Albert Lee Giddens, APLC v. Juan Cuevas, Eventino Arredondo and Built Right Homes, LLC ( 2017 )

Affirmed in Part, and Reversed and Remanded in Part, and Memorandum
Opinion filed September 19, 2017.
In the
Fourteenth Court of Appeals
NO. 14-16-00772-CV
ALBERT LEE GIDDENS, APLC, Appellant
V.
JUAN CUEVAS, EVENTINO ARREDONDO, AND BUILT RIGHT
HOMES, LLC, Appellees
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Cause No. 1052823
MEMORANDUM OPINION
Appellant Albert Lee Giddens, APLC (“Intervenor”), challenges the trial
court’s (1) final summary judgment against it and in favor of appellee Juan Cuevas,
and (2) order granting the special appearance of appellees Eventino Arredondo and
Built Right Homes, LLC (collectively, the “Arredondo parties”).1 We reverse the
summary judgment, overrule Intervenor’s special-appearance issue as moot, and
remand for further proceedings consistent with this opinion.
I. BACKGROUND
Intervenor is a law firm. Intervenor, purportedly representing Cuevas, filed
this suit against the Arredondo parties in September 2014. Cuevas’s original petition
alleged that Arredondo fraudulently transferred his properties to his wife’s
corporation, Built Right Homes, to avoid paying an award that Cuevas secured in
2010 in a prior judgment. Intervenor also filed a plea in intervention on its own
behalf, asserting breach-of-contract and quantum-meruit claims against Cuevas. The
plea sought relief for Cuevas’s non-payment of attorney’s fees purportedly awarded
to Cuevas and Intervenor in the prior judgment, plus fees for Intervenor’s post-
judgment collection work. The Arredondo parties thereafter filed a sworn motion to
show authority pursuant to rule 12, see Tex. R. Civ. P. 12, and Intervenor amended
its plea in intervention to add claims against the Arredondo parties for fraudulent
transfer. The trial court granted the motion to show authority, striking every
document Intervenor had filed on behalf of Cuevas, including his live petition, but
not including the amended petition in intervention. The Arredondo parties filed a
notice of non-suit of all their claims against Cuevas. The trial court signed an order
dismissing the case between Cuevas and the Arredondo parties on February 8, 2016.
In March 2016, Cuevas filed a traditional motion for final summary judgment,
arguing that Intervenor’s claims against him were barred by the four-year statute of
limitations for contracts and quantum meruit.2 Cuevas argued that the accrual date
1
We refer to Cuevas and the Arredondo parties collectively as “appellees.”
2
We note that this motion was filed by a new attorney for Cuevas. The same attorney
previously filed a motion to substitute counsel, but no order granting the motion appears in the
2
for Intervenor’s claims was February 2, 2010, the date the prior judgment was
signed. Cuevas asserted that the prior judgment ran exclusively for him—not for
Intervenor—and that Intervenor was required to amend the prior judgment within
that court’s plenary power so that it could be entitled to the attorney’s-fee award.
Cuevas attached three exhibits3 to his summary-judgment motion, none of which
was authenticated or certified. The text “UNOFFICIAL COPY” appears on each
exhibit. Exhibit 1 purports to be the judgment in the prior suit. Intervenor filed a
response to the summary-judgment motion, arguing, inter alia, that it was not
supported by competent, authenticated evidence because the attached documents
were not certified. On the basis that the statute of limitations had run, the trial court
granted Cuevas partial summary judgment as to Intervenor’s breach-of-contract and
quantum-meruit claims for fees awarded to Cuevas against Arredondo in the prior
judgment. The order did not address Intervenor’s claim for post-judgment collection
fees against Cuevas or its fraudulent-transfer claims against the Arredondo parties.
Cuevas subsequently filed a “Motion to Strike Interpleader’s Action.”4 In this
motion, Cuevas argued that Intervenor’s claim for post-judgment collection fees did
not arise from a justiciable interest and consequently Intervenor’s suit should be
dismissed in its entirety. In a final order issued on June 28, 2016, the trial court
granted Cuevas summary judgment on statute-of-limitations grounds “to the extent
record.
3
Although Cuevas only labeled one exhibit, his summary-judgment motion refers to three
exhibits. Exhibit 2 purports to be an order in the prior suit appointing a receiver, wherein the
receiver was awarded fees (on a contingent basis) for receiving and selling Arredondo’s non-
exempt assets in satisfaction of the prior judgment. Exhibit 2 also appears to order the receiver to
distribute an amount equal to the remainder of the assets to Cuevas’s attorney. Exhibit 3 purports
to be an order in the prior suit dated November 25, 2013, closing the receivership.
4
The Arredondo parties filed a brief in support of Cuevas’s summary-judgment motion
and in support of Cuevas’s motion to strike “subject to special appearance” addressing the issues
raised therein, but did not file a separate motion for summary judgment or motion to strike.
3
of Intervenor’s claims for fees or legal services due or owing at the time of, or in
connection with, the entry of the Judgment dated February 2, 2010 in Docket No.
943542 before Harris County Civil Court at Law Number Four.” In the same final
order, the trial court struck “the remainder” of Intervenor’s claims (the claims for
post-judgment collection fees as to Cuevas and, apparently, all claims as to the
Arredondo parties) for want of a justiciable interest pursuant to rule 60 of the Texas
Rules of Civil Procedure. The trial court subsequently granted the Arredondo
parties’ special appearance5 on June 29, 2016. Intervenor timely filed a notice of
appeal.
II. DISCUSSION
A. No competent evidence supports summary judgment based on limitations.
Intervenor contends that there was a complete absence of authentication of the
only evidence attached to Cuevas’s traditional summary-judgment motion.
Appellees respond that Intervenor failed to preserve this issue for appeal because the
trial court never ruled on Intervenor’s evidentiary objections. In In re Estate of
Guerrero, a majority of this en banc court held that an issue regarding a complete
absence of authentication is a defect of substance that is not waived when a party
fails to object and the issue may be urged for the first time on appeal. 465 S.W.3d
693, 706–08 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc maj. op.).
Accordingly, even if Intervenor did not obtain a ruling on its evidentiary objections,
Intervenor may urge its authentication issue for the first time on appeal. See id.
i. No reporter’s record appears in our record.
When, as here, the clerk’s record has been filed but the court reporter has not
5
We note that no sworn motion challenging the court’s jurisdiction over the Arredondo
parties appears in our record.
4
filed a reporter’s record because the appellant did not pay or make arrangements to
pay the reporter’s preparation fee, an appellate court—after first giving the appellant
notice and a reasonable opportunity to cure—may decide those issues that do not
require a reporter’s record for a decision.6 See Tex. R. App. P. 37.3(c); see also
Office of Pub. Util. Counsel v. Pub. Util. Comm’n, 878 S.W.2d 598, 599–600 (Tex.
1994) (appellate court must identify and address issues not requiring reporter’s
record if clerk’s record has been filed). Summary judgments are traditionally decided
on the pleadings, admissions, stipulations, motions, and discovery, and do not
require evidentiary hearings. See Tex. R. Civ. P. 166a(c) (stating “[n]o oral
testimony shall be received at the hearing” and providing judgment sought shall be
rendered forthwith if evidence shows (1) no genuine issue of material fact and (2)
entitlement to judgment as a matter of law on issues expressly set out in motion or
response); see also Strachan v. FIA Card Servs., No. 14-09-01004-CV, 2011 WL
794958, at *3 (Tex. App.—Houston [14th Dist.] Mar. 8, 2011, pet. denied) (subs.
mem. op.) (“Because a motion for summary judgment is submitted on written proof,
a transcript of the summary-judgment hearing is not necessary to appeal a summary
judgment . . . .”). Therefore, we review the summary judgment without the reporter’s
record.
ii. Standard of review and applicable law
We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a
traditional motion for summary judgment, a movant must establish “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law.” Tex. R. Civ. P. 166a(c). We review the evidence presented in the
6
Intervenor notified this court in a letter filed on October 7, 2016 that he did not intend to
file the reporter’s record because it was not necessary in this summary-judgment appeal.
5
light most favorable to the party against whom the summary judgment was rendered,
crediting favorable evidence if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. Mann, 289 S.W.3d at 848.
A defendant moving for summary judgment on the affirmative defense of
limitations has the burden to conclusively establish that defense, including the
accrual date of the cause of action, and if the plaintiff pleads the discovery rule, then
the defendant/movant must conclusively negate it. Diversicare Gen. Partner, Inc.
v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); KPMG Peat Marwick v. Harrison Cty.
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); see Tex. R. Civ. P. 94.7 If the
movant establishes that the statute of limitations bars the action, then the nonmovant
must adduce summary-judgment proof raising a fact issue in avoidance of the statute
of limitations. Diversicare, 185 S.W.3d at 846; KPMG Peat Marwick, 988 S.W.2d
at 748.
The statute of limitations for a claim for breach of contract is four years. See
Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West 2015); Stine v. Stewart, 80
S.W.3d 586, 592 (Tex. 2002) (per curiam). The statute of limitations for an action
in quantum meruit is also four years. See Williams v. Khalaf, 802 S.W.2d 651, 657
(Tex. 1990) (op. on reh’g). The parties do not agree on the accrual date of
Intervenor’s claims.
“Under the summary judgment standard, copies of documents must be
authenticated in order to constitute competent summary judgment evidence.”
Guerrero, 465 S.W.3d at 703; see Tex. R. Civ. P. 166a(c) (authenticated or certified
public records are proper summary-judgment evidence); Anders v. Mallard &
Mallard, Inc., 817 S.W.2d 90, 94 (Tex. App.—Houston [1st Dist.] 1991, no writ)
7
We note that our record does not contain Cuevas’s answer to the petition in intervention
or other indicia that the affirmative defense of limitations was pleaded.
6
(requiring attachment of certified copies of prior petition and prior judgment to
summary-judgment motion, which was based on res judicata, to constitute proper
summary-judgment proof). To properly authenticate a document, the proponent
must “produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Tex. R. Evid. 901(a). Or, the document may be self-
authenticating if, for instance, it is a public record that is sealed and signed or
certified and signed in accordance with rule 902. See id. 902(1), (2). Yet another
option for self-authentication is through discovery. See Tex. R. Civ. P. 193.7. For
instance, a document produced by a party as a discovery response and used against
that party is self-authenticating. See id. (“A party’s production of a document in
response to written discovery authenticates the document for use against that party
in any pretrial proceeding or at trial unless—within ten days or a longer or shorter
time ordered by the court, after the producing party has actual notice that the
document will be used—the party objects to the authenticity of the document, or any
part of it, stating the specific basis for objection.” (emphases added)).
iii. Analysis
Here, Cuevas relied on the date and facts recited in the purported prior
judgment to argue that Intervenor’s claims were time barred. See Diversicare, 185
S.W.3d at 846 (defendant/movant must prove when claim accrued); KPMG Peat
Marwick, 988 S.W.2d at 748 (same). However, neither the prior judgment, nor the
two other orders from the prior suit, were sealed and signed or certified in accordance
with rule 902. See Tex. R. Evid. 902(1), (2). Nor were these documents otherwise
authenticated under rule 901 because Cuevas did not offer any evidence to support
a finding that the prior judgment and other orders were what he claimed. See id.
901(a).
Appellees contend that the trial court judicially noticed the prior judgment.
7
The record does not indicate whether judicial notice was taken. We do not have the
reporter’s record, and neither of the orders granting partial and final summary
judgment states that judicial notice was taken. Appellees argue we may presume that
judicial notice was taken, citing Marble Slab Creamery, Inc. v. Wesic, Inc., 823
S.W.2d 436, 439 (Tex. App.—Houston [14th Dist.] 1992, no writ). However, in that
case, the Marble Slab court presumed that the trial court took judicial notice of its
own records—not records from another court. See id.; see also In re K.F., 402
S.W.3d 497, 505 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (noting that
“[a] trial court may take judicial notice of its own files”).8 Regardless, presuming
that the trial court took judicial notice of the prior judgment, “[a] court may not
judicially notice records of another court.” See Nat’l Cty. Mut. Fire Ins. Co. v. Hood,
693 S.W.2d 638, 639 (Tex. App.—Houston [14th Dist.] 1985, no writ) (trial court
could not take judicial notice of another court’s records, prior suit, and prior
garnishment proceedings, and reversing summary judgment because proof offered
was lacking).
Even if a court properly could take judicial notice of another court’s records,
“this does not relieve the proponent from the responsibility of providing them to the
court in a form acceptable for summary judgment proceedings, i.e. either sworn to
8
Appellees also direct us to WorldPeace v. Commission for Lawyer Discipline, 183 S.W.3d
451, 459 (Tex. App.—Houston [14th Dist.] 2005, pet. denied), for the proposition that a court may
take judicial notice of a prior lawsuit. However, the WorldPeace court did not take judicial notice
of a prior suit. The court stated:
On appeal, WorldPeace requests that we judicially notice the prior lawsuit
involving Collins. Even if we were to do so, our notice could not satisfy
WorldPeace’s burden of proof in the trial court.
Id. (emphasis added). The WorldPeace court also cited Anders v. Mallard & Mallard, Inc., with
approval, a case wherein the court held that there was no evidence of collateral estoppel because a
party failed to provide the trial court with a certified copy of a petition from prior lawsuit. Id.
(citing Anders, 817 S.W.2d at 94–95). Therefore, WorldPeace does not support appellees’
argument.
8
or certified.” Mowbray v. Avery, 76 S.W.3d 663, 689 (Tex. App.—Corpus Christi
2002, pet. denied) (citing Gardner v. Martin, 345 S.W.2d 274, 276–77 (Tex. 1961)).
Appellees also assert that the prior judgment was authenticated against
Intervenor under rule 193.7 because, according to appellees, Intervenor produced it
to Cuevas. We disagree. Nothing in the record tends to establish that Intervenor
produced this document in response to written discovery in this case. Compare
Elness Swenson Graham Architects, Inc. v. RLJ II-C Austin Air, LP, 520 S.W.3d
145, 158 (Tex. App.—Austin 2017, pet. filed) (no proof that document produced in
discovery such as Bates stamp), and Kucera v. Humble Indep. Sch. Dist., No. 14-03-
01200-CV, 2004 WL 2161827, at *3 n.2 (Tex. App.—Houston [14th Dist.] Sept. 28,
2004, no pet.) (same), with Merrell v. Wal-Mart Stores, Inc., 276 S.W.3d 117, 130
(Tex. App.—Texarkana 2008) (record contained filed “Notice of Self
Authentication Pursuant to Rule 193.7”), rev’d on other grounds, 313 S.W.3d 837
(Tex. 2010).
Because none of the summary-judgment evidence (Exhibits 1, 2, and 3) was
authenticated or certified, it was incompetent. Accordingly, the trial court erred in
granting final summary judgment in favor of Cuevas and against Intervenor because
the judgment was not supported by competent evidence. Guerrero, 465 S.W.3d at
703, 705; see Tex. R. Civ. P. 166a(c). We sustain Intervenor’s first issue.
B. Special appearance
In its second issue, Intervenor contends that the trial court erred in granting
the Arredondo parties’ motion for special appearance. Intervenor asserts that the
Arredondo parties made a general appearance by filing a (1) motion to show
authority, (2) reply brief regarding their motion to show authority, and (3) reply brief
in support of Cuevas’s summary-judgment motion against Intervenor’s claims for
attorney’s fees. The trial court disposed of all Intervenor’s pending claims against
9
the Arredondo parties in its June 28, 2016, order that stated it was “final” and
“appealable.” The fraudulent-transfer claim was among the claims pending at the
time of the June 28, 2016, order. The trial court granted the Arredondo parties’
special appearance on June 29, 2016, the day after which all claims against the
Arredondo parties were disposed. Appellant does not challenge the trial court’s
disposition of all of Intervenor’s pending claims against the Arredondo parties in its
June 28, 2016, order. Based on the record before us, we conclude that the special-
appearance issue is moot.
The mootness doctrine implicates subject-matter jurisdiction. City of
Shoreacres v. Tex. Comm’n on Envtl. Quality, 166 S.W.3d 825, 830 (Tex. App.—
Austin 2005, no pet.). Where, as here, we review subject-matter jurisdiction sua
sponte, we construe the allegations in the pleading in favor of the pleader and, if
necessary, examine the entire record to determine if there is evidence establishing
subject-matter jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 446 (Tex. 1993). “The mootness doctrine limits courts to deciding cases
in which an actual controversy exists,” F.D.I.C. v. Nueces Cty., 886 S.W.2d 766,
767 (Tex. 1994), and prevents courts from rendering advisory opinions, Valley
Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam). A
controversy must exist between the parties at every stage of the legal proceeding,
including the appeal. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). An issue
may become moot when a party seeks a ruling on some matter that, when rendered,
would not have any practical legal effect on a then-existing controversy. See In re
H&R Block Fin. Advisors, Inc., 262 S.W.3d 896, 900 (Tex. App.—Houston [14th
Dist.] 2008, orig. proceeding); see also Camarena v. Texas Emp’t Comm’n, 754
S.W.2d 149, 151 (Tex. 1988) (“Generally, a case is determined to be moot when the
issues presented are no longer live or the parties lack a legally cognizable interest in
10
the outcome.” (internal quotation marks omitted)). Where, as here, a judgment is
issued without a conventional trial, the judgment “is final for purposes of appeal if
and only if either it actually disposes of all claims and parties then before the court,
regardless of its language, or it states with unmistakable clarity that it is a final
judgment as to all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d
191, 192–93 (Tex. 2001).
The trial court’s June 28, 2016, order (1) granted summary judgment on
Intervenor’s claims against Cuevas for attorney’s fees stemming from the prior
judgment and (2) struck the remainder of Intervenor’s plea in intervention. The
remainder of the plea included claims against Cuevas for post-judgment collection
fees and all of Intervenor’s claims against the Arredondo parties. The June order also
states that it is final and appealable. The trial court’s June order disposed of all
pending claims before the trial court. See id.
A day after the final, June order, the trial court granted the Arredondo parties’
special appearance. Intervenor has not challenged the portion of the June order
striking all claims against the Arredondo parties. Accordingly, Intervenor has no live
plea or controversy against the Arredondo parties because all his claims as to them
were stricken. Our reversal of the special-appearance order would have no practical
legal effect on the unchallenged portion of the final order that effectively disposed
of Intervenor’s claims against the Arredondo parties. See City of Shoreacres, 166
S.W.3d at 838 (city’s request for review of state agency’s grant of environmental
permit was moot because federal permit provided permit for same environmental
activity and time period to revoke certification of federal permit under State
authority had passed). Therefore, the special-appearance issue is moot. See Nueces
Cty., 886 S.W.2d at 767; Camarena, 754 S.W.2d at 151; City of Shoreacres, 166
S.W.3d at 838. Accordingly, we overrule Intervenor’s second issue as moot.
11
III. CONCLUSION
Having sustained Intervenor’s first issue, we reverse that portion of the trial
court’s final judgment granting summary judgment, affirm the remainder of the
judgment, and remand to the trial court for further proceedings consistent with this
opinion.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Jamison, and Brown.
12