in Re Paul Earl Dorsey

• Court: Court of Appeals of Texas
• Decided: June 29, 2005
• Docket: 10-05-00252-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00252-CV

In re Paul Earl Dorsey

Original Proceeding

MEMORANDUM  Opinion

Relator, Paul Earl Dorsey, filed a writ of mandamus requesting that we order the district court clerk to transfer his Cause No. 2002-831-3 to Coryell County.  Cause No. 2002-831-3 has already been transferred to Coryell County.  Thus, we dismiss the petition for writ of mandamus as moot.

Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998); see also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 6; Tex. Gov’t Code Ann. §§ 51.207(b), 51.901 (Vernon 2005).  Under these circumstances, we suspend the rules and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Petition dismissed

Opinion delivered and filed June 29, 2005

[OT06]

ansform: uppercase'>Summary Judgment.  In Appellants’ first two issues, they complain concerning the trial court’s rulings on motions for summary judgment. 

      In a traditional summary-judgment motion, “[t]he judgment sought shall be rendered forthwith if” the summary-judgment evidence “show[s] that . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law . . . .”  Tex. R. Civ. P. 166a(c).  In a no-evidence summary-judgment motion, “[t]he court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.”  Id. 166a(i).  If the non-movant does not file a response to a no-evidence motion, the trial court must grant the motion.  Id.; Springer v. Am. Zurich Ins. Co., 115 S.W.3d 582, 584-85 (Tex. App.—Waco 2003, pet. denied); Jimenez v. Citifinancial Mortgage Co., Inc., 169 S.W.3d 423, 424 (Tex. App.—El Paso 2005, no pet.); Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 724 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  When “the trial court’s order granting summary judgment does not specify the basis for the ruling, we must affirm the trial court’s judgment if any of the theories advanced are meritorious.”  W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); accord Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989). 

      Appellees’ Motions.  In Appellants’ first issue, they contend that the trial court erred in granting Appellees’ motion and supplemental motion for summary judgment. 

      Original Motion.  Appellants argue that Appellees’ original motion for summary judgment “is essentially a Motion For No Evidence Summary Judgment.”  (Br. at 5.)  Appellees’ original motion, however, is a hybrid motion combining a traditional summary-judgment ground and several no-evidence summary-judgment grounds.  See Tex. R. Civ. P. 166a(c), (i).  In the motion’s traditional summary-judgment ground, Appellees sought to establish that Lydia Walton divested herself of all interest in the property by deed to one of Appellees’ predecessors in title.  Among the no-evidence grounds in Appellees’ original motion was that there was no evidence that Lydia Walton retained any interest in the property at her death.

      Appellants appear to address at least some of Appellees’ no-evidence grounds: Appellants point to evidence that Walton had an interest in the property during her lifetime.  Appellants appear, however, to address Appellees’ traditional ground only to the extent of arguing that Appellees’ summary-judgment evidence constituted inadmissible hearsay evidence.  See Tex. R. Evid. 801(d), 802.  We assume without deciding that Appellants preserved that complaint.^[1] 

      “We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.”  In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam) (termination of parent-child relationship); see City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995).  “The test for abuse of discretion is ‘whether the court acted without reference to any guiding rules and principles’ or, stated another way, whether its decision was arbitrary or unreasonable.”  City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)). 

      The evidence of which Appellants complain is a deed concerning interests in the property among Lydia Walton’s children.  The deed recites:

      The land herein conveyed and the interest herein, is all of the interest which we inherited from our deceased father H.‌[ ]Walton.  We have heretofore conveyed by our separate deeds the said interest to J.H. Walton, our brother, and the only other child of H.[ ]Walton, deceased by deed . . . , but the deeds and the field notes therein were defective, as well as the acknowledgments, and this deed is made for further consi[d]eration of correcting our former deeds.

      Said former deeds recited that we were conveying our interest in and to 62½ acres of land, which 62½ acres was described as being off of the 100 acre tract and the north end thereof, heretofore described as first tract[.] The grantors herein, together with the grantee, had theretofore had a verbal partition with our mother Lyda E.[ ]Walton, our mother taking 37½ acres off of the south end of said 100 acre tract and all of the 25 acres hereinbefore described as the second tract to make her 62½ acres of[ ]land.  The partition was actually effected and accepted by all parties hereto and our mother and we each went into actual possession, and thereafter our mother conveyed her 62½ acres to the grantee herein . . . .  Such conveyances were intended to and did actually convey all of our interest and all[ ]of our mother’s interest in and to the whole of said tracts herein described, being a total of 125 acres, so that the grantee herein owns the whole of said 125 acres of land.

(C.R. at 9.)   

      Appellees argue that the evidence falls into at least two exceptions to the hearsay rule, those for statements in documents affecting an interest in property and for statements in ancient documents.  See Tex. R. Evid. 803(15)-(16).

      Appellants, first, argued in the trial court and argue on appeal that the evidence did not fall within the exception for documents affecting an interest in property.  The Rules of Evidence create an exception to the hearsay rule for:

[a] statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

Tex. R. Evid. 803(15).  Appellants argue that “the stated purpose of that deed was to correct the field notes and acknowledgments in previous deeds,” and that the deed’s recitations concerning Lydia Walton’s interest in the property were not relevant to that purpose.  (Br. at 10.)  It is precisely in connection with correction of the acknowledgments in previous deeds, so as to reflect that Lydia Walton had conveyed all of her interest in the property, that the deed makes the statements of which Appellants complain.  Nor do Appellants contend that dealings with the property since the deed was made have been inconsistent with the truth of the statement or the purport of the deed, and we do not see such dealings in the record.

      Appellees also argue that the evidence falls within the hearsay exception for ancient documents.  The Rules of Evidence except from the hearsay rule “[s]tatements in a document in existence twenty years or more the authenticity of which is established.”  Tex. R. Evid. 803(16); see id. 901(b)(8) (authentication); Zobel v. Slim, 576 S.W.2d 362, 365 (Tex. 1978); Aguillera v. John G. & Marie Stella Kenedy Mem’l Found., 162 S.W.3d 689, 694-95 (Tex. App.—Corpus Christi 2005, pet. denied).  Appellants did not argue against the ancient-documents exception in the trial court, but on appeal “Appellants contend that it is now too late to raise a specific hearsay exception not raised at the trial level.”  (Reply Br. at 3.)  However, “we must affirm on the basis of any legal theory supported by the record.”  Dueitt v. Arrowhead Lakes Prop. Owners, Inc., 180 S.W.3d 733, 737 (Tex. App.—Waco 2005, pet. denied); see Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002); Sims v. Haggard, 162 Tex. 307, 313, 346 S.W.2d 110, 114 (1961).  Appellees offered a certified copy of the deed recorded for over sixty years.  The record supports Appellees’ ancient-documents theory of admissibility.

      Appellants also argue: “All hearsay exceptions require a showing of trustworthiness.  Even on appeal, there has been no showing of trustworthiness relative to the statement concerning oral partition in the 1941 deed.”  (Reply Br. at 3 (citing Robinson v. Harkins & Co., 711 S.W.2d 619, 621 (Tex. 1986)).)  Rule 803(16) generally “embod[ies] prior Texas law.”  2 Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot, Texas Practice: Guide to the Texas Rules of Evidence § 803.21 (3d ed. 2002).  Under that law’s “well-recognized exception to the hearsay rule, the recitals in an ancient document are admissible as evidence of the facts recited, provided that the instrument is over thirty” (now twenty) “years old, comes from proper custody, and is not suspicious in appearance.”  Zobel, 576 S.W.2d at 365; see Tex. R. Evid. 803(16); Goode et al. § 901.10, at 288; 1A Roy R. Ray, Texas Practice: Texas Law of Evidence; Civil and Criminal §§ 1371-76 (3d ed. 1980).  “[T]he justification” for the exception is in “part circumstantial indicia of trustworthiness.  . . . .  Fraud and forgery are unlikely to be perpetrated so patiently, to bear fruit so many years after a document’s creation.  Fair appearance and proper location, therefore, are sufficient additional circumstances to justify admissibility of an ancient document.”  Goode et al. § 901.10, at 288.  Appellees’ summary-judgment evidence included a certified copy of a recorded deed located in the deed records.  Appellants do not point to, and we do not see, anything suspicious in the deed’s appearance.  The Rules of Evidence require no further showing of trustworthiness.

      Since the trial court would not have abused its discretion in overruling Appellants’ hearsay objection on either of Appellees’ hearsay-exception theories, the trial court would not have erred in overruling the objection. 

      Considering the evidence of which Appellants complain, the summary-judgment evidence establishes that after partition of the property Lydia Walton divested herself of all interest in the property during her life. 

      The trial court did not state the ground on which it granted summary judgment.  Finding Appellees’ traditional ground sufficient, we do not reach Appellants’ arguments concerning the no-evidence grounds in Appellees’ original motion.

      Supplemental Motion.  Appellees’ supplemental motion states that Appellants’ second amended petition added a cause of action for slander of title, and joined Watchtower’s successors in title, and that the supplemental motion was filed in response thereto.  The supplemental motion contended that there was no evidence of slander of title and no evidence as to any claim with respect to the new defendants.  The record does not contain a response by Appellants to the supplemental motion.  The trial court would not have erred in granting Appellees’ supplemental motion as to Appellants’ slander-of-title claim and as to the new defendants. 

      The trial court did not err in granting Appellees’ motions for summary judgment.  We overrule Appellants’ first issue.

      Appellants’ Motion.  In Appellants’ second issue, they contend that the trial court erred in overruling their motion for summary judgment.  Appellants argue that there was no admissible evidence of a partition.  For the reasons stated above, Appellees’ summary-judgment evidence of a partition was admissible and probative.  The trial court did not err in implicitly overruling Appellants’ motion.  We overrule Appellants’ second issue.

      Attorney’s Fees.  In Appellants’ third issue, they contend that the trial court erred in implicitly denying their request for attorney’s fees. 

      “The appellant’s brief must . . . contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1, id. (h).  In “appeals in civil cases, . . . failure to advance legal analysis, legal citations, and appropriate references to the record will serve as the foundation for waiver of such complaints on appeal.”  In re Rose, 144 S.W.3d 661, 676 (Tex. Rev. Trib.), aff’d, 48 Tex. Sup. Ct. J. 104 (Nov. 5, 2004); e.g., Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); see Cathey v. Meyer, 115 S.W.3d 644, 656 (Tex. App.—Waco 2003), aff’d in part and rev’d in part on other grounds, 167 S.W.3d 327 (Tex. 2005) (per curiam).

      Appellants do not argue attorney’s fees.  Appellants’ third issue is inadequately briefed.  We overrule Appellants’ third issue.

      CONCLUSION.  Having overruled Appellants’ issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

(Justice Vance concurs in the judgment.)

Affirmed

Opinion delivered and filed January 10, 2007

[CV06]

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[1]  “As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the trial court . . . ruled on the request, objection, or motion, either expressly or implicitly . . . .”  Tex. R. App. P. 33.1(a).  “Under our procedural rules, the failure to raise a complaint at trial . . . waives review of that complaint on appeal.”  In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003), cert. denied sub nom. Dossey v. Tex. Dep’t of Prot. & Reg. Servs., 541 U.S. 945 (2004) (termination of parent-child relationship); accord Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 251 (Tex. 2004); see Brooks v. Northglen Ass’n, 141 S.W.3d 158, 163 (Tex. 2004).  “[T]he granting of a summary-judgment motion does not necessarily provide an implicit ruling that either sustains or overrules objections to the summary-judgment evidence.”  Allen v. Albin, 97 S.W.3d 655, 663 (Tex. App.—Waco 2002, no pet.).  “[F]or there to be an implicit ruling, there must be some indication that the trial court ruled on the objections in the record or in the summary judgment itself, other than the mere granting of the summary judgment.”  Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.).  “[T]he better practice is for the trial court to disclose, in writing, its rulings on all objections to summary-judgment evidence at or before the time it enters the order granting or denying summary judgment.”  Allen at 663 (quoting Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—Houston [14th Dist.] 2000, pet. denied)).

            The record does not appear to contain a ruling on Appellants’ objection.  The judgment recites that the trial court “considered” Appellants’ response to Watchtower’s motion and Appellants’ objections, and that the court grants Watchtower’s motion; but does not expressly rule on Appellants’ motion or objections.  (Supp. C.R. at 6.)