Case Information
*0 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 09/23/2015 4:16:16 PM KEITH E. HOTTLE Clerk *1 ACCEPTED 04-15-00005-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 9/23/2015 4:16:16 PM KEITH HOTTLE CLERK NO. 04-15-00005-CV
IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT SAN ANTONIO, TEXAS
I N RE E STATE OF J ACK H IROMI I KENAGA , S R ., D ECEASED O N A PPEAL FROM THE P ROBATE C OURT N O . 1, B EXAR C OUNTY , T EXAS H ONORABLE P OLLY J ACKSON S PENCER P RESIDING C AUSE N O . 2011-PC-4330
BRIEF OF APPELLEES JACK H. IKENAGA, JR., NANCY SUMNERS, CHRISTINE IKENAGA, PATRICK GASIOROWSKI, AND ERIC J. GOODMAN F ORD M URRAY , PLLC William H. Ford H OUSTON D UNN , PLLC Samuel V. Houston, III
State Bar No. 07246700 Veronica S. Wolfe State Bar No. 24041135 4040 Broadway, Suite 440
State Bar No. 24066095 San Antonio, Texas 78209
10001 Reunion Place, Suite 640 San Antonio, Texas 78216 (210) 775-0882 – Telephone (210) 826-0075 – Fax
(210) 731-6400 – Telephone sam@hdappeals.com
(210) 731-6401 – Fax
bill.ford@fordmurray.com P RICHARD H AWKINS Y OUNG , LLP
veronica.wolfe@fordmurray.com Shelayne Clemmer
State Bar No. 24044733 Kevin M. Young State Bar No. 22199700 10101 Reunion Place, Suite 600 San Antonio, Texas 78216 (210) 477-7400 – Telephone (210) 477-7450 – Fax sclemmer@phy-law.com kyoung@phy-law.com ATTORNEYS FOR APPELLEES ORAL ARGUMENT CONDITIONALLY REQUESTED *2 IDENTITY OF PARTIES AND COUNSEL The following is a list of all parties to this appeal and the names and addresses of those parties’ counsel:
A PPELLANT /P LAINTIFF A PPELLATE /T RIAL C OUNSEL
Sandra Ikenaga David L. McLane
A TTORNEY AT L AW 9901 IH-10 West, Suite 695 San Antonio, Texas 78230 T RIAL C OUNSEL Jason B. Ostrom Nicole K. Sain
O STROM M ORRIS , PLLC 6363 Woodway, Suite 300 Houston, Texas 77006 Roland C. Colton C OLTON L AW G ROUP 28202 Cabot Road, 3rd Floor Laguna Niguel, California 92677 Philip M. Ross
A TTORNEY AT L AW 1006 Holbrook Road San Antonio, Texas 78218 A PPELLEE /D EFENDANT A PPELLATE C OUNSEL
Jack H. Ikenaga, Jr., Samuel V. Houston, III
H OUSTON D UNN , PLLC 4040 Broadway, Suite 440 San Antonio, Texas 72809 T RIAL /A PPELLATE C OUNSEL William H. Ford
Veronica S. Wolfe F ORD M URRAY , PLLC 10001 Reunion Place, Suite 640 San Antonio, Texas 78216 *3 J. Ken Nunley
T HE N UNLEY F IRM 1580 South Main, Suite 200 Boerne, Texas 78006 Michael J. Cenatiempo C ENATIEMPO & D ITTA , L.L.P.
770 South Post Oak Lane, Suite 500 Houston, Texas 77056 T RIAL /A PPELLATE C OUNSEL A PPELLEES /D EFENDANTS Nancy Sumners, Christine Shelayne Clemmer
Ikenaga, Patrick Gasiorowski, and Kevin M. Young
Eric J. Goodman P RICHARD H AWKINS Y OUNG , LLP
10101 Reunion Place, Suite 600 San Antonio, Texas 78216 A PPELLATE C OUNSEL A PPELLEE /D EFENDANT Roger L. McCleary Nicholas Stepp ACCC Holding Corporation
B EIRNE , M AYNARD & P ARSONS , L.L.P. 1300 Post Oak Boulevard Suite 2500 Houston, Texas 77056 T RIAL /A PPELLATE C OUNSEL Joseph S. Cohen Roger L. McCleary B EIRNE , M AYNARD & P ARSONS , L.L.P. 1300 Post Oak Boulevard Suite 2500 Houston, Texas 77056 A PPELLEE /D EFENDANT T RIAL /A PPELLATE C OUNSEL
Mark Stanton Smith William D. Bailey
H EARD & S MITH , L.L.P.
3737 Broadway, Suite 310 San Antonio, Texas 78209 ii
TABLE OF CONTENTS
Page IDENTITY OF PARTIES AND COUNSEL ..................................................... i
TABLE OF CONTENTS ................................................................................ iii
TABLE OF AUTHORITIES ........................................................................... v
STATEMENT OF THE CASE ...................................................................... vii
STATEMENT REGARDING ORAL ARGUMENT ...................................... viii
ISSUES PRESENTED ................................................................................ viii
STATEMENT REGARDING THE CLERK’S RECORD .............................. viii
STATEMENT OF FACTS ............................................................................... 1
I. Jack Ikenaga, Sr.’s Death Results in Litigation Between His Widow and Members of the Ikenaga Family. ............................. 1 A. Sandra Initiates a Probate Proceeding and Seeks to Be Named as the Estate’s Administrator. .............................. 1 B. Sandra Files Suit Against the Appellees and Others and Alleges Numerous Claims. ................................................ 2 C. Appellees Respond with Counterclaims and Motions for Summary Judgment and Other Related Motions. ............ 5 D. The Trial Court Grants Objections to Some of Sandra’s Summary Judgment Evidence, Grants the Motions for Summary Judgment, and Severs Sandra’s Claims Against AHC. ..................................................................... 8 II. The Parties Reach a Settlement, and the Trial Court Enters a Final Judgment. ........................................................................ 10 III. Sandra Willingly Accepts the Benefits Conferred to Her Under the Final Judgment. .................................................................. 12 SUMMARY OF THE ARGUMENT .............................................................. 14
ARGUMENT .................................................................................................15
I. The Final Judgment Must Be Affirmed. ....................................15 A. Sandra Has Waived the Ability to Challenge the Final iii
Judgment By Accepting the Benefits of That Judgment. .15 B. Sandra Did Not Preserve Her Complaint That the Final Judgment Does Not Comply With the Settlement Agreement. ...................................................................... 16 C. There Is Strict Compliance Between the Final Judgment and the Settlement Agreement. ....................................... 18 1. The settlement agreement specifically referenced Jack Sr.’s will and Christine’s claim against the estate. ..................................................................... 18 2. Sandra was not entitled to any indemnification by virtue of the settlement. .................................... 20 3. Sandra was not entitled to any Lexus by virtue of the settlement. ................................................... 22 II. The Court Does Not Review the Trial Court’s Summary Judgment Orders in Determining Whether the Final Judgment Should Be Reversed. ................................................ 25 A. Sandra Misreads the Trial Court’s Order; It Did Consider Much of Sandra’s Summary Judgment Evidence When It Ruled on Appellees’ No-Evidence Motions for Summary Judgment. ................................... 25 B. Even If the Court Was Required to Review the Merits of the Summary Judgment Orders, Sandra Has Waived Any Issue Regarding the Summary Judgments. 26 III. Conclusion and Prayer. ............................................................. 28 CERTIFICATE OF COMPLIANCE .............................................................. 31
CERTIFICATE OF SERVICE ....................................................................... 31
APPENDIX .................................................................................................... A
iv *6 TABLE OF AUTHORITIES Page CASES
Birmingham-Queen v. Whitmire ,
No. 04-05-00646-CV, 2006 WL 1539587
(Tex. App.—San Antonio June 7, 2006, no pet.) (mem. op.) ................... 26
Chandler v. CSC Applied Techs . , LLC ,
376 S.W.3d 802 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) ....... 27
City of Brownsville v. Alvarado , 897 S.W.2d 750 (Tex. 1995) ................... 27
Clanin v. Clanin ,
918 S.W.2d 673 (Tex. App.—Fort Worth 1996, no writ) .......................... 24
Doncaster v. Hernaiz,
161 S.W.3d 594 (Tex. App.—San Antonio 2005, no pet.) ........................ 26
General Motors Corp. v. Gayle ,
951 S.W.2d 469 (Tex. 1997) (orig. proceeding) ........................................ 26
Leedy v. Leedy ,
399 S.W.3d 335 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ...... 15, 16
McLendon v. McLendon ,
847 S.W.2d 601 (Tex. App.—Dallas 1992, writ denied) ..................... 18, 24
PGP Gas Prods., Inc. v. Fariss , 620 S.W.2d 559 (Tex. 1981) ................. 16, 17
R.H. v. Smith , 339 S.W.3d 756 (Tex. App.—Dallas 2011, no pet.) .............. 24
Rosales v. Rosales ,
No. 04-05-00906-CV, 2006 WL 2955602
(Tex. App.—San Antonio Oct. 18, 2006, pet. denied)
(mem. op. on reh’g) ....................................................................... 18, 19, 24
Salmon v. Salmon , 395 S.W.2d 29 (Tex. 1965) ........................................... 19
Stephens v. Dolcefino ,
126 S.W.3d 120 (Tex. App.—Houston [1st Dist.] 2003),
pet. denied , 181 S.W.3d 741 (Tex. 2005) .................................................. 28
Tex. State Bank v. Amaro , 87 S.W.3d 538 (Tex. 2002) ...............................15
v
Tri-Steel Structures, Inc. v. Baptist Found. of Tex. ,
166 S.W.3d 443 (Tex. App.—Fort Worth 2005, pet. denied) ................... 26
Vickrey v. Am. Youth Camps, Inc. ,
532 S.W.2d 292 (Tex. 1976) (per curiam) ................................................ 18
RULES
T EX . R. A PP . P. 33.1(a) ............................................................................ 16, 28
T EX . R. A PP . P. 38.1(h) ................................................................................. 28
T EX . R. A PP . P. 44.1 ...................................................................................... 27
vi *8 STATEMENT OF THE CASE Nature of the Case:
Following the death of her husband, Jack H. Ikenaga Sr., Sandra Ikenaga initiated probate proceedings and eventually sued her step-children, her son,
the estate’s temporary administrator, and ACCC Holding Corporation. 1 CR
32, 277, 329. Appellees [1] responded with counterclaims. 2 CR 1055, 1064. The
parties were eventually able to settle their competing claims. The terms of the
settlement agreement were dictated into the record, and all parties approved
of those terms. 15 RR 3, 22-25. The settlement required appellees to prepare a
final written agreement that would be signed by all parties. 15 RR 5. When
Sandra refused to sign, appellees moved for entry of a final judgment based
upon the settlement agreement. 17 RR 1.
Trial Court:
The Honorable Polly Jackson Spencer, Judge of the Probate Court No. 1, Bexar County, Texas. [2]
Trial Court Disposition:
The trial court rendered a final judgment based upon the parties’ settlement agreement. 7 CR 4672.
*9 STATEMENT REGARDING ORAL ARGUMENT The record plainly demonstrates that the judgment should be affirmed in all respects. As a result, oral argument is not necessary. Nonetheless, should
the Court grant appellant’s request for oral argument, appellees reserve the
right to participate in the oral argument.
ISSUES PRESENTED Appellees disagree with appellant’s statement of the issues presented.
Instead, appellees believe this case presents the following issues:
1. Sandra Ikenaga has waived any challenge to the final judgment because she has accepted the benefits of the judgment she now seeks to have set aside.
2. Sandra Ikenaga is barred from challenging the final judgment because she did not preserve her complaint that the final judgment does not comply with the settlement agreement.
3. The final judgment must be affirmed because the final judgment strictly complies with the settlement agreement.
STATEMENT REGARDING THE CLERK’S RECORD The clerk’s record does not include complete copies of all items described in the index. Appellees have requested the clerk to prepare a
supplemental/corrected clerk’s record. For the Court’s convenience, omitted
documents are included in the appendix to this brief.
viii
TO THE HONORABLE FOURTH COURT OF APPEALS:
Appellees Jack H. Ikenaga, Jr., Nancy Sumners, Christine Ikenaga, Patrick Gasiorowski, and Eric J. Goodman file this brief asking the Court to
affirm the final judgment.
STATEMENT OF FACTS
I. Jack Ikenaga, Sr.’s Death Results in Litigation Between His
Widow and Members of the Ikenaga Family.
Jack Ikenaga, Sr. married Sandra Ikenaga in 1988. 3 CR 2099. Both had been married before and had children from those marriages. 17 RR 16-20.
Jack Sr. had 4 children, Jack Ikenaga, Jr., Nancy Ikenaga Sumner, Linda
Ikenaga Gasiorowski, and Christine Ikenaga. 6 CR 4230-31. Linda Ikenaga
Gasiorowski predeceased Jack Sr., and she is survived by her son, Patrick
Gasiorowski. 17 RR 23-24. [3] Sandra had one child from her prior marriage,
Eric J. Goodman. See 6 CR 4231; 17 RR 19, 24.
A. Sandra Initiates a Probate Proceeding and Seeks to Be Named as the Estate’s Administrator.
Jack Sr. died on September 30, 2011. 1 CR 31. A month or so later, Sandra initiated a probate proceeding in Bexar County, which was docketed in
Probate Court No. 2. 1 CR 32. At that time, Sandra sought to be named
temporary administrator over Jack Sr.’s estate. 1 CR 32. Sandra’s application
*11 was granted, and she was named temporary administrator by court order on
November 9, 2011. 7 CR 4434.
On the same day, Jack filed an application to probate Jack Sr.’s will, which named Jack Jr. as executor. 1 CR 42, 48. The application was docketed
in Probate Court No. 1 in a separate cause number. 1 CR 48. Jack’s application
was later consolidated into the proceeding initiated by Sandra. 7 CR 4438. [4]
Jack Jr. contested Sandra’s appointment, and he sought the appointment of a new administrator. 1 CR 41. Consistent with Jack Jr.’s
objection, the trial court removed Sandra as temporary administrator. 7 CR
4439. In her place, the trial court named William Bailey, a San Antonio
attorney, as the estate’s temporary administrator. 7 CR 4441. All parties
agreed to Mr. Bailey’s appointment as a “neutral” administrator. 7 CR 4441.
B. Sandra Files Suit Against the Appellees and Others and Alleges Numerous Claims.
Sandra filed suit against her step-children, step-grandchild, her son, and Bailey. 1 CR 277-78. Sandra’s primary complaint was that Jack Sr. had given
away stock and other interests in companies that he acquired while the two
were married. 1 CR 279. In her pleadings, Sandra was most concerned with
Jack Sr.’s conveyances of his stock in ACCC Holding Corporation (AHC). [5] 1 CR
280.
*12 Jack Sr. initially received 265.7 AHC shares in May of 1997 while in Georgia. 1 CR 281; 3 CR 1874, 1878, 1887, 2099. Jack acquired more AHC
shares over time pursuant to his employment agreement with the company. 1
CR 281; 3 CR 1958-59. In January 2000 and September 2001, Jack Sr.
conveyed AHC shares to his children and Sandra’s son. 1 CR 281-82; Appx. B
(Jack Jr. affidavit). Several years later, Jack Sr. and Jack Jr. entered into a
stock purchase agreement wherein Jack Jr. agreed to purchase some of Jack
Sr.’s shares. 1 CR 282. [6] Sandra alleged that the transfers and the stock
purchase agreement were wrongful. 1 CR 280-85.
Sandra also complained about actions taken with respect to other businesses formed by Jack Sr., asserting that Jack Sr. wrongfully transferred
his interests in Isthmus, Inc. to his children. 1 CR 287. Sandra also made
various complaints as to the manner in which profits were distributed from
Isthmus, Inc. and another business, IBI Group Holdings, LLC, and generally
alleged that there had been wrongful transfers of money and property. 1 CR
285-88.
Based upon the foregoing allegations, Sandra alleged a number of claims against appellees. As the administrator of the estate, Bailey stood in the shoes
of the decedent. As such, Bailey was sued in his capacity as temporary
operation and the circumstances surrounding its formation are not relevant to the issues
presented in this appeal. Nonetheless, a history is set out in AHC’s motion for summary
judgment. See 3 CR 1990-92; see also 3 CR 1898.
[6] Under that agreement, Jack Jr. agreed to purchase 102.46 shares in AHC for
$9,083,961.18 in December 2008. See Appx. B (Exhibit 6 to Jack Jr.’s affidavit).
administrator by Sandra for the claims she had against Jack Sr. for the various
stock transfers, because Sandra alleged that Jack Sr., her husband, had
breached fiduciary duties owed to her and committed constructive fraud. 1 CR
291-92, 299. Sandra alleged multiple fraud theories against all appellees,
including fraud on the community, fraud by nondisclosure, and traditional
fraud by misrepresentation. 1 CR 293-97. Sandra also alleged a conspiracy to
defraud claim. 1 CR 297.
Complaining generally about various transfers of property, Sandra alleged claims for unjust enrichment, money had and received, and
conversion. 1 CR 299-301. Sandra also included a claim under the Declaratory
Judgments Act, asking that the transfers of AHC stock be set aside under the
Texas Uniform Fraudulent Transfer Act and under the common law. 1 CR 301-
03. The petition also included requests for a constructive trust and an
accounting. 1 CR 303. The petition concluded with an identity theft claim. 1 CR
304.
In separate petitions, Sandra filed claims against Jack Jr., Amegy Bank, and Bailey. 1 CR 329. The first involved a loan agreement with Amegy Bank,
and Sandra’s request for a declaration that the loan is invalid. 1 CR 389-30.
The other petition involved a declaratory judgment claim wherein Sandra
sought a declaration that a survivorship provision in a joint bank account held
by Jack Jr. and Jack Sr. is invalid. 1 CR 323-24. The petition also repeated
many of the claims that were included in the earlier petition, such as breach of
fiduciary duty, conversion, money had and received, constructive fraud, unjust
enrichment, and conspiracy. 1 CR 325-26. These claims were all focused upon
the funds contained in the joint bank account. 1 CR 325-26.
C. Appellees Respond with Counterclaims and Motions for Summary Judgment and Other Related Motions.
Nancy, Christine, Patrick, and Eric asserted counterclaims against Sandra. 2 CR 1055. The claims included unjust enrichment, violations of the
Texas Theft Liability Act, fraud, conversion, breach of fiduciary duty, and
waste relating to tax refund for the 2011 tax year. 2 CR 1055, 1057. Jack Jr.
also filed similar tort claims, as well as a claim for intentional infliction of
emotional distress, a request for a declaratory judgment regarding Sandra’s
obligation for community property debts, a reimbursement claim, and a
request for an accounting. 2 CR 1068-71. They also sought declarations that
Jack Sr.’s original 265.7 AHC shares and his interest in Auto Computer and
Imaging, Inc. were his separate property. 2 CR 1073; 3 CR 1517, 1598.
Appellees also made claims against the estate. [7] Only two of those claims
are relevant to this appeal. Christine made a claim against the estate for
$200,000.00 arising out of a loan she made to her father for a business
venture that never came to fruition. 6 CR 3989. AHC made a separate claim
against the estate for roughly $489,000.00. 15 RR 14. This figure represented
*15 tax liability associated with the liquidation of Jack Sr.’s deferred compensation
plan at AHC. 15 RR 14.
AHC separately sought summary judgment with respect to all of Sandra’s claims. 3 CR 1985. AHC also filed a motion to apply foreign law in
resolving its defense to Sandra’s claim under the Uniform Commercial Code. 3
CR 1826. As it relates to the 265.7 AHC shares and other property acquired by
Jack Sr. while he was domiciled in Georgia, a common law property state,
AHC asked the court to apply that state’s law in determining whether the
property was his separate property. 3 CR 1826. The other appellees joined in
that motion. 3 CR 2048.
Similar to AHC, Jack Jr., Nancy, Christine, Patrick, and Eric sought a partial summary judgment seeking a declaration that Jack Sr.’s 265.7 AHC
shares and his interest in Auto Computer & Imaging, Inc. were his separate
property because they were acquired by him while he was domiciled in
Georgia. 3 CR 2056-57. Because the AHC shares were Jack Sr.’s separate
property, appellees asserted that any transfer of those shares could not be
wrongful. 3 CR 2056-60. Appellees also moved for summary judgment on
their statute of limitations affirmative defense, asserting that Sandra’s claims
arising out of any disposition of Jack Sr.’s interest in AHC, Isthmus, Inc., or
IBI Group Holdings, LLC were time barred. 3 CR 2057.
Nancy, Christine, Patrick, and Eric also filed a no-evidence motion for summary judgment, arguing that there was no evidence to support one or
more of the elements of Sandra’s claims for fraud, conspiracy, unjust
enrichment, money had and received, the declaratory judgment claim to set
aside stock transfers, and all claims asserted against Patrick. 3 CR 1840-50.
Jack Jr. filed a similar no-evidence motion for summary judgment. 3 CR 1976.
Sandra responded to the appellees’ motions, and a single hearing was held on September 17, 2014. The trial court first took up the appellees’
objections to Sandra’s summary judgment responses and evidence. 13 RR 3-
10. Appellees objected to the timeliness of Sandra’s responses. 13 RR 3-4. In
response to the partial motion for summary judgment ground on limitations,
appellees objected to Sandra’s reliance upon the discovery rule because it had
not been previously pleaded. 13 RR 3. Citing insufficient pleadings, appellees
also objected to Sandra’s reliance upon a new theory, namely that Jack Sr. had
not complied with provisions in the AHC Shareholder Agreement that restrict
the transfer of AHC stock. 13 RR 3. As for the no-evidence motions for
summary judgment, there was an objection to Sandra’s failure to authenticate
discovery responses attached as summary judgment evidence. 13 RR 4.
Finally, AHC made an objection as to all matters and evidence in Sandra’s
response to its motion for summary judgment that were not supported by her
pleadings. 13 RR 3.
D. The Trial Court Grants Objections to Some of Sandra’s Summary Judgment Evidence, Grants the Motions for Summary Judgment, and Severs Sandra’s Claims Against AHC.
The trial court denied in part and sustained in part the appellees’ objections to Sandra’s summary judgment response and evidence. The trial
court overruled the objections to the timeliness of Sandra’s responses. 13 RR
9-10; 7 CR 4623. But the trial court sustained the objections based upon
Sandra’s failure to plead the discovery rule and the contractual provisions
restricting transfers of AHC stock. 13 RR 10. The trial court also sustained the
objections to unauthenticated discovery responses that were attached to
Sandra’s summary judgment response. 13 RR 91. Finally, the trial court
sustained AHC’s objections to matters and evidence that were not supported
by Sandra’s pleadings. 7 CR 4624.
The trial court granted all other relief requested by appellees. The resulting orders disposed of all of Sandra’s claims against AHC and most of the
claims asserted against the other appellees. With respect to the motions
addressing Jack Sr.’s separate property interests in AHC stock and Auto
Computer and Imaging, Inc., the trial court granted the motion to apply
foreign law. 13 RR 27; 7 CR 4606.
The trial court also granted the appellee’s partial motion for summary judgment. 7 CR 4617. Based upon the order, the trial court concluded that
Jack Sr.’s 265.7 AHC shares as well as his interest in Auto Computer and
Imaging, Inc. [8] were his separate property. 7 CR 4617. Because the AHC shares
were Jack Sr.’s separate property, any claim arising from Jack Sr.’s disposition
of those shares failed as a matter of law. 3 CR 4617. Finally, the trial court
ruled that limitations barred Sandra’s claims for fraud on the community,
actual fraud, fraud by nondisclosure, conspiracy to defraud, unjust
enrichment, and money had and received. 7 CR 4617-18.
Appellees’ no-evidence motions for summary judgment were granted in their entirety, disposing of Sandra’s claims for fraud on the community, actual
fraud, fraud by nondisclosure, conspiracy, unjust enrichment, and money had
and received. 7 CR 4611-13. The order also disposed of Sandra’s declaratory
judgment claim to set aside the AHC stock transfers, both under the Texas
Uniform Fraudulent Transfer Act and the common law. 7 CR 4613.
The resulting summary judgment order on appellees’ no evidence motions for summary judgment incorporated the trial court’s evidentiary
rulings made during the hearing. Although the trial court had granted
objections to Sandra’s evidence supporting her response to the no-evidence
motions for summary judgment, a disagreement arose over the breadth of the
trial court’s ruling and how it would be reflected in the order. 13 RR 91-92, 94-
95.
*19 The principle issue concerned Sandra’s reliance upon evidence that appellees had attached to their partial motion for summary judgment. See 4
CR 2579; 13 RR 84, 97-98. Sandra had cited to appellees’ evidence in opposing
the no-evidence motions for summary judgment. 4 CR 2579. Sandra’s counsel
wanted it made clear that the trial court was considering the evidence
referenced by Sandra in determining whether to grant summary judgment. 13
RR 97-99. Consistent with that request, the order recites that the trial court
considered the motions for summary judgment, argument of counsel,
“deposition evidence presented and attached to the response, as well as any
exhibits attached to Defendants’ Motions for Summary Judgment.” 7 CR
4611. [9]
By granting AHC’s motion for summary judgment, the trial court disposed of all of Sandra’s claims against AHC. 7 CR 4623-24. To make the
summary judgment order final, Sandra’s claims against the company were
severed into a separate cause, In re: Estate of Jack Hiromi Ikenaga, Sr.,
Deceased; Sandra Ikenaga vs. ACCC Holding Corporation , No. 2011-PC-
4330-B, on October 6, 2014. 7 CR 4627.
II. The Parties Reach a Settlement, and the Trial Court Enters a
Final Judgment.
In October 2014, the parties entered into a settlement agreement that would end the litigation. 15 RR 3. The settlement agreement was dictated into
*20 the record, and all of the parties approved of its terms. 15 RR 3-8, 23-25. [10] As
it relates to the issues raised by Sandra in this appeal, the parties agreed that
(1) “any alleged will of Jack Ikenaga, Sr. is null and void and of no effect”; (2)
Sandra “will withdraw objection and opposition to AHC’s claim against the
estate for approximately $489,000.82”; (3) Sandra “will withdraw objection
and opposition to Christine Ikenaga’s claim against the estate for
approximately $200,000.00”; (4) Sandra would return a Lexus car owned by
AHC back to it; and (5) Sandra would indemnify AHC and the estate. 15 RR 5-
6, 8, 15, 21, 22.
The settlement also required appellees to prepare a written agreement that would be signed by all parties. 15 RR 5. Formal documents were prepared,
but Sandra refused to sign them. 16 RR 1; 17 RR 1. Given the impasse,
appellees sought entry of a final judgment based upon the settlement
agreement. 16 RR 1-2.
The trial court held a hearing on the appellees’ motion to enter judgment. At that hearing, Sandra’s counsel confirmed that the proposed
judgment correctly tracked the settlement agreement read into the record two
months earlier. 17 RR 1, 3, 5 (“Otherwise we do concur that the judgment
that’s being presented by the defendants does track the October 7th court-
recited agreement.”). Further, to the extent that there were any variations or
*21 changes made by appellees after the judgment was first presented to Sandra’s
counsel, Sandra’s counsel agreed to those changes. 17 RR 8-9 (“We’ve
reviewed the changes. They are acceptable.”).
Although the judgment correctly reflected the settlement terms, Sandra sought additional relief during the hearing on the motion to enter judgment.
The settlement agreement read into the record required Sandra to return a
Lexus that was owned by AHC. 15 RR 15. But it was later revealed that Sandra
was in possession of two Lexus cars owned by AHC, a 2007 model and a 2010
model. See 17 RR 3-4. The final judgment required Sandra to return both cars.
7 CR 4679. Sandra asserted that she had paid for the 2010 Lexus, and she
asked that she be permitted to keep it. 17 RR 3-4. The trial court signed the
final judgment presented by appellees without addressing Sandra’s request. 17
RR 8-9.
III. Sandra Willingly Accepts the Benefits Conferred to Her Under
the Final Judgment.
In accordance with the settlement agreement, the final judgment set forth the funds and property that were to be distributed to Sandra. 7 CR 4683-
84. She was to receive a series of payments from the estate that would
ultimately total $5,000,000.00. 7 CR 4683. The first payment was to be paid
within 7 days after the judgment was signed. 7 CR 4683. That $1,000,000.00
payment was to be paid by two cashier’s checks, one made payable to Sandra
for $385,189.95 and the other to her lawyer’s trust account for $614,810.05. 7
CR 4683. Sandra was then to receive $2,000,000.00 by 5 p.m. on or before
December 31, 2014. 7 CR 4683.
Sandra willingly accepted the first payment during the hearing on the motion to enter the final judgment. 15 RR 12-13. She was presented with and
accepted two cashier’s checks at that time. 15 RR 13.
The final judgment also required Sandra to return a number of items, including Jack Sr.’s ashes. 7 CR 4686. During the latter half of the hearing on
the motion to enter judgment, it was revealed that Sandra had previously
disposed of the ashes in the Gulf of Mexico at Port Arthur, even though she did
not mention this fact during the settlement negotiations. 15 RR 28, 41, 42.
Obviously displeased with Sandra’s apparent breach of the settlement agreement, appellees sought to stay the December 2014 $2,000,000.00
payment so that they could conduct discovery regarding Sandra’s breach of the
agreement and to determine whether her lawyers were aware of the breach. 19
RR 3; 7 CR 4344. Relatedly, appellees filed motions to disqualify Sandra’s
lawyers. 7 CR 4355. The trial court suspended the payment obligation pending
a subsequent hearing on the motion to stay. 20 RR 5, 7; 7 CR 4689.
Sandra perfected an appeal on January 2, 2015. 7 CR 4414.
During a January 14, 2015 hearing, appellees formally abandoned the
request for a stay with respect to the $2,000,000.00 payment. 20 RR 5.
During that hearing, Sandra’s counsel asked for a recess so that he could
discuss the potential ramifications of accepting the payment on her appeal.
20 RR 7. After that recess, counsel confirmed that Sandra wanted to accept
the payment. 20 RR 8. Sandra then continued to prosecute this appeal.
SUMMARY OF THE ARGUMENT The final judgment must be affirmed for multiple, independent reasons.
Sandra is barred from challenging the final judgment because she has
knowingly accepted benefits conferred by the judgment.
But, even if she had not accepted the benefits under the judgment, she failed to preserve any complaint regarding the final judgment’s compliance
with the settlement agreement. She did not raise any objection with the trial
court regarding a material variance between the settlement agreement and the
final judgment. She did the opposite; Sandra confirmed that the final
judgment was in strict compliance with the settlement agreement. Finally,
even if the issue had been preserved, the final judgment should still be
affirmed because there is no material variance between the judgment and the
settlement agreement.
The Court should reject Sandra’s complaints regarding the trial court’s interlocutory summary judgment orders. The final judgment is not based upon
summary judgment rulings. Further, even if the judgment was based upon
summary judgment rulings, including evidentiary objections, Sandra has not
shown that the trial court abused its discretion. Sandra has also not shown
harm flowing from the exclusion of certain summary judgment evidence.
Sandra relies solely upon a series of conclusory statements in arguing that the
trial court erred in sustaining objections and granting summary judgment.
Ultimately, Sandra’s misguided argument provides no basis for the Court to
reverse.
ARGUMENT
I. The Final Judgment Must Be Affirmed.
A. Sandra Has Waived the Ability to Challenge the Final Judgment By Accepting the Benefits of That Judgment.
It is well settled that an appellant cannot appeal a final judgment after having accepted the benefits conferred by that judgment. Tex. State Bank v.
Amaro , 87 S.W.3d 538, 544 (Tex. 2002); Leedy v. Leedy , 399 S.W.3d 335, 339
(Tex. App.—Houston [14th Dist.] 2013, no pet.). Sandra has already accepted
the benefits of the final judgment that she now seeks to set aside. Accordingly,
the Court must affirm.
Sandra accepted a $1,000,000.00 payment on December 5, 2014, during the hearing on appellees’ motion to enter judgment. 17 RR 13. She then
accepted a $2,000,000.00 payment in January 2015, knowing full well that a
payment could adversely affect this appeal. 20 RR 8. In that regard, Sandra’s
counsel made the following representation to the trial court:
Your Honor, on behalf of my client, I discussed with her the legal ramifications of having $2 million and accepting that as part of this judgment. And given the totality of the facts and circumstances, we discussed that, and my client is inclined to have that go ahead and be transferred to her directly. We’ve provided the routing number and account number we would like it to be transferred to. We would like to have that transferred as soon as possible, within two to three days at most.
20 RR 8.
In addition to accepting $3,000,000.00, she also accepted other property that was awarded to her in the settlement agreement. See 19 RR 33-
34. This property includes real property, automobiles, construction
equipment, boats, furniture, and other personal property. 7 CR 4684. Indeed,
Sandra acknowledged that the parties had already begun performance under
the agreement. 7 CR 4351. Thus, Sandra is estopped from challenging the final
judgment. See Leedy , 399 S.W.3d at 339. [11]
B. Sandra Did Not Preserve Her Complaint That the Final Judgment Does Not Comply With the Settlement Agreement.
An appellant cannot complain on appeal if she did not first make her objection known to the trial court and obtain a ruling on that objection. T EX .
R. A PP . P. 33.1(a). “The complaint must identify the objectionable matter or
event sufficiently for the opposite party to cure any deficiency and for the trial
judge to know the nature of the alleged error.” PGP Gas Prods., Inc. v. Fariss ,
620 S.W.2d 559, 560 (Tex. 1981). Any unpreserved complaint is waived. See
id .
Sandra’s principal complaint on appeal is that the final judgment does not strictly follow the settlement agreement that was dictated into the record.
In her opening brief, Sandra identifies four areas in which she believes there is
*26 a variance between the settlement agreement and the final judgment: (1) the
enforceability of Jack Sr.’s will, (2) Sandra’s objections to AHC’s and
Christine’s claims against the estate, (3) Sandra’s right to seek indemnity from
appellees, and (4) a Lexus car.
With respect to the first three issues, Sandra did not raise any objections with respect to them in the trial court. Instead, she confirmed—through her
lawyers—that there was no variance between the final judgment and
settlement agreement. Sandra’s counsel confirmed that the proposed final
judgment correctly reflected the settlement agreement’s terms. 17 RR 1; see
also id. at 2 (“It does track the transcript and the agreement of the parties.
And so what’s being presented to you is the only document that I think that
accurately actually tracks the transcript.”); id .at 3 (“Yes. I will confirm, as Mr.
Ostrom has also, that the judgment that is being submitted by defendants does
appear to track the court-recited agreement in every respect . . . .”). Because
she did not raise any objection with the trial court, Sandra has waived the
ability to challenge those portions of the final judgment. See PGP Gas Prods.,
Inc. , 620 S.W.2d at 560. [12]
*27 C. There Is Strict Compliance Between the Final Judgment and the Settlement Agreement.
Where a final judgment is based upon a settlement agreement, the judgment must strictly comply with the agreement. Vickrey v. Am. Youth
Camps, Inc. , 532 S.W.2d 292, 292 (Tex. 1976) (per curiam). Strict compliance
requires that the resulting judgment not conflict with the settlement
agreement’s terms. Rosales v. Rosales , No. 04-05-00906-CV, 2006 WL
2955602, at *2, 3 (Tex. App.—San Antonio Oct. 18, 2006, pet. denied) (mem.
op. on reh’g). Clerical errors and textual deviations that do not affect the
substance of the agreement do not require reversal. Id .; see also McLendon v.
McLendon , 847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ denied).
Further, a trial court is not barred from disposing of issues in a final judgment
that were not resolved by the parties’ settlement agreement. See Rosales , 2006
WL 2955602, at *4.
1. The settlement agreement specifically referenced Jack Sr.’s will and Christine’s claim against the estate.
Not only did Sandra not raise any complaint regarding the first two issues at the time the final judgment was signed, but these issues were
specifically covered in the settlement agreement. The parties stipulated and
agreed “that any alleged will of Jack Ikenaga, Sr. is null and void and of no
effect.” 15 RR 5. Further, Sandra agreed to “withdraw objection and opposition
to Christine Ikenaga’s claim against the estate for approximately $200,000.”
15 RR 16.
There is no substantive variance between the settlement agreement and final judgment. A mere deviation in words is insufficient for reversal if there is
no significant alteration in the original settlement terms or where the parties’
intent is not undermined. Rosales , 2006 WL 2955602, at **2, 3. In the
settlement agreement, the parties contemplated that the final document “will
incorporate other terms and conditions.” 15 RR 5. Thus, the parties
acknowledged that the final agreement would not be a word-for-word copy of
the settlement agreement.
Other than point to small word changes, Sandra has not shown a substantive deviation with respect to provisions in the final judgment
concerning Jack Sr.’s will. The parties intended to distribute the estate
according to the settlement agreement and not under the terms of Jack Sr.’s
will. See 15 RR 5. While the corresponding provision in the final judgment is a
whole paragraph, there is no substantive conflict between it and the settlement
agreement. The final judgment only provides that the parties are barred from
making a claim against the estate under the will or trust, and that any right to
estate property derives solely through the final judgment. 7 CR 4677. This is
the result that the parties contemplated in the settlement agreement. See 15
RR 5; see also Salmon v. Salmon , 395 S.W.2d 29, 32 (Tex. 1965) (“Under our
law a family settlement in which all of the heirs and beneficiaries agree that a
purported will shall not be probated is valid and enforceable.”).
There is likewise no substantive deviation with respect to Sandra withdrawing her opposition to Christine’s claim against the estate. The final
judgment provides that Sandra’s “objection to Christine’s claim against the
Estate in the amount of $200,000.00 (“Christine’s Claim”) [is] hereby
overruled to the extent not already withdrawn by Sandra.” 7 CR 4679
(emphasis added). The settlement agreement provided that Sandra would
“withdraw objection and opposition to Christine Ikenaga’s claim against the
estate . . . within 14 days.” 15 RR 6.
Whether Sandra’s opposition to Christine’s claim is overruled to the extent not yet withdrawn or simply withdrawn, the result is the same:
Christine’s claim can be paid. The payment of Christine’s claim does not affect
Sandra’s substantive rights under the settlement agreement. Separate and
apart from Christine’s claim, the settlement agreement identifies the money
and property that Sandra is to receive from the estate and it is not contingent
upon the amount paid to Christine. At the end of the day, and irrespective of
the particular procedural means to be used, Sandra agreed to not oppose
Christine’s claim. Thus, the final judgment complies with the settlement
agreement and should be affirmed.
2. Sandra was not entitled to any indemnification by virtue of the settlement.
Sandra complains that the final judgment does not grant her any right of indemnification against the appellees. But Sandra was not entitled to
indemnity from any of the appellees. There is no mention of indemnification
in the handwritten settlement agreement. 21 RR Exhibit D-2. Further, based
upon the terms dictated into the record, only AHC and the estate were entitled
to indemnification. 15 RR 15 (providing that “there will be a full release and
indemnity agreement by Sandra and the estate as to all claims”); see also id .
22.
The sole basis for Sandra’s assertion that she was entitled to indemnity appears to be a misstatement by the trial court. The settlement agreement
included a liquidated damages clause. 15 RR 5. But it was clarified on the
record that AHC and Bailey would not be subject to that clause and AHC
would obtain a full release and indemnity. 15 RR 15, 20, 21. Nonetheless, the
trial court appears to have conflated Sandra’s indemnity obligations with the
liquidated damages clause on the record.
[Counsel for Bailey]: Judge, similarly, I think it needs to be clarified that there would be no liquidated damages provisions applying to the administrator.
THE COURT: So then the indemnity agreement that was referenced is between the siblings, Mr. Ikenaga, Jr., and Ms. Ikenaga. Correct?
[Counsel for Sandra]: Correct.
[Counsel for AHC]: Well, and as to any claims by Ms. Ikenaga or the estate or by, through, or under them, against AHC also.
THE COURT: Okay.
[Counsel for Sandra]: I’m not sure what that means.
. . . .
[Counsel for Jack Jr.]: I think what he’s speaking to is the damages clause. That really flows between the siblings and Ms. Ikenaga.
[Counsel of Sandra]: Ms. Ikenaga.
[Counsel for Jack Jr.]: Back and forth between them. That doesn't involve any of the other parties on the liquidated damages.
15 RR 21.
Regardless of the trial court’s comments, the record does not support Sandra’s argument that she was ever entitled to indemnity. No provision was
included in the final judgment, and Sandra concurred that it correctly tracked
the settlement agreement. 17 RR 1, 2, 3. Thus, the final judgment should be
affirmed.
3. Sandra was not entitled to any Lexus by virtue of the settlement.
The only question actually raised in the trial court with respect to the final judgment relates to the 2010 Lexus car. The settlement agreement
required Sandra to return a 2007 Lexus owned by AHC. 15 RR 13, 15. The final
judgment requires Sandra to return the 2007 Lexus as well as a 2010 Lexus
that was also owned by AHC. 7 CR 4679.
After conceding that the final judgment presented by appellees complied with the terms of the settlement agreement, Sandra requested that she be
permitted to keep the 2010 Lexus that was also in her possession. 17 RR 3-4.
The trial court implicitly denied that request when it signed the final
judgment.
Sandra’s request for a Lexus car does not create a conflict between the settlement agreement and the final judgment. Sandra was not entitled to any
Lexus car by virtue of the settlement. Under the terms of the settlement
agreement, Sandra was awarded several vehicles. 15 RR 7-8. But she was not
awarded a 2007 Lexus or a 2010 Lexus. See 15 RR 7-8. Sandra gave up all right
and title in the estate as part of the settlement, and she had no active claims
against AHC by the time the judgment was entered. 15 RR 5, 14. [13]
If anything, Sandra’s post-settlement request for the car created a conflict. She was seeking to open up the settlement agreement to insert new
terms by asking for additional property. See 15 RR 4. Sandra’s counsel even
acknowledged that the request was actually an attempt “to renegotiate
additional relief.” 19 RR 22. Thus, the final judgment must be affirmed.
II. The Court Does Not Review the Trial Court’s Summary
Judgment Orders in Determining Whether the Final Judgment Should Be Reversed.
Sandra willfully agreed to settle her claims against appellees, promising to dismiss her claims with prejudice. 15 RR 4. A final judgment was rendered
*33 on the settlement agreement and not on any summary judgment order. See 7
CR 4672-73. Nonetheless, Sandra believes that the trial court should review
the propriety of the summary judgment orders in determining whether to
reverse the final judgment. The summary judgment orders and any evidentiary
objections are irrelevant to this appeal.
The Court has a narrow inquiry in this case: does the final judgment strictly comply with the settlement agreement? If yes, the Court must affirm.
See R.H. v. Smith , 339 S.W.3d 756, 765 (Tex. App.—Dallas 2011, no pet.). If
no, the Court may reform the judgment if the variance is a clerical error or
some other variance that does not affect the substance of the settlement
agreement. See Rosales , 2006 WL 2955602, at *2; McLendon , 847 S.W.2d at
610. The Court may reverse only if there is a material variance between the
final judgment and the settlement agreement. But a reversal in that instance
does not mean that the settlement agreement is set aside. Rather, the case will
“be remanded for entry of a judgment in accordance with the parties’
settlement agreement.” Rosales , 2006 WL 2955602, at *5; see also Clanin v.
Clanin , 918 S.W.2d 673, 678 (Tex. App.—Fort Worth 1996, no writ) (“We
remand the cause to the trial court for the limited purpose of reforming the
decree and entering judgment in accordance with the agreement reached by
the parties . . . .”).
A. Sandra Misreads the Trial Court’s Order; It Did Consider Much of Sandra’s Summary Judgment Evidence When It Ruled on Appellees’ No-Evidence Motions for Summary Judgment.
Sandra erroneously argues that the trial court excluded her summary judgment evidence in response to appellees’ objections. [14] As it relates to her
response to the no-evidence motions for summary judgment, [15] Sandra’s
primary complaint appears to be that the trial court did not consider her
references to evidence filed in support of appellees’ motion for partial
summary judgment. [16]
Sandra asserts in her brief that the trial court did not consider deposition excerpts attached to the appellees’ motion for partial summary
judgment because they were not authenticated. Br. of Appellant 27 (“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.”). She
also asserts that the trial court should have considered affidavits and exhibits
to those affidavits that were filed in support of appellees’ partial motion for
summary judgment. Br. of Appellant 28.
*35 Sandra has misstated the trial court’s order. In ruling upon the appellees’ no evidence motions for summary judgment, the trial court made it
clear that it was considering depositions attached to Sandra’s response “as well
as any exhibits attached to Defendants’ Motions for Summary Judgment.” 7
CR 4611. Even after considering that evidence, the trial court granted the
appellees’ motions. 7 CR 4611. Thus, Sandra’s third point of error must be
overruled because the trial court did not actually make the ruling that Sandra
discusses in her principal brief.
B. Even If the Court Was Required to Review the Merits of the Summary Judgment Orders, Sandra Has Waived Any Issue Regarding the Summary Judgments.
“‘When a summary judgment movant objects to summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to
request relief under rule 166a(f), including a continuance or the opportunity to
cure any formal defects in the nonmovant’s summary judgment evidence.’”
Birmingham-Queen v. Whitmire , No. 04-05-00646-CV, 2006 WL 1539587, at
*2 (Tex. App.—San Antonio June 7, 2006, no pet.) (mem. op.). The trial
court’s denial of such a request is reviewed for an abuse of discretion. See Tri-
Steel Structures, Inc. v. Baptist Found. of Tex. , 166 S.W.3d 443, 447 (Tex.
App.—Fort Worth 2005, pet. denied); see also General Motors Corp. v. Gayle ,
951 S.W.2d 469, 476 (Tex. 1997) (orig. proceeding). An order sustaining an
objection to summary judgment evidence is also subject to an abuse of
discretion standard of review. Doncaster v. Hernaiz, 161 S.W.3d 594, 601
(Tex. App.—San Antonio 2005, no pet.); see also City of Brownsville v.
Alvarado , 897 S.W.2d 750, 753 (Tex. 1995).
As has been discussed above, the trial court did not exclude the evidence that Sandra believes was excluded. But even if the trial court had excluded
such evidence, Sandra has not demonstrated an abuse of discretion by the trial
court. Sandra presents no argument regarding the relevant standard of review
or authority demonstrating an abuse of discretion, either by denying a motion
for continuance or in excluding summary judgment evidence. Indeed, Sandra
did not seek a continuance of the hearing on the summary judgment motions.
Thus, any appellate issue challenging the exclusion of summary judgment
evidence must be overruled.
But even if Sandra had cleared the first hurdle and established an abuse of discretion, the Court would still have to affirm because her briefing is
inadequate. Although a trial court may have abused its discretion in excluding
summary judgment evidence, the appellant must still “demonstrate that the
exclusion probably resulted in an improper judgment.” Chandler v. CSC
Applied Techs., LLC , 376 S.W.3d 802, 824 (Tex. App.—Houston [1st Dist.]
2012, pet. denied); see also T EX . R. A PP . P. 44.1. In doing so, the appellant
must “demonstrate that the judgment turns on the particular evidence
excluded.” Chandler , 376 S.W.3d at 824.
Sandra’s briefing does not contain any analysis regarding the elements challenged by appellees. There is likewise no discussion of the particular
evidence that would have raised a fact issue on her claims. She relies solely
upon conclusory statements that she raised a fact question on her claims.
These conclusory statements are supported by little to no citations to the
record. See Br. of Appellant 24-26. Accordingly, Sandra is not entitled to any
relief from the Court. See Stephens v. Dolcefino , 126 S.W.3d 120, 128 (Tex.
App.—Houston [1st Dist.] 2003) (finding briefing waiver where appellant fails
to discuss any of the individual elements challenged by appellee in a motion
for summary judgment), pet. denied , 181 S.W.3d 741 (Tex. 2005); see also T EX .
R. A PP . P. 38.1(h). [17]
III. Conclusion and Prayer.
The final judgment must be affirmed. The Court should conclude that Sandra waived any ability to challenge the final judgment by accepting the
benefits conferred by the judgment. The Court may also find that Sandra
waived any complaint regarding the final judgment because she conceded on
the record that the final judgment complied with the settlement agreement. In
sum, Sandra has not brought forth any legal theory or authority that would
require the judgment to be reversed.
*38 WHEREFORE, PREMISES CONSIDERED, Appellees Jack H. Ikenaga,
Jr., Nancy Sumners, Christine Ikenaga, Patrick Gasiorowski, and Eric J.
Goodman respectfully pray that the Court affirm the final judgment and grant
other and further relief to which they may be justly and equitably entitled.
Respectfully submitted, /s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III State Bar No. 24041135 H OUSTON D UNN , PLLC 4040 Broadway, Suite 440 San Antonio, Texas 78209 Telephone: (210) 775-0882 Fax: (210) 826-0075 sam@hdappeals.com William H. Ford State Bar No. 07246700 Veronica S. Wolfe State Bar No. 24066095 F ORD M URRAY , PLLC 10001 Reunion Place, Suite 640 San Antonio, Texas 78216 Telephone: (210) 731-6400 Fax: (210) 731-6401 bill.ford@fordmurray.com veronica.wolfe@fordmurray.com Shelayne Clemmer State Bar No. 24044733 Kevin M. Young
State Bar No. 22199700 P RICHARD H AWKINS Y OUNG , LLP 10101 Reunion Place, Suite 600 San Antonio, Texas 78216 Telephone: (210) 477-7400 Fax: (210) 477-7450 – Fax sclemmer@phy-law.com kyoung@phy-law.com ATTORNEYS FOR APPELLEES JACK H. IKENAGA, JR., NANCY SUMNERS, CHRISTINE IKENAGA, PATRICK GASIOROWSKI, AND ERIC J. GOODMAN *40 CERTIFICATE OF COMPLIANCE In accordance with Texas Rule of Appellate Procedure 9.4, the undersigned certifies that the foregoing computer-generated brief contains 7,110
words.
/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served in accordance with the Texas Rules of Appellate Procedure on
the 23rd day of September, 2015, to the following:
David L. McLane Via email/eservice
A TTORNEY AT L AW
9901 IH-10 West, Suite 695
San Antonio, Texas 78230
dlmclanelaw@yahoo.com
Roger L. McCleary Via email/eservice
Nicholas Stepp
B EIRNE , M AYNARD & P ARSONS , L.L.P.
1300 Post Oak Boulevard Suite 2500
Houston, Texas 77056
rmccleary@bmpllp.com
Mark Stanton Smith Via email/eservice
H EARD & S MITH , L.L.P.
3737 Broadway, Suite 310
San Antonio, Texas 78209
atysmith@heardandsmith.com
/s/ Samuel V. Houston, III SAMUEL V. HOUSTON, III
APPENDIX
A. Final Judgment
B. Affidavit of Jack Ikenaga, Jr. filed in support of appellees’ partial motion
for summary judgment, which was omitted from the clerk’s record. *42 APPENDIX A *43 . '
NO. 2011-PC-4330
IN RE ESTATE OF § IN THE PROBATE COURT
§
JACK HIROMI IKENAGA, SR., § NUMBER ONE
§
DECEASED § BEXAR COUNTY, TEXAS
NO. 2011-PC-4330-A
IN RE: ESTATE OF § IN THE PROBATE COURT
JACK HIROMI IKENAGA, SR., §
DECEASED; §
SANDRAIKENAGA § §
v. NUMBER ONE §
§
JACK IKENAGA, JR., WILLIAM D. §
BAILEY, AS TEMPORARY §
ADMINISTRATOR OF THE ESTATE OF §
JACK HIROMI IKENAGA, SR., §
DECEASED, NANCY SUMNERS, §
CHRISTINE IKENAGA, PATRICK §
GASIOROWSKI, ERIC J. GOODMAN, §
AND ACCC HOLDING CORPORATION BEXAR COUNTY, TEXAS §
NO. 2011-PC-4330-B
IN RE: ESTATE OF § IN THE PROBATE COURT
JACK HIROMI IFF.NAGA, SR., §
DECEASED; §
SANDRA IKENAGA § §
v. § NUMBER ONE
§
ACCC HOLDING CORPORATION § BEXAR COUNTY, TEXAS
FINAL JUDGMENT On October 7, 2014, this Court heard the above-styled and numbered causes. All parties appeared by and through their attorneys of record and announced that all matters
and controversies between them had been compromised and settled by agreement, and the
terms of such agreement were read into the Court's record and approved by all parties
("Settlement Agreement"). The Court found that the Settlement Agreement was just and
fair, and rendered judgment consistent with the parties' Settlement Agreement in open
court and on the record.
On December 5, 2014, this Court heard the parties' respective motions to enter a written final judgment in the above-styled and numbered causes, as well as various
objections and arguments. The Court finds that, notwithstanding any objections,
motions and/or arguments by the parties, this Final Judgment strictly complies with
Settlement Agreement and this Court's oral rendering of judgment on October 7, 2014.
Therefore, the Court hereby incorporates its rulings on such objections into this Final
Judgment, and IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS
FOLLOWS:
A. PARTIES AND DEFINITIONS
The Court hereby adopts the following definitions for purposes of this Final Judgment: "Decedent" as used herein shall mean Jack H. Ikenaga, Sr., who died on
1. September 30, 2011, and whose estate is made the subject of the above-entitled and
numbered causes. Sandra Ikenaga ("Sandra") is the Decedent's widow and a Plaintiff in one
2. or more of the above-entitled and numbered causes.
3· · Jack H. Ikenaga, Jr. ("Jack") is a child of the Decedent and a Defendant in one or more of the above-entitled and numbered causes.
4· Nancy Sumners ("N arrey") is a child of the Decedent and a Defendant in one or more of the above-entitled and numbered causes.
s. Christine Ikenaga ("Christine") is a child of the Decedent and a Defendant in one or more of the above-entitled and numbered causes.
539083.1
6. Patrick Gasiorowski ("Patrick") is a grandchild of the Decedent and a Defendant in one or more of the above-entitled and numbered causes.
7· Eric Goodman ("Eric") is Sandra's son and a Defendant in one or more of the above-entitled and numbered causes.
8. ACCC Holding Corporation ("AHC") is a Delaware corporation and a Defendant in one or more of the above-entitled and numbered causes.
9· "William D. Bailey" ("Bailey" or "Temporary Administrator"), 1s the Temporary Administrator of the Decedent's estate as defined by the Texas Estates Code
Sec. 22.012 ("Estate") and is a Defendant in his capacity as Temporary Administrator of
the Estate in one or more of the above-entitled and numbered causes.
10. Amegy Bank, N.A. ("Amegy Bank") is a Defendant in one or more of the
above-entitled and numbered causes. "Sandra" or "Plaintiff' as used herein shall include Sandra, and her
11. "Derivative Claimants" and "Representatives" as defined below. "Ikenaga Defendants" shall mean Jack, Nancy, Christine, Patrick, and
12. Eric, collectively and shall include any and all of their "Derivative Claimants" and
"Representatives" as defined below. "Defendants" as used herein shall mean all the individuals and entities
13. identified hereinabove as a Defendant and who are parties to this Agreement, and shall
, include any and all of their "Derivative Claimants" and "Representatives" as defined
below. Although the Lawsuit is only filed against Bailey in his capacity as Temporary
Admin.istrator, for purposes of this Final Judgment, the term "Defendants" refers to
Bailey in his capacity as Temporary Administrator and in his individual capacity.
539083.1
14. "Derivative Claimants" shall mean any person or entity acting by, through, or under an individual or entity (including by reason of marriage or family relationships
of any such person).
15. "Entities" shall mean those persons, associations, and/ or entities (whether now in existence or not), and which are or were formerly owned or controlled, in whole
or in part, directly or indirectly, by an individual or entity, or any Derivative Claimant,
and their respective entities, past and present employers, employees, directors,
shareholders, officers, assigns, predecessors, successors, attorneys, representatives or
agent of such parties and/ or entities.
16. "Lawsuit" shall mean all causes of action asserted or which could be asserted by any party in the above-entitled and numbered causes. "Representatives" of a party, parties, or entity shall mean and include all of
17. that party's or parties' or entity's past and present principals, agents, servants,
employees, attorneys, accountants, appraisers, brokers, service providers, consultants,
experts, partners (both general and/or limited), equity participants, officers, directors,
shareholders, parent companies, subsidiaries, affiliates, predecessors, successors,
assigns, estates, beneficiaries, executors, administrators, guardians, conservators, heirs,
devisees, legatees, trustees, and other personal representatives.
18. "Effective Date" means the date this Final Judgment is signed.
19. The "1993 Will" means the Last Will of Jack H. Ikenaga allegedly executed by the Decedent on August 16, 1993, and filed for probate in Cause No. 2011 PC 4330, in
Bexar County, Texas. *47 "Sandra's Attorneys" means any and all attorneys (and their respective law
20. firms) who have represented Sandra in the Lawsuit or any matter ancillary to the
Lawsuit. "Defendants' Attorneys" means any and all attorneys (and their respective
21. law firms) who have represented any of the Defendants in the Lawsuit or any matter
,,_
ancillary to the Lawsuit.
22. The "1993 Trust" means the "Jack H. Ikenaga Declaration of Trust dated
August 16, 1993."
23. "Decedent's Entities" shall mean the Decedent and those persons, associations, trusts, and/or entities (whether now in existence or not), and which are or
were formerly owned or controlled, in whole or in part, directly or indirectly, by the
Decedent and the past and present employers, employees, directors, shareholders,
officers, assigns, predecessors, successors, attorneys, representatives or agents of such
entities.
B. No OUTSTANDING CLAIMS Based upon the testimony and representations of the parties, the court 1. finds that there are no actual and/ or potential claims, demands, suits, causes of action,
charges and grievances by, through, or under any party, which concern or relate in any
way, directly or indirectly, to the parties, the property of the Estate, or the Lawsuit,
except for matters as may be expressly excluded in this Final Judgment. Based upon the testimony and representations of the parties, the court
2. finds that no party has assigned, authorized or transferred (in any way, whether directly
or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any
kind or character, which any party has or may have had prior to and including the
Effective Date against any of the Defendants or the Estate.
3· Based upon the testimony and representations of the parties, the court finds that no party has or owns any part of any actual or potential claims, demands,
suits, causes of action, charges, or grievances of any kind or character against the
Defendants or the Estate which are not subject to and disposed of by this Final
Judgment.
C. DISPOSITION OF ESTATE Decedent's Testamentary Instruments: The Court finds that neither the "1993
1. 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 title to any interest such party may claim in the Estate or Estate property, (iii) shall never claim title to any of the Decedent's property, benefits, insurance, contracts, or other rights SAVE and EXCEPT as provided by this Final Judgment. The Estate shall pass as expressly determined by this Final Judgment under the
2. laws of intestate succession and the family settlement doctrine of the state of
Texas as construed, determined and settled according to this Final Judgment.
3· An heirship determination shall order the partition and distribution of the Estate,
subject to the administration of the Estate, as follows: a. Distribution And Partition To Sandra: From the Estate, Sandra shall receive (or has already received) the property and sums (subject to any liens, encumbrances, and taxes) identified on Exhibit A, which is attached to this Final judgment and fully incorporated as if restated herein, as and in full satisfaction of all of her actual and/or potential entitlements, rights, claims and/or other interests in or to:. (i) Sandra's one-half (1/2) interest in the community property estate of the Decedent and Sandra; (ii) an intestate share of the Estate; (iii) any family allowance, marital share, forced share, homestead rights, and any allowances in lieu thereof; and, (iv) any and all other rights, interests or potential entitlements in the remainder of the estate of the Decedent. The Ikenaga Defendants and Bailey are ordered to execute formal conveyance documents, for any titled property identified in paragraph 3 of Exhibit A within their respective *49 control, to Sandra within thirty (30) days following the date the Court enters an order on the heirship determination.
b. Specific Property Passing To Ikenaga Defendants: The Ikenaga Defendants shall receive from Sandra all items identified on Exhibit B, which is attached to this Final Judgment and fully incorporated as if restated herein, subject to the following terms: 1. Sandra shall deliver to the Temporary Administrator (unless otherwise noted) all items identified on Exhibit B, which are in her possession or subject to her control, no later than s:oo p.m. on the seventh (~) day following the Effective Date. The Court orders that any and all claims or potential claims belonging to Sandra or her Attorneys against the property on Exhibit B are hereby extinguished and/ or dismissed with prejudice.
2. If Sandra is not in possession or control of one or more of the items on Exhibit B, she is hereby ordered to execute a sworn statement attesting to the fact that she does not have such property in her~ possession or control and shall deliver that sworn statement to the Temporary Administrator and the Ikenaga Defendants no later than s:oo p.m. on the seventh (7th) day following the Effective Date. c. The Estate, SAVE and EXCEPT ONLY the property listed on Exhibit A and Exhibit B (and including without limitation any property that would otherwise pass to Sandra under any will, contract, or the laws of intestate succession), shall pass in equal undivided interests to the Ikenaga Defendants, subject to the administration of the estate. The Court orders that any and all claims or potential claims belonging to Sandra or her Attorneys against the properr; of the Estate are hereby extinguished and/ or dismissed with prejudice. Plaintiff shall execute formal conveyance documents to the Ikenaga Defendants within thirty (30) days following the date the Court enters an order on the heirship determination.
d. AHC Stock: The Court orders that the 21.02 shares of AHC stock in the Estate be sold and transferred to AHC or its designee, identified in writing by AHC, at the set price of $86,310.00/share.
3. Administration of Estate:
a. Control: Jack, or his designee, will make all decisions related to the Estate's administration after the Effective Date, subject to Court approval and that of the Temporary Administrator, when necessary.
b. Estate's Payment of Claims: The Court finds that Sandra's objection to ARC's claim against the Estate in the amount of $48g,o6o.82 ("ARC's 539083.1
Claim") and her objection to Christine's claim against the Estate in the amount of $2oo,ooo.oo ("Christine's Claim") are hereby overruled to the extent not already withdrawn by Sandra. The Temporary Administrator or his successor shall pay the ARC Claim to ARC and Christine's Claim to Christine in the due course of the Estate's administration, and upon approval of the claim by the court as required by the Texas Estates Code, provided, however, such claim shall be paid in full no later than 180 days following the Effective Date. Cooperation: All parties are ordered to sign and deliver any and all
c. necessary papers, documents, tax returns, transfers, deeds, bills of sale, and any other document requested in order to effectuate the provisions and purpose of this Final Judgment. Sandra is ordered to fully cooperate and comply with any request from the Court and/ or any Defendant with regard to any matter related to the Estate, including (without limitation) tax matters. Specifically, and without limiting the forgoing provision in any way, Sandra is ordered to deliver to AHC, through its representative Ross Bennett, the 2007 Lexus automobile (VIN JTHGL46F075002870) and 2010 Lexus automobile (VIN JTHGL1EF2A50416oo) titled in ACCC Insurance Company's name along with all sets of keys and the license plates to such automobiles no later than s:oo p.m. on the seventh (7th) day following the Effective Date.
4. Disposition of Related Actions: With respect to Cause No. 2011-PC-4330-B,
styled Sandra Ikenaga v. ACCC Holding Corporation, Sandra has voluntarily waived her appeal to the final judgment in such case and is hereby ordered not to file any motions or other documents which would challenge, affect, or impair the finality of such judgment.
s. S::~ndr::~'s Li::~bilitv: The court finds that Sandra is 100% responsible for any and all
contractual, equitable, tax, or other liability associated with the property Sandra has received or will receive pursuant to the parties' Settlement Agreement and/ or this Final Judgment, including (without limitation) all ad valorem taxes on such property owing for 2014, as well as any and all such liability associated with any property or liability Sandra failed to disclose to the Court and/ or the Temporary Administrator.
6. Liquidated Damages: The Court hereby orders that if Plaintiff fails to timely
satisfy any obligation owed to one of the Ikenaga Defendants pursuant to this Final Judgment, such Ikenaga Defendant shall provide written notice to Roland Colton of Sandra's breach and Sandra shall have ten (10) days to cure such breach ("Cure Notice"). If Sandra fails to cure such breach, the Ikenaga Defendant shall provide written notice to Roland Colton of such failure to cure ("Breach Notice") and Sandra shall deposit $1,ooo,ooo.oo into the Court's registry within thirty (30) days of the date Breach Notice is provided to Roland Colton, and those funds shall remain in the Court's registry until the Court renders a decision on the alleged breach and enters a conforming order. If Jack
539083.1 *51 fails to satisfy the obligations owed to Plaintiff as set forth in this Final Judgment, Roland Colton shall provide Cure Notice to Jack and Jack shall have ten (10) days to cure such breach. If Jack fails to cure such breach, Roland Colton shall provide Breach Notice to Jack and Jack shall deposit $1,ooo,ooo.oo into the Court's registry within thirty (30) days of the date Breach Notice is provided to Jack, and those funds shall remain in the Court's registry until the Court renders a decision on the alleged breach and enters a conforming order.
7· Previous Transactions. Sandra is hereby ordered to not make any claim for
damages, interest in, or any type of equitable relief with regard to the formation, capitalization, ownership, transfers of interests in, operation, merger, termination or liquidation of any of the Decedent's Entities. To the extent Sandra has any such claims, those are hereby extinguished and dismissed with prejudice. The parties are ordered to cooperate as necessary to present proposed orders to this Court confirming the validity and nature of all prior transfers of ownership interests and assets of the Decedent's Entities.
8. Attorneys' Fees: Each Party shall be solely responsible for the payment of their
respective attorneys' fees, court costs, expert witness fees, court reporter's fees, and all other expenses incurred on said Party's behalf as a result of or in connection with the Lawsuit, the Settlement Agreement and/ or this Final Judgment, unless the Temporary Administrator and the Ikenaga Defendants determine that a portion of their attorney's fees and costs should be reimbursed from the Estate (and such agreement is approved by the Court). The Estate shall be responsible for the fees and expenses incurred by the Temporary Administrator. If it becomes necessary to assert any claim to enforce or defend the provisions of this Final Judgment, the prevailing Party shall be entitled to recover reasonable attorney's fees and other related litigation expenses from the non-prevailing Party.
D. ALL CLAIMS AND POTENTIAL CLAIMS RESOLVED Except as previously stated herein, and pursuant to the Settlement 1. Agreement and representations of the parties, the Court hereby extinguishes and
dismisses with prejudice all claims and potential claims arising out of the events made
the subject of the Lawsuit which Sandra has or may have against any Defendant, against
William D. Bailey in his individual capacity, and against the Decedent and/ or the Estate.
This includes all such claims and potential claims, whether known or unknown, and any
suits, demands, causes of action, charges or grievances of any kind or character
whatsoever, heretofore or hereafter accruing for or because of any matter done, omitted
or suffered to be done by any such party hereto prior to and including the date hereof,
and in any manner (whether directly or indirectly) arising from or related to the
Lawsuit, save and except for the representations, warranties, and obligations under this
Final Judgment. Additionally, Sandra shall indemnify and hold ARC harmless from and
against any and all claims arising out of or in connection with any matters that were or
could have been raised in the Lawsuit. In the event Plaintiff breaches this Settlement
Agreement, Plaintiff shall indemnify and hold ARC harmless from such breach. Except as previously stated herein, and pursuant to the Settlement
2. Agreement and representations of the parties, the Court hereby extinguishes and
dismisses with prejudice ~1 claims and potential claims arising out of the events made
the subject of the Lawsuit which Defendants have or may have against each other .
and/ or against Sandra. This includes all such claims and potential claims, whether
known or unknown, and/or any suits, demands, causes of action, charges or grievances
of any kind or character whatsoever, heretofore or hereafter accruing for or because of
any matter done, omitted or suffered to be done by any such party hereto prior to and
including the date hereof, and in any manner (whether directly or indirectly) arising
from or related to the Lawsuit, save and except for the representations, warranties, and
obligations under this Final Judgment. Additionally, the Estate shall indemnify and
hold ARC harmless from and against any and all claims arising out of or in connection
with any matters that were or could have been raised in the Lawsuit. In the event the
Estate breaches this Settlement Agreement, the Estate shall indemnify and hold ARC
harmless from such breach.
E. NOTICE *53 Any notice required by this Final Judgment must (1) be in writing and (2) sent via certified mail to the party. Notices shall be deemed to have been timely made if received
or postmarked before or at the time that notice is due. If Sandra changes her address at
any point between the Effective Date and five (5) years from the Effective Date, she is
ordered to notify the Temporary Administrator, or any subsequent administrator or
executor of the Estate, and the Defendants by providing her new address no later than
seven days after the change of address.·
F. RELIEF NOT GRANTED AND DATE OF JUDGMENT With the entry of this Final Judgment, all of Sandra's claims have been addressed and all of her interest in the Estate has been fully and finally disposed of and she is no
longer an "interested person" as defined . by the Texas Estates Code. As a result, the
Court ORDERS that no further notice is required to Sandra or her counsel under Texas
Rule of Procedure [21] or under any provision of the Texas Estates Code.
IT IS ORDERED AND DECREED that all relief requested and not expressly granted is denied. This is a final judgment, for which let execution and all writs and
processes necessary to e·nforce this judgment issue. This judgment finally disposes of all
claims and all Parties and is appealable.
This Final Judgment was judicially PRONOUNCED AND RENDERED in this Court at [100] Dolo rosa, San Antonio, Bexar County, Texas on October 7, 2014, but signed
on the ~day of December, 2014.
ExHIBIT A Plaintiff shall keep all funds previously distributed to Plaintiff from the Estate,
1.
including the following:
a. The tax refund received in connection· with the 2011 Form 1040 Sandra filed, in the amount of $631,913.00;
b. $1,30o,ooo.oo received on or about March 12, 2013, as a distribution of the corpus of the Estate;
c. $105,215.00 received on or about November 20, 2013, as a distribution of Estate income;
d. $162,730.29 received on or about March 12, 2013, as a distribution of Estate income.
2. In addition to amounts identified in No. 1, above, Plaintiff will receive a total of
$5,000,ooo.oo from the Estate, which will be payable to Plaintiff as follows and delivered, unless otherwise ·provided, by bank w:ire as the Plaintiff. directs in writing to both the Temporary Administrator (or his successor) and Jack at least 30 days before each due date:
a. $1,ooo,ooo.oo by 5:00 p.m. on or before the seventh (~) day following the Effective Date to be paid as follows:
(1) A cashier's check payable to "Roland C. Colton Client Trust Account" in the sum of $614,810.05; and · (2) A cashier's check payable to "Sandra A. Ikenaga" in the sum of $385,189.95.
b. $2,ooo,ooo.oo by 5:00p.m. on or before December 31, 2014; and· c. $2,ooo,ooo.oo paid over five (5) years and bearing 2% simple interest as follows:
Payment Payment
Date Amount
$200,000.00 6/30/2015
$200,000.00 12/31/2015
6/30/2016 $200,000.00
$200,000.00 12/31/2016 . $200,000.00 6[30/2017
$200,000.00 12/31/2017
6/30/2018 $200,000.00
12/31/2018 $200,000.00
*55 $2oo;ooo.oo 6/30[2019
12/31/2019 $200,000.00
12/31/2019 $110,000.00
(accrued
interest) 3. Plaintiff shall keep possession of or shall receive the following real estate, motor
vehicles, and other personal property and accepts such iri their current "As Is" condition and location:
a. 21200 Wilderness Oak, San Antonio, Texas, by Special Warranty Deed or Administrator's Deed prepared by counsel for Sandra; 20851 Great Navajo, San Antonio, Texas, by Special Warranty Deed or b. Administrator's Deed prepared by counsel for Sandra; c. 20935 Great Navajo, San Antonio, Texas, by Special Warranty Deed or Administrator's Deed prepared by counsel for Sandra; d. 3654 MLK, Jr. Blvd. (and adjoining lot) Port Arthur, Texas ("the Fish Camp"), by Special Warranty Deed or Administrator's Deed prepared by counsel for Sandra;
e. 2006 Toyota Rav 4 in Plaintiffs possession; 2000 Toyota Prerunner located at ARC's corporate Houston office;
f. g. 2000 Chevrolet Tahoe located at AHC's Georgia office; h. Electronic. golf cart; Massage chair, antique table and chairs, located at AHC's Houston office;
I. Motorboat and trailer located at the ARC's Houston Office; ]· k. All personal property in Plaintiffs possession and subject to her control, except for any property identified on Exhibit B to this Final Judgment; I. Kawasaki ATV in Plaintiffs possession;
m. Backhoe in Plaintiffs possession; n. 1988 Ebbtide boat located at ARC's Houston Office; 1997 Toyota· Camry titled in Sandra's name and located in Alpharetta, 0. Georgia
4· Plaintiff will remain an employee of Isthmus, Inc. ("Isthmus'.') until and no later
than October 6, 2015, as a bridge to her 65th birthday, pursuant to the following terms:
a. Plaintiff is enjoined from interfering directly or indirectly with the operations of Isthmus. If Plaintiff must communicate regarding issues related to human resources, compensation, or health insurance coverage, Plaintiff may contact Leah Treille or her assistant directly at Isthmus, Inc.
539083.1
EXHIBITB Pictures from family trips to Japan;
1. Old family photo albums;
2.
3. Framed picture of Nancy in a Kimono;
4· Nikon camera and lens;
s. The Decedent's diploma;
6. The Decedent's citizenship plaque;
7. Historical family records;
8. Chinese chess set (believe to be hand-crafted and of collector-grade value; last
seen in secret storage under stairwell at [21200] Wilderness Oak, San Antonio, Texas);
9. Lord of the Rings books;
10. The following collectible-grade edition Charles Dickens books:
a. Our Mutual Friend;
b. Bleak House;
c. Martin Chuzzlewit;
d. A Tale of Two Cities;
e. Christmas Stories;
f. David Copperfield;
g. Pickwick Papers;
h. The Old Curiosity Shop. The Decedent's ashes (to be delivered to Eric Goodman, or his designee, instead
11.
of the Temporary Administrator) no later than s:oo p.m. on the seventh (7th) day following the Effective Date.
APPENDIX B
[1] The term “appellees” refers to Jack H. Ikenaga, Jr., Nancy Sumners, Christine Ikenaga, Patrick Gasiorowski, and Eric J. Goodman.
[2] The proceedings were initially docketed in Probate Court No. 2 before Judge Rickhoff. He later recused himself. 7 CR 4526. vii
[3] Jack Sr. had another child during his first marriage, Bonnie Jean Ikenaga. 17 RR 18. She, however, passed away while an infant. 17 RR 18.
[4] Sandra initially opposed Jack Jr.’s application to probate Jack Sr.’s will. See 1 CR 89. After she filed her claims against appellees, she formally sought to join in the pending probate of Jack Sr.’s will. 1 CR 91
[5] AHC is a holding company for several insurance-related businesses. The particulars of its
[7] Nancy, Christine, Patrick, Eric, Jack Jr., and AHC filed cross claims against the estate regarding an indemnity provision in the stock purchase agreement between Jack Jr. and Jack Sr. 2 CR 1058-59, 1071-73. That provision is not at issue in this appeal.
[8] Appellees alleged that Auto Computer and Imaging, Inc.’s assets were used to capitalize Isthmus, Inc. when that corporation was formed. See 2 CR 1065, 1073.
[9] This is contrary to appellant’s assertion that the trial court improperly excluded and failed to consider “evidence properly before the [c]ourt.”
[10] While under oath, and after a lengthy explanation by the trial court, Sandra affirmed on the record that she was in agreement with the settlement terms. 15 RR 23-24.
[11] The Court may consider this brief as also presenting a motion to dismiss Sandra’s appeal. See, e.g., Leedy , 399 S.W.3d at 339.
[12] Even after the final judgment was signed, Sandra’s counsel continued to represent to the trial court that the judgment correctly tracked the settlement agreement. 19 RR 8 (“. . . Mr. Ford’s office provided a revised judgment that specifically tracked the agreement, and that’s the judgment the Court’s entered and that’s the judgment that the parties have begun performance under.”).
[13] There was no legal basis for the trial court to have awarded Sandra the 2010 Lexus because it was owned by AHC and not by Jack Sr.’s estate. By the time that she made her request for the 2010 Lexus, Sandra no longer had any active claims against AHC. Summary judgment had already been granted as to all of Sandra’s claims against AHC. 7 CR 4623. Those claims were severed into a separate cause number, and Sandra had agreed not to appeal the summary judgment. 15 RR 14. Thus, without any active claim, there would have been no basis for Sandra to deprive AHC of its property, and she cannot show any harm flowing from the final judgment.
[14] Appellees objected to Sandra’s failure to plead the discovery rule. 13 RR 3. While this non- evidentiary objection is discussed in passing in Sandra’s brief, it is not directly addressed in the statement of issues presented or in the argument. See Br. of Appellant 8, 26. Sandra has not directed the Court to any authority that would have permitted her to amend her pleadings during the summary judgment hearing. Accordingly, appellees conclude that Sandra’s appellate issue is limited to the exclusion of evidence and does not include any issue regarding the sufficiency of her pleadings.
[15] Other than discussing the appellees’ partial motion for summary judgment and standards for a traditional summary judgment, Sandra does not present any argument establishing why the trial court erred in granting the motion.
[16] Sandra does not address the summary judgment granted in AHC’s favor.
[17] Sandra also makes other passing complaints in her briefing regarding the summary judgment hearing, including a complaint that the trial court allowed expert testimony from a Georgia attorney. Br. of Appellant 23-24. Mr. Donsbach was not an expert witness, but he was an attorney of record for Jack Jr. and had been admitted pro hac vice . 7 CR 4602. But, even if he had been admitted as a witness, Sandra waived any right to complain on appeal because she did not present an objection to the trial court. See T EX . R. A PP . P. 33.1(a).