## NO. 12

- 23

- 00112 -CV

I N THE COUR T OF APPEALS

TW ELFTH COURT OF APPEALS DISTRICT

TY LER, TEXAS

REBECCA DE LA ROSA AND CESAR DE LA ROSA , APPELLANT S

V.

H

ESTON HAYES AVERY AND R OBERT D. AVERY , APPELLEE S §

§

§ APPEAL FROM THE 273RD

J

UDICIAL DISTRICT COURT

S

HELBY COUNTY, TEXAS

MEM O

RANDUM OPINION
Rebecca De L a 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 fa v or. Appellants raise four issues on appeal. We a ffirm.

B ACKGROUND O n 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 th e shotgun was l oaded 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 liv i ng in Temple, T exas . Because Heston ’ s parents would not allow him to keep the shot gun 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 hi m.2 Appel lants filed the instant suit against Heston, his parents , and Robert. As to Robert, Appellants alleged that he was negligent in giv ing Hest on the shotgun used to kill A.D.L.R. because he knew or should have known that, due to Heston ’ s yout h , inex perience, immaturity, reckless nature, complex developmental trauma, attention deficit disorder, and/or other factors , Heston likely would us e the shotgun in a manner involving unreasonable risk of harm to himself or others. Appellants similarly al l eged t hat Hesto n ’ 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, Appellant s accep ted the

o ffer. 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 dismisse d on Ma y 23

. T heir case against Heston ’ s parents also was settled and dismissed. Their suit against Heston , the sole remaining defendant, continue d. Thereafter, Appellants assert that they received , after much delay, discovery responses comprising tw e lve pages of do cuments 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 untru t hful inte rrogat ory 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 docu ments was part of settlement negotiations, and they believed that the “boilerplate” settlement and re lease were procured by Robert ’ s fraud an d 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 T EX

. R

. A P P

. P. 38.1(g). Moreover, t heir representations related to d o cuments receiv ed from Miracle Farm , alth ough supported by a citation to the clerk’s record, leads to identical factual statement s made in their response to Robert ’ s traditional motion for su m mary judgment, which , in turn , are unsupported by citation to t h e summary judgm ent record. See T EX

. R. C IV

. P. 166a(c); Walker v. Eubanks , 667 S.W.3d 402, 409 (Tex. App.

– Houston [1st Dist.] 20 22, no pet.) (“When responding to a summary judgment motion, t h e no nmovant must expressly and specifically identify the suppor t i ng evidence on file he wants the tri al c ourt to consider”). Furthermore, their summary judgment response does not, as presented in the record on appeal, have any supporting evidence attache d to it. Because there is no reference to the summary judgment r e cord in their response, it is
reason able for this court to conclude that the absence of such evidence in the clerk’s record is n ot due to an omission on the part of the Clerk’s Office. Cf. L ance v. Robinson , 543 S.W.3d 723, 732

– 733 (Tex. 2018). Failure t o comply with Rule 38.1(g) can resul t 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 J u ly 1 9, 2016, pet. denied) (mem. op.).3 Appellants asked him to take “ all ap p ropriate le gal actions against [ Robert ] and Miracle Farm, Inc. , including recission of the settlement agreemen t and release and a separate lawsuit to recover actual and punitive damages.” On October 13, 2022, Robert intervened in the still

- pending suit b e tween Appel lant s and Heston and sought a declaratory judgment that the partial take

- nothing judgment and relea se are binding upon Appellants , final , and serve to conclude the litigation between the parties. 2 Thereafter, he file d a traditional motion for s u mmary judg m ent , 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 rele a se were n o t fra udulently induced and, therefore, are valid, enforceable, and binding on Appellants. A ppellants filed a motion to strike Robert ’ s plea in intervention and, subsequently, filed a response to his motion for summary judgment. In their resp o nse, they argued, in pertinent part, that Robert failed to authenticate the exhibits attached to his mot ion , his suit was not authorized by the Uniform Declaratory Judgment Act (U DJA) , and Appellants are not bound by the waiver

of- reliance provision in th e release

. In a reply filed the day before the hearing on his motion, Robert included an affidavit to authe nticate the exhibits. Ultimately, the tr ial court denied Appellants ’ motion to strike and granted Robert ’ s motion for summary judgment. On April 27 , 2023, the tria l court severed the cause between Appellants and Robert, from their suit against Heston. This appeal followed.

M OTION TO S TRIKE P L EA IN I NTERVENTION In their first issue, Appellants argue that the trial court abused its discretion in den ying th e ir motio n 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. A pp.– El P aso 2005, pet.

2 Heston’s parents in tervened seeki ng a declaratory judgm ent that the release between them and Appellants is binding on Appellants, is final, and concludes the litigation between the parties. The trial court gr a nted summary judgment in Heston’s parents’ favor and issued a sev erance order a s to their declaratory

- jud gment 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 th is ca use.4 denied); s ee 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 i f the t rial cou rt committed a mere error in judgment. Forbes , 166 S.W.3d at 893. Instead, the test is whether the trial court acted without refer ence to any guiding rules or principles; in other words, whether the act was arbitrary and unreasonable. Id
. “An y party m ay intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.” T EX

. R. C IV

. P. 60. Once a motion to strike has been filed, the burden shifts to the intervenor to show a just i ciable 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 interven e , when his inte rests will be affected by the litigation. Law Offices of Windle Turley, P.C. v. Ghiasinejad , 109 S.W.3d 68, 70 (Tex. App.

– Fort Wort h 2003, no pet.)

. In other words, the interest is “analogous to that essential for a party to maintain or d e fend

a n action. ” J. Fuentes Colleyville, L.P. v. A.S. , 50 1 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 h as a r i ght to i ntervene “if the intervenor could have brou ght the same action, or any part thereof, in his own name, or, if the action had been bro ught against him, he would be able to defeat recovery, or some part thereof”). The interest asserted by the interv e nor may be legal or equitable, but it must not be m erely contingent or remote. Guar. Fed. Sav. Bank , 793 S.W.2d at 657; Law Offices of Wind le Turley, P.C. , 109 S.W.3d at 70. Courts review the pleadings to determine whether an intervenor has a jus t iciabl e interes t. See McCord , 777 S.W.2d at 811. If a pa rty cannot show a justiciable interest in the lawsuit, the trial court has sufficient cau se to strike the plea in intervention. Law Offices of Windle Turley, P.C. , 109 S.W.3d at 70. Further, even if a p a rty has a justiciable interest, and , thus , a right to intervene in a lawsuit, the trial court still has broad discretion to determine whethe r the plea in intervention should be str icken

. See i d. ; Zeifman v. Michels , 229 S.W.3d 460, 465 (Tex. App.

–A ustin 2 007,

no pet.). However, a trial court abu ses 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) the5 inte rvention would not complicate the case by excessively multiplying the issues, and (3) the interven tion is almost essential to effectively protect the intervenor ’ s interest. Guar. Fed. Sav. Bank , 793 S.W.2d at 657. Discuss ion Appellants first argue that R obert’ s intervention was improper because he did not have a justiciable interest in their wrongful death lawsuit against Heston , as h e would not have been able to defeat all or part of the recovery agai n st Hes t on if the suit had been filed only against him (Robert). More specifically, Appellants contend that there was no claim that Robert and Hest on

w ere partners, co

- conspirators, or otherwise acted in concert or simultaneously to cause A.D.L.R.’ s death . Thus, accordi ng 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 i nterven o r can o ccupy the position of a defendant where his claims and prayer align him with the defendant and pit him directly against the plaintiff, even if n o parties assert claims against him

. See In re Ford Motor Co. , 442 S.W.3d 265, 274 (Tex. 2014). Even w h ere an interven or has not

or could not have been sued directly, if a judgment for the plaintiff may lead to an action against the intervenor or oth erwi se seriously prejudice the intervenor, the intervention is necessary to assure a proper defense against t he cla i m. See Jenkins v. Entergy Corp. , 187 S.W.3d 785, 796 (Tex. App.

– Corpus Chr i sti 2006, pet. denied) (citing Guar
. Fed Sav. Bank , 793 S.W.2d at 65 7). The party must have such interest in the subject matter of the litigation as makes it necessary or
p roper f or him t o enter the case for the preservation of that right. Jenkins , 187 S.W.3d at 796. In the instant case , Robert was a defendant p rior to the dismissal of the case against him

. O nce the case against R o bert was dismis sed, the focus of Appellants’ allegations w as on Heston ’ s conduct alone

. But even so, Robert’ s interest s potentially could have be en affected by the suit against Heston ha d he not intervened. Indeed, were the case against Heston to proceed to a verdict, the court’ s charge necessari ly would have included a submission of Robert ’ s alleged negligence and proportionate responsibility as a “ settling person.” See T EX

. C IV

. P R AC

. & R EM

. C ODE A NN

. § 33.003(a)(3) (West 2020) (trier of fact shall deter m ine percentage of responsibility with re s pect to each person ’s , including “settling person,” causing or contributing to cause in any way harm for which recovery of damages is sought ) ; see a lso id. § 33.0 11(5) (Wes t 2020) ( defining “settling person” as per s on who has, at any time, paid or promise d to pay money or6 anything of monetary value to claimant in consideration of potential liability with respect to personal injury, property da mag e, death, or other harm for which recovery of damages is sought). Ro b ert doubtlessly is a “settling person.” S ee 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 , Rob ert had an undeniable interest in the litigation agai n st Heston , inas much as the fact finder ’ s po tential 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 re l ease could be determined to be invalid, R ob ert ’ s potential expos ure to liability was palpable , his interests against Appellants were aligned with Heston ’ s, and intervention almost was ess ential to effectively protect Robert’s interest s
. See In re Ford Mot o r 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 inj ect ed ne w issues into the case which were completely unrelated t o the pr i ncipal lawsuit, thereby mixing the wrong fu l death negligence issues with the settlement, breach of contract, and fraudulent inducement issues and causing unnecessary confusion and com pli catin g an already difficult case. However, the issue of the validity of Robert’ s release was disposed of by
t ra ditional summary judgment . Thereafter, this cause was severed from the suit against Heston , which Appellants describe in their brief as “ong oing. ” Thus, u nlike cases where in courts may seek to surmise how interv ention might com plicate a case , the recor d before us requires no such supposition. B ecause we conclude t hat Robert had an undeniable interest in the litigation against Heston, his i nte rests against Appellants were aligned with Heston ’ s, the intervention did not complic ate the case , and his int er vention almost wa s essential to effectively protect his interest s, we hold that the trial court did not abuse its discretion in denying Appel lan ts ’ m otion to strike Robert’ s plea in intervention. See In re Ford M o tor Co. , 442 S.W.3d at 274; Guar. Fed. S av . Bank , 793 S.W.2d at 657 ; Jenkins , 187 S.W.3d at 796. Appellants’ first issue is overruled.

R ELEASE - W AIVER - OF -R ELIANCE P ROVISION In th eir seco nd issue, Appellants argue that they are not bound by the settlement agreement and r elease , despite its waive r- of

- reliance provisi on, becaus e the terms of the release7 were “boilerplate,” and the parties did not discuss the issue of the current dispute during negotiations. Standard of Review The movant for traditional summa r y judgment has the burden of showing tha t there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. See T EX

. R. C IV

. P. 166a(c); Nixon v. M r

. Pr op. Mgmt. Co. , 690 S.W.2d 546, 548 (Tex. 1985). A defendant who con c lusively negate s at least one essential el ement 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 conclusiv ely establishes each element of an affir ma tive defense is entitled to summary judgment. Id. Once the movant establishes a right to summary judgment, the nonmovant has the burden to resp ond to the motion and present to the trial court any issues that wou l d preclude summary judgment. See City o f 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

. Se e T EX

. R. C IV

. P. 166a(c). When reviewing summary judgments, we p erform a de nov o review of the entire re co rd in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Suda n v. Sudan , 199 S.W.3d 291, 292 (Tex. 200 6); 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, depos i tion s, exhibits, and other summary judgment proof. See Gulbenkian v. Pe nn , 252 S.W.2d 929, 932 (Tex. 1952); Pale st ine 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 opposi tion to a motion for summary judgment

mus t be presented in writing to the trial court. S ee T EX

. R. C IV

. 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 th e the ories advanced are meritorious. Sta te Farm Fire & Cas. Co. v. S.S. , 858 S.W.2d 374, 380 (Tex. 1993). Gover ni ng Law Texas law encourages parties to resolve their disputes by agreement, but settlement agreements

— like all other contracts

— are unenforc e able if they are procured by fraud. Italian Cowboy Partners, Ltd. v. Pr u dential Ins. Co. of Am. , 341 S.W.3d 323 , 3 31 (Tex. 2011);8 Schlumberger Tech. Corp. v. Swanson , 959 S.W.2d 171, 178 (Tex. 1997). To establish such fraudulent inducement, a party seek i ng t o invalidate an agreement must prove that it reasonably relied on th e other party ’ s misrepresentations to its d etriment. 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 Aquapl e

x, I nc. v. Rancho La Valencia , Inc. , 297 S.W.3d 768, 774 (Tex. 2009)). B ecause a fter

th e - fact protests of misrep re sentation easily are lodged, parties who mutually desire to resolve all disputes and buy complete and final peace often include provisions i n the ir settlement agreements expressly disclaiming any reliance on each o ther ’ s represen tations. See Forest Oil Co rp. 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)

. T h e la w must balance society ’ s interest in protecting parties against frau d ulently induced promises with its intere st in enabling parties to “fully and finally resolve disputes between them.” Schlumberger , 959 S.W.2d at 179. To achieve this balance, we ha v e he ld that contractual discla imers of reliance may be enforceable and m a y negate a subse quent fraudulent

inducem en t 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 d isclaimer is eff ective 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 a t 60; Schlumberger , 959 S.W.2d at 179. Specifically, courts must consider w hether:

(1) th e terms of the contract we re negotiated, rather than boilerplate, and during negotiations , the parties specifically discussed the issue which has become the topic of t he
s ubsequent dispute; (2) the complaining party was represented by co u nsel; (3) the parties dealt with each ot her at arm ’ s length; (4) the parties were knowledgeable in bus iness 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 det e rmine whether th e contract clearly confi rm s that “the parties intended once and for all to resolve9 specific disputes.” Italian Cowboy , 341 S.W.3d at 335; see also Forest Oil , 268 S. W.3d at 58; S chlumberger , 959 S.W.2d at 181. Discussion In the instant c a se, Appellants ’ challenge to the trial c ou rt’s summary judgment declaring Robert’s release to be valid relates only to their claim that the waiver -of- reliance provision 3 is ineffect ive an d 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 lengt h ,” that they were not knowledgeable in business matters, or that the relea se language w a s unc lear. Instead, the y argue that Robert offered no summary judgment evidence that the terms of the contract were negotiated and that , du ring such negotiations, t h e parties specifically discussed the issue which has become the topic of the subsequent dispu te . 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 th a t Appellants ’ counsel referenced his supposed misrepresentatio n s in an earlier email da t ed Ja nuary 3, 2022. In th at email, Appellants ’ counsel stated as follows:

I am hoping that you or your principal will reconsider this claim, after Robert Avery’s de p osition. Many things could be sai d about the depos ition, but two stand out. First, as Mr. A very well knows from be ing on the board, Mi racle Farm is not a place for boys that have problems paying attention in class. It is a residential ranch ministry fo r boys that “have experienced compl e x developmental trauma that profoundly impacts them, leadi ng to disconnected re la tionships, risk‐taki ng behavior, poor decisions, low school performance, and criminal behavior.” Heston was at Miracle Farm for these reasons and others , which directly rela t e to the shootin g of [A.D.L.R.] . Second, for 4 years, from 2015 to 2018, Hesto n’ s pa rents 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 conse n t to him having the shotgun for those 4 years, at least. Attached is Plaintiff s’ Fou rth 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 A very family, to resolve this case now. Of course, I will be happy to discuss i f 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 t he statements preceding this invitation to resolve the matter , Appellant s’ coun se l sets forth , on behalf of his clients , his supposition that Robert misrepresented the reasons necessitating Heston’s residency at Miracle Farm

. Th ese reasons and Robert’s kn owledge thereof comprise the very issue which forms the basis of the parti es’ sub sequent dispute, i.e., Appellants’ allegations that Robert lied in his deposition and

3 Specifically, t he provision state s, “ Clai mants are not relying upon any statement or representation of the Parties R eleased, or of any age nt o r servant of the Parties Released, but is relying upo n their own judgment [.]”10 interrogatories about his knowledge of Heston’s mental conditions, drug and alcohol use/ a buse, and his cr iminal, reckless, and irresponsible actions

. See Italian Cowbo y , 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 b e ing Exhibit A to Robert’s motion for summary judgment

. 4 Appellants further ar gu e 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’ c ounsel sent a n e mail to the insurance company representative , in which he outl in ed 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 eviden ce that the release sign ificantly evolved through cycles of revisions and Robert does no t argue that there is anything particularly unique abou t the language of the document , on its face , there appears a handwritten deletion of

some of its language with Appellant s ’ respective han dwritten initials next to it. We conclude that t his markup of t he release amounts to some evidence that the parties ha d the ability to change or remove some of the contractual language , and that Appellants, in this singular instance, did s o
. Based on t he foregoing, we conclude that Appellants’ assertions that the re is no summary judgment evidence supporting that (1) the terms of the contract were negotiated and (2) du ring such negotiations, the parties specifical ly discussed the current matter of disput e are un founded. Having considered this evidence in the light m ost favorable to the nonmovant, while indulging every reasonable inference and resolving any doubts against the motion , we conclude that the trial cour t did not err in finding that there is no genuine issue of material fact as to these two elements and t ha t Robert is entitled to judgment as a matter of law based on a valid written release of liability. 5 See T EX

. R. C IV

. P. 166a(c)

. Appellants’ second issue is overruled.

4 In our f urthe r di scu ss ion of Appellant s ’ second issue, we reference t heir counsel ’ s email to Robert ’ s insurance representative memorializing their p hone conversation, in whic h Appellants ’ counsel discussed the strengths of his clients ’ legal positio n with the represent ativ e. A ppellants ’ counsel ’ s apparen t decision not to
m en ti on to the insurance company representative his supposition that Robert made misrepresentations du ring his deposition testimony was not necessary to satisfy this element gi ven the fact that he rela ted this theory to Robert ’ s counsel when first inviting sett lement n eg oti ati ons
.

5 Additionally, Appellants assert in their brief th at Robert violated his leg al duty to tell the truth under oath as well as a fiduciary duty to do so. They further point out t hat Robert failed to demonstrate that his answ ers i n hi s depositio n or answers to interrogatories were truthful . The documents Ap pellants reference g ener ally in their brief , which might support their allegations that Robert made misrepresentations in his disc overy responses , are not part of11 E NT I TLEMENT TO R ELIE F UNDER THE U NIFORM D ECLARATORY J UDGMENT A CT In their third i ss ue, 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 inte r pret an earlier judgment , and cannot preempt judgment on an issue to be adjudi cated 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 T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 37.002(b) (West 2020 ). A declaratory judgmen t 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. deni ed ) ; 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, n o 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 c onstituting a contract, may seek a deter mination of any question of construction or validity arising under the instrument and may obtain a declaration of rights, status, or ot h er legal relatio ns thereunder. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 37.004( a) ( West 2020 ). A contract may be construe d 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 t o determine its potential tort liability. See Stark v. Benck en stein , 156 S.W.3d 112, 117 (Tex. App.

– Beaumont 2004, pet. denied ). T his rule evolves from the recognition that only plaintif fs may sue for torts. Id. ; s ee Hartman v. Sir g o Operating, Inc. , 863 S.W.2d 764, 767 (Tex. App.– El Paso 1993, writ denied). I n 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 , 1 5 6 S.W.3d at 117. Since a release is a contract, a party is entitled to
reques t a de termination of questions of construction or validity arising under the instrument and

the record on appe al. See Bu rke v. Ins. Auto Auctions Corp. , 169 S.W.3d 771, 775 (Tex. App.

– Dallas 2005, pet. de nied ) (a ppella te 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 T EX

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. P RAC

. & R EM

. C ODE A NN

. § 37.004(a); Stark , 156 S.W.3d at 117 (citing Sw anso n , 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 i nstant case, Robert sought a declaration that the settlement ag reem ent and release between him and Appellants is valid, enforceabl e, and binding upon the parties

. 6 As demonstrated by his pleadings and his motion for summary judgment , Rob e rt did not seek a potential tort liability determination. See, e.g. , Stark , 1 56 S.W .3d at 117. Instead, Robert sought a judicial determination of his rights under a contract. See i d. ; Crossley v. Staley , 988 S.W.2d 791, 797 (Tex. App.

–Amarillo 1999, or i g. proceeding)

. A ppellants further argue that the UDJA cannot preempt judgmen t on a n 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 judgmen t was filed before they filed their f raud action against him in Washington Coun ty 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 w as severed from Ap pellants’ original lawsuit.” We disagree. The very caselaw o n wh ich 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 file d , another action o r proceeding betwe en the same parties and in which may be ad ju dica ted the issues involved in the declaratory action.” Tex. Liquor C ontrol Bd. v. Canyon Creek Land Corp. , 456 S.W.2d 891, 895 (Tex. 1970) (emphasis added). Because Robert’ s declaratory judgm ent action was filed by way of intervention on October 13, 2 02 2 , m ore than one month before Appellants filed suit in Washington County, we conclude that th e Washington County suit does not preempt Robert’s preexisting declaratory judgmen t action.

6 Thi s is t h e re lief Robert requested in his motion for summary jud gment, w h ic h the trial court granted, and which was narrower tha n the relie f Robert set forth i n hi s pleadings . There, Robert requested t hat the trial court construe the settle ment and release instrum ent and render a declarat ory judgment that the part ial take

- not h in g judgment and release are binding upon Plaintiffs, and are fina l, and conclude the liti gation between the parties once and for all . W e limit our discussion to the trial court’s abil ity to rend er the declaratory relief raised in Robert’s
mo tion for sum m ary judgment

. See Muston v. Nueces Cty. Sheriff’s Dept. , 122 S.W. 3d 469, 471 (Tex. Ap p.

– C orpus Christi 2003, no pet.) ( trial cou rt cannot grant more relief than w as requested by motion for su mmar y judgment )

. As such, we do not address Appell ants ’ argume n t that the UDJA cannot be used to interpret an earlier judgment si nce the trial court’ s su mmary judgment related only to the settlement and release. See id.13 Based o n the foregoing, we hold that Robert was entitled to pursue re lief 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 a c tion was not preempted by Ap pellants’ suit in Washington County. Appellant s’ t hird issue is overruled.

R OBERT ’ S S UMMARY J UDGMENT E VIDENCE In their fourth issue, Appellants argue that the trial court abused its discretion by accepting and considering Ro b ert’s summary judg ment evide nce because none of it was authenticated unti l 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. Lloy ds , 551 S.W.3d 161, 163 (Tex. 2018); United Blood Servs
. v. L ongoria , 938 S.W.2d 29, 30 (Tex. 1997). But the rules of error preservation also apply. Seim , 551 S.W.3d at 164; s ee Mansions in the Forest, L.P. v. Montgomery Cty. , 365 S.W. 3 d 314, 317

– 18 (Tex. 2012). To preserve a complaint for appellate review, a par ty 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 mot ion.” Seim , 551 S.W.3d at 164; see T EX

. R. A PP

. P. 33.1(a). And if purpo rt ed s ummary -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 whe r e the offending party ha d an opportunity to correct the objectionable mat te r bu t refus ed to do so. See T EX

. R. C IV

. P. 166a(f). An objection to the authentication of summary judgment evidence is an objection to the form rather than the substanc e of the evidence. See Commi nt Tech. Servs
. , Inc. v. Quickel , 314 S.W.3d 646, 651 (T ex. App.– Houston [14th Dist.] 2010, no pet.). Since Appellants’ lack

- of

authentication objection was to the form of the evidence, they were required not only to object but also to obtain a ruling on the ir objection. Seim , 551 S.W.3d at 164. Here, Appe ll ants never secured a ruling on the ir lack

- of -authentication objection they now seek to raise on appeal. Accordingly, we hold that Appellants’ objections were not preserved for rev i ew

. See T EX

. R. A PP

. P . 33.1(a); Quickel , 314 S.W.3d at 651. Moreover, wh en A ppellants 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 authenticat e the summary judgment proof. Bec ause Robert corrected the authentication i ss ue A ppellants raised , we hold that these form defects do not14 constitute ground s for reversal. See T EX

. R. C IV

. P. 166 a(f)

. Appellants’ fourth issue is overruled.

D ISPOSITION Having overruled Appellants’ firs t , second, third, and fourth issues, we aff ir

m th e trial court’s judgment. J AMES T. W ORTHEN Chief Justice Opinion delivered October 31, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

## COUR T OF A PPEALS

TW ELFTH CO URT OF A PPEALS DISTRICT OF TEXAS

J UDGMENT

O CTOBER 31, 2023

NO
. 12-23-00112- CV

RE BECCA DE LA ROSA AND CESAR DE LA ROSA , Appellants V. HESTON HAYES AVERY AND ROBERT D. AVERY , Appellee s
Appeal from the 273rd D istrict 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 theref o re ORDERED, ADJUDGED , an d DECREED that the judgm ent of the court below be in all things affirmed , that all cost of this a ppeal a re assessed against Appe llants, REBEC CA DE LA ROSA AND CESAR DE LA ROSA , and that this decision be certif ied to the court below for observance.

J ames T. Worthen , Chief Justic e. Pa nel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.