Affirmed and Opinion Filed July 23, 2014




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-01547-CV

                                  SUBODH NAIK, Appellant
                                           V.
                                   SUHAS NAIK, Appellee

                      On Appeal from the 382nd Judicial District Court
                                  Rockwall County, Texas
                             Trial Court Cause No. 1-11-408

                                          OPINION
                          Before Justices Moseley, Bridges, and Evans
                                  Opinion by Justice Bridges

       Subodh Naik (Subodh) appeals the trial court’s judgment in favor of Suhas Naik (Suhas)

in this suit to recover the balance due on a note. In four issues, Subodh contends the trial court

erred by (1) entering judgment against him personally based on a nonrecourse note, (2) finding

the parties agreed to modify the note to remove the restriction regarding personal liability, (3)

entering judgment based on a claim that had been released, and (4) denying his request for

attorney’s fees. We affirm the trial court’s judgment.

                                          Background

       Subodh and his nephews, Suhas and Nilesh Saik, were partners in the Strandian

Partnership, which owned the Windjammer Apartments. In 1998, Subodh agreed to purchase

Suhas’s and Nilesh’s partnership interests. Using a “template,” Subodh drafted a Transfer and
Sale of Partnership Interest and a Promissory Note and forwarded the documents to an attorney

for comment.1              Subodh incorporated some of the attorney’s suggested changes into the

documents, and the parties signed the documents on June 18, 1998.

           Subodh agreed to pay $225,000 for Suhas’s and Nilesh’s partnership interests. At the

time the transaction closed, Subodh wrote two checks for $37,500, one to Suhas and one to

Nilesh. Subodh and his wife, Hema Saik, signed a promissory note for the $150,000 balance

owed on the purchase price (the Note). Section 2 of the Note stated:

           RESPONSIBILITY. There is no personal or corporate liability for the repayment
           of this loan. Lender shall only have recourse to the extent of the value of the
           Interest in the event of non payment when the Note is due.

Interest accrued on the loan balance “at the rate of 8.0% per year” until the Note was fully paid.

Subodh was required to pay the balance due on the Note when the Windjammer Apartments

were sold or refinanced. However, if Subodh did not refinance the Windjammer Apartments

before June 18, 1999, he was required to pay the balance “in monthly installments amortized at

8% over 15 years, with first payment due 7/18/99.”

           In 1999, Subodh, Suhas, Jim DePetris, and Sidney Goldstein formed a partnership, the

Santa Fe Lofts IV L.P., to purchase and develop the Santa Fe Building in downtown Dallas (the

Santa Fe project). Subodh refinanced the Windjammer Apartments in July 1999. From the

funds he obtained through the refinancing, Subodh paid Suhas an additional $75,000 on the Note

and invested in the Sante Fe project. The only payment Subodh made on the Note after July

1999 was a payment for $17,000 in February 2001. Although Suhas testified he credited this

payment to the Note, Subodh testified the money was a loan to help Suhas and Nilesh purchase a

house.



   1
       There was conflicting evidence at trial about whether the attorney represented only Suhas or represented all parties to the transaction.



                                                                       –2–
       In August 2000, Goldstein withdrew as a partner in the Santa Fe project, and Ajay

Kothari joined the partnership. At that time, the ownership interests in Santa Fe Lofts IV were

the general partner, Loft Properties, Inc., with 1%, Subodh with 39.5%, Suhas with 24.5%,

Kothari with 25%, and DePetris with 10%. In 2001, DePetris was having financial difficulties

and wanted to withdraw from the partnership. According to Suhas, he told Subodh that he did

not want to purchase DePetris’s interest, but Subodh insisted the partners purchase DePetris’s

interest. Suhas and Kothari were forced to borrow money to finance their share of the purchase.

After DePetris left the Santa Fe project, the partnership interests were Loft Properties with 1%,

Subodh with 42.83%, Suhas with 27.84%, and Kothari with 28.33%.

       On the Santa Fe project’s 2001 tax return, the partnership interests were listed as Loft

Properties with 1%, Subodh with 39.5%, Suhas with 29.5%, and Kothari with 30%. According

to Suhas, the partnership interests were changed to compensate him and Kothari for the

additional burden of borrowing money to purchase DePetris’s interest. Suhas testified that

Subodh agreed with the change at the time it was made. Subodh testified he first learned of the

change in the partnership interests when he saw the partnership’s tax return in September of

2002. According to Subodh, he questioned Suhas about the change and was told it was to pay

the balance due on the Note. Subodh could not explain why Kothari’s partnership interest was

adjusted based on the payment of the Note and admitted that Nilesh was not a participant in the

Santa Fe project.

       Subodh sold the Windjammer Apartments in 2003, but did not pay the balance of the

Note. According to Suhas, he repeatedly requested that Subodh pay the Note, but Subodh

indicated he did not have the funds to do so. Suhas testified he and Subodh agreed that Subodh

would pay the balance on the Note when he received funds from the Santa Fe project. Under

questioning at trial from Subodh’s attorney, Suhas affirmed that he agreed he “would wait until

                                              –3–
[Subodh] got his money out of the Santa Fe project before getting paid the rest of” the Note.

Suhas also affirmed that, because Subodh “had no funds,” he agreed that his recovery from the

Note “would be based upon [Subodh’s] recovery from the Santa Fe partnership.” Subodh denied

that he had any discussions with Suhas about payment on the Note not being due until he

received funds from the Santa Fe project.

       At some point, Hamilton Properties Corporation became involved in the Santa Fe project

and the decision was made to develop the building as a hotel. Subodh decided he no longer

wanted to be a part of the Santa Fe project and requested that Suhas and Kothari purchase his

interest for two million dollars. Suhas and Kothari were willing to pay approximately one

million dollars for the interest. The parties agreed to mediate the dispute.

       Approximately fifteen days before the mediation, Suhas sent an email to Subodh

requesting confirmation that the outstanding balance on the Note was $75,000, the interest rate

on the Note was eight percent, and one payment of $15,000 had been made in 2001. Suhas

indicated that he “expect[ed] this to be paid whenever Santa Fe closes. 7/8 years should be fair?

Hopefully this doesn’t become part of mediation.” Subodh responded “the amount is $17,000”

and that he would “sort ot [sic] this & others within ten days of the closing.” Subodh testified at

trial that he meant in his email that “[a]t the mediation you would come up with a figure. And

when I got the money, that’s when I would pay it.” Suhas responded by email that he would

“prefer this to be part of the closing statement as I’m borrowing against the WJ note, so lets [sic]

sort out now.” Suhas then listed a number of other items for which he was seeking repayment

from Subodh. Subodh testified he did not claim during the email exchange that the Note had

already been paid because he did not want to “muddle” anything prior to the mediation.

       The parties mediated the dispute on October 5, 2007.           Subodh testified he thought

“everything was on the table” at the mediation. He gave the mediator the email exchange he had

                                                –4–
with Suhas and raised the issue of the Note with the mediator. He admitted, however, that no

demands or offers were made to settle the Note during the mediation. Pursuant to the settlement

signed at the mediation, Suhas, Kothari, and the Santa Fe Lofts IV were required to pay Subodh

$1,515,000 at the time of the construction loan closing. Subodh would also receive a total of

$420,000 from the development fee for the Santa Fe project through monthly payments during

construction. Finally, Hamilton agreed to pay Subodh $65,000. Under the settlement agreement,

Suhas was to receive a total of two million dollars for his partnership interest. The Santa Fe

project construction loan closed in April 2008. Subodh received the payments set out in the

settlement agreement.

          Subodh and Suhas were partners, along with another individual, in a piece of land

identified as the I-30 project. In 2009, Subodh requested that Suhas and the other partner

reimburse him for some expenses incurred on the I-30 project. Suhas requested that Subodh pay

the balance due on the Note with an offset for the portion of expenses on the I-30 project that

Suhas owed Subodh.       Subodh responded the Note had been resolved at mediation by the

payment to Suhas of $65,000 through the settlement agreement. Suhas denied he had been paid

any money through the mediated settlement agreement and filed this suit to collect on the Note.

Subodh filed a counterclaim for attorney’s fees asserting the Note had been resolved by the

mediation and Suhas breached the settlement agreement by bringing this suit.

          The case was tried to the bench. The trial court rendered judgment that Subodh was

personally liable on the Note and awarded Suhas $131,493 for the balance due on the Note,

$12,000 for attorney’s fees through trial, and contingent attorney’s fees on appeal. Subodh filed

a request for findings of fact and conclusions of law. The trial court found, as pertinent to this

appeal:




                                               –5–
       12.     After Subodh sold the Windjammer Apartments, Subodh and Suhas modified the
       Note by agreement to allow Suhas to be paid from proceeds Subodh would realize from
       the Santa Fe project.

       14.    The adjustment to Subodh’s partnership interest in the Santa Fe project was not
       for payment to Suhas of the balance owed on the Note.

       17.    At the mediation, it was agreed that Subodh would ultimately be bought out of the
       Santa Fe project for a sum that totaled the $2,000,000 he had requested.

       18.    No money was deducted from the price of Subodh’s partnership interest to pay
       Suhas for the balance due on the Note.

       19.     The settlement agreement did not mention the Note and there was not a mediation
       relating to this lawsuit.

       22.    In addition to the agreed modification of the Note, the Note itself provided an
       additional basis for Subodh’s personal liability.

       23.     The language in the Note can be considered to be ambiguous concerning whether
       it prohibits personal liability completely or allows personal liability, but limits it at the
       value of the property interest.

       24.     Because Subodh drafted the Note, the ambiguity would be construed against him,
       creating a limited personal liability on the part of Subodh not to exceed the value of the
       interest, which was $225,000 on the date the Note was executed.

The trial court concluded, as pertinent to this appeal:

       6.      The increase in Suhas’s partnership interest in the Santa Fe project was not related
       to the Note.

       7.      The settlement did not release or resolve the claims relating to the Note.

       8.      The settlement agreement did not encompass the Note.

       9.      Suhas was entitled to recover personally from Subodh “based on the ambiguous
       and limiting language in the Note and/or based on the agreed modifications of the Note,
       to allow for payment to [Suhas] out of [Subodh’s] proceeds from Santa Fe.”

       Subodh filed a motion for new trial on grounds the Note was a nonrecourse note and the

Note was released in the settlement agreement. After a hearing, the trial court denied the motion

for new trial. It also made supplemental findings of fact that included, after the Windjammer

Apartments were sold, the parties agreed to modify the Note to provide for a different source of

                                                –6–
payment and to remove the restriction regarding personal liability or recourse; Subodh’s counsel

stipulated during trial that the modification of the Note included a modification that removed the

restrictions on personal liability or recourse; the Note was not discussed during the mediation;

and prior to the mediation, Subodh told Suhas that they would sort out the balance on the Note

within ten days of a closing that would occur after the mediation, indicating neither party

intended the mediation to cover the Note. The trial court made supplemental conclusions of law

that the parties modified the Note to remove restrictions regarding recourse and personal

liability, there was no consideration paid to Suhas as a result of the mediation for any release of

the Note, and the mediation did not settle or release the Note.

                                  Personal Liability on the Note

       In his first and second issues, Subodh asserts the trial court erred by finding he was

personally liable on the Note. The trial court found that Subodh was personally liable on the

Note because (1) the language of the Note was ambiguous and, construed against Subodh as the

drafter, provided for personal liability to the extent of the value of the interest; (2) the parties

agreed to modify the Note to provide for a different source of payment and to remove the

restriction on personal liability; and (3) Subodh’s counsel stipulated during trial that the

modification of the Note removed the restrictions on personal liability. On appeal, Subodh

challenges all three bases of personal liability found by the trial court.

       In his second issue, Subodh contends there is no evidence to support the trial court’s

finding the parties agreed to modify the Note to remove the restriction regarding personal

liability. Findings of fact in a case tried to the court have the same force and effect as jury

findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Sharifi v. Steen

Auto., LLC, 370 S.W.3d 126, 147 (Tex. App.—Dallas 2012, no pet.). We review those fact

findings under the same sufficiency standards we use when determining if sufficient evidence

                                                 –7–
exists to support an answer to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994); Principal Life Ins. Co. v. Revalen Dev., LLC, 358 S.W.3d 451, 454 (Tex. App.—Dallas

2012, pet. denied). When a party challenges the legal sufficiency of the evidence to support an

adverse finding on an issue on which he did not have the burden of proof at trial, the party must

demonstrate there is no evidence to support the adverse finding. Thornton v. Dobbs, 355 S.W.3d

312, 316 (Tex. App.—Dallas 2011, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58

(Tex. 1983)). If more than a scintilla of evidence supports the finding, the no-evidence challenge

fails. Id.; see also Kroger Tex., Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006).

“Evidence does not exceed a scintilla if it is ‘so weak as to do no more than create a mere

surmise or suspicion’ that the fact exists.” Suberu, 216 S.W.3d at 793 (quoting Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)).

           In reviewing the legal sufficiency of the evidence, we view the evidence in a light most

favorable to a finding, crediting favorable evidence if a reasonable fact finder could, and

disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v.

Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The trial court, as the fact finder in a bench trial, is

the sole judge of the credibility of the witnesses. Id. at 819; Wright Grp. Architects-Planners,

P.L.L.C. v. Pierce, 343 S.W.3d 196, 199 (Tex. App.—Dallas 2011, no pet.).2

           Whether a contract is modified depends on the parties’ intentions and is a question of

fact. Arthur J. Galagher & Co. v. Dieterich, 270 S.W.3d 695, 701 (Tex. App.—Dallas 2008, no

pet.). The party asserting a modification to a contract has the burden of proof. Intec Sys., Inc. v.

     2
       Subodh states in his brief that his second issue “involves legal and factual sufficiency challenges” and that the “standard of review is met
when, as is the case in the present appeal, there is a complete absence of evidence of a vital fact.” The subtitle of the section of his brief
addressing this issue is “There Was No Evidence of an Agreement to Modify the Note to Provide for Personal Liability” and his substantive
argument is only that there was no evidence to support the trial court’s finding the parties agreed that Subodh would be personally liable on the
Note. Therefore, to the extent Subodh has attempted to raise an issue regarding the factual sufficiency of the evidence to support the trial court’s
finding, we conclude it is inadequately briefed and presents nothing for review. See TEX. R. APP. P. 38.1(i) (appellate brief must contain clear
and concise argument for contentions made, with appropriate citations to authorities and record); Bullock v. Am. Heart Ass’n, 360 S.W.3d 661,
665 (Tex. App.—Dallas 2012, pet. denied) (“Failure to cite legal authority or provide substantive analysis of the legal issue presented results in
waiver of the complaint.”).



                                                                       –8–
Lowrey, 230 S.W.3d 913, 918 (Tex. App.—Dallas 2007, no pet.). A valid contract modification

must include a meeting of the minds supported by consideration. White v. Harrison, 390 S.W.3d

666, 674 (Tex. App.—Dallas 2012, no pet.). In determining whether the parties had a meeting of

the minds concerning a modification of a contract, the focus is on what the parties did and said,

not their subjective states of mind. Arthur J. Galagher & Co., 270 S.W.3d at 702.

           Here, although the Note required Subodh to pay the outstanding balance when he sold the

Windjammer Apartments, he failed to do so. Suhas testified he requested payment on the Note,

but Subodh indicated he did not have the funds. According to Suhas, he and Subodh agreed that

payment on the Note would be deferred until Subodh received funds from the Santa Fe project.

Prior to the mediation, Subodh stated in an email to Suhas that he preferred to “sort out” the Note

after the closing on the Santa Fe project. Subodh testified he meant that he would settle the issue

“as soon as [he] got some cash.” He thought the parties would “come up with a figure” at the

mediation and when he “got the money, that’s when [he] would pay it.” We conclude there is

more than a scintilla of evidence that Subodh agreed to a modification of the Note that required

him to personally pay the balance due on the Note when he received funds from the closing on

the Santa Fe project.3 Accordingly, Subodh’s no-evidence challenge fails, and we resolve his

second issue against him.

           Because we have concluded there is legally sufficient evidence to support the trial court’s

finding that Subodh and Suhas agreed to modify the Note to require payment by Subodh,

personally, after he received funds from the Santa Fe project, we need not address Subodh’s first

     3
        In his second issue, Subodh also challenges the trial court’s finding that his counsel stipulated at trial that the parties agreed to modify the
Note to allow for personal liability. During trial, in response to questioning from the trial court, Subodh’s counsel represented to the trial court
that the parties had an “oral agreement after the note.” Subodh’s counsel further agreed with the trial court’s statements that “[the oral
agreement] had no restriction or recourse one way or the other” and that “essentially this issue on personal liability and nonrecourse has been
changed by an oral agreement.” See Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998) (stipulation is “an agreement, admission, or concession
made in a judicial proceeding by the parties or their attorneys” respecting some matter incident to proceeding). In his appellate brief, Subodh
argues his counsel stipulated only that the parties modified the nonrecourse provision concerning the source of the recovery. Because there is
legally sufficient evidence to support the trial court’s finding without considering the stipulation made by Subodh’s counsel, we need not address
the extent of counsel’s stipulations. See TEX. R. APP. P. 47.1.



                                                                         –9–
issue challenging the trial court’s findings that the Note was ambiguous, must be construed

against Subodh, and allowed for limited personal liability. See TEX. R. APP. P. 47.1; Ginther v.

Taub, 675 S.W.2d 724, 725 (Tex. 1984) (declining to address challenges to trial court’s finding

providing alternative basis for judgment); Moody Nat’l Buffalo Speedway MT, L.P. v. Sirius

Solutions, LLLP, No. 01-12-00047-CV, 2013 WL 3155932, at *6 (Tex. App.—Houston [1st

Dist.] June 20, 2013, no pet.) (mem. op.) (declining to address challenges to trial court’s findings

providing alternative basis for judgment).

                                        Release of Claims

       In his third issue, Subodh asserts the trial court erred by rendering judgment against him

based on claims that had been released in the mediated settlement agreement.                Subodh

specifically challenges the trial court’s conclusion that the Note was not included in the “dispute”

covered by the settlement agreement. We review the trial court’s conclusions of law de novo.

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002);

       A release is a contractual arrangement that operates as a complete bar to any later action

based upon matters covered in the release. McCullough v. Scarbrough, Medlin & Assocs., Inc.,

No. 05-11-01303-CV, 2014 WL 2808126, at *7 (Tex. App.—Dallas June 20, 2014, no pet. h.).

A release is subject to the rules of construction governing contracts, including the rules relating

to ambiguity. Id. When construing a contract, “our primary concern is to ascertain and give

effect to the intent of the parties as expressed in the contract.” In re Serv. Corp. Int’l, 355

S.W.3d 655, 661 (Tex. 2011) (orig. proceeding) (per curiam). To understand that intent, we

examine the contract as a whole in light of the facts and circumstances present when the contract

was entered. Americo Life, Inc. v. Myer, No. 12-0739, 2014 WL 2789429, at *2 (Tex. June 20,

2014). We must consider the entire writing in an effort to harmonize and give effect to the

provisions of the contract so that none will be rendered meaningless. Italian Cowboy Partners,

                                               –10–
Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). If a contract can be given a

certain or definite legal meaning, it is not ambiguous. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d

840, 841 (Tex. 2005) (quoting Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)).                 An

unambiguous contract will be enforced as written. David J. Sacks, P.C. v. Haden, 266 S.W.3d

447, 450 (Tex. 2008) (per curiam).

       To release a claim effectively, the releasing instrument must “mention” the claim to be

released. Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692,

697–98 (Tex. 2000) (discussing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex.

1991)); McCullough, 2014 WL 2808126, at *7. However, it is not necessary for the parties to

anticipate and explicitly identify every potential cause of action relating to the subject matter of

the release. Keck, Mahin & Cate, 20 S.W.3d at 698; McCullough, 2014 WL 2808126, at *7.

Rather, “a valid release may encompass unknown claims and damages that develop in the

future.” Keck, Mahin, & Cate, 20 S.W.3d at 698; see also McCullough, 2014 WL 2808126, at

*7. Further, although the “mention” requirement does not bar general, categorical releases, such

releases are to be narrowly construed. Brady, 811 S.W.2d at 938; McCullough, 2014 WL

2808126, at *7. We also construe releases in light of the facts and circumstances surrounding the

execution of the release. Brady, 811 S.W.2d at 939. Claims not “clearly within the subject

matter of the release” are not discharged, even if those claims exist when the release is executed.

Id. at 938; McCullough, 2014 WL 2808126, at *7.

       The settlement agreement provided the parties desired to settle “all claims and causes of

action of any kind whatsoever which the parties have or may have arising out of the transaction

or occurrence which is the subject of this Dispute.” The settlement terms provided that (1)

Suhas, Kothari, and Santa Fe Lofts IV would pay Subodh $1,515,000 when the construction loan

for the Santa Fe project closed and $420,000, in monthly installments, from the development fee

                                               –11–
during the course of construction; (2) Hamilton would pay Subodh $65,000 when the

construction loan for the Santa Fe project closed; and (3) when the construction loan for the

Santa Fe project closed, Subodh would transfer his interest in the partnership to Suhas and

Kothari. The parties agreed to:

       release, discharge, and forever hold the other harmless from any and all claims,
       demands, or suits, known or unknown, fixed or contingent, liquidated or
       unliquidated, whether or not asserted in the above Dispute as of this date, arising
       from or related to the events and transactions which are the subject matter of this
       Dispute.

The settlement agreement does not define “Dispute.”

       Subodh argues the Note was necessarily related to the sale of his interest in the Santa Fe

project, and therefore is included in the “Dispute” because the trial court found the parties agreed

the Note would be paid when Subodh received money from the Santa Fe project.                 Suhas

contends, on the other hand, that the agreement references only the terms of the sale of Subodh’s

interest in the Santa Fe project, does not reference the Note, and all the credible evidence showed

the Note was not included in the mediation.

       Although the parties present conflicting interpretations of the settlement agreement,

neither party contends the agreement is ambiguous. However, the question of whether an

agreement is ambiguous is a question of law. Coker, 650 S.W.2d at 394; McCullough, 2014 WL

2808126, at *10. We may conclude a contract is ambiguous even if the parties do not plead

ambiguity or argue the agreement contains an ambiguity. See Coker, 650 S.W.2d at 394;

McCullough, 2014 WL 2808126, at *10. A lack of clarity does not create an ambiguity, and a

contract is not ambiguous simply because the parties advance conflicting interpretations.

Universal Health Servs., Inc. v. Renaissance Women’s Grp., P.A., 121 S.W.3d 742, 746 (Tex.

2003); McCullough, 2014 WL 2808126, at *10. An ambiguity arises only when an agreement is

susceptible to more than one reasonable meaning after application of established rules of

                                               –12–
construction.     Universal Health Servs., Inc., 121 S.W.3d at 746; McCullough, 2014 WL

2808126, at *10. Although the parol-evidence rule precludes considering evidence that would

render a contract ambiguous when the document, on its face, is capable of a definite legal

meaning, it does not prohibit the consideration of surrounding facts and circumstances that

inform the contract text and render it capable of only one meaning. Americo Life, Inc., 2014 WL

2789429, at *2.

       Considering the facts and circumstances surrounding the execution of the settlement

agreement, we conclude the trial court did not err by determining the Note was not clearly within

the subject matter of the release. See Americo Life, Inc., 2014 WL 2789429, at *2; Brady, 811

S.W.2d at 939–939. It was undisputed that the purpose of the mediation was to resolve the terms

of the sale of Subodh’s interest in the Santa Fe project to Suhas and Kothari. Prior to the

mediation, Subodh indicated he wanted to resolve the Note after the closing of the construction

loan for the Santa Fe project. There were no offers or demands made on the Note during the

mediation. The terms set out in the settlement agreement relate only to how much Subodh would

be paid for his interest in the Santa Fe project, when he would be paid for his interest, and the

manner in which the payments would be made. The settlement agreement does not mention the

Note, does not include Nilesh, and does not state how Suhas’s and Nilesh’s claims based on the

Note are being resolved. We conclude the trial court did not err by determining the Note was not

related to the “Dispute” that was the subject of the mediation. See Tenneco, Inc. v. Enter. Prods.

Co., 925 S.W.2d 640, 646 (Tex. 1996) (“[C]ourts will not rewrite agreements to insert provisions

parties could have included or to imply restraints for which they have not bargained.”). We

resolve Subodh’s third issue against him.

                                        Attorney’s Fees




                                              –13–
       In his fourth issue, Subodh asserts the trial court erred by failing to award him attorney’s

fees based on Suhas’s breach of the settlement agreement. Subodh specifically argues that,

because the trial court’s judgment should be vacated on the basis that the release encompassed

the Note, he is the prevailing party and entitled to recover his attorney’s fees.        We have

concluded the trial court did not err by determining the Note was not released under the

settlement agreement. Accordingly, Subodh is not the prevailing party and is not entitled to

recover his attorney’s fees for a breach of the settlement agreement. We resolve Subodh’s fourth

issue against him.

       We affirm the trial court’s judgment.



       121547F.P05

                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE




                                               –14–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

SUBODH NAIK AND HEMA NAIK,                           On Appeal from the 382nd Judicial District
Appellants                                           Court, Rockwall County, Texas
                                                     Trial Court Cause No. 1-11-0408.
No. 05-12-01547-CV         V.                        Opinion delivered by Justice Bridges.
                                                     Justices Moseley and Evans participating.
SUHAS NAIK, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee SUHAS NAIK recover his costs of this appeal from
appellants SUBODH NAIK AND HEMA NAIK.


Judgment entered July 23, 2014




                                              –15–
