Rebecca De La Rosa and Cesar De La Rosa v. Jason Matthew Avery and Kacie Hope Avery

NO. 12-23-00140-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REBECCA DE LA ROSA AND CESAR § APPEAL FROM THE 273RD
DE LA ROSA,
APPELLANTS

V. § JUDICIAL DISTRICT COURT

KACIE HOPE AVERY AND JASON
MATHEW AVERY,
APPELLEES § SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

Rebecca De La Rosa and Cesar De La Rosa (collectively Appellants) appeal the trial
court’s summary judgment entered in favor of Appellees Kacie Hope Avery and Jason Mathew
Avery (collectively the Averys). Appellants raise five issues on appeal. We reverse and remand
in part and affirm in part.

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, the Averys,
would not allow him to keep the shotgun at their house, Robert kept the gun at his home until the
Averys and Heston moved to Joaquin, Texas in late 2018, at which point Robert gave it to
Heston to take with him.
Appellants filed the instant suit against Heston, the Averys, and Robert. As to the
Averys, Appellants alleged that they were negligent in allowing Heston to possess the shotgun
used to kill A.D.L.R. because they 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 Robert was
negligent in that he gave Heston the shotgun.
Appellants agreed to settle their claims against the Averys for $25,000. Appellants
signed a release and an agreed judgment, by which their Appellants’ case against the Averys was
dismissed with prejudice on July 27, 2022. Appellants’ case against Robert also was settled and
dismissed. Their suit against Heston, the sole remaining defendant, continued.
Thereafter, Appellants assert that, after much delay, they received discovery responses
comprising twelve pages of documents from Miracle Farm, Inc., 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
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.” Appellants’ counsel subsequently sent an email to the Averys’
trial counsel with his letter to Robert’s counsel as an attachment. In the email, Appellants’
counsel stated, “Please see attached letter to [Robert’s attorney] as it is relevant to our case also.”
Soon thereafter, the Averys intervened in the still-pending suit between Appellants and
Heston and sought a declaratory judgment that the agreed take-nothing judgment and release are
binding upon Appellants, final, and serve to conclude the litigation between the parties. 1

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Robert intervened seeking 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. The trial court granted
summary judgment in Robert’s favor and issued a severance order as to his declaratory-judgment action. The

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Thereafter, they filed a traditional motion for summary judgment, in which they argued that
Appellants’ claims were barred by res judicata and, further, that they were entitled to a
declaratory judgment that the release and agreed, final, take-nothing judgment bars Appellants
from seeking recission of the release and final judgment.
Appellants filed a response to the Averys’ motion for summary judgment. In their
response, they argued, in pertinent part, that the doctrine of res judicata did not apply, the Averys
failed to authenticate the exhibits attached to their motion, their suit was not authorized by the
Uniform Declaratory Judgment Act (UDJA), and the Averys did not prove that Appellants’
actions amounted to anticipatory breach of the settlement agreement.
Ultimately, the trial court granted the Averys’ motion for summary judgment and severed
the cause between Appellants and the Averys from their suit against Heston. This appeal
followed.

RES JUDICATA
In their first issue, Appellants argue that the trial court erred in granting the Averys’
motion for summary judgment because there is no second lawsuit filed by Appellants against
them.
Standard of Review
We review a trial court’s summary judgment de novo. Lightning Oil Co. v. Anadarko
E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017); Merriman v. XTO Energy, Inc., 407
S.W.3d 244, 248 (Tex. 2013). A trial court may render summary judgment when “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law on the issues [presented].” TEX. R. CIV. P. 166a(c); accord Lightning Oil, 520 S.W.3d at 45;
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). “A
defendant may obtain summary judgment by conclusively establishing an affirmative defense.”
Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021) (citing Frost Nat’l
Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010)).
We review the evidence presented in the motion and response in the light most favorable
to the party against whom the summary judgment was rendered, crediting evidence favorable to

opinion related to the appeal of that case to this court in Cause Number 12-23-00112-CV issued on the same day as
the opinion in this cause.

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that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also 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
The doctrine of res judicata, or claim preclusion, bars causes of action that already have
been adjudicated fully or that, with the use of diligence, could have been brought in the prior
suit. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 225 (Tex. 2022) (citing Eagle
Oil & Gas, 619 S.W.3d at 705). “The doctrine is necessary to ‘bring an end to litigation, prevent
vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent
double recovery.’” Eagle Oil & Gas, 619 S.W.3d at 705 (quoting Citizens Ins. Co. of Am. v.
Daccach, 217 S.W.3d 430, 449 (Tex. 2007)). Res judicata requires proof of three elements: (1) a
prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or
those in privity with them; and (3) a second action based on the same claims as were raised or
could have been raised in the first action. Rosetta Res. Operating, 645 S.W.3d at 225 (citing
Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)).
Additionally, a judgment in one suit will not operate as res judicata to a subsequent suit
on the same question between the same parties where, in the interval, the facts have changed, or
new facts have occurred which may alter the legal rights or relations of the parties. Hernandez
v. Del Ray Chem. Intern., Inc., 56 S.W.3d 112, 116 (Tex. App.–Houston [14th Dist.] 2001, no
pet.) (citing Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949–50 (Tex. 1990)).

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For res judicata to apply, a claim must be in existence at the time suit is filed and cannot
be merely a prospective or anticipated claim. See Hernandez, 56 S.W.3d at 116 (citing Cowling
v. Colligan, 312 S.W.2d 943, 947 (Tex. 1958)) (a judgment is res judicata “only of present and
not future conditions”). Thus, a judgment does not bar a subsequent action arising from the same
set circumstances if the subsequent claim accrued after the original judgment. Hernandez, 45
S.W.3d at 116.
Discussion
We begin our analysis by recognizing that res judicata is an affirmative defense, which
the Averys first raised in their motion for summary judgment. See TEX. R. CIV. P. 94.
Appellants argue that the Averys failed to establish their entitlement to judgment as a matter of
law with regard to res judicata because there is no summary-judgment evidence establishing that
Appellants filed a second action against the Averys based on the same claims as were raised or
could have been raised in the first action. See Rosetta Res. Operating, 645 S.W.3d at 225. We
agree.
The Averys’ declaratory-judgment action arises from Appellants’ contention that Robert
and the Averys fraudulently induced their respective settlement agreements and releases with
Appellants. But there is no indication in the summary-judgment record that Appellants have
sought recovery against the Averys on that basis. Because there is no summary-judgment
evidence that Appellants filed a second lawsuit, in which they raise the same claims against the
Averys as were raised or could have been raised in the underlying litigation or initiated such an
action as a counterclaim in the underlying litigation after the rendition of the agreed judgment,
we hold that the affirmative defense of res judicata does not apply. See id. Appellants’ first
issue is sustained.

RELEASE AND WAIVER-OF-RELIANCE CLAUSE
In their second issue, Appellants argue that the trial court erred in granting summary
judgment because there were genuine issues of material fact as to whether the release and
settlement agreement bars future, fraudulent-inducement claims against the Averys because the
waiver-of-reliance provision in the release is not binding upon Appellants.
Summary judgments only may be granted upon grounds expressly asserted in the
summary-judgment motion. See Nat’l City Bank of Indiana v. Ortiz, 401 S.W.3d 867, 876

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(Tex. App.–Houston [14th Dist.] 2013, pet. denied); see also TEX. R. CIV. P. 166a(c). Moreover,
the nonmovant must expressly present to the trial court, by written answer or response, any
issues defeating the movant’s entitlement to summary-judgment. McConnell v. Southside
Indep. School Dist., 858 S.W.2d 337, 343 (Tex. 1993) (citing City of Houston v. Clear Creek
Basin Auth., 589 S.W.2d 671, 678 (Tex.1979)); Tello v. Bank One, N.A., 218 S.W.3d 109, 118
(Tex. App.–Houston [14th Dist.] 2007, no pet.); Dubose v. Worker’s Medical, P.A., 117 S.W.3d
916, 920 (Tex. App.–Houston [14th Dist.] 2003, no pet.); see TEX. R. CIV. P. 166a(c). Issues are
not expressly presented by mere reference to summary judgment evidence. McConnell, 858
S.W.2d at 341; see Dubose, 117 S.W.3d at 920; D.M. Diamond Corp. v. Dunbar Armored, Inc.,
124 S.W.3d 655, 659–60 (Tex. App.–Houston [14th Dist.] 2003, no pet.).
But summary judgments must stand or fall on their own merits, and the nonmovant’s
failure to answer or respond cannot supply by default the summary judgment proof necessary to
establish the movant’s right. McConnell, 858 S.W.2d at 343 (citing Clear Creek, 589 S.W.2d at
678); Tello, 218 S.W.3d at 118–19. If a nonmovant fails to present any issues in its response, the
movant’s right is not established, and the movant still must establish its entitlement to summary
judgment. McConnell, 858 S.W.2d at 343 (citing Clear Creek, 589 S.W.2d at 678); Tello, 218
S.W.3d at 119. “The effect of such a failure is that the nonmovant is limited on appeal to
arguing the legal sufficiency of the grounds presented by the movant.” McConnell, 858 S.W.2d
at 343 (citing Clear Creek, 589 S.W.2d at 678); Tello, 218 S.W.3d at 118–19.
In the instant case, the Averys did not raise the issue in their motion for summary
judgment that the waiver-of-reliance provision in the release is binding on Appellants and
prevents them from seeking its recission, nor did Appellants, in their response, raise the
argument they now raise on appeal, i.e., that they are not bound by this provision. Nonetheless,
Appellants’ argument can be interpreted as a challenge to the sufficiency of the Averys’ motion
for summary judgment. See TEX. R. APP. P. 38.1(f) (statement of issue “will be treated as
covering every subsidiary question that is fairly included”); cf. also Bean v. Reynolds Realty
Grp., Inc., 192 S.W.3d 856, 861 (Tex. App.–Texarkana 2006, no pet.) (court of appeals has
discretion sua sponte to address legal insufficiency of summary judgment motion even though
issue is not raised precisely by parties on appeal).
In a declaratory-judgment action, a party who asserts an affirmative claim for relief has
the burden of proving its allegations. Castille v. Serv. Datsun, Inc., No. 01-16-00082-CV, 2017

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WL 3910918, at *3 (Tex. App.–Houston [1st Dist.] Sept. 7, 2017, no pet.) (mem. op.); see Saba
Zi Expl., LP v. Vaughn, 448 S.W.3d 123, 129 n.11 (Tex. App.–Houston [14th Dist.] 2014, no
pet.); see also Alanis v. US Bank Nat’l Ass’n, 489 S.W.3d 485, 500 (Tex. App.–Houston [1st
Dist.] 2016, pet. denied) (party seeking declaration bears burden of establishing entitlement to
requested declaratory judgment).
Furthermore, “[a] disclaimer of reliance on representations, ‘where the parties’ intent is
clear and specific, should be effective to negate the element of reliance.’” Forest Oil Corp. v.
McAllen, 268 S.W.3d 51, 56 (Tex. 2008); Worldwide Asset Purchasing, L.L.C. v. Rent-A-Ctr.
E., Inc., 290 S.W.3d 554, 566 (Tex. App.–Dallas 2009, no pet.). An all-embracing disclaimer of
any and all representations shows the parties’ clear intent. Id. However, “facts may exist where
the disclaimer lacks ‘the requisite clear and unequivocal expression of intent necessary to
disclaim reliance’ on the specific representations at issue.” Forest Oil Corp., 290 S.W.3d at 60.
As a result, when determining whether a waiver-of-reliance provision is binding, courts must
always examine the contract itself and the totality of the surrounding circumstances, including
whether: (1) the terms of the contract were negotiated, rather than boilerplate, and during
negotiations the parties discussed the issue which has become the topic of the dispute; (2) the
complaining party was represented by counsel; (3) the parties dealt with each other in an arm’s
length transaction; (4) the parties were knowledgeable in business matters; and (5) the release
language was clear. See id. (emphasis added); Worldwide Asset Purchasing, 290 S.W.3d at 566.
Here, the Averys sought a declaratory judgment that the “Release and Agreed Final Take
Nothing Judgment” is binding and “bars [Appellants] from seeking recission of the Release and
Final Judgment.” The trial court’s order granting summary judgment in their favor includes a
declaration that the settlement release in question is binding and bars Appellants “from seeking
recission of said Release and Final Judgment” against the Averys. But the Averys bore the
burden of proving their entitlement to a declaratory judgment on the affirmative relief they
sought. The trial court could not make its declaration regarding the binding nature of the
agreement and Appellants’ ability to seek recission of the release based on the waiver-of-reliance
provision without the required examination of both the contract itself and the totality of the
surrounding circumstances. See Alanis, 489 S.W.3d at 500; see also Forest Oil Corp., 290
S.W.3d at 60; Worldwide Asset Purchasing, 290 S.W.3d at 566. Accordingly, we hold that the
trial court erred in granting its declaratory summary-judgment that Appellants are barred from

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seeking recission of the release against the Averys because the Averys failed to make any
argument in their motion for summary judgment in support of such a finding. See Alanis, 489
S.W.3d at 500; see also Forest Oil Corp., 290 S.W.3d at 60; McConnell, 858 S.W.2d at 341
(issues not expressly presented by mere reference to summary judgment evidence). Appellants’
second issue is sustained.

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 the Averys’ favor because the UDJA does not apply to potential tort claims and
cannot be used to interpret an earlier judgment.
Determination of Tort Liability versus Interpretation of Contract
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). 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 id. § 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
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.

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In the instant case, the Averys sought, among other things, a declaration that the release
and settlement agreement between them and Appellants is valid, enforceable, and binding upon
the parties. As demonstrated by their pleadings, the requested declaration, insofar as it related to
an interpretation of the validity, enforceability, and binding nature of the release, did not amount
to an attempt to seek a determination of their potential tort liability. 2 See, e.g., Stark, 156
S.W.3d at 117. Instead, they sought a judicial determination of their rights under a contract. See
id.; Crossley v. Staley, 988 S.W.2d 791, 797 (Tex. App.–Amarillo 1999, orig. proceeding).
Justiciability
A contract may be construed in a declaratory-judgment action before breach occurs,
regardless of whether further relief is or could be claimed. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 37.003(a) (West 2020), 37.004(b); MBM Fin. Corp v. Woodlands Oper. Co., 292
S.W.3d 660, 667 (Tex. 2009); Bright v. Addison, 171 S.W.3d 588, 606 (Tex. App.–Dallas 2005,
pet. denied). But a declaratory judgment is available only if a real and substantial controversy
exists between the parties, which requires a showing that litigation is imminent unless the
contractual uncertainties are resolved judicially. See Paulsen v. Tex. Equal Access to Justice
Found., 23 S.W.3d 42, 46 (Tex. App.–Austin 1999, pet. denied). An action for declaratory
judgment will lie when the fact situation manifests the presence of “ripening seeds of a
controversy.” Save Our Springs All. v. City of Austin, 149 S.W.3d 674, 683 (Tex. App.–Austin
2004, no pet.). This occurs where the claims of several parties are present and indicative of
threatened litigation in the immediate future which seems unavoidable, even though the
differences between the parties as to their legal rights have not reached the state of an actual
controversy. Id.
In the instant case, the summary-judgment record contains a letter dated September 19,
2022, from Appellants’ trial counsel to Robert’s trial counsel. In that letter, Appellants’ counsel
notified Robert’s counsel that certain discovery Appellants received from Miracle Farm proved

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The trial court’s blanket declaration in its summary judgment order that the release bars Appellants from
seeking its recission is concerning because such a declaration appears to stray from the trial court’s permissible
function of interpreting the release and, instead, potentially sets forth a possible legal conclusion that the release is
established as an affirmative defense to a prospective fraudulent-inducement claim. See Nelson v. Najm, 127
S.W.3d 170, 176 (Tex. App.–Houston [1st Dist.] 2003, pet. denied) (recission is equitable remedy available in
fraudulent inducement matters). However, because of our resolution of Appellants’ second issue, which did not
require that we address the merits of the waiver-of-reliance issue, the determination of the justiciability of the
Averys’ declaratory judgment on that basis is not necessary to our disposition of this appeal. See TEX. R. APP. P.
47.1.

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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 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.”
The summary-judgment record also includes a copy of an email Appellants’ trial counsel
subsequently sent to the Averys’ trial counsel. In that email, which included as an attachment,
the September 19 letter, Appellants’ counsel stated, “Please see attached letter to [Robert’s
attorney] as it is relevant to our case also.”
It is undisputed that both Robert and the Averys previously were co-defendants, along
with Heston, in the underlying matter before their cases were dismissed pursuant to settlement.
The email Appellants’ counsel sent to the Averys’ counsel, in which he stated that the attached
letter, which threatened a separate lawsuit to recover actual and punitive damages against Robert,
is relevant to Appellants’ case against the Averys, sufficiently presents a fact situation, which
manifests the presence of “ripening seeds of a controversy.” See Save Our Springs All, 149
S.W.3d at 683. Accordingly, we conclude that there existed a justiciable controversy for the
Averys’ declaratory-judgment action against Appellants to seek an interpretation of the release
and settlement agreement.
Impermissible Interpretation of Prior Judgment
Appellants further argue that the UDJA cannot be used to interpret earlier judgments.
See Samedan Oil Corp. v. Louis Dreyfus Nat. Gas Corp., 52 S.W.3d 788, 792 (Tex. App.–
Eastland 2001, pet. denied). But here, the Averys did not seek, nor did the trial judge render, a
declaratory judgment interpreting the terms of the parties’ agreed judgment. Instead, the trial
court declared that the judgment was binding and final, which does not amount to an
impermissible interpretation of a prior judgment. See id. Similarly, we conclude that a
declaration that a judgment is “binding,” without more, does not amount to impermissible

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interpretation. 3 Cf. Avila v. St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 854 (Tex. App.–San
Antonio 1997, pet. denied) (agreed judgment is binding as to parties to agreement).
Summation
Based on the foregoing, we hold that because there was a justiciable controversy between
the parties, the Averys were entitled to pursue relief under the UDJA to seek a declaration as to
the construction and validity of the release between them and Appellants, as well as a declaration
that the agreed judgment was final and binding as to the Averys and Appellants. Appellants’
third issue is overruled.

ANTICIPATORY BREACH OF THE RELEASE AGREEMENT
In their fourth issue, Appellants argue that the trial court erred in granting summary
judgment because there was no summary-judgment evidence of anticipatory breach of the
settlement release by Appellants. Based on our review of the record, the Averys did not move
for summary judgment or seek a declaratory judgment that Appellants’ actions amounted to
anticipatory breach of the release and settlement agreement. Appellants’ argument, which they
also made in their response to the Averys’ motion for summary judgment, appears to relate to a
single statement in Appellants’ motion underlying their request for declaratory relief. However,
as set forth above, a contract may be construed in a declaratory-judgment action before breach
occurs, regardless of whether further relief is or could be claimed. See TEX. CIV. PRAC. & REM.
CODE ANN. §§ 37.003(a), 37.004(b); MBM Fin. Corp, 292 S.W.3d at 667; Bright, 171 S.W.3d
at 606.

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The trial court’s declaratory judgment also states that Appellants are barred from seeking recission of not
only the release but the Agreed Final Judgment as well. Assuming without deciding the propriety of this declaration
as to the agreed judgment under the UDJA, we note that even where there is proof that an agreed judgment is
dependent upon a settlement agreement, proof that might ordinarily give rise to the remedy of recission of a
contract, such as a material breach of the agreement after the judgment is signed, does not serve to invalidate the
agreed judgment. See Hawkins v. Howard, 97 S.W.3d 676, 778 (Tex. App.–Dallas 2003, no pet.). In this example,
the validity and correctness of a judgment is not called into question by a subsequent breach because the breach did
not occur until after the judgment was signed. See id. (citing cf. Compania Finaciara Libano, S.A. v. Simmons, 53
S.W.3d 365, 367 (Tex. 2001)). And although breach of the settlement agreement may give rise to new claims
between the parties, it does not affect the correctness of the judgment at the time it was rendered. Hawkins, 97
S.W.3d at 778. Here, in our disposition of Appellants’ second issue, we held that the trial court’s declaration that
Appellants cannot seek recission of the judgment based on waiver-of-reliance is erroneous. Such a declaration as it
may relate to breach or anticipatory breach would not be erroneous. See id. However, because the Averys did not
raise this argument in their motion for summary judgment, the declaration that Appellants are barred from seeking
recission of the Final Judgment against the Averys nonetheless is erroneous. See Nat’l City Bank of Indiana v.
Ortiz, 401 S.W.3d 867, 876 (Tex. App.–Houston [14th Dist.] 2013, pet. denied); see also TEX. R. CIV. P. 166a(c)
(Summary judgments only may be granted upon grounds expressly asserted in the summary-judgment motion).

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Here, Appellants’ argument about anticipatory breach cannot be construed to raise
additional arguments with regard to the justiciability of the Averys’ declaratory-judgment action
because anticipatory breach of contract is not the standard for justiciability. Compare Taylor
Pub. Co. v. Sys Mktg., Inc., 686 S.W.2d 213, 217 (Tex. Civ. App.–Dallas 1984, writ ref’d n.r.e)
(setting forth elements of anticipatory breach) with Paulsen, 23 S.W.3d at 46 (setting forth
standard of justiciability of declaratory-judgment actions). Therefore, we hold that Appellants’
fourth issue bears no relation to a ground on which the Averys sought summary judgment and
cannot be construed as an additional argument related to the justiciability of the Averys’
declaratory-judgment action. See TEX. R. APP. P. 38.1(i) (brief must contain clear and concise
argument for contentions made with appropriate citations to authorities); see also TEX. R. CIV. P.
166a(c); Ortiz, 401 S.W.3d at 876 (summary judgment only may be granted upon grounds
expressly asserted in summary-judgment motion). Appellants’ fourth issue is overruled.

SUMMARY JUDGMENT EVIDENCE
In their fifth issue, Appellants argue that the trial court abused its discretion by
considering the Averys’ summary-judgment evidence because the evidence was not
authenticated.
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-of-

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authentication 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, the record does
not support that Appellants ever 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. Appellants’ fifth
issue is overruled.

CONCLUSION
We have sustained Appellants’ first and second issues and overruled their third, fourth,
and fifth issues. Having done so, we reverse the trial court’s summary judgment, as well as the
declaratory portion of that judgment to the extent it declares that (1) Appellants are bound by the
waiver-of-reliance provision of the release and settlement agreement and (2) the trial court’s
judgment dated July 27, 2022, in the underlying cause bars Appellants from seeking rescission of
the Release and Final Judgment against the Averys, and remand the cause for further
proceedings consistent with this opinion. We affirm the portion of the trial court’s declaratory
judgment as to the declaration that the July 27, 2022 Agreed Judgment is binding and final. All
currently pending motions in this appeal are hereby overruled as moot.

JAMES T. WORTHEN
Chief Justice

Opinion delivered October 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 31, 2023

NO. 12-23-00140-CV

REBECCA DE LA ROSA AND CESAR DE LA ROSA,
Appellants
V.
KACIE HOPE AVERY AND JASON MATHEW AVERY,
Appellees

Appeal from the 273rd District Court
of Shelby County, Texas (Tr.Ct.No. 20CV35415-B)

THIS CAUSE came to be heard on the appellate record and the briefs filed herein,
and the same being considered, because it is the opinion of this court that there was error in the
judgment of the court below, it is ORDERED, ADJUDGED, and DECREED by this court that
the judgment be reversed in part, including the declaratory portion of the judgment to the extent
it declares that (1) Appellants Rebecca De La Rosa and Cesar De La Rosa, are bound by the
waiver-of-reliance provision of the release and settlement agreement and (2) the trial court’s
judgment dated July 27, 2022, in the underlying cause bars Appellants from “seeking rescission
of the Release and Final Judgment against Appellees Kacie Hope Avery and Jason Mathew.
Avery, that the cause be remanded to the trial court for further proceedings consistent with
this opinion, and that the remainder of the trial court’s declaratory judgment that the July 27,
2022 agreed judgement is binding and final be affirmed; and that this decision be certified to the
court below for observance. Cost on appeal are taxed against the party incurring same.

James T. Worthen, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.