                                   NO. 07-04-0541-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                SEPTEMBER 15, 2005
                          ______________________________

            MARSHALL CROSS, DANNY JOHNSON and LISA JOHNSON,

                                                                      Appellants

                                             v.

              ORIGEN FINANCIAL, LLC f/k/a DYNEX FINANCIAL, INC.,

                                                                      Appellee
                        _________________________________

             FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                  NO. 51,823-B; HON. JOHN B. BOARD, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Marshall Cross, Danny Johnson and Lisa Johnson appeal from a final summary

judgment rendered in favor of Origen Financial, L.L.C. f/k/a Dynex Financial, Inc. (Origen).

The latter sued to recover the price of a manufactured home it sold to Cross and in which

the Johnsons lived. Through two issues, appellants contend that the trial court erred in

granting Origen a summary judgment since 1) the parties settled their dispute and notice

of that settlement was afforded the trial court before the summary judgment was executed
and 2) Cross and the tenants were excused from performing the contract and paying for

the home since Origen itself breached the contract first. We affirm the summary judgment.

        Issue One – Settlement

        The purported settlement to which Cross and the others alluded arose during

mediation. Furthermore, the mediator sent the trial court a letter informing it that the parties

had reached an agreement. Yet, the terms of the agreement were not memorialized in a

writing signed by the litigants and filed as part of the record. That had to occur before the

agreement became enforceable. TEX . R. CIV . P. 11 (stating that unless provided otherwise

by the rules of civil procedure, no agreement between attorneys or parties touching any suit

pending will be enforced unless it be in writing, signed and filed as part of the record or

unless it is made in open court and entered of record). Being unenforceable due to the lack

of compliance with Rule 11, the agreement, or notice of it, did not bar the trial court from

proceeding with the suit. Nor did it bar the court from addressing the motions for summary

judgment still pending months after the litigants allegedly settled.1 Thus, we overrule the

first issue.

        Issue Two – Defenses

        Next, Cross and the Johnsons assert that summary judgment was improper because

Origen first breached the contract to pay for the manufactured home. In other words, the

breach by Origen relieved them from having to perform. While a prior material breach of


        1
           The authority relied up on b y Cro ss and the Johns ons is inappos ite. For instance, Rose v. Pfister,
607 S.W.2d 587 (Tex. App.–H ous ton [1 st Dist.] 1980, no writ) did not deal with the application of Rule 11. Nor
did anyone there question whether claims had actually been settled. And, while the court in Burnaman v.
Heaton, 240 S.W.2d 288 (Tex. 1951) did mention Rule 11 in its opinion, the iss ue invo lved the trial co urt’s
auth ority to sign a consent judgment pursuant to an agreement complying with the rule when it had notice that
a party withdrew its consent to settle before the judgment was executed. None of those situations are involved
here .

                                                       2
a contract by one who is a party to a contract may relieve the other party from performing,

such an allegation is known as an excuse and constitutes an affirmative defense. RE/MAX

of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 327-28 (Tex. App.–Houston [1st Dist.] 1997,

pet. denied). Being an affirmative defense, it must be pled or tried by consent, otherwise

it is waived. Id. Neither Cross nor the Johnsons alleged excuse in their live pleading; nor

do they contend that the issue was summarily tried by consent. Consequently, this issue

too is overruled.

       Accordingly, we affirm the judgment of the trial court.



                                                 Brian Quinn
                                                 Chief Justice




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