


                                                                                                                             
 
 
 
 
NUMBER 13-09-648-CV
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT
OF TEXAS
 
CORPUS CHRISTI - EDINBURG  
                                                                                                                     

 
MARIO G. MARTINEZ,                               
                              Appellant,
 
v.
 
FARMERS INSURANCE
EXCHANGE,                                         Appellee.
                                                                                                                     
  
 
On appeal from County
Court at Law No. 1 
of Hidalgo County,
Texas.
                                                                                                                     

 
MEMORANDUM OPINION
 
Before Justices Benavides,
Vela, and Perkes 
Memorandum Opinion by
Justice Vela
 
            This is an appeal from a trial court order
dismissing Mario Martinez’s case and denying his motion to enforce a settlement
agreement.  In the trial court, Martinez urged that appellee, Farmers Insurance
Exchange (“Farmers”), wrongfully retained certain settlement amounts for
purposes of withholding taxes, rather than giving him the total settlement
amount.   
On appeal, Martinez raises the following
issues:  (1) whether the trial court abused its discretion in granting Farmers’
motion to enforce settlement agreement; (2) whether the evidence is legally
sufficient to support the Order of Enforcement and Take-Nothing Judgment; and
(3) whether the trial court abused its discretion in denying Martinez’s motion
for new trial.  We affirm. 
I. Factual Background
            Mario Martinez filed suit against Farmers,
his former employer, on August 14, 2006, alleging that he had been wrongfully
terminated from his employment due to his age.  In Martinez’s original
petition, he claimed unlawful civil conspiracy, unlawful employment
discrimination under Chapter 21 of the Texas Labor Code, and intentional
infliction of emotional distress.  See Tex.
Lab. Code Ann. § 21.2585 (West 2006).  He sought damages for physical as
well as mental pain and anguish, inconvenience, and “loss of enjoyment of life
for a long time and into the future.”  He further sued for “lost earnings in
the past and in the future and for loss of earning capacity.” 
            On April 29, 2008, Farmers and Martinez
entered into a Rule 11 Agreement whereby they agreed “to mediate this case
prior to any hearing on Defendant’s motion for summary judgment.”  Tex. R. Civ. P. 11.  On May 27, 2009,
the parties executed a settlement agreement for $21,000.  According to the
settlement document, the sum was to be paid to Martinez on or before June 10,
2009.  Additionally, the words “or as soon as possible” were inserted and
initialed by Farmers’ attorney in the margin.  The settlement agreement
provided that the settlement encompassed all claims in the lawsuit, which, at
the time of the settlement, included a wage claim.
            The settlement was not funded by June 10,
2009.  Subsequently, Martinez filed a Motion to Enforce Settlement Agreement
and for Sanctions on June 18, 2009.  At a hearing on the motion on June 29,
2009, counsel for Martinez complained of the delay in receiving the settlement
check.  In response, Farmers' position was because this was an employment case,
it initially wanted to allocate 40 to 50% of the total settlement to wages. 
Farmers informed the court that it had to get a supervisor involved in order
for the insurance company to agree “to get a very minimal amount toward wages,”
and that “the real delay was the fact that we had to get a supervisor—a vice
president involved so [it] could basically get a bigger amount toward his
client that would not be taxable and would be more palatable—.” 
            At the hearing, Martinez did not agree
withholding any portion of the settlement.  Farmers responded that Martinez had
pleaded lost wages, and therefore some of the proceeds must be withheld for
taxes.  The hearing concluded without any further discussion or argument with
respect to withholding a portion of the settlement, and the trial court ordered
that the settlement be funded by July 6, 2009.  Counsel for Martinez was asked to
prepare an order reflecting the trial court’s rulings.  That same afternoon,
after the trial court had ruled, Martinez filed a second amended petition,
deleting his claim for lost earnings and for loss of earning capacity. 
            As ordered, on July 6, 2009, Farmers
delivered two checks, for a total of $20,347 to Martinez’s counsel.  $19,000
was made payable to Dale & Klein, LLP Trustee for Mario Martinez, and $1,347
was made payable to Mario Martinez.  Farmers withheld $653.00 for taxes based
on Farmers apportioning $2,000 of the settlement to lost wages.  
            On August 18, 2009, Martinez filed a second
motion to enforce, claiming that Farmers wrongfully withheld $653.00 of the
settlement proceeds.  In that motion, Martinez contended that he had non-suited
the wages claim on June 29, 2009 in his second amended petition.  On August 25,
2009, Farmers responded to Martinez’s second motion to enforce and filed its
own motion to enforce settlement.  Farmers argued that wages had been a claim
during the lawsuit for nearly three years and Martinez had only amended his pleading
after the hearing and after the case had already settled. 
            Consequently, Martinez requested a telephone
conference to be held on his second motion to enforce.  As a result of the
conference, which is not of record, the trial court asked for proposed orders
from both sides.  The court subsequently determined that “the apportionment of
$2,000 of the total settlement to lost wages and the withholding of taxes
pursuant to federal law and IRS regulations is appropriate and required.”  On
August 27, 2009, the trial court signed an order of dismissal with prejudice.
            Martinez filed a timely motion for new trial,
asking the trial court to vacate the August 27, 2009 order of dismissal with
prejudice because he claims that “the trial court reformed an unambiguous
contract.”  He further argued that “the trial court is not an arm of the IRS or
a taxing entity and acted as a tax enforcing entity which is beyond the court’s
authority and jurisdiction.”  Martinez argues that because there was no express
agreement between the parties to withhold funds for tax purposes in the
settlement, the settlement cannot be enforced.  On September 23, 2009,
Martinez’s motion for new trial was denied.
II. Enforcement Issue
A. Standard of
Review
A trial court’s decision
whether a settlement agreement should be enforced as an agreed judgment or must
be the subject of a contract action requiring additional pleadings and
proof is subject to the abuse of discretion standard of review.  See Mantas
v. Fifth Court of Appeals, 925 S.W.2d 656, 659 (Tex. 1996); Staley v.
Herblin, 188 S.W.3d 334, 336 (Tex. App.—Dallas 2006, pet. denied).  A trial
court abuses its discretion if it renders a decision that is so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.  In re
Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (per curiam); Walker v.
Packer, 827 S.W.2d 833, 839–40 (Tex. 1990).  The appellant bears the burden
to establish error in the trial court’s judgment.  Englander Co. v. Kennedy,
428 S.W.2d 806, 807 (Tex. 1968) (per curiam); Baylor College of Medicine v.
Camberg, 247 S.W.3d 342, 346 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied).
B. Analysis   
Martinez’s appeal centers upon his
belief that he has not received all of the money he was owed as a result of the
settlement agreement signed May 27, 2009.  According to Martinez, Farmers
wrongfully withheld taxes from the settlement, denying him $653.00 out of
$21,000 in settlement money.  Farmers apportioned $2,000 of the total settlement
for lost wages, and calculated the taxes owed on that amount to be $653.00.  He
does not argue that the amount of taxes withheld was not correct.  Rather, his
complaint is that no amount should have been withheld for lost wages or taxes. 
He argues that there is a fact issue with respect to how the settlement funds
were to be paid.  
Martinez argues in his first issue that
the trial court abused its discretion in denying his second motion to enforce
the settlement agreement and determining the disputed issues between the
parties.  He now claims that the only method available for enforcing a
settlement agreement is through summary judgment or trial.  However, it was
actually Martinez who was the original party to seek enforcement of the
settlement agreement through means other than summary judgment or trial.  In
fact, he filed two such motions.  He cannot now complain that the method he
chose to have the issues resolved is improper.  A litigant cannot ask something
of a court and then complain that the court committed error in giving it to
him.  Northeast Texas Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 488–89
(Tex. 1942).  Error in requesting an action cannot be urged by a party who
requested the same action.  Corpus Christi Nat'l Bank v. Gerdes,
551 S.W.2d 521, 525 (Tex. Civ. App.—Corpus Christi 1977, writ ref'd n.r.e.).  A
party to a lawsuit cannot ask something of a trial court and then complain on
appeal that the trial court committed error in granting that party's request.  Northeast,
158 S.W.2d at 488; Naguib v. Naguib, 137 S.W.3d 367, 375 (Tex.
App.—Dallas 2004, pet. denied); see e.g. Dolenz v. Am. Gen. Fire
& Cas. Co., 798 S.W.2d 862, 863 (Tex. App.—Dallas 1990, writ denied); Shafer
v. Bedard, 761 S.W.2d 126, 131 (Tex. App.—Dallas 1988, no writ).  By
seeking to have the judgment enforced by motion, Martinez cannot now claim that
the trial court erred in disposing of the case in the manner Martinez
requested.  We overrule issue one.
III.  Sufficiency of the
Evidence
By Martinez’s second issue, he argues
that the evidence is legally insufficient to support the denial of his second
motion to enforce and the order of dismissal. 
A. Standard of Review
The test for legal sufficiency is
"[w]hether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review."  City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005).  An appellant, challenging the legal
sufficiency of an adverse finding on which it had the burden of proof, must
demonstrate that the evidence conclusively established all vital facts.  Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam).  The
reviewing court considers the evidence in the light most favorable to the
judgment, crediting favorable evidence if a reasonable fact-finder could, and
disregarding contrary evidence unless a reasonable fact-finder could not.  City
of Keller, 168 S.W.3d at 807.  
Martinez argues that the only process
available for enforcement of a settlement agreement is via summary judgment or
trial.  As previously stated, it was Martinez who sought enforcement of the
judgment by motion, not by summary judgment or trial.  His argument is waived. 
Regardless, a motion to enforce a settlement is a sufficient pleading to allow
a trial court to render judgment enforcing a settlement.  Twist v. McAllen
Nat’l Bank, 248 S.W.3d 351, 361 (Tex. App.—Corpus Christi 2007, orig.
proceeding).  
We note in reviewing whether the
evidence supports the trial court’s judgment that a part of the proceedings
before the trial court are not before us in this appeal.  The record reflects
that the trial court held an unrecorded telephone conference with both parties
on August 26, 2009.  Although Martinez urges in his brief that it was a five
minute telephonic conference at which no evidence was adduced, we do not know
if evidence was presented or if the conference was merely argument.  It was
shortly after this conference that the trial court rendered judgment.  The
Texas Rules of Appellate Procedure provide that the appellant, or other party
seeking review, has the burden to request that a sufficient record is presented
to the appellate court to show error requiring reversal.  See Tex. R. App. P. 34.  Without a record
of that conference, which occurred at Martinez’s suggestion, we do not know
what additional factors, if any, were considered by the trial court at the
telephone conference to influence it to rule as it did.  When we have no record
of a conference or hearing before us, the record is presumed to support the
trial court's ruling.  See Bryant v. United Shortline Inc. Assurance Servs.,
972 S.W.2d 26, 31 (Tex. 1998); see also Fort Bend County v. Tex. Parks &
Wildlife Comm'n, 818 S.W.2d 898, 900 (Tex. App.—Austin 1991, no writ). 
Regardless, the case was before the trial court primarily in response to
Martinez’s two motions for enforcement.  Although he expressed disagreement at
the hearing, counsel for Martinez presented nothing at the hearing to show that
the award of lost wages was improper.
Without a record of what occurred at that
hearing, we are unable to say that the trial court erred in awarding the amount
it did toward lost wages.  In view of the fact that this was an employment
discrimination case, it is logical that a portion of the award would be for
lost wages and the pleadings supported a claim for lost wages.   Martinez
alleged lost wages, which were unquestionably considered as part of the
settlement when formulating a monetary figure for compensation.  Further, the
motions to enforce, the responses to motions to enforce, and the hearings gave
the trial court ample opportunity to determine the adequacy of the evidence
proffered and make a valid determination in favor of apportionment of the
settlement.  
Martinez argues that he non-suited his
wage claim, so it was not part of the settlement agreement.  The trial court
found that “the case was settled at mediation, and that the settlement
encompassed all claims.”  By signing the settlement agreement, both parties
agreed to: 
release, discharge,
and forever hold the other harmless from any and all claims, demand or suits,
known or unknown, fixed or contingent, liquidated or unliquidated (whether or
not asserted in this case) arising from or related to the events and
transactions which are the subject matter of this case
 
Martinez dismissed his claim for lost
wages in his second amended petition on June 29, 2009.  This amendment was
filed the same day as the hearing which was held to review Martinez’s first
motion to enforce settlement.  However, the second amended petition, deleting
the claim for lost wages, was made after both parties had already signed a
valid settlement agreement on May 27, 2009.  Lost earnings in the past and in
the future and for loss of earning capacity were specifically pleaded in
Martinez’s original petition.  Because lost wages were clearly part of the
settlement agreement when it was signed and because we do not have a complete
record of what the trial court considered when it made its ruling, we will not
disturb the trial court’s judgment.  We overrule issue two.
IV.  Motion for New Trial
            Martinez argues in his third and fourth
issues that the trial court erred in denying his motion for new trial. 
Specifically, he complains that the trial court should not have “reformed the
settlement agreement to allow for $2,000.00 of the $21,000.00 settlement to be
considered taxable income and allow Farmers to withhold taxes.”  He also argues
that the trial court abused its discretion in denying his motion for new trial
because he did not request that the case be dismissed with prejudice.  
A. Standard of Review
The trial court’s denial of a motion for
new trial is reviewed for an abuse of discretion.  See In re A.P.P., 74
S.W.3d 570, 573 (Tex. App.—Corpus Christi 2002, no pet.) (citing Dir., State
Emps. Worker’s Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)); Coastal
Banc SSB v. Helle, 48 S.W.3d 796, 800 (Tex. App.—Corpus Christi 2001, pet.
denied).  The trial court has a wide discretion in denying a motion for new
trial and we will not disturb its ruling absent an abuse of discretion.  See
Coastal Banc, 48 S.W.3d at 800 (citing Dir., State Emps. Worker’s Comp.
Div., 889 S.W.2d at 268). 
B. Analysis
            Martinez cites Meador v. Ivy, which held
that a trial court cannot reform an unambiguous contract unless there are
pleadings and proof of mutual mistake or there was a mistake on one side induced
by fraud on the other.  390 S.W.2d 391 (Tex. App.—San Antonio 1965, no writ). 
However, Meador did not involve a settlement agreement.  See id. 
Rather, Meador involved a disagreement over deposits in a bank account
and who held the right to the funds.  See id.  Thus, the case is
distinguishable.  
Furthermore, lost wages were part of the
original claim.  At the hearing, it was clear that the trial court and Farmers
believed that a certain amount of the settlement would be apportioned to
wages.  The fact that Martinez amended his pleadings to delete the wage claim
is of no import.  It occurred post settlement.   
With respect to the amount that was
withheld, there is no argument.  It is possible that if Farmers failed to
withhold a portion of the settlement for tax purposes, it might have assumed
liability.  26 U.S.C.A. § 3402 (a)(1) (“[E]very employer making payment of
wages shall deduct and withhold upon such wages a tax determined in accordance
with tables or computational procedures prescribed by the Secretary.”).  Under
the circumstances presented here, we cannot say that the trial court abused its
discretion in failing to grant a new trial. 
Martinez also argues that, contrary to
the trial court’s order, he did not formally file a motion to dismiss.  We
agree.  However, the settlement agreement itself provided for an agreed order
of dismissal with prejudice upon conclusion of the settlement.  The trial court
did not err in dismissing the case with prejudice.  
V. Conclusion
Having overruled all of Martinez’s
issues, we affirm the trial court’s judgment. 
 
 
                                                                        ROSE
VELA
                                                                                    Justice
 
Delivered and filed
the 
28th day of July, 2011.
 

