Barrientos v. Barrientos

• Docket Number: 11-22-00147-CV
• Decision Date: 14 September 2023
• Parties: ESTELLA G. BARRIENTOS, INDIVIDUALLY AND INDEPENDENT ADMINISTRATIX OF THE ESTATE OF DONATO LUJAN BARRIENTOS; VIVIAN BARRIENTOS; EVA BARRIENTOS; AND EUSEBIO BARRIENTOS, Appellants v. MODESTO L. BARRIENTOS, Appellee
• Court: Texas Court of Appeals

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ESTELLA G. BARRIENTOS, INDIVIDUALLY AND INDEPENDENT ADMINISTRATIX OF THE ESTATE OF DONATO LUJAN BARRIENTOS; VIVIAN BARRIENTOS; EVA BARRIENTOS; AND EUSEBIO BARRIENTOS, Appellants
v.
MODESTO L. BARRIENTOS, Appellee

No. 11-22-00147-CV

Court of Appeals of Texas, Eleventh District

September 14, 2023

On Appeal from the County Court at Law No. 2 Ector County, Texas Trial Court Cause No. 19,744-09

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. STACY TROTTER, JUSTICE

This appeal presents a unique issue-whether an unsigned order setting a hearing for a motion for summary judgment that, when filed and served, recites and specifies a definitive date and time (1) that meets the twenty-one-day notice

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requirement and (2) that a trial court will proceed to hear and consider the motion, provides sufficient notice of the hearing date to the nonmovant.

Appellee, Modesto L. Barrientos, originally filed suit against Estella G. Barrientos, individually and as independent administratrix of the Estate of Donato Lujan Barrientos, Vivian Barrientos, Eva Barrientos, and Antonio Barrientos, to quiet title to certain property located in Ector County (the property); Modesto also sought a declaration of the parties' ownership interest in the property. Modesto subsequently joined Appellant, Eusebio Barrientos, as a defendant to the suit. The property was encumbered by a lis pendens that had been initiated during the administration of Donato's estate. Modesto filed a traditional and no-evidence motion for summary judgment on his claims, which the trial court granted. Estella, Vivian, Eva, and Eusebio (Appellants) challenge the trial court's grant of summary judgment in favor of Modesto. We affirm.

I. Factual and Procedural Background

Donato and Modesto are brothers; they purchased the property on May 13, 1998, from Grey Wolf Drilling Company and a warranty deed was executed. Shortly thereafter, Donato and Modesto began operating a scrap metal recycling business (the business) on the property. Donato and Modesto have another brother, Eusebio. Donato died in Ector County on March 31, 2009, and Estella was soon thereafter appointed as the independent administratrix of Donato's estate. As the independent administratrix, Estella was granted the power to enter into contracts on behalf of the estate, defend claims against the estate, pay debts owed by the estate, and sell or dispose of any and all estate assets, which included both personal and real property.

Estella filed a lis pendens on the property on May 13, 2009. During the administration of Donato's estate, issues arose regarding the appraisal and operation of the business. On June 22, 2009, the trial court, sitting as a court in probate, signed an order that (1) granted complete access and control of the business to Estella,

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(2) ordered Modesto to surrender the premises where the business was located and to produce all records that pertained to the business, and (3) enjoined Modesto from entering the premises where the business was located or in any way hindering the operation of the business. The appraisal of the business was completed in November 2009.

In 2012, Modesto reached out to Estella to address his ownership interest in the business. Estella subsequently transferred the property to Modesto to settle his interest in the business. The property transfer was executed by a general warranty deed on April 30, 2012; however, the lis pendens from the estate remained on the property after the transfer. In May 2019, Modesto sought to clear the cloud on the title to the property and in turn submitted a written demand to Estella to release the lien. Despite Modesto's request, Estella did not remove the lien from the property.

On July 10, 2019, Modesto filed suit to quiet title in the property and for a declaratory judgment to declare that (1) he owned one hundred percent (100%) of the fee simple interest in the property and (2) Estella and her and Donato's children-Vivian, Eva, and Antonio Barrientos-do not have a fee simple ownership interest in the property. Estella answered and asserted that the business was a joint venture that had been created by Donato, Modesto, and Eusebio, and that Eusebio had purchased the property for use by the joint venture. As a result of Estella's assertions, Modesto filed an amended petition on April 17, 2020, and joined Eusebio as a defendant.

Two years later, on April 5, 2022, Modesto filed a traditional and no-evidence motion for summary judgment. For his traditional grounds, Modesto contended that he had conclusively established all the essential elements to prevail on his claim to quiet title, namely that: (1) he possessed the entire ownership interest in the property; (2) the lien created by lis pendens had not been removed; and (3) the lien continued to cloud the title on the property. For his no-evidence grounds, Modesto contended

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that there was no evidence to establish any of Appellants' affirmative defenses. Additionally, Modesto requested that the trial court determine and declare that (1) the notice of lis pendens was null and void, (2) Eusebio did not have an ownership interest in the property, (3) the general warranty deed executed by Estella on April 30, 2012, vested the remaining ownership interest (50%) in the property to Modesto, and (4) he was entitled to recover reasonable attorney fees.

Modesto's motion for summary judgment was e-filed and contemporaneously served on all parties to this dispute on April 5, 2022. Further, an unsigned order setting and specifying a hearing date on Modesto's motion accompanied the motion when it was e-filed and served. The unsigned order recited and specified that the hearing date for Modesto's motion was set for April 28, 2022, twenty-three days after the unsigned order and Modesto's motion were e-filed and served. On April 8, 2022, the trial judge signed the Order Setting Hearing.

Appellants filed their response to Modesto's motion on April 27, 2022, one day before the scheduled hearing. In their response, Appellants asserted that there was sufficient evidence to raise genuine issues of material fact regarding the enforceability of the 2012 deed executed between Estella and Modesto, Eusebio's interest in the property, and the children's interest in the property. Appellants also filed a motion to participate in the hearing by video and/or telephonic means, because "problems with [trial counsel's] calendaring system" indicated that the summary judgment hearing was to be a video hearing and Appellants' trial counsel had not arranged and could not travel to Ector County to attend the hearing in-person because of "work commitments."

Modesto filed an objection to Appellants' response because the response was untimely-it was filed one day before the date of the summary judgment hearing. One hour before the scheduled hearing was to commence, Appellants then filed a "MOTION FOR FILING RESPONSE UNDER LEAVE OF THE COURT NUNC

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PRO TUNC" and requested that the trial court consider their response as part of the summary judgment record. In this motion, Appellants claimed that their trial counsel's "calendar system did not work correctly and an error on the filing deadlines was not detected until a later time."

At the summary judgment hearing, the trial court first considered Appellants' motion for leave to file their late response.^[1] Appellants' trial counsel again stated that there was a calendaring issue that caused her to discover "very late" Modesto's motion and the hearing date that were "so close to whenever [they] got the first motion to be here." However, Appellants did not present any evidence at the hearing of the alleged calendaring issue, nor did they attach any evidence to support their motion for leave to file the late response. Modesto's trial counsel argued that Appellants' response was untimely and their motion for leave to file the late response failed to establish good cause for the late filing or to include any evidence to support their request.

After considering the parties' arguments, the trial court denied Appellants' motion for leave to file the late response and stated, among other things, that Appellants' request did not provide adequate time for Modesto and his trial counsel to review Appellants' response before the April 28 hearing. The trial court also noted that Appellants could have filed a motion for continuance and requested a postponement of the hearing, but that they did not.

The trial court then considered the merits of Modesto's motion for summary judgment. The trial court granted Modesto's no-evidence motion because Appellants had produced no controverting evidence in a timely response. The trial court, after considering the summary judgment evidence before it, also granted Modesto's traditional motion.

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In its judgment granting Modesto's motion for traditional and no-evidence summary judgment, the trial court stated that it did not consider Appellants' untimely response or the evidence attached to it. The trial court further found, declared, and ordered that (1) the notice of lis pendens dated April 13, 2009, was invalid and of no force and effect, (2) the title to the property was quieted in favor of Modesto, and (3) the deeds dated May 13, 1998, and April 30, 2012, constituted a valid transfer of 100% of the ownership interest in the property to Modesto.

Estella filed a motion for new trial contending that she was acting pro se at the time that Modesto's motion was filed and on the date of the scheduled hearing, which, due to her unfamiliarity with the court system and the applicable rules, prevented her from asserting a meritorious defense to Modesto's claims.^[2] The trial court denied Estella's motion. This appeal followed.

II. Analysis

Appellants have filed two briefs in this appeal. Estella's brief raises a single issue-that notice of the summary...