Luis De Jesus Rodriguez and Maria Rodriguez v. David Martinez Tovar

Affirmed and Majority Memorandum Opinion and Concurring
Memorandum Opinion filed November 30, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00221-CV

LUIS DE JESUS RODRIGUEZ AND MARIA RODRIGUEZ, Appellants
V.
DAVID MARTINEZ TOVAR, Appellee

On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2020-63188

MEMORANDUM CONCURRING OPINION

While I concur in the judgment and mostly agree with the opinion, I disagree
with this court’s reasoning for the disposition of the first issue, whether the trial
court erred by failing to grant their motion for summary judgment. I say this
because the trial court proceeded with a bench trial and ultimately rendered a
judgment after a conventional trial on the merits that stated, “This is a final
judgment and is appealable.” 1

We need not decide the timeliness of the motion for summary judgment.
Appellants waived any possible complaint by proceeding with the bench trial, and
the trial court’s final judgment after a conventional trial on the merits disposed of
all parties and claims. 2 If there were reversible error in the judgment based on the
trial court’s consideration of the deemed admissions, then any such error is part of
the final judgment after a conventional trial on the merits, not in the trial court’s
alleged “refusing to grant” the motion for summary judgment. 3 I concur in the
judgment.

/s Charles A. Spain
Justice

Panel consists of Justices Jewell, Spain, and Wilson (Jewell, J., majority).

1
Appellants’ first issue is “Did trial court err in refusing to grant Appellants’ motion for
Summary Judgment based on the Deemed Admission, when said deemed admissions were
acknowledged by trial court’s order and, where the summary judgment motion became viable on
the date of trial, and both oral and urging of written motion were made prior to the entry of
evidence at trial?”
2
Appellants claim they preserved a complaint for appellate review based on the
following in their opening statement at the bench trial:
And so, we ask, Your Honor, that the Court accept the evidence as
presented; and we would ask the Court, based on the earlier finding of the
summary judgment, we ask the Court to consider that motion.
We would further urge the Court to take judicial notice, and I’m sure the
Court is already aware, judicial notice, I believe it is Exhibits 6 and 7, which are,
in fact, the deemed admissions, both the questions and whatnot.
Such a statement does not constitute a complaint in accordance with Texas Rule of Appellate
Procedure 33.1(a). See Tex. R. App. P. 33.1(a).
3
The trial court’s final judgment implicitly denied the motion for summary judgment.

2