*1
(collateral
Barr,
ta);
estoppel). successfully Stewart’s against
To defend claim,
takings City to establish was a demolished structure nui- on the
sance was demolished.
Crabb, 905 S.W.2d at The Board 675. year its nuisance be- finding
made over actually
fore Stewart’s house demol- was Thus, the fact before the
ished. issue was not fact issue
Board identical to the the trial takings
before court on Stewart’s issue pre-
claim. Because the nuisance takings
sented Stewart’s claim not
identical to the nuisance before the issue takings
Board and because Stewart’s claim not litigated previ-
could have been action, nor judicata
ous neither res collat- estoppel preclude takings
eral Stewart’s
claim this case. affirm judgment.
We the trial court’s MILNER, Appellant,
Vicki Ann
v. MILNER, Appellee.
Jack Edward
No. 2-08-442-CV. Texas,
Court of
Fort Worth.
June 2010.
Rehearing Aug. Overruled
Reconsideration En Banc Denied
Aug. *2 Tillery, King parties separated, Heather L. & Rebecca When the communi- Robertson, Koons, Fuller, Eykel & ty Vanden estate a interest in owned 44.055% The- P.C., Southlake, Appellant. for Recycling. lin three limited Jack, brother, Thelin Recycling were his Harris,
David L. & Harris & Cook Chris Milner, Joey who owned a 20.295% inter- Cook, L.L.P., Arlington, Appellee. est, Hill, and Michael who owned a 34.65% DAUPHINOT, GARDNER, PANEL: Joey sold his interest to Hill WALKER, and JJ. granted. before the divorce was OPINION1 MEMORANDUM Thelin owned a 1% inter- in est Thelin and acted as its DAUPHINOT, LEE ANN Justice. general partner. sepa- At the timе of the Appellant Appel- Vicki Ann Milner and ration, community estate owned a signed lee Jack Edward Milner a mediated Management, in Thelin (MSA), and after Hill Joey owned a 20.5% and unsuccessfully attempted Vicki to with- owned a 35% interest. sold inter- his draw her consent to the the trial to Hill before the granted. еst divorce was granted court their divorce and decree. After the trial court denied her Thelin Recycling’s partnership Under trial, timely motion for new filed this agreement, generally, a transfer rec- issues, In appeal. eight challenges she ord title or beneficial ownership of a MSA and the divorce decree and contends partnership requires the unani- that the trial court abused its discretion partners, mous consent of all the refusing to allow her to withdraw her con- termed part- Consent” sent to the MSA and erred her denying XIII, nership agreement. Section Para- request for additional аnd amended find- B, graph Subsection 5 of the partnership of fact ings and conclusions of law as well specific further contains provi- as her motion for new trial. Because we regarding partner- sions the transfer of a meeting hold that there was no divorce, ship interest in the event of a regаrding contemplated minds transfer allowing partner of Jack’s title “record and beneficial inter- in the profits share and losses and to est” in a limited partnership to we distributions, receive as well as the liabil- also hold that the MSA was not a all obligations ities for unsatisfied contract and that trial cоurt abused its Partner, pass to the spouse former by enforcing discretion in- and provided otherwise “unless for herein.” corporating it into the divorce decree. We provides: The provision also part therefore reverse the remand this case to the trial for a court In ... spouse no event shall the former new division of the marital estate. ... become a Partner of the Partner- Background Facts ship, nor be construed as substituted ... partner, any voting rights nor
Jack and Vicki were married in 1994. any rights as a Partner or relative to the During marriage, their Thelin Recycling (“Thelin operations management of the Part- Recycling”) L.P. nership, except provided in this Management Company, LLC (“Thelin Management”) were Agreement formed. and the Act.
1. B, XIII, “A”, Subsection 4 Paragraph “B”,
Section hibit and Exhibit incorpo- that no substitute reference, makes clear fully by rated herein at the partner may partner- be admitted to the Agreеment same time this is executed. *3 ship the unanimous consent of the without Exhibit A to the MSA provides, partnership agreement The partners. “assignee” makes clear that a mere “has COMPANY, THELIN RECYCLING only under granted Section 7.02 LP right of the Act” and “does not have the REQUIRED CONSENT TO TRANS- partner except become a as provided” FER OF Partnership Agreement or in Section RECORD TITLE AND BENEFICIAL 7.04 of the Act.2 OWNERSHIP INTERESTS 14, 2007, August sep-
On Jack and Vicki arated, and for Vicki filed divorce. On Whereas, Jack Milner and Vicki Mil- 3, 2008, July they entered into the MSA. ner have entered into an following The MSA contains the section: Jack Milner to transfer the record title
Business Interests: and ownership beneficial interest his agrees Jack to transfer to Vicki all of his in Thelin Recycling beneficial interest and record title in and LP, Company, to Vicki Milner as a part community property to the 44.055% in- of the division of the community estate LP, Recycling Company, terest in Thelin parties; and[ ] community proрerty and the 44.5% in- Whereas, THELIN MANAGEMENT terest in Thelin Management Company, LLC, COMPANY, HILL, MICHAEL LLC, thereon, subject to all liabilities MILNER, MILNER, JACK and JOEY (except portion of the mineral inter- being all of the partners of THELIN herein) ests, provisions as set out and all COMPANY, LP, RECYCLING hereby existing Partnership Agreement. agree to transfer one-half of the mineral рarties acknowledge The Re- interest associated with Jack Milner’s cycling LP Thelin Management, and/or 44.055% in Thelin Recycling LLC, outstanding debt relative to LP, Milner, to Jack individu- operation of the business. Vicki ally, partners agree and all such further name, agrees to substitute her for Jack’s necessary to еxecute all documents name, outstanding for all liabilities on Milner; award such interest to Jack companies. both acknowl- Now, therefore, edge that this THELIN MANAGE- lender, LLC, existing any COMPANY, succes- MENT MICHAEL lender, HILL, MILNER, sor accepting guaran- Vicki as a JACK and JOEY MILNER, place tor in of Jack on all existing being liabili- all of the COMPANY, tiеs of the Thelin Jack businesses. THELIN RECYCLING LP, agree Required execute the and constituting Con- sent, Consents to Transfer of Record Title hereby give their consent to such Interests, and Beneficial Ownership cop- transfers of effective this 3rd ies of which are July, attached hereto as Ex- 6132a-l, ly governed by chapter 2. See Tex.Rev.Civ. Stat. Ann. art. Business 7.02, (Vernon §§ Supp.2009) (discussing 7.04 Organizations Orgs.Code Code. See Tex. Bus. assignees partners). and limited Since Janu- (Vernon Supp.2009). §§ Ann. 153.003-.553 1, 2010, ary partnerships general- limited are page At the bottom of the are lines for that day. Joey signed exhibit sign 7, 2008, Jack to July as President and limited on eight days before he sold partner, lines for Hill sign as his interest to Hill. partners, and a line for Vicki to July On the trial court held a sign spouse indicating her “awareness hearing regarding the objected MSA. Vicki as it affects com- [her] that the proposed final decree did not ac- munity property rights in Jack Milner’s curately reflect the MSA. Specifically, she LP, interest in Thelin Recycling Company, objected that Exhibit to the decree dif- consent to such [her] action.” Jack *4 fered from the MSA exhibits. Exhibit B indicated; signed Vicki both where to the provides, decree signed one else day. Joey exhibit that 7, 2008, Assignment
signed July it on of eight days before Interests he sold his interest to Hill. provides,
Exhibit to the MSA In accordance with the terms of the THELIN MANAGEMENT COMPA- Agreed ..., I, Final Decree of Divorce NY, LLC MILNER, JACK EDWARD TRANS- REQUIRED CONSENT TO TRANS- FER, CONVEY, and ASSIGN to
FER OF MILNER, VICKI ANN following TITLE RECORD AND BENEFICIAL closely held business interests: OWNERSHIP INTERESTS a. All of my beneficial interest and record in my title and to 44.055% Whereas, Jack Milner and Vicki Mil- Partnership Limited Interest in ner have entеred into an LP, Thelin Recycling Company, Jack Milner to transfer the record title subject all provisions and beneficial ownership interest in his Partnership Agreement Limited in Thelin LP, Recycling Company, of Thelin LLC, Company, to Vicki Milner aas save and except for the mineral part of the division community intеrest to be awarded to me.... parties; estate of the All my b. beneficial interest and Now, therefore, HILL, MICHAEL my record title and to 44.5% MILNER, MILNER, JACK and JOEY membership interest in Thelin being all of the members of THELIN LLC, Management Company, COMPANY, LLC, MANAGEMENT subject provisions to all Consent, and constituting Regulations of Thelin Manage- hereby give their consent to such trans- LLC, Company, save and fers of effective this 3rd except for the mineral interest to July, 2008. be awarded to me.... At the bottom of page are lines for Jack, Hill, sign as members signed by exhibit was to be Jack and a line for sign Vicki to spouse and notarized. Unlike the exhibits indicating her “awareness of agree- it contains no blanks or references ment as it community affects proper- [her] partners to the other ty rights in Jack Milner’s The- or the other members of Thelin Manage- lin Management LLC, ment. The [her] exhibit to the divorce decree consent to such action.” Jack and Vicki contains reference to indicated; where no one else Consent.”
Vicki testified that was her under- hearing, the trial court denied Vicki’s mo- standing that tion for new trial on October all of the signing consents Analysis to the transaction. Jack testified that he 6.602 of family Section code believed that he performed the re- provides in relevant part, quired transferring action of his “beneficial (b) A mediated interest and Recy- record title” in Thelin is on the if the cling Management by agreement: and Thelin signing his consent to the transfers. (1) provides, in a prominently dis- played 8, 2008, statement that is in August
On Vicki filed a notice to boldfaced type or capital underlined, withdraw her consent letters or to the MSA. On that the August Jack filed his subject Motion to Enter is not revocation; Agreed Final Decree of Divorce. (2) August signed by
On each party trial court to the *5 agreement; the final decree of divorce. The final divorce decree transferred Jack’s (3) is signed by thе party’s attorney, “beneficial interest and record title” in any, if present who is at the time the and Thelin signed. to Vicki. The decree was not (c) If a mediated settlement on the other consenting to a meets requirements section, of this a partnership transferred management party is entitled tо judgment on the Arguing that the final divorce mediated notwith- properly MSA, decree did not reflect the 11, standing Rule Texas Rules of Civil Vicki filed a motion for new trial. Vicki Procedure, or another rule of law.3 alleged that since signing of the di- concedes, As decree, vorce she had learned that befоre mediation, meets the requirements of Hill this section.4 purchased had Joey’s por- But settlement agreements tion are governed of Thelin Management and Thelin Re- by contract law.5 This cycling, giving Hill court has held that majority interest in However, may trial court companies. properly refuse аccording to to en force an Jack never MSA that during complies indicated otherwise with media- tion Joey’s party that statute if a partner procures status as a agree Thelin Recycling by and as a intentionally failing member in The- to disclose lin Management information,6 material changed. Jack’s evi- and other courts dence indicated that lawyer Vicki’s held that a trial court need not en aware of the pending purchase before the force an MSA illegal that is or that was mediation and that the fraud, duress, transaction did not obtained through coercion occur until aftеr the mediation. After a or other dishonest Additionally, methods.7 6.602(b), (c) (Vernon § 3. Tex. Fam.Code Ann. Boyd Boyd, v. 67 S.W.3d 405 2006). 2002, (Tex.App.-Fort pet.). Worth 4. See id. 883, (Tex. Joyner, 7. See In re 196 S.W.3d 890 2006, denied); App.-Texarkana pet. Swanson, In re Kas Schlumberger Corp. Tech. v. 959 schau, 305, (Tex. 171, (Tex. 1997); 11 S.W.3d App.-Hous 312 S.W.2d 178 Williams v. Glash, 1999, (Tex.1990); orig. ton proceeding) (op. [14th 789 Dist.] 264 Dep’t v. Transp., reh’g). Schriver Tex. on 293 S.W.3d of (Tex.App.-Fort pet.). Worth appeared contemplated only has decree an assignment, Dallas Court recognize meeting that the absence of a and because the partner a limited justify greater assignee of the minds would a trial court’s are than those of an un- MSA,8 rejection logical, giv- partnership agreement, of an which is der the we hold that there meeting meeting en that a of the minds is a re- was no of the minds regarding element of a valid contract.9 quired partnership transfer interest. Consequently, we hold that the issue, In her second Vicki contends that trial court abused its discretion not the trial court abused its discretion not setting aside the MSA. We sustain Vicki’s setting rendering judg- aside the MSA and issue, second disposi- because this ment based contingencies were tion, we do not reach her remaining is- performable. specifically not She con- sues.11 tends within this issue that there was no meeting agree. of the minds. We issue, Having sustained Vicki’s second we portion affirm that of the trial court’s In the agreed Jack and Vicki judgment granting the divorce but reverse to “execute the Consents to the trial court’s as to proper- Transfer of Title Record and Beneficial ty division. We remand this case to the Interests, Ownership copies of which are trial court for a new division of the marital ‘A’, attached hereto as Exhibit and Exhibit estate. ‘B’,and incorporated fully by herein refer ence.” Each exhibit contains *6 GARDNER, J. filed a concurring Consent” its title and contains blаnks opinion. only for not Jack and Vicki but also for “[Ojur duty give and Hill. is to effect WALKER, J. opinion. concurs without all provisions, to contract and render none meaningless.”10 In contrast to the MSA GARDNER, Justice, ANNE exhibits, and its associated the divorce de concurring.1 cree any and Exhibit B thereto omit dis I join in the result but on additiоnal Consent,” cussion Joey, grounds expressly by raised Vicki’s issues Hill. in her I would brief. sustain Vicki’s first partnership agreement, Under the issue, complaining that the divorce decree consents of Joey and Hill were not re- does not conform to the mediated settle- quired for Jack merely assign his inter- (MSA), the Ex- becаuse Vicki, consent, est but unanimous incorporated hibit attached to and into termed “Required Consent” in the part- decree, language as well as the nership agreement, required for her decree, substantially differs from the Ex- to be a partner. hibits A Band attached to and made a
Becausе the contemplated part MSA unani- of the MSA. Joyner, See In re 196 883, mous part- consent and therefore a limited (Tex.App.-Texarkana S.W.3d 890-91 denied) 2006, nership pet. (noting but the divorce that section Mullins, 869, Co., 185, King 8. See Mullins v. 202 S.W.3d 877 v. Dallas Fire Ins. 85 S.W.3d 2006, (Tex.2002). denied). (Tex.App.-Dallas pet. 193 Schriver, 851; Tex.R.App. 11. See P. 47.1. 9. See 293 S.W.3d at Hubbard v. Shankle, 474, (Tex.App.-Fort 138 S.W.3d 481 2004, denied). pet. Worth 1. See
525 6.602 does not authorize the trial court to its for a mediated set-
substitute In re FRANK KENT MOTOR agreement). tlement COMPANY Frank Kent d/b/a I would also sustain Vicki’s second issue Cadillac, Relator. contending that the MSA contained contin No. 02-10-00298-CV. gencies impossible perform. that were impossible When it is to enforce the terms Texas, Court of agreement, of a mediated settlement a tri Fort Worth. terms, may significantly al court not add terms, alter or undermine the intent of the 30, Aug. remedy in an effort to problem. See, Roberts, e.g., Beyers v. 199 S.W.3d
354, (TexApp.-Houston [1st Dist.] denied); Nolder, 2006, pet. In re Albert, Christophеr M. Myers, Busch & 432, (Tex.App.-Texarkana 434-35 L.L.P., Dallas, for Relator. Ames, pet.); In re 860 S.W.2d Fielding, David Fielding, Parker & Hall- (Tex.App.-Amarillo 592-93 mon, L.L.P., Worth, Fort for real party writ) (reversing signifi decree that added MSA). cant and different terms to Here, the impossibili record reflects the WALKER, J.; PANEL: ty of ever obtaining required consents LIVINGSTON, C.J.; GABRIEL, J. as stated the MSA and the Exhibits A thereto, Band attached and I would hold MEMORANDUM OPINION1 that the trial court abused its discretion attempting modify be PER CURIAM. *7 final, cause there was no binding agree ment between the The court has parties. peti- See Pickell v. considered relator’s Co., Guar. Nat’l tion for writ of Ins. mandamus and is of the Life opinion 441-42 thаt relief (Tex.App.-Houston should be [14th denied. Ac- Dist.] writ) cordingly, petition relator’s (holding where record re for writ of contingency flected that mandamus is denied. contained in MSA met, final, was not there was no pay Relator shall original all costs of this on which could be proceeding, for which let execution issue. based). 1.