NUMBER 13-14-00494-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

REY ORTIZ, Appellant,

v.

LUIS MANUEL SINGLETERRY, Appellee.

On appeal from the 92nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

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

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

Singleterry regarding the March 4, 2014 Democratic Primary Election for the 92nd District 
2

Court of Hidalgo County, Texas.

1

 See TEX. ELEC. CODE ANN. § 232.002 (West, Westlaw 

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

reverse and render. 

I. BACKGROUND

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

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

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

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

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

machine he utilized. 

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

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

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

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

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

5. This suit is brought for the purpose of contesting the Hidalgo 

County 92nd Judicial District Court, Democratic Primary Election. Said 

election was held on March 4, 2014, and the Canvass was conducted on 

March 14, 2014 at which time the official election results were determined 

to be as follows:

Candidate Votes Received Percent 

Miguel Wise 5,145 12.35%

Luis Manuel Singleterry 24,127 57.79%

 

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

jurisdiction in the underlying case and in a companion case. See Cuellar v. Maldonado, Nos. 13-14-00228-

CV & 13-14-00230-CV, 2014 WL 2158135, at *1 (Tex. App.—Corpus Christi May 16, 2014, no pet.) (mem. 

op.) (consolidated opinion). By separate opinion issued this same date, this Court addresses the trial 

court’s imposition of sanctions in the companion case. See Cuellar v. Maldonado, No. 13-14-00491-CV, 

2015 WL ___, at *_ (Tex. App.—Corpus Christi Mar. 5, 2015, no pet. h.) (mem. op.). 
3

Rey Ortiz 12,466 29.86%

Contestee Luis Manuel Singleterry was declared the winner because 

he received more than 50% of the votes.

6. Contestant will prove by clear and convincing evidence that a 

sufficient number of illegal votes were counted to affect the outcome of the 

election; that either through malfunction or illegal manipulation, voters who 

voted for one candidate had their votes re-cast for other candidates and that 

persons who voted for Rey Ortiz had their votes counted for one of the other 

candidates (Exh. A); election machines either malfunctioned or were 

illegally tampered with to affect the outcome of the election (Exhs. A & B); 

election officials or other persons officially involved in the administration of 

the election witnessed that election machines appeared to either 

malfunction or were tampered with so that the outcome of the election was 

affected (Exhs. B & C); many complaints were brought to the attention of 

the Hidalgo County Elections Administrator to raise doubts concerning the 

accuracy of the election results and of the functioning of the election 

machines Id.; the election process failed to count legal votes, and/or 

engaged in other fraud or illegal conduct or made mistakes that precluded 

an accurate count of the vote cast.

7. Contestant would also aver that there were irregularities in the 

casting and counting of ballots in this election to the extent that the true 

outcome would result in the Contestant being declared the winner or that 

the true election result cannot be ascertained, thereby requiring the voiding 

of the election and the need for a new election.

8. Contestant would also aver that the election machines used 

in the election be inspected by the appropriate expert or authority 

designated by the Court to determine if the election machines were either 

faulty or were tampered with so that the true outcome of the election was 

affected.

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

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

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

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

different machine to cast his vote. 
4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

use.

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

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

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

attention that numerous inconsistencies and discrepancies have appeared in our analysis 

of each candidate’s races. We therefore ask that a forensic expert inspect each voting 
5

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

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

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

will be without question.”

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

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

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

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

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

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

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

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

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

the results of the forensic examination of the voting machines. 

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

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

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

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

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

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

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

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

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

objection to the assignment of the trial court; (2) the trial court lacked the authority to grant 
6

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

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

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

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

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

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

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

II. ELECTION CONTESTS

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

221.003(a) of the election code as follows:

(a) The tribunal hearing an election contest shall attempt to ascertain 

whether the outcome of the contested election, as shown by the final 

canvass, is not true because:

(1) illegal votes were counted; or

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

administration of the election:

(A) prevented eligible voters from voting;

(B) failed to count legal votes; or

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

mistake.

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

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

 

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

submission on February 26, 2015 pursuant to the appellate rules. See TEX. R. APP. P. R. 39.8 (delineating 

the requirements for the appellate clerk to provide notification of the date that a case is set for submission); 

Id. R. 2 (allowing appellate courts to suspend a rule’s operation in a particular case and order a different 

procedure). On February 24, 2015, Singleterry filed an amended motion for leave to file his brief and 

tendered his brief to the Court that same day. We grant leave and accept Singleterry’s brief as filed. 
7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. OBJECTION TO ASSIGNMENT

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

orders in this case because he had filed a timely, mandatory objection to the assignment 
8

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

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

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

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

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

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

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

objection as per the following order: 

Each Contestant, MARLA CUELLAR and REY ORTIZ, in the above 

captioned causes, has filed an Objection to Assignment against Judge J. 

Manuel Bañales, Senior Judge, the Judge assigned to each cause. Each 

objection was filed under § 74.053 of the Government Code.

These two causes are election contests brought under § 231 and §

232 of the Election Code. In an election contest, the judge of the judicial 

district in which an election contest is filed is automatically disqualified from 

presiding in the cause. Section 231.004(b), Elec. C., requires that the 

Presiding Judge of the Administrative Judicial Region shall then appoint a 

special judge to preside in the contest. The assigned judge must not reside 

in the territory covered by the election contest. Judge Bañales does not 

reside in the territory covered by the election contest. Judge Bañales was 

assigned under § 231.004(b), Elec. C.

Section 74.053(a) and (b), Govt. C., provide that a party in a civil 

case may file an objection to a judge assigned “to a trial court under this 

chapter” [emphasis added]. Judge Bañales was not assigned under 

[c]hapter 74 of the Government Code. The plain language of §74.053, Govt. 

C., provides that an objection under § 74.053, Govt. C., applies only to an 

assignment under [c]hapter 74 of the Government Code. Accordingly, the 

Contestants’ objections must be overruled.

IT IS THEREFORE ORDERED that the Contestants’ objections to 

the assignment of Judge J. Manuel Bañales in these election contests be 

and are each OVERRULED.

Section 74.053 of the Texas Government Code provides: 

(a) When a judge is assigned to a trial court under this chapter:
9

(1) the order of assignment must state whether the judge is an 

active, former, retired, or senior judge; and

(2) the presiding judge shall, if it is reasonable and practicable 

and if time permits, give notice of the assignment to each 

attorney representing a party to the case that is to be heard 

in whole or part by the assigned judge.

(b) If a party to a civil case files a timely objection to the assignment, the 

judge shall not hear the case. Except as provided by Subsection (d), 

each party to the case is only entitled to one objection under this 

section for that case.

(c) An objection under this section must be filed not later than the 

seventh day after the date the party receives actual notice of the 

assignment or before the date the first hearing or trial, including 

pretrial hearings, commences, whichever date occurs earlier. The 

presiding judge may extend the time to file an objection under this 

section on written motion by a party who demonstrates good cause.

(d) An assigned judge or justice who was defeated in the last primary or 

general election for which the judge or justice was a candidate for 

the judicial office held by the judge or justice may not sit in a case if 

either party objects to the judge or justice.

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

objection.

(f) For purposes of this section, notice of an assignment may be given 

and an objection to an assignment may be filed by electronic mail.

(g) In this section, “party” includes multiple parties aligned in a case as 

determined by the presiding judge. 

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

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

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

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

orig. proceeding). 

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

applied to assignments made in election contest cases, and thus Judge Bañales should 
10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

were not applicable where judges exchanged benches under state constitutional 

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

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

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

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

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

Holmes v. Lanford, 837 S.W.2d 705, 710 (Tex. App.—Houston [14th Dist.] 1992, orig. 
11

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

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

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

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

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

judicial region).

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

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

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

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

IV. BASIS FOR ATTORNEY’S FEES AWARD

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

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

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

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

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

these issues together.

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

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

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

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

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

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

permitted by statute or by contract. See 1/2 Price Checks Cashed v. United Auto. Ins. 
12

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

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

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

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

As in any case, the award of sanctions, attorney’s fees or costs must 

be pled in the party’s petition or answer or in a motion for sanctions. Except 

in a limited number or actions, without a filed pleading or motion for 

sanctions, attorney’s fees or costs, a party is not entitled to recover on any 

of these items. In addition, a party may recover only what he or she pleads 

for.

The Court finds that Contestee SINGLETERRY’s claim for attorney’s 

fees or costs is found in his Original Answer, in which he makes a general 

claim for attorney’s fees or costs, but did not ask for sanctions. He did not 

amend his Answer to include a sanctions award nor did he file a motion for 

sanctions. His claim is therefore limited to attorney’s fees or costs.

. . . .

Robert Salinas, attorney for Contestee SINGLETERRY, testified on 

his client’s claim for sanctions, attorney’s fees and costs. The record details 

his work on the case. In sum, for the amount of hours that he worked on 

the case at his hourly rate, he requested attorney’s fees of $28,500.00 and 

costs of court. He also requested sanctions from Contestant ORTIZ and 

his counsel, Rolando Rios, in the amount of $25,000.00. However, it is not 

necessary to discuss Mr. Salinas’ testimony in support of his claim for 

sanctions, because his claim for sanctions is not supported by his pleadings 

or by motion.

The Court will award Contestee SINGLETERRY attorney’s fees of 

$28,500.00 and costs of court. The Court will deny Contestee 

SINGLETERRY any award for sanctions against the Contestant or his 

counsel.

. . . .

IT IS FURTHER ORDERED that, in Cause No. C: 2191-14-A, in the 

cause Rey Ortiz v. Luis Manuel Singleterry, in the 92nd District Court of 

Hidalgo County, Contestee LUIS MANUEL SINGLETERRY be and is 

hereby awarded attorney’s fees in the amount of $28,500.00 and that 

Contestant REY ORTIZ and his attorneys, Rolando Rios, Jose Garza and 

Martin Golando, are jointly and severally liable for sanctions and attorney’s 

fees in the amount of $28,500, all costs of court, and post-judgment interest 
13

on this entire amount from today’s date at the rate of 5% until satisfied, for 

which let execution issue. 

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

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

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

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

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

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

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

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

fees as sanctions. 

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

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

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

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

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

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

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

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

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

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

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

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

“judgment of the court shall conform to the pleadings”). 
14

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

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

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

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

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

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

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

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

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

Singleterry also contends that the imposition of sanctions should be affirmed 

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

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

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

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

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

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

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

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

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

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

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

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

evidence on the issue is developed under circumstances indicating both parties 

understood the issue was present in the case, and the other party failed to make an 
15

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

denied). In the absence of such notice, the trial court erred if it awarded the fees as 
16

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

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

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

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

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

issue. 

V. CONCLUSION

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

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

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

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 

5th day of March, 2015.