Motion for En Banc Reconsideration Granted; Majority and Dissenting
Opinions filed September 4, 2014, Withdrawn; Affirmed and En Banc
Majority and En Banc Dissenting Opinions filed April 23, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00580-CV

       IN THE ESTATE OF ROSA ELVIA GUERRERO, DECEASED


                    On Appeal from the Probate Court No. 2
                             Harris County, Texas
                      Trial Court Cause No. 388,367-401

           EN BANC DISSENTING OPINION
      A majority of the en banc court affirms the denial of a motion to compel
arbitration on a single basis—that the failure of the movant to authenticate the
attached copy of the arbitration agreement is a defect in substance that may be
raised for the first time on appeal. In reaching this result, the en banc court applies
an exception to the waiver-by-failure-to-object doctrine in an authentication
context, contrary to the key precedent from the Supreme Court of Texas. Because
the en banc court’s decision conflicts with the high court’s precedent, I respectfully
dissent.
          The problem with the en banc court’s exception is that it is at odds with the
most recent pronouncement of the Supreme Court of Texas regarding the necessity
of preserving error in the trial court as to objections to summary-judgment
evidence.1 Under the course the high court has charted in Mansions in the Forest,
L.P. v. Montgomery County,2 for this court to affirm based on the defect in
authentication, the defect, even if it is substantive, must be recognized as an
exception to the normal preservation-of-error rule. The defect in today’s case does
not justify the creation of an exception to this rule or to the important prudential
considerations behind it.3 Thus, the claimants waived their objection to the defect
by failing to object and obtain a ruling on their objection in the trial court. This
court cannot affirm the trial court’s order based on this defect and also keep on
course with Mansions.

          Appellant/defendant Mike Hall Chevrolet, Inc. d/b/a Champion Chevrolet
(“Champion”) filed a motion to compel arbitration based on an arbitration
agreement between Rosa Guerrero and Champion.                    Champion attached to its
motion a copy of the agreement reflecting signatures by Guerrero and by a
Champion representative. In its motion, Champion asserted that Guerrero signed
this agreement incident to the purchase of the vehicle in question. Champion also
stated that a true and correct copy of the agreement was attached as Exhibit “A” to
the motion to compel arbitration. Though the exhibit contained the agreement, it
did not contain an affidavit or any sworn statements. Thus, Champion failed to
authenticate this exhibit to Champion’s motion to compel arbitration.4 The en banc

1
  As pointed out by the en banc majority, the same rules apply to objections to evidence offered
in a summary proceeding on a motion to compel arbitration.
2
    365 S.W.3d 314, 316–17 (Tex. 2012) (per curiam).
3
    See id. at 317.
4
    See Courtland Building Co. v. Jalal Family P’ship, 403 S.W.3d 265, 270 & n.4 (Tex. App.—

                                               2
majority affirms the trial court’s denial of Champion’s motion to compel
arbitration based solely on this defect.5

          Even if all claimants objected to this defect in the trial court, they did not
preserve error because none of them secured a ruling.6 For this court to affirm
based on this defect, the defect must be one that may be raised for the first time on
appeal rather than a defect subject to the normal rule that requires preservation of
error in the trial court.7

          In Courtland Building Company v. Jalal Family Partnership, this court
reviewed a trial court’s order denying a motion to compel arbitration.8 As in
today’s case, the movant failed to authenticate the attached copy of the contract
containing the arbitration provision.9            We found this defect was a defect in form
and that the appellees waived their complaint to it by failing to preserve error in the
trial court.10 We held that the trial court erred in denying the motion to compel
arbitration; we reversed the order and remanded with instructions for the trial court
to compel arbitration.11 Today, the en banc court holds that the same defect is a
defect in substance that may be raised for the first time on appeal and affirms the
trial court’s denial of a motion to compel arbitration based only on this defect.12

Houston [14th Dist.] 2012, no pet.).
5
    See ante at pp. 5–22.
6
    The majority agrees that the trial court did not rule on any such objections. See ante at p. 17.
7
  See Mansions in the Forest L.P., 365 S.W.3d at 316–18. The majority states that, to affirm on
this basis, the defect must be a defect in substance that may be raised for the first time on appeal.
See ante at pp. 17–22.
8
    See Courtland Building Co., 403 S.W.3d at 268–71 & n.4.
9
    See id. at 270–71 & n.4.
10
     See id.
11
     See id. at 277.
12
     See ante at pp. 10–22.

                                                    3
Holding that the defect in authentication may be raised for the first time on appeal
conflicts with both preservation-of-error principles and with Mansions’s teaching.

                      Recharting the Course: Preservation-of-Error Analysis

          The Mansions case maps the preservation-of-error analysis. In this 2012
opinion, the Supreme Court of Texas notes that, though an affidavit need not
contain a jurat, if a purported affiant does not swear to the statements in a
purported affidavit, then the written statement is unsworn and “no affidavit at
all.”13 The purported affiant in Mansions did not swear to the statements in the
“affidavit”; thus, there was “no affidavit at all,” and the document amounted to
nothing but unsworn statements.14 Nonetheless, the high court held that the normal
error-preservation rule applies to the failure to submit sworn statements; therefore,
these unsworn statements still were treated as if they were proper summary-
judgment evidence because the opposing party failed to preserve error in the trial
court.15

          The reasoning of the Mansions court as to the necessity of a trial-court
objection and adverse ruling signals a shift because it contradicts the reasoning the
high court employed four decades earlier in Perkins v. Crittenden as to why no
preservation of error was required in the trial court.16 In Perkins, the trial court
granted summary judgment in a suit on a promissory note, and the high court
emphasized the importance in a note case of having the claimant submit either the



13
  Mansions in the Forest L.P., 365 S.W.3d at 316–17. This characterization suggests that this
defect would be a defect in substance if the defect-of-form/defect-of-substance analysis applied.
14
     See id.
15
     See id. at 316–18.
16
     Compare id. at 316–18, with Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970).

                                                 4
original promissory note or a sworn copy of the note.17 In that case, the claimant
failed to do either, submitting only an unsworn copy of the promissory note, but
the defendants did not object to this defect in the trial court.18 The Perkins court
held that the failure to submit an affidavit or other sworn statement regarding the
promissory note was not a defect in form and that the defendants could complain
of this defect for the first time on appeal.19 Thus, the Perkins court held that a
party’s submission of an unsworn promissory note as summary-judgment evidence
could be challenged for the first time on appeal, but the Mansions court held that a
party’s submission of unsworn statements from a purported affiant could not be
challenged for the first time on appeal.20

           Declining to apply Perkins, the Mansions court characterized the Perkins
holding as one of the “limited circumstances” in which the high court has allowed
parties to deviate from the general preservation-of-error requirement.21 The
Mansions court stated that the Perkins holding still survives and characterized this
holding as “addressing an unverified copy of a promissory note offered as
summary judgment evidence, which was complained about for the first time on
appeal.”22 Today’s case does not fall within this “limited circumstance.”

           A promissory note is not like other documents. It is a special piece of paper
— a negotiable instrument that can be transferred from one holder to another and
ultimately exchanged for money. Because promissory notes are governed by a
unique set of rules, it is not surprising that the Supreme Court of Texas would
17
     See Perkins, 462 S.W.2d at 566–67.
18
     See id. at 566–68.
19
     See id. at 568.
20
     See Mansions in the Forest, L.P., 365 S.W.3d at 316–17; Perkins, 462 S.W.2d at 566–68.
21
     See Mansions in the Forest, L.P., 365 S.W.3d at 317.
22
     Id.

                                                 5
recognize an exception to the general preservation-of-error rule for promissory
notes. An arbitration agreement is not a promissory note. Perkins does not apply
to arbitration agreements. It is not on point.

          Because today’s case does not involve the proffer of an unsworn or
unverified promissory note as summary-judgment evidence, under the Mansions
precedent, the Perkins case offers no support for the en banc court’s holding.23
Yet, the en banc majority relies on Mansions and Perkins to hold that Champion’s
failure to submit an affidavit authenticating the attached copy of the arbitration
agreement is a defect in substance that may be challenged for the first time on
appeal.24

                              Applying the Mansions Framework

          Significantly, the Mansions court did not adopt or follow the defect-of-
form/defect-of-substance dichotomy the en banc majority invokes today.25 Though
the high court noted that a half-dozen courts of appeals (including the Fourteenth
Court of Appeals) had held that the defect in question was a defect of substance
that may be raised for the first time on appeal, the Mansions court did not address
whether the defect was one of form or one of substance.26 Instead, the Mansions
court framed the issue as whether an exception to the normal error-preservation
rule was justified.27 Rather than conclude that the defect at issue was a defect of
form, the Mansions court simply determined that no exception to the normal error-

23
     See id.
24
     See ante at pp. 18–22.
25
   See Mansions in the Forest, L.P., 365 S.W.3d at 316–18; Timothy Patton, Summary
Judgments in Texas § 6.10[1][d] (3d ed. 2012) (noting that the Mansions court did not decide the
issue based on the form versus substance analysis).
26
     See Mansions in the Forest, L.P., 365 S.W.3d at 316–18.
27
     See id.; Timothy Patton, Summary Judgments in Texas § 6.10[1][d] (3d ed. 2012).

                                                 6
preservation rule was justified.28

         To get the right answer, we must ask the right question: Does the normal
preservation-of-error rule apply or does today’s case present a limited
circumstance in which it does not apply? The normal rule applies. Instead of
treating the arbitration agreement like a promissory note in a “limited
circumstances” case, the en banc court should conclude that no exception to the
normal error-preservation rule is justified for this deficiency.               Therefore, the
appellees waived the defect by their failure to preserve error in the trial court.29

         The rule requiring error preservation is grounded in principles of fairness
and efficiency, under which an appellate court ought not entertain a complaint that
was not ruled on by the trial court.30 The Supreme Court of Texas honored these
principles in Mansions, signaling that except in “limited circumstances” appellate
courts should not deviate from the general preservation-of-error rule. There is no
basis for deviating in today’s case.

                                           Conclusion

         The en banc majority concludes that, in addition to being bound by
Mansions, this court is bound by the decisions of prior panels of this court to hold
that a complete failure to authenticate an exhibit is a defect in substance that may
28
     See Mansions in the Forest, L.P., 365 S.W.3d at 317–18.
29
   See Mansions in the Forest, L.P., 365 S.W.3d at 316–18; Timothy Patton, Summary
Judgments in Texas § 6.10[1][d] (3d ed. 2012) (stating that, while the Mansions opinion
“specifically dealt only with the issue of an omitted jurat, the court emphasized that ‘important
prudential considerations’ justify preservation of error requirements and that only ‘in certain
limited circumstances’ will parties be allowed to bypass Rule 33.1”).
30
   See In re B.L.D., 113 S.W.3d 340, 350, 353–54 (Tex. 2003) (noting that the preservation-of-
error rule promotes fairness to litigants, accurate judicial decision-making, and judicial
economy); In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003) (noting that the preservation-of-error
rule is not a mere technical nicety and that appellate review of unpreserved error undermines the
intent to ensure finality).

                                                 7
be raised for the first time on appeal.31 But, today’s case is not determined by
principles of stare decisis. The Supreme Court of Texas has not addressed the
precise issue the en banc court decides today. As noted, judicial dicta in Mansions
support an analysis under which this court should conclude that error must be
preserved in the trial court.32 Though prior panel decisions of this court support the
proposition that the defect is a defect of substance that may be raised for the first
time on appeal, these opinions conflict with Mansions. In any event, the en banc
court is not bound by this court’s prior panel opinions. The en banc court is free to
choose the analysis and the rule to apply today.33

          In Mansions, the Supreme Court of Texas set the course we are to follow in
determining whether the normal preservation-of-error rule applies to the
authentication defect at issue in today’s case. Under this precedent, the


31
     See ante at pp. 20-21.
32
   See Mansions in the Forest, L.P., 365 S.W.3d at 316–18; Timothy Patton, Summary
Judgments in Texas § 6.10[1][d] (3d ed. 2012).
33
   See Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 & n.8 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied) (en banc). The en banc majority also states that every intermediate
court of appeals that has addressed this issue has held that the defect is a defect of substance that
may be raised for the first time on appeal. See ante at pp. 20–21, n.5. This statement is incorrect.
See Gomez v. Allstate Texas Lloyds Ins. Co., 241 S.W.3d 196, 202 (Tex. App.—Fort Worth
2007, no pet.). In Gomez, the appellants complained that the movant “failed to authenticate the
copy of the underlying petition attached to [its] motion for summary judgment because [the
document] was neither certified nor supported by affidavit.” Id. The Gomez court held that this
failure to authenticate the attached document was a defect of form and that the appellants waived
their complaint by failing to timely object in the trial court. See id.
        Though the en banc majority is correct that many intermediate courts of appeals have
reached the same conclusion as the en banc majority does today, the en banc court is not bound
by these decisions. Most of these cases were decided before Mansions and the intermediate
courts in the post-Mansions cases do not address the effect of the Mansions court’s analysis or
invoke the Mansions court’s preservation-of-error framework. Moreover, in Mansions the
Supreme Court of Texas noted that its decision conflicted with the decisions of eight different
intermediate courts of appeals (including the Fourteenth Court of Appeals) and did not cite any
court of appeals case that supported its analysis. See Mansions in the Forest, L.P., 365 S.W.3d at
317–18.

                                                 8
authentication of arbitration agreements does not constitute a “limited
circumstance” justifying a deviation from the general preservation-of-error
requirement. The en banc court should apply the normal preservation-of-error rule
and hold that the failure to authenticate the copy of the arbitration agreement is a
defect which the appellees waived by failing to secure a ruling from the trial court.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice

Justice Wise authored the En Banc Majority Opinion, in which Justices Boyce,
Jamison, Donovan, and Brown joined. Chief Justice Frost authored an En Banc
Dissenting Opinion. Justice Christopher authored an En Banc Dissenting Opinion,
in which Justices McCally and Busby joined.




                                             9
