Appeal from the County Civil Court at Law No. 2 Harris
County, Texas Trial Court Cause No. 1052823
consists of Justices Boyce, Jamison, and Brown.
W. Brown Justice
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"). We reverse the summary judgment, overrule
Intervenor's special-appearance issue as moot, and remand
for further proceedings consistent with this opinion.
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.
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. 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 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
subsequently filed a "Motion to Strike
Interpleader's Action." 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 on June 29, 2016.
Intervenor timely filed a notice of appeal.
No competent evidence supports summary judgment based on
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
No reporter's record appears in our record.
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. 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.
Standard of review ...