San Sebastion Realty Co., Inc. v. Roel Huerta and Rosa M. Huerta

• Court: Court of Appeals of Texas
• Decided: February 19, 2015
• Docket: 14-14-00819-CV
• Status: Published

Opinion

ACCEPTED 14-14-00819-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 2/19/2015 3:03:13 PM CHRISTOPHER PRINE CLERK

NO. 14-14-00819CV _________________ FILED IN IN THE 14th COURT OF APPEALS HOUSTON, TEXAS COURT OF APPEALS 2/19/2015 3:03:13 PM FOR THE CHRISTOPHER A. PRINE FOURTEENTH COURT OF APPEALS DISTRICT Clerk OF TEXAS AT HOUSTON _____________________________________

SAN SEBASTIAN REALTY CO., INC., Appellant

v.

ROEL HUERTA, and ROSA M. HUERTA, Appellees _____________________________________

Appealed from Cause No. 1043170; In the County Civil Court at Law No. Three (3). Harris County, Texas

_______________________

BRIEF FOR APPELLANT _______________________

James L. Supkis Texas Bar No. 19516800 Attorney for Appellant P.O. Box 58243 Houston, TX 77258 (281) 723-9964 (713) 645-6618 (fax)

ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL

Trial and Appellate Counsel:

James L. Supkis P.O. Box 58243 Houston, TX 77258 (281) 723-9964 (713) 645-9138 (fax)

Roel Huerta, and Rosa M. Huerta, Appellees

Mark E. Lewis Texas Bar No. 12299100 3730 Kirby Drive, Suite 1030 Houston, TX 77098 (713) 936-9285 (832) 916-2400 (fax)

i RELATED CASE(S)

A related case is Cause No. 2014-18363; Richard Nichols v. Rosa Huerta; In

the District Court, 164th Judicial District of Harris County, Texas.

ii TABLE OF CONTENTS

Identity of Parties and Counsel …. i

Related Case(s) …. ii

Index of Authorities …. vi

Note on Record References …. x

Statement of the Case …. 1

Statement Regarding Oral Argument …. 4

Points of Error Presented for Review …. 5

Statement of Facts …. 5

Summary of the Argument …. 10

Argument …. 12

POINT OF ERROR I: THE TRIAL COURT ERRED IN GRANTING THE APPELLEES’ OBJECTIONS TO APPELLANT’S SUMMARY JUDGMENT EVIDENCE. …. 12

A. All objections except as to the first affidavit of Gene Surrency were waived by the October 2 summary judgment. …. 12

B. Appellees’ two December Motions to Modify Judgment, and for a Ruling on Objections, and 29 and 31 December letters requesting that the trial court vacate its 2 October final judgment and issue a new summary judgment were untimely. …. 15

1. Appellees’ December 3rd Motion to Modify Judgment is governed by Texas Rule of Civil Procedure 329b; L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996). …. 15 iii Table of Contents (cont’d.)

2. Appellees’ December 29 and 31, 2014 letters requesting the trial court to vacate and render a new judgment were not proper/ timely made due to Texas Rule of Civil Procedure 329b; L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996). …. 16

3. The trial court’s December Ruling on the Appellees’ objections was untimely because it was issued more than 2 months after the first summary judgment. …. 17

4. Appellees’ Motion for Ruling on Appellees’ Objections to Appellant’s Summary Judgment Evidence, filed on December 3, was an untimely request for Conclusions of Law per Texas Rule of Civil Procedure 296. …. 19

C. The trial court’s December 16 Ruling on Objections to Appellant’s Summary Judgment Evidence and January 6 Order Granting Appellees’ Motion for Summary Judgment and Final Judgment were an abuse of discretion. …. 20

D. The Appellees’ Objections are not valid. …. 21

1. Objections to Appellant’s Motion for Summary Judgment evidence are not valid. …. 21

a. May 7 Affidavit of Mr. Surrency …. 21

b. Letter to Mr. and Mrs. Huerta from Mr. Nichols’ attorney …. 24

c. Mr. Nichols’ check sent as earnest money …. 24

2. Objections to Appellant’s Reply to Appellees’ iv Table of Contents (cont’d.)

Cross-Motion for Summary Judgment evidence are not valid. …. 25

a. June 6 Affidavit of Mr. Surrency …. 25

b. Letter to Mr. and Mrs. Huerta from Mr. Nichols’ attorney …. 27

c. Mr. Nichols’ check sent as earnest money …. 27

POINT OF ERROR II: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEES. …. 28

A. Summary judgment standard of review …. 28

B. If Appellees’ objections to evidence are determined to be invalid, then there is controverting evidence. …. 30

C. If Appellees’ objections are determined to be valid, then Appellee’s summary judgment evidence created material issues of fact. …. 31

POINT OF ERROR III: THE TRIAL COURT ERRED BY DENYING THE APPELLANT DUE PROCESS. …. 32

A. Due process requires meaningful notice, a fair trial, and a fair and impartial judge. …. 32

B. The Court considered two requests from the Appellees that were letters, not motions. …. 33

Prayer …. 37

Certificate of Compliance …. 38

Certificate of Service …. 38

Appendix …. attached v INDEX OF AUTHORITIES

TEXAS STATUTES

Texas Code of Judicial Conduct, Canon 3 (B) (8) … 34

Texas Rules

Tex. R. App. P. 33.1 (a) (2) (A) …. 13

Tex. R. Civ. P. 166a (c) …. 30

Tex. R. Civ. P. 166a (f) …. 14

Tex. R. Civ. P. 296 …. 20, 33

Tex. R. Civ. P. 329b .… 16, 33

Tex. R. Evid. 103 (a) (1) …. 25

Tex. R. Evid. 801 (d) …. 22

Tex. R. Evid. 801(e) (2) …. 23, 24

Tex. R. Evid. 801 (e) (2) (D) …. 26

Tex. R. Evid. 803 (6) …. 24, 27

CASES

U.S. Supreme Court

Fuentes v. Shevin, 407 U.S. 67, 80 (1972) …. 34

In re Murchison, 349 U.S. 133 (1955) …. 34

Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988) …. 34, 37

vi Index of Authorities (cont’d.)

Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84 (1988) …. 32, 36

Tumey v. Ohio, 273 U.S. 510 (1927) …. 34

Ward v. Village of Monroeville, 409 U.S. 57 (1972) …. 34

Wolff v. McDonnell, 418 U.S. 539 (1974) …. 32

Texas Supreme Court

Beaumont Bank, N.A. v.Buller, 806 S.W.2d 223, 226 (Tex. 1991) …. 12, 20

City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995) …. 12, 20

Farmer v. Ben E. Keith Co., 907 S.W.2d 495 (Tex. 1995) …. 15

Huckabee v. Time Warner Entertainment Co., L.P., 19 S.W.3d 413 (Tex. 2000). …. 30

In re J.F.C., 96 S.W.3d 256, 300 (Tex. 2002), (Schneider, J., dissenting) …. 32

L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996) …. iii, iv

Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex. 1980) …. 25

Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) …. (n. 9) 36

Valence Operating Company v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) …. 12, 28

Texas Courts of Appeals

Dolcefino v. Kelley; 19 S.W.3d 906, 925 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) …. 14, 17

vii Index of Authorities (cont’d.)

Eaton Metal Products v. U.S. Denro Steels, No. 14-09-00757-CV (Tex. App.-Houston [14th Dist.] 2010, n.w.h.) (mem. op., not designated for publication) …. 17

Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 295 (Tex. App.-Dallas 2009, no pet.) …. 15, 17

GT & MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257-58 (Tex. App.-Houston [1st Dist.] 1991, writ denied) …. 24, 27

Hernandez v. Lopez, 288 S.W.3d 180, 184-85 (Tex. App.–Houston [1st Dist.] 2009, no pet.) …. 19, 36

Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879 (Tex. App. Dallas 2006, no pet.) …. 19

Mason v. State, 771 S.W.2d 561 (Tex. Cr. App. 1989, no writ) …. 37

Metzger v. Sebek, 892 S.W.2d 20, 37-8 (Tex. App.-Houston [1st Dist.] 1994, no pet.) …. 32

Norton v. State, 755 S.W.2d 522 (Tex. App.-Houston [1st Dist.] 1988, writ ref’d) …. 37

Parkway Dental Associates, P.A. v. Ho and Huang Properties, L.P., 391 S.W.3d 596, 603-04 (Tex. App.-Houston [14th Dist.] 2012, no pet.) …. 13, 29

Petroleum Analyzer Company v. Olstowski, 01-09-00076-CV (Tex. App.-Houston [1st Dist.] 2010, n.w.h.) (mem. op., not designated for publication) …. 25

Rosas v. State, 76 S.W.3d (Tex. App.-Houston [1st Dist.] 2002, no writ) …. 37

SSP Partners v. Gladstrong Investments (USA) Corporation, 169 S.W.3d 27, 34 (Tex. App.-Corpus Christi-Edinburg 2005, pet. granted) …. 13

viii Index of Authorities (cont’d.)

Trevino v. Brookhill Capital Resources, Inc., 782 S.W.2d 279, 281 (Tex. App.-Houston [1st Dist.] 1989, writ denied) …. (n. 5) 22

Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.- San Antonio, 2000, no pet.) …. 14

WMC Mort. Corp. v. Starkey, 200 S.W.3d 749, 51 (Tex. App.- Dallas 2006, pet. denied) …. 15

Wolfe v. Devon Energy Production Company, 382 S.W.3d 434, 448 (Tex. App.-Waco 2012, pet. filed) …. 17

ix NOTE ON RECORD REFERENCES

There is an original Clerk’s record, dated December 1, 2014; this is

referenced as C.R. In addition, there is a supplement dated January 7, 2014, which

is referred to as 1 Suppl. There is a second supplement dated February 5, 2015,

which is referred to as 2 Suppl. Finally, there is a third supplement, dated February

11, 2015; this is referenced as 3 Suppl.

The Reporter’s Record is referred to as R.R.

All of these files are on the cd in the envelope marked 13 February 2015.

x NO. 14-14-00819CV _________________

IN THE COURT OF APPEALS FOR THE FOURTEENTH COURT OF APPEALS DISTRICT OF TEXAS AT HOUSTON _____________________________________

ROEL HUERTA, and ROSA M. HUERTA, Appellees _____________________________________

Appealed from Cause No. 1043170; In the County Civil Court at Law No. Three (3). Harris County, Texas

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

This is a suit for damages by a real estate broker based on two contracts: a

commission contract, and a lease agreement. C.R. at 4. Both parties agreed that the

Appellant’s sales commission was earned per the commission contract, but

disagreed about whether it was payable per the lease. C.R. at 68. Both parties

1 moved for summary judgment. C.R. at 15, 68. The trial court granted summary

judgment in favor of the Appellees (C.R. at 196), and the Appellant filed a Notice

of Appeal (C.R. at 200), and then a Motion for New Trial (C.R. at 202).

Over 30 days after the summary judgment, the Appellees filed a motion to

modify the summary judgment to include a statement that their objections were

sustained (1 Suppl. at 4), and a motion for a ruling on Appellees’ objections to

Appellant’s summary judgment evidence (1 Suppl. at 6). On December 16, 2014,

the last day of plenary jurisdiction, the trial court issued a one sentence ruling

stating that all of Appellees’ objections to the Appellant’s summary judgment

evidence were sustained. 1 Suppl. at 13.

Immediately prior to the 2015-New Year’s holiday, and the weekend

following, the Appellees’ counsel wrote two letters to the trial court (on December

29, and 31) (2 Suppl. at 8, 14), asking Judge Storey to vacate her earlier summary

judgment, and issue a new judgment containing the statement that all of Appellees’

objections to the Appellant’s motion for summary judgment were sustained. The

justification given by the Appellees for the new judgment was to attempt to defeat

Appellant’s arguments on appeal. Appellant’s counsel received the December 29

and 31 2014 letters on Tuesday, January 6, 2015. That same day, Appellant’s

counsel wrote and filed a letter response that was too late by about six hours. 2

Suppl. at 16. On Tuesday morning, without a written motion, and without a hearing

2 or submission date, the trial court granted the Appellees’ request, and signed an

order vacating its earlier summary judgment, and issuing the Appellees’ proposed

new summary judgment. 2 Suppl. at 19.

3 STATEMENT REGARDING ORAL ARGUMENT

This is a case where due process was violated.1 Months after final judgment

was entered, and after Appellant’s motion for new trial was overruled by operation

of law, Appellees’ counsel contacted the trial court by sending two letters through

the mail, not a filed motion, and presented “proof” to Judge Storey. 2 Suppl. at 8,

14. Based upon that “proof,” counsel asked for and received relief in the form of a

vacated judgment and entry of a new judgment (2 Suppl. at 19) without a

submission date nor a hearing date. These events occurred at or over the New

Year’s holiday weekend. Appellant’s right to a reasonable opportunity to be heard

before an impartial judge was denied. Appellees’ “proof” and argument clearly

placed Judge Storey into the role of an advocate against Appellant because the

purpose of the January 6, 2015-judgment was to defeat Appellant’s argument on

appeal. Appellant’s remedy on appeal for the denial of due process creates issues

of recusal upon remand, and a request for a mandate that Judge Storey recuse

herself upon remand.

1 Other grounds for reversal exist. However, counsel does not believe that oral argument is necessary on those other grounds for reversal. 4 POINTS OF ERROR PRESENTED FOR REVIEW

POINT OF ERROR I: THE TRIAL COURT ERRED IN GRANTING THE APPELLEES’ SUMMARY JUDGMENT OBJECTIONS TO APPELLANT’S EVIDENCE.

POINT OF ERROR II: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEES.

POINT OF ERROR III: THE TRIAL COURT ERRED BY DENYING THE APPELLANT DUE PROCESS.

STATEMENT OF FACTS

At all times material to this action, the Plaintiff/Appellant was (and is

currently) duly licensed as a real estate broker by the Texas Real Estate

Commission. C.R. at 15, 26, 33, 147. On or about November 30, 2011, Appellant

and the Appellees made a written contract in Houston, Texas, styled as

“Commercial Real Estate Listing Agreement”. Id. The Appellant agreed to render

the usual services of a real estate broker in procuring a buyer for the Appellees’

real property, located in Harris County, Texas, (TR 2A BLK 18, PARK PLACE

VILLA, commonly known as 8304 Park Place Boulevard, Houston, TX 77017),

according to certain terms and conditions specified in the contract. Appellees

agreed that the Appellant would be their sole and exclusive agent to sell the

property, and would have the sole and exclusive right and authority to sell the

property.

5 According to the Listing Agreement, the Appellant was to receive a fee of

six percent (6%) of the selling price when:

(1) Seller sells, exchanges, or agrees to sell … the Property to anyone at any price on any terms;

(2) Broker … procures a buyer ready, willing, and able to buy all or part of the Property at the Listing Price or at any other price acceptable to Seller; [or]

(3) Seller grants or agrees to grant to another person an option to purchase all or part of the Property.

The Listing Agreement also states:

If, during this Listing, Broker procures a tenant to lease all or part of the Property and Seller agrees to lease all or part of the Property to tenant, Seller will pay Broker at the time the lease is executed [a fee of 6% of all base rents to be paid over the term of the lease]. If, during the term of the lease, the tenant agrees to purchase all or part of the Property, Seller will pay Broker [a fee of 6% of the sales price].

Finally, the Listing Agreement provides that “all Sellers executing this Listing are

jointly and severally liable for the performance of all its terms”.

On or about November 7, 2012, the Appellees, represented by the Appellant,

executed a “Commercial Lease” of their real property described above, to Richard

Nichols, as the tenant. C.R. at 43, 156. The Commercial Lease provides for Mr.

Nichols to have an option to purchase the property at a price of $125,000.00.

Mr. Nichols, through his attorney, gave notice to the Appellees of his

intent to exercise the option provided in the Lease, and purchase the property, on

or about July 17, 2013. C.R. at 61, 134. He later sent the Appellees a check in the 6 amount of $1,000.00 as earnest money, which was endorsed, and negotiated. C.R.

at 62, 140.

On or about November 4, 2013, by certified mail, the Appellant, through

its attorney, presented a claim for its broker’s fee to the Appellees for payment.

The Appellees, however, have failed and refused to compensate the Appellant

according to the Listing Agreement (and have refused to convey the property to

Mr. Nichols). C.R. at 16, 17, 26.

On January 27, 2014, the Appellant filed an Original Petition alleging the

Appellees’ breach of the Listing Agreement, and requested their damages and

attorney’s fees. C.R. at 4. On May 9, 2014, the Appellant filed a traditional motion

for summary judgment, which was set for submission on June 6. C.R. at 15. The

Appellees filed a response, and also a cross-motion for no-evidence summary

judgment. C.R. at 68. The Appellees’ response/cross motion had controverting

summary judgment evidence attached to it. One affidavit was sworn to by Mrs.

Rosa Huerta (C.R. at 81) where she admitted to the Listing agreement with the

Appellant as well as the lease agreement with Mr. Nichols. Mrs. Huerta also

admitted that she knew, independently, of Mr. Nichols’ exercise of the option to

purchase, and the letter from Mr. Nichols’ attorney sent in strict compliance with

the lease. Mrs. Huerta admitted to wrongfully applying Mr. Nichols’ earnest

money check as rent. Lastly, Mrs. Huerta admitted that she had not sold the

7 property to Mr. Nichols from July 2013 to July 31, 2014; a period of more than one

year.2 Appellees’ set their cross motion for summary judgment for submission on

June 20, 2014. C.R. at 68. The submissions were rescheduled to August 22, 2014

at the request of the court.

Meanwhile, the case was set for trial for the week of November 3. Counsel

for the Appellant was notified that mediation was ordered for this case. Appellant

then filed a motion on September 30 requesting to avoid the requirement for

mediation, in that summary judgment motions had been filed, but not ruled on.

C.R. at 193. On October 2, the trial court granted the Appellees’ motion for no-

evidence summary judgment (C.R. at 196), and denied the Appellant’s motion

(C.R. at 199). The judgment in favor of the Appellees made no mention of

objections made by the Appellees against the Appellant’s evidence, included in the

Appellant’s motion for summary judgment, and in response to the Appellees’

cross-motion for summary judgment.

The Appellant filed a Notice of Appeal on October 10, 2014 (C.R. at 200)

and a Motion for New Trial on October 29, 2014 (C.R. at 202). On December 3,

2014 the Appellees filed a Motion to Modify Judgment (1 Suppl. at 6) and for

Ruling on the Appellees’/Defendants’ Objections to Plaintiff’s (Appellant’s

Summary Judgment Evidence, to include, among other changes, a statement that

2 The property has not sold as of the filing of this brief. See Appellees’ counsel’s letters dated December 29, and 31, 2014 with attachments. 8 the Appellees’ objections had been sustained (1 Suppl. at 4). These motions were

set for a hearing on December 10, 2014. That hearing was recorded. On December

16, 2014 the trial court signed a Ruling on Objections to Plaintiff’s Summary

Judgment Evidence, which states only that all of Appellees’ objections had been

sustained. 1 Suppl. at 13. The trial court did not note which of the two Appellees’

motions came on for consideration or which one was granted.

On December 29 and 31, 2014, the Appellees’ counsel wrote two letters to

the court. 2 Suppl. at 8, 14. In those two letters counsel provided and discussed

proof of Appellant’s planned argument on appeal. Counsel asked that the trial

judge vacate its October 2, 2014-summary judgment ruling in favor of the

Appellees, and issue a new final judgment, containing a ruling on the Appellees’

evidentiary objections, in order to defeat Appellant’s argument on appeal. Counsel

did not e-file his two letters. Counsel for the Appellant was served by regular mail,

and received a copy of the letters on January 6, 2014.3 Later that day, at about 9:00

p.m., Appellant’s counsel sent a letter to the Court in response. 2 Suppl. at 16.

However, Appellant’s counsel later learned that the trial court had granted the

Appellees’ request, and signed their proposed final judgment, sometime between

11:15 am (as shown by the mechanical file stamp) (2 Suppl. at 19) and 4:06 pm (as

3 There is no mention in the appellate record of when Appellant’s counsel received the two letters other than the letter response that was filed on the evening of January 6, 2015. This is noted should any Justice on the Court of Appeals wonder about how much time Appellant’s counsel had to respond. 9 shown by the “timed” docket sheet) the day on January 6, 2014 (3 Suppl. at 19).

The trial court’s “timed” docket sheet indicates that Appellant’s counsel’s January

6, 2014-letter was before the trial court at 2:55 pm. 3 Suppl. at 19. Such is

impossible because the letter wasn’t filed until later that evening.

SUMMARY OF THE ARGUMENT

This is a case which presents problems with objections to summary

judgment evidence that were not ruled upon at or near the time a summary

judgment order was entered. Actually, there are two judgments: October 2, 2014

(C.R. at 196) and January 6, 2015 (1 Suppl. at 19). Two months after judgment,

Appellees’ counsel informed the trial court that the October 2, 2014-summary

judgment could not stand without an order excluding Appellant’s summary

judgment evidence. 1 Suppl. at 4, 6. Both motions, filed by Appellees, in

December 2014 were outside any applicable rule of procedure permitting

Appellees to approach the trial court for a ruling. Acknowledging the lateness of

Appellees’ requests and noting she could not make substantive changes (R.R. at 3),

Judge Storey nevertheless entered an order on December 16, 2014 sustaining all of

the Appellees’ objections. 1 Suppl. at 19.

After the December 16, 2014 order, Appellees’ counsel once again

approached Judge Storey, only this time by two mailed letters; December 29, and

December 31, 2014. 2 Suppl. at 8, 14. Neither letter was e-filed, but old fashion,

10 “mechanical” file stamps indicate both letters were received by the court on

January 6, 2015. Both letters presented Judge Storey with new evidence and asked

for new relief; i.e. to vacate the October 2, 2014-summary judgment order and

enter a new summary judgment order. The justification asserted was to defeat

Appellant’s argument on appeal. Without a motion, without a request for any kind

of hearing, without three days notice to Appellant, Judge Storey did as Appellees

asked by entering a new judgment on January 6, 2015, the same day the court filed

the two letters. 2 Suppl. At 19.

The result of this unusual procedural history is a flawed judgment which

holds that more than a year after a tenant exercised his option to purchase land, the

Appellees had not sold the property as required in a lease, was within a “time of

the essence” clause, and thus not a breach of lease. Accordingly, Appellant’s

earned commission was not payable.

11 ARGUMENT

POINT OF ERROR I: THE TRIAL COURT ERRED IN GRANTING THE APPELLEES’ OBJECTIONS TO APPELLANT’S SUMMARY JUDGMENT EVIDENCE.

Summary judgments are reviewed de novo on appeal. Valence Operating

Company v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). There are two sets of

Appellees’ objections to Appellant’s summary judgment evidence: the ones made

on May 29, 2014 (C.R. at 74-77) and the ones made on June 16, 2014 (C.R. at 175-

76). Those rulings on objections to evidence are reviewed on an abuse of discretion

standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). A

trial court abuses its discretion when it acts without regard for any guiding rules or

principles, or when the court acts in an “unreasonable or arbitrary manner.”

Beaumont Bank, N.A. v.Buller, 806 S.W.2d 223, 226 (Tex. 1991). In this case the

trial court did not follow any rules in making her December 16 th and January 6th

orders.

A. All objections except as to the first affidavit of Gene Surrency were waived by the October 2 summary judgment.

In the Appellees’ Response to Appellant’s Motion for Summary Judgment

and Cross-Motion for Summary Judgment, the Appellees objected to the

Appellant’s Affidavit of Mr. Surrency. C.R. at 74-77. Objections were also made

to a letter sent to the Appellees by an attorney for Mr. Nichols, the tenant and

12 prospective purchaser of the property, stating that he was exercising his option to

purchase, and a copy of a check from Mr. Nichols that was negotiated by the

Appellee, Rosa Huerta. C.R. at 77. Additionally, in the Appellees’ Reply to

Appellant’s Response to Appellees’ Motion for Summary Judgment, the Appellees

objected to another Affidavit from Mr. Surrency, and again to the letter from Mr.

Nichols’ attorney, and to the check from Mr. Nichols that was negotiated by the

Appellees. C.R. at 175.

The two competing motions for summary judgment were first set for

submission in June 2014. They were both reset, per the request of the court, for

August 22, 2014. So, the Appellees’ objections were not ruled upon from June

until December 16, 2014, a period of six months. If Appellees wanted a ruling on

their objections they had ample opportunity to request a ruling before the appellate

time table expired. This is a record of intentional neglect in seeking a ruling.

Under Texas Rule of Appellate Procedure 33.1 (a) (2) (A), rulings on

objections to evidence may be express or implicit. For an implicit ruling, there

must be some indication in the record that the trial court sustained or overruled the

objections, other than the mere granting of the summary judgment. Parkway

Dental Associates, P.A. v. Ho and Huang Properties, L.P., 391 S.W.3d 596, 603-

04 (Tex. App.-Houston [14th Dist.] 2012, no pet.); See also SSP Partners v.

Gladstrong Investments (USA) Corporation, 169 S.W.3d 27, 34 (Tex. App.-Corpus

13 Christi-Edinburg 2005, pet. granted) (“A “Mother Hubbard” clause in a summary

judgment is of no import to show the court implicitly ruled on objections.”); Well

Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.-San Antonio, 2000, no

pet.) (“A Mother Hubbard clause operates on claims, not objections to summary

judgment evidence.”) In this case, the trial court’s October 2 Order Granting

Appellees’ Motion for Summary Judgment does not specifically address the

Appellees’ objections by anything more than a Mother Hubbard clause. C.R. at

196. On December 10, 2014 the trial court couldn’t remember why she granted the

October 2, 2014-summary judgment. R.R. at 4.

Objections to the form of summary judgment evidence require a ruling in the

trial court for error preservation. These types of objections include authentication,

lack of foundation, or lack of personal knowledge, and hearsay objections. Tex. R.

Civ. P. 166a (f); Dolcefino v. Kelley; 19 S.W.3d 906, 925 (Tex. App.-Houston [14th

Dist.] 2000, pet. denied).

The Appellees, in their first set of objections on May 29th, objected to the

affidavit of Mr. Surrency on the grounds that the affidavit lacked foundation, that it

was speculative, hearsay, conclusory, and not the best evidence. C.R. at 74-77. All

other items of Appellant’s evidence were objected to on the grounds of lack of

authentication, lack of foundation, and hearsay. C.R. at 77. In their second set of

objections, on June 16, Appellees objected to the second affidavit of Mr. Surrency

14 on the grounds of lack of a proper foundation and hearsay, and to Appellant’s

Exhibits on the basis of lack of authentication and hearsay. C.R. at 175. Therefore,

all objections except those maintaining that the first affidavit of Mr. Surrency was

speculative, conclusory, and that it violated the best evidence rule, were waived by

the trial court’s October 2 Order Granting Appellees’ Motion for Summary

Judgment.

B. Appellees’ two December Motions to Modify Judgment, and for a Ruling on Objections, and 29 and 31 December letters requesting that the trial court vacate its 2 October final judgment and issue a new summary judgment were untimely.

The appellate timetable runs from the signing date of whatever order that

makes a judgment final and appealable. Farmer v Ben E. Keith Co., 907 S.W.2d

495 (Tex. 1995). Since the Appellant filed a motion for new trial the trial court’s

plenary power was extended until December 16, 2014. Plenary power is defined as

the court’s power to dispose of any matter “properly before it.” Esty v. Beal Bank

S.S.B, 298 S.W.3d 287, 295 (Tex. App.-Dallas 2009, no pet.), citing WMC Mort.

Corp. v. Starkey, 200 S.W.3d 749, 751 (Tex. App.-Dallas 2006, pet. denied).

1. Appellees’ December 3rd Motion to Modify Judgment is governed by Texas Rule of Civil Procedure 329b; L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996).

15 Appellees had thirty days, from October 2, 2014, to file their motion to

modify the judgment. Appellees filed their motion to modify long after the 30 day

time limit expired. Thus, it was not “properly” before the trial court for a ruling.

2. Appellees’ December 29 and 31, 2014-letters requesting the trial court to vacate and render a new judgment were not proper/timely made due to Texas Rule of Civil Procedure 329b; L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996).

After the Appellees obtained their requested relief on December 16, 2014

they were still not satisfied. They went back to the judge again, this time

worried about Appellant’s proposed argument on appeal. Appellant would argue

that Appellees are not special people who do not have to abide by the rules of civil

procedure regarding appellate deadlines.

Under Rule 329b (a) of the Texas Rules of Civil Procedure, “a motion for

new trial … shall be filed prior to or within thirty days after the judgment or other

order complained of is signed.” Further, section (g) provides that “a motion to

modify, correct, or reform a judgment … shall be filed and determined within the

time prescribed by this rule for a motion for new trial ….” In this case, the

Appellees Motion to Modify Judgment, filed on December 3 (1 Suppl. at 4) and

their two letters requesting that the trial court vacate its October 2, 2014-summary

judgment, filed on January 6 (2 Suppl. at 8, 14), were unquestionably untimely.

16 3. The trial court’s December Ruling on the Appellees’ objections was untimely because it was issued more than two months after the first summary judgment.

… the 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. …. In any context, however, it is incumbent upon the party asserting objections to obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver.

Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.-Houston [14th Dist.] 2000,

pet. denied) (emphasis added); Cf, Eaton Metal Products v. U.S. Denro Steels, No.

14-09-00757-CV (Tex. App.-Houston [14th Dist.] 2010, n.w.h.) (mem. op., not

designated for publication), (rulings on evidentiary objections, issued a month after

summary judgment, upheld because the trial court judge had read the motion for

summary judgment and taken objections into consideration in his decision, and

was merely “memorializing what the court thought”); Cf. Esty v. Beal Bank S.S.B.,

298 S.W.3d 280, 295 (Tex. App.-Dallas 2009, no pet.) (The court was troubled by

the timing of the order sustaining objections two months after judgment, but the

parties had agreed to consider objections later.); Cf. Wolfe v. Devon Energy

Production Company, 382 S.W.3d 434, 448 (Tex. App.-Waco 2012, pet. filed)

(upholding a ruling on objections to summary judgment evidence a month after the

final judgment because the objections were in a separate motion to strike).

17 On October 2, 2014 either the trial court denied the Appellees’ objections

with the Mother Hubbard clause or it did not.4 It doesn’t matter because the trial

court ruled twice on those objections at later dates. In the present case, the

Appellees failed to file a separate motion to strike evidence, there was no

agreement to decide objections at a later time, and there was no indication that the

court considered the objections in entering the October 2, 2014 judgment. To the

contrary, Judge Storey said it was too late. (R.R. at 3). The trial court had plenary

power until December 16, 2014. There is no indication which of the two December

2014 motions the trial court considered, or that it determined the Appellees’

objections in its December 16, 2014 Ruling on Appellees’ Objections to

Appellant’s Summary Judgment Evidence (1 Suppl. at 13). The December 16th

ruling does not recite which motion came on to be heard or was granted.

On December 10, 2014, Judge Storey said that “it’s a little late for

objections, isn’t it?” (R.R. at 3), “I don’t remember the facts of this”, and “I am not

going to go back and check all these little boxes you gave me until I go back and

look at it carefully and decide whether I did it because it was lack of foundation,

speculative, hearsay, conclusory or best evidence (R.R. at 4). Because I just don’t

remember. So, I have to go back and look at it again.” Id. The trial court asked

4 Unquestionably, Appellees’ counsel was concerned that the Mother Hubbard clause on October 2, 2014 created a flip-flop problem with the December 16, 2014 order. Such was the cause behind the December 29th and 31st letters. 18 when the Motion to Modify was filed. R.R. at 5. Then Judge Storey said “Last

week. R.R. at 8. Well, I can’t make all the substantive changes to it. Id. That’s way

beyond clerical.” Id. Appellee then tendered a specific order on objections to Judge

Storey.

If the trial court does not make specific rulings on evidence then the

judgment can be affirmed if any one of the objections is valid. Hogan v. J. Higgins

Trucking, Inc., 197 S.W.3d 879 (Tex. App. Dallas 2006, no pet.). In this case,

however, given the opportunity to make specific rulings on objections, Judge

Storey pondered the matter for six days and then refused. Refusing to make

specific rulings coupled with a refusal to disclose which motion she was granting

hides her analysis thus making Appellant and this court do extra work of reviewing

every objection. Judge Storey knew substantive changes to the judgment could not

be made per Hernandez v. Lopez, 288 S.W.3d 180, 184-85 (Tex. App.–Houston

[1st Dist.] 2009, no pet.) (describing the differences between “judicial” and

“clerical’ errors in a judgment). For these reasons this court should reject Judge

Storey’s vague and global rulings on summary judgment evidence as being no

rulings at all.

4. Appellees’ Motion for Ruling on Appellees’ Objections to Appellant’s Summary Judgment Evidence, filed on December 3, was an untimely request for Conclusions of Law per Texas Rule of Civil Procedure 296.

19 Texas Rule of Civil Procedure 296 states that “in any case tried in the …

county court without a jury, any party may request the court to state in writing its

findings of fact and conclusions of law.” Further, “such request … shall be filed

within twenty days after judgment is signed.” Appellees’ Motion for a Ruling on

Objections to Appellant’s Summary Judgment Evidence (1 Suppl. at 6), which can

be considered as a request for conclusions of law, was filed on December 3, far

more than 20 days after the court’s October 2 Order Granting Defendants’ Motion

for Summary Judgment (C.R. at 196). Appellees did not ask for findings of fact so

rulings on objections must, by default, be conclusions of law.

C. The trial court’s December 16 Ruling on Objections to Appellant’s Summary Judgment Evidence and January 6 Order Granting Appellees’ Motion for Summary Judgment and Final Judgment were an abuse of discretion.

The admission and exclusion of evidence is committed to the trial court’s

discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995).

A trial court abuses its discretion when it acts without regard for any guiding rules

or principles. An abuse of discretion is also established when the court acts in an

“unreasonable or arbitrary manner.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d

223, 226 (Tex. 1991).

In the present case, with its December 16 Ruling on Appellees’ Objections

to Appellant’s Summary Judgment Evidence (1 Suppl. at 13), and January 6 Order

Granting Appellees’ Motion for Summary Judgment and Final Judgment (2 Suppl. 20 at 19), which were issued solely to exclude the Appellant’s evidence, the trial court

acted “without regard for any guiding rules or principles,” or in an “unreasonable

or arbitrary manner”.

D. The Appellees’ Objections are not valid.

1. Objections to Appellant’s Motion for Summary Judgment evidence are not valid.

a. May 7 Affidavit of Mr. Surrency

The Appellees objected to the affidavit of Mr. Surrency (C.R. at 26) on the

ground that “it lacks any foundation showing how the affiant has any personal

knowledge of contract negotiations between strangers.” (C.R. at 74). The parties

were not strangers. Mr. Surrency was the listing real estate agent for the Appellees.

He testified, in his affidavit attached to the Appellant’s Motion for Summary

Judgment, that he executed a listing agreement with the Appellees (C.R. at 15, 26,

33), and represented them as a party to the lease agreement with Mr. Nichols. C.R.

at 15, 26. That lease agreement contained the option to purchase which triggered

payment of Appellant’s earned commission. C.R. at 43, 58. The Appellant’s

Exhibits, including the letter to Mr. and Mrs. Huerta from Mr. Nichols’ attorney

(C.R. at 61), and Mr. Nichols’ check tendered as earnest money (C.R. at 62)

support Mr. Surrency’s statements.

In particular, Appellees objected to the following:

21 The statement that “I hereby swear that all statements of fact in Paragraph 1

of the Motion for Summary Judgment are all true and correct”; in particular, the

statement in Paragraph 1 of the Motion that “The [Appellees] … have failed and

refused to sell the property to Mr. Nichols.” C.R. at 74. This statement is not

hearsay because it does not involve an out of court statement. See, Tex. R. Evid.

801 (d). Further, this statement is not speculative or conclusory because the

affidavit provides supporting facts that Mr. Surrency obtained in the course of his

business.

The statement that “[Mr. Nichols] told me that he had sent the [Appellees]

notice of his intent to exercise the purchase option, through his attorney, and that

he later sent them a check in the amount of $1,000.00 as earnest money ….” (C.R.

at 76, 77) is not hearsay because it is never offered for the truth of the matter

asserted, but to explain the circumstances surrounding Mr. Nichols’ exercise of the

purchase option, and his tender of a check as earnest money, both of which are

independently proven by documentary evidence. Mr. Nichols’ check noted on its

face that it was tendered as earnest money. C.R. at 62. When Ms. Huerta endorsed

the check she agreed to the term of tender as a matter of law5, Trevino v. Brookhill

Capital Resources, Inc., 782 S.W.2d 279, 281 (Tex. App.-Houston [1st Dist.] 1989,

5 If she did not agree to the terms of tender, her only option was to return the check to Mr. Nichols. Trevino v. Brookhill Capital Resources, Inc., 782 S.W.2d 279 (Tex. App.-Houston [1st Dist.] 1989, writ denied). 22 writ denied), and the check became her admission of a party opponent. Tex. R.

Evid. 801 (e) (2). The endorsement by Ms. Huerta is not disputed by Appellees;

they simply argued that she could disregard the terms of tender and apply the funds

towards rent. C.R. at 81. Thus, by her own affidavit, Ms. Huerta created a fact

question as to her refusal to sell the property to Mr. Nichols. Mrs. Huerta also

admitted to the letter sent by Mr. Nichols’ attorney.6

The statement that “I hereby swear that all statements of fact in Paragraph 1

of the Motion for Summary Judgment are all true and correct”; in particular, the

statement in Paragraph 1 of the Motion that “On or about November 30, 2011,

Plaintiff and the Defendants made a written contract in Houston, Texas, styled as

“Commercial Real Estate Listing Agreement” (C.R. at 15, 26). This statement is

not offered to prove the existence or contents of the contract, but is explanatory of

associated circumstances. Besides, neither party disputed the two contracts in

question: the listing agreement and the lease agreement. Both contracts are

attached to Mrs. Huerta’s May 28, 2014 affidavit. C.R. at 81. It is the Appellees’

contention that the Appellant’s commission was earned but not payable per the

contracts.

6 The lease agreement, which was attached to Ms. Huerta’s affidavit, stated on page 13 of 15, “Notices” were to be sent to 3215 Broadway, Hou. Tx. 77017. The Appellees never agreed to actually needing to receive the notice to be bound to sell the property. Notice should be made that both Mr. and Mrs. Huerta initialed page 13 of 15 about an inch below where the “Notice” provision is set forth. If the Appellees wanted to correct this provision, then they could do so per Paragraph 36(a). Such a correction was never made. 23 b. Letter to Mr. and Mrs. Huerta from Mr. Nichols’ attorney

Mrs. Huerta admits to knowing about the letter in her May 28, 2014

affidavit. C.R. at 82. She also had actual knowledge of Mr. Nichols’ intent to buy

the property. C.R. at 81, 82. The lease agreement stated that the Appellees agreed

that Nichols’ notice was to be sent to the address listed in Paragraph 34, not that

the Appellees had to receive that notice. C.R. at 54. Thus, the argument that they

did not receive the notice is false per their own agreement. And their argument that

Appellant made a mistake in drafting the lease is also false; the Appellees initialed

the lease below Paragraph 34, and any alleged drafting error was barred by the

parol evidence rule.

c. Mr. Nichols’ check sent as earnest money

These were authenticated as business records in Mr. Surrency’s affidavit,

under Texas Rule of Evidence 803 (6). C.R. at 26, 27. See GT & MC, Inc. v. Texas

City Ref., Inc., 822 S.W.2d 252, 257-58 (Tex. App.-Houston [1st Dist.] 1991, writ

denied) (business records can be by adoption). If Mr. Surrency wanted to get paid

his commission, then it certainly was his business to watch what Mr. Nichols and

the Appellees were doing in regard to the lease agreement. Additionally, Mr.

Nichols’ check, with the endorsement of Ms. Huerta, is an admission by party-

opponent under Texas Rule of Evidence 801 (e) (2).

24 Also, any objection to the check was waived by Mrs. Huerta’s May 28, 2014

affidavit where she discusses receiving the check, negotiating the check and

applying it to rent. C.R. at 82.

2. Objections to Appellant’s Reply to Appellees’ Cross- Motion for Summary Judgment evidence are not valid.

a. June 6 Affidavit of Mr. Surrency

The Appellees objected to certain statements in the second Affidavit of Mr.

Surrency (C.R. at 141) on the ground that they were hearsay and lacked a proper

foundation. C.R. at 175. The objections did not specify how the statements lacked

foundation, and are, therefore, general objections that do not preserve error, Tex.

R. Evid. 103 (a) (1); Petroleum Analyzer Company v. Olstowski, 01-09-00076-CV

(Tex. App.-Houston [1st Dist.] 2010, n.w.h.) (mem. op., not designated for

publication); Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex. 1980). In particular,

the appellants objected to the following:

The first three sentences of Paragraph 1:

On or about June 15 2013 I learned that Mr. Richard Nichols wanted to exercise his option to purchase the property he leased from Mr. and Mrs. Huerta. I told Mr. Nichols that he needed to send the Huertas a certified letter stating that. Mr. Nichols wanted me to draft that letter for him.

Mr. Surrency’s first sentence is not hearsay because it does not mention what Mr.

Nichols said. It’s what he learned. The second sentence is what Mr. Surrency did:

25 he told Mr. Nichols something. Such a statement is not hearsay because it was not

offered for the truth of the matter asserted, but to explain what happened in

regard to Mr. Nichols’ exercise of his option to purchase. The third sentence is

what Mr. Nichols asked Mr. Surrency to do, not referencing any statement, and not

offered for the truth of the matter asserted.

All of Paragraph 2:

Next, I learned that the Huertas would sell the property to Mr. Nichols, but on one condition. If Mr. Nichols went through me, then Mr. Nichols would have problems with Ms. Huerta because she was not going to pay my sale’s commission. I understand Ms. Huerta told Mr. Nichols to withdraw his exercise of the option to purchase, and she would sell the property to him. I learned that Mr. Nichols did not use the letter I drafted for him. He went to an attorney who drafted a letter to Ms. Huerta with a closing date at a title company. See Exhibit 2, attached hereto. The letter, Exhibit 2, was addressed to the exact address the Huertas agreed that the notice was to be sent to in the lease agreement. I understand that Ms. Huerta did not show up for closing and refused to provide an alternative closing date.

None of these statements discuss what was said. Mr. Surrency learned and

understood things, and thus not testimony of out of court statements. They are not

hearsay because they are not offered for the truth of the matter asserted, but to

explain and develop the circumstances associated with Mr. Nichols’ exercise of the

purchase option. On the other hand, if they are seen to be statements, then Tex. R.

Evid. 801 (e) (2) (D) applies. Mrs. Huerta admitted in her May 28, 2014-affidavit

that Appellant was her agent. C.R. at 81. As Appellees’ listing real estate agent,

26 Mr. Surrency was acting within the scope of his agency or employment made

during the existence of the relationship.

b. Letter to Mr. and Mrs. Huerta from Mr. Nichols’ attorney

The Appellees objected to the letter sent to Mr. and Mrs. Huerta by Richard

Nichols’ attorney on the grounds of hearsay and lack of a proper foundation. C.R.

at 175. This letter is a business record kept by Appellant. C.R. at 26, 27. See GT &

MC, Inc. v. Texas City Ref., Inc., 822 S.W.2d 252, 257-58 (Tex. App.-Houston [1st

Dist.] 1991, writ denied) (business record by adoption; Appellant’s primary record

of information about the underlying transaction). Additionally, Mrs. Huerta’s May

28, 2014-affidavit admits to actual knowledge of Nichols’ intent to exercise the

option as well as the letter from the attorney. C.R. at 81-82. Thus, the Appellees

waived their objection.

The Appellees also objected to Mr. Nichols’ check sent as earnest money on

the basis of hearsay and lack of a proper foundation. C.R. 175. These were

authenticated as business records in Mr. Surrency’s affidavit, under Texas Rule of

Evidence 803 (6) (C.R. at 26, 27); GT & MC, Inc. v. Texas City Ref., Inc., 822

S.W.2d 252, 257-58 (Tex. App.-Houston [1st Dist.] 1991, writ denied) (business

record by adoption; Appellant’s primary record of information about the

underlying transaction). Also, when Mrs. Huerta endorsed the check, it became 27 her statement and was admissible as an admission. Tex. R. Evid. 801(e) (2). Ms.

Huerta also testified to the check in her May 28, 2014-affidavit. C.R. at 82. Thus,

the objection was waived.

POINT OF ERROR II: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR APPELLEES.

A. Summary judgment standard of review

In Valence Operating Company v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), the

Texas Supreme Court stated:

We review the trial court’s summary judgment de novo. When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. When both parties move for … summary judgment on the same issues and the trial court grants one motion and denies the other, … the reviewing court considers the summary judgment evidence presented by both sides, determines all questions presented, and if the reviewing court determines that the trial court erred, renders the judgment the trial court should have rendered.

Review of a no-evidence summary judgment is a little different than a traditional

motion for summary judgment:

In reviewing a no-evidence summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion. In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. When the order granting summary judgment does not specify the grounds upon

28 which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious.

Parkway Dental Associates, P.A. v. Ho & Huang Properties, L.P., 391 S.W.3d

596, 602 (Tex. App.-Houston [14th Dist.] 2012, no pet.).

In their Cross-Motion for Summary Judgment, the Appellees asserted (C.R. at 69):

Plaintiff has no evidence of one of the essential elements of its claim-that Defendants breached the contract. …. Payment has never become due because sale of the property has not closed, and Defendants have never refused to sell the property. Additionally Plaintiff has no evidence that a contract existed between Plaintiff and Defendant, Roel Huerta.7

To make this assertion, the Appellees have to rely upon or prove the actual terms

of the lease. So, Mrs. Huerta proved-up the two leases as exhibits 1 and 2 to her

May 28, 2014-affidavit. (C.R. at 81-83). It is in the lease where the terms of when

the Appellant’s earned commission gets paid. When making their no evidence

motion, the Appellees actually produced more evidence in the form of Mrs.

Huerta’s affidavit and another affidavit. The statements in Mrs. Huerta’s affidavit

created a fact issue about her refusal to sell the property to Mr. Nichols because

she accepted his earnest money check (thus establishing, as a matter of law, her

knowledge of his desire to buy), did not sell to Mr. Nichols and took the money as

rent. C.R. at 82. She admits to knowing about the exercise of the option by Mr.

7 Mrs. Huerta testified, in her May 28, 2014 affidavit, that she and her husband entered into the listing agreement with the Appellant. This contradicts the no evidence motion for summary judgment Appellees filed. 29 Nichols in July 2013, but not selling the property before July 31, 2014. Id.

Counsel for the Appellees notified the trial court in his December 29, and 31,

2014-letters that the property still has not sold: a year and a half after Nichols gave

his notice. 2 Suppl. at 8, 14. Appellees responded to the issue of Mr. Nichols’

earnest money check with an unsupported claim that Mrs. Huerta could unilaterally

do as she pleased with Mr. Nichols’ money. Additionally, Ms. Huerta’s story about

“renegotiating” the terms of sale to Mr. Nichols is not an excuse for not selling to

Mr. Nichols under the terms of the lease. Determining any duty to renegotiate is a

question of law, and since there is no such duty, the “renegotiating” excuse is a red

herring.

B. If Appellees’ objections to evidence are determined to be invalid, then there is controverting evidence.

On December 3, 2014 Appellees’ counsel told the trial court that the October

2, 2014-summary judgment could not stand because of Appellant’s controverting

evidence. 1 Suppl. at 4, 6. On December 10, 2014, during a recorded oral hearing,

counsel for Appellees again made the same statement. R.R. at 3. As already stated,

Mrs. Huerta’s May 28, 2014-affidavit admits to virtually everything her counsel

wanted to exclude by objection. C.R. at 81. Thus, the objections were waived.

Nevertheless, an affidavit from an interested witness must be “clear, positive, and

direct, otherwise credible and free from contradictions and inconsistencies…” Tex.

R. Civ. P. 166a ( c); Huckabee v. Time Warner Entertainment Co., L.P., 19 S.W.3d 30 413 (Tex. 2000). When Mrs. Huerta tries to claim she did not get the attorney’s

letter that is a negative fact. C.R. at 81. It also contradicts the fact that she admits

to having actual knowledge of Mr. Nichols desire to exercise his option to

purchase. C.R. at 82. That is a contradiction. Mrs. Huerta admits to the entire

lease, with its time of the essence clause (page 15 of 15, Paragraph I) (C.R. at 81),

then admits to not selling the property for more than that a year after Nichols

attorney gave notice to the contract she agreed to. C.R. at 82. That is another

contradiction. Then there is the contradiction between accepting Mr. Nichols’

earnest money check, and Ms. Huerta’s story about “renegotiating” the terms of

the sale.

C. If Appellees’ objections are determined to be valid, then Appellees’ summary judgment evidence created material issues of fact.

As previously discussed, Mrs. Huerta’s May 28, 2014-affidavit provides

proof which contradicts her claim that the Appellant’s commission is not payable.

C.R. at 81. She proves the lease and its contents. She proves notice of option by

Mr. Nichols. She proves the sale of the property was never made for more than a

year even though she had duty to sell in a “time of the essence” manner. Then

there is the fact issue presented by Mrs. Huerta’s conduct of cashing Mr. Nichols’

earnest money check, and then making the self-serving assertion that Mr. Nichols

was trying to renegotiate the terms of the sale.

31 POINT OF ERROR III: THE TRIAL COURT ERRED BY DENYING THE APPELLANT DUE PROCESS.

A. Due process requirements requires meaningful notice, a fair trial, and a fair and impartial judge.

In Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84 (1988), the U.S.

Supreme Court stated that “an elemental and fundamental requirement of due

process in any proceeding which is to be accorded finality is notice reasonably

calculated, under the circumstances, to apprise interested parties of the pendency of

the action and afford them the opportunity to preserve their objections.” The

Supreme Court goes on to state that the remedy for a deprivation of due process is

to “restore[ ] the [party] to the position he would have occupied had due process of

law been accorded to him in the first place”, rather than to determine whether or

not his claim is meritorious. Id. at 87.

In the case In re J.F.C., 96 S.W.3d 256, 300 (Tex. 2002), (Schneider, J.,

dissenting), from the Texas Supreme Court case, it was written that “we have

emphasized time and again that “the touchstone of due process is protection of the

individual against arbitrary action of government””, citing Wolff v. McDonnell, 418

U.S. 539 (1974). These concepts are developed in Metzger v. Sebek, 892 S.W.2d

20, 37-8 (Tex. App.-Houston [1st Dist.] 1994, no pet.). That court wrote:

The parties have a right to a fair trial under both the United States Constitution and the Texas Constitution. …. A judge should be fair and impartial and not act as an advocate for any party. … Public policy demands 32 that a judge who tries a case act with absolute impartiality. It further demands that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or the integrity of the court. Judicial decisions rendered under circumstances that suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the judicial system is based. B. The Court considered two requests from the Appellees that were letters, not motions.

In this case, the trial court erred by denying the Appellant due process when

it did the following:

1. Entered the January 6, 2015 judgment (2 Suppl. at 18) pursuant to Appellees’ counsel’s December 29, 2014 and December 31, 2014-letters (2 Suppl. At 8, 14) because those letters were not e-filed;

2. Entered the January 6, 2015-judgment before the Appellant had a reasonable opportunity to be heard;

3. Considered relief that Appellees had no right to request under Texas Rules of Civil Procedure 296 and 329b;

4. Maintained two separate and distinct electronic docket sheets (3 Suppl. at 6, 23, 30);

5. Backdated one electronic docket sheet to show that Appellant’s e-filed letter response of January 6, 2015 was before the court as of 2:55 pm, six hours before that letter was e-filed (3 Suppl. at 19);

6. Acted as an advocate to defeat Appellant’s proposed appellate argument as the reason to enter the January 6, 2015 judgment; and

7. Created a record clearly establishing that the trial court was not an impartial judge in this case.

The central meaning of the due process clause of the U.S. Constitution has

been clear: “Parties whose rights are to be affected are entitled to be heard; in order 33 to that they may enjoy that right, they must first be notified. It is equally

fundamental that the right to notice and an opportunity to be heard must be granted

at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67,

80 (1972). For the right to notice and a hearing is to serve its full purpose

opportunity for the hearing must be provided when a deprivation can be prevented.

A fair, impartial judge is also included in the term due process. Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847 (1988) n. 12. See also Tumey v. Ohio,

273 U.S. 510 (1927); In re Murchison, 349 U.S. 133 (1955); Ward v. Village of

Monroeville, 409 U.S. 57 (1972); Texas Code of Judicial Conduct, Canon 3 (B)

(8). Both prongs of due process issues have been violated here.

On January 6, 2015 the trial court most likely entered its judgment of that

date between 11:15 am [file stamp on page 3 of judgment] (2 Suppl. at 20) and

4:06 pm [page 14 of 17 of the docket sheet with times noted] (3 Suppl. at 19).

Appellant did not file its letter response until 8:57 pm that day. 2 Suppl. at 16. The

difference between the trial court’s noted time of 2:55 pm [Page 14 of 17 of timed

docket sheet] (3 Suppl. at 19) and the e-file stamp of 8:57 was six hours and two

minutes. Most likely judge Storey did not see Appellant’s January 6-letter at 8:57

on the night of January 6, but rather saw it on the morning of January 7, 2015.

There is no innocent reason why the “timed” docket sheet was backdated. There is

no innocent reason there are two docket sheets; one with times, and the other

34 without time notations when a document or issues contained therein was before the

trial court. The only explanation for the back-dated docket sheet is so that Judge

Storey could defend herself against a claim of being ex-parte’d by the Appellees’

two late December letters.

As of January 1, 2014 all civil cases handled by an attorney must be e-filed.

Appellee’s counsel dispensed with that requirement on both December 29 and 31,

2014-letters. There is no excuse for this. Counsel should have filed a motion with

a certificate of conference and requested either a hearing or a submission date. He

has no excuse for not doing this. The trial court, as the judge of the law, must have

known that Appellee’s counsel did not e-file his request or follow the rules of

procedure. Yet, she granted his requested relief, noted that Appellant’s e-filed

response was before the court six hours before it was filed and maintained two

different docket sheets.8 When the Clerk’s record was first prepared, the docket

sheet without the time notations was included in the record. 3 Suppl. at 30.

Appellant had to specifically request a supplemental record to show the court’s

unexplainable two sets of “books.”

8 Please note that it was the Appellant who requested the supplemental clerks’ record include the docket sheet with the judge’s notations of times. The first docket sheet filed with the clerk’s record on appeal did not have those times noted, and it was pure luck that the Appellant noticed this “two sets of books” problem. 35 In Appellees’ counsel’s two late December letters he requested much more

that his earlier motions. He asked for a change of party’s names by incorrectly

labeling the mistake as a “typo.” 2 Suppl. At 8, 14. Hernandez v. Lopez, 288

S.W.3d 180, 184-85 (Tex. App.–Houston [1st Dist.] 2009, no pet.). Since the time

to move to modify a judgment had expired 30 days after the October 2, 2014-

judgment, counsel had no right to request that relief. The issue of modification

was not “properly before the court.”

This appellate court is in the best position to sculpt a remedy for Judge

Storey’s lack of impartiality. Liljeberg v. Health Services Acquisition Corp., 486

U.S. 847 (1988). The remedy for a deprivation of due process is to “restore[ ] the

[party] to the position he would have occupied had due process of law been

accorded to him in the first place,” rather than to determine whether or not his

claim is meritorious. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 87

(1988).

There is no need to send Appellant back to the trial court to file and

prosecute a motion to recuse judge Storey and present the evidence of highly

improper conduct currently before this court. Per the reasonable person test of

Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995)9 a reasonable, disinterested person

9 The standard is an objective one. In Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) the Texas Supreme Court adopted the Liljeberg v. Health Services Corp., 486 U.S. (1988) standard. 36 would find Judge Storey’s behavior outside the Canons of Judicial Ethics and

partial to the Appellees’ desire to win on appeal. Liljeberg v. Health Services

Acquisition Corp., 486 U.S. 487 (1988) (adopting the reasonable person test for

determining the impartiality of a judge); Cf, Norton v. State, 755 S.W.2d 522 (Tex.

App.-Houston [1st Dist.] 1988, writ ref’d); Mason v. State, 771 S.W.2d 561 (Tex.

Cr. App. 1989, no writ) (recusal for remarks on the bench displaying prejudice);

Cf, Rosas v. State, 76 S.W.3d (Tex. App.-Houston [1st Dist.] 2002, no writ)

(reasonable person would harbor doubts as to judge’s impartiality). Duplicating

the evidence in a recusal hearing would lead to the unnecessary discredit of a

sitting judge. Judicial economy demands that a mandate be issued requiring Judge

Storey recuse herself from this matter.

PRAYER

WHEREFORE, Appellant respectfully requests that the judgment of the

trial court be reversed, and that this case be remanded for further proceedings;

further that the court issue a mandate commanding that Judge Storey recuse herself

from retrial of this cause and request that the Presiding Judge of the Administrative

Judicial District assign another Judge to sit in this case.

Respectfully submitted,

/s/ James L. Supkis James L. Supkis, Attorney for Appellant San Sebastian Realty Co., Inc. Texas Bar No. 19516800 37 P.O. Box 58243 Houston, TX 77258 Tel. (281) 723-9964 Fax. (713) 645-9138

CERTIFICATE OF COMPLIANCE

I certify that, according to Microsoft Word’s word counting function, the

portion of this brief for which Texas Rule of Appellate Procedure 9.4 (i) (3)

requires a word count contains 8,449 words.

/s/ James L. Supkis James L. Supkis, Attorney for Appellant San Sebastian Realty Co., Inc.

CERTIFICATE OF SERVICE

This is to certify that on 19 February 2015 a true and correct copy of the

above and foregoing Brief for Appellant was served on Mark E. Lewis, Attorney

for the Appellees Roel Huerta, and Rosa M. Huerta, by regular U.S. mail, certified,

and with return-receipt requested, at 3730 Kirby Drive, Suite 1030, Houston, TX

77098.

/s/ James L. Supkis James L. Supkis, Attorney for Appellant San Sebastian Realty Co., Inc.