Noe Garcia, Rosa Garcia, Maria G. Ruel, Unknown Heirs of Conrado Ruben Garcia, Gloria G. Valdez, Eddie Garcia, Saul Flores, Stella Shull, Joel Flores, Hector Flores, and Oscar Flores v. Anna Maria Salazar and Carlos Abel Salazar

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-18-00191-CV
Noe GARCIA, Rosa Garcia, Maria G. Ruel, Unknown Heirs of Conrado Ruben Garcia,
Gloria G. Valdez, Eddie Garcia, Saul Flores, Stella Shull, Joel Flores, Hector Flores,
and Oscar Flores, et al.,
Appellants
v.
Anna Maria SALAZAR and Carlos Abel Salazar,
Appellees
From the 218th Judicial District Court, La Salle County, Texas
Trial Court No. 13-09-00220-CVL
Honorable Donna S. Rayes, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: September 5, 2018
AFFIRMED
The appellants contend the trial court erred in entering the judgment in the underlying cause
“because it is based on a mediated settlement agreement which lacked consent of all Appellants.”
The appellants also contend the judgment should be reversed because no reporter’s record was
made of the trial proceedings. We affirm the trial court’s judgment.
04-18-00191-CV
BACKGROUND
The appellants sued the appellees seeking to remove a cloud placed on their property by
the appellees. The appellees filed an answer and counterclaims seeking a declaration that they
own the property.
On September 22, 2017, a mediator filed a report stating all of the parties engaged in
mediation on September 21, 2017, and entered into a mediated settlement agreement resolving all
issues in controversy. A copy of the mediated settlement agreement was attached to the mediator’s
report.
On October 25, 2017, the appellees amended their pleadings to add a claim for breach of
contract, asserting the appellants had breached the mediated settlement agreement. The appellees
also filed a motion to enforce the mediated settlement agreement asking the trial court to enter a
judgment enforcing the terms of the agreement.
On December 12, 2017, the trial court signed a judgment stating a hearing was held on the
appellees’ motion that day. The judgment states the appellants and the appellees appeared by and
through their attorneys of record, and the trial court considered “the Motion, the evidence presented
and the argument of counsel.” Noting the appellees sought to enforce the mediated settlement
agreement by breach of contract, the judgment also states:
After considering the pleadings and official records on file in this cause, the
evidence presented, and the parties’ arguments, the Court finds that the parties
participated in good faith in a court ordered mediation on September 21, 2017 and
the parties came to an agreement that resolved all disputes between them.
The judgment further states:
The Court further finds that the Settlement Agreement is enforceable as a
contractual agreement between the parties.
After considering the pleadings and official records on file in this cause, the
evidence presented, and the parties’ arguments, the Court renders the following
judgment:
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The Settlement Agreement is enforceable as a contractual agreement between
the parties.
The judgment then awards interests in the property to the appellants and the appellees based on
the terms of the settlement agreement.
On January 11, 2018, the appellants filed a motion for new trial asserting two individuals
signed the mediated settlement agreement on behalf of others without any authority. Specifically,
the motion for new trial asserted the individuals purported to have powers of attorney to sign on
behalf of others, but no such authority existed. No hearing was set on the motion for new trial
which was overruled by operation of law. Appellants then filed their notice of appeal.
REPORTER’S RECORD
In appellants’ second issue, they contend the trial court’s judgment must be reversed
because no reporter’s record was made of the trial proceedings.
Although a conflict exists between the courts of appeal “as to who bears the burden on the
court reporter’s obligation to transcribe [a] record,” this court has held “the complaining party
must have objected to the reporter’s failure to transcribe the missing testimony in order to preserve
the complaint for appellate review.” Sareen v. Sareen, 350 S.W.3d 314, 316 (Tex. App.—San
Antonio 2011, no pet.). “[T]his comports with the general rules that an appellate court may
consider a case based only upon a record that shows the complaint at issue was made to the trial
court by a timely request, objection, or motion.” Id.
In this case, the trial court’s judgment recites that the appellants appeared at the hearing
through their attorney of record; however, the record does not show any objection was made to the
absence of a court reporter or to the failure to make a record. Accordingly, the appellants have not
preserved the complaint made in their second issue for our review. See id. Appellants’ second
issue is overruled.
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04-18-00191-CV
ENTRY OF JUDGMENT
In their first issue, the appellants contend the trial court erred in entering the judgment
“because it is based on a mediated settlement agreement which lacked consent of all Appellants.”
Appellants rely on the affidavits attached to their motion for new trial which state two individuals
were not authorized to sign on behalf of some of the parties to the mediated settlement agreement.
A trial court cannot render an agreed judgment after a party has withdrawn his consent to
a settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); Gamboa v.
Gamboa, 383 S.W.3d 263, 269 (Tex. App.—San Antonio 2012, no pet.). However, “this does not
preclude the court, after proper notice and hearing, from enforcing a settlement agreement
complying with Rule 11 even though one side no longer consents to the settlement.” Padilla, 907
S.W.2d at 461. In such a case, “the party seeking enforcement must pursue a separate breach-of-
contract claim, which is subject to the normal rules of pleading and proof.” Mantas v. Fifth Court
of Appeals, 925 S.W.2d 656, 658 (Tex. 1996); see also Gamboa, 383 S.W.3d at 269.
“Where the settlement dispute arises while the trial court has jurisdiction over the
underlying action, a claim to enforce the settlement agreement should, if possible, be asserted in
that court under the original cause number.” Mantas, 925 S.W.2d at 658. Seeking to enforce a
settlement agreement by filing a motion to enforce in the pending cause while the trial court has
jurisdiction is a proper procedure to follow. Matinee Media Corp. v. Falcon, No. 04-12-00133-
CV, 2012 WL 3104530, at *3 (Tex. App.—San Antonio Aug. 1, 2012, no pet.).
In this case, the appellees amended their pleadings to assert a breach of contract claim, and
they also filed a motion to enforce the settlement agreement. Although the appellants assert the
agreement was signed by two individuals on behalf of others for whom they did not have authority
to sign, the judgment states the trial court considered the evidence presented and found the
settlement agreement was an enforceable contract. Thus, the record reflects the trial court
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04-18-00191-CV
conducted an evidentiary hearing, which was akin to a bench trial, while the trial court had
jurisdiction to enter a judgment on appellees’ breach of contract claim. Therefore, the trial court
did not err in entering the judgment. The appellants’ first issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Sandee Bryan Marion, Chief Justice
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