MEMORANDUM OPINION

No. 04-11-00067-CV

Pedro ARIZOLA, Sr.,

Appellant

v.

TUTLE & TUTLE TRUCKING, INC. and Robert Fergason,

Appellees

From the 81st Judicial District Court, La Salle County, Texas

Trial Court No. 10-07-00081-CVL

Honorable Stella Saxon, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: June 20, 2012

AFFIRMED

This appeal arises from negligence and wrongful death causes of action brought by V.A., 

a permanently incapacitated ward, and the estates of Manuel and Romen Arizola against 

appellees Tutle & Tutle Trucking, Inc. and Robert Fergason. The parties agreed to a settlement; 

the La Salle County District Court rendered a final judgment approving the settlement and signed 

an agreed order dismissing with prejudice the negligence and wrongful death claims. Appellant 

Pedro Arizola, Sr. appeals the district court’s judgment and order, contending the court erred (1) 
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in dismissing the claims against appellees because the dependent administrators of the estates 

were without authority to compromise the estates, and (2) in rendering a Final Agreed Judgment 

approving the settlement agreement because the appointment of the ward’s guardian of the estate 

was void. Alternatively, appellant requests a remand for new trial in the interest of justice. We 

affirm the trial court’s order and judgment.

BACKGROUND

This appeal addresses the actions of three different courts. The La Salle County District 

Court presided over V.A.’s and the estates’ negligence and wrongful death causes of action 

against Fergason and Tutle & Tutle (collectively Tutle & Tutle). The Bexar County Probate 

Court presided over the guardianship proceedings involving V.A. The Webb County Court at 

Law presided over the dependent administration of the estates of Romen and Manuel Arizola. 

Robert Fergason was driving Tutle & Tutle’s tractor trailer through La Salle County, 

when he crossed a median, struck an oncoming car, and killed Manuel Arizola, his girlfriend, 

Joanna Sandoval, and their son, Romen Arizola.1

 The accident also left Manuel’s sister, V.A.,2

permanently injured. Pedro Sr. is Manuel’s father and Romen’s grandfather. Pedro Sr. is V.A.’s 

biological father, but his parental rights to V.A. were terminated over a year prior to the accident. 

A few weeks after the accident, the Webb County Court appointed Manuel’s brother, 

Rogelio Arizola, as dependent administrator of Manuel’s estate. About a month later, the Bexar 

County Probate Court appointed David Balmer as guardian of V.A.’s estate. Several months 

 1 In separate appeals that were pending at the time this opinion was issued, Pedro Sr. challenged the Webb County 

Court’s orders regarding administration of Manuel’s and Romen’s estates. See In re Arizola, No. 04-12-00062-CV 

(regarding Manuel); In re Arizola, No. 04-12-00063-CV (regarding Romen). 2 In another appeal, Pedro Sr. challenged the Bexar County Probate Court’s order appointing V.A.’s guardian of the 

estate. See In re Guardianship of V.A., No. 04-11-00058-CV, 2012 WL 1708029 (Tex. App.—San Antonio May 16, 

2012, no pet. h.).
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after the accident, the Webb County Court appointed Dora Sandoval, Romen’s maternal 

grandmother, as dependent administrator of Romen’s estate. 

Romen’s estate, Manuel’s estate, V.A., and others sued Tutle & Tutle in La Salle County 

District Court. Before trial, Rogelio (as administrator of Manuel’s estate), Sandoval (as 

administrator of Romen’s estate), and Balmer (as guardian of V.A.’s estate) entered into 

settlement negotiations with Tutle & Tutle. On November 9, 2010, the Bexar County Probate 

Court signed an order approving the proposed settlement between V.A. and Tutle & Tutle. On 

December 15, 2010, the La Salle County District Court signed (1) a final judgment approving the 

settlement agreement, and (2) an order dismissing with prejudice the claims of the estates and the 

ward against Tutle & Tutle. 

It is undisputed that the administrators of Manuel’s and Romen’s estates failed to obtain 

the Webb County Court’s approval of the settlement agreement prior to the La Salle County 

District Court’s final judgment and the court’s dismissal of the claims against Tutle & Tutle. 

The Webb County Court approved and ratified the settlement on January 20, 2012. 

Pedro Sr. appeals the La Salle County District Court’s order dismissing the estates’ 

claims against Tutle & Tutle and the court’s final judgment approving the settlement.

APPROVAL AND RATIFICATION OF THE SETTLEMENT AGREEMENT

Pedro Sr. contends that because the administrators of Manuel’s and Romen’s estates did 

not have prior authorization from the Webb County Court to enter into a settlement agreement 

with Tutle & Tutle, the La Salle County District Court erroneously granted an order dismissing 

the estates’ claims against Tutle & Tutle.
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A. Standard of Review

When a party seeks to set aside a settlement agreement, a reviewing court generally 

reviews the trial court’s decision to approve a settlement for an abuse of discretion. See Hall v. 

Pedernales Elec. Coop., Inc., 278 S.W.3d 536, 539, 549 (Tex. App.—Austin 2009, no pet.)

(quoting Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. Unit A 1982)); In re Guardianship 

of Boatsman, 266 S.W.3d 80, 88 (Tex. App.—Fort Worth 2008, no pet.); Crouch v. Tenneco, 

Inc., 853 S.W.2d 643, 646 (Tex. App.—Waco 1993, writ denied).

B. Texas Probate Code Section 234

The Probate Code requires a dependent administrator to file a written application and 

obtain the court’s permission to “[m]ake compromises or settlements in relation to property or 

claims in dispute or litigation.” TEX. PROB. CODE ANN. § 234(a) (West 2003); San Antonio Sav. 

Ass’n v. Palmer, 780 S.W.2d 803, 808 (Tex. App.—San Antonio 1989, writ denied); see Catlett 

v. Catlett, 630 S.W.2d 478, 482 (Tex. App.—Fort Worth 1982, writ ref’d n.r.e.). As dependent 

administrators, Rogelio and Sandoval were required to obtain the Webb County Court’s approval 

to enter into a settlement agreement that compromised the estates of Manuel and Romen. See

TEX. PROB. CODE ANN. § 234(a)(4). Thus, the controlling question in this case is whether the 

Webb County Court’s approval must have preceded the estates’ agreement to settle, or whether 

the Webb County Court’s ex post facto approval that ratified the agreement was proper. 

C. The Probate Court’s Approval and Ratification

In Catlett v. Catlett, the plaintiff and the defendant announced in open court that they 

had entered into a settlement agreement. Catlett, 630 S.W.2d at 480–81. Based on the 

announcements, the district court “pronounced the settlement to be the judgment of th[e] court.” 

Id. at 481. The dependent administrator, who was the plaintiff in the lawsuit, failed to get prior 
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approval from the probate court to compromise the estate by entering into the settlement 

agreement. Id. About six months after the district court’s pronouncement, the probate court 

“approved, confirmed and ratified” the settlement agreement. Id. After the probate court 

approved the settlement, the dependent administrator sought to withdraw his consent to the 

settlement. Id. at 482. On appeal, he argued that he lacked the power to enter into the settlement 

agreement because he failed to get prior approval of the agreement by the probate court. Id. at 

482. The appellate court held “that an administrator’s unauthorized compromise and settlement 

of litigation in open court is an act that is voidable, but not void.” Id. at 483; cf. Hughes v. Hess, 

141 Tex. 511, 513, 517, 172 S.W.2d 301, 302, 304–05 (1943) (refusing to declare a settlement

agreement void where the probate court never “formally approved” of the agreement, but the 

agreement “had at least the tacit approval of the court”). The court further held that any error in 

failing to obtain prior approval from the probate court before entering into a settlement 

agreement “was cured by the probate court’s subsequent order ratifying the settlement.” Catlett, 

630 S.W.2d at 483.

It is undisputed that neither dependent administrator obtained the Webb County Court’s 

approval to enter into a settlement agreement with Tutle & Tutle prior to execution of the 

agreement. However, the Webb County Court subsequently heard the estates’ Application[s] for 

Approval/Ratification of Settlement. After determining the agreement would be in the best 

interests of the estates, the Webb County Court approved and ratified the settlement agreement. 

We therefore conclude that any error in the La Salle District Court’s dismissal of the estates’ 

claims against Tutle & Tutle was cured by the Webb County Court’s ratification of the 

settlement agreement. See id.; cf. Hughes, 172 S.W.2d at 304–05. 
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COLLATERAL ATTACK

Pedro Sr. also collaterally attacks the Bexar County Probate Court’s appointment of 

David Balmer as V.A.’s guardian of the estate. In a separate restricted appeal, Pedro Sr. made 

the same arguments he makes here challenging the probate court’s jurisdiction. See generally In 

re Guardianship of V.A., No. 04-11-00058-CV, 2012 WL 1708029 (Tex. App.—San Antonio 

May 16, 2012, no pet. h.). There, we concluded that Pedro Sr. failed to show error apparent on 

the face of the record; therefore, we affirmed the probate court’s order appointing Balmer as 

guardian of V.A.’s estate. Id. at *6. Accordingly, we will not reverse the district court’s final 

judgment based on Pedro Sr.’s collateral attack of the Bexar County Probate Court’s jurisdiction 

over the guardianship proceedings of V.A.

NEW TRIAL IN THE INTERESTS OF JUSTICE

Alternatively, Pedro Sr. requests this court to reverse the La Salle County District Court’s 

judgment and remand the case for a new trial in the interest of justice. He contends that the 

underlying tort case, the dependent administration, and the guardianship proceedings were 

procured through barratry and that the tort case was settled for unconscionable sums. In support 

of his contention, Pedro Sr. cites a single case, Champion International Corp. v. Twelfth Court of 

Appeals, 762 S.W.2d 898, 899 (Tex. 1988) (orig. proceeding) (per curiam). Champion 

International is distinguishable. There, the court addressed a writ of mandamus where the 

applicant sought relief from a trial court’s grant of a new trial. Id. The trial court granted a 

mistrial and a new trial in the interest of justice because a judgment on the verdict could not be 

rendered with certainty based on the jury’s answers to questions in the jury charge. Id. Here, we 

are not dealing with a mandamus, a trial court’s grant of a new trial, or uncertain jury answers. 
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Compare id. Additionally, appellant cites no evidence in the appellate record3 to support his 

claim that the interest of justice requires a remand for a new trial. See TEX. R. APP. P. 38.1 (“The 

brief must contain a clear and concise argument for the contentions made, with appropriate 

citations to authorities and to the record.”). Accordingly, we decline to reverse the La Salle 

County District Court’s judgment.

CONCLUSION

The dependent administrators’ unauthorized compromise and settlement of litigation was 

cured by the Webb County Court’s ex post facto approval of the settlement agreement. Further, 

we previously held Pedro Sr. failed to show the Bexar County Probate Court lacked jurisdiction 

to appoint the guardian of V.A.’s estate. Finally, the interest of justice does not require remand 

for a new trial. Accordingly, we affirm the La Salle County District Court’s Final Agreed 

Judgment and the court’s order dismissing V.A.’s and the estates’ claims against the appellees.

Rebecca Simmons, Justice

 3 In support of his allegation of barratry, Pedro Sr. cites to the affidavit of his son, Pedro Jr. The affidavit is 

contained in the appendix of Pedro Sr.’s appellate brief. We will not consider documents attached as appendices to 

an appellate brief that were not part of the appellate record. See Brown v. McGonagill, 940 S.W.2d 178, 179 (Tex. 

App.—San Antonio 1996, no writ).