                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-18-00191-CV

     Noe GARCIA, Rosa Garcia, Maria G. Ruel, Unknown Heirs of Conrado Ruben Garcia,
      Gloria G. Valdez, Eddie Garcia, Saul Flores, Stella Shull, Joel Flores, Hector Flores,
                                   and Oscar Flores, et al.,
                                          Appellants

                                                    v.

                           Anna Maria SALAZAR and Carlos Abel Salazar,
                                          Appellees

                     From the 218th Judicial District Court, La Salle County, Texas
                                  Trial Court No. 13-09-00220-CVL
                             Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: September 5, 2018

AFFIRMED

           The appellants contend the trial court erred in entering the judgment in the underlying cause

“because it is based on a mediated settlement agreement which lacked consent of all Appellants.”

The appellants also contend the judgment should be reversed because no reporter’s record was

made of the trial proceedings. We affirm the trial court’s judgment.
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                                            BACKGROUND

          The appellants sued the appellees seeking to remove a cloud placed on their property by

the appellees. The appellees filed an answer and counterclaims seeking a declaration that they

own the property.

          On September 22, 2017, a mediator filed a report stating all of the parties engaged in

mediation on September 21, 2017, and entered into a mediated settlement agreement resolving all

issues in controversy. A copy of the mediated settlement agreement was attached to the mediator’s

report.

          On October 25, 2017, the appellees amended their pleadings to add a claim for breach of

contract, asserting the appellants had breached the mediated settlement agreement. The appellees

also filed a motion to enforce the mediated settlement agreement asking the trial court to enter a

judgment enforcing the terms of the agreement.

          On December 12, 2017, the trial court signed a judgment stating a hearing was held on the

appellees’ motion that day. The judgment states the appellants and the appellees appeared by and

through their attorneys of record, and the trial court considered “the Motion, the evidence presented

and the argument of counsel.” Noting the appellees sought to enforce the mediated settlement

agreement by breach of contract, the judgment also states:

              After considering the pleadings and official records on file in this cause, the
          evidence presented, and the parties’ arguments, the Court finds that the parties
          participated in good faith in a court ordered mediation on September 21, 2017 and
          the parties came to an agreement that resolved all disputes between them.

The judgment further states:

             The Court further finds that the Settlement Agreement is enforceable as a
          contractual agreement between the parties.

              After considering the pleadings and official records on file in this cause, the
          evidence presented, and the parties’ arguments, the Court renders the following
          judgment:

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           The Settlement Agreement is enforceable as a contractual agreement between
       the parties.

The judgment then awards interests in the property to the appellants and the appellees based on

the terms of the settlement agreement.

       On January 11, 2018, the appellants filed a motion for new trial asserting two individuals

signed the mediated settlement agreement on behalf of others without any authority. Specifically,

the motion for new trial asserted the individuals purported to have powers of attorney to sign on

behalf of others, but no such authority existed. No hearing was set on the motion for new trial

which was overruled by operation of law. Appellants then filed their notice of appeal.

                                      REPORTER’S RECORD

       In appellants’ second issue, they contend the trial court’s judgment must be reversed

because no reporter’s record was made of the trial proceedings.

       Although a conflict exists between the courts of appeal “as to who bears the burden on the

court reporter’s obligation to transcribe [a] record,” this court has held “the complaining party

must have objected to the reporter’s failure to transcribe the missing testimony in order to preserve

the complaint for appellate review.” Sareen v. Sareen, 350 S.W.3d 314, 316 (Tex. App.—San

Antonio 2011, no pet.). “[T]his comports with the general rules that an appellate court may

consider a case based only upon a record that shows the complaint at issue was made to the trial

court by a timely request, objection, or motion.” Id.

       In this case, the trial court’s judgment recites that the appellants appeared at the hearing

through their attorney of record; however, the record does not show any objection was made to the

absence of a court reporter or to the failure to make a record. Accordingly, the appellants have not

preserved the complaint made in their second issue for our review. See id. Appellants’ second

issue is overruled.


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                                      ENTRY OF JUDGMENT

       In their first issue, the appellants contend the trial court erred in entering the judgment

“because it is based on a mediated settlement agreement which lacked consent of all Appellants.”

Appellants rely on the affidavits attached to their motion for new trial which state two individuals

were not authorized to sign on behalf of some of the parties to the mediated settlement agreement.

       A trial court cannot render an agreed judgment after a party has withdrawn his consent to

a settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); Gamboa v.

Gamboa, 383 S.W.3d 263, 269 (Tex. App.—San Antonio 2012, no pet.). However, “this does not

preclude the court, after proper notice and hearing, from enforcing a settlement agreement

complying with Rule 11 even though one side no longer consents to the settlement.” Padilla, 907

S.W.2d at 461. In such a case, “the party seeking enforcement must pursue a separate breach-of-

contract claim, which is subject to the normal rules of pleading and proof.” Mantas v. Fifth Court

of Appeals, 925 S.W.2d 656, 658 (Tex. 1996); see also Gamboa, 383 S.W.3d at 269.

       “Where the settlement dispute arises while the trial court has jurisdiction over the

underlying action, a claim to enforce the settlement agreement should, if possible, be asserted in

that court under the original cause number.” Mantas, 925 S.W.2d at 658. Seeking to enforce a

settlement agreement by filing a motion to enforce in the pending cause while the trial court has

jurisdiction is a proper procedure to follow. Matinee Media Corp. v. Falcon, No. 04-12-00133-

CV, 2012 WL 3104530, at *3 (Tex. App.—San Antonio Aug. 1, 2012, no pet.).

       In this case, the appellees amended their pleadings to assert a breach of contract claim, and

they also filed a motion to enforce the settlement agreement. Although the appellants assert the

agreement was signed by two individuals on behalf of others for whom they did not have authority

to sign, the judgment states the trial court considered the evidence presented and found the

settlement agreement was an enforceable contract. Thus, the record reflects the trial court

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conducted an evidentiary hearing, which was akin to a bench trial, while the trial court had

jurisdiction to enter a judgment on appellees’ breach of contract claim. Therefore, the trial court

did not err in entering the judgment. The appellants’ first issue is overruled.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Sandee Bryan Marion, Chief Justice




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