Affirmed and Majority and Dissenting Opinions filed September 4, 2014.




                                      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

                  DISSENTING OPINION
      Today the majority 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 rather than a defect in form. Under
recent precedent from the Supreme Court of Texas and from this court, this flaw is
a defect in form that the claimants waived by their failure to object and obtain a
ruling on their objection in the trial court. Accordingly, the trial court’s order
cannot properly be affirmed based on this defect.
To affirm based on the defect in authentication, the defect must be substantive.
          Appellant/defendant Mike Hall Chevrolet, Inc. d/b/a Champion Chevrolet
(hereinafter “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.1                            The
majority affirms the trial court’s denial of Champion’s motion to compel
arbitration based solely on this defect. 2

          Even if all claimants objected to this defect in the trial court, they did not
preserve error because none of them obtained a ruling. 3 For this court to affirm
based on this defect, this defect must be a defect in substance that may be raised
for the first time on appeal rather than a defect in form that requires preservation of
error in the trial court. 4

Less than two years ago, this court held that the same defect in authentication
was a defect in form rather than a defect in substance.
          In the Courtland Building case, decided less than two years ago, this court

1
 See Courtland Building Co. v. Jalal Family P’ship, 403 S.W.3d 265, 270 & n.4 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).
2
    See ante at pp. 10–19.
3
    The majority agrees that the trial court did not rule on any such objections. See ante at p. 16.
4
  See Courtland Building Co., 403 S.W.3d at 270 & n.4. The majority agrees that, to affirm on
this basis, the defect must be a defect in substance rather than in form. See ante at pp. 16–19.

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reviewed a trial court’s order denying a motion to compel arbitration. 5 Like the
motion in the case under review, that motion included an attached copy of the
arbitration agreement as an exhibit without any affidavit or any sworn statement
authenticating the attached agreement. 6 This court held that this defect was a
defect in form and that the appellees waived their complaint to this defect by
failing to object in the trial court.7 And, this court held that the trial court erred in
denying the motion to compel arbitration, reversed the order, and remanded with
instructions for the trial court to compel arbitration. 8

          Today, this court holds that the same defect is a defect in substance and
affirms the trial court’s denial of a motion to compel arbitration based only on this
defect.9 Today’s panel is bound by the prior panel opinion in the Courtland
Building case.10 By not following this precedent, the panel creates uncertainty and
a lack of uniformity in this court’s precedent.



5
    See Courtland Building Co., 403 S.W.3d at 268–71 & n.4.
6
    See id. at 270–71 & n.4.
7
    See id.
8
    See id. at 277.
9
    See ante at pp. 10–19.
10
    See Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 & n.8 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied) (en banc); Courtland Building Co., 403 S.W.3d at 268–71 & n.4. In In
re Universal Fin. Consulting Group, the plaintiffs objected in the trial court that the agreements
supporting the motion to compel arbitration were not authenticated by an affidavit, and the trial
court sustained these objections in its order denying arbitration. See In re Universal Fin.
Consulting Group, Inc., No. 14-08-00226-CV, 2008 WL 2133186, at *1–2 (Tex. App.—Houston
[14th Dist.] May 20, 2008, orig. proceeding) (per curiam, mem. op.). Therefore, the opinion in
In re Universal Fin. Consulting Group does not conflict with the Courtland Building case. See
id.




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Holding that the defect in authentication is a defect in substance conflicts with a
recent case from the Supreme Court of Texas.

          In 2012, in the Mansions in the Forest case, the Supreme Court of Texas
noted that, though an affidavit need not contain a jurat, if an alleged affiant does
not swear to the statements in a purported affidavit, then the written statement is
unsworn and “no affidavit at all.”11 In that case, the putative affiant 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. 12 Nonetheless, the high
court held that the failure to submit sworn statements was a defect in form, and
therefore, these unsworn statements still would be treated as if they were proper
summary-judgment evidence because the opposing party failed to preserve error in
the trial court. 13


          The reasoning of the Mansions in the Forest court as to whether an objection
in the trial court was required contradicts the reasoning the high court employed
forty-two years earlier in Perkins v. Crittenden as to why no objection was
required in the trial court.14 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 original promissory note or a
sworn copy of the note. 15 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



11
   Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 316–17 (Tex. 2012)
(per curiam).
12
     See id.
13
     See id. at 316–18.
14
     Compare id. at 316–18, with Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970).
15
     See Perkins, 462 S.W.2d at 566–67.

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this defect in the trial court.16 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. 17 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 in the Forest court held that a party’s submission
of unsworn statements from a purported affiant could not be challenged for the first
time on appeal. 18 The Mansions in the Forest 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 requirements. 19                    The
Mansions in the Forest 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.”20


           Today’s case does not involve the proffer of an unsworn or unverified
promissory note as summary-judgment evidence and, therefore, under the
Mansions in the Forest precedent, the Perkins case is not on point.21 Relying on
Perkins, the panel holds 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. Instead, the panel
should rely on this court’s precedent in the Courtland Building case and conclude
16
     See id. at 566–68.
17
     See id. at 568.
18
     See Mansions in the Forest, L.P., 365 S.W.3d at 316–17; Perkins, 462 S.W.2d at 566–68.
19
     See Mansions in the Forest, L.P., 365 S.W.3d at 317.
20
     Id.
21
     See id.

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that this defect is a defect in form that appellees waived by their failure to preserve
error in the trial court. 22

                                       Conclusion

       Based upon recent precedent from both the Supreme Court of Texas and this
court, today’s panel should hold that the claimants waived their authentication
objections by failing to obtain a ruling from the trial court. Because the panel does
not do so, I respectfully dissent.




                                          /s/       Kem Thompson Frost
                                                    Chief Justice



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




22
   See Mansions in the Forest, L.P., 365 S.W.3d at 316–18; Courtland Building Co., 403 S.W.3d
at 268–71 & n.4.

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