REVERSE and REMAND in part; AFFIRM in part; and Opinion Filed August 23, 2019




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-17-01335-CV

                               WESLEY ROEMER, Appellant
                                         V.
                                 EDD HASKINS, Appellee

                      On Appeal from the 191st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. Dc-13-02661

                            MEMORANDUM OPINION
                          Before Justices Bridges, Brown, and Nowell
                                  Opinion by Justice Bridges
       Wesley Roemer appeals the trial court’s judgment incorporating two prior summary

judgments. In a single issue, Roemer argues the trial court erred in (1) denying him summary

judgment on his declaratory judgment claims and breach of fiduciary duty claims against Edd

Haskins and (2) granting Haskins a take-nothing summary judgment on Roemer’s breach of

contract and breach of fiduciary duty claims and declaratory relief regarding the underlying

contract. Roemer appeals the trial court’s final judgment “only insofar as it incorporates those

prior summary judgment orders against Roemer and for Haskins.” In his cross-appeal, Haskins

argues the trial court erred in awarding Roemer management fees associated with a certain project

and the judgment should be modified to eliminate a percentage of the attorney’s fees awarded to
Roemer. We affirm the trial court’s judgment in part, reverse in part, and remand for further

proceedings.

       In July 2008, Roemer and Haskins, through the entity Haskins/Roemer L.L.C., began

operating a real estate business developing sites for the construction of self-storage facilities. In

April 2009, Haskins formed a limited liability company called Chapel Colorado, L.L.C. for the

development of a self-storage project in Colorado Springs, Colorado. Although Haskins was listed

as the sole member of Chapel Colorado, he shared in the equity and distributions with Roemer. In

2011, Haskins/Roemer entered into an agreement with Endeavor Real Estate Group (an “Endeavor

deal”) for a project known as Brodie MS, L.P. Haskins/Roemer was to act as the development

member for Brodie and was to be paid a developer’s fee, builder’s fee, and management fee.

       A dispute arose between Roemer and Haskins regarding their respective rights and

obligations related to Haskins/Roemer and other development projects. In December 2011,

Roemer and Haskins entered into a settlement agreement to resolve their disagreement related to

their respective roles in Haskins/Roemer. As Haskins stated in deposition testimony, “we both felt

like that the association between the two of us was more beneficial than each of us individually

going our own way.” In pertinent part for purposes of this appeal, the settlement agreement

provided as follows:

       Independent Deals. With the exception of Pflugerville, Brodie, Chapel Colorado
       and any current or future Endeavor deals, Haskins/Roemer, LLC shall not pursue
       any future deals. Roemer and Haskins are free to pursue deals either independently
       or with other entities. Notwithstanding the existence of Haskins/Roemer, LLC, the
       Haskins/Roemer, LLC Operating Agreement, or this Settlement Agreement, either
       Haskins or Roemer may engage in whatever activities they choose, whether the
       same may be competitive with Haskins/Roemer, LLC or otherwise without having
       or incurring any obligation to offer any interest in such activities to
       Haskins/Roemer, LLC or any other member. Nothing in this Settlement Agreement
       or the Haskins/Roemer Operating Agreement shall prevent the members from
       engaging in such activities, or require any member to permit Haskins/Roemer, LLC
       or any other member to participate in any such activities, and as a material part of
       each Parties’ consideration under this Settlement Agreement, each Party hereby
       waives any such right or claim of participation.
                                                –2–
       Notwithstanding the foregoing, the Parties agree to give Endeavor the right of first
       refusal on all self-storage deals in either the Austin or DFW SMSA. This
       requirement will expire on August 31, 2014 or one year after the issuance of a CO
       for any Endeavor- Haskins/Roemer, LLC self-storage project commenced before
       August 31, 2014, whichever comes later. Each party must be copied on all
       correspondence, offer or presentation of any deal made to Endeavor. If Endeavor
       declines to pursue such deal, within fourteen (14) days after same is presented to
       Endeavor either party shall be free to take any such deal to third-parties with no
       obligation to Haskins/Roemer, LLC or the other Party. If, however, Endeavor has
       indicated an interest in pursuing the deal, the Parties agree that they will not take
       the deal to any third-party so long as Endeavor continues to actively pursue such
       deal.

       In March 2013, Roemer filed his original petition against Haskins alleging, among other

things, that Haskins engaged in a concerted effort to exclude Roemer from any existing or future

development projects with Endeavor shortly after execution of the settlement agreement. Roemer

alleged the known Endeavor deals at the time of the settlement agreement were Brodie and

Southpark Meadows. Roemer alleged this was the second time Haskins had attempted to exclude

Roemer from joint projects by forming new LLCs and stating Roemer was no longer a participant

in the new entity. Specifically, Roemer alleged (1) Haskins informed Endeavor “he worked out

other arrangements with Roemer and that Roemer was not participating in the Southpark Meadows

project”; (2) Haskins and Endeavor thereafter continued to direct Roemer to make adjustments to

the Southpark Meadows projections and two other projects; and (3) when Roemer requested status

updates from Haskins regarding Southpark fees, Haskins told Roemer “there were delays and

Roemer was not told that he had been unilaterally excluded from the project.” Among other things,

Roemer asserted against Haskins claims of breach of the settlement agreement and fraud in

inducing Roemer to enter into the settlement agreement. Roemer also sought a finding that the

terms of the settlement were ambiguous and a declaratory judgment construing the terms of the

settlement agreement.

       In January 2015, Roemer filed a traditional motion for summary judgment seeking a

declaration that the “Independent Deals” provision of the settlement agreement (1) left Roemer
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and Haskins free to pursue any deals without any obligation to each other or Haskins/Roemer

except for the Pflugerville, Brodie, and Chapel Colorado deals and any current or future deals with

Endeavor and (2) Haskins Roemer must present any deals in Austin or Dallas/Fort-Worth to

Endeavor subject to the stated deadline, at which point Endeavor has a right of first refusal. The

motion also sought to impose liability on Haskins for usurping a corporate opportunity by

individually pursuing the Southpark Meadows project. The trial court denied Roemer’s motion

for summary judgment.

       Haskins filed competing motions for summary judgment seeking a declaration (1) that the

settlement agreement allowed Haskins to engage in “any activity” he chooses, regardless of

whether such activity competes with Haskins/Roemer and (2) by permitting Haskins to engage in

“any activity,” the settlement agreement eliminated any duty not to usurp any corporate

opportunity. In making this argument, Haskins relied on the Independent Deals provision of the

settlement agreement, especially the following language:

       Notwithstanding the existence of Haskins/Roemer, LLC, the Haskins/Roemer,
       LLC Operating Agreement, or this Settlement Agreement, either Haskins or
       Roemer may engage in whatever activities they choose, whether the same may be
       competitive with Haskins/Roemer, LLC or otherwise without having or incurring
       any obligation to offer any interest in such activities to Haskins/Roemer, LLC or
       any other member.

The trial court granted Haskins’ motions for summary judgment but reserved for trial Roemer’s

claims for breach of contract for Haskins’ (1) failure to pay Roemer the Brodie management fee

and (2) failure to distribute proceeds from the Chapel Colorado sale. Following a bench trial, the

trial court entered a final judgment awarding Roemer $81,248.31 in fees associated with the

Chapel Colorado deal and $36,000 in fees associated with the Brodie deal. This appeal followed.

       In a single issue, Roemer argues the trial court erred in (1) denying him summary judgment

on his declaratory judgment claims and breach of fiduciary duty claims against Edd Haskins and

(2) granting Haskins a take-nothing summary judgment on Roemer’s breach of contract and breach
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of fiduciary duty claims and declaratory relief regarding the underlying contract. In his brief,

Haskins argues the settlement agreement unambiguously permits either Roemer or Haskins to

pursue deals with Endeavor independently of Haskins/Roemer and each other and does not require

them to pursue those deals through Haskins/Roemer. In effect, both Roemer and Haskins are

raising on appeal the issues raised in their competing motions for summary judgment.

       Whether a contract is ambiguous is a question of law for the court to decide. Friendswood

Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Arredondo v. City of Dallas, 79

S.W.3d 657, 666 (Tex. App.—Dallas 2002, pet. denied). If a contract can be given a definite or

certain legal meaning or interpretation, then it is not ambiguous. Coker v. Coker, 650 S.W.2d 391,

393 (Tex. 1983); Arredondo, 79 S.W.3d at 666. If, however, the contract is reasonably susceptible

to more than one meaning, it is ambiguous. Coker, 650 S.W.2d at 393; Arredondo, 79 S.W.3d at

666. A contract ambiguity may be either patent or latent. Arredondo, 79 S.W.3d at 666. A patent

ambiguity is one evident on the face of the contract, while a latent ambiguity exists when a contract

is unambiguous on its face, but fails because of some collateral matter that creates an ambiguity.

Nat’l Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Arredondo, 79 S.W.3d

at 666. Patent ambiguity of a contract may be considered for the first time on appeal from a motion

for summary judgment. Arredondo, 79 S.W.3d at 666. If a contract is ambiguous, the ambiguity

raises a fact question to be determined by a jury. Id.

       Here, Roemer argues the settlement agreement required Haskins to pursue future deals with

Endeavor through the LLC, Haskins/Roemer, and Haskins breached his fiduciary duties under the

settlement agreement by usurping the Southpark project for himself alone. In making this

argument, Roemer relies on the language in the settlement agreement that, “[w]ith the exception

of Pflugerville, Brodie, Chapel Colorado and any current or future Endeavor deals,

Haskins/Roemer, LLC shall not pursue any future deals.” Roemer argues this language makes

                                                –5–
clear that Haskins/Roemer would continue for certain projects, including “any current or future

Endeavor deals.”

       In contrast, Haskins argues the settlement agreement permitted Roemer and Haskins to

pursue Endeavor deals independently of Haskins/Roemer and each other. Haskins argues the first

paragraph of the Independent Deals paragraph “merely defines and limits the LLC’s business (if

any) going forward.” Haskins emphasizes the next three sentences in the paragraph which provide

“Roemer and Haskins are free to pursue deals either independently or with other entities,” Roemer

and Haskins may “engage in whatever activities they choose” notwithstanding the settlement

agreement, and “nothing” in the settlement agreement prevents Roemer or Haskins from engaging

in activities competitive with Haskins/Roemer or requires them to conduct those activities

exclusively through the LLC.

       We conclude the settlement agreement is reasonably susceptible to more than one meaning.

The summary judgment evidence is not conclusive as to which interpretation the parties intended.

The settlement agreement is, therefore, patently ambiguous and the trial court erred in granting

summary judgment. See Arredondo, 79 S.W.3d at 669. We sustain Roemer’s issue.

       In Haskins’ cross-appeal, he argues the trial court erred in awarding Roemer $36,000 in

management fees relating to the Brodie project when Roemer admitted he did not perform or even

try to perform any of the manager duties required by the settlement agreement. Haskins argues

further that, because Roemer is not entitled to any damages on his breach of contract claim relating

to the Brodie fees, he cannot recover any attorney’s fees on that claim.

       Where, as here, a record contains no findings of fact and conclusions of law, all necessary

findings of fact to support the court's judgment are implied. Burns v. Burns, 116 S.W.3d 916, 920

(Tex. App.—Dallas 2003, no pet.). In a nonjury trial “every reasonable inference and intendment




                                                –6–
supported by the record will be drawn in favor of the trial court’s judgment.” Black v. Dallas Cnty.

Child Welfare Unit, 835 S.W.2d 626, 630 (Tex.1992).

       The trial court denied summary judgment on the issue of Haskins’ failure to pay Roemer

the Brodie management fee and reserved the matter for trial. At trial, Roemer testified there was

an oral agreement between him and Haskins that Roemer would manage “100 percent of

Pflugerville” and Haskins would manage “100 percent of Brodie,” and they would “split the

management fee for those two entities, Brodie and Pflugerville 50-50.” Roemer confirmed he

submitted an affidavit in which he stated he “performed the requisite amount of manager and [sic]

duties that Haskins/Roemer was obligated to perform on Brodie pursuant to the terms of the

Settlement Agreement.” Roemer also confirmed he did not perform any management duty on

Brodie because “the duties were split for me to do Pflugerville and not Brodie.”

       Haskins read aloud from his deposition that Haskins “would go over to Brodie while”

Brodie was “merchandised and the system set up” “if [Roemer] would come pick up the slack at

Pflugerville until [Haskins] could get Brodie up and running.” Haskins testified this “made it

possible for” Roemer to come to Austin and get “signature cards and review[] the invoices and

[pay] the bills.” On cross-examination, Haskins was asked whether there was any dispute

“regarding whether Mr. Roemer performed his required duties, management duties with Brodie.”

Haskins answered, “Absolutely none,” and clarified that Roemer “openly admits that he’s

performing all management duties at Brodie. It’s indisputable.” On this record, drawing every

reasonable inference and intendment in favor of the trial court’s judgment, we conclude the trial

court could have concluded Roemer was entitled to recover management fees in connection with

Brodie. See Black, 835 S.W.2d at 630. Because Roemer was entitled to damages on his claim

related to the Brodie fees, Haskins’ challenge to the award of attorney’s fees incurred in asserting

that claim lacks merit. We overrule Haskins’ issues raised in his cross-appeal.

                                                –7–
       We affirm that portion of the trial court’s judgment awarding $117,248.31, plus interest,

and attorney’s fees to Roemer; we reverse the trial court’s orders on motions for summary

judgment entered on November 23, 2015 and February 16, 2016, and we remand for further

proceedings consistent with this opinion.




                                                /David L. Bridges/
                                                DAVID L. BRIDGES
                                                JUSTICE


171335F.P05




                                             –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 WESLEY ROEMER, Appellant                           On Appeal from the 191st Judicial District
                                                    Court, Dallas County, Texas
 No. 05-17-01335-CV         V.                      Trial Court Cause No. Dc-13-02661.
                                                    Opinion delivered by Justice Bridges.
 EDD HASKINS, Appellee                              Justices Brown and Nowell participating.

         In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE the trial court's orders on motions
for summary judgment entered November 23, 2015 and February 16, 2016, as incorporated into
the trial court’s final judgment. In all other respects, the trial court's judgment is AFFIRMED.
We REMAND this cause to the trial court for further proceedings consistent with this opinion.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered August 23, 2019.




                                              –9–
