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Albert Lee Giddens, APLC v. Cuevas

Court of Appeals of Texas, Fourteenth District

September 19, 2017


         On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1052823

          Panel consists of Justices Boyce, Jamison, and Brown.


          Marc W. Brown Justice

         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 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 exhibits[3] 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 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 appearance[5] 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 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 ...

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