What is the remedy for breach of a Rule 11 settlement agreement?

Generally, the remedy for a breach of a Rule 11 agreement is a breach-of-contract claim filed by a party. See In re Build by Owner, LLC, No. 01- 11-00513-CV, 2011 WL 4612790, at *7 (Tex. App.—Houston [1st Dist.] Oct. 6, 2011, no pet.) (mem. op.) (holding Rule 11 agreement enforced by breach-of contract claim); see also Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995) (holding courts construe Rule 11 agreements as any other contract).

SOURCE: HOUSTON COURT OF APPEALS - 01-17-00364-CV - 5/14/2019

Texas Rule of Civil Procedure 11 provides that,

Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

TEX. R. CIV. P. 11. Rule 11 agreements "are contracts relating to litigation." Trudy's Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex. App.-Austin 2010, no pet.). "The purpose of Rule 11 is to ensure that agreements of counsel affecting the interests of their clients are not left to the fallibility of human recollection and that the agreements themselves do not become sources of controversy." ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).  

Trial courts have a ministerial duty to enforce valid Rule 11 agreements. Id.

IN RE BUILD BY OWNER, LLC, Relator.

No. 01-11-00513-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued October 6, 2011.

Panel consists of Justices Keyes, Higley, and Massengale.

MEMORANDUM OPINION

EVELYN V. KEYES, Justice.

Relator, Build by Owner, LLC ("Build by Owner"), filed a petition for writ of mandamus seeking to compel the trial court to vacate its order granting real parties in interest John-Baptist and Ellen Sekumade's motion to transfer venue from Galveston County to Harris County.^[1] Build by Owner contends that the trial court abused its discretion in granting the motion because, at a prior hearing before the original trial judge, Build by Owner and Sekumade allegedly entered into a Rule 11 agreement providing that venue would remain in Galveston County because Sekumade sought affirmative relief from the Galveston County trial court on a counterclaim.

We deny the petition for writ of mandamus.

Background

In 2008, Sekumade and Build by Owner entered into a contract for the construction of a house. On June 22, 2009, Build by Owner sued Sekumade for breach of contract, alleging that Sekumade "failed to provide payment for [Build by Owner's] work and reimbursement of labor and materials provided in the construction of [Sekumade's] residence." In his original answer, Sekumade moved to transfer venue from Galveston County to either Brazoria County—where Sekumade resided—or Harris County—where Sekumade signed the contract at issue—and also asserted a counterclaim for breach of contract.

During the course of the litigation, Sekumade served Build by Owner with discovery requests, including requests for admissions, requests for production of documents, and interrogatories. Sekumade also moved for summary judgment on his breach of contract counterclaim, contending, among other things, that Build by Owner failed to either fully or substantially perform its contractual obligations. He did not make this motion subject to his motion to transfer venue. Sekumade later amended his pleadings to drop his breach of contract claim and to assert a claim for violation of the Deceptive Trade Practices Act ("DTPA").

On April 22, 2010, after a lengthy discovery battle, the trial court heard argument on Build by Owner's motion for discovery sanctions and motion to strike Sekumade's pleadings. At the beginning of the hearing, the trial court asked the parties which motion they wanted to address first. Sekumade stated, without previous reference to his motion to transfer venue:

If I may, we filed a Motion to Transfer Venue. We would probably pass that motion because we have filed a counter-suit based on a DTPA claim. So, that probably will be less the Court has to consider.

After the parties and the trial court discussed Build by Owner's discovery-related motions, the trial court asked if there were any other matters to consider. Sekumade said, "As I stated earlier, Your Honor, we had a Motion to Transfer Venue. Because we had filed a DTPA claim, we're going to pass that motion."

Shortly thereafter, the parties and the trial court had the following exchange:

[Build by Owner]: Second of all, based on Counsel's statement about the motion to transfer, it appears that we've entered into a Rule 11 Agreement in open court on the record that the case is going to be here in Galveston County as the county of mutually agreed venue and jurisdiction before this Honorable Court. So, then, rather than [d]efense counsel saying we're passing the hearing, I think what he said, based on his DTPA counterclaim, is that he's agreed and has purposefully availed himself that we have a Rule 11 agreement and I would like that clarified.

The Court: Mr. Sekumade, that's the Court's interpretation of that also. Is that incorrect?

Sekumade: In reference to the—

The Court: To the Motion to Transfer Venue, you're essentially waiving that. If you say that "I want the Court to rule on my DTPA case," you're availing this Court of this jurisdiction.

Sekumade: That's correct, Your Honor. That's why I stated—

The Court: So, it is of record, then.

[Build by Owner]: Then that's mutually agreeable.

The next day, the trial court issued an order granting Build by Owner's motion to compel. The court ordered Sekumade to pay $3,000 in attorney's fees to Build by Owner's counsel within thirty days and to fully comply with all outstanding discovery requests within forty-five days or the court would require payment of an additional $10,000 in discovery sanctions and completion of forty hours of community service, and it would strike Sekumade's pleadings. This order did not mention Sekumade's motion to transfer venue.

Approximately one month later, Sekumade again amended his answer, moved to transfer venue to Brazoria or Harris County, and asserted a counterclaim for breach of contract. In response to this motion to transfer venue, Build by Owner argued that, at the April 22, 2010 hearing, it and Sekumade entered into a Rule 11 agreement providing that venue would remain in Galveston County. In reply, Sekumade argued that proper venue could not be waived pursuant to Civil Practice and Remedies Code section 15.035, the venue provision that governed this dispute, and that Build by Owner never presented any evidence demonstrating that venue was proper in Galveston County or that venue was improper in Brazoria or Harris County. Sekumade also denied that the parties ever entered into a Rule 11 agreement regarding venue at the April 22, 2010 hearing. The trial court explicitly denied Sekumade's motion to transfer venue on August 2, 2010.

After Sekumade failed to pay Build by Owner's counsel within the allotted thirty days after the April 23, 2010 order, Build by Owner moved for enforcement of the order and for the imposition of sanctions on Sekumade for his failure to comply. At a hearing on September 2, 2010, the trial court granted Build by Owner's motion to enforce and ordered Sekumade to pay $13,000 to Build by Owner's counsel by 5:00 p.m. on September 10, 2010, ordered Sekumade to complete forty hours of community service, and struck Sekumade's pleadings.

Sekumade subsequently filed a petition for writ of mandamus in this Court.^[2] In addition to complaining about Judge Ellisor's discovery rulings and his actions allegedly preventing Sekumade from filing a motion to compel arbitration, Sekumade also complained that, by making a statement at the April 22, 2010 hearing that Sekumade waived his motion to transfer venue because he filed a counterclaim, Judge Ellisor "stifled" and "dissuaded" him from pursuing his motion and that Judge Ellisor erroneously denied his motion to transfer venue. In its response to Sekumade's petition for writ of mandamus, Build by Owner informed this Court that Sekumade had filed a civil rights suit against Judge Ellisor and his court coordinator in the Southern District of Texas. As a result, the Administrative Judge of Galveston County transferred the underlying lawsuit, Build by Owner, LLC v. John-Baptist Sekumade and Ellen Carol Sekumade, No. 09-CV-1019, from the 122nd District Court of Galveston County to the 56th District Court of Galveston County. The Administrative Judge then transferred the underlying case back to the 122nd District Court, but it appointed another judge, the Honorable Hugo Touchy, to hear the dispute.

On March 10, 2011, this Court issued an order abating Sekumade's petition for writ of mandamus pursuant to Texas Rule of Appellate Procedure 7.2(b) to allow Judge Touchy to reconsider Judge Ellisor's rulings on Sekumade's motion to transfer venue and Build by Owner's motion to compel and motion to strike Sekumade's pleadings. See TEX. R. APP. P. 7.2(b); In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008) ("Mandamus will not issue against a new judge for what a former one did. . . . As a new judge now presides over the trial court, [Texas Rule of Appellate Procedure] 7.2 requires abatement of this original proceeding to allow the successor to reconsider the order.").

At the hearing before Judge Touchy, Build by Owner informed the court of Sekumade's two statements from the April 22, 2010 hearing informing Judge Ellisor that he was "passing" his motion to transfer venue because of his DTPA counterclaim and of the Rule 11 agreement discussion. Sekumade argued:

At no time was I party to any Rule 11 Agreement. The record does not reflect it. All I said was I will pass the motion because the Court was telling me I had forfeited my rights to waive venue. So, as [Build by Owner's counsel] properly read, I passed my motion. I did not waive my right. [Build by Owner's counsel] waived my right for me. He acted as my counsel and came up with a Rule 11 Agreement between himself and the Court and that's how we got to this Rule 11 argument.

At the close of the hearing, the trial court granted Sekumade's motion to transfer venue to Harris County, reasoning that "[Sekumade] never voluntarily waived his plea to transfer the venue willfully."^[3]

Standard of Review

Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam); In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) ("We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion and the relator lacks an adequate appellate remedy."). A trial court commits a clear abuse of discretion when its action is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam); In re Stern, 321 S.W.3d 828, 837 (Tex. App.-Houston [1st Dist.] 2010, no pet.). A trial court has no discretion in determining what the law is or in applying the law to the particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004).

Motion to Transfer Venue

Although mandamus review is available to enforce the Civil Practice and Remedies Code's mandatory venue provisions, a party generally may not seek mandamus review of a permissive venue determination.^[4] See TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (Vernon 2002) ("A party may apply for a writ of mandamus with an appellate court to enforce the mandatory venue provisions of [Chapter 15.]"); In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 215-16 (Tex. 1999) ("We reiterated in early 1995 that 2017Texas law is quite clear that venue determinations are not reviewable by mandamus.' But a few months later, the Legislature enacted section 15.0642 authorizing parties to seek mandamus 2017to enforce the mandatory venue provisions,' along with a timetable for seeking mandamus.") (quoting Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex. 1995) (per curiam)).

The Texas Supreme Court has held that "venue determinations generally are incidental trial rulings that are correctable on appeal." Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 441 (Tex. 1996) (per curiam)(citing Montalvo v. Fourth Court of Appeals, 917 S.W.2d 1, 2 (Tex. 1995) (per curiam)); see In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) ("[V]enue determinations as a rule are not reviewable by mandamus."); see also In re Team Rocket, 256 S.W.3d at 261 ("The only remedy afforded by the Legislature when a party loses a venue hearing is to proceed with trial in the transferee county and appeal any judgment from that court on the basis of alleged error in the venue ruling."). "[T]he mere fact that a trial court's erroneous order will result in an eventual reversal on appeal does not mean that a trial will be a 2017waste of judicial resources' . . . . To hold otherwise would mean that virtually any reversible error by a trial court would be a proper subject for mandamus review." In re City of Irving, 45 S.W.3d 777, 779 (Tex. App.-Texarkana 2001, orig. proceeding).

The Texas Supreme Court has also held, however, that mandamus review of permissive venue determinations is appropriate in "extraordinary circumstances." In re Team Rocket, 256 S.W.3d at 262; see also In re Masonite Corp., 997 S.W.2d at 197 ("But on rare occasions an appellate remedy, generally adequate, may become inadequate because the circumstances are exceptional. Specifically, a trial court's action can be 2017with such disregard for guiding principles of law that the harm . . . becomes irreparable.'") (quoting Nat'l Indus. Sand Ass'n v. Gibson,897 S.W.2d 769, 771 (Tex. 1995)); Bridgestone/Firestone, 929 S.W.2d at 441(noting that court had previously granted mandamus relief when trial court failed to afford venue movant reasonable opportunity to supplement venue record). The court has "granted mandamus relief in the context of Rule 87 venue rulings where . . . the trial court made no effort to follow the rule." In re Team Rocket, 256 S.W.3d at 262; see also Woods v. Alvarez, 925 S.W.2d 119, 122 (Tex. App.-Corpus Christi 1996) (noting that mandamus relief is available when "the trial court fails to follow the procedural requirements of Texas Rule of Civil Procedure 87 concerning each party's right to sufficient notice of the venue hearing"), overruled on other grounds, Bridgestone/Firestone, 929 S.W.2d at 442; Cone v. Gregory, 814 S.W.2d 413, 414-15 (Tex. App.-Houston [1st Dist.] 1991, orig. proceeding) (listing as exceptions to general rule of no mandamus relief for venue determinations: (1) trial court has mandatory, ministerial duty to transfer, (2) trial court issues a void order on venue, and (3) trial court violates mandatory notice procedure).

In Team Rocket, for example, the plaintiffs originally filed suit in Harris County for, among other things, negligence arising out of a fatal plane accident that occurred in Fort Bend County. 256 S.W.3d at 258. Team Rocket moved to transfer venue to Williamson County, its principal place of business, and the trial court granted the motion. Id. at 259. The plaintiffs nonsuited and then immediately filed an identical suit in Fort Bend County. Id. The Fort Bend County trial court denied Team Rocket's motion to transfer venue to Williamson County. Id. The Texas Supreme Court found that "extraordinary circumstances" for granting mandamus review of a non-mandatory venue determination existed, and reasoned that when "a trial court improperly applied the venue statute and issued a ruling that permits a plaintiff to abuse the legal system by refiling his case in county after county, which would inevitably result in considerable expense to taxpayers and defendants, requiring defendants to proceed to trial in the wrong county is not an adequate remedy." Id.at 262; see also In re Masonite Corp., 997 S.W.2d at 198 (finding "exceptional circumstances" present when trial court denied motion to transfer venue to defendant's requested county and "on its own motion" severed claims into sixteen different cases and transferred cases to counties of plaintiffs' residence).

Build by Owner contends that such exceptional circumstances justifying mandamus relief exist in this case because Judge Touchy, in refusing to enforce the parties' Rule 11 agreement on venue, abused his discretion by incorrectly applying Texas Rule of Civil Procedure 87(3)(b), which provides that the trial court shall determine a venue motion "on the basis of the pleadings [and] any stipulations made by and between the parties. . . ." See TEX. R. CIV. P. 87(3)(b).

Texas Rule of Civil Procedure 11 provides that,

Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

TEX. R. CIV. P. 11. Rule 11 agreements "are contracts relating to litigation." Trudy's Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex. App.-Austin 2010, no pet.). "The purpose of Rule 11 is to ensure that agreements of counsel affecting the interests of their clients are not left to the fallibility of human recollection and that the agreements themselves do not become sources of controversy." ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). Trial courts have a ministerial duty to enforce valid Rule 11 agreements. Id. (citing EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996) and Fed. Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 690 (Tex. App.-Houston [1st Dist.] 1995, writ denied)).

"[I]t is not sufficient that a party's consent to a Rule 11 agreement may have been given at one time; consent must exist at the time that judgment is rendered." Id.; see also Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995) ("[C]onsent must exist at the very moment the court undertakes to make the agreement the judgment of the court."). A party may revoke his consent to a Rule 11 agreement at any time before rendition of judgment. ExxonMobil, 174 S.W.3d at 309. "A court is not precluded from enforcing a Rule 11 agreement once it has been repudiated by one of the parties, but an action to enforce a Rule 11 agreement to which consent has been withdrawn must be based on proper pleading and proof." Id.; see also Padilla, 907 S.W.2d at 462 ("An action to enforce a settlement agreement [pursuant to Rule 11], where consent is withdrawn, must be based on proper pleading and proof."). If a party revokes his consent to a Rule 11 agreement, the opposing party may attempt to enforce the Rule 11 agreement under contract law. ExxonMobil, 174 S.W.3d at 309; see Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. App.-Dallas 2006, pet. denied) ("[W]here consent [to a Rule 11 agreement] has been withdrawn, a court may not render judgment on the settlement agreement, but may enforce it only as a written contract. Accordingly, the party seeking enforcement must pursue a separate breach of contract claim which is subject to the normal rules of pleading and proof."); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (per curiam) (holding same).

If fact issues are raised or a party has withdrawn consent, "the only method available for enforcing a [Rule 11] agreement is through summary judgment or trial." Staley, 188 S.W.3d at 336. The non-breaching party should raise its claim to enforce the disputed agreement "through an amended pleading or counterclaim asserting breach of contract." Id.; see also Padilla, 907 S.W.2d at 462 (approving of Padilla's counterclaim seeking enforcement of Rule 11 agreement); Baylor College of Med. v. Camberg, 247 S.W.3d 342, 348 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) ("[N]othing in the record indicates that Baylor employed a proper procedure for enforcing a Rule 11 settlement agreement once the parties proffered differing interpretations of the agreement. For example, Baylor did not file a motion for summary judgment seeking interpretation of the Rule 11 agreement."). "To allow enforcement of a disputed [Rule 11] agreement simply on motion and hearing would deprive a party of the right to be confronted by appropriate pleadings, assert defenses, conduct discovery, and submit contested fact issues to a judge or jury." Staley, 188 S.W.3d at 336-37.

Build by Owner contends that it and Sekumade entered into an enforceable Rule 11 agreement at the April 22, 2010 hearing before Judge Ellisor that venue would remain in Galveston County. Sekumade contends that a Rule 11 agreement never existed between the parties and that, if one did so exist, he revoked his consent by filing a second motion to transfer venue and informing Judge Ellisor that he did not consent to venue in Galveston County.

Even if Build by Owner and Sekumade entered into a Rule 11 agreement at the April 22, 2010 hearing agreeing that venue was proper in Galveston County, Sekumade revoked his consent to this agreement before either Judge Ellisor or Judge Touchy ruled on his venue motion. The trial court issued an order on April 23, 2010, solely relating to discovery sanctions against Sekumade; the order did not reference Sekumade's motion to transfer venue or any alleged Rule 11 agreement on venue. On May 28, 2010, Sekumade filed a second motion to transfer venue, seeking to transfer the case to Brazoria or Harris County. After Build by Owner responded to the venue motion and argued that the trial court should deny the motion based on the purported Rule 11 agreement, Sekumade argued, among other things, that he did not enter into a Rule 11 agreement on venue at the April 22, 2010 hearing. Sekumade repeatedly argued that venue was proper in Brazoria or Harris County, not Galveston County.

Judge Ellisor denied Sekumade's venue motion on August 2, 2010. Sekumade then sought mandamus relief from this ruling, among other rulings, in this Court. After the Administrative Judge of Galveston County assigned Judge Touchy to hear the underlying dispute, we abated Sekumade's mandamus petition for Judge Touchy to reconsider Judge Ellisor's rulings on the discovery sanctions issue and Sekumade's venue motion. See TEX. R. APP. P. 7.2(b). Judge Touchy ultimately agreed that Sekumade did not "voluntarily waive[] his plea to transfer the venue willfully" and transferred venue to Harris County on April 11, 2011.

Build by Owner never filed an amended pleading, counterclaim for breach of contract, or motion to enforce the Rule 11 agreement.

Because Sekumade revoked any consent to the purported Rule 11 agreement before Judge Touchy ruled on his motion to transfer venue, consent did not exist at the time the trial court decided the issue, and, therefore, the court could not have rendered an agreed decision on venue. See Padilla, 907 S.W.2d at 461 (holding that, for agreed judgment, "consent must exist at the very moment the court undertakes to make the agreement the judgment of the court"); ExxonMobil, 174 S.W.3d at 309 ("[I]t is not sufficient that a party's consent to a Rule 11 agreement may have been given at one time; consent must exist at the time that judgment is rendered."). Although a trial court may not render an agreed judgment when one party has withdrawn his consent to a Rule 11 agreement, the trial court may still enforce the agreement as a binding contract, but only upon "proper pleading and proof." See Padilla, 907 S.W.2d at 462; ExxonMobil, 174 S.W.3d at 309. The party seeking to enforce the Rule 11 agreement must file a separate breach of contract claim, and the alleged breaching party must be afforded the opportunity to assert defenses, conduct discovery, and submit contested fact issues, if any, to a judge or jury. See Staley, 188 S.W.3d at 336-37; see also ExxonMobil, 174 S.W.3d at 309("In such a case [when a party withdraws consent to a Rule 11 agreement], a party may seek to enforce the agreement under contract law."). Because Build by Owner never attempted to enforce the Rule 11 agreement by pursuing a separate breach of contract claim, we conclude that the trial court did not abuse its discretion in refusing to enforce the disputed agreement. See Camberg, 247 S.W.3d at 348(holding that party seeking enforcement of Rule 11 agreement did not employ "proper procedure" for enforcing when parties offered different interpretations of agreement).

We hold, therefore, that Build by Owner has not established that this case involves the "extraordinary circumstances" necessary to depart from the general rule that permissive venue determinations are not reviewable by mandamus. See In re Team Rocket, 256 S.W.3d at 262.

Build by Owner further contends that mandamus review of Judge Touchy's venue ruling is appropriate because "[t]his Court is already exercising its mandamus jurisdiction based on [Sekumade's] petition challenging Judge Ellisor's rulings on his motion for sanctions and motion for transfer of venue" and cites the Texas Supreme Court's decision in General Motors Corp. v. Gayle, 951 S.W.2d 469 (Tex. 1997), for the proposition that an appellate court may review an issue on mandamus that may ordinarily be reviewable only on appeal—such as an incidental trial ruling—if the court is already addressing another issue for which mandamus review is appropriate. In Gayle, the court noted that two of the issues presented—denial of a jury trial and denial of a motion for continuance—were generally not appropriate for mandamus review because parties had an adequate appellate remedy, but it held that that particular case presented "special circumstances" because mandamus review was appropriate for another issue that had been presented to the court. Id. at 477. The court concluded that "the interests of judicial economy dictate that [it] should also remedy the trial court's denial of the right of jury trial by mandamus." Id.

This case, however, does not present such special circumstances. Judge Touchy's rulings on Build by Owner's discovery motions and Sekumade's venue motion vacated Judge Ellisor's initial rulings. Thus, Sekumade's original petition for writ of mandamus is moot. See In re Baylor Med. Ctr., 280 S.W.3d at 228. Because the parties have presented no other issue that is proper for us to review by mandamus, we will not exercise our mandamus jurisdiction to review Judge Touchy's venue ruling.^[5]

Conclusion

We deny the petition for writ of mandamus.

[1] The Honorable Hugo Touchy, Judge of the 122nd District Court of Galveston County, Texas, Respondent. The underlying lawsuit is Build by Owner, LLC v. John-Baptist Sekumade and Ellen Carol Sekumade, No. 09-CV-1019 (122nd Dist. Ct., Galveston County, Tex.).

[2] See In re John-Baptist Sekumade and Ellen Carol Sekumade, No. 01-10-00817-CV (Tex. App.-Houston [1st Dist.] Oct. 6, 2011, orig. proceeding) (mem. op.).

[3] Judge Touchy also granted Build by Owner's motion to compel and ruled that Sekumade had twenty days to comply with all written discovery requests or the court would strike his pleadings. The trial court awarded Build by Owner's counsel $4,000 in attorney's fees to be included in the final judgment. Neither Build by Owner nor Sekumade complain of Judge Touchy's discovery rulings.

[4] The venue statute applicable here, Civil Practice and Remedies Code section 15.035(b), is a permissive venue provision. TEX. CIV. PRAC. & REM. CODE ANN. § 15.035(b) (Vernon 2002). This statute provides that, "[i]n an action founded on a contractual obligation of the defendant to pay money arising out of or based on a consumer transaction for goods [or] services . . . intended primarily for personal, family, household, or agricultural use, suit by a creditor on or by reason of the obligation may be brought against the defendant either in the county in which the defendant in fact signed the contract or in the county in which the defendant resides when the action is commenced." Id. It is undisputed that Sekumade signed the contract in Harris County and that he resided in Brazoria County when Build by Owner filed suit against him. Other than its Rule 11 agreement and general waiver contentions, Build by Owner has not, at any point, presented arguments or evidence for why Galveston County is a county of proper venue under section 15.035(b). See TEX. R. CIV. P. 87(2)(a) ("A party who seeks to maintain venue of the action in a particular county . . . has the burden to make proof . . . that venue is maintainable in the county of suit.").

[5] Build by Owner also contends that we should vacate Judge Touchy's venue ruling because Sekumade waived his venue motion on two grounds: (1) Sekumade failed to obtain a hearing on his motion within a reasonable time, and (2) Sekumade pursued counterclaims and dispositive motions before the trial court heard his venue motion. Build by Owner, however, cites no authority for the proposition that no adequate appellate remedy exists for addressing these contentions, and that, therefore, mandamus relief is appropriate. See Toliver v. Dallas Fort Worth Hosp. Council, 198 S.W.3d 444, 446-48 (Tex. App.-Dallas 2006, no pet.) (addressing on ordinary appeal whether defendant waived motion to transfer venue); Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 406 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (addressing same). We therefore decline to address these arguments on mandamus review.

Fourteenth Court of Appeals sustains duress defense, reverses grant of summary judgment for breach of settlement agreement signed under threat of criminal prosecution

 Weinberg v. Baharav, No. 14-17-00023-CV (Tex.App. - Houston [14th Dist.] Jun. 12, 2018)

Duress is an affirmative defense applicable to a breach of contract cause of action. While there are several applications and definitions of duress, "[A] common element of duress in all its forms . . . is improper or unlawful conduct or threat of improper or unlawful conduct that is intended to and does interfere with another person's exercise of free will and judgment." Dallas Cty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878-79 (Tex. 2005); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 706 (Tex. App.-Houston [1st Dist.] 2014, no pet.). The threat must also be imminent. Bolton, 185 S.W.3d at 879. Further, duress must be established based on the conduct of the party accused of duress, not the emotions of the purported victim. E.g., Parks v. Affiliated Bank, No. 05-16-00784-CV, 2018 WL 2057545, at *5 (Tex. App.-Dallas May 3, 2018, no pet. h.) (mem. op.). 

Accordingly, to avoid summary judgment based on his duress affirmative defense, Weinberg was required to present evidence that Baharav (1) threatened Weinberg with improper or unlawful conduct that was (2) imminent and (3) intended to and (4) did interfere with his exercise of free will and judgment.

ADI WEINBERG, Appellant,
v.
DOVEV BAHARAV AND DVIR BIRGIR, Appellees.

No. 14-17-00023-CV.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed June 12, 2018.

Danny M. Sheena, Hung Michael Nguyen, for Dovev Baharav and Dvir Birgir, Appellee.

Steven A. Hershkowitz, for Adi Weinberg, Appellant.

On Appeal from the 295th District Court, Harris County, Texas, Trial Court Cause No. 2015-76112.

Reversed and Remanded.

Panel consists of Justices Boyce, Jamison, and Brown.

OPINION

MARTHA HILL JAMISON, Justice.

Appellant Adi Weinberg appeals from the trial court's grant of traditional summary judgment favoring appellees Dovev Baharav and Dviv Birgir. Appellees sued Weinberg for breach of a settlement agreement that Weinberg asserts he signed under duress, specifically due to threats of criminal prosecution. 

Because Weinberg raised a material issue of fact on each of the elements of his duress affirmative defense, we reverse the trial court's judgment and remand for further proceedings.

Background

According to his declaration attached to his response to the motion for summary judgment, Weinberg operated a real estate business that primarily involved the buying, renovation, and resale of buildings. The funds used to purchase the properties often came from outside investors. When a property was sold, some of the proceeds might be returned to investors as profit, but the ideal was for the bulk of the sale proceeds to be rolled into the next purchase. Weinberg explained that sometimes properties would need to be held for a time before market conditions could make resale profitable. Some of the investors in the business were Weinberg's family members including Birgir, who is Weinberg's cousin, and Baharav, who is the husband of another cousin of Weinberg's.

Weinberg further detailed multiple problems that beset the business and the relationships. Despite these difficulties, Weinberg states that he continued to do business with Baharav, Birger, and other family investors "because the business model was essentially sound." However, as market conditions worsened and properties had to be held longer to make a profit, Weinberg says that Baharav became impatient and began insisting that properties should be "dumped . . . at unfavorable prices" just so Baharav could receive payment on his investment.

As Weinberg explained in his declaration, the situation came to a head at a meeting of family investors. During the meeting, Baharav threatened to have Weinberg arrested and charged with crimes if he did not sign an agreement Baharav presented, which is the agreement Baharav and Birger sued under.

The agreement at issue states in part as follows:

[Weinberg] has admitted that he has illegally taken monies belonging to the creditors in this agreement without any permission and without informing the creditors before taking the funds. . . .

Since the majority of the creditors are relatives of [Weinberg] and out of the goodwill in their hearts they have created this agreement between themselves and [Weinberg] to collect the illegally gotten monies, rather than pursue both civil and criminal actions against [Weinberg] at this time. The creditors still maintain their rights to pursue any and all legal actions available under the law to retrieve their money if [Weinberg] doesn't abide by any portion of this agreement.

The agreement then lists amounts that Weinberg purportedly owed to each of the listed investors, and repayment terms for the supposed debts.

Weinberg asserted in his declaration that such charges "would have effectively ruined and terminated my business, deprived me of future business and profits, and destroyed my family, especially my father, who is a Rabbi." Under this "duress and coercion," Weinberg says that he signed the agreement and since then has "attempted to accommodate [Baharav] out of fear that he would make these criminal accusations." Weinberg further maintains that he felt he had no other choice than to sign, even though he did not agree with Baharav's position or the valuations set forth in the agreement. Moreover, Weinberg said that Birger and the other family signatories to the agreement went along with Baharav's demands because—while they understood Weinberg "had not committed any bad acts"—they wanted to keep peace within the family and avoid the public scandal that a criminal prosecution would entail.^[1]

Weinberg specifically denied having committed any criminal acts or taken any money out of the business for his personal gain, notwithstanding the language of the agreement. He further insisted that no purchases or expenditures had ever been "made without full disclosure to all parties, including [Baharav and Birger]."

In his declaration, Weinberg notes that he has paid approximately $40,000 to investors since signing the agreement. Appellees assert Weinberg stopped making payments as of June 1, 2013. On December 17, 2015, appellees' counsel sent a Notice of Default and Demand for Payment to Weinberg, demanding that he make the past due payments.

In their second amended petition, appellees each asserted a cause of action for breach of contract based on Weinberg's failure to make payments pursuant to the parties' agreement. In his answer, Weinberg generally denied the accusations against him, and, among other defenses, he asserted the affirmative defense of duress. In their motion for summary judgment, appellees presented evidence that they contended proved Weinberg breached the agreement as a matter of law and thereby caused them specified damages. Among other arguments in his response, Weinberg again asserted duress, and he provided the declaration discussed above in support.^[2] The trial court granted appellees' motion for summary judgment, awarded Baharav $93,615 and Birger $72,270 plus interest and attorney's fees. 

In his appeal, Weinberg raises four issues, contending (1) he presented evidence raising a material issue of fact on each element of his duress affirmative defense, (2) appellees failed to establish the amount of their alleged damages as a matter of law, (3) all signatories to the agreement were not made parties to the lawsuit, and (4) the evidence was insufficient to support the amount the trial court awarded to appellees for attorney's fees. 

Because we conclude that Weinberg raised a material issue of fact on each element of duress, we need not consider his other issues.

Standards of Review

We review a trial court's grant of summary judgment de novo. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A plaintiff who moves for summary judgment has the burden of conclusively proving all the elements of the asserted cause of action as a matter of law. Rhone— Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A party seeking to avoid summary judgment by virtue of an affirmative defense bears the burden of raising a material issue of fact on each element of that defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). A nonmovant asserting an affirmative defense is not required to prove the affirmative defense as a matter of law—raising a fact issue is enough. Id. In conducting our review, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). Evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

Duress

Duress is an affirmative defense applicable to a breach of contract cause of action. While there are several applications and definitions of duress, "[A] common element of duress in all its forms . . . is improper or unlawful conduct or threat of improper or unlawful conduct that is intended to and does interfere with another person's exercise of free will and judgment." Dallas Cty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878-79 (Tex. 2005); Lujan v. Navistar Fin. Corp., 433 S.W.3d 699, 706 (Tex. App.-Houston [1st Dist.] 2014, no pet.). The threat must also be imminent. Bolton, 185 S.W.3d at 879. Further, duress must be established based on the conduct of the party accused of duress, not the emotions of the purported victim. E.g., Parks v. Affiliated Bank, No. 05-16-00784-CV, 2018 WL 2057545, at *5 (Tex. App.-Dallas May 3, 2018, no pet. h.) (mem. op.). Accordingly, to avoid summary judgment based on his duress affirmative defense, Weinberg was required to present evidence that Baharav (1) threatened Weinberg with improper or unlawful conduct that was (2) imminent and (3) intended to and (4) did interfere with his exercise of free will and judgment.

Does duress based on threats of criminal prosecution require proof of innocence?

The law has long recognized that duress can result from threats of criminal prosecution. An issue of some inconsistency in Texas jurisprudence, however, is whether in asserting duress due to a threat of criminal prosecution, a defendant need establish his or her innocence of the offense in question. In other words, is it improper or unlawful conduct to threaten criminal prosecution in order to pressure someone to sign a contract regardless of whether the person is guilty of an offense?

Appellees cite a 1928 case from the Fourth Court of Appeals for the proposition that there is no duress unless a person threatening criminal prosecution has no legal right to do so: Borderland Hardware Co. v. Saenz, 95 S.W.2d 1049, 1050 (Tex. Civ. App.-San Antonio 1928, no writ).^[3] Borderland Hardware dealt with a situation in which the threatened criminal prosecution was against a relative of the person who then executed an agreement due to the threat. 95 S.W.2d at 1050. The court noted that in that scenario, the person executing the contract was not doing so "in order to escape the consequences of his own crime" but to save his relative from prosecution. Id. The court held "while it may be true that an accused person cannot avoid contracts executed by him under threats of lawful prosecution," that under the facts presented, duress could be asserted to void the contract. Id. Interestingly, while the case Borderland Hardware relies on, Gray v. Freeman, involved a similar fact pattern and arrived at the same result, the Gray court stated more generally that "the guilt or innocence of the wronged party, or the lawfulness or unlawfulness of the threats, are immaterial." 37 Tex. Civ. App. 556, 559-62, 84 S.W. 1105, 1106-08 (1905).^[4]

Indeed, the majority position in Texas, as well as other states, appears to be that the threat of criminal prosecution to pressure someone to execute a contract is itself a wrongful use of the criminal justice process that may constitute duress sufficient to void the resulting agreement. See, e.g., Sims v. Jones, 611 S.W.2d 461, 462 (Tex. Civ. App.-Dallas 1980, no writ) ("It has long been held that threats of criminal prosecution are sufficient to give rise to duress. The modern view is that threats of criminal prosecution may give rise to duress even where the party threatened is actually guilty of an offense."); Pierce v. Estate of Haverlah, 428 S.W.2d 422, 425 (Tex. Civ. App.-Tyler 1968, writ ref'd n.r.e.) ("[T]he threatened prosecution need not be for a crime or offense of which the party threatened is not guilty, but . . . duress may arise from threats of prosecution for an offense of which the party threatened is actually guilty."); Pfeuffer v. Haas, 55 S.W.2d 111, 114 (Tex. Civ. App.-Austin 1932, writ dism'd) (following "modern doctrine"); see also Walker v. Texas, No. 7:17-CV-00168-O-BP, 2018 WL 1448799, at *9 (N.D. Tex. Mar. 7, 2018) (applying Texas law), report and recommendation adopted sub nom. Walker v. Stephens, No. 7:17-CV-00168-O-BP, 2018 WL 1427201 (N.D. Tex. Mar. 22, 2018); F.D.I.C. v. White, 76 F. Supp. 2d 736, 739 (N.D. Tex. 1999) (same).^[5] We have previously agreed with the majority position albeit in dicta. See Eggleston v. Humble Pipe Line Co., 482 S.W.2d 909, 916 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.).^[6]

We will follow the majority rule in this case and consider whether Weinberg presented evidence that Baharav threatened him with imminent criminal prosecution such as was intended to and did interfere with Weinberg's exercise of free will and judgment, but without requiring proof that Weinberg was innocent of the criminal allegations.

Did Weinberg present evidence raising a fact issue on each elements of the affirmative defense of duress?

In his declaration, Weinberg states that he signed the agreement at a meeting of family investors after Baharav threatened to have him arrested and charged with crimes if he did not sign. Weinberg also provided lengthy detail about the business relationship between himself, Baharav, and Birger, and the problems that beset that relationship, which provided context for understanding the nature of the threats Baharav allegedly made. Weinberg stated that such charges as Baharav threatened "would have effectively ruined and terminated my business, deprived me of future business and profits, and destroyed my family, especially my father, who is a Rabbi." Weinberg insists that he signed under "duress and coercion" and had subsequently "attempted to accommodate [Baharav] out of fear that he would make these criminal accusations." Weinberg indicated that he felt that he had no other choice than to sign, even though he did not agree that the agreement was factually accurate or a good idea.

Language from the agreement itself further supports Weinberg's assertions, particularly wherein it recites that the "creditors . . . out of the goodwill in their hearts . . . created this agreement . . . rather than pursue both civil and criminal actions against the debtor at this time" and that they "still maintain their rights to pursue any and all legal actions available under the law to retrieve their money if the debtor doesn't abide by any portion of this agreement." Additionally, in one of Weinberg's emails that were included in the summary judgment evidence, he denied being a thief, which suggests someone accused him of being a thief at some point.

This evidence, viewed in the light most favorable to Weinberg, is sufficient to raise a material issue of fact on Weinberg's affirmative defense that he was threatened with imminent criminal prosecution if he did not sign the agreement and that such threats were intended to and did interfere with his exercise of free will and judgment.^[7] See Bolton, 185 S.W.3d at 878-79; Man Indus., 407 S.W.3d at 367. The alleged improper or unlawful conduct here was the reference to the criminal justice processes to pressure Weinberg to sign an agreement that he otherwise professes he did not voluntarily sign. See Bolton, 185 S.W.3d at 878-79 (noting that "[a] common element of duress in all its forms . . . is improper or unlawful conduct or threat of improper or unlawful conduct"); White, 76 F. Supp. 2d at 739 (describing the use of threats of criminal prosecution to pressure someone into signing an agreement as wrongful conduct); Greene, 424 S.W.2d at 9 (same); Harlan, 228 S.W. 1090, 1091 (same); Gray, 37 Tex. Civ. App. at 560-61, 84 S.W. at 1107 (same).

Conclusion

Because Weinberg presented evidence sufficient to raise a material issue of fact on each of the elements of his affirmative defense, the trial court erred in granting summary judgment favoring appellees.

Brownlee, 665 S.W.2d at 112. Accordingly, we sustain Weinberg's first issue. Having sustained his first issue, we need not address his remaining three issues.

We reverse the trial court's judgment and remand for further proceedings in accordance with this opinion.

[1] In addition to Weinberg, Baharav, and Birger, two other investors signed the agreement. These investors, however, did not participate in the trial court proceedings in this lawsuit and are not parties to this appeal.

[2] Weinberg additionally provided a declaration from Lindsey Certo, who owns a property management company that worked with Weinberg and Baharav on a number of projects.

[3] Appellees also cite Gigout v. C & L Constructors, Inc., No. 01-96-01109-CV, 1999 WL 191324, at *4 (Tex. App.-Houston [1st Dist.] Apr. 8, 1999, pet. denied) (not designated for publication). However, Gigout is an unpublished, pre-2003 case and therefore not precedential. See, e.g., Guardianship of A.S.K., No. 14-15-00588-CV, 2017 WL 3611845, at *4 n.7 (Tex. App.-Houston [14th Dist.] Aug. 22, 2017, pet. denied) (mem. op.).

[4] Of further note, in both of the opinions appellees cite, the respective courts ignored and failed to follow their own prior precedent. See Greene v. Bates, 424 S.W.2d 5, 8-11 (Tex. Civ. App.-Houston [1st Dist.] 1968, no writ) (preceding Gigout and holding evidence was sufficient to require submission of duress issue to a jury without considering whether there was evidence of guilt of the threatened criminal charges); Sabinal State Bank v. Ebell,294 S.W. 226, 227 (Tex. Civ. App.-San Antonio 1927, no writ) (preceding Borderland Hardware and stating "duress may arise from threats of prosecution for an offense of which the party threatened is actually guilty.").

[5] Several courts in Texas have quoted the following language from the Alabama Supreme Court crystalizing the reasoning behind the majority rule:

It was never contemplated in the law that either the actual or threatened use or misuse of criminal process, legal or illegal, should be resorted to for the purpose of compelling the payment of a mere debt, although it may be justly owing and due, or to coerce the making of contracts or agreements from which advantage is to be derived by the party employing such threats. Ample civil remedies are afforded in the law to enforce the payment of debts and the performance of contracts, but the criminal law and the machinery for its enforcement have a wholly different purpose, and cannot be employed to interfere with that wise and just policy of the law that all contracts and agreements shall be founded upon the exercise of the free will of the parties, which is the real essence of all contracts.

Hartford Fire Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 So. 651, 654 (1896) (quoted in White, 76 F. Supp. 2d at 739; Greene, 424 S.W.2d at 9; Houston Ice & Brewing Co. v. Harlan, 228 S.W. 1090, 1091 (Tex. Comm'n App. 1921, judgm't adopted); Gray, 37 Tex. Civ. App. at 560-61, 84 S.W. at 1107).

[6] This is also the position taken in the Restatement. Restatement (Second) of Contracts §§ 175(1) ("If a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim."), 176(1)(b) ("A threat is improper if . . . what is threatened is a criminal prosecution. . . ."), cmt. c ("[I]f a threat is made, the fact that the one who makes it honestly believes that the recipient is guilty is not material. The threat involves a misuse, for personal gain, of power given for other legitimate ends. . . . The guilt or innocence of the person whose prosecution is threatened is immaterial in determining whether the threat is improper. . . ."); see also Bolton, 185 S.W.3d at 877-79 & n.7 (discussing section 175 and other duress-related sections in various Restatements).

The Texas Supreme Court has not addressed the specific issue raised here. In Landa v. Obert, 78 Tex. 33 (1890), the court considered a lawsuit brought to recover funds obtained due to duress from a threat of criminal prosecution. As other courts have noted, however, Landa is distinguishable from the present situation because it involved a duress cause of action rather than an affirmative defense, the right of recovery was predicated on the alleged falsity of the charges made, and there was a contract involved under which the plaintiff was to be entitled to reimbursement if the charges were demonstrated to be false. See Harlan, 228 S.W. at 1091; Greene, 424 S.W.2d at 10.

[7] Appellees did not present any evidence suggesting that no such threat was made.

Will courts enforce Rule 11 Agreements that don't have signatures? Does agreement have to be in writing?

  
Does an agreement under Rule 11 of the Texas Rules of Civil Procedure always have to be signed by both parties or their attorneys to become binding and enforceable?
  

ENFORCEABILITY OF RULE ELEVEN (TRCP 11) AGREEMENT

A Rule 11 agreement is an agreement between parties or attorneys "touching any pending suit" that, to be enforceable, must be either (1) in writing, signed, and filed as part of the record, or (2) made in open court and entered of record. Tex. R. Civ. P. 11. Whether a Rule 11 agreement is legally enforceable is a question of law. Ronin v. Lerner, 7 S.W.3d 883, 886 (Tex. App.--Houston [1st Dist.]  1999, no pet.).

RATIONALE FOR RULE 11 REQUIREMENTS
  

The purpose of Rule 11 is to avoid misunderstandings and controversies that often flow from oral agreements. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Parties may enter into a binding settlement agreement even if they contemplate that a more formal document memorializing the agreement will be executed at a later date. See Ronin, 7 S.W.3d at 886; McLendon v. McLendon, 847 S.W.2d 601, 606-07 (Tex. App.--Dallas 1992, writ denied) ("[Party] understood that he was  obligated to execute documents to implement the agreement being submitted to the court.

SOURCE: AUSTIN COURT OF APPEALS - 03-11-00271-CV - 5/3/2012
  

There is no indication in the record that the parties contemplated that their agreement would not be binding until it was reduced to writing."). The exchange between Andrews, her attorney, Deutsche Bank's attorney, and the district court constitutes an enforceable Rule 11 agreement. Although the parties contemplated that the attorneys would later reduce the Rule 11 agreement to writing, the reporter's record reflects that the parties were aware that they were entering into a settlement agreement in court. See McLendon, 847 S.W.2d at 606-07. Specifically, both Andrews and her counsel agreed that she would release her lien and dismiss her appeal in exchange for receiving the money from the court registry.

Andrews does not dispute that she reached a settlement agreement in open court in compliance with Rule 11. Instead, she asserts that there is no evidence that she ever received any money from the court registry, the consideration for her dismissal of her appeal. To the contrary, however, the record contains an order commanding the district court clerk to withdraw the money from the court registry and pay it to Andrews's attorney.

Non-compliance with terms of settlement agreement

  
Options when other party does not comply with settlement agreement

When a claim is released for a promised consideration that is not given, the claimant may either pursue rights under the release, or treat the release as rescinded and recover on the underlying claim. Murray v. Crest Constr., 900 S.W.2d 342, 344 (Tex. 1995); see also Hernandez v. LaBella, No. 14-08-00327-CV, 2010 WL 431253 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op.) (repudiation or anticipatory breach of settlement agreement permits nonbreaching party to elect not to proceed with settlement agreement); BACM 2001-1 San Felipe Rd. Ltd. P’ship v. Traflagar Holdings I, Ltd., 218 S.W.3d 137, 146 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (on failure of debtor to perform under executory accord, creditor may treat accord as repudiated and may choose to claim rights under the original cause of action or the accord); Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 247 (Tex. App.—Amarillo 1994, no pet.) (if settlement agreement breached, nonbreaching party may treat agreement as repudiated and claim rights either under the agreement or the underlying cause of action).

Whether a party has breached a contract is a question of fact to be determined by the trier of fact. Allied Capital Partners, L.P. v. PTRI, 313 S.W.3d 460 (Tex. App.—Dallas 2010, no pet.).

SOURCE: TEXARKANA COURT OF APPEALS - 06-10-00091-CV – 11/1/11