                                                                                    ACCEPTED
                                                                                04-15-00005-CV
                                                                    FOURTH COURT OF APPEALS
                                                                         SAN ANTONIO, TEXAS
                                                                           6/24/2015 1:15:13 AM
                                                                                 KEITH HOTTLE
                                                                                         CLERK

                              NO. 04-15-00005-CV

       ___________________________________________________
                                                       FILED IN
                                                4th COURT OF APPEALS
                                                 SAN ANTONIO, TEXAS
                                                06/24/2015 1:15:13 AM
                     IN THE COURT OF APPEALS        KEITH E. HOTTLE
                 FOURTH SUPREME JUDICIAL DISTRICT        Clerk

                            SAN ANTONIO, TEXAS

       ___________________________________________________


       IN RE ESTATE OF JACK HIROMI IKENAGA, Sr., Deceased

      ____________________________________________________

       On Appeal from the Probate Court No. 1, Bexar County, Texas
           Trial Court No. 2011-PC-4330 and 2011-PC-4330A
              Hon. Polly Jackson Spencer, Judge Presiding
     ______________________________________________________

                      APPELLANT’S BRIEF
     ______________________________________________________

                                         DAVID L. MCLANE
                                         9901 IH-10 West
                                         Ste. 695
                                         San Antonio, Texas 78230
                                         (210) 736-9966
                                         (210) 547-7932 fax
                                         dlmclanelaw@yahoo.com
                                         State Bar No. 00795517

                                         ATTORNEY FOR
                                         APPELLANT

                                         ORAL ARGUMENT
                                         REQUESTED




Sandra Ikenaga’s Appellant Brief                                        1
                 IDENTITY OF PARTIES AND COUNSEL

       In accordance with TEX. R. APP. P. 38.1(a), and for purposes of

disqualification and/ or recusal of members of this Honorable Court, the

following is a list of those parties involved in the instant cause:

1.             Hon. Polly Jackson Spencer, Judge, Probate Court       No. 1,

       Bexar County, Texas

2.             Hon. Tom Rickhoff, Judge, Probate Court No. 2, Bexar County,

       Texas

3.             Sandra Ikenaga, Plaintiff/ Appellant

4.             Jack Hiromi Ikenaga, Sr., Decedent

5.             Jack Hiromi Ikenaga, Jr., Defendant/ Appellee

6.             William D. Bailey, Temporary Administrator of the Estate of

       Jack Hiromi Ikenaga, Sr.

7.             Nancy Sumners, Defendant/ Appellee

8.             Christine Ikenaga, Defendant/ Appellee

9.             Patrick Gasiorowski, Defendant/ Appellee

10.            Eric J. Goodman, Defendant/ Appellee

11.            ACCC Holding Corporation

12.          Mark Stanton Smith, SBN 18649100, Attorney for William D.
       Bailey 3737 Broadway Ave., San Antonio, Texas 78209 (210) 820-

Sandra Ikenaga’s Appellant Brief                                           2
       3737
13.           William H. Ford SBN: 07246700 and Veronica S. Wolfe, SBN:
       24066095, The Ford Firm, PC, Attorney for Defendant Jack Ikenaga,
       Jr., 10001 Reunion Place, Ste. 640., San Antonio, Texas 78216 (210)
       731-6400
14.         Kevin M. Young, SBN 22199700, Shelayne Clemmer, SBN
       24044733, Prichard Hawkins McFarland & Young, LLP, Attorney for
       Nancy Sumners, Christine Ikenaga, Patrick Gasiorowski, and Eric
       Goodman, Union Square, Ste. 600, 10101 Reunion Place, San
       Antonio, Texas 78216
15.          Mike Cenatiempo, Cenatiempo & Ditta, LLP, 770 S. Post Oak
       Lane, Suite 500, Houston, Texas 77056
16.          Roger L. McCleary, SBN 13393700, Joseph S. Cohen, SBN
       04508370, Attorney at trial for ACCC Holding Corp., Bierne
       Maynard & Parsons, LLP, 1300 Post Oak Blvd., Fl. 25, Houston,
       Texas 77056
17.          Carolyn Lisa "Carrie" Douglas, SBN 24045800, Lauren
       McLaughlin, SBN 2405355, Strasburger & Price, LLP, Attorneys for
       Amegy Bank, The Bakery Building, 2301 Broadway, San Antonio,
       Texas 78215 (210) 250-6138
18.         Phillip M. Ross, SBN 17304200, Attorney for Sandra Ikenaga,
       1006 Holbrook Road, San Antonio, Texas 78218
19.         Sam Houston, Houston Dunn, Attorney for Appellee, 440
       Broadway Ste. 440, San Antonio, Texas 78209 (210) 326-2100

20.          David L. McLane, SBN 00795517, Attorney for Sandra
       Ikenaga, Appellant, 9901 IH-10 West, Ste. 695, San Antonio, Texas
       78230 (210) 736-9966
21.          Roland C. Colton, Colton Law Group, Attorney for Plaintiff/
       Appellant at trial, California Bar No. 79896, 28202 Cabot Road, Ste.
       300, Laguna Niguel, CA 92677
22.          John A. Donsbach, Georgia Bar 225827, Appearing Pro Hac
       Vice for Jack Ikenaga, Jr., Donsbach & King, LLC, 504 Blackburn
       Drive, Augusta, Georgia 30907
23.          Jason Bradley Ostrom, SBN, 24027710, Ostrom Sain, LLP
       Attorney for Sandra Ikenaga, 5020 Montrose Blvd, Ste. 310, Houston,


Sandra Ikenaga’s Appellant Brief                                         3
       Texas 77066 (713) 863-8891
24.          J. Ken Nunley, SBN: 15135600, Attorney for Jack Ikenaga, Jr.,
       1580 S. Main Street, 200, Boerne, Texas 78006 (830) 816-3333
25.         Alvaro Briseno, SBN: 03015250, Attorney for Sandra Ikenaga,
       10205 Oasis Street, Ste. 320, San Antonio, Texas 78216 (210) 340-
       9575
26.          Keith Morris, SBN 24032879, Morris Klevenhagen, LLP,
       Attorney for Sandra Ikenaga, 6363 Woodway, Ste. 570, Houston,
       Texas 77057 (713) 515-4828
27.         Ross Bennet, Jr., Corporate Counsel, ACCC Corporation, 420
       Lockhven Dr., Houston, Texas 77073
28.          Allen F. Cazier, SBN 04037500, Attorney for Jack Ikenaga Jr.,
       8626 Tesoro Dr., Ste. 500, San Antonio, Texas 78217 (210) 824-3278
29.          Michael L. Cook, SBN: 4741000, Attorney for Jack Ikenaga,
       Jr., Cook, Brooks, Johnson, PLLC, 7800 North Mopac, Ste. 215,
       Austin, Texas 78759 (512) 381-3000


                           TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                         2	  

]TABLE OF CONTENTS                                                      4	  

INDEX OF AUTHORITIES                                                    5	  

STATEMENT OF THE CASE                                                   8	  

ISSUE PRESENTED                                                         8

STATEMENT OF FACTS                                                      8

SUMMARY OF THE ARGUMENT                                                10

ARGUMENT                                                               12

PRAYER                                                                 29


Sandra Ikenaga’s Appellant Brief                                        4
                          INDEX OF AUTHORITIES

TEXAS CASES:

Beyers v. Roberts, 199 S.W.3d 354, 362, (Tex. App.-Houston [1st Dist.]
2006, pet. denied) ………………………………………………………….13

Boales v. Brighton Builders, Inc., 29 SW3d 159, 164 (Tex. App.- Houston
[14th Dist.] 2000, pet. denied)……………………………………………..20

Boerjan v. Rodriguez, 436 SW3d 307, 310 (Tex. 2014)…………..….20, 22

City of Arlington v. State Farm Lloyds, 145 SW3d 165m 167-168 (Tex.
2004)………………………………………………………………………27

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.
1979)……………………………………………………………………..12

Clanin v. Clanin, 918 S.W.2d 673, 678 (Tex. App.-Fort Worth 1996, no
writ)………………………………………………………………………12

Donzis v. McLaughlin, 981 S.W.2d 58, 63 (Tex. App.-San Antonio 1998, no
pet.)……………………………………………………………………….12

Dow Chemical Co. v. Francis, 46 SW3d 237, 242 (Tex. 2001)…………20

Esco Oil & Gas v. Sooner Pipe & Supply, 962 SW2d 193, 197 n.3 (Tex.
App.- Houston [1st Dist.] 1998, pet. denied)……………………………..19

Forbes, Inc. v. Grenada Biosciences, Inc., 124 SW3d 167, 172 (Tex.
2003)………………………………………………………………………20

Ford Motor Co. v Ridgeway, 135 SW3d 598, 601 (Tex. 2004)…………..21

Friendswood Dev. Co. v. McDade & Co. , 926 SW2d 280, 282 (Tex.
1996)……………………………………………………………………....23
In re Marriage of Ames, 860 S.W.2d 590, 592-93 (Tex. App.-Amarillo 1993,
no writ)……………………………………………………………………..13




Sandra Ikenaga’s Appellant Brief                                      5
Keim v. Anderson, 943 S.W.2d 938, 946 (Tex. App.-El Paso 1997, no
pet.)………………………………………………………………………...13

Kindred v. Con/Chem, Inc., 650 SW2d 61, 63 (Tex. 1983)………………..21

Lehrer v. Zwernemann, 14 SW3d 775, 777 (Tex. App.- Houston [1st Dist.]
2000, pet. denied)…………………………………………………………..20

Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig.
proceeding) (per curiam)…………………………………………………..12

Marsaglia v UTEP, 22 SW3d 1, 3 (Tex. App.- El Paso 1999, pet
denied)…………………………………………………………………19, 20

Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (Tex. 1939)…..12

McConathy v McConathy, 869 SW2d 341 (Tex. 1994)…………………...27

McLendon v. McLendon, 847 S.W.2d 601, 605 (Tex. App.-Dallas 1992, writ
denied)……………………………………………………………………..12

Merrell Dow Pharmaceuticals v Havner, 953 SW2d 706, 711 (Tex.
1997)………………………………………………………………………..21

Merriman v XTO Energy, Inc., 407 SW3d 244, 248 (Tex. 2013)………….19

Mid-Century Ins. v. Ademaj, 243 SW3d 618, 621 (Tex. 2007)…………….22

Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995)……………….12

Prayton v. Ford Motor Co., 97 SW3d 237, 241 (Tex. App.- Houston [14th
Dist.] 2002, no pet.)………………………………………………………..20

Ridgeway v Ford Mortor Co., 82 SW3d 26, 29 (Tex. App.- San Antonio
2002) rev’d other grounds 135 SW3d 598 (Tex. 2004)…………………..21

Saenz v. Southern Union Gas Co., 999 SW2d 490, 493 (Tex. App.- El Paso
1999, pet. denied)…………………………………………………………20

Science Spectrum Inc. v. Martinez, 941, SW2d 910, 911 (Tex. 1997)…...23

Sandra Ikenaga’s Appellant Brief                                          6
Timpte Indus. V. Gish, 286 SW3d 306, 310 (Tex. 2009)…………………22

Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 293 (Tex. 1976) (per
curiam)…………………………………………………………………….12

Webster v. Allstate Insurance, 833 SW3d 747, 750 (Tex. App.- Houston [1st
Dist.] 1992, no writ)……………………………………………………….22

STATUTES AND RULES:

U.S. Const. Amend. 5………………………………………….                                                18

U.S. Const. Amend. 14…..………………….………………….                                             18

Tex. Const. Art. 1§13……………………...…………………..                                            18

Tex. Const. Art. 1§19…………………………………………..                                              18

TEX. R. CIV. P. 11…………………………………………….                                                 12

TEX. R. CIV. P. 166a………..…………………………………                                               24

TEX. R. CIV. P. 166a(f)……...….……………………………..                                          21, 27

TEX. R. CIV. P.. 166a (g)………….…………………………                                             21

TEX. R. CIV. P. 166a (i)..........................................................   19, 20




Sandra Ikenaga’s Appellant Brief                                                          7
                        STATEMENT OF THE CASE

       This cause was heard on a Partial Motion for Summary Judgment and

a No Evidence Motion for Summary Judgment to the bench before the

Honorable Polly Jackson Spencer who granted said motions. Subsequently,

Appellant and Defendants entered into a settlement agreement, which was

read into the record of the Court on October 7, 2014 and signed by Judge

Polly Jackson Spencer on December 5, 2014. Appellant presents the

following point of error for review.

                              ISSUE PRESENTED

1.     Whether the Trial Court’s Judgment failed to strictly follow the

       Settlement Agreement of the parties as required by law.

2.     Whether there is sufficient evidence to support the Final Judgment.

3.     Whether the Court committed error by failing to consider evidence

       properly before the Court in the hearing on Defendant’s Motion for

       Summary Judgment.

                           STATEMENT OF FACTS

       The Decedent, Jack Hiromi Ikenaga, Sr., died on September 30, 2011

and his Will dated August 16, 1993 was admitted to Probate by Jack

Ikenaga, Jr. in the Probate Court No. 2, Bexar County, Texas before the

Hon. Thomas Rickhoff. Subsequently, when it appeared that Appellant



Sandra Ikenaga’s Appellant Brief                                             8
would take substantially all of the estate under the Will, Jack Ikenaga, Jr.

changed his position to contest the Will previously sworn to before the

Court. The matter was transferred to Probate Court No. 1, Bexar County,

Texas, before the Hon. Polly Jackson Spencer. The Court held a hearing on

a hybrid motion for Summary Judgment on September 17, 2014, filed by

Defendants Jack Ikenaga, Jr., Christine Ikenaga, Eric Goodman, Nancy

Sumners,and Patrick Gasiorowski, wherein the Court sustained Defendant’s

objections to Sandra Ikenaga’s response to the Traditional Motion for

Summary Judgment and No Evidence Motion for Summary Judgment on the

basis that the response failed to include a supporting affidavit of authenticity

of the documents attached to said response, although the documents

referenced in Sandra Ikenaga’s response were those same documents

attached to Defendant’s motions. Afterward the Court did not consider the

evidence attached to Sandra Ikenaga’s response and granted Defendant’s

Motion for Summary Judgment, (RR- Vol. 13 p91, ln 7-13) as recited in the

record (See CR- pp 4611-4618).         Subsequently, the parties, through a

prolonged mediation, entered into a purported settlement agreement. The

Settlement Agreement was read into the record on October 7, 2014 and the

Court Rendered Judgment in accordance with the recited Settlement

Agreement. See RR- Vol. 15, p 25, ln 24-25. Subsequently, the parties



Sandra Ikenaga’s Appellant Brief                                              9
could not agree on the form and substance of the Final Judgment and the

Defendant’s moved for entry of the judgment on December 5, 2014. The

Court signed the Final Judgment on December 5, 2015, which does not

comport with the Settlement Agreement and exceeds the Settlement

Agreement between the parties. Sandra Ikenaga, plaintiff in the underlying

litigation regarding this estate, subsequently timely filed this appeal.

                     SUMMARY OF THE ARGUMENT

       The Final Judgment of the Court does not strictly follow the Settlement

Agreement of the Parties as read into the record on October 7, 2014, and entered

rulings not agreed upon by the parties as to the pleadings on file, as well as

distributions of property not agreed to by the parties and to the detriment of

Appellant. The Final Judgment is required to strictly conform to the terms of the

agreement. Additionally, as no evidence was adduced at the hearing wherein the

settlement agreement was read into the record, there was no evidence admitted to

support the additional terms of the Final Judgment not contained in the dictated

settlement agreement. The Defendants misrepresented the settlement agreement in

the Final Judgment.

       Additionally, the Settlement Agreement entered into by the parties would

not likely have been agreed to by Appellant but for the Court's error in sustaining

Defendant’s objections to Appellant’s summary judgment evidence. Defendant’s



Sandra Ikenaga’s Appellant Brief                                           10
objected that Appellant’s evidence was not supported by and Affidavit of

Authenticity as to the documents attached thereto, although Appellant’s counsel

argued that the evidence complained of was attached to Defendants’ Motion for

Summary Judgment and should be considered. The Court sustained the objection

(RR Vol. 13, p 91 ln 7-23) and did not consider Appellant’s summary judgment

evidence produced in response to the Defendants’ traditional motion for partial

summary judgment and the no evidence motion for summary judgment. The trial

Court granted Defendant’s Motion, essentially dismissing almost all of Appellant’s

causes of action. (CR- Vol. 7- p 4611-4618). Appellant contends that the Court

erred in sustaining the objection and not considering the evidence attached because

the affidavit of Authenticity was not required to support the evidence provided in

support of the response to the motions for summary judgment in that the

Defendants, through their own motion, had tendered the evidence to the Court.

Additionally, the evidence tendered in the form of affidavits had been filed

multiple times throughout the course of the litigation, without objection, and had

been admitted and reviewed by the Court. Under the law of the case, the evidence

was admissible and should have been considered.




Sandra Ikenaga’s Appellant Brief                                          11
                                   ARGUMENT

POINT OF ERROR NO. 1 AND 2: The Trial Court’s Judgment failed

to strictly follow the Settlement Agreement of the parties as required by

law. There is insufficient evidence to support the Trial Court’s Final

Judgment.

       A settlement agreement between parties is enforceable if it is written

and filed as part of the record or if it is recited in open court. TEX. R. CIV.

P. 11. These agreements are binding on the parties. McLendon v. McLendon,

847 S.W.2d 601, 605 (Tex. App.-Dallas 1992, writ denied) (citing City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979)). A

final judgment rendered upon a settlement agreement must be in strict and

literal compliance with the agreement. Vickrey v. Am. Youth Camps, Inc.,

532 S.W.2d 292, 293 (Tex. 1976) (per curiam); Donzis v. McLaughlin, 981

S.W.2d 58, 63 (Tex. App.-San Antonio 1998, no pet.); see Matthews v.

Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (Tex. 1939). If the terms of the

trial court's judgment conflict with the terms of the settlement agreement, the

judgment is unenforceable. Clanin v. Clanin, 918 S.W.2d 673, 678 (Tex.

App.-Fort Worth 1996, no writ). A court "cannot render a valid agreed

judgment absent consent at the time it is rendered." Padilla v. LaFrance, 907

S.W.2d 454, 461-62 (Tex. 1995); see Mantas v. Fifth Court of Appeals, 925



Sandra Ikenaga’s Appellant Brief                                            12
S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (per curiam). As a general

rule, a court's modifications to settlement agreements are grounds for

reversal where the modifications "add terms, significantly alter the original

terms, or undermine the intent of the parties." Beyers v. Roberts, 199 S.W.3d

354, 362, (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (citing Keim v.

Anderson, 943 S.W.2d 938, 946 (Tex. App.-El Paso 1997, no pet.); In re

Marriage of Ames, 860 S.W.2d 590, 592-93 (Tex. App.-Amarillo 1993, no

writ)).

          The Trial Court erred in signing the Final Judgment specifically with

regard to the parties agreements regarding (1) the validity of the decedent’s

Will; (2) withdrawal of Sandra Ikenaga’s objections to ACCC Holding

Corporation (hereinafter referred to AHC) claim of $489060.87, and

Christine Ikenaga’s claims; (3) the lack of indemnification of Sandra

Ikenaga by the Estate or any Defendant; and (4) the distribution of property

to Sandra Ikenaga.

   1. Validity of the Will

          The settlement agreement read into the record states “All parties will

   stipulate and agree that any alleged will of Jack Ikenaga, Sr. is null and

   void and of no effect. (RR- Vol. 15 p5 ln 13-15). “And this agreement

   and release will also take care of any and all purported trusts and any



Sandra Ikenaga’s Appellant Brief                                             13
   issues arising therefrom.” (RR- Vol. 15 p5 ln 16-18). However, the

   Final Judgment instead states that “The Court finds that neither the

   “1993 Will” nor the “1993 Trust” are valid testamentary documents

   and further finds that no party is aware of any unrevoked will or

   trust that Decedent may have executed. Therefore the Court Orders

   that each party (i) shall refrain forever from directly or indirectly seeking

   to have the 1993 Will or any other will or purported Will of the Decedent

   admitted to probate by any court in any jurisdiction whatsoever; (ii) shall

   never use, represent or rely upon the 1993 Will or 1993 Trust as evidence

   of any title to any interest such party may claim in the Estate of Estate

   Property, (iii) shall never claim title to any of the Decedent’s property

   benefits, insurance, contacts or other rights SAVE AND EXCEPT as

   provided by this Final Judgment.” There is no evidence in the record to

   support the Court’s findings with regard to the Will or Trust documents

   referenced therein. The agreement of the parties was exceeded by the

   Court’s orders regarding the validity of the Will, as well as the orders

   regarding the parties treatment of the Will. The intent of the parties

   seems clear as to abandon their pleadings regarding the probate of the

   Will and to proceed through the rules of intestacy as to the distribution of

   the Estate. The Court exceeded the agreement of the parties as read into



Sandra Ikenaga’s Appellant Brief                                             14
   the record.     The Final Judgment does not strictly comply with the

   agreement of the parties and reaches legal conclusions and makes

   findings unsupported by the record. The Defendants promulgation of the

   proposed Order to the Court (See RR- Vol. 17) misrepresents to the

   Court that the proposed Final Judgment strictly and accurately represents

   the Settlement Agreement read into the record. It does not, and therefore

   fails. Because of this, the Court of Appeals must remand the case back to

   the Trial Court for entry of a proper Judgment.

   2. Withdrawal of Sandra Ikenaga’s objections to ACCC Holding

       Corporation (hereinafter referred to AHC) claim of $489,060.87, and

       Christine Ikenaga’s claims

              The Settlement agreement between the parties read into the

   record states that Sandra Ikenaga “will withdraw objection and

   opposition to AHC’s claim against the estate for approximately…

   $489,060.82 within 14 days of today’s date. Plaintiff will withdraw

   objection to Christine Ikenaga’s claim against the estate for

   approximately $200,000.00 within 14 days of today’s date.” RR Vol. 15

   p5 ln 23 to p6 ln8. However the Final Judgment states “ the court finds

   that Sandra’s objection to AHC’s claim against the Estate in the amount

   of $489,060.82 (“AHC’s Claim) and her objection to Christine Ikenaga’s



Sandra Ikenaga’s Appellant Brief                                         15
   claim against the Estate in the amount of $200,000.00 (“Christine’s

   Claim”) are hereby overruled to the extent not already withdrawn by

   Sandra.”     Again, there is no basis for the Court’s overruling of the

   objections to said claims, and it was not the agreement of the parties that

   the objections be overruled, but instead that the objections be withdrawn.

   The Court would have to have had the objections presented to the Court

   in order to overrule same, and the record does not support that the Court

   in fact overruled said objections. The Final Judgment does not strictly

   comply with the agreement of the parties and reaches legal conclusions

   and makes findings unsupported by the record.            The Defendants

   promulgation of the proposed Order to the Court (See RR- Vol. 17)

   misrepresents to the Court that the proposed Final Judgment strictly and

   accurately represents the Settlement Agreement read into the record. It

   does not, and therefore fails. Because of this, the Court of Appeals must

   remand the case back to the Trial Court for entry of a proper Judgment.

   3. Indemnification of Sandra Ikenaga

       The Final Judgment does not contain any language that indemnifies

   Sandra Ikenaga by the Defendants. (CR Vol. 7 p 4681). The Settlement

   agreement between the parties states that parties would indemnify each

   other pursuant to the settlement agreement. (RR Vol. 15 p 21, ln 7-10)



Sandra Ikenaga’s Appellant Brief                                             16
   However, the Final Judgment merely has the defendant’s being

   indemnified by Sandra Ikenaga without any reciprocal indemnification

   by the Defendants to Sandra Ikenaga. The Final Judgment does not

   strictly comply with the agreement of the parties and fails to include

   material and substantial agreements made by the parties supported by the

   record. The Defendants promulgation of the proposed Order to the Court

   (See RR- Vol. 17) misrepresents to the Court that the proposed Final

   Judgment strictly and accurately represents the Settlement Agreement

   read into the record. It does not, and therefore fails. Because of this, the

   Court of Appeals must remand the case back to the Trial Court for entry

   of a proper Judgment.

   4. Distribution of Property to Sandra Ikenaga

   In the Settlement Agreement read into the record, Sandra Ikenaga agreed

to turnover one (singular) Lexus automobile to AHC (RR Vol 15 p8 ln 5-7).

All clarifications regarding the Settlement Agreement were resolved on the

record to the Court. RR Vol. 15 p 22, ln 13-17. However, the Final

Judgment orders Sandra Ikenaga to deliver a 2007 Lexus VIN

JTH6F746F07002870 and a 2010 Lexus VIN JTHLL1EF2A5041600 to

AHC. CR Vol. 7 p. 4679. Additionally the Settlement Agreement states

“she will maintain the personal property in her possession except for those



Sandra Ikenaga’s Appellant Brief                                            17
items we’ve already identified in Exhibit A.” RR Vol. 15 p. 7 ln 21-23.

Furthermore, the testimony of Sandra Ikenaga in her deposition transcript

(CR Vol. 4 p 2504 (transcript page 481 line6-14), which is not refuted by

any evidence to the contrary, clearly shows that she is claiming a Lexus

motor vehicle as her own personal property and not that of the Estate. The

divestment of Sandra Ikenaga’s personal property, specifically a 2010 Lexus

automobile with approximately 5400 miles, through the misrepresentations

contained in the Final Judgment as to the Settlement Agreement between the

parties acts as an injustice to Sandra Ikenaga, and is not supported by

evidence in the record, is not supported by sufficient evidence in the record,

does not strictly comply with the Settlement Agreement, and amounts to a

lack of due process and due course of law under the 5th and 14th

Amendments to the United States Constitution and Art. I, §§ 13 and 19 of

the Texas Constitution. The Final Judgment does not strictly comply with

the agreement of the parties and reaches legal conclusions and makes

findings unsupported by the record. The Defendants promulgation of the

proposed Order to the Court (See RR- Vol. 17) misrepresents to the Court

that the proposed Final Judgment strictly and accurately represents the

Settlement Agreement read into the record. It does not, and therefore fails.

Because of this, the Court of Appeals must remand the case back to the Trial



Sandra Ikenaga’s Appellant Brief                                           18
Court for entry of a proper Judgment.

4.     POINT OF ERROR NO. 3:             The Court committed error by

       failing to consider evidence properly before the Court in the

       hearing on Defendant’s Motion for Summary Judgment.

       The Appellant was the non-movant for the partial Motion for

Summary Judgment and No-Evidence Motion for Summary Judgment in the

underlying cause. The movant in a traditional motion for summary judgment

bears the burden of proving that there is no genuine issue as to any material

fact as to each element of its cause of action or defense, or that there is no

genuine issue as to any material fact in at least one element of the

nonmovant’s affirmative defense or the nonmovants cause of action. The

non-movant has the entire burden of proof once the movant files a no-

evidence motion. Tex. R. Civ. Pro. 166a(i). The burden of proof in a

summary judgment proceeding is on the same party who would have the

burden of proof at trial. Marsaglia v UTEP, 22 SW3d 1, 3 (Tex. App.- El

Paso 1999, pet denied); Esco Oil & Gas v. Sooner Pipe & Supply, 962

SW2d 193, 197 n.3 (Tex. App.- Houston [1st Dist.] 1998, pet. denied). The

burden on the nonmovant is to raise a genuine issue of material fact about

the element challenged by the motion for summary judgment. Tex. R. Civ.

Pro. 166a(i). Merriman v XTO Energy, Inc., 407 SW3d 244, 248 (Tex.



Sandra Ikenaga’s Appellant Brief                                           19
2013); Dow Chemical Co. v. Francis, 46 SW3d 237, 242 (Tex. 2001);

Prayton v. Ford Motor Co., 97 SW3d 237, 241 (Tex. App.- Houston [14th

Dist.] 2002, no pet.) The trial court must resolve all doubts about the facts

in favor of the nonmovant. Lehrer v. Zwernemann, 14 SW3d 775, 777 (Tex.

App.- Houston [1st Dist.] 2000, pet. denied).

       To defeat a no-evidence motion for summary judgment, the non-

movant must prove there is a genuine issue of material fact on the elements

challenged by the movant. Boerjan v. Rodriguez, 436 SW3d 307, 310 (Tex.

2014). The Notes and Comments section of TRCP 166a(i) state that to

defeat a no-evidence motion, the nonmovant “is no required to marshal its

proof; its response need only point out evidence that raises a fact issue on

the challenged elements.” Saenz v. Southern Union Gas Co., 999 SW2d

490, 493 (Tex. App.- El Paso 1999, pet. denied). The nonmovant should

present summary judgment evidence in the same form that would be

admissible at trial. To defeat a no-evidence motion for summary judgment,

the non-movant must produce more than a scintilla of evidence to raise a

genuine issue of material fact on the challenged elements. TRCP 166a(i).

Forbes, Inc. v. Grenada Biosciences, Inc., 124 SW3d 167, 172 (Tex. 2003);

Boales v. Brighton Builders, Inc., 29 SW3d 159, 164 (Tex. App.- Houston

[14th Dist.] 2000, pet. denied). If the nonmovant presents more than a



Sandra Ikenaga’s Appellant Brief                                          20
scintilla of evidence of the challenged elements, it is entitled to a trial on the

merits. Ridgeway v Ford Mortor Co., 82 SW3d 26, 29 (Tex. App.- San

Antonio 2002) rev’d other grounds 135 SW3d 598 (Tex. 2004).                     A

nonmovant produces more than a scintilla when the evidence “rises to a

level that would enable reasonable and fair-minded people to differ in their

conclusions.”    Ford Motor Co. v Ridgeway, 135 SW3d 598, 601 (Tex.

2004). Marsaglia v. Utep, 22 SW3d at 4; cf. Merrell Dow Pharmaceuticals

v Havner, 953 SW2d 706, 711 (Tex. 1997). A nonmovant produces no more

than a scintilla when the evidence is “so weak as to do no more than create a

mere surmise or suspicion” of a fact.        Forbes, Inc. 124 SW3d at 172;

Marsaglia, 22 SW3d at 4; cf. Kindred v. Con/Chem, Inc., 650 SW2d 61, 63

(Tex. 1983).

       The Court should give the nonmovant the opportunity to cure any

defects in its summary judgment evidence identified by the movant in its

reply. Tex. R. Civ. Pro. 166a(f). A party should be given opportunity to

cure defects in form of affidavits and attachments.) See also, Tex. R. Civ.

Pro. 166a(g) (a court may deny summary judgment or grant continuance to

allow nonmovant to obtain affidavit or deposition testimony necessary to

support its claims). The opportunity to cure in TRCP 166a(f) should apply

to the nonmovant in a no-evidence motion for summary judgment, because



Sandra Ikenaga’s Appellant Brief                                               21
if the Court rules adversely to the party with the burden of proof, the

nonmovant in a no-evidence motion for summary judgment, it is fatal to the

nonmovants case. See, Webster v Allstate Insurance, 833 SW3d 747, 750

(Tex. App.- Houston [1st Dist.] 1992, no writ), stating trial court should not

have sustained objections to a party’s evidence on day of hearing without

giving party chance to amend.

       A traditional motion for summary judgment is reviewed on appeal de

novo. Mid-Century Ins. v. Ademaj, 243 SW3d 618, 621 (Tex. 2007). In

reviewing a no-evidence motion for summary judgment, the appellate court

must consider all the evidence in the light most favorable to the party against

whom the summary judgment was rendered, crediting evidence favorable to

that party of reasonable jurors could and disregarding contrary evidence

unless reasonable jurors could not. Boerjan, 436 SW3d at 311-312; Timpte

Indus. V. Gish, 286 SW3d 306, 310 (Tex. 2009).

       In the case at bar, the Defendants moved for a partial tradition motion

for summary judgment on their counter-claims for declaratory relief

contending that Decedent’s stock in AHC remained his separate property

and that Sandra Ikenaga, Appellant, never acquired any interest therein.

Defendants further moved for summary judgment on their affirmative

defense of statute of limitations.    Appellant responded that the alleged



Sandra Ikenaga’s Appellant Brief                                            22
transfers of the stock to the Defendants was null and void and of no legal

effect, and provided summary judgment evidence to support same in the

form of deposition transcripts of Eric Goodman, Christine Ikenaga, and

Nancy Sumner, and incorporated by reference the Defendants’ exhibits and

evidence attached to Defendants’/ Movants’ Motion for Partial Summary

Judgment, the Deposition transcript of Sandra Ikenaga, Vol.1, the affidavit

of Jack Ikenaga, Jr. with the attached Sales and Purchase Agreement for

Shares of Captial Stock, the Sharholder’s Agreement attached to the

Affidavit of Ross Bennet, and the Affidavit of Philip Bither. The non-

movant’s summary judgment evidence raised genuine issues of material fact

as to the legitimacy of the transfer of the stock in question to the

Defendant’s by the Decedent, the Texas residency of the Decedent at the

time the Stock was obtained, and whether the transfer of the stock, if

legitimate was a fraud on the community, whether under either Texas or

Georgia law. CR Vol. 4 p 2578 to 2589. The Court was to take as true all

evidence favorable to the non-movant to indulge every reasonable inference

and resolve any doubts in non-movant’s favor. Science Spectrum Inc. v.

Martinez, 941, SW2d 910, 911 (Tex. 1997); Friendswood Dev. Co. v.

McDade & Co. , 926 SW2d 280, 282 (Tex. 1996). The Court additionally

erred in permitting the testimony of John Donsbach, an attorney from



Sandra Ikenaga’s Appellant Brief                                        23
Georgia, who essentially testified as an expert at the hearing on the motion

for summary judgment regarding the applicability of Georgia Law and that

the stock in question was the Separate property of Decedent, (RR- Vol. 13, p

41, ln 24 to page 50 ln 4) in that no testimony is permitted in a motion for

summary judgment. Tex. R. Civ. Pro. 166a.         The non-movant raised a

genuine issue of material fact as to whether the discovery rule applied to the

statute of limitations defense and further negated the elements of the statute

of limitations defense by producing evidence that the nature and transfer of

the Decedent’s stock made the basis of the motion had in fact been

fraudulently transferred during the pendency of this litigation, thereby

supporting nonmovants causes of action well within any statute of

limitations.

       The Defendants’ No-Evidence Motion for Summary Judgment

asserted there was no evidence that Defendants (1) defrauded the

community; (2) participated in a conspiracy to defraud the community;(3)

were unjustly enriched; (4) hold monies that belong to Sandra Ikenaga; or

(5) engaged in fraudulent transfers of any type. The summary judgment

evidence provided in response to the partial summary judgment as well as

the no-evidence motion for summary judgment provide more than a scintilla

of evidence that Defendants’ fraudulently executed counterparts required by



Sandra Ikenaga’s Appellant Brief                                           24
the shareholder agreement during the course of the litigation in order to

fraudulently confer ownership of the stock allegedly transferred by Decedent

to Defendants, thereby clearly demonstrating a conspiracy to defraud the

community, actually defraud the community, and engage in fraudulent

transfers of estate and community property. See CR Vol. 4 pg 2579 to 2593.

It is important for the Court to note that at the time the Motions for

Summary Judgment were proffered, the Will of Jack Hiromi Ikenaga, Sr.

had still been sworn to as authentic by Jack Ikenaga, Jr. and had not been

withdrawn. Had the Court determined that the transfer to the children was

non-existent or in the alternative fraudulent, and set aside said transfer, the

resulting stock of decedent would have been subject to testamentary transfer

to appellant, or in the alternative, subject to distribution under the rules of

intestacy to which appellant would have shared, thereby resulting in a

benefit of millions of dollars to Appellant. It is clear that there was more

than a scintilla of evidence that the stock transfers were conducted

fraudulently.      As such, the elements of unjust enrichment are also

supported. The cause of action for money had and received stems from the

sale of the stock fraudulently transferred to Defendants, thereby making the

monetary sales proceeds subject to the money had money received cause of

action, and similarly substantiated by more than a scintilla of evidence in the



Sandra Ikenaga’s Appellant Brief                                            25
summary judgment evidence adduced by Appellant and tendered to the

Court. The summary judgment evidence clearly shows that there had been a

fraudulent transfer of the stock both before decedents death, as well as after,

and more importantly, during the course of the underlying litigation, that

supports appellant’s cause of action under the Texas Uniform Fraudulent

Transfer Act. Additionally, nonmovant produced evidence that the

       Defendants objected to Plaintiff’s Pleadings as to the Discovery Rule,

as well as Plaintiffs’ evidence in that it failed to contain a supporting

affidavit for the documents attached to Plaintiff’s response to the no-

evidence motion for summary judgment, and that the response to the no-

evidence motion for summary judgment was untimely and outside the scope

of the pleadings. RR Vol 13 p 3 ln 4 to p 4 ln 8. There were no written

objections made before the hearing and the objections were raised orally at

the time of the hearing. RR Vol 13 p3 ln 4. The appellant’s first notice that

there were alleged defects in her response were on the day of the hearing on

Defendants’ partial motion for summary judgment and no-evidence motion

for summary judgment. Sandra Ikenaga’s counsel requested that the court

accept evidence it produced in response to the no-evidence motion for

summary judgment to cure alleged defects in the response to the partial

motion for summary judgment in order to remediate some of the defects in



Sandra Ikenaga’s Appellant Brief                                            26
the response. Under Texas Rule of Civil Procedure 166a(f) the Court should

have given the nonmovant, appellant, the opportunity to cure any defects in

its summary judgment evidence identified by the movant in its reply,

especially given that none of the objections to nonmovants evidence or

pleadings were in writing or provided to nonmovant prior to the actual

hearing on the motions for summary judgment. Instead, the Court sustained

the defendant objections, found nonmovants pleadings as to the discovery

rule to be defective, and sustained the defendants objection that non-movants

summary judgment evidence was inadmissible due to the failure to provide

an affidavit authenticating the documents, despite nonmovant’s protestations

that the evidence did not need an affidavit to be authenticated in that it was

evidence propounded by the Defendants in support of their motion.         The

failure of the Trial Court to provide an opportunity to cure was fatal to non-

movants case. CR Vol. 7 pp 4611to 4618.

       The disturbing part of the Court’s ruling is that the vast majority of

the defendant’s summary judgment evidence was in the form of deposition

excerpts.    When relying on deposition excerpts, it is not necessary to

authenticate them. McConathy v McConathy, 869 SW2d 341 (Tex. 1994).

Further, since Defendants’ no-evidence motion alleged a complete lack of

evidence, specific references to the record are not necessary.        City of



Sandra Ikenaga’s Appellant Brief                                           27
Arlington v State Farm Lloyds, 145 SW3d 165m 167-168 (Tex. 2004). The

remainder of the evidence, with the exception of an email, was produced by

Defendants through the affidavits attached to their motion for summary

judgment. These affidavits and the documents attached to them regarding

the sale of the stock in question should have been admitted and considered

by the Court and any doubts resolved in favor of the nonmovant. The Court

erred in sustaining the Defendant’s objection to nonmovant’s summary

judgment evidence, and should have overruled same, admitted the evidence

and concluded that a genuine issue of material fact existed as to each of non-

movants causes of action and denied the motions for summary judgement.

In the alternative, at the very least, the court should have denied the motion

or continued the matter in order to provide nonmovant an opportunity to

cure the alleged defects. This would have had no prejudice on the movant.

Conversly, the trial Court’s failure to provide an opportunity to cure the

alleged defects proved fatal to nonmovant’s case, thereby forcing

nonmovant into a vastly inferior position in this litigation, and forcing her to

settle this matter for millions of dollars less than what should have been

awarded through this estate. Due to these errors, and in the interest of

justice, the Court of Appeals should reverse and remand this cause back to

the trial court for further proceedings.



Sandra Ikenaga’s Appellant Brief                                             28
                                      PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant prays this

Honorable Court sustain the points of error enumerated above and reverse

the Final Judgment of the trial Court and remand for a new trial, as well as

all such other and further relief, at law or in equity, to which Appellant may

show herself to be justly entitled.

                                          RESPECTFULLY SUBMITTED,

                                          THE MCLANE LAW FIRM
                                          The Colonnade
                                          9901 IH-10 West, Ste.695
                                          San Antonio, Texas 78230
                                          Email: dlmclanelaw@yahoo.com
                                          Telephone: (210) 736-9966
                                          Facsimile: (210) 547-7932


                                          By:_/s/ David L. McLane
                                          DAVID L. MCLANE
                                          State Bar No.: 00795517
                                          ATTORNEY FOR APPELLANT
                                          Sandra Ikenaga




Sandra Ikenaga’s Appellant Brief                                           29
                    CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4 (i)(3), the

undersigned counsel hereby certifies that the Petition for Discretionary

Review in the above styled and numbered cause is in compliance with said

rules and has 4622 words included as set forth in TRAP Rule 9.4(i)(1).

       SIGNED this 24th day of June, 2015.



       /s/ David L. McLane
       DAVID L. MCLANE


                        CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing

Appellant’s Brief was delivered in accordance with the Texas Rules of

Appellate Procedure, on the 24th day of June, 2015, on the following:

PHILIP M. ROSS
1006 Holbrook Road
San Antonio, Texas 78218
philipmross@hotmail.com

MICHAEL J. CENATIEMPO
770 South Post Oak Lane, Ste. 500
Houston, Texas 77056
mikecen@cenatiempo.com


JOSEPH S. COHEN
1300 Post Oak Boulevard, Ste. 2500
Houston, Texas 77056
jcohen@bmpllp.com



Sandra Ikenaga’s Appellant Brief                                         30
MARK STANTON SMITH
3737 Broadway, Ste. 310
San Antonio, Texas 78209
atysmith@heardandsmith.com



WILLIAM H. FORD
10000 Reunion Place, Ste. 640
San Antonio, Texas 78216
bill.ford@fordmurray.com


KEVIN M. YOUNG
10101 Reunion Place, Ste. 600
San Antonio, Texas 78216
kyoung@phmy.com


Sam Houston




210.775.0882 Direct
sam@hdappeals.com


                                   /s/ David L. McLane________
                                   DAVID L. MCLANE




Sandra Ikenaga’s Appellant Brief                                 31
