in the Estate of Jack Hiromi Ikenaga Sr. ( 2015 )

ACCEPTED
04-15-00005-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/24/2015 1:15:13 AM
KEITH HOTTLE
CLERK
NO. 04-15-00005-CV
___________________________________________________
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
06/24/2015 1:15:13 AM
IN THE COURT OF APPEALS KEITH E. HOTTLE
FOURTH SUPREME JUDICIAL DISTRICT Clerk
SAN ANTONIO, TEXAS
___________________________________________________
IN RE ESTATE OF JACK HIROMI IKENAGA, Sr., Deceased
____________________________________________________
On Appeal from the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2011-PC-4330 and 2011-PC-4330A
Hon. Polly Jackson Spencer, Judge Presiding
______________________________________________________
APPELLANT’S BRIEF
______________________________________________________
DAVID L. MCLANE
9901 IH-10 West
Ste. 695
San Antonio, Texas 78230
(210) 736-9966
(210) 547-7932 fax
dlmclanelaw@yahoo.com
State Bar No. 00795517
ATTORNEY FOR
APPELLANT
ORAL ARGUMENT
REQUESTED
Sandra Ikenaga’s Appellant Brief 1
IDENTITY OF PARTIES AND COUNSEL
In accordance with TEX. R. APP. P. 38.1(a), and for purposes of
disqualification and/ or recusal of members of this Honorable Court, the
following is a list of those parties involved in the instant cause:
1. Hon. Polly Jackson Spencer, Judge, Probate Court No. 1,
Bexar County, Texas
2. Hon. Tom Rickhoff, Judge, Probate Court No. 2, Bexar County,
Texas
3. Sandra Ikenaga, Plaintiff/ Appellant
4. Jack Hiromi Ikenaga, Sr., Decedent
5. Jack Hiromi Ikenaga, Jr., Defendant/ Appellee
6. William D. Bailey, Temporary Administrator of the Estate of
Jack Hiromi Ikenaga, Sr.
7. Nancy Sumners, Defendant/ Appellee
8. Christine Ikenaga, Defendant/ Appellee
9. Patrick Gasiorowski, Defendant/ Appellee
10. Eric J. Goodman, Defendant/ Appellee
11. ACCC Holding Corporation
12. Mark Stanton Smith, SBN 18649100, Attorney for William D.
Bailey 3737 Broadway Ave., San Antonio, Texas 78209 (210) 820-
Sandra Ikenaga’s Appellant Brief 2
3737
13. William H. Ford SBN: 07246700 and Veronica S. Wolfe, SBN:
24066095, The Ford Firm, PC, Attorney for Defendant Jack Ikenaga,
Jr., 10001 Reunion Place, Ste. 640., San Antonio, Texas 78216 (210)
731-6400
14. Kevin M. Young, SBN 22199700, Shelayne Clemmer, SBN
24044733, Prichard Hawkins McFarland & Young, LLP, Attorney for
Nancy Sumners, Christine Ikenaga, Patrick Gasiorowski, and Eric
Goodman, Union Square, Ste. 600, 10101 Reunion Place, San
Antonio, Texas 78216
15. Mike Cenatiempo, Cenatiempo & Ditta, LLP, 770 S. Post Oak
Lane, Suite 500, Houston, Texas 77056
16. Roger L. McCleary, SBN 13393700, Joseph S. Cohen, SBN
04508370, Attorney at trial for ACCC Holding Corp., Bierne
Maynard & Parsons, LLP, 1300 Post Oak Blvd., Fl. 25, Houston,
Texas 77056
17. Carolyn Lisa "Carrie" Douglas, SBN 24045800, Lauren
McLaughlin, SBN 2405355, Strasburger & Price, LLP, Attorneys for
Amegy Bank, The Bakery Building, 2301 Broadway, San Antonio,
Texas 78215 (210) 250-6138
18. Phillip M. Ross, SBN 17304200, Attorney for Sandra Ikenaga,
1006 Holbrook Road, San Antonio, Texas 78218
19. Sam Houston, Houston Dunn, Attorney for Appellee, 440
Broadway Ste. 440, San Antonio, Texas 78209 (210) 326-2100
20. David L. McLane, SBN 00795517, Attorney for Sandra
Ikenaga, Appellant, 9901 IH-10 West, Ste. 695, San Antonio, Texas
78230 (210) 736-9966
21. Roland C. Colton, Colton Law Group, Attorney for Plaintiff/
Appellant at trial, California Bar No. 79896, 28202 Cabot Road, Ste.
300, Laguna Niguel, CA 92677
22. John A. Donsbach, Georgia Bar 225827, Appearing Pro Hac
Vice for Jack Ikenaga, Jr., Donsbach & King, LLC, 504 Blackburn
Drive, Augusta, Georgia 30907
23. Jason Bradley Ostrom, SBN, 24027710, Ostrom Sain, LLP
Attorney for Sandra Ikenaga, 5020 Montrose Blvd, Ste. 310, Houston,
Sandra Ikenaga’s Appellant Brief 3
Texas 77066 (713) 863-8891
24. J. Ken Nunley, SBN: 15135600, Attorney for Jack Ikenaga, Jr.,
1580 S. Main Street, 200, Boerne, Texas 78006 (830) 816-3333
25. Alvaro Briseno, SBN: 03015250, Attorney for Sandra Ikenaga,
10205 Oasis Street, Ste. 320, San Antonio, Texas 78216 (210) 340-
9575
26. Keith Morris, SBN 24032879, Morris Klevenhagen, LLP,
Attorney for Sandra Ikenaga, 6363 Woodway, Ste. 570, Houston,
Texas 77057 (713) 515-4828
27. Ross Bennet, Jr., Corporate Counsel, ACCC Corporation, 420
Lockhven Dr., Houston, Texas 77073
28. Allen F. Cazier, SBN 04037500, Attorney for Jack Ikenaga Jr.,
8626 Tesoro Dr., Ste. 500, San Antonio, Texas 78217 (210) 824-3278
29. Michael L. Cook, SBN: 4741000, Attorney for Jack Ikenaga,
Jr., Cook, Brooks, Johnson, PLLC, 7800 North Mopac, Ste. 215,
Austin, Texas 78759 (512) 381-3000
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
]TABLE OF CONTENTS 4
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 8
ISSUE PRESENTED 8
STATEMENT OF FACTS 8
SUMMARY OF THE ARGUMENT 10
ARGUMENT 12
PRAYER 29
Sandra Ikenaga’s Appellant Brief 4
INDEX OF AUTHORITIES
TEXAS CASES:
Beyers v. Roberts, 199 S.W.3d 354, 362, (Tex. App.-Houston [1st Dist.]
2006, pet. denied) ………………………………………………………….13
Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.- Houston
[14th Dist.] 2000, pet. denied)……………………………………………..20
Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014)…………..….20, 22
City of Arlington v. State Farm Lloyds, 145 S.W.3d 165m 167-168 (Tex.
2004)………………………………………………………………………27
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.
1979)……………………………………………………………………..12
Clanin v. Clanin, 918 S.W.2d 673, 678 (Tex. App.-Fort Worth 1996, no
writ)………………………………………………………………………12
Donzis v. McLaughlin, 981 S.W.2d 58, 63 (Tex. App.-San Antonio 1998, no
pet.)……………………………………………………………………….12
Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)…………20
Esco Oil & Gas v. Sooner Pipe & Supply, 962 S.W.2d 193, 197 n.3 (Tex.
App.- Houston [1st Dist.] 1998, pet. denied)……………………………..19
Forbes, Inc. v. Grenada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.
2003)………………………………………………………………………20
Ford Motor Co. v Ridgeway, 135 S.W.3d 598, 601 (Tex. 2004)…………..21
Friendswood Dev. Co. v. McDade & Co. , 926 S.W.2d 280, 282 (Tex.
1996)……………………………………………………………………....23
In re Marriage of Ames, 860 S.W.2d 590, 592-93 (Tex. App.-Amarillo 1993,
no writ)……………………………………………………………………..13
Sandra Ikenaga’s Appellant Brief 5
Keim v. Anderson, 943 S.W.2d 938, 946 (Tex. App.-El Paso 1997, no
pet.)………………………………………………………………………...13
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)………………..21
Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex. App.- Houston [1st Dist.]
2000, pet. denied)…………………………………………………………..20
Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig.
proceeding) (per curiam)…………………………………………………..12
Marsaglia v UTEP, 22 S.W.3d 1, 3 (Tex. App.- El Paso 1999, pet
denied)…………………………………………………………………19, 20
Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (Tex. 1939)…..12
McConathy v McConathy, 869 S.W.2d 341 (Tex. 1994)…………………...27
McLendon v. McLendon, 847 S.W.2d 601, 605 (Tex. App.-Dallas 1992, writ
denied)……………………………………………………………………..12
Merrell Dow Pharmaceuticals v Havner, 953 S.W.2d 706, 711 (Tex.
1997)………………………………………………………………………..21
Merriman v XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)………….19
Mid-Century Ins. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007)…………….22
Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995)……………….12
Prayton v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.- Houston [14th
Dist.] 2002, no pet.)………………………………………………………..20
Ridgeway v Ford Mortor Co., 82 S.W.3d 26, 29 (Tex. App.- San Antonio
2002) rev’d other grounds 135 S.W.3d 598 (Tex. 2004)…………………..21
Saenz v. Southern Union Gas Co., 999 S.W.2d 490, 493 (Tex. App.- El Paso
1999, pet. denied)…………………………………………………………20
Science Spectrum Inc. v. Martinez, 941, SW2d 910, 911 (Tex. 1997)…...23
Sandra Ikenaga’s Appellant Brief 6
Timpte Indus. V. Gish, 286 S.W.3d 306, 310 (Tex. 2009)…………………22
Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 293 (Tex. 1976) (per
curiam)…………………………………………………………………….12
Webster v. Allstate Insurance, 833 S.W.3d 747, 750 (Tex. App.- Houston [1st
Dist.] 1992, no writ)……………………………………………………….22
STATUTES AND RULES:
U.S. Const. Amend. 5…………………………………………. 18
U.S. Const. Amend. 14…..………………….…………………. 18
Tex. Const. Art. 1§13……………………...………………….. 18
Tex. Const. Art. 1§19………………………………………….. 18
TEX. R. CIV. P. 11……………………………………………. 12
TEX. R. CIV. P. 166a………..………………………………… 24
TEX. R. CIV. P. 166a(f)……...….…………………………….. 21, 27
TEX. R. CIV. P.. 166a (g)………….………………………… 21
TEX. R. CIV. P. 166a (i).......................................................... 19, 20
Sandra Ikenaga’s Appellant Brief 7
STATEMENT OF THE CASE
This cause was heard on a Partial Motion for Summary Judgment and
a No Evidence Motion for Summary Judgment to the bench before the
Honorable Polly Jackson Spencer who granted said motions. Subsequently,
Appellant and Defendants entered into a settlement agreement, which was
read into the record of the Court on October 7, 2014 and signed by Judge
Polly Jackson Spencer on December 5, 2014. Appellant presents the
following point of error for review.
ISSUE PRESENTED
1. Whether the Trial Court’s Judgment failed to strictly follow the
Settlement Agreement of the parties as required by law.
2. Whether there is sufficient evidence to support the Final Judgment.
3. Whether the Court committed error by failing to consider evidence
properly before the Court in the hearing on Defendant’s Motion for
Summary Judgment.
STATEMENT OF FACTS
The Decedent, Jack Hiromi Ikenaga, Sr., died on September 30, 2011
and his Will dated August 16, 1993 was admitted to Probate by Jack
Ikenaga, Jr. in the Probate Court No. 2, Bexar County, Texas before the
Hon. Thomas Rickhoff. Subsequently, when it appeared that Appellant
Sandra Ikenaga’s Appellant Brief 8
would take substantially all of the estate under the Will, Jack Ikenaga, Jr.
changed his position to contest the Will previously sworn to before the
Court. The matter was transferred to Probate Court No. 1, Bexar County,
Texas, before the Hon. Polly Jackson Spencer. The Court held a hearing on
a hybrid motion for Summary Judgment on September 17, 2014, filed by
Defendants Jack Ikenaga, Jr., Christine Ikenaga, Eric Goodman, Nancy
Sumners,and Patrick Gasiorowski, wherein the Court sustained Defendant’s
objections to Sandra Ikenaga’s response to the Traditional Motion for
Summary Judgment and No Evidence Motion for Summary Judgment on the
basis that the response failed to include a supporting affidavit of authenticity
of the documents attached to said response, although the documents
referenced in Sandra Ikenaga’s response were those same documents
attached to Defendant’s motions. Afterward the Court did not consider the
evidence attached to Sandra Ikenaga’s response and granted Defendant’s
Motion for Summary Judgment, (RR- Vol. 13 p91, ln 7-13) as recited in the
record (See CR- pp 4611-4618). Subsequently, the parties, through a
prolonged mediation, entered into a purported settlement agreement. The
Settlement Agreement was read into the record on October 7, 2014 and the
Court Rendered Judgment in accordance with the recited Settlement
Agreement. See RR- Vol. 15, p 25, ln 24-25. Subsequently, the parties
Sandra Ikenaga’s Appellant Brief 9
could not agree on the form and substance of the Final Judgment and the
Defendant’s moved for entry of the judgment on December 5, 2014. The
Court signed the Final Judgment on December 5, 2015, which does not
comport with the Settlement Agreement and exceeds the Settlement
Agreement between the parties. Sandra Ikenaga, plaintiff in the underlying
litigation regarding this estate, subsequently timely filed this appeal.
SUMMARY OF THE ARGUMENT
The Final Judgment of the Court does not strictly follow the Settlement
Agreement of the Parties as read into the record on October 7, 2014, and entered
rulings not agreed upon by the parties as to the pleadings on file, as well as
distributions of property not agreed to by the parties and to the detriment of
Appellant. The Final Judgment is required to strictly conform to the terms of the
agreement. Additionally, as no evidence was adduced at the hearing wherein the
settlement agreement was read into the record, there was no evidence admitted to
support the additional terms of the Final Judgment not contained in the dictated
settlement agreement. The Defendants misrepresented the settlement agreement in
the Final Judgment.
Additionally, the Settlement Agreement entered into by the parties would
not likely have been agreed to by Appellant but for the Court's error in sustaining
Defendant’s objections to Appellant’s summary judgment evidence. Defendant’s
Sandra Ikenaga’s Appellant Brief 10
objected that Appellant’s evidence was not supported by and Affidavit of
Authenticity as to the documents attached thereto, although Appellant’s counsel
argued that the evidence complained of was attached to Defendants’ Motion for
Summary Judgment and should be considered. The Court sustained the objection
(RR Vol. 13, p 91 ln 7-23) and did not consider Appellant’s summary judgment
evidence produced in response to the Defendants’ traditional motion for partial
summary judgment and the no evidence motion for summary judgment. The trial
Court granted Defendant’s Motion, essentially dismissing almost all of Appellant’s
causes of action. (CR- Vol. 7- p 4611-4618). Appellant contends that the Court
erred in sustaining the objection and not considering the evidence attached because
the affidavit of Authenticity was not required to support the evidence provided in
support of the response to the motions for summary judgment in that the
Defendants, through their own motion, had tendered the evidence to the Court.
Additionally, the evidence tendered in the form of affidavits had been filed
multiple times throughout the course of the litigation, without objection, and had
been admitted and reviewed by the Court. Under the law of the case, the evidence
was admissible and should have been considered.
Sandra Ikenaga’s Appellant Brief 11
ARGUMENT
POINT OF ERROR NO. 1 AND 2: The Trial Court’s Judgment failed
to strictly follow the Settlement Agreement of the parties as required by
law. There is insufficient evidence to support the Trial Court’s Final
Judgment.
A settlement agreement between parties is enforceable if it is written
and filed as part of the record or if it is recited in open court. TEX. R. CIV.
P. 11. These agreements are binding on the parties. McLendon v. McLendon,
847 S.W.2d 601, 605 (Tex. App.-Dallas 1992, writ denied) (citing City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979)). A
final judgment rendered upon a settlement agreement must be in strict and
literal compliance with the agreement. Vickrey v. Am. Youth Camps, Inc.,
532 S.W.2d 292, 293 (Tex. 1976) (per curiam); Donzis v. McLaughlin, 981
S.W.2d 58, 63 (Tex. App.-San Antonio 1998, no pet.); see Matthews v.
Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (Tex. 1939). If the terms of the
trial court's judgment conflict with the terms of the settlement agreement, the
judgment is unenforceable. Clanin v. Clanin, 918 S.W.2d 673, 678 (Tex.
App.-Fort Worth 1996, no writ). A court "cannot render a valid agreed
judgment absent consent at the time it is rendered." Padilla v. LaFrance, 907
S.W.2d 454, 461-62 (Tex. 1995); see Mantas v. Fifth Court of Appeals, 925
Sandra Ikenaga’s Appellant Brief 12
S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (per curiam). As a general
rule, a court's modifications to settlement agreements are grounds for
reversal where the modifications "add terms, significantly alter the original
terms, or undermine the intent of the parties." Beyers v. Roberts, 199 S.W.3d
354, 362, (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (citing Keim v.
Anderson, 943 S.W.2d 938, 946 (Tex. App.-El Paso 1997, no pet.); In re
Marriage of Ames, 860 S.W.2d 590, 592-93 (Tex. App.-Amarillo 1993, no
writ)).
The Trial Court erred in signing the Final Judgment specifically with
regard to the parties agreements regarding (1) the validity of the decedent’s
Will; (2) withdrawal of Sandra Ikenaga’s objections to ACCC Holding
Corporation (hereinafter referred to AHC) claim of $489060.87, and
Christine Ikenaga’s claims; (3) the lack of indemnification of Sandra
Ikenaga by the Estate or any Defendant; and (4) the distribution of property
to Sandra Ikenaga.
1. Validity of the Will
The settlement agreement read into the record states “All parties will
stipulate and agree that any alleged will of Jack Ikenaga, Sr. is null and
void and of no effect. (RR- Vol. 15 p5 ln 13-15). “And this agreement
and release will also take care of any and all purported trusts and any
Sandra Ikenaga’s Appellant Brief 13
issues arising therefrom.” (RR- Vol. 15 p5 ln 16-18). However, the
Final Judgment instead states that “The Court finds that neither the
“1993 Will” nor the “1993 Trust” are valid testamentary documents
and further finds that no party is aware of any unrevoked will or
trust that Decedent may have executed. Therefore the Court Orders
that each party (i) shall refrain forever from directly or indirectly seeking
to have the 1993 Will or any other will or purported Will of the Decedent
admitted to probate by any court in any jurisdiction whatsoever; (ii) shall
never use, represent or rely upon the 1993 Will or 1993 Trust as evidence
of any title to any interest such party may claim in the Estate of Estate
Property, (iii) shall never claim title to any of the Decedent’s property
benefits, insurance, contacts or other rights SAVE AND EXCEPT as
provided by this Final Judgment.” There is no evidence in the record to
support the Court’s findings with regard to the Will or Trust documents
referenced therein. The agreement of the parties was exceeded by the
Court’s orders regarding the validity of the Will, as well as the orders
regarding the parties treatment of the Will. The intent of the parties
seems clear as to abandon their pleadings regarding the probate of the
Will and to proceed through the rules of intestacy as to the distribution of
the Estate. The Court exceeded the agreement of the parties as read into
Sandra Ikenaga’s Appellant Brief 14
the record. The Final Judgment does not strictly comply with the
agreement of the parties and reaches legal conclusions and makes
findings unsupported by the record. The Defendants promulgation of the
proposed Order to the Court (See RR- Vol. 17) misrepresents to the
Court that the proposed Final Judgment strictly and accurately represents
the Settlement Agreement read into the record. It does not, and therefore
fails. Because of this, the Court of Appeals must remand the case back to
the Trial Court for entry of a proper Judgment.
2. Withdrawal of Sandra Ikenaga’s objections to ACCC Holding
Corporation (hereinafter referred to AHC) claim of $489,060.87, and
Christine Ikenaga’s claims
The Settlement agreement between the parties read into the
record states that Sandra Ikenaga “will withdraw objection and
opposition to AHC’s claim against the estate for approximately…
$489,060.82 within 14 days of today’s date. Plaintiff will withdraw
objection to Christine Ikenaga’s claim against the estate for
approximately $200,000.00 within 14 days of today’s date.” RR Vol. 15
p5 ln 23 to p6 ln8. However the Final Judgment states “ the court finds
that Sandra’s objection to AHC’s claim against the Estate in the amount
of $489,060.82 (“AHC’s Claim) and her objection to Christine Ikenaga’s
Sandra Ikenaga’s Appellant Brief 15
claim against the Estate in the amount of $200,000.00 (“Christine’s
Claim”) are hereby overruled to the extent not already withdrawn by
Sandra.” Again, there is no basis for the Court’s overruling of the
objections to said claims, and it was not the agreement of the parties that
the objections be overruled, but instead that the objections be withdrawn.
The Court would have to have had the objections presented to the Court
in order to overrule same, and the record does not support that the Court
in fact overruled said objections. The Final Judgment does not strictly
comply with the agreement of the parties and reaches legal conclusions
and makes findings unsupported by the record. The Defendants
promulgation of the proposed Order to the Court (See RR- Vol. 17)
misrepresents to the Court that the proposed Final Judgment strictly and
accurately represents the Settlement Agreement read into the record. It
does not, and therefore fails. Because of this, the Court of Appeals must
remand the case back to the Trial Court for entry of a proper Judgment.
3. Indemnification of Sandra Ikenaga
The Final Judgment does not contain any language that indemnifies
Sandra Ikenaga by the Defendants. (CR Vol. 7 p 4681). The Settlement
agreement between the parties states that parties would indemnify each
other pursuant to the settlement agreement. (RR Vol. 15 p 21, ln 7-10)
Sandra Ikenaga’s Appellant Brief 16
However, the Final Judgment merely has the defendant’s being
indemnified by Sandra Ikenaga without any reciprocal indemnification
by the Defendants to Sandra Ikenaga. The Final Judgment does not
strictly comply with the agreement of the parties and fails to include
material and substantial agreements made by the parties supported by the
record. The Defendants promulgation of the proposed Order to the Court
(See RR- Vol. 17) misrepresents to the Court that the proposed Final
Judgment strictly and accurately represents the Settlement Agreement
read into the record. It does not, and therefore fails. Because of this, the
Court of Appeals must remand the case back to the Trial Court for entry
of a proper Judgment.
4. Distribution of Property to Sandra Ikenaga
In the Settlement Agreement read into the record, Sandra Ikenaga agreed
to turnover one (singular) Lexus automobile to AHC (RR Vol 15 p8 ln 5-7).
All clarifications regarding the Settlement Agreement were resolved on the
record to the Court. RR Vol. 15 p 22, ln 13-17. However, the Final
Judgment orders Sandra Ikenaga to deliver a 2007 Lexus VIN
JTH6F746F07002870 and a 2010 Lexus VIN JTHLL1EF2A5041600 to
AHC. CR Vol. 7 p. 4679. Additionally the Settlement Agreement states
“she will maintain the personal property in her possession except for those
Sandra Ikenaga’s Appellant Brief 17
items we’ve already identified in Exhibit A.” RR Vol. 15 p. 7 ln 21-23.
Furthermore, the testimony of Sandra Ikenaga in her deposition transcript
(CR Vol. 4 p 2504 (transcript page 481 line6-14), which is not refuted by
any evidence to the contrary, clearly shows that she is claiming a Lexus
motor vehicle as her own personal property and not that of the Estate. The
divestment of Sandra Ikenaga’s personal property, specifically a 2010 Lexus
automobile with approximately 5400 miles, through the misrepresentations
contained in the Final Judgment as to the Settlement Agreement between the
parties acts as an injustice to Sandra Ikenaga, and is not supported by
evidence in the record, is not supported by sufficient evidence in the record,
does not strictly comply with the Settlement Agreement, and amounts to a
lack of due process and due course of law under the 5th and 14th
Amendments to the United States Constitution and Art. I, §§ 13 and 19 of
the Texas Constitution. The Final Judgment does not strictly comply with
the agreement of the parties and reaches legal conclusions and makes
findings unsupported by the record. The Defendants promulgation of the
proposed Order to the Court (See RR- Vol. 17) misrepresents to the Court
that the proposed Final Judgment strictly and accurately represents the
Settlement Agreement read into the record. It does not, and therefore fails.
Because of this, the Court of Appeals must remand the case back to the Trial
Sandra Ikenaga’s Appellant Brief 18
Court for entry of a proper Judgment.
4. POINT OF ERROR NO. 3: The Court committed error by
failing to consider evidence properly before the Court in the
hearing on Defendant’s Motion for Summary Judgment.
The Appellant was the non-movant for the partial Motion for
Summary Judgment and No-Evidence Motion for Summary Judgment in the
underlying cause. The movant in a traditional motion for summary judgment
bears the burden of proving that there is no genuine issue as to any material
fact as to each element of its cause of action or defense, or that there is no
genuine issue as to any material fact in at least one element of the
nonmovant’s affirmative defense or the nonmovants cause of action. The
non-movant has the entire burden of proof once the movant files a no-
evidence motion. Tex. R. Civ. Pro. 166a(i). The burden of proof in a
summary judgment proceeding is on the same party who would have the
burden of proof at trial. Marsaglia v UTEP, 22 S.W.3d 1, 3 (Tex. App.- El
Paso 1999, pet denied); Esco Oil & Gas v. Sooner Pipe & Supply, 962
S.W.2d 193, 197 n.3 (Tex. App.- Houston [1st Dist.] 1998, pet. denied). The
burden on the nonmovant is to raise a genuine issue of material fact about
the element challenged by the motion for summary judgment. Tex. R. Civ.
Pro. 166a(i). Merriman v XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
Sandra Ikenaga’s Appellant Brief 19
2013); Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001);
Prayton v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.- Houston [14th
Dist.] 2002, no pet.) The trial court must resolve all doubts about the facts
in favor of the nonmovant. Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex.
App.- Houston [1st Dist.] 2000, pet. denied).
To defeat a no-evidence motion for summary judgment, the non-
movant must prove there is a genuine issue of material fact on the elements
challenged by the movant. Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex.
2014). The Notes and Comments section of TRCP 166a(i) state that to
defeat a no-evidence motion, the nonmovant “is no required to marshal its
proof; its response need only point out evidence that raises a fact issue on
the challenged elements.” Saenz v. Southern Union Gas Co., 999 S.W.2d
490, 493 (Tex. App.- El Paso 1999, pet. denied). The nonmovant should
present summary judgment evidence in the same form that would be
admissible at trial. To defeat a no-evidence motion for summary judgment,
the non-movant must produce more than a scintilla of evidence to raise a
genuine issue of material fact on the challenged elements. TRCP 166a(i).
Forbes, Inc. v. Grenada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003);
Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 164 (Tex. App.- Houston
[14th Dist.] 2000, pet. denied). If the nonmovant presents more than a
Sandra Ikenaga’s Appellant Brief 20
scintilla of evidence of the challenged elements, it is entitled to a trial on the
merits. Ridgeway v Ford Mortor Co., 82 S.W.3d 26, 29 (Tex. App.- San
Antonio 2002) rev’d other grounds 135 S.W.3d 598 (Tex. 2004). A
nonmovant produces more than a scintilla when the evidence “rises to a
level that would enable reasonable and fair-minded people to differ in their
conclusions.” Ford Motor Co. v Ridgeway, 135 S.W.3d 598, 601 (Tex.
2004). Marsaglia v. Utep, 22 S.W.3d at 4; cf. Merrell Dow Pharmaceuticals
v Havner, 953 S.W.2d 706, 711 (Tex. 1997). A nonmovant produces no more
than a scintilla when the evidence is “so weak as to do no more than create a
mere surmise or suspicion” of a fact. Forbes, Inc. 124 S.W.3d at 172;
Marsaglia, 22 S.W.3d at 4; cf. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
(Tex. 1983).
The Court should give the nonmovant the opportunity to cure any
defects in its summary judgment evidence identified by the movant in its
reply. Tex. R. Civ. Pro. 166a(f). A party should be given opportunity to
cure defects in form of affidavits and attachments.) See also, Tex. R. Civ.
Pro. 166a(g) (a court may deny summary judgment or grant continuance to
allow nonmovant to obtain affidavit or deposition testimony necessary to
support its claims). The opportunity to cure in TRCP 166a(f) should apply
to the nonmovant in a no-evidence motion for summary judgment, because
Sandra Ikenaga’s Appellant Brief 21
if the Court rules adversely to the party with the burden of proof, the
nonmovant in a no-evidence motion for summary judgment, it is fatal to the
nonmovants case. See, Webster v Allstate Insurance, 833 S.W.3d 747, 750
(Tex. App.- Houston [1st Dist.] 1992, no writ), stating trial court should not
have sustained objections to a party’s evidence on day of hearing without
giving party chance to amend.
A traditional motion for summary judgment is reviewed on appeal de
novo. Mid-Century Ins. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). In
reviewing a no-evidence motion for summary judgment, the appellate court
must consider all the evidence in the light most favorable to the party against
whom the summary judgment was rendered, crediting evidence favorable to
that party of reasonable jurors could and disregarding contrary evidence
unless reasonable jurors could not. Boerjan, 436 S.W.3d at 311-312; Timpte
Indus. V. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
In the case at bar, the Defendants moved for a partial tradition motion
for summary judgment on their counter-claims for declaratory relief
contending that Decedent’s stock in AHC remained his separate property
and that Sandra Ikenaga, Appellant, never acquired any interest therein.
Defendants further moved for summary judgment on their affirmative
defense of statute of limitations. Appellant responded that the alleged
Sandra Ikenaga’s Appellant Brief 22
transfers of the stock to the Defendants was null and void and of no legal
effect, and provided summary judgment evidence to support same in the
form of deposition transcripts of Eric Goodman, Christine Ikenaga, and
Nancy Sumner, and incorporated by reference the Defendants’ exhibits and
evidence attached to Defendants’/ Movants’ Motion for Partial Summary
Judgment, the Deposition transcript of Sandra Ikenaga, Vol.1, the affidavit
of Jack Ikenaga, Jr. with the attached Sales and Purchase Agreement for
Shares of Captial Stock, the Sharholder’s Agreement attached to the
Affidavit of Ross Bennet, and the Affidavit of Philip Bither. The non-
movant’s summary judgment evidence raised genuine issues of material fact
as to the legitimacy of the transfer of the stock in question to the
Defendant’s by the Decedent, the Texas residency of the Decedent at the
time the Stock was obtained, and whether the transfer of the stock, if
legitimate was a fraud on the community, whether under either Texas or
Georgia law. CR Vol. 4 p 2578 to 2589. The Court was to take as true all
evidence favorable to the non-movant to indulge every reasonable inference
and resolve any doubts in non-movant’s favor. Science Spectrum Inc. v.
Martinez, 941, SW2d 910, 911 (Tex. 1997); Friendswood Dev. Co. v.
McDade & Co. , 926 S.W.2d 280, 282 (Tex. 1996). The Court additionally
erred in permitting the testimony of John Donsbach, an attorney from
Sandra Ikenaga’s Appellant Brief 23
Georgia, who essentially testified as an expert at the hearing on the motion
for summary judgment regarding the applicability of Georgia Law and that
the stock in question was the Separate property of Decedent, (RR- Vol. 13, p
41, ln 24 to page 50 ln 4) in that no testimony is permitted in a motion for
summary judgment. Tex. R. Civ. Pro. 166a. The non-movant raised a
genuine issue of material fact as to whether the discovery rule applied to the
statute of limitations defense and further negated the elements of the statute
of limitations defense by producing evidence that the nature and transfer of
the Decedent’s stock made the basis of the motion had in fact been
fraudulently transferred during the pendency of this litigation, thereby
supporting nonmovants causes of action well within any statute of
limitations.
The Defendants’ No-Evidence Motion for Summary Judgment
asserted there was no evidence that Defendants (1) defrauded the
community; (2) participated in a conspiracy to defraud the community;(3)
were unjustly enriched; (4) hold monies that belong to Sandra Ikenaga; or
(5) engaged in fraudulent transfers of any type. The summary judgment
evidence provided in response to the partial summary judgment as well as
the no-evidence motion for summary judgment provide more than a scintilla
of evidence that Defendants’ fraudulently executed counterparts required by
Sandra Ikenaga’s Appellant Brief 24
the shareholder agreement during the course of the litigation in order to
fraudulently confer ownership of the stock allegedly transferred by Decedent
to Defendants, thereby clearly demonstrating a conspiracy to defraud the
community, actually defraud the community, and engage in fraudulent
transfers of estate and community property. See CR Vol. 4 pg 2579 to 2593.
It is important for the Court to note that at the time the Motions for
Summary Judgment were proffered, the Will of Jack Hiromi Ikenaga, Sr.
had still been sworn to as authentic by Jack Ikenaga, Jr. and had not been
withdrawn. Had the Court determined that the transfer to the children was
non-existent or in the alternative fraudulent, and set aside said transfer, the
resulting stock of decedent would have been subject to testamentary transfer
to appellant, or in the alternative, subject to distribution under the rules of
intestacy to which appellant would have shared, thereby resulting in a
benefit of millions of dollars to Appellant. It is clear that there was more
than a scintilla of evidence that the stock transfers were conducted
fraudulently. As such, the elements of unjust enrichment are also
supported. The cause of action for money had and received stems from the
sale of the stock fraudulently transferred to Defendants, thereby making the
monetary sales proceeds subject to the money had money received cause of
action, and similarly substantiated by more than a scintilla of evidence in the
Sandra Ikenaga’s Appellant Brief 25
summary judgment evidence adduced by Appellant and tendered to the
Court. The summary judgment evidence clearly shows that there had been a
fraudulent transfer of the stock both before decedents death, as well as after,
and more importantly, during the course of the underlying litigation, that
supports appellant’s cause of action under the Texas Uniform Fraudulent
Transfer Act. Additionally, nonmovant produced evidence that the
Defendants objected to Plaintiff’s Pleadings as to the Discovery Rule,
as well as Plaintiffs’ evidence in that it failed to contain a supporting
affidavit for the documents attached to Plaintiff’s response to the no-
evidence motion for summary judgment, and that the response to the no-
evidence motion for summary judgment was untimely and outside the scope
of the pleadings. RR Vol 13 p 3 ln 4 to p 4 ln 8. There were no written
objections made before the hearing and the objections were raised orally at
the time of the hearing. RR Vol 13 p3 ln 4. The appellant’s first notice that
there were alleged defects in her response were on the day of the hearing on
Defendants’ partial motion for summary judgment and no-evidence motion
for summary judgment. Sandra Ikenaga’s counsel requested that the court
accept evidence it produced in response to the no-evidence motion for
summary judgment to cure alleged defects in the response to the partial
motion for summary judgment in order to remediate some of the defects in
Sandra Ikenaga’s Appellant Brief 26
the response. Under Texas Rule of Civil Procedure 166a(f) the Court should
have given the nonmovant, appellant, the opportunity to cure any defects in
its summary judgment evidence identified by the movant in its reply,
especially given that none of the objections to nonmovants evidence or
pleadings were in writing or provided to nonmovant prior to the actual
hearing on the motions for summary judgment. Instead, the Court sustained
the defendant objections, found nonmovants pleadings as to the discovery
rule to be defective, and sustained the defendants objection that non-movants
summary judgment evidence was inadmissible due to the failure to provide
an affidavit authenticating the documents, despite nonmovant’s protestations
that the evidence did not need an affidavit to be authenticated in that it was
evidence propounded by the Defendants in support of their motion. The
failure of the Trial Court to provide an opportunity to cure was fatal to non-
movants case. CR Vol. 7 pp 4611to 4618.
The disturbing part of the Court’s ruling is that the vast majority of
the defendant’s summary judgment evidence was in the form of deposition
excerpts. When relying on deposition excerpts, it is not necessary to
authenticate them. McConathy v McConathy, 869 S.W.2d 341 (Tex. 1994).
Further, since Defendants’ no-evidence motion alleged a complete lack of
evidence, specific references to the record are not necessary. City of
Sandra Ikenaga’s Appellant Brief 27
Arlington v State Farm Lloyds, 145 S.W.3d 165m 167-168 (Tex. 2004). The
remainder of the evidence, with the exception of an email, was produced by
Defendants through the affidavits attached to their motion for summary
judgment. These affidavits and the documents attached to them regarding
the sale of the stock in question should have been admitted and considered
by the Court and any doubts resolved in favor of the nonmovant. The Court
erred in sustaining the Defendant’s objection to nonmovant’s summary
judgment evidence, and should have overruled same, admitted the evidence
and concluded that a genuine issue of material fact existed as to each of non-
movants causes of action and denied the motions for summary judgement.
In the alternative, at the very least, the court should have denied the motion
or continued the matter in order to provide nonmovant an opportunity to
cure the alleged defects. This would have had no prejudice on the movant.
Conversly, the trial Court’s failure to provide an opportunity to cure the
alleged defects proved fatal to nonmovant’s case, thereby forcing
nonmovant into a vastly inferior position in this litigation, and forcing her to
settle this matter for millions of dollars less than what should have been
awarded through this estate. Due to these errors, and in the interest of
justice, the Court of Appeals should reverse and remand this cause back to
the trial court for further proceedings.
Sandra Ikenaga’s Appellant Brief 28
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this
Honorable Court sustain the points of error enumerated above and reverse
the Final Judgment of the trial Court and remand for a new trial, as well as
all such other and further relief, at law or in equity, to which Appellant may
show herself to be justly entitled.
RESPECTFULLY SUBMITTED,
THE MCLANE LAW FIRM
The Colonnade
9901 IH-10 West, Ste.695
San Antonio, Texas 78230
Email: dlmclanelaw@yahoo.com
Telephone: (210) 736-9966
Facsimile: (210) 547-7932
By:_/s/ David L. McLane
DAVID L. MCLANE
State Bar No.: 00795517
ATTORNEY FOR APPELLANT
Sandra Ikenaga
Sandra Ikenaga’s Appellant Brief 29
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4 (i)(3), the
undersigned counsel hereby certifies that the Petition for Discretionary
Review in the above styled and numbered cause is in compliance with said
rules and has 4622 words included as set forth in TRAP Rule 9.4(i)(1).
SIGNED this 24th day of June, 2015.
/s/ David L. McLane
DAVID L. MCLANE
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
Appellant’s Brief was delivered in accordance with the Texas Rules of
Appellate Procedure, on the 24th day of June, 2015, on the following:
PHILIP M. ROSS
1006 Holbrook Road
San Antonio, Texas 78218
philipmross@hotmail.com
MICHAEL J. CENATIEMPO
770 South Post Oak Lane, Ste. 500
Houston, Texas 77056
mikecen@cenatiempo.com
JOSEPH S. COHEN
1300 Post Oak Boulevard, Ste. 2500
Houston, Texas 77056
jcohen@bmpllp.com
Sandra Ikenaga’s Appellant Brief 30
MARK STANTON SMITH
3737 Broadway, Ste. 310
San Antonio, Texas 78209
atysmith@heardandsmith.com
WILLIAM H. FORD
10000 Reunion Place, Ste. 640
San Antonio, Texas 78216
bill.ford@fordmurray.com
KEVIN M. YOUNG
10101 Reunion Place, Ste. 600
San Antonio, Texas 78216
kyoung@phmy.com
Sam Houston
210.775.0882 Direct
sam@hdappeals.com
/s/ David L. McLane________
DAVID L. MCLANE
Sandra Ikenaga’s Appellant Brief 31