law-MSA mediated settlement agreement | breach of settlement agreement
A mediated settlement agreement is enforceable in the same manner as any other contract. TEX.
CIV. PRAC. & REM. CODE ANN. § 154.071(a) (West 2011); Hardman v. Dault, 2 S.W.3d 378, 380
(Tex. App.—San Antonio 1999, no pet.).
Pickell v. Guaranty Nat’l Life Ins. Co., 917 S.W.2d 439, 441-42 (Tex. App.—Houston [14th Dist.]
1996, no writ) (court cannot take action on mediated settlement agreement without an affirmative
request to do so through pleadings); see also Martin v. Black, 909 S.W.2d 192, 195 (Tex. App.—
Houston [14th Dist.] 1995, writ denied).
SETTLEMENT AGREEMENTS
Written settlement agreements and rule 11 agreements may be enforced as contracts even if one party
withdraws consent before judgment is entered on the agreement. Ford Motor Co. v. Castillo, 279 S.W.3d
656, 663 (Tex. 2009); Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); see Tex. Civ. Prac. & Rem.
Code Ann. § 154.071(a) (West 2011) ("If the parties reach a settlement and execute a written agreement
disposing of the dispute, the agreement is enforceable in the same manner as any other written contract.");
Tex. R. Civ. P. 11; City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 626 (Tex. App.-Fort Worth 2003,
pet. denied). When consent is withdrawn, an agreed judgment based on the settlement agreement is
inappropriate; instead, the party seeking enforcement of the settlement agreement must pursue a claim for
breach of contract. Ford Motor Co., 279 S.W.3d at 663; Padilla, 907 S.W.2d at 461 ("Although a court cannot
render a valid agreed judgment absent consent at the time it is rendered, this does not preclude the court,
after proper notice and hearing, from enforcing a settlement agreement . . . even though one side no longer
consents to the settlement."); Alcantar v. Okla. Nat'l Bank, 47 S.W.3d 815, 819 (Tex. App.-Fort Worth 2001,
no pet.). A settlement agreement can be enforced as a contract by the trial court only after proper pleading,
notice, hearing, and proof. Ford, 279 S.W.3d at 663; Padilla, 907 S.W.2d at 462; Neasbitt v. Warren, 105 S.
W.3d 113, 117 (Tex. App.-Fort Worth 2003, no pet.); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d
656, 658 (Tex. 1996) (orig. proceeding) ("Where the settlement dispute arises while the trial court has
jurisdiction over the underlying action, a claim to enforce the settlement agreement should, if possible, be
asserted in that court under the original cause number.").
Although an amended pleading is one method of raising a claim that a settlement agreement should be
enforced as a contract, we have held that a motion seeking enforcement of the settlement agreement is a
sufficient pleading to allow a trial court to render judgment enforcing the settlement because such a motion
gives the alleged breaching party an opportunity to defend itself. Neasbitt, 105 S.W.3d at 117; see Twist v.
McAllen Nat'l Bank, 248 S.W.3d 351, 361 (Tex. App.-Corpus Christi 2007, orig. proceeding [mand. denied])
(holding that an oral motion to enforce a settlement agreement was sufficient because "[a]s long as the
motion recites the terms of the agreement, states that the other party has revoked its previously stated
consent to the agreement, and requests the trial court to grant relief, the motion is sufficient"); Bayway
Servs., Inc. v. Ameri-Build Constr., L.C., 106 S.W.3d 156, 160 (Tex. App.-Houston [1st Dist.] 2003, no pet.). If
the motion satisfies the general purposes of pleadings, which is to give the other party fair notice of the claim
and the relief sought, it is sufficient to allow the trial court to render judgment enforcing the settlement. Twist,
248 S.W.3d at 361; Neasbitt, 105 S.W.3d at 117.[
Abdulwahab v. Sam's Real Estate Business Trust (Tex.App.- Fort Worth, Jul. 21, 2011)
MEDIATED SETTLEMENT AGREEMENT (MSA) - HOUSTON CASES
Equipment Resources International, Inc. v. Webb (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Bland) (MSA,
(breach of mediated settlement agreement, bad faith sanctions, contractual agreement to dismiss pending
suit)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00374-CV Equipment Resources International, Inc. v. Julie L. Webb
Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan
Court of Appeals Affirms Confirmation of Arbirator's Decision in Post-Divorce SAPCR Dispute
Based on MSA In Interest of EBL et al (Tex.App.- Houston [14th Dist.] Sep. 29, 2009)(Seymore)
(family court mediation and arbitration, numerous challenges to arbitration award, attempted recusal of
arbitrator, appropriateness of mediation, ADR when domestic violence alleged, preservation of error)
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-06-01095-CV In the Interest of E.B.L.G, H.L.L.G, and N.L.G.
Appeal from 257th District Court of Harris County
Trial Court Judge: Judy L. Warne
Cobb v. Morace (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Jennings)(mediated settlement agreement MSA,
breach of settlement agreement)(summary judgment addressed more issues than covered by motion)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Jennings
Before Justices Jennings, Hanks and Bland
01-07-01036-CV W. Neil Cobb v. Johnny B. Morace and Geo-Lab, Inc.
Appeal from 269th District Court of Harris County
Trial Court Judge: Hon. John Thomas Wooldridge
Unlike the MSA, the judgment does not require Morace to guaranty the repayment by Geo-Lab in the event
that Geo-Lab redeems the stock. The judgment does not require Morace to memorialize the purchase of
Cobb’s stock in a promissory note. Finally, the judgment does not give Cobb a security interest in the stock
of Geo-Lab.
Accordingly, we hold that the trial court erred in significantly altering the original terms of the MSA by
excluding the portion of the MSA securing the quarterly payments with purchased stock and requiring a
guaranty, promissory note, and security agreement.
Can a Mediated Settlement Agreement be Revoked?
Mallia v. Mallia (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Yates)(judgment on mediated settlement
agreement MSA, revocation of consent, rescission, rescinding agreement prior to judgment)
AFFIRMED: Opinion by Justice Brock Yates
14-07-00695-CV Sharon Fountain Mallia and Charles Christopher Mallia v. Sharon Biering Mallia
Before Justices Brock Yates, Seymore and Boyce
Trial Court Judge: Russell P. Austin
Messina v. Messina (Tex.App- Houston [1st Dist.] July 24, 2008)(Bland)
(divorce post-judgment proceeding, undisclosed assets, MSA, sanctions, dismissal with prejudice following
nonsuit)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00277-CV Susan Gail Messina v. Louis Anthony Messina
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster
Divorce Decree based on MSA and Arbitration Award Affirmed
Engineer v. Engineer No. 14-06-01099-CV Tex.App.- Houston [14th Dist.] Mar. 20, 2008)(Superseding
opinion by Seymore) (family law arbitration, divorce, property division, mediated settlement agreement,
arbitration award)
AFFIRMED: Opinion by Justice Seymore
Katy Engineer v. Mike Engineer
Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern)
In this divorce action, Katy Engineer appeals the amended divorce decree on the grounds that the decree
does not accurately reflect the mediated settlement agreement and the arbitration award. Court concludes
that the final divorce decree does not vary from the terms of the mediated settlement agreement or the
arbitration award. Accordingly, the court of appeals affirms the judgment of the trial court.
Olvera v. Olvera (Tex.App.- Houston [1st Dist.] Mar. 6, 2008)(Higley)
(family law, mediated settlement agreement stands)
AFFIRM TC JUDGMENT: Opinion by Justice Higley
01-07-00231-CV Maria Reyna Olvera v. Jose Pablo Olvera
Appeal from 247th District Court of Harris County
Trial Court Judge: Hon. Bonnie Hellums
Messina v. Messina (Tex.App- Houston [1st Dist.] July 24, 2008)(Bland)
(divorce post-judgment proceeding to partition marital assets, undisclosed assets, MSA, agreement incident
to divorce, AID, sanctions, dismissal with prejudice following nonsuit, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00277-CV Susan Gail Messina v. Louis Anthony Messina
Appeal from 308th District Court of Harris County
Trial Court Judge: Hon. Georgia Dempster
Also see case from Austin Court of Appeals --> Mediated Settlement Agreement Stands
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