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<P><SPAN STYLE="font-size: 14pt"><CENTER><STRONG>NUMBER 13-09-00548-CV</CENTER> 

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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>COURT OF APPEALS</CENTER> 

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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>THIRTEENTH DISTRICT OF TEXAS</CENTER> 

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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>CORPUS CHRISTI</STRONG></SPAN> - <SPAN STYLE="font-size: 16pt"><STRONG>EDINBURG</STRONG>  </SPAN><SPAN STYLE="font-size: 14pt"></CENTER> 

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<P><SPAN STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

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<P><SPAN STYLE="font-size: 14pt"><STRONG>CONSUMER PORTFOLIO SERVICES, INC.,				Appellant,</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>v.</CENTER> 

</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-size: 14pt"><STRONG>JUDITH OBREGON,							         Appellee.</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-size: 14pt"><STRONG>                                                                                                                        

</STRONG></SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="font-size: 14pt"><STRONG>On appeal from the County Court at Law No. 2 </STRONG></SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="font-size: 14pt"><STRONG>of Hidalgo County, Texas.</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P ALIGN="CENTER"><SPAN STYLE="font-size: 16pt"><STRONG>MEMORANDUM OPINION</STRONG></SPAN><STRONG></STRONG></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><CENTER><STRONG>Before<SPAN STYLE="font-size: 14pt"> Justices Ya&ntilde;ez, Rodriguez, and Garza </CENTER> 

</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>Memorandum Opinion by Justice Rodriguez</STRONG></SPAN></CENTER> 

</P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>	This appeal arises from a dispute over compliance with the parties' Rule 11 

settlement agreement.  <EM>See </EM>Tex. R. Civ. P. 11.  At issue is the trial court's denial of 

appellant Consumer Portfolio Services, Inc.'s (CPS) motion for summary judgment and 

granting of appellee Judith Obregon's motion for summary judgment.  By three issues, 

CPS argues that the trial court erred in:  (1) granting Obregon's motion for summary 

judgment based on CPS's alleged breach of the settlement agreement by failing to make 

payment of $3,000.00 within twenty days of December 5, 2008; (2) denying CPS's motion 

for summary judgment based on Obregon's alleged breach of the settlement agreement 

by repudiation and refusal to execute a release of liability upon tender; and (3) awarding 

attorney's fees to Obregon.  We affirm in part, reverse in part, and remand for further 

proceedings. <SPAN STYLE="font-family: Times New Roman"><STRONG></STRONG></SPAN><STRONG>I.  Background</STRONG></P> 

 

<P>	On November 28, 2007, Obregon filed her original petition against Rio Grande 

Valley Motors, Inc. (RGVM) and CPS, alleging claims arising out of the purchase of a 

motor vehicle from RGVM.  In her subsequent amended complaints on September 8, 2008 

and November 20, 2008, Obregon claimed RGVM failed to inform her that the vehicle she 

purchased had been previously damaged and that CPS, a consumer finance company that 

was assigned the retail sales installment contract executed between RGVM and Obregon, 

engaged in unfair debt collection practices by misrepresentation of the status of a 

consumer debt.  </P> 

 

<P>	In early December 2008, CPS gave RGVM written authority to negotiate a 

settlement agreement on its behalf with Obregon.  On December 4, 2008 and December 

5, 2008, a series of fax transmissions were exchanged between RGVM and Obregon in 

an attempt to reach a settlement agreement.  Fax #1 was sent on December 4, 2008, from 

RGVM to Obregon, offering the following:  </P> 

 

<P>	On behalf of my client and CPS, Inc. we hereby extend a joint settlement 

offer of $12,000.00.  CPS will wipe out the deficiency and delete the trade 

line from the credit report.  A tri-party release will be executed by all.  </P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>On December 5, 2008, Obregon counteroffered with Fax #2:  </P> 

 

<P>	In response to the Defendants' joint offer, we counter at $12,500.00 plus 

deletion of trade line/clearance/release of any debt balance, payable within 

20 days.  I believe $12,500.00 represents the midpoint of Plaintiff's demands 

and Defendants' last offer. </P> 

 

<P>  </P> 

 

<P>RGVM responded on December 5, 2008, to the counteroffer with Fax #3: </P> 

 

<P>	This Rule 11 Agreement will confirm we have reached a settlement between 

Defendants and your client Judith Obregon in the amount of $12,500.00 plus 

deletion of trade line/clearance/release of any debt balance.  This settlement 

shall be payable within 20 days.  If this confirms our agreement, please sign 

below and return via fax.  </P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>Obregon signed a copy of RGVM's response and returned it via Fax #4.  RGVM and CPS 

agreed that RGVM would be responsible for payment of $9,500.00 and CPS would be 

responsible for $3,000.00.<A HREF="#N_1_"><SUP> (1)</SUP></A>  </P> 

 

<P>	On December 11, 2008, RGVM sent a check to Obregon for the sum of $9,500.00 

with a letter indicating that CPS was "working on the settlement documents."  On 

December 18, 2008, CPS sent the proposed settlement documents, entitled "Confidential 

Compromise Settlement, Indemnity Agreement and Complete Release of All Claims," 

(CSA) to Obregon via Federal Express.  CPS contends, and Obregon does not dispute, 

that the proposed settlement documents were delayed due to CPS mistakenly addressing 

the package to Obregon's counsel's prior address and that they arrived on December 24, 

2008.</P> 

 

<P>	At 4:56 p.m. on December 24, 2008, CPS received a letter from Obregon by fax that 

contained the following:</P> 

 

<P>		Thank you for your settlement agreement received by my office today.  

Unfortunately, your client did not pay per the agreed time deadline, and we 

therefore consider your client in breach in the amount of $3,000.00.  We will 

release such claim if the sum of $3,500.00 is received on or before 

December 31, 2008. . . .  </P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>		I am having my client execute the CSA except for two changes 

(attached).  The first relates to the deadline established by written 

agreement; 20 days from December 5, 2008, which has not been altered by 

any agreement.  Second, the Release excludes release for any breach of the 

agreement itself.</P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>Accompanying the faxed letter were two revised pages of the CSA.  On one page, the 

settlement payment terms were scratched through and changed from an agreement to pay 

"within 20 days of the date of this agreement" to "within 20 days of Dec. 5, 2008."  On the 

revised second page, under the release portion of the CSA, the amendment "Plaintiff 

Obregon does not release breach of this agreement" was added.  This version of the CSA 

did not include a signature and was not sent in its entirety.  </P> 

 

<P>	On December 29, 2008, CPS responded to Obregon by faxed letter stating that: </P> 

 

<P>		In response to your letter received by fax at 4:56 p.m. on December 

24, 2008, there has been no breach of any settlement agreement by my 

client.  We were at all times after December 19, 2008, prepared to forward 

a check representing settlement of this matter to you upon receipt of the 

settlement agreement executed by your client.  A copy of the check payable 

to you and your client dated December 16, 2008, is attached.  Any delay in 

your client receiving the settlement fund prior to December 25, 2008, was 

solely as a result of absence of indication of approval of the settlement 

agreement sent to you via Federal Express on December 19, 2008.   </P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>		Please let me know whether you wish to proceed with the settlement 

and, if so, please provide me with a fax of the settlement agreement 

executed by your client to be followed by the original.  Upon receipt of an 

executed agreement, I will forward the check.  Otherwise, please let me 

know as soon as possible if your client has decided not to proceed with the 

settlement of this matter. </P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>	On December 29, 2008, Obregon responded that the "Rule 11 agreement provided 

that settlement funds were to be received by December 25, 2008," that "if [CPS] wanted 

to condition paying on receipt of a signed settlement agreement as a condition precedent, 

that language should have been included in the Rule 11 [agreement] and the Rule 11 

[agreement] is devoid of any such requirement," and that "I stand by my prior demand. . 

. .  That is, my client stands by the settlement, but calls your client in breach."  On January 

5, 2009, CPS received from Obregon a signed copy of the entire CSA with the two 

modifications:  payment "within 20 days of Dec. 5, 2008" and "Plaintiff Obregon does not 

release breach of this agreement."<A HREF="#N_2_"><SUP> (2)</SUP></A>  	</P> 

 

<P>	On January 7, 2009, Obregon filed her third amended petition, wherein she dropped 

all previous claims and alleged only breach of contract.<A HREF="#N_3_"><SUP> (3)</SUP></A>  On January 9, 2009, CPS filed 

a motion to enforce the settlement agreement.  On January 28, 2009, Obregon filed a 

traditional motion for summary judgment on her breach of contract claim; the ground for 

Obregon's motion was that her evidence clearly established CPS's breach of the 

settlement agreement.<A HREF="#N_4_"><SUP> (4)</SUP></A>  Also on January 28, 2009, CPS filed a counterclaim to Obregon's 

third amended petition, alleging that Obregon was in breach of contract.   On February 18, 

2009, CPS filed a traditional motion for summary judgment on its breach of contract claim; 

the ground for CPS's motion was that it established the elements of its breach of contract 

claim as a matter of law.<A HREF="#N_5_"><SUP> (5)</SUP></A>  On September 2, 2009, the trial court entered a final judgment 

granting Obregon's motion for summary judgment and denying CPS's motion; ordered 

deletion of trade line from the credit report and release of any debt balance; and awarded 

$3,000.00 in damages and $8,500.00 in attorney's fees to Obregon.  This appeal followed.</P> 

 

<P ALIGN="CENTER"><STRONG>II.  Traditional Summary Judgment Standard of Review</STRONG><SPAN STYLE="font-family: Times New Roman"></SPAN></P> 

 

<P><SPAN STYLE="font-family: Times New Roman">	</SPAN>We review the trial court's granting or denial of a traditional motion for summary 

judgment de novo.  <EM>Valence Operating Co. v. Dorsett</EM>, 164 S.W.3d 656, 661 (Tex. 2005); 

<EM>Branton v. Wood</EM>, 100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.).  When 

reviewing a <A NAME="SR;847"></A><A NAME="SearchTerm"></A>traditional <A NAME="SR;848"></A>summary <A NAME="SR;849"></A>judgment, we must determine whether the movant met its 

burden to establish that (1) no genuine issue of material fact exists and (2) the movant is 

entitled to <A NAME="SR;876"></A>judgment as a matter of law.  Tex. R. Civ. P. 166a(c); <EM>Provident Life and Acc. 

Ins. Co. v. Knott</EM>, 128 S.W.3d 211, 215 (Tex. 2003) (citing <EM>Haase v. Glazner</EM>, 62 S.W.3d 

795, 797 (Tex. 2001)); <EM>Sw. Elec. Power Co. v. Grant</EM>, 73 S.W.3d 211, 215 (Tex. 2002).  <A HREF="http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW10.06&referencepositiontype=S&serialnum=2009471239&fn=_top&sv=Split&referenceposition=292&pbc=2F63779B&tc=-1&ordoc=2012483867&findtype=Y&db=4644&vr=2.0&rp=%2ffind%2fdefault.wl&mt=99"><EM></EM><EM><SPAN STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A><A HREF="  "></A></SPAN></EM></SPAN><SPAN STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">In 

reviewing a traditional summary judgment, we consider all the evidence in the light most 

favorable to the nonmovant, indulging every reasonable inference and resolving any 

doubts in favor of the nonmovant.  <EM>Goodyear Tire &amp; Rubber Co. v. Mayes</EM>, 236 S.W.3d 

754, 756 (Tex. 2007) (per curiam).  "A party moving for summary judgment must establish 

its right to summary judgment on the issues expressly presented to the trial court by 

conclusively proving all elements of its cause of action or defense as a matter of law."  

<EM>Elliot-Williams Co. v. Diaz</EM>, 9 S.W.3d 801, 803 (Tex. 1999) (citations omitted); <EM>see also </EM>Tex. 

R. Civ. P. 166a(b), (c).  The summary judgment movant has conclusively established a 

matter if reasonable people could not differ as to the conclusion to be drawn from the 

evidence.  <EM>See City of Keller v. Wilson</EM>, 168 S.W.3d 802, 816 (Tex. 2005).	</SPAN></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	Ordinarily, when both sides move for summary judgment and the trial court grants 

one motion and denies the other, the court reviews the motions and all summary judgment 

evidence and renders the judgment that the trial court should have rendered.<EM>  SAS Inst., 

Inc. v. Breitenfeld</EM>, 167 S.W.3d 840, 841 (Tex. 2005) (per curiam);<EM> Barrand, Inc. v. 

Whataburger, Inc.</EM>, 214 S.W.3d 122, 129 (Tex. App.-Corpus Christi 2006, pet. denied) 

(citing <EM>Comm'rs Court v. Agan</EM>, 940 S.W.2d 77, 81 (Tex. 1997)). "However, we may also 

reverse the judgment and remand the cause when we find that course proper."<EM>  K3 Enters. 

v. McDaniel</EM>, 8 S.W.3d 455, 458 (Tex. App.-Waco 2000, pet. denied) (citations omitted).</SPAN></SPAN><SPAN STYLE="font-family: Times New Roman" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="COLOR: #0000ff"><STRONG>III.  Applicable Law</STRONG></SPAN><SPAN STYLE="font-family: Times New Roman" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN><SPAN STYLE="COLOR: #0000ff"></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	A settlement agreement may be enforceable as a contract.  <EM>See Ford Motor Co. v. 

Castillo</EM>, 279 S.W.3d 656, 663 (Tex. 2009).  In order to be considered enforceable as a 

contract, the settlement agreement must have complied with Texas Rule of Civil Procedure 

11.  <EM>Padilla v. LaFrance</EM>, 907 S.W.2d 454, 460 (Tex. 1995).  Rule 11 states that "no 

agreement between attorneys  or parties touching any suit pending will be enforced unless 

it be in writing, signed and filed with the papers . . . ."  Tex. R. Civ. P. 11.  In addition, a 

Rule 11 agreement follows the requirements of the statute of frauds, including the 

allowance that a written memorandum need not be contained in a single document.  <EM>See 

Padilla</EM>, 907 S.W.2d at 460.  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	If an agreement complies with Rule 11, then the party seeking to enforce the 

agreement may amend its pleading and add a breach of contract claim.  <EM>See Mantas v. 

Fifth Court of Appeals</EM>, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (per curiam).  

The essential elements for a breach of contract claim are the following:  (1) existence of 

a valid contract; (2) performance or tendered performance by the plaintiff; (3) a breach by 

the defendant; and (4) damages sustained by the plaintiff as a result of the breach.  

<EM>Sauceda v. GMAC Mortgage Corp</EM>., 268 S.W.3d 135, 140 (Tex. App.-Corpus Christi 2008, 

no pet.).</SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Under the doctrine of repudiation or anticipatory breach, a party's performance 

under a contract is excused if the opposing party has repudiated.  <EM>Burford v. Pounders</EM>, 

145 Tex. 460, 199 S.W.2d 141, 144-45 (1947).  A repudiation or anticipatory breach occurs 

when a party absolutely repudiates the obligation, without just excuse, and the other party 

is damaged by the repudiation.  <EM>Barrand, Inc.</EM>, 214 S.W.3d at 140.  It is conduct that 

exhibits an unwavering intention to abandon, renounce, and refuse performance of the 

contract.  <EM>In re Braddock</EM>, 64 S.W.3d 581, 585 (Tex. App.-Texarkana 2001, no pet.); 

<EM>Hauglum v. Durst</EM>, 769 S.W.2d 646, 651 (Tex. App.-Corpus Christi 1989, no writ).  

Repudiation of a contract may consist of either words or actions by a party to a contract 

that indicate an intention that the party is not going to perform the contract according to its 

terms in the future.  <EM>Hauglum</EM>, 769 S.W.2d at 651.  </SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P ALIGN="CENTER"><SPAN STYLE="COLOR: #0000ff"><STRONG></STRONG></SPAN><SPAN STYLE="COLOR: #0000ff"><STRONG>IV.  Analysis</STRONG></SPAN><SPAN STYLE="font-family: Times New Roman" STYLE="COLOR: #0000ff"><STRONG></STRONG></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	To determine whether the competing motions for summary judgment on breach of 

contract were correctly disposed of, we must first decide whether Obregon, CPS, and 

RGVM entered into a valid and enforceable Rule 11 settlement agreement.    <EM>See Reilly 

v. Rangers Mgmt., Inc.</EM>, 727 S.W.2d 527, 529 (Tex. 1987).  Second, we must address 

whether the Rule 11 agreement, if any, is ambiguous.  <EM>Id.</EM>  If a valid, unambiguous Rule 11 

agreement exists, we then review the merits of the competing summary judgment motions 

de novo.  <EM>Id.</EM></SPAN><SPAN STYLE="font-family: Times New Roman" STYLE="COLOR: #0000ff"><STRONG></STRONG></SPAN><SPAN STYLE="COLOR: #0000ff"><STRONG>A.  The Rule 11 Agreement</STRONG> </SPAN><SPAN STYLE="font-family: Times New Roman" STYLE="COLOR: #0000ff"></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Obregon attached to her motion Fax #4, the December 5, 2008 countersigned letter, 

as evidence of the parties' Rule 11 settlement agreement, apparently contending in her 

motion that it alone contained the material terms of the agreement.  CPS contends that if 

Fax #4 is the entire Rule 11 agreement, then it fails to comply with general contract 

principles because the agreement lacks the mutual consideration that is necessary for a 

valid and enforceable contract.  Rather, CPS contends that Fax #4 fails to comprise the 

entire Rule 11 agreement, which was instead negotiated through the series of faxed letters 

(Faxes #1-4) between December 4, 2008 and December 5, 2008.  We agree with CPS. </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	The material terms in a settlement agreement are:  (1) a promise to pay in an 

exchange for release of liability and (2) payment.  <EM>Padilla</EM>, 907 S.W.2d at 461; <EM>see Cherco 

Props., Inc. v. Law</EM>, 985 S.W.2d 262, 266 (Tex. App.-Fort Worth 1999, no pet.);<EM> see also 

Two Bros. Trucking v. Modine Mfg. Co.</EM>, No. 13-07-00427-CV,  2009 WL 2192582, at *2 

(Tex. App.-Corpus Christi July 23, 2009, no pet.) (mem. op.).  Importantly, only Fax #1, the 

original offer from RGVM and CPS on December 4, 2008, included that "[a] tri-party 

release will be executed by all."  Thus, the countersigned letter alone does not contain the 

essential element of consideration--a promise to pay<EM> in exchange </EM>for a release of liability.  

Only when the faxed correspondences of December 4, 2008 and December 5, 2008, are 

read together as one written memorandum do they include the consideration and terms 

necessary for a valid contract based on a mutuality of obligations.  <EM>See ABB Kraftwerke 

Aktiengesellschaft v. Brownsville Barge &amp; Crane, Inc.</EM>, 115 S.W.3d 287, 293 (Tex. 

App.-Corpus Christi 2003, pet. denied).  Therefore, we conclude that the material terms 

of the parties' Rule 11 settlement agreement are contained not in Fax #4 alone, as argued 

by Obregon, but as set out in Faxes #1-4, the series of faxed transmissions between 

December 4, 2008 and December 5, 2008.  <EM>See Padilla</EM>, 907 S.W.2d at 460 (a written 

memorandum need not be contained in a single document). <EM>  </EM></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff"><EM>	</EM>"A settlement agreement is a contract, and its construction is governed by legal 

principles applicable to contracts generally."  <EM>Donzis v. McLaughlin</EM>, 981 S.W.2d 58, 61 

(Tex. App.-San Antonio 1998, no pet.).  Specifically, when construing a Rule 11 settlement 

agreement, we apply the principles of contract interpretation to determine ambiguity.  

<EM>Padilla</EM>, 907 S.W.2d at 460.  If a contract is capable of more than one reasonable 

interpretation, it is ambiguous; if, however, the contract can be given a certain or definite 

legal meaning, then it is not ambiguous and we will construe it as a matter of law.  <EM>See 

Coker v. Coker</EM>, 650 S.W.2d 391, 393 (Tex. 1983); <EM>see also Skulemowski v. Zavaletta</EM>, No. 

13-04-673-CV, 2007 WL 475319, at *4 (Tex. App.-Corpus Christi Feb. 15, 2007, pet. 

denied) (mem. op.).  When a contract contains an ambiguity, the granting of a motion for 

summary judgment is improper because the interpretation of the contract is a question of 

fact for the jury.  <EM>Reilly</EM>, 727 S.W.2d at 529.  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	With regard to the interpretation of the Rule 11 settlement agreement at issue, the 

parties here contend--and we agree--that the agreement is unambiguous; they merely 

offer different interpretations of its meaning.  <EM>See Dynegy Midstream Servs., L.P. v. 

Apache Corp.</EM>, 294 S.W.3d 164, 168 (Tex. 2009) ("A contract is not ambiguous simply 

because the parties disagree over its meaning.").  Obregon's interpretation is that payment 

of the settlement had to be made "within 20 days" of December 5, 2008.  CPS's 

interpretation is that payment was to be made "within 20 days" of execution of the "tri-party 

release executed by all."  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Our primary concern is to construe the contract to ascertain and give effect to the 

parties' intentions as expressed in the document.  <EM>Frost Nat'l Bank v. L&amp;F Distributors, Ltd.</EM>, 

165 S.W.3d 310, 211-12 (Tex. 2005).  To determine parties' intentions, courts consider the 

entire writing, seeking to harmonize and give effect to all contractual provisions.  <EM>Hofland 

v. Fireman's Funds Ins. Co., </EM>907 S.W.2d 597, 599 (Tex. App.-Corpus Christi 1995, no 

writ).  The language used by the parties is to be given its plain, grammatical meaning 

unless it appears that to do so would defeat the parties' intentions.  <EM>Lyons v. Montgomery</EM>, 

701 S.W.2d 641, 643 (Tex. 1985).  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Based on our examination of the series of faxed letters that form the Rule 11 

agreement, we conclude that the settlement agreement can be given a definite legal 

meaning and thus construed as a matter of law.  <EM>See Coker</EM>, 650 S.W.2d at 393.  The 

"payable within 20 days" term of the agreement does not render it ambiguous.  <EM>See</EM> <EM>Shaw 

v. Kennedy, Ltd.</EM>, 879 S.W.2d 240, 246 (Tex. App.-Amarillo 1994, no writ) (holding that 

time of performance is not a material term of an agreement).  Rather, it is clear that the 

parties intended to settle the lawsuit by CPS and RGVM providing payment of "$12,500.00 

plus deletion of trade line/clearance/release of any debt balance" in exchange for release 

of liability via the "tri-party release . . . executed by all."  </SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="COLOR: #0000ff"><STRONG>B.  Obregon's Motion for Summary Judgment</STRONG></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	We have determined the existence of a valid contract and will assume, without 

deciding, that Obregon showed performance or tendered-performance and damages.  

Nonetheless, we conclude that Obregon cannot show a breach by CPS.  <EM>See Sauceda</EM>, 

268 S.W.3d at 140.  Obregon's motion for summary judgment was based on an 

interpretation of the Rule 11 settlement agreement that considered a breach to have 

occurred if actual payment was not made "within 20 days" of December 5, 2008.  However, 

because the agreement did not stipulate that time was of the essence, Obregon's 

interpretation is erroneous. <EM>See</EM> <EM>Shaw</EM>, 879 S.W.2d at 246.  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Generally, time of performance is not a material term of an agreement and "any 

intention to make time of the essence must be clearly manifested in the contract."  <EM>Id.</EM>  "The 

fact that [a] contract states a date for performance does not, of itself, mean that time is of 

the essence."  <EM>Argos Res., Inc. v. May Petroleum Inc.</EM>, 693 S.W.2d 663, 664-65 (Tex. 

App.-Dallas 1985, writ ref'd n.r.e.) (quoting <EM>Laredo Hides Co., Inc. v. H &amp; H Meat Prods. 

Co., Inc.</EM>, 513 S.W.2d 210, 217 (Tex. App.-Corpus Christi 1974, writ ref'd n.r.e.)).  In order 

to make time of the essence, a contract must so provide by express stipulation or there 

must be something in the nature of the subject matter or connected with the purpose of the 

contract and the circumstances surrounding it which makes it apparent that the parties 

intended that the contract be performed at or within the time specified.  <EM>Laredo Hides Co</EM>.<EM>, 

Inc.</EM>, 513 S.W.2d at 216.  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	When time of performance is not stipulated, the law will imply a reasonable time.  

<EM>Moore v. Dilworth</EM>, 142 Tex. 538, 179 S.W.2d 940, 942 (1944); <EM>see Fitzsimmons v. 

Anthony</EM>, 716 S.W.2d 719, 720 (Tex. App.-Corpus Christi 1986, no writ) (agreeing with the 

trial court that "in the absence of 'time of the essence' provisions and stipulated 

performance dates, parties are entitled to a reasonable time to perform their part of the 

contract").  After reviewing the parties' Rule 11 settlement agreement, we find nothing in 

the nature of the subject matter connected with settlement or the circumstances 

surrounding the agreement that make it apparent that the contract needed to be performed 

at or within the time specified.<A HREF="#N_6_"><SUP> (6)</SUP></A>  <EM>See Laredo Hides Co., Inc.</EM>, 513 S.W.2d at 216.  Thus, 

time of performance by CPS was implied as a reasonable time, and CPS did not breach 

the parties' Rule 11 settlement agreement by failing to make actual payment on December 

24, 2008.  <EM>See Fitzsimmons</EM>, 716 S.W.2d at 720.  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Time was not of the essence; therefore, a lack of actual payment "within 20 days" 

from the December 5, 2008 agreement did not constitute a breach.  We hold the trial court 

erred in granting Obregon's motion for summary judgment because she did not 

conclusively prove an essential element of her claim as a matter of law.  <EM>See Elliot-Williams 

Co.</EM>, 9 S.W.3d at 803; <EM>see also </EM>Tex. R. Civ. P. 166a(b), (c).  We sustain CPS's first issue 

on appeal.   <EM></EM></SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="COLOR: #0000ff"><STRONG>C.  CPS's Motion for Summary Judgment</STRONG> </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	For CPS to prevail on its motion for summary judgment, it must establish that no 

material fact issues exist on its breach of contract claim and must conclusively prove all 

elements of breach of contract as a matter of law.  <EM>See </EM>Tex. R. Civ. P. 166a(b), (c);<EM> Elliot-Williams Co.</EM>, 9 S.W.3d at 803; <EM>Sauceda</EM>, 268 S.W.3d at 140.  As previously discussed, the 

parties had an enforceable contract based on the series of faxed letters between 

December 4, 2008 and December 5, 2008, that comprised the Rule 11 settlement 

agreement.  <EM>See Padilla</EM>, 907 S.W.2d at 460.  Thus, the first element has been satisfied. </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	It is also clear that CPS showed it satisfied its obligation to tender performance by 

being "ready, willing, and able to make payment" to Obregon.  <EM>See Perry v. Little</EM>, 419 

S.W.2d 198, 200 (Tex. 1967); <EM>Sauceda</EM>, 268 S.W.3d at 140.  CPS was not required to 

make actual presentment and payment of $3,000.00 "within 20 days" of December 5, 2008 

because it was not stipulated that time was of the essence.  <EM>See</EM> <EM>Shaw</EM>, 879 S.W.2d at 

246.  In addition, the nature of the Rule 11 agreement involved concurrent consideration; 

CPS's obligation for tender of performance was to make clear to Obregon that CPS was 

willing and able to deliver the $3,000.00.  <EM>See Perry</EM>,<EM> </EM>419 S.W.2d at 200 ("[I]f the contract 

contemplates concurrent acts, it is sufficient to put one party in default [if] the other party 

is ready, willing, and offers to perform his part of the contract . . . .  The actual production 

of the . . . thing which the [party] is to give is . . .  unnecessary.").  CPS provided evidence 

in its motion for summary judgment that on December 29, 2008, CPS indicated in its faxed 

letter its willingness to tender performance in exchange for release.  It is undisputed that 

Obregon refused to accept payment and instead filed a breach of contract action against 

CPS.  Thus, CPS satisfied the second element of its breach of contract claim.    </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	With regard to the third element, CPS argues that Obregon breached the parties' 

Rule 11 settlement agreement by repudiation when Obregon faxed the December 24, 2008 

letter that stipulated "your client did not pay per the agreed time deadline, and we therefore 

consider your client in breach in the amount of $3,000.00. . . .  We will release such claim 

if the sum of <EM>$3,500.00</EM> is received on or before December 31, 2008."  (Emphasis added.)  

CPS argues that Obregon repudiated by increasing the settlement sum an additional five-hundred dollars, thus indicating to CPS that Obregon did not intend to perform the contract 

according to its terms in the future.  <EM>See Hauglum</EM>, 769 S.W.2d at 651.  We agree.</SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	When Obregon insisted on additional payment in exchange for release of liability, 

she changed a material term of the settlement agreement.  <EM>See</EM> <EM>Padilla</EM>, 907 S.W.2d at 

461.  Obregon's conduct indicated an intention to abandon, renounce, and refuse 

performance of the contract as to the agreed-upon material terms of the agreement.  <EM>See 

In re Braddock</EM>, 64 S.W.3d at 585; <EM>Hauglum</EM>, 769 S.W.2d at 651.  "When one party 

materially breaches a contract, the nonbreaching party is forced to elect between two 

courses of action, i.e., continuing performance or ceasing performance."  <EM>Kennedy Ship 

&amp; Repair, L.P. v. Phan</EM>, 210 S.W.3d 11, 25 (Tex. App.-Houston [14th  Dist.] 2006, no pet.); 

<EM>see Chilton</EM> <EM>Ins. Co. v. Pate &amp; Pate Enters, Inc.</EM>, 930 S.W.2d 877, 887-88 (Tex. App.-San 

Antonio 1996, writ denied).  CPS chose to continue performance and informed Obregon 

of its intention in the December 29, 2008 faxed letter stating that "there has been no 

breach of any settlement agreement by my client.  We were at all times . . . prepared to 

forward a check representing settlement of this matter to you upon receipt of the settlement 

agreement executed by your client."  CPS was thus willing and able to perform.  <EM>See</EM> 

<EM>DiGiuseppe v. Lawler</EM>, 269 S.W.3d 558, 593-94 (Tex. 2008). </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	In response to CPS's December 29, 2008 fax, Obregon alleged breach, demanded 

an increase of the settlement amount agreed to in the Rule 11 agreement, and notified 

CPS that two changes had been made on the CSA.  CPS received a signed copy of the 

altered CSA on January 5, 2009.  However, agreement to the two modifications to the 

CSA--that payment must be made "within 20 days of Dec. 5, 2008" and that "Plaintiff .&nbsp;.&nbsp;. 

does not release breach of this agreement"--would have forced CPS to admit that it 

breached the contract because twenty days from December 5, 2008 had already passed.  

Obregon's insistence on additional language that would force breach by CPS is further 

evidence of repudiation.  <EM>See Hauglum</EM>, 769 S.W.2d at 651.  Thus, CPS established the 

third element.         </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	However, CPS failed to conclusively prove the fourth and final element of its 

claim--damages as a result of the breach by Obregon.  In its brief, CPS claims that it is 

entitled to specific performance "by entry of an order requiring Obregon to execute a 'tri-party release.'"  Although in an action for breach of contract, a plaintiff can sometimes elect 

an equitable remedy such as specific performance, <EM>see Stafford v. S. Vanity Magazine, 

Inc.</EM>, 231 S.W.3d 530, 535 (Tex. App.-Dallas 2007, pet. denied) (citing <EM>Kress v. Soules</EM>, 

261 S.W.2d 703, 704 (Tex. 1953)) (other citations omitted), this statement in CPS's 

appellate brief is its first mention of any injury other than attorney's fees incurred as a result 

of Obregon's breach.  In its counterclaim, CPS alleged the following: </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">		Plaintiff's failure to comply with the settlement agreement reached 

between the parties has caused damages to CPS.  In particular, CPS has 

been forced to expend attorney's fees to prepare and file a Motion to Enforce 

Settlement Agreement and this Amended Counter-claim.  It is anticipated 

that additional sums will be expended enforcing the settlement agreement.  

</SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">In its motion for summary judgment, CPS claimed the following:</SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">		CPS has suffered damages due to Plaintiff's breach of the December 

4-5 Agreement by continuing to incur expenses for attorney[']s fees in this 

action.  Had Plaintiff performed in accordance with the Dec. 4-5 Agreement, 

these additional attorney[']s fees would have been avoided.  CPS incurred 

attorney's fees in the amount of $13,500 as a result of Plaintiff's failure to 

abide by the December 4-5 Agreement. . . . </SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="COLOR: #0000ff">		. . . In summary, CPS established the elements of its breach of 

contract claim by . . . establishing [(1) a valid contract, (2) tendered 

performance, (3) breach, and (4)] damages by the fact that it has incurred 

substantial attorney[']s fees in this matter . . . .</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="COLOR: #0000ff">Finally, CPS did not argue at any of the various hearings on the motion to enforce and 

motions for summary judgment that it suffered any injury as a result of Obregon's breach 

other than the incurring of attorney's fees.  </SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	"Attorney's fees are ordinarily not recoverable . . . as actual damages in and of 

themselves."  <EM>Haden v. David J. Sacks, P.C.</EM>, 222 S.W.3d 580, 597 (Tex. App.-Houston  

[1st Dist.] 2007), <EM>rev'd on other grounds</EM>, 266 S.W.3d 447 (Tex. 2008) (citing<EM> Tana Oil &amp; 

Gas Corp. v. McCall</EM>, 104 S.W.3d 80, 81-82 (Tex. 2003); <EM>Qwest Commc'ns Int'l, Inc. v. 

AT&amp;T Corp.</EM>, 114 S.W.3d 15, 32-33 (Tex. App.-Austin 2003),<EM> rev'd in part on other 

grounds</EM>, 167 S.W.3d 324 (Tex. 2005)).  A party "rel[ying] on assertions of non[-] 

recoverable damages" alone, such as attorney's fees and expenses sustained in defending 

a lawsuit and prosecuting a counterclaim, has presented a legal barrier to any recovery on 

its suit for breach of contract.  <EM>See id. </EM>(citations omitted).  This is true even if all other 

elements of the claim are proven.  <EM>See Tana Oil &amp; Gas Corp.</EM>, 104 S.W.3d at 82<EM>.</EM></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Here, CPS claimed no damages other than the attorney's fees it incurred as a result 

of Obregon's breach, and we cannot consider CPS's assertion on appeal that it was 

entitled to the equitable remedy of specific performance because it did not present the 

issue to the trial court.  <EM>See</EM> Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the 

trial court by written motion, answer or other response shall not be considered on appeal 

as grounds for reversal."); <EM>McConnell v. Southside Indep. Sch. Dist.</EM>, 858 S.W.2d 337, 341 

(Tex. 1993) ("A motion must stand or fall on the grounds expressly presented in the 

motion.").  Because the only form of actual damages sought by CPS in its counterclaim 

was unrecoverable, <EM>see Haden</EM>, 222 S.W.3d at 597, CPS is unable to prove the final 

element of its breach of contract counterclaim and was not entitled to summary judgment.  

<EM>See Elliot-Williams Co.</EM>, 9 S.W.3d at 803; <EM>see also </EM>Tex. R. Civ. P. 166a(b), (c).  The trial 

court therefore did not err in denying CPS's motion for summary judgment.  We overrule 

CPS's second issue.</SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff">	Having determined that the trial court erred in granting Obregon's motion for 

summary judgment but did not err in denying CPS's motion, both parties' causes of action 

remain live, and remand is the proper disposition of this appeal.  <EM>See K3 Enters.</EM>, 8 S.W.3d 

at 458.  Because we are remanding for further proceedings, we do not reach CPS's third 

issue regarding attorney's fees.  <EM>See</EM> Tex. R. App. P. 47.1.<EM><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN><A NAME="SDU_14"></A><A NAME="SR;IN;F1"></A><A HREF="http://web2.westlaw.com/find/default.wl?rp=%2ffind%2fdefault.wl&vc=0&ordoc=2016382298&SerialNum=1967133409&FindType=Y&AP=&rs=WLW10.06&sv=Split&vr=2.0&fn=_top&mt=99&pbc=4E3BAB65&ifm=NotSet"></SPAN><SPAN STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A></SPAN></SPAN><STRONG><SPAN STYLE="text-decoration: underline"></SPAN></STRONG></P> 

 

<P ALIGN="CENTER"><STRONG><SPAN STYLE="text-decoration: underline">V.  Conclusion</SPAN></STRONG><SPAN STYLE="text-decoration: underline"><SPAN STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P> 

 

<P><SPAN STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	</SPAN></SPAN>We reverse the judgment of the trial court granting Obregon's motion for summary 

judgment; affirm the judgment of the trial court denying CPS's motion for summary 

judgment; and remand for further proceedings consistent with this opinion.</P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>							NELDA V. RODRIGUEZ</P> 

 

<P>							Justice</P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P>Delivered and filed the 4th</P> 

 

<P>day of November, 2010.</P> 

 

<P><A NAME="N_1_">1. </A>CPS's counsel attested by affidavit that CPS agreed to pay $3,000.00 of the settlement amount.  

<P><A NAME="N_2_">2. </A>The notarization of Obregon's signature on the CSA indicates it was executed on December 26, 

2008. 

<P><A NAME="N_3_">3. </A>Obregon's claims against RGVM were severed from her cause of action against CPS and are not 

before this Court on appeal. 

<P><A NAME="N_4_">4. </A>In support of her motion, Obregon attached the following evidence:  (1) CPS's motion to enforce the 

settlement agreement, which Obregon asserted contained judicial admissions by CPS; (2) the affidavit of 

Obregon's counsel, in which he describes his fees and attests that (a) CPS never made payment of $3,000, 

(b) CPS never tendered payment, (c) neither he nor his client rejected payment from CPS, and (d) he 

delivered a release from Obregon to CPS; and (3) attachments to the affidavit, including (a) Fax # 4, the 

counter-signed December 5, 2008 fax, (b) the December 24, 2008 letter from Obregon to CPS, and (c) the 

revised CSA, which Obregon signed and returned to CPS on January 5, 2009. 

<P><A NAME="N_5_">5. </A>In support of its motion, CPS attached the following evidence:  (1) Obregon's responses to CPS's 

requests for production, which included as attachments (a) copies of Faxes #1-4, (b) Obregon's December 

24, 2008 faxed letter to CPS, (c) CPS's December 29, 2008 response to Obregon's December 24 letter, and 

(d) a copy of the revised CSA that Obregon signed and sent to CPS on January 5, 2009; (2) a copy of the 

December 29, 2008 fax from Obregon to CPS; and (3) affidavit of counsel for CPS regarding his fees. 

<P><A NAME="N_6_">6. </A>We note that Obregon's December 24, 2008 letter to CPS includes the following statement:  "As you 

are aware, one inducement for [Obregon] to settle was the promise of payment of $12,500.00 by December 

25, 2008."  In her brief, Obregon implies, though never directly states, that this--i.e., payment by 

Christmas--was a circumstance indicating that time was of the essence.  We do not believe, however, that 

this one line in a letter that does not form any basis of the contract indicates a "manifest[ation] of intention" 

at the time of the contract that all parties "desired time of payment to be vital or that late payment would be 

ground for cancellation."  <EM>Laredo Hides Co., Inc. v. H &amp; H Meat Prods. Co., Inc.</EM>, 513 S.W.2d 210, 218 (Tex. 

App.-Corpus Christi 1974, writ ref'd n.r.e.). 

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