                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00124-CV

RICHARD S. OHENDALSKI,
                                                          Appellant
v.

FRANK DANIEL LEASURE AND CHOCTAW
PAYROLL SERVICES, INC., DAN-CAV
ENTERPRISES, INC., THE ELC TRUST, AND
MOUNTAINTOP MANAGEMENT TRUST,
                                                          Appellees



                          From the 278th District Court
                             Walker County, Texas
                             Trial Court No. 24,095


                          D I S S E N T I N G OPINION


      This appeal presents a recurring problem: the proper procedure to be utilized

when one party believes a Rule 11 agreement to settle the entire proceeding has been

breached by the other party. We should take this opportunity to clarify the procedure

and try to prevent future problems. The Court’s disposition is contrary to Supreme Court
precedent and the precedent from this Court. It, therefore, fails to provide the guidance

needed for the bench and bar.

       Ohendalski sued Leasure and four other defendants.           Both Ohendalski and

Leasure initially represented themselves. It also appears that Leasure filed an answer on

behalf of himself and the four entities that were also named as defendants, although it

does not appear that Leasure is an attorney.        Notwithstanding the answers filed,

Ohendalski obtained a default judgment. Leasure then hired an attorney that was

successful in having the default judgment set aside. Thereafter, Ohendalski and Leasure

entered into a settlement agreement. Then the trouble really began.

       Leasure paid the agreed amount of the settlement to Ohendalski. Ohendalski

dismissed his claims against Leasure but not his claims against the other four defendants.

When Ohendalski began to try to obtain discovery from the other four defendants,

Leasure filed a motion to enforce the settlement agreement as a “Rule 11 Agreement.”

Leasure contends that the Rule 11 Agreement required Ohendalski to dismiss all the

defendants, in effect dismissing his entire case in the trial court. In response, Ohendalski

contended that under the agreement he was not required to dismiss anyone other than

Leasure, and that if the settlement agreement required more than that, he was

fraudulently induced into the agreement. Ohendalski, prior to the entry of judgment,

also filed a document which he contends revoked his assent to the settlement agreement.

The trial court, nevertheless, resolved the disputed factual allegations, and construed the


Ohendalski v. Leasure                                                                 Page 2
agreement to require the dismissal of the entire case.

       The question thus framed is whether a trial court may grant a motion to enforce a

Rule 11 Agreement and render a judgment that enforces the agreement that one party

contends disposes of the entire proceeding if the other party raises factual issues or

defenses and otherwise opposes that disposition. The simple answer, supported by

ample case authority, is that the trial court cannot. Texas does not have a procedure that

allows such a disposition. The proper procedure for the party asserting a failure to

comply with a Rule 11 Agreement that the party contends settled the entire dispute is to

amend their pleadings to assert a breach of contract claim. The party asserting the breach

of a Rule 11 Settlement Agreement, in this case Leasure, must then use traditional

procedural tools to dispose of the issue.

       The most likely procedure would be for the allegedly aggrieved party to then file

a motion for summary judgment, with the procedural safeguards provided therein, to

prove the validity of and to enforce the Rule 11 Agreement. This Court described the

application of this procedure in the disposition of Nancarrow v. Whitmer, 463 S.W.3d 243

(Tex. App.—Waco 2015, no pet.).

       As the Texas Supreme Court succinctly expressed the rule of law in an essentially

identical procedural context:

       When a trial court has knowledge that one of the parties to a suit does not
       consent to a judgment, the trial court should refuse to sanction the
       agreement by making it the judgment of the court. … Here, the trial court
       was fully advised that the Quinteros did not consent to the joint motion to
Ohendalski v. Leasure                                                                Page 3
        dismiss when it rendered the judgment of dismissal. Therefore, the trial
        court erred and the judgment of dismissal must be set aside.

Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983).

        In this proceeding, Leasure used an improper procedural vehicle to dispose of

potentially disputed fact issues. Ohendalski challenged the propriety of that procedure

in the trial court before judgment was rendered against him and now complains about

the result of using that improper procedure on appeal. While Ohendalski’s pro se brief

may not be a work of legal art, it directs the Court to the proper authorities that show the

trial court erred in disposing of his trial court case by simply granting Leasure’s motion

to enforce the Rule 11 Settlement Agreement.1

        Consequently, I would sustain Issue 3 in Ohendalski’s brief, reverse the trial

court’s judgment, and remand this proceeding to the trial court for a proper disposition

of the issues that must be resolved by a fact finder or summary judgment procedure.2

Because the Court does not, I respectfully dissent.



                                                  TOM GRAY
                                                  Chief Justice

1This is not to say that no Rule 11 agreement can be enforced by a motion. Some Rule 11 agreements relate
to issues like discovery where it may be appropriate to resolve the dispute via motion practice. But whether
this Rule 11 agreement involved the settlement of the entire case is the disputed issue and, therefore, cannot
be resolved simply by a motion to enforce.

2
  As to the other issues raised by Ohendalski, I would not rule on Issue 1 as that is the dispute that must be
resolved on remand. I would overrule Issues 2 and 4 because the trial court has the authority, with rare
exceptions not applicable here, to change its mind with regard to the ruling on a motion or proceeding until
it has lost plenary jurisdiction. I would dismiss Issue 5 because the trial court subsequently filed findings
of fact and conclusions of law. And I would not reach Issue 6 because it is unnecessary to a disposition of
this appeal.

Ohendalski v. Leasure                                                                                  Page 4
Dissenting opinion delivered and filed March 29, 2017




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