Affirmed and Majority and Concurring Opinions filed June 30, 2016.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00858-CV

          PHILLIPS DEVELOPMENT & REALTY, LLC, Appellant
                                         V.
 LJA ENGINEERING, INC., F/K/A LJA ENGINEERING & SURVEYING,
                         INC., Appellee

                    On Appeal from the 127th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2013-67390

                   CONCURRING OPINION
      We must not attribute rulings to the trial court without a sound basis for
doing so. Today, the majority (1) incorrectly concludes that the trial court’s
findings of fact and conclusions of law constitute a ruling on appellant’s objections
to specific parts of testimony in two affidavits and (2) erroneously indicates that
appellant was required to preserve error in the trial court and assign error on appeal
for this court to consider whether a late-filed affidavit is part of the evidence that
may be considered in reviewing the trial court’s special-appearance ruling.

                                 The Lack of an Implicit Ruling

          The trial court did not implicitly rule on appellant/defendant Phillips
Development & Realty, LLC’s objections to Gregory J. Patch’s affidavit
testimony. In response to Phillips’s special appearance, appellee/plaintiff LJA
Engineering, Inc., f/k/a LJA Engineering & Surveying, Inc. filed Patch’s affidavit
and Patch’s supplemental affidavit. Focusing on only evidentiary objections as to
which error must be preserved in the trial court, Phillips lodged written objections
to Patch’s testimony in paragraphs 4, 5, and 9 of the original affidavit and to
Patch’s testimony in paragraphs 3 and 7 of the supplemental affidavit.1 Phillips
also objected to the admissibility of Exhibits C and D attached to Patch’s original
affidavit and Exhibits A, B, and D of Patch’s supplemental affidavit.

          In its findings of fact and conclusions of law, the trial court does not state
that it relied upon any of Patch’s affidavit testimony. Nor does the trial court cite
or refer to any of Patch’s affidavit testimony. The trial court does cite to Exhibits
A, A1, B1, B2, B3, C, and D to Patch’s original affidavit and to Exhibit C to
Patch’s supplemental affidavit.2 Even if the trial court’s citation to Exhibits C and


1
    Phillips also lodged objections as to which error did not have to be preserved in the trial court.
2
  In its second finding of fact, the trial court finds that LJA Engineering and Phillips “entered
into the Contract attached to the Affidavit [of] Gregory J. Patch (attached to Plaintiff’s Response
and Supplemental Response to Defendants’ Special Appearance as Exhibit ‘A’).” Neither
affidavit of Patch was an exhibit to a response or supplemental response, and the trial court
appears to be referring to the agreement attached as Exhibit A to Patch’s original affidavit but
not attached to Patch’s supplemental affidavit. In its third finding of fact, the trial court finds
that LJA Engineering and PDRH, LLC entered into two contracts “attached to the Affidavit of
Gregory J. Patch (attached to Plaintiff’s Response and Supplemental Response to Defendants’
Special Appearance as Exhibits ‘B1’ and ‘B2’).” In this finding, the trial court appears to be
referring to the contracts attached as Exhibit B1 and B2 to Patch’s original affidavit but not
attached to Patch’s supplemental affidavit. In its twentieth finding of fact, the trial court refers to
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D to Patch’s original affidavit constitutes an implicit overruling of Phillips’s
objections to these two exhibits, there is nothing in the trial court’s findings of fact
and conclusions of law that reasonably could be construed as an implicit ruling on
Phillips’s other evidentiary objections as to which error must be preserved in the
trial court.

         The trial court’s citing some of the exhibits attached to Patch’s affidavits
does not imply that the trial court overruled Phillips’s objections to the five
paragraphs of Patch’s testimony or to the three exhibits to which Phillips objected
but to which the trial court did not cite. Even if testimony to which Phillips
objected would support some of the trial court’s findings, the findings do not
reflect that the trial court relied upon this testimony — as opposed to other
evidence (including the cited exhibits) — for its findings.

         The majority concludes that, in the findings of fact and conclusions of law,
the trial court implicitly overruled all of Phillips’s objections because the trial court
relied upon the objected-to evidence as support for its findings and because the
trial court “liberally cited the affidavits to which Phillips objected.” Other than
mentioning Exhibits C and D to Patch’s original affidavit, the trial court did not
cite the objected-to evidence as support for its findings. And, the trial court did not
liberally cite the portions of the affidavits to which Phillips objected.

         Other than the general error-preservation rule in Texas Rule of Appellate
Procedure 33.1, the majority cites no authority in support if its conclusion.3 The


an “email attached as Exhibit ‘D’ to the Affidavit of Gregory J. Patch.” Neither Exhibit D to
Patch’s original affidavit nor Exhibit D to Patch’s supplemental affidavit is an email, and this
reference appears to be to the email attached as Exhibit C to Patch’s supplemental affidavit.
3
    See Tex. R. App. P. 33.1(a).

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appellate record and the trial court’s findings do not support the majority’s
conclusion that the trial court’s findings of fact and conclusions of law constitute
an implicit overruling of Phillip’s evidentiary objections as to which error must be
preserved in the trial court.

                          The Late-Filed Supplemental Affidavit

       If a party who has filed a special appearance or a party who opposes a
special appearance wants the trial court to consider an affidavit in ruling on the
special appearance, the party should serve the affidavit at least seven days before
the special-appearance hearing.4 LJA Engineering served Patch’s supplemental
affidavit and the exhibits attached thereto three days before the special-appearance
hearing. The trial court did not affirmatively give LJA Engineering leave to submit
the supplemental affidavit late. To determine whether the trial court erred in
denying Phillips’s special appearance, this court must determine whether the
supplemental affidavit was properly before the trial court and thus whether this
court may rely upon the supplemental affidavit as support for the trial court’s
special-appearance ruling.5

       The majority determines that the trial court considered Patch’s supplemental
affidavit and that the trial court did not abuse its discretion in doing so. In
addition, the majority states that it was incumbent on Phillips to preserve error in



4
 Tex. R. Civ. P. 120a(3) (stating that “[t]he affidavits, if any, shall be served at least seven days
before the hearing. . . “); Leben v. Treen, No. 13-02-309-CV, 2003 WL 22479150, at *2 (Tex.
App.—Corpus Christi Oct. 30, 2003, no pet.) (mem. op.).
5
 See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Davis-Lynch, Inc. v.
Asgard Techs., LLC, 472 S.W.3d 50, 58 n.4 (Tex. App.—Houston [14th Dist.] 2015, no pet.);
Tempest Broad. Corp. v. Imlay, 150 S.W.3d 861, 869–70 (Tex. App.–Houston [14th Dist.] 2004,
no pet.).

                                                 4
the trial court on its objections.6 But, even absent an objection by the opposing
party, unless there is a basis in the record to conclude that the trial court granted
leave for LJA Engineering to file the supplemental affidavit late, this court is to
presume that the trial court did not consider the affidavit, and this court is not to
consider the affidavit in determining the appeal.7

         In its opening brief, Phillips states that Patch’s supplemental affidavit was
filed three days before the special-appearance hearing and that Texas Rule of Civil
Procedure 120a(3) requires all affidavits to be filed at least seven days before the
special-appearance hearing. Phillips notes that it objected to the untimeliness of
the supplemental affidavit.       Phillips cites to the part of the clerk’s record
containing its objection to the untimeliness of the supplemental affidavit, the
reporter’s record from the special-appearance hearing, and Rule 120a(3). Though
Phillips sufficiently briefed an argument that the supplemental affidavit should not
be considered in this court’s review of the special-appearance ruling because the
supplemental affidavit was not timely filed, the majority indicates that Phillips was
required to assign error and make this argument in an issue presented.8 Under this
court’s precedent, Phillips was not required to assign error and make this argument
in an issue presented.9


6
    See ante at 12.
7
 See Benchmark Bank, 919 S.W.2d at 663; Davis-Lynch, Inc., 472 S.W.3d at 58 n.4; Envtl.
Procedures, Inc. v. Guidry, 282 S.W.3d 602, 610–12 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied); Tempest Broad. Corp., 150 S.W.3d 869–70.
8
    See ante at 12–13.
9
  See Benchmark Bank, 919 S.W.2d at 663; Davis-Lynch, Inc., 472 S.W.3d at 58 n.4; Envtl.
Procedures, Inc., 282 S.W.3d at 610–12; Tempest Broad. Corp., 150 S.W.3d 869–70. See also
Speedy Stop Food Stores, Ltd. v. Reid Road Municipal Util. Dist., 282 S.W.3d 652, 655 (Tex.
App.—Houston [14th Dist.] 2009) (considering challenge to trial court’s order striking
summary-judgment affidavit even though the appellant did not mention this ruling or any
                                            5
                                          Conclusion

       Though I respectfully disagree with the majority’s analysis, I concur in the
court’s judgment affirming the trial court’s denial of Phillips’s special appearance.




                                             /s/       Kem Thompson Frost
                                                       Chief Justice


Panel consists of Chief Justice Frost, Justice Jamison, and Justice McCally.
(Jamison, J., majority).




challenge to it in the issues presented in appellant’s opening brief), aff’d, 337 S.W.3d 846 (Tex.
2011).

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