Herszage v. Herszage, No. 13-06-257-CV (Tex. App. 8/16/2007)
| Decision Date | 16 August 2007 |
| Docket Number | No. 13-06-257-CV.,13-06-257-CV. |
| Parties | MYRIAM HERSZAGE, Appellant, v. JORGE HERSZAGE, M.D., Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 139th District Court of Hidalgo County, Texas.
Before Justices YAÑEZ, BENAVIDES, and VELA.
Appellant Myriam Herszage ("Myriam") appeals a judgment rendered on a mediated settlement agreement incident to her divorce from appellee, Jorge Herszage, M.D. ("Jorge"). By multiple issues, Myriam argues that the trial court erred in rendering judgment on a mediated settlement agreement that (1) was revocable and properly revoked before judgment, and (2) was fraudulently induced. For the reasons stated herein, we affirm.
In 2004, Jorge filed for divorce from Myriam, his wife of many years. Myriam answered the suit and filed a counterclaim for divorce, alleging, among other things, that she was entitled to a disproportionate share of the community assets as a result of gifts of community property by Jorge to others.
After discovery had been served but before Jorge's answers were due, the trial court ordered the parties to mediation. The parties mediated the division of property for seven hours on Friday, February 3, 2006, after which they appeared to reach an agreement. The parties' mediated settlement agreement ("MSA") consisted of five pages. The first two pages contained boilerplate language. These pages provided, for example, that the parties entered the agreement "freely and without duress after consulting with professionals of his or her choice," that the agreement is "signed voluntarily and with the advice and consent of counsel on the dates set out below and subject to the court's approval," and that "the parties agree to appear in court at the first available date to present evidence and secure rendition of judgment in accordance with this Mediated Settlement Agreement." Most importantly, the second page stated the following in capital letters, underlined type: "THIS AGREEMENT IS NOT SUBJECT TO REVOCATION." The first two pages of the agreement were not signed or initialed by any party.
The last three pages, entitled "Exhibit A," contained the division of property. The parties' real property, personal property, and bank accounts with their respective values were listed in a grid, which allocated each item to one of the parties. The remainder of the document provided for certain conditions and obligations of the parties regarding, among other things, residency in the real property, attorneys' fees, and inventories. Exhibit A's final provision required Myriam to dismiss with prejudice her counterclaim against Jorge, insofar as it related to the Merrill Lynch account in Jorge's sister's name, stating: "Myriam dismisses with prejudice any and all claims against Jorge and/or his family members relating to the Merrill Lynch accounts in Jorge's sister's name, and all other gifts previously made by Jorge to others." The value of this Merrill Lynch account is not listed on the document. Each page of Exhibit A was either signed or initialed by Jorge and Myriam. The last page was also signed by the attorneys.
On February 6, 2006, the Monday following mediation, Jorge's counsel appeared before the trial court to obtain judgment on the MSA. Myriam's counsel appeared, and Myriam attempted to revoke her consent to the MSA. At the hearing, Myriam admitted that she signed the MSA, but she alleged that when she signed it, the first two pages (containing the non-revocation language) were not attached to Exhibit A (containing the division of property). Myriam insisted that the revocation language was not there when she signed the agreement.
Additionally, Myriam stated that Jorge had not disclosed to her that there was a million dollars in a Merrill Lynch account that he had put in his sister's name. When asked by the court her reason for revoking the agreement, she admitted that the million dollar account was discussed at the mediation.
Jorge's counsel then told the trial court that the account was discussed extensively prior to the mediation. Jorge's counsel stated Myriam agreed to release her claim to the Merrill Lynch account in exchange for allocating several buildings to Myriam as her separate property. Apparently Myriam had claimed these buildings as her separate property, but Jorge's counsel believed she did not have enough evidence to trace the purchase of these buildings to Myriam's separate funds. Jorge then testified under oath that the Merrill Lynch account was discussed "ad infinitum" and "ad nauseam," and he confirmed that the claims to the account were released at the mediation in exchange for the allocation of a building to Myriam's separate property.
In response to questions from the court, Mark Montalvo, Myriam's counsel, stated that he had advised Myriam of "everything" and explained "everything" to her. Montalvo also stated that the Merrill Lynch account was discussed at the mediation and that Myriam was dropping the claims regarding the Merrill Lynch account. The trial judge stated that he was approving the settlement, but he did not render judgment at that time.
The next day, February 7, 2006, Myriam filed a Motion to Set Aside Mediated Settlement and Alternative Motion for New Trial. The motion stated that Myriam validly exercised her right to revoke the agreement prior to the court's rendition of judgment. Alternatively, if the court rendered judgment, she requested a new trial on the same grounds. The trial court signed a final decree of divorce on February 14, 2006, rendering judgment on the settlement agreement.
The trial court held a hearing on March 1, 2006 on the Motion to Set Aside Mediated Settlement and Alternative Motion for New Trial. At the hearing, Myriam again testified that she did not know the agreement was irrevocable, that she did not sign the first two pages of the agreement, and that she did not see those pages until after she arrived home from the mediation. In opposition, Jorge testified that Myriam and Montalvo signed the agreement first. He stated that after Myriam signed, the agreement was presented to him with all five pages stapled together.
Additionally, after being instructed by the court to testify, Montalvo testified that he was present when Myriam signed the agreement. Montalvo stated that the documents were presented to Myriam in two separate stacks which were not stapled; however, she had all five pages when she signed. He further stated that he reviewed the entire contract before he signed it himself.
After hearing the evidence, the trial court denied the Motion to Set Aside Mediated Settlement and Alternative Motion for New Trial. Myriam requested findings of fact and conclusions of law without any recommendations as to what the court should find. The trial court then entered the following findings of fact relevant to the present appeal:
3. The Mediated Settlement Agreement Incident to Divorce, which was signed by each party and each party's attorney, provided in boldfaced type, capital letters, and underlined as follows:
THIS AGREEMENT IS NOT SUBJECT TO REVOCATION
4. The Mediated Settlement Agreement Incident to Divorce, which was signed by each party and each party's attorney settled all pending issues in this cause.
8. There was no fraud perpetrated against the Respondent prior to or at the time of her signing the Mediated Settlement Agreement Incident to Divorce.
10. The Mediated Settlement Agreement Incident to Divorce was not subject to revocation after it was signed by both parties and their attorney's [sic] of record.
12. No good cause exists for the Court to set aside the mediated settlement agreement signed by the parties and their attorneys.
13. No good cause exists for the Court to grant a new trial.
14. Respondent presented no evidence warranting the setting aside of the mediated settlement agreement or the granting of a new trial.
Based on these fact findings, the trial court issued conclusions of law, stating that the MSA was a binding, valid, and enforceable agreement that was irrevocable. Myriam did not object or request additional findings. This appeal ensued.
In issues one through four, Myriam argues that the trial court erred in rendering judgment on the MSA after she revoked her consent to the agreement in open court. Issues one and two challenge the judgment itself; issue three challenges the factual sufficiency of findings of fact numbers 3, 4, 10, 12, 13, and 14 supporting non-revocability of the MSA, and issue four challenges the trial court's conclusions of law.
Myriam attacks the judgment itself as well as the findings of fact and conclusions of law relating to her ability to revoke the MSA before judgment. When appealing a trial court's judgment after a non-jury trial, attacks on the sufficiency of the evidence should be directed at specific findings of fact rather than at the entire judgment. Carter v. Carter, 736 S.W.2d 775, 777 (Tex. App.-Houston [14th Dist.] 1987, no writ). Because Myriam contests the factual sufficiency of the evidence to support the findings of fact, essentially raising the same argument that she does generally against the judgment, we will review her first four issues as a challenge to the sufficiency of the fact findings. Id. ().
A trial court's findings of fact may be reviewed for factual sufficiency of the evidence.1 Nelkin v. Panzer, 833 S.W.2d 267, 268 (Tex. App.-Houston [1st Dist.] 1992, writ dism'd w.o.j.). We apply the same standard of review to a trial court's fact findings as we do to a jury's findings. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam).
Jorge had...
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