Michael Zellers v. City of McAllen, Texas ( 2010 )

NUMBER 13-09-00158-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL ZELLERS, ET AL., Appellants,
v.
CITY OF MCALLEN, TEXAS, Appellee.
On appeal from 332nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
This case involves a contract dispute between appellants, certain City of McAllen
police officers,1 and appellee, the City of McAllen, Texas (the City), over alleged non-
1
The appellants in this case are Michael Zellers, Efrain Alejandro, Juan Alvarez, Mario Ayala, Noe
Canales, Arturo S. Casas, Guadalupe Cavazos, Ricardo Cepeda, Juan H. Chavez, Arm ando Contreras,
Duane E. Cottrell, Jose V. Delgado, Santiago Galvan, Jose A. Garcia, Jose L. Garcia, Fernando Garza, Juan
payment of "stand-by" compensation. Appellants challenge the judgment rendered in favor
of the City after a jury trial. By two issues, appellants complain that the trial court should
have: (1) made a determination of whether a contract existed as a matter of law before
submitting the case to the jury; and (2) enforced an alleged settlement agreement between
the parties. We affirm.
I. BACKGROUND 2
On May 21, 2001, appellants sued the City for, among other things, breach of
express and implied contract and quantum meruit. In their petition, appellants alleged that,
through the City's 1983 Employee Manual and certain standard operating procedures
promulgated by the city manager, the City contracted with appellants to compensate them
for stand-by duty. "Stand[-]by duty," according to the petition, "mandates all employees,
including the Police Department Officers, to comply with any supervisor [directive] required
[sic] to 'report to work.' In that event[,] 'Stand[-]by pay' will be paid according to the policies
established" by the city manager. Appellants alleged that while they were on stand-by
duty, they "refrained from certain use of their time customarily adapted to personal and
family matters" and were "restricted and confined . . . to be immediately available to
respond to a call from any one of several police department supervisors." Appellants
stated in their petition that they performed these stand-by duties, as ordered by their
J. Garza, Ram iro Gonzalez, Arm ando Hernandez, Lorenzo Lara, Fransisco Lopez, Scott M. Luke, Alberto M.
Mata, Abel Mercado, Dwayne L. Miller, Joe M oroles, Ricardo Olvera, Fransisco Ortegon, Jose S. Palom o,
Gene Potter, Reynaldo Rodriguez, Rom an Rodriguez, Felipe Saenz Jr., Oscar Saldana, Carlos Jerry Salinas,
Ruben Suarez, Abelardo Tijerina Jr., Luis Trevino, Eduardo Vela, Javier Vela, Heriberto Vigil, Andres Zam ora,
Hum berto Zavala, and Robert Zepeda Jr.
2
Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.
2
supervisors, but have not been compensated for their time as purportedly agreed to by the
City in its policies and procedures.
The City answered, and discovery and motion practice ensued for approximately
seven years.3 In their brief, appellants allege that the parties entered mediation in August
2008, and that a settlement agreement was reached. Our review of the record reveals a
letter from the City's attorneys to appellants' attorney related to the alleged settlement. The
letter is signed by the attorneys for both parties and provides:
Dear [appellants' attorney]:
This is to confirm that you and your clients have agreed to settle all claims
in the above referenced cause of action for $788,961.49. This amount
includes all court costs, expenses, disbursements and attorneys['] fees and
all other damages whether compensatory or otherwise.
In exchange for payment of this sum your clients will execute all release and
settlement documents prepared by the City and dismiss their claims against
the City of McAllen with prejudice. You and your clients understand that this
is a recommendation for settlement and cannot be finalized until approved
by the McAllen City Commission. If this settlement is approved it will be
funded on or before October 15, 2008.
This amount represents all monies that will be recommended to be paid in
settlement. There will be no deductions or contributions for any obligations
related to wages. Your clients will be required to indemnify the City for any
claims and/or liabilities for any obligations or contributions. In exchange the
City will dismiss its counterclaims against you [sic] clients.
This letter represents a valid and enforceable Rule 11 agreement pursuant
to the T.R.C.P.
(Footnote omitted.)
3
The C ity filed m otions for sum m ary judgm ent in April and August 2005, which were denied by the
trial court. In August 2006, the City filed a plea to the jurisdiction, which was also denied by the trial court; the
City's interlocutory appeal of that denial was dism issed by this Court on March 1, 2007. See City of McAllen
v. Zellers, 216 S.W .3d 913, 917 (Tex. App.–Corpus Christi 2007, pet. denied).
3
Appellants filed a motion to enforce the alleged settlement agreement on September
12, 2008. The trial court did not rule on the motion, and the parties proceeded to trial on
the merits on October 21, 2008. After the close of evidence, the jury was asked the
following two questions, with accompanying instructions, regarding liability:
Question No. 1 (Existence of contract)
Did the City of McAllen have a contract with its police officers and employees
that agreed to pay for stand[-]by duty?
"Contract" means a written contract stating the essential terms of the
agreement for providing goods and services to the City that was properly
executed on behalf of the City.
A contract is formed when there is 1) an offer and 2) an acceptance, 3) a
meeting of the minds, 4) each party's consent to the terms, and 5) execution
and delivery of the contract.
1) An offer is a statement of the work requested and the payment offered for
that work.
2) Acceptance may be shown if a person performs under the terms of the
contract, such as accepting employment.
3) A meeting of the minds is based on what the parties said and did, and not
on their after[-]the[-]fact statements.
4) A contract does not have to be signed to show consent. A party may
show consent by its actions such as performing the services called for in the
contract, or accepting the services that were the subject of the contract.
5) A contract may be composed of more than one writing.
6) The continued performance of the employees shows their acceptance of
any terms applicable to them expressed in the handbooks.
....
Question No. 2:
Did the City withhold payment for services that 1) were actually provided and
that 2) should have been paid for?
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The jury answered "No" to both questions as to all of the appellants and returned a verdict
in favor of the City. This appeal followed.
II. DETERMINATION OF CONTRACT
By their first issue, appellants contend that the "trial court is required to make a
determination as a matter of law on the question of the existence of a contract." We
acknowledge that this contention is a correct statement of the law in some circumstances
because it is often true that a trial court must make determinations on certain questions
surrounding contracts. See, e.g., In re D. Wilson Const. Co., 196 S.W.3d 774, 781 (Tex.
2006) (holding that whether a contract is ambiguous is a question of law that the trial court
must determine); Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787
(Tex. App.–Dallas 2005, no pet.) (holding that "[u]nder Texas law, if there is no ambiguity
in a written contract, 'its construction and meaning become a question of law for the court
to determine'"). However, it is also true that certain questions of contract formation depend
on factual findings that are appropriate for a jury's determination. See Columbia Gas
Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996) (holding that
the parties' intent in an ambiguous contract is a fact question for the jury); United Concrete
Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968) (affirming a jury's finding
that performance of a promised act constitutes valid acceptance); Hirschfeld Steel Co., Inc.
v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 287-88 (Tex. App.–Houston [14th Dist.]
2006, no pet.) (requiring that, where there is a dispute over the existence of a contract, the
jury be questioned and instructed on the issue); see, e.g., COMM . ON PATTERN JURY
CHARGES , STATE BAR OF TEX ., TEXAS PATTERN JURY CHARGES—BUSINESS, CONSUMER ,
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INSURANCE, EMPLOYMENT PJC 101.1, 101.8, 101.11 (2008) (outlining the pattern jury charge
and instructions regarding, respectively, contract existence when the existence of a
contract is a disputed issue; jury's interpretation of an ambiguous contractual provision;
and offer and acceptance, including a specific instruction on acceptance-by-performance).
Here, appellants appear to posit by their first issue that trial courts are required to
determine all aspects of the existence, construction, and meaning of contracts before
submitting the case to the jury. We disagree with this general and broad supposition. Our
review of the record indicates that a question existed as to whether appellants' accepted
the purported contract between appellants and the City by continued employment and
performance of their duties and that the parties disputed, in general, the existence of the
alleged contract. The trial court in this case was thus permitted to submit a question to the
jury regarding general contract existence and formation through acceptance-by-
performance, and we find no error in the court's decision to do so. See United Concrete
Pipe Corp., 430 S.W.2d at 364; Hirschfeld Steel Co., Inc., 201 S.W.3d at 287-88; see also
COMM . ON PATTERN JURY CHARGES, supra, PJC 101.1, 101.11.
Moreover, we disagree with appellants' apparent suggestion that the trial court failed
to make any determination regarding the contract at issue in this case. To the contrary,
by submitting to the jury a question regarding the formation of the contract between
appellants and the City, the trial court determined that fact issues existed necessitating the
jury's consideration and answer. See Hirschfeld Steel Co., Inc., 201 S.W.3d at 287-88.
Based on the foregoing, appellants' first issue is overruled.
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III. SETTLEMENT AGREEMENT
In their second issue, appellants complain of the trial court's failure to enforce an
alleged settlement agreement between the parties. Appellants allege that they reached
an agreement with the City to settle the case after several days of mediation in August
2008, but that the City then reneged on the agreement. Appellants filed a motion with the
trial court to enforce the settlement agreement on September 12, 2008. On appeal,
appellants allege that the letter sent by the City's attorney to appellants' attorney is a valid
rule 11 agreement, which they now seek to enforce. However, we have reviewed the
record before us and find no ruling by the trial court on appellants' motion to enforce and
no objection by appellants to the trial court's apparent failure to rule. See TEX . R. APP. P.
33.1(a); Estate of Veale v. Teldyne Indus., Inc., 899 S.W.2d 239, 242, 244 (Tex.
App.–Houston [14th Dist.] 1995, writ denied) (holding that "the burden is on the
complaining party to present a sufficient record to the appellate court to show error
requiring reversal" and that, to complain on appeal of the trial court's failure to take a
requested action, the record must reflect the complaint and the trial court's failure to grant
it) (citations omitted). Because appellants neither obtained a ruling on their motion nor
objected to the trial court's refusal, if any, to rule, they have failed to preserve for our review
any issue regarding the alleged settlement agreement. See TEX . R. APP. P. 33.1(a);
Kaufman v. Comm'n for Lawyer Discipline, 197 S.W.3d 867, 874 (Tex. App.–Corpus Christi
2006, pet. denied) (holding that the appellant's failure to obtain a ruling from the trial court
on the complained-of issue precluded appellate review). Appellants' second issue is
therefore overruled.
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IV. CONCLUSION
The judgment of the trial court is affirmed.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
20th day of May, 2010.
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