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Zermeno v. Garcia

Court of Appeals of Texas, Fourteenth District

May 9, 2019

GLORIA C. ZERMEÑO, RICARDO GUZMAN, AND SOLID ROCK READY MIX, INC., Appellants
v.
NOELIA GARCIA, MARIO ZERMEÑO, AND Z READY MIX, INC., Appellees and NOELIA GARCIA, MARIO ZERMEÑO, AND Z READY MIX, INC., Appellants
v.
GLORIA C. ZERMEÑO, RICARDO GUZMAN, AND SOLID ROCK READY MIX, INC., Appellees

          On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 2015-07827

          Panel consists of Justices Wise, Zimmerer, and Spain.

          MEMORANDUM OPINION

          CHARLES A. SPAIN, JUSTICE

         This case arises out of a family concrete business owned by two sisters-in-law. Both sides of the family sued each other and one of the implicated concrete companies. Both sides filed notices of appeal: (1) Gloria Zermeño, Ricardo Guzman, and Solid Rock Ready Mix, Inc. ("appellants") and (2) Noelia Garcia, Mario Zermeño, and Z Ready Mix, Inc. ("appellees").[1]

         Before the trial court, Gloria and Ricardo alleged Noelia and Mario had breached a settlement agreement, and Z Ready Mix alleged that Gloria had breached her fiduciary duty. These claims were tried to a jury. The jury found Noelia and Mario had not breached the settlement agreement, but that Gloria had breached her fiduciary duty. The trial court rendered a final judgment that Gloria pay $467, 000 to Noelia, Mario, and Z Ready Mix.

         Gloria, Ricardo, and Solid Rock Ready Mix appeal this portion of the judgment. However, this portion only affects Gloria's interests. Therefore, we dismiss Ricardo's and Solid Rock Ready Mix's appeal for want of jurisdiction.

         Gloria brings six issues on appeal; appellees bring one conditional issue. Gloria did not preserve five of her issues, leaving only a factual-sufficiency issue, which we overrule. Consequently, we do not reach appellees' conditional issue.[2]

         We affirm.

         I. Background

         Gloria Zermeño and Mario Zermeño are sister and brother. Ricardo Guzman and Noelia Garcia are their respective spouses. Years ago, Gloria and Mario started a concrete company together, Z Ready Mix, Inc. Gloria handled the company's administrative matters, and Mario managed operations. Half of the company was owned by Gloria, and half of the company was owned by Mario's wife, Noelia.

         In 2014, Gloria and Mario had a falling out. Noelia and Mario, individually and on behalf of Z Ready Mix, sued Gloria and Ricardo; almost immediately thereafter, Gloria and Ricardo sued Noelia and Mario. The suits were consolidated, with Noelia, Mario, and Z Ready Mix as plaintiffs. Ultimately, the parties settled after mediation. The settlement agreement divided the assets and debts of Z Ready Mix between the parties. Z Ready Mix owned two concrete plants on the same land, so one plant was awarded to Gloria and Ricardo, and the other plant was awarded to Noelia and Mario. The parties agreed to evenly divide the cash in the company's accounts, accounts receivable, and the company's debts. Both couples planned to start new concrete companies, Solid Rock Ready Mix, Inc. for Gloria and Ricardo, and Diamond Ready Mix, Inc. for Noelia and Mario. As part of the settlement, the parties planned to build a fence between the two plants to create two separate spaces for the new companies. Because electricity and water sources were located only on the property Noelia and Mario received in the settlement, Noelia and Mario agreed that all utilities would "stay connected" to Gloria and Ricardo's plant until new connections were established.

         Afterwards, Gloria and Ricardo had trouble with the supply of power and water to their concrete plant. Gloria and Ricardo fought with Noelia and Mario over the electricity and water problems. One day after the parties moved for dismissal of their claims pursuant to the settlement agreement, Gloria and Ricardo asserted a new claim against Noelia and Mario for breach of the settlement agreement, particularly the agreement to keep utilities connected. The trial court later signed an order dismissing the claims asserted before June 5, 2015 (the settled claims).

         Z Ready Mix subsequently asserted a new claim against Gloria for breach of fiduciary duty.[3] In support of this claim, Z Ready Mix asserted that after settlement, Gloria collected cash payments from Z Ready Mix customers, but did not deposit the payments in Z Ready Mix's bank account. Z Ready Mix also asserted that Gloria accepted payment in the form of services to her new concrete company, Solid Rock Ready Mix, for debts owed to Z Ready Mix. Z Ready Mix alleged that Gloria breached her fiduciary duty "when she converted accounts receivables for her benefit, and for that of her company, Solid Rock Ready Mix."

         At the conclusion of trial, the jury found Noelia and Mario had not breached the settlement, but that Gloria had breached her fiduciary duty. The jury determined the amount of money to "fairly and reasonably compensate Z Ready Mix, Inc./Noelia Garcia/Mario Zermeno [sic]" for the breach was $467, 000. The trial court rendered a final judgment ordering Gloria to pay Noelia, Mario, and Z Ready Mix $467, 000 in actual damages.[4]

         II. Partial Dismissal

         "An appealing party 'may not complain of errors which do not injuriously affect him or which merely affect the rights of others.'" Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex.1982) (quoting Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973)); Branch v. Monumental Life Ins. Co., 422 S.W.3d 919, 922 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (same). Although Ricardo and Solid Rock Ready Mix were parties to this action in the trial court, they have standing to appeal only if the judgment prejudiced their own interests. See Branch, 422 S.W.3d at 922.

         The portion of the judgment under review prejudiced only Gloria's interests. The portion under review does not affect Ricardo's or Solid Rock Ready Mix's rights. Because Ricardo and Solid Rock Ready Mix do not have standing to appeal a ruling that is adverse only to Gloria's interest, we lack subject-matter jurisdiction over their appeal. See id. (dismissing appeal for lack of subject-matter jurisdiction as to appellant whose rights were not affected by ...


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