Procedure, Rule 67

4 TX Rules of Civil Procedure, Rule 274

5 TX Rules of Civil Procedure, Rule 278

6 TX Rules of Civil Procedure, Rule 279

7 TX Rules of Civil Procedure, Rule 295

8 TX Rules of Civil Procedure, Rule 300

9 V.T.C.A., Civil Practice & Remedies Code § 34.022

10 V.T.C.A., Civil Practice & Remedies Code § 37.002

11 V.T.C.A., Civil Practice & Remedies Code § 37.003

12 V.T.C.A., Property Code § 41.005

13 TX Rules of Evidence, Rule 103

14 TX Rules App. Proc., Rule 43.2

15 TX Rules App. Proc., Rule 43.4

83
TAB 1
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