Under the Family Code trial court did not have the option to order joint managing conservatorship in divorce custody dispute where husband had received deferred adjudication on domestic violence charge. Trial court was free to disbelieve husband's testimony that wife also acted violently.
EXCERPT FROM THE APPELLATE OPINION
Appointing Sole Managing Conservator
In his first issue, Stuart contends that the evidence is legally and factually insufficient to support the trial court’s final decree of divorce that ordered possession of the parties’ children different from the standard possession order. In his second issue, Stuart asserts that the trial court abused its discretion by “granting sole custody to Debra Guillot as she had committed family violence in the last two years and she had threatened to kill the children.” Stuart does not assert that the trial court abused its discretion by issuing the protective order in November 2005 or that the evidence is insufficient to support that decision.
See Tex. Fam. Code Ann. § 81.009(b) (Vernon Supp. 2007) (“A protective orderrendered against a party in a suit for dissolution of a marriage may not be appealed until the time the final decree of dissolution of the marriage becomes a final,appealable order.”).
The Family Code addresses the trial court’s options in appointing conservators of children when a parent has committed family violence. Section 153.004, “History of Domestic Violence,” provides,
(a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party’s spouse . . . committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent . . . .
(c) The court shall consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
(d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit, unless the court:
(1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
(2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that:
(A) the periods of access be continuously supervised by an entity or person chosen by the court . . . .
Tex. Fam. Code Ann. § 153.004 (Vernon Supp. 2007).
Here, the trial court found that Stuart had committed family violence when it issued the protective order in November 2005. Further, it is undisputed that on July 20, 2004, Stuart received deferred adjudication for assault with an affirmative finding of family violence, which is within two years of the date that Debra filed for divorce on July 22, 2005.
Based on the plain language of the Family Code, the trial court was required to consider this factor in determining conservatorship of and access to the children. See id. § 153.004(a) (trial court “shall consider evidence” of family violence in determining conservatorship); id. §153.004(c) (trial court “shall consider the commission of family violence” in determining access to children).
Further, the Family Code prohibited the trial court from appointing Stuart a joint managing conservator and required the trial court to allow only supervised access to children. Id. § 153.004(b) (trial court “may not appoint joint managing conservators” if history or pattern of physical abuse exists); id. § 153.004(d)(2) (in cases of family violence within two years of filing of suit for dissolution of marriage, trial court “may not allow” access unless possession order designed to protect children, which “may include requirement” of supervised access).
Because the trial court acted consistently with the plain language of the Family Code, we conclude that the trial court did not abuse its discretion by appointing Stuart a possessory conservator or requiring supervised access to the children.
Concerning Stuart’s assertion that Debra also committed family violence, he identifies the testimony of an officer from the Fort Bend County Sheriff’s Office. The officer testified that he responded to a family violence call to the Guillots’ home and found, in addition to a red mark on Debra’s chest, “bruising, scratches on [Stuart’s] face and neck area.” The officer did not state that Debra committed family violence, but Stuart testified that Debra had threatened him and struck him on various occasions. Stuart also testified that Debra, on one occasion, threatened to drown the children if he did not do as she asked. However, Debra denied these accusations.
Because the trial court was presented with conflicting evidence and was required to resolve a factual issue by determining the credibility of the witnesses, we cannot conclude that the trial court abused its discretion by implicitly finding Stuart’s testimony lacking in credibility. See George, 238 S.W.2d at 474.
We overrule Stuart’s first and second issues.
In his fifth issue, Stuart contends that the trial court abused its discretion by “granting Debra Guillot Spousal Support as she had committed Family Violence.” Specifically, Stuart asserts that the trial court abused its discretion because: (1) a police officer testified that Debra also committed family violence and (2) Debra earned $53,000 a year and has a college education, while Stuart only has a ninth-grade education and a GED.
A trial court may exercise its discretion to award court-ordered maintenance, or “spousal support,” only if the requirements of the Texas Family Code are met. Chafino v. Chafino, 228 S.W.3d 467, 474 (Tex. App.—El Paso 2007, no pet.). The trial court may award spousal maintenance if:
the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 [of the Texas Family Code] and the offense occurred:
(A) within two years before the date on which a suit for dissolution of the marriage is filed; or
(B) while the suit is pending . . . .
Tex. Fam. Code Ann. § 8.051(1) (Vernon 2006).
Here, it is undisputed that Stuart received deferred adjudication for assault with an affirmative finding of family violence on July 20, 2004, which is within two years of the date that Debra filed for divorce on July 22, 2005.
Concerning Stuart’s contention that Debra also committed family violence, we have already determined that the trial court implicitly found Stuart’s testimony on this issue lacked credibility. Thus, we conclude that the trial court did not abuse its discretion because Debra meets the statutory requirement for court-ordered maintenance. See George, 238 S.W.2d at 474 (stating that under abuse of discretion standard, appellate court must defer to factual and credibility determinations made by trial court).
Stuart’s contention that Debra had a better education than he did is not a relevant factor in determining whether to award maintenance. The Family Code lists factors for the trial court to consider in determining the amount of maintenance. See Tex. Fam. Code Ann. § 8.052 (Vernon 2006) (among the factors trial court to consider in determining amount of maintenance is relative education and income of spouses). However, Stuart’s fifth issue specifically states that the trial court erred “in granting Debra Guillot Spousal Support.” Stuart does not make any argument concerning the amount of the award and does not cite to section 8.052 or any relevant case law. To the extent that Stuart is challenging the amount of the maintenance awarded, we conclude that he has waived that issue.
We overrule Stuart’s fifth issue.
Guillot v. Guillot
(Tex.App.- Houston [1st Dist.] June 26, 2008)(Alcala)
(child custody appeal, supervised visitation, spousal support, domestic violence as factor)
Opinion by Justice Alcala Before Justices Nuchia, Alcala and Hanks
01-06-01039-CV Stuart Guillot v. Debra GuillotAppeal from 387th District Court of Fort Bend CountyTrial Court Judge: Hon. Robert J. Kern
Disposition: Trial court's judgment affirmed
Thursday, June 26, 2008
Wednesday, June 25, 2008
"How much money did the nigger make on the sale of the RV?"
Trial judge withdrew declaration of mistrial after use of N-word in violation of in limine order, and continued jury trial, but only after parties agreed to forgo right to appeal based on the mistrial issue. Court of Appeals holds that error was thus waived, that trial court did not lose jurisdiction by declaring a mistrial, and thus retained the power to undo the mistrial.
Jack v. Holiday World of Houston
(Tex.App.- Houston [1st Dist.] June 19, 2008) (Taft) (Texas DTPA, motor home purchase, mistrial, racism, improper comments to jury, Batson challenge)
Opinion by Justice Tim Taft
Before Justices Taft, Keyes and Alcala
Appeal from 281st District Court of Harris County
Trial Court Judge: Hon. David J. Bernal
Disposition: Trial Court's Judgment affirmed
EXCERPT FROM THE OPINION
Reconstituting the Jury after a Mistrial Was Declared
In his first issue, Jack contends that the trial court erred in reconstituting the jury after having declared a mistrial, despite his having acquiesced in continuing the trial and his agreement that no appeal would be taken from the decision to continue the trial. The trial court’s actions of which Jack complains occurred after Jack had violated a standing motion in limine. During Holiday World’s examination of him, Jack asked Holiday World’s counsel, “Could I ask you a quick question? Who asked you this question: ‘How much money did the nigger make on the sale of the RV?’”
Jack complains of what followed:
The Court:All right. Ladies and gentlemen of the jury—I’ve had enough. Okay? Ladies and gentlemen of the jury, I am at this time declaring a mistrial in this case. You guys are free to go home. I apologize for the time that you have wasted in this case. Please go back into the jury room, and I am going to come visit with you in a second.
(Jury not present)
I am assuming the defendants were going to move for a mistrial.
[Counsel]:I don’t know, Your Honor. Could we have a minute?
[Counsel]:I would like to talk to my client.
(off the record)
The Court:I don’t know if the defendants have decided whether or not they indeed want to move for a mistrial or not. Let me tell you that I am comfortable that if I have the agreement of all parties, that I can instruct the jury that my remark was being taken back by the Court and that no appellate point will arise from my stating to the jury both that I was declaring a mistrial, and following that up with a declaration that my remark is taken back by me and should not enter into their deliberations. If I have an agreement by all that those two things will not constitute an appellate point by anyone and that everyone agrees to proceed with this trial within the parameters as just stated by me, I will continue with the trial of this cause.
If, however, there is no agreement or for whatever reason a defendant wants to move for a mistrial, I am undecided whether or not to carry that motion or to grant it at this point. I just haven’t thought that one through. But I wanted to let y’all think about my other point.
Lastly, if a mistrial is granted, I will take up after the jury is excused—not necessarily today, but at a later date—a motion for costs and allow the defendants the opportunity to brief the issue and whether or not they are indeed entitled and, if so, to what extent, and obviously allow the plaintiffs a chance to respond to that.
Those are the three parameters I have thought out. I don’t know if y’all have had a chance to think about where we go from here, but I want y’all to know what my thoughts were.
. . .
[Counsel]:Your Honor, may I go on the record for Mr. Jack a moment?
[Counsel]:All right. Mr. Jack, you have been instructed not to do that, correct?
[Jack]:Instructed not to do what?
[Counsel]:Not to—you were aware of the motion in limine, correct, on racial epithets?
. . .
The Court:Were you informed by your counsel not to go into any racial epithets, dispersions, buzz words in front of the jury?
[Jack]:I did not see a motion in limine.
The Court:That is not the question I asked you, sir.
The Court:Did your counsel tell you that you could not say the word you said in front of the jury?
[Jack]:They didn’t tell me that I could not say it. They didn’t coach me to say it.
[Counsel]:Mr. Jack, if the Court is seeking agreement of the parties, what would be your instructions to counsel after—
[Jack]:We’re not going to discuss this here, Counsel. My instruction to you would be between me and you, and not now.
[Counsel]:I understand. I don’t know what to tell the Court, Mr. Jack.
[Jack]:I can tell him. Why don’t the Court ask me?
The Court:Are you in agreement that this case can proceed notwithstanding that I told the jury that I was declaring a mistrial if I instruct the jury when they come back that there was no mistrial, that I misspoke, and that they are to disregard not only my comments but also your comment? Are you in agreement that the case can proceed under those parameters?
. . .
[Counsel]:. . . I would like to know if Mr. Jack is going to waive any right to appeal the outcome of this trial based upon any comments you made regarding mistrial.
[Jack]:No, sir, I’m not giving up any of my rights in no shape, form, or fashion.
The Court:The only specific right, Mr. Jack, was the right to appeal the continuation of this trial notwithstanding my remark regarding the mistrial. That is the only issue we’re addressing.
[Jack]:Yes. I just want it understood, sir. Any right that the statutes of the state of Texas or the United States give me as a plaintiff in this case, I am not waiving.
The Court:With the exception of a right that you may or may not have regarding the mistrial comment; is that correct?
[Jack]:I don’t know if I understand what you’re saying.
The Court:I think—and I don’t know the answer to it, Mr. Jack. I’m telling you I don’t know the answer to it. But if I have the agreement of everyone to proceed with this trial notwithstanding the remark you made, my remark of the mistrial, what I don’t want—and what no one else wants—to be an appellate point is the continuation of the trial notwithstanding my remark on a mistrial. And no one’s asking you to waive any other rights you may have. What I want to make sure, though, is that everyone is in agreement that they will not appeal that single issue.
[Jack]:Tell me if I’m understanding you correctly. What you are stating is that the fact that you stated there would be a mistrial—that anyone would appeal the fact that you stated that there would be a mistrial? Is that correct? Is that what you said? That’s the way I’m interpreting what you [sic] saying.
The Court:Close. That if we agree to go forward and I bring the jury back in and I tell them there is no mistrial, disregard my remark on the mistrial, that you, the bank, Holiday World, and Forest River will not appeal that single issue.
[Jack]:That single issue of a mistrial.
The Court:You agree to that?
Jack contends that the “trial court action in using its ‘leverage’ violates the mandate and spirit” of the Code of Judicial Conduct and asserts that the trial court “was without authority to reconstitute the jury and proceed with trial” without any discussion of his agreement and what effect it would have on this appellate issue. It is clear from the record that neither the trial court nor appellees would have agreed to resume the trial had everyone not expressly agreed to continue and to waive the issue for appeal. Jack expressly agreed to continue the trial and to waive appeal of the issue. Jack nonetheless contends that, at the point at which the trial court discharged the jury, it lost subject-matter jurisdiction over the case. He contends that, because that subject-matter jurisdiction cannot be created by agreement or waiver, he cannot be held to his express agreement and waiver of the issue.
Jack cites no authority for his contention that the trial court’s ordering of a mistrial deprives it of subject-matter jurisdiction. Although there are no precedential civil cases concerning whether a trial court has the authority to rescind a mistrial order, in criminal cases, courts have held that a trial court does not lose subject-matter jurisdiction after entering a mistrial to rescind its mistrial order. See Rodriguez v. State, 852 S.W.2d 516, 520 (Tex. Crim. App. 1993) (“[A]t least as a matter of jurisdiction, the trial court does not lack authority to withdraw or rescind its order of mistrial. . . . That an order granting a mistrial that is not subsequently withdrawn does indeed have the effect of nullifying all proceedings to that point does not mean the trial court may not rescind that order, and continue with the trial, so long as that remains a viable option under the circumstances.”); Montemayor v. State, 55 S.W.3d 78, 87 n.2 (Tex. App.—Austin 2001, no pet.) (“By failing to discharge the jury and by ordering the jury to resume deliberation, the court implicitly withdrew its decision to grant a mistrial.”); cf. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.1993) (holding that trial court had authority, during 75-day period in which it had plenary power to rule on motion for new trial, to vacate its previous order granting new trial).
See also Willie v. Donovan & Watkins, Inc., No. 01-00-01039-CV, 2002 WL537682, at *2 (Tex. App.—Houston [1st Dist.] Apr. 11, 2002, no pet.) (notdesignated for publication).
We hold that the trial court did not lose jurisdiction to withdraw the order of mistrial and to resume trial.
Because the trial court retained jurisdiction to rescind its mistrial order, Jack cannot now complain of the trial court’s action to which he explicitly agreed. In Salinas v. State, the trial court granted a mistrial when a witness made a prejudicial statement on the stand, much as what occurred here. See Salinas v. State, 625 S.W.2d 397, 400 (Tex. App.—San Antonio 1981, no pet.). The defendant then asked the court to rescind the mistrial and to allow the trial to proceed. See id. On appeal, the court held that “[a]n election to proceed to trial after withdrawing a motion for mistrial amounts to a waiver by appellant of any claim of prejudice from the incident thereafter, either on appeal, on motion for new trial, or otherwise.” Id.
The same rationale applies here. Jack waived appeal of the court’s declaring a mistrial and then rescinding that order. See Kelly v. Cunningham, 848 S.W.2d 370, 371 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“A party may not lead a trial court into error and then complain about it on appeal.”); see also Doucet v. Owens–Corning Fiberglas Corp., 966 S.W.2d 161, 165 (Tex. App.—Beaumont 1998, pet. denied) (holding that plaintiff could not complain on appeal about juror misconduct when plaintiff had opposed motion for mistrial on same ground).
We overrule issue one.
Appeal continues and is decided as if appellant had not died. Court states why in dicta.
Holiday World’s “Motion to Conclude Appeal Despite Appellant’s Death” under Texas Rule of Appellate Procedure 7.1(a) is overruled as moot. See Tex. R. App. P. 7.1(a) (“If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s judgment will have the same force and effect as if rendered when all parties were living. The decedent party’s name may be used on all papers.”).
Jack v. Holiday World of Houston (Tex.App.- Houston [1st Dist.] June 19, 2008)(Taft) (motor home purchase, DTPA, mistrial, Batson challenge)
Opinion by Justice Taft Before Justices Taft, Keyes and Alcala
01-06-00816-CV Herbert L. Jack v. Holiday World of Houston, Forest River, Inc., Bank of America, N.A.Appeal from 281st District Court of Harris County
Trial Court Judge: Hon. David J. Bernal
Tuesday, June 24, 2008
Texas has a two-year statute of limitations for negligence claims, whereas the limitations period for breach of contract, fraud, breach of fiduciary duty is four years. Thus, when a legal malpractice action is brought on multiple alternative theories, which should control? Should a tardy aggrieved client be able to pursue suit against the wayward attorney relying on the cause of action with the longer limitations period, or should the action be barred in its entirety after two years based on the rule that a single claim ought not to be split up into different causes of action?
In a recent Harris County case a majority of the appellate panel agrees with the plaintiff that her claims for breach of fiduciary duties are separate and independent from her legal malpractice claims, and that they were (unlike the negligence claim) timely filed. One Justice, however, wrote separately in dissent, expressing the view that the plaintiff's suits was essentially a malpractice negligence suit (which was time-barred) and that the plaintiff should not be allowed to pursue a claim based on violation of fiduciary duties separately.
(Tex.App.- Houston [14th Dist.] June 24, 2008)(Fowler) (Justices split in appeal from legal malpractice suit) (legal malpractice, claim splitting, applicable statute of limitations, proper characterization of claim brought against lawyer by client, fractioning of claim into different legal causes of action)
Opinion by Justice Wanda Fowler
Panel membership: Justices Brock Yates, Fowler, and Guzman (dissenting)
Full appellate case style: Lenieta Wylene Trousdale v. Annette M. Henry, R. Christopher Bell and Bell & Henry, L.L.P.
Appeal from 129th District Court of Harris County
Trial Court Judge: Samuel Grant Dorfman
Disposition by panel majority: Affirmed in part, reversed & remanded in part.
M A J O R I T Y O P I N I O N (summary)
Lenieta Wylene Trousdale ("Trousdale") appeals from the trial court's order granting summary judgment in favor of appellees, Annette M. Henry, R. Christopher Bell, and Bell & Henry, L.L.P. In three issues, Trousdale contends the trial court erred in its grant of summary judgment and its dismissal of her claims with prejudice, because (1) certain of appellees' actions constitute a breach of fiduciary duty, to which a four-year statute of limitations applies; (2) the non-fracturing rule does not apply to the facts of this case, as claims for breach of fiduciary duty are not limited to instances of self-dealing by attorneys; and (3) the fraudulent concealment doctrine tolled the commencement of the two-year statute of limitations on her legal malpractice claims until August or September 2005, when appellees returned her file to her.
We conclude that the trial court erred in applying the two-year statute of limitations to Trousdale's breach of fiduciary duty claims. However, we also conclude that neither the discovery rule nor the fraudulent concealment doctrine tolled the running of the statute of limitations on Trousdale's legal malpractice claims until August or September 2005. As a result of these holdings, we reverse that portion of the trial court's order granting summary judgment on Trousdale's breach of fiduciary duty claims and affirm the summary judgment as to the legal malpractice claims.
Concurring and Dissenting Opinion by Justice Guzman (claim-splitting in attorney malpractice context; different legal causes of action with different statutes of limitations not viable as separate claims).
C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N (summary)
I concur in the majority's holding that Lenieta Trousdale's legal malpractice claim is time-barred; however, I respectfully dissent from the majority's conclusion that Trousdale's claim for breach of fiduciary duty is separate and independent from her legal malpractice claim. Applying the parties' arguments to the record before us, I would conclude that Trousdale's claim of legal malpractice encompasses her claim of breach of fiduciary duty. Although none of the considerations discussed below is individually dispositive, they collectively demonstrate that the gist of Trousdale's complaint is her contention that she lost her underlying claims through appellees' professional negligence. See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.- Houston [14th Dist.] 2002, no pet.).
Good lawyering (and bad) makes a difference
In this appeal brought by the Child Support Division of the Texas Attorny General's Office (aka OAG), the Fourteenth Court of Appeals holds the State to the rule that errors to be reviewed on appeal may not be presented for the first time in appellant's reply brief. One basis supporting the trial court's order excluding the OAG's evidence and granting summary judgment for appellee was not not addressed in the OAG's opening brief. The panel, in an opinion written by Justice Brock Yates, did not agree that such procedural error should be ignored in a family law case, pointing out that the rule has also been enforced in appeals from orders terminating parental rights.
In the Interest of KRS,
No. 14-07-00080-CV (Tex.App.- Houston [14th Dist.] June 24, 2008) (Yates) (paternity, nonpaternity, failure to present error in opening brief proves fatal to appeal, rule enforced)
Opinion by Justice Brock Yates
Panel members: Justices Brock Yates, Eva Guzman and Jeff Brown
Full case style: In the Interest of K.R.S., a child
Appeal from 306th District Court of Galveston County
Trial Court Judge: Janis Louise Yarbrough
Disposition: Trial courts' grant of summary judgment in favor of defendant in suit to establish parentage affirmed
EXCERPT FROM THE MEMO OPINION BY JUSTICE YATES
McGee filed a no evidence motion for summary judgment, arguing that the A.G. had no evidence that Brown and the child's mother did not live together or have sexual intercourse during the probable time of conception. The A.G. filed a response and attached as evidence several documents, including the trial court's findings on the earlier motion to dismiss. McGee objected and filed a motion to strike the response and all accompanying evidence on three grounds: they were untimely filed, the evidence was not authenticated, and the evidence contradicted the A.G.'s responses to requests for admission and thus could not be used as summary judgment proof.
The trial court granted McGee's motion to strike without specifying the grounds and then granted McGee's summary judgment motion. See Tex. R. Civ. P. 166a(i) (stating that trial court "must grant" a no evidence summary judgment motion unless the nonmovant produces sufficient summary judgment evidence); Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App.- Houston [14th Dist.] 2000, pet. denied) ("Summary judgment, however, must be granted under Rule 166a(i) if the party opposing the motion fails to bring forth competent summary judgment proof.").
In its initial appellate brief, the A.G. responds to two of McGee's bases for striking its summary judgment response and evidence, arguing they were timely filed and the evidence did not need to be authenticated. However, the A.G. did not attack McGee's other basis for moving to strike the response and evidence - that the evidence contradicted the A.G.'s admissions and therefore could not be used to defeat summary judgment. See Cherry v. N. Am. Lloyds of Tex., 770 S.W.2d 4, 6 (Tex. App.- Houston [14th Dist.] 1989, writ denied).
The A.G. did not argue that this ground was erroneous until its reply brief. McGee contends that this is too late and therefore, we must affirm the trial court's ruling on this unchallenged basis. We agree.An appellant must attack all independent bases that support a trial court's ruling. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 456 (Tex. App.- Houston [1st Dist.] 2007, no pet.).
If an appellant does not challenge an independent ground, we must accept the validity of the ground and affirm on that basis. See id.; see also Page v. Hulse, No. 14-06-00731-CV, 2007 WL 2127717, at *3 (Tex. App.- Houston [14th Dist.] July 26, 2007, pet. denied) (mem. op.) (affirming trial court's damages award because appellant failed to challenge independent basis for award).
The A.G.'s reply brief response to the admissions contradiction ground is too late. Issues not raised until a reply brief are waived. See Howell v. Tex. Workers' Comp. Comm'n, 143 S.W.3d 416, 439 (Tex. App.- Austin 2004, pets. denied); Zammaron v. Shinko Wire Co., 125 S.W.3d 132, 139 (Tex. App.- Houston [14th Dist.] 2003, pet. denied); see also Tex. R. App. P. 38.1(e).
The A.G. argues that the waiver rule does not apply here because its description of its first issue - that the trial court erred in striking its summary judgment response and evidence - is broad enough to cover its reply brief argument. However, the A.G.'s initial brief does not even mention the admissions contradiction ground, much less make any arguments regarding it. That the A.G. could have but did not make such an argument in its opening brief does not allow it do so for the first time in its reply brief. See López v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.- San Antonio 2003, pet. denied) ("A reply brief is not intended to allow an appellant to raise new issues.").
The A.G. argues that we should relax technical rules such as waiver in family cases because of the importance of the interests at stake. We disagree. We regularly apply procedural rules in family cases and have found waiver, even of constitutional arguments in parental rights termination cases. See In re G.V., No. 14-02-00604-CV, 2003 WL 21230176, at *1-2 (Tex. App.- Houston [14th Dist.] May 29, 2003, pet. denied) (mem. op.) (finding due process complaint waived in parental rights termination case because not raised in trial court); see also In re A.J.H., No. 14-03-01016-CV, 2004 WL 414093, at *6 (Tex. App.- Houston [14th Dist.] Mar. 2, 2004, no pet.) (mem. op.) (finding briefing waiver on sufficiency points in parental rights termination case). As the Texas Supreme Court has stated in a parental rights termination case in which it found multiple instances of waiver of constitutional arguments, "[A]dhering to our preservation rules isn't a mere technical nicety; the interests at stake are too important to relax rules that serve a critical purpose." In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003) (plurality op.).
The court went on to explain that preservation rules in family cases help preserve the legislature's intent that such cases be resolved expeditiously and with finality. See id. at 708, 711; see also In re Baby Boy R., 191 S.W.3d 916, 921-22 (Tex. App.- Dallas 2006, pet. denied) (citing L.M.I. in finding waiver of constitutional arguments in parental rights termination case).
We conclude that because the A.G. did not timely challenge an independent basis for the trial court's ruling striking its summary judgment evidence and response, we must affirm the ruling on that basis.
Thus, we overrule the A.G.'s first issue. This leaves the A.G. with no evidence to create a fact issue in response to McGee's no evidence summary judgment motion, and thus the trial court's order granting summary judgment was proper. See Tex. R. Civ. P. 166a(i); Dolcefino,19 S.W.3d at 917. Accordingly, we overrule the A.G.'s second issue.
We affirm the trial court's judgment./s/ Leslie B. Yates