Cindy Pena v. Michael A. Smith ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-356-CV
CINDY PENA APPELLANT
V.
MICHAEL A. SMITH APPELLEE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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OPINION
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I. INTRODUCTION
In three issues, Appellant Cindy Pena appeals the trial court‘s orders
summarily enforcing a disputed mediated settlement agreement between her and
Appellee Michael A. Smith. We will reverse and remand.
II. BACKGROUND
On or about August 14, 2008, Smith and Pena entered into an
―Unimproved Property Contract‖ in which Pena agreed to sell to Smith a three-
acre tract of land near Boyd. According to Smith, he signed closing documents
and delivered checks to the title company for earnest money and for the balance
due under the property contract, but Pena refused to sign the deed and the
closing documents because the deed did not contain a reservation of mineral
rights in her favor.1
Smith sued Pena for breach of the property contract. The trial court
ordered Smith and Pena to attend mediation, where they executed an ―Agreed
Mediated Settlement Agreement.‖ Pursuant to the settlement agreement, Smith
and Pena agreed, among other things, that Smith ―will get the surface rights to
land and all other rights, if any‖ and that Pena ―will be allowed to retain her
mineral interests in the property‖ and ―will & must execute all closing documents
w/ Western Title Company on or before June, 1, 2009.‖ Pena also agreed to
―appoint[] Hunter Magee [Pena‘s attorney] limited power of attorney to execute all
documents necessary to close the sale of the property as of June 2, 2009, if for
any reason [Pena] cannot or will not execute some or all documents needed to
close the sale of the property.‖
1
In an affidavit attached to her response to Smith‘s motion for summary
judgment, Pena stated,
A woman at the title company gave me the contract for the sale of
the three acre tract and after I signed it, the same woman then gave
me a separate document which indicated that I was also selling to
Mr. Smith the mineral rights/interests in the three acre tract. This
was the first time I had ever seen this document concerning the sale
of my mineral rights/interests and I refused to sign it and told the title
company woman that it was never my intention to sell the mineral
rights/interest to Mr. Smith and that I would not do so.
2
In June 2009, Smith filed a ―Motion to Sign Final Order.‖ He contended
therein that he and Pena had attended mediation, which resulted in the
settlement agreement, but that Pena had not executed any documents
necessary to facilitate the sale and closing of the three-acre tract of land and,
indeed, had taken efforts to revoke Magee‘s limited power of attorney to execute
the necessary documents. Smith prayed that the trial court enter the proposed
final order that he attached to the motion.
After Smith filed his motion asking the trial court to sign a final order
enforcing the settlement agreement, Pena filed a ―Defendant‘s Motion to Abate
and/or to Set Aside Settlement Agreement,‖ requesting, among other things, that
the trial court set aside the settlement agreement. One day later, Smith filed a
―Supplemental Motion to Sign Final Order and Motion for Enforcement.‖ Smith
argued that ―[p]ursuant to CPRC 154.071 a written settlement agreement is
enforceable and the court may incorporate the terms of the agreement in the
court‘s final decree disposing of the case.‖ Smith also described Pena‘s actions
in attempting to set aside the settlement agreement as a ―unilateral revocation‖
and prayed that the trial court sign the proposed order previously provided to it.
After a hearing, the trial court signed a final order that adopted the
settlement agreement ―as the Order of [the] Court‖ and ordered Magee ―to
immediately execute any and all documents in the name of Cindy Pena as her
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agent to facilitate the close of the sale of the property that remain un-executed.‖ 2
Thereafter, Pena timely filed a motion for new trial, which was overruled by
operation of law, and the trial court modified its final order, incorporating the
mediated settlement agreement into the order and ordering that Pena and
Brandy Tanner Watson, Pena‘s daughter, be divested of any and all ownership in
the three-acre tract and that all right, title, and interest in the tract be held in fee
simple by Smith. Pena filed her notice of this appeal.
III. MOTION TO DISMISS
Smith filed a motion to dismiss Pena‘s appeal, arguing that Pena filed her
notice of appeal untimely because she lacked capacity to file her motion for new
trial. Smith failed to file a verified pleading in the trial court challenging Pena‘s
capacity. Accordingly, we deny Smith‘s motion to dismiss Pena‘s appeal. See
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (―Unlike
standing, . . . which may be raised at any time, a challenge to a party‘s capacity
must be raised by a verified pleading in the trial court.‖); Rodarte v. Investeco
Group, L.L.C., 299 S.W.3d 400, 407 n.3 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (reasoning that objections concerning capacity may be waived); see also
Tex. R. Civ. P. 93.
IV. PLEADINGS AND PROOF
In her first and third issues, Pena argues that the trial court erred by
rendering a judgment that summarily enforced the disputed settlement
2
No findings of fact and conclusions of law were filed.
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agreement. She contends that the judgment is supported by neither proper
pleadings nor legally sufficient evidence that she breached the settlement
agreement.
A trial court cannot render an agreed judgment after a party has withdrawn
its consent to a settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454,
461 (Tex. 1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d. 442, 444 (Tex.
1983). After consent has been withdrawn, a court may enforce a settlement
agreement ―only as a written contract.‖ Mantas v. Fifth Court of Appeals, 925
S.W.2d 656, 658 (Tex. 1996); see Tex. Civ. Prac. & Rem. Code § 154.071(a)
(Vernon 2005) (providing that a settlement agreement is enforceable ―in the
same manner as any other contract‖). Thus, the party seeking enforcement must
pursue a separate breach of contract claim, which is subject to the normal rules
of pleading and proof. Mantas, 925 S.W.2d at 659; Padilla, 907 S.W.2d at 462.
―In short, if consent is withdrawn, ‗the only method available for enforcing a
settlement agreement is through summary judgment or trial.‘‖ Gunter v. Empire
Pipeline Corp., No. 05-08-00824-CV, 2009 WL 2196119, at *1 (Tex. App.—
Dallas July 24, 2009, pet. denied) (citing Staley v. Herblin, 188 S.W.3d 334, 336–
37 (Tex. App.—Dallas 2006, pet. denied)). The law does not recognize the
existence of any special summary proceeding for the enforcement of a written
settlement agreement, even one negotiated and executed in the context of a
mediation. Id. (citing Cadle Co. v. Castle, 913 S.W.2d 627, 630 (Tex. App.—
Dallas 1995, writ denied)); see Martin v. Black, 909 S.W.2d 192, 195 (Tex.
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App.—Houston [14th Dist.] 1995, writ denied) (―When the legislature enacted the
ADR statute [civil practice and remedies code section 154.071], it did not order
the courts to follow a special procedure applicable only to mediated settlement
agreements.‖).
Assuming without deciding that the allegations and arguments contained in
Smith‘s ―Motion to Sign Final Order‖ and ―Supplemental Motion to Sign Final
Order and Motion for Enforcement‖ were sufficient to give Pena fair notice of his
contract claim and, thus, satisfied pleading requirements,3 Smith failed to support
his action to enforce the settlement agreement with legally sufficient evidence.
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and
3
See Cadle Co., 913 S.W.2d at 630–31 (reasoning that a petition in a
contract claim must contain a short statement of the claim sufficient to give fair
notice of the claim involved, including an allegation of a contractual relationship
between the parties and the substance of the contract that supports the pleader‘s
right to recover); see also Bayway Servs., Inc. v. Ameri-Build Constr., L.C., 106
S.W.3d 156, 160 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that
appellee met its pleading requirement because it filed a motion to sign judgment
that alleged a contractual relationship with appellant and attached the settlement
agreement to the motion); Quanaim v. Frasco Rest. and Catering, No. 01-03-
01156-CV, 2005 WL 856911, at *3 (Tex. App.—Houston [1st Dist.] Apr. 14, 2005,
no pet.) (mem. op.) (same).
6
"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).
More than a scintilla of evidence exists when the evidence supporting the finding,
as a whole, rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,
499 (Tex. 1995). When there is no indication that evidence was admitted or
considered by the trial court prior to rendering judgment and the record on appeal
contains no statement of facts, we indulge no presumptions in favor of the
judgment. Otis Elevator v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993).
To prevail on a breach of contract claim, the plaintiff must plead and prove
(1) a contract existed between the parties; (2) the contract created duties; (3) the
defendant breached a material duty under the contract; and (4) the plaintiff
sustained damages. Cadle Co., 913 S.W.2d at 631.
At the hearing on his motions, Smith did not present any evidence in
support of his claim for breach of the settlement agreement. He merely
presented argument asking the trial court to sign the final order enforcing the
settlement agreement.
Smith argues that the trial court did not err by executing the final order
because Pena presented no evidence that the proposed order did not comply
with the terms of the settlement agreement and no evidence that she had
rescinded the settlement agreement. But Smith, not Pena, had the burden of
proof in support of the contract claim, and Pena sought to set aside the
settlement agreement.
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Because Smith failed to offer any evidence, we hold that the evidence is
legally insufficient to support the trial court‘s judgment. See Bayway Servs., 106
S.W.3d at 160–61 (holding that the evidence was legally insufficient to support
the trial court‘s judgment because appellee presented no evidence that appellant
breached settlement agreement); cf. Padilla, 907 S.W.2d at 462 (holding that
summary judgment evidence established an enforceable settlement agreement
as a matter of law); Quanaim, 2005 WL 856911, at *4 (holding that the evidence
was legally sufficient to support the trial court‘s judgment because appellee
presented evidence of breach of contract). We sustain Pena‘s first issue.
Having prevailed on a no-evidence issue, Pena would ordinarily be entitled
to the rendition of judgment in her favor. See Nat’l Life & Accident Ins. Co. v.
Blagg, 438 S.W.2d 905, 909 (Tex. 1969). However, the supreme court has held
that appellate courts have broad discretion to remand in the interest of justice.
Scott v. Liebman, 404 S.W.2d 288, 294 (Tex. 1966). As long as there is a
probability that a case has for any reason not been fully developed, an appellate
court has the discretion to remand rather than render a decision. Zion
Missionary Baptist Church v. Pearson, 695 S.W.2d 609, 613 (Tex. App.—Dallas
1985, writ ref‘d n.r.e.). Because of our conclusion of Pena‘s first issue, and in the
interest of justice, we will remand this case for further proceedings rather than
render a judgment. See Bayway Servs., 106 S.W.3d at 161 (remanding case
after sustaining legal sufficiency issue involving disputed mediated settlement
agreement).
8
Having sustained Pena‘s dispositive first issue, we need not address her
second issue complaining about the settlement agreement‘s failure to include a
legal description of the property. See Tex. R. App. P. 47.1.
V. CONCLUSION
We deny Smith‘s motion to dismiss, reverse the trial court‘s judgment, and
remand the cause to the trial court for further proceedings consistent with this
opinion.
BILL MEIER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: August 12, 2010
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