The Weaver Law Firm

Houston 713.454.7875

san antonio 210.807.8932

Avoiding trial by consent in a property tax reimbursement case

How can you avoid a trial by consent in a property tax reimbursement case? In a recent adverse possession case, the plaintiff sought reimbursement for taxes paid and full title to the property from other co-tenants. The Plaintiff testified along the lines that she paid for taxes for several years and spent approximately $80,000 on home improvements. The testimony was relevant to the plead issue of adverse possession and the suit to quiet title action. That testimony cannot and should not be attributed to the unplead "claim" for reimbursement. The Defendants objected to any further consideration on the issue related to reimbursement or consideration because it was not specifically plead or disclosed.

When evidence relevant to both a pleaded and an unpleaded issue has been admitted without objection, the doctrine of trial by consent ordinarily will not apply. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993)

A trial court's judgment must conform to the pleadings. TEX.R. CIV. P. 301. Pleadings must give reasonable notice of the claims asserted. Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex. App.-Houston 2009) citing SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex.1995).

[A] reviewing court cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain. San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.App.-Houston [14 Dist.] 2005, no pet.). The petition must give fair and adequate notice of the claims being asserted, and, if the reviewing court cannot reasonably infer that the petition contains a claim, then it must conclude the petition does not contain this claim, even under a liberal construction. See, SmithKline Beecham Corp., 903 S.W.2d at 354-55.

[Claimant] bore the burden of proof on the claim for reimbursement; she was required to plead and prove entitlement to such relief. Hawkins v. McCowan, 246 S.W.2d 322, 325 (Tex.Civ.App.-Dallas 1952, writ ref'd) (appellant correctly denied recovery for "valuable improvements on the property" when no pleading supported recovery and evidence was insufficient to support contention); see also Wooley v. West, 391 S.W.2d 157, 161 (Tex.Civ.App.-Tyler 1965, writ ref'd n.r.e.)

In the adverse possession case, the plaintiff's pleading sought reimbursement only "for improvement to the property." Thus, her reimbursement claims based on expenditures for utilities, taxes, and insurance must fail.

A claim for services in connection with the purchase of the property cannot be considered as an equitable claim growing out of the joint tenancy and therefore any claim for such services would require affirmative pleadings in order to support a recovery thereon. Rule 301, T.R.C.P. Even though the claim could be considered as a claim for equitable relief growing out of the co-tenancy, pleadings in support thereof would nevertheless be required. Wooley v. West, 391 S.W.2d 157, 161 (Tex.Civ.App.-Tyler 1965, writ ref'd n.r.e.)

In Hawkins v. McCowan appellant was denied a recovery for valuable and permanent improvements made by her in good faith because there is no pleading to support such a recovery. Hawkins v. McCowan, 246 S.W.2d 322, 325 (Tex.Civ.App.-Dallas 1952, writ ref'd).

When evidence relevant to both a pleaded and an unpleaded issue has been admitted without objection, the doctrine of trial by consent ordinarily will not apply. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993)

No Comments

Leave a comment
Comment Information

awards & recognition

  • Avvo Rating 10.0 superb
  • Houstonia Top lawyers
  • Super Lawyers

houston
1800 Bering Drive, Suite 1050
Houston, TX 77057

Toll Free: 866-597-2280
Houston Law Office Map

san antonio

8000 I.H. 10 West, Suite 600

San Antonio, Texas 78230

Phone: 210-807-8932
Fax: 713-513-5566

By Appointment Only