                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-16-00025-CV

                             Beatrice VASQUEZ and Darryl De La Cruz,
                                           Appellants

                                                 v.

            OLD AUSTIN ROAD LAND TRUST; Joseph Anthony Pizzini, Individually
                 and as Trustee of Old Austin Road Land Trust; and John Price;
                                           Appellees

                     From the 438th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2015-CI-20809
                           Honorable David A. Canales, Judge Presiding

                                OPINION ON MOTION FOR REHEARING

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 26, 2017

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

           Appellees’ motion for rehearing is denied. This court’s opinion and judgment dated June

14, 2017 are withdrawn, and this opinion and judgment are substituted. We substitute this opinion

to add a footnote setting forth our reason for reversing the trial court’s no-evidence summary

judgment as to appellants’ trespass-to-try-title claim.
                                                                                      04-16-00025-CV



       Appellants Beatrice Vasquez and Darryl De La Cruz appeal a summary judgment granted

in favor of Appellees Old Austin Road Land Trust; Joseph Anthony Pizzini, individually, and as

trustee of Old Austin Road Land Trust; and John Price. Appellants contend the trial court erred in

granting a traditional summary judgment on the appellees’ affirmative defenses of bona fide

purchaser and collateral estoppel. Appellants further contend the trial court erred in granting a no-

evidence summary judgment on their DTPA, fraudulent transfer, civil conspiracy, and intentional

infliction of emotional distress claims. Finally, appellants contend the trial court erred in ruling

on objections to the summary judgment evidence.

                                          BACKGROUND

       In 1998, De La Cruz acquired a lot in Selma, Texas. De La Cruz allowed Vasquez, his

aunt, to build a house on the lot.

       In 1999, De La Cruz executed a deed conveying the property to Ralph Carpenter. De La

Cruz and Vasquez subsequently sued Carpenter for DTPA violations arising from the conveyance.

A jury found Carpenter engaged in “false, misleading and/or deceptive acts or practices that

Beatrice Vasquez relied on to her detriment” and an unconscionable action or course of action

against Appellants, and it awarded Vasquez $210,980.00 in damages.

       On April 19, 2013, Carpenter conveyed the property to Old Austin Road Land Trust. On

May 17, 2013, the appellants filed the underlying lawsuit against Carpenter and the appellees

asserting numerous causes of action. The appellants obtained a temporary injunction ordering

Carpenter and the appellees to cease any type of action that would interfere with Vasquez’s quiet

possession of the property during the pendency of the lawsuit.

       The appellees filed a hybrid motion for summary judgment. In their traditional motion,

they moved for summary judgment on their affirmative defenses of bona fide purchaser and


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collateral estoppel. In their no-evidence motion, they challenged each of the appellants’ claims

asserted against them. The trial court signed an order granting the appellees’ motion for summary

judgment and severed the judgment into a separate cause.

                                     STANDARD OF REVIEW

       “We review the grant of [a] summary judgment de novo.” Katy Venture, Ltd. v. Cremona

Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015). To prevail on a traditional motion for summary

judgment, the movant must show “there is no genuine issue as to any material fact and the [movant]

is entitled to judgment as a matter of law.” TEX. R. CIV. P. 166a(c); accord Katy Venture, 469

S.W.3d at 163. A trial court must grant a no-evidence motion for summary judgment unless the

nonmovant raises a genuine issue of material fact on each challenged element of the nonmovant’s

claims. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). We take as true all evidence

favorable to the nonmovant, resolve all conflicts in the evidence in the nonmovant’s favor, and

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Katy

Venture, 469 S.W.3d at 163.

                       SUMMARY JUDGMENT IN FAVOR OF CARPENTER

       The appellants generally challenge the trial court’s order granting summary judgment on

any of their claims against Carpenter. Carpenter was not a party to the summary judgment

proceedings because he did not file a motion for summary judgment or otherwise join the

appellees’ motion. “A trial court may not grant summary judgment in favor of a party that does

not properly move for it by motion.” Willy v. Winkler, No. 01-10-00115-CV, 2010 WL 5187719,

at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem. op.) (citing Teer v.

Duddleston, 664 S.W.2d 702, 703 (Tex. 1984) (holding the trial court erred in adjudicating the

rights of a party who did not move for summary judgment)). Accordingly, those portions of the


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trial court’s order granting summary judgment on any of the appellants’ claims against Carpenter

are reversed. In addition, to the extent the trial court’s severance order severed any of the

appellants’ claims against Carpenter into the severed cause, that portion of the severance order is

also reversed, and all of the appellants’ claims against Carpenter remain pending in the original

cause.

                                      BONA FIDE PURCHASER

         The appellees moved for traditional summary judgment on their affirmative defense of

bona fide purchaser. The appellees asserted this defense in response to the appellants’ trespass-

to-try-title claim and the appellants’ request to void the conveyance of the property from Carpenter

to the appellees under the Texas Uniform Fraudulent Transfer Act (TUFTA). See TEX. BUS. &

COM. CODE ANN. §§ 24.001–.013 (West 2015 & Supp. 2016).

A.       Bona Fide Purchaser Defense to Title Dispute

         “Status as a bona fide purchaser is an affirmative defense to a title dispute.” Madison v.

Gordon, 39 S.W.3d 604, 606 (Tex. 2001). To be a bona fide purchaser, “one must acquire property

in good faith, for value, and without notice of any third-party claim or interest.” Id. “Notice may

be constructive or actual.” Id. “Constructive notice is notice the law imputes to a person not

having personal information or knowledge.” Id.

         The Texas Supreme Court has described constructive notice in this context as follows:

             One purchasing land may be charged with constructive notice of an occupant’s
         claims. This implied-notice doctrine applies if a court determines that the purchaser
         has a duty to ascertain the rights of a third-party possessor. When this duty arises,
         the purchaser is charged with notice of all the occupant’s claims the purchaser
         might have reasonably discovered on proper inquiry. The duty arises, however,
         only if the possession is visible, open, exclusive, and unequivocal.

Id. (citations omitted). Sole possession of a single-unit dwelling implicates visibility, openness,

exclusivity, and unequivocality. Id. at 607; see also Whoa USA, Inc. v. Regan Properties, LLC,

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                                                                                       04-16-00025-CV



No. 05-13-01412-CV, 2014 WL 6967852, at *6–9 (Tex. App.—Dallas Nov. 26, 2014, no pet.)

(mem. op.) (reversing summary judgment based on bona fide purchaser defense where the person

living on the property was in sole possession of the property).

Bona Fide Purchaser Defense under TUFTA

       One of the remedies available to a creditor who prevails under TUFTA is to avoid a

fraudulent transfer. TEX. BUS. & COM. CODE ANN. § 24.008(a) (West 2015); Janvey v. Golf

Channel, Inc., 487 S.W.3d 560, 566 (Tex. 2016). A transfer is not voidable, however, “against a

good faith person who took in good faith and for a reasonably equivalent value.” TEX. BUS. &

COM. CODE ANN. § 24.009(a); accord Janvey, 487 S.W.3d at 567. Just as a bona fide purchaser

in a title dispute must establish the absence of actual or constructive notice of any third-party claim

or interest, in order to qualify as a person who took in good faith under TUFTA, the person must

prove he had no actual or constructive knowledge of any third-party claim or interest. Hahn v.

Love, 394 S.W.3d 14, 31 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Citizens Nat’l Bank

of Tex. v. NXS Const., Inc., 387 S.W.3d 74, 85 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

B.     Analysis

       In his affidavit, Appellee John Price, who is one of the trustees of the Old Austin Road

Land Trust, stated Carpenter informed him “that there was a lady living in the property who had

promised to pay Mr. Carpenter for the house, pay the taxes and pay the utilities. Mr. Carpenter

informed me that none of that was done and that we would probably have a battle getting her out.”

Similarly, in his deposition, Price admitted Carpenter told him there was a lady living in the home

and that she would not leave. Price further admitted that Carpenter told him he had tried and failed

several times to evict Vasquez.




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                                                                                       04-16-00025-CV



       Viewing the evidence in the light most favorable to the appellants, the appellants were in

sole possession of a single-unit dwelling, and the appellees knew about their possession. This

evidence is sufficient to raise a genuine issue of material fact as to whether the appellees had

constructive notice that the appellants had a claim or interest in the property. Therefore, the trial

court erred in granting summary judgment in favor of the appellees on their affirmative defense of

bona fide purchaser against the appellants’ trespass-to-try-title claim and the appellants’ attempt

to apply TUFTA to void the transfer from Carpenter to the appellees.

                                     COLLATERAL ESTOPPEL

       The appellees also moved for traditional summary judgment on their affirmative defense

of collateral estoppel. The appellees’ based their collateral estoppel defense on the appellants’

judgment against Carpenter in which Vasquez was awarded damages for her DTPA claim based

on the jury’s findings that Carpenter engaged in “false, misleading and/or deceptive acts or

practices” and in “an unconscionable action or course of action.”

       Collateral estoppel bars a claim only if “(1) the facts sought to be litigated in the second

action were fully and fairly litigated in the first action; (2) those facts were essential to the

judgment in the first action; and (3) the parties were cast as adversaries in the first action.” Sysco

Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994); accord City of San Antonio v.

Cortes, 468 S.W.3d 580, 586 (Tex. App.—San Antonio 2015, pet. denied). The facts litigated in

the prior action between the appellants and Carpenter were whether Carpenter violated the DTPA

by the actions he took in relation to the conveyance of the property from De La Cruz to Carpenter.

Those facts are different than the facts sought to be litigated in the underlying action.

       The appellees contend the prior judgment resolved the issue of title to the property because

De La Cruz sought the restoration of his title to the property as a remedy for Carpenter’s DTPA


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violations under section 17.50(b)(3), 1 which the trial court denied. This contention ignores the

requirement that the prior litigation had to fully and fairly litigate the facts relating to title in order

for collateral estoppel to apply. See Sysco Food Servs., 890 S.W.2d at 801; City of San Antonio,

468 S.W.3d at 586. The trial court’s decision not to grant De La Cruz the relief he sought under

section 17.50(b)(3) did not involve the litigation of facts relating to title. Accordingly, the trial

court erred in granting summary judgment in favor of the appellees on their affirmative defense of

collateral estoppel.

                                                    DTPA

          The appellees moved for no-evidence summary judgment on the appellants’ DTPA claim.

One of the elements of the appellants’ DTPA claim that the appellees challenged in their motion

was the appellants’ status as a consumer. The motion stated appellants could not “prove they are

a consumer with regard to” the appellees.

          In an order to prevail on a DTPA claim, the plaintiff must show that he is a consumer. See

TEX. BUS. & COM. CODE ANN. § 17.50(a) (West 2011) (providing a “consumer” may maintain an

action); Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 705 (Tex. 2002); Bus. Staffing, Inc. v.

Viesca, 394 S.W.3d 733, 742 (Tex. App.—San Antonio 2012, no pet.). “Consumer” is defined to

include an individual “who seeks or acquires by purchase or lease, any goods or services.” TEX.

BUS. & COM. CODE ANN. § 17.45(4); accord Viesca, 394 S.W.3d at 742. “In determining

consumer status, ‘our focus is on the plaintiff’s relationship to the transaction.’” Viesca, 394

S.W.3d at 743 (quoting Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 815 (Tex.

1997)).



1
 Section 17.50(b)(3) allows a consumer who prevails on a DTPA claim to obtain “orders necessary to restore to any
party to the suit any money or property, real or personal, which may have been acquired in violation of this
subchapter.” TEX. BUS. & COM. CODE ANN. § 17.50(b)(3) (West 2011).

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         In this case, the appellants’ DTPA claim relates to a transaction involving the conveyance

of property from Carpenter to the appellees. Because the appellants did not seek or acquire goods

or services in relation to this transaction, the trial court properly granted summary judgment on the

appellants’ DTPA claim against the appellees.

                             TEXAS UNIFORM FRAUDULENT TRANSFER ACT

         In their brief, the appellants contend the appellees moved for no evidence summary

judgment on their Texas Uniform Fraudulent Transfer Act claim. After reviewing the appellees’

motion, we do not find a no-evidence challenge to this claim, which was only alleged against

Carpenter. 2 Instead, the appellees challenged this claim by filing a traditional motion for summary

judgment on their bona fide purchaser defense in an effort to prevent an avoidance of the transfer.

We previously held summary judgment was improperly granted on that defense.

                                              CIVIL CONSPIRACY

         The appellees moved for no-evidence summary judgment on the appellants’ civil

conspiracy claim. The motion stated there is no evidence of any unlawful act committed by the

appellants or of any engagement in any questionable course of conduct.

         In their brief, the appellants argue they had a viable cause of action for civil conspiracy

under the DTPA. They assert that “to show a conspiracy to engage in false, misleading or

deceptive acts or practices in violation of [the DTPA] requires proof of an agreement to obtain

property from others by engaging in a course of conduct which the parties know has a tendency or

capacity to deceive.” See Bourland v. State, 528 S.W.2d 350, 354–55 (Tex. Civ. App.—Austin

1975, writ ref’d n.r.e.).




2
 Appellees moved for no-evidence summary judgment on Appellants’ claims for common law and statutory fraud,
and the trial court granted it. However, on appeal, Appellants do not challenge the summary judgment on those claims.

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       However, the appellants presented no evidence that the appellees knew their agreement to

acquire the property from Carpenter had a tendency or capacity to deceive the appellants. But see

id. Although the evidence raised a genuine issue of material fact on whether the appellees had

notice that Vasquez was living on the land, such notice is no evidence that the appellees engaged

in a course of conduct knowing the appellants would be deceived. But see id. No abstract of the

appellants’ judgment against Carpenter was filed in the deed records; therefore, it did not appear

in the appellees’ title search. Furthermore, in his affidavit, Price stated the appellees contacted

Carpenter because the property was posted for a tax foreclosure, the appellees did not know

Carpenter prior to the transaction, and the appellees had no knowledge of the judgment. Therefore,

the trial court properly granted summary judgment as to the appellants’ civil conspiracy claim

against the appellees.

                         INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

       The appellees moved for no-evidence summary judgment on the appellants’ intentional

infliction of emotional distress claim. The motion stated there is no evidence of an extreme and

outrageous act or that appellants suffered severe emotional distress as a result of any action by the

appellees.

       “To recover damages for intentional infliction of emotional distress, a plaintiff must [prove

by a preponderance of the evidence] that: (1) the defendant acted intentionally or recklessly; (2)

the defendant’s conduct was extreme and outrageous; (3) the defendant’s actions caused the

plaintiff emotional distress; and (4) the resulting emotional distress was severe.” Hoffmann-La

Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004); accord Kroger Tex. Ltd. P’ship v.

Suberu, 216 S.W.3d 788, 796 (Tex. 2006). “Extreme and outrageous conduct is conduct so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,


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and to be regarded as atrocious, and utterly intolerable in a civilized community.” Hoffmann-La

Roche, 144 S.W.3d at 445 (internal quotation marks omitted) (quoting Twyman v. Twyman, 855

S.W.2d 619, 621 (Tex. 1993)); accord Suberu, 216 S.W.3d at 796. “Conduct that is merely

insensitive or rude is not extreme and outrageous, nor are mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities.” Suberu, 216 S.W.3d at 796 (internal quotation

marks omitted) (quoting GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999)); accord

Hoffmann-La-Roche, 144 S.W.3d at 445.          “Meritorious claims for intentional infliction of

emotional distress are relatively rare precisely because most human conduct, even that which

causes injury to others, cannot be fairly characterized as extreme and outrageous.” Suberu, 216

S.W.3d at 796.

       Whether conduct is extreme and outrageous is generally a question of law for the court to

determine. Hoffmann-La Roche, 144 S.W.3d at 445; Shannon v. Mem’l Drive Presbyterian

Church U.S., 476 S.W.3d 612, 630 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). “But

when reasonable minds may differ, it is for the jury, subject to the court’s control, to determine

whether, in the particular case, the conduct was sufficiently extreme and outrageous to result in

liability.” Hoffmann-La Roche, 144 S.W.3d at 445; accord Shannon, 476 S.W.3d at 630.

       When the appellees purchased the property, they had the utilities transferred to their name.

After the trial court granted the temporary injunction allowing the appellants to remain in

possession of the property, the appellees instructed the utility companies to terminate the services

in their name because they did not have possession of the property. Based on these instructions,

the water company shut off the water to the property for a brief period of time while Vasquez was

taking a shower. The electricity company did not terminate its services. Although a factfinder

might characterize appellees’ conduct as insensitive, there was no evidence that the conduct was


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                                                                                         04-16-00025-CV



“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” See

Hoffmann-La Roche, 144 S.W.3d at 445 (internal quotation marks omitted) (quoting Twyman, 855

S.W.2d at 621). Accordingly, the trial court properly granted summary judgment on appellants’

claim against the appellees for intentional infliction of emotional distress.

                                       EVIDENTIARY RULINGS

        In their final issue, the appellants contend the trial court erred in refusing to strike Price’s

affidavit and in striking Exhibit 5 to their response.

        A trial court’s ruling on an objection to summary judgment evidence is reviewed for an

abuse of discretion. Estate of Denman, 362 S.W.3d 134, 140 (Tex. App.—San Antonio 2011, no

pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, that is, if

it acts without reference to guiding rules or principles of law. Id. at 140–41. To obtain a reversal

for the improper admission or exclusion of evidence, the complaining party must establish the

error was calculated to cause and probably did cause the rendition of an improper judgment. TEX.

R. APP. P. 44.1(a); Estate of Denman, 362 S.W.3d at 141. Generally, errors relating to the

admission or exclusion of evidence will not entitle an appellant to reversal unless the appellant can

show the entire case turns on the evidence improperly admitted or excluded. Estate of Denman,

362 S.W.3d at 141.

A.      Price’s Affidavit

        Appellees offered Price’s affidavit in their summary judgment evidence, and the appellants

objected that facts in Price’s affidavit contradicted facts in his deposition, and his affidavit was

therefore unreliable and inadmissible. The appellants contend Price testified in his deposition that

the contract with Carpenter was a verbal contract; however, in Price’s affidavit, he stated they


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signed a note and deed of trust. The trial court could have determined Price’s reference to the

verbal agreement was to the parties’ initial agreement to purchase the property, and the note and

deed of trust were executed only when the transaction closed. Therefore, the trial court did not

abuse its discretion in refusing to strike Price’s affidavit. See id.

B.      Appellants’ Exhibit 5

        Appellants sought to admit their Exhibit 5, which contained copies of utility bills and

payment receipts, but the appellees raised a hearsay objection, and the trial court excluded the

exhibit. Assuming the trial court erred in excluding the exhibit, the appellants have made no

showing that their entire case turned on the exhibit or that the exclusion of the exhibit caused the

rendition of an improper judgment. But see TEX. R. APP. P. 44.1; Estate of Denman, 362 S.W.3d

at 141. Accordingly, the appellants would not be entitled to a reversal of the trial court’s order

based on error, if any, in excluding the exhibit. See Estate of Denman, 362 S.W.3d at 141.

                                            CONCLUSION

        The portions of the trial court’s order granting summary judgment on any of the appellants’

claims against Carpenter are reversed, and all of the appellants’ claims against Carpenter remain

pending in the original cause.

        The portion of the trial court’s order granting the appellees’ no-evidence motion for

summary judgment against the appellants’ claims for common law and statutory fraud, intentional

infliction of emotional distress, civil conspiracy, and DTPA violations is affirmed.

        The portion of the trial court’s order granting the appellees’ traditional motion for summary

judgment on the affirmative defenses of bona fide purchaser and collateral estoppel, and the




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portion granting appellees’ no-evidence motion on the appellants’ trespass-to-try-title claim is

reversed. 3

         The portion of the trial court’s order granting a no-evidence motion for all defendants on

appellants’ fraudulent transfer claim is reversed.

         The cause is remanded to the trial court for further proceedings.


                                                           Patricia O. Alvarez, Justice




3
  Appellees’ no-evidence motion on the appellants’ trespass-to-try-title claim asserted the appellants had no evidence
of superior title to the subject property. The evidence attached to appellees’ own motion, however, established title
to the property was in appellant Darryl De La Cruz’s name when it was conveyed to Carpenter. The evidence attached
to appellants’ motion established that Vasquez obtained a judgment for over $200,000 against Carpenter for violations
of the DTPA relating to the conveyance of the property to Carpenter, and Vasquez was taking post-judgment actions
in an effort to secure title to the property. Although Carpenter conveyed the title to the appellees before Vasquez
could secure title, Vasquez has sued to set aside that conveyance as a fraudulent transfer. The foregoing is sufficient
to defeat appellees’ no-evidence motion on the appellants’ trespass-to-try-title claim.

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