DHI Holdings, LP v. Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-He3, Mortgage Pass-Through Certificates, Series 2006-He3 Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-He3 And Specialized Loan Servicing, LLC ( 2021 )

Affirmed and Majority and Dissenting Opinions filed November 2, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00991-CV
DHI HOLDINGS, LP, Appellant
V.
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE3,
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE3;
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR
MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE3; AND
SPECIALIZED LOAN SERVICING, LLC, Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2018-06668
DISSENTING OPINION
The majority holds that DHI failed to preserve its complaints for appeal
because: (1) the issues were not raised and ruled on by the trial court; and (2) DHI
agreed to the judgment. Because this holding conflicts with binding authority from
this court, I respectfully dissent. See Wells v. Wells, 621 S.W.3d 362, 366–68 (Tex.
App.—Houston [14th Dist.] 2021, no pet.).
On appeal, DHI raises three issues:
1. Did the Trial Court err in denying DHI’s Motion for Summary
Judgment arguing the four-year statute of limitations barred
foreclosure?
2. Did the Trial Court err in granting the Lenders’ Motion for Summary
Judgment because the Lenders failed to prove abandonment of
acceleration as a matter of law?
3. Did the Trial Court err in granting the Lenders’ Motion for Summary
Judgment because there is a genuine issue of material fact on
abandonment of acceleration?
The majority holds these issues were not preserved because the trial court was not
made aware of its error. In coming to this conclusion, the majority holds that by
agreeing to the judgment as to both form and substance, DHI waived any non-
jurisdictional error because it essentially asked the court to engage in the error of
which it now complains.
The record and binding authority from this court do not support the majority’s
conclusion. The record contains a Rule 11 agreement, which reflects that the parties
agreed to a final summary judgment and to permit the appeal of the issue of “waiver
of acceleration.” The parties came to this agreement upon request of the trial court.
Pursuant to the agreement the parties filed a joint motion requesting an agreed
judgment in favor of the defendants on the parties’ cross motions for summary
judgment. The agreed judgment recited that it “grants Deutsche Bank and SLS’s
motion and denies DHI’s motion.” The record reflects that the alleged error was
raised in the trial court—in DHI’s motion for summary judgment—and the trial court
issued a ruling. Thus, error was preserved in the trial court. See Tex. R. App. P. 33.1.
The trial court has not been blind-sided on appeal with error on which it did not have
an opportunity to rule.
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As to DHI’s approval of the agreed judgment as to substance, ordinarily, such
approval would not preserve any non-jurisdictional error for review. See, e.g., Reule
v. Sherwood Valley I Council of Co-Owners, Inc., No. 01-17-00593-CV, 2019 WL
4196898, at *2 (Tex. App.—Houston [1st Dist.] Sept. 5, 2019, no pet.) (mem. op.)
(per curiam) (“To preserve error for appeal, a party who signs a judgment must
specify that his agreement with the judgment is as to form, but not as to substance
and outcome.”); Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (“It is well-settled that a judgment entered on the agreement of
the parties cures all non-jurisdictional defects.”); Gillum v. Republic Health Corp.,
778 S.W.2d 558, 562 (Tex. App.—Dallas 1989, no writ) (“[A] party will not be
allowed to complain on appeal of an action or ruling which he invited or induced.”).
In this case, however, the agreed judgment provided that, “DHI has preserved
its right to challenge this judgment on appeal.” Because the parties agreed that DHI
had the right to appeal the issue of waiver of acceleration, DHI did not waive its
right of appeal by agreeing to the judgment as to form and substance. See Nelson v.
Egyptian Magic Skin Cream, LLC, 05-20-00106-CV, 2021 WL 2470329, at *1 n.1
(Tex. App.—Dallas June 17, 2021, pet. filed) (mem. op.) (addressing merits of
appeal when “agreed judgment provided that ‘Nelson does not waive his right to
appeal the dismissal of his 2012–2015 bonus claims.’”).
Our court recently addressed the merits in an appeal of an agreed judgment
under similar circumstances. See Wells, 621 S.W.3d at 366–68. In Wells, the
appellant consented to rendition of an Agreed Final Judgment, and his counsel
signed the judgment below the statement, “AGREED TO FORM, APPROVED
AND ENTRY REQUESTED.” Id. at 366. We recognized that ordinarily the
appellant would have waived all non-jurisdictional error by agreeing to the judgment
in such terms. Id. In concluding that our court would consider the merits of the
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appeal, we noted that “[w]aiver is ‘an intentional relinquishment of a known right or
intentional conduct inconsistent with claiming that right.’” Id. (quoting Sun
Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex. 1987)). We concluded
that the appellant had not waived all bases of appeal and, if the parties intended such,
they could have included such language in their agreement. Id. at 367.
In this case, not only have the parties not included waiver in their agreement,
they specifically agreed to permit DHI to appeal the issue of waiver of acceleration.
Following the precedent of Wells and Nelson, I do not agree that DHI waived error
in the trial court or waived its right to appeal by agreeing to the judgment. I would
therefore address the merits of DHI’s appeal. Because the majority does not do so, I
respectfully dissent.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain (Spain, J., Majority).
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