In re Doggett

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen, Chief Justice.

         John Doggett, M.D., independent executor of the Estate of Jerry Lloyd Doggett, filed this original proceeding seeking a writ of mandamus directing Respondent to vacate a 2019 order.^[1] We conditionally grant the writ.

         Background

         In November 2004, Marilyn Doggett Stasila, the Real Party in Interest, filed an application to probate the will of Elwyn O. Doggett, her father, and issuance of letters testamentary. The will was admitted to probate and Marilyn was appointed independent executor. In September 2014, John, Marilyn's nephew and the executor of his father Jerry's estate, filed a petition for declaratory judgment on grounds that Elwyn's will needed to be construed with the will and codicils of Elwyn's wife, Mary Leone Langdon Doggett. Jerry is a beneficiary under the wills of Elwyn and Mary, his parents. John also filed an application to remove Marilyn as independent executor for gross misconduct or gross mismanagement, i.e., failure to pay property taxes that led to a tax lawsuit. He alleged that Marilyn failed to furnish a requested accounting. In an amended application, John also alleged that Marilyn failed to fund the testamentary trust under Elwyn's will.

         The parties reached a mediated settlement agreement (MSA) in March 2015, which awarded Marilyn certain real property, a parcel of which was awarded to John. The MSA provided for a survey of John's parcel and set forth certain boundary line requirements, and required that the parties execute special warranty deeds upon the survey's completion and within fifteen days from presentment. The MSA required the parties to use Thompson & Associates Surveyors. Marilyn subsequently objected to the "Thompson Survey" and hired James Crawford with RMC Surveying to conduct another survey. In December 2015, Marilyn filed a motion for judgment on mediated settlement agreement and application for injunctive relief to enjoin binding arbitration. The motion explained that a post-mediation dispute arose regarding the "Thompson Survey." At a hearing on January 7, 2016, Marilyn's counsel, Chris Day, told Respondent that he did not believe there were any contested issues because the parties "intend to accept what we call the Crawford survey." John's counsel responded, "[W]e've agreed to accept that survey [the Crawford Survey] as the survey that is - controls in the MSA."

         Crawford signed a metes and bounds description on January 27. Marilyn filed an amended motion for judgment on mediated settlement agreement on November 4. She alleged that despite agreeing that the Crawford Survey would be used, John objected to the proposed allocation line in the survey plat and requested that it be changed. On December 2, Respondent signed a judgment on the MSA. The following paragraph of the judgment is marked out:

THE COURT FINDS that on January 7, 2016, the parties announced in open court that they agreed not to use the survey and field notes prepared by Thompson & Associates Surveyors, as originally required per the MSA, and instead use the survey plat and field notes prepared by James Crawford of RMC Surveying dated October 8, 2015. Attached as Exhibit C, incorporated herein and made a part hereof, is a true and correct copy of the agreed-upon survey plat prepared by James Crawford of RMC Surveying dated October 8, 2015. Respondent also marked out language ordering the parties to each pay half of the RMC surveying fees.

         On April 6, 2018, Marilyn filed a motion for enforcement and contempt and, alternatively, breach of contract under a Rule 11 agreement made in open court. She alleged that Respondent had continuing, exclusive jurisdiction. According to Marilyn, John objected to the allocation line of the property to be partitioned. Attached to her motion is a letter, dated January 30, 2018, from Monty Shank, the general manager for the Upper Neches River Municipal Water Authority to John's attorney. The letter states that the Authority is in receipt of John's counsel's letter. Shanks further states that the Authority wanted the parties to reach an agreement as to the waterfront allocation line, but it appears the parties could not agree. Accordingly, the Authority established the allocation line "to be the red dash line on the attached Ground Condition Detail Sketch, dated March 25, 2015 (Thompson & Associates, Tyler, TX)." Marilyn contended that John violated the MSA, the Rule 11 agreement, and the judgment by rejecting the agreed upon survey and seeking to have the boundary line moved. She further asserted breach of contract regarding the agreement in open court and the MSA, for which she sought specific performance.

         At a hearing on Marilyn's motion, Day testified that John agreed to use the Crawford Survey. He did not recall any reservations, exceptions, or objections to using the survey. He testified that John accepted the survey "as the controlling survey for purposes of the MSA." He did not believe that the MSA referenced an allocation line. The allocation line became an issue after the January 2016 hearing and was discussed in his first amended motion, which Respondent heard on December 2, 2016.

         Marilyn testified that she objected to the entire Thompson Survey, in part because of the allocation line. At the end of the January 2016 hearing, she believed that the entire Crawford Survey was accepted because John did not object to any line of it. This included the survey plat with a proposed allocation line. She and Day both testified that Respondent's 2016 judgment did not include a finding that the allocation line in the Thompson Survey was correct. Marilyn stated that the judgment reflects general acceptance of the Crawford Survey and contains no formal ruling that the Crawford Survey is not controlling. She recalled a meeting during which Shank stated that the Authority could deny access to the water front for both parties absent an agreement. She took issue with Shanks's statement that there was no agreement. She also learned that the Authority received a copy of the Thompson Survey after the January 2016 hearing. Because of John's attorney's letter to Shank, representing the absence of an agreement, and use of the Thompson Survey, Marilyn believed John formally breached their agreement.

         John testified that he did not recall any agreement on the lake front allocation line. He explained that the Thompson Survey stated a proposed agreed lake allocation line, but Marilyn objected to the Thompson Survey. He did not recall any specific objection or written objection to the allocation line itself. John testified that he instructed his counsel to agree to the Crawford Survey, but not the allocation line. He denied either intending to agree to the Crawford Survey's allocation line at the January 2016 hearing or actually agreeing to that allocation line. He acknowledged that the Crawford Survey was accepted for purposes of governing the MSA. He also acknowledged that his attorney sent a letter to Shank on January 24, 2018, which indicated that no agreement existed as to the allocation line. He denied bypassing the agreement to have the Authority set the line he wanted.

         Craig Adams, one of John's attorneys, testified that the MSA never mentioned a lake allocation line, the lake allocation line was never discussed until after the January 2016 hearing, and no problem with the Thompson Survey's lake allocation line was ever expressed to him. Adams maintained that using the Crawford Survey for purposes of preparing the deeds was unrelated to the lake allocation line. He acknowledged that the allocation line in the Thompson Survey differs from that in the Crawford Survey. He testified that the MSA states, "The western boundary of the property that borders Lake Palestine shall be divided equally with each party getting approximately 129 feet of lake frontage." According to Adams, both surveys do so. Kenneth Raney, another of John's attorneys, stated that ...