                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                         No. 07-17-00270-CV


                                  VICKY PRATER, APPELLANT

                                                   V.

                        FESTIVAL OF LIGHTS OF CORSICANA, INC.,
                        A NON-PROFIT CORPORATION, APPELLEE

                             On Appeal from the 13th District Court1
                                     Navarro County, Texas
            Trial Court No. D15-24296-CV, Honorable James E. Lagomarsino, Presiding

                                        December 21, 2018

                                 MEMORANDUM OPINION
                        Before CAMPBELL and PIRTLE and PARKER, JJ.


        In this dispute over the possession of Christmas lights and decorations, both

parties filed motions for summary judgment to enforce a mediated settlement agreement.

The trial court granted summary judgment for appellee, Festival of Lights of Corsicana,




        1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
this Court from the Tenth Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013).
Inc. (FOL), and denied the competing motion filed by appellant, Vicky Prater. We affirm

in part and reverse in part.


                                       Background


       FOL is a non-profit corporation that purchases and places Christmas lights and

decorations in the city parks in Corsicana.       When the time came to remove the

decorations after the holiday season in 2014, Prater volunteered to rent a storage unit so

that the lights and decorations could be stored at a local storage facility. FOL paid the

annual storage fee for the unit. Ruby Williams transported the lights and decorations to

the storage unit. In June of 2015, FOL elected a new board. When the newly-elected

board members attempted to gain access to the storage unit, they were unable to do so

because the storage unit had been rented in the name of Vicky Prater. A dispute arose

as to who was authorized to possess the lights and decorations. Thereafter, FOL filed

suit against Williams and Prater for the return of the lights and decorations.


       The parties participated in a mediation and reached an agreement on all issues.

As part of the mediated settlement agreement (MSA), Williams and Prater were required

to “release all rights to the lights and decorations to [FOL’s] current board whether in

possession of either defendant or her agents,” and “release the storage building to FOL.”

The MSA also provided that an inventory was to be conducted with representatives from

both parties present and afforded Williams and Prater forty-eight hours “to return all other

lights and decorations in their possession or control, if any.” The MSA further provided

that Williams and Prater would receive a release of liability “upon completion of the terms

of this agreement.” Finally, the agreement provided for a declaratory judgment finding



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that the lights and decorations are the property of FOL and “this case will be dismissed

with prejudice.”


       After the inventory was conducted, FOL filed an amended petition alleging

approximately $5,000.00 of newly-purchased L.E.D. commercial Christmas lights were

not returned. That petition also alleges a breach of contract action against Williams and

Prater for failing to execute the formal settlement agreement and declaratory judgment

as required by the MSA. Williams eventually signed the settlement agreement and

declaratory judgment and her claims were non-suited. Prater, however, filed a counter-

claim for breach of contract against FOL alleging that she complied with the MSA and is

entitled to the release of liability. Both parties subsequently filed traditional motions for

summary judgment. The trial court granted FOL’s motion and denied Prater’s motion.


                                    Standard of Review


       We review a trial court’s decision to grant or to deny a motion for summary

judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d

184, 192 (Tex. 2007). In determining whether a disputed material fact issue exists, we

take as true evidence favorable to the nonmovant and indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor. Cmty. Health Sys. Prof’l Servs. Corp.

v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). When both parties move for summary

judgment on the same issues and the trial court grants one motion and denies the other,

we consider the summary judgment evidence presented by both sides, determine all

questions presented, and render the judgment that the trial court should have rendered.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).



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                                         Analysis


Issue No. 1


       In her first issue, Prater contends that FOL failed to establish Prater’s breach of

the MSA and that the trial court erred in granting summary judgment for FOL.


       The elements of a breach of contract claim are: (1) the existence of a valid contract,

(2) the plaintiff’s performance or tender of performance, (3) the defendant’s breach of the

contract, and (4) the plaintiff’s damage as a result of that breach. Domingo v. Mitchell,

257 S.W.3d 34, 39 (Tex. App.—Amarillo 2008, pet. denied).


       In its traditional motion for summary judgment, FOL asserted that it performed or

tendered performance by forwarding to Prater’s counsel a proposed formal settlement

agreement and release in compliance with the MSA, along with a proposed declaratory

judgment. Prater claims that the release did not comply with the MSA. We agree with

Prater.


       FOL’s summary judgment evidence reflects that the release prepared by counsel

for FOL included an expansive release of liability that required Prater to release “all

claims, demands, rights, actions, causes of action, suits . . . and allegations of any kind

and character whatsoever . . . which [Prater] ever had, now ha[s], or hereafter can, shall,

or may have against [FOL].” No provision of the MSA required Prater to release any

cause of action against FOL, particularly not any future causes of action. FOL’s release

asked for much more than what the parties agreed to in the MSA. In fact, Prater objected

to the broad release language required of her as reflected in an email exchange between

the lawyers for the parties. Consequently, we conclude that FOL did not perform or tender

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performance in accordance with the MSA. Because FOL did not establish each element

of its claim as a matter of law, the trial court erred in granting the summary judgment for

FOL. See Wesson v. Jefferson Savs. & Loan Ass’n, 641 S.W.2d 903, 906 (Tex. 1982).

Accordingly, we sustain Prater’s first issue.


Issue No. 2


       In her second issue, Prater challenges the trial court’s denial of her amended

motion for summary judgment.          Prater’s amended motion for summary judgment

addressed two matters: first, she alleged that she complied with the terms of the MSA,

and second, that FOL breached the MSA by refusing to execute a release and dismiss

the suit with prejudice.


       Under the MSA, FOL’s obligation to release Prater did not arise until Prater

complied with the terms of the MSA. One of the terms of the MSA was that Prater would

“release all rights to the lights and decorations” to FOL’s current board. In her affidavit in

support of her motion for summary judgment, Prater avers that she “has released any

and all rights to such lights and decorations which she might claim, and, in fact, has never

asserted a claim to such property.” The summary judgment evidence also indicates that

the “General Mutual Release and Settlement Agreement” prepared by FOL’s counsel

contained a release of the rights to the lights and decorations, yet Prater refused to sign

the document because it also contained a release of liability not required to be signed by

her. Nothing in the record establishes that Prater executed a release of all rights to the

lights and decorations. As such, we find that Prater has failed to establish that she

complied with the MSA and, consequently, FOL’s obligation to provide a release and



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dismiss the case has not been triggered. Accordingly, the trial court correctly denied

Prater’s request for summary judgment as Prater failed to establish her entitlement to

judgment as a matter of law. Id. Prater’s second issue is overruled.


                                        Conclusion


       While there is no dispute that the MSA is a valid, enforceable agreement, neither

party presented competent summary judgment evidence of breach by the other party.

Without such evidence, neither FOL nor Prater could establish entitlement to summary

judgment as a matter of law.


       We reverse the trial court’s summary judgment in favor of FOL. We affirm the trial

court’s denial of Prater’s amended motion for summary judgment. The judgment of the

trial court is therefore affirmed in part and reversed in part. We remand the cause to the

trial court for further proceedings in accordance with this opinion.




                                                         Judy C. Parker
                                                            Justice




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