Opinion
NO. 14-17-00272-CV
04-25-2017
IN RE STEVEN MCQUAIDE AND TONYA MCQUAIDE, Relators
ORIGINAL PROCEEDING WRIT OF MANDAMUS
55th District Court Harris County, Texas
Trial Court Cause No. 2015-53887
MEMORANDUM OPINION
The relators are Steven and Tonya McQuaide and the real party-in-interest is Remedy Roofing, Inc. (Remedy). Remedy sued relators for breach of a contract alleging that they failed to pay for roofing repair services.
On April 10, 2017, relators filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the presiding judge of the 55th District Court of Harris County, to vacate the part of the court's April 3, 2017 order that granted Remedy's motion to strike relators' request for a jury trial.
Because Remedy did not authenticate the contract under which relators allegedly waived their right to a jury trial, we conditionally grant the petition for writ of mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
On March 10, 2017, thirty days before trial, relators filed a written request for a jury trial and paid a jury fee.
Remedy filed a motion to strike relators' request for a jury trial, alleging that relators signed a contract that contains a waiver of the right to jury trial. Remedy attached to the motion a document that appears to be a contract between Remedy and relators with a jury waiver for disputes not submitted to binding arbitration. Remedy did not provide an affidavit or any other evidence authenticating this document as a contract that was executed by Remedy and relators.
MANDAMUS STANDARD
To obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The appellate court reviews the trial court's application of the law de novo. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To show an abuse of discretion, the relator must establish that the trial court could reasonably have reached only one decision. Id. A trial court's erroneous denial of the right to a jury trial is reviewable by mandamus. In re Prudential Ins. Co., 148 S.W.3d at 139.
ANALYSIS
Realtors assert that no evidence was offered or admitted at the hearing on the motion to strike the jury request, and Remedy does not deny this assertion. Relators argue the unauthenticated contract with the jury waiver attached to Remedy's motion is not competent evidence and that there is no evidence that relators executed it.
"Simply attaching a document to a pleading does not make the document admissible as evidence, dispense with proper foundational evidentiary requirements, or relieve a litigant of complying with other admissibility requirements." In Estate of Guerrero, 465 S.W.3d 693, 704 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc) (quoting Gruber v. CACV of Colorado, LLC, No. 05-07-00379-CV, 2008 WL 867459, at *2 (Tex. App.—Dallas Apr. 2, 2008, no pet.) (mem. op)); see also Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.—San Antonio 2004, no pet.). Generally, documents attached to pleadings are not evidence unless they are offered and admitted as evidence by the trial court. Guerinot v. Wetherell, No. 01-12-00194-CV, 2013 WL 2456741, at *5 (Tex. App.—Houston [1st Dist.] June 6, 2013, no pet) (mem. op.); Happy Jack Ranch, Inc. v. HH & L Dev., Inc., No. 03-12-00558-CV, 2015 WL 6832631, at *5 (Tex. App.—Austin Nov. 6, 2015, pet. denied) (mem. op.).
Remedy does not assert that the purported contract with the jury waiver was admitted into evidence or authenticated at the hearing, but argues that authentication was unnecessary for two reasons. First, Remedy argues that relators authenticated the purported contract in their counter-petition. The record does not support this assertion. The purported contract is not attached to the counter-petition and the counter-petition does not admit that relators executed a contract with a jury waiver.
Second, Remedy argues that relators have waived their complaint that the purported contract has not been authenticated because the record does not show that relators objected to the purported contract on this basis in the trial court. However, a complete absence of authentication is a defect of substance that is not waived by a party's failure to object, and may be raised for the first time on appeal. In Estate of Guerrero, 465 S.W.3d at 706-08 (majority opinion holding that a party may raise the complete lack of evidence authenticating an arbitration agreement for the first time on appeal).
According to Remedy, no reporter's record of the hearing was made, so relators cannot show what objections, if any, they made at the hearing. Relators did not file a written response to the motion to strike their request for a jury trial.
CONCLUSION
Because Remedy offered no evidence authenticating the purported contract with the jury waiver, the trial court clearly abused its discretion by granting the motion to strike realtors' request for a jury trial. We therefore conditionally grant the petition for writ of mandamus. We direct the trial court to vacate the part of its April 3, 2017 order that grants Remedy's motion to strike relators' request for a jury trial.
PER CURIAM Panel consists of Justices Boyce, Christopher, and Brown.