Jesus "Chuy" Maria Alvarez v. Dora G. Martinez--Appeal from 229th Judicial District Court of Starr County

99-00770 Alvarez v Martinez.wpd No. 04-99-00770-CV
Jesus "Chuy" Maria ALVAREZ,
Appellant
v.
Dora G. MARTINEZ,
Appellee
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. DC-98-42
Honorable Robert Barnes, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 25, 2000

REVERSED AND REMANDED

Jesus "Chuy" Alvarez ("Alvarez") appeals a summary judgment granted in favor of Dora G. Martinez ("Martinez"). Alvarez contends the summary judgment was improper because: (1) the motion was not supported by the pleadings; (2) the motion was not supported by competent and admissible summary judgment evidence; (3) the judgment failed to allow an offset or credit in the amount of $32,500; and (4) a genuine issue of material fact was presented regarding the amount of reasonable attorney's fees that should be awarded. Because the pleadings did not support the summary judgment, we reverse the trial court's judgment and remand the cause to the trial court for further proceedings consistent with this opinion.

Procedural Background

On March 9, 1998, Martinez sued Alvarez for legal malpractice (including breach of contract, negligence, reckless conduct, and violations of the Deceptive Trade Practices Act), negligence relating to Alvarez's alleged assault and battery of Martinez, intentional infliction of mental anguish and slander, and gross negligence. On July 23, 1998, the parties reached a settlement during mediation and executed a memorandum of agreement. On March 1, 1999, Martinez filed a motion for summary judgment, alleging her cause of action was based on a breach of the settlement agreement. Martinez refers to her pleadings on file, her affidavit, the affidavit of her attorney, and a sealed copy of the settlement agreement. In both his supplemental response and his second supplemental response, Alvarez objected to Martinez's motion because her pleadings did not allege a breach of the settlement agreement, which meant that no pleadings supported her motion.

On July 15, 1999, the trial court entered a final summary judgment in Martinez's favor. Alvarez timely filed this appeal.

Discussion

In his first issue, Alvarez asserts that Martinez's pleadings do not support her motion. Specifically, Alvarez contends Martinez failed to amend her pleadings to allege a claim for breach of the settlement agreement. Martinez responds that Alvarez never made any effort to revoke his consent to the settlement agreement and that his amended answers demonstrate his awareness of Martinez's claims. Martinez further responds that Alvarez waived any defect in the pleadings by failing to obtain a trial court's ruling on special exceptions. Finally, Martinez contends the settlement agreement provided a sufficient basis for the summary judgment.

A written settlement agreement may be enforced though one party withdraws consent before judgment is rendered on the agreement. Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996). Where consent is lacking, however, a court may not render an agreed judgment on the settlement agreement, but may enforce it only as a written contract. Id. The party seeking enforcement must pursue a separate breach-of-contract claim, which is subject to the normal rules of pleading and proof. Id. Where the settlement dispute arises while the trial court has jurisdiction over the underlying action, a claim to enforce the settlement agreement should be asserted in that court under the original cause number, such as through an amended pleading or counterclaim. See id.; see also Padilla v. LaFrance, 907 S.W.2d 454, 452 (Tex. 1995). The settlement agreement alone is insufficient to provide a basis for judgment because it would deprive a party of the right to be confronted by appropriate pleadings, assert defenses, conduct discovery, and submit contested fact issues to a judge or jury. See Cadle Co. v. Castle, 913 S.W.2d 627, 632 (Tex. App.--Dallas 1995, writ denied).

In this case, a settlement dispute arose between the parties while the trial court had jurisdiction. Martinez was, therefore, required to amend her pleadings to assert a claim to enforce the settlement agreement. Mantas, 925 S.W.2d at 658; Padilla, 907 S.W.2d at 452. Although Martinez's failure to amend her pleadings is a complaint that must be presented to the trial court, Alvarez's responses were sufficient to bring this complaint to the trial court's attention. See Webster v. Thomas, 5 S.W.3d 287, 289 n.1 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (error not preserved where not presented in response). Because Martinez failed to amend her pleadings, the summary judgment was improperly granted.

Conclusion

The trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH