                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-13-00156-CV

  GREEN TREE SERVICING, LLC and U.S. Bank as Trustee of the Servertis Fund I Trust
                    2009-2 Grantor Trust Series 2009-2,
                               Appellants

                                                v.
                                   Eric C. SANDERS and Eric M
                              Eric C. SANDERS and Eric M. Sanders,
                                             Appellees

                     From the 407th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2009-TA1-03197
                               Honorable Larry Noll, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 28, 2014

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

           Appellants Green Tree Servicing, LLC and U.S. Bank as Trustee of the Servertis Fund I

Trust 2009-2 Grantor Trust Series 2009-2 challenge the trial court’s judgment granting damages

and attorney’s fees in favor of appellee Eric M. Sanders. Because Sanders failed to plead for

attorney’s fees and because the issue of attorney’s fees was not tried by consent, we reverse the

portion of the trial court’s judgment awarding attorney’s fees to Sanders and render judgment that

Sanders recover no attorney’s fees. In all other respects, we affirm the judgment of the trial court.
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                                          BACKGROUND

         On March 8, 2006, Eric C. Sanders executed a promissory note (“the Note”) in the original

principal amount of $118,150 payable to Home123 Corporation. To secure the Note, Eric C.

Sanders and his son, Eric M. Sanders, executed a deed of trust granting Home123 Corporation a

secured interest in certain real property generally described as 8427 Pigeonberry Drive, Converse,

Texas 78109 and more particularly described as Lot 6, Block 47, Escondido Creek Subdivision,

Unit 1 (“the Property”) and naming Mortgage Electronic Registration Systems, Inc. as the

beneficiary nominated by Home123 Corporation. In addition, Eric C. Sanders and Eric M. Sanders

executed a 1-4 Family Rider (Assignment of Rents) in which they assigned to “Lender” rents on

the Property in the event that the Sanderses were in default.

         The Sanders Note was part of an Asset Sale Agreement by and between D.B. Structured

Products, Inc., seller, and REO Properties Corporation, seller, and Green Tree Servertis

Acquisition LLC, as purchaser. Thereafter, a Pooling Agreement was executed by and between

Green Tree Servertis Acquisition LLC, as depositor, Green Tree Servicing LLC, as servicer, and

U.S. Bank National Association, as Trustee. Under the terms of the Pooling Agreement, Green

Tree Servertis Acquisition LLC agreed to deposit certain mortgage loans to U.S. Bank as Trustee

of the Servertis Fund I Trust 2009-2 Grantor Trust Certificates, Series 2009-2. Green Tree is the

servicer of the loans that were a part of the trust. The Sanders Note was a part of the deposited

loans.

         On September 9, 2009, Bexar County, on behalf of various taxing authorities, sued Eric C.

Sanders, Eric M. Sanders, and D.B. Structured Products, Inc. to recover delinquent ad valorem

taxes on the Property. At the time suit was filed, U.S. Bank owned the Note and had a first priority

lien on the Property. U.S. Bank assigned the servicing rights to the Note and deed of trust to Green

Tree Servicing. It is undisputed that Green Tree failed to pay the property taxes from the escrow
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collected on the Note, and caused the Property to be foreclosed upon. A judgment for the unpaid

taxes was awarded to Bexar County and the various taxing authorities on May 10, 2010. A duly

noticed tax sale was held on September 7, 2010. The Property was sold to Mr. Babgen Rostomian

for $60,000. Because the amount paid for the Property at the tax sale was greater than the taxes

owed, the excess proceeds were deposited with the Clerk of Bexar County.

       Soon after the tax sale, an attorney for the Sanderses contacted Green Tree to facilitate the

redemption process. Because the Sanderses had lost rental profits and incurred expenses due to

the foreclosure, demand was made for $9,959.77 in damages and attorney’s fees. It was agreed

that Green Tree would pay to redeem the Property. Green Tree paid Mr. Rostomian $75,000 to

redeem the Property, which included the redemption premium. Mr. Rostomian executed a

quitclaim deed to “Eric Sanders” on December 6, 2010. However, because the original deed of

trust was signed by both Eric C. Sanders and Eric M. Sanders, both men should have been listed

as grantees on the quitclaim deed.

       On January 18, 2011, Green Tree Servicing filed its Petition for Distribution of Excess Tax

Sale Proceeds. Eric C. Sanders also filed a petition for excess tax sale proceeds, but later non-

suited his claim against Green Tree. On August 17, 2011, Green Tree filed a cross-claim against

the Sanderses alleging that its interest in the excess proceeds was superior to the Sanderses’ interest

and seeking a declaration under the Texas Declaratory Judgments Act that: (1) Servertis Fund I

Trust 2009-2 Grantor Trust Certificates, Series 2009-2 (the “Trust”) is the current owner and

holder of the Note; (2) U.S. Bank as Trustee is the Trustee for the Trust; (3) Green Tree is the

current servicer of the Note and is authorized to bring this action and to institute any foreclosure

proceedings with respect to the Property; (4) the Trust has a current, valid and subsisting lien on

the Property; (5) the Trust is entitled to any rents which are being paid on the Property; and (6)

Green Tree as servicer is entitled to the excess proceeds.
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       On August 23, 2011, Eric M. Sanders filed a pro se counterpetition for excess tax sale

proceeds and cross-claim for breach of contract. Eric M. Sanders claimed that Green Tree

breached the deed of trust by failing to pay the property taxes in a timely manner and causing the

Property to be foreclosed, and causing a quitclaim deed to be issued solely to Eric C. Sanders.

Sanders sought damages for breach of contract due to the fact that Green Tree caused him to lose

his one-half interest in the Property allegedly valued at $125,000. Sanders also alleged that his

credit reputation was damaged by Green Tree. After the pro se petition was served, Sanders

retained an attorney.

       On May 24, 2012, Green Tree filed its Third Amended Cross-claim against the Sanderses

and U.S. Bank filed its Second Amended Plea in Intervention against the Sanderses. In this

pleading, Green Tree and U.S. Bank sought, in part, a judgment to reform the quitclaim deed,

judgment for the funds in the registry of the court, and a declaration that: a) U.S. Bank was the

owner and holder of the Note and Trustee of the Trust; b) Green Tree is the servicer of the Note

and was authorized to bring this action; c) U.S. Bank has a current, valid security lien on the

Property; d) Green Tree and U.S. Bank are entitled to the proceeds in the court registry; and e)

Eric C. Sanders defaulted on the Note and Green Tree is entitled to proceed with foreclosure. In

its plea in intervention, U.S. Bank requested that the excess proceeds be released to it as the

lienholder and that the quitclaim deed be reformed, and also sought declarations under the

Declaratory Judgments Act.

       A bench trial was conducted over a three-day period in September and October 2012. On

the last day of trial, counsel for Sanders requested leave of court to file a trial amendment to plead

for attorney’s fees. Green Tree and U.S. Bank objected, stating that they were surprised by the

trial amendment and that Sanders had had ample opportunity to amend his pleadings prior to trial.

After some discussion, the trial court ruled that it would allow the trial amendment, explaining,
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“[i]t seems to me this issue has been tried by consent.” Sanders’ counsel was later permitted to

testify regarding attorney’s fees, over Green Tree’s and U.S. Bank’s objection that Sanders did not

designate her as an expert. After the bench trial, the trial court rendered a final judgment and

ordered that:

       a) U.S. Bank was the first lien holder of the Property on the date of the September
          2010 tax sale;
       b) Green Tree was the authorized servicer for U.S. Bank as Trustee on the date of
          the tax sale;
       c) the quitclaim deed in favor of “Eric Sanders” be reformed to reflect that both
          Eric C. Sanders and Eric M. Sanders are the grantees and beneficiaries of the
          quitclaim deed and co-owners of the Property;
       d) U.S. Bank as Trustee is the current first lien holder on the Property;
       e) the note executed by Eric C. Sanders dated March 8, 2006 in the amount of
          $118,510 payable to Home 123 Corporation be reinstated and that all corporate
          advances and late charges accruing after September 1, 2010, except for the 2011
          and 2012 taxes, be removed from the balance due on the note; and
       f) the note be reinstated effective November 1, 2012 and all payments due from
          September 1, 2010 through October 31, 2012 be placed at the end of the note
          with the next payment due on the note for November 1, 2012 (in the amount of
          $1,102.91).

Finally, the trial court awarded Eric M. Sanders actual damages in the amount of $5,000 and

attorney’s fees in the amount of $25,000, to be paid from the excess tax sale proceeds in the registry

of the court; Green Tree and U.S. Bank were awarded the balance of the funds. Although timely

requested, the trial court did not file findings of fact and conclusions of law. Green Tree and U.S.

Bank timely appealed.

                                            DISCUSSION

       On appeal, Green Tree and U.S. Bank raise the following issues in which they assert the

trial court erred in: (1) granting judgment for actual damages; (2) granting judgment for attorney’s

fees; (3) failing to enter judgment that Eric C. Sanders was in default on the Note; (4) entering

judgment that the Note should be reinstated; (5) entering judgment that the payments owed on the




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Note should be placed at the end of the Note; and (6) entering judgment that all corporate advances

and late charges accruing after September 1, 2010 be removed from the balance owed on the Note.

Actual Damages

       Green Tree and U.S. Bank argue that the trial court erred in granting Eric M. Sanders

judgment for actual damages in the amount of $5,000 because Sanders failed to provide evidence

of damages at trial. They further argue that the judgment cannot be supported under a breach of

contract theory because the trial court reformed the quitclaim deed to reflect that Sanders was an

owner of the Property, thereby defeating Sanders’ claim that Green Tree caused him to lose his

interest in the Property.

       When a party challenges the legal sufficiency of the evidence to support an adverse finding

on which he did not have the burden of proof at trial, the party must demonstrate that there is no

evidence to support the adverse finding. Thornton v. Dobbs, 355 S.W.3d 312, 315 (Tex. App.—

Dallas 2011, no pet.). In our review, we must credit favorable evidence if a reasonable factfinder

could and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If more than a scintilla of evidence supports the finding,

the legal sufficiency challenge fails. Thornton, 355 S.W.3d at 315. In a factual sufficiency review,

we consider all the evidence and determine whether the evidence supporting the finding is so weak

as to be clearly wrong and manifestly unjust. Id. The trial court, as factfinder in a bench trial, is

the sole judge of the credibility of the witnesses. Id.

       At trial, Green Tree’s corporate representative testified that Green Tree failed to pay the

taxes on the Property, thereby causing the Property to be sold at a tax sale. In addition, counsel

for Green Tree and U.S. Bank admitted that Green Tree failed to pay the property taxes, thus

causing the Property to be sold at the tax sale. The trial court observed that the Sanderses

“wouldn’t be in this position had those taxes been paid.” The record shows that Eric M. Sanders
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lost five months of rental income in the amount of $1,000 per month during the period that he was

deprived of ownership of the Property. Based on this evidence, we conclude that the trial court

had a reasonable basis to calculate damages in the amount of $5,000, and that the damages awarded

were reasonable and necessary. See Qaddura v. Indo–European Foods, Inc., 141 S.W.3d 882, 890

(Tex. App.—Dallas 2004, pet. denied) (damages need not be established with mathematical

precision). We further conclude that the evidence was legally and factually sufficient to support

the damages awarded. In addition, we conclude that Sanders prevailed on his breach of contract

claim. Despite Green Tree’s and U.S. Bank’s argument to the contrary, the reformation of the

quitclaim deed did not vitiate Sanders’ claim for breach of contract. We therefore overrule Green

Tree’s and U.S. Bank’s first and second issues.

Attorney’s Fees

       Green Tree and U.S. Bank next contend that the trial court erred in awarding attorney’s

fees to Sanders. Specifically, they argue that the trial court erred in granting the trial amendment

and allowing testimony of attorney’s fees because (1) there was a showing of surprise; (2) the issue

was not tried by consent; (3) Sanders failed to designate an expert on attorney’s fees and to present

his claim prior to trial; and (4) Sanders did not prevail on his breach of contract claim. Whether a

party is entitled to seek an award of attorney’s fees is a question of law that we review de novo.

Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999). An award of attorney’s fees is

reviewed under an abuse of discretion standard. See Travelers Indem. Co. of Conn. v. Mayfield,

923 S.W.2d 590, 593 (Tex. 1996) (orig. proceeding).

       It is undisputed that Sanders did not plead for attorney’s fees, and his attorney offered no

reason why she did not amend the pleadings during the eighteen months she worked on the matter

prior to trial. On the last day of trial, however, after all other evidence was presented, his attorney

requested leave of court to amend his breach of contract claim to include damages for loss of credit
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reputation and recovery of attorney’s fees. See TEX. R. CIV. P. 66 (permitting trial amendment

absent showing of prejudice to objecting party). The trial court allowed the trial amendment over

objection by Green Tree and U.S. Bank, ruling that the issue had been tried by consent.

        After a review of the record, we conclude the issue of attorney’s fees was not tried by

consent. Generally, a judgment must conform to the pleadings and proof, and a party may not be

granted relief in the absence of pleadings to support it. See TEX. R. CIV. P. 301; Intercontinental

Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 658-59 (Tex. 2009) (defendant waived

right to recover fees under contract by not pleading for attorney’s fees under contract and not

seeking to amend its pleadings to do so); Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345

S.W.3d 537, 569 (Tex. App.—San Antonio 2011, no pet.). A party’s unpleaded issue may,

however, be deemed tried by consent when evidence on the issue is developed under circumstances

indicating that both parties understood the issue was in the case, and the other party fails to make

an appropriate complaint. TEX. R. CIV. P. 67; Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009).

To determine whether the issue was tried by consent, the court must examine the record not for

evidence of the issue, but rather for evidence of trial of the issue. Marrs & Smith P’ship v. D.K.

Boyd Oil & Gas Co., 223 S.W.3d 1, 18 (Tex. App.—El Paso 2005, pet. denied). This rule is

limited to those exceptional cases where it clearly appears from the record as a whole that the

parties tried an unpled issue by consent. Gutierrez v. Gutierrez, 86 S.W.3d 721, 729 (Tex. App.—

El Paso 2002, no pet.). It is not intended to establish a general rule of practice; it should be applied

with care, and never in a doubtful situation. Marrs & Smith P’ship, 223 S.W.3d at 18.

        Prior to the request for the trial amendment, there was no evidence of attorney’s fees before

the trial court. The only mention of attorney’s fees came during Sanders’ testimony, when he

stated that he had paid some attorney’s fees, and conceded that he had not asked for attorney’s fees

in his petition. When his attorney attempted to question him about attorney’s fees, counsel for
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Green Tree and U.S. Bank immediately objected. Because the record before us does not contain

evidence that the issue was actually tried by the parties, we cannot agree that this issue was tried

by consent. See id. Also, Green Tree and U.S. Bank unequivocally objected several times to the

amendment for attorney’s fees. Green Tree and U.S. Bank repeated their objection when Sanders’

counsel testified regarding fees. There is no trial by consent where a party objects to the

introduction of evidence. See Pampell Interests, Inc. v. Wolle, 797 S.W.2d 392, 395-96 (Tex.

App.—Austin 1990, no writ); Shook v. Republic Nat’l Bank of Dallas, 627 S.W.2d 741, 750 (Tex.

App.—Tyler 1981), rev’d on other grounds, 653 S.W.2d 278 (Tex. 1983). Given the repeated

objections, we cannot agree that the issue of attorney’s fees was tried by consent. See Heritage

Gulf Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 658 (Tex. App.—

Houston [14th Dist.] 2013, no pet.) (issue of attorney’s fees was not tried by consent where other

side objected); Stewart A. Feldman & Assocs., L.L.P. v. Industrial Photographic Supply, Inc., No.

14-01-00249-CV, 2002 WL 31042586, at *7 (Tex. App.—Houston [14th Dist.] Sept. 12, 2002, no

pet.) (mem. op.) (same). Because Sanders failed to plead for attorney’s fees, and the issue was not

tried by consent, we hold the trial court erred in awarding attorney’s fees to Sanders. See Prize

Energy, 345 S.W.3d at 569; State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App.—San

Antonio 1991, no writ) (“a judgment not supported by pleadings requesting an award of attorney’s

fees is a nullity”).

        Even assuming that the issue was tried by consent, we nonetheless hold that Sanders’

failure to disclose an expert on attorney’s fees precludes his recovery of attorney’s fees. Rule

193.6 prohibits a party from offering the testimony of a witness who was not timely identified via

discovery responses unless there is a lack of unfair surprise or unfair prejudice. See TEX. R. CIV.

P. 193.6(a)(2). The burden of establishing the lack of unfair surprise or unfair prejudice is on the

party seeking to call the witness, and a finding of lack of surprise or prejudice must be supported
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by the record. See id. R. 193.6(b). Sanders failed to meet this burden. The record reflects that

Green Tree served Sanders with requests for disclosure; although Sanders responded, he failed to

identify counsel as a testifying expert. See id. R. 194.2(f). Accordingly, the trial court abused its

discretion in allowing counsel to testify regarding attorney’s fees. Without her testimony, there is

no evidence to support the award of attorney’s fees. Thus, the trial court erred in awarding

attorney’s fees to Sanders. We therefore reverse the portion of the trial court’s judgment awarding

Sanders $25,000 in attorney’s fees and render judgment that Sanders recover no attorney’s fees.

As our determination on this issue is dispositive, we need not address the remainder of Green

Tree’s and U.S. Bank’s complaints concerning attorney’s fees.

Judgment

       Next, Green Tree and U.S. Bank make four complaints regarding the judgment: (1) the trial

court erred in failing to enter judgment that Eric C. Sanders was in default on the Note, despite

testimony from Green Tree’s corporate representative that he failed to make payments on the Note

due September 1, 2010 through September 1, 2011; (2) the trial court erred in entering judgment

that the Note executed by Eric C. Sanders be reinstated; (3) the trial court erred in entering

judgment that payments owed on the Note should be placed at the end of the Note; and (4) the trial

court erred in entering judgment that all corporate advances and late charges which accrued after

September 1, 2010, except for the 2011 and 2012 taxes, be removed from the balance owed on the

Note. Green Tree and U.S. Bank maintain that the judgment is not supported by the pleadings

because Sanders failed to request that the above declarations be made.

       We disagree that Sanders was required to include in his pleadings a request that the trial

court make the complained-of declarations when rendering the final judgment.              Under the

Declaratory Judgments Act, a trial court is empowered to determine the legal rights and legal

relationships of the parties. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004 (West 2008) (the
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Declaratory Judgments Act permits parties to seek a declaration of rights, status, or other legal

relationship under certain instruments, including deeds); Transp. Ins. Co. v. WH Cleaners, Inc.,

372 S.W.3d 223, 227 (Tex. App.—Dallas 2012, no pet.) (same). Green Tree and U.S. Bank sought

relief under the Declaratory Judgments Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.003

(West 2008). Although the trial court did not grant them all of the relief they requested, the trial

court did make declarations on the issues that they put in to play by asking for a declaration that

Eric C. Sanders had defaulted on the Note. Green Tree and U.S. Bank do not cite us to any

authority standing for the proposition that the trial court is not authorized to consider and resolve

the rights of all the parties under an instrument when declaratory relief is sought by only one party.

Because the trial court was authorized to declare “rights, status, or other legal relations” arising

under the Note and deed of trust, regardless of whether Sanders pled for such relief, the trial court

did not err in making the complained-of declarations based on the evidence presented at trial. See

id. We therefore overrule Green Tree’s and U.S. Bank’s complaints regarding the judgment. 1

                                                   CONCLUSION

         We reverse the portion of the trial court’s judgment awarding attorney’s fees to Sanders

and render judgment that Sanders recover no attorney’s fees. In all other respects, we affirm the

judgment of the trial court.


                                                           Rebeca C. Martinez, Justice




1
  We additionally note that at trial, counsel for Green Tree and U.S. Bank suggested to the trial court that one way to
repair the situation caused by their failure to pay the property taxes was by placing “at the end of the note” “the
amounts owed from September 1, 2010 through August 1, 2012,” with the Sanderses’ “next payment due November
1, 2012.” It is thus inequitable for Green Tree and U.S. Bank to now complain about this particular declaration on
appeal.

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