                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00716-CV

                                          John MAGNESS,
                                              Appellant

                                                 v.

                                         Sheppard BAKER,
                                             Appellee

                   From the 83rd Judicial District Court, Val Verde County, Texas
                                       Trial Court No. 32335
                            Honorable Robert Cadena, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: April 10, 2019

AFFIRMED

           John Magness appeals a summary judgment in favor of Sheppard Baker declaring all leases

Magness purported to have on property owned by Baker to be void and unenforceable. Magness

presents four issues on appeal contending the trial court erred by: (1) denying his motion to enforce

a settlement agreement; (2) not allowing him to amend his pleadings; (3) not allowing him to

redraft his affidavit; and (4) granting summary judgment. We affirm the trial court’s judgment.
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                                             BACKGROUND

         On January 13, 2016, Magness filed a petition in district court seeking a declaratory

judgment asserting Baker had breached a “verbal lease” allowing Magness to hunt and fish on

Baker’s property in Val Verde County. Baker filed an answer containing a general denial and

asserting the affirmative defense of statute of frauds, contending any alleged verbal lease was

unenforceable under the statute of frauds. Baker also filed a counter-claim against Magness

asserting the parties entered into a 2010 limited written lease agreement for fishing and a 2011

limited written lease agreement for hunting, and Magness breached both leases. Baker requested

a declaratory judgment that Magness breached the written lease agreements. Baker also noted in

his answer that he had filed a separate suit for forcible detainer that was pending in the justice

court.

         On July 2, 2016, after a “couple of days” of trial in justice court on Baker’s forcible detainer

suit, the parties announced they had reached a settlement. Magness’s attorney announced on the

record before the court that the settlement was “the mutual dismissal of the respective lawsuits that

have been brought by the parties against each other,” including both the forcible detainer action

and the claims filed in district court, and a mutual release. After an off-the-record-discussion, the

attorneys went back on the record to discuss Baker’s intentions to retract and cancel some leases

and powers of attorney he signed during the course of the litigation. The record then reflects the

following:

            THE COURT: Okay. So, as I understand it, you’re going to negotiate a whole
         new lease?

             MR. JOHNSON [Magness’s attorney]: We’re going — yeah, we’re going to
         —

            MR. STERN [Baker’s attorney]: We’re going to do a — we’re going to make
         some amendments so that neither one can kick the other off the property — okay
         — and, also, so that Mrs. Magness — maybe through corporate structure or


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       whatever y’all want to do — so she’s protected somehow in case something
       happens to her husband.

           MR. JOHNSON: The two 99-year leases for the hunting and fishing are intact;
       but the terms and conditions, we’re going to modify and change so they’ll be in
       accordance with the parties’ wishes now.
           Anything else, Mr. Stern?

           MR. STERN: No. I think that’s it.

           MR. JOHNSON: Well, thank you again very much for helping us out here.

           THE COURT: You are very welcome.

       On August 1, 2016, Magness dismissed his claims in the district court lawsuit. Baker’s

counter-claims, however, were not dismissed.

       On January 24, 2017, Magness filed a motion in the district court seeking to enforce the

settlement agreement announced on the record in justice court. Baker, who had retained new

counsel, filed a response to the motion on February 24, 2017, asserting the parties never reached a

binding settlement agreement. On February 28, 2017, Magness filed a reply to Baker’s response.

On April 10, 2017, the trial court held a hearing and signed an order denying Magness’s motion.

       On September 13, 2017, Baker filed a second amended counter-claim, asserting any alleged

verbal lease was unenforceable under the statute of frauds. Baker also requested the trial court

declare the 2010 and 2011 written leases to be void under the statute of frauds because they

contained inadequate property descriptions. Alternatively, Baker requested the trial court to

declare the leases were cancelled and terminated due to Magness’s breach of their terms. Baker

also pled numerous other claims.

       On June 1, 2018, Baker filed an amended motion for summary judgment asserting: (1) any

alleged verbal leases are unenforceable under the statute of frauds because they are contracts to

lease real estate for a period longer than one year, and the written leases are unenforceable under

the statute of frauds because the property descriptions are inadequate; (2) the leases are


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unenforceable on unconscionability grounds; (3) the leases were terminated based on Magness’s

breach of their terms by: (a) constructing improvements; (b) hunting animals other than deer; and

(c) failing to make timely payments.

       On July 10, 2018, Magness filed a response to Baker’s amended motion for summary

judgment asserting: (1) Baker provided the property descriptions, and the parties’ mutual mistake

requires the written leases to be reformed to correct the property descriptions; (2) the written leases

are enforceable based on partial performance; (3) Baker should be estopped to deny the settlement

reached by the parties in justice court agreeing to dismiss the claims; and (4) the written leases are

not unconscionable.     With regard to the alleged breaches, Magness contended Baker gave

permission for the improvements and the hunting of additional animals, and Magness paid all

amounts owed under the leases.

       On July 17, 2018, the trial court held a hearing on Baker’s amended motion for summary

judgment. On that same day, Magness filed an answer to Baker’s second amended counter-claim

asserting a general denial. Also on that same day, Baker filed a reply in support of his amended

motion for summary judgment, asserting Magness could not defeat summary judgment based on

unpled affirmative defenses, including estoppel and partial performance.            Baker also filed

objections to Magness’s summary judgment evidence.

       At the hearing on Baker’s amended motion for summary judgment, Magness’s attorney

requested permission to amend his answer to plead the affirmative defenses relied on in his

response, and the trial court verbally denied the request. At the conclusion of the hearing, the trial

court granted Baker’s motion. The trial court’s judgment declares any leases Magness purported

to have on Baker’s property to be void and unenforceable. The trial court’s judgment also declares

that “even if any such leases existed in the past, they were breached by John Magness and are

currently expired by their own terms.” Magness appeals the trial court’s judgment.


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                                      MOTION TO ENFORCE

       In his first issue, Magness contends the trial court erred in denying his motion to enforce

the settlement agreement.     Baker responds Magness’s motion to enforce was not a proper

procedure to pursue a claim alleging breach of a settlement agreement. Baker further contends the

settlement agreement dictated into the record did not contain all essential terms.

       This court has repeatedly held “‘the only method available for enforcing a settlement

agreement is through summary judgment or trial. To allow enforcement of a disputed settlement

agreement simply on motion and hearing would deprive a party of the right to be confronted by

the appropriate pleadings, assert defenses, conduct discovery, and submit contested fact issues to

a judge or jury.’” In re Estate of Dean, No. 04-17-00009-CV, 2018 WL 1072359, at *3 (Tex.

App.—San Antonio Feb. 28, 2018, pet. denied) (quoting Gamboa v. Gamboa, 383 S.W.3d 263,

269-70 (Tex. App.—San Antonio 2012, no pet.)).

       More importantly, however, a contract is not enforceable unless the court can determine

the parties’ legal obligations and liabilities. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d

218, 221 (Tex. 1992); Am.’s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.—

San Antonio 1996, writ denied). In order to be enforceable, the parties must have agreed on the

contract’s material terms. T.O. Stanley Boot Co., 847 S.W.2d at 221; Am.’s Favorite Chicken Co.,

929 S.W.2d at 622. If an essential term is left open for future negotiation, the contract is not

binding. T.O. Stanley Boot Co., 847 S.W.2d at 221; Am.’s Favorite Chicken Co., 929 S.W.2d at

622. Stated differently, “[w]hen an agreement leaves material matters open for future adjustment

and agreement that never occur, it is not binding on the parties and merely constitutes an agreement

to agree.” Martin v. Martin, 326 S.W.3d 741, 749 (Tex. App.—Texarkana 2010, pet. denied).

Whether an agreement fails for indefiniteness is a question of law we review de novo. Martin,

326 S.W.3d at 747; Am.’s Favorite Chicken Co., 929 S.W.2d at 622.


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       Here, during the hearing before the justice court, the attorneys for both parties stated the

written leases would be amended, leaving the essential terms of those amendments open for future

negotiation. Absent an agreement regarding the proposed amendments, we cannot determine the

parties’ legal obligations and liabilities under the leases. Accordingly, the settlement agreement

merely constituted an agreement to agree and is not binding or enforceable. See T.O. Stanley Boot

Co., 847 S.W.2d at 221; Martin, 326 S.W.3d at 749; Am.’s Favorite Chicken Co., 929 S.W.2d at

622.

       Magness’s first issue is overruled.

                                      SUMMARY JUDGMENT

       In his fourth issue, Magness contends the trial court erred in granting Baker’s amended

motion for summary judgment. In arguing this issue, Magness cites portions of the summary

judgment evidence relating to “the issue of non-payment” and “the issue of improvements and

whether there was permission for those improvements.” Magness then concludes the trial court

erred in granting the motion “because there were material issues of fact to be resolved by the jury.”

       In his brief, Magness has only challenged the summary judgment on the grounds that he

did not breach the written leases, and he addresses only two of the three breaches raised in Baker’s

motion. Also, Magness does not address the other grounds raised in Baker’s motion, including

statute of frauds and unconscionability.

       “‘An appellant must attack every ground upon which summary judgment could have been

granted to obtain a reversal.’” Irving v. Church of Christ Boerne, Tex., No. 04-15-00616-CV, 2016

WL 1464209, at *4 (Tex. App.—San Antonio Apr. 13, 2016, pet. denied) (mem. op.) (quoting

Krueger v. Atascosa Cty., 155 S.W.3d 614, 621 (Tex. App.—San Antonio 2004, no pet.)). “If the

appealing party fails to challenge a ground on which the movant asserted a right to summary

judgment in the trial court, we ‘need not review the merits of the challenged ground and may affirm


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on an unchallenged ground.’” Id. Because Baker moved for summary judgment on grounds

Magness does not challenge on appeal, we must affirm the trial court’s judgment on the

unchallenged grounds. 1 Id.

                                         AMENDMENT TO ANSWER

        In his second issue, Magness contends the trial court erred in denying his request to amend

his answer to add the affirmative defenses of “estoppel, part performance and quantum meruit.”

Magness contends Baker would not be prejudiced or surprised because he referenced the same

affirmative defenses in his response to Baker’s original motion for summary judgment, and that

response was on file seven months before the hearing on Baker’s amended motion for summary

judgment.

        “A trial court has the discretion to refuse a trial amendment when the amendment asserts a

new cause of action or defense, and therefore, is prejudicial on its face, and the opposing party

objects to the amendment.” Geis v. Colina Del Rio, LP, 362 S.W.3d 100, 116 (Tex. App.—San

Antonio 2011, pet. denied). And, a request for a trial amendment should be denied “when it

appears that the new matter was known to the party seeking to file the amendment.” Id.

        Here, Magness clearly sought to assert a new defense through a trial amendment, and Baker

objected to the amendment. At the summary judgment hearing, Baker’s attorney argued that if the

affirmative defenses had been affirmatively pled, “we would have conducted discovery on them

and we would have raised points about them; but none of that is even proper argument today,

because it wasn’t pled.” In addition, Magness’s assertion of the affirmative defenses in his

response to Baker’s original motion showed he knew about those defenses seven months before



1
  In his third issue, Magness contends the trial court erred in granting Baker’s objections to his summary judgment
evidence. Because we affirm the summary judgment based on Magness’s failure to challenge each of the grounds
raised in Baker’s motion, we need not further address Magness’s third issue. See TEX. R. APP. P. 47.1.


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the hearing on Baker’s amended motion. We need not, however, decide if the trial court abused its

discretion in denying the trial amendment because none of the affirmative defenses pertained to

the unconscionability ground asserted in Baker’s amended motion. Because Magness did not

challenge that independent ground for summary judgment in his brief, error, if any, in denying his

request for a trial amendment would be harmless.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Sandee Bryan Marion, Chief Justice




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