                                 NUMBER 13-09-00158-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


MICHAEL ZELLERS, ET AL.,                                                               Appellants,

                                                   v.

CITY OF MCALLEN, TEXAS,                                                                 Appellee.


                        On appeal from 332nd District Court
                             of Hidalgo County, Texas.


                             MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez

        This case involves a contract dispute between appellants, certain City of McAllen

police officers,1 and appellee, the City of McAllen, Texas (the City), over alleged non-


        1
        The appellants in this case are Michael Zellers, Efrain Alejandro, Juan Alvarez, Mario Ayala, Noe
Canales, Arturo S. Casas, Guadalupe Cavazos, Ricardo Cepeda, Juan H. Chavez, Arm ando Contreras,
Duane E. Cottrell, Jose V. Delgado, Santiago Galvan, Jose A. Garcia, Jose L. Garcia, Fernando Garza, Juan
payment of "stand-by" compensation. Appellants challenge the judgment rendered in favor

of the City after a jury trial. By two issues, appellants complain that the trial court should

have: (1) made a determination of whether a contract existed as a matter of law before

submitting the case to the jury; and (2) enforced an alleged settlement agreement between

the parties. We affirm.

                                              I. BACKGROUND 2

        On May 21, 2001, appellants sued the City for, among other things, breach of

express and implied contract and quantum meruit. In their petition, appellants alleged that,

through the City's 1983 Employee Manual and certain standard operating procedures

promulgated by the city manager, the City contracted with appellants to compensate them

for stand-by duty. "Stand[-]by duty," according to the petition, "mandates all employees,

including the Police Department Officers, to comply with any supervisor [directive] required

[sic] to 'report to work.' In that event[,] 'Stand[-]by pay' will be paid according to the policies

established" by the city manager. Appellants alleged that while they were on stand-by

duty, they "refrained from certain use of their time customarily adapted to personal and

family matters" and were "restricted and confined . . . to be immediately available to

respond to a call from any one of several police department supervisors." Appellants

stated in their petition that they performed these stand-by duties, as ordered by their


J. Garza, Ram iro Gonzalez, Arm ando Hernandez, Lorenzo Lara, Fransisco Lopez, Scott M. Luke, Alberto M.
Mata, Abel Mercado, Dwayne L. Miller, Joe M oroles, Ricardo Olvera, Fransisco Ortegon, Jose S. Palom o,
Gene Potter, Reynaldo Rodriguez, Rom an Rodriguez, Felipe Saenz Jr., Oscar Saldana, Carlos Jerry Salinas,
Ruben Suarez, Abelardo Tijerina Jr., Luis Trevino, Eduardo Vela, Javier Vela, Heriberto Vigil, Andres Zam ora,
Hum berto Zavala, and Robert Zepeda Jr.

        2
           Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

                                                        2
supervisors, but have not been compensated for their time as purportedly agreed to by the

City in its policies and procedures.

         The City answered, and discovery and motion practice ensued for approximately

seven years.3 In their brief, appellants allege that the parties entered mediation in August

2008, and that a settlement agreement was reached. Our review of the record reveals a

letter from the City's attorneys to appellants' attorney related to the alleged settlement. The

letter is signed by the attorneys for both parties and provides:

         Dear [appellants' attorney]:

         This is to confirm that you and your clients have agreed to settle all claims
         in the above referenced cause of action for $788,961.49. This amount
         includes all court costs, expenses, disbursements and attorneys['] fees and
         all other damages whether compensatory or otherwise.

         In exchange for payment of this sum your clients will execute all release and
         settlement documents prepared by the City and dismiss their claims against
         the City of McAllen with prejudice. You and your clients understand that this
         is a recommendation for settlement and cannot be finalized until approved
         by the McAllen City Commission. If this settlement is approved it will be
         funded on or before October 15, 2008.

         This amount represents all monies that will be recommended to be paid in
         settlement. There will be no deductions or contributions for any obligations
         related to wages. Your clients will be required to indemnify the City for any
         claims and/or liabilities for any obligations or contributions. In exchange the
         City will dismiss its counterclaims against you [sic] clients.

         This letter represents a valid and enforceable Rule 11 agreement pursuant
         to the T.R.C.P.

(Footnote omitted.)



         3
           The C ity filed m otions for sum m ary judgm ent in April and August 2005, which were denied by the
trial court. In August 2006, the City filed a plea to the jurisdiction, which was also denied by the trial court; the
City's interlocutory appeal of that denial was dism issed by this Court on March 1, 2007. See City of McAllen
v. Zellers, 216 S.W .3d 913, 917 (Tex. App.–Corpus Christi 2007, pet. denied).

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       Appellants filed a motion to enforce the alleged settlement agreement on September

12, 2008. The trial court did not rule on the motion, and the parties proceeded to trial on

the merits on October 21, 2008. After the close of evidence, the jury was asked the

following two questions, with accompanying instructions, regarding liability:

                         Question No. 1 (Existence of contract)

       Did the City of McAllen have a contract with its police officers and employees
       that agreed to pay for stand[-]by duty?

       "Contract" means a written contract stating the essential terms of the
       agreement for providing goods and services to the City that was properly
       executed on behalf of the City.

       A contract is formed when there is 1) an offer and 2) an acceptance, 3) a
       meeting of the minds, 4) each party's consent to the terms, and 5) execution
       and delivery of the contract.

       1) An offer is a statement of the work requested and the payment offered for
       that work.

       2) Acceptance may be shown if a person performs under the terms of the
       contract, such as accepting employment.

       3) A meeting of the minds is based on what the parties said and did, and not
       on their after[-]the[-]fact statements.

       4) A contract does not have to be signed to show consent. A party may
       show consent by its actions such as performing the services called for in the
       contract, or accepting the services that were the subject of the contract.

       5) A contract may be composed of more than one writing.

       6) The continued performance of the employees shows their acceptance of
       any terms applicable to them expressed in the handbooks.

       ....

                                     Question No. 2:

       Did the City withhold payment for services that 1) were actually provided and
       that 2) should have been paid for?

                                             4
The jury answered "No" to both questions as to all of the appellants and returned a verdict

in favor of the City. This appeal followed.

                              II. DETERMINATION OF CONTRACT

       By their first issue, appellants contend that the "trial court is required to make a

determination as a matter of law on the question of the existence of a contract." We

acknowledge that this contention is a correct statement of the law in some circumstances

because it is often true that a trial court must make determinations on certain questions

surrounding contracts. See, e.g., In re D. Wilson Const. Co., 196 S.W.3d 774, 781 (Tex.

2006) (holding that whether a contract is ambiguous is a question of law that the trial court

must determine); Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787

(Tex. App.–Dallas 2005, no pet.) (holding that "[u]nder Texas law, if there is no ambiguity

in a written contract, 'its construction and meaning become a question of law for the court

to determine'"). However, it is also true that certain questions of contract formation depend

on factual findings that are appropriate for a jury's determination. See Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996) (holding that

the parties' intent in an ambiguous contract is a fact question for the jury); United Concrete

Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968) (affirming a jury's finding

that performance of a promised act constitutes valid acceptance); Hirschfeld Steel Co., Inc.

v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 287-88 (Tex. App.–Houston [14th Dist.]

2006, no pet.) (requiring that, where there is a dispute over the existence of a contract, the

jury be questioned and instructed on the issue); see, e.g., COMM .        ON   PATTERN JURY

CHARGES , STATE BAR     OF   TEX ., TEXAS PATTERN JURY CHARGES—BUSINESS, CONSUMER ,



                                              5
INSURANCE, EMPLOYMENT PJC 101.1, 101.8, 101.11 (2008) (outlining the pattern jury charge

and instructions regarding, respectively, contract existence when the existence of a

contract is a disputed issue; jury's interpretation of an ambiguous contractual provision;

and offer and acceptance, including a specific instruction on acceptance-by-performance).

       Here, appellants appear to posit by their first issue that trial courts are required to

determine all aspects of the existence, construction, and meaning of contracts before

submitting the case to the jury. We disagree with this general and broad supposition. Our

review of the record indicates that a question existed as to whether appellants' accepted

the purported contract between appellants and the City by continued employment and

performance of their duties and that the parties disputed, in general, the existence of the

alleged contract. The trial court in this case was thus permitted to submit a question to the

jury regarding general contract existence and formation through acceptance-by-

performance, and we find no error in the court's decision to do so. See United Concrete

Pipe Corp., 430 S.W.2d at 364; Hirschfeld Steel Co., Inc., 201 S.W.3d at 287-88; see also

COMM . ON PATTERN JURY CHARGES, supra, PJC 101.1, 101.11.

       Moreover, we disagree with appellants' apparent suggestion that the trial court failed

to make any determination regarding the contract at issue in this case. To the contrary,

by submitting to the jury a question regarding the formation of the contract between

appellants and the City, the trial court determined that fact issues existed necessitating the

jury's consideration and answer. See Hirschfeld Steel Co., Inc., 201 S.W.3d at 287-88.

Based on the foregoing, appellants' first issue is overruled.




                                              6
                                 III. SETTLEMENT AGREEMENT

       In their second issue, appellants complain of the trial court's failure to enforce an

alleged settlement agreement between the parties. Appellants allege that they reached

an agreement with the City to settle the case after several days of mediation in August

2008, but that the City then reneged on the agreement. Appellants filed a motion with the

trial court to enforce the settlement agreement on September 12, 2008. On appeal,

appellants allege that the letter sent by the City's attorney to appellants' attorney is a valid

rule 11 agreement, which they now seek to enforce. However, we have reviewed the

record before us and find no ruling by the trial court on appellants' motion to enforce and

no objection by appellants to the trial court's apparent failure to rule. See TEX . R. APP. P.

33.1(a); Estate of Veale v. Teldyne Indus., Inc., 899 S.W.2d 239, 242, 244 (Tex.

App.–Houston [14th Dist.] 1995, writ denied) (holding that "the burden is on the

complaining party to present a sufficient record to the appellate court to show error

requiring reversal" and that, to complain on appeal of the trial court's failure to take a

requested action, the record must reflect the complaint and the trial court's failure to grant

it) (citations omitted). Because appellants neither obtained a ruling on their motion nor

objected to the trial court's refusal, if any, to rule, they have failed to preserve for our review

any issue regarding the alleged settlement agreement. See TEX . R. APP. P. 33.1(a);

Kaufman v. Comm'n for Lawyer Discipline, 197 S.W.3d 867, 874 (Tex. App.–Corpus Christi

2006, pet. denied) (holding that the appellant's failure to obtain a ruling from the trial court

on the complained-of issue precluded appellate review). Appellants' second issue is

therefore overruled.



                                                7
                                    IV. CONCLUSION

      The judgment of the trial court is affirmed.



                                                     NELDA V. RODRIGUEZ
                                                     Justice

Delivered and filed the
20th day of May, 2010.




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