Opinion
No. 04-15-00555-CV
05-25-2016
Shirley Hale MATHIS, as Permanent Guardian of the Estate of Carlos Y. Benavides Jr., Appellant v. Leticia R. BENAVIDES, Appellee
MEMORANDUM OPINION
From the 49th Judicial District Court, Webb County, Texas
Trial Court Nos. 2015CVQ003089-D1& 2012CVQ000161-D3A
Honorable Jose A. Lopez, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Shirley Hale Mathis, as permanent guardian of the estate of Carlos Y. Benavides Jr., appeals the trial court's summary judgment for contract damages and declaratory relief in favor of Carlos's wife, Leticia Benavides. Mathis argues (1) the trial court erred by severing Leticia's cause of action for breach of contract into a final judgment; (2) the trial court erred by granting Benavides a temporary injunction; and (3) the trial court erred by granting summary judgment. We affirm the trial court's judgment.
BACKGROUND
The underlying suit was brought by Texas Community Bank against Mathis in her guardian capacity, Leticia, and other defendants in the 49th District Court of Webb County. During the district court proceedings, Mathis, on behalf of Carlos, filed for divorce from Leticia in the County Court at Law No. 2 in Webb County. In the divorce proceeding, Mathis and Benavides entered into a Rule 11 agreement, and the resulting order provided in part:
It is Ordered, Adjudged, and Decreed that Shirley Hale Mathis, permanent guardian of the Estate of Carlos Y. Benavides Jr. shall pay Respondent, Leticia R. Benavides, temporary spousal maintenance in the amount of $12,500.00 per month beginning no later than July 11, 2013 and every 1st of the month thereafter until 30 days after a divorce decree is signed, or 30 days after an appeal is perfected, whichever is later; and, thereafter, this temporary order shall be governed by §6.709 of the Texas Family Code . . . .After agreeing to pay Leticia $12,500 per month for spousal maintenance, Mathis unilaterally stopped making payments to Leticia. Leticia amended her pleadings in the district court action to allege a cross-claim against Mathis for contract damages, declaratory relief, and injunctive relief based on Mathis's breach of the Rule 11 agreement.
In July 2013, Leticia filed a plea in abatement in the divorce proceeding on the ground that the district court had dominant jurisdiction in this case. The county court at law denied Leticia's plea and Leticia petitioned this court for mandamus relief. This court conditionally granted the petition for a writ of mandamus because the district court had dominant jurisdiction and the claims to determine the parties' rights with respect to the marital assets could be asserted in the district court, where claims regarding the marital assets were pending. In re Benavides, No. 04-14-00718-CV, 2014 WL 6979438, at *4 (Tex. App.—San Antonio Dec. 10, 2014, orig. proceeding) (mem. op.).
Leticia thereafter filed a traditional motion for partial summary judgment in the district court proceeding, arguing she was entitled to judgment as a matter of law on her cause of action for breach of contract and on her related claims for declaratory relief and a permanent injunction regarding the Rule 11 agreement. The trial court granted Leticia's motion for partial summary judgment. The trial court severed Leticia's cause of action for breach of contract and her claim for declaratory relief against Mathis into a separate case.
After Mathis filed a notice of appeal, the trial court ordered the district clerk to release Mathis's supersedeas deposit to Leticia. Mathis filed an emergency motion with this court asking us to review the trial court's determination that she may not supersede the judgment. Mathis argued that the judgment was a money judgment that may be superseded. Leticia argued the judgment was based on an underlying obligation for temporary spousal support, which may not be superseded. On March 16, 2016, we issued an opinion and order vacating the trial court's order regarding Mathis's supersedeas deposit. We held that the judgment was a money judgment for contract damages and not a temporary order for spousal support. Mathis v. Benavides, No. 04-15-00555-CV, 2016 WL 1039135, at *2-5 (Tex. App.—San Antonio Mar. 16, 2016, order). We now address the merits of Mathis's appeal.
SEVERANCE
Mathis argues the trial court erred by severing Leticia's cause of action for breach of contract. "A trial court has broad discretion in the matter of severance and consolidation of causes, and the trial court's decision to grant a severance will not be reversed unless it has abused its discretion." Smith v. Tex. Farmers Ins. Co., 82 S.W.3d 580, 587-88 (Tex. App.—San Antonio 2002, pet. denied). A trial court does not abuse its discretion "if the controversy involves more than one cause of action, the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and the severed claim is not so interwoven with the remaining action that they involve the same facts and issues." Id. at 588.
Mathis does not argue that Leticia's claim for contract damages was improperly severed because it was the sole claim in the district court proceeding, the claim would not be the proper subject of a lawsuit if independently asserted, or the claim is so interwoven with the remaining action that they involve the same facts and issues. See id. Instead, Mathis argues the severance precluded the county court from modifying the temporary orders in the divorce proceeding because the severance "transformed interim, temporary divorce orders into a permanent, final adjudication on the merits" and "estranged" the temporary orders from the divorce decree.
Mathis's arguments are unclear, but they all appear to be based upon the premise that the agreed order in the divorce proceeding is an ordinary temporary order subject to modification and not a contract that may be enforced through specific performance or an injunction. However, "[a]n agreed order that complies with Rule 11's requirements is enforceable as a Rule 11 agreement." Kerulis v. Granbury Lake Props., Inc., No. 02-05-00247-CV, 2006 WL 1791617, at *3 (Tex. App.—Fort Worth June 29, 2006, no pet.) (mem. op.) (citing Trevino v. Houston Orthopedic Center, 831 S.W.2d 341, 344 (Tex. App.—Houston [14th Dist.] 1992, writ denied)). Rule 11 requires that no agreement between the parties will be enforced unless it is in writing, signed, and filed with the papers as part of the record. TEX. R. CIV. P. 11. If a party revokes its consent to a Rule 11 agreement at any time before the trial court renders judgment in the case, the appropriate enforcement mechanism is through a separate breach of contract action. Woody v. Woody, 429 S.W.3d 792, 796 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Here, the agreed order was in writing, signed by both Mathis and Leticia, who approved the agreed order as to its substance, and filed in the county court. Therefore, the agreed order is a Rule 11 agreement and an enforceable contract for past due amounts. See id. We hold the trial court did not abuse its discretion by severing Leticia's breach of contract claim from the underlying litigation in the trial court. See Smith, 82 S.W.3d at 587-88.
We recognize that a temporary order for spousal support may be subject to modification, but a motion to modify the parties' agreed temporary orders was not before the trial court and, therefore, is not before this court.
"TEMPORARY" INJUNCTION
Mathis argues the trial court erred because "it enter[ed] a temporary injunction that changes the status quo." Mathis characterizes the trial court's injunction requiring her to pay Leticia as per the Rule 11 agreement as "temporary" because the injunction enforces a temporary contractual obligation to pay spousal support during the pendency of the divorce proceeding. In support of her issue, Mathis cites Morgan Stern Realty Holdings, LLC v. Horizon El Portal, LLC, No. 04-14-00208-CV, 2014 WL 2531980, at *2 (Tex. App.—San Antonio June 4, 2014, no pet.) (mem. op.). Morgan Stern and the authorities cited therein govern temporary injunctions issued before final judgment, not permanent injunctions issued together with a final judgment. See id. (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993) (per curiam)).
An injunction is not temporary merely because the injunction relates to a temporary contractual obligation. "[A]n injunction is permanent, rather than temporary, if the duration of the injunctive relief granted does not depend on any further order of the court." Pena v. Garza, 61 S.W.3d 529, 531 (Tex. App.—San Antonio 2001, no pet.). Because the injunctive relief issued by the trial court was part of the final judgment and its duration did not depend upon any further order of the trial court, the trial court's injunction was not a temporary injunction. See id. We hold the trial court did not err by issuing an improper temporary injunction because the trial court did not issue a temporary injunction.
SUMMARY JUDGMENT
Mathis argues the trial court erred by granting summary judgment because she raised fact issues regarding her affirmative defenses of waiver, anticipatory breach, and offsets. Mathis does not argue Leticia failed to conclusively establish Mathis breached the Rule 11 agreement.
A. Standard of Review
"We review a summary judgment de novo." City of San Antonio v. San Antonio Exp.-News, 47 S.W.3d 556, 561 (Tex. App.—San Antonio 2000, pet. denied). "If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment." Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). We take as true all evidence favorable to the nonmovant, resolve all conflicts in the evidence in the non-movants' favor, and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); City of San Antonio, 47 S.W.3d at 561. We view the evidence in the light most favorable to the party against whom the summary judgment was rendered, "crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
B. Waiver
Mathis argues Leticia waived her claim to enforce the Rule 11 agreement because Leticia filed a plea in abatement in the county court. "Waiver is 'an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right.'" Garcia v. Huerta, 340 S.W.3d 864, 870 (Tex. App.—San Antonio 2011, pet. denied) (quoting Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003) (per curiam)). "Waiver is largely a matter of intent, and for implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances." Jernigan, 111 S.W.3d at 156.
Leticia's mere filing of a plea in abatement is not evidence of conduct inconsistent with her contractual right to spousal support. A plea in abatement, if sustained, does not result in a dismissal of a case, but the court will "retain the case on the docket, so that when the impediment to prosecution of the suit is removed it may be revived." Svensen v. Svensen, 629 S.W.2d 97, 98 (Tex. App.—Dallas 1981, no writ); see BLACK'S LAW DICTIONARY 1189-90 (8th ed. 2004) ("A defendant who successfully asserts a plea in abatement leaves the claim open for continuation in the current action or reassertion in a later action if the defect is cured."). A plea in abatement, if sustained, keeps an action pending. Svensen, 629 S.W.2d at 98. The parties' agreement expressly provides Mathis will pay Leticia spousal support while the divorce action is pending, until the marital property issues were determined in the district court action. Leticia's filing of the plea in abatement was an attempt to halt the divorce, but to keep the matter pending. Thus, the mere fact that Leticia filed a plea in abatement does not alone raise a fact issue that Leticia's clear intent was to waive her contractual right to spousal support during the pendency of the divorce proceeding. See Jernigan, 111 S.W.3d at 156.
C. Anticipatory Breach
Mathis argues she produced evidence that Leticia was the first one to breach the Rule 11 agreement. "[I]t has long been the law in Texas that before there can be an anticipatory breach, there must be an unconditional declaration of an intention not to perform the contract." Davis v. Canyon Creek Estates Homeowners Ass'n, 350 S.W.3d 301, 313 (Tex. App.—San Antonio 2011, pet. denied). "The repudiation must be a distinct, positive, unequivocal, and absolute refusal to perform the contract in the future. The party who is alleged to have committed an anticipatory breach must show a fixed intention to abandon, renounce, and refuse to perform the contract." Id. (internal citations omitted). An anticipatory breach that relieves a party from performing its obligations must also be a material breach. See Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex. 1994).
Mathis argues Leticia violated provisions of the agreement that required Leticia to provide Mathis with a plan for remodeling Carlos's separate-property house in Laredo ("the Laredo house"). Mathis contends her evidence showing Leticia allowed the home to deteriorate raises a fact issue that Leticia violated these provisions. Mathis does not contend that Leticia failed to provide a plan. Instead, Mathis's evidence establishes that Leticia did provide a remodeling plan. Mathis's evidence shows that Leticia and Mathis could not agree on remodeling details and, as a result, the remodeling was taking longer than Mathis anticipated. This evidence does not raise a fact issue that Leticia violated the lease provisions requiring Leticia to provide a remodeling plan. Mathis produced no evidence that Leticia unconditionally declared she was not going to comply with any part of the agreement or that Leticia had a fixed intention to abandon, renounce, and refuse to perform the contract. Finally, nothing in the agreed temporary orders conditioned Mathis's obligation to pay temporary spousal support upon Leticia providing a plan for remodeling the Laredo house. Therefore, Mathis failed to raise a fact issue with regard to her affirmative defense of anticipatory breach.
In the "Statement of Facts" section of her brief, Mathis notes she produced evidence that Mathis complained that Leticia's plans were incomplete because they did not contain an electrical plan. Mathis does not cite to any provision of the agreement that required Leticia to provide electrical plans for the house.
Mathis also failed to expressly present this argument to the trial court. In her response to Leticia's motion, Mathis argued Leticia breached the agreement by denying access to the Laredo house, by failing to provide a remodeling plan. See Fry v. Comm'n for Lawyer Discipline, 979 S.W.2d 331, 334 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (holding issues not expressly presented in summary-judgment response may not be considered grounds for reversal on appeal). Mathis's evidence shows that Leticia allowed Mathis and several contractors into the home to conduct an inventory and to conduct repairs. --------
D. Offsets
Mathis argues she is entitled to an "offset" because Leticia damaged the Laredo house. The "right of offset is an affirmative defense," and the party asserting offset has the burden of proving the facts necessary to support it. Geis v. Colina Del Rio, LP, 362 S.W.3d 100, 113 (Tex. App.—San Antonio 2011, pet. denied) (citing Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex. 1980)). The affirmative defense of "offsets," also referred to as "payment" or "credit," is a debtor's payment to be credited against the total amount a debtor owes. See, e.g., Life Ins. Co. of Va. v. Gar-Dal, Inc., 570 S.W.2d 378, 381-82 (Tex. 1978) (holding conclusory affidavit statement that payments had not been credited toward a debt was insufficient to raise fact issue with regard to the affirmative defense of offsets); Stucki v. Noble, 963 S.W.2d 776, 781-82 (Tex. App.—San Antonio 1998, pet. denied) (holding checks showing payments of amount owed under note did not raise fact issue regarding affirmative defense of offset because the checks were not properly authenticated).
Mathis presented no evidence that she paid any amount owed to Leticia under the Rule 11 agreement after Mathis unilaterally stopped making payments. Instead, Mathis argues that because Leticia damaged the Laredo house, Mathis is entitled to recover damages from Leticia. Mathis's claim to damages for the alleged deterioration to the Laredo house is a counterclaim, not an affirmative defense of payment, credit, or offsets. Cf. Life Ins. Co. of Va., 570 S.W.2d at 381-82; Stucki, 963 S.W.2d at 781. Because the trial court's severance order does not include any counterclaim, no counterclaim is before this court. And even if it were, Mathis had the burden to produce some evidence to raise a fact issue about the existence and amount of damages based either on repair costs or decrease in market value. See Hall v. Hubco, Inc., 292 S.W.3d 22, 32 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). Mathis failed to present any evidence of the existence or amount of damages. We therefore conclude Mathis failed to present any evidence in support of her affirmative defense of offsets.
E. Conclusion Regarding Summary Judgment
Mathis does not contest that she breached the agreement to pay Leticia spousal support. Mathis also failed to raise a fact issue with regard to her affirmative defenses of waiver, anticipatory breach, and offsets to avoid liability. Because Leticia conclusively established her entitlement to judgment as a matter of law on her cause of action for breach of contract, we hold the trial court did not err by granting summary judgment.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice