Asset freeze by temporary injunction based on unadjudicated tort claim for unliquidated damages reversed by Austin Court of Appeals

Yvonne Brown v. Coffee Traders, Inc., No. 03-18-00428-CV (Tex.App. - Austin, Nov. 21, 2018) (temporary injunction improperly used for prejudgment asset freeze; dissolved)

Yvonne Brown, Appellant,
v.
Coffee Traders, Inc., Appellee.

No. 03-18-00428-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: November 21, 2018.

Appeal from the District Court of Travis County, 201st Judicial District, No. D-1-GN-18-002358, Honorable Jan Soifer, Judge Presiding.

Reversed and Remanded.

Before Justices Puryear, Goodwin, and Bourland.

MEMORANDUM OPINION

DAVID PURYEAR, Justice. 

In this interlocutory appeal, Yvonne Brown argues that the trial court abused its discretion in issuing a temporary injunction freezing her assets solely on the basis of Coffee Traders, Inc.'s unadjudicated tort claims against her for unliquidated damages. Brown contends that the temporary injunction is an improper prejudgment attachment and that Coffee Traders failed to demonstrate imminent and irreparable injury. We agree with Brown and therefore reverse and dissolve the trial court's temporary injunction and remand the cause for further proceedings consistent with this opinion.

BACKGROUND

Brown was employed by Coffee Traders as an accounts-payable representative. After Coffee Traders began suspecting that Brown had embezzled over $100,000 in funds, it terminated Brown's employment and sued her for fraud, conversion, breach of fiduciary duty, and violation of the Texas Theft Liability Act. Coffee Traders's petition sought damages, attorney's fees, and a temporary injunction freezing Brown's assets. The trial court issued a temporary restraining order (TRO) enjoining Brown from: (1) disposing of any assets in her name or under her control; (2) accessing any amounts on deposit with any bank unless more than $110,000 remains on deposit, excepting $1,000 for necessities; and (3) injuring or otherwise impairing property in her possession to devalue or make it unsalable.

A temporary-injunction hearing was later held, at which the operations manager, Traci Armstrong, of Coffee Traders testified. Armstrong testified about the company's investigation into the alleged embezzlement and about documentary evidence admitted at the hearing, including checks signed by Brown and made payable to "cash" and falsified invoices, supporting Coffee Traders's likelihood to prevail on the merits of its claims. Armstrong also testified that she feared Coffee Traders would "never get repaid" by Brown because of her dual U.S.-Panama citizenship and Armstrong's belief that Brown had already made significant asset purchases in Panama, including a home and a bakery, and would "move the money" she had misappropriated to Panama, which would make it "very difficult" for Coffee Traders to collect on a judgment.

After the hearing, the trial court awarded Coffee Traders a temporary injunction accomplishing the same purposes as the TRO, except that the court reduced the amount required to remain on deposit to $70,970 after finding that Coffee Traders failed to show $110,000 worth of damages and increased the amount able to be withdrawn for necessities to $2,000 per month. Brown appeals from the trial court's grant of the temporary injunction.

STANDARD OF REVIEW

Our review of a temporary injunction is limited to a determination of whether the trial court clearly abused its discretion. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). The particular aspect of the abuse-of-discretion standard that is dispositive of this appeal is the erroneous application of the law to the established facts. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975).

DISCUSSION

A temporary injunction is an extraordinary remedy and does not issue as a matter of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204; Walling,863 S.W.2d at 57. An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204. Generally, an adequate remedy at law exists and injunctive relief is improper where any potential harm may be "adequately cured by monetary damages." Ballenger v. Ballenger, 694 S.W.2d 72, 77 (Tex. App.-Corpus Christi-Edinburg 1985, no writ).

A temporary injunction is available to preserve the "status quo of the subject matter of the suit pending trial on the merits." Davis, 571 S.W.2d at 862; Southwestern Bell, 526 S.W.2d at 528. However, the temporary injunction issued here covers all of Brown's assets, which are not directly the subject matter of Coffee Traders's suit. The general rule "prohibit[s] an injunction to secure the legal remedy of damages by freezing a defendant's assets that are completely unrelated to the subject matter of the suit." Texas Black Iron, Inc. v. Arawak Energy Int'l, Ltd.,527 S.W.3d 579, 586 (Tex. App.-Houston [14th Dist.] 2017, no pet.); see Victory Drilling, LLC v. Kaler Energy Corp., No. 04-07-00094-CV, 2007 WL 1828015, at *2 (Tex. App.-San Antonio June 27, 2007, no pet.) (mem. op.) (holding that trial court abused discretion in granting temporary injunction to secure legal remedy of damages by freezing assets unrelated to subject matter of suit); Harper v. Powell,821 S.W.2d 456, 457-58 (Tex. App.-Corpus Christi 1992, no writ) (same); Lane v. Baker, 601 S.W.2d 143, 145 (Tex. App.-Austin 1980, no writ) (same).

The rule holds even when the alleged misconduct rises to the level of an intentional tort or crime, such as embezzlement, and the defendant is insolvent or likely to be insolvent at the time a judgment is rendered. See Nowak v. Los Patios Inv'rs, Ltd., 898 S.W.2d 9, 10-11 (Tex. App.-San Antonio 1995, no writ) (declining to expand general rule to apply to embezzlement case where assets frozen were "completely unrelated" to subject matter of suit); see also Victory Drilling, 2007 WL 1828015, at *3 ("recogniz[ing] that [Plaintiff] presented evidence that [Defendant] will dissipate its assets and become judgment-proof" and, nonetheless, dissolving injunction because frozen assets were unrelated to subject matter of suit). While Coffee Traders may have a claim to some amount of money in damages from Brown, cash is fungible, and Coffee Traders cannot point to any evidence showing a direct link between Brown's frozen assets, including the cash in her bank accounts, and the allegedly embezzled funds.

Although there are exceptions to the general rule, they are inapplicable here. See, e.g., Deckert v. Independent Shares Corp., 311 U.S. 282, 289 (1940) (affirming injunction sought to preserve assets or their proceeds that are subject to pleaded equitable remedy such as recission, constructive trust, or restitution); Butnaru, 84 S.W.3d at 211 (affirming injunction sought to enjoin sale of real property that formed basis of underlying suit); Texas Black Iron, 527 S.W.3d at 587 (affirming injunction where particular drilling equipment sought to be enjoined was basis of contract dispute); Khaledi v. H.K. Glob. Trading, Ltd., 126 S.W.3d 273, 278-79 (Tex. App.-San Antonio 2003, no pet.) (affirming injunction where party seeking injunction has security interest in asset sought to be enjoined).

We echo the reasoning of one of our sister courts: "If we were to uphold the injunction in this case, `it is difficult to see why a plaintiff in any action for a personal judgment in tort or contract may not, also, apply to the chancellor for a so-called injunction sequestrating his opponent's assets pending recovery and satisfaction of a judgment in such a law action. No relief of this character has been thought justified in the long history of equity jurisprudence.'" Nowak, 898 S.W.2d at 11 (quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 222-23 (1945)). Furthermore, as another of our sister courts concluded, "we cannot agree that a plaintiff need show probable right [of recovery] on any cause of action to obtain injunctive relief regarding a defendant's assets . . . . If this were the case, injunctions would usurp the carefully constructed statutes concerning garnishment, attachment, receivership, etc." Alliance Royalties, LLC v. Boothe, 313 S.W.3d 493, 497 (Tex. App.-Dallas 2010, no pet.).

CONCLUSION

We reverse the trial court's order, dissolve the temporary injunction, and remand the cause to the trial court for further proceedings consistent with this opinion. We deny Brown's request to order that Coffee Traders's bond securing the temporary injunction be forfeited to her.^[1] 

[1] Brown does not support her request with any authority indicating that this Court has jurisdiction to order bond forfeiture under these circumstances and, accordingly, we deny her request. 

SCOTX applies discovery rule to breach of right of first refusal regarding conveyance of mineral interest

Carl M. Archer Trust No. Three v. Tregellas, No. 17-0093 (Tex. Nov. 11, 2018) 

Texas Supreme Court applies discovery rule to breach of right of first refusal regarding conveyance of mineral interest, reversing intermediate court of appeal's judgment; limits holding to the particular breach at issue in the case: conveyance with no notice of the intent to sell or the existence of an offer

Carl M. Archer Trust No. Three v. Tregellas No. 17-0093 (Tex. Nov. 11, 2018)

CARL M. ARCHER TRUST NO. THREE, MARY FRANCES G. ARCHER TRUST NO. THREE, AND MARY ARCHER DIXON AND CARLA ARCHER JOHNSON, TRUSTEES v. RONALD RALPH TREGELLAS AND DONNITA TREGELLAS (Tex. Nov. 11, 2018) (appeal from Hansford County; 7th Court of Appeals District (07-14-00421-CV, 507 SW3d 423, 12-20-16)  

IN THE SUPREME COURT OF TEXAS

══════════

No. 17-0093

══════════

CARL M. ARCHER TRUST NO. THREE, MARY FRANCES G. ARCHER TRUST NO.

THREE, AND MARY ARCHER DIXON AND CARLA ARCHER JOHNSON, TRUSTEES,

PETITIONERS,

v.

RONALD RALPH TREGELLAS AND DONNITA TREGELLAS, RESPONDENTS

══════════════════════════════════════════

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

══════════════════════════════════════════

~ consolidated for oral argument with ~

══════════

No. 17-0094

══════════

CARL M. ARCHER TRUST NO. THREE, MARY FRANCES G. ARCHER TRUST NO.

THREE, AND MARY ARCHER DIXON AND CARLA ARCHER JOHNSON, TRUSTEES,

PETITIONERS,

v.

RONALD RALPH TREGELLAS AND DONNITA TREGELLAS, RESPONDENTS

══════════════════════════════════════════

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

══════════════════════════════════════════

Argued September 13, 2018 

JUSTICE LEHRMANN delivered the opinion of the Court.

This case concerns whether the statute of limitations bars a claim for breach of a recorded

right of first refusal to purchase a mineral interest. The grantors of the right conveyed the mineral

interest to a third party without notifying the holders. More than four years later, the rightholders

learned of the conveyance and sued the third party for breach, seeking specific performance. The

trial court rendered judgment for the holders, but the court of appeals reversed, holding that the

statute of limitations bars the claim. Specifically, the court of appeals held that the rightholders’

cause of action accrued when the grantors conveyed the property without notice and that the

discovery rule does not apply to defer accrual. We agree with the court of appeals’ first conclusion

but disagree with the second. Accordingly, we reverse the court of appeals’ judgment in part and

reinstate the trial court’s judgment.

[...] 

2. Discovery Rule

The discovery rule is a “limited exception” to the general rule that a cause of action accrues

when a legal injury is incurred. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 66 (Tex. 2011).

When applicable, the rule defers accrual until the plaintiff knew or should have known of the facts

giving rise to the cause of action. S.V., 933 S.W.2d at 4. We apply the discovery rule when the

nature of the injury is inherently undiscoverable and the evidence of injury is objectively verifiable.

Id. at 6. These two elements attempt to strike a balance between the policy underlying statutes of

limitations (barring stale claims) and the objective of avoiding an unjust result (barring claims that

could not be brought within the limitations period). Id. at 3, 6. The parties do not dispute that the

injury here is objectively verifiable; in contention is discoverability.

An injury is inherently undiscoverable when it is “unlikely to be discovered within the

prescribed limitations period despite due diligence.” Via Net v. TIG Ins. Co., 211 S.W.3d 310,

313–14 (Tex. 2006) (quoting Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734–35 (Tex.

2001)). The determination of whether an injury is inherently undiscoverable is made on a

categorical basis rather than on the facts of the individual case. HECI Expl. Co. v. Neel, 982 

Page 13

S.W.2d 881, 886 (Tex. 1998). Here, therefore, we look not to whether Trustees in particular could

have discovered their injury with diligence, but whether Trustees’ injury was “the type of injury

that could be discovered through the exercise of reasonable diligence.” BP Am. Prod. Co., 342

S.W.3d at 66.

The court of appeals held that Trustees’ injury was not inherently undiscoverable. 507

S.W.3d at 433. It noted that a conveyance of real property, including one made in violation of a

right of first refusal, is likely to be reflected in a publicly recorded instrument and that knowledge

of the conveyance may also be gleaned from “other public sources like tax rolls and from

commercial sources like abstractors.” Id. The court thus concluded that the holder of a firstrefusal

right exercising reasonable diligence to protect its interest (as contracting parties must do)

would have discovered the conveyance. See id. And the court of appeals rejected Trustees’

argument that ROFR holders are akin to property owners who have no duty to routinely search

public records for documents impugning their title; instead, it concluded that an ROFR holder has

a mere contractual right to purchase property on the occurrence of certain events. Id. at 433–34.

We have held that the discovery rule applies in certain circumstances even though the

injury could have been gleaned from reviewing publicly available information. For example, in

Kelley v. Rinkle, we held that the rule delayed accrual of a libel action based on the submission of

a false credit report to a reporting agency. 532 S.W.2d 947, 949 (Tex. 1976). We explained that

a “person will not ordinarily have any reason to suspect that he has been defamed by the

publication of a false credit report to a credit agency until he makes application for credit to a

concern which avails itself of the information furnished by the credit agency.” Id. In turn, we

concluded that applying the general accrual-at-injury rule would enhance the potential for abuse 

Page 14

by wrongdoers and that the policy considerations weighed in favor of deferring accrual until the

person defamed learns of, or by reasonable diligence should have learned of, the existence of the

credit report. Id.

Using similar reasoning, courts have applied the discovery rule to a property owner’s

fraudulent-lien claims despite the lien’s filing in the property records. E.g., Vanderbilt Mortg. &

Fin., Inc. v. Flores, 692 F.3d 358, 369–70 (5th Cir. 2012) (applying Texas law). Such an injury is

nevertheless inherently undiscoverable where the property owner has “no reason . . . to believe

that any adverse claim has been made on his property, and no reason to be checking regularly to

see whether such a filing has been made.” Id. at 368. This is consistent with the well-settled

principle that one who “already owns the land . . . is not required to search the records every

morning in order to ascertain if something has happened that affects his interests or deprives him

of his title.” Cox v. Clay, 237 S.W.2d 798, 804 (Tex. Civ. App.—Amarillo 1950, writ ref’d n.r.e.);

cf. Leonard v. Benford Lumber Co., 216 S.W. 382, 384 (Tex. 1919) (noting that “registration of

an instrument carries notice of its contents only to those bound to search for it, among whom are

subsequent purchasers”) (emphasis added).

On the other hand, we have held that the discovery rule does not apply to royalty owners’

claims of underpayment of royalties where “[r]eadily accessible and publicly available

information” would have revealed the underpayments. Shell Oil Co. v. Ross, 356 S.W.3d 924,

929–30 (Tex. 2011); BP Am. Prod. Co., 342 S.W.3d at 66–67. We have rejected royalty owners’

arguments that “due diligence did not require that they verify information or payments received

from their lessees,” confirming that they must “exercise due diligence in enforcing their

contractual rights . . . within the statutory limitations period.” Via Net, 211 S.W.3d at 314 

Page 15

(discussing HECI Expl. Co., 982 S.W.2d at 887, and Wagner & Brown, 58 S.W.3d at 737) (internal

quotations omitted). And in Via Net, we recognized that application of the discovery rule to

contract claims “should be rare, as diligent contracting parties should generally discover any

breach” during the limitations period. Id. at 315.

The Tregellases argue that holders of first-refusal rights resemble royalty owners with a

duty to verify a lessee’s contractual compliance, while Trustees compare such rightholders to

property owners with no duty to continually confirm that their title is not being unlawfully

impugned. As the Tregellases note, a right of first refusal does not itself convey title to its holder.

But we have described the right as a property interest that “runs with the land itself and thus . . . is

not a collateral or personal contract between the parties.” Stone v. Tigner, 165 S.W.2d 124, 127

(Tex. App.—Galveston 1942, writ ref’d). Further, as discussed, one who purchases property with

actual or constructive notice of a first-refusal right does so subject to that right. Jarvis, 400 S.W.3d

at 652–53. Considering the nature of the first-refusal right, and balancing the appropriate policy

considerations, we conclude that the discovery rule applies.

A right of first refusal has been described as “essentially a dormant option.” A.G.E., 105

S.W.3d at 673. The rightholder has no right to compel or prevent a sale per se; rather, as explained,

he has the “right to be offered the property at a fixed price or at a price offered by a bona fide

purchaser if and when the owner decides to sell.” Abraham Inv. Co., 968 S.W.2d at 525 (emphasis

added). Only when the grantor communicates her intention to sell and discloses the offer does the

holder have a duty to act by electing to accept or reject the offer. A.G.E., 105 S.W.3d at 673. In

accordance with this principle, the ROFR in this case required Trustees to accept or reject a bona 

Page 16

fide offer to purchase the Farbers’ mineral interest no later than “sixty (60) days after receipt of

said offer.”

In light of the grantor’s duty to provide notice of an offer, the corresponding absence of

the rightholder’s duty to act before receipt of said notice, and the fact that a purchaser takes

property subject to a recorded first-refusal right, we agree with Trustees that a rightholder who has

been given no notice of the grantor’s intent to sell or the existence of a third-party offer generally

has no reason to believe that his interest may have been impaired. In turn, we cannot conclude

that such a rightholder in the exercise of reasonable diligence would continually monitor public

records for evidence of such an impairment. This is in stark contrast to a rightholder who, for

example, learns of the existence of a third-party offer but is unable, despite a reasonable

investigation, to clarify the offer’s specific terms. See Comeaux v. Suderman, 93 S.W.3d 215, 221

(Tex. App.—Houston [14th Dist.] 2002, no pet.) (noting that a grantor must make reasonable

disclosure of an offer’s terms, while a holder must undertake a reasonable investigation of any

terms that are unclear). Under those circumstances, the holder is given some indication the grantor

intends to convey the property and thus has reason to monitor whether that has occurred.

We therefore hold that a grantor’s conveyance of property in breach of a right of first

refusal, where the rightholder is given no notice of the grantor’s intent to sell or the purchase offer,

is inherently undiscoverable and that the discovery rule applies to defer accrual of the holder’s

cause of action until he knew or should have known of the injury.10 In this instance, the opposing

policies at play—on the one hand, preventing stale claims and on the other, discouraging deceptive

10 We limit our holding to this particular breach—conveyance with no notice of the intent to sell or the existence of an offer—of this particular type of right. 

Page 17

conduct and ensuring claims are not barred before a party even knows he is injured—weigh in

favor of applying the discovery rule.

Here, the trial court found that Trustees did not know of their injury, nor in the exercise of

reasonable diligence should they have known, until May 4, 2011. Other than their general

arguments regarding the nature of Trustees’ injury, which we have rejected, the Tregellases do not

challenge this finding. That is, the Tregellases point to no evidence that purportedly would or

should have put Trustees on notice before May 2011 that the Farbers had (or even may have)

conveyed the burdened mineral interest. Therefore, Trustees sued well within four years of the

date the cause of action accrued, and the statute of limitations does not bar their claim.

[...]

III. Conclusion

The court of appeals erred in reversing the portion of the trial court’s judgment granting

Trustees specific performance of the ROFR with respect to the Farbers’ conveyed mineral interest.

Consequently, the court of appeals also erred in reversing the trial court’s award of attorney’s fees.

We therefore reverse the court of appeals’ judgment in part in Cause No. 17-0993, reverse the

court’s judgment in Cause No. 17-0994, and reinstate the trial court’s judgment. 

Page 18

________________________________

Debra H. Lehrmann

Justice

OPINION DELIVERED: November 16, 2018

So-called common-law marriage in Texas is actually governed by statute: the Texas Family Code. How is it proven?

ELEMENTS OF INFORMAL MARRIAGE IN TEXAS 

AND VOIDNESS ISSUE WHEN ONE WAS STILL MARRIED TO SOMEONE ELSE 

In Texas, a valid common law marriage consists of three elements: (1) a present agreement to be married; (2) living together in Texas as husband and wife after the agreement, and (3) representing to others they are married. Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex. App.-San Antonio 1998, pet. denied); see TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006). The statutory requirement of "representing to others that they [are] married" is the same as the common law requirement of "holding out to the public." See Small v. McMaster, 352 S.W.3d 280, 284-85 (Tex. App.-Houston [14th Dist.] 2011, pet. denied). These elements may be proved by either direct or circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). "A common-law marriage does not exist until the concurrence of all three elements." Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2001, pet. denied); see In re J.J.F.R., No. 04-15-00751-CV, 2016 WL 3944823, at *1 (Tex. App.-San Antonio July 20, 2016, no pet.). The circumstances of each case must be determined from the facts of that case. Russell, 865 S.W.2d at 933.

If an impediment to the creation of a lawful marriage exists, such as when one party is married to someone else, there can be no common law marriage, even if all elements are proven. Ballesteros, 985 S.W.2d at 490. However, an ongoing agreement to be married may be shown by the circumstantial evidence of the parties continuing to live together as husband and wife and holding themselves out to others as being married after the removal of the impediment. Id.

The Texas Family Code provides that a marriage is void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or by the death of the other spouse. TEX. FAM. CODE ANN. § 6.202(a) (West 2006). However, a marriage that is void under section 6.202(a) becomes valid when the prior marriage is dissolved if, after the date of dissolution, the parties lived together as husband and wife and represented themselves to others as being married. Id. 6.202(b).

SOURCE: San Antonio Court of Appeals, No. 04-17-00318-CV -  9/19/2018 (Objection to alleged sham affidavit was not preserved for appellate review, summary judgment on no-marriage issue reversed based on fact issue regarding elements of existence of common-law marriage).

Lisa Bueno MARTINEZ, Appellant,
v.
FURMANITE AMERICA INC., Furmanite Corporation, Furmanite Louisiana LLC f/k/a Furmanite US GSG LLC, Galbraith Contracting Inc., Southcross Energy Partners GP LLC, Southcross Energy Partners LP, Southcross NGL Pipeline Ltd., Estate of Dennis Henneke and Estate of Rene Elizondo, Appellees.

No. 04-17-00318-CV.

Court of Appeals of Texas, Fourth District, San Antonio.

Delivered and Filed: September 19, 2018.

Appeal from the 229th Judicial District Court, Duval County, Texas, Trial Court No. DC-16-139-C, Honorable Ana Lisa Garza, Judge Presiding.

REVERSED AND REMANDED.

Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini, Justice, Irene Rios, Justice.

MEMORANDUM OPINION

KAREN ANGELINI, Justice.

Lisa Bueno Martinez appeals from the dismissal of her wrongful death claims against Furmanite America Inc., Furmanite Corporation, Furmanite Louisiana LLC f/k/a Furmanite US GSG LLC, (collectively, Furmanite); Galbraith Contracting Inc.; Southcross Energy Partners GP LLC, Southcross Energy Partners LP, Southcross NGL Pipeline Ltd., (collectively, Southcross); the Estate of Dennis Henneke; and Rene Elizondo. Because we conclude a genuine issue of material fact exists with regard to the existence of a common law marriage, we reverse and remand.

BACKGROUND

Lisa claims to have been the common law wife of Jesus Gonzalez Jr. (Jesse), who was employed by Galbraith and died in a work-related explosion on April 12, 2016. At the time of the explosion, Jesse was working on a pipeline at a gas processing facility near Woodsboro, Texas. Another worker, Dennis Henneke, also died in the explosion. Henneke's family members filed a wrongful death suit against Furmanite, Galbraith, Southcross, Jesse's estate, and Rene Elizondo.^[1] Lisa intervened in the suit, bringing wrongful death claims against Furmanite, Galbraith, Southcross, the Estate of Dennis Henneke, and Rene Elizondo.

After conducting discovery, Furmanite filed a traditional motion for summary judgment arguing that, as a matter of law, Lisa was not Jesse's wife at the time of his death and, therefore, she was not entitled to sue under the Texas wrongful death statute. Attached to Furmanite's motion was: (1) Lisa's original petition in this case; (2) the certified record from a probate action involving Jesse's estate; and (3) Lisa's deposition. Galbraith and Southcross joined Furmanite's summary judgment motion.^[2] The record from the probate action showed that the probate court had found that Jesse was not married at the time of his death.^[3] Southcross submitted additional summary judgment evidence, namely, divorce decrees showing that Lisa and Jesse were not divorced from their former spouses until 2015.

Lisa responded to the summary judgment responses, asserting that a fact issue existed as to whether she and Jesse had a common law marriage. Additionally, Lisa submitted evidence to controvert the summary judgment proof submitted by Furmanite, Galbraith, and Southcross. This evidence included orders showing that the probate court had set aside its order finding that Jesse was not married at the time of his death and had dismissed the probate action altogether.

The trial court held a hearing on the summary judgment motions. At the end of the hearing, Lisa's counsel asked the trial court if it wanted further submissions from the parties. In response, the trial court advised counsel: "If you want to submit anything else I will allow you all to do that within ten days" and "I will let both of you submit something within ten days." Lisa submitted two additional summary judgment responses with additional evidence.

The trial court granted the summary judgment motions and dismissed all of Lisa's claims with prejudice. The order granting summary judgment states it is based on "the Motions, the Response of the Intervenor, the Reply of the Furmanite Defendants, argument of all counsel, and the post-hearing additional Responses by Intervenor and Replies by the Furmanite Defendants, and on the documents on file with the Court. . . ." The trial court severed Lisa's claims from the other claims in the suit. Lisa appealed.

THE SUMMARY JUDGMENT EVIDENCE

As a preliminary matter, we address Furmanite, Galbraith, and Southcross's arguments about the summary judgment evidence.

Late-filed Responses and Evidence

Lisa filed four responses to the summary judgment motions. According to Furmanite and Southcross, we may only consider the evidence attached to Lisa's first summary judgment response because Lisa's other summary judgment responses were not timely filed in the trial court.

A response to a summary judgment motion, including opposing summary judgment evidence, may be filed no later than the seventh day before the date of the summary judgment hearing, except on leave of court. Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.-San Antonio 1998, pet. dism'd by agreement); TEX. R. CIV. P. 166a(c). Therefore, a party may file a late response and evidence only if she obtains permission from the trial court. See Neimes, 985 S.W.2d at 138; TEX. R. CIV. P. 166a(c). Permission to file a late response to a summary judgment motion may be reflected in a separate order, a recital in the summary judgment, or an oral ruling contained in the reporter's record from the summary judgment hearing. Neimes, 985 S.W.2d at 138. The record must contain an affirmative indication that the trial court permitted the late filing of the response. Id.

Here, the record contains affirmative indications that the trial court permitted Lisa's late-filed responses. First, at the summary judgment hearing, the trial court stated it would give all parties ten additional days to file whatever they would like to file. Second, the order granting summary judgment states the trial court's ruling was based on all of Lisa's responses and the documents on file with the court. Therefore, the record affirmatively indicates that the trial court permitted Lisa's late-filed responses and evidence. We conclude Lisa's late-filed responses and evidence were permitted by the trial court and, therefore, we will consider them on appeal.

Alleged "Sham Affidavit"

Next, Furmanite, Galbraith, and Southcross argue that we cannot consider Lisa's supplemental affidavit in this appeal because they claim it is a "sham affidavit." When a summary judgment affidavit is executed after a witness's deposition and there is a clear contradiction on a material point without an explanation for the change, the affidavit merely creates a sham fact issue. E-Learning LLC v. AT & T Corp., 517 S.W.3d 849, 855 (Tex. App.-San Antonio 2017, no pet.). In the trial court, Furmanite objected in writing to Lisa's supplemental affidavit asserting that it was a sham affidavit. On appeal, Furmanite asserts that its sham affidavit objection "was implicitly sustained by the trial court."

Nothing in the record indicates the trial court ruled on Furmanite's sham affidavit objection. "Absent a timely objection and a ruling from the trial court, the complaint that a summary-judgment affidavit is a sham is waived for purposes of appellate review." In re T.A.D., No. 14-16-00717-CV, 2017 WL 924550, at *5 (Tex. App.-Houston [14th Dist.] Mar. 7, 2017, no pet.). Furthermore, objected-to evidence is valid summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 583 (Tex. 2017). No such order appears in the record.

Additionally, the record indicates the trial court in fact considered Lisa's supplemental affidavit. The trial court's order granting summary judgment states, without qualification, that it is based on "the post-hearing additional [r]esponses by [i]ntervenor" and "on the documents on file with the [c]ourt."

We conclude that all the evidence Lisa submitted in opposition to the summary judgment motions, including her supplemental affidavit, is valid summary judgment proof. See Well Solutions Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.-San Antonio 2000, no pet.) (concluding that by failing to obtain rulings on its objections to the form of summary judgment evidence, party waived objections and appellate court could consider objected-to evidence in determining if a fact issue existed). Therefore, we will consider all the evidence Lisa submitted in analyzing the issues presented in this appeal. See id.

STANDARD OF REVIEW

We review the granting of a summary judgment motion de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A party moving for traditional summary judgment has the burden to submit sufficient evidence to establish on its face that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); TEX. R. CIV. P. 166a(c). When the movant meets this burden, the burden then shifts to the respondent to raise an issue of material fact in response to the summary judgment motion. Amedisys, 437 S.W.3d at 511. In reviewing a trial court's summary judgment ruling, we take as true all evidence favorable to the respondent, and we indulge every reasonable inference and resolve all doubts in the respondent's favor. Valence,164 S.W.3d at 661. "An appellate court reviewing a summary judgment must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented." Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 755-56 (Tex. 2007).

COMMON LAW MARRIAGE

On appeal, Lisa argues the trial court erred in granting summary judgment because (1) Furmanite, Galbraith, and Southcross did not meet their summary judgment burden to conclusively negate the existence of a common law marriage; and (2) she submitted evidence raising material fact issues as to the existence of a common law marriage. For purposes of our analysis, we will assume, without deciding, that Furmanite, Galbraith, and Southcross met their initial summary judgment burden to conclusively negate the existence of a common law marriage and that the burden shifted to Lisa to raise a material fact issue. Thus, our analysis focuses on whether Lisa raised a material fact issue as to the existence of a common law marriage.

In Texas, a valid common law marriage consists of three elements: (1) a present agreement to be married; (2) living together in Texas as husband and wife after the agreement, and (3) representing to others they are married. Ballesteros v. Jones,985 S.W.2d 485, 489 (Tex. App.-San Antonio 1998, pet. denied); see TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006). The statutory requirement of "representing to others that they [are] married" is the same as the common law requirement of "holding out to the public." See Small v. McMaster, 352 S.W.3d 280, 284-85 (Tex. App.-Houston [14th Dist.] 2011, pet. denied). These elements may be proved by either direct or circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). "A common-law marriage does not exist until the concurrence of all three elements." Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2001, pet. denied); see In re J.J.F.R., No. 04-15-00751-CV, 2016 WL 3944823, at *1 (Tex. App.-San Antonio July 20, 2016, no pet.). The circumstances of each case must be determined from the facts of that case. Russell, 865 S.W.2d at 933.

If an impediment to the creation of a lawful marriage exists, such as when one party is married to someone else, there can be no common law marriage, even if all elements are proven. Ballesteros, 985 S.W.2d at 490. However, an ongoing agreement to be married may be shown by the circumstantial evidence of the parties continuing to live together as husband and wife and holding themselves out to others as being married after the removal of the impediment. Id.

The Texas Family Code provides that a marriage is void if it is entered into when either party has an existing marriage to another person that has not been dissolved by legal action or by the death of the other spouse. TEX. FAM. CODE ANN. § 6.202(a) (West 2006). However, a marriage that is void under section 6.202(a) becomes valid when the prior marriage is dissolved if, after the date of dissolution, the parties lived together as husband and wife and represented themselves to others as being married. Id. 6.202(b).

ANALYSIS

It is undisputed that Lisa and Jesse were both married to other individuals when their relationship began in 2011. Lisa was divorced from her former husband on April 21, 2015, and Jesse was divorced from his former wife on July 14, 2015. Thus, the final impediment to a valid common law marriage was removed on July 14, 2015, when Jesse was divorced.

In determining if a fact issue exists, Furmanite, Galbraith, and Southcross urge us to focus on the evidence concerning Lisa and Jesse's relationship after Jesse's divorce, and to disregard the evidence concerning Lisa and Jesse's relationship before Jesse's divorce. However, this approach is contrary to the approach we have taken in similar situations. See In re J.J.F.R., 2016 WL 3944823, at *5-6 (considering evidence from the time period before the alleged common law husband's divorce from a prior spouse when evaluating the sufficiency of the evidence to support an agreement to be married); Ballesteros, 985 S.W.2d at 489-90 (examining all the facts pertaining to the alleged common law marriage, including facts arising prior to the removal of all impediments to the marriage). Therefore, we will consider the evidence from before and after Jesse's divorce, knowing that a common law marriage could not exist until the concurrence of all three required elements and the removal of all impediments to a valid marriage. See Eris, 39 S.W.3d at 713; Ballesteros, 985 S.W.2d at 490.

The summary judgment evidence attached to Lisa's responses included two affidavits (an original and a supplemental) in which Lisa testified about aspects of her relationship with Jesse; letters Jesse had written to Lisa; a text message in which Jesse referred to himself as "daddy" to Lisa's son; text messages from Jesse in which he referred to Lisa's son as one of his kids and "my son;" a health record in which Lisa listed Jesse as her son's "step-dad;" the divorce decrees from Lisa and Jesse's previous marriages; affidavits from neighbors, friends, and family who had observed Lisa and Jesse's relationship; photographs of the house where Lisa and Jesse allegedly lived; a photograph of Lisa, Jesse, and Lisa's son together; a photograph of Lisa and Jesse together; Jesse's identification cards; several of Jesse's paystubs; records showing that Jesse and Jesse's mother and father sometimes picked up Lisa's son from daycare; an obituary and a funeral program listing Lisa's son as Jesse's "step-son;" and Lisa's deposition testimony.

Present Agreement to be Married

To establish the first element of a common law marriage, an agreement to be married, the evidence must show that the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife. In re J.J.F.R., 2016 WL 3944823, at *4; Eris, 39 S.W.3d at 714. The testimony of one party that they agreed to be married is more than a scintilla of evidence that the two agreed to be married. Eris, 39 S.W.3d at 714. Additionally, "[p]roof of cohabitation and representations to others that the couple are married may constitute circumstantial evidence of an agreement to be married." Russell,865 S.W.2d at 933.

In her supplemental affidavit, Lisa testified she and Jesse were married to other people when they met in 2011. According to Lisa, she and Jesse were both in bad relationships and they were unhappy about it, but they were happy together and they decided to be together forever. Lisa and Jesse began referring to each other as husband and wife in 2012. However, Lisa and Jesse knew they could not be legally married to each other because they were still married to other people. Lisa and Jesse agreed that they would divorce their spouses so they would be legally married. Lisa filed for divorce on February 4, 2015, and Jesse filed for divorce on February 9, 2015. Lisa's divorce became final on April 21, 2015. Jesse's divorce became final on July 14, 2015. As far as Lisa and Jesse were concerned, they were now legally married to each other. In fact, when they walked out of the courtroom after Jesse's divorce hearing, Jesse told Lisa "now we are both divorced and really married and there is nothing [my former wife] can do about it." According to Lisa, "When the judge granted our divorces we knew we were no longer married to others, and we were married to each other."

Lisa's affidavit testimony in which she states that she and Jesse agreed to be married raises a fact issue as to whether she and Jesse agreed to be married. See Eris, 39 S.W.3d at 714; Ballesteros, 985 S.W.2d at 490 (concluding that alleged wife's testimony that she and alleged husband had entered into an agreement to be married was some evidence of the required agreement to be married).

Furmanite, Galbraith, and Southcross argue Lisa failed to raise a fact issue on this element because the evidence showing an agreement to be married must be from both parties. See Gary v. Gary, 490 S.W.2d 929, 932 (Tex. Civ. App.-Tyler 1973, writ ref'd n.r.e.). Furmanite, Galbraith, and Southcross assert that none of the evidence presented in this case shows that Jesse agreed to be married. Contrary to these assertions, there is some evidence indicating that Jesse agreed to be married. First, Lisa stated in her affidavit that immediately after his divorce was granted, Jesse told her that they were "really married." Second, the record contains a letter Jesse wrote to Lisa in February 2015, before he was divorced from his former wife. Jesse signed the letter, "love your husband [sic]." Additionally, when Jesse sent the letter to Lisa, he added his surname to Lisa's name and addressed the envelope to "Lisa Gonzalez-Bueno." Thus, there is some evidence that Jesse agreed to be married.

Finally, the law provides that an ongoing agreement to be married may be shown by the circumstantial evidence of the parties continuing to live together as husband and wife and holding themselves out to others as being married after the removal of the impediment. See Ballesteros, 985 S.W.2d at 490. As will be discussed in greater detail below, some of the summary judgment evidence shows that Lisa and Jesse continued to live together as husband and wife and to hold themselves out to others as being married after both of them were divorced from their former spouses. We conclude the evidence raises a fact issue as to whether Lisa and Jesse had a present agreement to be married.

Living Together in Texas as Husband and Wife

Ample evidence exists to raise a fact issue as to the second element of common law marriage. In her supplemental affidavit, Lisa testified that she and Jesse started living together in 2011 and continued living together after Jesse's divorce in July 2015. Specifically, Lisa testified in her affidavit, "We continued living together as husband and wife (and a family) from after Jesse's divorce until just before his death" and "Jesse continued treating me as his wife . . . as he had before our divorces." Lisa testified that about two or three weeks before Jesse's death in April 2016, she and Jesse had had a disagreement and he had left the couple's home. Lisa further testified that Jesse left behind his clothes and important documents, such as his check stubs and his identification cards. According to Lisa's testimony, Jesse told her that he intended to return home to the family. And, while Jesse was gone, he continued to provide money to Lisa and her son. Lisa said that Jesse had left in anger and that he had done this before and had always returned home.

Cohabitation need not be continuous for a couple to enter into a common law marriage. Small, 352 S.W.3d at 284; see Ballesteros, 985 S.W.2d at 491. Thus, the fact that Lisa and Jesse were not living together at the time of his death does not defeat this element of common law marriage.

Lisa also submitted multiple affidavits from friends and family members that raise a fact issue on this element. Ricardo Chapa testified that he knew Lisa and Jesse and he had seen them in the two different homes that they had shared together. Chapa further testified that Lisa and Jesse had lived together "as man and wife" for more than six months. Elma Marie Casso, a neighbor, testified that Lisa and Jesse "were living together across the street from her" at Jesse's grandfather's house. Casso had heard Jesse refer to Lisa as his wife on more than one occasion. Lisa had a son who was not Jesse's biological son. However, Casso testified that Jesse had raised Lisa's son as his son, and Jesse had always referred to Lisa's son as his son.

Additionally, Lisa Lopez testified that she had attended barbecues and parties at Lisa and Jesse's house, and it was clear to her that Lisa and Jesse "were actively living together as husband and wife." In another affidavit, Hermelinda Tanguma testified that she would sometimes live with Jesse and Lisa in their house. Tanguma testified that, based on what she saw and heard, Lisa and Jesse were living together as a married couple. Finally, Lisa's mother, Emelinda Bueno, testified that it had been her understanding that Lisa and Jesse were living together as husband and wife for the last six to seven years. We conclude the evidence raises a fact issue as to whether Lisa and Jesse lived together in Texas as husband and wife after they agreed to be married.^[4]

Representing to Others/Holding Out

The element of "representing to others that they are married" or "holding out" may be established by either word or conduct. Ballestros, 985 S.W.2d at 491. Establishing that a couple held themselves out as husband and wife turns on whether the couple had a reputation in the community for being married. Small,352 S.W.3d at 285. Proving a reputation for being married requires evidence that the community viewed them as married, or that the couple consistently held themselves out in the public eye. Id. Occasional introductions as husband and wife are not sufficient. Id. Further, this element requires both parties to have represented themselves as married. Id.

Here, the summary judgment evidence includes affidavits from multiple witnesses who testified that they had heard both Jesse and Lisa refer to the other as their spouse. One witness, Chapa, testified that on more than one occasion, Jesse had told him that Lisa was his "`Mujer' which translates to wife," that Lisa would always refer to Jesse as her "man or husband." Another witness, Cano, testified that she had heard Jesse refer to Lisa as his wife on more than one occasion. Similarly, Lopez testified that she had heard Jesse refer to Lisa as his wife many times. Lisa's mother, Bueno, testified that Jesse had told her many times that he considered Lisa his wife, and he considered Lisa's son his son. Another family friend, Sarah Hernandez, also testified that she had known Jesse for five or six years and had visited the home he shared with Lisa. Hernandez had heard Jesse refer to Lisa as "his significant other, his wife[,] and `mi mujer.'" Furthermore, in her supplemental affidavit, Lisa testified that, "Especially after our divorces, the community knew us as a married couple and treated us as a married couple." Lisa further testified that she and Jesse had held parties together at their home, and they were invited to parties together.

Additionally, the evidence shows that Lisa listed Jesse as her son's "step-dad" on a health record, and that Jesse referred to Lisa's son, who was not Jesse's biological son, as his child, in text messages. See Bailey v. Thompson, No. 14-11-00499-CV, 2012 WL 4883219, at *11 (Tex. App.-Houston [14th Dist.] Oct. 16, 2012, no pet.) (concluding the evidence was sufficient to support "holding out" element when it included, among other things, testimony that purported husband was introduced as the child's stepfather at school events and did not object). Another witness, Chapa, testified in his affidavit that Lisa's son would refer to Jesse as his "dad," and Jesse would refer to Lisa's son as his "son." In her supplemental affidavit, Lisa explained that she would not have allowed her son to create a "permanent father/son relationship with Jesse without Jesse also forming a permanent husband/wife relationship with me." Finally, the evidence included Jesse's obituary and his funeral program, which listed Lisa's son as Jesse's step-son.

Indulging every reasonable inference and resolving all doubts in Lisa's favor, we conclude a fact issue exists about whether Lisa and Jesse represented to others that they were married. See Valence, 164 S.W.3d at 661.

Additional Arguments Presented by Furmanite, Galbraith, and Southcross

Furmanite, Galbraith, and Southcross emphasize that if Lisa and Jesse had entered into a common law marriage prior to Jesse's divorce on July 14, 2015, it would have been void. They argue that no material fact issue exists because the summary judgment evidence does not show that Lisa and Jesse satisfied each of the common law marriage elements after both Lisa and Jesse were divorced from their former spouses. We disagree. At a minimum, Lisa's supplemental affidavit raises a fact issue as to each of the required elements during the time period in question.

Furmanite and Southcross also argue that a material fact issue does not exist because the evidence in this case fails to show "a new matrimonial intent" after Jesse's divorce in July 2015. To support this argument, they cite to Howard v. Howard, which states that when

the original relationship between the parties was illicit in origin, but where there has been a change in circumstances, a subsequent common law marriage may be shown circumstantially. However, the facts must be such as to exclude the inference that the previous illicit arrangement continued and must show a new matrimonial intent.

459 S.W.2d 901, 904 (Tex. Civ. App.-Houston [1st Dist.] 1970, no writ). Again, we disagree with this argument. In her supplemental affidavit, Lisa stated that immediately after Jesse's divorce hearing, Jesse told her that they were now married. Lisa also stated that immediately after Jesse's divorce hearing, she and Jesse went home and celebrated with a barbecue, and they told everyone they knew that they were now married to each other. Thus, there is some evidence indicating that Lisa and Jesse had "a new matrimonial intent" after the final impediment to the creation of a lawful marriage was removed.

Furmanite and Southcross further argue that no material fact issue exists because "every single record" in the summary judgment record—Jesse's paystubs, Jesse's Department of Public Safety records, and a Texas Department of Family and Protective Services form completed by Lisa—show that shortly after Jesse's divorce on July 14, 2015, Lisa and Jesse referred to themselves as "single" and stated that they were living at different addresses. According to Furmanite and Southcross, these records show that Lisa and Jesse were two "people living two different lives . . . in two different places." However, in determining whether a material fact issue exists, we are obligated to consider all the evidence in the summary judgment record, which in this case includes not only the above-referenced records, but also affidavit testimony indicating that Lisa and Jesse had agreed to be married, were living together in Texas as husband and wife, and were representing to others that they were married.

Finally, Galbraith and Southcross direct our attention to a social media post contained in the summary judgment record, asserting the post is detrimental to Lisa's common law marriage claim. The post, which was written on Lisa's Facebook account after Jesse's death, states:

I need for people in San Diego to stop running there mouth saying that im trying to get lawyers to try and get money out of jesses death because that is all lies thd lawyers were calling me harassing me telling me offering me money and i told them i was not jesses wife and [my son] was not his blood son so for them to leave me alone cause no money in the world would bring jess back and thats the only thing I want is jess back so stop blabbing u alls mouths. . . .

[sic passim] (emphasis supplied). However, Lisa submitted summary judgment proof controverting the statement in her post. In her deposition and her affidavits, Lisa testified that she did not write the post and that her sister-in-law wrote the post because Lisa was tired of being contacted by lawyers after Jesse's death and wanted to be left alone.

Based on all the evidence presented, we believe reasonable and fair-minded jurors could differ in their conclusions about whether Lisa and Jesse had a common law marriage. See Goodyear Tire, 236 S.W.3d at 755-56. Therefore, we conclude the summary judgment evidence raises a fact issue concerning the existence of a common law marriage.

CONCLUSION

Because the evidence raises fact issues on each element of common law marriage, the trial court erred in granting the summary judgment motions and in dismissing Lisa's claims.^[5] We, therefore, reverse the trial court's judgment and remand for proceedings consistent with this opinion.

[1] Furmanite owned the equipment involved in the explosion. Galbraith was a contractor at the site of the explosion. Rene Elizondo was employed by Galbraith. Southcross owned the pipeline and the property where the explosion occurred. Dennis Henneke was employed by Southcross.

[2] Neither the Estate of Dennis Henneke nor Elizondo filed a summary judgment motion.

[3] However, this finding was eventually set aside by the probate court.

[4] Additionally, both Furmanite and Southcross acknowledged in their summary judgment pleadings that the evidence showed that Lisa and Jesse had lived together for at least a short period after Jesse was divorced. Furmanite stated the evidence showed that Jesse had moved out of Lisa's trailer two months after his divorce, and Southcross stated the evidence showed that Lisa and Jesse had lived together for "at most" "three months after" Jesse's divorce.

[5] Lisa also argues the trial court erred in granting summary judgment in favor of the Estate of Henneke and Elizondo because they did not file or join a summary judgment motion. Having determined that it was error to grant summary judgment in favor of Furmanite, Galbraith, and Southcross, we conclude it was also error to grant summary judgment in favor of the Estate of Henneke and Elizondo.