Opinion
No. 04-15-00005-CV
02-24-2016
IN THE ESTATE OF Jack Hiromi IKENAGA Sr.
MEMORANDUM OPINION
From the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2011-PC-4330
Honorable Polly Jackson Spencer, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED AS MODIFIED
Sandra A. Ikenaga appeals the trial court's final judgment rendered on a settlement agreement the parties reached in a probate proceeding relating to the will of Jack Ikenaga Sr., Sandra's late husband. In her first issue, Sandra argues the final judgment failed to strictly follow the settlement agreement's material terms. In her second issue, Sandra argues there is insufficient evidence to support the trial court's order requiring her to deliver two Lexus vehicles to appellee ACCC Holdings Company (AHC). Sandra's third issue challenges the trial court's rulings on objections to summary judgment evidence she produced in response to a motion for summary judgment. We modify the trial court's judgment and affirm the judgment as modified.
BACKGROUND
Sandra filed an application to be appointed the administratrix of Jack Sr.'s estate. Jack Ikenaga Jr. objected to the application, alleging Jack Sr.'s will had named him independent executor. Sandra thereafter filed an original petition alleging numerous causes of action against appellees Jack Jr. and AHC, a corporation Sandra alleged was owned primarily by the Ikenaga family. Appellees filed various motions for summary judgment, and the trial court sustained objections to evidence that Sandra produced in response.
The parties entered into a settlement agreement in open court. Sandra testified she agreed to the settlement agreement after it was read into the record. The trial court accepted the settlement agreement and orally rendered judgment on the agreement. The trial court heard a motion to enter judgment and, at the hearing, the parties disagreed about the form and substance of a written judgment. However, a proposed final judgment was submitted and signed by the trial court. Sandra now appeals.
WAIVER
In her first issue, Sandra argues the final judgment deviates from several material terms of the settlement agreement. Appellees respond that Sandra failed to preserve this complaint for appeal. They contend that, except as Sandra's complaint relates to the order requiring her to deliver two Lexus vehicles to AHC, she agreed during the hearing that the proposed final judgment tracked the terms of the settlement agreement.
To preserve error for appellate review, a party must make a timely, specific objection to the trial court. See TEX. R. APP. P. 33.1(a)(1)(A); Stephens & Johnson Operating Co. v. Schroeder, No. 04-14-00167-CV, 2015 WL 4760029, at *5 (Tex. App.—San Antonio Aug. 12, 2015, no pet.) (mem. op.). At the hearing on the motion to enter judgment, Sandra's trial counsel admitted the proposed judgment "does track the transcript [from the October 7, 2014 hearing] and the agreement of the parties. And so what's being presented . . . is the only document that I think accurately actually tracks that transcript." Her trial counsel further represented, "I will confirm . . . that the judgment that is being submitted by defendants does appear to track the court-recited agreement in every respect, with one minor exception that I wanted to bring to the Court's attention." The "one minor exception" was the order that Sandra deliver two Lexus vehicles to AHC. Sandra agreed in the trial court that the proposed judgment did not deviate from the material terms of the settlement agreement, except for the order relating to the two Lexus vehicles. Therefore, Sandra did not make a timely, specific objection in the trial court that preserved error except for a complaint regarding the order that she deliver two Lexus vehicles to AHC. See TEX. R. APP. P. 33.1(a)(1)(A); Stephens & Johnson Operating Co., 2015 WL 4760029, at *5.
THE TWO LEXUS VEHICLES
Sandra argues the final judgment's order regarding the two Lexus vehicles was not authorized by the settlement agreement and there was insufficient evidence that the Lexus vehicles belonged to AHC. Under Rule 11 of the Texas Rules of Civil Procedure, a trial court may render judgment on an agreement between the parties if the agreement is "made in open court and entered of record." TEX. R. CIV. P. 11; see Arriaga v. Cavazos, 880 S.W.2d 830, 833 (Tex. App.—San Antonio 1994, no writ) (per curiam) (affirming judgment rendered on agreement in open court despite party's withdrawal of consent after judgment was rendered). "Contract law governs settlement agreements made in open court pursuant to Rule 11." Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 744 (Tex. App.—Houston [1st Dist.] 2014, no pet.). "Contract terms are given their plain, ordinary, and generally accepted meanings, and contracts are to be construed as a whole in an effort to harmonize and give effect to all provisions of the contract." Fitzgerald v. Schroeder Ventures II, LLC, 345 S.W.3d 624, 629-30 (Tex. App.—San Antonio 2011, no pet.).
In her reply brief, Sandra argues that because AHC states in its brief that it owns the 2010 Lexus, the 2010 Lexus is not estate property and therefore the trial court lacked jurisdiction to order her to deliver the 2010 Lexus to AHC. Sandra cites no authority for this proposition, and statutory probate courts have jurisdiction not only over probate proceedings, but also "pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy," and concurrent jurisdiction with the district court in various other actions. See TEX. EST. CODE ANN. §§ 32.001, 32.007 (West 2014). --------
Under the settlement agreement, as it was made in open court, Sandra was to "receive cars and boats and trailers." A Lexus vehicle was not included among the cars, boats, and trailers that Sandra was to receive. The part of the agreement regarding a Lexus vehicle was as follows, "Sandra must return the title to [AHC]'s Lexus to the temporary administrator within 14 days of today's date." It was further clarified "that with respect to the Lexus, that the -- not just the title, but the actual car, the title, and the keys to the title will be -- keys to the car, thank you, will actually be returned to AHC or ACCC, since they own it as opposed to the estate." Sandra's trial counsel noted Sandra "doesn't have title to the Lexus, but she'll sign, if there's -- whatever documents are necessary to transfer title."
Sandra agreed in open court to transfer to AHC possession and, if applicable, title to "the Lexus." The plain, ordinary, and generally accepted meaning of "the Lexus" entails no more than a singular Lexus vehicle, and appellees do not argue otherwise. However, the final judgment orders Sandra "to deliver to AHC . . . the 2007 Lexus . . . and 2010 Lexus."
The parties agree that "the Lexus" mentioned in the agreement in open court is the 2007 Lexus. Sandra contends that in the absence of the settlement agreement regarding the 2010 Lexus, the trial court erred by ordering her to deliver the 2010 Lexus because the divestment of her rights to the 2010 Lexus was "not supported by evidence in the record." A court will sustain a no-evidence challenge, if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court 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 scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Appellees do not argue that they produced any evidence that AHC owned the 2010 Lexus. Although Sandra's trial counsel suggested he had been informed and had received "some documents that would cause [him] to believe" the 2010 Lexus belonged to AHC, Sandra did not agree or unequivocally admit the 2010 Lexus belonged to AHC.
Appellees argue Sandra did not own the 2010 Lexus and the settlement agreement did not permit Sandra to keep the 2010 Lexus. They also argue Sandra had no claims, pleadings, or evidence that would permit her to recover the 2010 Lexus. However, the party seeking affirmative relief has the burden to demonstrate its entitlement to that relief. See Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 482 (Tex. 1984). Because the trial court awarded AHC affirmative relief by ordering Sandra to deliver the 2010 Lexus to AHC, which was not part of the settlement agreement made in open court, AHC had the burden to demonstrate its entitlement to that relief. See id. The record demonstrates AHC failed to produce evidence of the vital fact that it owned the 2010 Lexus. See City of Keller, 168 S.W.3d at 810. Therefore, the trial court erred by ordering Sandra to return the 2010 Lexus to AHC.
RULING ON SUMMARY JUDGMENT EVIDENCE
In her third issue, Sandra argues the trial court erred by failing to consider her summary judgment evidence. "It is well-settled that a judgment entered on the agreement of the parties cures all non-jurisdictional defects." Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.—Houston [1st Dist.] 2003, no pet.). An erroneous evidentiary ruling on evidence produced in response to a motion for summary judgment is not a jurisdictional defect. Therefore, the trial court's rendition of judgment on the parties' agreement cured any erroneous evidentiary ruling. See id.
CONCLUSION
We modify the trial court's judgment by deleting the order that Sandra deliver the 2010 Lexus vehicle to AHC. We affirm the judgment as modified.
Luz Elena D. Chapa, Justice