Opinion issued March 10, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00267-CV ——————————— DORIA GUTIERREZ, Appellant V. ROBERT DRAHEIM, Appellee
On Appeal from the County Court at Law No. 3 Bexar County, Texas1 Trial Court Case No. 384864
MEMORANDUM OPINION
Appellant, Doria Gutierrez, challenges the trial court’s rendition of summary
judgment in favor of appellee, Robert Draheim, in his forcible-detainer action
1 The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeal to this Court. See Misc. Docket No. 14–9074 (Tex. Mar. 18, 2014); TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer). against her.2 In four issues, Gutierrez contends that the trial court erred in granting
Draheim summary judgment, awarding him unpaid rent and attorney’s fees, and not
granting her motion to abate.3
We affirm in part and reverse and remand in part.
Background
Draheim filed, in a Bexar County justice court, a “Complaint for Forcible
Detainer,” seeking to evict Gutierrez from a home located at 3011 Eagle Ridge
Drive, San Antonio, Texas (the “property”). In his complaint, Draheim, who
identified himself as the owner of the property, alleged that although a district court,
on May 18, 2006, had “entered a judicial foreclosure of the property . . . against
Gutierrez [and] in favor of Draheim,” she did not vacate the property. Subsequently,
on April 5, 2012, Draheim purchased the property at a foreclosure sale at the Bexar
County Courthouse. Gutierrez had been first given proper notice to vacate the
property by constructive notice of judicial order on May 18, 2006, and then by public
2 Several different spellings of parties’ names appear in the record. Our style of the case is in accord with the trial court’s summary-judgment order. See Strobel v. Marlow, 341 S.W.3d 470, 471 n.1 (Tex. App.—Dallas 2011, no pet.). 3 We note that, in her brief, Gutierrez lists five “[r]eview [p]oint[s].” However, “[r]eview [p]oint [n]o. 5” does not actually appear to be a point of error. See TEX. R. APP. P. 38.1(f) (requiring appellant to present issues or points for review); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (appellant raises issue when she directs reviewing court to error); Point of Error, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “point of error” as “[a]n alleged mistake by a lower court asserted as a ground for appeal”).
2 notice of sale on March 7, 2012. In addition to possession, Draheim sought unpaid
rent, post-judgment interest, court costs, and attorney’s fees. In her answer filed in
the justice court, Gutierrez raised the affirmative defenses of statute of limitations
and laches. After a trial, the justice court entered judgment of possession in favor of
Draheim and ordered Gutierrez to pay him $1,800 in unpaid rent, $96 in court costs,
and $100 in attorney’s fees.
After Gutierrez appealed the judgment of the justice court to the county court
for a trial de novo, Draheim moved for summary judgment, asserting that he was
entitled to judgment on his forcible-detainer cause of action as a matter of law. In
her response to Draheim’s motion, Gutierrez again asserted the affirmative defenses
of statute of limitations and laches. After a hearing, the county court granted
Draheim summary judgment and ordered Gutierrez to surrender possession of the
property and pay Draheim $1,800 in unpaid rent, $96 in court costs, and $100 in
attorney’s fees.
Standard of Review
To prevail on a summary-judgment motion, a movant has the burden of
establishing that he is entitled to judgment as a matter of law and there is no genuine
issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995). When a plaintiff moves for summary judgment on his own claim,
he must conclusively prove all essential elements of his cause of action. Rhone–
3 Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch Petroleum
Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied). If the plaintiff meets his burden, then the burden shifts to the nonmovant
to raise a genuine issue of material fact precluding summary judgment. See Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v.
Briggs Equip. Trust, 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010,
no pet.). To defeat summary judgment by raising an affirmative defense, the
nonmovant must urge the defense in her response to the summary-judgment motion
and present summary-judgment evidence to create a fact issue on each element of
her defense. Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994);
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Anglo-Dutch, 193 S.W.3d
at 95. The evidence raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of the summary-judgment
evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
The mere pleading of an affirmative defense will not, without more, defeat a motion
for summary judgment. Am. Petrofina, 887 S.W.2d at 830.
When reviewing a summary judgment, we take as true all evidence favorable
to the nonmovant and indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). When, as here, “a trial court’s order granting summary judgment does
4 not specify the grounds relied upon, [we] affirm [the] summary judgment if any of
the summary judgment grounds are meritorious.” FM Props. Operating Co. v. City
of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).
Affirmative Defenses
In her first and second issues, Gutierrez argues that the trial court erred in
granting summary judgment in favor of Draheim because the trial court “failed to
properly apply” her affirmative defenses of statute of limitations and laches.4
Statute of Limitations
In regard to the applicable statute of limitations, “a person must bring suit
for . . . forcible detainer not later than two years after the day the cause of action
accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon Supp. 2015)
(emphasis added). A forcible-detainer action “accrues” when a person refuses to
surrender possession of real property after the person entitled to possession delivers
a proper written demand for possession. See TEX. PROP. CODE ANN. § 24.002
4 In her appeal, Gutierrez does not contend that Draheim failed to meet his summary- judgment burden by conclusively proving all the essential elements of his forcible- detainer cause of action. See TEX. R. CIV. P. 166a(c). And we will not “sua sponte address appellate issues and arguments that [appellant] might have raised, but did not.” Moore v. Brown, 408 S.W.3d 423, 431 n.10 (Tex. App.—Austin 2013, pet. denied); see also Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“An appellate court has no duty, or even the right, to perform an independent review of the record and applicable law to determine whether there was error. In the review of a civil case, an appellate court has no discretion to consider an issue not raised in an appellant’s brief.”).
5 (Vernon 2014); Herve v. Fed. Home Loan Mortg. Corp., No. 03-13-00607-CV, 2014
WL 5420535, at *3 (Tex. App.—Austin Oct. 24, 2014, no pet.) (mem. op.); see also
Fed. Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 235–36 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (“[A] new and independent cause of action for
forcible detainer arises each time a person refuses to surrender possession of real
property after a person entitled to possession of the property delivers a proper written
notice to vacate.”). Thus, in order to establish when a forcible-detainer action
accrued, a party must show (1) when the person entitled to possession of the property
became entitled to possession, (2) when that person made his demand for possession,
and (3) when the recipient of that person’s demand refused to surrender possession.
See Jones v. Am. Fed. Bank, F.S.B., No. 05-91-00634-CV, 1992 WL 32961, at *2
(Tex. App.—Dallas Jan. 30, 1992, writ dism’d w.o.j.) (not designated for
publication); see also TEX. PROP. CODE ANN. § 24.002.
In her response to Draheim’s summary-judgment motion, Gutierrez argued
that because his cause of action for forcible detainer accrued on May 18, 2006, “the
[date the] property was judicially foreclosed upon,” the statute of limitations “ran
several years before” he actually filed his forcible-detainer action “in 2012.”
However, Gutierrez attached no evidence to her response in support of her
affirmative defense of limitations. See Brownlee, 665 S.W.2d at 112. Instead, her
summary-judgment evidence consisted merely of her own affidavit, in which she did
6 not state when Draheim became entitled to possession of the property, when he
delivered a proper written demand for possession to Gutierrez, or if and when she
refused to surrender possession of the property to Draheim.5 See TEX. PROP. CODE
ANN. § 24.002; Jones, 1992 WL 32961, at *2. In other words, in response to
Draheim’s summary-judgment motion, Gutierrez produced no evidence establishing
that Draheim’s forcible-detainer action accrued more than two years prior to his
filing of the suit. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (two-year
statute of limitations); cf. Divin v. Tres Lagos Prop. Owners’ Ass’n, No. 06-13-
00124-CV, 2014 WL 3865846, at *2–4 (Tex. App.—Texarkana Aug. 7, 2014, pet.
denied) (mem. op.) (defendant did not raise fact issue regarding affirmative defense
of limitations because “summary judgment evidence . . . d[id] not establish the
accrual date(s) of [the] cause of action”); Hartney v. Mustang Tractor & Equip. Co.,
No. 04-03-00108-CV, 2004 WL 86140, at *3–4 (Tex. App.—San Antonio Jan. 21,
2004, no pet.) (mem. op.) (defendant “failed to present evidence that would raise a
5 We note that Gutierrez also attached to her response Draheim’s summary-judgment motion and its accompanying exhibits. However, neither Draheim’s motion nor his summary-judgment evidence establish that his forcible-detainer action accrued on May 18, 2006, as Gutierrez contends. Cf. Divin v. Tres Lagos Prop. Owners’ Ass’n, No. 06-13-00124-CV, 2014 WL 3865846, at *2–4 (Tex. App.—Texarkana Aug. 7, 2014, pet. denied) (mem. op.) (neither defendant’s summary-judgment response nor summary-judgment evidence submitted by plaintiff established accrual dates for plaintiff’s cause of action).
7 genuine fact issue” because he did not “come forward with summary judgment
evidence establishing when the limitations period commenced”).
Gutierrez’s summary-judgment response includes only a bare assertion that
the statute of limitations for Draheim’s forcible-detainer cause of action began to
run on May 18, 2006. This assertion, standing alone, did not create a fact issue on
each element of her affirmative defense. See Lujan v. Navistar Fin. Corp., 433
S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“To defeat
summary judgment by raising an affirmative defense, the nonmovant must do more
than just plead the affirmative defense. . . . [She] must come forward with evidence
sufficient to raise a genuine issue of material fact on each element of h[er]
affirmative defense.”); Thomas J. Sibley, P.C. v. Brentwood Inv. Dev. Co., 356
S.W.3d 659, 644 (Tex. App.—El Paso 2011, pet. denied) (“[T]he defendant cannot
defeat [a plaintiff’s summary-judgment motion with a] blanket assertion of its
affirmative defenses.”); Couturier v. Tex. State Bank, No. 12-03-00013-CV, 2005
WL 1982319, at *2–3 (Tex. App.—Corpus Christi Aug. 18, 2005, no pet.) (mem.
op.) (defendants “did not raise a fact issue to defeat [plaintiff’s] motion for summary
judgment” because they did not “present any evidence or affidavits” on statute-of-
limitations defense).
8 Laches
Laches is an equitable defense that prevents a plaintiff from asserting a claim
due to delay—“not mere delay but delay that works a disadvantage to another.”
Culver v. Pickens, 176 S.W.2d 167, 170–71 (Tex. 1943) (internal quotations
omitted). Two essential elements must exist for laches to bar a claim: (1) a party’s
unreasonable delay in asserting a legal or equitable right and (2) a good-faith change
of position by another to her detriment because of the delay. Rogers v. Ricane
Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989); Lyle v. Jane Guinn Revocable Trust,
365 S.W.3d 341, 355 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). As a
general rule, laches does not bar a plaintiff’s suit before the statute of limitations has
run, unless estoppel or “extraordinary circumstances” are present. See Caldwell v.
Barnes, 975 S.W.2d 535, 538 (Tex. 1998); Green v. Parrack, 974 S.W.2d 200, 204
(Tex. App.—San Antonio 1998, no pet.).
In her response to Draheim’s summary-judgment motion, Gutierrez asserted
that Draheim “had ample knowledge of his rights” regarding the property beginning
in 2006 and “should have done something to buoy his rights before an eviction that
was in effect 4+ years late filed.” Gutierrez also asserted that she “put substantial
effort into the property since the delay . . . started.”
Again, however, Gutierrez did not present sufficient summary-judgment
evidence to support her affirmative defense of laches. In particular, she produced
9 no evidence establishing an unreasonable delay by Draheim or a good-faith
detrimental change of position on her part. See Rogers, 772 S.W.2d at 80; Lyle, 365
S.W.3d at 355. Instead, in her affidavit, attached to her response, Gutierrez admitted
that she knew that Draheim “own[s] [the] house” at issue in this case. And yet, she
still “spent tens of thousands of dollars on the property.” Cf. Green, 974 S.W.2d at
204 (party did not “establish her affirmative defense of laches” where she “was
aware . . . that she had no right of ownership in eight inch strip of land” and yet
constructed fence); City of Hous. v. Muse, 788 S.W.2d 419, 422 (Tex. App.—
Houston [1st Dist.] 1990, no writ) (party could not establish “a good faith,
detrimental change” where party knew remodel would violate deed restrictions in
place). Further, Gutierrez presented no evidence establishing that the statute of
limitations had expired on Draheim’s forcible-detainer action or that there was an
“unreasonable delay” in Draheim’s assertion of his rights. See Caldwell, 975 S.W.2d
at 538; Green, 974 S.W.2d at 204.
Because Gutierrez failed to present sufficient summary-judgment evidence to
create a fact issue on each element of the affirmative defenses that she urged in her
summary-judgment response, we hold that the trial court did not err in granting
Draheim summary judgment in his forcible-detainer action.
We overrule Gutierrez’s first and second issues.
10 Unpaid Rent and Attorney’s Fees
In her third issue, Gutierrez argues that the trial court erred in awarding
Draheim unpaid rent and attorney’s fees because he did not seek them in his
summary-judgment motion or attach any evidence to his motion to support the trial
court’s award.6
In its judgment, the trial court ordered Gutierrez to pay Draheim $1,800 in
unpaid rent and $100 in attorney’s fees. However, as noted by Gutierrez, Draheim,
in his summary-judgment motion, did not request unpaid rent or his attorney’s fees.
And he did not present any summary-judgment evidence to support the trial court’s
award. See Khai Ngoc Tran v. Coastal Seafood & Grocery, No. 09-11-00668-CV,
2013 WL 772838, at *3 (Tex. App.—Beaumont Feb. 28, 2013, no pet.) (mem. op.)
(trial court erred in granting plaintiff summary judgment because “no affidavit or
other summary judgment evidence established . . . the amount of damages”); Wande
v. Pharia, L.L.C., No. 01-10-00481-CV, 2011 WL 3820774, at *5 (Tex. App.—
Houston [1st Dist.] Aug. 25, 2011, no pet.) (mem. op.) (trial court erred in granting
summary judgment because plaintiff “did not present evidence conclusively
establishing the amounts that it claimed it was owed and that the trial court awarded
in its summary judgment”); Van Es v. Frazier, 230 S.W.3d 770, 784 (Tex. App.—
6 Gutierrez does not challenge the trial court’s ability to award unpaid rent and attorney’s fees in a forcible-detainer action.
11 Waco 2007, pet. denied) (trial court erred in awarding attorney’s fees because
plaintiffs “did not request attorney’s fees in their summary judgment motion” and
“presented no summary-judgment evidence which would support an award of
attorney’s fees”).
Simply put, Draheim did not attach to his summary-judgment motion
evidence establishing the amount of unpaid rent that Gutierrez owed or an affidavit
from his attorney averring to the work he did on the case, the amount he charged,
and the usual and customary fees incurred in a forcible-detainer action. See David
v. David, No. 01-09-00787-CV, 2011 WL 1326222, at *5–6 (Tex. App.—Houston
[1st Dist.] Apr. 7, 2011, no pet.) (mem. op.) (trial court record contained “no
evidence” of attorney’s fees where plaintiff “did not attach bill from her attorney
to . . . her summary judgment motion,” “did not attach an affidavit from her attorney
averring to the work he did on the case, the amount he charged, or the usual and
customary fee[],” and “attorney did not testify about his fee or work on the case”);
cf. Serrano v. Ryan’s Crossing Apartments, No. 08-03-00369-CV, 2004 WL
2634293, at *1–2 (Tex. App.—El Paso Nov. 18, 2004, pet. dism’d w.o.j.) (mem.
op.) (plaintiff “conclusively established each element of its claim” where it “offered
an affidavit . . . stating that the [defendant] owed $3,803.22 for rent and other
charges”).
12 And, although Draheim included in his “Complaint for Forcible Detainer” a
request for unpaid rent and attorney’s fees in an unspecified amount, his complaint
does not constitute evidence in support of the trial court’s award. See David, 2011
WL 1326222, at *6 (petition and motion for summary judgment not evidence of
attorney’s fees).
Accordingly, we hold that the trial court erred in awarding Draheim $1,800 in
unpaid rent and $100 in attorney’s fees.
We sustain Gutierrez’s third issue.7
Abatement
In her fourth issue, Gutierrez argues that the trial court erred in “failing to
grant [her] Motion to Abate” Draheim’s forcible-detainer action because “[t]here
[were] . . . questions as to ownership” of the property and another case between
Gutierrez and Draheim was “pending.” In response, Draheim asserts that Gutierrez
has not preserved this issue for appellate review.
7 In her third issue, Gutierrez also contends that the trial court erred in awarding Draheim post-judgment interest in the amount of eighteen percent. Having held that the trial court erred in awarding Draheim $1,800 in unpaid rent and $100 in attorney’s fees, we need not address this contention. See TEX. R. APP. P. 47.1; Lawler v. DiGiuseppe, No. 05-09-01468-CV, 2011 WL 1818503, at *3 (Tex. App.—Dallas May 13, 2011, pet. denied) (mem. op.) (“We need not reach this issue with respect to post-judgment interest on the $200,000 earnest money award we now reverse.”).
13 To preserve a complaint for our review, the record must show that a party
presented the complaint to the trial court through a timely request, objection, or
motion, stating the specific grounds for the desired ruling, if not apparent from the
context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Grace
Interest, LLC v. Wallis State Bank, 431 S.W.3d 100, 122 (Tex. App.—Houston [14th
Dist.] 2013, pet. denied). Further, the trial court must have ruled on the request,
objection, or motion, either expressly or implicitly, or the complaining party must
have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Grace
Interest, 431 S.W.3d at 122.
Here, the record reflects that Gutierrez twice filed in the trial court the same
“Motion to Abate Case.” However, the record does not reflect that the trial court
ruled on Gutierrez’s motion or that she objected to the court’s refusal to rule. See
TEX. R. APP. P. 33.1(a)(2); Grace Interest, 431 S.W.3d at 122 (appellants failed to
preserve error on abatement issue where record did not demonstrate trial court ruled
on motion to abate or refused to rule and appellants objected to court’s refusal). The
mere filing of a motion does not preserve a complaint for appeal. Sun Tec Comp.,
Inc. v. Recovar Grp., LLC, No. 05-14-00257-CV, 2015 WL 5099191, at *4 n.6 (Tex.
App.—Dallas Aug. 31, 2015, no pet.) (mem. op.).
Accordingly, we hold that Gutierrez did not preserve her complaint regarding
her motion to abate for appellate review.
14 Conclusion
We affirm the portions of trial court’s judgment granting Draheim summary
judgment on his forcible-detainer action, ordering Gutierrez to “surrender possession
of the property located at 3011 Eagle Ridge Drive, San Antonio, Bexar County,
Texas,” and ordering the issuance of “[a]ll writs, including a Writ of Possession” “in
enforcement of the Judgment.” We reverse the portions of the trial court’s judgment
ordering Gutierrez to pay unpaid rent in the amount of $1,800 and attorney’s fees in
the amount of $100. We remand this case for further proceedings consistent with
this opinion.
Terry Jennings Justice
Panel consists of Justices Jennings, Keyes, and Bland.