Rebecca De La Rosa and Cesar De La Rosa v. Heston Hayes Avery and Robert D. Avery

NO. 12-23-00112-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
§ JUDICIAL DISTRICT COURT
V.

HESTON HAYES AVERY AND § SHELBY COUNTY, TEXAS
ROBERT D. AVERY,
APPELLEES
MEMORANDUM OPINION

Rebecca De La Rosa and Cesar De La Rosa (collectively Appellants) appeal the trial
court’s order denying their motion to strike Appellee Robert D. Avery’s plea in intervention as
well as the trial court’s summary judgment entered in his favor. Appellants raise four issues on
appeal. We affirm.

BACKGROUND
On February 26, 2020, Heston Avery decided to play a prank on A.D.L.R., a friend who
came to his house to visit. In so doing, he pointed a shotgun at A.D.L.R. Heston did not believe
the shotgun was loaded when he pulled the trigger. The shotgun was, in fact, loaded. It fired.
A.D.L.R. later died from his wounds.
Robert Avery, Heston’s grandfather, gave Heston the shotgun in 2015, when Heston was
twelve or thirteen-years-old and living in Temple, Texas. Because Heston’s parents would not
allow him to keep the shotgun at their house, Robert kept the gun at his home until Heston and
his family moved to Joaquin, Texas in late 2018, at which point Robert gave it to Heston to take
with him.
Appellants filed the instant suit against Heston, his parents, and Robert. As to Robert,
Appellants alleged that he was negligent in giving Heston the shotgun used to kill A.D.L.R.
because he knew or should have known that, due to Heston’s youth, inexperience, immaturity,
reckless nature, complex developmental trauma, attention deficit disorder, and/or other factors,
Heston likely would use the shotgun in a manner involving unreasonable risk of harm to himself
or others. Appellants similarly alleged that Heston’s parents were negligent in allowing him to
possess the shotgun.
On April 4, 2022, a representative of Robert’s insurer submitted an offer to Appellants to
settle their causes of action against Robert for $25,000. On April 13, Appellants accepted the
offer. Appellants signed a release, which stated, among other things, that in executing the
release, they generally were not relying upon any statement or representation of the parties
released. Appellants’ case against Robert was dismissed on May 23. Their case against
Heston’s parents also was settled and dismissed. Their suit against Heston, the sole remaining
defendant, continued.
Thereafter, Appellants assert that they received, after much delay, discovery responses
comprising twelve pages of documents from Miracle Farm, Inc., 1 a residential boys ranch Heston
attended between 2018 and 2019. Appellants’ counsel notified Robert’s counsel that this
discovery proved that Robert gave false and incomplete deposition testimony and untruthful
interrogatory answers. He further suggested in this letter that Appellants reasonably relied on
Robert’s sworn testimony and discovery responses in making their decision to settle the case
against him, none of the information revealed in the Miracle Farm documents was part of
settlement negotiations, and they believed that the “boilerplate” settlement and release were
procured by Robert’s fraud and fraudulent inducement. Appellants’ counsel further related that

1
In multiple instances, Appellants’ brief contains no citation to the record for the factual assertions they
make. See TEX. R. APP. P. 38.1(g). Moreover, their representations related to documents received from Miracle
Farm, although supported by a citation to the clerk’s record, leads to identical factual statements made in their
response to Robert’s traditional motion for summary judgment, which, in turn, are unsupported by citation to the
summary judgment record. See TEX. R. CIV. P. 166a(c); Walker v. Eubanks, 667 S.W.3d 402, 409 (Tex. App.–
Houston [1st Dist.] 2022, no pet.) (“When responding to a summary judgment motion, the nonmovant must
expressly and specifically identify the supporting evidence on file he wants the trial court to consider”).
Furthermore, their summary judgment response does not, as presented in the record on appeal, have any supporting
evidence attached to it. Because there is no reference to the summary judgment record in their response, it is
reasonable for this court to conclude that the absence of such evidence in the clerk’s record is not due to an omission
on the part of the Clerk’s Office. Cf. Lance v. Robinson, 543 S.W.3d 723, 732–733 (Tex. 2018). Failure to comply
with Rule 38.1(g) can result in waiver of appellate issues raised. See, e.g., Shelley v. Colorado Bd. of Governors,
No. 07-15-00410-CV, 2016 WL 3977388, at *1 (Tex. App.–Amarillo July 19, 2016, pet. denied) (mem. op.).

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Appellants asked him to take “all appropriate legal actions against [Robert] and Miracle Farm,
Inc., including recission of the settlement agreement and release and a separate lawsuit to recover
actual and punitive damages.”
On October 13, 2022, Robert intervened in the still-pending suit between Appellants and
Heston and sought a declaratory judgment that the partial take-nothing judgment and release are
binding upon Appellants, final, and serve to conclude the litigation between the parties. 2
Thereafter, he filed a traditional motion for summary judgment, in which he argued that, because
the summary judgment evidence demonstrated that Appellants did not rely on any
representations or concealment of information in connection with the execution of the release,
the settlement agreement and release were not fraudulently induced and, therefore, are valid,
enforceable, and binding on Appellants.
Appellants filed a motion to strike Robert’s plea in intervention and, subsequently, filed a
response to his motion for summary judgment. In their response, they argued, in pertinent part,
that Robert failed to authenticate the exhibits attached to his motion, his suit was not authorized
by the Uniform Declaratory Judgment Act (UDJA), and Appellants are not bound by the waiver-
of-reliance provision in the release. In a reply filed the day before the hearing on his motion,
Robert included an affidavit to authenticate the exhibits.
Ultimately, the trial court denied Appellants’ motion to strike and granted Robert’s
motion for summary judgment. On April 27, 2023, the trial court severed the cause between
Appellants and Robert, from their suit against Heston. This appeal followed.

MOTION TO STRIKE PLEA IN INTERVENTION
In their first issue, Appellants argue that the trial court abused its discretion in denying
their motion to strike Robert’s plea in intervention.
Standard of Review and Governing Law
Review of a trial court’s order on a motion to strike intervention is subject to an abuse of
discretion standard. Lerma v. Forbes, 166 S.W.3d 889, 893 (Tex. App.–El Paso 2005, pet.

2
Heston’s parents intervened seeking a declaratory judgment that the release between them and Appellants
is binding on Appellants, is final, and concludes the litigation between the parties. The trial court granted summary
judgment in Heston’s parents’ favor and issued a severance order as to their declaratory-judgment action. The
opinion related to the appeal of that case to this court in Cause Number 12-23-00140-CV issued on the same day as
the opinion in this cause.

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denied); see Breazeale v. Casteel, 4 S.W.3d 434, 436 (Tex. App.–Austin 1999, pet. denied). A
reviewing court cannot conclude that a trial court abused its discretion if, in the same
circumstances, it would have ruled differently or if the trial court committed a mere error in
judgment. Forbes, 166 S.W.3d at 893. Instead, the test is whether the trial court acted without
reference to any guiding rules or principles; in other words, whether the act was arbitrary and
unreasonable. Id.
“Any party may intervene by filing a pleading, subject to being stricken out by the court
for sufficient cause on the motion of any party.” TEX. R. CIV. P. 60. Once a motion to strike has
been filed, the burden shifts to the intervenor to show a justiciable interest in the lawsuit. In re
Union Carbide Corp., 273 S.W.3d 152, 155 (Tex. 2008); Guar. Fed. Sav. Bank v. Horseshoe
Operating Co., 793 S.W.2d 652, 657 (Tex. 1990). A party has a justiciable interest in a lawsuit,
and, thus, a right to intervene, when his interests will be affected by the litigation. Law Offices
of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.–Fort Worth 2003, no
pet.). In other words, the interest is “analogous to that essential for a party to maintain or defend
an action.” J. Fuentes Colleyville, L.P. v. A.S., 501 S.W.3d 239, 243 (Tex. App.–Fort Worth
2016, no pet.); McCord v. Watts, 777 S.W.2d 809, 811–12 (Tex. App.–Austin 1989, no writ);
see Guar. Fed. Sav. Bank, 793 S.W.2d at 657 (providing that person has a right to intervene “if
the intervenor could have brought the same action, or any part thereof, in his own name, or, if the
action had been brought against him, he would be able to defeat recovery, or some part thereof”).
The interest asserted by the intervenor may be legal or equitable, but it must not be merely
contingent or remote. Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Law Offices of Windle
Turley, P.C., 109 S.W.3d at 70. Courts review the pleadings to determine whether an intervenor
has a justiciable interest. See McCord, 777 S.W.2d at 811. If a party cannot show a justiciable
interest in the lawsuit, the trial court has sufficient cause to strike the plea in intervention. Law
Offices of Windle Turley, P.C., 109 S.W.3d at 70.
Further, even if a party has a justiciable interest, and, thus, a right to intervene in a
lawsuit, the trial court still has broad discretion to determine whether the plea in intervention
should be stricken. See id.; Zeifman v. Michels, 229 S.W.3d 460, 465 (Tex. App.–Austin 2007,
no pet.). However, a trial court abuses its discretion by striking a plea in intervention if the
intervenor (1) could have brought the same action, or any part of it, in his own name or could
have defeated recovery, or some part of it, if the action had been brought against him, (2) the

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intervention would not complicate the case by excessively multiplying the issues, and (3) the
intervention is almost essential to effectively protect the intervenor’s interest. Guar. Fed. Sav.
Bank, 793 S.W.2d at 657.
Discussion
Appellants first argue that Robert’s intervention was improper because he did not have a
justiciable interest in their wrongful death lawsuit against Heston, as he would not have been
able to defeat all or part of the recovery against Heston if the suit had been filed only against him
(Robert). More specifically, Appellants contend that there was no claim that Robert and Heston
were partners, co-conspirators, or otherwise acted in concert or simultaneously to cause
A.D.L.R.’s death. Thus, according to Appellants, Robert would be unable to defeat all or part of
any recovery against Heston had the suit been filed against Robert alone.
However, Appellants seek to cast the net of the trial court’s discretion too narrowly. An
intervenor can occupy the position of a defendant where his claims and prayer align him with the
defendant and pit him directly against the plaintiff, even if no parties assert claims against him.
See In re Ford Motor Co., 442 S.W.3d 265, 274 (Tex. 2014). Even where an intervenor has not
or could not have been sued directly, if a judgment for the plaintiff may lead to an action against
the intervenor or otherwise seriously prejudice the intervenor, the intervention is necessary to
assure a proper defense against the claim. See Jenkins v. Entergy Corp., 187 S.W.3d 785, 796
(Tex. App.–Corpus Christi 2006, pet. denied) (citing Guar. Fed Sav. Bank, 793 S.W.2d at 657).
The party must have such interest in the subject matter of the litigation as makes it necessary or
proper for him to enter the case for the preservation of that right. Jenkins, 187 S.W.3d at 796.
In the instant case, Robert was a defendant prior to the dismissal of the case against him.
Once the case against Robert was dismissed, the focus of Appellants’ allegations was on
Heston’s conduct alone. But even so, Robert’s interests potentially could have been affected by
the suit against Heston had he not intervened. Indeed, were the case against Heston to proceed to
a verdict, the court’s charge necessarily would have included a submission of Robert’s alleged
negligence and proportionate responsibility as a “settling person.” See TEX. CIV. PRAC. & REM.
CODE ANN. § 33.003(a)(3) (West 2020) (trier of fact shall determine percentage of responsibility
with respect to each person’s, including “settling person,” causing or contributing to cause in any
way harm for which recovery of damages is sought); see also id. § 33.011(5) (West 2020)
(defining “settling person” as person who has, at any time, paid or promised to pay money or

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anything of monetary value to claimant in consideration of potential liability with respect to
personal injury, property damage, death, or other harm for which recovery of damages is sought).
Robert doubtlessly is a “settling person.” See id. § 33.011(5). Thus, because Appellants
questioned the validity of the release on fraud grounds and could have sought summary judgment
on that issue, Robert had an undeniable interest in the litigation against Heston, inasmuch as the
fact finder’s potential finding of liability against Heston would require it to attribute a portion of
that responsibility, if any, to Robert. See id. § 33.003(a)(3). Accordingly, since there existed the
possibility that the release could be determined to be invalid, Robert’s potential exposure to
liability was palpable, his interests against Appellants were aligned with Heston’s, and
intervention almost was essential to effectively protect Robert’s interests. See In re Ford Motor
Co., 442 S.W.3d at 274; Guar. Fed. Sav. Bank, 793 S.W.2d at 657; Jenkins, 187 S.W.3d at 796.
Appellants next argue that Robert’s intervention was improper because it would have
injected new issues into the case which were completely unrelated to the principal lawsuit,
thereby mixing the wrongful death negligence issues with the settlement, breach of contract, and
fraudulent inducement issues and causing unnecessary confusion and complicating an already
difficult case. However, the issue of the validity of Robert’s release was disposed of by
traditional summary judgment. Thereafter, this cause was severed from the suit against Heston,
which Appellants describe in their brief as “ongoing.” Thus, unlike cases wherein courts may
seek to surmise how intervention might complicate a case, the record before us requires no such
supposition.
Because we conclude that Robert had an undeniable interest in the litigation against
Heston, his interests against Appellants were aligned with Heston’s, the intervention did not
complicate the case, and his intervention almost was essential to effectively protect his interests,
we hold that the trial court did not abuse its discretion in denying Appellants’ motion to strike
Robert’s plea in intervention. See In re Ford Motor Co., 442 S.W.3d at 274; Guar. Fed. Sav.
Bank, 793 S.W.2d at 657; Jenkins, 187 S.W.3d at 796. Appellants’ first issue is overruled.

RELEASE - WAIVER-OF-RELIANCE PROVISION
In their second issue, Appellants argue that they are not bound by the settlement
agreement and release, despite its waiver-of-reliance provision, because the terms of the release

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were “boilerplate,” and the parties did not discuss the issue of the current dispute during
negotiations.
Standard of Review
The movant for traditional summary judgment has the burden of showing that there is no
genuine issue of material fact and that she is entitled to judgment as a matter of law. See TEX. R.
CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant
who conclusively negates at least one essential element of the nonmovant’s cause of action is
entitled to summary judgment as to that cause of action. See Randall’s Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a defendant who conclusively establishes
each element of an affirmative defense is entitled to summary judgment. Id. Once the movant
establishes a right to summary judgment, the nonmovant has the burden to respond to the motion
and present to the trial court any issues that would preclude summary judgment. See City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). The only question
is whether an issue of material fact is presented. See TEX. R. CIV. P. 166a(c).
When reviewing summary judgments, we perform a de novo review of the entire record
in the light most favorable to the nonmovant, indulging every reasonable inference and resolving
any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG
Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not
required to ascertain the credibility of affiants or to determine the weight of evidence in the
affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn,
252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508
(Tex. App.–Tyler 2008, pet. denied).
Further, all theories in support of or in opposition to a motion for summary judgment
must be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court’s
order granting summary judgment does not specify the grounds relied on for its ruling, we will
affirm it if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S.,
858 S.W.2d 374, 380 (Tex. 1993).
Governing Law
Texas law encourages parties to resolve their disputes by agreement, but settlement
agreements—like all other contracts—are unenforceable if they are procured by fraud. Italian
Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331 (Tex. 2011);

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Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997). To establish such
fraudulent inducement, a party seeking to invalidate an agreement must prove that it reasonably
relied on the other party’s misrepresentations to its detriment. Int’l Bus. Machs. Corp. v. Lufkin
Indus., LLC, 573 S.W.3d 224, 228 (Tex. 2019); Italian Cowboy, 341 S.W.3d at 337 (quoting
Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009)). Because after-
the-fact protests of misrepresentation easily are lodged, parties who mutually desire to resolve all
disputes and buy complete and final peace often include provisions in their settlement
agreements expressly disclaiming any reliance on each other’s representations. See Forest Oil
Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008); see also Transcor Astra Group S.A. v.
Petrobras Am. Inc., 650 S.W.3d 462, 473 (Tex. 2022).
The law must balance society’s interest in protecting parties against fraudulently induced
promises with its interest in enabling parties to “fully and finally resolve disputes between
them.” Schlumberger, 959 S.W.2d at 179. To achieve this balance, we have held that
contractual disclaimers of reliance may be enforceable and may negate a subsequent fraudulent-
inducement claim if the disclaimer is clear, specific, and unequivocal. See Lufkin, 573 S.W.3d
at 229; Italian Cowboy, 341 S.W.3d at 336; Forest Oil, 268 S.W.3d at 60; Schlumberger, 959
S.W.2d at 179. Whether a reliance disclaimer is effective in any given case “depends on the
contract’s language and the totality of the surrounding circumstances.” Lufkin, 573 S.W.3d at
226; Forest Oil, 268 S.W.3d at 60; Schlumberger, 959 S.W.2d at 179. Specifically, courts must
consider whether:

(1) the terms of the contract were negotiated, rather than boilerplate, and during
negotiations, the parties specifically discussed the issue which has become the topic of the
subsequent dispute;

(2) the complaining party was represented by counsel;

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

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

(5) the release language was clear.

Forest Oil, 268 S.W.3d at 60. In considering these factors, our ultimate purpose is to determine
whether the contract clearly confirms that “the parties intended once and for all to resolve

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specific disputes.” Italian Cowboy, 341 S.W.3d at 335; see also Forest Oil, 268 S.W.3d at 58;
Schlumberger, 959 S.W.2d at 181.
Discussion
In the instant case, Appellants’ challenge to the trial court’s summary judgment declaring
Robert’s release to be valid relates only to their claim that the waiver-of-reliance provision 3 is
ineffective and unenforceable. As to that issue, they do not contend that they were not
represented by counsel, nor do they dispute that they dealt with Robert at “arm’s length,” that
they were not knowledgeable in business matters, or that the release language was unclear.
Instead, they argue that Robert offered no summary judgment evidence that the terms of
the contract were negotiated and that, during such negotiations, the parties specifically discussed
the issue which has become the topic of the subsequent dispute. In so doing, they point to a short
series of emails between the April 4, 2022 settlement offer and the April 13 acceptance of that
offer. Robert responds that Appellants’ counsel referenced his supposed misrepresentations in
an earlier email dated January 3, 2022. In that email, Appellants’ counsel stated as follows:

I am hoping that you or your principal will reconsider this claim, after Robert Avery’s
deposition. Many things could be said about the deposition, but two stand out. First, as Mr.
Avery well knows from being on the board, Miracle Farm is not a place for boys that have
problems paying attention in class. It is a residential ranch ministry for boys that “have
experienced complex developmental trauma that profoundly impacts them, leading to
disconnected relationships, risk‐taking behavior, poor decisions, low school performance,
and criminal behavior.” Heston was at Miracle Farm for these reasons and others, which
directly relate to the shooting of [A.D.L.R.]. Second, for 4 years, from 2015 to 2018, Heston’s
parents would not let him have the gun in their Temple home, which was only 2.6 miles, not 250
miles, from where Robert Avery lived. Clearly, they did not approve or consent to him having the
shotgun for those 4 years, at least. Attached is Plaintiffs’ Fourth Amended Petition, which has not
yet been filed in court. Much work needs to be done on this case. It may be better for my
clients’ and their family, as well as the Avery family, to resolve this case now. Of course, I
will be happy to discuss if you desire. Please let me know.

(emphasis added). Appellants’ counsel’s concluding remarks in this email undoubtedly amount
to an overture to settlement negotiations. In the statements preceding this invitation to resolve
the matter, Appellants’ counsel sets forth, on behalf of his clients, his supposition that Robert
misrepresented the reasons necessitating Heston’s residency at Miracle Farm. These reasons and
Robert’s knowledge thereof comprise the very issue which forms the basis of the parties’
subsequent dispute, i.e., Appellants’ allegations that Robert lied in his deposition and

3
Specifically, the provision states, “Claimants are not relying upon any statement or representation of the
Parties Released, or of any agent or servant of the Parties Released, but is relying upon their own judgment[.]”

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interrogatories about his knowledge of Heston’s mental conditions, drug and alcohol use/abuse,
and his criminal, reckless, and irresponsible actions. See Italian Cowboy, 341 S.W.3d at 335;
see also Forest Oil, 268 S.W.3d at 58; Schlumberger, 959 S.W.2d at 181. Appellants make no
reference to the January 3 email in their brief, despite its being Exhibit A to Robert’s motion for
summary judgment. 4
Appellants further argue that the relevant terms of the contract were boilerplate and not
negotiated. We first note that after Robert’s insurer made its settlement offer to Appellants,
Appellants’ counsel sent an email to the insurance company representative, in which he outlined
the details of a recent phone call between the two of them in which he had explained the strength
of his clients’ legal position. Moreover, while there is no evidence that the release significantly
evolved through cycles of revisions and Robert does not argue that there is anything particularly
unique about the language of the document, on its face, there appears a handwritten deletion of
some of its language with Appellants’ respective handwritten initials next to it. We conclude
that this markup of the release amounts to some evidence that the parties had the ability to
change or remove some of the contractual language, and that Appellants, in this singular
instance, did so.
Based on the foregoing, we conclude that Appellants’ assertions that there is no summary
judgment evidence supporting that (1) the terms of the contract were negotiated and (2) during
such negotiations, the parties specifically discussed the current matter of dispute are unfounded.
Having considered this evidence in the light most favorable to the nonmovant, while indulging
every reasonable inference and resolving any doubts against the motion, we conclude that the
trial court did not err in finding that there is no genuine issue of material fact as to these two
elements and that Robert is entitled to judgment as a matter of law based on a valid written
release of liability. 5 See TEX. R. CIV. P. 166a(c). Appellants’ second issue is overruled.

4
In our further discussion of Appellants’ second issue, we reference their counsel’s email to Robert’s
insurance representative memorializing their phone conversation, in which Appellants’ counsel discussed the
strengths of his clients’ legal position with the representative. Appellants’ counsel’s apparent decision not to
mention to the insurance company representative his supposition that Robert made misrepresentations during his
deposition testimony was not necessary to satisfy this element given the fact that he related this theory to Robert’s
counsel when first inviting settlement negotiations.
5
Additionally, Appellants assert in their brief that Robert violated his legal duty to tell the truth under oath
as well as a fiduciary duty to do so. They further point out that Robert failed to demonstrate that his answers in his
deposition or answers to interrogatories were truthful. The documents Appellants reference generally in their brief,
which might support their allegations that Robert made misrepresentations in his discovery responses, are not part of

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ENTITLEMENT TO RELIEF UNDER THE UNIFORM DECLARATORY JUDGMENT ACT
In their third issue, Appellants argue that the trial court erred in granting summary
judgment in Robert’s favor because the UDJA does not apply to potential tort claims, cannot be
used to interpret an earlier judgment, and cannot preempt judgment on an issue to be adjudicated
in another court.
The purpose of the UDJA is to settle and afford relief from uncertainty and insecurity
with respect to rights, status, and other legal relations. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 37.002(b) (West 2020). A declaratory judgment is appropriate only if a justiciable controversy
exists, resolvable by the declaration sought, concerning the rights and status of the parties.
Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 65–66 (Tex. App.–Houston [14th
Dist.] 2014, pet. denied); see Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995);
Russell v. Metro. Transit Auth. of Harris Cty., 343 S.W.3d 825, 833 (Tex. App.–Houston [14th
Dist.] 2011, no pet.). There must be a real and substantial controversy involving a genuine
conflict of tangible interests and not merely a theoretical dispute. Feldman, 436 S.W.3d at 65.
Among other instances in which a declaratory judgment would be proper, the Act
provides that an interested person under a written contract, or other writings constituting a
contract, may seek a determination of any question of construction or validity arising under the
instrument and may obtain a declaration of rights, status, or other legal relations thereunder. See
TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2020). A contract may be construed
either before or after a breach. See id. § 37.004(b).
However, as Appellants note, a potential defendant may not use a declaratory judgment
action to determine its potential tort liability. See Stark v. Benckenstein, 156 S.W.3d 112, 117
(Tex. App.–Beaumont 2004, pet. denied). This rule evolves from the recognition that only
plaintiffs may sue for torts. Id.; see Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 767
(Tex. App.–El Paso 1993, writ denied). In a contractual relationship, any party may breach the
contract, and, thus, any party may sue for the breach and seek a judicial determination of
contractual rights. Stark, 156 S.W.3d at 117. Since a release is a contract, a party is entitled to
request a determination of questions of construction or validity arising under the instrument and

the record on appeal. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.–Dallas 2005, pet.
denied) (appellate court cannot consider documents not formally included in record on appeal).

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to obtain a declaration of rights, status, or other legal relations thereunder. See TEX. CIV. PRAC.
& REM. CODE ANN. § 37.004(a); Stark, 156 S.W.3d at 117 (citing Swanson, 959 S.W.2d at 178);
see also Bennett v. Zucker, No. 05-20-00488-CV, 2021 WL 3701374, at *4 (Tex. App.–Dallas
Aug. 20, 2021, pet. denied) (mem. op.); Hartman, 863 S.W.2d at 767.
In the instant case, Robert sought a declaration that the settlement agreement and release
between him and Appellants is valid, enforceable, and binding upon the parties. 6 As
demonstrated by his pleadings and his motion for summary judgment, Robert did not seek a
potential tort liability determination. See, e.g., Stark, 156 S.W.3d at 117. Instead, Robert sought
a judicial determination of his rights under a contract. See id.; Crossley v. Staley, 988 S.W.2d
791, 797 (Tex. App.–Amarillo 1999, orig. proceeding).
Appellants further argue that the UDJA cannot preempt judgment on an issue to be
adjudicated in another court. Specifically, Appellants argue that despite the fact that Robert’s
plea in intervention by which he sought declaratory judgment was filed before they filed their
fraud action against him in Washington County on November 22, 2022, the matter should be
adjudicated in Washington County because Robert’s declaratory judgment action “did not legally
exist until April 27, 2023, when it was severed from Appellants’ original lawsuit.” We disagree.
The very caselaw on which Appellants rely contradicts their argument. “As a general rule, an
action for declaratory judgment will not be entertained if there is pending, at the time it is filed,
another action or proceeding between the same parties and in which may be adjudicated the
issues involved in the declaratory action.” Tex. Liquor Control Bd. v. Canyon Creek Land
Corp., 456 S.W.2d 891, 895 (Tex. 1970) (emphasis added). Because Robert’s declaratory
judgment action was filed by way of intervention on October 13, 2022, more than one month
before Appellants filed suit in Washington County, we conclude that the Washington County suit
does not preempt Robert’s preexisting declaratory judgment action.

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This is the relief Robert requested in his motion for summary judgment, which the trial court granted, and
which was narrower than the relief Robert set forth in his pleadings. There, Robert requested that the trial court
construe the settlement and release instrument and render a declaratory judgment that the partial take-nothing
judgment and release are binding upon Plaintiffs, and are final, and conclude the litigation between the parties once
and for all. We limit our discussion to the trial court’s ability to render the declaratory relief raised in Robert’s
motion for summary judgment. See Muston v. Nueces Cty. Sheriff’s Dept., 122 S.W.3d 469, 471 (Tex. App.–
Corpus Christi 2003, no pet.) (trial court cannot grant more relief than was requested by motion for summary
judgment). As such, we do not address Appellants’ argument that the UDJA cannot be used to interpret an earlier
judgment since the trial court’s summary judgment related only to the settlement and release. See id.

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Based on the foregoing, we hold that Robert was entitled to pursue relief under the UDJA
to seek a declaration as to the construction and validity of the settlement agreement and release
between him and Appellants and that his declaratory judgment action was not preempted by
Appellants’ suit in Washington County. Appellants’ third issue is overruled.

ROBERT’S SUMMARY JUDGMENT EVIDENCE
In their fourth issue, Appellants argue that the trial court abused its discretion by
accepting and considering Robert’s summary judgment evidence because none of it was
authenticated until the day before the hearing on his motion.
The same evidentiary standards which apply in trials also control the admissibility of
evidence in summary-judgment proceedings. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163
(Tex. 2018); United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). But the rules of
error preservation also apply. Seim, 551 S.W.3d at 164; see Mansions in the Forest, L.P. v.
Montgomery Cty., 365 S.W.3d 314, 317–18 (Tex. 2012). To preserve a complaint for appellate
review, a party must (1) complain to the trial court by way of “a timely request, objection, or
motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion.”
Seim, 551 S.W.3d at 164; see TEX. R. APP. P. 33.1(a). And if purported summary-judgment
evidence presents a defect in “form,” that defect cannot provide grounds for reversal unless
specifically pointed out by objection by an opposing party, and where the offending party had an
opportunity to correct the objectionable matter but refused to do so. See TEX. R. CIV. P. 166a(f).
An objection to the authentication of summary judgment evidence is an objection to the
form rather than the substance of the evidence. See Commint Tech. Servs., Inc. v. Quickel, 314
S.W.3d 646, 651 (Tex. App.–Houston [14th Dist.] 2010, no pet.). Since Appellants’ lack-of-
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, Appellants never
secured a ruling on their lack-of-authentication objection they now seek to raise on appeal.
Accordingly, we hold that Appellants’ objections were not preserved for review. See TEX. R.
APP. P. 33.1(a); Quickel, 314 S.W.3d at 651. Moreover, when Appellants raised the objection to
the form of the summary judgment evidence, Robert’s counsel addressed the objection in his
reply, which included an affidavit to authenticate the summary judgment proof. Because Robert
corrected the authentication issue Appellants raised, we hold that these form defects do not

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

DISPOSITION
Having overruled Appellants’ first, second, third, and fourth issues, we affirm the trial
court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 31, 2023

NO. 12-23-00112-CV

REBECCA DE LA ROSA AND CESAR DE LA ROSA,
Appellants
V.
HESTON HAYES AVERY AND ROBERT D. AVERY,
Appellees

Appeal from the 273rd District Court
of Shelby County, Texas (Tr.Ct.No. 20CV35415A)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the
judgment of the court below be in all things affirmed, that all cost of this appeal are assessed
against Appellants, REBECCA DE LA ROSA AND CESAR DE LA ROSA, and that this
decision be certified to the court below for observance.

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