in the Matter of the Estate of Hugh Bob Spiller

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00522-CV

IN THE MATTER OF THE ESTATE OF Hugh Bob SPILLER

From the County Court, Menard County, Texas Trial Court No. 2013-02059A Honorable Joe Loving, Jr., Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Rebeca C. Martinez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: June 5, 2019

DISMISSED

In this case, we consider as a threshold issue whether the parties entered into an enforceable

agreement under Texas Rule of Civil Procedure 11 to waive the right to appeal from the trial

court’s final judgment. Because we conclude the parties’ agreement is enforceable, we grant

appellee’s motion to dismiss this appeal.

Background

After Hugh Bob Spiller died in 2013, his widow, appellee Mary Lee Spiller, filed an

application to probate a will dated August 21, 2009 (“the 2009 will”). Hugh Bob’s grandson,

appellant Reagan Willman (“Willman”), filed an opposition to Mary Lee’s application to probate

the 2009 will, alleging lack of testamentary capacity and undue influence. Willman filed a

competing application to probate a will dated November 8, 2006 (“the 2006 will”). 04-18-00522-CV

At a pretrial hearing, the parties announced they had reached an agreement to settle the will

contest, and Mary Lee’s attorney read the terms of the settlement agreement into the record. The

parties agreed, among other things: (1) the 2006 will would be admitted to probate, subject to the

terms of the settlement agreement; (2) the parties released any and all claims that had been or could

be asserted regarding Hugh Bob’s estate; and (3) the parties waived their right to appeal the order

admitting the 2006 will to probate. Mary Lee was sworn as a witness and testified she approved

the settlement agreement. Willman’s attorney stated he had “exhaustively discuss[ed] the

proposals and settlement resulting today” with Willman and was “authorized to accept the

settlement proposal.” At the conclusion of the pretrial hearing, the trial court stated: “[T]he Court

finds it’s in the best interest of the estate of Hugh Bob Spiller that this settlement agreement . . .

that the attorneys read is hereby approved, and the Court will sign an order—a judgment, rather,

and admit the will to probate in accordance with the agreement.”

Before the trial court signed a final judgment admitting the 2006 will to probate, Willman

filed a motion to withdraw stating he did not agree to the terms of the settlement agreement. Mary

Lee filed a motion to enter judgment on the settlement agreement. After a hearing, the trial court

concluded it already had entered final judgment at the pretrial hearing, signed an “order

perpetuating that judgment as rendered,” and admitted the 2006 will to probate. Willman appealed,

and a panel of this court held: “Because the trial court rendered the order admitting the 2006 will

to probate and ordering the distribution of the estate in accordance with the family settlement

agreement after Willman revoked his consent to the family settlement agreement, the trial court’s

order is void.” In re Matter of Estate of Spiller, No. 04-15-00449-CV, 2016 WL 3557206, at *3

(Tex. App.—San Antonio June 29, 2016, no pet.) (mem. op.). This court vacated the trial court’s

order and remanded the cause to the trial court.

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On remand, Mary Lee amended her pleadings to assert a claim against Willman for breach

of the settlement agreement. The trial court severed the will contest from the breach of contract

claim, and the parties proceeded to a jury trial on the will contest. According to Mary Lee’s brief,

the jury trial resulted in a verdict in Willman’s favor. Mary Lee does not appeal the jury’s verdict

in the will contest case.

In the breach of contract case, the parties filed competing motions for summary judgment.

After considering the motions on the papers, the trial court granted Mary Lee’s motion for

summary judgment, denied Willman’s motion for summary judgment, and rendered final judgment

admitting the 2006 will to probate subject to the terms of the settlement agreement. The final

judgment expressly provides: “As part of the [settlement] agreement, Reagan Willman waived any

right to appeal.”

Willman filed this appeal, and Mary Lee filed a motion to dismiss the appeal based on the

waiver provision in the settlement agreement. This court ordered the motion to dismiss would be

carried with the case. In three issues, Willman argues: (1) the trial court erred in granting Mary

Lee’s motion for summary judgment; (2) the trial court erred in denying Willman’s motion for

summary judgment; and (3) Mary Lee’s motion to dismiss must be denied.

Discussion

The threshold question we must answer is whether Willman waived the right to bring this

appeal.

The right to appellate review may be waived by Rule 11 agreement. Emerson v. Emerson,

559 S.W.3d 727, 734 (Tex. App.—Houston [14th Dist.] 2018, no pet.); see also Huber v. Huber,

No. 04-17-00326-CV, 2018 WL 1831655, at *4 (Tex. App.—San Antonio Apr. 18, 2018, pet.

denied) (mem. op.). Willman does not appear to dispute that the settlement agreement contains a

waiver of appellate rights. Instead, Willman asserts without elaboration: “Because the Final

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Judgment was entered in error, the motion to dismiss must fail.” We construe Willman’s argument

to be that the settlement agreement is not enforceable for the same reasons he argues the trial court

erred in granting summary judgment that Willman breached the settlement agreement—i.e.,

because: (1) Willman revoked his consent to the agreement before the trial court entered final

judgment; (2) the settlement agreement lacks essential terms; (3) the settlement agreement violates

the Statute of Frauds; and (4) consideration for the settlement agreement failed. We address each

of these arguments separately.

A. Revocation of consent

Willman argues the settlement agreement is unenforceable because he revoked his consent

to the agreement before the trial court entered final judgment. Willman, however, conflates the

requirements for a valid agreed judgment with the requirements for a valid settlement agreement.

As this court held in Willman’s first appeal, a court may not render a valid agreed judgment absent

consent at the time it is rendered. In re Matter of Estate of Spiller, 2016 WL 3557206, at *3.

However, a court is not precluded, “after proper notice and hearing, from enforcing a settlement

agreement complying with Rule 11 even though one side no longer consents to the settlement.”

Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); see also Juarez v. Laredo Inv. Props.,

Inc., No. 04-10-00821-CV, 2011 WL 4377999, at *3 (Tex. App.—San Antonio Sept. 21, 2011, no

pet.) (mem. op.) (holding trial court may enforce settlement agreement in breach of contract action

after one party withdraws consent). Therefore, the fact that Willman revoked his consent to the

settlement agreement before the trial court entered final judgment does not render the settlement

agreement unenforceable.

B. Essential terms

Willman argues the settlement agreement is not an enforceable contract, but rather a mere

“agreement to agree” that is lacking essential terms.

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1. Relevant law

The rules generally governing construction of contracts also apply to a Rule 11 agreement

made in open court and entered of record. Crews v. Dkasi Corp., 469 S.W.3d 194, 199 (Tex.

App.—Dallas 2015, pet. denied); see also Garza v. Villarreal, 345 S.W.3d 473, 479 (Tex. App.—

San Antonio 2011, pet. denied). As in any other contract, the “essential” or “material” terms of a

Rule 11 agreement must be definite, certain, and clear, or else the agreement is unenforceable.

Crews, 469 S.W.3d at 199. Whether a contract is unenforceable for lack of essential terms is a

question of law for the court. Id.; see also Cantu v. Moore, 90 S.W.3d 821, 825 (Tex. App.—San

Antonio 2002, pet. denied).

A Rule 11 agreement to settle litigation contains all essential or material terms if it provides

for release of claims in exchange for payment of money or taking some other affirmative action.

See, e.g., Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 745 (Tex. App.—Houston

[1st Dist.] 2014, no pet.) (agreement to return shares of stock in exchange for payment of money

and joint dismissal of lawsuit with prejudice contained essential terms); Green v. Midland Mortg.

Co., 342 S.W.3d 686, 691 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (agreement to pay

$40,000 in exchange for settlement and release of all claims contained essential terms); Cantu, 90

S.W.3d at 825 (holding agreement to pay $150,000 in exchange for release of claims, although

source of funds and terms of indemnity were unspecified, contained essential terms of settlement

agreement); see also Padilla, 907 S.W.2d at 460–61 (noting material terms of Rule 11 settlement

agreement include payment and release of claims).

2. Analysis

The parties agreed on the record in open court that the 2006 will would be admitted to

probate subject to certain agreed terms and, in exchange, all parties to the will contest would

release any and all claims that had been or could be asserted regarding Hugh Bob’s estate.

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Although Willman identifies certain “missing terms” regarding “the status of the executor,”

attorney’s fees, and legal descriptions of properties, he does not explain how these terms are

unaccounted for in the agreement or why they are essential to the agreement to resolve the will

dispute. Because the settlement agreement resolved the underlying will dispute by designating a

will to probate and agreed terms in exchange for a full release of claims related to the estate, we

conclude the agreement contains all essential terms of a settlement agreement.

C. Statute of Frauds

Willman argues the settlement agreement is unenforceable because it violates the Statute

of Frauds. Specifically, Willman argues the settlement agreement fails to sufficiently identify a

particular parcel of real estate contained in Hugh Bob’s estate, which the parties refer to as the

“Pipeline Pasture.” Mary Lee does not challenge the applicability of the Statute of Frauds to the

settlement agreement, but instead argues the description of the Pipeline Pasture in the documents

incorporated by reference in the settlement agreement satisfies the Statute of Frauds. Assuming

without deciding the Statute of Frauds applies to the settlement agreement, we consider whether

the agreement identifies the Pipeline Pasture with reasonable certainty.

A contract subject to the Statute of Frauds is unenforceable unless it contains, or references

another existing writing that contains, “the means or data by which the [property] to be conveyed

may be identified with reasonable certainty.” Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.

1972). The description of real property need only be “reasonably certain” so as to enable a person

familiar with the area to identify the property to the exclusion of all other properties. Anderson

Energy Corp. v. Dominion Okla. Tex. Exploration & Prod., Inc., 469 S.W.3d 280, 295 (Tex.

App.—San Antonio 2015, no pet.) (citing Gates v. Asher, 280 S.W.2d 247, 248 (Tex. 1955)). “The

property description must furnish enough information to locate the general area ‘as in identifying

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it by tract survey and county,’ as well as to determine the ‘size, shape, and boundaries’ of the

property.” Id. (quoting Reiland v. Patrick Thomas Props., Inc., 213 S.W.3d 431, 437 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied)). Whether a description is sufficient to satisfy the Statute of

Frauds is a question of law for the court. Id.

2. Evidence in the record

The settlement agreement provides the terms by which the 2006 will shall be probated,

including terms related to the disposition of the real property assets of Hugh Bob’s estate. On the

record in open court, the parties expressly agreed:

. . . Reagan [Willman] shall have an option to purchase, exercisable on or before April 2, 2018, . . . the pipeline pasture for $400,000.

. . . [I]n order to be absolutely certain as to the property descriptions and the references to the property which the parties know, in addition we will attach the ownership map which shows where the properties will go as additional legal description. And further, there was a notebook called the Spiller Ranch Ownership, which was prepared for prior mediation which has the legal descriptions of all of the estate property, including the ones we’re talking about today, and those legal descriptions are incorporated into the family settlement agreement by reference.

. . . [T]he estate has an appraisal that has legal descriptions of the property and those legal descriptions are also incorporated so that there is no question whatsoever that the property is sufficiently legally described in the family settlement agreement.

Mary Lee attached to her summary judgment motion a “Map of Spiller Ranch” and an “inventory

and appraisal” of Hugh Bob’s estate. 1 The inventory and appraisal identifies and provides legal

descriptions of five parcels of separate real property in Menard and Kimble Counties.

1 Mary Lee’s summary judgment motion also purports to attach the “Spiller Ranch Ownership Notebook” as “Exhibit H,” but the index to the clerk’s record states Exhibit H is not in the clerk’s possession and, therefore, was not made part of the record on appeal. Accordingly, we do not consider it. See In re D.A.M., No. 04-13-00601-CV, 2013 WL 6546950, at *1 (Tex. App.—San Antonio Dec. 11, 2013, pet. denied) (mem. op.) (“This court is not permitted to consider matters outside the appellate record.”).

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Mary Lee also submitted the affidavit of Carr Benton “Ben” Thompson, a Registered

Public Surveyor and Licensed State Land Surveyor, who states he “can locate and identify with

reasonable certainty all of the Real Property referenced in the Transcript [in which the settlement

agreement was read into the record] with reasonable certainty by referring to” the inventory and

appraisal or by referring to maps or other public documents, including deed records, probate

records, district court records, and tax records. Specifically, Thompson states:

Both the Jack Wright Pasture [parcel 1] and Cow Pasture [parcel 2] are also identified by pasture name in the inventory. The remaining 250 acres, can be identified with reasonable certainty as the Pipeline Pasture, Parcels 3 and 4 of the Inventory. There are no other tracts that could be misconstrued as constituting the Pipeline Pasture. 2

Parcels 3 and 4 are described in the inventory and appraisal as follows:

2 Parcel 5 is identified in the inventory as the “Railroad Trap.”

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In her own affidavit, Mary Lee states: “There is a pipeline that runs through the ranch. Of all the

Spiller Ranch, there is only one pasture that has a pipeline running through it, and [it] is known as

the Pipeline Pasture.” 3

3. Analysis

The inventory and appraisal of Hugh Bob’s estate, which was incorporated by reference in

the settlement agreement, identifies the estate’s real property assets by tract survey and county, as

well as by separately describing the size, shape, and boundaries of each parcel. See Anderson

Energy Corp., 469 S.W.3d at 295. Although the inventory and appraisal does not specifically

designate a “Pipeline Pasture,” Mary Lee’s and Ben Thompson’s affidavits demonstrate that a

3 Willman objected to Mary Lee’s and Ben Thompson’s affidavits, but the trial court did not explicitly rule on those objections. Where the record does not reflect that the trial court ruled or refused to rule on objections to summary judgment evidence, we may not infer a ruling based solely on the trial court’s summary judgment decision. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018). By failing to obtain an express or implied ruling on his objections to the summary judgment evidence, Willman waived the objections. See TEX. R. APP. P. 33.1(a); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317–18 (Tex. App.—San Antonio 2000, no pet.).

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person familiar with the area could locate the Pipeline Pasture with reasonable certainty. See id. at

299 (citation omitted) (noting courts may consider extrinsic evidence, including expert affidavit

testimony, to determine whether a person familiar with the area could locate the property with

reasonable certainty); see also Schuhardt Consulting Profit Sharing Plan v. Double Knobs

Mountain Ranch, Inc., 426 S.W.3d 800, 803–04 (Tex. App.—San Antonio 2014, pet. denied)

(holding easement did not violate statute of frauds based on surveyor’s testimony that he could

locate the easement with reasonable certainty using aerial photographs); Dixon v. Amoco Prod.

Co., 150 S.W.3d 191, 194 (Tex. App.—Tyler 2004, pet. denied) (holding description of property

sufficient where surveyor testified he could locate property with reasonable certainty); W. Beach

Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 266 (Tex. App.—Austin 2002, no pet.) (holding

description sufficient to locate easement with reasonable certainty where evidence included

affidavit testimony of surveyor concluding description was sufficient, even though second

surveyor reached opposite conclusion).

We conclude as a matter of law that the documents incorporated by reference into the

settlement agreement sufficiently describe the real property assets of Hugh Bob’s estate such that

a person familiar with the area could locate the Pipeline Pasture with reasonable certainty.

Accordingly, the settlement agreement does not violate the Statute of Frauds.

D. Failure of consideration

Willman argues the settlement agreement is unenforceable for failure of consideration

because Mary Lee elected to proceed to a jury trial on the will contest. “[A] failure of consideration

occurs when, because of some supervening cause arising after the contract is formed, the promised

performance fails.” Cheung-Loon, LLC v. Cergon, Inc., 392 S.W.3d 738, 747 (Tex. App.—Dallas

2012, no pet.). Importantly, however, “[i]t is a fundamental principle of contract law that when

one party to a contract commits a material breach of that contract, the other party is discharged or

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excused from further performance.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d

195, 196 (Tex. 2004) (per curiam).

In this case, Willman revoked his consent to the settlement agreement long before Mary

Lee agreed to proceed to trial on the merits of the will contest. Even assuming Mary Lee’s actions

constitute a failure of consideration, such failure is immaterial in light of the fact that Mary Lee

was excused from further performance after Willman refused to perform under the settlement

agreement. Therefore, the settlement agreement is not unenforceable for failure of consideration.

E. Conclusion

Because we conclude each of Willman’s arguments regarding enforceability of the

settlement agreement lacks merit, we hold the settlement agreement, including the waiver of

appellate rights, is enforceable. We need not reach the merits of Willman’s first and second issues;

instead, we grant Mary Lee’s motion to dismiss this appeal based on waiver.

Conclusion

Because the parties entered into an enforceable Rule 11 agreement waiving their right to

appellate review of the final judgment, we grant Mary Lee’s motion to dismiss this appeal.

Rebeca C. Martinez, Justice

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