                            NUMBER 13-16-00610-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ANTONIO ARRIAGA AND
INEZ LARA ROSALES,                                                         Appellants,

                                           v.

OBDULIA MARTINEZ ARRIAGA,
ANTONIO MARTINEZ ARRIAGA JR.,
AND REYNA LUISA MARTINEZ ARRIAGA,                                           Appellees.


                   On appeal from the 197th District Court
                         of Willacy County, Texas.


 DISSENTING/CONCURRING MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Contreras and Hinojosa
  Dissenting/Concurring Memorandum Opinion by Justice Contreras

      I agree with the majority that the Rule 11 agreement signed by counsel for appellant

Inez Lara Rosales constituted an agreed judgment, thereby effectively dismissing her
claims. However, I disagree with the majority’s conclusion that the statements made by

appellant Antonio Arriaga in open court on August 24, 2016 constituted an unequivocal

and unambiguous abandonment of his claims in trial court cause number 2015-CV-0316-

A. Therefore, I respectfully dissent in part and concur in part.

       As the majority correctly notes, we must determine Arriaga’s intent from the

language he used, examining the surrounding circumstances, including the state of the

pleadings, the allegations made, and the attitude of the parties with respect to the issue.

See In re J.M., 352 S.W.3d 824, 826 (Tex. App.—San Antonio 2011, no pet.); Laredo Med.

Grp. v. Jaimes, 227 S.W.3d 170, 174 (Tex. App.—San Antonio 2007, pet. denied). At the

August 24, 2016 hearing, the trial court called cause number cause number 2015-CV-

0316-A, and counsel for appellees then expressed his understanding that Arriaga would

be “dismissing any claim he has in that case” (emphasis added) but did not “know the

extent of that dismissal.” There was no discussion as to what counsel meant by “that

case”; but, given the circumstances, it would be entirely reasonable to interpret that phrase

as referring to the other case involving the same parties and subject matter (i.e., trial court

cause number 2014-CV-0100-A)—even if Arriaga’s claims in that other case were

technically no longer pending.

       Arriaga then explained to the court that “I am no longer interested in pursuing this

case” (emphasis added). Arriaga was proceeding without representation by counsel, and

his statement appears in the record only as translated from Spanish to English by

Rosales’s counsel. Arriaga did not testify under oath, he provided no further explanation

regarding his intentions, and his statement was not clarified through questions posed by

the other parties or by the trial court. There was no discussion of the numerous, detailed



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factual and legal allegations made by Arriaga against appellees in his first amended

petition, nor was there a distinction made between the two cause numbers. The trial court

explicitly set a future hearing to resolve “both” cases, yet in the interim, issued the order

dismissing Arriaga’s claims with prejudice.

       It is also noteworthy that, immediately after the order of dismissal was entered,

Arriaga filed a verified motion to set the dismissal aside. In that motion, he averred that

there was a misunderstanding, distinguished his actions regarding the prior lawsuit, and

affirmatively stated that he was “still keeping his causes of action viable” regarding

trespass to try title and the wrongful taking of “personalty.” Arriaga requested that the

court grant an evidentiary hearing regarding these allegations. He continued to assert his

request for affirmative relief at the subsequent hearing on October 19, 2016.

       Reading Arriaga’s statement in context with the remainder of the proceedings—in

conjunction with the fact that Arriaga was not represented by counsel, put under oath, or

provided with a translator for the duration of the hearing—I would conclude that his

statement did not constitute an affirmative stipulation to dismiss his claims in cause

number 2015-CV-0316-A with prejudice. See In re C.C.J., 244 S.W.3d 911, 921 (Tex.

App.—Dallas 2008, no pet.). Although cause number 2015-CV-0316-A was the only case

called by the trial court at the August 24, 2016 hearing, Arriaga’s translated reference to

“this case” may have meant only trial court cause number 2014-CV-0100-A, especially

given the fact that it was directly preceded by appellees’ counsel’s reference to “that case.”

       I would conclude that Arriaga’s statement was unclear and ambiguous and,

therefore, should have been disregarded by the trial court. In re C.C.J., 244 S.W.3d at




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921; Laredo Med. Grp., 227 S.W.3d at 174. For these reasons, I would sustain appellants’

first issue and reverse the trial court’s judgment dismissing Arriaga’s claims.



                                                               DORI CONTRERAS
                                                               Justice

Delivered and filed the 30th
day of November, 2018.




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