                                                                ACCEPTED
                                                           13-15-00306-CV
                                           THIRTEENTH COURT OF APPEALS
                                                  CORPUS CHRISTI, TEXAS
                                                     10/20/2015 7:43:27 AM
                                                          Dorian E. Ramirez
                                                                     CLERK

     CAUSE NO. 13-15-00306-CV

             INTHE                FILED IN
                          13th COURT OF APPEALS
       COURT OF APPEALSCORPUS CHRISTI/EDINBURG, TEXAS
                          10/20/2015 7:43:27 AM
           FOR THE          DORIAN E. RAMIREZ
                                   Clerk

     THIRTEENTH DISTRICT

     CORPUS CHRISTI, TEXAS



       ROBERTO VAZQUEZ
          APPELLANT
                v.
   MARIA ANGELICA VAZQUEZ
          APPELLEE



APPELLANT'S AMENDED REPLY BRIEF




                     KATRINA DANNHAUS PACKARD
                     SBN: 15402400
                     523 NORTH MAIN STREET
                     P. 0. BOX 11 9
                     SCHULENBURG, TEXAS 78956
                     TEL: (979) 743-4574
                     FAX: (979) 743 -4575
                     EMAIL: kdpwall(a)cvctx.com
                     ATTORNEYS FOR APPELLANT



    ORAL ARGUMENT REQUESTED
                                                            TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................ .                                                                                         1
INDEX OF AUTHORITIES .................................................... .
                                                                                                                                                                     ..
                                                                                                                                                                     11
CORRECTION TO ANGLICA'S STATEMENT OF FACTS ................ .                                                                                                        1
S~Y OF ~GUMENT .............................................................. .                                                                                      2
REPLY ISSUE
    1.      The trial court abused its discretion by not enforcing the
            intent of the parties in the mediated settlement agreement .... .                                                                                        3
    2.      The trial court abused its discretion by acting arbitrarily
            or unreasonably, without reference to any guiding rules
            and principles; i.e., ruling without supporting evidence ...........                                                                                     4
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   6
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..                                        7
                                    INDEX OF AUTHORITIES

Cases
Evans v. Evans, 14 S.W. 3d 343
(Tex. App - Houston [1st Dist.] 2000, no pet.) ................................................              5
Frost Nat'/ Bankv. L & F Distribs., 165 S.W. 3d 310
 (Tex. 2005) (per curiam) ................................................................................   3
Richardson v. Richardson, 424 S.W. 3d 691, 696
(Tex. App - El Paso 2014, no pet.) ................................................ ........ ...........     4
SP Terrace, L.P. v. Meritage Homes of Texas, LLC, 334 S.W. 3d 275
 (Tex. App. Houston [1st Dist] 2010, no pet.)................................................                4

Statutes
Tex. Fam. Code Ann §7. 00 1 ..........................................................................       3

Other Authorities
Black's Law Dictionary, 5th Ed. 1979 ...........................................................             2




                                                         ii
     AMENDED REPLY BRIEF TO RESPONSE ISSUES PRESENTED

      A.     CORRECTION TO ANGELICA'S STATEMENT OF FACTS

      In Angelica's Statement of Facts, she misstates the record as to whether

Robert provided any evidence of his efforts to apply for a loan.

      The court record evidences that on January 13, 2015, Roberto filed a Motion

to Set Aside the Mediated Settlement Agreement based upon its specific and

contractual terms and provided the Court with a Wells Fargo Application and

Denial of Loan. CR 55-66. In the subsequent hearings Roberto testified that he

had applied for a loan (and was denied) to Tex Star. 3 RR 20:2-23; 21 :2-25. The

court record further reflects that Roberto also made application for a loan (and was

denied) to the Fayette Savings Bank. CR 114-136. The court record evidences that

Roberto made application for a loan (and was denied) to the Fayetteville Bank. CR

137-157.

      Duke Hengst, Senior Vice President of Loans at National Bank & Trust

testified that Roberto did timely make an application on November 26 for a loan in

the amount of $250,000.00. RR 3:9. Angelica agrees that a full and complete

reading of the record presented by this appeal reveals that the bank officer could

not state whether or not Roberto would have secured the loan. RR 3: 17-18.




                                          1
       Nonetheless, the trial court abused its discretion by not considering the

evidence and setting aside the mediated settlement agreement based on the

agreement's terms and provisions.

                           SUMMARY OF ARGUMENT

       Angelica agrees in her brief that the mediated settlement agreement was

enforceable between the parties. However, she focuses on the distinction between

"effort" and "best effort", arguing that Roberto breached the mediated settlement

agreement because he withdrew his loan application at the National Bank & Trust.

       The mediated settlement agreement is void of any specific terms, banks or

financial institutions in which Roberto was limited in making a loan application to

fulfill the requirements of the mediated settlement agreement. The use of effort, as

defined by both parties in their briefs to this Court reflect the use of 'an attempt; an

endeavor, a struggle directed to the accomplishment of an object". Blacks Law

Dictionary, 5th Ed. 1979. There is more than sufficient evidence that Roberto used

his 'efforts' in his attempt to 'secure a loan'. He made applications at four financial

institutions. He withdrew one application and was denied a loan at the remaining

three financial institutions.

       Therefore, Angelica's argument has no merit and the trial court abused its

discretion in not enforcing the terms of the mediated settlement agreement.




                                           2
      In addition, Angelica argues that the trial court has discretion to divide the

community property. Texas Family Code§ 7.001 Nonetheless, the trial court did

not have the discretion to set aside the mediated settlement agreement and, without

receiving any evidence, make a division of community property.

      Based on the evidence and the actions of the trial court, Roberto requests

this Court to reverse and remand this matter to the trial court to follow the dictate

of the Texas Supreme Court in its rulings as to mediated settlement agreement.

                               REPLY ISSUE NO. 1

 THE TRIAL COURT ABUSED ITS DISCRETION BY NOT ENFORCING
  THE INTENT OF THE PARTIES IN THE MEDIATED SETTLEMENT
                       AGREEMENT

      Angelica does not dispute the enforceability of the mediated settlement

agreement as provided in her argument to this court. Angelica argues that this

Court must 'ascertain and give effect to the parties' intentions as expressed in the

document. Frost Nat'! Bank v. L & F Distribs., 165 S.W. 3d 310, 311-12 (Tex.

2005) (per curiam). As shown in the mediated settlement agreement the 'intent' of

the parties was specific in the language of the agreement itself:

      The Parties agree that this Agreement is expressly contingent upon
      Roberto getting the loan necessary to allow him to pay Angelica the
      $250,000.00 required by this Agreement and in the event he is not able
      to secure such a loan, this Agreement shall be of no further force and
      effect.

CR27.


                                          3
      Roberto agrees with Angelica that this Court must give contractual terms

their plain, ordinary, and generally accepted meaning unless the contract shows

that the parties intended a different meaning to control. See SP Terrace, L.P. v.

Meritage Homes of Texas, LLC, 334 S.W. 3d 275, 281 (Tex. App. - Houston [1st

Dist.] 2010, no pet. The contractual terms and the intent of the parties is stated

clearly in the mediated settlement agreement: the agreement was contingent upon

Roberto getting the loan and if he is not able to secure such a loan, then the

agreement shall be ofno further force and effect. CR 27.

      The intent between the parties could not be more clear. Roberto did not

breach the mediated settlement agreement. The evidence is clear that he was

unable to secure a loan. Therefore, the trial court abused its discretion by not

following the intent of the parties and setting aside the mediated settlement

agreement.

                              REPLY ISSUE NO. 2

    THE TRIAL COURT ABUSED ITS DISCRETION BY ACTING
UNREASONABLY WITHOUT REFERENCE TO ANY GUIDING RULES
AND PRINCIPLES; I.E., RULING WITHOUT SUPPORTING EVIDENCE

      Angelica further argues that the trial court has discretion make a division of

the parties' property upon divorce. Nonetheless, there is no evidence in the record

that the trial court had sufficient information upon which to exercise its discretion

in making a division of property. Richardson v. Richardson,       424 S.W. 3d 691,


                                         4
696 (Tex. App. - El Paso 2014, no pet.). A trial court abuses its discretion by

acting arbitrarily or unreasonably, without reference to any guiding rules and

principles; i.e., ruling without supporting evidence. Evans v. Evans, 14 S.W. 3d

343, 345-46 (Tex. App. - Houston[14th Dist.] 2000, no pet.              There was no

evidence that if Roberto was unable to secure a loan, the Court or the parties would

sell the community real property to satisfy the $250,000.00. The record is devoid

that the trial court received any evidence in order to allow it the discretion to render

an opinion in making a division of the property.

      At the close of the hearing, through the aid of a Spanish speaking interpreter,

the trial court admonished Roberto and made the following findings of fact:

      He agreed to pay her 250,000 in the mediated settlement agreement by a
      loan. And because be did not get that loan, I'm ordering the property sold
      so Ms. Vazquez can be paid the $250,000. 4 RR 38: 10-13. emphasis
      added.

      I'm following their mediated settlement agreement. So even if they appeal
      and an appellate court would say I'm wrong, it comes back to me. I have
      discretion to divide it at that point. The property may be sold at that point to
      give them the money. I'm trying to save him money by making him
      understand that. And I don't know how I would divide all of this at that
      point because all of the assets, all of the debts, all of the property would be
      before me at that point for me to fully decide.

      But the point is, at that point, the property might be sold then. This needs to
      be resolved. My ruling is as close to the mediated settlement as I could
      get. 44 RR 39: 1-16. emphasis added.




                                           5
      The evidence reflects that the trial court admits that it abused its discretion in

its statement on the record: So even if they appeal and an appellate court would

say I'm wrong, it comes back to me. I have discretion to divide it at that point. Id.

Therefore, by the trial court's own admission, it has abused its discretion.

Therefore, this Court should reverse and remand to the trial court to enforce the

terms of the mediated settlement agreement.


                                      PRAYER

      The trial court clearly abused its discretion by not giving effect to the parties

intentions as expressed in the mediated settlement agreement and by making a

division of community property without any supporting evidence.                Therefore,

Roberto respectfully requests this Court to reverse the trial court's ruling, set aside

the mediated settlement agreement as provided by its terms and remand this matter

to the trial court consistent with the applicability of the law of Texas and for such

further relief to which Roberto Vazquez shows himself justly entitled.




                                           6
                                             Respectfully submitted,
                                             ~ ~w,> Put.IAJ...
                                             Katrina Dannhaus Packard
                                             Katrina Dannhaus Packard, P.C.
                                             SBN 15402400
                                             523 North Main Street
                                             P. 0. Box 119
                                             Schulenburg, Texas 78956
                                             Tel: (979) 743-4574
                                             Fax: (979) 743-4574
                                             Email: kdpwall@cvctx.com

                      CERTIFICATE OF COMPLIANCE

       As the attorney of record for Roberto Vazquez, Appellant, I certify that I
have complied with Tex. R. App. Proc. 9.4 in the preparation and presentation of
this brief to the Thirteenth Court of Appeals.

                                             ~~liu'.~L
                                             Katrina Dannhaus Packard




                         CERTIFICATE OF SERVICE

      In accordance with Tex. R. Civ. Proc. 21a, a copy of this pleading is being
provided, via e-filing, on the Ji>IL day of October, 2015 to the following counsel of
record:

      Ms. Deborah S. McClure
      P. 0. Box 968
      Tahoka, Texas 79373
      Fax: (806) 998-4863
      Email: deborahm@huffaker-law.com

                                             ~ ~ClAAN fJM.t~I..
                                             Katrina Dannhaus Packard



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