law-breach-of-settlement-agreement-MSA | settlement agreements | MSA |
Pac. Employers Ins. Co. v. Brannon, 150 Tex. 441, 448, 242 S.W.2d 185, 189 (1951) (distinguishing the law of
accord from that of novation, and stating that "a mere accord does not necessarily supersede the original
claim. . . . "). See also Votzmeyer v. Votzmeyer, 964 S.W.2d 315, 320 (Tex.App.-Corpus Christi 1998, no pet.)
(holding that the nonbreaching party "is within her rights to choose to enforce the original judgment rather than
seek enforcement of the later agreement"); Browning, 620 S.W.2d at 616 ("A party could not be expected to
exchange what, on its face, is a matured claim capable of accurate determination for an agreement that is not
complete in its terms, and which thereby might not resolve all of the issues between the parties.
CAUSE OF ACTION FOR BREACH OF SETTLEMENT AGREEMENT | MSA -
The law of contracts is applicable to settlement agreements. Shaw v. Kennedy, Ltd., 879 S.W.
2d 240, 247 (Tex. App.—Amarillo 1994, writ denied). Once the parties accept the terms of the settlement, the
agreement is binding and can be enforced by the courts. Id. When the contract is unambiguous and the
relevant facts are undisputed, we interpret the contract and determine whether a party has breached the
contract as a matter of law. Gupta v. E. Idaho Tumor Inst., 140 S.W.3d 747, 756 (Tex. App.—Houston [14th
Dist.] 2004, pet. denied).
If a settlement agreement is breached by one of the parties, the other party may treat the agreement as
repudiated and claim rights either under the settlement or the underlying cause of action. Shaw, 879 S.W.2d at
247. An anticipatory repudiation of a contract may consist of either words or actions by a party to a
contract which indicate an intention that he or she is not going to perform the contract according to its terms in
the future. Builders Sand, Inc. v. Turtur, 678 S.W.2d 115, 120 (Tex. App.—Houston [14th Dist.] 1984, no writ).
The intention to abandon a contract must be expressed in positive and unconditional terms. Pollack v. Pollack,
39 S.W.2d 853, 856–57 (Tex. Comm’n App. 1931, holding approved).
A party claiming anticipatory breach of a contract must establish the following three elements: (1) a party to a
contract has absolutely repudiated the obligation; (2) without just excuse; and (3) the other party is damaged
as a result. Id. at 855; Hauglum v. Durst, 769 S.W.2d 646, 651 (Tex. App.—Corpus Christi 1989, no writ).
Appellees’ claim of anticipatory repudiation falls short on each element; however, we need only address the first.
Hernandez v. Labella (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Anderson)
(breach of settlement agreement in attorney malpractice case, settlement agreement enforced)(fee forfeiture
for breach of fiduciary duty by lawyer to client, election of remedies in breach of contract case, repudiation of
settlement agreement, anticipatory repudiation, rescission of contract)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-08-00327-CV Salomon Juan Hernandez v. Joseph J. Labella and LaBella Dennis & Associates, P.L.L.C.
Appeal from 284th District Court of Montgomery County (name of trial court judge not shown on docket)
We address appellant’s issues on the enforceability of the Settlement Agreement first because appellant, when faced with
appellees’ refusal to pay appellant the required $100,000.00, filed a motion seeking to enforce the Settlement Agreement rather
than rescinding it and seeking a judgment based on the jury’s verdict. Having made that election, appellant cannot now, on
appeal, ignore that election and attempt to pursue his underlying breach of fiduciary duty cause of action. See Hanks v. GAB Bus.
Servs., Inc., 644 S.W.2d 707, 708 (Tex. 1980) (holding that a non-breaching party must decide whether to rescind the contract or
seek to enforce it when the material breach occurred rather than waiting until after trial to decide, and stating that a non-breaching
party waives its right to rescind a contract based on the other party’s material breach by (1) treating the contract as still in effect
following the material breach, and (2) filing suit to enforce the contract); Bumb v. InterComp Technologies, L.L.C., 64 S.W.3d 123,
125 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (holding that a nonrepudiating party must either treat a repudiation of a
contract as a breach or ignore it and wait for the time of performance, it cannot do both).
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
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
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
Texas A & M Univ. Sys. v. Koseoglu, No. 05-0321 (Tex. Sep. 7, 2007)(Green)
(public employment, government entities, sovereign immunity, breach of settlement agreement, ILA,
interlocutory appeal of ruling on plea to the jurisdiction/immunity defense, opportunity to amend)
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