Jerry Hofrock v. Judy Hornsby, 03-14-00505-CV

Appellee sought rescission of documents affecting a real estate transaction and to remove a cloud on title to two contiguous five-acre tracts.
Appellant Hofrock allegedly transferred both tracts to himself without paying purchase price or delivering a promissory note.
Appellee previously owned an improved tract with a mortgage and an unimproved tract free of encumbrances; foreclosure later occurred on the improved tract.
The case proceeded to a bench trial; the court granted rescission and awarded attorney’s fees to Appellee under Section 27.01.
Appellee pled for attorney’s fees under Section 27.01 of the Texas Business and Commerce Code; she did not plead under 27.01 in the original petition but argued it at trial and post-trial.
Appellant asserted various defenses, including a claim of hearing impairment by counsel, which the trial court addressed during the proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ineffective-assistance-of-counsel applies to civil suits	Hornsby argues the doctrine should be extended to this case.	Hofrock contends no right to effective counsel in ordinary civil cases; doctrine not preserved.	Doctrine does not apply; issue preserved only if properly raised.
Whether Appellant preserved a claim of hearing impairment under due process or ADA	Hornsby contends impairment affected proceedings and remedies.	Hofrock contends no preservation and no harm even if preserved.	Not preserved; even if preserved, no harm or rights violation proven.
Whether attorney’s fees under Section 27.01 were properly awarded aside from pleadings	Hornsby sought fees under 27.01 and argued pleadings supported entitlement.	Hofrock argued pleading defect or lack of connection to fraud; issues tried by consent.	Fees under Section 27.01 affirmed; unpleaded issue tried by consent; pleadings defect waived.

Stokes v. Puckett, 972 S.W.2d 921 (Tex. App.—Beaumont 1998) (no broad right to counsel in civil actions absent specific due-process contexts)
In re: M.S., 115 S.W.3d 534 (Tex. 2003) (termination of parental rights and related due-process carves outs for counsel)
Ex parte Ullmann, 616 S.W.2d 278 (Tex. Civ. App.—San Antonio 1981) (involuntary civil commitment proceedings as an exception to counsel-right)
Corona v. Pilgrim's Pride Corp., 245 S.W.3d 75 (Tex. App.—Texarkana 2008) (ADA claims do not void valid judgments; pleading requirements)
City of The Colony v. N. Texas Mun. Water Dist., 272 S.W.3d 699 (Tex. App.—Fort Worth 2008) (trial-by-consent principles for unpleaded issues)
Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) (unpleaded issues can be tried by consent where appropriate)
Hampden Corp. v. Remark, Inc., 331 S.W.3d 489 (Tex. App.—Dallas 2010) (evidence on unpleaded issues sometimes supports finding trial-by-consent)
Kubena v. Hatch, 144 Tex. 627, 193 S.W.2d 175 (Tex. 1946) (pleading treatments and judgments overlapping with unpleaded claims)
In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (standard for raising parental-rights and related due-process claims)
Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979) (preservation and pleading standards in appellate review)