                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-09-356-CV


CINDY PENA                                                      APPELLANT

                                      V.

MICHAEL A. SMITH                                                  APPELLEE

                                  ------------

          FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                  ------------

                                 OPINION
                                  ------------

                              I. INTRODUCTION

     In three issues, Appellant Cindy Pena appeals the trial court‘s orders

summarily enforcing a disputed mediated settlement agreement between her and

Appellee Michael A. Smith. We will reverse and remand.

                              II. BACKGROUND

     On or about August 14, 2008, Smith and Pena entered into an

―Unimproved Property Contract‖ in which Pena agreed to sell to Smith a three-
acre tract of land near Boyd. According to Smith, he signed closing documents

and delivered checks to the title company for earnest money and for the balance

due under the property contract, but Pena refused to sign the deed and the

closing documents because the deed did not contain a reservation of mineral

rights in her favor.1

      Smith sued Pena for breach of the property contract.            The trial court

ordered Smith and Pena to attend mediation, where they executed an ―Agreed

Mediated Settlement Agreement.‖ Pursuant to the settlement agreement, Smith

and Pena agreed, among other things, that Smith ―will get the surface rights to

land and all other rights, if any‖ and that Pena ―will be allowed to retain her

mineral interests in the property‖ and ―will & must execute all closing documents

w/ Western Title Company on or before June, 1, 2009.‖ Pena also agreed to

―appoint[] Hunter Magee [Pena‘s attorney] limited power of attorney to execute all

documents necessary to close the sale of the property as of June 2, 2009, if for

any reason [Pena] cannot or will not execute some or all documents needed to

close the sale of the property.‖

      1
      In an affidavit attached to her response to Smith‘s motion for summary
judgment, Pena stated,

      A woman at the title company gave me the contract for the sale of
      the three acre tract and after I signed it, the same woman then gave
      me a separate document which indicated that I was also selling to
      Mr. Smith the mineral rights/interests in the three acre tract. This
      was the first time I had ever seen this document concerning the sale
      of my mineral rights/interests and I refused to sign it and told the title
      company woman that it was never my intention to sell the mineral
      rights/interest to Mr. Smith and that I would not do so.
                                          2
      In June 2009, Smith filed a ―Motion to Sign Final Order.‖ He contended

therein that he and Pena had attended mediation, which resulted in the

settlement agreement, but that Pena had not executed any documents

necessary to facilitate the sale and closing of the three-acre tract of land and,

indeed, had taken efforts to revoke Magee‘s limited power of attorney to execute

the necessary documents. Smith prayed that the trial court enter the proposed

final order that he attached to the motion.

      After Smith filed his motion asking the trial court to sign a final order

enforcing the settlement agreement, Pena filed a ―Defendant‘s Motion to Abate

and/or to Set Aside Settlement Agreement,‖ requesting, among other things, that

the trial court set aside the settlement agreement. One day later, Smith filed a

―Supplemental Motion to Sign Final Order and Motion for Enforcement.‖ Smith

argued that ―[p]ursuant to CPRC 154.071 a written settlement agreement is

enforceable and the court may incorporate the terms of the agreement in the

court‘s final decree disposing of the case.‖ Smith also described Pena‘s actions

in attempting to set aside the settlement agreement as a ―unilateral revocation‖

and prayed that the trial court sign the proposed order previously provided to it.

      After a hearing, the trial court signed a final order that adopted the

settlement agreement ―as the Order of [the] Court‖ and ordered Magee ―to

immediately execute any and all documents in the name of Cindy Pena as her




                                         3
agent to facilitate the close of the sale of the property that remain un-executed.‖ 2

Thereafter, Pena timely filed a motion for new trial, which was overruled by

operation of law, and the trial court modified its final order, incorporating the

mediated settlement agreement into the order and ordering that Pena and

Brandy Tanner Watson, Pena‘s daughter, be divested of any and all ownership in

the three-acre tract and that all right, title, and interest in the tract be held in fee

simple by Smith. Pena filed her notice of this appeal.

                               III. MOTION TO DISMISS

      Smith filed a motion to dismiss Pena‘s appeal, arguing that Pena filed her

notice of appeal untimely because she lacked capacity to file her motion for new

trial. Smith failed to file a verified pleading in the trial court challenging Pena‘s

capacity. Accordingly, we deny Smith‘s motion to dismiss Pena‘s appeal. See

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (―Unlike

standing, . . . which may be raised at any time, a challenge to a party‘s capacity

must be raised by a verified pleading in the trial court.‖); Rodarte v. Investeco

Group, L.L.C., 299 S.W.3d 400, 407 n.3 (Tex. App.—Houston [14th Dist.] 2009,

no pet.) (reasoning that objections concerning capacity may be waived); see also

Tex. R. Civ. P. 93.

                             IV. PLEADINGS AND PROOF

      In her first and third issues, Pena argues that the trial court erred by

rendering a judgment that summarily enforced the disputed settlement

      2
       No findings of fact and conclusions of law were filed.
                                           4
agreement.   She contends that the judgment is supported by neither proper

pleadings nor legally sufficient evidence that she breached the settlement

agreement.

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

its consent to a settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454,

461 (Tex. 1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d. 442, 444 (Tex.

1983). After consent has been withdrawn, a court may enforce a settlement

agreement ―only as a written contract.‖ Mantas v. Fifth Court of Appeals, 925

S.W.2d 656, 658 (Tex. 1996); see Tex. Civ. Prac. & Rem. Code § 154.071(a)

(Vernon 2005) (providing that a settlement agreement is enforceable ―in the

same manner as any other contract‖). Thus, the party seeking enforcement must

pursue a separate breach of contract claim, which is subject to the normal rules

of pleading and proof. Mantas, 925 S.W.2d at 659; Padilla, 907 S.W.2d at 462.

―In short, if consent is withdrawn, ‗the only method available for enforcing a

settlement agreement is through summary judgment or trial.‘‖ Gunter v. Empire

Pipeline Corp., No. 05-08-00824-CV, 2009 WL 2196119, at *1 (Tex. App.—

Dallas July 24, 2009, pet. denied) (citing Staley v. Herblin, 188 S.W.3d 334, 336–

37 (Tex. App.—Dallas 2006, pet. denied)).      The law does not recognize the

existence of any special summary proceeding for the enforcement of a written

settlement agreement, even one negotiated and executed in the context of a

mediation. Id. (citing Cadle Co. v. Castle, 913 S.W.2d 627, 630 (Tex. App.—

Dallas 1995, writ denied)); see Martin v. Black, 909 S.W.2d 192, 195 (Tex.

                                        5
App.—Houston [14th Dist.] 1995, writ denied) (―When the legislature enacted the

ADR statute [civil practice and remedies code section 154.071], it did not order

the courts to follow a special procedure applicable only to mediated settlement

agreements.‖).

      Assuming without deciding that the allegations and arguments contained in

Smith‘s ―Motion to Sign Final Order‖ and ―Supplemental Motion to Sign Final

Order and Motion for Enforcement‖ were sufficient to give Pena fair notice of his

contract claim and, thus, satisfied pleading requirements,3 Smith failed to support

his action to enforce the settlement agreement with legally sufficient evidence.

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and

      3
        See Cadle Co., 913 S.W.2d at 630–31 (reasoning that a petition in a
contract claim must contain a short statement of the claim sufficient to give fair
notice of the claim involved, including an allegation of a contractual relationship
between the parties and the substance of the contract that supports the pleader‘s
right to recover); see also Bayway Servs., Inc. v. Ameri-Build Constr., L.C., 106
S.W.3d 156, 160 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that
appellee met its pleading requirement because it filed a motion to sign judgment
that alleged a contractual relationship with appellant and attached the settlement
agreement to the motion); Quanaim v. Frasco Rest. and Catering, No. 01-03-
01156-CV, 2005 WL 856911, at *3 (Tex. App.—Houston [1st Dist.] Apr. 14, 2005,
no pet.) (mem. op.) (same).
                                         6
"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960).

More than a scintilla of evidence exists when the evidence supporting the finding,

as a whole, rises to a level that would enable reasonable and fair-minded people

to differ in their conclusions. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,

499 (Tex. 1995). When there is no indication that evidence was admitted or

considered by the trial court prior to rendering judgment and the record on appeal

contains no statement of facts, we indulge no presumptions in favor of the

judgment. Otis Elevator v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993).

      To prevail on a breach of contract claim, the plaintiff must plead and prove

(1) a contract existed between the parties; (2) the contract created duties; (3) the

defendant breached a material duty under the contract; and (4) the plaintiff

sustained damages. Cadle Co., 913 S.W.2d at 631.

      At the hearing on his motions, Smith did not present any evidence in

support of his claim for breach of the settlement agreement.            He merely

presented argument asking the trial court to sign the final order enforcing the

settlement agreement.

      Smith argues that the trial court did not err by executing the final order

because Pena presented no evidence that the proposed order did not comply

with the terms of the settlement agreement and no evidence that she had

rescinded the settlement agreement. But Smith, not Pena, had the burden of

proof in support of the contract claim, and Pena sought to set aside the

settlement agreement.

                                         7
      Because Smith failed to offer any evidence, we hold that the evidence is

legally insufficient to support the trial court‘s judgment. See Bayway Servs., 106

S.W.3d at 160–61 (holding that the evidence was legally insufficient to support

the trial court‘s judgment because appellee presented no evidence that appellant

breached settlement agreement); cf. Padilla, 907 S.W.2d at 462 (holding that

summary judgment evidence established an enforceable settlement agreement

as a matter of law); Quanaim, 2005 WL 856911, at *4 (holding that the evidence

was legally sufficient to support the trial court‘s judgment because appellee

presented evidence of breach of contract). We sustain Pena‘s first issue.

      Having prevailed on a no-evidence issue, Pena would ordinarily be entitled

to the rendition of judgment in her favor. See Nat’l Life & Accident Ins. Co. v.

Blagg, 438 S.W.2d 905, 909 (Tex. 1969). However, the supreme court has held

that appellate courts have broad discretion to remand in the interest of justice.

Scott v. Liebman, 404 S.W.2d 288, 294 (Tex. 1966).          As long as there is a

probability that a case has for any reason not been fully developed, an appellate

court has the discretion to remand rather than render a decision.               Zion

Missionary Baptist Church v. Pearson, 695 S.W.2d 609, 613 (Tex. App.—Dallas

1985, writ ref‘d n.r.e.). Because of our conclusion of Pena‘s first issue, and in the

interest of justice, we will remand this case for further proceedings rather than

render a judgment. See Bayway Servs., 106 S.W.3d at 161 (remanding case

after sustaining legal sufficiency issue involving disputed mediated settlement

agreement).

                                         8
      Having sustained Pena‘s dispositive first issue, we need not address her

second issue complaining about the settlement agreement‘s failure to include a

legal description of the property. See Tex. R. App. P. 47.1.

                                 V. CONCLUSION

      We deny Smith‘s motion to dismiss, reverse the trial court‘s judgment, and

remand the cause to the trial court for further proceedings consistent with this

opinion.




                                                  BILL MEIER
                                                  JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: August 12, 2010




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