*1 of v. niscent those State Mazuca7 CAMPGROUND, INC.,
Thеre the trial court determined that the BAKER’s appellee’s during Graves, initial detention a traffic Kelli and Kourtnie illegal, and the stop question was Graves, Appellants detaining whether the officer’s immediate discovery of a valid arrest warrant attenu primary illegality, ated the taint of that Anthony Cheryl L. McCALLA and
which led to the direct seizure of contrab McCalla, Appellees. A. intervening and.8 We held that the cir warrant, discovery cumstance of the of the No. 10-11-00239-CV. along with other factors such as the rela Texas, purposefulness flagrancy Appeals tive lack of Court of of misconduct, police served to break Waco. рrimary causal connection between the July 2012. illegality and the seizure of the contrab and.9 I note that the trial court in this Rehearing Sept. Overruled 2012. express findings case made no of fact and (or respect conclusions of law with to this issue),
any other though appellant re remand,
quested them.10 On the court of
appeals may it appropriate well find
return this case to the trial court for rele findings
vant of fact and conclusions of law respect
with to attenuation of taint. remarks,
With these added and because agree with well-expressed the Court’s
reasoning and conclusion that the court of
appeals erred to hold that the federal “in-
dependent source” doctrine categorically 38.23,
incompatible with Article I whole-
heаrtedly join
opinion.
law,
(Tex.Crim.App.2012).
although Wehrenberg
7.
8.
Id. at 299-300. See also State v.
Cullen,
(Tex.Crim.
State v.
In Glazier leaving proper- died the trial court entered final that ty to the Bakers. Walt his deeded interest McCallas are specific per- entitled to right actions for trial of Release and Settle- of the 2003
formance
[,]
relating
all matters
generally
...
and
betwеen the MeCallas
and distribution
partition,
The trial court ordered
Baker.
and Walt
Id. When
persons.”
deceased
of estates of
legal
proper-
title
equitable
separate
lawsuit is not
a matter raised
interests, is vested in
including mineral
ty,
Probate
mentioned
Code’s
expressly
The trial court further
the MeCallas.
appertaining to
definition of matters
attorney’s
damages
awarded
estate,
have employed
to an
we
incident
the MeCallas.
test
to determine
“controlling
issue”
meets that definition.
whether the matter
Jurisdiction
test,
controlling issue
“a suit
Id.
Under
issue,
first
the Graves con
In the
to an estate
appertaining to or incident
subjеct
the trial court lacked
tend that
controlling issue is the settle
when the
hear the case. The
jurisdiction to
matter
*4
ment,
distribution of an es
partition, or
the Estate of
argue that because
tate.
Id.
County
in the
opened
Baker was
Walt
prop-
own the
Kelli and Kourtnie Graves
Number 2 of Johnson Coun
at Law
Court
the Executоrs
erty
question by
in
virtue of
jurisdiction
ty, that court had exclusive
in
Warranty Deed executed
2005
General
proceedings.
over these
of the Estate of Walt
by the Executrix
No.
County
at Law
Johnson
quiet
to
title
Baker. The Graves filed suit
county court. Tex. Gov’t
statutory
2 is a
they acquired from Baker.
on
(West 2004).
§
When
25.1281
Ann.
Code
involve the
The suit did not
court,
statutory probate
lack a
counties
or distribution of the Estate
partition,
pro
Probate
Section 4 of the Texas
Code
Baker. We find that the trial court
Walt
county courts with the
statutory
vides
jurisdiction over the case.
had
probate
as
general
jurisdiction
same
Moreover,
jurisdiction
when the
1993,
19,
Leg.,
73rd
courts 1 Act of June
a
county
sitting
probate
in
of a
court
4,
R.S.,
957, §
Laws
ch.
1993 Tex. Gen.
concurrent, the issue is
district court are
19,
4081, 4161,
Act of June
repealed by
Puig,
jurisdiction.
of dominant
In re
one
12(h),
R.S.,
1351,
2009,
§
Leg.,
81st
ch.
two courts have
481 summary McCallas’ Walt Baker made handwritten changes in Both included the va- body of the Agreement. Walt further lidity enforceability of the 2008 Re- added provisions handwritten to the bot- lease and Settlement their tom of the Agreement as follows: grounds summary judgment. $470,000 I will agree to purchase price above
Standard of Review my Use of name grant We review the or denial of a tradi summary Attorney tional motion for No charged de against me or Creditwatch, Jackson, novo. See Inc. v. you, between us (Tex.2005). 816 n. To be Access including friends once in a while summary judgment, entitled to the movant days to close from date mentioned genuine must demonstrate that no issues above of material fact exist and thаt he is entitled I agree to enter an as a matter of law. See as dis- 166a(c). P. To if cussed above Civ. determine Tex.R. exists,
fact issue we must consider whether signed below his jurors reasonable and fair-minded could provisions. He did not sign light differ their conclusions in of all the signature on the designated line evidence presented. Goodyear Tire & typed Agreement. *5 Mayes, Rubber v.Co. 236 S.W.3d 755 At the time the Agreement pre-. was (Tex.2007). We must consider all the evi pared, the trial court was set to hold a in light dence most favorable to the hearing to enter judgment on the jury nonmovant, indulging all reasonable infer verdict. The parties informed the trial in ences favor of the nonmovant. Nixоn v. they court that had reached an Co., Property Management Mr. 690 (Tex.1985). and that it would not necessary be for the S.W.2d 546 court to enter any order or relief that competing When motions relates to Walt Baker and the McCallas. summary judgment are filed and one is The did not disclose the terms of denied, granted and the other gener is the settlement. al rule appellate is that an court should questions presented determine all and ren The argue Agreement that the is der the the trial court should unenforceable because it an “agree- have Compen rendered. Texas Workers’ agree.” The Graves further argue sation Commission v. Patient Advocates Agreement that the terms of the are am- (Tex.2004). Texas, 136 S.W.3d 648 biguous of unspecific support a sum- However, appellate may an court reverse mary judgment granting specific perform- if pertinent remand resolution of the ance that vests title to the disputed issues rests in or if facts the McCallas.
parties’ premised motions are on different Blanton,
grounds. If the writtеn instrument is See Sarandos v. 25 so given 814 & n. worded that it can (Tex.App.-Waco 5 be a certain or den’d). 2000, pet. legal meaning interpretation, definite or
then it ambiguous is not and the court will Agreement Settlement construe the contract as matter of law. Coker, (Tex. attorney The McCallas’ drafted the Coker v. 650 S.W.2d 1983). contraсt, however, Agreement. 2003 Release and Settlement ambiguous A is sustain the Graves’ is a fact issue. We and doubtful uncertain meaning is when its disposition than Because of our to more second issue. reasonably susceptible itor is issue, is we need not address a contract of the second Id. Whether meaning. one Tex.R.App. P. lаw for the See remaining of issues. question is a ambiguous looking at the contract by 47.1. court to decide of the circumstances light
as a whole Conclusion was entered. the contract present when Coker, When at 394. v. 650 S.W.2d Coker trial court’s reverse the We ambiguity, a contract contains motion for the McCallas’ granting summаry judg of a the trial court’s summary judgment and interpreta because the improper ment is further remand for We is a fact the instrument becomes tion of opinion. with this consistent proceedings sue. Id. Justice, GRAY, concurring. TOM Chief to the provisions added several Walt at the drafted Looking Agreement. with the of agree While I provi- with thе summary judgment to reverse the in- sions, ambiguous whether it and all issues proceeding remand the Agreement would be that another tended may so on what be to the trial do provisions. include his additional drafted to basis than as ex- viewed as a different clearly incorpo- does not According- opinion. pressed Court’s Walt indi- рrovisions. the additional rate Further, explain. ly, separately I write agree to the cates that he “will” upon one compelled I feel to comment “an” agreement. enter price and and reli- discussion aspect parties’ is un- provisions additional meaning of the pre- aspects on certain Court’s ance more than one susceptible to certain and concurring opinion. Ski opinion and vious meaning. Dev., McCalla, 167 S.W.3d River Inc. denied). 2005, pet. (Tex.App.-Waco *6 under time restraints parties
The were hearing to scheduled for a they as were I do judgment, the join While I Court’s verdict. The jury on the enter necessarily join the Court’s determina- not thеy the trial court that informed parties by Baker is signed that the document tion not they and did agreement reached an summary judgment for inappropriate an order or the trial court to enter need of law as a matter procedure to determine However, the any parties. relief between ambiguous. After mеaning or that it is dis- the were not the terms of made, all, agreement was at the time this It is unclear the trial court. closed to being given was substantial consideration Agree- that the parties agreed whether the agree- to the by parties. parties both The the agreement between ment was the an verdict that validatеd jury ment had a they they agreed that or that had parties And it property. the option settle the an had reached memo- the trial court would fully appeared not need the trial court dispute and would and rialize that verdict to enter an order. attorney’s their award the McCallas say necessary securing thаt verdict. the for that the with
findWe
Baker and the
“fully appeared” because
an ambi-
provisions contains
validity of
the issue of the
motion McCallas took
of the
guity.
attorney’s fees
award of
option
be-
the
and
summary judgment
improper
was
by their
instrument
from
interpretation of the
cause the
which,
fact
but not the
regаrd
the
details there- with
to the validity of the option.
of,
announced,
parties
further,
was
while the
were And
the
validity
issue of the
of the
present, by
attorneys
parties
the
for both
option could not properly be raised in a
on the
ultimately incorporated
record and
petition for review.
judgment. By doing
into the trial court’s
parties
All
to the present appeal have
so,
McCallas,
parties,
both
Baker and the
referenced and
portions
discussed
of the
any
gave up
right as between them to seek prior opinion
concurring
and
opinion that
to validate or
the option
invalidate
discussed the option. With thesе com-
jury
related
verdict.
ments,
Court,
I question whether this
the
exercise,
validity,
option
or
of the
trial
or the
put any
can
discussed, however,
in this Court’s weight on that discussion in the Court’s
of the
disposition
appeal from the former
previous opinion. Anything we said about
Dev.,
McCalla,
case. See Ski River
Inc. v.
the
I regret
was dictа.
that I have
jury determination of the of the option because even if successful on the step, they
first had to overcome the option. appeal,
McCallas’s On this Court
affirmed the trial court’s which upon
invalidated the Davis lease based step only; jury’s
first determination
that it was unconscionable. Felix Michael KUBOSH Kubosh d/b/a point, any
At that op- discussion of the Bonding, al., Appellants Bail et by tion was completely unneces- sary disposition to a Be- appeal. cause Baker and the McCallas had settled Daniel, HARRIS COUNTY Chris dispute their over the option, and the trial *7 Capacity in his Official as District court had rendered no with re- County, Appellees. Clerk of Harris gard to validity, its this Court should not No. engaged have 01-12-00214-CV. determination of its validity opinion, in the Court’s nor should I Appeals Court of of Texas engaged have in a discussion of possible , (1st Dist.). Houston my waiver in concurring opinion. 2,May
Having determined the Davis lease was invalid, and because Baker and the McCal-
las had against settled their claims each
other, or failure to exercise the completely moot. We there-
fore had no authority any to resolve issue