                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00024-CV


RICHARD W. BELL AND                                                APPELLANTS
MARGARET B. BELL

                                        V.

VICTOR MYERS CONSTRUCTION,                                            APPELLEE
LLC


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          FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
                   TRIAL COURT NO. CV-2013-02041

                                     ----------

                        MEMORANDUM OPINION 1

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      Appellants Richard W. Bell and Margaret B. Bell appeal from the trial

court’s final judgment giving immediate possession of property in Highland

Village, Texas to Appellee Victor Myers Construction, LLC (Victor Myers) and

releasing to Victor Myers $15,000 that the Bells had paid into the registry of the

      1
       See Tex. R. App. P. 47.4.
court. The Bells argue on appeal that the trial court’s judgment was erroneous

because it enforced a settlement agreement to which the Bells had withdrawn

their consent. Because we hold that the trial court did not err by rendering a

judgment enforcing the settlement agreement and releasing the registry funds,

we affirm.

                                    Background

      On September 6, 2012, Victor Myers and the Bells signed a sales contract

for the sale of the Highland Village property to the Bells. The contract stated that

the sale would close on December 13, 2012.            The parties also signed a

residential lease for the property with a term beginning on September 15, 2012,

and ending on December 15, 2012. The lease provided for a monthly rent of

$5,000. The parties did not, however, close on the sale.

      In July 2013, Victor Myers filed an eviction suit against the Bells in the

justice court.   The justice court rendered judgment granting Victor Myers

possession of the property plus attorney’s fees. The Bells then appealed to the

county court for a trial de novo.

      The Bells filed a plea in abatement and a motion to dismiss, asserting that

there was a title dispute and requesting that the case be abated until the title

dispute was resolved by a different suit that they had filed against Victor Myers in

district court. The Bells alleged that they had entered into an executory contract

deed with Victor Myers to buy the property.       In their district court pleadings,

attached to their plea in abatement, they alleged more specifically that Victor


                                         2
Myers did not deliver the deed in December 2012, but the Bells nevertheless

made all payments under the contract until February 2013, when a dispute arose

about the allocation of the payments.           They alleged that Victor Myers’s

subsequent termination of the contract did not comply with the property code,

and they requested specific performance of the contract.

      Upon the Bells’ motion, the trial court abated the proceedings until

resolution of the district court case. As a condition for the abatement, however,

the trial court ordered the Bells to pay $10,000 into the registry of the court as

rent payments for August 2013 and September 2013 and to pay an additional

$5,000 by the fifth of each month after that.

      The attorneys for the parties subsequently signed a settlement agreement

in open court. The hearing at which the agreement was signed was a hearing on

Victor Myers’s motion for contempt, which it had filed after the Bells had failed to

timely deposit the October rent payment into the registry of the court.

      At the contempt hearing, the parties’ attorneys acknowledged that the case

had been mediated, that Victor Myers had made a settlement offer on September

27, and that the October payment did not need to be made if the case had been

settled. Victor Myers’s attorney stated that he had received a communication

from the Bells’ attorney that the offer had been accepted, but the Bells’ attorney

had not sent anything to memorialize the acceptance. Victor Myers’s attorney

told the court that “we would like, if it has settled, it to be memorialized here




                                         3
today on the record, or that the $5,000 be tendered and some excuse made for

the lateness of it.”

       The Bells’ attorney contended that the payment had been made that

morning and that he understood that the payment did not have to be made

because the Bells had accepted the settlement offer. The attorney stated that

initially the Bells had not accepted the offer because Richard wanted ninety days

to close rather than the sixty days that had been offered. But after Richard was

able to secure financing for a shorter closing period, his attorney called Victor

Myers and accepted the offer.

       The trial court stated that “it sounds to me like I have just heard offer and

acceptance here on the record. So it sounds to me like this case is indeed

settled.” The parties’ attorneys then signed a copy of the settlement offer that

Victor Myers’s attorney had sent to the Bells’ attorney. The only change made to

the offer was an acknowledgement that the October payment had been made.

The attorneys signed the agreement there in open court.

       The agreement provided that, in return for dismissal of the suit and the

Bells’ dismissal of their district court case, the Bells would have until November

29, 2013 to close on the home. If they did not close by that date, the money in

the registry would be released to Victor Myers, and the Bells would have three

days to vacate the property.

       Toward the end of the hearing, the trial court and the attorney for Victor

Myers had this exchange:


                                         4
              [Counsel]: The settlement offer of September 27th does state
      that its terms will be reduced to an agreed judgment.

            THE COURT: Okay.

           [Counsel]: Would you prefer that that agreed judgment be
      submitted in writing or be given over in open court?

           THE COURT: I think that y’all should submit an agreed
      judgment in writing.

            [Counsel]: Okay.

            THE COURT: However, I think what you have done here is
      indeed a binding Rule 11 agreement. 2

At the conclusion of the hearing, Victor Myers’s attorney told the trial court that

he would submit an agreed judgment.

      When the Bells did not close on the home, Victor Myers filed motions

asking the court to release the funds and to render a judgment in accordance

with the settlement agreement. The Bells filed a response to the motions in

which they revoked their consent to the settlement agreement.

      At a hearing on Victor Myers’s motions, the Bells’ attorney stated that the

Bells now had the funding to buy the property and wanted to go through with the

closing. He stated that although Richard Bell had attended the hearing at which

the settlement agreement was signed, he had been unable to hear the

proceedings, and he did not agree to the three-day move-out provision.

      The trial court signed an order releasing the $15,000 in its registry to Victor

Myers. The court also signed a final judgment ordering that the Bells had three

      2
       See Tex. R. Civ. P. 11.


                                         5
days to vacate the property and releasing the registry funds to Victor Myers. The

Bells now appeal.

                                 Applicable Law

       An agreed judgment that is a part of a settlement agreement may not be

rendered as the judgment of the court once one party no longer consents to it. 3

This rule does not preclude a court from enforcing a settlement agreement after

proper notice and hearing. 4 But when consent is revoked, the party seeking

enforcement of a settlement agreement must pursue a separate claim for breach

of contract. 5

       A claim for breach of settlement agreement is subject to the established

procedures of pleading and proof, just like any other breach of contract claim. 6 A

motion seeking enforcement of the settlement agreement can constitute “a

sufficient pleading to allow a trial court to render judgment enforcing the

settlement.” 7


       3
        Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009).
       4
        Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995).
       5
        Castillo, 279 S.W.3d at 663.
       6
        Id.
       7
        Abdulwahab v. Sam’s Real Estate Bus. Trust, No. 02-10-00282-CV, 2011
WL 2989969, *3 (Tex. App.—Fort Worth July 21, 2011, pet. denied) (mem. op.)
(citing Neasbitt v. Warren, 105 S.W.3d 113, 117 (Tex. App.—Fort Worth 2003, no
pet.) and stating that the motion is sufficient “because such a motion gives the
alleged breaching party an opportunity to defend itself”).


                                        6
                                     Analysis

      In the Bells’ sole issue in their opening brief, they argue that the trial court

erred by holding that they did not withdraw their consent to the Rule 11

agreement, and thus, a judgment should not have been entered. The trial court

did not hold that the Bells did not withdraw their consent. It determined that the

settlement agreement must be enforced despite that revocation, and it rendered

judgment accordingly. But in the substance of the Bells’ brief, the Bells focus not

on a finding of their continued consent but on whether the trial court had authority

to enforce the agreement in light of their lack of consent. We therefore consider

that argument. 8

      As stated above, a trial court may not render an agreed judgment when

one of the parties to the agreed judgment has revoked its consent to it, but a trial

court may nevertheless enforce the settlement agreement of which that agreed

judgment is a part. 9 Accordingly, the fact that the Bells withdrew their consent

prohibited the trial court from rendering the agreed judgment provided for in the

settlement agreement, but it did not prohibit enforcement of the settlement

agreement. 10 Here, the trial court did not render the agreed judgment. It granted

judgment for Victor Myers after Victor Myers had filed motions seeking

      8
       See Tex. R. App. P. 47.1 (stating that opinions should address every
issue raised).
      9
       Padilla, 907 S.W.2d at 461.
      10
          See id.


                                          7
enforcement of the terms of the settlement agreement, the Bells had responded,

and a hearing was held. We therefore reject the Bells’ argument that because

they had revoked their consent to the agreement, the trial court’s judgment

enforcing the terms of that agreement was erroneous.

      The Bells rely on Burnaman v. Heaton 11 to support their position. In that

case, Burnaman was in the hospital and was therefore not present in court when

the attorneys for both sides appeared before the court and announced a

settlement agreement. 12 The question in that case was whether the trial court

may render an agreed judgment when one of the parties no longer consents to

it. 13 Burnaman holds that a court may not do so. 14 The Bells argue that this case

is similar to Burnaman because although Richard was present at the hearing, he

could not hear the terms to which his attorney was agreeing at the hearing—

although, we note, he did nothing to inform the trial court that he could not hear

the proceedings.

      But in this case, the trial court did not render an agreed judgment, and

Burnaman is therefore inapplicable. We also note that Burnaman contended and

produced some evidence that she did not authorize her attorney to enter into the


      11
        150 Tex. 333, 240 S.W.2d 288 (Tex. 1951).
      12
        Id. at 335–36, 240 S.W.2d at 289–90.
      13
        Id. at 337–38, 240 S.W.2d at 291.
      14
        Id. at 338, 240 S.W.2d at 291.


                                         8
settlement agreement. 15    The Bells neither argued nor provided evidence to

show that when their attorney signed the settlement agreement on their behalf,

he did not have authority to do so. We overrule the Bells’ issue.

      The Bells filed a reply brief raising a new issue asserting that even if the

settlement agreement is enforceable despite their lack of consent, the trial court’s

final judgment and release of registry bond were an improper means to obtain

enforcement of the agreement. The Bells’ reply brief, however, complains about

the procedure used to seek enforcement of the settlement agreement, not about

the relief awarded. They do not argue that a release of registry funds is an

inherently invalid means to enforce a settlement agreement or is a form of relief

unavailable in these types of cases. Rather, they complain that Victor Myers’s

motion for judgment and its motion to release registry funds was an improper

method of seeking enforcement of the agreement once consent had been

revoked, and the trial court’s judgment granting Victor Myers’s requested relief

was therefore erroneous. They point out that under Texas law, Victor Myers was

required to file a separate claim for breach of contract.

      The question we must determine to resolve this issue is whether Victor

Myers’s motion to enforce the judgment and motion for release of registry funds

could be construed as a pleading raising a claim for breach of contract. This

court has held that a motion to enforce a settlement agreement can constitute a


      15
        Id. at 337, 240 S.W.2d at 289–90.


                                          9
pleading raising a breach of contract claim when it gives the opposing party

proper notice of the claim. 16

      The elements of a breach of contract claim are “(1) the existence of a valid

contract; (2) the plaintiff performed or tendered performance; (3) the defendant

breached the contract; and (4) the plaintiff sustained damages as a result of the

defendant’s breach.” 17 Victor Myers alleged in its motion for judgment that the

Bells had signed a written settlement offer in open court, a copy of which was

filed with the trial court at that time; that under the agreement, the parties were to

execute an agreed judgment; that Victor Myers’s attorney had drafted the agreed

judgment and sent it to the Bells’ attorney; that Victor Myers’s attorney had not

received any response from the Bells’ attorney despite requesting updates

several times; that the Bells had defaulted under the terms of the agreement and

had refused to execute an agreed judgment; and that Victor Myers had no way of

obtaining the relief it was entitled to.

      The motion for release of registry funds also noted the signing of the

settlement agreement in open court.             The motion stated that under the

agreement, the Bells had until November 29, 2013 to close on the home and that

if they failed to do so, the funds in the registry would be released to Victor Myers;

that the Bells had failed to close; and that the funds should therefore be released.

      16
        See Neasbitt, 105 S.W.3d at 117–18.
      17
        Wood Care Ctrs., Inc. v. Evangel Temple Assembly of God of Wichita
Falls, Tex., 307 S.W.3d 816, 824 (Tex. App.—Fort Worth 2010, pet. denied).


                                           10
And it asserted that the written settlement agreement should be enforced. We

hold that these motions sufficiently pled a breach of the settlement agreement,

putting the Bells on notice of Victor Myers’s claim and the remedy it sought. 18

Accordingly, we overrule the Bells’ reply issue.

                                   Conclusion

      Having overruled the Bells’ issues, we affirm the trial court’s judgment.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: October 9, 2014




      18
        See Neasbitt, 105 S.W.3d at 117–18 (noting that pleadings should ‘“give
the adversary parties notice of each [party’s] claims and defenses, as well as
notice of the relief sought”’ and that the motion to enforce “clearly stated the
terms of the agreement, detailed Appellant’s breach of that agreement, and
requested relief for Appellee”) (citation omitted).


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