Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

Need a little legal ammo? Search for caselaw on legal theories and defenses here:

Loading...

Friday, March 15, 2013

How to complain of breach of settlement agreement: motion to enforce or pleading complaining of breach?



What if there is a settlement agreement in a pending lawsuit (such as by Rule 11 agreement), and one party fails to comply with it? Does the non-breaching party have to file a new pleading alleging breach of contract, or will a motion to enforce the settlement do?

BREACH OF SETTLEMENT AGREEMENT IS BREACH OF CONTRACT
But does it require an amended pleading asserting a breach of contract claim, or even a separate law suit?

The supreme court has determined that a motion to enforce can be considered as a pleading in a breach of settlement agreement case in certain circumstances. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009) (motion to enforce sufficient as a pleading to support a judgment for breach of contract); see also Neasbitt v. Warren, 105 S.W.3d 113, 118 (Tex. App.-Fort Worth 2003, no pet.) (same).

SOURCE: HOUSTON COURT OF APPEALS – 14-12-01104-CV – 12/14/2012 (mandamus petition subsequently filed in the Texas Supreme Court)

Relators filed this petition for writ of mandamus complaining of the trial court's June 4, 2012 order. In their petition, relators assert that the dismissal order signed May 27, 2011 was a final order, and that the trial court lost plenary jurisdiction 30 days later. Therefore, they contend that the June 4, 2012 order enforcing the settlement agreement is void for want of subject matter jurisdiction. See Tex. R. Civ. P. 329b. Relators assert that the trial court did not have jurisdiction to grant the Bank's motion, and that the Bank's only remedy was to file a separate lawsuit alleging breach of the settlement agreement.

Relators correctly assert that the party seeking enforcement of the settlement agreement must pursue a separate claim for breach of contract. See Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). However, the fact that the Bank did not file a separate pleading does not necessarily divest the trial court of jurisdiction. The supreme court has determined that a motion to enforce can be considered as a pleading in a breach of settlement agreement case in certain circumstances. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009) (motion to enforce sufficient as a pleading to support a judgment for breach of contract); see also Neasbitt v. Warren, 105 S.W.3d 113, 118 (Tex. App.-Fort Worth 2003, no pet.) (same).

The issue is whether, under these circumstances, the Bank's motion to enforce can be considered a sufficient pleading in a breach of settlement agreement case. In Neasbitt, the Fort Worth Court of Appeals considered the party's motion to enforce and reviewed it to determine whether it was sufficient to constitute a pleading. 105 S.W.3d at 117-18. We cannot conduct such a review in this case because relators have not provided this court with a copy of the Bank's motion to enforce.

It is relators' responsibility to provide the court with a record supporting their petition for writ of mandamus. See Tex. R. App. P. 52.7. Because relators have not provided this court with a sufficient record showing they are entitled to relief, they have not established entitlement to the extraordinary relief of a writ of mandamus. Accordingly, we deny relators' petition for writ of mandamus. 

No comments:

Post a Comment

My Blog List