TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00464-CV
Apolonia Coronado, Appellant
v.
Earnest Roy Jones and Cathy Hiilsmeier Jones, Appellees
FROM THE DISTRICT COURT OF SAN SABA COUNTY, 424TH JUDICIAL DISTRICT NO. 9189, HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING
M E M O R A N D U M O P I N I ON
Apolonia Coronado appeals from a trial court order, titled “Judgment of Contempt
and Order of Commitment,” finding Coronado in contempt of court for failing to comply with the
terms of a Rule 11 agreement settling a dispute between Coronado and appellees Earnest Roy Jones
and Cathy Hiilsmeier Jones. Contempt orders such as this one that do not involve confinement
cannot be reviewed on direct appeal and can only be reviewed by mandamus. See In re Long,
984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam) (“Contempt orders that do not
involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a
writ of mandamus.”); Texas Animal Health Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983)
(appellate courts do not have jurisdiction to review contempt orders on direct appeal). However,
requiring the filing of a separate mandamus proceeding under the circumstances before us, including
that the case has been briefed and both the clerk’s and reporter’s records have been filed, would unnecessarily waste the parties’ time and additional judicial resources. We will, therefore, construe
Coronado’s briefing as an attempt to invoke our original jurisdiction by way of a petition for writ
of mandamus. See Haffelfinger v. Adams, No. 03-12-00512-CV, 2013 WL 6178570, at *1 (Tex.
App.—Austin Nov. 21, 2013, orig. proceeding) (mem. op.) (construing appeal of contempt order as
petition for writ of mandamus). We will conditionally grant the writ.
DISCUSSION
Coronado sued the Joneses asserting causes of action arising out of a dispute that
originated between Coronado’s father-in-law, Juan Martinez, and the Joneses. According to the
allegations in his petition, Martinez and the Joneses had an oral lease agreement pursuant to which
Martinez paid the Joneses on a weekly basis in exchange for being permitted to mine stone and rock
on property the Joneses owned in San Saba County. Martinez leased the equipment he used to mine
the stone and rock from Coronado. In February 2012, Martinez failed to make his weekly lease
payment and the Joneses locked Martinez out of their property and locked in all of the equipment
Martinez leased from Coronado. Coronado then contacted the Joneses and negotiated a seven-day
extension of the lease in exchange for $3,000, which would allow Martinez to continue his mining
activities while Martinez, Coronado, and the Joneses concluded their negotiations regarding
Martinez’s continued use of the property. Coronado alleged that, despite agreeing to the extension,
the Joneses locked Martinez out of the property the next day and continued to possess the equipment
Martinez leased from Coronado.
After the Joneses filed a general denial, the parties entered into a Rule 11 agreement
dated July 12, 2012, which recited that it “settles all matters between the parties as well as all matters
2 between” Coronado, the Joneses, and Martinez. Although the record includes only the first page
of the Rule 11 agreement, it appears that the Joneses agreed to release the mining equipment and
Coronado and Martinez agreed to remove all trash and debris from the property, remediate the
quarry area, and pay $4,000, in four installments of $1,000 each, due on the 15th of each month
beginning August 15, 2012, until paid in full. The parties did not, however, request that the trial
court sign a consent judgment incorporating the terms of the Rule 11 agreement, and the case
remained pending in the trial court.
In September 2012, the Joneses filed a pleading titled “Motion for Contempt and
Enforcement of Rule 11 Agreement” in which they asserted that Coronado and Martinez had
removed most of the debris and done limited remediation, but had failed to pay the $1,000
installment due on August 15th. The Joneses requested that the court order Coronado to appear
and show cause why he should not be held in contempt for failing to comply with the terms of the
Rule 11 agreement. After a hearing on May 16, 2013, the trial court signed a judgment on October
18, 2012, which recited that “the Court decided all fact questions,” and “[a]fter considering the
pleadings and official records on file in this cause, the evidence presented, and the parties’
argument, the Court renders the following judgment.” The judgment awarded the Joneses $2,000
for breach of contract along with post-judgment interest at 10% per annum. The judgment provided
that Coronado take nothing on his breach of contract claim. The judgment further recited that “any
party in favor of whom judgment is awarded is entitled to enforce this judgment through abstract,
execution and any other process necessary. This judgment finally disposes of all parties and all claims
and is appealable.” Counsel for Coronado and for the Joneses approved the form of the judgment.
3 It is apparent that this was a final and appealable judgment. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 200 (Tex. 2001) (“[I]f language in order is clear and unequivocal, it must be given
effect despite any other indications that one or more parties did not intend for the judgment to be
final.”). Neither Coronado nor the Joneses filed a notice of appeal, and the trial court lost plenary
power on November 16, 2012. Tex. R. Civ. P. 329b(d).
In November 2012 and again in April 2013, the Joneses filed motions requesting that
the court hold Coronado in contempt for failing to comply with the terms of the July 2012 Rule 11
agreement. The November motion was not set for a hearing, but in May 2013, the trial court held
a hearing1 on the Joneses’ May 2013 motion, which was titled “Third Motion for Contempt and
Enforcement of Rule 11 Agreement.” In that motion, the Joneses asserted that Coronado failed to
comply with the terms of the Rule 11 agreement by not making the November 15, 2012 installment
payment of $1,000. According to the Joneses, Coronado’s “failure [] to comply with the terms of
the Rule 11 Agreement written, signed, and filed for record with this Court, constitutes failure to
comply with the settlement agreement, and is enforceable by this Court by Contempt of Court.”
After a hearing, the trial court signed a “Judgment of Contempt and Order of Commitment” in which
it found Coronado in contempt of court for his alleged failure to comply with the Rule 11 agreement,
and ordered him to pay the Joneses $1,000 “due and owing on the Rule 11 Agreement,” fined him
$500, and ordered him to pay the Joneses an additional $1,000 in attorneys’ fees and court costs.
Coronado then sought relief from this order in this Court.
1 The judge presiding over this hearing was not the same judge who signed the October 2012 judgment.
4 To be entitled to mandamus relief, a relator must demonstrate (1) the trial court
clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. In re Reece,
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00464-CV
Apolonia Coronado, Appellant
v.
Earnest Roy Jones and Cathy Hiilsmeier Jones, Appellees
FROM THE DISTRICT COURT OF SAN SABA COUNTY, 424TH JUDICIAL DISTRICT NO. 9189, HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING
M E M O R A N D U M O P I N I ON
Apolonia Coronado appeals from a trial court order, titled “Judgment of Contempt
and Order of Commitment,” finding Coronado in contempt of court for failing to comply with the
terms of a Rule 11 agreement settling a dispute between Coronado and appellees Earnest Roy Jones
and Cathy Hiilsmeier Jones. Contempt orders such as this one that do not involve confinement
cannot be reviewed on direct appeal and can only be reviewed by mandamus. See In re Long,
984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (per curiam) (“Contempt orders that do not
involve confinement cannot be reviewed by writ of habeas corpus, and the only possible relief is a
writ of mandamus.”); Texas Animal Health Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983)
(appellate courts do not have jurisdiction to review contempt orders on direct appeal). However,
requiring the filing of a separate mandamus proceeding under the circumstances before us, including
that the case has been briefed and both the clerk’s and reporter’s records have been filed, would unnecessarily waste the parties’ time and additional judicial resources. We will, therefore, construe
Coronado’s briefing as an attempt to invoke our original jurisdiction by way of a petition for writ
of mandamus. See Haffelfinger v. Adams, No. 03-12-00512-CV, 2013 WL 6178570, at *1 (Tex.
App.—Austin Nov. 21, 2013, orig. proceeding) (mem. op.) (construing appeal of contempt order as
petition for writ of mandamus). We will conditionally grant the writ.
DISCUSSION
Coronado sued the Joneses asserting causes of action arising out of a dispute that
originated between Coronado’s father-in-law, Juan Martinez, and the Joneses. According to the
allegations in his petition, Martinez and the Joneses had an oral lease agreement pursuant to which
Martinez paid the Joneses on a weekly basis in exchange for being permitted to mine stone and rock
on property the Joneses owned in San Saba County. Martinez leased the equipment he used to mine
the stone and rock from Coronado. In February 2012, Martinez failed to make his weekly lease
payment and the Joneses locked Martinez out of their property and locked in all of the equipment
Martinez leased from Coronado. Coronado then contacted the Joneses and negotiated a seven-day
extension of the lease in exchange for $3,000, which would allow Martinez to continue his mining
activities while Martinez, Coronado, and the Joneses concluded their negotiations regarding
Martinez’s continued use of the property. Coronado alleged that, despite agreeing to the extension,
the Joneses locked Martinez out of the property the next day and continued to possess the equipment
Martinez leased from Coronado.
After the Joneses filed a general denial, the parties entered into a Rule 11 agreement
dated July 12, 2012, which recited that it “settles all matters between the parties as well as all matters
2 between” Coronado, the Joneses, and Martinez. Although the record includes only the first page
of the Rule 11 agreement, it appears that the Joneses agreed to release the mining equipment and
Coronado and Martinez agreed to remove all trash and debris from the property, remediate the
quarry area, and pay $4,000, in four installments of $1,000 each, due on the 15th of each month
beginning August 15, 2012, until paid in full. The parties did not, however, request that the trial
court sign a consent judgment incorporating the terms of the Rule 11 agreement, and the case
remained pending in the trial court.
In September 2012, the Joneses filed a pleading titled “Motion for Contempt and
Enforcement of Rule 11 Agreement” in which they asserted that Coronado and Martinez had
removed most of the debris and done limited remediation, but had failed to pay the $1,000
installment due on August 15th. The Joneses requested that the court order Coronado to appear
and show cause why he should not be held in contempt for failing to comply with the terms of the
Rule 11 agreement. After a hearing on May 16, 2013, the trial court signed a judgment on October
18, 2012, which recited that “the Court decided all fact questions,” and “[a]fter considering the
pleadings and official records on file in this cause, the evidence presented, and the parties’
argument, the Court renders the following judgment.” The judgment awarded the Joneses $2,000
for breach of contract along with post-judgment interest at 10% per annum. The judgment provided
that Coronado take nothing on his breach of contract claim. The judgment further recited that “any
party in favor of whom judgment is awarded is entitled to enforce this judgment through abstract,
execution and any other process necessary. This judgment finally disposes of all parties and all claims
and is appealable.” Counsel for Coronado and for the Joneses approved the form of the judgment.
3 It is apparent that this was a final and appealable judgment. See Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 200 (Tex. 2001) (“[I]f language in order is clear and unequivocal, it must be given
effect despite any other indications that one or more parties did not intend for the judgment to be
final.”). Neither Coronado nor the Joneses filed a notice of appeal, and the trial court lost plenary
power on November 16, 2012. Tex. R. Civ. P. 329b(d).
In November 2012 and again in April 2013, the Joneses filed motions requesting that
the court hold Coronado in contempt for failing to comply with the terms of the July 2012 Rule 11
agreement. The November motion was not set for a hearing, but in May 2013, the trial court held
a hearing1 on the Joneses’ May 2013 motion, which was titled “Third Motion for Contempt and
Enforcement of Rule 11 Agreement.” In that motion, the Joneses asserted that Coronado failed to
comply with the terms of the Rule 11 agreement by not making the November 15, 2012 installment
payment of $1,000. According to the Joneses, Coronado’s “failure [] to comply with the terms of
the Rule 11 Agreement written, signed, and filed for record with this Court, constitutes failure to
comply with the settlement agreement, and is enforceable by this Court by Contempt of Court.”
After a hearing, the trial court signed a “Judgment of Contempt and Order of Commitment” in which
it found Coronado in contempt of court for his alleged failure to comply with the Rule 11 agreement,
and ordered him to pay the Joneses $1,000 “due and owing on the Rule 11 Agreement,” fined him
$500, and ordered him to pay the Joneses an additional $1,000 in attorneys’ fees and court costs.
Coronado then sought relief from this order in this Court.
1 The judge presiding over this hearing was not the same judge who signed the October 2012 judgment.
4 To be entitled to mandamus relief, a relator must demonstrate (1) the trial court
clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. In re Reece,
341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding) (citing In re McAllen Med. Ctr., Inc.,
275 S.W.3d 458, 462 (Tex. 2008) (orig. proceeding)). As previously stated, this Court does not have
jurisdiction over a direct appeal from a contempt order. As a result, Coronado had no adequate
remedy by appeal. Thus, we need only consider whether the trial court abused its discretion in
holding Coronado in contempt. The trial court’s contempt order finds Coronado in contempt of
court for his “failure to comply with the terms of the Rule 11 Agreement dated July 12, 2012.” Here,
the parties’ Rule 11 agreement purported to settle all matters in dispute. After conducting a hearing
on the Joneses’ first motion for contempt and to enforce the Rule 11 settlement agreement, the trial
court signed a final judgment on October 18, 2012, disposing of the case. While the terms of the
final judgment vary from the terms of the parties’ settlement agreement, and could have been
challenged by a motion for new trial or by a timely filed appeal, counsel for both parties approved
the judgment as to form, and neither party filed a motion for new trial or an appeal. Consequently,
the trial court’s October 2012 judgment is a final order fixing the obligations of the parties with
respect to the matters at issue in the underlying proceeding, and the July 2012 Rule 11 agreement
has no force or effect and cannot support an order of contempt. See Tex. R. Civ. P. 11 (providing
that agreement pursuant to that rule may be enforced as to “any suit pending”).2
2 We also observe that failure to comply with the payment terms of an enforceable Rule 11 agreement would not be punishable by contempt. Contempt of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its authority. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995) (orig. proceeding). Failing to comply with a settlement agreement that has not been reduced to final judgment does not fall within the scope of acts constituting contempt of court.
5 We next consider whether the trial court had the authority to hold Coronado in
contempt of the October 2012 judgment. It appears from the record that Coronado may have already
paid the Joneses at least $2,000, which is what the trial court’s judgment awarded them.3 But even
if he had not, the October 2012 judgment does not include any court order sufficiently specific to
support a judgment of contempt. “In order to support a judgment of contempt, Texas law requires
that the underlying decree set forth the terms of compliance in clear, specific and unambiguous
terms so that the person charged with obeying the decree will readily know exactly what duties
and obligations are imposed upon him.” Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995)
(orig. proceeding). “Command language” is essential to create an order enforceable by contempt.
See In re Coppock, 277 S.W.3d 417, 419 (Tex. 2009) (orig. proceeding) (citing Ex parte Gorena,
595 S.W.2d 841, 845 (Tex. 1979) (orig. proceeding)). The court’s final judgment in this case does
not order Coronado to make any payment to the Joneses. Rather, it awards them a money judgment
in the amount of $2,000 and expressly provides that the judgment may be enforced “through abstract,
execution and any other process necessary.” This language contemplates that the Joneses will avail
themselves of traditional post-judgment collection processes. See Chief Justice Joe Greenhill,
Habeas Corpus Proceedings in the Supreme Court of Texas, 1 St. Mary’s L.J. 1, 12-13 (1969) (“In
an ordinary suit, when the court orders a defendant to pay a plaintiff a $5,000 note ‘for which
execution issue,’ the order cannot be enforced by contempt.”). The October 2012 judgment lacks
sufficient “command language” to permit the trial court to enforce it by contempt. Because neither
3 We draw this inference from the fact that the third motion for contempt complains only of Coronado’s failure to make the November 15, 2012 payment and makes no mention of any failure to make the previous three payments. Whether this inference is correct, however, is of no consequence to our analysis.
6 the Rule 11 agreement nor the October 2012 judgment can support an order holding Coronado in
contempt of court, the trial court abused its discretion in doing so.
CONCLUSION
We conditionally grant Coronado’s petition for writ of mandamus compelling
the trial court to vacate its May 16, 2013 “Judgment of Contempt and Order of Commitment.” We
are confident the trial court will act in accordance with this opinion. Writ will issue only if it does
not do so.
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Filed: May 6, 2015