Antonio Arriaga and Inez Lara Rosales v. Obdulia Martinez Arriaga, Antonio Martinez Arriaga Jr., and Reyna Luisa Martinez Arriaga ( 2018 )

NUMBER 13-16-00610-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ANTONIO ARRIAGA AND
INEZ LARA ROSALES, Appellants,
v.
OBDULIA MARTINEZ
ARRIAGA, ANTONIO
MARTINEZ ARRIAGA JR.,
AND REYNA LUISA
MARTINEZ ARRIAGA, Appellees.
On appeal from the 197th District Court
of Willacy County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Chief Justice Valdez
Appellants Antonio Arriaga (Antonio) and Inez Lara Rosales (Inez) appeal from an
order dismissing their lawsuit against appellees Obdulia Martinez Arriaga, Antonio
Martinez Arriaga Jr., and Reyna Luisa Martinez Arriaga with prejudice. We affirm.
I. BACKGROUND
On or about April 21, 2016, Antonio and Inez filed a first amended original petition
against appellees. 1 According to the first amended petition, appellants are husband and
wife and appellees are Antonio’s children. Appellants alleged, inter alia, that appellees
broke into a building owned by Antonio, which Antonio utilized for his personal and
business use, and evicted him from the property. Appellants contended that appellees
took possession of the property’s contents, including furniture, tools, equipment, and
vehicles, and sold them without Antonio’s permission. Appellants also alleged that Antonio
had purchased eleven different pieces of real estate during his marriage to Inez or
acquired the properties by adverse possession during that time, and appellees evicted
appellants from the properties and took “constructive possession” of those properties.
Appellants pleaded numerous causes of action against appellees, including:
malice, assault, battery, constructive and wrongful eviction, conversion, breach of fiduciary
duty, statutory fraud under the Texas Business and Commerce Code, common law fraud,
negligence, gross negligence, “illegal use of governmental officials,” falsifying
governmental documents, duress, unjust enrichment, violation of property rights, due
process violations, defamation and defamation per se, nuisance, negligent trespassing,
private nuisance, and tortious interference with contractual relationships and prospective
1 This case arises from trial court cause number 2015-CV-0316-A in the 197th District Court of
Willacy County. Antonio originally filed suit against appellees and Inez appeared as a plaintiff in the suit in
the first amended original petition. The parties referred to Inez as an intervenor. This appeal also discusses
a related case between the same parties filed in trial court cause number 2014-CV-0100-A.
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contractual relationships. Appellants sought actual damages, exemplary damages, and
title to the properties by adverse possession. We note that our opinion issued in a related
case contains additional factual details regarding the allegations made here. See Arriaga
v. Arriaga, No. 13-15-00038-CV, 2015 WL 5626189, at *3 (Tex. App.—Corpus Christi Aug.
27, 2015, no pet.) (mem. op.). Suffice it to say here that we dismissed appellants’ appeal
from trial court cause number 2014-CV-0100-A for want of appellate jurisdiction because
the order dismissing appellants’ claims did not dispose of appellees’ counterclaim for
defamation. Id. Furthermore, there is no indication that the trial court ever revisited its
order dismissing appellants’ claims in the 2014 cause number.
The record before the Court in this case is sparse; however, it indicates that on
August 24, 2016, the trial court held a hearing on a motion for costs filed by the appellees
in trial court cause number trial court cause number 2015-CV-0316-A. 2 Antonio appeared
at the hearing pro se, and Inez and appellees both appeared through counsel. Counsel
for Inez informed the trial court that he was “making an oral appearance on behalf only of
the intervenor, Inez Arriaga,” and he would “follow that up with a written motion.” After the
case was called, the following colloquy took place:
[APPELLEES’ COUNSEL]: Your Honor, I have a motion for costs
today, but my understanding from [Inez’s
counsel] is that Mr. Arriaga has prepared
to announce to the Court that he is
dismissing any claim he has in that case,
and I don’t know the extent of that
dismissal, but I would like for Mr. Arriaga
to let the Court know about that.
[INEZ’S COUNSEL]: Just real quick. Mr. Arriaga, you had
something you wanted to tell the Court
about your claim in this case?
2 The motion for costs does not appear in the record.
3
MR. ARRIAGA: (Speaking Spanish)
[INEZ’S COUNSEL]: Is there an interpreter? I can do it.
THE COURT: Yes.
MR. ARRIAGA: Yes, Judge, I am no longer interested in
pursuing this case. I have lost
everything, almost all the way up to my
shirt of this case.
[APPELLEES’ COUNSEL]: I’ll submit an order of dismissal as to Mr.
Arriaga for the Court, that way the Court
can enter it in writing.
[INEZ’S COUNSEL]: It’s my understanding there was also a
claim that had been filed by [appellees]
for costs, but that he was going to remove
that claim for costs upon Mr. Arriaga’s
announcement of his dismissal.
[APPELLEES’ COUNSEL]: It appears to me that once [Inez’s
counsel] gets—wades into this case, it
will probably go away, but he needs to—
professionally I don’t blame him for
wanting to satisfy his curiosity.
THE COURT: And I’m going to reset both cases for
October 19th.
[INEZ’S COUNSEL]: Very good, Your Honor.
THE COURT: They will be taken care of at the same
time, and then by that time you will get all
of the information—
[APPELLEES’ COUNSEL]: I’ll give him everything he needs, Your
Honor.
THE COURT: Okay. And if you would submit that order
as to this case, that his part is being
dismissed—
[APPELLEES’ COUNSEL]: The 2015 case.
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THE COURT: —and motion for court costs is being
dismissed as well.
[APPELLEES’ COUNSEL]: Yes, Your Honor.
THE COURT: The 316 case.
[APPELLEES’ COUNSEL]: Yes.
[INEZ’S COUNSEL]: Your Honor, I have nothing further, may I
be excused?
THE COURT: Yes.
[APPELLEES’ COUNSEL]: Likewise, may I be excused, Your
Honor?
THE COURT: Yes.
(Proceedings concluded)
On August 25, 2016, the trial court signed an “Order of Dismissal With Prejudice.”
This order stated that Antonio “announced in open court that he is dismissing his causes
of action” against appellees “with prejudice.” The order dismissed Antonio’s causes of
action against appellees with prejudice and assessed the costs “against the party incurring
same, for the collection of which execution may issue.”
On September 16, 2016, Antonio filed a verified “Motion to Set Aside Order of
Dismissal with Prejudice.” Antonio asserted that “the court misunderstood, or the question
was not posed properly” at the hearing on August 24, 2016, when “the court asked if
Plaintiff was dismissing certain causes of action.” Antonio asserted that he “dismissed the
prior lawsuit and decided not to pursue the declaratory judgments act route.” He stated
that he was “still keeping his causes of action viable” regarding trespass to try title and the
wrongful taking of “personalty,” or personal property. Antonio requested that the court
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grant an evidentiary hearing on his motion, if necessary, and requested the court to set
aside the dismissal.
On October 19, 2016, the trial court held a status hearing on the case. Counsel for
appellees appeared, as did both Antonio and Inez. Counsel for Inez did not appear.
Counsel for appellees clarified that the parties were present on both the underlying case
and cause number 2014-CV-0100-A. Counsel for appellees stated that he had filed a
proposed order dismissing or withdrawing any claims that Antonio had in either case, and
that the trial court had signed that order. Counsel informed the trial court that he had
submitted a Rule 11 letter to counsel for Inez to confirm that the case had settled, and her
counsel had signed that letter agreement. See TEX. R. CIV. P. 11. The trial court confirmed
that the signed agreement had been filed. See id. The Rule 11 agreement references
both cause number 2014-CV-0100-A and the underlying case and is addressed to Inez’s
counsel. The letter states:
This letter confirms our agreement regarding the hearing on the status
hearing scheduled for October 19, 2016 at 9:00 a.m. in Cause No. 2015-
CV-0316-A. The parties are in agreement that no further action is needed
in either one of these cases.
The parties are in agreement that both cases are closed and disposed.
If this is our agreement, please sign where indicated below and return to my
office so we may file same with the court.
The letter is signed by counsel for appellees and counsel for Inez.
At the hearing, counsel for appellees informed the trial court that he did not believe
that “anything further needs to be done on either one of these cases” and he thought that
“they are over.” Counsel told the trial court that it had already dismissed the 2014 case,
and on appeal, this Court had determined that the appeal was interlocutory because of a
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pending counterclaim. See Arriaga, 2015 WL 5626189, at *1–3. Counsel stated that after
this Court remanded the case, appellees dismissed their counterclaim and it was his
“opinion that that case was disposed.”
Counsel for appellees further stated that Inez was not pursuing any claims in the
2015 case. According to appellees’ counsel, “[Inez’s counsel] seems to—seems to believe
that there is nothing to pursue in the 2015 case on behalf of Mrs. Arriaga.” He further
stated that “I don’t know, and I don’t want to know what his communications have been
with her, but that was what he indicated to me.” He informed the court that “that’s where
we stand with this case. I think all of these matters are over.”
Antonio then informed the trial court that he wished to speak, and both he and Inez
spoke to the trial court through the court’s interpreter. Antonio stated, inter alia, that “I
want what belongs to me,” and that he “expect[s] justice” for Inez. Inez testified that “all
we ask for” is “justice.” The trial court informed Antonio and Inez that “these two cases
have already been dismissed” and that if they wanted to pursue their causes, they “need
to go get an attorney” and “file another action.” Antonio again asked for “the opportunity
to defend ourselves,” and the trial court advised him to consult with an attorney.
This appeal ensued. Appellants attack the trial court’s order of dismissal by five
issues: (1) the trial court abused its discretion when it denied Antonio’s motion to set aside
the order of dismissal; (2) the trial court erred in accepting the Rule 11 agreement of
October 19, 2016 to which neither one of the appellants had agreed; (3) the trial court
erred in allowing the opposing counsel to speak on behalf of Inez’s counsel when that
attorney was not present and opposing counsel’s statements “were nothing more than
hearsay and innuendoes,” thereby “denying appellants their day in court”; (4) the court
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erred in the manner in which it applied the law pertaining to trespass to try title; and (5) the
trial court erred in not applying the laws of the State of Texas on matters of “gift.”
II. ANALYSIS
We address Antonio and Inez’s first two issues in this combined analysis. In their
first issue, appellants contend that the trial court abused its discretion by denying Antonio’s
motion to set aside the order of dismissal with prejudice. They contend that Antonio did
not intend to dismiss his case and the counsel’s question to him was not posed properly
or the trial court misunderstood Antonio’s response to the question. Appellant contends
that he dismissed the prior lawsuit, not the current lawsuit, and the trial court did not grant
an evidentiary hearing in which he could correct this alleged mistake regarding the present
case. In contrast, appellees argue that the trial court did not err by entering the order of
dismissal because Antonio’s oral announcement was unequivocal and binding.
According, to appellees, “[t]here can be only one interpretation of [Antonio’s] statement—
that he intended to dismiss his claims with prejudice.”
In their second issue, appellants argue that the trial court abused its discretion by
“accepting” the Rule 11 agreement of October 19, 2016 because neither of the appellants
had agreed thereto. Appellees counter that Inez’s attorney’s signature on the Rule 11
agreement had the effect of a final judgment or order and Inez can no longer withdraw her
agreement.
We address issues regarding Antonio and Inez’s claims separately.
A. Antonio
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Appellees contend that Antonio intended to dismiss his claims with prejudice, and
Antonio asserts otherwise. 3 “A party who abandons any part of his claim or defense, as
contained in the pleadings, may have that fact entered of record, so as to show that the
matters therein were not tried.” TEX. R. CIV. P. 165. Whether a pleading has been
abandoned is a question of law which we review de novo. In re J.M., 352 S.W.3d 824,
826 (Tex. App.—San Antonio 2011, no pet.); In re C.C.J., 244 S.W.3d 911, 920–21 (Tex.
App.—Dallas 2008, no pet.); In re Shaw, 966 S.W.2d 174, 177 (Tex. App.—El Paso 1998,
no pet.). Formal amendment of the pleadings is not required to show abandonment and
a stipulation may form the basis for abandonment. In re J.M., 352 S.W.3d at 826; In re
C.C.J., 244 S.W.3d at 921. “A stipulation is an agreement, admission, or concession made
in a judicial proceeding by the parties or their attorneys respecting some matter incident
thereto.” Laredo Med. Grp. v. Jaimes, 227 S.W.3d 170, 174 (Tex. App.—San Antonio
2007, pet. denied) (citing Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998)); see In re
J.M., 352 S.W.3d at 826. In construing a stipulation, a court must determine the intent of
the parties from the language used in the entire agreement, examining the surrounding
circumstances, including the state of the pleadings, the allegations made therein, and the
attitude of the parties with respect to the issue. See In re J.M., 352 S.W.3d at 826; Laredo
Med. Grp., 227 S.W.3d at 174.
3 Appellees do not argue or present authority that Antonio verbally nonsuited his claims. Under
Texas Rule of Civil Procedure 162, “[a]t any time before the plaintiff has introduced all of his evidence other
than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the
minutes.” TEX. R. CIV. P. 162. To take a nonsuit, a plaintiff can either file a written motion to dismiss or make
an “oral motion” in open court. Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d
98, 100 (Tex. 2006). A plaintiff’s right to a nonsuit exists from the moment a written motion is filed, or an
oral motion is made in open court, unless the defendant has, prior to that time, filed pleadings seeking
affirmative relief. Id.; In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding); Progressive Ins. Cos.
v. Hartman, 788 S.W.2d 424, 426 (Tex. App.—Dallas 1990, no writ). The trial court generally has no
discretion to refuse to dismiss the suit, and its order doing so is ministerial. Blackmon, 195 S.W.3d at 100.
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Where a stipulation limits the issues to be tried, those issues are excluded from
consideration; however, if a stipulation is ambiguous or unclear, it should be disregarded
by the trial court. In re C.C.J., 244 S.W.3d at 921; Laredo Med. Grp., 227 S.W.3d at 174.
A stipulation should not be given greater effect than the parties intended and should not
be construed as an admission of a fact intended to be controverted. See In re J.M., 352
S.W.3d at 826; In re C.C.J., 244 S.W.3d at 921; Laredo Med. Grp., 227 S.W.3d at 174;
see also Austin v. Austin, 603 S.W.2d 204, 207 (Tex. 1980).
In determining this issue, we determine Antonio’s intent from the language used,
examining the surrounding circumstances, including the state of the pleadings, the
allegations made, and the attitude of the parties with respect to the issue. See In re J.M.,
352 S.W.3d at 826; Laredo Med. Grp., 227 S.W.3d at 174. Here, the case was called on
appellees’ motion for costs filed in trial court cause number 2015-CV-0316-A. The 2014
cause was never discussed prior to Antonio’s statement that: “I am no longer interested
in pursuing this case. I have lost everything, almost all the way up to my shirt of this case.”
In examining Antonio’s statement in the context of the case, we note that the record
indicates that counsel for appellees may have offered to withdraw their motion for costs if
Antonio were to nonsuit the case. When the statement by Antonio is read in context with
the remainder of the proceedings, we conclude that his statements comprised an
affirmative abandonment of his entire case as a matter of law. See In re C.C.J., 244
S.W.3d at 921. His statements were neither unclear nor ambiguous. See id.; Laredo Med.
Grp., 227 S.W.3d at 174. And, while Antonio’s motion to reinstate the case stated that
“the reality” was that he “dismissed the prior lawsuit,” but was “keeping his causes of action
viable” regarding trespass to try title and the “wrongful taking of personalty,” such an
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interpretation is wholly inconsistent with the testimony he provided at the hearing.
Accordingly, we conclude that the trial court did not abuse its discretion by denying
Antonio’s motion to set aside the order of dismissal with prejudice. We overrule appellants’
first issue.
B. Inez
In their second issue, appellants contend that the trial court erred in accepting the
Rule 11 agreement because they did not agree to it. In contrast, appellees contend that
Inez acknowledged that both cases were “closed and disposed” when her attorney
executed the letter agreement under Texas Rule of Civil Procedure 11. See TEX. R. CIV.
P. 11. They contend that there is “only one interpretation” of that phrase, and it “means
that the cases have been finalized and completed for purposes of appeal.” They assert
that the Rule 11 agreement has the same effect as a judgment or order of the court and
appellants cannot withdraw their consent and agreement to the judgment after entry.
Rule 11 provides that “no agreement between attorneys or parties touching any suit
pending will be enforced unless it be in writing, signed and filed with the papers as part of
the record, or unless it be made in open court and entered of record.” Id. The Rule 11
agreement at issue here falls within these parameters as an enforceable agreement
between Inez and appellees. See id. Further, if the accord is in writing, signed by the
parties or their attorneys, and filed of record, it does not matter whether a party no longer
agrees to it when the trial court is finally asked to enforce it. Padilla v. LaFrance, 907
S.W.2d 454, 461 (Tex. 1995); Coale v. Scott, 331 S.W.3d 829, 831–32 (Tex. App.—
Amarillo 2011, no pet.). This is so because the agreement becomes a contract when
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executed, not when the trial court attempts to enforce it. See Padilla, 907 S.W.2d at 461;
Coale, 331 S.W.3d at 831.
The Texas Supreme Court has generally treated Rule 11 agreements as separate
and distinct from agreed judgments entered on the agreements. See In re Vaishangi, Inc.,
442 S.W.3d 256, 259 (Tex. 2014) (orig. proceeding); see, e.g., Mantas v. Fifth Court of
Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (per curiam); Padilla, 907
S.W.2d at 462. However, nothing in the rules of procedure prohibits a Rule 11 agreement
from constituting an agreed judgment if the agreement meets the requirements for a final
judgment. In re Vaishangi, Inc., 442 S.W.3d at 259. Here, the agreement would be a final
judgment “if and only if either it actually disposes of all claims and parties then before the
court, regardless of its language, or it states with unmistakable clarity that it is a final
judgment as to all claims and all parties.” Id. (quoting Bison Bldg. Materials, Ltd. v.
Aldridge, 422 S.W.3d 582, 585 (Tex. 2012); Lehmann v. Har–Con Corp., 39 S.W.3d 191,
192–93 (Tex. 2001)); Able Cabling Servs., Inc. v. Aaron–Carter Elec., Inc., 16 S.W.3d 98,
100–01 (Tex. App.—Houston [1st Dist.] 2000, pet. denied). Further, rendition of judgment
requires a “present act” to “decide the issues.” In re Vaishangi, Inc., 442 S.W.3d at 259
(quoting S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857–58 (Tex. 1995) (per curiam));
see Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976). Therefore, when a trial court
approves a settlement, the settlement will not constitute an agreed judgment unless the
language used by the trial court clearly indicates the intent to render judgment at the time
the trial court expresses approval. In re Vaishangi, Inc., 442 S.W.3d at 259; S & A Rest.
Corp., 892 S.W.2d at 858.
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We determine as a matter of law whether the Rule 11 agreement at issue here
constitutes an agreed judgment, as contended by appellees. See In re Vaishangi, Inc.,
442 S.W.3d at 260; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
The Rule 11 agreement provides that the “parties are in agreement that no further action
is needed in either one of these cases” and “that both cases are closed and disposed.”
Here, the agreement appears to constitute a final judgment insofar as it disposes of all
Inez’s claims and clearly indicates that her cases are “disposed.” See In re Vaishangi,
Inc., 442 S.W.3d at 260. The agreement is signed by the two lawyers for appellees and
Inez but is not signed by the trial court and does not contain any decretal language as
typically seen in a judgment. See id.; In re Wilmington Tr., Nat’l Ass’n, 524 S.W.3d 790,
792 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); Envtl. Procedures, Inc. v.
Guidry, 282 S.W.3d 602, 620 n.21 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
However, the record includes statements by the trial court that indicate that the trial court
had an intent to render judgment when discussing the agreement. See In re Vaishangi,
Inc., 442 S.W.3d at 260; S & A Rest. Corp., 892 S.W.2d at 858. After discussing the
agreement, the trial court agreed with counsel that “all of these matters are over,” and
stated that the “cases have already been dismissed” and they “are disposed of.” We
construe these statements as an oral rendition of judgment. See S & A Rest. Corp., 892
S.W.2d at 857 (“Judgment is rendered when the trial court officially announces its decision
in open court or by written memorandum filed with the clerk.”). Accordingly, we overrule
appellants’ second issue contending that the trial court erred in accepting the Rule 11
agreement, and we conclude that the Rule 11 agreement constitutes a final judgment as
to Inez’s claims in this case.
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III. CONCLUSION
Based on the record and the arguments and authorities presented by the parties,
we determine that Antonio’s statements constituted an unequivocal and unambiguous
abandonment of his claims in this lawsuit and the Rule 11 agreement comprised an agreed
judgment regarding Inez’s claims. We need not address appellants’ remaining issues
because they are not dispositive. See TEX. R. APP. P. 47.1. We affirm the judgment of the
trial court.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Dissenting and Concurring
Memorandum Opinion
by Justice Contreras.
Delivered and filed the
30th day of November, 2018.
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