i i i i i i
MEMORANDUM OPINION
No. 04-07-00339-CV
Rolando Rafael SAENZ, Appellant
v.
Maria Graciela Saenz MARTINEZ, Individually and as Trustee for the Rolando Rafael Trust, and Pedro I. Saenz Jr., Appellees
From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2005-CVQ-000144-D4 Honorable O.J. Hale, Jr., Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Justice Karen Angelini, Justice Steven C. Hilbig, Justice
Delivered and Filed: November 5, 2008
AFFIRMED
Maria Graciela Saenz Martinez, Individually and as Trustee for the Rolando Rafael Trust,
and Pedro I. Saenz Jr. (“appellees”) sought to enforce a mediated settlement agreement by filing
traditional and no evidence motions for summary judgment. The trial court granted the motions and
Rolando Rafael Saenz (“Saenz”) appeals. We affirm the trial court’s judgment. 04-07-00339-CV
BACKGROUND
Pedro I. Saenz Sr. and Maria Del Refugio M. De Saenz created an irrevocable trust (“Trust”)
for the benefit of their son, Saenz. Saenz’s sister, Maria Graciela Saenz Martinez (“Martinez”) was
named trustee. Approximately ten years later, Saenz filed suit against his brother, Pedro I. Saenz Jr.,
and Martinez, alleging mismanagement of the Trust. Saenz’s daughters, Katherine Saenz and Amy
Saenz-Smith (“Intervenors”) filed a petition in intervention, alleging Saenz breached his fiduciary
duty as trustee of another trust created for their benefit. The parties mediated and on April 11, 2006,
signed a “Settlement Agreement and Release of All Claims.”1 However, at a scheduled status
hearing on May 4, 2006, Saenz claimed he no longer agreed to the settlement.
The trial court granted appellees’ motion to enter judgment based on the settlement
agreement; however, the court later granted Saenz’s motion for new trial. Appellees then filed an
amended answer, including a counterclaim seeking enforcement of the settlement agreement.
Appellees filed traditional and no evidence motions for summary judgment seeking to enforce the
settlement agreement. Saenz responded, reasserting his defenses and affirmative defenses, excepting
to the lack of specificity in the no evidence motion for summary judgment, and requesting a motion
for continuance. The trial court granted the motions for summary judgment.
ANALYSIS
No Evidence Motion for Summary Judgment – Rule 166(a)(i)
In his first issue, Saenz argues the trial court erred in granting summary judgment because
the no evidence motion for summary judgment filed by appellees was defective. While we agree the
1 … The settlement agreement was also signed by Saenz’s wife, Letty Almaraz Saenz, as a “non-litigant.” Counsel for Martinez and Saenz Jr. testified they had her sign the agreement to prevent any additional potential claims with regard to the matters.
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no evidence motion for summary judgment was flawed, sustaining this issue does not entitle Saenz
to relief.
Rule 166a(i) provides a party may move for summary judgment on the ground that there is
no evidence of one or more essential elements of a defense on which an adverse party has the burden
of proof, but the motion “must state the elements as to which there is no evidence.” TEX . R. CIV . P.
166a(i). The comment to the rule, which is “intended to inform the construction and application of
the rule,” states the motion “must be specific in challenging the evidentiary support for an element
of a . . . defense” and the rule “does not authorize conclusory motions or general no-evidence
challenges to an opponent’s case.” TEX . R. CIV . P. 166a(i) cmt. If a no evidence motion is
conclusory or does not specifically challenge a particular element of a defense, the motion is legally
insufficient. Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.–San Antonio 2000, pet.
denied).
Appellees’ no evidence motion stated: “In the instant case [Saenz] . . . will not be able to
produce any valid summary judgment evidence to support any defenses.”2 Appellees’ motion fails
to state the elements of Saenz’s affirmative defenses as to which there is no evidence, rendering the
motion legally insufficient to support a judgment. See id. at 3-4. However, this does not entitle
Saenz to a reversal because appellees also filed a traditional motion for summary judgment.
Appellees, as plaintiffs, were not required to conclusively disprove Saenz’s affirmative defenses to
prevail on their traditional motion. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
Rather, Saenz, as the party relying on affirmative defenses, was required to come forward with
2 … This was based on appellees’ erroneous assertion that Saenz had not pleaded any affirmative defenses. Saenz’s supplemental petition asserted several defenses, at least one affirmative defense, and incorporated the defenses and affirmative defenses pleaded in his motion for new trial.
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summary judgment evidence sufficient to raise a fact issue on each element of at least one
affirmative defense to avoid summary judgment. See id.; see also Nichols v. Smith, 507 S.W.2d
518, 520 (Tex. 1974) (quoting Torres v. Western Cas. & Sur. Co., 457 S.W.2d 50, 53 (Tex. 1970)
(holding “[t]here is one situation where the opponent of a summary judgment motion must come
forward himself to raise a fact issue by proof rather than allegation, the movant having presented no
proof on the issue, and that is to support the non-movant’s own affirmative defense.”)). The absence
of a legally sufficient no evidence motion for summary judgment does not relieve Saenz of this
burden because he bears this burden under the traditional motion for summary judgment.
Alleged Exclusion of Saenz’s Summary Judgment Evidence
Saenz contends in his second issue that the trial court erred in excluding his summary
judgment evidence. Appellees made numerous objections to Saenz’s summary judgment evidence,
but the record does not contain any trial court rulings on those objections. Nor is there any indication
in the record that the trial court failed to consider Saenz’s summary judgment evidence or actually
excluded any evidence. Given our mandate to conduct a de novo review and to take evidence
favorable to nonmovant as true, we shall review appellees’ summary judgment evidence to determine
whether they established their right to summary judgment as a matter of law and if so, whether
Saenz’s summary judgment evidence is competent and raises a genuine issue of material fact to
defeat summary judgment. See Browning v. Prostock, 165 S.W.3d 336, 344 (Tex. 2005); Am.
Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
Traditional Motion for Summary Judgment – Rule 166a(c)
In issues three through six, Saenz contends the trial court erred in granting appellees’
traditional motion for summary judgment because (1) appellees’ evidence was insufficient to prove
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as a matter of law the existence of a settlement agreement and breach of same by Saenz, and
(2) Saenz produced competent summary judgment evidence raising fact issues on numerous
affirmative defenses.3
Courts review de novo traditional motions for summary judgment. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A traditional motion for summary judgment is
properly granted only when the movant establishes there are no genuine issues of material fact and
it is entitled to judgment as a matter of law on the grounds expressly set forth in the motion.
Browning, 165 S.W.3d at 344. When reviewing an order granting a traditional motion for summary
judgment, courts take evidence favorable to nonmovant as true and indulge every reasonable
inference from the evidence in favor of the nonmovant. Grinnell, 951 S.W.2d at 425. Mere
suspicion or surmise is not a reasonable inference and will not qualify as summary judgment proof.
See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 198 n.1 (Tex. 1995).
Saenz first argues the trial court erred in granting appellees’ traditional motion for summary
judgment because appellees did not produce sufficient summary judgment evidence to establish as
a matter of law the existence of a settlement agreement or that Saenz breached it. Saenz contends
the only evidence produced by appellees in support of their motion was portions of Saenz’s
testimony from a hearing held before the motion for summary judgment was filed. Saenz is
incorrect. In their motion for summary judgment, appellees relied on not only the testimony referred
to by Saenz, but also on their pleading establishing they filed a counterclaim seeking to enforce the
3 … In trial court pleadings, Saenz raised eleven defenses and affirmative defenses. On appeal, however, he claims only that two defenses and five affirmative defenses preclude summary judgment. Accordingly, we will review the propriety of the trial court’s order granting summary judgment only with regard to those defenses and affirmative defenses raised below and presented as grounds for reversal on appeal. See San Jacinto River Auth. v. Duke, 783 S.W .2d 209, 210 (Tex. 1990) (holding appellate court may not reverse summary judgment absent properly assigned error).
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settlement agreement and the settlement agreement itself. The question is whether this evidence
established their right to judgment as a matter of law.
Saenz next contends appellees did not establish their right to judgment as a matter of law
because he raised fact issues regarding the settlement agreement’s enforceability, including his
withdrawal of consent to the agreement and an absence of consideration to support it – defenses as
opposed to affirmative defenses.4
Withdrawal of Consent
Appellees’ summary judgment evidence establishes the existence of a settlement agreement
signed by Saenz and all the other parties, before a notary public. Additionally, appellees included
as summary judgment evidence testimony from a hearing at which Saenz admitted he signed the
settlement agreement but, after he received money pursuant to the agreement, changed his mind and
sought to withdraw his consent.
A written settlement agreement may be enforced even if one party withdraws its consent
before judgment is rendered on the agreement. Mantas v. Fifth Ct. of App., 925 S.W.2d 656, 658
(Tex. 1996) (orig. proceeding) (per curiam) (citing Padilla v. LaFrance, 907 S.W.2d 454, 461
(Tex. 1995)). Where consent is lacking, a trial court may not render an agreed judgment on the
settlement agreement, but the party seeking enforcement may properly pursue a separate breach of
contract claim. Mantas, 925 S.W.2d at 658. This mode of enforcement is based on rule 11 of the
Texas Rules of Civil Procedure, the requisites of which are necessary for entry of any judgment
4 … An affirmative defense attempts to establish an independent reason to deny a plaintiff’s recovery. Hong Kong Dev., Inc. v. Nguyen, 229 S.W .3d 415, 457 n.41 (Tex. App.–Houston [1st Dist.] 2007, no pet.). It is a defense of avoidance as opposed to a defense in denial. Id. In other words, when asserting an affirmative defense, a defendant admits the validity of the plaintiff’s claim, but contends that despite its validity other reasons exist to deny the plaintiff recovery. See id.
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enforcing a settlement agreement. Padilla, 907 S.W.2d at 460 (citing Kennedy v. Hyde, 682 S.W.2d
525, 528 (Tex. 1984)).
Here, the summary judgment evidence shows a settlement agreement, signed by all parties,
and filed with the papers of the court as part of the record before enforcement was sought. See TEX .
R. CIV . P. 11; Padilla, 907 S.W.2d at 460-61 (holding settlement agreement must comply with rule
11 to be enforceable and holding rule 11 filing requirement is met if settlement agreement is filed
before it is sought to be enforced). The evidence further establishes appellees sought enforcement
by filing a counterclaim to enforce the agreement by specific performance. See Mantas, 925 S.W.2d
658. The settlement agreement is complete in that it contains the essential terms – payment to Saenz
and others of certain sums of money from the trust in exchange for execution of mutual releases and
indemnification agreements. See CherCo Props., Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d
262, 266 (Tex. App.–Fort Worth 1999, no pet.) (holding that settlement agreement contained all
material terms where it included terms of payment and statement that parties would execute mutual
releases). Saenz’s subsequent withdrawal of consent5 to the agreement, though undisputed, does not
raise a fact issue negating the enforceability of the agreement and precluding summary judgment.
Absence of Consideration
Saenz also contends appellees did not establish their right to judgment as a matter of law
because he raised a fact issue regarding the absence of consideration. Saenz argues there was no
consideration to support the settlement agreement because he got nothing more than what Martinez
5 … Saenz’s own summary judgment proof establishes his withdrawal of consent was subsequent to the execution of the settlement agreement. At the May 11, 2006 hearing, Saenz admitted that on April 11th, the day the agreement was executed, he wanted the settlement and that he changed his mind only after he received the money promised him under the agreement.
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“was already obligated to given him, i.e., distribution of trust money for his necessary living
expenses.” We disagree.
Consideration is an essential element of any valid contract. J.M. Davidson, Inc. v. Webster,
128 S.W.3d 223, 235 (Tex. 2003); MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes,
Inc., 179 S.W.3d 51, 61-62 (Tex. App.–San Antonio 2005, pet. denied). Consideration is a
“bargained-for” exchange of promises. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496
(Tex. 1991). It can be either a benefit to the promisor or a detriment to the promisee. Fort Worth
Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 841 (Tex. 2000). It can consist of a right,
interest, profit, or benefit that accrues to one party, or some forbearance, loss, or responsibility
undertaken or incurred by the other party. Copeland v. Alsobrook, 3 S.W.3d 598, 606 (Tex.
App.–San Antonio 1999, pet. denied). Even an exchange of promises is sufficient consideration in
Texas. Id.
In the settlement agreement, Martinez, as trustee, agreed to pay Saenz $34,000.00 from the
Trust and disburse to him sixty percent of any income or revenue received by the Trust within ten
days of receiving same, until a successor trustee was appointed or she resigned. These terms of
distribution differ from the Trust provisions, which gave the trustee full discretion “to accumulate
all or part of the net income, or, to distribute any part of the income or principal for the maintenance,
comfort, health, education and welfare” of Saenz. The only limitation was that the trustee endeavor
“insofar as possible” “to maintain that standard of living to which [Saenz] is accustomed.” Saenz
benefitted by converting what had been a discretionary distribution by the trustee into a mandatory
distribution of income. This benefit was sufficient consideration to support the settlement
agreement. See Super-Cold Sw. Co. v. Green & Romans, 185 S.W.2d 749, 753 (Tex. Civ. App.–Fort
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Worth 1945, no writ) (holding that payment of deferred installments of purchase price before
maturity was consideration). In return, Saenz agreed to execute a release and indemnification
agreement disposing of his claims arising out of or connected to the Trust. The settlement agreement
also included Martinez’s agreement to resign as trustee. This benefitted Saenz because he no longer
had to pursue removal proceedings. See TEX . PROP . CODE ANN . § 113.082 (Vernon 2007).
Intervenors also released their claims against Saenz, constituting another benefit to him. Any one
of these benefits or forbearances was sufficient consideration to support the agreement. See Allen
v. Am. Gen. Finance, Inc., 251 S.W.3d 676, 688 (Tex. App.–San Antonio 2007, pet. filed) (holding
that one consideration will support multiple promises); Birdwell v. Birdwell, 819 S.W.2d 223, 228
(Tex. App.–Fort Worth 1991, writ denied) (same). Appellees met their burden of showing
consideration for the agreement and Saenz did not produce any summary judgment proof creating
a fact question on the issue.
Affirmative Defenses
We next determine whether Saenz produced competent summary judgment evidence raising
fact issues on the affirmative defenses of duress, anticipatory breach, fraud, and unconscionability.
As the party relying on affirmative defenses, it was incumbent upon Saenz to produce summary
judgment evidence sufficient to raise a fact issue on each element of at least one of his affirmative
defenses. See Brownlee, 665 S.W.2d at 112; Nichols, 507 S.W.2d at 520.
Duress
Saenz first contends he raised a fact issue to defeat summary judgment based on the
affirmative defense of duress. See TEX . R. CIV . P. 94 (stating duress is affirmative defense); see also
Hardin v. Hardin, 597 S.W.2d 347, 348 (Tex. 1980) (describing duress as affirmative defense).
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“Duress is a threat to do some act which the threatening party has no legal right to do.” Brown v.
Aztec Rig Equip., Inc., 921 S.W.2d 835, 845 (Tex. App.–Houston [14th Dist.] 1996, writ denied).
There can be no claim of duress unless (1) a party makes a threat or takes an action without legal
justification, (2) the threat or action was of such a character as to destroy the opposing party’s free
will, (3) the opposing party’s free will is overcome and he is caused to do that which he would not
otherwise do and was not legally bound to do, (4) the threat of action was imminent, and (5) the
opposing party had no present means of protection from the threat or action. McMahan v.
Greenwood, 108 S.W.3d 467, 482 (Tex. App.–Houston [14th Dist.] 2003, pet. denied). The
opposing party’s “compulsion” to assent “must be actual and imminent, and not merely feigned or
imagined.” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006).
Saenz argues he was under economic duress because after he filed suit Martinez cut off his
trust funds, which were his only source of income. In support of his defense, Saenz provided his
own affidavit testimony, his testimony from the May 11, 2006 hearing, and his wife Letty’s affidavit.
The thrust of this evidence was:
•after Saenz filed suit against appellees, Martinez did not disburse trust funds to him for several months and then later disbursed $500.00 a month instead of the $1,000.00 to $3,000.00 a month he received before he filed suit
•without disbursement at their pre-suit level, Saenz lacked sufficient funds to support himself or his family, which forced him to sign the settlement agreement
•Saenz was unable to work and support his family and had to “get loans and beg[] for help from friends and christian brothers and christian sisters”
But the affidavits also established Saenz had been able to prosecute his lawsuit despite the
withholding of funds, had employed an attorney to help advise him, participated in a day-long
mediation with assistance of counsel, and signed the settlement agreement only after consultation
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with his attorney. There was also evidence that Saenz’s attorney previously had been successful in
persuading Martinez to resume payments, though at a reduced level. Access to professional
assistance and a party’s decision to negotiate are factors to be considered when measuring a claim
of duress. Sudan, 199 S.W.3d at 292-293.
We do not find any evidence of an imminent threat that overcame Saenz’s free will and from
which he had no present means of protection. See McMahan, 108 S.W.3d at 482; see also Sudan,
199 S.W.3d at 292-293 (holding that ex-husband’s threats to withhold contractual alimony did not
constitute imminent duress and absence of means of protection because ex-wife had adequate time
to consult with accountant and attorney and chose to negotiate amendment to contract rather than
enforce existing agreement).
Saenz also claimed duress based on threats of criminal prosecution relating to his alleged
misappropriation of funds from his daughters’ trust in his capacity as trustee. Generally, threats of
criminal prosecution may support a claim of duress for purposes of setting aside a contract. See
Kalyanaram v. Burck, 225 S.W.3d 291, 302 (Tex. App.–El Paso 2006, no pet.). Such threats or
actions must be imminent. McMahan, 108 S.W.3d at 482.
There is no evidence of an imminent threat at the time Saenz entered into the settlement
agreement. Saenz’s own summary judgment evidence establishes his daughters had taken their
misappropriation complaints to the Webb County District Attorney before mediation began. There
is no evidence that during the mediation Intervenors or appellees threatened continued pursuit of
criminal charges if Saenz refused to settle. In fact, evidence from the May 11, 2006 hearing
established it was Saenz who requested the settlement agreement include a provision that Intervenors
would “insure that the criminal complaints be withdrawn.” In the absence of evidence raising a fact
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issue about an imminent threat or action, Saenz’s claim of duress based on the alleged criminal
complaint cannot be used to invalidate the settlement agreement. See id.
Anticipatory Breach
Under the doctrine of repudiation or anticipatory breach, a party’s performance under a
contract is excused if the opposing party has repudiated the contract. Burford v. Pounders, 145 Tex.
460, 199 S.W.2d 141, 144-45 (1947); Chapman v. Olbrich, 217 S.W.3d 482, 491 (Tex.
App.–Houston [14th Dist.] 2006, no pet.). To prove the affirmative defense of anticipatory breach
of contract, the nonrepudiating party must show (1) words or actions by the alleged repudiating party
establishing an intent not to perform the contract according to its terms, (2) a lack of excuse for the
non-performance, and (3) damage. See Valdina Farms, Inc. v. Brown Beasley & Assocs., Inc.,
733 S.W.2d 688, 692 (Tex. App.–San Antonio 1987, no writ).
Saenz contended Martinez breached the settlement agreement by failing to comply with the
provision that required her, as trustee, “to disburse to Rolando Rafael Saenz as Beneficiary sixty
percent (60%) of any income or revenue received by the Trust within ten (10) days of her receipt of
said income or revenue.” In support of his affirmative defense, Saenz again relies on his affidavit,
the affidavit of his wife, and the record of the May 11, 2006 hearing. Saenz stated in his affidavit
that Martinez “did not pay over to me the 60 percent of trust income within 10 days.” In her
affidavit, Saenz’s wife’s was more specific, claiming Martinez did not pay Saenz sixty percent of
the Trust income based on rents from an apartment complex that the Trust had an interest in and
failed to pay income for oil and gas royalties. However, none of this evidence shows the Trust
actually received any income requiring disbursement from the time the settlement agreement was
signed to Saenz’s own attempted withdrawal of consent. Moreover, Saenz admitted under oath
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during the May 11, 2006 hearing that appellees complied with the terms of the settlement agreement.
When asked if either appellee “did something to invalidate this agreement,” Saenz replied that he
simply changed his mind. Even if it could be argued that Saenz’s evidence raises a fact issue as to
whether Martinez intended to comply with the settlement agreement, Saenz failed to produce
summary judgment evidence establishing the other two required elements of anticipatory breach.
Because Saenz failed to produce evidence to raise a fact issue on each element of his affirmative
defense, he did not sustain his burden.
Fraud
Saenz claims the settlement agreement should not be enforced because he produced evidence
raising a fact issue on the affirmative defense of actual and constructive fraud. His fraud defense is
based on his contention that he was fraudulently induced to enter the settlement agreement by
Martinez’s misrepresentations regarding, and nondisclosure of, the value of the Trust and its assets.
Actual fraud exists when one makes a false, material representation, knowing it is false or
without knowledge of the truth, to another with the intent that it be relied upon and it is relied upon,
resulting in damage. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Constructive
fraud or “[f]raud by nondisclosure is simply a subcategory of fraud.” Schlumberger Tech. Corp. v.
Swanson, 959 S.W.2d 171, 181 (Tex. 1997). The elements of fraud by nondisclosure therefore
require (1) a deliberate failure to disclose material facts, (2) by one who had a duty to disclose such
facts, (3) to another who was ignorant of the facts and did not have an equal opportunity to discover
them, (4) with the intent the listener act or refrain from acting, and (5) the listener relies on the
nondisclosure resulting in injury. 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc.,
245 S.W.3d 488, 507 n.27 (Tex. App.–Houston [14th Dist.] 2007, pets. denied).
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The only “failure to disclose” raised by the summary judgment is Martinez’s alleged failure
to provide Saenz with an accounting. While Martinez, as trustee, was certainly under a duty to
provide Saenz with an accounting in accordance with the Texas Property Code, Saenz did not adduce
summary judgment evidence he relied on this failure in deciding whether to enter into the settlement
agreement. See TEX . PROP . CODE ANN . § 113.151 (Vernon 2007). There is no evidence of the
element of reliance to support Saenz’s affirmative defense of constructive fraud.
In support of his claim of actual fraud, Saenz again points to his affidavit and that of his wife.
A close inspection of these documents reveals two alleged misrepresentations of material fact
concerning the alleged value of certain Trust property sold by Martinez in her capacity as trustee:
(1) Martinez told Saenz the sale of a ranch was at “the going rate for that land” and at “the fair
market price or value,” and (2) Martinez told Saenz she got a fair price for an apartment complex
that was sold. Saenz’s summary judgment proof raised an issue of fact on reliance only with regard
to the statement about the value of the ranch: “If I would have known the true fair value of my ranch
acres . . . I would never have signed the Settlement Agreement and Release of Claims.” Saenz
provided no summary judgment proof of reliance regarding the alleged misrepresentation of the
value of the apartment complex. We therefore need only consider whether Saenz raised fact issues
on the other elements of fraud with regard to the representation about the ranch.
To show Martinez’s statement about the value of the ranch was false, Saenz stated in his
affidavit that the Trust was only paid $395.00 per acre for the ranch when “the amount [sic] fair price
should have been at least $2,500.00 per acre.” Texas courts have held that an owner of real property
is qualified to testify about the value of real property. See Porras v. Craig, 675 S.W.2d 503, 504
(Tex. 1984); Stein v. Killough, 53 S.W.3d 36, 44 (Tex. App.–San Antonio 2001, no pet.). “Even an
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owner’s testimony, however, is subject to some restrictions.” Id. For a property owner to qualify
as a witness, his testimony “must show that it refers to market, rather than intrinsic or some other
value of the property.” Porras, 675 S.W.2d at 504-05; Stein, 53 S.W.3d at 44. This requirement is
usually met if the owner testifies he is familiar with the market value of his property. “Market value”
is the price property would bring if offered for sale by one who desires, but is not obligated to sell,
and is bought by one who is under no obligation to buy. Exxon Corp. v. Middleton, 613 S.W.2d 240,
246 (Tex. 1981).
Saenz did not provide any summary judgment proof of the market value of the ranch. He
never testified he was familiar with the market value of the ranch. See id. We therefore hold he has
not produced any evidence to raise a fact issue as the falsity of Martinez’s representation about the
value of the ranch.
Having failed to raise a fact issue on each element of his affirmative defenses of actual and
constructive fraud, Saenz failed to sustain his summary judgment burden.
Unconscionability
Saenz claims the trial court erred in granting summary judgment because he raised a fact
issue on the unconscionability of the agreement and its violation of public policy. Saenz bases his
affirmative defense of unconscionability on the “great disparity of bargaining power” between
himself and Martinez. This defense is based solely on Saenz’s claim that he had no choice but to
enter into the settlement agreement because of Martinez’s control over disbursements from the Trust.
Saenz’s unconscionability arguments represent little more than a recasting of his duress defense, for
which he failed to present any evidence raising an issue of fact. However, out of an abundance of
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caution and in the interest of justice, we shall review this issue under the law applicable to
unconscionability.
“As a general rule, the term ‘unconscionability’ describes a contract that is unfair because
of its overall one-sidedness or the gross one-sidedness of one of its terms.” Olshan Found.
Repair Co. v. Ayala, 180 S.W.3d 212, 214-215 (Tex. App.–San Antonio 2005, pet. denied). An
unconscionable contract is unenforceable. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 135-36
(Tex. App.–Waco 2005, pet. denied). Unconscionability has two aspects: (1) procedural
unconscionability, which concerns the circumstances surrounding the bargaining process, and
(2) substantive unconscionability, which concerns the fairness of the resulting agreement. See Ayala,
180 S.W.3d at 215 n.1. Saenz had the burden to raise fact issues on both procedural and substantive
unconscionability. See McCalla, 167 S.W.3d at 136. “Unconscionability” has no precise definition
because it is a determination to be made in light of the entire atmosphere in which the agreement was
made, the alternatives, if any, available to the parties at the time the contract was made, the
nonbargaining ability of one party, whether the contract was illegal or against public policy, and
whether the contract is oppressive or unreasonable. McCalla, 167 S.W.3d at 136; In re Big 8
Food Stores, Ltd., 166 S.W.3d 869, 877 (Tex. App.–El Paso 2005, orig. proceeding). These factors
are assessed as of the time the contract was entered. McCalla, 167 S.W.3d at 136.
We have searched Saenz’s summary judgment evidence to determine if he raised a fact issue
on any factor relating to unconscionability but have found none. Given that Saenz’s own evidence
proves he was represented by counsel, we cannot say he has raised a fact issue on disparate
bargaining positions. See Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 748 (Tex. App.–Fort
Worth 2005, no pet.) (holding no disparity in bargaining power where, among other things, party was
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represented by counsel). A disparity in bargaining power may also exist when one party has no “real
choice” but to accept the agreement offered. In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 232-33
(Tex. 2008) (citing Allright, Inc. v. Elledge, 515 S.W.2d 266, 267 (Tex. 1974)). But as we held in
our discussion concerning duress, Saenz failed to raise a fact issue regarding his inability to bargain.
Nor did Saenz present evidence to show the contract was against public policy. A contract violates
public policy if it is illegal or contrary to the best interest of the public. Johnson v. Structured Asset
Servs., LLC, 148 S.W.3d 711, 728 (Tex. App.–Dallas 2004, no pet.). Saenz’s arguments relate only
to disparity in bargaining. There are no arguments, much less evidence, that the settlement
agreement was illegal or somehow contrary to the public interest.
Finally, Saenz presented no evidence that would suggest the settlement agreement was
oppressive or unreasonable. While he certainly contends he might have been able to procure a more
favorable settlement if he had continued to receive his trust payments or had been privy to a full
accounting, the fact that a bargain may be less favorable than it might have been is no evidence of
unconscionability. See Big 8 Food Stores, 166 S.W.3d at 878 (holding that fact that bargain is “hard
one” does not entitle party to be relieved therefrom if it was assumed fairly and voluntarily).
We hold Saenz failed to raise an issue of fact as to either procedural or substantive
unconscionability. The trial court therefore did not err in granting summary judgment in the face of
Saenz’s claim of unconscionability.
Denial of Motion for Continuance to Obtain Additional Discovery
In his seventh issue, Saenz contends the trial court erred in failing to grant his motion to
continue the summary judgment hearing and compel appellees to answer certain discovery before
the hearing. Within this issue Saenz refers this court to the section of his brief regarding his
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affirmative defense of fraud. From this we glean that Saenz claims that if he had been given a
continuance and discovery had been compelled, he would have been able to obtain and produce
additional evidence to support his fraud contention.
The trial court may order a continuance of a summary judgment hearing to allow a party
additional time to conduct discovery. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161
(Tex. 2004). We review a trial court’s order denying a motion for continuance for abuse of
discretion. Id. An abuse of discretion occurs only when the trial court reaches a decision “so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id. In our review,
we may consider, among other things: the length of time the case has been on file, the materiality
and purpose of the discovery sought, and whether the party seeking the continuance exercised due
diligence to obtain the discovery sought. Id.
In his motion for continuance, Saenz complained that Martinez had not provided sufficient
responses to his discovery requests and attached his requests for production, interrogatories, and
Martinez’s responses thereto. He simultaneously filed a motion to compel responses. When Saenz
filed these motions, his suit, which included allegations of fraud, had been on file for more than two
years. While Saenz explained he expected any compelled discovery responses to reveal evidence
of fraud, he made no showing that he exercised due diligence to obtain this information. There were
no discovery requests until almost eight months after Saenz first indicated his intent to withdraw
from the settlement agreement. The record reflects no attempt to compel Martinez to respond until
after appellees had moved for summary judgment and Saenz had filed his amended summary
judgment response. Under these circumstances we cannot say the trial court’s denial was an abuse
of discretion.
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Cumulative Error
Saenz complains in the last paragraph of the substantive portion of his brief that the alleged
trial court errors constitute cumulative error requiring reversal. This complaint is not listed in his
statement of issues. Saenz provides no argument nor any authority in support of this position. See
TEX . R. APP . P. 38.1(h) (requiring clear and concise argument for contention made with citations to
authorities and to the record). Despite the briefing deficiency, we review this complaint.
Some courts have recognized a “cumulative-error doctrine” in situations where the record
shows multiple errors that considered in isolation would not entitles a party to reversal, but in
combination might give rise to reversible error. Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 424
(Tex. App.–Eastland 2006, no pet.). This court has recognized the doctrine, but we hold it does not
apply in this case because we have found no error by the trial court with respect to the previous
issues asserted by Saenz. See Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc.,
131 S.W.3d 113, 124 (Tex. App.–San Antonio 2004), aff’d, 159 S.W.3d 87 (Tex. 2005).
Accordingly, this contention is overruled.
CONCLUSION
We hold appellees established the existence of a valid settlement agreement as a matter of
law and Saenz has failed to raise an issue of fact precluding summary judgment. We further hold
the trial court did not abuse its discretion in denying Saenz’s motion for continuance and to compel
discovery. Accordingly, we affirm the trial court’s summary judgment in favor of appellees.
Steven C. Hilbig, Justice
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