Edwin Howard Hooks, Jr. v. Deborah Kay Davis ( 2004 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-03-00739-CV
    Edwin Howard Hooks, Jr., Appellant
    v.
    Deborah Kay Davis, Appellee
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
    NO. GN203423, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING
    MEMORANDUM OPINION
    Edwin Howard Hooks, Jr. appeals the trial court’s summary judgment in favor of his
    ex-wife, Deborah Kay Davis. Davis sued Hooks for breach of their agreement incident to divorce
    when he failed to make monthly and lump-sum alimony payments to her. On appeal, Hooks asserts
    that Davis’s summary-judgment evidence was neither competent nor uncontroverted and that there
    was a fact issue regarding whether their agreement is enforceable. We hold that the agreement is
    enforceable and affirm the judgment of the trial court.
    BACKGROUND
    Davis filed suit for divorce against Hooks in 1999. The trial court granted the divorce
    in 2000 and approved their agreement incident to divorce (the Agreement), which both Hooks and
    Davis signed. The Agreement set out how the couple’s property was to be divided and provided for
    monthly alimony for ten years and two $45,000 lump-sum payments to be paid by Hooks to Davis.
    The monthly alimony payments required Hooks to pay Davis $5,000 per month for 120 months,
    beginning on February 29, 2000. The first $45,000 lump-sum payment, designated in the Agreement
    as alimony, was to be paid on June 30, 2002. The other $45,000 lump-sum payment, designated in
    the Agreement’s “Schedule 1” as property awarded to Davis, was to be paid on June 30, 2003.1
    Hooks paid the monthly alimony through May 2002. At that time, according to his
    deposition, he could no longer make the payments because his business was not doing well and he
    did not have the money to pay. He also did not make the first $45,000 lump-sum payment due in
    June 2002, apparently for the same reason. He has not paid monthly alimony since June 2002 or the
    two $45,000 lump-sum payments due in 2002 and 2003. Hooks also testified that the net worth of
    the business he solely owns is about $300,000, that he pays himself $20,000 a month as salary, and
    that he was awarded a bonus in excess of $100,000 in the year 2000 and that he received a bonus of
    some amount in 2002 but not in 2003.
    Davis filed suit for breach of contract in September. Shortly thereafter, Davis filed
    a motion for summary judgment, to which she attached the Agreement and excerpts from Hooks’s
    deposition, among other documents. After a hearing, the trial court granted Davis’s summary-
    judgment motion.
    1
    The Agreement also provided that Hooks was to pay Davis $269,000 on August 1, 2000
    or on the closing date of the sale of a piece of real property and $85,000 on the date of divorce;
    Hooks testified that he agreed to make these payments and did make both of them.
    2
    DISCUSSION
    Because the propriety of a summary judgment is a question of law, we review the trial
    court’s decision de novo. Natividad v. Alexsis, Inc., 
    875 S.W.2d 695
    , 699 (Tex. 1994); Texas Dep’t
    of Ins. v. American Home Assurance Co., 
    998 S.W.2d 344
    , 347 (Tex. App.—Austin 1999, no pet.).
    The standards for reviewing a summary judgment are well established: (1) the movant has the
    burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as
    a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary
    judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable
    inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon
    v. Mr. Prop. Mgmt. Co., 
    690 S.W.2d 546
    , 548-49 (Tex. 1985).
    Hooks first asserts that Davis’s summary-judgment evidence was not competent and
    was controverted, precluding summary judgment in her favor. Regarding the competency of the
    evidence, Hooks asserts that Davis’s summary-judgment evidence was not submitted timely because
    she filed her amended motion for summary judgment on the day of the hearing and attached to the
    motion the same summary-judgment evidence she had previously submitted.2 Specifically, Hooks
    argues that it was not until this amended motion that Davis “incorporated by reference” the attached
    summary-judgment evidence. He insists that because Davis did not get leave of the court to file her
    “late” summary-judgment evidence, it was not competent. See Benchmark Bank v. Crowder, 919
    2
    The only difference in the evidence submitted with Davis’s amended motion was an
    amended affidavit for attorney’s fees, which contained only a non-substantive addition and does not
    affect the validity of the Agreement.
    
    3 S.W.2d 657
    , 663 (Tex. 1996) (summary-judgment evidence filed two days before hearing was late
    and could not, therefore, be filed except with leave of court); see also Tex. R. Civ. P. 166a(c).
    Although Hooks correctly cites the principle of law concerning late summary-
    judgment evidence, that rule does not apply here. Davis attached several exhibits to her original,
    timely summary-judgment motion, and the original motion specifically referred to this attached
    evidence:
    In support of this Motion, Plaintiff refers the Court to the pleadings and requests that
    the Court take judicial notice of all such pleadings in the file, the Agreement of the
    parties (Exhibit ‘A’), the Affidavits of John F. Campbell as to attorney’s fees and
    entitlement under the Agreement (Exhibit ‘B and C’), the answers of Defendant to
    Plaintiff’s Request for Admissions (Exhibit ‘D’) with request numbers 1-4 and 17 to
    be deemed as admitted, and this position testimony of the Defendant set forth in the
    Motion and attached also as Exhibit ‘E.’
    We understand Hooks to be arguing that because Davis’s second amended motion
    for summary judgment—filed on the day of the hearing—included additional language that “all of
    these exhibits are incorporated herein by reference and made a part hereof for all purposes,” any
    prior, timely summary-judgment motions purporting to incorporate their attached exhibits were not
    competent because they did not use the magic language of “incorporated by reference.” We reject
    this argument. See Boeker v. Syptak, 
    916 S.W.2d 59
    , 62 (Tex. App.—Houston [1st Dist.] 1996, no
    writ) (paragraph in summary-judgment motion that expressly and specifically identified attached
    affidavits as being relied upon as summary-judgment evidence was sufficient to place such affidavits
    before court as evidence). Davis’s first summary-judgment motion clearly indicated that it was
    4
    relying upon the attached exhibits A through E as evidentiary support. We overrule Hooks’s first
    issue.
    To prevail on her breach-of-contract claim, Davis had to prove: (1) the existence of
    a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract
    by the defendant, and (4) damages to the plaintiff resulting from the breach. Roundville Partners,
    L.L.C. v. Jones, 
    118 S.W.3d 73
    , 82 (Tex. App.—Austin 2003, pet. denied). Hooks contests only the
    first requirement, claiming that there is a fact issue on whether there is a valid agreement.
    Agreements incident to divorce become enforceable contracts when they are
    incorporated into a final decree. Markowitz v. Markowitz, 
    118 S.W.3d 82
    , 90 (Tex. App.—Houston
    [14th Dist.] 2003, pet. denied); Traylor v. Traylor, 
    789 S.W.2d 701
    , 703 (Tex. App.—Texarkana
    1990, no writ). A person may contract to support his spouse, and that obligation, to the extent it
    exceeds his legal duty, is a debt. Ex parte Hall, 
    854 S.W.2d 656
    , 658 (Tex. 1993) (orig. proceeding).
    Where the duty to make support payments arises from an agreement between the parties, rather than
    from a divorce decree based entirely upon the power conferred by the family code, the rights and
    obligations of the parties are governed by the rules of contract. See Hutchings v. Bates, 
    406 S.W.2d 419
    , 420 (Tex. 1966); Griffin v. Griffin, 
    535 S.W.2d 42
    , 43-44 (Tex. Civ. App.—Austin 1976, no
    writ).
    Hooks argues in his brief that after paying alimony for seventeen months, in June
    2002 he realized that he had not signed the Agreement voluntarily. Coincidentally, this was the same
    month that the first payment of $45,000 came due. However, because the Agreement was approved
    and incorporated into the divorce decree by the trial court, it constituted part of a valid and binding
    5
    final judgment. See Ex parte Gorena, 
    595 S.W.2d 841
    , 844 (Tex. 1979); McCray v. McCray, 
    584 S.W.2d 279
    , 281 (Tex. 1979). An agreed judgment is accorded the same degree of finality and
    binding force as a final judgment rendered at the conclusion of an adversary proceeding. 
    Gorena, 595 S.W.2d at 844
    ; 
    McCray, 584 S.W.2d at 281
    . Parties to an agreed judgment are prohibited from
    raising contractual defenses in an action to enforce the agreement when those defenses attack the
    validity of the agreement at its inception, execution, or at the time it is approved by the court in the
    divorce decree. Spradley v. Hutchison, 
    787 S.W.2d 214
    , 219-20 (Tex. App.—Fort Worth 1990, writ
    denied); Giddings v. Giddings, 
    701 S.W.2d 284
    , 289 (Tex. App.—Austin 1985, writ ref’d n.r.e.).
    Nonetheless, Hook asserts that Davis’s summary-judgment evidence supporting the
    existence of a valid agreement is controverted, precluding summary judgment. See Great Am.
    Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 
    391 S.W.2d 41
    , 47 (Tex. 1965). He cites the
    following “controverting” evidence: (1) a memo dated February 7, 2000 from Hooks to his former
    counsel, in which he mentions that the dates for the two $45,000 payments should be in October of
    2002 and 2003, rather than in April of those years; (2) a letter dated March 7, 2000 from Hooks’s
    former counsel to Davis’s counsel negotiating the details of the Agreement to be signed; (3) an
    undated and unsigned spreadsheet indicating which assets are to go to which spouse, indicating two
    cash payments of $45,000 that Hooks is to make to Davis, in addition to the 120 monthly alimony
    payments of $5,000; (4) Hooks’s former attorney’s handwritten notes, dated late January 2001, in
    which she indicates Hooks’s agreement to make two $45,000 payments to Davis, in October of 2001
    and 2002; and (5) Hooks’s affidavit, in which he states, “The Agreement Incident to Divorce that
    Plaintiff alleges I owe her money is not the same agreement I had with her.” In other words, Hooks
    6
    asserts that the Agreement does not reflect the terms as he remembers them.3 However, he cites no
    facts supporting his conclusory statement in his affidavit that the Agreement “is not the same” as the
    one he had with Davis. Conclusory statements unsupported by facts in an affidavit are insufficient
    to raise a genuine issue of fact to prevent the rendition of summary judgment. See Texas
    Div.-Tranter, Inc. v. Carrozza, 
    876 S.W.2d 312
    , 314 (Tex. 1994); Brownlee v. Brownlee, 
    665 S.W.2d 111
    , 112 (Tex. 1984). Details of negotiations that preceded a final agreement do not
    undermine the validity of an agreement signed by both parties and approved by the court granting
    the divorce. See Smith v. Smith, 
    794 S.W.2d 823
    , 827 (Tex. App.—Dallas 1990, no writ); Gulf Oil
    Corp. v. Spence & Howe Constr. Co., 
    356 S.W.2d 382
    , 385-86 (Tex. Civ. App.—Houston 1962),
    aff’d, 
    365 S.W.2d 631
    (Tex. 1963). Furthermore, parties to a written contract have an obligation to
    read what they sign; absent actual or constructive fraud, they are not excused from the consequences
    attendant upon a failure to read the contract. G-W-L, Inc. v. Robichaux, 
    643 S.W.2d 392
    , 393 (Tex.
    1982), overruled on other grounds, Melody Home Mfg. Co. v. Barnes, 
    741 S.W.2d 349
    , 355 (Tex.
    1987); Thigpen v. Locke, 
    363 S.W.2d 247
    , 251 (Tex. 1962). Hooks has claimed no fraud,
    misrepresentation, or concealment.
    We conclude that none of Hooks’s evidence creates a fact issue as to the validity of
    the signed Agreement. Hooks’s argument is essentially that the dates of the two $45,000 payments
    set out in the Agreement are not the same dates that he remembers or that were discussed during
    negotiations leading to the Agreement. His own deposition testimony indicates that he did agree to
    3
    He also appears to be implying that perhaps the Agreement was tampered with after he
    signed it; however, there is no evidence of such tampering, and he does not explicitly argue this
    point.
    7
    make two $45,000 payments—he simply contested the dates he remembered them being due.
    However, Hooks signed the Agreement; he has not asserted that his signature was forged or that he
    signed under duress or coercion.4 Hooks testified that although he had been paying the monthly
    alimony pursuant to the Agreement, he stopped paying it and did not make the two $45,000
    payments simply because he did not have the money. Hooks has not presented any evidence to
    create a fact issue on whether there was a valid contract. The Agreement was incorporated into the
    divorce decree, and Hooks is bound by its terms. See 
    Gorena, 595 S.W.2d at 844
    . We overrule his
    second issue and hold that the trial court properly granted summary judgment in favor of Davis.
    __________________________________________
    Bea Ann Smith, Justice
    Before Justices Kidd, B. A. Smith and Pemberton
    Affirmed
    Filed: July 29, 2004
    4
    Hooks does state in his brief’s “Statement of Facts” that he “involuntarily” signed the
    Agreement, at the insistence of his former attorney. However, Hooks does not assign this allegation
    as an error or brief the issue; rather, he argues that he “did not agree” to the payments and that the
    Agreement does “not reflect the agreement” he had with Davis. Hooks has therefore waived any
    error associated with his “involuntary” signing of the Agreement. See Tex. R. App. P. 38.1(e), (h);
    see also In re Barr, 
    13 S.W.3d 525
    , 555 (Tex. 1998). Furthermore, Hooks has neither alleged duress
    or coercion in his signing the Agreement, nor has he submitted any factual evidence to support his
    conclusory statement. We also note that the Agreement states that each party “[e]nters into this
    Agreement voluntarily [and] . . . [h]as carefully read each provision of this Agreement.” His suit
    against this former attorney was initially a part of the present cause but was severed and is still
    pending in Travis County district court.
    8