Mary Gresilda Martinez v. Roberto Martinez

Martinez et al v. Martinez NO. 10-90-080-CV IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * *           MARY GRESILDA MARTINEZ, ET AL,                                                                                             Appellants           v.           ROBERTO MARTINEZ,                                                                                             Appellee * * * * * * * * * * * * * From 13th Judicial District Court Navarro County, Texas Trial Court # 380-89 * * * * * * * * * * * * * OPINION ON REHEARING * * * * * * *           The divorce decree described the property as "the parties' home and one acre of land." Extrinsic evidence could have shown that the parties owned only one home and one acre of land, which would have identified the property with reasonable certainty. See Kmiec v. Reagan, 556 S.W.2d 567, 569 (Tex. 1977). Without a statement of facts, we must presume that the property was identified with reasonable certainty by extrinsic evidence. See Guthrie v. National Homes Corporation, 394 S.W.2d 494, 495 (Tex. 1965). The motion for a rehearing is denied.                                                                        BOB L. THOMAS                                                                        Chief Justice Before Chief Justice Thomas,           Justice Cummings and Justice Vance Motion for rehearing denied Opinion delivered and filed April 4, 1991 Do not publish   text-align:center'>  From the 77th District Court Limestone County, Texas Trial Court No. 22179-A  MEMORANDUM Opinion             This appeal is the most recent chapter in litigation spanning more than two decades regarding title to a 927.822-acre[1] tract of land and the minerals therein. During the midst of a jury trial, the parties informed the court that they had settled their dispute. The settlement agreement was recited on the record, and the court orally rendered judgment in accordance with the agreement. The court signed a written judgment about three months later.            Appellants contend in three issues that: (1) the court erred by signing the written judgment after they withdrew their consent to the underlying settlement agreement; (2) the court failed to render a valid, enforceable judgment because the judgment does not contain a metes-and-bounds description of the property in dispute; and (3) the court abused its discretion by refusing to grant their supplemental motion for new trial.[2] We will modify the judgment and affirm it as modified. The Parties to the Litigation             There are essentially four groups of parties to this litigation. In this opinion, the parties will sometimes be referred to individually and sometimes in their respective groups. Unless otherwise indicated, the term “Appellants” refers to Plaintiff Gene C. Steele, Individually and as Independent Executor of the Estate of William B. Duke, Deceased, Plaintiff Sally Steele (Gene’s wife), and Third Party Defendant Tom F. Simmons.            “Defendants/Appellees” refers to Appellees Dorothy McDonald, Individually and as Independent Executrix of the Estate of John B. McDonald, Deceased, Bobby Reed, Joe Cannon, Cara H. Hughes, Eugene T. McLaughlin, Stanley F. Swenson, Jerry Calhoun, J. Christopher Kolstad, Bobby Freeman, and Brian L. Gibson. At some point during the litigation, John B. McDonald passed away.[3] His interests are currently represented by his wife Dorothy who is the independent executrix of the estate. Insofar as can be determined, no suggestion of death was ever filed, no scire facias was issued, and the plaintiffs’ pleadings were never amended to name Dorothy McDonald as the person representing the interests of John B. McDonald’s estate. See Tex. R. Civ. P. 152.            Dorothy has filed a motion to dismiss this appeal as to her because she is not named in the notice of appeal and was never served with a copy of the notice. Dorothy is not identified as a party in the notice of appeal, and it does not appear that she was served with a copy. The certificate of service in the notice of appeal recites only that a copy was served on “counsel for Defendants,” and the docketing statement, which was filed within a week after the notice of appeal, does not include Dorothy’s counsel as one of the attorneys of record.            Nevertheless, Dorothy’s counsel has since appeared on her behalf and has filed a brief on her behalf. It is also noteworthy that Appellants hired a new attorney shortly after trial and, given the state of the trial record regarding the death of John B. McDonald and the shear number of parties involved, it is somewhat understandable that Appellants’ counsel failed to include Dorothy’s attorney in the list of counsel of record. Therefore, because Dorothy’s counsel has had notice of and sufficient opportunity to participate in this appeal, we deny the dismissal motion premised on lack of notice. See Bernstein v. Portland Sav. & Loan Ass’n, 850 S.W.2d 694, 699-700 (Tex. App.—Corpus Christi 1993, writ denied).            The other parties are Intervenor/Appellee Floyd Duke, Jr. and Interpleader/ Appellee Devon Energy Operating Co. fka Mitchell Energy Corp. The Settlement Agreement            As read into the trial record, the settlement agreement provides in pertinent part: ·                   Defendants/Appellees agreed to accept a 60-percent interest in the minerals in the entire 927.822-acre tract for 20 years;  ·                   Appellants agreed to not make any further claims against the other parties to the litigation or any related litigation, including any successors or assigns;  ·                   Gene and Sally Steele would receive fee simple title to 150 acres out of the 927.822-acre tract which would include “the lake, the landing strip, the house [Gene] occupies, the 100 acres described in the instruments in evidence in this case, plus 50 additional acres contiguous thereto to be designated by [Intervenor/Appellee Duke[4]]”;  ·                   Duke would receive fee simple title to the remaining acreage;  ·                   For 20 years, the Steeles would own a 40-percent interest in the minerals in and under their 150 acres, and Duke would own a 40-percent interest in the minerals in and under his acreage;  ·                   After that 20-year period, the Steeles would own 100 percent of the minerals in and under their acreage, and Duke would own 100 percent of the minerals in and under his acreage;  ·                   no party would interfere with the lease or production of the minerals owned by another party;  ·                   funds held by Interpleader/Appellee Devon Energy Operating Co. would be deposited in the court’s registry then divided evenly between the Steeles and Duke;  ·                   Defendant/Appellees would “have the right and the authority to lease their minerals without the joinder of the remainder in [the Steeles] and Duke”;  ·                   the agreement would “foreclose with prejudice all pending suits relative to the lands and minerals and parties”;  ·                   Duke would be allowed ingress and egress to his parents’ burial sites which lie on the Steeles’ property;  ·                   all lis pendenses would be discharged and all pending cases dismissed with prejudice; and  ·                   each party waived the right to file a motion for new trial or appeal.  Each party stated on the record that these were the terms of the agreement, and the court orally rendered judgment in accordance with the agreement.            A question then arose about the necessity of a new survey. The court suggested that the cost for the survey be paid out of the funds to be deposited in the court’s registry by Devon Energy and that the remaining funds be distributed evenly between the Steeles and Duke in accordance with the parties’ agreement. The parties stated on the record that they agreed with this suggestion. The court rescheduled the matter to January 25 (two weeks) to allow time for the survey to be done. Post-Trial Proceedings            Duke’s counsel advised the court by letter dated January 20 that counsel had been unable to locate a surveyor who could complete the job before the hearing and asked for a 30-day postponement.            Defendants/Appellees drafted a proposed “Agreed Judgment” and filed a motion for entry of judgment. Duke likewise drafted a proposed “Final Judgment” and filed a motion for entry of judgment. In response to Defendants/Appellees’ proposed judgment, Appellants filed a pleading entitled “Objections and Motion to Withhold Entry of Agreed Judgment and Motion to Vacate Agreed Settlement.” In this pleading, Appellants asserted numerous “general” and “specific” objections to the settlement agreement and the proposed judgment.            Duke argued in a response that Appellants’ motion was “too late” and “without merit.” After a hearing on April 8, the court signed the judgment.            Appellants filed a motion for new trial within a week after the judgment was signed. They later filed a “Designation of 100 Acres Under Objection and Motion for Judgment Nunc Pro Tunc” in which they asserted most of the same objections previously made to the settlement agreement and the proposed judgment. They also objected that the judgment was “incomplete and not final” because it did not contain a legal description of the various tracts of property affected by the judgment. Finally, they argued that the judgment recitals were inconsistent with the settlement agreement which required that the 100-acre tract designed by the Steeles be that acreage “described in the instruments in evidence in this case” and including the lake, the landing strip, and the house. According to Appellants, the 100-acre tract described by the deeds in evidence does not include the house. Therefore, they asked the court to also include an additional 30.07-acre tract on which the house sits.            Duke designated a contiguous 50-acre tract as provided by the settlement agreement. The 50 acres designated by Duke is actually comprised of two tracts: (1) the 30.07-acre tract sought by Appellants; and (2) a 20-acre tract. Duke also responded to Appellants’ motion for judgment nunc pro tunc and urged that it be denied.            On June 21, Appellants filed a “Supplement Motion for New Trial” urging the court to set aside the judgment because of “fraud and aggravated perjury.” In this motion, Appellants argued that Duke’s claim to the disputed property was based on a forged deed. Appellants’ post-judgment motions were overruled by operation of law. See Tex. R. Civ. P. 329b(c). Withdrawal of Consent            Appellants contend in their first issue that the court erred by signing the written judgment after they withdrew their consent to the underlying settlement agreement.            A court cannot render a valid consent judgment unless all parties consent to the terms of the judgment at the time of rendition. Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam). “Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk.” S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam); Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 821 (Tex. App.—Fort Worth 2001, no pet.); accord Bazan v. Canales, 200 S.W.3d 844, 847 (Tex. App.—Corpus Christi 2006, no pet.). Thereafter, the trial court’s signing of the judgment is merely a ministerial act. While the date a trial court signs a judgment determines when a motion for new trial or notice of appeal must be filed, the date of signing does not affect or change the date of the rendition of the judgment. Further, once the trial court renders judgment based on the parties’ settlement agreement, the parties cannot revoke their consent to the agreement.  Alcantar, 47 S.W.3d at 821 (citing Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex. 1982) (per curiam); Patel v. Eagle Pass Pediatric Health Clinic, Inc., 985 S.W.2d 249, 252 (Tex. App.—Corpus Christi 1999, no pet.)) (other citations omitted); accord S & A Rest., 892 S.W.2d at 857 (“A party may revoke its consent to a settlement agreement at any time before judgment is rendered on the agreement.”); ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (same).            Here, the parties announced their agreement on the record in open court. After ensuring that every party agreed to the stated terms, the court pronounced, “At this time I render judgment in accordance with the terms of the settlement.”            Because the court orally rendered judgment immediately following the recitation of the parties’ settlement agreement on the record, Appellants could not thereafter revoke their consent. See id. Accordingly, we overrule Appellants’ first issue. Supplemental Motion for New Trial            Appellants contend in their third issue that the court abused its discretion by refusing to grant their supplemental motion for new trial. However, the supplemental motion was not filed until more than two months after the judgment was signed. Thus, the court had no authority to consider it. See Tex. R. Civ. P. 329b(b) (amended motion for new trial must be filed within 30 days after judgment); HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 867 (Tex. App.—Fort Worth 2005, no pet.). Accordingly, we overrule Appellants’ third issue.[5] Adequacy of Written Judgment            Appellants contend in their second issue that the judgment is void because it does not describe with sufficient certainty the various property interests adjudicated. “A judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated.” Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994); In re R.J.A.H., 101 S.W.3d 762, 763 (Tex. App.—Houston [1st Dist.] 2003, no pet.). When real property is involved, the property description in a judgment must provide the same certainty as the property description in a deed. Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, 849-50 (1946); Browning v. West, 557 S.W.2d 848, 851 (Tex. Civ. App. —Tyler 1977, writ ref’d n.r.e.). “[T]he description must be so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty.” Greer, 191 S.W.2d at 849; accord Long Trusts v. Griffin, 222 S.W.3d 412, 416 (Tex. 2006) (per curiam); Browning, 557 S.W.2d at 850. Here, the judgment fails to satisfy this test on several grounds. For example: ·                   the judgment awards Defendants/Appellees a 60% mineral interest for 20 years in “the [927.822] acre tract of land claimed by Floyd Duke, Sr. and Minnie Duke and William B. Duke and Betty Duke”;  ·                   the judgment awards the Steeles “fee simple title to one hundred fifty (150) acres of the [927.822] acre tract” 100 acres of which “shall be designated by the Plaintiffs and may include the home which Plaintiff Gene C. Steele occupies at this time, the lake, the landing strip, and the park” and the remaining 50 acres of which “shall be designated by Floyd Duke, Jr., and shall be contiguous to the one hundred (100) acres designated by Plaintiffs.”  ·                   the judgment awards Duke “all of that part of the [927.822] acres remaining after Plaintiffs’ one hundred fifty (150) acres is designated.”             These descriptions are not “so definite and certain  . . . that the land can be identified with reasonable certainty” nor do they refer to “some other writing” which can provide the required certainty. See Greer, 191 S.W.2d at 850; Browning, 557 S.W.2d at 850-51; see also Long Trusts, 222 S.W.3d at 416.            Appellants argue that this defect renders the judgment void, and there is case law to support this contention. See Greer, 191 S.W.2d at 850; R.J.A.H., 101 S.W.3d at 763; Browning, 557 S.W.2d at 851; see also Stewart, 870 S.W.2d at 20. In light of more recent decisions by the Supreme Court regarding “void” judgments, however, we believe the better rule to be that such a judgment is merely voidable. According to the Supreme Court, “A judgment is void only when it is apparent that the court rendering judgment ‘had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.’” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per curiam)) (emphasis added).  All other defects render a judgment merely voidable. Placke, 698 S.W.2d at 363; Armentor v. Kern, 178 S.W.3d 147, 149 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Peacock v. Wave Tec Pools, Inc., 107 S.W.3d 631, 636 (Tex. App.—Waco 2003, no pet.).            Here it is clear that the court had jurisdiction of the parties, the property, and the subject matter and had capacity to act. No one contends otherwise. Therefore, we hold that the court’s judgment is not “void” because of the insufficient property descriptions it contains, but, as Appellants argue, the judgment is erroneous.            Under the Rules of Appellate Procedure, we are authorized to modify a trial court’s judgment and affirm it as modified.  See Tex. R. App. P. 43.2(b); Dal-Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133, 144 (Tex. App.—Dallas 2006, no pet.); Tex. Tech. Univ. Health Sciences Ctr. v. Rao, 105 S.W.3d 763, 770-71 (Tex. App.—Amarillo 2003, pet. dism’d). Because we have an adequate record to do so, we will modify the judgment in this case to correct the inadequate property descriptions.            Under the settlement agreement, the Steeles were to receive fee simple title to 150 acres out of the 927.822-acre tract which would include “the lake, the landing strip, the house [Gene] occupies, the 100 acres described in the instruments in evidence in this case, plus 50 additional acres contiguous thereto to be designated by [Duke]”.[6]  Duke was to receive the remaining acreage.            There is no dispute about the description of the 927.822-acre tract in which Defendants/Appellees have received a sixty percent mineral interest for twenty years, but that description does not appear in the judgment. Nor is there any reference in the judgment to any other document containing that description. Therefore, we will modify the judgment to include that description.            “Under objection,” the Steeles filed their designation of the 100 acres awarded them. However, they complained that the house does not lie within the 100 acres agreed to by the parties. Therefore, they designated an additional 30.07 acres adjacent to the 100-acre tract and requested that Duke be required to designate only 20 additional acres. Although the trial court never ruled on the Steeles’ request, Duke complied with it. In his designation of the additional fifty acres, Duke designated the 30.07 acres sought by the Steeles and an additional 20-acre tract. With these designations, the parties also provided surveys which contain metes-and-bounds descriptions of the tracts. Accordingly, we will modify the judgment to include these descriptions.            For the foregoing reasons, Appellants’ second issue is sustained.   Dismissal Motions            Appellees Dorothy McDonald and Floyd Duke have each filed motions to dismiss this appeal because Appellants waived their right of appeal in the settlement agreement. Duke also request damages for frivolous appeal under Rule of Appellate Procedure 45. See Tex. R. App. P. 45.            As a general matter, a party who asks the court to approve a settlement agreement and enter judgment accordingly may not attack the judgment on appeal. Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.—Houston [1st Dist.] 2003, no pet.). However, this does not prevent a party from appealing on the basis of fraud, collusion, or misrepresentation. Chang v. Linh Nguyen, 81 S.W.3d 314, 316 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.—Dallas 1997, no writ). Or as has been stated in the arbitration context, a judgment rendered on an arbitration agreement may be appealed notwithstanding a waiver-of-appeal provision in the agreement when there is an allegation of fraud, misconduct, or gross mistake. Barsness v. Scott, 126 S.W.3d 232, 238 (Tex. App.—San Antonio 2003, pet. denied).            Here, the agreed waiver of appeal clearly prohibits the parties from challenging the division of the property in dispute. However, there was a “gross mistake” in the judgment because it was not adequate to effectuate the parties’ agreement. Appellants tried without success to remedy this deficiency by motion for judgment nunc pro tunc. Under these circumstances, we hold that the waiver of appeal does not bar Appellants’ efforts to obtain a judgment which fully effectuates the settlement agreement. Therefore, we deny McDonald’s and Duke’s dismissal motions.            Because we have found Appellants’ second issue to be meritorious, we deny Duke’s request for damages under Rule 45. See In re Estate of Davis, 216 S.W.3d 537, 548 (Tex. App.—Texarkana 2007, pet. denied); Tex. Dep’t of Transp. v. Beckner, 74 S.W.3d 98, 104-05 (Tex. App.—Waco 2002, no pet.). Conclusion We modify the judgment to reflect that: (1) Defendants/Appellees have an undivided sixty percent mineral interest in the 927.822-acre tract more particularly described in this Court’s judgment which interest will end on January 11, 2025; (2) the Steeles have fee simple title to the 150.070-acre tract more particularly described in this Court’s judgment save and except the mineral interest awarded to Defendants/Appellees; and (3) Duke has fee simple title to approximately 777.752 acres, which consists of the 927.822-acre tract more particularly described in this Court’s judgment less the 150.070-acre tract awarded to the Steeles, save and except the mineral interest awarded to Defendants/Appellees. As modified, the judgment is affirmed.  FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed as modified Opinion delivered and filed August 1, 2007 [CV06] [1]              The parties and the trial court refer to the tract as comprising approximately 903 acres. However, a May 2005 survey determined that the tract contains 927.822 acres.  [2]              The briefing for Appellants followed a rather circuitous route. Appellants’ former counsel first raised these three issues in a brief which was later struck for noncompliance with the Rules of Appellate Procedure. See Steele v. McDonald, 202 S.W.3d 926, 927 (Tex. App.—Waco 2006, order) (per curiam). Appellants terminated their former counsel’s services, then Gene Steele filed a pro se brief raising the same issues. A majority of this Court ruled that Gene was not authorized to file a pro se brief on behalf of his co-appellants or in his status as independent executor of William Duke’s estate. Id. at 928. Appellants then hired other counsel who filed a motion to adopt the pro se brief and the issues therein as the appellants’ brief. That motion was granted. [3]              The first indication of an appearance for the Estate of John B. McDonald in the clerk’s record is a February 2001 motion for a survey filed by the attorney representing all the defendants at that time. Counsel for Dorothy McDonald, Individually and as Independent Executrix of the Estate, filed an appearance in April 2003.  [4]              Gene Steele appears in this appeal both as an individual and as Independent Executor of the Estate of William B. Duke, Deceased. However, the references in this opinion to “Duke” are to Intervenor/Appellee Floyd Duke, Jr. and not to the decedent William B. Duke. [5]              To provide additional support for the contentions presented in the third issue, Appellants submitted documents to this Court in an appendix. Duke has filed a motion to strike these documents because they were not formally included in the appellate record. That motion is granted. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (per curiam) (appellate court may not consider documents not included in appellate record); Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied) (same). [6]              By contrast however, the judgment provides only that the Steeles’ 150 acres “may include” the lake, the landing strip, and the house. (emphasis added)