Affirmed and Majo rity and Dissenting Opinion s filed No vember 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

- T HROUGH CERTIFICATES, SERIES 2006

- HE3 ; DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006

- HE3 ; AND SPE CIALIZED LOAN SERVICING, LLC , Appellee s

On Appeal from the 127th District Court

Ha rris County, Texas Trial Court Cause No. 2018

- 06668

M A J O R I T Y O P I N I O N
Can a party ask a trial court to render jud g m ent , yet nonethe less reserve the right to appeal a port i o n of th at judgment, in effect asking the appellate court to
determine an issue that was not contested at trial ? Put another way, may a party ask
the trial court for a particular ruling
, and then appeal that very ruling to this court?2

Because appellate court s do not reverse unless the trial court erred, we ans w er ,

“ No. ”

In t h ree issues, appellant DHI Holdings, LP, attempts to appeal a final summary judgment

. We conclude DHI has waived any error and affirm

. I. B ACKGROUND

DH I filed suit t o prevent foreclosure on real property b y the app ellees: (1) the Deutsche parties that own an d hold the deed o f trust on the property a nd (2) the mortgage servi cer for the Deutsche parties

. 1 DHI obtained a temporary restraining order enjoining a forecl osu r e sale and moved f or partial summary judgment ar guing that the deed of trust lien was void be c ause appellees had not
foreclosed on the property within the four

- year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.035(a)

. The parties dispu ted the effect on limitations
of appellees ’ attempted accel eration of the note , an d appellees moved for a traditional summary judgment that they abandoned or waived acceleration
, restarting the limitations period

. All parties signed and filed a Texas R ule of Civil Procedure 11 agreement

pro vid ing , in part :

Dear Judge Sandhill: Jeffrey Jackson, a t torney for Plaintiff, DHI, and Jennifer M cCammon, an attorney for Defendants, Deutsche Bank and Specialized Loan Servicing, submit this stipulation and agreement on the Motions for Summary Judgment heard in the ab ove

- styled case. On April 2 5 , 2019 , the C o urt heard cross motions for summary

1 The a ppellee Deut sche pa rties are ( 1) Deutsche Bank National Trus t Compan y , as Tr ustee for Morgan Stanley ABS Capital I Inc

. T rust 2006

– HE 3
, Mo rtgage Pass

- Through C ertifica tes , Series 2006

- HE 3 and (2) Deutsch e Bank Nati onal Tru st Company
, as Trustee for Morgan Stanley ABS Capital I Inc

. Tru st 2006

- HE 3

. The appellee mort gage ser vi cer is Specialized Loan Ser vicing, LLC

.3

judg m en t in the above

- styled case. After some discussion, the Court asked the parties to discuss whether they preferred a 1

- 2 day trial on the issue of waiver of acceleration or if the parties wanted to agree to enter s u mmary judgment in favor of Deutsche Bank and Specialized Loan Servicing

so that the issue could be considered de novo on appeal. The parties have discussed the op tions with our client s and the parties agree as follows: 1

. DHI will [dismiss] without prejud i ce WMC Mortgage Corp. and Mortgage Elect r onic Registration Services, Inc.; 2. DHI will [dismiss] without prejudice all claims other than its limit ations defense t o foreclos ure against Deutsche Bank and Specialized Loan Servicing ; 3. A final summary judgme n t is to be entered in favor of D eutsche B ank and Specialized Loan Servicing on the cross motions for summary judgment in a form agreed to by the parties that is c onsistent w i th this Rule 11 A greement ; 4. By entering into this stipulation and agreement , DH I does not waive any right to app eal the j udgment or the right to make any argument any argument on appeal that the trial court erred in g ranting summary judgment to Deutsche Bank and Specialized Loan Servicing

. See Tex. R. C iv. P. 11. T he parties then f i l e d a joint motion for an agreed judgment : On April 25, 2019, the Court heard cross motions for summary judgment. After some discussion, the Court asked the partie s to discuss whether the parties preferred a 1

- 2 day trial on the issue of waiver of accelerat i on or if the parties wanted to agree to e nter summary judgment in favor of Deutsche Bank and Specialized Loan Servicing so that the issue could be considered de n ovo on appeal. The parties have reached an agreement filed contemporaneously herewith that c alls for entry of an agreed final judgme n t in favor of Defendants on the cross motions.

. . . .4 T he Parties agree that the Court should enter the proposed agre e d summary judgment file d with this motion.

T he t rial court signed the “ AGREED FINAL JUDGMENT
, ” which states in part :
After considerin g the plea dings, motion s, respon ses a nd repl ies, evidence on file, and arguments of counsel, the Court grants Deutsche Ban k a nd [Specialized Loan Servicing’s ] motion and denies DHI ’ s motio n. The trial court finds th e followin g:

. . . . 2. DHI has preserved its right t o challen ge t his judgment on appeal. Therefore
, by agreem ent of the Parties
, the Court orders that DHI take nothing by its suit against De utsche Bank a nd [ Specialized Loan Servicing ]

.

. . . . The C our t further orders that all o f DHI ’ s claims agains t Deutsche Bank and [ Specialized Loan Servicing ] other than claims on the statute of limitations to foreclose ar e di smissed without prejudice

. The Court further ord ers that each party is to be ar their own

co s ts and fees

. This Ju dgment is final
, disposes of all clai ms and all parti es , and is appealable

. The Court orders e xecution to issue on this judgment

. T h ere is no question that this is a f inal and appealable judgment
, d i sposing of all par t ies and all claim s . Alt hough the judgment initially seem s to be interlocutory by not di smi ssing “ claims on the statute of limita t ions to foreclose
, ” the judgment ultimately dispose s of th em

. See Lehmann v. Har

- Con Corp ., 39 S.W.3d 191, 192 (Tex. 2001)

. Howe v er , we must add ress whether DHI has preserved any complaint for appellate review

. Though n ot raised b y the part ies
, it5

is a p rerequ i site to presenting a compl aint on appeal that a part y must pr esent to the

t rial court a timely reques t, objection , or motio n that state s th e grounds for the ruling that the complaining party sought from the trial c ourt with sufficient

s pe cifi city to make t he trial court aware of t he complain t , un less the specific

gr ounds were a pp arent from the conte x t , an d ob tain a ruling. 2 Te x . R. App. P.
33 .1 (a)

. II. A NALYSIS

In Texas , settlement i s encourage d and favored. See Trans p o rtation Ins. Co.

v . Faircl oth
, 898 S. W.2d 269, 280 ( Tex. 1995) ( “ Settlement s are fav ore d because they avoid the uncertainties regar ding the outco me of litigation, an d the often

exor bitant amounts of time and money to prosecute or defend claims at trial. ” ); Bocanegra v. Aetna Life I ns. Co

. , 605 S. W .2d 848, 85 5 (Tex. 1980) (Campbell, J.,

co ncurring) ( “ Settlemen t agreements are highly fav ore d in the l aw because they are

a means of amica

bly resolving doubts and preventing lawsuits.”)

. Here, the parties agreed t o settle DHI ’ s claims , and as part of t ha t agreement t he parties agree d to the rendi tion of judgmen t in favor of appel lees , including the trial court denying
D HI ’ s m ot ion for summar y judgment

. T he settlement agreem ent was contingent on the trial court ’ s si gning the agreed judgment

.
T hough set tlem e nt is favo red
, it is problematic when th e parties do no t agree wit h everything in the four corners of the judgment they r eques t

. The partie s cannot agre e to allow an appellate complaint unless a sp ecific g r ound i s presented
to the trial court and the tria l cou rt makes an adverse ruling. This is imp ortant not only so parties do not conceal compl a ints of reversible error from the t rial court,

2 DHI ’ s app ellate bri e f do e s not r efer to the fin al judgm ent by its caption, “ AGREED FINAL JUDGMENT, ” bu t the b rief does sta te, “ On November 14, 2 019, the 127th district court signed a final judgment agreed to by all remaining parties. ”6

b ut also for purposes of error pre servatio n

. See Rohrmo os Venture v. UTSW DV A Healthcare, LLP , 578 S.W.3d 469, 480 (T e x. 2 019 ) (“Affording trial courts an opport unity to correct errors conser ves judicial resources and prevents an appeal by
ambu sh or otherwi se having to orde r a new trial.” ); ETC Mktg., Ltd. v. Harris Cty. Apprais al Dist. , 528 S.W. 3d 70, 74 (Tex. 2017) (p r eser vat ion of error is driven by “the princ iple that the trial court shou ld have the chance to rule on issues that
become the subject of th e appeal”).

This princ iple was summariz ed three decade s ago by Jud ge Camp be ll on the court of criminal appeals :

Ther e are ma ny rationales for this raise

- or

- waiv e rule: that it is a necessary corollary of our adversary system in which issu es ar e framed by t he litigants and presented to the trial court; that fa irness to all par ti es requires a litigant to advance his compl a ints at a time when there is an oppo rtunity to resp ond to them or cure them; that reversing for error not raised in the t rial court permits the losing party to second

- guess its tactical decisio ns after they do no t produce the desired result; and that ther e is som ething unseemly about telling a tria l court it erred when it was never presented with the opportunity to be right. The princip [a] l r ationale for the rule, however, is judicial economy. I f the losing side c an obtain a reversal on a point not argued i n th e t rial court, the parties and the publ ic are put to the expense of a retrial that could have been avoided by better lawye ring. Further more, if the issue had been timely raised in the trial court, it could ha ve been resolved there, and the parties and the pub lic would have been spared the expen se of an a

ppeal. Young v. State , 826 S.W.2d 141, 149 (Tex. Crim. App. 1991) (C ampbe ll, J.,
disse nting) (commenting on former Tex. R. App. P. 52(a), n ow Tex. R. App. P.
33 .1(a))
, cited with approval by Loredo v. S tate , 1 59 S.W.3d 920, 92 3 (Tex. Crim. App. 2004)

. We agree. Th e trial court must be made aware, before it signs a final j udgme nt or appeal ab le order , of any c o mplaint of re versible error

. See generally
USAA Tex. Ll oyds Co. v. Menchaca , 545 S.W.3d 479, 510 (Tex. 2018)7

( preservation of error requirement “ furthers ‘ the goa l of accuracy in judicial
decision

- making ’ by allowing the parties to ‘ deve lop and refine the ir arguments ’ and allowing the trial cour t to ‘ analyze the questions at issue ’ ” ) (quoting In re
B.L.D. , 113 S.W.3d 340, 350 (Tex. 2003) )

. In sh ort, an appellant must comply with Texas Rule of Appellate Procedur e 3 3.1(a) so the trial cour t is aware o f the specific ground that will be appeal ed , such that the tr ial court ’ s signing of t he “ agreed ” judgment o r appealable order constitut es an adverse rul ing on that specific ground

.
T he settlement agreement between DHI a nd appelle es also raise s t he question o f whether DHI invited error

. A part y cannot compla in on app eal that the

tr ial court took specific action that the compl aining part y requested

. Tittize r v. Union Gas Corp

. , 171 S.W.3d 857, 862 (Tex. 2005) (c iting N orth eas t Tex. Motor
Lines v. H

o dges
, 158 S. W

. 2d 487, 488 (Tex. [ Comm ’ n App. ] 1942))

.
T he right t o comp lain about a judgme nt on appeal is preserved w hen a

movant states “in its moti on to enter judgment that it agrees only with the f orm of the judgm ent ,” and notes “it s di sagreemen t with the content an d result of the judgment.” First Nat ’ l Bank of Beeville v. Foj tik
, 77 5 S.W.2d 632, 633 (Tex. 1989 ) (no w aiver when plaintiffs’ motion fo r entr y of judgment referenced plaintiff s’ motion for new trial, st ate d that plaintiff s ag ree d only with f

orm of judgmen t , and specified plaint i ffs’ di sagreeme nt with content and res ult of judgment )

. “ [M] erely provid[ing] a draft judgment to conform to wha t the court had announced would be
its j udgment ” does not result in wa iver of the appe al. John Mase k Corp. v. Davis , 848 S.W.2d 170, 174

– 75 (Tex. App.

— Houston [1st Dist.] 1992, w rit denied) ; c f

. Ch ang v. Linh Nguyen
, 81 S.W. 3d 314, 316 n.1 (Tex . App.

— Houston [1 4th Dist.]
200 1
, opinion supplemented on overruling of reh’g , 76 S.W.3d 635 (Tex. App.

— Houston [14th Dist.] 2002, no pet.) ( “ In this case, the parties ’ a ttorneys ap pro ved
th e ta ke nothing judgment as to ‘ form and substa nce ’ but there is nothing more in8

the record to show that they set t led or e ntered the judgment by con sent or the
like

. ”)

. This case does n ot present the same fact situation as in Foj tik

. In this c ase the re is no record that the tria l court or ally rendered a rul ing on the tw o
summary

- jud g ment motion s, making it clear that the motion for sum mary jud gment of the mortgage serv i cer and the Deutsc he parties was gr anted on the
meri ts and the mot ion for summary judgment of DHI was denied on the merits

. H a d the trial court so ruled, th en a judgment memorializing that and approved as to form would no t waive an appe llate complaint on the trial court ’ s d enial of DHI ’ s motion for summary jud gment

. T here is nothing in the record indicati ng th at the
trial cou rt made an adverse ruling on the merits against DHI before signing the

“ agreed ” jud gment th at a ll parties a sked the tr ial court to si gn

. To the extent t hat
the factual recitations in the Rule 11 agreement and motion for entry of judgment

can be r e lied on a t all , wha t those documents in t he clerk ’ s record indicate is that
the trial court offered a “ trial on the issue of waiver of acceler ation
, ” implicitly suggesting t he trial court would not g rant DHI ’ s motion for summary judgment.
A party ’ s c ons e nt t o the trial court ’ s entry o f judgment waives any error, except for f

u n damental error, contained in the judgment, and that pa rty has nothing to properly pre sen t for appellate review. S ee Gillum v. Republic Health Corp.
, 778
S.W.2d 558, 562 (Tex. App

. — Da llas 1989
, no writ) ; see also Wagner v.
Wa rnasch
, 295 S. W.2d 890 , 893 ( Tex. 1956 ) ; Dunman v. Hartwell
, 9 Tex. 495
, 496 ( 1853) ( “ [T] he appellant s are at once confr o nted with the general principle that consent takes away error, an d that a judgment b y agr eeme nt or comp romise cannot be impeached, unle ss for fraud, collusio n, or like causes, none of which appear in this record or are alleg ed or assign ed

. ” ) (Hemphill, C. J .)

. And it has long been the law that p arties cannot consent to vest the appellate court with jurisdict ion. E.g. ,9

Phillips v. Hill , 3 T ex. 397, 39 9

– 400 ( 18 4 8) (W heeler, J.)

.
T he d issent argues t hat the trial court was not blind

- sided becaus e the parties

“ cam e to this agreem ent upon the re quest of the t rial court ” and that error was
preser ved b ecau se the agreed judgment recit ed that it “ gr ants Deutsche Ba nk and
SLS’s motion and denies DHI’s motion. ” In essence, the dissent conclu des that
, b e c ause t he partie s co nspi red with the trial court to place th e issues in th is case
before us without the tr ial court having f irst substantiv ely a ddressed the merits of those issues, the issues have been properly prese r ved and presented to this court

. This c o nclusion upends the tr aditional purpose of error preser vation, which at its

core is meant to ensure that the trial court addresses and rule s on the mer its of an i ssue before this court may review it

. Moreover , the position taken by the dissent

no t only mis reads the recor d, b u t a l so i gnores that two fundamental r equirements for error preserv ation are both miss ing: (1) a compl a i nt or objection made with

s u fficient specificity to make the trial court aware of such compl ai nt and (2) an
adve rse rulin g

. Tex. R. A pp. P. 33.1(a)( 1), (2).

A s d iscussed abov e, there is no r eporter ’ s record and the only evidence of
knowle dge on the part of the tria l cou rt comes from the partie s. Simply attributing
a statement to th e trial court in a Rule 11 agreement does not satisfy a party ’ s obligat ion to preserve erro r

. The dissent ’ s reli ance on and cita tion to a Rule 11 agreement filed by the parties is misplaced.

The agree d judg m ent itself does not preser v e error. A lt hough the judgment
contain s a statement that it grant s Deutsche Ba nk and SLS ’ s su mmary

- ju d gment

m otion and denie s D HI’s cross

- motion for summary j udgment
, those rulings ar e in an agreed judgment requested by the part i es

. DHI never objected to the rul ing it
asked the trial court to render or made clear its disagreement wi th the content and result of the ju d gment , either in the motion for entry of an agreed judgment or in10

the j ud gment its elf

. Though the dissent does not address the c ase , the holding of the supreme court in Fojtik controls here. 77 5 S.W.2d at 633. While there is a

process b y which a party who desires to start the appellate process may ask the court to render ju dgme nt, DHI did not make clear to the trial co urt that it d i sa greed
with the con tent and result of the jud gment. Id

. There is also a finding in the agre ed judgment th at DHI “ preserv ed its right

to challenge this j udgment on app eal

. ” However, this finding d oes not s atisfy
DHI ’ s duty to comply with the requirements of Rule 33. 1
, because it does n ot establish that the trial court both (1) wa s aware of the sp ecific ground of DHI ’ s complaint of re versible error and (2) ma de an ad v erse ruling

. See Tex. R. App. P.
33. 1(a); see also Rohrmoos Venture , 578 S.W.3 d at 4 79

– 80 ; Burbage v. Burbage
, 447 S.W.3d 249 , 258 (Tex. 2014) ( “ P reservation of error reflects important

p rudential c onsideration s rec ognizing t hat the judicial process benefits g reatly
when trial courts hav e th e opportunity to first consider and rule o n e rror .” )

.
E ven i f we were to subjectively accept that the trial court understood the
intention of the par ties, DHI s till has not shown it received a n adverse ruling fro m the trial court. With the exception of f undamental error , t he parties and the tria l

c ourt cannot agree for the appe ll a te court to address an issue that (1) was not brought to the attention of the trial court and (2) on which the trial court did not make a ru ling adverse to the appellant , i.e., the pa rtie s cannot agree to create appellate jurisdi cti on. See Jack M. Sanders Family Ltd. P ’ ship v. Roger T. Fridholm Revocable Living Trus t , 434 S.W.3d 236, 24 0 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) ( “[T]he qu estion whether appellate juri sdiction exist s ca nnot be waived or settled by agreement of the parties.” ) ; Anglo

- Dutch Energy, LLC v. Crawford Hughes Operating. Co

. , No. 14

- 16

- 00635

- CV, 2017 WL 444053 0, at *4 (Tex. App.

— Houston [14th Dist.] Oct. 5, 2017, pet

. denied ) (mem. op.) (“[T]he11

parties ’ stipu lati on cannot create appellate jurisdiction wh ere none exists.”) ; C onsol. Cas. Ins. Co. v. Wade , 373 S.W.2d 841, 843 (Tex. App.

— Corpus Christi 1963, writ di s m’d) ( “ It has always been the law in the State of Texas that appellate jurisdiction may not be crea ted by agreement

. ” ) ; see a l so In re M.S

. , 115 S.W. 3d 534, 547 (Tex. 2003) (describing erro r preservatio n as “threshold to appel late review”) ; Hartwell
, 9 Te x

. at 496 (appe al cannot be sustained when appellants agreed and consented to judgment)

. Similarly
, a tr ial court cannot agree to create appellate ju risdiction by consent. Se e Anglo

- Dutch Energy, LL C , 2017 WL 4440530, at *4 (quoting Texa co, Inc. v. Shous e , 877 S.W.2d 8, 11 ( Tex. App.

— El Paso 1994, no writ) ); Welde r v

. Frit z , 75 0 S. W

. 2 d 93 0
, 93 2 ( Te x

. Ap p

. — C orpu s Christ i 198 8
, n o wri t ) ( “It is well set tle d . . . that appellate jurisdiction cannot be created by consent, stipulation of the parties, or waiver, e ither by the court or by the litigants. ” )

. Other than the ruling the parties ask ed the trial court to render, the
record reveals no adverse ruli ng.

A ptly described by the supreme court, the proce dur al rule requiring preservation of error in the trial cou rt is “ technical, but not tri v ial. ” Mencha c a , 545
S.W.3d at 5 18 (quoting Burbage , 447 S.W.3d at 25 8 )

. Co ncluding that DH I did not comply with Rule 33 .1(a) and invited the trial cour t to sign the agreed judgment

ag ain st DHI ’ s int eres t without objecting to t he content or the result
, DHI h as not preserved a c omplaint for appellate review

.12 III. C ONC LUSION

We ov er r ule DHI ’ s three issues and affirm t he judgment of the trial court as challen ged on appeal

. See Tex. R. App. P. 43.2(a)

.

/s/ C harles A

. S pa in J ustice

Pan el con sists of Justi ce s B our li ot , Zimmer e r, and Spain (Zimmerer, J., dissenting)

.