Luis De Jesus Rodriguez and Maria Rodriguez v. David Martinez Tovar

Affirmed and Majority Memorandum Opinion and Concurring
Memorandum Opinion filed November 30, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00221-CV

LUIS DE JESUS RODRIGUEZ AND MARIA RODRIGUEZ, Appellants
V.
DAVID MARTINEZ TOVAR, Appellee

On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2020-63188

MAJORITY MEMORANDUM OPINION

Maria Rodriguez and Luis de Jesus Rodriguez appeal a judgment against
them for violating the Texas Deceptive Trade Practices–Consumer Protection Act
(“DTPA”)1 and the Property Code in connection with a real estate transaction with
appellee David Martinez Tovar. In four related issues, the Rodriguezes argue that
deemed admissions foreclosed all of Tovar’s claims. We disagree that the deemed

1
See generally Tex. Bus. & Com. Code ch. 17, subch. E.
admissions conclusively negate one or more elements of the claims on which
Tovar recovered, and we affirm the trial court’s judgment.

Background

In 2017, Luis and Tovar signed a contract for the sale and finance of real
estate purportedly owned by Luis. Pursuant to the contract, Tovar paid Luis a
down payment plus monthly payments toward the purchase price. Luis and Tovar
agreed that, after seven years of payments, Luis would convey title to Tovar and
Tovar would own the property. Luis did not record the contract in the Harris
County property records.

Tovar used the property as his primary residence. After Tovar paid at least
$54,983 toward the purchase price, but before he completed all payments required
by the contract, Tovar learned that Luis did not own unencumbered fee simple title
to the property and could not convey title to Tovar. A third party, Aurelia
Lemoine, possessed a vendor’s lien on the property, and she sued to foreclose the
lien. As a result of Lemoine’s suit, Tovar was evicted from the property. The
Rodriguezes did not reimburse any money to Tovar.

Tovar sued the Rodriguezes for breach of contract, negligent
misrepresentation, fraud, and DTPA violations. The Rodriguezes asserted a breach
of contract counterclaim against Tovar, alleging that Tovar breached the contract
by failing to obtain and maintain homeowner’s insurance for the property and by
failing to pay property taxes.

The Rodriguezes served Tovar a request for admissions, to which Tovar did
not respond. The Rodriguezes moved to deem the requests admitted, which the
trial court granted. We have appended the deemed admissions in their entirety at
the end of this opinion, but generally the deemed admissions concerned Tovar’s

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failure to comply with certain terms of the real estate contract, such as paying
insurance premiums and property taxes.

The trial court set a bench trial to begin December 6, 2021. On November
25, the Rodriguezes moved for summary judgment, arguing that Tovar could not
prevail on any of his claims and that the Rodriguezes were entitled to judgment as
a matter of law on their breach of contract counterclaim. The basis for the
Rodriguezes’ motion was that Tovar “was aware of the terms and conditions of the
Contract and failed to keep them, and in that failure, did not complete the
Contract.” For support, the Rodriguezes relied on Tovar’s deemed admissions.
The trial court did not hear the motion and did not rule on it.

After a one-day bench trial on December 7, 2021, the trial court found the
Rodriguezes jointly and severally liable to Tovar. The court signed a judgment
ordering the Rodriguezes to pay Tovar economic and treble damages under the
DTPA, liquidated damages under Property Code section 5.076, trial court
attorney’s fees, conditional appellate attorney’s fees, court costs, and post-
judgment interest. The court also signed findings of fact and conclusions of law.

The Rodriguezes filed a motion to vacate and for new trial. The trial court
did not rule on the motion, which was denied by operation of law. See Tex. R.
Civ. P. 329b. The Rodriguezes appeal.

Analysis

A. Motion for Summary Judgment

In their first issue, the Rodriguezes argue that the trial court erred by failing
to grant their motion for summary judgment.

Absent leave of court, a summary judgment motion must be filed at least
twenty-one days before the hearing. See Tex. R. Civ. P. 166a(c). The Rodriguezes

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filed their motion for summary judgment on November 25, 2021, and requested
that the court set it for submission eleven days later, December 6, 2021, the day
trial was set to begin. Because the motion was filed only eleven days before the
proposed submission date and twelve days before trial, it was untimely. An
untimely summary judgment filing is not before the trial court and cannot be
considered unless leave of court is sought and granted. See Ewing Ins. Servs., Inc.
v. Tex. Indep. Auto. Dealers Ass’n, No. 06-18-00090-CV, 2019 WL 1575397, at
*10 (Tex. App.—Texarkana Apr. 12, 2019, no pet.) (mem. op.). The record does
not indicate that the court granted, or that the Rodriguezes sought, leave to file
their summary-judgment motion with less than twenty-one days’ notice. Thus, we
must presume that the trial court did not consider the motion. See Benchmark
Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Ewing Ins. Servs., Inc., 2019
WL 1575397, at *10; Perez v. Williams, 474 S.W.3d 408, 416 (Tex. App.—
Houston [1st Dist.] 2015, no pet.) (presuming trial court did not consider untimely
response to motion for summary judgment); Envtl. Procedures, Inc. v. Guidry, 282
S.W.3d 602, 612 (Tex. App.—Houston [14th Dist.] 2009, pet. denied); see also
Fertic v. Spencer, 247 S.W.3d 242, 250-51 (Tex. App.—El Paso 2007, pet. denied)
(plaintiff did not file response to no-evidence summary judgment, only untimely
motion for partial summary judgment; even construing motion as response, it was
not timely, and appellate court presumed trial court did not consider it). A court
does not abuse its discretion by declining to entertain a summary judgment motion
filed less than twenty-one days before a trial on the merits. See Lesikar v. Moon,
237 S.W.3d 361, 369 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Thus, the Rodriguezes demonstrate no error in the trial court’s action, and
we overrule their first issue.

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B. Motions for “Directed Verdict” and Motion to Vacate or for New Trial

In their remaining issues, the Rodriguezes assert that the trial court erred by
(twice) failing to “direct a verdict” or otherwise enter judgment in their favor and
by denying their post-trial motion to vacate the judgment or for new trial. 2 Each of
these arguments is based on a single premise: that Tovar’s deemed admissions
defeat all of his claims. We disagree.

To begin with, the Rodriguezes do not substantively explain the import of
the deemed admissions or identify which element(s) of Tovar’s claim(s) the
admissions purportedly negate. For example, the Rodriguezes in their brief restate
all twenty-one deemed admissions in their entirety and then conclusorily assert,
“The trial court was capable of rendering a decision on Mr. Rodriguez and Ms.
Rodriguez’ oral motion for directed verdict based substantially on Mr. Tovar’s
admissions acknowledge[d] by the trial court’s order. The trial court did not. The
trial court egregiously erred in doing so.” But nowhere in their brief do the
Rodriguezes explain the legal significance of any specific admission or admissions.
In this instance, we would be justified in concluding that the Rodriguezes failed to
adequately brief any argument in support of their issue. See Tex. R. App. P.
38.1(i); Buggelli v. Feltis, No. 14-07-00027-CV, 2008 WL 4308333, at *2 (Tex.
App.—Houston [14th Dist.] Aug. 28, 2008, no pet.) (mem. op.) (although courts
liberally construe briefing, failure to identify evidence, explain contentions, or
support argument with legal authority in brief constitutes waiver of issue on

2
Although counsel referred to his motion as a “motion for directed verdict,” it was
effectively a “motion for judgment,” which is the proper description for such a motion in a bench
trial. See Onwudiegwu v. Dominguez, No. 14-14-00249-CV, 2015 WL 4366213, at *5 (Tex.
App.—Houston [14th Dist.] July 16, 2015, no pet.) (mem. op.); see also Grounds v. Tolar Indep.
Sch. Dist., 856 S.W.2d 417, 422 n.4 (Tex. 1993) (Gonzalez, J., concurring) (“Technically, the
use of the term ‘directed verdict’ in a bench trial is incorrect because there is no jury to direct. In
this situation, the correct procedure is for the defendant, at the close of the plaintiff’s evidence, to
make a ‘motion for judgment.’”).

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appeal). However, to the extent that the Rodriguezes’ second, third, and fourth
issues present anything for our review, we will consider the arguments we can
reasonably discern in the interest of justice.

The Rodriguezes first moved for judgment in their favor based on the
deemed admissions during opening statements. The trial court did not rule on the
Rodriguezes’ request at that time.

To the extent the Rodriguezes complain in their second issue about the
denial of their motion made during opening statements, there is no error. See
Grounds, 856 S.W.2d at 422 n.4 (Gonzalez, J., concurring) (“In this situation, the
correct procedure is for the defendant, at the close of the plaintiff’s evidence, to
make a ‘motion for judgment.’”) (emphasis added); accord also Tana Oil & Gas
Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003) (“Ordinarily, a directed verdict
should not be granted against a party before the party has had a full opportunity to
present its case and has rested.”); Wedgeworth v. Kirskey, 985 S.W.2d 115, 116
(Tex. App.—San Antonio 1998, pet. denied) (error for trial court to direct a verdict
without allowing the party with the burden of proof to present all of its evidence).
The trial court did not err in refusing to grant a motion for directed verdict or
judgment raised prior to the presentation of evidence, and we overrule the
Rodriguezes’ second issue.

The Rodriguezes also moved for judgment following the close of all
evidence and subsequently moved to vacate the judgment. The trial court did not
grant these motions either, which the Rodriguezes challenge in their third and
fourth issues. They again contend that Tovar’s deemed admissions precluded him
from prevailing on his claims and entitled the Rodriguezes to judgment on their
counterclaim.

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The deemed admissions established that Tovar failed to comply with the
contract because he failed to maintain insurance coverage and failed to pay
property taxes. Generally, a breach-of-contract plaintiff’s failure to perform his
contractual obligations (or tender performance) precludes recovery from the other
party for breaching the contract. See Dobbins v. Redden, 785 S.W.2d 377, 378
(Tex. 1990) (per curiam). The trial court, however, did not grant Tovar relief
under his breach of contract claim. The judgment awards Tovar relief under the
DTPA and the Property Code.

Specifically, the trial court found that the Rodriguezes violated Property
Code section 5.085, which provides that “[a] potential seller may not execute an
executory contract with a potential purchaser if the seller does not own the
property in fee simple free from any liens or other encumbrances.” Tex. Prop.
Code § 5.085(a). Further, the Legislature has declared that a violation of section
5.085(a) constitutes a deceptive trade practice under the DTPA independently of,
and in addition to, the laundry list of deceptive acts otherwise listed in the DTPA.
See id. § 5.085(c)(1) (“A violation of this section . . . is a false, misleading, or
deceptive act or practice within the meaning of Section 17.46, Business &
Commerce Code, and is actionable in a public or private suit brought under [the
DTPA.]”). The court also found that the Rodriguezes separately violated the
DTPA by, among other things, “representing that an agreement confers or involves
rights, remedies, or obligations which it does not have or involve, or which are
prohibited by law” and “failing to disclose information concerning goods or
services which was known at the time of the transaction if such failure to disclose
such information was intended to induce the consumer into a transaction into
which the consumer would not have entered had the information been disclosed.”
Tex. Bus. & Com. Code § 17.46(b)(12), (24). The Rodriguezes do not challenge

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any of the trial court’s findings or conclusions for legally or factually insufficient
evidence or for any other reason. The evidence, moreover, supports the trial
court’s findings.

The judgment awards the following relief: (1) contract rescission and return
of all payments made by Tovar; (2) treble economic damages for knowing
conduct; (3) liquidated damages for failure to record the contract as required by
Property Code section 5.076; and (4) reasonable attorneys’ fees. These remedies
are available under the DTPA and the Property Code. See Tex. Prop. Code
§§ 5.085, 5.076; Tex. Bus. & Com. Code § 17.50(b)(1), (3), (d).

Tovar’s failure to comply with the contract as established by the deemed
admissions does not pertain to or negate any element of his DTPA and Property
Code claims. See, e.g., Smith v. Baldwin, 611 S.W.2d 611, 614 (Tex. 1980)
(compliance under the contract is irrelevant to the statutory cause of action under
the DTPA). This point was not lost on the trial court, which explained in its
conclusions of law why Tovar’s failure to comply with the real estate contract did
not preclude the Rodriguezes’ liability:

19. Thereafter, Maria would come to the Property, pick up cash
payments from Plaintiff, provide receipts, and make all
communications on behalf of Luis to Plaintiff. . . .
47. Plaintiff is a consumer. Defendants are liable to Plaintiff under
Tex. Bus. & Com. Code § 17.41 et. seq. (the “D.T.P.A.”) for
violations of § 17.46(b)(1), (2), (3), (5), (7), (9), (12), and (24), and/or
Tex. Bus. & Com. Code § 27.01 et seq. for fraud in a real estate
transaction, and for their deceptive actions and statements. . . .
48. Defendants are liable to Plaintiff for violation of Tex. Prop.
Code § 5.085 for false, misleading, and deceptive acts or practices
within the meaning of Tex. Bus. & Com. Code § 17.46. Plaintiff is
entitled to a rescission of the executory contract and reimbursement of
all payments of any kind made to Defendants under the Contract, and
the value of improvements Plaintiff made to the Property. Disclosure

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of the lien and other disclosures were required by the Texas Property
Code. See Tex. Prop. Code § 5.016, § 5.069, and § 5.085. However,
the lien and other conveyances were not disclosed and required
disclosures and other pre-contract for deed documents were not
provided to Plaintiff prior to execution of the Contract. Defendants
violated § 5.085 knowingly and intentionally. Plaintiff is entitled to
all damages allowed by law, including mental anguish and treble
damages. . . .
51. Even before the Contract was signed, Luis would never have
been able to convey any interest in the Property to Plaintiff . . .
because there was an unsatisfied Vendor’s Lien on the Property.
Thus, Defendants’ arguments about whether Plaintiff performed
under the terms of the Contract are irrelevant – Defendants could
never have performed their obligations under the Contract.
(Emphasis added.).

We conclude that the trial court did not abuse its discretion in denying the
Rodriguezes’ motion for judgment and their post-judgment motions based on
Tovar’s deemed admissions. See Smith, 611 S.W.2d at 614; Jarrett v. Shook, No.
03-12-00038-CV, 2012 WL 4466473, at *3 (Tex. App.—Austin Sept. 27, 2012, no
pet.) (mem. op.).

We overrule the Rodriguezes’ third and fourth issues.

Conclusion

We affirm the trial court’s judgment.

/s/ Kevin Jewell
Justice

Panel consists of Justices Jewell, Spain, and Wilson. (Spain, J., concurring)

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Appendix

REQUEST 1: Please admit or deny that David Tovar Martinez, as
shown on your Texas Driver’s License number *****640, is your
legal name.
RESPONSE 1: DEEMED ADMITTED

REQUEST 2: Please admit or deny that you, David Tovar Martinez,
are the person who signed the “Contracto de Financiamento entre
Proprietario y Proprientario” (the “Contract”) attached as Exhibit 1.
RESPONSE 2: DEEMED ADMITTED

REQUEST 3: Please admit or deny Maria Rodriguez was not a
signing party to the Contract attached as Exhibit 1.
RESPONSE 3: DEEMED ADMITTED
REQUEST 4: Please admit or deny that Defendant Luis Rodriguez is
the person with whom you made the agreement referred to as the
Contract.
RESPONSE 4: DEEMED ADMITTED

REQUEST 5: Please admit or deny that Irusema Gallegos was the
Notary Public who read the Contract to you in Spanish and you
acknowledged to her that you were accepting of the terms of the
Contract.
RESPONSE 5: DEEMED ADMITTED
REQUEST 6: Please admit or deny that the Contract that you signed
obligated you to obtain and maintain Homeowner’s Insurance until
the property referenced in the Contract located at 1605 Hedrick Street
in Houston, Texas 77011, was paid off.
RESPONSE 6: DEEMED ADMITTED

REQUEST 7: Please admit or deny that the Contract that you signed
obligated you to pay the property taxes on the property referenced in
the Contract located at 1605 Hedrick Street in Houston, Texas 77011.
RESPONSE 7: DEEMED ADMITTED

REQUEST 8: Please admit or deny that you did not obtain and

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maintain Homeowner’s Insurance for the property referenced in the
Contract located at 1605 Hedrick Street in Houston, Texas 77011, as
the Contract that you signed obligated you to do.
RESPONSE 8: DEEMED ADMITTED

REQUEST 9: Please admit or deny that you did not pay the property
taxes for the property referenced in the Contract located at 1605
Hedrick Street in Houston, Texas 77011 as the Contract that you
signed obligated you to do.
RESPONSE 9: DEEMED ADMITTED

REQUEST 10: Please admit or deny that you knew that Defendant
Luis Rodriguez was in the process of buying the property referenced
in the Contract located at 1605 Hedrick Street, Houston, Texas 77011,
and you agreed to the terms of the Contract having that knowledge.
RESPONSE 10: DEEMED ADMITTED
REQUEST 11: Please admit or deny that you understood that if you
did not complete the terms of the Contract, that the property would
not become yours.
RESPONSE 11: DEEMED ADMITTED
REQUEST 12: Please admit or deny that you understood that the
property was not owned by Luis Rodriguez, but that if you completed
the terms of the Contract you would become the owner of the property
referenced in the contract located at 1605 Hedrick Street, Houston,
Texas 77011.
RESPONSE 12: DEEMED ADMITTED

REQUEST 13: Please admit or deny that you did not complete the
terms of the Contract attached as Exhibit 1.
RESPONSE 13: DEEMED ADMITTED
REQUEST 14: Please admit or deny that you understood you were to
obtain and maintain Homeowner’s Insurance on the property
referenced in the Contract located at 1605 Hedrick Street in Houston,
Texas 77011 as the Contract that you signed obligated you to do.
RESPONSE 14: DEEMED ADMITTED

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REQUEST 15: Please admit or deny that you understood you were to
pay the property taxes on the property referenced in the Contract
located at 1605 Hedrick Street in Houston, Texas 77011, as the
Contract that you signed obligated you to do.
RESPONSE 15: DEEMED ADMITTED

REQUEST 16: Please admit or deny that you did not fulfill the terms
of the Contract.
RESPONSE 16: DEEMED ADMITTED

REQUEST 17: Please admit or deny that you understood that if you
did not complete the terms of the Contract you would not become the
owner of the property referenced in the Contract located at 1605
Hedrick Street in Houston, Texas 77011.
RESPONSE 17: DEEMED ADMITTED
REQUEST 18: Please admit or deny that you have no evidence in
proof that you obtained and maintained Homeowner’s Insurance on
the property referenced in the Contract located at 1605 Hedrick Street
in Houston, Texas 77011, as the Contract that you signed obligated
you to do.
RESPONSE 18: DEEMED ADMITTED
REQUEST 19: Please admit or deny that you have no evidence in
proof that you paid the property taxes on the property referenced in
the Contract located at 1605 Hedrick Street in Houston, Texas 77011,
as the Contract that you signed obligated you to do.
RESPONSE 19: DEEMED ADMITTED

REQUEST 20: Please admit or deny that you have no evidence in
proof that Maria Rodriguez was a party to the Contract you signed
which referenced the properly located at 1605 Hedrick Street in
Houston, Texas 77011.
RESPONSE 20: DEEMED ADMITTED

REQUEST 21: Please admit or deny that you understood that if you
did not complete the terms of the Contract for the property located at
1605 Hedrick Street in Houston, Texas 77011, Luis Rodriguez would
retain control of and his ownership interest in the property.

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RESPONSE 21: DEEMED ADMITTED

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