Luz Chavez, Individually, and as Representative of the Estates of Rudolph Chavez, Sr. (Deceased) and Rudolph Chavez, Jr. (Deceased), and as Next Friend of Joel Chavez, a Minor Darlene Chavez Allen Chavez Francisco Chavez And Celia Chavez v. Kansas City Southern Railway Co. and Jose Juarez

Opinion

ACCEPTED 04-14-00354-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/21/2015 12:53:43 AM KEITH HOTTLE CLERK

NO. 04-14-00354-CV

The Court of Appeals FILED IN 4th COURT OF APPEALS For The Fourth District of Texas SAN ANTONIO, TEXAS 01/21/2015 12:53:43 AM At San Antonio KEITH E. HOTTLE Clerk ____________________________________________________________________________

Luz Chavez, Individually, and as Representative of the Estates of Rudolph Chavez, Sr. (Deceased) and Rudolph Chavez, Jr. (Deceased), And, as Next Friend of Joel Chavez, a Minor; Darlene Chavez; Allen Chavez; Francisco Chavez and Celia Chavez,

APPELLANTS,

V.

Kansas City Southern Railway Company and Jose Juarez,

APPELLEES.

_________________________________________________________

Appeal from the 406th Judicial District Court, Webb County, Texas

Honorable Oscar J. Hale, Jr., Judge Presiding

___________________________________________________________________

APPELLANTS’ REPLY BRIEF ___________________________________________________________________

Mark Alvarado State Bar No. 01126520 Law Office of Mark Alvarado 9600 Escarpment Blvd., Suite 745 Austin, Texas 78749 Telephone: (512) 287-9469 Facsimile: 512-582-8651 ATTORNEY FOR APPELLANTS TABLE OF CONTENTS

TABLE OF CONTENTS ..………………………………………………...........................i

INDEX OF AUTHORITIES ..………………………………………………....................ii

I. ISSUES PRESENTED BY APPELLEES ………………………………………….1

ISSUE 1: Did the trial court commit error in approving the settlement in

favor of Joel Chavez, minor Plaintiff …………………………………….2

ISSUE 2: Did the trial court commit error in granting summary judgment

enforcing a settlement of claims of the adult Plaintiffs.................................1

II. STATEMENT OF FACTS…………………………………………………………..1

III. SUMMARY OF ARGUMENT……………………………………………………...1

IV. ARGUMENT & AUTHORITIES

A. Argument and Authorities Regarding Issue One………………………………2

B. Argument and Authorities Regarding Issue Two………………………………5

V. PRAYER…………………………………………………………………………...9

i INDEX OF AUTHORITIES

CASES Cruse v. O’Quinn, 273 S.W.3d 766 (Tex. App.- Houston 2008)…………………………………8 Dardas v. Fleming, Hovenkamp & Grayson, P.C,. 194 S.W.3d 603, 613 (Tex. App.-Houston [14th Dist.]…………………………………………………………...8 DiFrancesco v. Houston Gen. Ins. Co., 858 S.W.2d 595, 598 (Tex. App.- Texarkana 1993, no writ)…………………………………………………….9 In re Kasschau, 11 S.W.3d 305, 312 (Tex. App.-Houston [14th Dist.] 1999, orig proceeding)…………………………………………………………………….9 In re Parker, 20 S.W.3d 812, 816 (Tex.App.—Texarkana 2000, no pet.)………………………..6 Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, 148-49 (1947) MAROY INTERNATIONAL, INC. v. Cantu, No. 04-12-00193-CV (Tex. App. Mar. 20, 2013)……………………………………………………………….10 Miller v. Long-Bell Lumber Co., 148 Tex. 160, 222 S.W.2d 244, 246 (Tex. 1949)………………………………………………………........................8 Park v. Essa Tex. Corp., 311 S.W.2d 228, 229 (Tex. 1958)………………………………………6 Patterson v. City of Bellmead, No. 1-12-00357-CV, Court of Appeals—Waco, 2013…………………………………………………………………….9

RULES TEX. R. APP. 33.1 (d)…………………………………………………………….........................5

TEX. R. APP. 33.1 (a)…………………………………………………………….........................5

TEX. R. APP. 38.1 (B)……………………………………………………………………………1

Tex. R. Civ. P. 324 (a)…………………………………………………………….........................6

TEX. R. EVID. Rule 201………………………………………………………………………….4

TEX. R. EVID. Rule 173.3………………………………………………………………………..3

Texas Rules of Disciplinary Conduct, Section 1.02 (a) (2)………………………………8

ii I. ISSUES PRESENTED BY APPELLEES

ISSUE 1: Did the trial court commit error in approving the settlement in favor of Joel Chavez, minor Plaintiff?

ISSUE 2: Did the trial court commit error in granting summary judgment enforcing the settlement of claims of the adult Plaintiffs?

II. STATEMENT OF FACTS

Pursuant to Tex. R. App. P. 38.2 (1) (B), Appellants are dissatisfied with

Appellees’ Statement of Facts, and refer this Court to Appellants’ Brief for a

proper rendition of the facts underlying this appeal. Among discrepancies in

Appellees Brief, Appellees erroneously contend information received after the

judgment was rendered, found in case notes written by Intervenors, constitute

facts.

III. SUMMARY OF ARGUMENT

Appellees contend that this is a Rule 11 case; however, because the case is

presented as a result of a summary judgment rendered on a Defendants’ counter-

claim for breach of an alleged settlement contract, it is not a Rule 11 case.

Appellees maintain that the trial court properly approved the settlement in favor of

Joel Chavez, a minor, based on the testimony of a duly appointed guardian ad litem

because the husband was verbally appointed to serve as co-guardian ad litem and

1 his name appears on the judgment. However, because the rules specifically require

that a guardian ad litem must be appointed by written order, and the husband of the

attorney who was properly appointed by written order to serve as guardian ad litem

made the in-court recommendation in this case, not the appointed attorney, the

judgment as to the minor, Joel Chavez, was entered in error. Appellees also

contend that Appellants waived this issue by not raising it prior to appeal;

however, the issue was raised at the February 6, 2024 hearing on the motion for

summary judgment, and in the motion for new trial they filed, thereafter. RR: 1

(2014): 6, and Page 27; C.R. 2:382, 386, respectively.

A. Argument & Authorities Regarding Appellees Issue Number One

Did the trial court commit error in approving the settlement in favor of Joel Chavez, the minor Plaintiff?

Appellees contend that because Edward Maddox is referred to in an original

and subsequent judgment, his appointment was proper. The trial court committed

error, however, in approving the settlement because the trial court rendered the

instant judgment before this Court on the recommendation of attorney Edward

Maddox, on May 31, 2011, at a time when there was no written court order

appointing him as a guardian ad litem. Rule 173.3(b), expressly requires the trial

court to make appointments by written order, not written judgment. And, Mr.

2 Maddox’s recommendation was made at a time when he was not under oath. RR

2:10-11.1 The trial court signed only one order appointing a guardian ad litem in

this case, and was attorney Adriana Benavidez Maddox. The Order was signed by

the trial Judge on November 18, 2010. C.R. 2:156.

Also, Appellees dispute that the motion requesting that the Court appoint a

guardian ad litem was filed by Rosenthal & Watson, P.C. C.R.1:43. The fact that

Rosenthal & Watson, P.C. filed this motion is important because it is evidence that

attorney Christopher Dean was working as their agent when he sent the letter

which forms the basis of Appellees Alleged Rule 11 agreement, and the Judgment

rendered in the instant appeal. In fact, the Motion for Appointment of Guardian

Ad Litem was filed by Rosenthal & Watson, P.C., and signed by Christopher

Dean. See Appendix “A.”2 Although the actual motion is not included in the

appellate record, the Civil Case Docket Sheet, page 43, clearly indicates that on

November 15, 2011, a “Motion for the appointment of guardian ad litem

attached with Fiat and Order/Rec’d and sent to court coordinator.” (emphasis 1 After this matter was first considered by this Court and the case was Reversed and Remanded, Appellees filed a counter-claim and a Motion for Summary Judgment. At the hearing on the Motion for Summary Judgment on that counter-claim, no guardian ad litem appeared, and the Court stated that he was relying on the previous recommendation. Later that day, the parties received a Motion to Withdraw as Guardian Ad Litem signed by Adriana Benavidez Maddox, in which she notes that the cause for her withdrawal is that a significant portion of her law practice is now dedicated to working for Appellee, Kansas City Southern Railway Company. This motion was requested by Appellants, but not included by the Clerk of the Court. For this reason, Appellants requested that the Court take judicial notice of the records in the District Clerk’s file, in accordance with Texas Rule of Evidence 201. 2 As Appellants have already requested that the Court take judicial notice of the District Clerk’s file, this filed motion would be included in that request. 3 added). It is evident that the Order, which was made a part of the record in

Appellees Motion for Summary Judgment, C.R. 2: 159-160, is typed in Times

Roman font, as are all of Rosenthal & Watson, P.C.’s pleadings. See, for example,

Plaintiffs Second Amended Original Petition, C.R. 1: 72. On the other hand, all of

the pleadings filed by counsel for Appellees that are part of the appellate record are

typed in a different font, and identification of the case is made numerically, only,

not as indicated on the lower left hand of the Order Appointing Guardian Ad

Litem. Thus, Appellees insistence that the motion was filed by Appellees,

apparently in an effort to promote the theory that the letter he wrote and signed,

which contains no material terms besides who gets what amount of money.

Furthermore, additional proof that Christopher Dean was working as an

agent for Rosenthal & Watson, P.C. is the fact that Lynn Watson made several

appearances on the record at hearing in this case, in the Summer of 2010, (May 31,

2010, R. R. 2: 8, and June 23, 2011, R.R. 3:4, subsequent to the date of the October

5, 2010 date of the alleged settlement contract; Christopher Dean made none.

And, with respect to Appellees argument that Appellants waived this issue

because it is raised for the first time on appeal, Appellants specifically raised the

issue in their Motion for New Trial. C.R. 2:381, 386. Further, Appellants also

contend that the properly appointed guardian ad litem failed to provide testimony

supporting the judgment at the hearing on the subject motion for summary

4 judgment, held on February 2014. RR 1:28. Finally, with respect to whether the

Appellants properly preserved error for appeal, a party does not need to file a

motion for new trial to preserve most errors in a nonjury trial. Tex. R. Civ. P. 324

(a); Park v. Essa Tex. Corp., 311 S.W.2d 228, 229 (Tex. 1958); See TEX. R. APP.

33.1 (a). There is no need to complain in a motion for new trial about factual

insufficiency of the evidence. See TRCP 324 (b)(2), (4); In re Parker, 20 S.W.3d

812, 816 (Tex.App.—Texarkana 2000, no pet.). These issues can be raised for the

first time in the appeal of a nonjury trial without a motion for new trial. See TEX.

R. APP. 33.1 (d), relating to sufficiency of evidence complaints in nonjury cases.

B. Argument & Authorities on Appellees’ Issue Two

ISSUE 2: Did the trial court commit error in granting summary judgment

enforcing the settlement of claims of the adult Plaintiffs?

Appellees contend that the trial court properly granted summary judgment

enforcing the Rule 11 settlement agreement as to the other Plaintiffs. And, they

contend that none of the Plaintiffs submitted summary judgment evidence creating

a fact issue as to whether Christopher Dean, “their attorney” who signed the Rule

11 agreement, had authority to do so. For the first time, at the hearing on

Defendants’ Motion for Summary Judgment, Appellees raised the argument that

Appellants denial of consent to settle mentioned only Rosenthal & Watson, P.C.,

the law firm that they hired to represent them, and not Christopher Dean. This

5 argument fails, however because Appellants filed undisputed sworn affidavits

specifically referring to Christopher Dean’s lack of authority in support of their:

1. Motion for Continuance dated May 31, 2011, C.R. 1:103, and

2. Motion for Reconsideration, dated June 2, 2011, C.R. 1:105 and

3. Motion for New Trial, filed July 25, 2011, C.R. 1:118, with Affidavit of

Plaintiff Luz Chavez, C.R. 1:12.

In the Response to Motion for Summary Judgment, filed in the instant

appeal, Appellants deny consenting to settle their claims, generally; and, this denial

of authority would necessarily extend to the law firm’s agent, Christopher Dean.

Further Appellants made it clear, through undisputed sworn testimony, that they

did not give Christopher Dean the authority to settle their claims in their Motion

for New trial, filed on March 6, 2014, 1:391, 1:394, 1:395, and 1:397.

Appellees argue that the instant appeal carries a presumption of authority,

any such alleged authority is expressly rebutted by the sworn statements listed

above. Further, Appellees fail to address Appellants affirmative defense

arguments and summary judgment proof. Appellants sworn statements have

established the affirmative defense of coercion/duress by the Rosenthal & Watson,

P.C. law firm, which the trial court ignored. In Appellants Motion for New Trial,

filed on March 6, 2014, Appellants discussed, in Appendix E of the motion, newly

6 discovered evidence of a Memorandum from private investigator Poncho Gonzalez

that verifies sworn statements in which Appellant Luz Chavez details a pattern of

abuse, which establishes that the family had terminated the services of the law

firm, prior to the date of the alleged agreement. The pattern of abuse thrust upon

the family in an effort to gain settlement is a clear breach of fiduciary duty on the

part of the law firm, in violation of Section 1.02 (a) (2) of the Texas Rules of

Disciplinary Conduct, which requires, that a lawyer shall abide by a clients

decisions whether to accept an offer of settlement of a matter. While the

Disciplinary Rules of Professional Conduct do not give rise to a private cause of

action, a court may deem these rules to be an expression of public policy, so that a

contract violating them is unenforceable as against public policy. See., e.g., Cruse

v. O’Quinn, 273 S.W.3d 766 (Tex. App.- Houston 2008); Dardas v. Fleming,

Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 613 (Tex. App.-Houston [14th

Dist.] 2006, pet. denied). It has long been recognized that "`[a] contract to do a

thing which cannot be performed without violation of the law' violates public

policy and is void." In re Kasschau, 11 S.W.3d 305, 312 (Tex. App.-Houston

[14th Dist.] 1999, orig. proceeding) (quoting Lewis v. Davis, 145 Tex. 468, 199

S.W.2d 146, 148-49 (1947)). The rationale behind this rule is not to protect or

punish either party to the contract, but to benefit and protect the public. Id. Courts

will not enforce agreements that are illegal and void. See., e.g., Miller v. Long-Bell

7 Lumber Co., 148 Tex. 160, 222 S.W.2d 244, 246 (Tex. 1949) (recognizing the

general principal that "courts will not lend their aid in enforcing illegal

contracts"); DiFrancesco v. Houston Gen. Ins. Co., 858 S.W.2d 595, 598 (Tex.

App.-Texarkana 1993, no writ) ("It is a familiar law of contracts that an illegal

agreement is unenforceable.").

Appellees argue that Rule 11 cases apply to the instant appeal, and that in

accordance with the mandate of this Court in the Court’s Memorandum Opinion,

delivered February 13, 2013, they have “cured” the deficiency which constrained

the Court from ruling that the trial court’s rendering an agreed judgment on the

alleged settlement agreement was error. It must be remembered, however, that the

first appeal reviewing the facts in this case concerned a determination of the trial

court’s rending an agreed judgment, based on a Rule 11 agreement. The case now

before the Court, however, is a case brought for review on an alleged breach of

contract counter-claim, which was filed by Appellees. Like any other breach of

contract claim, a claim for breach of a settlement agreement is subject to the

established procedures of pleading and proof. Patterson v. City of Bellmead, No.

1-12-00357-CV, Court of Appeals—Waco, 2013. At issue this time around, then,

are issues which must be framed within the context of the pleading and proof

requirements of a basic breach of contract claim. Id. A settlement agreement is a

contract, and its construction is governed by legal principles applicable to

8 contracts, generally. MAROY INTERNATIONAL, INC. v. Cantu, No. 04-12-

00193-CV (Tex. App. Mar. 20, 2013).

V. PRAYER

WHEREFORE, Appellants Luz Chavez, Individually, and as Representative

of the Estates of Rudolph Chavez, Sr. (Deceased) and Rudolph Chavez, Jr.

(Deceased), And, as Next Friend of Joel Chavez, a Minor; Darlene Chavez; Allen

Chavez; Francisco Chavez and Celia Chavez, pray that this court reverse the

judgment of the trial court, and render the judgment that the trial court should have

rendered as to the minor child, Joel Chavez, and reverse the judgment of the trial

court, and dismiss the case as to the remaining adult Appellees.

Respectfully submitted,

/s/ Mark Alvarado By: ___________________________ Mark Alvarado State Bar No. 01126520 Law Office of Mark Alvarado 9600 Escarpment Blvd., Suite 745 Austin, Texas 78749 Telephone: (512) 287-9469 Facsimile: 512-582-8651 alvarado_mark@hotmail.com ATTORNEY FOR APPELLANTS

9 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served on all parties through their respective attorneys of record, in accordance with the Texas Rules of Civil Procedure, via efile.texcourts.gov electronic mail, and/or facsimile, on this the 20th day of January, 2015, as follows:

Merritt Clements Donato D. Ramos, Sr. Strasburger Law Offices of Donato D. Ramos 2301 Broadway St., P. O. Box 452009 San Antonio, Texas 75215 Laredo, Texas 78045-2009 Phone (210) 250-6005 Phone (956) 722-9909 Fax (210) 258-2717 Fax (956) 727-5884 merrit.clements@strasburger.com Attorneys for Defendants Kansas City Southern Railway and Jose Juarez

Lynn Watson Rosenthal & Watson, P.C. 6601 Vaught Ranch Road, Suite 200 Austin, Texas 78730-2309 lwatson@rosenthalwatson.com Attorney for Intervenor Rosenthal & Watson, PC

Matthew Wagner Bartlett & Schober, P.C. 1611 Nueces Street Austin, Texas 78701 512-474-7678 512-597-3510 Fax mwagner@bartlettschober.com Attorney for Mr. Ron Satija Trustee for Estate of Rosenthal & Watson, PC /s/ Mark Alvarado _____________________ Mark Alvarado

10 Appendix A

1 CAUSE NO. 2007-CVE000347D4

LUZ CRA VEZ, INDIVIDUALLY AND AS § IN THE DISTRICT COURT OF REPRESENTATIVE OF THE ESTATES OF § RUDOLPH CHAVEZ, SR. (DECEASED) § and RUDOLPH CHAVEZ, JR. (DECEASED) § AND AS NEXT FRIEND OF JOEL CHA VEZ,§ A MINOR; DARLENE CHAVEZ; ALLEN § WEBB COUNTY, TEXAS CRA VEZ; FRANCISCO CRA VEZ; and § CELIA CRA VEZ § § VS. § § KANSAS CITY SOUTHERN RAILWAY § 406TH JUDICIAL DISTRICT COMPANY and JOSE JUAREZ §

MOTION FOR THE APPOINTMENT OF A GUARDIAN AD LITEM

TO THE HONORABLE JUDGE OF 406TH DISTRICT COURT:

Plaintiffs, Luz Chavez, Individually and as Representative of the Estates of Rudolph

Chavez, Sr. (deceased), and Rudolph Chavez, Jr. (deceased), and as next friend of Joel Chavez, a

minor (11 years of age), Darlene Chavez, Allen Chavez, and Celia Chavez, hereby file this

Motion for Appointment of Guardian Ad Litem and would respectfully show the court as

follows:

I.

Because Joel Chavez is a minor, and because Luz Chavez is the only living biological

parent of Joel Chavez, it will be necessary to appoint a Guardian ad Litem to represent his

interests herein.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Luz Chavez, Individually and

as Representative of the Estates of Rudolph Chavez, Sf. (deceased), and Rudolph Chavez, Jr.

(deceased), and as next friend of Joel Chavez, a minor, Darlene Chavez, Allen Chavez, and Celia

Chavez, pray that the Court appoint a Guardian Ad Litem to address Luz Chavez's minor child's interests herein, and Plaintiffs pray for such other and further relief, both legal and equitable,

general and special, to which they may be justly entitled.

ROSENTIW..& WATSON, P.C. I t.>C~ fw.S}..•. By ~b})M-( ~ State Bar No. 17281450

J. Lynn Watson State Bar No. 20761510

Christopher Dean State Bar No. 00793596

Mark Alvarado State Bar No. 01126520

6601 Vaught Ranch Road, Suite 200 Austin, Texas 78730 Telephone: . (512) 477-2275 Telecopier: (512) 474-2667

OF COUNSEL: ATTORNEYS FOR PLAINTIFFS Richard E. Pena Raymond State Bar Associate No. 24057659 Supervising Attorney: Jose Santiago Solis 304 Latour Drive Laredo, Texas 78041 Telephone: (956) 286-9500 Telecopier: (956) 712-1297

Jose M. Rubio, Jr. State Bar No. 17362100 1000 Washington, Suite 1 Laredo, TX 78040 Telephone: (956) 712-2223 Telecopier: (956) 712-2225

No. 2007-CVE-000347-D4; Luz Chavez, et al. v. Kansas City Southern Railway Company and Jose Juarez; In the 406'h Judicial District o/Webb County, Texas Motion for the Appointment orA Guardian ad Litem Page 2 of3 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing pleading was served on all attorneys of record, in accordance with the Texas Rules of Civil Procedure, on this the Vi~ day of November, 2010, as follows:

VIA ELECTRONIC FILING and VIA TELECOPIER: FAX NO. (956) 523-5074 Mr. Manuel Gutierrez Webb County District Clerk 1110 Victoria, Suite 402 Laredo, Texas 78040

VIA TELECOPIER: FAX NO. (210) 250-6100 Mr. Merritt Clements SJRASBURGER& PRICE,LLP 300 Convent Street, Suite 900 San Antonio, Texas 78205-3715

VIA TELECOPIER: FAXND. (956) 727-5884 Donato D. Ramos, Sr. Law Offices of Donato D. Ramos, P.L.L.C. Texas Community Bank Bldg., Suite 350 6721 McPherson Road Laredo, Texas 78041 P.O. Box 452009 Laredo, Texas 78045-2009

tLJ, ChristoPher'i::= ~/~~~ I

No. 2007-CVE-000347-D4; Luz Chavez, et al. v_ Kansas City Southern Railway Company and Jose Juarez; In the 40&h Judicial District of Webb County, Texas Motion (or the Appointment orA Guardian ad Litem Page S of B