No. 01-15-00254-CV 

IN THE 

FIRST COURT OF APPEALS 

Houston, Texas

 

ELIZABETH A. LOUSTEAU AND BRETT CLANTON 

Defendants/Appellants, 

v. 

JAIME L. NORIEGA AND SONIA A. NORIEGA 

Plaintiffs/Appellees. 

 

Appeal from the 151st Judicial District Court 

Harris County, Texas 

No. 2013-35448-B 

 

APPELLANTS’ BRIEF

 Marianne G. Robak, TBA 24048508 

 email: mgrobak@law-crg.com 

 1770 St. James Place, Suite 150 

 CERSONSKY, ROSEN & GARCIA, P.C. 

 Houston, Texas 77056 

 Tel: (713) 600-8500; FAX (713) 600-8585 

 ATTORNEYS FOR APPELLANTS, 

 ELIZABETH A. LOUSTEAU AND BRETT 

 CLANTON 

ACCEPTED

01-15-00254-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

8/27/2015 7:45:02 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 8/27/2015 7:45:02 PM CHRISTOPHER A. PRINE Clerk
ii

No. 01-15-00254-CV

IN THE

FIRST COURT OF APPEALS

Houston, Texas

ELIZABETH A. LOUSTEAU AND BRETT CLANTON

Defendants/Appellants,

v.

JAIME L. NORIEGA AND SONIA A. NORIEGA

Plaintiffs/Appellees.

Appeal from the 151st Judicial District Court

Harris County, Texas

No. 2013-35448-B

APPELLANTS’ BRIEF

TO THE HONORABLE COURT OF APPEALS:

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

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

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

accordance with the jury’s findings.
iii

IDENTITY OF PARTIES AND COUNSEL

Elizabeth A. Lousteau and Brett Clanton., Defendants/Appellants:

CERSONSKY, ROSEN & GARCIA, P.C.

Marianne G. Robak, TBA 24048508

email: mgrobak@law-crg.com

1770 St. James Place, Suite 150

Houston, Texas 77056

Tel: (713) 600-8500; FAX (713) 600-8585

Counsel for Appellants

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

Swanson Law Firm, PLLC

Sarahjane “SJ” Davidson Swanson, TBA 24036441

email: sjswanson@swansonpllc.com

310 Main, Ste. 201

Houston, Texas 77056

Tel:(713) 881-9742; FAX: (713) 583-2444

Counsel for Appellees
iv

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL.............................................iii

TABLE OF CONTENTS...................................................................iv

TABLES OF AUTHORITIES............................................................vii

I. STATEMENT OF THE CASE......................................................1

II. STATEMENT REGARDING ORAL ARGUMENT............................3

III. ISSUES PRESENTED...............................................................3

IV. STATEMENT OF FACTS..........................................................4

V. SUMMARY OF ARGUMENT....................................................20

VI. ARGUMENT........................................................................29

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

..................................................................................29

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

consent................................................................................................32

i. Standard of Review...................................................................32

ii. The trial court abused its discretion..........................................32

iii. The abandonment issue was apparent on the face of Appellees’ 

live pleading at the time of trial, therefore it could not have 

been waived by Appellants.......................................................33

iv. The abandonment issue was also on the Appellants' live 

pleading at time of trial.............................................................35

v. Whether Appellees abandoned their alleged homestead 

was tried by consent..................................................................36

vii. Both parties presented evidence on abandonment and it 

was understood to be contested................................................39

a. Appellees opened the door in their Opening 

Statement........................................................................40

b. Appellees testified repeatedly about their 'intent to 

return' in trial..................................................................42
v

c. Evidence regarding 'temporary leasing' shows that 

whether the alleged homestead status of 314 Goldenrod 

was abandoned was at issue...........................................47

1. Evidence was presented regarding the rental 

agreements............................................................49

2. The jury was instructed on how a temporary 

rental effects a homestead 

designation...........................................................50

d. Appellees did not preserve error by either objecting 

to the evidence, objecting to the jury charge, or 

objection to the jury findings regarding whether 

314 was Appellees' homestead in 2014, therefore, 

the objections were waived............................................52

1. Appellees had no objection to the testimony......53

2. Appellees had no objections to the Jury 

Charge..................................................................54

3. There were no objections to the Jury's finding in 

Question 2............................................................56

C. The trial court erred in disregarding the jury’s finding on question 

number 2, as it was material................................................................57

i. Standard of Review..................................................................57

ii. The record shows that the jury’s finding was material, thus

the trial court erred in disregarding jury’s finding to question

number immaterial....................................................................58

a. The pleadings and the evidence at trial supported the 

findings in Question 2....................................................62

D. The trial court erred in submitting Question 1 to the 

Jury......................................................................................................64

i. Standard of Review...................................................................64

ii. Question 1 was not a controlling question................................65

iii. The homestead status of 314 Goldenrod in 1994 was not in 

dispute.......................................................................................67

iv. The trial court's submission of Question 1 to the jury caused
vi

the rendition of an improper judgment....................................68

E. The trial court erred by not issuing a final judgment..........................69

i. Standard of Review...................................................................69

ii. The trial court erred by not issuing a final judgment after the 

merits of the case had been tried to a jury and the jury 

rendered a verdict.....................................................................69

a. Wrongful writ of execution was waived by 

Appellees........................................................................70

b. The trial court's actions have created piecemeal trial, 

which is prohibited.........................................................71

F. The trial court erred by severing the wrongful execution claim from 

the Judgment after trial.......................................................................73

G. The trial court erred when it awarded damages to Appellees.............74

H. Conclusion..........................................................................................77

VII. Prayer.................................................................................80

CERTIFICATE OF COMPLIANCE .....................................................82

APPENDIX .................................................................................83
vii

TABLE OF AUTHORITIES

Cases

Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex. App.—Houston [1st 

Dist.] 2003, no pet.) ..............................................................................................59

Acad. of Skills & Knowledge, Inc. v. Charter Sch., USA, Inc., 260 S.W.3d 529, 534 

(Tex. App.-Tyler 2008, pet. denied).....................................................................57

Aero Energy, Inc. v. Circle Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985) .........53

Allied Mgmt. Corp. v. Houston Poly Bag, Inc., 01-88-00643-CV, 1989 WL 66200, 

at *3-4 (Tex. App.—Houston [1st Dist.] June 8, 1989, no writ)..........................60

Armstrong v. Hix, 107 Tex. 194, 175 S. W. 430......................................................30

BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) ........................75

Billy Smith Enterprises, Inc. v. Hutchison Const., Inc., 261 S.W.3d 370, 377-78 

(Tex. App.—Austin 2008, pet. dism'd) ................................................................59

Blum v. Rogers, 78 Tex. 530, 15 S.W. 115, 117 (1890)..........................................47

Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 515 (Tex. 1998).. 21, 28

Brown, 78 B.R. 486, 487 (Bankr. N.D. Tex 1987)..................................................47

C & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966)..................57

Cambio v. Briers, 01-10-00807-CV, 2015 WL 2229274, at *3 (Tex. App.—

Houston [1st Dist.] May 12, 2015, no. pet. h.).....................................................59

Carr v. Jaffe Aircraft Corporation, 884 S.W.2d 797, 799 (Tex.App.—San Antonio 

1994, no writ)................................................................................................. 29, 30

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

dism'd judgmt. cor.)................................................................................. 23, 40, 48

Cecil v. Smith, 804 S.W.2d 227, 231 (Tex. Civ. App – Amarillo 1940, writ dism’d 

judgmt. cor.)..........................................................................................................55

Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 813 (Tex. App.—Texarkana 

2004, pet. denied)..................................................................................................62

City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995).......................58

Clark & Loftus v. Pearce, 80 Tex. 146, 15 S. W. 787.............................................30

Clark v. Trailways, Inc., 774 S.W.2d, 644, 647 (Tex.1989) ...................................52

Cole v. Crawford, 69 Tex. 124, 5 S.W. 646, 648 (1887).........................................63

Coombs v. Fazzio, 386 S.W.2d 650, 653 (Tex. Civ. App.—San Antonio 1965), writ 

refused NRE (Apr. 28, 1965)................................................................................60

Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619 (Tex.Civ.App.—

Beaumont 1978, writ ref'd n.r.e.)..........................................................................64
viii

Dodd v. Harper, 670 S.W.2d 646, 649 (Tex. App. – Houston [1st Dist.] 1983, no 

writ).......................................................................................................................22

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

[14th Dist.] 2014, no pet.).....................................................................................47

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

dism'd)...................................................................................................... 23, 40, 45

Farrington V. First Nat’l Bank of Bellville, 753 S.W.2d 248, 251 (Tex. App. –

Houston [1st Dist.] 1988, writ denied) ..................................................................23

Gann v. Montgomery, 210 S.W.2d 255, 257–58 (Tex. Civ. App.—Fort Worth 

1948, writ ref'd n.r.e..............................................................................................22

Gardner v. Douglass, 64 Tex. 76 (1885).................................................................26

Gomez v. Franco, 677 S.W.2d 231, 234 (Tex.App.—Corpus Christi 1984, no writ)

...............................................................................................................................65

Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin 1993, no writ) .........73

Gulf, C. & S.F. Ry. Co. v. Canty, 285 S.W. 296, 299 (Comm'n App. 1926) ..........30

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

1980, no writ)........................................................................................................28

Hollifield v. Hilton, 515 S.W.2d 717, 721 (Tex.Civ.App.-Fort Worth 1974, writ 

ref'd n.r.e.).............................................................................................................47

Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638 (Tex. 

App.—Houston [1st Dist.] 2003, pet. denied)......................................................56

Hume v. Schintz, 90 Tex. 72, 36 S. W. 429 .............................................................30

Iley v. Hughes, 311 S.W.2d 648, 651 (1958)...........................................................71

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

...............................................................................................................................29

In re Educap, Inc., 01-12-00546-CV, 2012 WL 3224110, at *3 (Tex. App.—

Houston [1st Dist.] Aug. 7, 2012, no pet.)............................................................68

In re Norris, 421 B.R. 782, 790 (S.D.Tex. 2009)............................................. 23, 48

Inman v. Orndorff, 596 S.W.2d 236, 238 (Tex. Civ. App. – Houston [1st Dist.] 

1980, no writ)........................................................................................................73

Johnson v. Whitehurst, 952 S.W.2d 441, 449 (Tex.App. - Houston [1st Dist.], writ 

ref;d n.r.e.).............................................................................................................66

Ked-Wick Corp. v. Levinton, 681 S.W.2d 851, 855 (Tex. App. – Houston [14th

Dist.] 1984, no writ)..............................................................................................63

Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App. -- San Antonio 2001, no pet.)...33

Land Title Co. of Dallas, Inc. v. F.M.Stigler, Inc., 609 S.W.2d 754, 756 (Tex. 

1980) .....................................................................................................................32
ix

Lee v. Lee, 411 S.W.3d 95, 106-07 (Tex. App. -- [1st Dist.] 2013, no pet.).... 37, 38

Lewkowicz v. El Paso Apparel Corp., 625 S.W.2d 301, 303 (Tex.1981) ...............34

Lloyd v. Brinck, 35 Tex. 1........................................................................................30

Lone Star Gas Co. v. Railroad Commission of Texas, 767 S.W.2d 709, 710 

(Tex.1989).............................................................................................................76

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

1951, no writ)................................................................................................. 23, 47

McMillan v. Warner 38 Tex. 410, 411 (Tex.1873) ............................. 23, 26, 40, 45

Moore v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App. – Tyler 206, pet. denied)...64

Neller v. Kirschke, 922 S.W.2d 182, 187 (Tex. App. – Houston [1st Dist.] 1995, 

writ denied)...........................................................................................................55

NRG Exploration, Inc. v. Rauch, 671 S.W.2d 649, 653 (Tex.App.—Austin, 1984, 

writ ref'd n.r.e.) .....................................................................................................76

Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922 no wr., (1936)..............54

Park v. Escalera Ranch Owners’ Ass’n, Inc., 2015 WL 737424, at 17, - S.W.3d –

(Tex. App. – Austin Feb. 13, 2015, no pet. h.).....................................................33

Perry v. Dearing, 345 F.3d 303, 318 (5th Cir. 2003)..............................................47

Phillips v. Phillips, 820 S.W.2d 785 (Tex.1991)........................................ 32, 33, 34

Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.-Tyler 2007, pet. 

denied)...................................................................................................................57

Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 567 (Tex. App. –

San Antonio 2011, no pet.)...................................................................................38

Prudential Corp. v. Bazaman, 512 S.W.2d 85, 91 (Tex. Civ. App. – Corpus Christi 

1974, no writ)........................................................................................................73

Railway Co. v. McArthur, 96 Tex. 65, 70 S. W. 317...............................................30

Railway Co. v. Muse, 109 Tex. 352, 207 S. W. 897, 4 A. L. R. 613.......................30

Railway Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415 ..............................................30

Ramos v. FritoLay, Inc., 784 S.W.2d 667, 668 (Tex.1990) ....................................70

Raney v. White, 267 S.W.2d 199, 200 (Tex. Civ. App. – San Antonio 1954, writ 

ref’d) .....................................................................................................................32

Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 110 (Tex.App.-Eastland 

1992, writ denied).................................................................................................55

Rosales v. Williams, 2010 WL 457536, at 6 (Tex.App.-Houston [1st Dist.] 2001, 

no pet.) ........................................................................................................... 33, 34

RR Maloan Investments, Inc. v. New HGE, Inc., 428 S.W.3d 355, 362 (Tex.App.—

Houston [14th Dist.] 2014), reh'g overruled (May 1, 2014).......................... 33, 34

Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997)...............................................56
x

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

pet.) .......................................................................................................................22

Sanchez v. Telles, 960 S.W.2d 762, 769 (Tex. App. 1997); West v. Austin Nat'l 

Bank, 427 S.W.2d 906, 911–12 (Tex.Civ.App.-San Antonio 1968, writ ref'd 

n.r.e.).....................................................................................................................26

Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 416, 423 (Tex.App.-Beaumont 1999, 

writ denied)...........................................................................................................55

Shamoun v. Shough, 377 S.W.3d 63, 69 (Tex.App.-Dallas 2012, pet. denied).......62

Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex.1992)............................. 33, 34

Shupe, 192 S.W.3d at 579........................................................................................64

Silvio v. Boggan, 01-10-00081-CV, 2012 WL 524420, at *3-4 (Tex. App.—

Houston [1st Dist.] Feb. 16, 2012, pet. denied)....................................................59

Simank v. Alford, 441 S.W.2d 234, 237 (Tex.App.-Austin 1969, writ ref'd n.r.e)..26

Sinko v. City of San Antonio, 702 S.W.2d 201, 208 (Tex.App.—San Antonio 1985, 

writ ref'd n.r.e.) .....................................................................................................64

Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.1991)70

Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). 53, 57, 58

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

denied....................................................................................................................38

Strauss v. La Mark, 366 S.W.2d 555, 557 (Tex. 1963)...........................................70

Tall Timbers Corp. v. Anderson, 370 S.W.2d 214 (Tex.Civ.App.1963), rev'd on 

other grounds, 378 S.W.2d 16 (Tex.1964) ...........................................................76

Texas Building & Mortgage Co. v. Morris, 123 S.W.2d 365, 371 

(Tex.Civ.App.1938)....................................................................................... 47, 48

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30, n. 29. (Tex. 1994).............71

Traywick v. Goodrich, 364 S.W.2d 190, 191 (Tex. 1963) ......................................30

Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 863 (Tex. App.—Austin 2001, 

pet. denied)............................................................................................................62

Tucker v. Graham Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin 

1993, no writ)........................................................................................................74

Uvalde Rock Asphalt Co. v. Warren, 127 Tex. 137, 91 S.W.2d 321, 324 (1936)...47

Wal–Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 722 (Tex.App.-San Antonio 

1995, no writ)........................................................................................................29

Wang v. Gonzalez, 2013 WL 174576, at 8 (Tex. App.—Houston [1st Dist.] Jan. 17, 

2013, no pet.) ................................................................................................. 61, 62

West v. Austin National Bank (San Antonio Tex.Civ.App.1968)............... 23, 40, 45

Whiteman v. Burkey, 282 S.W. 788 (Tex.1926)......................................................22
xi

Yates v. Home Building & Loan Co., 103 S.W.2d 1081, 1085 (Tex. Civ. App. 

1937) .....................................................................................................................47

Statutes

TEX. CIV. PRAC & REM. CODE ANN. § 37.002 (Vernon 2008) ......................................... 74

TEX. CIV. PRAC & REM. CODE ANN. § 37.003(a) (Vernon 2008)..................................... 75

Tex. Const. art. I, § 15, art. V, § 10................................................................................... 29

Tex. Prop. Code § 41.005(c) ............................................................................................. 22

TEX. R. CIV. P. 274. .....................................................................................................53, 55

TEX. R. CIV. P. 279 ............................................................................................................ 70

Tex. R. Civ. P. 295 ............................................................................................................ 55

Tex. R. Civ. P. 300 ......................................................................................................29, 74

TEX. R. CIV. P. 41........................................................................................................18, 73

TEX. R. CIV. P.277, 278................................................................................................... 64

Tex. R. Evid. 103(a)(1)...................................................................................................... 51

TEX.R. CIV. P. 67.......................................................................................................31, 35

TEX.R.APP.P. 43.2(c)......................................................................................................... 79

TEX.R.APP.P. 43.4. ............................................................................................................ 79

TEX.R.CIV.P. 277 and 279................................................................................................. 64

TEX.R.CIV.P. 278 .............................................................................................................. 64

Texas Civil Practice and Remedies Code § 34.022........................................................... 75

Texas Rule of Civil Procedure 94 ..................................................................................... 32
1

I. STATEMENT OF THE CASE

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

following statement:

March 17, 2014 Plaintiff, Jaime L. Noriega and Sonia A. Noriega file the 

Original Petition for Bill or Review and Application for 

Injunction. 

April 11, 2014 Injunction hearing held.

April 14, 2014 Partial Temporary Injunction granted. On that same date, 

Appellees filed the First Amended Petition, Application 

for Injunctive Relief and Suit for Declaratory Relief. the 

trial is preferentially set for September 1, 2014. C.R. at 4; 

C.R. at 7.

April 15, 2014 Defendants' Original Answer is filed that contained a 

general denial.

June 23, 2014 Appellees filed Plaintiffs’1st Supplemental Petition To 

Plaintiffs’ 1st Amended Petition For Bill Of Review And 

Suit For Declaratory Relief that added a cause of action 

for wrongful execution. C.R. at 18.

July 17, 2014 Defendants' First Amended Answer is filed alleging 

various affirmative defenses, including abandonment. 

July 21, 2014 Defendants file their Second Amended Answer that 

included the above-mentioned affirmative defenses, as 

well as a specific denial regarding Appellees' right to 

attorney fees. S. C.R. at 3.

August 23, 2014 Pleadings deadline passes.

August 24, 2014 Appellees file a Motion to Strike the Amended Answers 

based on 'surprise.' The Motion alternatively requests a 

continuance of the trial. C.R. at 22.

August 28, 2014 Appellants filed a Motion for Leave to Amend Pleading 

after the pleadings deadline has passed to remove all 

affirmative defenses. C.R. at 28.

September 10, 2014 The court signs an order that only grants the Motion for 
2

Leave to Amend Pleading regarding the attorney "fee 

issue only." C.R. at 34.

November 6, 2014 A two-day jury trial commences.

November 7, 2014 The jury deliberates and renders verdict in favor of 

Appellants. C.R. at 56.

December 22, 2014 The trial court issues an Interlocutory Judgment that 

disregarded the jury's' finding to Jury Question Number 2 

and awards damages to Appellees to be delivered to 

Appellees within 30 days of the Interlocutory Judgment 

being signed. No supersedeas bond was set. The trial court 

indicates that, even though the claim for wrongful 

execution was not submitted to the jury, Appellees may 

still pursue the claim. C.R. at 65.

January 20, 2015 Appellants filed an Emergency Motion to Delay 

Enforcement of Provision in Interlocutory Judgment or to 

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

Goldenrod or to Permit Placement of the Deed into the 

Registry of the Court. C.R. at 68.

January 21, 2015 Trial court permits placement of the deed into the Registry 

of the Court, but denies all other grounds of the 

emergency motion. No supersedeas bond is set. C.R. at 81.

January 21, 2015 Appellants file a Motion to Modify. C.R. at 82.

February 13, 2015 Trial court sua sponte consolidates the case with Cause 

No. 2013-35448; Elizabeth A. Lousteau and Brett Clanton 

v. Jaime L. Noriega and Sonia A. Noriega In the 151st

Judicial District of Harris County, Texas ("the Underlying 

Lawsuit" or "the 2013 Lawsuit") Thereafter, sua sponte, 

severs the bill of review and declaratory judgment action 

from the wrongful execution case, making the bill of 

review and declaratory judgment final and appealable. The 

severed cause is now styled Cause No. 2013-35448-B; 

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

Noriega and Sonia A. Noriega In the 151st Judicial District 

of Harris County, Texas. ("the Severed Lawsuit") No 

supersedeas bond is set. C.R. at 150.

February 27, 2015 Hearing on Motion to Modify takes place without a 

Response having been filed by Appellees. The Motion is 
3

denied. 

March 11, 2015 Appellants object to the consolidation and severance. C.R. 

at 154.

March 16, 2015 The Notice of Appeal is filed in both the 2013 Lawsuit 

and the Severed Lawsuit. C.R. at 158.

May 8, 2015 Appellants file a Motion to Set Supersedeas Bond. C.R. 

164.

June 2, 2015 The trial court denies the motion for supersedeas bond. It 

appears the basis for the court' s order is that the placing of 

the deed into the Registry of the Court is sufficient bond.

S.C.R. at 15. 

June 3, 2015 Appellants file a Motion to Reconsider Order of June 2, 

2015.

June 16, 2015 The trial court denies Appellants' Motion to Reconsider 

stating that the deposit of the deed into the Registry of the 

Court provides Defendants relief from judgment and that 

no further supersedeas is ordered. S.C.R. at 16.

June 23, 2015 Appellants file a Motion to Confirm Authority to Direct 

Rental Payments During Pendency of Appeal. S.C.R. at 

18.

July 7, 2015 The Motion to Confirm is denied. S.C.R. at 21.

II. STATEMENT REGARDING ORAL ARGUMENT

Appellants request oral argument.

III. ISSUES PRESENTED

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

jury’s finding on a fact issue?
4

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

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

Chicago, Illinois' was not tried by consent?

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

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

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

jury on it, without objection?

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

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

controlling?

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

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

bifurcation of any claims before trial?

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

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

of action supporting damages has been decided by the jury?

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

claim from the judgment, post-trial?

IV. STATEMENT OF THE FACTS

a. Undisputed Facts Regarding the Underlying Lawsuit
5

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

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

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

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

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

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

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

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

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

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

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

 1 Please note that there are two "original" clerk's records on file on this Appeal. The first 

clerk record filed was incorrect and was missing many crucial documents and contained 

numerous unnecessary documents. Therefore, the clerks filed a "corrected" clerk's record

that was substantially correct on June 10, 2015. Some documents were still missing and 

the record needed supplementing to include some pleadings and rulings that were filed 

after the initial clerk's record had been requested, so the supplemental clerk's record was 

filed on August 26, 2015.

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

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

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

Elizabeth A. Lousteau and Brett Clanton v. Jaime L. Noriega and Sonia A. Noriega
6

In the 151st Judicial District of Harris County, Texas. ("the Underlying Lawsuit" or 

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

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

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

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

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

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

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

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

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

Id. 

b. Writ of Execution on the Default Judgment

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

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

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

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

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

Sheriff’s Deed, 314 Goldenrod. Id.

c. The 2014 Lawsuit
7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

homestead." Id. Thereafter, on June 23, 2014, Appellees filed Plaintiffs' 1st 
8

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

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

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

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

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

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

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

answer alleging several affirmative defenses, including abandonment, a specific 

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

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

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

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

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

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

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

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

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

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

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

stated: "While Defendants timely amended their pleadings to include well founded 
9

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

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

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

only." C.R. at 34.

After extensive discovery was conducted on whether Appellees were served 

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

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

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

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

d. The Jury Trial

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

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

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

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

jury. C.R. at 56-64.

i. Opening Statement

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

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

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

Jaime and Sonia Noriega's homestead. That's the issue." R.R. 2 at 6 (emphasis 
10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ii. Testimony of Dr. Noriega

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

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

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

While Dr. Noriega testified that they purchased 314 Goldenrod in December of 
11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

pleading" at any time when Appellants' counsel questioned Dr. Noriega about his 
12

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

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

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

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

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

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

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

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

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

elicited about the wrongful execution cause of action.

iii. Testimony of Brandi Brown - the Tenant Residing at 314 

Goldenrod.

Appellees called the current tenant of 314 Goldenrod, Brandi Brown, to 

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

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

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

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

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

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

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

one of the trees is growing into the back wall of 314 Goldenrod. R.R. 3 at 66. She 
13

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

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

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

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

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

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

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

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

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

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

iv. Testimony from Sonia A. Noriega

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

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

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

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

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

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

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

for the future. R.R. 3 at 78. Mrs. Noriega then testified that she and her daughter 
14

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

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

v. Testimony of Elizabeth Lousteau

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

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

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

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

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

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

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

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

vi. Testimony of Brett Clanton

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

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

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

Appellees never lived next door to them. Id. 

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

Natalie Barletta.

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

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

pursue execution on that judgment. And these are the documents that Ms. Robak 
15

had that I objected to that are the writ of execution and the notices and the 

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

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

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

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

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

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

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

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

viii. Charge Conference and Jury Charge

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

submitted to the jury: 

Question 1: Do you find that the real property and 

improvements commonly known as 314 Goldenrod, 

Houston, Texas was the homestead of Jaime L. Noriega 

and/or Sonia A. Noriega when they purchased the 

property in December of 1994? ("Question 1")

Question 2: Do you find that the real property and 

improvements commonly known as 314 Goldenrod, 

Houston, Texas was the homestead of Jaime L. Noriega 

and/or Sonia A. Noriega on March 4, 2014? ("Question 

2")
16

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

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

the jury regarding damages or specific performance. 

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

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

Appellants objected because the declaratory judgment action was regarding 

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

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

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

R.R. 3 at 119.

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

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

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

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

ix. The Verdict

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

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

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

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

d. The Judgment
17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

e. Post-Judgment Motions and Orders

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

effect, final prior to the judgment being appealable, Appellants filed Defendants' 
18

Emergency Motion to Delay Enforcement of Provision in Interlocutory Judgment 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 2 The 2013 Lawsuit is also being appealed in cause number 01-15-00341-CV, which is also 

assigned to the First Court of Appeals, the brief of which will be filed as soon as Appellants' 

Motion to Consolidate is ruled on. The Motion to Consolidate was filed on July 10, 2015, but as 

of the date of the filing of this Brief, no ruling had been made. Therefore, Appellants are filing 

this Appeal based on the grounds relating to 01-15-00254-CV alone, as well as the measures 

taken by the trial court in the 2013 Lawsuit issuing the severance. Appellants will be requesting 

an extension in cause number 01-15-00341-CV. Should the cases be consolidated, an amended 

appeal will need to be filed to reflect the consolidation.

In the 

order, the trial court stated; "It is therefore ORDERED that Plaintiff Jaime L. 
19

Noriega and Sonia A. Noriega's causes of action for Bill of Review and 

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

Interlocutory Judgment in 2014-14152 against Defendants Brett Clanton and 

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

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

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

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

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

objections were overruled. Appellants objected to the consolidation and severance 

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

Appellees. The objections were overruled.

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

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

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

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

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

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

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

Appellants filed the Notice of Appeal on March 16, 2015. C.R. at 158. 
20

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V. SUMMARY OF THE ARGUMENT

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

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

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

jury question. C.R. at 56-64. Likewise, there was no jury question about actual 
21

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

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

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

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

3

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

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

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

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

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

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

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

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

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

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

March 4, 2014. Id.

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

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

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

 3 Appellees also asked the jury about reasonable and necessary attorney fees, but since no cause 

of action supporting damages was decided by the jury, the trial court properly disregarded the 

jury question on attorney fees. In any event, whether attorney fees were found by the jury is not a 

part of this Appeal.
22

had to return possession of the property to Appellees within 30 days of the 

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

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

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

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

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

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

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

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

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

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

homestead designation..." Id. at 66. 

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

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

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

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

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

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

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

or if no designation is found, whether the homestead claimant is using and 
23

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

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

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

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

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

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

"To designate property as a homestead, a person or 

persons, as applicable, must make the designation in an 

instrument that is signed and acknowledged or proved in 

the manner required for the recording of other 

instruments. The person or persons must file the 

designation with the county clerk of the county in which 

all or part of the property is located." TEX. PROP. CODE § 

41.005(c)(emphasis added). 

Homestead rights have their origin in constitutional and statutory provisions,

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

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

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

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

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

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

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

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

quoting Dodd v. Harper, 670 S.W.2d 646, 649 (Tex.App-- Houston [1st Dist.] 
24

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

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

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

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

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

1951, no writ). 

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

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

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

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

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

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

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

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

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

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

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

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

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

Norris, 421 B.R. 782, 790 (S.D.Tex. 2009)(relying on Perry, which interpreted 
25

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

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

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

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

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

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

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

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

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

evidence that showed the alleged homestead exemption ceased to exist once 

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

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

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

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

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

there are no immediate plans to return. R.R. 2 at 114; R.R. 3 at 77. While 

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

Beaumont 1934, no writ).

 4 Appellants note that the trial court also erred when it alleged in the Interlocutory Judgment that 

'intent' element is a creature of the initial attachment of the homestead designation, and is not 

something that fluctuates or goes away, thereby destroying the homestead nature of the 

property." The case law clearly indicates that there is an 'intent' element applied when 

determining whether a lease was temporary or permanent.
26

Appellees testified that they intend to return to 314 Goldenrod sometime in the 

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

3 at 77.

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

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

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

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

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

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

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

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

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

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

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

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

Goldenrod was no longer Appellees' homestead.

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

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

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

intention of the claimant. Sanchez v. Telles, 960 S.W.2d 762, 769 (Tex. App. 
27

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

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

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

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

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

accompanied by such acts of preparation and such prompt subsequent occupation 

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

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

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

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

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

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

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

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

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

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

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

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

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

presented at trial by Plaintiffs went only to whether Appellees abandoned their 
28

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

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

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

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

not tried by consent. 

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

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

trial court abused of discretion when it disregarded it. 

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

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

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

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

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

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

Appellees qualified for a homestead exemption in December of 1994.

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

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

being waived at trial. 
29

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

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

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

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

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

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

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

execution having been submitted to the jury.

VI. ARGUMENT

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

issue.

The trial court erred when it entered the Interlocutory Judgment that

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

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

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

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

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

Where a special verdict is rendered.....the court shall 

render judgment thereon unless set aside or a new trial is 

granted, or judgment is rendered notwithstanding verdict 

or jury finding under these rules.
30

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

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

Question 2 went directly to whether 314 Goldenrod was Appellees' 

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

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

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

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

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

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

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

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

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

to our constitutionally provided method for resolving disputes when the parties 

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

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

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

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

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

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

S.W.2d 797, 799 (Tex. App.—San Antonio 1994, no writ). 
31

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

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

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

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

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

“the entry of judgment upon a valid verdict involves no judicial or 

discretionary powers, but is simply a ministerial act...” 

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas case law that has upheld juries' findings on fact issues. For that reason, the 
32

judgment should be reversed and a judgment rendered for Appellants consistent 

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

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

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

by consent.

i. Standard of Review.

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

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

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

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

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

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

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

ii. The trial court abused its discretion.

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

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

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

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

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

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

abandonment issue. R.R. 3 at 122. Finally, neither the clerk's record or reporter's 
33

record show that a motion for directed verdict, motion for judgment 

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

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

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

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

iii. The abandonment issue was apparent on the face of Appellees’ 

live pleading at the time of trial, therefore it could not have been

waived by Appellants.

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

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

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

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

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

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

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

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

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

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

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

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

pleadings anticipates defensive matters and pleads them, the defendant may rely 
34

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

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

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

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

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

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

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

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

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

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

Antonio 2001, no pet.).

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

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

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

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

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

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

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

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

"Because the plaintiffs' petition claimed they reasonably mitigated damages, the 
35

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

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

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

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

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

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

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

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

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

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

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

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

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

been disregarded by the trial court.

iv. The abandonment issue was also on the Appellants' live pleading 

at time of trial.

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

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

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

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

those defenses so that the case could move forward to trial. C.R. at 28. The trial 
36

court only granted Appellants' motion for leave regarding the "fees issue only."

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

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

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

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

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

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

have been disregarded by the trial court.

v. Whether Appellees abandoned their alleged homestead was tried 

by consent. 

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

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

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

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

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

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

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

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

raised in the pleadings”). 

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

should have submitted a contract's ambiguity to the jury, although neither party 
37

pleaded it. Sage St., 863 S.W.2d at 444–46. In analyzing the issue, the Supreme 

Court determined that because both parties presented conflicting testimony on the 

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

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

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

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

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

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

controvert whether Appellees abandoned 314 Goldenrod when they moved to 

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

the jury charge regarding whether 314 Goldenrod remained their homestead on 

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

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

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

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

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

This Court recently analyzed the issue regarding whether an unpled defense 

of 'bad faith' was tried by consent. See Lee v. Lee, 411 S.W.3d 95, 106-07 (Tex. 
38

App. -- [1st Dist.] 2013, no pet.)5

section 93.011 of the Texas Property Code

. In the Lee case, the trial court awarded treble 

damages by finding that ’s “bad faith” 

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

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

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

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

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

upled issue was tried by consent.

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

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

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

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

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

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

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

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

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

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

The testimony shows that both parties presented evidence on abandonment and 

 5 The Lee appeal came out of the 151st Judicial District Court in Harris County, as does the 

present case.
39

understood it to be contested. Lee v. Lee at 107; Prize Energy Res., L.P. v. Cliff 

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

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

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

vi. Both parties presented evidence on abandonment and it was 

understood to be contested.

The court erred when it stated in its Interlocutory Judgment that "...the 

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

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

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

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

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

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

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

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

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

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

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

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

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

fact, tried.
40

a. Appellees opened the door in their Opening Statement

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

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

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

opened. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

explained more particularly in the chart hereinbelow, Appellees testified repeatedly 
41

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

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

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

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

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

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

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

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

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

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

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

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

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

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

judgmt. cor.) (emphasis added). 

The offerings of counsel in the Opening Statement regarding Appellees’ 

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

that they did not abandon their alleged homestead.
42

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

trial.

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

evidence regarding the issue of whether Appellees abandoned their homestead 

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

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

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

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

Testimony Chart

Direct Examination Testimony of Appellee, Dr. Jaime 

Noriega

Record Cite

Dr. Noriega testified about the alleged temporary lease to 

Brandi Brown.

R.R. 2 at 51-53

Dr. Noriega testified that after he moved to Chicago, his 

intention towards 314 Goldenrod as being his homestead 

had not changed.

R.R. 2 at 66.

Q. And you have -- have you ever made any sort of an 

agreement with anybody that would change your 

homestead claim to the document -- I'm sorry, to the 

property?

A. No.

R.R. 2 at 71.

Dr. Noriega testified that he and his wife leased 314 

Goldenrod.

R.R. 2 at 71-71

Q. What are your plans for the future concerning 314 

Goldenrod?

A. It's always been our plan to return there to live there.

R.R. 2 at 76

Q. Are there factors that are in your decision about when 

you will return to 314 Goldenrod to live?

A. So one of the factors was our daughter's education. 

R.R. 2 at 77
43

Another factor is my parents. They are elderly, they're in 

their late 70's, and they live less than two miles away. So 

it's always been our hope to be back with family. 

Something else that has weighed very heavily is that we 

have an only child. So all she has is her cousins. And they 

all live here. There's a few that live in Corpus Christi, a 

few hundred miles away, but certainly that's closer than 

Chicago. So for all those reasons, we've always had in 

mind to return to Houston to live in our home. 

Q. And how do you like Houston as a place to live?

A. We've always liked it.

R.R. 2 at 78

Q. And so how do you like living in Chicago?

A. It's fine. It's a very expensive city to live in. So all the 

wonderful things you hear about, well, you have to be able 

to afford them. 

Id.

Q. So, let's talk about that. The cost of living?

A. Yes, it's incredibly high....living in Houston would be 

rent free. We would own it outright and that would lower 

our budget significantly....

R.R. 2 at 79

Q. Would you have any rent -- would you have a rent 

expense at all if you moved back to your home at 314 

Goldenrod?

A. No, we would not.

R.R. 2 at 79-80

Dr. Noriega testified at length about what it means to be a 

tenured professor and why he had to teach at another 

university for a certain amount of time before trying to 

come back to the Houston to teach at University of 

Houston.

R.R. 2 at 80-82.

Dr. Noriega testified that getting a job at the University of 

Houston would fit into his "plan" to come back to 

Houston.

R.R. 2 at 82.

On cross examination, Dr. Noriega testified as follows:

Cross Examination Testimony from Dr. Jaime Noriega Record Cite

Q. In your affidavit you testified that...we did not abandon R.R. 2 at 93
44

the property as our homestead just because we changed the 

tax exemption. Did I read that right?

A. Yes.

Q. You did not intend for 314 Goldenrod to be your 

homestead with HCAD for homestead tax purposes on 

March 4, 2014?

A. That is correct.

R.R. 2 at 98

Q. 314 Goldenrod was also not designated as your 

homestead with the Harris County Real Property Records 

on March 4th, 2014, was it?

A. I do not believe so, no.

R.R. 2 at 99

Q. And you admit that you and your family moved out of 

314 Goldenrod sometime in 2006, correct?

A. Yes

R.R. 2 at 99-100

Dr. Noriega testified that since moving to Chicago, no one 

in his family has lived at 314 Goldenrod.

R.R. 2 at 100

Dr. Noriega testified that since moving to Chicago, there 

have been times that 314 Goldenrod was vacant.

Id.

Dr. Noriega testified that since 2006, 314 Goldenrod has 

had tenants living there on and off.

Id.

Q. Your primary residence was in Chicago, Illinois on 

March 4, 2014

A. Yes.

Id.

Q. So you have to be in Illinois to conduct your job?

A. Yes

Id.

Dr. Noriega testified that he lives in Chicago, his primary 

address is in Chicago, his voter's registration card is in 

Illinois, he has an Illinois driver's license, he spends most 

of his non-working hours in his home in Chicago, he keeps 

his clothing there, his bills are sent there, the address his 

employers and daughter's school have is his Chicago, 

Illinois address.

R.R. at 101-108.

Q: So, you do not have any immediate plans to return to 

Houston, do you?

A. Not immediate.

R.R. 2 at 114

Q: You don't have movers backed or booked to move Id.
45

back?

A: No. 

Dr. Noriega testified that he does not have a job located 

here in Houston.

R.R. 115-116.

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

to move back and retire at 314 Goldenrod:

Direct Examination of Sonia Noriega

Ms. Noriega testified that she plans to come back to 314 

Goldenrod one day. She loves the location of 314 

Goldenrod and standing on the roof to see all of Houston. 

She always thought of rebuilding and having a New 

Orleans style home there, retiring, and being near family.

R.R. 3 at 76

Ms. Noriega and her husband plan to come back to 

Houston after their child finishes high school and goes to 

college.

R.R. 3 at 77.

Ms. Noriega agrees with her husband's testimony 

regarding their intent to return to 314 Goldenrod.

Id.

Ms. Noriega's cell phone number still has a Houston area 

code because "I plan to return."

R.R. 3 at 81-82

Appellees' daughter also has a Houston cell phone number 

because she knows "we're going to eventually come back 

to Houston."

R.R. 3 at 82

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

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

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

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

summarized testimony would have been wholly irrelevant to the homestead issue. 
46

Because that testimony could not have been relevant to the initial attachment of the 

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

Noriegas did not abandon their alleged homestead exemption when they moved 

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

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

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

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

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

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

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

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

the main issues being tried.

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

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

question of whether such property constitutes a homestead is dependent primarily 

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

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

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

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

moved away from it was the only possible purpose for their counsel to have 
47

elicited testimony regarding their intentions after they moved to Chicago and 

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

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

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

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

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

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

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

trial, and the defects are waived.”).

c. Evidence regarding 'temporary leasing' shows that whether the 

alleged homestead status of 314 Goldenrod was abandoned was at 

issue.

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

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

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

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

to tenants. Question 2 had the following instruction: 

Temporary renting of a homestead does not, by itself, 

change its homestead character if the homestead claimant 

has not acquired another homestead. C.R. at 60.

Texas courts have consistently linked 'abandonment' with whether the 

property was temporarily - or permanently leased to others. It is true that 
48

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

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

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

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

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

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

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

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

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

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

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

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

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

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

no writ). 

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

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

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

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

continuous rental of farmland as a use “for the purposes of a home.”) These cases 
49

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Evidence was presented regarding the rental agreements.

Appellants met that burden by presenting evidence of the permanent renting 

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

Appellees, Dr. Noriega (See chart in Subsection B), Ms. Noriega (See chart in 
50

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

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

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

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

the testimony on appeal. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

homestead designation.
51

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the rental contract."6

 6 Appellants note that the trial court was also mistaken when it alleged in the Interlocutory 

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

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

nature of the property." The case law clearly indicates that there in an 'intent' element applied 

when determining whether a lease was temporary or permanent. 

Houston Chronicle Pub. Co. v. Allen, 70 S.W.2d 482, 484 

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

occupancy of homestead property to tenant is with intent that property shall not 
52

again be used as homestead, abandonment is complete, though term covered by 

rental contract is for short period of time. Id. 

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

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

abandoned their alleged homestead by moving to Chicago and continuously

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

disregarded Question 2 and determined that whether Appellees abandoned their 

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

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

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

d. Appellees did not preserve error by either objecting to the 

evidence, objecting to the jury charge, or objecting to the jury 

findings regarding whether 314 was Appellees' homestead in 

2014, therefore, any objections were waived.

The trial court should not have disregarded Question 2 because Appellees 

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

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

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

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

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

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

or at any other time during the trial is fatal. TEX.R.EVID. 103(a)(1). “In order to 
53

preserve a complaint for appellate review, a party must have presented to the trial 

court a timely request, objection or motion ...” Clark v. Trailways, Inc., 774 

S.W.2d, 644, 647 (Tex.1989). The evidence in the reporter's record shows that all 

parties presented evidence regarding abandonment without objection and that the 

defense was tried by consent of all parties; therefore, it was not waived and was 

properly decided by the jury.

1. Appellees had no objection to the testimony.

There was no evidence in the record that would indicate Appellees 

challenged the admission of evidence or testimony regarding Appellees' 

abandonment, intent to return, or their rental of 314 Goldenrod, therefore any 

argument that abandonment was not tried by consent is waived. If - according to 

the trial court - intent only applies to the initial attachment of the homestead 

designation, Plaintiffs should have objected to all testimony regarding the 

designation of the property after it was initially dedicated as Plaintiffs' homestead 

in 1994. After all, any testimony elicited after Appellees testified regarding the 

alleged initial dedication of the homestead would have not been relevant 

unless whether Appellees intended to abandon their alleged homestead was at 

issue.

7

 7

 Please note that there was no testimony regarding when Appellees initially moved into 314 

Goldenrod in order to "occupy" it. Therefore, there was no evidence presented to the jury 

regarding "occupancy," which is a required element in order to establish homestead.

The record shows that no such objections were made. Appellees clearly did 
54

not object to any testimony regarding their alleged 'intent to return' or lack of 

'intent to return' as it was in their direct testimony and no objection was asserted. 

Likewise, Appellees did not object to any testimony about the leasing of 314 

Goldenrod to Brandi Brown, and others -- which also goes directly to whether 

Appellees abandoned their homestead after they moved to Chicago in 2006. 

2. Appellees had no objections to the Jury Charge.

In fact, Question 2 was proposed by Appellees in their Proposed Jury 

Charge. C.R. at 52. In fact, the title of that proposed question was "Continuing 

Homestead". Id. When asked by the Court: "All right. Moving on to Question 2. 

Plaintiff, any objection?" Appellees' responded: "No, Your Honor, we have no 

objections to Question 2 or the instructions." R.R. 2 at 122. It is well settled in this 

State that where no objection is made to a defective submission of a controlling 

issue constituting a component element of a ground of recovery or a defense . . .

failure to object is considered as a waiver of the defective submission of such 

issue. The applicable rule is Rule 274 of the Texas Rules of Civil Procedure, 

which states in part:

A party objecting to a charge must point out distinctly the 

objectionable matter and the grounds of the objection. 

Any complaint as to a question, definition, or instruction, 

on account of any defect, omission, or fault in pleading, 

is waived unless specifically included in the objections. 
55

TEX. R. CIV. P. 274. (emphasis added); see also Spencer v. Eagle Star Ins. Co. of 

Am., 876 S.W.2d 154, 157 (Tex. 1994); Aero Energy, Inc. v. Circle Drilling Co., 

699 S.W.2d 821, 822 (Tex. 1985); Allen v. American Nat’l Ins. Co., 380 S.W.2d 

604, 609 (Tex. 1964). This rule is largely the restatement of a statutory provision in 

existence at the time the Rules of Civil Procedure went into effect. In discussing 

the practice, Chief Justice McClendon, speaking for the Austin Court of Civil 

Appeals in Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922, no wr., 

(1936), said:

‘Where, however, the ground (of recovery or defense) is 

submitted, however erroneously or incompletely, the 

parties are thereby put upon notice that the jury's answers 

to the issues actually submitted will form the basis of the 

court's judgment thereafter to be rendered thereon. It then 

becomes the duty of each party to point out errors of 

omission or commission, or be held estopped from 

thereafter urging them.’ (Italics supplied.)

Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922, 930 no wr., (1936).

Therefore, this Court should not have disregarded the jury's finding to jury 

question number 2, as it was properly submitted, not objected to, and ample 

evidence was presented at trial to support the jury's finding on it. Clearly, 

Appellees were put upon notice that the jury's answers to the issues actually 

submitted would form the basis of the court's judgment. Their failure to object to 

its submission should have been deemed a waiver by the trial court. Allen v. 

American National Insurance Company, 380 S.W.2d 604, 609 (Tex. 1964) (where 
56

no objection is made to a defective submission of a controlling issue constituting a 

component element of a ground of recovery or a defense and a judgment is 

rendered thereon, such judgment will not be reversed because the failure to object 

is considered as a waiver of the defective submission of such issue). Because the 

Appellees failed to object to Question 2, the trial court should not have disregarded 

it on the ground that it is immaterial, that it goes to an alleged unpled issue or 

defense, or for any other reason, per Rule 274 of the Texas Rules of Civil 

Procedure. 

3. There were no objections to the Jury's finding in Question 2.

Likewise, Appellees did not object to the jury's finding in Question 2 before 

the jury was discharged. Texas courts have held that an objection to conflicts in the 

jury's answers must be made before the jury is discharged to preserve the issue for 

appeal or that objection is waived. Sears, Roebuck & Co. v. Kunze, 996 S.W.2d 

416, 423 (Tex.App.-Beaumont 1999, writ denied); Roling v. Alamo Group (USA), 

Inc., 840 S.W.2d 107, 110 (Tex.App.-Eastland 1992, writ denied); see also TEX. R.

CIV. P. 295 (authorizing trial court to direct jury to reform judgment if questions 

are in conflict). Additionally, taking one or more of those steps is the only way 

Appellees could have preserved their challenge or given notice to the trial court (or 

appellate court) that they challenge the jury's finding. Cecil v. Smith, 804 S.W.2d 

227, 231 (Tex. Civ. App – Amarillo 1940, writ dism’d judgmt. cor.); Neller v. 
57

Kirschke, 922 S.W.2d 182, 187 (Tex. App. – Houston [1st Dist.] 1995, writ denied). 

Because Appellees made no objections during trial, the Charge Conference, before 

the jury was discharged, or in any post-judgment pleadings, the trial court erred in 

disregarding jury question number 2, as the issue of abandonment was obviously 

tried by consent.

Because the abandonment issue was on the face of both parties' pleadings at 

the time of trial, the fact that the evidence was presented at trial regarding 'intent to 

return' and whether 314 Goldenrod was allegedly temporarily leased when 

Appellees moved to Chicago, Appellees' lack of objections to the abandonment 

evidence at any time, a reversal of the trial court's Interlocutory Judgment is 

necessary. Thereafter, this Court should render a verdict that comports with the 

jury's finding, that 314 Goldenrod was not the homestead of Appellees when it was 

executed on in 2014. 

C. The trial court erred in disregarding the jury’s finding on 

question number 2, as it was material.

i. Standard of Review

When a trial court’s ruling to disregard a finding is based on a legal 

conclusion, the appellate court’s review is de novo. Houston Lighting & Power Co. 

v. City of Wharton, 101 S.W.3d 633, 638 (Tex. App.—Houston [1st Dist.] 2003, 

pet. denied) Compass Bank v. MFP Fin. Services, Inc., 152 S.W.3d 844, 854 (Tex. 

App.—Dallas 2005, pet. denied). A jury finding is immaterial only if the question 
58

should not have been submitted or if the question, though properly submitted, was 

rendered immaterial by other findings. Salinas v. Rafati, 948 S.W.2d 286, 288 

(Tex. 1997); Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 

(Tex.1994) (citing C & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 

(Tex.1966)). Therefore, the review of the trial court’s disregard of the jury finding 

as immaterial is de novo.

ii. The record shows that the jury’s finding was material, thus the 

trial court erred in disregarding jury’s finding to question 

number 2 as immaterial.

The appellate court should reverse the trial court's Interlocutory Judgment 

and render a verdict that reflects the jury's finding in Question 2 because a de novo 

review of the pleadings and the evidence presented at trial shows that whether 314 

Goldenrod was Appellees' homestead on March 4, 2014 when the execution took 

place was material. See Testimony Chart in Subsection B herein. Question 2 was 

not only material, it went to the heart of the dispute. A fact is “material” if it affects 

the ultimate outcome of the lawsuit under the governing law. Acad. of Skills & 

Knowledge, Inc. v. Charter Sch., USA, Inc., 260 S.W.3d 529, 534 (Tex. App.-Tyler 

2008, pet. denied); Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.-

Tyler 2007, pet. denied). 

This Court should follow the Supreme Court when it ruled, in Spencer v. 

Eagle Star Inc. Co. of Am., that a jury question was material because "it was the 
59

heart of the Spencers' case." Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 

154, 157 (Tex. 1994). In Spencer, the Supreme Court ultimately found that since 

the jury question at issue was material, the trial court could not disregard the jury's 

answer and render judgment notwithstanding the verdict. In the present case, and 

by virtue of Appellees' pleadings, their testimony, and the fact that they submitted 

Question 2, without objection, everyone knew that the material issue to be decided 

by the jury is if 314 Goldenrod was the Appellees' homestead on March 4, 2014. In 

fact, Appellees' opening statement admitted that is the issue when counsel told the 

jury that their job is to clarify whether 314 Goldenrod is Appellees' homestead. 

R.R. 2 at 6. Counsel did not ask the jury to find that 314 Goldenrod was Appellees' 

homestead in 1994 because the execution took place in 2014! Simply put, the issue 

to be decided was not whether 314 Goldenrod was their homestead in December of 

1994. Because jury question number 2 goes to the heart of the declaratory 

judgment action, it should not have been found to be immaterial by the trial 

court.

The Spencer Court found that there are only three instances where a question 

can be found to be immaterial:

1. It should not have been submitted;

2. When it was properly submitted but has been rendered immaterial by 

other findings; or
60

3. When it calls for a finding beyond the province of the jury, such as a 

question of law.

Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). The 

Supreme Court has also held that a question may be immaterial if the finding is 

found elsewhere in the verdict or cannot change the verdict’s effect. City of 

Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). Courts have typically 

found that jury answers are immaterial when a predicate question renders a later 

finding immaterial. For example:

- a question negating liability makes a damage finding 

immaterial; 

- a statute or law precludes a finding on an issue; 

- an affirmative defense vitiates a finding of liability, e.g. 

ratification renders finding of fraud immaterial; 

- an affirmative answer on an alternate theory of relief 

renders a negative answer on another theory immaterial; 

- answers on general questions are disregarded in favor of

specific answers; and finally, 

- a finding may be immaterial if not pled or tried by 

consent and the question was properly objected to before 

being submitted to the jury. 

See e.g. Cambio v. Briers, 2015 WL 2229274, at 3 (Tex. App.—Houston [1st 

Dist.] May 12, 2015, no. pet. h.) (holding answer on questions on predicate 

questions rendered following questions immaterial); see also Billy Smith 

Enterprises, Inc. v. Hutchison Const., Inc., 261 S.W.3d 370, 377-78 (Tex. App.—

Austin 2008, pet. dism'd) (holding that finding of violation of ‘Prompt Pay Act’ 
61

was immaterial if no money was owed); see also Silvio v. Boggan, 01-10-00081-

CV, 2012 WL 524420, at *3-4 (Tex. App.—Houston [1st Dist.] Feb. 16, 2012, pet. 

denied) (holding finding that deed was valid made question regarding 

consideration immaterial); see also Abetter Trucking Co. v. Arizpe, 113 S.W.3d 

503, 508 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding court may 

disregard finding of duty of good faith if there is a finding of agency as both 

established a fiduciary relationship); see also Allied Mgmt. Corp. v. Houston Poly 

Bag, Inc., 01-88-00643-CV, 1989 WL 66200, at 3-4 (Tex. App.—Houston [1st

Dist.] June 8, 1989, no writ) (holding that court may disregard finding negating 

estoppel when jury found failure to timely perform because failure to timely 

perform is specific while estoppel is general); see also Coombs v. Fazzio, 386 

S.W.2d 650, 653 (Tex. Civ. App.—San Antonio 1965), writ refused NRE (Apr. 28, 

1965) (finding court may disregard where submission was objected to before sent 

to jury and therefore not pled or tried by consent). 

The record shows that none of the above examples occurred in this case. To 

the contrary, Question 2 goes directly to the dispute, which is: Was 314 Goldenrod 

the Noriega’s homestead when the execution took place on March 4, 2014? 

Because this was, arguably, the only issue being tried, it is axiomatic that whether 

Appellees' abandoned their alleged homestead when they moved to Chicago was 

obviously an issue. Not only that, but the abandonment issue was present in the 
62

parties' pleadings, was part of Plaintiffs’ opening statement, was repeatedly 

referred to by both parties in the evidence throughout trial, was testified to by the 

Appellees and was part of the submission to the jury in both of the instructions

(through the instruction of temporary rental and by Question 2 regarding the status 

of the homestead in 2014). See Testimony Chart in Section B herein. The jury 

definitively and correctly answered this question in the negative and such finding 

was dispositive in this case. 

a. The pleadings and the evidence at trial supported the findings in 

Question 2.

Because the pleadings and the evidence presented at trial support the jury's 

findings in Question 2, the trial court should have read the two jury questions 

consistently with one another, rather than disregarding Question 2. Wang v. 

Gonzalez, 2013 WL 174576, at 8 (Tex. App.—Houston [1st Dist.] Jan. 17, 2013, 

no pet.).

In Wang v. Gonzalez, this Court dealt with a trial court's Judgment 

Notwithstanding the Verdict ("JNOV") regarding two jury questions that pertained 

to the ownership of an excavator. Question Number One asked, “Did [Wang] have 

an agreement with Jose Gonzalez for Jose Gonzalez to retain ownership of the 

excavator in question after completion of the demolition of [Wang's] motels?” The 

jury answered “no.” Question Number Eleven asked the jury to determine the 

percentage of Wang's and Gonzalez's respective ownership interests in the 
63

excavator. The jury responded “50%” for each party. Wang moved for a JNOV on 

the grounds that the jury's answer to Question 1 made their answer to Question 11 

immaterial. The trial court disagreed, as did this Court. In doing so, this Court 

determined that since it was possible for the jury's answers to these two questions 

to be read consistently with each other, the trial court was correct in not 

disregarding the jury's findings. In support of its determination, this Court relied on 

Shamoun v. Shough, which held "[W]e may not strike down jury answers on the 

basis of conflict if there is any reasonable basis on which they can be reconciled." 

See Shamoun v. Shough, 377 S.W.3d 63, 69 (Tex.App.-Dallas 2012, pet. denied). 

On this issue, this Court ultimately concluded that, "because some evidence 

supported the jury's finding... the trial court properly denied Wang's motion for

JNOV concerning this finding." See Cherokee Water Co. v. Freeman, 145 S.W.3d 

809, 813 (Tex. App.—Texarkana 2004, pet. denied); Trinity Indus., Inc. v. 

Ashland, Inc., 53 S.W.3d 852, 863 (Tex. App.—Austin 2001, pet. denied); and

Wang, 2013 WL 174576 at 7. 

In the present case, no JNOV, motion to set aside, or motion for new trial 

was filed. In fact, review of the record reveals that all of the parties were satisfied 

with the jury’s findings. Because no objections were raised or post-judgment 

motions filed, the effect of the trial court's disregard of a material jury finding is 

akin to a sua sponte JNOV. If the trial court found any inconsistency with the 
64

jury's answers to Question 1 and Question 2, it could have certainly reconciled the 

two questions with one another, as the trial court (and this Court) did in Wang, by 

determining that 314 Goldenrod may have been Appellees' homestead in 

December of 1994, but that it ceased being their homestead in 2014 because 

Appellees abandoned the homestead by moving to Chicago with no immediate 

intent to return and/or by continuously leasing 314 Goldenrod to tenants. 

The conclusion that Question 2 was material is inevitable by a simple review 

of the record in this case. From early on in the lawsuit, Appellees made certain that 

Question 2 had a logical connection with the consequential facts to their case. On a 

de novo review of the pleadings, the testimony at trial, and the evidence presented 

to the jury, this Court should find that Question 2 was material and should not have 

been disregarded. Therefore, this Court should reverse the Interlocutory Judgment 

and render a declaratory judgment that declares 314 Goldenrod to not be 

Appellees' homestead on March 4, 2104 on the basis that Question 2 was material 

and should not have been disregarded.

D. The trial court erred in submitting Question 1 to the Jury.

i. Standard of Review.

Submission of questions to the jury is a matter within the discretion of the 

trial court. Cole v. Crawford, 69 Tex. 124, 5 S.W. 646, 648 (1887); Ked-Wick 

Corp. v. Levinton, 681 S.W.2d 851, 855 (Tex. App. – Houston [14th Dist.] 1984, no 
65

writ). A trial court abuses its discretion when it acts in an arbitrary or unreasonable 

manner, or if it acts without reference to any guiding rules or principles. Downer v. 

Aquamarine Operators, Inc.,701 S.W.2d 238, 241–42 (Tex.1985); A trial court 

has wide discretion in submitting instructions and jury questions. Id. This 

discretion is subject only to the requirement that the questions submitted must (1) 

control the disposition of the case; (2) be raised by the pleadings and the evidence; 

and (3) properly submit the disputed issues for the jury's determination. TEX.R. 

CIV. P.277 and 278; Moore v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App. – Tyler 

206, pet. denied) ; see also Shupe, 192 S.W.3d at 579 (“When a trial court refuses 

to submit a requested instruction on an issue raised by the pleadings and evidence, 

the question on appeal is whether the request was reasonably necessary to enable 

the jury to render a proper verdict.”).

ii. Question 1 was not a controlling question.

The trial court erred in submitting Question 1 to the jury because it was not 

supported by the pleadings and, thus, was not a controlling question. Trial courts 

are required to submit the controlling questions raised by the pleadings and the 

evidence, and once the controlling questions have been submitted, does not err in 

refusing to submit other questions and various shades of the same question. Sinko 

v. City of San Antonio, 702 S.W.2d 201, 208 (Tex.App.—San Antonio 1985, writ 

ref'd n.r.e.); TEX.R.CIV.P. 278. Under TEX.R.CIV.P. 277 and 279, all parties are 
66

entitled to have controlling issues that are raised by the written pleadings and

evidence submitted to the jury. Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 

S.W.2d 619 (Tex.Civ.App.—Beaumont 1978, writ ref'd n.r.e.)(emphasis added). A 

controlling question is one which, if answered favorably on the theory in which it 

is presented, will support a basis for judgment for the proponent of the issue. 

Gomez v. Franco, 677 S.W.2d 231, 234 (Tex.App.—Corpus Christi 1984, no writ). 

Whether 314 Goldenrod was Appellees' homestead in 1994 had no bearing on the 

declaratory judgment action. Therefore, the answer to Question 1, alone, could not 

have formed the basis for the declaratory judgment, as plead by Appellees.

The only issue that was to be decided by the jury at trial was the declaratory 

judgment issue, which asked the trial court to declare 314 Goldenrod, Houston, 

Texas as Appellees' homestead, thus exempt from seizure and execution. C.R. at 

14 (Paragraph 34). Despite the lack of support in the pleadings, the trial court 

submitted Question 1, which asked whether 314 Goldenrod was Appellees' 

homestead in December of 1994. C.R. at 59. Furthermore, it would not have 

mattered the status of 314 Goldenrod in 1994, as the property was not executed on 

until 2014! As evidenced by the reporter's record in this case, a lot can happen in 

20 years. Since the declaratory judgment action was not filed until 2014, whether 

314 Goldenrod was Appellees' homestead in 1994 would not have controlled the 

outcome of the declaratory judgment action. The controlling question posed to the 
67

jury is found in Question 2, which asked whether 314 Goldenrod was Appellees' 

homestead on March 4, 2014, the date that Appellants executed on it.

Appellants properly objected to Question 1, during the Charge Conference, 

by objecting to the ground that:

"Yes, Judge, we have an objection to Question No. 1 as 

this declaratory judgment action that was tried today was 

always expressed by Counsel and by the Court that this 

case would be regarding whether or not 314 Goldenrod, 

Houston, Texas 77009 was the Noriegas' homestead on 

March 4th, 2014. This was not a declaratory judgment to 

declare whether it was their homestead in December of 

1994. Therefore, this question is improper and it's 

misleading to the jury. And I'm at a loss as to what the 

Court is planning to do with this question once it's 

answered. As for the -- there's no basis in law or fact for 

this question." R.R. 3 at 120.

The trial court overruled the objection. R.R. 3 at 122. Because declaring 

314 Goldenrod as Appellees' homestead was not raised by the pleadings and could 

not have determined the declaratory judgment action, as plead, it was abuse of 

discretion for the question to be submitted to the jury. Johnson v. Whitehurst, 952 

S.W.2d 441, 449 (Tex.App. - Houston [1st Dist.], writ ref;d n.r.e.). 

iii. The homestead status of 314 Goldenrod in 1994 was not in 

dispute.

While the homestead status of 314 Goldenrod when Appellees purchased it 

in 1994 may have been relevant to proving the initial homestead status of the 

property, that issue was most definitely not the ultimate issue in dispute. After all, 
68

even if Question 1 were the only issue submitted to the jury, the trial court still 

could not have declared 314 Goldenrod as Appellees' homestead in 2014, when the 

declaratory judgment action was filed because 'homestead' is a fact issue for a jury 

to decide. Appellees brought the claim for declaratory relief on the grounds that the 

execution sale to Appellants should be set aside, as 314 Goldenrod is their 

homestead.8

iv. The trial court's submission of Question 1 to the jury caused the 

rendition of an improper judgment.

C.R. at 14. As the execution sale took place on March 4, 2014, it is 

axiomatic that March 4, 2014 is the crucial date for which Appellees need to have 

314 Goldenrod declared as a homestead! Therefore, the trial court erred in 

submitting Question 1 to the jury, as the homestead status of 314 Goldenrod in 

1994 was not in dispute.

Because, in the judgment, the trial court chose to consider the jury's finding 

in Question 1 and disregard the jury's finding in Question 2, the submission of 

Question 1 clearly caused the rendition of an improper judgment. Therefore, the 

judgment should be reversed. Furthermore, since Question 2 was properly 

submitted, was not objected to, goes to the heart of the dispute, and is dispositive, 

 8 It is to be noted that while Appellees appear to contend that a court is permitted to set aside a 

sale in a declaratory judgment action, Appellants have found no statute or case law to support 

this theory of recovery. To the contrary, the Declaratory Judgment Act was designed to permit 

courts to declare rights, status, and other legal relations. See TEX.CIV. PRAC & REM. CODE 

§37.002(b). It appears that a cause of action to set aside the execution sale would have needed to 

be filed in order to set aside the sale of 314 Goldenrod. No such cause of action was filed. 

Furthermore, no such cause of action was tried to the jury. Therefore, the cause of action was 

waived.
69

this Court should render a judgment declaring that 314 Goldenrod was not 

Appellees' homestead when it was executed on in 2014.

E. The trial court erred by not issuing a final judgment.

i. Standard of Review

A trial court's failure to render a final judgment is reviewed as an abuse of 

discretion. In re Educap, Inc., 2012 WL 3224110, at *3 (Tex. App.—Houston [1st 

Dist.] Aug. 7, 2012, no pet.).

ii. The trial court erred by not issuing a final judgment after the 

merits of the case had been tried to a jury and the jury rendered a 

verdict.

The trial court erred by issuing an interlocutory judgment in an apparent 

attempt to keep the cause of action for wrongful execution alive, though it was 

waived by Appellees. Importantly, the trial court impliedly admitted its error when 

it attempted to make the interlocutory judgment final by signing a sua sponte post 

trial severance of the wrongful execution action. C.R. at 150 - 151. Had the cause 

of action been properly severed or bifurcated before the trial, this measure would 

not have been needed. The fact of the matter is that wrongful execution was on the

live pleadings at time of trial and the record shows no motion to bifurcate or - more 

importantly - no orders severing/bifurcating it before trial commenced and the jury 

rendered its verdict. Further, the record is clear that Appellees waived this cause of 

action by failing to pursue it at trial or by seeking a finding from the jury regarding 
70

wrongful execution. Accordingly, the cause of action for wrongful writ of 

execution was waived by Appellees and the court should have issued a final 

judgment instead of an interlocutory judgment.

a. Wrongful writ of execution was waived by Appellees.

Because all issues were either tried or waived, the Judgment should have 

been final, not interlocutory. Thus, the trial court erred in the Interlocutory 

Judgment when it stated: "Plaintiffs further wish to go forward on a claim for 

damages for wrongful execution, which the Court will likely permit, subject to any 

dispositive motions on that subject by Defendants." C.R. at 111.

During the Charge Conference, Appellees even discussed the wrongful 

execution cause of action when their counsel stated that the "wrongful execution in 

the supplemental petition was filed in July. So the declaratory judgment action was 

filed before the TI was issued and before the cause of action seeking damages was 

filed." R.R. 3 at 126. After acknowledging the cause of action, Appellees failed to 

propose a question on it. C.R. at 100-107. Furthermore, during trial, when 

Appellants attempted to call their previous counsel, Natalie Barletta to the stand to 

testify regarding the wrongful execution claim (the steps she took to ensure 314 

Goldenrod was not the Appellees' homestead before executing on it), Appellees 

objected. R.R. 3 at 109-116. Counsel for Appellees stated: "So everything Ms. 

Barletta did was to pursue execution on that judgment. And these are the 
71

documents that Ms. Robak had that I objected to that are the writ of execution and 

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

underlying judgment, which is -- I mean, it hadn't come in. It's not appropriate... " 

R.R. 2. at 110-111.

The general rule is that the plaintiff has the burden to obtain affirmative 

answers to jury questions as to the necessary elements of his cause of action. TEX.

R. CIV. P. 279; Ramos v. FritoLay, Inc., 784 S.W.2d 667, 668 (Tex.1990); 

Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex.1991). 

If an entire theory is omitted from the charge, that theory of recovery is waived. 

Strauss v. La Mark, 366 S.W.2d 555, 557 (Tex. 1963). The record shows no 

motion or order to bifurcate the cause of action for wrongful writ of execution

prior to the verdict being rendered. Furthermore, Appellees did not submit a 

question to the jury on this issue which was pled, and the jury did not determine 

the claim of wrongful writ of execution. C.R. at 100-107. Respectfully, the trial 

court may not now determine damages on a cause of action properly pled for but 

not submitted to the jury. The Interlocutory Judgment should be reversed and a 

final judgment e rendered in favor of Appellants that the claim for wrongful writ of 

execution is denied as waived by Appellees.
72

b. The trial court's actions have created piecemeal trial, which is 

prohibited.

The law is clear that because Plaintiffs did not submit a jury question 

regarding wrongful writ of execution, they waived that claim. Permitting this case 

to go on after a jury trial would be against the long standing policy and practice 

against “piecemeal trials.” Iley v. Hughes, 311 S.W.2d 648, 651 (1958). The 

Supreme Court recognizes that the term 'piecemeal' is defined as “one piece at a 

time; in pieces or fragments; or done, made or accomplished piece by piece, or in a 

fragmentary way.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30, n. 29.

(Tex. 1994)(citing Webster’s Ninth New Collegiate Dictionary (1988)). The trial 

court's issuance of an interlocutory judgment after a trial on the merits had been 

conducted (and no bifurcation or severance order had been issued pre-trial) is 

prohibited, or it would amount to a piecemeal trial.

In Iley, the Supreme Court said: “[T]he public interest, the interests of 

litigants and the administration of justice [are] better served by rules of trial which 

avoid a multiplicity of suits.” Id. Rule 174b allows a separate trial to avoid 

prejudice (so usually on the issue of punitive damages). However, in the instant 

case, there was no motion and no allegation of prejudice, to support a 

separate/severed/bifurcated trial. The Supreme Court, in Transportation Ins. Co. v. 

Moriel, stated that although it remained resolute that piecemeal trials should be 

avoided, punitive damage cases should be the exception to the rule. Transportation 
73

Ins. Co. v. Moriel, 879 S.W.2d at 30, n. 29. The present case is not a punitive 

damages case; therefore the Moriel exception does not apply. Furthermore, without 

any motion or order, there was no way Appellants could have been put on notice 

before trial, or provided with an adequate opportunity to respond, to the wrongful 

execution claim being tried separately (and pursuant to a separately signed order to 

bifurcate). The actions of the trial court in, sua sponte, ordering that the Appellants 

try the merits of this case more than once, without notice or good cause -

needlessly increasing their cost in attorney fees - is abuse of discretion. Thus, the 

Interlocutory Judgment should be reversed and rendered to be a final judgment.

F. The trial court erred by severing the wrongful execution claim 

from the Judgment after trial.

In an apparent attempt to remedy the mistake made by signing an 

interlocutory judgment after a trial on the merits, the trial court severed the cause 

of action for wrongful writ of execution after trial. In doing so, the trial court 

apparently ignored the fact that no motion to bifurcate the wrongful execution 

claim was ever filed, no order bifurcating or severing wrongful execution was ever 

signed, and Appellees waived this cause of action by not submitting a jury question 

on it. Even further, no post-verdict motions were filed requesting any relief 

regarding the waiver of the wrongful execution claim. The court erred because 

severing a case after it has gone to a jury is prohibited, pursuant to Rule 41 of the 

Texas Rules of Civil Procedure. In particular, Rule 41 provides as follows:
74

Misjoinder of parties is not ground for dismissal of an action. Parties 

may be dropped or added, or suits filed separately may be 

consolidated, or actions which have been improperly joined may be 

severed and each ground of recovery improperly joined may be 

docketed as a separate suit between the same parties, by order of the 

court on motion of any party or on its own initiative at any stage of 

the action, before the time of submission to the jury or to the court if 

trial is without a jury, on such terms as are just. Any claim against a 

party may be severed and proceeded with separately.

TEX. R. CIV. P. 41(emphasis added). Therefore, since the sua sponte severance 

took place after the time of submission to the jury, this Court should find that the 

trial court erred. The severance should be disregarded by this Court and a final 

judgment that provides a ruling that wrongful execution was waived in the jury 

trial should be rendered by this Court. 

G. The trial court erred when it awarded damages to Appellees.

The trial court erred by issuing damages/specific performance when the jury 

verdict did not award damages. Simply put, the pleadings related to the declaratory 

judgment action only, and asked the trial court to declare 314 Goldenrod as 

Appellees' homestead. See Paragraphs 34 and 41 of Plaintiffs' First Amended 

Petition. C.R. at 15. No suit to set aside an execution sale was filed or, more 

importantly, presented to a jury. See, e.g., Inman v. Orndorff, 596 S.W.2d 236, 238 

(Tex. Civ. App. – Houston [1st Dist.] 1980, no writ), Prudential Corp. v. Bazaman, 

512 S.W.2d 85, 91 (Tex. Civ. App. – Corpus Christi 1974, no writ); Green v. 

Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin 1993, no writ) (op. on reh'g). 
75

Because no suit to set aside execution sale was filed, no jury questions regarding 

damages were submitted to the jury, and that issue clearly was not tried by consent 

(as no testimony regarding actual damages or specific performance was offered by 

Appellees), awarding damages and/or specific performance was an abuse of 

discretion by the trial court. Texas Rule of Civil Procedure 300 states:

The judgment of the court shall conform to the pleadings, 

the nature of the case proved and the verdict, if any, and 

shall be so framed as to give the party all the relief to 

which he may be entitled either in law or equity. 

TEX.R.CIV.PRO 300.

While the pleadings do pray for the court to set aside the sale of 314 

Goldenrod, the only cause of action that was pled for by Appellees that could have 

awarded actual damages or specific performance was the wrongful execution 

claim, which was waived. The case presented to the jury was not regarding the 

setting aside of an execution sale. The only case presented to the jury was the 

declaratory judgment action regarding whether 314 Goldenrod is Appellees 

homestead. Therefore, other than declaring that 314 Goldenrod was not Appellees' 

homestead when it was executed on in 2014, there was nothing else to do.

Declaring that 314 Goldenrod is not Appellees' homestead is where the trial court 

should have stopped. A declaratory judgment is a remedial action that determines 

the rights of the parties and affords relief from uncertainty with respect to rights, 

status, and legal relations. TEX. CIV. PRAC & REM. CODE ANN. § 37.002 (Vernon 
76

2008); Tucker v. Graham Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. –

Austin 1993, no writ) Green v. Watson, 860 S.W.2d 238, 244 (Tex. App. – Austin 

1993, no writ). Thus, “a court of record, within its jurisdiction has power to declare 

rights, status, and other legal relations whether or not further relief could be 

claimed.” TEX. CIV. PRAC & REM. CODE ANN. § 37.003(a) (Vernon 2008). A 

declaratory judgment is not available to settle legal disputes already pending before 

the court. BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990). As 

such, every ruling after the declaration regarding the homestead status of 314 

Goldenrod was erroneous, as the Appellees did not pursue their wrongful writ of 

execution cause of action that allowed for damages or file a suit to set aside the 

execution sale. 

Instead, the trial court stated, in the Interlocutory Judgment, that "Next, with 

respect to whether the Plaintiffs must now sue for the fair market value of the 

home after the writ of execution sale, or may have the home returned, the Court 

believes they are entitled to the return of the home." C.R. at 67. With all due 

respect to the trial court, there was no trial on wrongful execution, no suit to set 

aside the execution sale pled, no plea for damages under TEXAS CIVIL PRACTICE 

AND REMEDIES CODE § 34.022, and no other cause of action presented to the jury

that would have awarded possession of 314 Goldenrod and all future rental 

payments to Appellees. Even further, no liability was found by the jury that could 
77

have awarded damages. Going beyond the suit for declaratory judgment, and 

issuing a judgment awarding damages to Appellees, was a clear abuse of 

discretion. The damages awarded (setting aside the sale, handing over the deed, 

foregoing rental payments on the property) were all sought by Appellees in relation 

to the bill of review action or the wrongful writ of execution, both of which were 

not a part of the trial in this case. Because the trial court abused its discretion in 

awarding any damages, or in the nature of specific performance (handing the deed 

to 314 Goldenrod to Appellees) in the Interlocutory Judgment, this Court should 

reverse the trial court's finding that the sale of 314 Goldenrod is set aside. This is 

because 314 Goldenrod was not the homestead of the Appellees at the time of 

execution, March 4, 2014.

H. Conclusion

In conclusion, the trial court erred in finding that Question 2 was immaterial 

and should be disregarded. When a trial court has erred in entering a declaratory 

judgment, it is the appellate court's duty to render such judgment as the trial court 

should have rendered. See Lone Star Gas Co. v. Railroad Commission of Texas,

767 S.W.2d 709, 710 (Tex.1989); NRG Exploration, Inc. v. Rauch, 671 S.W.2d 

649, 653 (Tex.App.—Austin, 1984, writ ref'd n.r.e.); Tall Timbers Corp. v. 

Anderson, 370 S.W.2d 214 (Tex.Civ.App.1963), rev'd on other grounds, 378 

S.W.2d 16 (Tex.1964). It is clear from the record, the Texas Constitution, the 
78

Supreme Court’s mandates, the Texas Rules of Civil Procedure, and the case law 

cited herein, that the trial court erred in rendering judgment in favor of Appellees 

on the basis that abandonment was not tried by consent. Clearly, the pleadings, the 

testimony and other evidence at trial showed that whether 314 Goldenrod was 

Appellees' homestead on March 4, 2014 was material, as it went to the heart of the 

case. Appellees certainly knew it was an issue to be tried, as they anticipated it in 

their own pleadings. C.R. at 15. Furthermore, the issue was tried by consent of all 

parties, as evidence of Appellees' move to Chicago, the leasing of 314 Goldenrod 

while they live in Chicago, and their alleged 'intent to return' to 314 Goldenrod 

show that whether 314 Goldenrod remained their homestead was presented by all 

parties to the lawsuit, without objection. Lastly, the fact that the Appellees 

proposed Question 2 and did not object to its submission to the jury or the 

instruction about temporary renting shows that the issue was tried by consent.

Even further, this Court should find that the trial court erred in submitting 

Question 1 to the jury as it was not a controlling issue and was not supported by 

the pleadings or the law. The declaratory judgment action was not requesting that 

the trial court declare 314 Goldenrod as Appellees' homestead in 1994. The trial 

court was asked to declare 314 Goldenrod as Appellees' homestead when they filed 

the declaratory judgment, in 2014. Furthermore, the facts are clear that the 

declaration was sought after Appellants' executed on 314 Goldenrod on March 4, 
79

2014. Therefore, the only way for Appellees to undo that execution was to have a 

court declare that, at the time of the execution, 314 Goldenrod was Appellees' 

homestead. Since Question 1 only asked whether 314 Goldenrod was Appellees' 

homestead in 1994, it was not controlling and should not have been submitted.

Additionally, this Court should find that the trial court erred in signing an 

interlocutory judgment, post-trial when no severance or bifurcation order had been 

signed before trial commenced. The record shows that wrongful execution was in 

the live pleadings at time of trial, and was thus, waived by Appellees' failure to 

present evidence or submit a question on wrongful execution to the jury. C.R. at 

18-21. Furthermore, the record shows no severance or bifurcation of the wrongful 

execution case before trial commenced that would have justified the trial court's 

finding that the cause of action was not waived by Appellees. Simply put, the 

claim was not pursued by Appellees in the trial. Therefore, the trial court should 

have found that the claim was waived. 

Lastly, this Court should reverse the trial court's finding that the sale of 314 

Goldenrod is set aside on the grounds that it was not the homestead of Appellees at 

the time of execution. There was no liability question that would have given rise to 

damages or specific performance. The only claim pursued in the trial was the claim 

for declaratory judgment on whether 314 Goldenrod is Appellees' homestead.

Therefore, other than declaring 314 Goldenrod was not Appellees' homestead -
80

there was nothing else to do. Going beyond the suit for declaratory judgment, by 

issuing a judgment awarding damages to Appellees, was a clear abuse of 

discretion. The damages awarded setting aside the sale, handing over the deed, 

foregoing rental payments on the property should be reversed, as the trial court 

abused its discretion. Furthermore, Appellees should be required to return the 

rental payments they have been receiving since January 1, 2015 to Appellants, as 

they are the owners of 314 Goldenrod and should have been receiving the 

payments but for the trial court’s erroneous Judgment. 

VI. PRAYER

For all these reasons, Appellants, Elizabeth Lousteau and Brett Clanton 

prays that this Court reverse the Interlocutory Judgment and render a judgment 

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

that Appellees take nothing by way of their claim for wrongful execution, as no 

question on wrongful execution was submitted to the jury. TEX.R.APP.P. 43.2(c).

Furthermore, upon reversing the judgment for damages, the Appellants pray that 

Appellees be ordered to remit all rental payments they received from the current 

tenant from December 22, 2014 to the date of the signing of the reversal to 

Appellants.9

 9 Please recall that even though Appellants filed numerous motions requesting that the trial court 

set a supersedeas bond, each motion was denied. Therefore, Appellants could not supersede the 

Appellants further pray that they be awarded their appellate costs -
81

including preparation costs for the clerk's record and the reporter's record -- that 

were incurred by Appellants pursuant to TEX.R.APP.P. 43.4.

Respectfully submitted, 

CERSONSKY, ROSEN & GARCIA, P.C.

 By: /s/ Marianne G. Robak

Marianne G. Robak

mgrobak@law-crg.com

State Bar: 24048508

M. H. Cersonsky

mhcersonsky@law-crg.com

State Bar: 04048500

1770 Saint James Place, Suite 150

Houston, Texas 77056

Telephone: (713) 600-8500

Fax: (713) 600-8585

Attorneys for Defendants,

Elizabeth A. Lousteau and Brett Clanton

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was forwarded to 

all counsel of record on this 27th day of August, 2015, as follows: 

Via electronic filing manager

Sarahjane “SJ” Davidson Swanson

Swanson Law Firm, PLLC

310 Main, Ste. 201

Houston, TX 77056

/s/ Marianne G. Robak

Marianne G. Robak

 

judgment during the pendency of this Appeal. To date, the amount of rental income lost is 

$11,200.00. 
82

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9, the undersigned hereby 

certifies that, upon reliance of the word count of the computer program used to 

generate the document, the word count for all sections, excluding the caption, 

identity of the parties and counsel, statement regarding oral argument, table of 

contents, index of authorities, statement of the case, statement of the issues 

presented, statement of jurisdiction, statement of procedural history, signature, 

proof of service, certificate, certificate of compliance and appendix is: 20,168.

Marianne G. Robak

Marianne G. Robak
APPENDIX

TAB STATUTE

1 Vernon’s Ann. Texas Consti. Art. 1, § 15

2 TX Rules of Civil Procedure, Rule 41

3 TX Rules of Civil Procedure, Rule 67

4 TX Rules of Civil Procedure, Rule 274

5 TX Rules of Civil Procedure, Rule 278

6 TX Rules of Civil Procedure, Rule 279

7 TX Rules of Civil Procedure, Rule 295

8 TX Rules of Civil Procedure, Rule 300

9 V.T.C.A., Civil Practice & Remedies Code § 34.022

10 V.T.C.A., Civil Practice & Remedies Code § 37.002

11 V.T.C.A., Civil Practice & Remedies Code § 37.003

12 V.T.C.A., Property Code § 41.005

13 TX Rules of Evidence, Rule 103

14 TX Rules App. Proc., Rule 43.2

15 TX Rules App. Proc., Rule 43.4
TAB 1

TAB 2

TAB 3

TAB 4

TAB 5

TAB 6

TAB 7

TAB 8

TAB 9

TAB 10

TAB 11

TAB 12

TAB 13

TAB 14

TAB 15