                                                                        ACCEPTED
                                                                   07-14-00346-CV
                                                       SEVENTH COURT OF APPEALS
                                                                AMARILLO, TEXAS
                                                             12/29/2014 1:52:35 PM
                                                                 Vivian Long, Clerk



           No. 07-14-00346-CV
                                                  FILED IN
                                           7th COURT OF APPEALS
                                               AMARILLO, TEXAS
           In the Court of Appeals         12/29/2014 1:52:35 PM
for the Seventh District of Texas at   Amarillo VIVIAN LONG
                                                    CLERK



           JANE T. DURHAM
                  Appellant
                      V.

    MARGARET L. DUNHAM, et. al.
                  Appellees




 On Appeal from the 237th District Court,
          Lubbock County, Texas
          Cause No. 2013-509,100


           APPELLANT’S BRIEF
                IDENTITIES OF THE PARTIES AND COUNSEL

APPELANT

Jane T. Durham

Represented on appeal by:

Michael Sales
Texas Bar No. 17532060
1601 Broadway
Lubbock, TX 79401
Tel. (806) 763-9493
Fax. (806) 744-5411
Sales5ralls@aol.com

APPELLEE

Margaret L. Durham, Nancy C. Stewart, David Durham, and Barbara Flourney.

Represented on appeal by:

Aubrey J. Fouts
Texas Bar No. 07315000
P.O. Box 5187
Lubbock, TX 79408
Tel. (806) 741-0373
Fax. (806) 741-1491
ajfpat@nts-online.net




Page | i of Appellant’s Brief No. 07-14-00346-CV
                               TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL………….............................................i

TABLE OF CONTENTS…………………………………………………………..ii

INDEX OF AUTHORITIES…………………………………………………...iii-iv

APPELLANT’S STATEMENT OF THE CASE………………………………...1-2

ISSUE PRESENTED………………………………………………………………2

BRIEF ANSWER…………………………………………………………………..2

STATEMENT OF FACTS……………………………………………………….3-6

SUMMARY OF ARGUMENT…………………………………………………….6

ARGUMENTS………………………………………………………………….7-16

CONCLUSION…………………………………………………………………...16

PRAYER………………………………………………………………………16-17

SUBMITTAL……………………………………………………………………..17

CERTIFICATE OF SERVICE……………………………………………………18

CERTIFICATE OF COMPLIANCE……………………………………………..18

APPENDIX……………………………………………………………….TAB A-E
   1. Clanin v. Clanin, 918 S.W.2d 673 (Tex. App. – Fort Worth 2013, no pet)




Page | ii of Appellant’s Brief No. 07-14-00346-CV
                              INDEX OF AUTHORITIES

CASES

Aland v. Martin,
      271 S.W.3d 424 (Tex. App. – Dallas 2013)…………………………….…..7

BMC Software Belg., N.V. v. Marchand,
    83 S.W.3d 789 (Tex. 2002)………………………………………………..7-8

Burnaman v. Heaton,
     240 S.W.2d 288 (Tex. 1951)…………………………………………….…14

Buxani v. Nussbam,
     940 S.W.2d 350, 352 (Tex. App. – San Antonio 1997, no writ)……………9

City of Keller v. Wilson,
       168 S.W.3d 802, 807 (Tex. 2005)…………………………………………..8

Clanin v. Clanin,
      918 S.W.2d 673 (Tex. App. – Fort Worth 2013, no pet.)………………14-15

Ford Motor Co. v. Castillo,
     279 S.W. 656 (Tex. 2009)………………………………………………….14

General Metal Fabricating Corp. v. Stergiou,
     No. 01-11-00460-CV, 2013 WL 522849 (Tex. App. Houston [1st Dist] 2013,
     no pet.)………………………………………………………………………9

Marathon Corp. v. Pitzner,
     106 S.W. 3d 724 (Tex. 2003)…………………………………………….….8

McCalla v Baker’s Campground Inc.,
    416 S.W.3d 416 (Tex. 2013)………………………………………………...9

Padilla v. LaFrance,
      907 S.W.2d 454 (Tex. 1995)……………………………………………..9,14

Page | iii of Appellant’s Brief No. 07-14-00346-CV
Pulley v. Milberger,
      198 S.W.3d 418 (Tex. App. – Dallas 2006, pet. denied)……………………7

Roberson v. Robinson,
     768 S.W.2d 280 (Tex. 1989)………………………………………………...8

Samples Exterminators v. Samples,
     640 S.W.2d 873 (Tex. 1982)……………………………………………….14

Six RMA Partners v. Sibley,
      111 3.W.3d 46 (Tex. 2003)………………………………………………..7-8

T.O Stanley Boot Co., Inc. v. Bank of El Paso,
      847 S.W.2d 218 (Tex. 1992)………………………………………………...9

Worford v. Stamper,
     801 S.W.2d 108 (Tex. 1990)………………………………………………7-8

RULES OF PROCEDURE

TEX. R. APP. P. 11……………………………………………...1-2, 4-6, 9-10, 14-16




Page | iv of Appellant’s Brief No. 07-14-00346-CV
TO THE HONORABLE COURT OF APPEALS:

                                                I.

                   APPELLANT’S STATEMENT OF THE CASE

       This case involves a family dispute over the rights to moneys and to real

property. The Appellant was the original plaintiff and counter defendant. The

Appellee was the original defendant and counter plaintiff. Plaintiff’s Original

Petition alleged breach of fiduciary duty, fraud and conspiracy, conversion, and

theft liability; and requested the trial court establish a constructive trust and issue a

temporary restraining order; all in regards to Appellee’s withdrawal of the

Appellant’s life savings totaling around $103,000.00. TAB D. The trial court then

ordered a Temporary Injunction Hearing on November 8th, 2013. CR 7-10.

Defendant’s Original Answer generally denied the plaintiff’s original petition. CR

11-13. Defendant’s Original Counter Claim sought declaratory relief regarding the

Appellant’s capacity and Eileen Aiken’s influence on the Appellant. TAB E.

       At the November 8th, 2013, hearing, the parties agreed to settle their

disputes pursuant to Tex. R. Civ. Proc. R. 11 before Eileen Aiken expressly

disagreed with the terms expressed at the hearing (hereinafter referred to as

“Agreement”) (Tex. R. Civ. P. 11 hereinafter referred to as “Rule 11”). On

November 15th, 2013, the Appellant, Jane Durham, withdrew her consent to the


Page | 1 of Appellant’s Brief: 07-14-00346-CV
Agreement. After back-and-forth disputes adherence to the Agreement, on April

16th, 2014, the trial court held a bench trial. RR. Vol.004. On June 27, 2014, the

trial court issued a final judgment, finding that the Agreement was an enforceable

judgment, made pursuant to Rule 11, of the trial court. CR 241-45.

                                                II.

                                  ISSUES PRESENTED

Issue 1.       Was there legally sufficient evidence for the trial court to find that the

Agreement was a valid Rule 11 agreement and an enforceable judgment of the trial

court?

                                            III.

                                    BRIEF ANSWER

         No, there was not legally sufficient evidence for the trial court to find the

Agreement was an enforceable judgment of the court because (1) Eileen Aiken

expressly did not consent to the terms of the Agreement, and therefore, no binding

agreement existed between the parties, and (2) the trial court had clear notice of the

Appellant’s withdrawal of her consent to the Agreement prior to the Agreement

being reduced to a judgment of the trial court.




Page | 2 of Appellant’s Brief: 07-14-00346-CV
                                            IV.

                               STATEMENT OF FACTS

       1. The Appellant, Jane Durham, is a 93 year old woman. CR 27.

       2. The Appellant lives with and is cared for full time by her adult daughter,

Eileen Aiken, since January, 2013. R. Vol.003 at 22-23.

       3. The Appellee’s are also the Appellant’s adult children, Margaret Durham,

Nancy Stewart, David Durham, and Barbara Flourney.

       4. Sometime during October, 2013, the Appellant, Jane Durham, purchased a

Nissan Murano, in her name, and for her own benefit. The vehicle is titled in Jane

Durham’s name to this day. R. Vol.003 at 98.

       5. During the time of and after the Appellant’s purchase of the Nissan

Murano, Nancy Stewart and Margret Durham had power of attorney over Jane

Durham. R. Vol.004 at 70-74.

       6. In response to the moneys spent on the Nissan Murano, Nancy Stewart

and Margret Durham, together, withdrew virtually all of the Appellant’s life

savings totaling around $103,000.00 because they erroneously suspected that

Eileen Aiken purchased the vehicle for herself and her benefit. R. Vol.004 at 70-

75.



Page | 3 of Appellant’s Brief: 07-14-00346-CV
       7. On October 15th, 2013, without the Appellant’s knowledge or permission,

Margret Durham signed and took possession of a cashier’s check, made payable to

Jane Durham, drawn on Jane Durham’s account at Prosperity Bank in Lubbock,

Texas, dated October 15th, 2013, in the amount of $100,230.40. Margret Durham

kept possession of this check until, at some point, she gave the check to Nancy

Stewart. CR 103-104.

       8. Also, on October 15th, 2013, without Jane Durham’s knowledge or

permission, Margret Durham signed, and took possession of a check, made payable

to Jane Durham, drawn on Jane Durham’s account at American State Bank, in the

amount of $2,000.00, and deposited those moneys in a newly created account at

Wells Fargo Bank in Lubbock, Texas, in Margret Durham’s name. CR 107.

       9. On October 17th, 2013, without the Appellant’s knowledge or permission,

Margret Durham signed, and took possession of a check made payable to Jane

Durham, dated October 17th, 2013, drawn on Jane Durham’s account at Prosperity

Bank in Lubbock, Texas, in the amount of $1,173.57. CR 105-106.

       10. On October 22nd, 2013, Jane Durham revoked Margret Durham’s and

Nancy Stewart’s power of attorney. CR 108-111.

       12. The moneys composing the Appellant’s life savings continued to change

hands in ways that are not relevant to this appeal.


Page | 4 of Appellant’s Brief: 07-14-00346-CV
       13. On October 28th, 2013, the Appellant initiated a temporary injunction

hearing through the trial court, in order to cease any further takings of moneys by

Nancy Stewart or Margret Durham. CR 7-10.

       14. On November 8th, 2013, the parties met for a Rule 11 Agreement to

possible settle the case. The Appellant expressed reluctance but finally agreed to

the proposed Rule 11 Agreement, as did the Appellees. R. Vol.002.

       15. The terms of the proposed November 8th, 2013 Rule 11 Agreement

stipulated that (1) the Appellant’s assets would be placed in trust for her care and

benefit, (2) the Appellant would continue to live with Eileen Aiken, (3) Eileen

Aiken would act as the Appellant’s full time caretaker, (4) the other adult children

would have the right to visit the Appellant, (6) Eileen Aiken would not interfere

with the Appellant’s other adult children’s visitations, and (7) Eileen Aiken would

receive $3,600.00 per month in compensation for and to facilitate the full time

caretaking of the Appellant. R. Vol.002.

       16. On November 8th, 2013, at the hearing where the proposed settlement

was offered and after the Appellant and Appellees agreed to the terms, the trial

court asked Eileen Aiken if she agreed to the terms of the Agreement. R. Vol.002

at 25. Eileen Aiken expressly stated that she did not agree, “I don’t, but I don’t

know if that makes any difference, but I don’t know.” Id. No further negotiations

occurred between the parties.
Page | 5 of Appellant’s Brief: 07-14-00346-CV
       17. On November 15th, 2013, the Appellant dictated and signed a notarized

letter withdrawing her consent to the Agreement. This letter was received and filed

by the trial court on the November 15th, 2013. TAB B.

       18. On April 16th, 2014, the trial court held a bench trial. R. Vol. 004.

       19. On June 27, 2014, the trial court issued a final judgment, finding that the

Agreement was an enforceable judgment, made pursuant to Rule 11, of the trial

court. CR 241-45 and TAB A. As a result, nearly all of the Appellant’s assets,

including all the moneys previously mentioned and several tracts of land, were

placed in trust where they remain presently. Id.

                                                V.

                            SUMMARY OF ARGUMENTS

       The record establishes the exact opposite of the trial court’s finding, that a

binding agreement existed between the parties that could become the final

judgment of the trial court, because (1) Eileen Aiken expressly did not agree to the

terms of the Agreement and (2) the trial court had clear notice of the Appellant’s

withdrawal of the her consent prior to the agreement.




Page | 6 of Appellant’s Brief: 07-14-00346-CV
                                            VI.

                                     ARGUMENTS

       The Appellant argues that the record establishes the exact opposite of the

trial court’s findings that a binding agreement existed between the parties that

could be enforced as a final judgment of the trial court. Primarily, because Eileen

Aiken expressly did not agree to the terms of the Agreement and the trial court had

clear notice that the Appellant withdrew her consent to the Agreement. In addition,

the Appellant argues that no reasonable factfinder could find the Agreement could

enforced as a final judgment of the trial court.

1. Standard of Review

       “Findings of fact in a case tried to the court have the same force and effect

as a jury finding.” Aland v. Martin, 271 S.W.3d 424, 428-29 (Tex. App. – Dallas

2013) (citing Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex.App. – Dallas 2006,

pet. denied)). “An appellate court reviews a trial court’s fact findings by the same

standard it uses to review the sufficiency of the evidence to support a jury’s

findings.” Aland, 271 at 428. Where, as in this appeal, no findings of facts are

requested or filed, the trial court’s judgment implies all findings of fact necessary

to support it. See Six RMA Partners v. Sibley, 111 3.W.3d 46, 52 (Tex. 2003);

BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); and


Page | 7 of Appellant’s Brief: 07-14-00346-CV
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Where, as in this appeal, a

reporter’s record is filed, the implied findings are not conclusive, and an appellant

may challenge them for both legal and factually sufficiency. See Sibley, 111

S.W.3d at 52; BMC Software, 83 S.W.3d at 795; Roberson v. Robinson, 768

S.W.2d 280, 281 (Tex. 1989).

       In a legal sufficiency review, the evidence is viewed in the light most

favorable to the finding of the of the trial court, crediting favorable evidence and

disregarding contrary evidence unless a reasonable factfinder could not. Aland, 271

at 429 (citing City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005)).

However, this Court does not disregard contrary evidence if there is no favorable

evidence. Wilson, 186 at 811. If no favorable evidence for the challenged finding

exists, then the appellant must have provided conclusive evidence showing the

opposite of the challenged finding is true. Id. at 814.

       “This Court will sustain a no evidence point of error when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred by

rules of law or evidence from giving weight to the only evidence to prove a vital

fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;

or (4) the evidence establishes conclusively the opposite of a vital fact.” Marathon

Corp. v. Pitzner, 106 S.W. 3d 724, 727 (Tex. 2003).

2. No Binding Agreement Exists to Be Enforced as a Judgment of the Trial Court
Page | 8 of Appellant’s Brief: 07-14-00346-CV
       “Contract law governs the settlement of agreements made in open court

pursuant to rule 11.” General Metal Fabricating Corp. v. Stergiou, No. 01-11-

00460-CV, 2013 WL 522849 (Tex. App. Houston [1st Dist] 2013, no pet.). In order

for a Rule 11 agreement to be enforced as a judgment of the trial court, the

agreement must meet the essential elements of a contract, but also allows for oral

agreements read into the court’s record to be enforced. See Padilla v. LaFrance,

907 S.W.2d 454 (Tex. 1995).

       “Parties form a binding contract when the following elements are present:

(1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a

meeting of the minds, (4) each party’s consent to the terms, and (5) execution and

delivery of the contract with the intent to be mutual and binding.” Buxani v.

Nussbam, 940 S.W.2d 350, 352 (Tex.App. – San Antoio 1997, no writ) (emphasis

added). “The material terms of the contract must be agreed upon before a court can

enforce the contract. T.O Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d

218 (Tex. 1992). “When an essential or material term of an agreement is left open

for future negotiation, there is no binding contract.” Id. “The material terms of a

contract are determined by a case-by-case basis.” McCalla v Baker’s Campground

Inc., 416 S.W.3d 416, 418 (Tex. 2013) (citing Stanley Boot, 847 at 221).

   a. Eileen Aiken Expressly Did Not Agree to the Terms of The Agreement



Page | 9 of Appellant’s Brief: 07-14-00346-CV
       Under no jurisdiction of the Common Law could there said to be a binding,

legal contract formed between Appellant and Appellee on November 8th, 2013. To

put it simply, there is no binding, legal contract agreement because Eileen Aiken

expressly did not agree to the terms of the Agreement. Regardless, the trial court

entered the Agreement as binding agreement and judgment of the trial court

pursuant to Rule 11. Although not an official party to the suit, Eileen Aiken was

alleged to engage in possible wrongdoing by the Appellees, was included in the

terms of the Agreement, and offered compensation, or consideration, for her

performance pursuant to the Agreement. In addition, Eileen Aiken was expressly

asked by the trial court whether she agreed to the terms of the Agreement. Given

these factors, Eileen Aiken was clearly a party to the Agreement.

       As a party to the Agreement, Eileen Aiken must have expressly accepted the

Agreement in strict compliance with terms of the offer in order for a binding

contract to exist. Eileen Aiken clearly did the exact opposite and rejected the

Agreement. When asked by the trial court if she accepted the terms of the

Agreement, Eileen Aikeen expressly stated that “I don’t, but I don’t know if that

makes any difference, but I don’t no.” RR Vol.002 at 25. No other evidence to the

contrary exists in the record that Eileen Aiken ever accepted the terms of the

Agreement.



Page | 10 of Appellant’s Brief: 07-14-00346-CV
       Eileen Aiken’s rejection of the Agreement destroys one of the most basic

and essential elements of any contract under the Common Law, acceptance.

However, this does not end how completely Eileen Aiken’s rejection destroys the

possibility of a binding contract.

   b. Terms Including Eileen Aiken Were Material Terms

       The terms of the Agreement first stipulated that funds taken by the Appellee

would be returned to the Appellant and placed in trust for the benefit of the

Appellant, along with the rest of the Appellant’s assets. However, the remainder of

the Agreement concerned the living arrangements and wellbeing of the Appellant.

Those terms included that (1) the Appellant would continue to live with Eileen

Aikeen, (2) Eileen Aiken would receive $3,600.00 per month from the trust

established by the Agreement for compensation and to facilitate the care of the

Appellant, (3) Eileen Aikeen, as the caretaker of the Appellant, would be

responsible for spending funds distributed by the agreed trust for the benefit of the

Appellant, and (4) Eileen Aiken would not interfere with the visitation of the

Appellant’s other adult children.

       Given the Appellee’s allegations of wrongdoing on the part of Eileen Aiken

and questioning of whether the Appellant had the capacity to handle her own

personal and financial affairs, the terms of the Agreement that included Eileen



Page | 11 of Appellant’s Brief: 07-14-00346-CV
Aiken could only be called material terms of an Agreement to settle a dispute over

the very same issues.

   c. Material Terms Were Left Open – No Meeting of the Minds Occurred

       Regardless of whether this Court holds that Eileen Aiken is a party to the

Agreement, the Agreement is still not a binding agreement that could be rendered a

final judgment of the trial court. Before Eileen Aiken expressly did not agree to the

terms of the Agreement, the Appellant and Appellees had agreed to the terms the

Agreement. Once Eileen Aiken expressly did not agree to the terms of the

Agreement, no further negotiations between the parties occurred. If this Court were

to hold that the terms including Eileen Aiken were material terms of the

Agreement, then material terms of the contract were left open and no binding

contract was formed because the parties did not contemplate the terms of the

Agreement without Eileen Aiken’s inclusion.

       To state the same concept differently, but to also tie in other essential

elements of a contract, no meeting of the minds occurred in which the parties

contemplated the terms of the contract without Eileen Aiken’s inclusion. The

Appellant and Appellees negotiated and agreed to terms that would all be

facilitated in one way or another by Eileen Aiken. Even the terms of what assets

were to be placed in trust included Eileen Aiken because as caretaker to the

Appellant, Eileen Aiken would be the one to facilitate the distributions of those
Page | 12 of Appellant’s Brief: 07-14-00346-CV
assets. Once Eileen Aiken expressly did not agree to the terms of the Agreement,

this essentially put the parties back into negotiations. The record clearly shows that

the parties never contemplated or agreed to the terms of the Agreement without the

inclusion of Eileen Aiken and her performance. Given that the terms including

Eileen Aiken were material terms, this Court should hold that the Appellant

conclusively establishes that no binding contract was ever formed between the

Appellant and Appellee that could be rendered a final judgment of the trial court.

   d. Conclusions

       The record clearly demonstrates that the Appellant, the Appellee, and Eileen

Aiken all did not accept the terms of the Agreement in strict compliance with the

offer because Eileen Aiken expressly did not consent and the Appellant and

Appellee never agreed to the terms of the Agreement without Eileen Aiken’s

inclusion. Given the incapacity of the Appellant to care for her own personal and

financial affairs and the possible wrongdoing of Eileen Aiken were alleged by the

Appellee’s, the terms including Eileen Aiken must be considered material for the

purposes of an agreement to settle the dispute between the parties. In addition,

there was no meeting of the minds and mutual assent to terms of the Agreement

that did not include Eileen Aiken on the part of the Appellant and Appellee. For

the aforementioned arguments, this Court should hold there was no legally

sufficient evidence for the trial court to find that the Agreement was a sufficient

Page | 13 of Appellant’s Brief: 07-14-00346-CV
Rule 11 agreement and the trial court could not render the Agreement as a final

judgment of the trial court.

2. The Appellant’s Withdrawal of Consent to the Agreement

       Where a party no longer consents, after notice and a hearing complying with

Rule 11, any judgment is no longer an agreed judgment, but rather a judgment

enforcing a binding contract. Padilla, 907 at 461. “When consent is

withdrawn…the agreed judgment that was part of the settlement may not be

entered.” Ford Motor Co. v. Castillo, 279 S.W. 656, 663 (Tex. 2009) (citing

Padilla, 907 at 462). Instead, “[t]he party seeking enforcement of the settlement

agreement must pursue a separate claim for breach of contract.” Id.

       “When a trial court has knowledge that one of the parties to a suit does not

consent to a judgment, agreed to by [her] attorney, the trial court should refuse to

give the agreement the sanction of the court so as to make it a judgment of the

court.” Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951) (stating in context

of a Rule 11 agreement, all parties must agree) (emphasis added). “A party may

revoke [her] consent to settle a case any time before the judgment is rendered.”

Clanin v. Clanin, 918 S.W.2d 673, 677 (Tex. App. – Fort Worth 2013, no pet.)

(citing Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex. 1982)).




Page | 14 of Appellant’s Brief: 07-14-00346-CV
       In Clanin, the Appellant attempted to argue that he had withdrawn consent

to an agreed divorce settlement made pursuant to Rule 11 by objecting to a motion

for judgment. Clanin, 918 at 677. The court in Clanin observed the appellant had

not made in known and to the trial court that he had withdrawn consent to the

agreement by objecting to the motion for judgment. Id. In addition, the court in

Clanin held that the Appellant was too late by raising his dissatisfaction with the

agreed judgment in a motion for new trial. Id. In Clanin, the court held there “was

sufficient evidence to support the existence of a valid Rule 11 agreement and the

appellant had not revoked his consent to the agreement prior to the rendition of

court’s judgment.” Id.

       In clear contrast to Clanin, the Appellant wrote an express statement to the

trial court that she was withdrawing her consent to the Agreement. TAB B. The

Appellant’s express statement was signed, notarized, and received and filed

stamped by the trial court before rendition of the judgment. TAB B. Unlike Clanin,

the trial court had clear notice that the Appellant had withdrawn her consent to the

Agreement before the agreement was rendered a final judgment of the trial court.

Because the record demonstrates clear and conclusive evidence that the Appellant

had withdrawn her consent to the Agreement, this Court should hold that there was

legally insufficient evidence to find that a valid Rule 11 agreement existed that

could be rendered the final judgment of the trial court.

Page | 15 of Appellant’s Brief: 07-14-00346-CV
       Just as with whether an agreement existed at all between the parties, there

conclusive evidence found in the record demonstrates the exact opposite of the trial

court’s finding. The only evidence in the record conclusively demonstrates that the

Appellant had withdrawn her consent to the Agreement prior to the rendition of a

the trial court’s judgment. Therefore, this Court should hold that the trial court had

legally insufficient evidence to find that it could render the Agreement as a final

judgment of the trial court.




                                           VII.

                                     CONCLUSION

       Given that Eileen Aiken expressly disagreed with the terms of the

Agreement and that the trial court received clear notice of the Appellant’s

withdrawal of consent to the Agreement, this Court should hold that there legally

insufficient evidence to find that there was a valid Agreement pursuant to Rule 11

which could rendered a final judgment of the trial court.

                                           VIII.

                                        PRAYER

       Appellant prays that this Court find that the trial court did not have legally

sufficient evidence to find that the Agreement was a valid Rule 11 agreement or

Page | 16 of Appellant’s Brief: 07-14-00346-CV
that the Agreement could be rendered as a judgment of the trial court. Moreover,

the Appellant prays that this Court reverse and remand the trial court’s judgment,

releasing all of the Appellants funds to the Appellant from the trust established by

the Agreement and the trial court’s final judgment. Furthermore, the Appellant

prays for the recovery of all her costs and for such other and further declarations as

may be necessary and appropriate to resolve the issues raised in this appeal

       Appellant asks this court for such other and further relief to which the

Appellant may prove herself entitled in law or in equity.




                                                 Respectfully submitted,

                                                 Michael Sales

                                                 Texas Bar No. 17532060
                                                 1601 Broadway
                                                 Lubbock, TX 79401
                                                 Tel. (806) 763-9493
                                                 Fax. (806) 744-5411

                                                 /s/ Michael Sales
                                                 ATTORNEY FOR APPELLANT
                                                 Sales5Ralls@aol.com




Page | 17 of Appellant’s Brief: 07-14-00346-CV
                           CERTIFICATE OF SERVICE

       I herby certify that a true and correct copy of the foregoing Appellant’s Brief

has been served via e-service and or by email on this the 29th day of December,

2014 on Aubrey Fouts, attorney for the Appellee.

                                                 /s/ Michael Sales
                                                 Michael Sales




                        CERTIFICATE OF COMPLIANCE

       I certify that this document complies with the typeface requirements of Tex.

R. App. P 9.4(e) because it has been prepared in conventional typeface no smaller

than 14-point for text. This document also complies with word count limitations of

Tex. R. App P. 9.4(i), if applicable because it contains less than 15,000 words,

excluding any parts exempted by Tex. R. App P 94(i)(1).




                                                 /s/ Michael Sales_______________
                                                 Michael Sales




Page | 18 of Appellant’s Brief: 07-14-00346-CV
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