                                                                               ACCEPTED
                                                                           03-16-00664-CV
                                                                                 13926094
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                    11/22/2016 11:24:28 AM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
               CAUSE NO. 03-16-00664-CV

                                                          FILED IN
                                                   3rd COURT OF APPEALS
               THE COURT OF APPEALS                    AUSTIN, TEXAS
              THIRD DISTRICT OF TEXAS             11/22/2016 11:24:28 AM
                      AUSTIN                         JEFFREY D. KYLE
                                                           Clerk



               BENNY M.B. DANESHJOU
                 SALLY DANESHJOU
              DANESHJOU COMPANY, INC.
                   APPELLANTS
                             v.
KASLING, HEMPHILL, DOLEZAL AND ATWELL, L.L.P.
                 APPELLEE


Appealed from the 53 rd District Court of Travis County Texas
         Trial Court Cause No. D-1-GN-13-003405
       Honorable KARIN CRUMP Judge Presiding


                  APPELLANTS' BRIEF


                           Respectfully submitted,
                           THE FERRARO LAW FIRM

                           /s/ Peter E. Ferraro
                           Peter E. Ferraro, Esq.
                           1011 West 10th Street
                           Austin, Texas 78703
                           State Bar No. 06934600
                           Tel: (512) 474-7742
                           Fax: (512) 474-8106
                           Email: ferrarolaw@mac.com
                           ATTORNEY FOR APPELLANTS

             ORALARGUMENTRF.QUESTED
                              1
                          CAUSE NO. 03-16-00664-CV


                          THE COURT OF APPEALS
                         THIRD DISTRICT OF TEXAS
                                 AUSTIN


                          BENNY M.B. DANESHJOU
                            SALLY DANESHJOU
                         DANESHJOU COMPANY, INC.
                              APPELLANTS
                                         V.
          KASLING, HEMPHILL, DOLEZAL AND ATWELL, L.L.P.
                            APPELLEE


          Appealed from the 53 rd District Court of Travis County Texas
                  Trial Court Cause No. D-1-GN-13-003405
                 Honorable KARIN CRUMP Judge Presiding


                             APPELLANTS'BRIEF



TO THE HONORABLE THIRD COURT OF APPEALS:
      Appellants, M.B. "Benny" Daneshjou, Sally Daneshjou and Daneshjou

Company, Inc., submit this, their Brief on the merits. Throughout this Brief, the

Clerk' s Record shall be referred to as "C.R. [page#]."




                                          2
               IDENTITY OF PARTIES AND COUNSEL


Peter E. Ferraro
THE FERRARO AW FIRM
1011 West 10th Street
Austin, Texas 78703
Tel : (512) 474-7742
Fax: (512) 474-8106
Email: ferrarolaw@mac.com

 ATTORNEY FOR APPELLANTS
.BENNY MB DANESHJOU
 SALLY DANESHJOU
 DANESHJOU COMPANY, INC.


Trey Dolezal
KASLING, HEMPHILL, DOLEZAL and ATWELL, L.L.P.
301 Congress Ave. Suite 300
Austin, Texas 78701
Tel: (512) 472-6800
Fax: (512) 472-6823
Email : dolezal@khdalaw.com

ATTORNEY FOR APPELLEE
KASLING, HEMPHILL, DOLEZAL and ATWELL, L.L.P.




TRIAL COURT: 53 rd Judicial District Court,
             Travis County Texas
             Honorable KARIN CRUMP, Judge Presiding




                                3
                                     TABLE OF CONTENTS


IND ENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TABLE OF CONTENTS ... . ........ . ... .. .. .............. ....... . ... . .... . ... . ...... 4
INDEX OF AUTHORITIES ........... . . .... ... .. ......... ....... . .. . .... ... . . ..... .. 5
STATEMENT OF CASE .................. . ... ... . ....... .. .. .... . .... . .. ...... . . .... 6
                 a. Nature of case          . .. . .. ... . . . ... .. . . .. ... ... ... . . . . .. ... .. . . .. .. . . ...   6

                 b. Trial Court ........... ...... .... ... .. . ........ .... . .... . .............. . 7

                 c. Trial Court Disposition .. ....... .. ................ ...... . . . .......... 7


ISSUE PRESENTED ............. . . ... ......... . ..... . ..... ... ......... ..... ....... . .. . 7


STATEMENT OF FACTS .. . ... .... .. ... . .. .. . .. . ..... .... .. . .. ............. . .. ..... . 7


SUMMARY OF ARGUMENT .... .... .. .... ... .... .. . .. ........................ . . .. . 8


ARGUMENT AND AUTHORITIES ....... . . . .. .. . . . . . .. ......... . ................. 8


CONCLUSION AND PRAYER ... ................. ...... . ..... ...... .. .... .. . ...... 11


CERTIFICATE OF COMPLIANCE .. .. ....... .. ... . .... ...... .................. ... 12


CERTIFICATE OF SERVICE ....... ... .... . .. . .. .. .. .. . ...... ...... .. .... ..... . . ... 12




                                                           4
                                                        INDEX OF AUTHORITIES
                                                                               CASES


Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 844
(Tex. App.-Austin 2003, no pet.) .. . .. .. .. . . . . .. . . . . . . . . . .. . .. .. . .. .. .. . . .. . . . .. . . .                                                     9

Centex Corp. v . Dalton, 840 S.W.2d 952, 956 (Tex. 1992)                                                                                                                    9
Citv of San Antonio v. Guido Bros. Construction Co., 460 S.W.2d 155, 163
(Tex. Civ. App. 1970)
                                                                                                                                                                         10
Kinnison Bros. v. Steger, 11 S.W.2d 527, 529 (Tex.Civ.App. -Texarkana,
1928, error dism.) ..... .... ............ .. . . ......... ...... . .. .... ..... . .. . .... . ... .. .. .                                                             10
McDonald v. Grey, 29 Tex. 80, 82 (1867).. .. .. . . . . . . ... . . . . . . . . . . . . . . .. . . . . . . .. . . .. 11
Mensa-Wilmont v. Smith Int'l, Inc. , 312 S.W.3d 771, 781 (Tex. App.-Houston
[ 1st Dist.] 2009, no pet.) . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . ... 9
Smallwood v. Melton, 97 S.W.2d 781, 785 (Tex.Civ.App. Fort Worth, 1963,
error dis1n .). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
York v. Hughes, 286 S.W. '165, 167 (Tex.Com.App., '1926) ...... .. .. ... .... ... .. 11




                                                                                       s
                          STATEMENT OF THE CASE
Nature of the case:


      This case concerns the interpretation of a Mediated Settlement Agreement

between the law firm Kasling, Hemphill, Dolezal and Atwell, L.L.P. ("Appellee")

and their clients M.B. "Benny" Daneshjou, Sally Daneshjou and Daneshjou

Company, Inc. ("Appellants"). A dispute arose over the fees to be paid to Appellee

concerning prior legal representation and the Appellee filed suit to collect its legal

fees. The parties then mediated the issue and reached a mediated settlement

agreement on March 25, 2015 with a Record of Mediation Agreement signed by all

parties on June 18, 2015 (C.R. 14-15). Under the signed agreement, the payment

for the agreed legal fees was deferred until the following year to allow time for

Appellants to raise the necessary funds for payment. As part of the Mediated

Settlement Agreement, Appellee agreed to dismiss the pending lawsuit with the

right to reinstitute it if Appellants failed to make all the payments under the

Mediated Settlement Agreement.


      Appellee failed to dismiss the pending lawsuit and Appellants were unable

to raise the necessary funds to make the deferred payments to Appellee. Appellee

then filed a Motion to Enforce Mediated Settlement Agreement (C.R. 10-15).

Appellants likewise filed a Motion to Enforce Mediated Settlement Agreement

(C.R. 16-19), requesting that Appellee dismiss the pending lawsuit.

                                           6
Trial Court:


      The Honorable Karin Crump of the 53 rd District Court.


Trial Court Disposition:


      The trial court signed a Final Judgment dated July 8, 2016 (C.R. 36-37)

granting Appellee's Motion to Enforce Mediated Settlement Agreement and

denying Appellant's Motion to Enforce Mediated Settlement Agreement. This

judgment forms the basis of this appeal.


                               ISSUE PRESENTED

   1. Did the trial court err in granting Appellee's Motion to Enforce Mediated

      Settlement Agreement where Appellee breached the agreement by failing to

      satisfy a condition precedent to dismiss the pending lawsuit?


                            STATEMENT OF FACTS

      M.B. "Benny" Daneshjou, Sally Daneshjou and Daneshjou Company, Inc.,

Defendants in the trial court action and Appellants in this matter, were sued by

Kasling, Hemphill, Dolezal and Atwell, L.L.P., Plaintiff in the trial court action

and Appellee in this matter, concerning a fee agreement over prior legal

representation. The parties then mediated the issue and reached a mediated

settlement agreement on March 25, 2015 with a Record of Mediation Agreement


                                           7
signed by all parties on June 18, 2015 (C.R. 14-15). Under the signed agreement,

the payment for the agreed legal fees was deferred until the following year to allow

time for Appellants to raise the necessary funds for payment. As part of the

Mediated Settlement Agreement, Appellee agreed to dismiss the pending lawsuit

with the right to refile a lawsuit if Appellants failed to make all the payments under

the Mediated Settlement Agreement. Appellee failed to dismiss the pending

lawsuit and Appellants were unable to raise the funds to make the necessary

payments under the Mediated Settlement Agreement.


                          SUMMARY OF ARGUMENT


      The trial court erred in granting Appellee's Motion to Enforce Mediated

Settlement Agreement because Appellee breached the agreement by failing to

satisfy a condition precedent to dismiss the pending lawsuit. The doctrine of

"condition precedent" for breach of contract law prevents Appellee from enforcing

the payment obligation against Appellants under the Mediated Settlement

Agreement.


                       ARGUMENT AND AUTHORITIES


      Appellants asse11 that the trial court erred in granting Appellee's Motion to

Enforce Mediated Settlement Agreement because Appellee breached the agreement

by failing to satisfy a condition precedent to dismiss the pending lawsuit. The

                                           8
condition requiring that Appellee dismiss the pending lawsuit was a condition

precedent under Texas law which prevented Appellee from enforcing the terms of

the Mediated Settlement Agreement.


      A party seeking to enforce a contract bears the burden of proving that all

conditions precedent have been satisfied. See Mensa-Wilmont v. Smith Int'l, Inc.,

312 S.W.3d 771, 781 (Tex. App.-Houston [1st Dist.] 2009, no pet.). When a

party 's obligation under the contract is conditioned upon the happening of a future

event, the condition must be performed or fulfilled exactly as set forth in the

contract before the promise can be enforced. See Centex Corp. v. Dalton, 840

S.W .2d 952,956 (Tex. 1992); Beard Family P'ship v. Commercial Indem. Ins. Co.,

116 S.W.3d 839, 844 (Tex. App.- Austin 2003, no pet.).


      A key element of the Mediated Settlement Agreement was that Appellee

dismiss the pending lawsuit in order that Appellants would be in a much better

position to obtain funding to make the necessary payments due to Appellee under

the Mediated Settlement Agreement. The condition was material as it affected the

ability of the Appellants to obtain credit which would have assisted Appellants in

fulfilling their payment obligations under the Mediated Settlement Agreement.

(This was not a covenant under the agreement, but a condition precedent to its

enforcement.) As such, it was incumbent on Appellee to dismiss the pending



                                           9
lawsuit (which Appellee never did). Section 1 under the Mediated Settlement

Agreement reads as follows:


      1. Trey L. Dolezal and KHDA ("Plaintiffs") and DCI and Sally and
         Benny Daneshjo u ("Defendants") agree to mutually release each
         other from any and all claims asserted or that could be asserted in
         the above captioned case and agree to dismiss the above captioned
         case with prejudice.
      By this language, the parties clearly contemplated that this very lawsuit

wo uld be dismissed with prejudice. However, if Appellants failed to make all the

payments required under the Mediated Settlement Agreement, then Appellee

would have the right to reinstitute a lawsuit against Appellants. Section 6 under the

Mediated Settlement Agreement reads as follows :


      6. If Defendants fail to make the payments as set forth above on or
         before June 1, 2016, Defendants agree that Plaintiffs can refile
         their claims, notwithstanding the prior dismissal and the applicable
         statute of limitations, for all claims and/or counterclaims will be
         tolled by this agreement from the date of the original filing of the
         above captioned case to 60 days after such failure to pay under this
         agreement and collect reasonable attorney' s fees and interest of
         10% from the date of the breach to the date of payment.


      If a contract contains a condition precedent, Texas law provides that the

burden of proof is upon the party seeking to impose liability thereon to establish

the happening of the events upon which the condition was based. See City of San

Antonio   1•.   Guido Bros. Construction Co., 460 S.W.2d 155, 163 (Tex. Civ.

App. 1970), Kinnison Bros. v. Steger, 11 S.W.2d 527,529 (Tex.Civ.App. -
                                            10
Texarkana, 1928, error dism.). Indeed, it is said that when such condition precedent

appears in a contract, the fulfillment of the named condition becomes a prerequisite

to the debtor's promise. York v. Hughes, 286 S.W. 165, 167 (Tex.Com.App.,

1926); l\1cDonald v. Grey, 29 Tex . 80, 82 (1867); Smallwood v . Melton, 97

S.W. 2d 781 , 785 (Tex.Civ.App. Fort Worth, 1963, error dism.). In the case at

hand, th e condition precedent of the dismissal of the pending lawsui t was not

accomplished by Appellee. Therefore, Appellee is prohibited from enforcing the

Mediated Settlement Agreement and collecting the money from Appellants.


                          CONCLUSION AND PRAYER
         Based upon the foregoing, the pleadings, summary judgment evidence, and

the records on file, the trial court erred in granting Appellee's Motion to Enforce

Mediated Settlement Agreement because Appellee breached the agreement by

failing to satisfy a condition precedent to dismiss the pending lawsuit. Therefore,

Appellants respectfully request that this Court reverse the decision of the trial

court.




                                          11
                                       Respectfully submitted,


                                       Isl Peter E. Ferraro
                                       Peter E. Ferraro
                                       The Ferraro Law Firm
                                       SBN: 06934600
                                       1011 W. 10th St.
                                       Austin, Texas 78703
                                       Tel: (512) 474-7742
                                       Fax: (512) 474-8106
                                       E-mail: ferrarolaw@mac.com



                      CERTIFICATE OF COMPLIANCE
      I certify that the Appellants ' Brief contains 1,779 words.


                                       Isl Peter E. Ferraro
                                       Peter E. Ferraro


                          CERTIFICATE OF SERVICE


      This is to certify that a true and correct copy of the above and foregoing has
been forwarded to the following counsel of record in compliance with the Texas
Rules of Civil Procedure on this 22nd day of November, 2016: Trey Dolezal,
Kasling, Hemphill, Dolezal and Atwell, L.L.P., 301 Congress Avenue, Suite 300,
Austin, Texas 78701 at 512-472-6823.


                                       Isl Peter E. Ferraro
                                       Peter E. Ferraro




                                          12
                       INDEX TO APPENDIX
Tab A   Final Judgment (July 8, 2016)
Tab B   Mediated Settlement Agreement
Tab A
                                                                                                    Filed in The District Court
                                                                                                     of Travis County, Texas

                                 Cause No. D-l-GN-13-003405                                            JUL O& 2016- f\) I\)'\._
                                                                                                   At_     ) I'· I "' C\. M,
KASLING, HEMPHILL, DOLEZAL                               §                            IN THE DIS~11'10Jmifrlct Cieri<
&ATWELL, LLP                                             §
Plaintiff,                                               §
                                                         §
V.                                                       §                            53RD JUDICIAL DISTRICT
                                                         §
M.B. "BENNY" DANESHJOU, SALLY                            §
DANESHJOU, AND DANESHJOU                                 §
COMPANY, INC.                                            §
Defendants.                                              §                        OF TRAVIS COUNTY, TEXAS

                                         :FINAL JUDGMENT

       On July 6, 2016, the Court considered Plaintiffs' Motion to Enforce Mediated Settlement

Agreement and Defendants' Motion to Enforce Mediated Settlement Agreement.                                   Plaintiff

appeared tlu-ough its attorney of record, Trey L. Dolezal. Defendants appeared through their

attorney of record, Peter E. Ferraro. The record of testimony was duly reported by Jamie Foley,

the substitute court reporter for the 250th Judicia1 District Court.

        After reviewing the parties' motions, the pleadings, evidence presented, arguments of the

parties, and applicable law, the Court is of the opinion that Plaintiffs Motion to Enforce

Mediated Settlement Agreement should be and is hereby GRANTED and Defendant's Motion to

Enforce Mediated Settlement Agreement should be and is hereby DENIED.

        IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiffs' Motion

to Enforce is hereby GRANTED.

        IT IS FURTHER ORDERED that Defendant's Motion to Enforce Mediated Settlement

Agreement should be and is hereby DENIED.

        IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff shall have

and recover of and from Defendants the total sum of $37,500.00 with interest accruing on said




 FINAL JUDGMENT
                                \11111111111 IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII
                                004672795
sum at the rate of 10% per annum from June 1, 2016, thereafter until paid in full , and $2,500.00

for attorney fees, for all of which let execution issue.

        All relief not expressly granted herein is denied.

       This Order disposes of all parties and claims and is a final and appealable judgment.

                ....-,-p-
Signed this   1      day of July 2016.




                                                                                           Pagel of2
 FIN AL JUDGMENT

                                                                                                       37
TabB
                  .. ,. . RECORD OF MEDIATION AGREEMENT
             : :· ..·: ·.': :   •, / ,::.   .


On tbe   i 8h da) of June.2015 with Be11 Pluymen serving as mediator. the following case w~s mediated:
              1
                        1



Re:      Cause No. D-l-GN- lJ-003405; K.Hl)A et al. v. Danesl?fou, et al.; In the 53 rd Judicial Distl'ict
         Court of Travis County, Texas

THE PARTIES HAVE VOLUNTARILY AGREED TO THE FOLLOWING:

This case wns mediated in person with the mediator on March 25, 2015 and fully and finally ·resolved in
person between the parties on June l 8, 2015 outside the presence of the mediator at .the scheduled
deposition of the parties on June 18, 2015 . That Mediated Settlement Agreement is attached hereto as
Exhibit A.

Although the mediator has assisted in di·afting a basic outline of this Settlement Agreeme11t with the
parties' counsel as a courtesy to facilitate the final resolution of this dispute, the parties and their counsel
bave thoroughly reviewed such outline and have, where necessary, modified it to conform to the
requirements of their agreement. All the parties and/or signatories to this Settlement Agreement hereby
release the Mediator from any and all responsibility arising from the drafti ng of this Settlement
Agreement, ·and by signing this Settlement Agreement acknowledge that they, or their attorneys, have
been advised by the mediator that this Settlement Agreement should be independently reviewed by
counsel before executing the Agreement.

The partie_s acknowledge that they ha".e npt _been coer~~d py anyone into entering th~s agreem~nt bllt do
so of their own free v,iill and independent judgment. They also acknowledge that this is an in·evocable
settlement agreement, that they have read it. tmd°erstand it; agree to the tei·ms ~tated, and believe that it is
                        •   •      f                   I    i            :.;   I


in their
      .  best interest.
               .        If necessary, this agreement may be enforce.d as a Rule 11 Agreement and as a
contractual settlement agreement. Each party acknowledges that thij mediator bas not given them any
legal or settlemeI?t . advice and that they have conferred with their own independent legal counsel
regarding the advisability of entering into this binding agreement before signing it.
                                                th
Signed and. agreed to this the 18 day oflune, 2 0 1 5 ~ ~ - - - -


-        ~                                           -,-----~~~
                                                        ~




                                                      EXHIBIT

                                                           J
                                                                                                                   14
                                              Exhibit A

                             MEDIATED SETTLEMENT AGREEMENT


-RE:       CAUSE #D-1-GN-13-003405
           KHDA V. DANESHJOU et al.


The Parties by their signatures have agreed to the following mediated ·s ettlement agreement:

   1. Trey L. Dolezal and KHDA ("Plaintiffs") and DCI and Sally arid Benny Daneshjou
      ("Defendants") agree to mutually release each other from any and all claims asserted
      or that could be asserted in the above captioned case and agree to dismiss the above
      captione.d ~ase with prejudice.

       2. The parties agree to keep tltis resolution confidential.

       3 . The parties agree to a mutual non-disparagement clause in the settlement agreement.

       4. In exchange, Defendants agree to pay to Plaintiffs $2500.00 on the day of execution of
          this agreement and to pay Plaintiffs an additional $32,500.00 on or before March 1,
          2016. If Defendants fail to pay the $32,500.QO on or before March 1, 2016 then they
          will pay that amount plus an additional $5,000 on or -before June _1 , 2016.

       5. Defendants agree that if the property l_pcated at 43 01 Bee Caves Road, Austin, Texas is
          sold to a third party and funded, Plaintiffs will be paid any and all amounts still owing
          under this agreement from the proceeds of that sale. Such payment will be made at
          the time of closing and Defendants agree to instruct the title company to pay such
          amounts due at the time of closing. Plaintiffs agree that they have no interest c:\irectly
          or indirectly in the subject property.

       6. If Defendants fail to make the payments as set fortl1 above on or befqre June 1, 2016,
          Defendants agree that Plaintiffs can refile their claims, notwithstanding the prior
          dismissal and the applicable statutes of limitations, for all claims and/or
          counterclaims will be tolled by this agreement from the date of the original filing of
          the above captioned case to 60 days after such failure to pay under this agreement, or
          alternatively Plaintiffs may elect to enforce this agreement and collect reasonable
          attorney's fees and interest of to% from the date of the breach to the date of payment.

       7. The parties agree to coo·perate in completing all documents necessary to finalize this
          agreement.

       8. Each party will pay their own mediation and litigation costs, including but not limited
          to attorneys' fees .




                                                                                                       2

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