

                                          NO. 07-09-0261-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL E

                                           FEBRUARY 3, 2011








                                  DALE WINFIELD, GLORIA JOHNSON, AND
                                      JAMES WINFIELD, APPELLANTS


                                                  v.


                                     KAREN SUE PIETSCH, APPELLEE





                           FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                             NO. 60,121-B; HONORABLE JOHN B. BOARD, JUDGE






Before CAMPBELL, PIRTLE, JJ. and BOYD, S.J.[1]


                                          MEMORANDUM OPINION

      Appellants, Dale Winfield, Gloria Johnson, and James Winfield (Winfields), appeal from a  take-
nothing judgment granted in favor of Appellee, Karen Sue Pietsch, pursuant to  Rule  166a(c)  of  the
Texas Rules of Civil Procedure, in an action seeking to  set  aside  the  unprobated  will  of  their
mother, Jena Beth Winfield, and a general warranty deed transferring property from Jena  to  Pietsch,
Jena's daughter.  The Winfields assert the trial court erred by  (1)  granting  summary  judgment  in
favor of Pietsch and (2) denying Winfields' motion for new trial.   The  Winfields  also  assert  (3)
this Court erred by earlier dismissing for want of jurisdiction that part of their appeal  pertaining
to the trial court's denial of their claims pertaining to Jena's unprobated will.[2]  We affirm.

                                              Background

      On June 18, 2008, the Winfields filed an original petition seeking:  (1) to  set  aside  Jena's
unprobated will and a  general  warranty  deed  alleging  the  instruments  were  obtained  by  undue
influence and/or fraud; (2) a declaratory judgment establishing the rights  of  the  parties  to  the
property in question; (3) damages for tortious conduct; and (4) recovery of reasonable and  necessary
attorney's fees.  Pietsch answered with a general denial and special exception  asserting  the  trial
court lacked jurisdiction over the unprobated will claims.




      I.    No-Evidence Motion for Summary Judgment

      On March 9, 2009, Pietsch filed a no-evidence  motion  for  summary  judgment.   The  Winfields
responded with three affidavits.  Dale Winfield's affidavit stated that, after their father's  death,
Jena indicated that she wanted her property to benefit all of  her  children  and  grandchildren  and
stated she wanted to benefit from her  house  during  her  lifetime.   He  also  stated  that  Jena's
handwritten journal indicated she had great love and affection  for  her  daughter,  Gloria  Johnson,
whom he believed Jena wanted to include in any transfer of her house.  He  stated  that,  during  the
time period wherein Jena decided to execute  a  will  leaving  all  her  property  to  Pietsch  while
excluding the Winfields and transferring her house to Pietsch, Jena was  an  elderly  woman  with  "a
propensity to engage in over consumption of wine" and "was taking pain medication."

       Richard  Naylor,  the  Winfields'  counsel,  executed  an  affidavit   authenticating   Jena's
handwritten journal wherein she expressed affection for all her children and Shayla Coon executed  an
affidavit authenticating the time records of Bill Cornett,  Jena's  attorney.   The  billing  records
disclosed the following information, in pertinent part:

      10/26/05--Drafted Special Warranty Deed, called our client to see if she wanted a  life  estate
      in home.  She said she did, but she doesn't really understand exactly what documents she  needs
      to have prepared.  She was just wanting her  daughters  (sic)  name  on  the  deed  with  hers,
      actually both of her daughters (sic) names, Karen Sue Pietsch and Gloria Jean Johnson.

      11/05/05--Prepared general warranty deed.

      12/15/05--Conference with Jena Beth Winfield,  discussed  warranty  deed.   Prepared  deed  per
      Jena's instructions leaving off Gloria Johnson.




      On April 22, 2009, Pietsch objected to evidence filed in support of  the  Winfields’  response,
i.e., the affidavits of Dale Winfield and Naylor's record  affidavit  appending  portions  of  Jena's
diary or journal.  Pietsch objected to Dale Winfield's  affidavit  as  being  conclusory---containing
speculation, legal argument, and unsubstantiated opinions without any supporting factual basis.   She
asserted Jena's diary or journal entries and Dale Winfield's affidavit had  no  relevance  to  Jena's
mental state or thought processes at the time the deed was executed.  Rather,  Pietsch  asserted  the
only evidence offered by the Winfields of Jena's mental capacity at the time of the execution of  the
general warranty deed was Bill Cornett's time records wherein he indicated he had a  conference  with
Jena, discussed the warranty deed, and prepared the deed in question as per her instructions.

      On May 4, 2009, the trial court issued its order granting summary judgment in  Pietsch's  favor
and stated, in pertinent part, as follows:

      The Defendant having filed objections to the evidence offered in response to such  motion,  the
      Court finds that the objections filed by Defendant to the Evidence  offered  by  Plaintiffs  in
      Response to her no evidence  motion  for  summary  judgment  are  well  taken  and  are  hereby
      sustained, and

      The Court finds that Defendant's motion for summary judgment is well  taken  and  the  same  is
      hereby granted, judgment entered that Plaintiffs, [the Winfields] take nothing by  their  cause
      of action, and that Defendant recover her costs of court expended herein from such Plaintiffs.

      From which judgment execution may issue.  All other relief  not  expressly  granted  herein  is
      hereby expressly denied.






      II.   Motion for New Trial

      On May 27, 2009, the Winfields filed a motion  for  new  trial  based  upon  "newly  discovered
evidence" and attached the affidavits by Gloria Johnson and Yong Menkhoff.  Gloria Johnson stated  in
her affidavit that, on May 19, 2009, she "had occasion to visit with Yong  Menkhoff  a  hair  stylist
who had done [her] hair and [her] mother's . . . hair for many years prior to [her] mother's  death."
 She further stated that, during  the  visit,  she  "learned  for  the  first  time  that  [Menkhoff]
continued to cut/style [her] mother's hair until about one year before [her] mother's death."

      In her affidavit, Yong Menkhoff stated that she styled Jena's  hair  from  1994  through  2008.
During that time, Menkhoff became "well familiar with her."   They  "often  discussed  her  children,
family and what she would like to do with her property especially her house."  After  Jena's  husband
died, Jena told Menkhoff that she wanted her house to pass  to  her  daughter,  Gloria  Johnson.   In
addition, Menkhoff noticed a change in Jena's behavior after  her  husband  died,  i.e.,  Jena  began
slurring her words, prompting Menkhoff to suggest that Jena see a doctor  to  find  out  if  she  was
being over medicated.

      Thereafter, the Winfields’ motion for new trial was overruled by operation of law  seventy-five
days after the trial court signed its order granting summary judgment.  See Tex. R. Civ. P.  329b(c);
Herrera v. Seton Northwest Hospital, 212 S.W.3d 452, 462  (Tex.App.--Austin  2006,  no  pet.).   This
appeal followed.




      III.  Jurisdiction

      On September 4, 2009, Pietsch filed a motion to dismiss  the  Winfields'  appeal  for  want  of
jurisdiction asserting this Court lacked jurisdiction to hear the Winfields' appeal related to  their
claims pertaining to Jena's will.  Pietsch also asserted that the Winfields' claims  related  to  the
general warranty deed were moot because Jena's will divested the Winfields of any interest in  Jena's
estate and they failed to contest  the  admission  of  her  will  in  a  subsequently  filed  probate
proceeding.  In a per curiam ruling, as to those claims pertaining to the validity  of  Jena's  will,
this Court vacated the judgment of the trial court and dismissed that  portion  of  this  appeal  for
want of jurisdiction.

                                              Discussion

      The Winfields assert summary judgment in Pietsch's favor was improper  because  their  evidence
raised a fact issue  whether  Pietsch  exerted  an  undue  influence  over  Jena,  or  defrauded  the
Winfields, by obtaining Jena's signature on the general warranty  deed  conveying  her  residence  to
Pietsch, to the exclusion of the Winfields.  They also assert the trial court erred in denying  their
motion for new trial.  Finally, the Winfields urge this  Court  to  reverse  rather  than  vacate  an
"implied" ruling by the trial court on Pietsch's special  exception  contained  in  her  answer  that
asserted the trial court lacked jurisdiction over the Winfields’ will challenge.




      I.    No-Evidence Summary Judgment

      A.    Standard of Review

      Because Pietsch's summary judgment motion was a no-evidence motion, we  consider  the  evidence
in a light most favorable to the non-movant; King Ranch, Inc. v. Chapman, 118 S.W.3d 742,  750  (Tex.
2003), cert. denied, 54 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711  (2004),  while  disregarding  all
contrary evidence and inferences.  Id. at 751 (citing  Merrell  Dow  Pharms.,  Inc.  v.  Havner,  953
S.W.2d 706, 711 (Tex. 1997)).  "A no evidence point will be sustained when (a) there  is  a  complete
absence of vital fact, (b) the court is barred by rules of law or of evidence from giving  weight  to
the only evidence offered to prove a vital fact, (c) the evidence offered to prove a  vital  fact  is
no more than a mere scintilla, or (d) the evidence  conclusively  establishes  the  opposite  of  the
vital fact."  Id.  In sum, a no-evidence summary judgment is improperly  granted  if  the  respondent
brings forth more than a scintilla of probative evidence to raise a genuine issue of  material  fact.
Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).[3]

      B.    Undue Influence and Fraud

      The Winfields have the burden of proving undue influence was exerted  in  connection  with  the
execution of the general warranty deed.  In re Estate of Woods, 542  S.W.2d  845,  847  (Tex.  1976).
Before an instrument may be set aside on grounds of undue influence, the contestant must  prove:  (1)
the existence and exertion of an influence; (2) the effective operation of such influence  so  as  to
subvert or overpower the mind of the person at the time the person is executing the  instrument;  and
(3) the execution of the instrument which the maker thereof would not  have  executed  but  for  such
influence.  Id. (quoting Rothermel v. Duncan, 369 S.W.2d 917, 921 (Tex. 1963)).

      As to their fraud claims, the Winfields also have the burden of  proving  fraud  in  connection
with the execution of the general warranty deed.  King Ranch, 118 S.W.3d at  751.   The  elements  of
fraud are:  (1) that a material misrepresentation was made; (2) the  representation  was  false;  (3)
when the representation was made, the speaker knew it was false or made  it  recklessly  without  the
knowledge of the truth and as a positive assertion; (4) the speaker made the representation with  the
intent that  the  other  party  should  act  upon  it;  (5)  the  party  acted  in  reliance  on  the
representation; and (6) the party thereby suffered injury.  Aquaplex, Inc.  v.  Rancho  La  Valencia,
297 S.W.3d 768, 774 (Tex. 2009) (quoting In re FirstMerit  Bank,  N.A.,  52  S.W.3d  749,  758  (Tex.
2001)).

      The Winfields submitted three affidavits  in  response  to  Pietsch's  no-evidence  motion  for
summary judgment.  Two of the affidavits were not considered by the trial court due to relevancy  and
evidentiary objections.  That is, the trial court sustained Pietsch's objections that the  affidavits
were irrelevant to Jena's state of mind at the time the  deed  was  executed  and  were  conclusory--
containing speculation, legal arguments, and unsubstantiated opinions.[4]  Thus, the  only  remaining
affidavit supporting the Winfield's response was the affidavit  of  Shayla  Coon  authenticating  the
time records of Bill Cornett, Jena's attorney, wherein Cornett indicated that, on November 26,  2005,
Jena asked him to draft a warranty deed with her name and the names of both  her  daughters,  Pietsch
and Johnson, on the deed.  And, on December 15, 2005, Cornett had a conference with Jena  to  discuss
the deed wherein he was instructed by Jena to draft the deed  "leaving  off  Gloria  Johnson."   This
evidence merely indicates that, in the space of about a month and  a  half,  Jena  changed  her  mind
regarding whether or not she wanted Johnson to be named on  the  deed.   There  was  no  evidence  of
Jena's state of mind at the time she met with her attorney to finally draft  and  execute  the  deed.
Under these circumstances, we cannot say the Winfields raised a fact  issue  as  to  any  element  of
either action--undue influence or fraud.

      In order to find a fact issue exists, the Winfields assert that we should  consider  Menkhoff's
affidavit filed with  their  motion  for  new  trial.   That  we  cannot  do.   In  summary  judgment
proceedings, the Texas Rules of Civil Procedure state, in pertinent part, as follows:

      Except on leave of court, the adverse party, not later than seven days prior to the day of  the
      hearing may file and serve opposing affidavits or other written response  .  .  .  [and]  [t]he
      judgment sought shall  be  rendered  forthwith  if  .  .  .  (ii)  the  pleadings,  admissions,
      affidavits, stipulations of the parties . . . on file at the time  of  the  hearing,  or  filed
      thereafter and before judgment with permission of the court, show  that  .  .  .  there  is  no
      genuine issue as to any material fact and the moving party is entitled to judgment as a  matter
      of law on issues expressly set out in the motion or in an answer or any other response.  Issues
      not expressly presented to the trial court by written motion, answer or  other  response  shall
      not be considered on appeal as grounds for reversal.

Tex. R. Civ. P. 166a(c); (emphasis supplied).

      Menkhoff's affidavit was first filed with the Winfields' motion for new trial.   The  affidavit
was not on file at the time of the  summary  judgment  hearing  and  the  Winfields  never  requested
permission to file the affidavit prior to judgment.  Therefore, having been  filed  with  the  motion
for new trial, Menkhoff's affidavit was not before the trial court at the  time  it  granted  summary
judgment.  As a result, we cannot consider Menkhoff's affidavit  in  our  determination  whether  the
Winfields raised an issue of fact precluding summary judgment.  White v. Wah,  789  S.W.2d  312,  319
(Tex.App.--Houston [1st Dist.] 1990, no writ).  See First Gibraltar Bank, FSB v. Farley,  895  S.W.2d
425, 430 (Tex.App.--San Antonio 1995, no writ).  Accordingly, point of error one is overruled.

      II.   Motion for New Trial

      A.    Standard of Review

      Whether a motion for new trial will be granted or denied is generally  a  matter  addressed  to
the sound discretion of the trial court; Jackson v. Van Winkle, 660  S.W.2d  807,  809  (Tex.  1983),
overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003), and when,  as  here,
the motion is overruled by operation of law pursuant to Rule 329b(c) of  the  Texas  Rules  of  Civil
Procedure, the question becomes whether the trial court abused its discretion by allowing the  motion
to be overruled.  Herrera, 212 S.W.3d at 462 (citing Limestone Constr.,  Inc.  v.  Summit  Commercial
Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex.App.--Austin 2004, no pet.)).  This is  a  question  of
law.  Jackson, 660 S.W.2d at 810.

      A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or  it
acts without reference to any guiding principles of law.  Downer v. Aquamarine Operators,  Inc.,  701
S.W.2d 238, 241-42 (Tex. 1985).  Moreover, every reasonable presumption will be made in  favor  of  a
trial judge's denial of a party's motion for a new trial.  Jackson, 660  S.W.2d  at  810;  Rivera  v.
Countrywide Home Loans, Inc., 262 S.W.3d 834, 844 (Tex.App.--Dallas 2008, no pet.).

      B.    The Winfields' Motion

      A party seeking a new trial on grounds of newly discovered evidence  must  demonstrate  to  the
trial court that (1) the evidence came to his or her knowledge after the trial; (2) in  the  exercise
of due diligence, the evidence could not  have  been  produced  earlier;  (3)  the  newly  discovered
evidence is not cumulative; and (4) the evidence is so material that  it  would  probably  produce  a
different result in a new trial.  Waffle House, Inc. v. Williams, 313 S.W.3d 796,  813  (Tex.  2010);
Jackson, 660 S.W.2d at 809.  Assuming without deciding whether  the  Winfields  satisfied  the  first
three criteria, we find the purported newly discovered evidence was not material and  probably  would
not have altered the trial court's decision to permit  the  Winfields'  motion  to  be  overruled  by
operation of law pursuant to Rule 329b(c) of the Texas Rules of Civil Procedure.

      "Where the trial court would have  excluded  the  'newly  discovered  evidence'  for  the  same
reasons it excluded other similar evidence during the proceedings, the trial  court  does  not  abuse
its discretion in denying the motion for new trial."  Waffle House, Inc., 313  S.W.3d  at  313.   See
Rivera, 262 S.W.3d at 845.  Like Dale Winfield's  affidavit,  Menkhoff's  affidavit  indicates  that,
after Jena's husband died, Jena mentioned that she wanted her  house  to  pass  to  Johnson  and  was
taking medication--possibly  causing  her  to  slur  her  words.   Like  Dale  Winfield's  affidavit,
Menkhoff's affidavit also contains unsupported conclusions related to Jena's mental state.   Further,
Menkhoff's observations were limited generally to behavior exhibited by Jena while  she  was  at  the
salon to get her hair done without any reference to Jena's state of mind at or around  the  time  she
executed the general warranty deed.  Thus, this purported newly  discovered  evidence  is  consistent
with evidence rejected by the trial judge during the summary judgment  proceedings,  and  is  not  so
material that it would probably produce a different  result  with  regard  to  the  summary  judgment
granted.[5]  Accordingly, we cannot say  the  trial  court  abused  its  discretion  by  denying  the
Winfields' motion for new trial.  Accordingly, point of error two is overruled.

      III.  Motion to Dismiss--Subject Matter Jurisdiction

      The Winfields do not disagree with this Court's  determination  that  the  trial  court  lacked
subject matter jurisdiction over the Winfields’ challenge to Jena's will.  Rather, they contend  that
this Court erred by vacating the trial court's judgment due to a lack of subject matter  jurisdiction
insofar as it pertained to the Winfields' will challenge  instead  of  reversing  the  trial  court's
implied ruling erroneously denying Pietsch's jurisdictional challenge.

      Importantly, the Winfields are mistaken in their  assertion  that  the  trial  court's  summary
judgment impliedly denied Pietsch's  special  exception  to  the  jurisdiction  of  the  trial  court
contained in Pietsch's answer because the summary  judgment  stated  that  "[a]ll  other  relief  not
expressly granted herein is hereby expressly denied."   To  the  contrary,  in  the  absence  of  any
indication in the record that the trial court actually ruled on  the  issue  raised  by  the  special
exception, granting summary judgment does not imply  a  ruling  on  a  special  exception;  Tri-State
Association of Credit Men v. Hinson, 144 S.W.2d 881, 882 (Tex. 1940); Franco v.  Slavonic  Mut.  Fir.
Ins. Ass'n, 154 S.W.3d 777, 784-85 (Tex.App.--Houston [14th Dist.] 2004, no  pet.);  Rosas  v.  Hatz,
147 S.W.3d 560, 562-63 (Tex.App.--Waco 2004, no pet.), even if the judgment  includes  the  statement
that all relief not expressly granted is denied.  In the Estate of J.W. Tyner, 292 S.W.3d  179,  185-
86 (Tex.App.--Tyler 2009, no pet.).  In the absence of a written order on the special exception,  the
special exception is waived.  Galien v. Washington Mutual Home  Loans,  Inc.,  209  S.W.3d  856,  862
(Tex.App.--Texarkana 2006, no pet.).[6]  Here, there is  no  evidence  in  the  record  that  Pietsch
either brought her special exception to the trial court's attention or that the trial court ruled  on
any special exception.

      When a lower court lacks subject matter  jurisdiction  to  hear  a  particular  claim  that  is
brought up on appeal, an appellate court is empowered to dispose of the claim on appeal  by  vacating
the trial court's judgment and dismissing the case.  Tex. R. App. P. 43.2(e).  See generally  Marshal
v. Housing Authority of the City of San Antonio, 198  S.W.3d  782,  790  (Tex.  2006)  (when  subject
matter jurisdiction was lacking, Supreme Court vacated the judgments of  the  court  of  appeals  and
trial court and dismissed the case).  See also Brown  v.  Fullenweider,  52  S.W.3d  169,  171  (Tex.
2001); Patterson v. Planned Parenthood of Houston and Southeast Texas,  Inc.,  971  S.W.2d  439,  444
(Tex. 1998).  Further, when the trial court lacked subject matter jurisdiction over a portion of  the
claims asserted on appeal, an accepted method of disposition  on  appeal  is  to  vacate  only  those
portions of the lower court's judgment that are affected  and  dismiss  the  claims  over  which  the
appellate court lacks jurisdiction.  See Brooks v. Northglen Association, 141 S.W.3d 158,  164  (Tex.
2003).  Having considered the  Winfields'  contentions,  we  are  unpersuaded  that  the  appropriate
disposition of Pietsch's motion to dismiss for lack of subject matter jurisdiction  would  have  been
to reverse the trial court's order of summary judgment rather than vacate the  judgment  only  as  to
those claims pertaining to the validity of Jena's will and consider, on  appeal,  those  claims  over
which the trial court and this Court had  subject  matter  jurisdiction.      Accordingly,  point  of
error three is overruled.



                                              Conclusion

      The trial court’s judgment is affirmed.



                                        Patrick A. Pirtle
                                              Justice
-----------------------
[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.   Tex.  Gov't
Code Ann. § 75.002(a)(1) (West 2005).

[2]The Winfields originally sought to "set aside" an unprobated  will  allegedly  executed  by  Jena.
The trial court denied relief and the Winfields appealed.  Pietsch moved to dismiss that  portion  of
the appeal pertaining to the unprobated will based on a lack  of  subject  matter  jurisdiction.   We
agreed and on October 2, 2009, dismissed this appeal as it pertained to the validity  of  that  will.
Subsequent to the perfection of this appeal, that will was admitted to probate in Cause No. 2009-191-
P in the County Court in and for Randall County.  The Winfields did  not  contest  the  admission  of
that will, nor did they appeal the order admitting it to probate.  Instead, they maintain  that  they
did not have actual notice of the proceedings sufficient to contest the will when  presented  to  the
County Court.  They do not address whether they had notice sufficient to contest the probate of  that
will by direct appeal, restricted appeal, or bill of review.

[3]Less than a scintilla exists when the evidence is "so weak as to do no more  than  create  a  mere
surmise or suspicion" of a fact.  King Ranch, 118 S.W.3d at 751 (citing Kindred  v.  Con/Chem,  Inc.,
650 S.W.2d 61, 63 (Tex. 1983)).  More than a scintilla of evidence exists when  the  evidence  "rises
to a level that would enable more reasonable and fair-minded people to differ in their  conclusions."
 Id. (citing Merrell Dow Pharms., 953 S.W.2d at 711)).

[4]The Winfields did not appeal the trial court's evidentiary ruling.

[5]Limestone Const., Inc. v. Summit Commercial Indus. Properties, Inc., 143  S.W.3d  538  (Tex.App.--
Austin 2004, no pet.) is of no  assistance  to  the  Winfields.   In  Limestone,  a  default  summary
judgment was granted against Summit by operation of law.  Id. at 540.  A new trial  was  subsequently
granted because Summit's attorney filed an affidavit  indicating  he  had  no  prior  notice  of  the
summary judgment motion or the hearing.  Id.  Being a default summary judgment, the  Limestone  court
did not apply the elements for determining whether any evidence was newly discovered.   Id.  at  544-
46.  Rather, assuming the truth of the affidavit by Summit's attorney, the Limestone court held  that
it need  not  consider  any  subsequent  evidence  offered  by  Limestone  refuting  the  affidavit's
statements because Limestone did not request a hearing on Summit's motion for new trial.  Id. at 546-
47.  Here, assuming the truth of Menkhoff's  affidavit,  her  affidavit  still  does  not  offer  any
evidence of Jena's state of mind at or around the day she executed the general warranty deed.

[6]At oral argument, Winfields' counsel asserted that, in failing  to  bring  her  special  exception
before the trial court, Pietsch waived any objection she might have had to  the  trial  court  and/or
this Court asserting subject matter  jurisdiction  over  the  Winfields'  will  challenge.   Although
Pietsch waived any remedy pursuant to her special exception before the trial court by  proceeding  to
judgment without bringing the special exception to the trial court's attention, this waiver  did  not
vest the trial court with jurisdiction, nor did it prevent her from subsequently filing a  motion  to
dismiss on appeal premised on a lack of subject matter jurisdiction.  Subject matter jurisdiction  is
fundamental; Federal Underwriters Exchange v. Pugh, 174  S.W.2d  598,  600  (Tex.  1943),  cannot  be
waived; In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex.  2009)  (citing  Alfonso
v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008)), and can be raised at any time.  Tex.  Ass'n  of  Bus.  v.
Tex Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).



