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.

Texas Theft Liability Act mandates award of attorneys fees to the prevailing party, whether plaintiff or defendant

STATUTORY ATTORNEY'S FEES UNDER THE TTLA 

The availability of attorney's fees under a particular statute is a question of law that we review de novo. Arrow Marble, LLC v. Killion, 441 S.W.3d 702, 705 (Tex. App.-Houston [1st Dist.] 2014, no pet.). Section 134.005(b) of the TTLA provides that "[e]ach person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney's fees." TEX. CIV. PRAC. & REM. CODE ANN. § 134.005(b) (West 2011). The award of fees to a prevailing party in a TTLA action is mandatory. Arrow Marble, 441 S.W.3d at 705; see Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) ("Statutes providing that a party `may recover,' `shall be awarded,' or `is entitled to' attorney fees are not discretionary."). The statute requires attorney's fees to be awarded to a party that successfully prosecutes or defends a TTLA claim, and an award is not dependent on a recovery of damages. See In re Corral-Lerma, 451 S.W.3d 385, 386 (Tex. 2014) (no damages recovery needed); Air Routing Int'l Corp. v. Britannia Airways, Ltd., 150 S.W.3d 682, 686 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (attorney's fees to successful defendant of TTLA claim); Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 638 (Tex. App.-Houston [1st Dist.] 2000, no pet.) (prevailing party is one who successfully prosecutes or defends an action). Further, when a plaintiff's claims are dismissed with prejudice, the defendant is the prevailing party. See Arrow Marble, LLC v. Killion, 441 S.W.3d 702, 707-708 (Tex. App.-Houston [1st Dist.] 2014, no pet.).

SOURCE: Chieftain Exploration Co., Inc v. Gastar Exploration Inc., No. 10-15-00037-CV (Tex.App.- Waco, Aug. 30, 2017, pet. filed and docketed under Tex. No.17-1040, case abated 11/9/2018 based on bankruptcy filing) (summary judgment reversed in part and remanded for award of attorney's fees under the TTLA to the prevailing defendant).

Chieftain contends Gastar was not a prevailing party because Gastar did not prove it did not commit theft of the royalties. We have already held that because Chieftain was not entitled to royalties, Gastar was not liable to Chieftain for theft. Summary judgment was granted in favor of Gastar and all of Chieftain's claims, including its claim under the TTLA, were dismissed with prejudice. Therefore, Gastar was entitled to attorney's fees, and the trial court erred in denying Gastar's request for attorney's fees.

Gastar's second issue is sustained. Because of our disposition of Gastar's second issue, we need not discuss Gastar's first issue.

CONCLUSION

Having overruled Chieftain's issues necessary to the appeal but having granted one of Gastar's issue necessary to the appeal, we reverse the trial court's Final Summary Judgment, only to the extent that it does not award attorney's fees to Gastar, and remand this appeal to the trial court for a determination of reasonable and necessary attorney's fees for Gastar's defense of Chieftain's TTLA claim. The trial court's Final Summary Judgment is affirmed in all other respects.

COURT OF APPEALS

TENTH DISTRICT OF TEXAS

August 30, 2017

No. 10-15-00037-CV

CHIEFTAIN EXPLORATION COMPANY, INC.

v.

GASTAR EXPLORATION INC. AND CUBIC ASSETS, LLC

From the 369^th District Court

Leon County, Texas

Trial Court No. NOT-13-126

JUDGMENT

        This Court has reviewed the briefs of the parties and the record in this proceeding as relevant to the issues raised.  Because it is the opinion of this Court that there was error, in part, in the Final Summary Judgment of the trial court; it is the judgment of this Court that the Final Summary Judgment signed by the trial court on July 31, 2014, is reversed but only to the extent that attorney’s fees were not awarded to Gastar Exploration Company, Inc., and this appeal is remanded to the trial court for further proceedings only on the issue of attorney’s fees due to Gastar Exploration Company, Inc. for Gastar Exploration Company, Inc.’s defense of the Texas Theft Liability Act claim made by Chieftain Exploration Company, Inc.  To the extent not expressly reversed and remanded, the trial court’s Final Summary Judgment is affirmed. 

        It is further ordered that Gastar Exploration Company, Inc. and Cubic Assets, LLC., is awarded judgment against Chieftain Exploration Company, Inc. for Gastar Exploration Company, Inc.’s and Cubic Assets, LLC.’s appellate court costs that were paid, if any, by Gastar Exploration Company, Inc. and Cubic Assets, LLC.; and all unpaid appellate court costs, if any, are taxed against Chieftain Exploration Company, Inc.

        A copy of this judgment will be certified by the Clerk of this Court and delivered to the trial court clerk for enforcement.

                                                            PER CURIAM

                                                            SHARRI ROESSLER, CLERK                         

                                                            By: ___________________________

                                                            Nita Whitener, Deputy Clerk

CHIEFTAIN EXPLORATION COMPANY, INC., Appellant,
v.
GASTAR EXPLORATION INC. AND CUBIC ASSETS, LLC. Appellee.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed August 30, 2017.  No. 10-15-00037-CV     

Jess W. Mason, Christopher Grimm, Robert D. O'Conor, for Chieftain Exploration Company, Inc., Appellant.

Matthew Jensen, Barry F. Cannaday, for Cubic Assets, LLC, Appellee.

Katherine A. Willyard, Cassandra M. McGarvey, Michael C. Sanders, for Gastar Exploration Ltd., Appellee.

Katherine A. Willyard, Cassandra M. McGarvey, Michael C. Sanders, for Gastar Exploration Texas, LP, Appellee.

Appeal from the 369th District Court, Leon County, Texas, Trial Court No. NOT-13-126.

Affirmed in part; Reversed and remanded in part.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Chieftain Exploration Company, Inc. appeals the trial court's summary judgment in favor of Gastar Exploration, Ltd. and Gastar Exploration Texas, L.P. (now Gastar Exploration Inc.) and Cubic Assets, LLC. Gastar also appeals the denial of its request for attorney's fees. Because the trial court did not err in granting Gastar's and Cubic's motions for summary judgment but did err in denying Gastar's request for attorney's fees, the trial court's Final Summary Judgment is reversed and remanded in part and, to the extent not expressly reversed and remanded, is affirmed.

BACKGROUND

The Streater Gas Unit, a pooled unit, was formed in 2010 by Gastar and two other entities (Presco, Inc. and Navasota Resources, Ltd., LLP) which had executed various oil and gas leases included in the Unit. The Unit was comprised of 56 leases, covering 702.3 acres of land. These leases are listed in the Unit Designation. Tract 17, which was comprised of 56 surface acres, was included in the Unit. The Streater Well was drilled on the Unit but not on Tract 17.

Title to the minerals in Tract 17, the 56 acre tract, is divided, with two parties each owning an undivided one-half of the minerals: the McBeth Family Limited Partnership and Lone Oak.^[1] An undivided ¼ nonparticipating royalty interest, now owed by Chieftain, was carved out of Lone Oak's mineral estate.

Before Chieftain acquired its NPRI, two oil and gas leases were executed, each covering the lessor's one-half of the mineral estate in the 56 acre tract: the McBeth Lease, executed by the McBeth Family Limited Partnership, and the Lone Oak Lease, executed by Lone Oak. The Lone Oak Lease covered 3,466 acres, including the 56 acre tract. The McBeth Lease covered 591.3 acres, which also included the 56 acre tract.

CHIEFTAIN'S APPEAL

Chieftain sued Gastar asserting violations of the Natural Resources Code, breach of contract, and violations of the Texas Theft Liability Act and claiming it was owed oil and gas royalties from a well drilled in a pooled unit. As a successor in interest to Gastar's rights in the Streater Unit, Cubic intervened in the suit. Each party filed competing motions for summary judgment. Gastar filed a traditional motion for partial summary judgment asserting Chieftain's claims fail as a matter of law because Chieftain is not owed any royalties. Cubic filed a traditional motion for summary judgment asserting that the terms of a Ratification and the Lone Oak Lease defeat Chieftain's claims as a matter of law. Chieftain also filed a traditional motion for partial summary judgment on its claims. The trial court granted Gastar's and Cubic's motions and denied Chieftain's motion.

Summary Judgment Review

[omitted]

Issues

Asserted by various issues, Chieftain's appeal centers on its desire to be paid what it alleges to be its share of royalties from the Streater Well located in the Streater Unit. We first discuss whether the Lone Oak Lease was pooled in the Streater Unit, which would entitle Chieftain to payment. If the Lease was not pooled, we then will address other reasons for payment asserted by Chieftain

Pooling of the Lease/Land

Oil and gas leases in general, and pooling clauses in particular, are a matter of contract. Samson Expl., LLC v. T.S. Reed Props., Inc., No. 15-0886, 60 Tex. Sup. Ct. J. 1413, 2017 Tex. LEXIS 599, at *13 (June 23, 2017); Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 424 (Tex. 2008). A lessee's authority to pool requires the lessor's consent, which is typically furnished through a pooling provision in the mineral lease. Samson, at *13; Se. Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 170 (Tex. 1999). Pooling is valid only if done "in accordance with the method and purposes specified in the lease." Id. A pooling agreement that does not comply with the terms of the lease is invalid and unenforceable absent the lessor's ratification. See Samson, at *14.

No-marriage summary judgment reversed based on evidence of fact issues on each element of informal (re)marriage under Texas law

Tran v. Ngo, No. 01-17-00138-CV  (Tex.App. - Houston [1st Dist.] Aug. 30, 2018) (No-marriage summary judgment reversed on finding that Tran presented more than a scintilla of evidence for each element for proving common-law marriage and that Ngo has not disproved any of the elements as a matter of law.).

TRIAL COURT'S SUMMARY JUDGEMENT

REVERSED BASED ON SOME EVIDENCE ON ELEMENTS OF INFORMAL MARRIAGE 

Was the allegation of an informal marriage between a previously married-and-divorced couple a sham? Evidence offered for marriage was enough to require reversal of summary judgment, appellate panel concludes, and passes on opportunity to apply the novel sham affidavit rule created by the Texas Supreme Court in Lujan v. Navistar (blog comment). Lujan v. Navistar, Inc., 555 S.W.3d 79, 2018 WL 1974473, 61 Sup. Ct. J. 982 (Apr. 27,  2018).

BRIAN LANG TRAN, Appellant,
v.
MANDY QUYNH NGO, Appellee.

No. 01-17-00138-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued August 30, 2018.

Kelli B. Smith, Jedediah D. Moffett, for Mandy Quynh Ngo, Appellee.

Allan A. Cease, for Brian Lang Tran, Appellant.

On Appeal from the 309th District Court, Harris County, Texas, Trial Court Case No. 2015-28264.

Panel consists of Chief Justice Radack and Justices Higley and Bland.

MEMORANDUM OPINION

LAURA CARTER HIGLEY, Justice.

Brian Lang Tran filed for divorce from Mandy Quynh Ngo, alleging a common-law marriage. Ngo filed for summary judgment, arguing they had not been married. The trial court granted the motion. In two issues on appeal, Tran argues the trial court erred by granting the motion.

We reverse and remand.

Background

Tran and Ngo were formally married in 2000. The parties filed for divorce, and the divorce was finalized on August 15, 2005. The parties agree that, after the divorce, they operated a chiropractic clinic together. They agree that they continued to live together until at least some time in 2006. The parties also agree that they continued some sort of relationship with each other, with a child born in 2006 and another born in 2007.

The parties also agree that their relationship changed in 2012.^[1] Tran alleges that he moved out and that he and Ngo moved back in together in late 2013 and that their relationship continued until late 2014.

Tran filed for divorce in May 2015. Ngo filed a traditional motion for summary judgment, arguing that the evidence established as a matter of law that there was no agreement to be married, that they did not live together during the time period in question, and that they did not hold themselves out as married during that time.

For proof that there was no agreement, Ngo points to affidavits they signed in 2013 representing that they were not married, were not living together, and had not represented to others that they were married. She also points to her deposition, where she denied that they lived together, and to Tran's deposition. The excerpts from Tran's deposition focus on Tran's difficulty specifying the exact date that they agreed to be married and on his acknowledgement that he had represented he was single in certain documents. For example, Tran acknowledged that he had filed a bankruptcy petition in October 2005 representing under oath that he was divorced and not currently married.

For proof that they were not living together, Ngo points to Tran's tax filings from 2007 to 2014, identifying a different address than where Ngo lived. She also points to Tran's voter registration and driver's license, which also showed a different address from Ngo. For proof that they did not hold themselves out as married, Ngo points to the same documents that showed separate addresses for the two of them and that identified them as not married or living together.

Tran responded to the motion. He attached to the response his affidavit, the declaration of twelve other people, and cards from Ngo. He also incorporated by reference his deposition, attached to Ngo's motion. In his affidavit, Tran averred that, while he and Tran were formally married, he encountered financial trouble. He asserts that, to protect Ngo from the creditors, they agreed to divorce. He also asserts that, after they divorced, they agreed to be married to each other but to keep that a secret from his creditors. To that end, according to Tran, the two of them identified themselves as not married and as living at different addresses in formal documents. But to their friends, family and associates, Tran averred, they presented themselves as married.

Tran asserted in his affidavit that the two continued to live together even after their first divorce. He claimed that he lived with Ngo at the addresses identified as her formal address. They had two children together and shared expenses.

Tran's deposition expresses the same ideas. He testified that he covered up his marriage to Ngo in formal documents to protect his family from creditors. But he asserted that the two of them continued to live together and that they were referred to as husband and wife by their friends.

Tran's declarations are from various friends and associates. The declarants describe knowing Tran and Ngo, hearing them refer to each other as husband and wife, and believing them to be married. Many of them assert seeing the two living together. One of the declarations is from the landscaper at the house that he identified as Tran and Ngo's joint residence. Another is from the nanny that cared for Tran and Ngo's children. The nanny identified Tran and Ngo living together and referred to Tran and Ngo as each other's spouse.

Tran also attached a number of cards and letters Ngo wrote to him. One of them, dated January 29, 2010, says, "Happy anniversary to my husband" on the cover. On the inside of the card, Ngo expressed her love to Tran and wrote, "Thank you for being the husband that you thrive to be for me."

Ngo acknowledged the authenticity of this card. She also acknowledged that she sometimes wore her wedding band after she and Tran were divorced. Ngo likewise conceded that she received professional awards jointly with her husband, and that some presenters referred to her and Tran as husband and wife when dispensing these awards and she did not try to correct them. As late as 2014, the auto-insurance policy purchased by Ngo reflected that she and Tran were married.

The trial court granted Ngo's summary judgment. Later, the trial court severed that ruling from the suit affecting parent-child relationship. Tran appealed.

Standard of Review

The summary-judgment movant must conclusively establish its right to judgment as a matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Because summary judgment is a question of law, we review a trial court's summary judgment decision de novo. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

To prevail on a traditional summary-judgment motion asserted under Rule 166a(c), a movant must prove that there is no genuine issue regarding any material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

A party moving for traditional summary judgment on a claim for which it does not bear the burden of proof must either disprove at least one element of the plaintiff's cause of action or plead and conclusively establish each essential element of an affirmative defense to rebut the plaintiff's cause. See Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). If the movant meets its burden, the burden then shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

To determine whether there is a fact issue in a motion for summary judgment, we review the evidence in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848(citing City of Keller, 168 S.W.3d at 827). We indulge every reasonable inference and resolve any doubts in the non-movant's favor. Sw. Elec. Power Co. v. Grant,73 S.W.3d 211, 215 (Tex. 2002).

Evidentiary Objections

Before we turn to Tran's challenge to the trial court's summary-judgment ruling, we address Tran's contention that Ngo waived her objections to Tran's summary-judgment evidence. Ngo made two kinds of objections to Tran's summary-judgment evidence. First, she contended that Tran sought to create a "sham" fact issue on summary judgment by contradicting without adequate explanation his own earlier affidavit and representations under oath denying any informal marriage to Ngo. 

Second, she objected to the other witness declarations that Tran proffered, arguing they were conclusory. The trial court did not formally rule on these objections. Ngo argues on appeal that the trial court implicitly ruled on the objections. See Ordonez v. Solorio, 480 S.W.3d 56, 63 (Tex. App.-El Paso 2015, no pet.) (holding implicit ruling on objections apply when something other than mere granting of motion for summary supports implicit ruling).

For the sham affidavit objection, we do not need to decide whether the trial court implicitly sustained Ngo's sham-affidavit objection because, even if it did so, other summary-judgment evidence—as discussed below—creates genuine issues of material fact that must be resolved by a factfinder.

For the objections to the declarations, the absence of a ruling on Ngo's objection that these declarations are conclusory does not waive the argument, because a party may challenge the substance of an opposing party's summary-judgment evidence as conclusory for the first time on appeal. See Seim v. Allstate Tex. Lloyds, No. 17-0488, 2018 WL 3189568, at *4 (Tex. June 29, 2018) (per curiam). Conclusory declarations are not competent summary-judgment proof. See TEX R. CIV. P. 166a(f); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (affidavits consisting of conclusions do not raise genuine issue of material fact; facts must be stated with sufficient specificity to allow perjury to be assigned to false representations).

We thus turn to the summary-judgment evidence as to informal marriage, including Ngo's objection that some of this evidence is conclusory and therefore no evidence.

Motion for Summary Judgment

In his two issues on appeal, Tran argues the trial court erred by granting summary judgment, which found that the evidence established as a matter of law that there was no common-law marriage between him and Ngo. The elements for establishing a common-law marriage are (1) the parties agreed to be married, (2) after the agreement, the parties lived together as spouses, and (3) the parties presented themselves as married to others. TEX. FAM. CODE ANN. § 2.401(a)(2) (West 2006); Eris v. Phares, 39 S.W.3d 708, 713 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). Tran bears the burden of proof at trial for establishing these elements. Small v. McMaster, 352 S.W.3d 280, 282-83 (Tex. App.-Houston [14th Dist.] 2011, pet. denied). Ngo moved for summary judgment on all three elements.

As an initial matter, Ngo argued to the trial court and on appeal that there was a rebuttable presumption that the parties were not married. When a party asserting a common-law marriage brings a petition for divorce over two years after the parties separated, "it is rebuttably presumed that the parties did not enter into an agreement to be married." FAM. § 2.401(b). Ngo did not establish as a matter of law that they separated over two years before Tran filed his petition for divorce.

Tran included a declaration from the nanny for his and Ngo's children. The nanny asserted that she started working as their nanny in July 2014, that Tran and Ngo lived together at that time, and that she understood Tran and Ngo to be married. Other people asserted in declarations that they went to the house that Tran and Ngo shared and spent time with them there together. Accordingly, there is a fact issue on when Tran and Ngo finally separated. See Fielding, 289 S.W.3d at 848(holding motion for summary judgment is reviewed by viewing light most favorable to non-movant). Ngo is not entitled to this presumption, then. See FAM. § 2.401(b).

The first element for establishing a common-law marriage is the parties agreed to be married. FAM. § 2.401(a)(2). The evidence shows Tran and Ngo filed a joint tax return as a married couple in 2011. Though Ngo filed an amended return to alter this filing status, she did so only after Tran filed for divorce. Ngo gave Tran anniversary cards in 2008 and 2010. The printed text for both cards was addressed to "my husband." In the 2010 card, Ngo handwrote a personal message to Tran thanking him for being her "husband." She also continued to wear her wedding band on occasion. This evidence is circumstantial, but an agreement to be married may be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). Ngo's references to Tran as her husband is "stronger evidence of an agreement than such a statement by the proponent" of an informal marriage. Id. at 932 (internal quotations omitted). This evidence is enough to raise a genuine issue of material fact as to whether Tran and Ngo agreed to be married.

Ngo also argues there is an ambiguity on which date the parties allegedly agreed to be married. To establish a common-law marriage, Tran must show that, after the agreement was made, the parties lived together and held themselves out as married. See FAM. § 2.401(a)(2); Eris, 39 S.W.3d at 713 ("A common-law marriage does not exist until the concurrence of all three elements."). While Tran must establish a time period for the agreement to show that the other two elements followed the agreement, nothing in the law establishes that failing to prove a specific date or that proof of conflicting dates is fatal to this burden. SeeFAM. § 2.401(a)(2); Eris, 39 S.W.3d at 713.

The second element for establishing a common-law marriage is, after they agreed to be married, the parties lived together as spouses. FAM. § 2.401(a)(2). According to Tran, they lived together up to 2012, separated in 2012, moved back in together in 2013, and separated again in 2014. See Small, 352 S.W.3d at 284(holding living together does not have to be continuous). Multiple affidavits from people that knew both of them acknowledge Tran and Ngo lived together during this time period. These include affidavits from their landscaper, their nanny, and friends who came over to their house to play poker with Tran.

The parties acknowledge that, during the time period in which Tran alleges they were living together, Tran and Ngo had two children. Ngo gave Tran cards expressing a strong love for Tran. One of those cards, dated January 29, 2010, says, "Happy anniversary to my husband" on the cover. On the inside of the card, Ngo wrote, "Thank you for being the husband that you thrive to be for me." Tran testified in his affidavit that they paid bills out of each other's bank accounts and credit cards. This is more than a scintilla of proof that Tran and Ngo lived together as spouses after they agreed to be married.

To establish that they did not live together, Ngo points to documents in which Tran identified his residence being different from her address. The documents include his tax return filings, his voter registration, and his driver's license. This creates a fact issue, not conclusive proof that Tran and Ngo lived in separate residences. See Sw. Elec. Power, 73 S.W.3d at 215 (holding reviewing courts view evidence in light most favorable to non-movant and resolve doubts in non-movant's favor).

The third element for establishing a common-law marriage is, after they agreed to be married, the parties represented to others that they were married. FAM. § 2.401(a)(2). This requirement "is synonymous with the judicial requirement of `holding out to the public.'" Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App.-Houston [1st Dist.] 1998, no pet.). Proof of holding themselves out as married can be established by the conduct of the parties, their words, or both. See Winfield v. Renfro, 821 S.W.2d 640, 648 (Tex. App.-Houston [1st Dist.] 1991, writ denied)(holding conduct of parties is relevant; acknowledging representations as spouses relevant to analysis but not required). This element can be satisfied with proof that the couple identified themselves as married to each other and "opinion and reputation testimony indicated that the couple's conduct was viewed as a representation that they were married." Lee, 981 S.W.2d at 906.

After 2005, Tran and Ngo received awards with their names engraved on them "as a husband and wife team." As late as 2014, Ngo held herself out as Tran's wife when buying insurance. See Alonso v. Alvarez, 409 S.W.3d 754, 757 (Tex. App.-San Antonio 2013, pet. denied) (representations made to healthcare provider, contractor, and in passport application were some evidence of informal marriage).

Tran also offered twelve declarations of people who knew the two of them and understood they were married. Ngo correctly points out that one of the declarations claims to have known them since before they were formally married. This declaration represents that they held themselves out as married but does not state whether these representations were before or after their divorce.

She is also correct that another is conclusory. It contains a statement that the witness "always thought of Brian and Mandy as husband and wife." This is no evidence. See Mills v. Mest, 94 S.W.3d 72, 75 (Tex. App.-Houston [14th Dist.] 2002, pet. denied) (testimony that couple "seemed like" they were married was subjective opinion lacking evidentiary value); see also Nichols v. Lightle, 153 S.W.3d 563, 570-71 (Tex. App.-Amarillo 2004, pet. denied) (affidavits paraphrasing informal-marriage statute and affidavit averring to holding out only in generic terms were conclusory).

Other witness statements were not conclusory, however. One witness, who has only known Tran and Ngo since 2014, represented that he "attended their wedding anniversary." Another stated that he "met Brian and Mandy as husband and wife" in 2010, that they "presented themselves as husband and wife," and that he saw them "living together." A third represented that he visited Tran and Ngo's home in 2013 or 2014, said they were "living together," and heard them refer "to each other as husband and wife." Similarly, a fourth witness testified that he attended a party at their Bellaire Court home around 2009, saw them "living together," and heard Ngo refer to Tran "as her husband." These declarations span several years' time after the 2005 divorce and constitute some evidence that they represented to others that they were married. See In re Estate of Giessel, 734 S.W.2d 27, 31-32 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) (evidence was sufficient to establish cohabitation and holding out notwithstanding substantial contrary evidence, including ostensible wife's filing of separate tax returns as single person).

Tran has presented more than a scintilla of evidence for each element for proving common-law marriage. Ngo has not disproved any of the elements as a matter of law. We sustain Tran's first issue.^[2]

Conclusion

We reverse the trial court's grant of summary judgment and remand for further proceedings.

  

[1] Ngo alleges that their romantic relationship ended. Tran alleges that they separated and agreed to date other people.

[2] Because Tran's second issue is identical to his first, we do not need to independently rule on it. SeeTEX. R. APP. P. 47.1.

Negligent hiring and negligent entrustment claims require proof that entrusted person committed tort

Claims for negligent hiring or retention and negligent entrustment require proof that the employee or entrusted person committed an underlying tort. See Wansey v. Hole, 379 S.W.3d 246, 247-48 (Tex. 2012) ("To prevail on a claim for negligent hiring or supervision, the plaintiff is required to establish not only that the employer was negligent in hiring or supervising the employee, but also that the employee committed an actionable tort against the plaintiff. . . . We have explicitly established this requirement in negligent entrustment cases, which are factually similar to negligent hiring claims." (quotation and citations omitted)); see also Shupe v. Lingafelter, 192 S.W.3d 577, 580 (Tex. 2006) ("On a negligent entrustment theory, a plaintiff must prove, among other elements, that the driver was negligent on the occasion in question and that the driver's negligence proximately caused the accident."); see also Jackson v. NAACP Houston Branch,No. 14-15-00507-CV, 2016 WL 4922453, at *11-12 (Tex. App.-Houston [14th Dist.] Sept. 15, 2016, pet. denied) (mem. op.) (affirming summary judgment for the defendant-employer because there was no evidence that the employee had committed a "separate actionable tort to support the negligent-retention claim").

KENNETH ALFORD AND DENISE ALFORD v. GERALD SINGLETON AND TARGA RESOURCES LLC, No. 14-17-00504-CV (Tex.App. - Houston [14th Dist.] Oct. 30, 2018)

KENNETH ALFORD AND DENISE ALFORD, Appellants,
v.
GERALD SINGLETON AND TARGA RESOURCES LLC, Appellees.

No. 14-17-00504-CV 

Court of Appeals of Texas, Fourteenth District, Houston.

Memorandum Opinion filed October 30, 2018.

Jon R. Hanna, Frederick Dunbar, for Kenneth Alford and Denise Alford, Appellant.

Jarod D. Bonine, Daniel Francis Patton, for Gerald Singleton, Appellee.

On Appeal from the 127th District Court, Harris County, Texas, Trial Court Cause No. 2015-20209.

Affirmed.

Panel consists of Justices Jamison, Wise, and Jewell.

MEMORANDUM OPINION

KEN WISE, Justice.

Appellants Kenneth and Denise Alford appeal from a take-nothing judgment following (1) a jury trial on their negligence claim against appellee Gerald Singleton and (2) the trial judge's grant of summary judgment for Singleton's employer, appellee Targa Resources LLC.

One morning before dawn, Kenneth was driving on the busiest highway in Breckenridge, Texas, when debris spilled from the back of his flatbed truck onto the highway. Kenneth parked his truck in a nearby parking lot and went into the middle of the highway to pick up the debris. As Singleton turned onto the highway from a cross street at a slow speed, Singleton struck Kenneth.

The Alfords sued Singleton and Targa. The trial court granted a summary judgment on all of the Alfords' claims against Targa, and the issue of Kenneth's and Singleton's negligence was submitted to the jury. The jury found that no negligence of Singleton proximately caused the occurrence, and Kenneth's negligence proximately caused the occurrence. The trial court signed a take-nothing judgment.

The Alfords challenge the trial court's judgment in three issues, contending that (1) the trial court erred by giving the jury a negligence per se instruction as to Kenneth's conduct, (2) the jury's finding that Singleton was not negligent is against the great weight and preponderance of the evidence, and (3) the trial court erred by granting a summary judgment to Targa on claims that the Alfords added in amended pleadings but that were not addressed in the motion. We affirm.

I. JURY CHARGE

In their first issue, the Alfords contend that the trial court erred by "giving the jury a negligence per se instruction as to [Kenneth]'s conduct." In the charge, the trial court defined "negligence," "ordinary care," and "proximate cause." Then, the court included the following Jury Question No. 1:

Did the negligence, if any, of the persons named below proximately cause the occurrence in question?

You are instructed that the law requires a vehicle bed carrying a load of refuse to be enclosed on all four sides[.]

Answer "Yes" or "No" for each of the following

a. Gerald Singleton

b. Kenneth Alford

The jury answered unanimously "no" for Singleton and "yes" for Alford.

Kenneth complains about the trial court's inclusion of the instruction regarding a vehicle carrying a load of refuse to be enclosed on all four sides. It was undisputed at trial that Kenneth's truck did not have a rear tailgate. There was no evidence that Singleton's truck had a similar deficiency. Kenneth contends that the trial court's error probably caused the rendition of an improper judgment under Rule 44.1(a) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.1(a).

Assuming without deciding that the trial court erred by including this instruction, we cannot conclude that the alleged error probably caused the rendition of an improper judgment. To determine whether an instruction probably caused an improper judgment, we examine the entire record. Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006).

In this case, the trial court rendered a take-nothing judgment in Singleton's favor because of the jury's "no" answer to Singleton's negligence, not because of the jury's "yes" answer to Kenneth's negligence. The trial court's judgment would have been the same even if the jury answered "no" as to Kenneth's negligence. Even if the contested instruction caused the jury to answer "yes" for Kenneth's negligence, the instruction had no impact on the trial court's judgment. Cf. Thota v. Young, 366 S.W.3d 678, 683-84, 694 (Tex. 2012) (holding that the trial court's inclusion of a question on the plaintiff's contributory negligence was harmless because the jury answered "no" regarding the defendant's negligence). Once the jury answered "no" to Singleton's negligence, the "yes" answer for Kenneth's negligence became immaterial. See id. at 694 ("Once the jury answered `No' to whether any negligence of [the defendant] proximately caused [the plaintiff's] injury, [the defendant] was exonerated, and neither a `Yes' nor a `No' answer as to [the plaintiff's] contributory negligence could alter the verdict.").

Moreover, in the charge, the jurors were instructed that they could find more than one party negligent; therefore, they were aware that a finding that Kenneth was negligent in not securing debris on all four sides would not preclude a finding that Singleton was also negligent. In Thota, for example, the Supreme Court of Texas reasoned that any error in the submission of the plaintiff's negligence was harmless in part because "the jury was well aware that its findings as to [the parties'] negligence were separate." Id. The court looked to the entire jury charge and noted that (1) each party was listed separately with separate blanks for the jury's answers; (2) the proximate cause definition informed the jury that there could be more than one proximate cause of an event; and (3) the apportionment question was conditioned on the jury answering "yes" as to liability for both the plaintiff and the defendant. See id. at 683, 694.

Likewise, the jury charge in this case included (1) separate blanks for Kenneth's and Singleton's negligence, (2) a definition of proximate cause informing the jury that there could be more than one proximate cause of an event, and (3) an instruction that for the jury to answer the apportionment question, the jury first would need to answer "yes" for more than one of the parties listed in Jury Question No. 1.

Considering the entire record, we cannot conclude that the trial court's inclusion of the instruction pertaining to Kenneth's negligence probably caused the rendition of an improper take-nothing judgment. The Alfords' first issue is overruled.

II. FACTUAL SUFFICIENCY

In their second issue, the Alfords contend that the jury's "no" answer regarding Singleton's negligence is against the great weight and preponderance of the evidence.

When, as here, a party attacks the factual sufficiency of an adverse finding on an issue for which the party has the burden of proof, the party must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must consider and weigh all of the evidence, and we may set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

The evidence is largely undisputed. Some debris spilled from Kenneth's truck on the highway, and he parked the truck in a nearby lot with the headlights illuminated. On foot, Kenneth went into the middle turn lane of the highway to pick up the debris. It was dark outside, in the pre-dawn hours of the morning. The five-lane highway was the busiest street in Breckenridge with a speed limit of forty miles per hour. One witness testified that he almost hit Kenneth that morning before Singleton did, and it was a dangerous situation for Kenneth to be in the middle of the highway because it was "exceptionally dark that morning."

Singleton testified that he came to a stop at a stop sign on a cross street and noticed Kenneth's truck parked in the lot with its lights on, as if the truck was going to enter the highway. Singleton looked to his left, to his right, and then to his left again. When traffic cleared, Singleton turned left onto the highway. Singleton was looking to the left as he made the turn. Singleton acknowledged that he was looking one way and driving another. As Singleton was completing the turn, Singleton began looking forward. Singleton was driving five to ten miles per hour at the time. Singleton testified that Kenneth had been "bent over in the street and he start[ed] the process of standing up." Singleton did not see Kenneth until that moment, and Singleton struck Kenneth with the truck.

A police officer who responded to the scene included the following diagram in his report:

In his report, the officer did not identify any contributing factors to the incident. But, the officer testified that Kenneth "chose about the most unsafe way possible to pick up that debris." In particular, Kenneth did not park his vehicle on the highway with flashing lights, nor did he wear any reflective clothing.

Generally, the resolution of a defendant's possible breach of duty is a question of fact for the jury. See Aguirre v. Vasquez, 225 S.W.3d 744, 757 (Tex. App.-Houston [14th Dist.] 2007, no pet.); see also Smith v. Cent. Freight Lines, Inc., 774 S.W.2d 411, 412-14 (Tex. App.-Houston [14th Dist.] 1989, writ denied). The mere existence of a vehicle collision—even one involving a pedestrian—does not necessarily mean that the defendant was negligent. See Smith, 774 S.W.2d at 412, 414 (factually sufficient evidence to support jury's "no" answer regarding the defendant's negligence when the defendant rear-ended the plaintiff); see also Chavarria v. Valley Transit Co., 75 S.W.3d 107, 111-12 (Tex. App.-San Antonio 2002, no pet.) (factually sufficient evidence to support jury's verdict for the defendant bus driver who struck and killed a pedestrian at night when the pedestrian was standing in a lane of traffic, hunched over, and the driver had a mere split second to react before hitting the pedestrian); Howard v. Wilburn, 351 S.W.2d 345, 346-49 (Tex. Civ. App.-San Antonio 1961, writ ref'd n.r.e.) (factually sufficient evidence to support jury's verdict for the defendant driver who struck and killed a pedestrian who was crossing the main thoroughfare while it was getting dark outside); Lofland v. Jackson, 237 S.W.2d 785, 789-91 (Tex. Civ. App.-Amarillo 1950, writ ref'd n.r.e.) (sufficient evidence to support the jury's finding of no negligence when a driver struck a pedestrian); cf. Guyger v. Hamilton Trailer Co.,304 S.W.2d 377, 378-79, 382 (Tex. Civ. App.-Eastland 1957, no writ) (affirming jury's finding that driver who struck pedestrian was not negligent or liable under the discovered peril doctrine).

The Alfords fault Singleton for "cut[ting] more than he had to through the middle turn lane," rather than pulling only into the lane immediately to the right of the middle lane. Singleton testified that he cut into the middle lane before getting into the lane immediately to the right because there was a truck approaching on the highway in the far right lane. Singleton wanted to make sure he was not pulling out in front of the approaching truck.

The jury, weighing all of the evidence, could have found that Singleton's conduct was not negligent under the circumstances. Kenneth was bent over in the middle of the busiest highway in town while it was exceptionally dark outside, without taking any precautionary measures. Another driver almost struck Kenneth, yet Kenneth remained in the road. There is evidence that Singleton kept a lookout on the road and was not speeding or driving erratically. Considering the totality of the evidence, the jury's finding that no negligence by Singleton proximately caused the occurrence in question is not against the great weight and preponderance of the evidence. See Chavarria, 75 S.W.3d at 111-12.

The Alfords' second issue is overruled.

III. SUMMARY JUDGMENT

In their third issue, the Alfords contend that the trial court erred by granting summary judgment to Targa because the Alfords amended their petition to include new claims for negligent retention and negligent entrustment that were not addressed in Targa's motion for summary judgment. Targa contends, among other things, that any such error was harmless because negligent retention and negligent entrustment claims require the plaintiff to prove that the employee or entrusted person committed an underlying tort, and here, the jury found that Singleton was not negligent.

Generally, granting summary judgment on a claim not addressed in the motion is reversible error. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011). The harmless error rule, however, applies to this type of error. See id. (citing Tex. R. App. 44.1(a)). Error is harmless unless a reviewing court finds that the error probably caused the rendition of an improper judgment or prevented the appellant from properly presenting the case on appeal. Id. (citing Tex. R. App. 44.1(a)).

The error of granting summary judgment on a claim not addressed in the motion is harmless if "the omitted cause of action is precluded as a matter of law by other grounds raised in the case." Id. at 298. In Magee, for example, the Supreme Court of Texas held that a summary judgment on a vicarious liability theory of recovery, though not expressly presented in the motion, was harmless when a summary judgment was properly granted on the underlying tort committed by the employee. See id.

Claims for negligent hiring or retention and negligent entrustment require proof that the employee or entrusted person committed an underlying tort. See Wansey v. Hole, 379 S.W.3d 246, 247-48 (Tex. 2012) ("To prevail on a claim for negligent hiring or supervision, the plaintiff is required to establish not only that the employer was negligent in hiring or supervising the employee, but also that the employee committed an actionable tort against the plaintiff. . . . We have explicitly established this requirement in negligent entrustment cases, which are factually similar to negligent hiring claims." (quotation and citations omitted)); see also Shupe v. Lingafelter, 192 S.W.3d 577, 580 (Tex. 2006) ("On a negligent entrustment theory, a plaintiff must prove, among other elements, that the driver was negligent on the occasion in question and that the driver's negligence proximately caused the accident."); see also Jackson v. NAACP Houston Branch,No. 14-15-00507-CV, 2016 WL 4922453, at *11-12 (Tex. App.-Houston [14th Dist.] Sept. 15, 2016, pet. denied) (mem. op.) (affirming summary judgment for the defendant-employer because there was no evidence that the employee had committed a "separate actionable tort to support the negligent-retention claim").

Accordingly, a negligent entrustment claim may be negated as a matter of law by a jury's negative answer to a jury question concerning the negligence of the entrusted person. See Shupe, 192 S.W.3d at 580. In Shupe, the plaintiff complained about the trial court's error in failing to submit to the jury a definition of negligence that incorporated a negligent entrustment theory of liability against one of the defendants. See id. at 578-79. The Supreme Court of Texas held that any error by omitting this theory of liability against the defendant was rendered harmless by the jury's "no" answer as to the negligence of the entrusted person. See id. at 580. The court held, "The jury's negative finding on this question negated the unsubmitted negligent entrustment issue as a matter of law." Id.

Since both negligent entrustment and negligent retention claims require proof of an underlying tort, see, e.g., Wansey, 379 S.W.3d at 247-48, the jury's "no" answer regarding Singleton's negligence in this case negated the unsubmitted claims as a matter of law. See Shupe, 192 S.W.3d at 580. We cannot conclude, based on this record, that any improper summary judgment on those claims probably caused the rendition of an improper judgment or prevented the appellant from properly presenting the case on appeal. See Magee, 347 S.W.3d at 298. The Alfords' third issue is overruled.

IV. CONCLUSION

Having overruled all of the Alfords' issues, we affirm the trial court's judgment. 

Unenforceable penalty objection to contractual liquidated damages provision must be pleaded as an affirmative defense

An assertion that a contractual liquidated-damages provision is an unenforceable penalty is an affirmative defense. Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex. 1991); Magill v. Watson, 409 S.W.3d 673, 679 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

Unless it is apparent from the face of the plaintiff’s petition that the provision is a penalty, the defendant must plead the defense or it is waived. See TEX. R. CIV. P. 94; Phillips, 820 S.W.2d at 789–90. Moreover, the defendant cannot raise this affirmative defense for the first time on appeal even if it is apparent from the face of the plaintiff’s petition that the liquidated-damages provision is an unenforceable penalty. See Phillips, 820 S.W.2d at 790; Excela Energy v. Exalt Real Estate Grp., No. 14-16-00388-CV, 2017 WL 2292586, at *2–3 (Tex. App.— Houston [14th Dist.] May 25, 2017, pet. denied) (mem. op.).

Source: First Court of Appeals, NO. 01-18-00027-CV - 10/30/2018
TYHAN, INC. D/B/A AUTO FIX UNLIMITED V. CINTAS CORPORATION NO. 2

Tyhan did not challenge that the contract’s liquidated-damages provision as an unenforceable penalty either in its answer or in its response to Cintas’s summary judgment motion. Tyhan raised this issue for the first time in its appellate brief. Tyhan therefore has not preserved this issue for review. See Phillips, 820 S.W.2d at 790; Excela Energy, 2017 WL 2292586, at *2–3.