Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-21-00171-CV

Leticia RODRIGUEZ,

Appellant/Cross-Appellee

v.

Lydia RODRIGUEZ and Robert Pereida,

Appellees/Cross-Appellants

From the 224th Judicial District Court, Bexar County, Texas

Trial Court No. 2017CI19456

Honorable Cynthia Marie Chapa, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Irene Rios, Justice

Liza A. Rodriguez, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: December 21, 2022

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

This is an appeal from a judgment awarding title to real property to Leticia Rodriguez. 

Leticia appeals the amount of damages awarded to her, arguing the trial court erred in reducing

her award in an amount equal to “improvements testified to by Defendants [Lydia Rodriguez and 

Robert Pereida].” In addition, Lydia and Robert have filed a cross-appeal, arguing the trial court 

erred in awarding title to the property in question to Leticia. We affirm in part, and reverse and 

render in part.
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BACKGROUND

The property at issue is a house located on Jewell Street in San Antonio that was previously 

owned by Francisca Rodriguez (Leticia and Lydia’s mother). During her lifetime, Francisca 

executed four deeds with respect to her Jewell Street home (“the Property”). On March 3, 2008, 

Francisca conveyed a fee simple interest to Leticia (“2008 Deed”). On June 27, 2008, Francisca 

signed a Correction Special Warranty Gift Deed that conveyed the Property to Leticia but reserved 

a life estate (“2008 Correction Deed”). On February 27, 2011, Francisca conveyed the Property to 

Lydia (“2011 Deed”). On October 29, 2015, the day Francisca died, Lydia acting as “attorney in 

fact” for Francisca executed a warranty deed that conveyed the Property to herself and her then 

husband Robert Pereida (“2015 Deed”).

Francisca purchased the Property in 1960 and lived there until September 2009. Leticia 

lived at the Property from March 2008 until she was evicted by Francisca in March 2011. Lydia, 

acting on behalf of Francisca through a power of attorney, filed a forcible detainer action, arguing 

that Francisca had a right to possess the Property by virtue of her life estate as enunciated in the 

2008 Correction Deed. On May 10, 2011, the trial court granted a writ of possession in favor of 

Francisca, and Francisca regained possession of the Property. On October 29, 2015, after suffering 

from cardiac arrest, Francisca passed away.

On October 10, 2017, Leticia filed suit against Lydia and Robert, alleging that she had not 

learned of the 2011 Deed or the 2015 Deed “until after her mother passed away.” She stated that 

due to these subsequent deeds, she had an existing cloud on title to the Property. At the time of the 

bench trial, Leticia’s live pleading (her Third Amended Petition) alleged a trespass to try title 

action, seeking declaration that (1) the 2008 Deed conveyed a fee simple interest in the Property

to Leticia; or (2) alternatively, the 2008 Correction Deed conveyed the remainder interest in the 
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Property to Leticia. Leticia also brought a suit to quiet title, arguing that because Francisca no 

longer owned a fee simple interest in the Property after 2008, the 2011 and 2015 Deeds were void. 

In response to the lawsuit, Lydia and Robert countersued. In their live petition (First 

Amended Counterpetition), they alleged Leticia fraudulently induced Francisca to execute the 

2008 Deed. They also alleged that after Leticia was evicted from the Property in 2011, they had 

adversely possessed the Property.

After a bench trial, the trial court signed a final judgment, granting relief for Leticia on her 

trespass to try title suit and denying Lydia and Robert’s claims for adverse possession and 

fraudulent inducement. The final judgment granted Leticia “title, conclusive against [Lydia and 

Robert], to the real property at issue in this cause of action.” It also declared the 2011 Deed and 

the 2015 Deed “invalid and of no legal consequence.” It further found that the 2008 Correction 

Deed “correct[ed] and supplant[ed]” the 2008 Deed. The final judgment further stated that Leticia 

was entitled to a writ of possession ordering her to be placed in possession of the Property. Finally, 

the final judgment ordered that Leticia recover from Lydia and Robert, jointly and severally, 

damages “in the net amount of $900.00, representing the value for the use and occupation of the 

Property at $600.00 per month from November 1, 2015, through October 1, 2020, reduced by 

improvements testified to by Defendants [Lydia and Robert].” 

Leticia appealed the final judgment, arguing that the trial court erred in reducing the 

amount of damages awarded to her by “improvements testified to by Defendants [Lydia and 

Robert].” Lydia and Robert filed a cross-appeal, arguing that (1) the trial court lacked subjectmatter jurisdiction over Leticia’s claims; (2) the trial court erred in determining that Leticia 

obtained title to the property by virtue of the 2008 Correction Deed; and (3) assuming Leticia 

obtained title to the Property by virtue of the 2008 Correction Deed, “her 2017 action would have 
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been time-barred in view of her 2011 ouster and Lydia’s continuous adverse possession 

thereafter.” We will first address the arguments made in Lydia and Robert’s cross-appeal. 

SUBJECT MATTER JURISDICTION

“Jurisdiction” refers to “the power of a court, under the Constitution and laws, to determine 

the merits of an action between parties and to render a judgment.” Gordon v. Jones, 196 S.W.3d 

376, 382 (Tex. App.—Houston [1st Dist.] 2006, no pet.). “Subject-matter jurisdiction refers to the 

court’s power to hear a particular type of suit.” Id.; see CSR Ltd. v. Link, 925 S.W.2d 591, 594 

(Tex. 1996). Subject-matter jurisdiction “exists by operation of law only, and cannot be conferred 

upon any court by consent or waiver.” Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000).

Lydia and Robert argue for the first time on appeal that the trial court lacked subject matter 

jurisdiction over the underlying lawsuit because only a statutory probate court would have subject 

matter jurisdiction over Leticia’s cause of action. According to Lydia and Robert, Francisca’s heirs 

were indispensable parties to Leticia’s cause of action pursuant to Texas Rule of Civil Procedure 

39(b) and should have been joined in the underlying action. They reason that because the heirs 

should have been joined as indispensable parties, only a statutory probate court would have subject 

matter jurisdiction over Leticia’s claims. The basis of their argument stems from the possibility, 

as they see it, that none of the four deeds at issue in the underlying case were valid. In making this 

argument, they recognize that they did not argue the heirs were indispensable parties in the trial 

court. Nevertheless, they argue that preserving error was not necessary because the trial court’s 

failure to join the heirs as indispensable parties was fundamental error that deprived the trial court 

of subject matter jurisdiction. In response, Leticia emphasizes that Lydia and Robert’s argument 

is based on the mere possibility that Francisca’s heirs had some interest in the Property. Leticia 

argues that the trial court, as a district court with general jurisdiction, had subject matter 

jurisdiction over her trespass to try title suit.
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“Under circumstances such as this, where jurisdiction is challenged for the first time on 

appeal, [the supreme court] ha[s] noted that plaintiffs do not have the same opportunities to 

replead, direct discovery to, or otherwise address the jurisdictional issue as they have when 

standing is raised in the trial court.” RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 429 (Tex. 

2016). “Thus, when an appellate court is the first to consider jurisdictional issues, it construes the 

pleadings in favor of the plaintiff and, if necessary, reviews the record for evidence supporting 

jurisdiction.” Id.

Here, in her petition, Leticia pled a trespass-to-try-title claim. “An action in trespass-totry-title, or to quiet title, is a procedure by which rival claims to title or right of possession to real 

property may be adjudicated.” Gordon, 196 S.W.3d at 382. A district court “has general, subjectmatter jurisdiction over suits involving title to land.” Id.; see TEX. CONST. art. V, § 8 (district court 

has exclusive, original jurisdiction of “all actions, proceedings, and remedies,” except when the 

constitution or other law confers jurisdiction on some other court); TEX. GOV’T CODE § 24.007 

(“The district court has the jurisdiction provided by Article V, Section 8 of the Texas 

Constitution.”); TEX. PROP. CODE § 22.001–.045 (governing trespass-to-try-title actions). As a 

district court, the trial court had subject-matter jurisdiction over Leticia’s claim. Further, the 

pleadings in this case do not raise the issue of Francisca’s heirs having an interest in the Property. 

It is undisputed that the four deeds at issue in the underlying litigation were executed before

Francisca’s death. Thus, there was no issue in the trial court that the Property could have 

transferred to Francisca’s estate upon her death. Instead, Leticia challenged the deeds conveyed to 

Lydia on the ground that the Property had previously been conveyed to Leticia. In reviewing this 

appellate record, we find no basis to hold the trial court lacked subject-matter jurisdiction over the 

underlying suit. See Brown v. Snider Indus., LLP, 528 S.W.3d 620, 625 & n.6 (Tex. App.—
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Texarkana 2017, pet. denied) (rejecting appellant’s argument in trespass to try title action that the 

trial court’s failure to compel joinder amounted to fundamental error). 

We note that in support of their argument, Lydia and Robert rely heavily on a memorandum 

opinion issued by the Thirteenth Court of Appeals: In re Frank Schuster Farms, Inc., No. 13-10-

00225-CV, 2010 WL 2638481 (Tex. App.—Corpus Christi-Edinburg June 29, 2010, orig. 

proceeding [mand. denied]) (mem. op.). That case, however, is factually distinguishable. In 

Schuster Farms, the property at issue belonged to the decedent’s estate. Id. at *1. The decedent 

had created a corporation for the purpose of farming land that he owned; however, he did not 

transfer all of the land he owned to the corporation. Id. Thus, when he died, some of the land 

transferred to his estate. Id. Later, it was discovered that this land had not been distributed to the 

heirs in the probate proceeding. Id. Nevertheless, the corporation used the land, “but did not pay 

rent on the tracts or otherwise compensate the decedent’s heirs, nor did it share royalties on the 

mineral interests.” Id. One of the heirs sued the corporation in probate court, alleging that it had 

misrepresented the contents of her father’s estate, converted the estate’s assets, and committed 

fraud, statutory fraud, negligent misrepresentation, and breach of fiduciary duty. Id. Five months 

later, the estate’s executor transferred its interest in the land to the heirs. Id. A year later, the 

corporation sued the heir in district court, seeking to quiet title to the land at issue by arguing it 

owned title through adverse possession. Id. The heir then filed in the probate court a motion to 

transfer the district court action to probate court. The probate court granted the motion and signed 

“an order transferring the district court cause to itself and ordered that the district court cause be 

consolidated with the pending probate proceeding.” Id. 

The corporation then sought mandamus relief, arguing that “because the decedent’s estate 

conveyed whatever interest it might have had in the subject properties to the heirs during the 

pendency of the probate proceeding but prior to the initiation of the district court proceeding, the 
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district court proceeding was not related to a pending probate proceeding.” Id. at *5. The court of 

appeals rejected this argument, explaining that the lawsuit in district court involved “title to and 

ownership of land and [was] one pertaining to the collection, settlement, and distribution of the 

estate of the decedent.” Id. “Accordingly, under the former law, the lawsuit in the district court 

was appertaining to or incident to an estate under the explicit terms of the probate code, and thus 

the probate court had statutory authority to transfer that lawsuit to itself.” Id. In the instant case, 

however, there is no allegation that the Property transferred to Francisca’s estate. As a matter of 

fact, it is undisputed that all four deeds were executed before her death. Additionally, unlike in 

Schuster Farms, there is no pending probate proceeding. Accordingly, the analysis in Schuster 

Farms simply does not apply to the facts of this case. 

2008 CORRECTION DEED

The trial court determined that (1) the 2008 Correction Deed corrected and supplanted the 

2008 Deed and that (2) based on the 2008 Correction Deed, Leticia was entitled to a writ of 

possession. On appeal, Lydia and Robert argue the trial court erred in finding the 2008 Correction 

Deed valid because they believe the 2008 Correction Deed would have only transferred title to 

Leticia after she had paid the outstanding property taxes. In support of this argument, they point 

to language in the deed itself. “The construction of an unambiguous deed is a question of law for 

the court,” which we review de novo. Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017) (quoting 

Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991)). “When construing an unambiguous deed, our 

primary duty is to ascertain the intent of the parties from all of the language within the four corners 

of the deed.” Id.

“A warranty deed will pass all of the estate owned by the grantor at the time of the 

conveyance unless there are reservations or exceptions that reduce the estate conveyed.” Cook v. 

Nissimov, 580 S.W.3d 745, 751 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (citing Day 
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& Co., Inc. v. Texland Petroleum, Inc., 786 S.W.2d 667, 668 (Tex. 1990)). Thus, “[a]n owner who 

wishes to reserve a right or easement from conveying with the conveyed property must make the

reservation by clear language.” Id. at 751-52 (emphasis added).

“The words ‘exception’ and ‘reservation,’ though at times used interchangeably, each has 

its own separate meaning.” Id. at 752. “A reservation is the creation of a new right in favor of the 

grantor.” Id. “An exception, by contrast, operates to exclude some interest from the grant.” Id. 

“Although an ‘exception’ can refer to any ‘mere exclusion from the grant,’ a ‘reservation’ must 

‘always be in favor of and for the benefit of the grantor.’” Id. (quoting Perryman v. Spartan Tex. 

Six Cap. Partners, Ltd., 546 S.W.3d 110, 199 (Tex. 2018)). As a general rule, reservations and 

exceptions in a deed are strongly construed against the grantor and in favor of the grantee. Reagan 

v. Marathon Oil Co., 50 S.W.3d 70, 80 (Tex. App.—Waco 2001, no pet.); Graham v. Kuzmich, 

876 S.W.2d 446, 449 (Tex. App.—Corpus Christi-Edinburg 1994, no pet.). Finally, “when 

construing obligations in a deed, we look to its plain language.” Chicago Title Ins. Co. v. Cochran 

Invs., Inc., 602 S.W.3d 895, 904 (Tex. 2020).

The 2008 Correction Deed states the following:

Reservations from Conveyance:

For Grantor and Grantor’s assigns, a reservation of the full possession, benefit, 

and use of the Property for the remainder of the life of Grantor, as a life estate.

Grounds for Corrected Conveyance:

This conveyance corrects a warranty deed from Grantor to Grantee, dated 

March 3, 2008 . . . signed in error. The original deed did not contain the life estate 

which the grantor was to reserve for herself nor did it contain a provision for the 

grantee to take subject to the outstanding ad valorem tax liability.

Exceptions to Conveyance and Warranty:

Validly existing easements, rights-of-way, and prescriptive rights, whether of 

record or not; all presently recorded and validly existing instruments, other than 

conveyances of the surface fee estate, that affect the Property; and taxes for 2008 
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and for prior years, which Grantee assumes and agrees to pay, and subsequent 

assessments for that and prior years due to change in land usage, ownership, or 

both, the payment of which Grantee assumes. 

Grantor, for the Consideration and subject to the Reservations from 

Conveyance and the Exceptions to Conveyance and Warranty, grants, gives, and 

conveys to Grantee the Property, together with all and singular the rights and 

appurtenances thereto in any way belonging, to have and to hold it to Grantee and 

Grantee’s heirs, successors, and assigns forever. Grantor binds Grantor and 

Grantor’s heirs and successors to warrant and forever defend all and singular the 

Property to Grantee and Grantee’s heirs, successors, and assigns against every 

person whomsoever lawfully claiming or to claim the same or any part thereof when 

the claim is by, through, or under Grantor but not otherwise, except as to the 

Reservations from Conveyance and the Exceptions to Conveyance and Warranty.

As a material part of the Consideration for this deed, Grantor and Grantee agree 

that Grantee is taking the Property “AS IS” with any and all latent and patent defects 

and that there is no warranty by Grantor that the Property has a particular financial 

value or is fit for a particular purpose. Grantee acknowledges and stipulates that 

Grantee is not relying on any representation, statement, or other assertion with 

respect to the Property condition but is relying on Grantee’s examination of the 

Property. Grantee takes the Property with the express understanding and stipulation 

that there are no express or implied warranties except for limited warranties of title 

set forth in this deed. 

The plain language of the 2008 Correction Deed clearly reserves a life estate for Francisca. 

Lydia and Robert argue that the deed also conditioned the passage of title to Leticia upon her 

payment of “taxes for 2008 and for prior years.” We disagree with this interpretation of the deed. 

The phrase “taxes for 2008 and for prior years, which Grantee assumes and agrees to pay” is found 

in the paragraph titled “Exceptions to Conveyance and Warranty.” Lydia and Robert contend the 

phrase refers to an exception from title. However, such an interpretation is illogical as liability for 

payment of property taxes is not part of the estate conveyed. See Rancho Viejo Cattle Co. v. ANB 

Cattle Co., 642 S.W.3d 850, 859 (Tex. App.—San Antonio 2021, pet. filed) (explaining that “[f]ee 

ownership is the right to possess the entire bundle of sticks”—that is, “the entire group of rights—

the right to use, possess, and dispose—associated with the property”). Instead, property taxes are 

imposed on real property by taxing units. See TEX. TAX CODE §§ 1.02, 1.04, 11.01. Accordingly, 
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for the phrase “taxes for 2008 and for prior years” to make logical sense in the context of the entire 

deed, the phrase must refer to the concept of liability. That is, the phrase communicates that 

Grantor does not warrant the payment of past taxes; thus, the language places the Grantee on notice

that the payment of taxes for 2008 and prior years may still be outstanding and that the Grantor is 

not promising the payment of any taxes assessed before conveyance. See Franz v. Katy Indep. Sch. 

Dist., 35 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“One who purchases 

property does so subject to any delinquent taxes.”).

This interpretation is consistent with the language contained in other provisions of the deed. 

Lydia and Robert argue the “subject to” clause in the granting paragraph reflects the grantor’s 

intent for title to pass only when the property taxes were paid. “Generally, ‘the principal function 

of a subject-to clause in a deed is to protect a grantor against a claim for breach of warranty when 

some mineral’ or other interest is outstanding.” See Barrow Shaver Res. Co. v. NETX Acquisitions, 

LLC, No. 06-20-00081-CV, 2021 WL 3571394, at *5 (Tex. App.—Texarkana Aug. 13, 2021, pet. 

denied) (quoting Wenske, 521 S.W.3d at 796). Here, the granting clause states that “Grantor, for 

the Consideration and subject to the Reservations from Conveyance and the Exceptions to 

Conveyance and Warranty, grants, gives, and conveys to Grantee the Property, together with all 

and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to 

Grantee and Grantee’s heirs, successors, and assigns forever.” (emphasis added). In reading the 

entire deed as a whole document, we conclude this “subject to” language is consistent with our 

interpretation of the phrase “taxes for 2008 and prior years” referring to the concept of warranty. 

Consistent with our interpretation, the granting clause grants and conveys the Property to Leticia 

subject to the reservation (i.e., Francisca’s life estate) and the Exceptions to Conveyance (i.e., any 

validly existing easements, rights-of-way, and prescriptive rights) and Warranty (i.e., the liability 

for past and future taxes on the Property). Accordingly, we disagree with Lydia and Robert that 
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the passage of title was conditioned on the payment of taxes. We conclude the “subject to” clause 

does not affect the interest conveyed to Leticia because the subject to clause is intended to protect 

the grantor from claims for breach of warranty. 

Lydia and Robert further argue that the phrase “agrees to pay” imposes an obligation on 

Leticia and makes the passage of title conditional. As noted, the phrase in question states, “taxes 

for 2008 and for prior years, which Grantee assumes and agrees to pay, and subsequent 

assessments for that and prior years due to change in land usage, ownership, or both, the payment 

of which Grantee assumes.” We disagree with Lydia and Robert that this language makes the entire 

deed conditional. The language is consistent with a warranty provision, as it is emphasizing that 

the Grantor has not warranted payment of taxes and the Grantee has instead agreed to pay that 

obligation imposed by taxing units. We thus hold that Leticia’s title to the Property was not 

conditioned on her payment of the taxes. Accordingly, the trial court did not err in finding the 2008 

Correction Deed valid, and the later 2011 and 2015 deeds invalid and of no consequence. 

ADVERSE POSSESSION

Lydia and Robert also bring an issue with respect to adverse possession. Having held that 

the 2008 Correction Deed passed title to Leticia, we need not address Lydia and Robert’s adverse 

possession argument with respect to the first 2008 Deed. With respect to the 2008 Correction Deed, 

the record reflects that Francisca evicted Leticia from the Property in 2011 because Francisca’s 

life estate gave her greater right of possession. Thus, Francisca evicting Leticia from the Property 

in 2011 was not inconsistent or hostile to Leticia’s interest in the Property. See TEX. CIV. PRAC. &

REM. CODE ANN. § 16.021(1). We conclude Lydia and Robert’s adverse possession argument has 

no merit.
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DAMAGES

Having addressed Lydia and Robert’s cross-appeal, we now consider Leticia’s appellate 

issue: whether the trial court erred in reducing the damages awarded to her by “improvements 

testified to by Defendants [Lydia and Robert].” Leticia argues Lydia and Robert were required to 

affirmatively plea for an offset in the amount of improvements they made to the Property, and 

because they failed to do so, the trial court erred in reducing Leticia’s award. 

A judgment must conform to the pleadings filed in a case. TEX. R. CIV. P. 301. “Thus, a 

party may not be granted relief in the absence of pleadings to support that relief.” Cunningham v. 

Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983). As noted, the trial court’s judgment in this case 

awarded damages to Leticia “in the net amount of $900.00, representing the value for the use and 

occupation of the Property at $600.00 per month from November 1, 2015, through October 1, 

2020, reduced by improvements testified to by Defendants [Lydia and Robert].” (emphasis added). 

Section 22.021 of the Texas Property Code, titled “Claim for Improvements,” allows a defendant 

in a trespass to try title action to seek compensation for improvements to the property upon certain 

specified pleadings and proof. See Lemus v. Aguilar, 491 S.W.3d 51, 61 (Tex. App.—San Antonio 

2016, no pet.) (“Texas Property Code section 22.021 does not allow for direct reimbursement for 

money spent, but rather for the value of the improvements offset by the value of use and 

occupancy.”). Specifically, section 22.021 requires a defendant in a trespass to try title action to 

plead:

(1) that the defendant and those under whom the defendant claims have had good faith 

adverse possession of the property in controversy for at least one year before the date 

the action began;

(2) that they or the defendant made permanent and valuable improvements to the property 

while in possession;

(3) the grounds for the claim;
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(4) the identity of the improvements; and

(5) the value of each improvement.

TEX. PROP. CODE § 22.021(c). Thus, for the trial court’s judgment to conform with the pleadings 

in this case, Lydia and Robert needed in their pleadings to state a claim for improvements pursuant 

to section 22.021.

In response, Lydia and Robert emphasize the general legal principle that the trial court, as 

fact finder, had discretion to adjust Leticia’s award. See Vela v. Wagner & Brown, Ltd., 203 S.W.3d 

37, 49 (Tex. App.—San Antonio 2006, no pet.) (explaining that the “jury generally has had broad 

discretion to award damages within the range of evidence presented at trial”). Lydia and Robert’s 

argument, however, ignores the fact that the trial court in its judgment specifically stated it reduced

Leticia’s award by “improvements testified to by Defendants [Lydia and Robert].” Thus, the trial 

court explicitly credited Lydia and Robert for improvements they made. Accordingly, unless Lydia 

and Robert’s pleadings support such a claim under section 22.021 (or unless the issue was tried by 

consent), the trial court erred in signing a judgment that did not conform to the pleadings. See 

Montoya v. Gutierrez, No. 04-19-00070-CV, 2019 WL 5580263, at *3 (Tex. App.—San Antonio 

2019, no pet.) (holding that because defendant did not plead her affirmative bona fide purchaser 

defense and because the issue was not tried by consent, the trial court erred in signing a judgment 

“based on her bona fide purchaser defense when it was neither pleaded [n]or tried by consent”). 

We first consider whether Lydia and Robert’s pleadings state a claim for improvements pursuant 

to section 22.021. 

Texas is a fair notice pleading jurisdiction. See TEX. R. CIV. P. 45; In re M.G.N., 491 

S.W.3d 386, 406 (Tex. App.—San Antonio 2016, pet. denied). Under this standard, we look to 

“whether the opposing party can ascertain from the pleading the nature and basic issues of the 

controversy and what testimony will be relevant.” Porterfield v. Deutsche Bank Nat’l Tr. Co., No. 
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04-20-00151-CV, 2021 WL 4976560, at *12 (Tex. App.—San Antonio 2021, pet. denied).

Because Leticia did not specially except to Lydia and Robert’s pleadings, we construe those 

pleadings liberally in Lydia and Robert’s favor. See id. 

In support of their assertion that they gave Leticia fair notice of their claim for 

improvements made, Lydia and Robert point to paragraphs four and five of their live pleadings:

4. At the time Counter Defendant [Leticia] was court-ordered to vacate the 

premises, in May 2011, Counter Defendant Leticia Rodriguez destroyed the 

residence, making it unhabitable. Counter Defendant took the home’s air 

conditioner, damaged electrical and telephone wiring, and destroyed interior walls, 

depriving her mother of a safe and healthy living environment. Counter 

Defendant’s conduct is inconsistent with claiming ownership of the destroyed 

property. Counter Plaintiff claims that Counter Defendant Leticia Rodriguez never 

owned the property based on the fraudulent inducement by which she obtained 

documents, [and] Counter Defendant Leticia has abused and exploited an elderly 

person.

5. To protect Francisca Rodriguez, and her property, Counter Plaintiff Lydia 

Rodriguez then moved into the residence, paid the property taxes and all other 

utilities and maintenance and repair expenses beginning in 2011. Counter Plaintiff 

now claims total and complete ownership by adverse possession in that she has held 

the land in peaceable and adverse possession from that day to the present.

Construing these allegations liberally, we conclude Leticia was not fairly notified of a claim for 

improvements under section 22.021. Paragraph four discusses allegations relating to Leticia’s 

actions being inconsistent with ownership. Paragraph five discusses facts relating to adverse 

possession. The only statement about improvements is a phrase in one sentence about Lydia paying 

“repair expenses.” There are no allegations regarding the “the identity of the improvements” or 

“the value of each improvement” as required under section 22.021. Therefore, we conclude Lydia 

and Robert’s live pleadings do not state a claim for improvements under section 22.021.1

1 We note that in their brief, Lydia and Robert argue they have an “equitable” claim for improvements, but provide no 

authority for why the explicit requirements of section 22.021 would not have supplanted any equitable claim.
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Because Lydia and Robert’s live pleadings do not conform to the offset they were credited

in the trial court’s judgment, the trial court erred in granting that offset unless the issue was tried 

by consent. See Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex. App.—Houston [14th Dist.] 

2009, no pet.) (holding that because the trial court’s judgment did not conform to the pleadings, 

the trial court erred in granting such relief “in the absence of pleadings to support such relief or 

trial by consent”). “If issues not raised by the pleadings are tried by express or implied consent of 

the parties, these issues shall be treated as if they had been raised by the pleadings.” Flowers v. 

Flowers, 407 S.W.3d 452, 458 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see also TEX. R.

CIV. P. 67, 301. “To determine whether the issue was tried by consent, we must examine the record 

not for evidence of the issue, but rather for evidence of trial of the issue.” Flowers, 407 S.W.3d at 

458. Here, the record does not reflect that the issue regarding Lydia and Robert being credited an 

offset for improvements made was tried by consent. During opening statement, Leticia’s counsel 

emphasized to the court that Lydia and Robert had not made a claim for improvements in their 

pleadings. Again, during closing argument, Leticia’s counsel emphasized multiple times that Lydia 

and Robert had not pled a claim for improvements. Because we conclude Leticia did not allow 

Lydia and Robert’s claim for improvements to be tried by consent, we hold the trial court erred in 

reducing the amount of damages awarded Leticia by the amount of improvements made by Lydia 

and Robert, as Lydia and Robert’s live pleadings do not support such a claim for improvements. 

See id.; Moneyhon, 278 S.W.3d at 878.2

2 We note that in responding to Leticia’s issue, Lydia and Robert argue there is no evidence to support damages in the 

amount of $600.00 per month for occupation and use of the Property, pointing to evidence that Leticia damaged the 

Property when she lived there previously. However, it is undisputed that the Property had been repaired during 

Francisca’s life when she had possession of the Property, and there was ample evidence that $600 per month for 

occupation and use of the Property was reasonable. In essence, Lydia and Robert are complaining that they expended 

money for improvements; however, as explained, because they failed to plead a claim for improvements, they are not 

entitled to be credited that amount in the final judgment.
04-21-00171-CV

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CONCLUSION

Because we conclude that Leticia’s title to the Property was not conditioned on her 

payment of the taxes, we hold the trial court did not err in finding the 2008 Correction Deed valid, 

and the later 2011 and 2015 deeds invalid and of no consequence. Further, we find no merit in 

Lydia and Robert’s adverse possession argument. Finally, we hold the trial court erred in reducing 

Leticia’s award “by improvements testified to by Defendants [Lydia and Robert],” because Lydia 

and Robert’s pleadings do not support a claim for improvements and the issue was not tried by 

consent. Therefore, we reverse the portion of the trial court’s judgment reducing Leticia’s award 

“by improvements testified to by Defendants” and render judgment that Leticia recover from Lydia 

and Robert, jointly and severally, damages in the amount of $35,400, representing the value for 

the use and occupation of the Property at $600.00 per month from November 1, 2015, through 

October 1, 2020. We affirm the remainder of the trial court’s judgment. 

Liza A. Rodriguez, Justice