Patricia Kelt v. Genie Campbell ( 1993 )

Kelt v. Campbell, et al.

IN THE

TENTH COURT OF APPEALS

No. 10-92-248-CV

     PATRICIA KELT, ET AL.,

                                                                                              Appellants

     v.

     GENIE CAMPBELL, ET AL.,

                                                                                              Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 92-00-01781-CV

O P I N I O N

      Patricia Kelt and Scotte Bell appeal the entry of a summary judgment. Genie Campbell, Jerald Kelt, and Julia Burton filed a wrongful-death suit against Patricia Kelt, alleging that she shot and killed her husband and their father, Julius Julian Kelt, Jr. Patricia Kelt then filed Julius Kelt's will for probate. The will named Patricia Kelt and her son, Scotte Bell, as beneficiaries. Bell filed a counterclaim asserting his right as a contingent beneficiary to receive Patricia Kelt's portion of the estate in the event that she was not entitled to take under the will. The wrongful-death and estate matters were consolidated in the district court, and trial was set for August 26, 1991. The parties appeared on that day and announced that the case had been settled.

      David Martin, the appellants' attorney, dictated the terms of the settlement into the record and indicated that he would be responsible for preparing the written settlement agreement and that Frank Murchison, the appellees' attorney, would be responsible for preparing any other documents necessary to transfer title. The court, however, did not render judgment at the hearing. On November 15, the court heard the appellees' motion to enforce the settlement agreement. After Patricia Kelt withdrew her consent to an agreed judgment, the appellees filed a suit on the agreement, alleging that the oral agreement "settled and disposed of all issues in litigation between the parties." The appellees then filed a motion for summary judgment, asserting that the summary-judgment evidence established that no material fact issue existed as to the agreement or its enforcement. The summary-judgment evidence included certified copies of the statements of fact from the August 26 and November 11 hearings; Murchison's affidavit; and copies of a number of unexecuted documents prepared to memorialize the settlement agreement, to probate Kelt's will, and to effect the transfer of title to property owned by Patricia Kelt and devised to her by Kelt's will. The court rendered summary judgment in favor of the appellees and severed the wrongful-death and estate claims from the suit on the agreement.

      In point one the appellants contend that the court erred in granting the appellees' motion for summary judgment. In their response to the motion for summary judgment, the appellants raised a number of objections to the summary-judgment evidence on the grounds that it contained hearsay and conclusions. However, no order sustaining their objections appears in the record. Such an order must be reduced to writing, signed, and entered of record. Because the record does not reflect that the court ruled on the objections to the summary-judgment evidence, the appellate court cannot determine whether the trial court considered the objected-to evidence in granting the summary judgment.

      The appellants also argued that genuine issues of material fact precluded the granting of summary judgment and that the appellees failed to establish that an enforceable contract existed. According to the appellants, a document entitled "Additional Terms to Agreement for Settlement" conclusively showed that the agreement dictated into the record on August 26 did not comprise a complete contract because there were other material terms left to be agreed upon. The summary-judgment record indicates, however, that this document was merely a proposed modification of the settlement agreement offered by the appellees in response to Patricia Kelt's reluctance to execute the documents necessary to satisfy the agreement. The settlement agreement did not leave any essential term open for future negotiations. The appellants have not raised the statute of frauds as a defense to enforcement of the contract, and the summary-judgment record indicates that the terms were expressed with sufficient certainty so that there was no reasonable doubt as to what property the parties intended to convey or what the court was being called upon to enforce. The parties further clarified the terms of their agreement relating to the scope of an easement, the payment of taxes, the assumption of a note, and the possession of personalty on the real property. As a result, the court was not required to supply any essential terms of the contract entered by the parties at the August 26 hearing.

      Even if the oral agreement were definite enough to constitute a contract, the appellants argued, Patricia Kelt did not have the authority to convey the estate property. According to the appellants, the fact that she had not yet been appointed executor of the estate, as contemplated by the parties to the agreement, made the terms of the agreement impossible for her to perform. At the August 26 hearing, however, Martin stated in open court that what the parties "contemplate now is that she will be appointed as executrix, with letters issued," but that the will could also be filed as a muniment of title. The statement of facts from the hearing clearly reflects the parties' intent—the Kelt children agreed not to contest the probate of the will in exchange for Patricia Kelt's promise to transfer title of certain property received under the will to the Kelt children.

      Finally, the appellants argued that the statement of facts from the August 26 hearing conclusively showed the intent of the parties that the written documents would constitute the agreement. "It is not enough that one party thinks that he has made a contract; he must show that the intentions of the parties to make a contract have been expressed in a manner that the court is capable of understanding." At the beginning of the hearing, Martin announced to the court that the suit "has been settled on these terms," which he then dictated into the record. After dictating a number of specific settlement terms involving the probate of Kelt's will and the transfer of property, Martin asked Patricia Kelt if he missed anything. She responded, "Only that the Corpus Christi home is under lease presently and that they will have to negotiate with the real estate people." Martin indicated that the appellees would receive the Corpus Christi property subject to any outstanding lease agreements. After clarifying some of the details of the terms dictated by Martin, Murchison stated, "And then other than that, the parties just need to execute any documents necessary. . . . to effectuate the settlement." Martin responded only that the Kelt children would be responsible for the cost of preparing any documentation necessary to transfer the title of property conveyed to them. Martin stated on the record, "That is, as I dictated, Your Honor, the agreement of the defendants." Martin then asked Patricia Kelt if the agreement, as he dictated it, was "an outline of [her] agreement to settle the case." She answered, "Yes." Likewise, when asked if it was his "agreement," Scotte Bell said, "Yes." Murchison also responded, "And that's our agreement on behalf of the plaintiffs, Your Honor." Murchison indicated that he would start working on the deeds and that he hoped Martin would get the agreement typed up by that Friday. Martin agreed to submit the appropriate documents, and the court concluded the hearing.

      The determination of whether there was a meeting of the minds must be based on objective standards of what the parties said and did rather than on their alleged subjective states of mind. The statement of facts from the August 26 hearing clearly shows the intention of the parties to make a contract. Furthermore, no essential terms were left for later agreement. Therefore, it is the duty of the court to determine, as a matter of law, if the agreement constituted a valid contract. Because the summary-judgment record fails to raise a fact issue on intent, we hold that the court correctly concluded that the contemplated formal writing was nothing more than a "convenient memorial" of the settlement agreement and that the oral agreement was a valid and enforceable contract.

      The appellants also complain of the award of attorneys' fees for appeal. However, issues not expressly presented to the trial court by written answer or other response shall not be considered on appeal as grounds for reversal of a summary judgment. Although affidavits are proper summary-judgment evidence when referred to or incorporated in the response to a motion for summary judgment, Martin's affidavit, which controverted the amount of trial attorneys' fees, was not referred to in the appellants' response. It was merely attached to their response, which did not raise the issue of attorneys fees or make any reference to Martin's affidavit. Furthermore, the court did not award attorneys' fees for trial, and Martin's affidavit did not controvert the amount of appellate attorneys' fees suggested in Murchison's affidavit as reasonable. Because the summary-judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the appellees' cause of action, we overrule point of error one.

      In point two, the appellants contend that the court erred in entering the judgment entered because it is indefinite, ambiguous, uncertain, conditional, incapable of enforcement by execution, and contains void orders. Specifically, they complain that, because the judgment orders the will to be "probated by Pat Kelt," the court has ordered her to perform a judicial function that she cannot perform. We disagree with the appellants' reading of the judgment. The definition of the term "probate" includes "the proof of the will by the executor." This is precisely what Patricia Kelt agreed to do. The appellants further argue that her ability to satisfy the judgment is improperly conditioned upon the occurrence of a future event—the probate of Kelt's will. We hold that the judgment is sufficiently definite and certain to define and protect the rights of the parties. Because the appellees agreed to dismiss the probate contest, the only act left to be performed was the ministerial act of probating the will. A judgment that settles all the legal issues and rights of the parties is final even though further proceedings may be necessary in its execution or some incidental or dependent matter may still remain to be settled. Accordingly, we overrule point of error two.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed March 24, 1993

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