NO. 12-23-00112-CV 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REBECCA DE LA ROSA AND CESAR 

DE LA ROSA, 

APPELLANTS 

V.

HESTON HAYES AVERY AND 

ROBERT D. AVERY, 

APPELLEES

§

§ 

§ 

APPEAL FROM THE 273RD 

JUDICIAL DISTRICT COURT

SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

Rebecca De La Rosa and Cesar De La Rosa (collectively Appellants) appeal the trial 

court’s order denying their motion to strike Appellee Robert D. Avery’s plea in intervention as 

well as the trial court’s summary judgment entered in his favor. Appellants raise four issues on 

appeal. We affirm.

BACKGROUND

On February 26, 2020, Heston Avery decided to play a prank on A.D.L.R., a friend who 

came to his house to visit. In so doing, he pointed a shotgun at A.D.L.R. Heston did not believe 

the shotgun was loaded when he pulled the trigger. The shotgun was, in fact, loaded. It fired. 

A.D.L.R. later died from his wounds.

Robert Avery, Heston’s grandfather, gave Heston the shotgun in 2015, when Heston was 

twelve or thirteen-years-old and living in Temple, Texas. Because Heston’s parents would not 

allow him to keep the shotgun at their house, Robert kept the gun at his home until Heston and 

his family moved to Joaquin, Texas in late 2018, at which point Robert gave it to Heston to take 

with him.
2

Appellants filed the instant suit against Heston, his parents, and Robert. As to Robert, 

Appellants alleged that he was negligent in giving Heston the shotgun used to kill A.D.L.R.

because he knew or should have known that, due to Heston’s youth, inexperience, immaturity, 

reckless nature, complex developmental trauma, attention deficit disorder, and/or other factors, 

Heston likely would use the shotgun in a manner involving unreasonable risk of harm to himself 

or others. Appellants similarly alleged that Heston’s parents were negligent in allowing him to 

possess the shotgun.

On April 4, 2022, a representative of Robert’s insurer submitted an offer to Appellants to 

settle their causes of action against Robert for $25,000. On April 13, Appellants accepted the 

offer. Appellants signed a release, which stated, among other things, that in executing the 

release, they generally were not relying upon any statement or representation of the parties 

released. Appellants’ case against Robert was dismissed on May 23. Their case against 

Heston’s parents also was settled and dismissed. Their suit against Heston, the sole remaining 

defendant, continued.

Thereafter, Appellants assert that they received, after much delay, discovery responses 

comprising twelve pages of documents from Miracle Farm, Inc.,1 a residential boys ranch Heston 

attended between 2018 and 2019. Appellants’ counsel notified Robert’s counsel that this 

discovery proved that Robert gave false and incomplete deposition testimony and untruthful 

interrogatory answers. He further suggested in this letter that Appellants reasonably relied on 

Robert’s sworn testimony and discovery responses in making their decision to settle the case 

against him, none of the information revealed in the Miracle Farm documents was part of 

settlement negotiations, and they believed that the “boilerplate” settlement and release were 

procured by Robert’s fraud and fraudulent inducement. Appellants’ counsel further related that 

1 In multiple instances, Appellants’ brief contains no citation to the record for the factual assertions they 

make. See TEX. R. APP. P. 38.1(g). Moreover, their representations related to documents received from Miracle 

Farm, although supported by a citation to the clerk’s record, leads to identical factual statements made in their 

response to Robert’s traditional motion for summary judgment, which, in turn, are unsupported by citation to the

summary judgment record. See TEX. R. CIV. P. 166a(c); Walker v. Eubanks, 667 S.W.3d 402, 409 (Tex. App.–

Houston [1st Dist.] 2022, no pet.) (“When responding to a summary judgment motion, the nonmovant must 

expressly and specifically identify the supporting evidence on file he wants the trial court to consider”). 

Furthermore, their summary judgment response does not, as presented in the record on appeal, have any supporting 

evidence attached to it. Because there is no reference to the summary judgment record in their response, it is

reasonable for this court to conclude that the absence of such evidence in the clerk’s record is not due to an omission 

on the part of the Clerk’s Office. Cf. Lance v. Robinson, 543 S.W.3d 723, 732–733 (Tex. 2018). Failure to comply 

with Rule 38.1(g) can result in waiver of appellate issues raised. See, e.g., Shelley v. Colorado Bd. of Governors, 

No. 07-15-00410-CV, 2016 WL 3977388, at *1 (Tex. App.–Amarillo July 19, 2016, pet. denied) (mem. op.). 
3 

Appellants asked him to take “all appropriate legal actions against [Robert] and Miracle Farm, 

Inc., including recission of the settlement agreement and release and a separate lawsuit to recover 

actual and punitive damages.” 

On October 13, 2022, Robert intervened in the still-pending suit between Appellants and 

Heston and sought a declaratory judgment that the partial take-nothing judgment and release are 

binding upon Appellants, final, and serve to conclude the litigation between the parties.2

 

Thereafter, he filed a traditional motion for summary judgment, in which he argued that, because 

the summary judgment evidence demonstrated that Appellants did not rely on any

representations or concealment of information in connection with the execution of the release, 

the settlement agreement and release were not fraudulently induced and, therefore, are valid, 

enforceable, and binding on Appellants. 

 Appellants filed a motion to strike Robert’s plea in intervention and, subsequently, filed a 

response to his motion for summary judgment. In their response, they argued, in pertinent part, 

that Robert failed to authenticate the exhibits attached to his motion, his suit was not authorized 

by the Uniform Declaratory Judgment Act (UDJA), and Appellants are not bound by the waiverof-reliance provision in the release. In a reply filed the day before the hearing on his motion, 

Robert included an affidavit to authenticate the exhibits. 

Ultimately, the trial court denied Appellants’ motion to strike and granted Robert’s 

motion for summary judgment. On April 27, 2023, the trial court severed the cause between 

Appellants and Robert, from their suit against Heston. This appeal followed. 

MOTION TO STRIKE PLEA IN INTERVENTION

In their first issue, Appellants argue that the trial court abused its discretion in denying 

their motion to strike Robert’s plea in intervention. 

Standard of Review and Governing Law

Review of a trial court’s order on a motion to strike intervention is subject to an abuse of 

discretion standard. Lerma v. Forbes, 166 S.W.3d 889, 893 (Tex. App.–El Paso 2005, pet. 

2 Heston’s parents intervened seeking a declaratory judgment that the release between them and Appellants 

is binding on Appellants, is final, and concludes the litigation between the parties. The trial court granted summary 

judgment in Heston’s parents’ favor and issued a severance order as to their declaratory-judgment action. The 

opinion related to the appeal of that case to this court in Cause Number 12-23-00140-CV issued on the same day as 

the opinion in this cause.
4

denied); see Breazeale v. Casteel, 4 S.W.3d 434, 436 (Tex. App.–Austin 1999, pet. denied). A 

reviewing court cannot conclude that a trial court abused its discretion if, in the same 

circumstances, it would have ruled differently or if the trial court committed a mere error in 

judgment. Forbes, 166 S.W.3d at 893. Instead, the test is whether the trial court acted without 

reference to any guiding rules or principles; in other words, whether the act was arbitrary and 

unreasonable. Id.

“Any party may intervene by filing a pleading, subject to being stricken out by the court 

for sufficient cause on the motion of any party.” TEX. R. CIV. P. 60. Once a motion to strike has 

been filed, the burden shifts to the intervenor to show a justiciable interest in the lawsuit. In re 

Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008); Guar. Fed. Sav. Bank v. Horseshoe 

Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). A party has a justiciable interest in a lawsuit, 

and, thus, a right to intervene, when his interests will be affected by the litigation. Law Offices 

of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.–Fort Worth 2003, no 

pet.). In other words, the interest is “analogous to that essential for a party to maintain or defend 

an action.” J. Fuentes Colleyville, L.P. v. A.S., 501 S.W.3d 239, 243 (Tex. App.–Fort Worth 

2016, no pet.); McCord v. Watts, 777 S.W.2d 809, 811–12 (Tex. App.–Austin 1989, no writ); 

see Guar. Fed. Sav. Bank, 793 S.W.2d at 657 (providing that person has a right to intervene “if 

the intervenor could have brought the same action, or any part thereof, in his own name, or, if the 

action had been brought against him, he would be able to defeat recovery, or some part thereof”). 

The interest asserted by the intervenor may be legal or equitable, but it must not be merely 

contingent or remote. Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Law Offices of Windle 

Turley, P.C., 109 S.W.3d at 70. Courts review the pleadings to determine whether an intervenor 

has a justiciable interest. See McCord, 777 S.W.2d at 811. If a party cannot show a justiciable 

interest in the lawsuit, the trial court has sufficient cause to strike the plea in intervention. Law 

Offices of Windle Turley, P.C., 109 S.W.3d at 70.

Further, even if a party has a justiciable interest, and, thus, a right to intervene in a 

lawsuit, the trial court still has broad discretion to determine whether the plea in intervention 

should be stricken. See id.; Zeifman v. Michels, 229 S.W.3d 460, 465 (Tex. App.–Austin 2007, 

no pet.). However, a trial court abuses its discretion by striking a plea in intervention if the 

intervenor (1) could have brought the same action, or any part of it, in his own name or could 

have defeated recovery, or some part of it, if the action had been brought against him, (2) the 
5 

intervention would not complicate the case by excessively multiplying the issues, and (3) the 

intervention is almost essential to effectively protect the intervenor’s interest. Guar. Fed. Sav. 

Bank, 793 S.W.2d at 657. 

Discussion

 Appellants first argue that Robert’s intervention was improper because he did not have a 

justiciable interest in their wrongful death lawsuit against Heston, as he would not have been 

able to defeat all or part of the recovery against Heston if the suit had been filed only against him 

(Robert). More specifically, Appellants contend that there was no claim that Robert and Heston 

were partners, co-conspirators, or otherwise acted in concert or simultaneously to cause 

A.D.L.R.’s death. Thus, according to Appellants, Robert would be unable to defeat all or part of 

any recovery against Heston had the suit been filed against Robert alone.

 However, Appellants seek to cast the net of the trial court’s discretion too narrowly. An 

intervenor can occupy the position of a defendant where his claims and prayer align him with the 

defendant and pit him directly against the plaintiff, even if no parties assert claims against him. 

See In re Ford Motor Co., 442 S.W.3d 265, 274 (Tex. 2014). Even where an intervenor has not 

or could not have been sued directly, if a judgment for the plaintiff may lead to an action against 

the intervenor or otherwise seriously prejudice the intervenor, the intervention is necessary to 

assure a proper defense against the claim. See Jenkins v. Entergy Corp., 187 S.W.3d 785, 796 

(Tex. App.–Corpus Christi 2006, pet. denied) (citing Guar. Fed Sav. Bank, 793 S.W.2d at 657). 

The party must have such interest in the subject matter of the litigation as makes it necessary or 

proper for him to enter the case for the preservation of that right. Jenkins, 187 S.W.3d at 796. 

In the instant case, Robert was a defendant prior to the dismissal of the case against him. 

Once the case against Robert was dismissed, the focus of Appellants’ allegations was on 

Heston’s conduct alone. But even so, Robert’s interests potentially could have been affected by 

the suit against Heston had he not intervened. Indeed, were the case against Heston to proceed to 

a verdict, the court’s charge necessarily would have included a submission of Robert’s alleged 

negligence and proportionate responsibility as a “settling person.” See TEX. CIV. PRAC. & REM.

CODE ANN. § 33.003(a)(3) (West 2020) (trier of fact shall determine percentage of responsibility 

with respect to each person’s, including “settling person,” causing or contributing to cause in any 

way harm for which recovery of damages is sought); see also id. § 33.011(5) (West 2020) 

(defining “settling person” as person who has, at any time, paid or promised to pay money or 
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anything of monetary value to claimant in consideration of potential liability with respect to 

personal injury, property damage, death, or other harm for which recovery of damages is sought). 

Robert doubtlessly is a “settling person.” See id. § 33.011(5). Thus, because Appellants 

questioned the validity of the release on fraud grounds and could have sought summary judgment 

on that issue, Robert had an undeniable interest in the litigation against Heston, inasmuch as the 

fact finder’s potential finding of liability against Heston would require it to attribute a portion of 

that responsibility, if any, to Robert. See id. § 33.003(a)(3). Accordingly, since there existed the 

possibility that the release could be determined to be invalid, Robert’s potential exposure to 

liability was palpable, his interests against Appellants were aligned with Heston’s, and 

intervention almost was essential to effectively protect Robert’s interests. See In re Ford Motor 

Co., 442 S.W.3d at 274; Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Jenkins, 187 S.W.3d at 796. 

Appellants next argue that Robert’s intervention was improper because it would have 

injected new issues into the case which were completely unrelated to the principal lawsuit,

thereby mixing the wrongful death negligence issues with the settlement, breach of contract, and 

fraudulent inducement issues and causing unnecessary confusion and complicating an already 

difficult case. However, the issue of the validity of Robert’s release was disposed of by 

traditional summary judgment. Thereafter, this cause was severed from the suit against Heston, 

which Appellants describe in their brief as “ongoing.” Thus, unlike cases wherein courts may 

seek to surmise how intervention might complicate a case, the record before us requires no such 

supposition. 

 Because we conclude that Robert had an undeniable interest in the litigation against 

Heston, his interests against Appellants were aligned with Heston’s, the intervention did not 

complicate the case, and his intervention almost was essential to effectively protect his interests,

we hold that the trial court did not abuse its discretion in denying Appellants’ motion to strike 

Robert’s plea in intervention. See In re Ford Motor Co., 442 S.W.3d at 274; Guar. Fed. Sav. 

Bank, 793 S.W.2d at 657; Jenkins, 187 S.W.3d at 796. Appellants’ first issue is overruled. 

RELEASE - WAIVER-OF-RELIANCE PROVISION

In their second issue, Appellants argue that they are not bound by the settlement

agreement and release, despite its waiver-of-reliance provision, because the terms of the release 
7 

were “boilerplate,” and the parties did not discuss the issue of the current dispute during 

negotiations. 

Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no 

genuine issue of material fact and that she is entitled to judgment as a matter of law. See TEX. R.

CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant 

who conclusively negates at least one essential element of the nonmovant’s cause of action is 

entitled to summary judgment as to that cause of action. See Randall’s Food Mkts., Inc. v. 

Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a defendant who conclusively establishes

each element of an affirmative defense is entitled to summary judgment. Id. Once the movant 

establishes a right to summary judgment, the nonmovant has the burden to respond to the motion 

and present to the trial court any issues that would preclude summary judgment. See City of 

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). The only question 

is whether an issue of material fact is presented. See TEX. R. CIV. P. 166a(c). 

When reviewing summary judgments, we perform a de novo review of the entire record 

in the light most favorable to the nonmovant, indulging every reasonable inference and resolving 

any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG 

Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not 

required to ascertain the credibility of affiants or to determine the weight of evidence in the 

affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 

252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 

(Tex. App.–Tyler 2008, pet. denied). 

Further, all theories in support of or in opposition to a motion for summary judgment 

must be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court’s 

order granting summary judgment does not specify the grounds relied on for its ruling, we will 

affirm it if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 

858 S.W.2d 374, 380 (Tex. 1993). 

Governing Law

Texas law encourages parties to resolve their disputes by agreement, but settlement 

agreements—like all other contracts—are unenforceable if they are procured by fraud. Italian 

Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331 (Tex. 2011); 
8

Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997). To establish such 

fraudulent inducement, a party seeking to invalidate an agreement must prove that it reasonably 

relied on the other party’s misrepresentations to its detriment. Int’l Bus. Machs. Corp. v. Lufkin 

Indus., LLC, 573 S.W.3d 224, 228 (Tex. 2019); Italian Cowboy, 341 S.W.3d at 337 (quoting 

Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009)). Because afterthe-fact protests of misrepresentation easily are lodged, parties who mutually desire to resolve all 

disputes and buy complete and final peace often include provisions in their settlement 

agreements expressly disclaiming any reliance on each other’s representations. See Forest Oil 

Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008); see also Transcor Astra Group S.A. v. 

Petrobras Am. Inc., 650 S.W.3d 462, 473 (Tex. 2022).

The law must balance society’s interest in protecting parties against fraudulently induced

promises with its interest in enabling parties to “fully and finally resolve disputes between 

them.” Schlumberger, 959 S.W.2d at 179. To achieve this balance, we have held that 

contractual disclaimers of reliance may be enforceable and may negate a subsequent fraudulentinducement claim if the disclaimer is clear, specific, and unequivocal. See Lufkin, 573 S.W.3d 

at 229; Italian Cowboy, 341 S.W.3d at 336; Forest Oil, 268 S.W.3d at 60; Schlumberger, 959 

S.W.2d at 179. Whether a reliance disclaimer is effective in any given case “depends on the 

contract’s language and the totality of the surrounding circumstances.” Lufkin, 573 S.W.3d at 

226; Forest Oil, 268 S.W.3d at 60; Schlumberger, 959 S.W.2d at 179. Specifically, courts must 

consider whether:

(1) the terms of the contract were negotiated, rather than boilerplate, and during 

negotiations, the parties specifically discussed the issue which has become the topic of the

subsequent dispute;

(2) the complaining party was represented by counsel;

(3) the parties dealt with each other at arm’s length;

(4) the parties were knowledgeable in business matters; and

(5) the release language was clear.

Forest Oil, 268 S.W.3d at 60. In considering these factors, our ultimate purpose is to determine 

whether the contract clearly confirms that “the parties intended once and for all to resolve 
9 

specific disputes.” Italian Cowboy, 341 S.W.3d at 335; see also Forest Oil, 268 S.W.3d at 58; 

Schlumberger, 959 S.W.2d at 181. 

Discussion

In the instant case, Appellants’ challenge to the trial court’s summary judgment declaring 

Robert’s release to be valid relates only to their claim that the waiver-of-reliance provision3 is 

ineffective and unenforceable. As to that issue, they do not contend that they were not 

represented by counsel, nor do they dispute that they dealt with Robert at “arm’s length,” that 

they were not knowledgeable in business matters, or that the release language was unclear. 

Instead, they argue that Robert offered no summary judgment evidence that the terms of 

the contract were negotiated and that, during such negotiations, the parties specifically discussed 

the issue which has become the topic of the subsequent dispute. In so doing, they point to a short 

series of emails between the April 4, 2022 settlement offer and the April 13 acceptance of that 

offer. Robert responds that Appellants’ counsel referenced his supposed misrepresentations in 

an earlier email dated January 3, 2022. In that email, Appellants’ counsel stated as follows: 

I am hoping that you or your principal will reconsider this claim, after Robert Avery’s 

deposition. Many things could be said about the deposition, but two stand out. First, as Mr. 

Avery well knows from being on the board, Miracle Farm is not a place for boys that have 

problems paying attention in class. It is a residential ranch ministry for boys that “have 

experienced complex developmental trauma that profoundly impacts them, leading to 

disconnected relationships, risk‐taking behavior, poor decisions, low school performance, 

and criminal behavior.” Heston was at Miracle Farm for these reasons and others, which 

directly relate to the shooting of [A.D.L.R.]. Second, for 4 years, from 2015 to 2018, Heston’s 

parents would not let him have the gun in their Temple home, which was only 2.6 miles, not 250 

miles, from where Robert Avery lived. Clearly, they did not approve or consent to him having the 

shotgun for those 4 years, at least. Attached is Plaintiffs’ Fourth Amended Petition, which has not 

yet been filed in court. Much work needs to be done on this case. It may be better for my 

clients’ and their family, as well as the Avery family, to resolve this case now. Of course, I 

will be happy to discuss if you desire. Please let me know.

(emphasis added). Appellants’ counsel’s concluding remarks in this email undoubtedly amount 

to an overture to settlement negotiations. In the statements preceding this invitation to resolve 

the matter, Appellants’ counsel sets forth, on behalf of his clients, his supposition that Robert 

misrepresented the reasons necessitating Heston’s residency at Miracle Farm. These reasons and 

Robert’s knowledge thereof comprise the very issue which forms the basis of the parties’ 

subsequent dispute, i.e., Appellants’ allegations that Robert lied in his deposition and 

3 Specifically, the provision states, “Claimants are not relying upon any statement or representation of the 

Parties Released, or of any agent or servant of the Parties Released, but is relying upon their own judgment[.]” 
10

interrogatories about his knowledge of Heston’s mental conditions, drug and alcohol use/abuse, 

and his criminal, reckless, and irresponsible actions. See Italian Cowboy, 341 S.W.3d at 335; 

see also Forest Oil, 268 S.W.3d at 58; Schlumberger, 959 S.W.2d at 181. Appellants make no 

reference to the January 3 email in their brief, despite its being Exhibit A to Robert’s motion for 

summary judgment.

4

Appellants further argue that the relevant terms of the contract were boilerplate and not 

negotiated. We first note that after Robert’s insurer made its settlement offer to Appellants, 

Appellants’ counsel sent an email to the insurance company representative, in which he outlined 

the details of a recent phone call between the two of them in which he had explained the strength 

of his clients’ legal position. Moreover, while there is no evidence that the release significantly 

evolved through cycles of revisions and Robert does not argue that there is anything particularly 

unique about the language of the document, on its face, there appears a handwritten deletion of 

some of its language with Appellants’ respective handwritten initials next to it. We conclude 

that this markup of the release amounts to some evidence that the parties had the ability to 

change or remove some of the contractual language, and that Appellants, in this singular 

instance, did so. 

Based on the foregoing, we conclude that Appellants’ assertions that there is no summary 

judgment evidence supporting that (1) the terms of the contract were negotiated and (2) during 

such negotiations, the parties specifically discussed the current matter of dispute are unfounded. 

Having considered this evidence in the light most favorable to the nonmovant, while indulging 

every reasonable inference and resolving any doubts against the motion, we conclude that the 

trial court did not err in finding that there is no genuine issue of material fact as to these two 

elements and that Robert is entitled to judgment as a matter of law based on a valid written 

release of liability.5

 See TEX. R. CIV. P. 166a(c). Appellants’ second issue is overruled.

4 In our further discussion of Appellants’ second issue, we reference their counsel’s email to Robert’s 

insurance representative memorializing their phone conversation, in which Appellants’ counsel discussed the 

strengths of his clients’ legal position with the representative. Appellants’ counsel’s apparent decision not to 

mention to the insurance company representative his supposition that Robert made misrepresentations during his 

deposition testimony was not necessary to satisfy this element given the fact that he related this theory to Robert’s 

counsel when first inviting settlement negotiations.

5 Additionally, Appellants assert in their brief that Robert violated his legal duty to tell the truth under oath 

as well as a fiduciary duty to do so. They further point out that Robert failed to demonstrate that his answers in his 

deposition or answers to interrogatories were truthful. The documents Appellants reference generally in their brief, 

which might support their allegations that Robert made misrepresentations in his discovery responses, are not part of 
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ENTITLEMENT TO RELIEF UNDER THE UNIFORM DECLARATORY JUDGMENT ACT

In their third issue, Appellants argue that the trial court erred in granting summary 

judgment in Robert’s favor because the UDJA does not apply to potential tort claims, cannot be 

used to interpret an earlier judgment, and cannot preempt judgment on an issue to be adjudicated 

in another court. 

The purpose of the UDJA is to settle and afford relief from uncertainty and insecurity 

with respect to rights, status, and other legal relations. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 37.002(b) (West 2020). A declaratory judgment is appropriate only if a justiciable controversy 

exists, resolvable by the declaration sought, concerning the rights and status of the parties. 

Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 65–66 (Tex. App.–Houston [14th 

Dist.] 2014, pet. denied); see Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); 

Russell v. Metro. Transit Auth. of Harris Cty., 343 S.W.3d 825, 833 (Tex. App.–Houston [14th 

Dist.] 2011, no pet.). There must be a real and substantial controversy involving a genuine

conflict of tangible interests and not merely a theoretical dispute. Feldman, 436 S.W.3d at 65.

Among other instances in which a declaratory judgment would be proper, the Act

provides that an interested person under a written contract, or other writings constituting a 

contract, may seek a determination of any question of construction or validity arising under the 

instrument and may obtain a declaration of rights, status, or other legal relations thereunder. See

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2020). A contract may be construed 

either before or after a breach. See id. § 37.004(b). 

 However, as Appellants note, a potential defendant may not use a declaratory judgment 

action to determine its potential tort liability. See Stark v. Benckenstein, 156 S.W.3d 112, 117 

(Tex. App.–Beaumont 2004, pet. denied). This rule evolves from the recognition that only 

plaintiffs may sue for torts. Id.; see Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 767 

(Tex. App.–El Paso 1993, writ denied). In a contractual relationship, any party may breach the 

contract, and, thus, any party may sue for the breach and seek a judicial determination of 

contractual rights. Stark, 156 S.W.3d at 117. Since a release is a contract, a party is entitled to 

request a determination of questions of construction or validity arising under the instrument and 

the record on appeal. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.–Dallas 2005, pet. 

denied) (appellate court cannot consider documents not formally included in record on appeal).
12

to obtain a declaration of rights, status, or other legal relations thereunder. See TEX. CIV. PRAC.

& REM. CODE ANN. § 37.004(a); Stark, 156 S.W.3d at 117 (citing Swanson, 959 S.W.2d at 178); 

see also Bennett v. Zucker, No. 05-20-00488-CV, 2021 WL 3701374, at *4 (Tex. App.–Dallas 

Aug. 20, 2021, pet. denied) (mem. op.); Hartman, 863 S.W.2d at 767.

In the instant case, Robert sought a declaration that the settlement agreement and release 

between him and Appellants is valid, enforceable, and binding upon the parties.6 As 

demonstrated by his pleadings and his motion for summary judgment, Robert did not seek a

potential tort liability determination. See, e.g., Stark, 156 S.W.3d at 117. Instead, Robert sought 

a judicial determination of his rights under a contract. See id.; Crossley v. Staley, 988 S.W.2d 

791, 797 (Tex. App.–Amarillo 1999, orig. proceeding).

Appellants further argue that the UDJA cannot preempt judgment on an issue to be 

adjudicated in another court. Specifically, Appellants argue that despite the fact that Robert’s 

plea in intervention by which he sought declaratory judgment was filed before they filed their 

fraud action against him in Washington County on November 22, 2022, the matter should be 

adjudicated in Washington County because Robert’s declaratory judgment action “did not legally 

exist until April 27, 2023, when it was severed from Appellants’ original lawsuit.” We disagree. 

The very caselaw on which Appellants rely contradicts their argument. “As a general rule, an 

action for declaratory judgment will not be entertained if there is pending, at the time it is filed, 

another action or proceeding between the same parties and in which may be adjudicated the 

issues involved in the declaratory action.” Tex. Liquor Control Bd. v. Canyon Creek Land 

Corp., 456 S.W.2d 891, 895 (Tex. 1970) (emphasis added). Because Robert’s declaratory 

judgment action was filed by way of intervention on October 13, 2022, more than one month 

before Appellants filed suit in Washington County, we conclude that the Washington County suit 

does not preempt Robert’s preexisting declaratory judgment action. 

6 This is the relief Robert requested in his motion for summary judgment, which the trial court granted, and 

which was narrower than the relief Robert set forth in his pleadings. There, Robert requested that the trial court 

construe the settlement and release instrument and render a declaratory judgment that the partial take-nothing 

judgment and release are binding upon Plaintiffs, and are final, and conclude the litigation between the parties once 

and for all. We limit our discussion to the trial court’s ability to render the declaratory relief raised in Robert’s 

motion for summary judgment. See Muston v. Nueces Cty. Sheriff’s Dept., 122 S.W.3d 469, 471 (Tex. App.–

Corpus Christi 2003, no pet.) (trial court cannot grant more relief than was requested by motion for summary 

judgment). As such, we do not address Appellants’ argument that the UDJA cannot be used to interpret an earlier 

judgment since the trial court’s summary judgment related only to the settlement and release. See id.
13 

Based on the foregoing, we hold that Robert was entitled to pursue relief under the UDJA 

to seek a declaration as to the construction and validity of the settlement agreement and release 

between him and Appellants and that his declaratory judgment action was not preempted by 

Appellants’ suit in Washington County. Appellants’ third issue is overruled. 

ROBERT’S SUMMARY JUDGMENT EVIDENCE

In their fourth issue, Appellants argue that the trial court abused its discretion by 

accepting and considering Robert’s summary judgment evidence because none of it was 

authenticated until the day before the hearing on his motion. 

The same evidentiary standards which apply in trials also control the admissibility of 

evidence in summary-judgment proceedings. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163 

(Tex. 2018); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). But the rules of 

error preservation also apply. Seim, 551 S.W.3d at 164; see Mansions in the Forest, L.P. v. 

Montgomery Cty., 365 S.W.3d 314, 317–18 (Tex. 2012). To preserve a complaint for appellate 

review, a party must (1) complain to the trial court by way of “a timely request, objection, or 

motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion.” 

Seim, 551 S.W.3d at 164; see TEX. R. APP. P. 33.1(a). And if purported summary-judgment 

evidence presents a defect in “form,” that defect cannot provide grounds for reversal unless 

specifically pointed out by objection by an opposing party, and where the offending party had an 

opportunity to correct the objectionable matter but refused to do so. See TEX. R. CIV. P. 166a(f).

An objection to the authentication of summary judgment evidence is an objection to the 

form rather than the substance of the evidence. See Commint Tech. Servs., Inc. v. Quickel, 314 

S.W.3d 646, 651 (Tex. App.–Houston [14th Dist.] 2010, no pet.). Since Appellants’ lack-ofauthentication objection was to the form of the evidence, they were required not only to object 

but also to obtain a ruling on their objection. Seim, 551 S.W.3d at 164. Here, Appellants never 

secured a ruling on their lack-of-authentication objection they now seek to raise on appeal. 

Accordingly, we hold that Appellants’ objections were not preserved for review. See TEX. R.

APP. P. 33.1(a); Quickel, 314 S.W.3d at 651. Moreover, when Appellants raised the objection to 

the form of the summary judgment evidence, Robert’s counsel addressed the objection in his 

reply, which included an affidavit to authenticate the summary judgment proof. Because Robert 

corrected the authentication issue Appellants raised, we hold that these form defects do not 
14 

constitute grounds for reversal. See TEX. R. CIV. P. 166a(f). Appellants’ fourth issue is 

overruled. 

DISPOSITION

Having overruled Appellants’ first, second, third, and fourth issues, we affirm the trial 

court’s judgment. 

JAMES T. WORTHEN

Chief Justice

Opinion delivered October 31, 2023. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT 

OCTOBER 31, 2023 

NO. 12-23-00112-CV

REBECCA DE LA ROSA AND CESAR DE LA ROSA, 

Appellants 

V.

HESTON HAYES AVERY AND ROBERT D. AVERY, 

Appellees 

Appeal from the 273rd District Court 

of Shelby County, Texas (Tr.Ct.No. 20CV35415A) 

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment. 

It is therefore ORDERED, ADJUDGED, and DECREED that the

judgment of the court below be in all things affirmed, that all cost of this appeal are assessed 

against Appellants, REBECCA DE LA ROSA AND CESAR DE LA ROSA, and that this 

decision be certified to the court below for observance. 

James T. Worthen, Chief Justice. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.