Date: 10-12-2017

Case Style:

Case Number: 01-16-00841-CV

Judge: Harvey Brown

Court: Texas Court of Appeals, First District on appeal from the 164th District Court, Harris County

Plaintiff's Attorney: Teri Walter

Defendant's Attorney: Ashley Burleson

Description: Santiaga Herrera owned and lived in a house with a garage apartment. Herrera sold the property to Gloria Alejos, who financed the purchase with a note made to Herrera. After closing, Alejos’s daughter, Banesa Coronel, moved into the
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house, and Alejos allowed Herrera to stay in the garage apartment, where she was
living at the time of the sale.
Alejos later tried to evict Herrera, and Herrera sued Alejos, alleging that
Alejos had defaulted on the note and fraudulently induced her to sell the property.
Herrera sought damages and a declaratory judgment that she retained a life estate
in the garage apartment. Alejos responded by seeking her own declaratory
judgment that she owned the property in fee simple.
After about a year of litigation, Alejos filed a motion for summary judgment.
Herrera filed no response. The trial court granted Alejos’s motion and entered a
judgment that dismissed Herrera’s claims, declared all payments on the note
current, declared Alejos the owner of the property, and awarded Alejos damages
and attorney’s fees as an offset to the balance of the note.
Herrera appeals from the trial court’s judgment. She contends that the trial
court erred in granting Alejos’s motion for summary judgment and in denying her
motion for continuance and motion for new trial. We affirm.
Background
Herrera sells her property to Alejos
For many years, Santiaga Herrera and her husband, Edilberto, owned and
lived on a piece of residential property in Houston. The property consisted of a
house and a garage apartment.
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After Edilberto died, Herrera moved into the garage apartment and tried to
rent out the house. However, due to her advancing age and declining health,
Herrera determined that renting the house was not a suitable arrangement, and she
decided to sell the property to Gloria Alejos. Herrera retained a real estate attorney,
Angelica Landa, to prepare the contract and other documents necessary for the
sale.
Herrera, as seller, and Alejos, as buyer, entered into a form earnest money
contract for the sale of the property.1 The contract provided that Alejos would
finance the purchase by making a promissory note to Herrera, secured by a lien on
the property. Under a section designated for special provisions, the contract
contained a handwritten note stating, “Seller [Herrera] shall retain life estate.”
Although the bottom of each page of the contract was initialed by both Alejos and
Herrera, the special provision itself was not initialed by either of them.
The parties closed the sale at Landa’s office. They executed three
documents: (1) a warranty deed, which conveyed the property from Herrera to
Alejos and did not include any language reserving a life estate in any part of the
property for Herrera; (2) a note, which financed the sale of the property; and (3) a
1 The contract is not dated, but it appears to have been executed in either April or
May 2013.
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deed of trust, which secured payment on the note. All three documents were
prepared by Herrera’s attorney, Landa.
Alejos attempts to evict Herrera
After closing, Alejos’s daughter, Banesa Coronel, moved into the house, and
Herrera continued to live in the garage apartment. Herrera and Coronel did not get
along. Herrera was much older than Coronel, and the two had incompatible
lifestyles and personalities.
As a result of the conflict between Coronel and Herrera, Alejos decided to
evict Herrera. Alejos filed a pro se petition to evict in the justice court, alleging
Herrera’s failure to pay rent as her ground for eviction.
Herrera and Alejos sue each other
After Alejos filed her eviction action, Herrera sued Alejos in district court.
In her petition, Herrera alleged that she had sold her property to Alejos but had
reserved a life estate in the garage apartment. She further alleged that Alejos was
attempting to wrongfully evict her from the garage apartment by falsely claiming
that she was Alejos’s tenant and had failed to pay rent.
Herrera asserted a variety of claims, including a claim for fraudulent
inducement, alleging that Alejos induced her to sell her property by falsely
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promising that she could live in the garage apartment for the rest of her life.2
Herrera sought damages, a judicial foreclosure, and a declaratory judgment on the
parties’ rights to and interests in the property, including her right to a life estate in
the garage apartment.
Alejos filed a counterclaim. Alejos alleged that Herrera did not retain a life
estate in the garage apartment and that Alejos had simply allowed Herrera to
remain living there. Alejos further alleged that Herrera “became a troublesome
occupant” and that she therefore “filed an eviction action against Herrera to
remove her from the property.” According to Alejos, Herrera then retaliated by
filing this lawsuit against her, accelerating the note, and noticing foreclosure of the
property.
Alejos sought a declaratory judgment declaring that she was the owner of
the property and that all payments on the note were current. She also sought an
injunction prohibiting Herrera from accelerating the note and foreclosing on the
property.
Alejos moves for summary judgment, and Herrera files no response
Alejos filed three substantively identical motions for summary judgment—
one after nine months of litigation, one after tenth months, and one after eleven
2 Herrera’s other claims included claims for breach of contract, conversion,
common law fraud, statutory fraud, and conspiracy.
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months. In her motions, Alejos moved for summary judgment on her declaratory
judgment action. Her evidence included (1) the warranty deed, which, as noted
above, conveyed the property to Alejos and did not contain language reserving a
life estate for Herrera; (2) a Rule 11 agreement between Herrera and Alejos, which
stipulated that all payments on the note were current through January
2016; and (3) checks written by Alejos to Herrera, which represented the note
payments Alejos made after January 2016. Alejos argued that the evidence
conclusively proved that Herrera did not retain a life estate in the garage
apartment, Alejos owned the property in fee simple absolute, and all payments on
the note were current.
Alejos also moved for summary judgment on Herrera’s fraudulentinducement
claim. Alejos argued that she was entitled to summary judgment
because (1) she never represented to Herrera that she could live in the garage
apartment rent-free for the rest of her life and (2) even if she did, Herrera’s reliance
on the representation was not justified given that the deed conveying the property
did not contain language reserving a life estate for Herrera. Alejos supported her
motion with her own affidavit, in which she categorically denied ever agreeing to
grant Herrera a life estate in the garage apartment.
Herrera did not file a response to any of Alejos’s motions for summary
judgment. She did, however, file a motion for a continuance of the summary7
judgment hearing.3 In the motion, Herrera explained that the parties were
scheduled to attend court-ordered mediation before the summary-judgement
hearing and that she did not want to incur the costs of preparing a response until
after the parties had mediated. Herrera stated that the cost of responding to
Alejos’s motion would be “substantial” and that it would be “more difficult” to
“make a good faith effort to settle” the case if she was required to prepare a
response before mediation. Alejos filed a response to Herrera’s motion for
continuance, arguing in part that Herrera had failed to establish sufficient cause for
granting a continuance.
After Alejos and Herrera had filed their respective motions, they attended
the court-ordered mediation. They did not settle.
Two weeks after the failed mediation, the trial court held a hearing on
Alejos’s motion for summary judgment and Herrera’s motion for continuance. The
trial judge told Herrera that she was “really troubled” that Herrera “filed absolutely
nothing” in response to Alejos’s motion for summary judgment. Herrera explained
that she did not respond to Alejos’s motion for summary judgment because, when
the motion was filed, the parties were already scheduled to mediate the case, and
she “didn’t want to waste the time and money preparing a response,” as there was a
chance the case would settle. At the end of the hearing, the trial court denied
3 The continuance was filed three weeks before the summary-judgment hearing.
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Herrera’s motion for continuance and granted Alejos’s motion for summary
judgment.
The trial court entered a final judgment that dismissed Herrera’s claims with
prejudice. The judgment declared that Alejos owns the property in fee simple,
Herrera has no life estate or interest in the property, and all payments on the note
were current as of that date. The judgment awarded Alejos her attorney’s fees and
rent as an offset to the balance of the note.
Herrera filed a motion for new trial, alleging that Alejos had obtained
summary judgment “by fraud” and that the trial court’s judgment was therefore
“void as a matter of law.” Herrera supported her motion with affidavits from
herself and from her real estate attorney, Landa. In their affidavits, Herrera and
Landa contested Alejos’s claim that she never agreed that Herrera would retain a
life estate in the garage apartment. They insisted that the three of them “discussed
in detail” Herrera and Alejos’s “agreement” that Herrera “would live in the garage
apartment for free for the rest of [her] life.”
The trial court denied Herrera’s motion for new trial. Herrera appeals.
Summary Judgment Evidence
In her first issue, Herrera argues that the trial court erred in granting Alejos’s
motion for summary judgment because Alejos’s summary-judgment affidavit was
inadmissible and incompetent. Although Alejos is a native Spanish-speaker who
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does not speak or read English, her affidavit was written in English. In her
affidavit, Alejos explained that, before she signed the affidavit, the contents of the
affidavit were translated and read out loud to her in Spanish. Herrera argues that
Alejos’s affidavit was inadmissible and incompetent because Alejos did not
identify or submit a separate affidavit from the person who served as her translator.
Herrera did not object to Alejos’s affidavit in the trial court. Objections to
formal defects in summary-judgment affidavits must be made to the trial court or
they are waived. Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex. App.—Houston [1st
Dist.] 1998, no pet.); see In Estate of Guerrero, 465 S.W.3d 693, 706 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied) (en banc). Objections to substantive
defects, however, may be raised for the first time on appeal. Id. Thus, to determine
whether Herrera has waived error, we must determine whether her objection is
substantive or formal.
A defect is substantive and an objection to it is not waivable if the summaryjudgment
affidavit is incompetent. Mathis, 982 S.W.2d at 60. Incompetent
evidence is evidence that has no probative value because it either does not relate to
a controlling fact or does not tend to make the existence of a controlling fact more
or less probable. Id. Objections to substantive defects are never waived because
incompetent evidence “cannot be considered under any circumstances.” Id.
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A defect is formal and an objection to it is waivable if the summaryjudgment
affidavit is competent but inadmissible. Id. For example, an objection
that a piece of evidence fails to comply with Rule of Evidence 1009 is an objection
to a formal defect. Hung Tan Phan v. An Dinh Le, 426 S.W.3d 786, 792 (Tex.
App.—Houston [1st Dist.] 2012, no pet.). Rule 1009 requires the proponent of a
translation of a foreign language to timely serve all parties with “a qualified
translator’s affidavit or unsworn declaration that sets forth the translator’s
qualifications and certifies that the translation is accurate.” TEX. R. EVID.
1009(a)(2). Because the rule does not concern the substance of the translated
document, an objection that the document does not comply with Rule 1009 may be
waived. Hung Tan Phan, 426 S.W.3d at 792.
Herrera does not argue that Alejos’s affidavit was defective because it either
did not relate to a controlling fact or did not tend to make the existence of a
controlling fact more or less probable. See Mathis, 982 S.W.2d at 60. Instead, she
argues that the affidavit was defective because it was not supported by a separate
affidavit from the translator. Her argument does not concern the substance of
Alejos’s affidavit. See Hung Tan Phan, 426 S.W.3d at 792. Instead, it concerns the
affidavit’s admissibility. But because Herrera did not make the objection in the
trial court, she has waived error on appeal. Accordingly, we overrule Herrera’s first
issue.
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Summary Judgment
In her second issue, Herrera contends that the trial court erred in granting
Alejos’s motion for summary judgment on Herrera’s claim for fraudulent
inducement.
“Fraudulent inducement ‘is a particular species of fraud that arises only in
the context of a contract.’” Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d
419, 423 (Tex. 2015) (per curiam) (quoting Haase v. Glazner, 62 S.W.3d 795, 798
(Tex. 2001)). To prevail on a claim for fraudulent inducement, the plaintiff must
prove that (1) the defendant made a material representation, (2) the representation
was false, (3) the defendant made the statement either knowing it was false or
without knowledge of its truth, (4) the defendant made the representation to induce
the plaintiff’s reliance, (5) the representation did induce the plaintiff’s reliance, (6)
the plaintiff’s reliance was justifiable, and (7) the plaintiff suffered injury as a
result. Williams v. Dardenne, 345 S.W.3d 118, 125 (Tex. App.—Houston [1st
Dist.] 2011, pet. denied); see Nat’l Prop. Holdings, 453 S.W.3d at 423.
We review a trial court’s grant of summary judgment de novo. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Fondren Constr. Co., Inc. v.
Briarcliff Hous. Dev. Assocs., Inc., 196 S.W.3d 210, 213 (Tex. App.—Houston
[1st Dist.] 2006, no pet.).
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In a traditional summary-judgment motion, the movant 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. TEX. R. CIV. P. 166a(c). When, as here, a defendant
moves for traditional summary judgment on one of the plaintiff’s claims, she must
either conclusively negate at least one element of the claim or plead and
conclusively prove each element of an affirmative defense. Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Fondren Constr. Co., 196 S.W.3d at
213–14; Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.—Houston [1st Dist.]
2006, no pet.). A trial court may grant summary judgment based on the defendant’s
uncontroverted affidavit if the affidavit is “clear, positive and direct, otherwise
credible and free from contradictions and inconsistencies, and could have been
readily controverted.” TEX. R. CIV. P. 166a(c).
In reviewing a summary judgment, we take as true all evidence favorable to
the nonmovant and indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005); Fondren Constr. Co., 196 S.W.3d at 213. If the trial court does not
specify the reasons it granted the summary-judgment motion, we will affirm the
trial court’s judgment if any of the grounds advanced in the motion are
meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied.).
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Herrera argues that the trial court erred in granting summary judgment
dismissing her fraudulent-inducement claim because Alejos failed to file a proper
no-evidence motion. But a review of the substance of Alejos’s motion indicates
that Alejos sought summary judgment on traditional grounds, not no-evidence
grounds. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.
1999) (“[W]e look to the substance of a motion to determine the relief sought, not
merely to its title.”). Specifically, Alejos sought to obtain summary judgment by
proving that (1) she did not make a material representation to Herrera and (2) even
if she did, Herrera’s reliance on the representation was not justifiable.
To prove the first ground, Alejos presented her own affidavit, in which she
categorically denied ever representing to Herrera that she would retain a life estate
in the garage apartment or that she could otherwise live in the garage apartment
rent-free for the rest of her life:
During the Closing, Herrera’s attorney, Ms. Landa, spoke to and
communicated with me in the Spanish language. At no time during the
Closing did Herrera nor her lawyer ask me to give Herrera a life estate
in the garage apartment located on the subject property. At no time
during the Closing or while I was at Ms. Landa’s law office did
anyone ever say anything to me about Herrera being granted a life
estate in the garage apartment. It was never my understanding that as
a condition to Herrera financing the sale of the property to me that
Herrera was to receive a life estate in the garage apartment. It was
never my understanding that as a condition of the sale of the property
from Herrera to me, that Herrera was to receive a life estate in the
garage apartment. It was not my intent to grant Herrera a life estate in
the garage apartment as part of our transactions related to my
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purchase of the property and the financing thereof. I have never
granted nor given Herrera a life estate in the subject garage apartment.
Alejos’s affidavit was “clear, positive and direct, otherwise credible and free from
contradictions and inconsistencies, and could have been readily controverted.”
TEX. R. CIV. P. 166a(c). Herrera did not respond to Alejos’s summary-judgment
motion and thus failed to present evidence controverting Alejos’s affidavit.
Alejos’s affidavit, then, was uncontroverted and conclusively negated the first
element of Herrera’s claim—a material representation made by Alejos to Herrera.
We hold that the trial court did not err in granting summary judgment
dismissing Herrera’s claim for fraudulent inducement. Accordingly, we overrule
Herrera’ second issue.4
Motion for Continuance
In her third and fourth issues, Herrera contends that the trial court erred in
denying her motion for continuance.
Under the Rules of Civil Procedure, a trial court may continue a summaryjudgment
hearing if the nonmovant shows sufficient cause, such as a need to
conduct additional discovery. TEX. R. CIV. P. 166a(g); see TEX. R. CIV. P. 251, 252.
We review a trial court’s ruling on a motion for continuance for an abuse of
4 Because we hold that Alejos presented evidence proving as a matter of law that
she did not make a material representation to Herrera, we need not determine
whether Alejos also presented evidence proving that any reliance on such a
promise would not have been justified.
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discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.
2004). “A trial court abuses its discretion when it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law.” Id. In
determining whether the trial court abused its discretion, we view the evidence in
the light most favorable to the trial court’s ruling and indulge every presumption in
favor of the ruling. Hatteberg v. Hatteberg, 933 S.W.2d 522, 526 (Tex. App.—
Houston [1st Dist.] 1994, no writ).
Herrera moved for a continuance of the hearing on Alejos’s motion for
summary judgment because she did not want to incur the potentially unnecessary
costs of preparing a response before the parties attended court-ordered mediation.
The trial court denied Herrera’s motion, finding that Herrera failed to show
sufficient cause for a continuance.
Herrera did not allege that she had insufficient notice of the hearing on
Alejos’s summary-judgment motions or a justified need to conduct additional
discovery. Rather, she simply said that she did not want to spend the money
preparing a response because she thought the case might settle at mediation—
which had failed two weeks before the hearing.
As the trial court noted, the cost of responding to Alejos’s summaryjudgment
motion would have been minimal because it only had to raise a fact
issue. Herrera had ample time to file a response. Alejos’s first motion was filed
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over three months before the hearing, and the mediation took place two week
before the hearing.
We hold that the trial court did not abuse its discretion in denying Herrera’s
motion for continuance. Accordingly, we overrule Herrera’s third and fourth
issues.
Motion for New Trial
In her fifth issue, Herrera contends that the trial court erred in denying her
motion for new trial. We review a trial court’s denial of a motion for new trial for
an abuse of discretion. Nguyen v. Kuljis, 414 S.W.3d 236, 239 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied). A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner or without reference to any guiding
rules or principles. Id.
Herrera’s motion for new trial was supported by two affidavits—one from
her and one from her attorney, Landa, who drafted the documents conveying
Herrera’s property to Alejos. In their affidavits, Herrera and Landa both contested
Alejos’s statement from her affidavit that she never agreed to grant Herrera a life
estate in the garage apartment or otherwise represented that Herrera could live in
the garage apartment rent-free for the rest of her life. Herrera argues that the trial
court abused its discretion by denying her motion for new trial because this new
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evidence would have raised fact issues precluding summary judgment had they
been submitted with a response to Alejos’s motion.
“Generally, a party may not rely on new evidence in a motion for new trial
without showing that the evidence was newly discovered and could not have been
discovered through due diligence prior to the ruling on a summary judgment
motion.” McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied).
Herrera does not argue, either in her motion or her appellate brief, that the
evidence attached to her motion for new trial was newly discovered and could not
have been discovered through due diligence before the trial court’s ruling. She has
not shown that her failure to produce the affidavits was not due to lack of
diligence.
Herrera further argues that the trial court abused its discretion because it
refused to hold a hearing on her motion for new trial. But the record plainly shows
that the trial court held a hearing on her motion. What the trial court refused to do
was hold an evidentiary hearing with oral testimony—which was entirely within its
discretion, as oral testimony is inadmissible at a summary-judgment hearing. See
TEX. R. CIV. P. 166a(c) (“No oral testimony shall be received at the hearing.”).
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We hold that Herrera has failed to show that the trial court abused its
discretion by denying her motion for new trial. Accordingly, we overrule Herrera’s
fifth issue.

Outcome: We affirm the trial court’s judgment.

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