Bergenholtz v. Eskenazi

521 S.W.3d 397, 2017 WL 1684729, 2017 Tex. App. LEXIS 4015
CourtCourt of Appeals of Texas
DecidedMay 3, 2017
DocketNo. 08-15-00144-CV
StatusPublished
Cited by4 cases

This text of 521 S.W.3d 397 (Bergenholtz v. Eskenazi) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bergenholtz v. Eskenazi, 521 S.W.3d 397, 2017 WL 1684729, 2017 Tex. App. LEXIS 4015 (Tex. Ct. App. 2017).

Opinion

OPINION

YVONNE T. RODRIGUEZ, Justice

Appellant, Stephen Aaron Bergenholtz, appeals from an order granting turnover relief and appointing a receiver. We affirm.

FACTUAL SUMMARY

Stephen Aaron Bergenholtz and Josephine Donna Eskenazi divorced on October 20, 2009.1 On that same date, the parties also entered into an agreement incident to divorce (AID) for the purpose of dividing the marital estate. Under the AID, Esken-azi was awarded $712,500, less certain offsets, and a secured promissory note in the amount of $400,000 to be executed by Ber-genholtz. Disputes regarding the property division continued to exist, and on July 14, 2011, the parties entered into a settlement agreement to resolve those disputes. The settlement agreement recites, in part, that:

The $1,100,000.00 judgment rendered by the trial court in this proceeding pursuant to the Agreement Incident to Divorce (AID) by and through this agreement is reduced and settled in whole as follows:
$750,000.00 if paid on or before December 31,2011;
$850,000.00 if paid after December 31, 2011 but before January 31, 2012;
.$950,000.00 if paid after January. 31, 2012 but before February 28,2012;
$1,000,000.00 if paid after February 28, 2012 but before March 31,2012;
$1,100,000.00 after March 31, 2012 subject to any lawful offsets which amount includes the remaining balance of court-ordered payments totaling $55,000.00 which shall be paid by Stephen Bergen-holtz to Josephine Eskenazi.

On June 3, 2014, Eskenazi filed a motion to reduce to judgment portions of the July 14, 2011 settlement agreement. According to the motion, the balance due on the judgment was $851,696.44. The trial court granted the motion, awarded Eskenazi judgment in the amount of $851,696.44, and ordered Bergenholtz to make full payment to Eskenazi on or before July 9, 2014. Bergenholtz did not appeal or pay the judgment, and Eskenazi filed a motion requesting the trial court to issue a show cause order. Her motion also included an application for a turnover order and for appointment of a receiver, On March 3, [400]*4002015, the trial court entered an order finding that Eskenazi was entitled to turnover relief and it appointed a receiver, David F. Freudiger. Bergenholtz timely filed notice of appeal.

VALIDITY OF THE JUNE 9, 2014 ORDER

Bergenholtz presents three issues challenging the June 9, 2014 order.

Violation of the Stay

In Issue One, Bergenholtz argues that the June 9, 2014 order reducing the settlement agreement to judgment is void because it was entered while the case was stayed pursuant to Section 11.052 of the Civil Practice and Remedies Code. He reasons that the trial court erred by issuing the turnover order and appointing a receiver since the underlying order is void.

On May 13, 2014, Eskenazi filed a motion to declare Bergenholtz a vexatious litigant.2 Section 11.052 of the Civil Practice and Remedies Code provides:

(a) On the filing of a motion under Section 11.051, the litigation is stayed and the moving defendant is not required to plead:
(1) if the motion is denied, before the 10th day after the date it is denied; or
(2) if the motion is granted, before the 10th day after the date the moving defendant receives written notice that the plaintiff has furnished the required security.
(b) On the filing of a motion under Section 11.051 on or after the date the trial starts, the litigation is stayed for a period the court determines.

Tex.Civ.Prac. & Rem.Code Am § 11.052 (West 2017).

The record reflects that both parties filed pleadings seeking affirmative relief and vigorously litigated the case after Esk-enazi filed the vexatious litigant motion.

Bergenholtz does not cite any case law in support of his argument that the June 9, 2014 is void because it violated the Section 11.052 stay and we are aware of none. In order to complain that the June 9, 2014 order violated the stay, Bergenholtz was required to have preserved this issue by presenting it to the trial court in a timely manner and obtaining an adverse ruling. See Tex.R.App.P. 33.1; Spiller v. Spiller, 21 S.W.3d 451, 455 (Tex.App.-San Antonio 2000, no pet.)(even though case was stayed pursuant to Section 11.052, trial court did not err by proceeding with summary judgment hearing because plaintiff voluntarily responded to discovery and did not object prior to hearing based on the stay). The record does not reflect that Bergenholtz voiced any objection based on the stay in response to Eskenazi’s motion to reduce the settlement agreement to judgment or at any time before the court entered the June 9, 2014 order. He raised the argument for the first time several months later, on February 6, 2015, when he filed his response to Eskenazi’s application for issuance of turnover over and for appointment of receiver. Given that Bergenholtz disregarded the stay and sought affirmative relief from the trial court during the pendency of the stay, and he did not object based on the stay until long after the trial court entered the June 9, 2014 order, we decline to hold that the order is void. Issue One is overruled.

Breach of Contract Remedy

In his second issue, Bergenholtz argues that the June 9, 2014 order is inval[401]*401id and unenforceable because the parties entered into a settlement agreement incident to their divorce, and the only remedy available to Eskenazi to enforce the settlement agreement is to file a claim for breach of contract. He cites Ford Motor Company v. Castillo, 279 S.W.3d 656 (Tex. 2009), Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995), and Mantas v. Fifth Court of Appeals, 925 S.W.2d 656 (Tex. 1996) in support of his argument.

Settlement agreements are governed by contract law. Tex.Civ.Prac. & Rem. Code Ann. § 154.071(a)(West 2011); Lane-Valente Industries (Nat’l), Inc. v. J.P. Morgan Chase, NA., 468 S.W.3d 200, 204 (Tex.App.-Houston [14th Dist.] 2015, no pet.); Alcantar v. Oklahoma National Bank, 47 S.W.3d 815, 819 (Tex.App.-Fort Worth 2001, no pet.). When the parties enter into a valid settlement agreement under Tex.R.Civ.P. 11, the trial court may render an agreed judgment based on the settlement agreement. Padilla, 907 S.W.2d at 461-62. The trial court may not render an agreed judgment on the settlement agreement when a party withdraws its consent before the judgment is rendered. Padilla, 907 S.W.2d at 461.

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521 S.W.3d 397, 2017 WL 1684729, 2017 Tex. App. LEXIS 4015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergenholtz-v-eskenazi-texapp-2017.