Opinion filed August 31, 2011




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-10-00016-CV
                                        __________

                            EDITH FONTENOT, Appellant

                                               V.

                    MARGARET HANUS, MICHAEL HANUS,
                    AND WILLIAM S. CARVER, III, Appellees


                          On Appeal from the 353rd District Court

                                     Travis County, Texas

                          Trial Court Cause No. D-1-GN-06-002652


                           MEMORANDUM OPINION

       This is an appeal from an order granting summary judgment. It arises from a claim
seeking enforcement of a mediated settlement agreement by specific performance. In granting
the summary judgment, the trial court determined that the settlement agreement is enforceable.
We affirm.
                                       Background Facts
       Appellant, Edith Fontenot, instituted the underlying action in 2006 by filing a petition for
declaratory judgment seeking to establish a prescriptive easement across property owned by
appellees, Margaret Hanus, Michael Hanus, and William S. Carver, III. Appellant alleged the
right to use an “access road that runs from the (now named) Union Lee Church Road, between
portions of Defendants Hanus’ property and Defendant Carver’s property to the entrance of
Plaintiff’s property.”
       The parties subsequently engaged in mediation with the Dispute Resolution Center on
July 16, 2009, in an effort to settle the suit. At the conclusion of the mediation, the parties
executed a written settlement agreement that stated as follows:
       The matter of Edith Fontenot and William Carver and Michael Hanus and
       Margaret Hanus was mediated on July 16, 2009, and the parties agreed to the
       following:

               On July 22, 2009, William Carver and Michael and Margret [sic]
               Hanus will pay Edith Fontenot $10,000 and William Carver will
               quitclaim to Edith Fontenot his interest in the Second Tract as
               described in Vol. 631, Page 89 recorded in the Travis County deed
               records (the “Second Tract”), Edith Fontenot will quitclaim any
               and all alleged interest over any property owned by William
               Carver and Michael and Margret [sic] Hanus, and the parties will
               sign a joint notice to dismiss the lawsuit. The documents will be
               prepared by Michael Hemer. William Carver will remove his
               fence across the Second Tract no later than August 19, 2009.

       Signed this 16 day of July, 2009

       [signed by parties]

Appellees subsequently filed the mediated settlement agreement as a Rule 11 Agreement.
TEX. R. CIV. P. 11.
       Appellant informed appellees’ attorney on July 23, 2009, that she would not be abiding
by the terms of the settlement agreement.       Based upon this information, appellees filed a
counterclaim on July 30, 2009, seeking enforcement of the settlement agreement by specific
performance. Appellees additionally filed a motion for summary judgment on their counterclaim
on October 18, 2009. In her pro se response to the motion, appellant asserted that the mediation
agreement is ineffectual under the statute of frauds because it does not contain an adequate
property description. See TEX. BUS. & COM. CODE ANN. § 26.01 (Vernon 2009).            Appellant
bases her contention on the provision of the settlement agreement requiring her to “quitclaim any



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and all alleged interest over any property owned by William Carver and Michael and Margret
[sic] Hanus.”
       The trial court considered the motion for summary judgment at a hearing conducted on
November 10, 2009. The court granted the motion by requiring specific performance of the
settlement agreement. Specifically, the court ordered appellant to execute and deliver quitclaim
deeds attached as exhibits to the judgment.
                                              Analysis
       Appellant alleges in two issues that the trial court erred in granting appellees’ motion for
summary judgment. Her contentions on appeal are limited to her assertion that the settlement
agreement does not contain a sufficient property description to satisfy the statute of frauds.
       We review the trial court’s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). A trial court must grant a traditional motion for summary
judgment if the moving party establishes that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant establishes a right to summary
judgment, the nonmovant must come forward with evidence or law that precludes summary
judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).
When reviewing a traditional summary judgment, the appellate court considers all the evidence
and takes as true evidence favorable to the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548-49 (Tex. 1985). The appellate court “must consider whether reasonable and
fair-minded jurors could differ in their conclusions in light of all of the evidence presented” and
may not ignore “undisputed evidence in the record that cannot be disregarded.” Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).
       If parties reach a settlement agreement and execute a written agreement disposing of the
dispute, the agreement is enforceable in the same manner as any other written contract. TEX.
CIV. PRAC. & REM. CODE ANN. § 154.071(a) (Vernon 2011). After a settlement agreement is
accepted, enforcement is by a suit upon the contract, either for breach or for specific
performance. Stevens v. Snyder, 874 S.W.2d 241, 243 (Tex. App.—Dallas 1994, writ denied)
(“Once a party accepts a settlement offer, he cannot withdraw from the agreement arbitrarily.”).



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To be entitled to specific performance, an agreement must be valid and enforceable. Abraham
Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 527 (Tex. App.—Amarillo 1998, pet. denied).
        Whether an agreement falls within the statute of frauds is a question of law. Fuqua v.
Oncor Elec. Delivery Co., 315 S.W.3d 552, 555 (Tex. App.—Eastland 2010, pet. denied). By its
express terms, the statute of frauds applies to a contract for the sale of real property. TEX. BUS.
& COM. CODE ANN. § 26.01(b)(4) (Vernon 2009). We conclude that the settlement agreement at
issue in this appeal is subject to the statute of frauds because it relates to the conveyance of real
property interests in two material respects. First, it pertains to the conveyance of the “Second
Tract” to appellant. Second, it effectively surrenders appellant’s claimed prescriptive easement
across appellees’ property. See Fuqua, 315 S.W.3d at 555 (An express easement is an interest in
land that is subject to the statute of frauds.).
        The conveyance in the settlement agreement that appellant attacks is her relinquishment
of the prescriptive easement she claimed in the lawsuit. For a conveyance or contract of sale to
meet the requirements of the statute of frauds, it must, insofar as the property description is
concerned, furnish within itself or by reference to other identified writings then in existence the
means or data by which the particular land to be conveyed may be identified with specific
certainty. Jones v. Kelley, 614 S.W.2d 95, 99 (Tex. 1981); Morrow v. Shotwell, 477 S.W.2d 538,
539 (Tex. 1972); Wilson v. Fisher, 188 S.W.2d 150, 152 (Tex. 1945). We direct our attention to
the “other writings” exception.
        The settlement agreement at issue is a product of the litigation between the parties. The
settlement agreement expressly acknowledges this fact by its opening provision wherein it states,
“The matter of Edith Fontenot and William Carver and Michael Hanus and Margaret Hanus was
mediated on July 16, 2009, and the parties agreed to the following: . . .” Accordingly, the
settlement agreement obviously references the other documents filed in connection with the
litigation. These documents include appellant’s pleadings wherein she asserted a prescriptive
easement across the tracts owned by appellees. In support of this contention, she attached
various deeds to her original petition, including the deed conveying the Hanuses’ property to
them and the deed conveying Carver’s property to him. These deeds contained the property
descriptions for appellees’ property and appellant’s property.        Accordingly, the settlement
agreement complied with the statute of frauds because it referenced existing documents that



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provided the means by which to identify the particular land to be conveyed with specific
certainty. Appellant’s two issues on appeal are overruled.
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE


August 31, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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