                    In the
               Court of Appeals
       Second Appellate District of Texas
                at Fort Worth
            ___________________________
                 No. 02-17-00251-CV
            ___________________________

IN THE ESTATE OF STEVEN DOUGLAS NIELSEN, DECEASED



           On Appeal from Probate Court No. 2
                  Tarrant County, Texas
            Trial Court No. 2015-PR01535-2


                Opinion by Justice Gabriel
                  DISSENTING MEMORANDUM OPINION

       I disagree with the majority’s conclusion that appellant Linda Nielsen waived

her right to appeal the trial court’s denial of her summary-judgment motion because

her counsel and appellee Maria Footman’s counsel both signed the trial court’s

subsequent final judgment as “AGREED.” Because I believe the judgment should

not be construed as a consent judgment, I respectfully dissent. See generally Burnaman v.

Heaton, 240 S.W.2d 288, 291 (Tex. 1951) (styling judgment rendered on the agreement

of the attorneys as a “consent judgment”).

      As ably explained by the majority, Linda and Maria found themselves at an

impasse over the efficacy of Steven Douglas Nielsen’s will codicil, which he signed

before his divorce from Linda was final and before he was able to sign a contemplated

divorce-settlement agreement. Maria filed an application to probate Nielsen’s will and

the codicil, the effect of which left Steven’s entire residual estate to her. See Tex. Est.

Code Ann. § 256.051 (West 2014). Linda filed a contest to the will and codicil,

arguing that Steven lacked the required testamentary capacity or that he was unduly

influenced to sign both. See id. § 256.204 (West 2014). She also sought a declaratory

judgment that the codicil, which was inconsistent with the earlier will, revoked the will

and that the codicil was an unfulfilled conditional will, rendering Steven intestate

when he died. See id. § 257.101 (West 2014). Linda then filed an application to




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partition the community estate and to deliver her one-half interest to her. See id. §

360.253 (West 2014).1

      Linda moved for a traditional, partial summary judgment on her request for

declarations that the codicil revoked the earlier will and that the codicil was a

conditional will that was unfulfilled. Maria responded to Linda’s summary-judgment

motion and also moved for a “declaratory summary judgment” that the codicil was

not conditional and therefore, was required to be offered for probate along with the

will. Linda responded to Maria’s motion for declaratory summary judgment, raising

the same arguments she made in her partial summary-judgment motion.

      The trial court signed an “AGREED ORDER REGARDING PARTITION

OF COMMUNITY PROPERTY” as to Linda’s partition application. All counsel

signed the order under the header “AGREED.” But the order merely recited that

“the parties intend to submit an agreed proposed order detailing the partition of the

community property” and denied Linda’s partition motion on that basis. One month

later, the trial court denied Linda’s summary-judgment motion, granted Maria’s

motion, and rendered a partial summary judgment, holding “as a matter of law that

      1
        During the probate proceedings, the trial court entered an order granting
Linda and her three adult children with Steven a family allowance. See Tex. Est. Code
Ann. § 353.101 (West 2014). Linda appealed the order, arguing that the trial court
abused its discretion by charging the allowance against the entire community estate.
Estate of Nielsen, 533 S.W.3d 39, 40 (Tex. App.—Texarkana 2017, no pet.). After the
appeal was transferred, the Sixth Court of Appeals affirmed the order. Id. at 44; see
Tex. R. App. P. 41.3. The appellate court rendered its judgment approximately three
months after the trial court signed the judgment at issue in this appeal.


                                         3
the . . . First Codicil to the Last Will and Testament . . . of Steven . . . is not

conditional.”

      Linda’s contest to the will proceeded to a jury trial, and the jury found that

Steven had the testamentary capacity and was not unduly influenced to sign the will

and the codicil. Maria filed a motion to enter judgment on the jury’s findings, to

admit the will to probate, and to issue letters testamentary to Maria. Maria’s certificate

of conference noted that “[a]greement [with Linda] could not be reached.” See Fort

Worth (Tex.) Statutory Probate Cts. Loc. R. 2.04(b) (requiring certificate of

conference in motions to be entitled to hearing). Maria filed an amended motion to

enter judgment, adding a request that the trial court partition Linda and Steven’s

community estate. The amended motion did not include a certificate of conference,

but the trial court held a hearing on Maria’s motion.

      On the same day the trial court heard Maria’s motion to enter judgment, it

signed an “AGREED ORDER PROBATING WILL AND PARTITIONING AND

DISTRIBUTING ASSETS” (the judgment). The first sentence of the judgment

explains its bases: “Based upon the Court’s prior rulings and the Jury’s unanimous

verdict on April 21, 2017, Applicant Maria Juanita Footman’s Application to Probate

Will and First Codicil and Issuance of Letters Testamentary . . . is hereby granted as a

final appealable judgment . . . .” After the judge’s signature, the next page has the

following notation with no further information:



                                            4
AGREED:

[signature]
[Counsel’s name]
Counsel for Maria Footman

[signature]
[Counsel’s name]
Counsel for Linda D. Nielsen

The judgment contains no explanation or terms of any party agreement.

      The majority holds that the judgment operates as a waiver of Linda’s right to

appeal the denial of her summary-judgment motion directed to the issue of a

conditional will, which merged into the judgment. See, e.g., Simms v. Cruz, 349 S.W.3d

171, 173–74 (Tex. App.—El Paso 2011, no pet.) (holding party could not appeal

prior, adverse summary-judgment ruling because both parties later represented to the

trial court that all matters had been settled, which led to the trial court’s dismissal of

the case with prejudice). I respectfully disagree.

      First, if the parties did in fact unambiguously agree to the terms of the

judgment, that agreement would necessarily include that the judgment, which

explicitly was based on its “prior rulings” such as the trial court’s interlocutory

summary judgment, was “appealable.” To find waiver under these facts would read

this term—“appealable”—out of the judgment. See Balandran v. Safeco Ins. Co. of Am.,

972 S.W.2d 738, 741 (Tex. 1998) (interpreting insurance contract and stating “all

parts” must be read, “striving to give meaning to every sentence, clause, and word to

avoid rendering any portion inoperative”); Praeger v. Wilson, 721 S.W.2d 597, 601 (Tex.

                                            5
App.—Fort Worth 1986, writ ref’d n.r.e.) (construing contract and noting “[a]

construction of the writing which renders a clause meaningless is unreasonable”); Farr

v. McKinzie, 477 S.W.2d 672, 676 (Tex. Civ. App.—Houston [14th Dist.] 1972, writ

ref’d n.r.e.) (recognizing consent judgment “must fall strictly within the stipulations

and agreements of the parties” and trial court “merely exercises a ministerial function

in recording what has been agreed to”).

      Second, the majority recognizes that a signature notation of “approved,”

“approved as to form,” and “approved and agreed” 2 are insufficient to show that a

judgment was a consent judgment. And a signatory’s notation as only “AGREED”

similarly has been held to be insufficient to render a judgment a consent judgment in a

“contentiously litigated” case, as is the case with the dispute between Linda and Maria.

Daniels v. Indem. Ins. Co. of N. Am., No. 10-11-00142-CV, 2013 WL 3770955, at *2–3

(Tex. App.—Waco July 18, 2013, no pet.) (mem. op.) (citing Hill v. Bellville General

      2
         The majority distinguishes the case holding that a judgment signed by counsel
as “Approved and Agreed” was not a consent judgment—Oryx Energy Co. v. Union
National Bank of Texas, 895 S.W.2d 409, 416–17 (Tex. App.—San Antonio 1995, writ
denied)—by noting that the judgment in that case showed the parties contemplated
an appeal. Here, the judgment, signed and entitled as agreed, reflects that it was “a
final appealable judgment.” [Emphasis added.] I believe, as in Oryx Energy, that this
is an indication the parties contemplated appeal, precluding a finding of waiver. And
as in Oryx Energy, the record here does not include the terms of an agreement such
that this contested probated proceeding resulted in a consent judgment based on the
title of the judgment and counsel’s indication of “agreed.” See id. at 417; see also In re
D.C., 180 S.W.3d 647, 649–50 (Tex. App.—Waco 2005, no pet.) (holding in the
absence of “reference to an agreement of the parties regarding the terms of the
judgment,” judgment signed both as approved “as to form and content” and as
approved “as to form” was not consent judgment waiving right to appeal).


                                            6
Hospital, 735 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1987, no writ), for the

proposition that counsel’s signature as merely approved “is too indefinite to justify

declaring, as a matter of law, that a judgment is a consent judgment”). As in those

cases, counsel’s indication here that the judgment merely was agreed does not equate

to a consent judgment. In fact, none of the provisions in the judgment indicate that

they were a result of any agreement by the parties, which in general is the hallmark of

a consent judgment. See, e.g., Lohse v. Cheatham, 705 S.W.2d 721, 725–26 (Tex. App.—

San Antonio 1986, writ dism’d).

      Third, contract-interpretation principles, which govern our de novo

determination of the character of a judgment, dictate that this judgment was not a

consent judgment. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 422 (Tex.

2000) (applying contract principles to interpretation of purported agreed judgment).

The primary goal in construing a written contract is to ascertain and give effect to the

intent of the parties as expressed in the instrument. Balandran, 972 S.W.2d at 741. If a

written contract is so worded that it can be given a definite or certain legal meaning,

then it is not ambiguous. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517,

520 (Tex. 1995). “For an ambiguity to exist, the language of the contract must remain

uncertain or subject to two or more reasonable interpretations after applying the

pertinent rules of construction.” Ferguson v. Ferguson, 111 S.W.3d 589, 594 (Tex.

App.—Fort Worth 2003, pet. denied).



                                           7
      Other than the title of the judgment, its footers, and the signature notation, no

other portion of the judgment or the surrounding circumstances indicate that the

parties agreed to its terms or otherwise delineates the terms of that agreement.3 I

believe this renders the judgment ambiguous, which prevents a conclusion that it was

a consent judgment. See Matthews v. Looney, 123 S.W.2d 871, 873 (Tex. 1939) (“Until

all the terms of a final judgment have been definitely agreed upon by all parties and

those terms either reduced to writing or placed of record, . . . the court [is] without

power to render a judgment by agreement.”); cf. Hudson v. Aceves, 516 S.W.3d 529, 538

(Tex. App.—Corpus Christi 2016, orig. proceeding) (holding trial court abused its

discretion by entering agreed order that did not comply with the terms of the parties’

agreement and added terms that were not included in the record of the agreement);

Tutson v. Upchurch, 203 S.W.3d 428, 430–31 (Tex. App.—Amarillo 2006, pet. denied)

(holding entry of consent summary judgment not permitted under civil procedure rule

11 where agreement was not reflected in the record and trial court stated agreement

was sole basis for rendering summary judgment). This ambiguity is not resolved by

examining the surrounding circumstances, extrinsic evidence, or the record because

those also provide little to no information as to the exact terms of the parties’

      3
       Although Linda states in her briefing that the partition portion of the
judgment was agreed, she did not contend that she agreed to the remainder of the
judgment, including the portion admitting Steven’s will and codicil to probate. This
portion would implicate Linda’s summary-judgment and appellate arguments that the
will and codicil were conditional. Again, this shows that the judgment was not a
consent judgment that would preclude Linda from appealing.


                                          8
agreement. See Hudson, 516 S.W.3d at 538–39. And Maria noted on her original

motion to enter judgment that Linda was opposed to it.

      But even if the judgment were unambiguous, it reflected that the parties

contemplated an appeal as part of their agreement, as I discussed before. The prior

summary-judgment ruling merged into this later judgment; thus, the agreement that

the judgment was appealable as reflected in its first sentence would extend to the

summary-judgment ruling as well and would afford Linda the right to appeal.

Cf. DeNucci v. Matthews, 463 S.W.3d 200, 207 (Tex. App.—Austin 2015, no pet.) (“A

partial summary judgment is reviewable on appeal, where as here, it has been merged

into a final judgment disposing of the whole case.”).

      For these reasons, I believe the judgment (1) cannot be construed as a consent

judgment based on the absence of the terms of the parties’ agreement even though

counsel signed it as agreed or (2) reflected the parties’ agreement that the judgment

was appealable even if it were appropriately construed to be an unambiguous consent

judgment. Thus, I would conclude that Linda did not waive her right to appeal the

trial court’s partial summary-judgment ruling, which merged into the later final

judgment, and would address Linda’s arguments directed to the trial court’s partial

summary-judgment ruling. I recognize and understand the majority’s assertion that

any determination of the merits of Linda’s appeal might not change the ultimate

outcome. But the effect of any ruling on the substance of Linda’s summary-judgment

arguments, which is the gravamen of her appeal, goes beyond the question at hand—

                                           9
whether Linda waived her right to appeal. I respectfully dissent to this court’s

judgment affirming the trial court on the basis of waiver.


                                                      /s/ Lee Gabriel

                                                      Lee Gabriel
                                                      Justice

Delivered: September 27, 2018




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