ACCEPTED 13-15-00306-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/20/2015 7:43:27 AM Dorian E. Ramirez CLERK
CAUSE NO. 13-15-00306-CV
INTHE FILED IN 13th COURT OF APPEALS COURT OF APPEALSCORPUS CHRISTI/EDINBURG, TEXAS 10/20/2015 7:43:27 AM FOR THE DORIAN E. RAMIREZ Clerk
THIRTEENTH DISTRICT
CORPUS CHRISTI, TEXAS
ROBERTO VAZQUEZ APPELLANT v. MARIA ANGELICA VAZQUEZ APPELLEE
APPELLANT'S AMENDED REPLY BRIEF
KATRINA DANNHAUS PACKARD SBN: 15402400 P. 0. BOX 11 9 SCHULENBURG, TEXAS 78956 TEL: (979) 743-4574 FAX: (979) 743 -4575 EMAIL: kdpwall(a)cvctx.com ATTORNEYS FOR APPELLANT
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................ . 1 INDEX OF AUTHORITIES .................................................... . .. 11 CORRECTION TO ANGLICA'S STATEMENT OF FACTS ................ . 1 S~Y OF ~GUMENT .............................................................. . 2 REPLY ISSUE 1. The trial court abused its discretion by not enforcing the intent of the parties in the mediated settlement agreement .... . 3 2. The trial court abused its discretion by acting arbitrarily or unreasonably, without reference to any guiding rules and principles; i.e., ruling without supporting evidence ........... 4 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 INDEX OF AUTHORITIES
Cases Evans v. Evans, 14 S.W. 3d 343 (Tex. App - Houston [1st Dist.] 2000, no pet.) ................................................ 5 Frost Nat'/ Bankv. L & F Distribs., 165 S.W. 3d 310 (Tex. 2005) (per curiam) ................................................................................ 3 Richardson v. Richardson, 424 S.W. 3d 691, 696 (Tex. App - El Paso 2014, no pet.) ................................................ ........ ........... 4 SP Terrace, L.P. v. Meritage Homes of Texas, LLC, 334 S.W. 3d 275 (Tex. App. Houston [1st Dist] 2010, no pet.)................................................ 4
Statutes Tex. Fam. Code Ann §7. 00 1 .......................................................................... 3
Other Authorities Black's Law Dictionary, 5th Ed. 1979 ........................................................... 2
ii AMENDED REPLY BRIEF TO RESPONSE ISSUES PRESENTED
A. CORRECTION TO ANGELICA'S STATEMENT OF FACTS
In Angelica's Statement of Facts, she misstates the record as to whether
Robert provided any evidence of his efforts to apply for a loan.
The court record evidences that on January 13, 2015, Roberto filed a Motion
to Set Aside the Mediated Settlement Agreement based upon its specific and
contractual terms and provided the Court with a Wells Fargo Application and
Denial of Loan. CR 55-66. In the subsequent hearings Roberto testified that he
had applied for a loan (and was denied) to Tex Star. 3 RR 20:2-23; 21 :2-25. The
court record further reflects that Roberto also made application for a loan (and was
denied) to the Fayette Savings Bank. CR 114-136. The court record evidences that
Roberto made application for a loan (and was denied) to the Fayetteville Bank. CR
137-157.
Duke Hengst, Senior Vice President of Loans at National Bank & Trust
testified that Roberto did timely make an application on November 26 for a loan in
the amount of $250,000.00. RR 3:9. Angelica agrees that a full and complete
reading of the record presented by this appeal reveals that the bank officer could
not state whether or not Roberto would have secured the loan. RR 3: 17-18.
1 Nonetheless, the trial court abused its discretion by not considering the
evidence and setting aside the mediated settlement agreement based on the
agreement's terms and provisions.
SUMMARY OF ARGUMENT
Angelica agrees in her brief that the mediated settlement agreement was
enforceable between the parties. However, she focuses on the distinction between
"effort" and "best effort", arguing that Roberto breached the mediated settlement
agreement because he withdrew his loan application at the National Bank & Trust.
The mediated settlement agreement is void of any specific terms, banks or
financial institutions in which Roberto was limited in making a loan application to
fulfill the requirements of the mediated settlement agreement. The use of effort, as
defined by both parties in their briefs to this Court reflect the use of 'an attempt; an
endeavor, a struggle directed to the accomplishment of an object". Blacks Law
Dictionary, 5th Ed. 1979. There is more than sufficient evidence that Roberto used
his 'efforts' in his attempt to 'secure a loan'. He made applications at four financial
institutions. He withdrew one application and was denied a loan at the remaining
three financial institutions.
Therefore, Angelica's argument has no merit and the trial court abused its
discretion in not enforcing the terms of the mediated settlement agreement.
2 In addition, Angelica argues that the trial court has discretion to divide the
community property. Texas Family Code§ 7.001 Nonetheless, the trial court did
not have the discretion to set aside the mediated settlement agreement and, without
receiving any evidence, make a division of community property.
Based on the evidence and the actions of the trial court, Roberto requests
this Court to reverse and remand this matter to the trial court to follow the dictate
of the Texas Supreme Court in its rulings as to mediated settlement agreement.
REPLY ISSUE NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ENFORCING THE INTENT OF THE PARTIES IN THE MEDIATED SETTLEMENT AGREEMENT
Angelica does not dispute the enforceability of the mediated settlement
agreement as provided in her argument to this court. Angelica argues that this
Court must 'ascertain and give effect to the parties' intentions as expressed in the
document. Frost Nat'! Bank v. L & F Distribs., 165 S.W. 3d 310, 311-12 (Tex.
2005) (per curiam). As shown in the mediated settlement agreement the 'intent' of
the parties was specific in the language of the agreement itself:
The Parties agree that this Agreement is expressly contingent upon Roberto getting the loan necessary to allow him to pay Angelica the $250,000.00 required by this Agreement and in the event he is not able to secure such a loan, this Agreement shall be of no further force and effect.
CR27.
3 Roberto agrees with Angelica that this Court must give contractual terms
their plain, ordinary, and generally accepted meaning unless the contract shows
that the parties intended a different meaning to control. See SP Terrace, L.P. v.
Meritage Homes of Texas, LLC, 334 S.W. 3d 275, 281 (Tex. App. - Houston [1st
Dist.] 2010, no pet. The contractual terms and the intent of the parties is stated
clearly in the mediated settlement agreement: the agreement was contingent upon
Roberto getting the loan and if he is not able to secure such a loan, then the
agreement shall be ofno further force and effect. CR 27.
The intent between the parties could not be more clear. Roberto did not
breach the mediated settlement agreement. The evidence is clear that he was
unable to secure a loan. Therefore, the trial court abused its discretion by not
following the intent of the parties and setting aside the mediated settlement
agreement.
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ACCEPTED 13-15-00306-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 10/20/2015 7:43:27 AM Dorian E. Ramirez CLERK
CAUSE NO. 13-15-00306-CV
INTHE FILED IN 13th COURT OF APPEALS COURT OF APPEALSCORPUS CHRISTI/EDINBURG, TEXAS 10/20/2015 7:43:27 AM FOR THE DORIAN E. RAMIREZ Clerk
THIRTEENTH DISTRICT
CORPUS CHRISTI, TEXAS
ROBERTO VAZQUEZ APPELLANT v. MARIA ANGELICA VAZQUEZ APPELLEE
APPELLANT'S AMENDED REPLY BRIEF
KATRINA DANNHAUS PACKARD SBN: 15402400 P. 0. BOX 11 9 SCHULENBURG, TEXAS 78956 TEL: (979) 743-4574 FAX: (979) 743 -4575 EMAIL: kdpwall(a)cvctx.com ATTORNEYS FOR APPELLANT
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................ . 1 INDEX OF AUTHORITIES .................................................... . .. 11 CORRECTION TO ANGLICA'S STATEMENT OF FACTS ................ . 1 S~Y OF ~GUMENT .............................................................. . 2 REPLY ISSUE 1. The trial court abused its discretion by not enforcing the intent of the parties in the mediated settlement agreement .... . 3 2. The trial court abused its discretion by acting arbitrarily or unreasonably, without reference to any guiding rules and principles; i.e., ruling without supporting evidence ........... 4 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 INDEX OF AUTHORITIES
Cases Evans v. Evans, 14 S.W. 3d 343 (Tex. App - Houston [1st Dist.] 2000, no pet.) ................................................ 5 Frost Nat'/ Bankv. L & F Distribs., 165 S.W. 3d 310 (Tex. 2005) (per curiam) ................................................................................ 3 Richardson v. Richardson, 424 S.W. 3d 691, 696 (Tex. App - El Paso 2014, no pet.) ................................................ ........ ........... 4 SP Terrace, L.P. v. Meritage Homes of Texas, LLC, 334 S.W. 3d 275 (Tex. App. Houston [1st Dist] 2010, no pet.)................................................ 4
Statutes Tex. Fam. Code Ann §7. 00 1 .......................................................................... 3
Other Authorities Black's Law Dictionary, 5th Ed. 1979 ........................................................... 2
ii AMENDED REPLY BRIEF TO RESPONSE ISSUES PRESENTED
A. CORRECTION TO ANGELICA'S STATEMENT OF FACTS
In Angelica's Statement of Facts, she misstates the record as to whether
Robert provided any evidence of his efforts to apply for a loan.
The court record evidences that on January 13, 2015, Roberto filed a Motion
to Set Aside the Mediated Settlement Agreement based upon its specific and
contractual terms and provided the Court with a Wells Fargo Application and
Denial of Loan. CR 55-66. In the subsequent hearings Roberto testified that he
had applied for a loan (and was denied) to Tex Star. 3 RR 20:2-23; 21 :2-25. The
court record further reflects that Roberto also made application for a loan (and was
denied) to the Fayette Savings Bank. CR 114-136. The court record evidences that
Roberto made application for a loan (and was denied) to the Fayetteville Bank. CR
137-157.
Duke Hengst, Senior Vice President of Loans at National Bank & Trust
testified that Roberto did timely make an application on November 26 for a loan in
the amount of $250,000.00. RR 3:9. Angelica agrees that a full and complete
reading of the record presented by this appeal reveals that the bank officer could
not state whether or not Roberto would have secured the loan. RR 3: 17-18.
1 Nonetheless, the trial court abused its discretion by not considering the
evidence and setting aside the mediated settlement agreement based on the
agreement's terms and provisions.
SUMMARY OF ARGUMENT
Angelica agrees in her brief that the mediated settlement agreement was
enforceable between the parties. However, she focuses on the distinction between
"effort" and "best effort", arguing that Roberto breached the mediated settlement
agreement because he withdrew his loan application at the National Bank & Trust.
The mediated settlement agreement is void of any specific terms, banks or
financial institutions in which Roberto was limited in making a loan application to
fulfill the requirements of the mediated settlement agreement. The use of effort, as
defined by both parties in their briefs to this Court reflect the use of 'an attempt; an
endeavor, a struggle directed to the accomplishment of an object". Blacks Law
Dictionary, 5th Ed. 1979. There is more than sufficient evidence that Roberto used
his 'efforts' in his attempt to 'secure a loan'. He made applications at four financial
institutions. He withdrew one application and was denied a loan at the remaining
three financial institutions.
Therefore, Angelica's argument has no merit and the trial court abused its
discretion in not enforcing the terms of the mediated settlement agreement.
2 In addition, Angelica argues that the trial court has discretion to divide the
community property. Texas Family Code§ 7.001 Nonetheless, the trial court did
not have the discretion to set aside the mediated settlement agreement and, without
receiving any evidence, make a division of community property.
Based on the evidence and the actions of the trial court, Roberto requests
this Court to reverse and remand this matter to the trial court to follow the dictate
of the Texas Supreme Court in its rulings as to mediated settlement agreement.
REPLY ISSUE NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ENFORCING THE INTENT OF THE PARTIES IN THE MEDIATED SETTLEMENT AGREEMENT
Angelica does not dispute the enforceability of the mediated settlement
agreement as provided in her argument to this court. Angelica argues that this
Court must 'ascertain and give effect to the parties' intentions as expressed in the
document. Frost Nat'! Bank v. L & F Distribs., 165 S.W. 3d 310, 311-12 (Tex.
2005) (per curiam). As shown in the mediated settlement agreement the 'intent' of
the parties was specific in the language of the agreement itself:
The Parties agree that this Agreement is expressly contingent upon Roberto getting the loan necessary to allow him to pay Angelica the $250,000.00 required by this Agreement and in the event he is not able to secure such a loan, this Agreement shall be of no further force and effect.
CR27.
3 Roberto agrees with Angelica that this Court must give contractual terms
their plain, ordinary, and generally accepted meaning unless the contract shows
that the parties intended a different meaning to control. See SP Terrace, L.P. v.
Meritage Homes of Texas, LLC, 334 S.W. 3d 275, 281 (Tex. App. - Houston [1st
Dist.] 2010, no pet. The contractual terms and the intent of the parties is stated
clearly in the mediated settlement agreement: the agreement was contingent upon
Roberto getting the loan and if he is not able to secure such a loan, then the
agreement shall be ofno further force and effect. CR 27.
The intent between the parties could not be more clear. Roberto did not
breach the mediated settlement agreement. The evidence is clear that he was
unable to secure a loan. Therefore, the trial court abused its discretion by not
following the intent of the parties and setting aside the mediated settlement
agreement.
REPLY ISSUE NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION BY ACTING UNREASONABLY WITHOUT REFERENCE TO ANY GUIDING RULES AND PRINCIPLES; I.E., RULING WITHOUT SUPPORTING EVIDENCE
Angelica further argues that the trial court has discretion make a division of
the parties' property upon divorce. Nonetheless, there is no evidence in the record
that the trial court had sufficient information upon which to exercise its discretion
in making a division of property. Richardson v. Richardson, 424 S.W. 3d 691,
4 696 (Tex. App. - El Paso 2014, no pet.). A trial court abuses its discretion by
acting arbitrarily or unreasonably, without reference to any guiding rules and
principles; i.e., ruling without supporting evidence. Evans v. Evans, 14 S.W. 3d
343, 345-46 (Tex. App. - Houston[14th Dist.] 2000, no pet. There was no
evidence that if Roberto was unable to secure a loan, the Court or the parties would
sell the community real property to satisfy the $250,000.00. The record is devoid
that the trial court received any evidence in order to allow it the discretion to render
an opinion in making a division of the property.
At the close of the hearing, through the aid of a Spanish speaking interpreter,
the trial court admonished Roberto and made the following findings of fact:
He agreed to pay her 250,000 in the mediated settlement agreement by a loan. And because be did not get that loan, I'm ordering the property sold so Ms. Vazquez can be paid the $250,000. 4 RR 38: 10-13. emphasis added.
I'm following their mediated settlement agreement. So even if they appeal and an appellate court would say I'm wrong, it comes back to me. I have discretion to divide it at that point. The property may be sold at that point to give them the money. I'm trying to save him money by making him understand that. And I don't know how I would divide all of this at that point because all of the assets, all of the debts, all of the property would be before me at that point for me to fully decide.
But the point is, at that point, the property might be sold then. This needs to be resolved. My ruling is as close to the mediated settlement as I could get. 44 RR 39: 1-16. emphasis added.
5 The evidence reflects that the trial court admits that it abused its discretion in
its statement on the record: So even if they appeal and an appellate court would
say I'm wrong, it comes back to me. I have discretion to divide it at that point. Id.
Therefore, by the trial court's own admission, it has abused its discretion.
Therefore, this Court should reverse and remand to the trial court to enforce the
terms of the mediated settlement agreement.
PRAYER
The trial court clearly abused its discretion by not giving effect to the parties
intentions as expressed in the mediated settlement agreement and by making a
division of community property without any supporting evidence. Therefore,
Roberto respectfully requests this Court to reverse the trial court's ruling, set aside
the mediated settlement agreement as provided by its terms and remand this matter
to the trial court consistent with the applicability of the law of Texas and for such
further relief to which Roberto Vazquez shows himself justly entitled.
6 Respectfully submitted, ~ ~w,> Put.IAJ... Katrina Dannhaus Packard Katrina Dannhaus Packard, P.C. SBN 15402400 523 North Main Street P. 0. Box 119 Schulenburg, Texas 78956 Tel: (979) 743-4574 Fax: (979) 743-4574 Email: kdpwall@cvctx.com
CERTIFICATE OF COMPLIANCE
As the attorney of record for Roberto Vazquez, Appellant, I certify that I have complied with Tex. R. App. Proc. 9.4 in the preparation and presentation of this brief to the Thirteenth Court of Appeals.
~~liu'.~L Katrina Dannhaus Packard
CERTIFICATE OF SERVICE
In accordance with Tex. R. Civ. Proc. 21a, a copy of this pleading is being provided, via e-filing, on the Ji>IL day of October, 2015 to the following counsel of record:
Ms. Deborah S. McClure P. 0. Box 968 Tahoka, Texas 79373 Fax: (806) 998-4863 Email: deborahm@huffaker-law.com
~ ~ClAAN fJM.t~I.. Katrina Dannhaus Packard