### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00335- CV

John H . Thomas, M .D., Appellant

v. Gr aham Mort gage Cor poration and Christopher Norr is, Su bstitute Trustee , Appellees

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 33RD J UDICIAL DI STRICT NO. 364 24, H ONO RAB LE GUILF ORD L. JO NES II I, J UDGE P RESIDING

O P I N I O N

The suit underly ing this appea l conce rns the nonjudicial fo re cl o s ure of cer tain

ranc h p ro p er t y located in Bur net and L lano Counties (“the Property ”). Prior to the fore closure, the Property was owned by appellant J ohn H. Thomas, M.D. As s erting various claims, Thomas contends that the fore closure by Gra ham Mo r tg a g e Co r p o r a ti o n ( “ th e B ank”) and Christopher Norris, substitut e trustee, (collec tively , “the Bank Defe ndants”) was wrongf ul beca use t he P roper

ty is his homestead and thus exempt from forc ed sale. See Tex. Const. art. XVI , § 50. The Ba nk Def endants moved for summary judgme nt on all of Thomas’s claims and arg ued that, as a matter of law, Thomas

c a n n o t e s ta b li s h th a t th e Pr o p e r

ty w a s h is h o me s te a d w

h e n h e e xe c u te d a lo a

n s e c u r e d b y th e Pr o p e r

ty

. Thomas appea ls from the trial court’s g rant of sum m ar y j u d g ment in favor of the Ba nk Def endants. Thomas also appeals from the tr ial court’s orders striking hi s amende d motion for summary judgme nt, striking his motion for an appra isal, and deny ing his motion for continuance

.We w il l a f f ir m th e o r d e r s s tr ik in g T h o ma s ’ s a me n d e d mo ti o n a

n d d e n y in g h is mo ti o n f

o r c o n ti n u a n c e . W e wi l l reve rse the trial court’s order striking Thomas’s motion for appraisal. Consequentl y , we will affirm the tria l court’s summary judgme nt in part, and we will rever se and r emand in par t.

BACK GR OUND On Aug ust 14, 2007, Thomas entere d into a written loan ag ree ment with the Ba nk, borrowing 3.4 milli on dollars. The loan ag ree ment signe d by Thomas included, a s secur ity on the loan, a de ed of trust c overing 618 acr es of the Prope rty

.

A few wee ks befor e closing on the loan, a proposed title insurance policy identified 200 acr es of the Property as Thomas’s homestead. The identification wa s b as ed on a homestead desig nation filed by Thomas in 2005, and upon lear ning of the problem, Thomas se nt an e- mail to the Ba nk loan office r, Dea

n Castelhano, reg arding the issue. I n his J une 2007 e-ma il, Thomas stated that the t itle insurance policy ’s hom est ea d exception “wa s unexpected as the attorney with whom [he] spoke advised this could be avoided.” Thomas also proposed three options for addre ssing the issue: (1) a loa

n for $2.5 million with the Property reduc ed by 200 acr es, (2) “proc eed a s planned with the [ proposed loan for $3.7 milli on ] and reduce d collater al,” or (3) “ no deal.” Acc ording to Castelhano, his initial rea ction to the discovery of the 2005 homestead desig nation was not to make the l oan, but he decided to proce ed after Thomas arg ued that the P roper ty was not his homestead. C o n verse ly , Thomas contends that he never had any discussions with any repr esenta tive from t h e Ba nk about the homestea d char acte r of the Prope rty , aside fr om his J une 2007 e- mail.

2I n any event, in closing on the loan, Thomas signe d a docum ented entitled

“Non- Homestea d Affida

vit and Contingent Desig nation of Homestea d.” I n this document, Thomas decla red unde r oath:

1. “Tha t he has never occupie d the dwelling house located on the [P roper ty ] for residenc e purposes, but has instead allowe d such dwe lling house at all time to be utiliz ed by

a ra nch for eman in his employ .” 2. “Tha t h e h as n o prese nt intent to occupy such dwelling house, or any other dwelling house to be constructe d on the [P roper ty ] as his re s i d ence in the future.” 3. “Tha t he does not now claim either a business or residenc e homestead in the [P roper ty ] and here by renounc es and disclaims any homestead rig ht interest or exemption in t he prope rty .”

Thomas also swore and ackn owledg ed that the aff idavit and conting ent desig nation was “made
to induce Gra

ham Mortg ag e Corporation to fund a mortg ag e loan secur ed by a Dee d of Trust on the [P roper

ty ].” 1 Acc ording to the Ba

nk, by May 2009, Thomas had defa ulted on his obliga tions under the agre em ent by failing to make pay ments. Consequently , the Ba nk soug ht to fore close on its

secur ity interest and eventua lly posted the Proper

ty for sa le. Howe ver, be fore the fore closure sa le could be conducte d, Thomas sued th e Ba n k Def endants, claiming that he had been fra udulently

Thomas also decla

red the following : “Tha t, conting ently , to t h e ex t en t and only to the 1 extent that the above renunc iation and disclaimer is ineffe ctive by his curr ent use of the proper ty for gra z i n g cattle owned by him, or any other rea son, he desig nates the portion of the proper t y . . . consisting of 100 acr es as descr ibed in Ex hibit B as attache d here to as the portion of such proper ty to which he a

nd/or his family

is entitled under the constitution and laws of t he S tate of Texas as a homestead . . . .” 3induced into the loan ag ree ment. Thomas also soug ht a temporar y restra ining order and temporar y injunction to prevent the sale of the Proper ty pending suit, both of which the trial cour t gr anted. I n J uly 2009, Thomas amende d his petition, alleg ing for the first time that 200 acr es of the Property had been desig nated and continually maintained as his home stead. Ba sed on these new alleg ation s , Thomas om itted his claim for fra udulent inducement and instead claimed that as

a r e s u lt of the Property ’s homestead status, the Ba nk Def endants had violated the Texas Constit ution, home equity lending laws, and the Texas Debt Collection Act. See Tex. Const. art. XVI , § 50; Tex. Fin. Code Ann. §§ 392.001-.404 (West 2006) (debt collection act)

. I n addition to monetary relief , Thomas soug ht decla

rations that (1) the lien held by the Ba nk was void, ( 2) the Ba

nk had forf

eited the entire note on the Property , and (3) the Ba nk was in violation of the Texas Debt Collection Act. See Tex. Civ. Prac. & R em . C o de Ann. §§ 37.001-37.009 (West 2008) (uniform decla ratory ju d g me n t a c t)

. T h a

t s a me mo n th , th e B a

n k f il e d a c o u n te r c la im a g a in s t T h o ma s f o r b r e a c h o f c o n tr a c t. I n Aug ust 2009, following a hear ing on the Ba nk Def endants’ motion to rec onsider temporar y injunction, the tr ial court dissolved the temporar y injunction prohibiti ng fore closure on the Property . The ne x t month, the Bank f orec losed on its security

interest in the Proper

ty

. 2 I n Dec ember 2010, Thomas fi l ed a m o tion for summary judgme nt on all of his claims. I n Fe bruar

y 2011, the B ank ame nded its counterc laim ag ainst Thomas and, afte r apply ing

I n response to the alleg ations in Thomas’s amende d petition reg arding the homes t ea d 2 status of the Property , and in an eff ort to avoid coming within the Texas Constit ution’s home equity lending provisions, the Bank sent a letter to Thomas m odify ing the l o an agreement. Specifica lly , the Ba nk cre dited Thomas with $1,000 toward the amounts due under the note and informed Thomas that the note would no longe r be secur ed by the 100 acr es that Thomas had conditionally desig nated as h i s h o m es tead in the non-homestea d aff idavit. The eventua l fore closure did not include these 100 acr es. 4the proceeds from the fore closure sale t o the balance on the l oan, sought to rec over the rema ining

defic iency on the loan bal an ce . T h e Ba nk Def endants also filed their own motion for summary judgme nt, seeking a decla ration that the Property was not a homestead, rec overy of the defic iency , attorney ’s fee s, and dismiss al of all of Thomas’s claims. Both summary -judg ment motions wer e set for he aring on April 21, 2012.

Ten day s befor e the summary -judg me n t h e a r in g , T h o ma s f

il e d a f ir s t a me nded motion for summary

judgme nt, to which the B ank De fenda nts filed a wr itten obje ction on the g round that the amende d motion was untimely

. Two day s befor e the hear ing on the summary -judg ment motions, Thomas filed an answe r to the Ba nk’s counter claim and, in the alterna tive, a motion for an appra isal. I n response , the Ba

nk Def endants filed a motion to strike Thomas’s motion for appra isal. One day befor e the he aring , Thomas filed a motion for continuance of the he aring

. On the day of the hear ing, the parties appea red, and the trial court denied Thomas’s motion for continuance

. Following a hear ing on t h e rema ining motions, the trial court g rante d the Ba n k Def

endants’ motion to strike Thomas’s motion for appra isal and the Ba nk Def endants’ objection to Thom as ’s am en d ed motion for summary judgme nt. Finally , the trial court denied T h o m as’s orig inal motion for summary judgme nt and g rante d summary judgme nt in the Ba n k Def endants’ fa v o r, decla

ring that none of the Property was Thomas’s “homestea d proper ty as of Aug ust 14, 2007.” Consist ent with its order s, the trial court subsequently signe d a final judgme nt 3

The trial court also sustained the Ba nk Def endants’ objections to summary -judg ment 3 evidenc e filed by Thomas, i n connec tion with both his own m otion for summ ary judgme nt and in response to the Ba

nk Def endants’ motion for summary judgme nt. I n this appea l, Thomas does not challeng e these ruling s or the trial c ourt’s denia l of his motion for summary judgme nt. 5in favor of the Ba nk Def endants, order ing that Thomas take nothing on his claims and awa rding the Ba nk $1,434,999.28, plus postjudgment intere st and attorney ’s fe es.

Thomas now raises seven issues on appea l. I n these issues, Thomas arg ues that the trial court err ed in g ranting summary judgme nt in favor of the Ba nk Def endants. I n addition, Thomas arg ues t h at the trial court abused its discretion in deny ing his motion for continuance , striking his ame nded motion for summary judgme nt, and striking his motion for a ppraisal.

DISCUSSIO N

Summ ary judgm ent on Thomas’s c laim s for af fi rm ative r elief
Standard of review

I n his first an d fi ft h i s sues on appea l, Thomas asser ts that the trial court err ed in
g ranting the Ba

nk Def endants’ motion for summary judgme nt with respe ct to his claims for aff irmative relief

. Summary

judgme nts are r eviewe d de novo. Valence Operating Co. v

. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). A movant is entitled to traditional summary judgme nt if (1) there

are no g enuine i s s u es as t o an y materia l fac t and (2) the m oving party is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ). To obtain traditional summ ar y judgme nt on an opposing party ’s claims, the movant must conclusively neg ate at least one element of eac h of the claims or conclusively establish eac h elem en t o f an aff irmative defense. See Centeq Realty, Inc. v. Siegler , 899 S.W .2d 195, 197 (Tex. 1995).

On appea l, we revie w the evidenc e prese nt ed in the motion and the response in the light most favor able to the party ag ainst whom the summary judgme nt was ren d er ed,
6cre di t i n g evidenc e favor able to that party if rea sonable jurors could, and disreg arding contra ry

e v id e n c e u

n le s s r e a s o n a

b le ju r o r s c o u ld n o t. M

a n n F r a n k fo r t S te in & Li p p A d v is o r s , I n c . v . F ie ld in g , 289 S.W .3d 844, 848 (Tex. 2009). Where, as here, t h e m otion for summary judgme nt asser ts multipl e g rounds and the summary judgme nt order does not specify a g round for the ruling , we will aff irm the summary

judgme nt if any g round prese nted in the motion is meritorious. See P icke tt v. Texas Mut. Ins. Co. , 239 S.W .3d 826, 840 (Tex. App.—Austin 2007, no pet.).

I n this case , the Ba

nk Def endants moved for traditional summary judgme nt on all of Thomas’s claims, eac h of which require s Thomas to prove t h at at l ea s t a portion of the Property

secur ing the loan ag ree ment was his homestead at the time the loan ag ree ment was executed. I n their
summary -judg ment motion, the Ba nk Def endants asser

ted that, as a matter of law, Thomas cannot prove the homestead status of the Property

. I n response , Thomas arg ued that (1) there are materia l issues of fac t reg arding the Property ’s homestead status that prec lude summary judgme nt and (2) the Ba nk has previously taken the position that the Property is Thomas’s homestead and there fore is now estopped fr om claiming othe rwise.

Homeste ad status of t he property

I n deciding whether the trial court err ed in g ranting summary judgme nt on Thomas’s claims, we first consider whether a genu i n e i s s u e as to any materia l fac t exis ts with respe ct t o the homestead status of the Property

. Homestea d proper ties are aff

orded specia l and unique protec tions under the Texas Constit ution. See Tex. Const. art. XVI , § 50. Relevant to t h i s ap p ea l , Texas homesteads are g ener ally exempt from “for ced sale, for the pay ments of all debts,” except for those debts specific ally enu m er at ed i n t he constit ution. See id

. When a li en that is not constitutionally

7permitted is place d on homestead proper ty , the lien on the proper

ty is void. Laster v. First Huntsville Props. Co. , 826 S.W .2d 125, 129-30 (Tex. 1991). Be cause constitutional homestead rig hts protec t citizens from l o s i n g t h eir home, courts liberally construe constitutional and statutory homestead provisions to protec t the homestead. Kendall Builders, Inc. v. Chess o n , 1 4 9 S.W .3d 796, 807 (Tex. App.—Austin 2004, pet. denied)

. To establish a piece of proper ty as homestead proper

ty “the claimant must show a combination of both overt acts of homestea d usag e and the intention on the part of the owner to claim the land as a homestead.” Sims v. Bee son , 545 S.W .2d 262, 263 (Tex. Civ. App.—Ty

ler 1976, writ ref

’d n.r.e.)

. Once proper

ty is desig nated as homestead proper ty , it can lose that char acte r only throug h abandon ment, death, or alienation. Majeski v. Estate of Majeski , 163 S.W .3d 102, 107 (Tex. App.—Austin 2005, no pet.).

One of the g rounds upon which the Ba nk Def endants moved for summary judgme nt

wa s abandonme nt. Specifica lly , the Ba nk Def endants arg ued that, to the extent the Pro p er t y wa s

ever Thomas’s homestead proper ty , the undisputed evidenc e conclusively establishes that Thomas had abandone d the Property as a homestead at the time the loan ag ree ment was execut ed and the deed- of-trust lien was acquir ed. See Inwood N. Homeowne rs’ Ass’n, Inc. v. Harris , 736 S.W .2d 632, 635 (Tex. 1987) (explaining that “whe n the proper ty has not be come a homestead at the execution of t he mortg ag e, dee d of trust or other lien, the hom estea d protec tions have no application even i f the prope rty

later be comes a

homestead” ). S imilarly , the Bank Defenda nts arg ued that Thomas is estopped from claiming the Property as his homestead as a result of the contra ry decla rations by Thomas in his “Non-Home stead Af fidavit and Continge nt Desig nation of Homestea d.” A proper ty owner does not nece ssarily abandon homestead proper ty by chang ing residenc e. Rancho Oil Co. v. Powell , 175 S.W .2d 960, 963 (1943) (“The acquir ing of a new home

8is not alway s the acquir ing of a new homestead, and one does not nece ssarily abandon a homestead

mere ly by moving his home.” ). Even the temporar y renting of the homestea d does not cha ng e the homestead char acte r of the propert y , when no other homestead has been established. Id

. Rather, evidenc e establishing abandonme nt of a homestead “must be undeniably clea r” and show “bey ond almost the shadow, at least o f al l re asonable g round of dispute, that there has been a total abandonme nt with an intention not to return and claim the exemption.” Id

. That is, it must be clea r that there has been a discontinuance of the use of the proper ty coupled with an intention not to use it as a homestea d ag ain. See Ke ndall Builders , 149 S.W .3d at 808.

Thoug h a chang e of residenc e does not nece ssarily equate to abandonme nt, a chang e in residenc e coupled with a disclaimer of the homestead may form the basis of a cl aim of abandonme nt by estoppel. Estoppel is a doctrine rec og nized and applied in a varie ty of contexts, but
g ener ally preve nts a p ar t y fr o m asser ting rig hts, claims, and matters of fac t that are inconsistent with those previously asser ted by the party

. See, e.g. , Pleasant Glade Assembly of God v. Schubert , 264 S.W .3d 1, 6 (Tex. 2008) (“The doc t ri n e o f j udicial estoppel ‘pre cludes a party from adopting

a position inconsistent w ith one succe ssfully maintained in a n ear lier proce eding .’”( quoting 2 Roy W

. M cDonald & Elaine G. Carlson, Texas Civil Practice § 951 at 576 (2d ed. 2003))) ; Lope z v. Munoz, Hock

ema & Ree d, L.L.P. , 2 2 S

. W.3d 857, 864 (Tex. 2000) (explaining that aff irmative defe nse of quasi-estoppe l “pre cludes a party from asser ting, to another ’s dis ad v an t age, a rig ht inconsistent with a posi tion he or she has previously taken” ). Apply ing estoppel principl es i n the
context of homestead disclaimers, Texas co u rt s have soug ht to balanc e the importance of constitutional homestead p ro t ec t i on with “policy considerations which abhor the perpe tration of fra ud on cre ditors.” See First Interstate Bank of Bedford v. B l a n d , 8 10 S.W .2d 277, 284-85
9(Tex. App.—For t Worth 1991, no writ). As a result, it is well established that when phy sical fac ts open to observa tion lead to a conclusion that the proper ty is not the homestead of the mortg ag or, and its use is not inconsistent with the decla rations made that the proper ty is disclaimed as a homestead, and these decla

rations wer e intended to be and wer e actua lly relied upon by the lender , then the

owner is estopped from asser ting a homestead claim. Bland , 810 S.W .2d at 284-85; Shearer v. Allied Live Oak B a n k , 7 5 8 S.W .2d 940, 945 (Tex. App.—Corpus Christi 1988, writ denied) ; Prince v. North State Bank of Amarillo , 484 S.W .2d 405, 411 (Tex. Civ. Ap p .—Amarillo 1972, writ ref ’d n.r.e.)

. On the other hand, if the circ umstances are such that a lender should have known

or suspec t ed t h at a homestead disclaimer is false—suc h as or when a proper ty owner is in actua l possession of a p iece of property , occupy ing and us ing the proper

ty —then courts will not enfor ce the disclaimer ag ainst the debtor. See Bland , 810 S.W .2d at 287 (holding that fac ts did not support estoppel beca

use rec ord indicated th at cl aimant was occupy ing and using homestead when he executed disclaimer) ; Prince , 484 S.W .2d at 405 (noting that the “dete rmining fac tor is whether the claimant’s act s we re s u ch as to put a reasonable person on notice that the t rac t constituted part of the homestea d”).

I n suppo rt o f its motion for summary judgme nt, the Ba nk Def endants attache d the aff idavit of Dea

n Castelhano, vice president of the Ba n k and loan office r for the Thomas loan. Castelhano aver

red that during their initial conver sation, Thomas informed Castelhano that he was

a doctor in Van Horn, that the Property was curr ently for sale, and that he wanted to borrow ag ainst the Property so that he could buy a ranc h in New Mexi co. Fur ther, Castelhano explained in his aff idavit tha t he had conducte d a visual inspection of the Property with T homas’s rea l estate ag ent

10in the m onth befor e the closing

. Castlehano st ated that du ri n g t h i s inspection, he did not observe

any dwelling s or living structure s on the subject proper ty except a cabin and that the rea l estate ag ent told Castelhano that “employ ees who wo rk ed o n t h e [P ]roperty lived there and, for that rea son, [he] could not inspect it.” The a g ent also informe d Castelhano that “Dr

. Thomas had not lived on the [P roper

ty ].” T h o ma s h a s n o t d ir e c tl y d is p u te d a ny o f th e s e u

n d e r ly in g f a c ts , in c lu d in g Ca s te lh a

n o ’ s visual inspection or conver sations with the rea l estate ag ent. I nstead, in his aff idavit submitt ed with his response to the Ba

nk Def endants’ summary -judg ment m o t i o n , Thomas aver red additional underly ing fac ts that h e co n t ends prec lude summary judgme nt in favor of the Ba nk Def endants. For example, acc ording to Thomas, he acquir ed the Property in 1996 and resided on it full-time in a tr a v e l tr a il e r f

r o m 1 9 9 6 to 2 0 0 2 a

n d a g a in f r o m 2 0 0 4 to 2 0 0 6

. I

n a d d it io n , in 2 0 0 6 T h o ma s c o mp le te d construction of a three -bedr oom c abin on the Property , which has been occupie d by the Property ’s

car etaker. I n his aff

idavit, Thomas admits that when the loan ag ree ment was executed he was 4 working and renting a house in Van Horn; howeve r, he asser ts that he never intended to abandon the Property as his homestead. And althoug h the Property was for sale at the time of the loan ag ree ment, Thomas points out that he continued to make re g ular visits to the Property , making improvements

o n it a n d u s in g it f

o r g r a zi n g c a

tt le , s h e e p , a

n d h o r s e s . F in a ll y , T h o ma s c o n te n d s th a t ( 1 ) h e d e s ig

n a te d the Property as his homestead in 1996, 2001, and 2005 and since then has never desig nated any

Thomas also contends that the car etake r is his fianc é. Thomas did not aver that he has ever 4 resided in the c abin.

11other Property as a homestead, and (2) the Property rema ins his homestead even today

. Thomas

asser ts that this evidenc e, at th e v ery least, create s materia l issues of fact reg arding the P roper ty ’s homestead status.

The fac ts and issues in this case are simil ar to those prese nted to the Texas Supreme Court in Alexande r v. W

ilson , 77 S.W .2d 873 (Tex. 1935). I n that case , the W ilsons h ad li ved on

a rura l trac t of land as their home for sever al y ear s befor e moving to a proper ty owned by their son. Id

. at 874. After the move, the Wil sons continued to own the rura l proper ty and used it for far

ming and livestock. Two y ear s later, the Wil sons e x ecute d a note and se cure d the note with a mortg ag e

on the proper

ty

. The mortg ag e document signe d by the Wil sons contained a rec itation that the rura l
proper ty was not their homestead. Id

. Howeve r, when the lender s soug ht to fore close, the Wil sons

c la im e d th a

t th e r u r a l p r o p e r ty w a s p r o te c te d a s th e ir h o me s te a d

. I d

. T h e tr ia l c o u

r t d is a g r e e d , g r a

n ti n g

a d ir e c te d v e r d ic t in f

a v o r o f th e le n d e r o n th e g r o u n d th a t th e Wi ls o n s w e r e e s to p p e d b y th e r e c it a ti o n from asse rting their homestea d claim. Id . The supre me cour t upheld the ruling , explaining:

The particula

r point to be considere d is whether the mortg ag ee ha d the rig ht to rely on the dec lara tion, in making the loan a nd taking the mortg ag e. He had such rig ht, unless the visible circ umstances exis ting at th e time, wer e of such import as to ap p rise him of the fac t that the far m was the home of the mortg ag ors. T h at t h e circ umstances wer e defic ient in this respe ct, is plain. The mortg ag ors resided in town. The use being made of the far m was not appurte nant to their residenc e there

.

. . . Even if known to the mortg ag ee in the instant case , the circ umstances that the place in town did not belong to the mortg ag ors, would not preve nt an estoppel from arising ag ainst them. This circ umstance, too, was consistent with an abandonm en t of the home on the fa

rm. Id

. 12Her e, the pertinent und i s p u t ed fac ts—the information convey ed to Castelhano by

Thomas during their initi a l c o n v e r s a ti o n b e f o r e the loan, along with Castelhano’s visual observa tions of t he P roper

ty —lead to the conclusion that Thomas was not occupy ing the premises as his home
at the time the loan was ma de. Althoug h Thomas asser ts that he continued to use the Property for
ag ricultural purposes afte r moving to Van Horn, including at the time of the loan ag ree ment, this use is not inconsistent with an abandonment of the hom est ead. See id

. (“Where homestead claimants reside in a city or t own, the law doe s not reg ard a use of r ural land a s being a use for the purposes of a home.”)

. Simi larly , the fac t that the Property may have been previously used and desig nated by Thomas as his homestead, even if made known to the Bank, i s not neces s arily inconsistent with a subsequent abandonme nt. Under these cir c u ms ta n c e s , the Ba

nk was justified in rely

ing on Thomas’s
repr esenta tion that he was disclaiming any constitutional homestead rights in the P ro perty

. Upon revie w of the rec ord, we conclude that Thomas is estopped from deny ing the truth of his homestead disclaimer. Consequently , we also conclude that the evidenc e conclusively establishes that Thomas abandone d any

homestead r ights in the Proper ty at the time of the loa

n ag ree ment.
Thomas’s estoppel claim

Next, we examin e wh et h er the trial court err ed in g ranting summary judgme nt on Thomas’s claims beca

use the Ba

nk is e stopped from a sserting that the Property was not T homas’s homestead or that Thomas abandoned his homestead rights. I n response to the Bank Defenda nts’ motion for summary judgme nt, Thomas arg ued that the Ba nk had previously rec og nized that the Property was his homestead proper ty when it impleme n t ed Thomas’s conting ent homestead

13desig nation and releas ed 1 0 0 acr es of the Property as secur ity on the note. Be cause the Ba nk’s decision to r elea se the 100 acr es is not inconsistent w ith its position t hat Thomas did not ha ve any homestead r ights in the prope rty at the time the loan a g ree ment was e x ecute d, we disag ree . As previously discussed, estoppel g ener ally preve nts a party from asser ting ri gh t s , claims, and matters of fac t that are inconsistent with those previously asser ted by the party

. See, e.g. , Pleasant Glade Assembl

y of God , 264 S.W .3d at 6 (judicial estoppel); Lopez , 22 S.W .3d at 864 (quasi-e stoppel). I n this case , the Ba nk has never taken the position that the Property was Thomas’s homestead at the time the loan ag ree ment was executed. I n fac t, the rec ord establishes that the Ba nk rele ased the 100 acr es in order to avoid l iability in the event the P roper ty is ulti mately

deter mined
to be homestead proper

ty

. The Ba

nk’s rele ase of the 100 acr es is not inconsistent w ith its position that the Property was not Thomas’s homestead at the time the loan ag ree ment was executed. I nstead, the action repr esents an alterna tive defe nsive position in response to Thomas’s claim that the Ba nk had violated home e quity provisions of the Texas Constit ution. The s u mm a r y - ju d g me n t r e c o r d c o n c lu s iv e ly e s ta b li s h e s th a

t, w h e n th e loan ag ree ment

was executed, Thomas abandone d any homestead rig h t s h e h ad in the Property

. Fur ther, there is nothing in the rec ord supporting Th o m as ’s cl aim that the Ba nk Def endants are estopped from

asser ting that Thomas abandone d his homestead rig hts. Acc ording ly , we conclude that the trial court did not err in g ranting the Ba nk Def endants’ motion for summary judgme nt on Thomas’s claims for aff irmative relief

. Thomas’s first issue on appea l, to the extent he complains of the trial court’s g rant of summary

judgme nt on his claims, and fifth issue on appe al ar e over ruled.

14Su mmar y judgme nt on the Bank ’s defi ciency claim and Thomas’s request for an appraisal

und er se ction 51.003 of the Texas Pr operty C ode

I n his first and fourth issues on appeal, Thomas complains that the trial cour t erre d in deny ing him an appra isal of the Property and in g rant i n g summary judgme nt on the Ba nk’s defic iency claim. A claim for defic iency arises when rea l proper ty is sold at fore closure for a price that is less than the unpaid balanc e of indebtedness secur ed b y the rea l proper ty

. See Tex. Prop. Code Ann. § 51.003(a) (West 2007). When a defic iency claim is pursued by a lender , section 51.003 of the Texas Property Code provides that the borrowe r may reque st t h at “the court in which the action is pending deter

mine the fair marke t value of the rea l proper ty as of the date of the fore closure sale.” Id

. § 51.003(b). I f the court deter mines that the fair marke t value is g rea ter than the price paid
at the fore closure sale, the borrowe r is “entitled to an offse t ag ainst the defic iency amount in the
amount by which the fair marke t va lue

. . . exceeds the sale price .” Id

. § 51.003(c)

. I f a reque st to deter mine fair marke t v al u e i s n o t made, or if no competent evidenc e of fair marke t value is introduced, the fore closure sa le price is used to compute the def iciency amount. Id

. A reque st fo r an o ff

s et ag ainst a defic iency claim under section 51.003 is an aff irmative defe nse that must be pleade d. Cabot Capital Corp. v. USDR, Inc. , 346 S.W .3d 634, 639 (Tex. App.—El Paso 2009, pet. denied) (sec tion 51.003 offse t is aff irmative defe nse). This pleading requi re m en t , howeve r, is met when the offse t is reque sted by motion. W infield v. Dosohs I, Ltd. , No. 01-97-00997- CV, 1998 WL 436895, *4 (Tex. App.—Houston [1st Dist.] J uly 30, 1998, no pet.) (mem. op., not desig nated for publication) (noting t h at i t consi dere d motion for appra isal under section 51.003 of proper

ty code to be part of defe ndant’s answe r). Acc ording ly , for an offse t defe nse under section 51.003 to be considere d in response to a motion for summary judgme nt on a defic iency
15claim, the re quest must be on file at the t ime of t he sum mary -judg ment hear ing. See Tex. R. C iv.

P. 166a(c ). I n addition, the timeliness of a reque st for an offse t under section 51.003 is g overne d by rule 63 of the Texas Rules of Civil Procedur e. Id ., 1998 WL 436895, at *4.

Rule 63 provides that parties may amend their pleadings “p ro vided, that any pleading s, responses, or

pleas off ere d for filing wit hin seven day s of the da te of trial or there afte r,

or afte r s uch time as may be order ed by the judge under rule 166, shall be filed only afte r leave of the judge is obtained.” Tex. R. Civ. P. 63. A summary -judg ment proce eding is a trial within the meaning of rule 63; thus, a party must seek leave of court befor e filing an amende d pleading within

seven day s of a summary -judg ment hear ing. See IKB Indus. (N i g er i a ), Ltd. v Pro-Line Corp. , 938 S.W .2d 440, 441 (Tex. 1997). The trial court, howeve r, must g rant leave to amend “unless there is a showing that such filing will opera te as a surprise to the oppo s i t e p ar t y .” Tex. R. Civ. P. 63. The burden to show surprise or prejudice is on the party resisting the amendment. See Gree nhalgh

v. Servic e Lloyds Ins. Co. , 787 S.W .2d 938, 939-40 (Tex. 1990). This require d showing may b e (1) made by prese nting evidenc e of surprise or prejudice or (2) based on the trial court’s conclusion th a t th e a me n d me n t o n it s f

a c e is c a lc u la

te d to s u r p r is e o r p r e

ju d ic e . S e e id

. a t 9 4 0 ; H a r d in v . H a r d in , 5 9 7 S.W .2d 347, 350-51 (Tex. 1980). An amendment adding a new cause of action or defe nse opera tes as a surprise and is prejudicia l on its fac e if it (1) resha pes the nature of the case , (2) could
not have been an t i ci p at ed, and (3) prejudice s the plaintiff’s prese ntation of the case . Deutsch v. H o o v e r , B a x & S lo v a c e k , L. L. P

. , 9 7 S. W. 3 d 1 7 9 , 1 8 6 ( T e x. A p p . — H o u s to n [1 4 th D is t. ] 2 0 0 2 , n o p e t. )

. T h e Ba nk fore closed on the Property , pleade d a defic iency counter claim ag ainst Thomas, and subsequently moved for summary judgme nt on its claim. Two day s befor e the
16summary -judg ment hear ing, Thomas filed an answe r to the Ba nk’s counter claim for defic iency and alterna tive motion for appra isal, reque sting an appra isal and offse t under section 51

. 0 0 3 o f the
proper ty code. I n support of his motion for appra is al , T h o m as asser ted that (1) a month befor e execution of the loan ag ree ment in 2007, the Property had been appra ised at more than $6 milli on, far in excess of the amount of the loan, and (2) the Ba nk purcha sed the Proper

ty at the for eclosure sale in 2009 for approximately $2.2 milli on. There is no document in t h e re co rd indicating that Thomas reque sted or obtained leave of cour t b ef o re filing his amende d answe r and alterna tive motion. Howeve r, the Ba nk Def endants moved to strike the motion for appra isal on the g round that it opera ted as an unfair surprise under rule 63, and the court g rante d the motion to strike by written order

. Thus, it i s clea

r from the record that the t rial court was made awa re of Thomas’s amended pleading and expressly ref used to consider it as part of the summary -judg ment rec ord

. Cf. Goswami

v. Metropolitan Sav. & Loan Ass’n , 751 S.W .2d 487, 490-91 (Tex. 1988) (pre suming, in absenc e of
contra ry evidenc e, that amende d pleading filed four day s befor e summary -judg m en t hear ing was befor e the court, even though rec ord did not show that leave was reque sted). We revie w the trial court’s decision to strike Thom as’s mot ion for appraisal for an abuse of discr etion. See State B ar of Tex. v. Kilpatrick , 874 S.W .2d 656, 658 (Tex. 1994) (“I f the trial amendment is not mandatory , then the decision to permit the amendment rests within the sound discretion of the trial court.” ); Perez v. Embree Constr

. G r o u p , I nc. , 228 S.W .3d 875, 88-83 (Tex. App.—Austin 2007, pet. denied)

. The Ba nk Def endants arg ue that the trial court did not abuse its discretion in striking Thomas’s motion for appra isal solely beca use the pleading is prejudicia l o n i t s fac e. The Ba nk Def endants prese nted no evidenc e of surprise or prejudice wi t h rega rd to their motion to strike, and we find that n o such evidenc e appea rs in the rec ord. Although the Ba nk fore closed on the
17Property in September 2009, it waite d u n til Fe bruar y 2011 to amend its pleading s to asser t its defic iency counter claim. Three day s afte r asser ting its defic iency claim, the Ba n k D e f e n d a n ts moved for summary judgme nt on the claim, and less than two months later, Thomas amende d his pleading s and reque sted an offse t under section 53.001. Under these circ umstances, we cannot conclude that surprise or prejudice is appar ent on the fac e of the pleading s, g iven that the Ba nk could have

a n ti c ip a te d th a t T h o ma s w o u ld a s s e r

t a s e c ti o n 5 3

. 0 0 1 o f

f s e t d e f e n s e . S e e H a r d in , 5 9 7 S. W. 2 d a

t 3 5 0 (conc luding that amendment was prejudicia l on its fac e where “[the] amen d m en t s could not have been anticipated by the plaintiff, and had they been permitted, they would have prejudiced the plaintiff’s pre sentation of the c ase a nd resulted in unnec essar y delay ”). Ba sed on the rec ord befor e us, including the lack of evidenc e of surprise or prejudice
to the Bank, we conclude that the trial cour t abused its discretion in s triking Thomas’s motion for
appra isal. See Gree nha l

gh , 787 S.W .2d at 939 (noting that trial court has no discretion to ref use

ame n d m en t under rule 63 unless (1) opposing party prese nts evidenc e of surprise or prejudice or (2) am en d ment is prejudicia l on its fac e). As a result, the trial court err ed by g ranting summary judgme nt on the Ba

nk’s defic iency claim based solely upon evidenc e of the Property ’s fore closure sale price

. Thomas’s first issue on ap p ea l , t o t h e extent he complains of the trial court’s g rant of
summary judgme nt on the Ba nk’s defic iency claim and rela ted attorney ’s fee s, and fourth issue on appea l are sustained.

Thomas’s am ended m otion f or sum m ary judgm ent I n his second, third, and six th issues on appea l, Thomas complains of the trial court’s ref usal to c onsider his a

mended motion for summary judgme nt. I n that amende d motion, Thomas
18added est oppel as a g round for summary judgme nt in his favor

. That is, Thomas arg ued that
summary judgme nt should be g rante d in his favor be cause the B ank is estopped f rom arg uing tha t the Property is not his homestead or that it has been abandone d. As previously discussed, Thomas’s estoppel claim fails as a matter of law. I n addition, rule 166a of the Texas Rules of Civil Procedur e require s that a nonmovant rec eive at least twenty -one day s’ noti ce o f each motion for summary judgme nt. See Tex. R. Civ. P. 166a. Thus, Thomas’s amende d motion for summary judgme nt, filed
ten day s bef

o re t h e summary -judg ment hear ing, was untimely

. The trial court proper ly sustained the Ba nk Def endants’ objection to Thomas’s amende d motion for summary judgme nt and corr ectly d e c li n e d to c o n s id e r th e a

me n d e d mo ti o n f

o r p u r p o s e s o f th e A

p r il 2 1 h e a

r in g . We o v e r

r u le T h o ma s ’ s second, third, and six th issues on appea l.

Thomas’s claim of “fraud on t he court”

Finally , in his seventh issue on ap p eal, Thomas asser ts that the Ba

nk Def endants’ actions amount to a “fr aud on the court.” Thomas contends that the Ba nk Def endants violated multipl e rules of proce dure and that the trial court (1) “allowe d objection an d n ew evidenc e in violation of t he rule s o f p ro cedur e,” (2) “denied Thomas’s motion for continuance despite a clear indication i n t h e i ntere st of justice for a continuance ,” (3) “denie d Thomas the privileg e of oral
arg ument in s u

p p o r t o f h is mo ti o n f

o r s ummary judgme nt,” (4) “cur tailed Thomas’s arg

ument ag ainst [t he Ba nk Def endants’] motion for summary judgme nt,” (5) “over looked the clea r standard for deny ing a summary judgme nt motion,” and (6) “denie d Thomas’s statutory rig ht to an appra isal of the proper

ty at the time of taking .” Thomas arg ues, in essenc e, that the trial court’s err oneous leg al

19ruling s on these matters establish that the court was b i as ed ag ainst him, and there fore , he was

“unable to obta in a fair and impartial hear ing.”

Be fore deter

mining whether the rec ord establishes that Thomas did not obtain a fair and im partial h ea ri n g, g ener ally , we first consider Thomas’s s pecif ic arg ument that the t rial court

err ed in deny ing his motion fo r co n t i n u ance of the summary -judg ment hear ing. I n his motion, Thomas arg ued that a contin u an ce of the hear ing was nece ssary beca use he had rec ently rec eived “36 pag es of new information and evidenc e” i n re s p onse to his motion for summary judgme nt and the various objec tions presented by the Bank Defenda

nts. Thomas contended t hat he was “in the proce ss of hiring new leg al counsel to re p re s en t him” and had “not had time to rese arc h the information and adequa

tely repr esent himself.” A decision on a motion for continuance lies within the discretion of the trial court, and an appellate court will not distur b a t ri al court’s denial of a motion for continuance unless the re cord reve als a clea r abuse of discretion. BMC Software Belg.

v. Marchand , 83 S.W .3d 789, 800 (Tex. 2002)

.

Ba sed on the rec ord befor e us, including (1) the fac t that no additional discovery was reque sted by

Thomas, (2) the amount of time that the ca se had be en on file, and (3) the a mount of time that the summary -judg ment motion had been on file, we cannot conclude that t h e t ri al court abused its discretion in deny ing Thomas’s motion for continuance

. See Perotta v. Farmer s Ins. Exc h. , 4 7 S

. W

. 3 d 569, 576 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (fa ctors for deciding whether trial court abused its discretion in deny ing motion for continuance ); Gree n v. Cook , No. 02- 08-00087-CV, 2009 WL 279384, *17-18 (Tex. App.—For t Worth Fe b. 5, 2009, no pet.) (mem. op.) (cour t revie wing ruling on motion for continuance considers “natur e and complexit y of the case , the
nature of the evidenc e require d to addre ss the motion, how long the motion has been on file, and if
20the absenc e o f counsel is an issue, whether the absenc e is the fault of the continuance -re questing

party ”). Simi larly , we cannot conclude that the trial court’s ref usal to allow Thomas to orally arg ue his motion for summary judgme nt or to prese nt additional arg ument in response to the Ba nk Def endants’ summary -judg ment motion repr esents an abuse of discretion. See Long v. Y urrick , 319 S.W .3d 944, 948 (Tex. App.—Austin 2010, no pet.) (citing Martin v

. Martin, Martin & Richards, Inc. , 989 S.W .2d 357, 359 (Tex. 1998) (per curia m)) (“D ue proce ss does not require an oral hear ing

on a motion for summary judgme nt, but notice of hear ing or submissi on of the motion is require d.”).

Fi n all y , we examine whether the rec ord as a whole demonstrates that Thomas d i d
not rec eive a fair trial as a result of judicial bias. The United States Supreme Court has deter mined that “judi ci al ru l i n g s alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States , 510 U.S. 540, 555 (1994). To the extent Thomas complains of judicial ruling s, we have separ ately considere d the merits of eac h arg ument that Tho m as h as ad equate ly briefe d and have conclude d that the ruling s are not in err or or a n abuse of

discretion. Aside fr om

5 judicial ruling s, Thomas points to nothing i n t h e re co rd as evidenc e of bias ag ainst him. See id

. (re cog nizi ng that “judicial rema rks during the course of a trial that are critica l or disapproving of, or

even hostile to, counsel, the parties, or their case s, ordinarily do not supp o rt a bias or partiality challeng e”)

. I n any ev en t , we have review ed the rec ord and conclude that there is no evidenc e of judicial bias. Thomas’s seventh issue on appea l is overr uled.

Thomas does not prese nt any arg ument, authorities, or citation to the rec ord in support of 5 his contention t hat t he trial court “allowed objection and new evidenc e in vi olation of the rules of proce dure.” Acc ording ly , we conclude t h at t h i s ar g ument is waived as inadequa tely briefe d. See Tex. R. App. P. 38.1( I ) (appe llant’s brief must c ontain clea r and conc ise arg ument for c ontentions made, with appr opriate c itations to authorities and to recor d). 21CONCLUSION Having sustained Thomas’s fourth issue on appea l and, in part, his first issue on appea l, we reve rse the trial court’s summary judgme nt wit h respe ct to the Ba nk’s claims for a defic iency judgme nt a

nd for attorney ’s fee s, and we r emand those portions of the cause to the trial
court for further proce eding s consistent with this opinion. W e af fi rm t h e rema inder of the trial court’s summary judgme nt.

__________________________________________ Scott K. Field, J ustice Be fore J ustices Pury ear , Goodwin and Field Affir med in Par

t, Re verse d and Remanded in Par t Filed: April 4, 2013

22