### NUMBER 13 - 1 6 - 00610 - CV 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

ANTONIO ARRIAGA AND INEZ LARA ROSALES , Appellant s ,
v. OBDULIA MARTINEZ ARRIAGA, ANTONIO MARTINEZ ARRIAGA JR., AND REYNA L UISA MARTINEZ ARRIAGA , Appellee s .

On appeal from the 197 th District Court of Willacy County , Texas.


## DISSENTING / CONCURRING M EMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa Dissenting / Concurring Memorandum Opinion by Justice Contreras I agree with the majority that the Rule 11 agreement signed by counsel for appellant Inez Lara Rosales constituted an agreed judgment , thereby effectively dismissing her2

claims. However, I disagree with the majority’s conclusion that the state ments made by appellant Antonio Arriaga in open cou r t on August 24, 2016 constituted an unequivocal and unambigu ous abandonment of his claims in trial court cause number 201 5

- CV

- 0316

- A . Therefore, I respectfully dissent in part and concur in part. As the majority correctly notes, we must determine Arriaga’s intent from the language he used, examining the surrounding circumstances, including the state of the pleadings, the allegations made, and the attitude of the parties with respect to the issue. See In re J.M. , 352 S.W.3d 824, 826 (Tex. App.

— San Antonio 2011, no pet.) ; Laredo Med. Grp. v. Jaimes , 227 S.W.3d 170, 174 (Tex. App.

— San Antonio 2007, pet. denied)

. At the August 24, 2016 hearing , the trial court called cause number cause number 201 5

- CV

0316

- A , and counsel for appellees then expressed his understanding that Arriaga would be “dismissing any claim he has in that case” (emphasis added) but did not “know the extent of that dismissal.” There was no discussion as to what counsel meant by “that case” ; but , given the circumstances, it would be entirely reasonable to interpret th at phrase

as referring to the other case involving the same parties and subject matter ( i.e., trial co urt cause number 2014

- CV

- 0 100

- A)

— even if Arriaga’s claims in that oth er case were technically no longer pending. Arriaga then explained to the court that “ I am no longer int erested in pursuing this

case ” (emphasis added). Arriaga was proceeding without representation by counsel, and his statement appears in the record only as translated from Spanish to English by Rosales’s counsel

. Arriaga did not testify under oath, he provided no further explanation regarding his intention s , and his statement was not clarified through questions posed by the other parties or by the tr ial court. There wa s no discussion of the numerous, detailed3

factual and legal allegations made by Arriaga against appellees in his first amended petition , nor was there a distinction made between the two cause numbers

. T he trial court explicitly set a f uture hearing to resolve “ both ” cases, yet in the interim, issued the order dismissing Arriaga’s claims with prejudice. It is also noteworthy that, immediately after the order of dismissal was entered, Arria ga filed a verified motion to set the dismissal a side. In that motion, he averred that there was a misunderstanding , distinguished his actions regarding the prior lawsuit , and affirmatively stat ed that he was “ still keeping his causes of action viable ” regarding trespass to try title and the wrongful taking of “ personalty. ” Arriaga requested that the court grant an evidentiary hearing regarding these allegations. He continued to assert his request for affirmative relief at the subsequent hearing on Oc tober 19, 2016. Reading Arriaga’s statement in context with the remainder of the proceedings

— in conjunction with the fact that Arriaga was not represented by counsel, put under oath, or provided with a translator f or the duration of the hearing

— I would con clude that his
statement did not constitute a n affirmative stipulation to dismiss his claims in cause number 201 5

- CV

- 0316

- A with prejudice. See In re C.C.J. , 244 S.W.3d 911, 9 21 (Tex. App.

— Dallas 2008, no pet.)

. Although cause number 201 5

- CV

- 0316

- A was the only case called by the trial court at the August 24, 2016 hearing , Arriaga’s translated reference to “this case” may have meant only trial court cause number 2014

- CV

- 0100

- A , especi ally given the fact that it was directly preceded by appellees’ counsel ’s reference to “that case.” I would conclude that Arriaga’s statement was unclear and ambiguous and, therefore , should have been disregarded by the trial court. In re C.C.J. , 244 S.W.3d at4

921 ; Laredo Med. Grp. , 227 S.W.3d at 174. For these reasons, I would sustain appellants’ first issue and reverse the trial court’s judgment dismissing Arriaga’s claims.

DORI CONTRERAS Justice Delivered and filed the 30th day of November , 2018.