Young v. Ershick, et al
MEMORANDUM OPINION AND ORDER. It is ORDERED that that Plaintiff's Motion for Summary Judgment (Dkt. # 23 ) is hereby GRANTED in part, and Defendant James Ershick's Motion for Summary Judgment (Dkt. # 29 ) is hereby DENIED. The damages issue remains to be determined. Signed by District Judge Amos L. Mazzant, III on 7/29/2022. (mcg)
United States District Court
EASTERN DISTRICT OF TEXAS
JAMES ERSHICK, Individually and as
Executor of the ESTATE OF
CONSTANCE ERSHICK, DECEASED
Civil Action No. 4:21-CV-00644-ALM
MEMORANDUM OPINION AND ORDER
Pending before the Court are Plaintiff Linda Young’s Motion for Summary Judgment (Dkt.
#23) and Defendant James Ershick’s Motion for Summary Judgment (Dkt. #29).
considered the motions and the relevant pleadings, the Court finds that Plaintiff’s Motion for
Summary Judgment (Dkt. #23) should be GRANTED in part, and Defendant James Ershick’s
Motion for Summary Judgment (Dkt. #29) should be DENIED.
In 2013, Eric James Ershick (the “Decedent”) married Plaintiff Linda Young (“Young”)
(Dkt. #30 at p. 5). Prior to entering marriage, Decedent and Plaintiff allegedly entered into a
premarital agreement (the “PMA”) (Dkt. #29, Exhibit 13). On October 9, 2019, the Decedent died
without a will (Dkt. #30 at p. 5). On December 12, 2019, Plaintiff filed an Application for
Administration of the Estate of Decedent in the Denton County Probate Court (Dkt. #23 at p. 2).
On January 16, 2020, James and Constance Ershick—Decedent’s parents (the “Ershicks”)—filed
an opposition and objection to Plaintiff’s application (Dkt. #23 at p. 2). In May 2020, the Ershicks
served several discovery requests on Young (Dkt. #32, Exhibit 2 ¶ 10; Dkt. #32, Exhibit 1 pp. 23–
36). For example, Request for Production #23 stated:
Provide a copy of all estate planning documents (e.g. wills, powers of attorney,
directive to physicians, healthcare power of attorney, designation of agent, trusts,
bank signature cards, survivorship agreements, marital or premarital agreements,
etc.) made or executed from date of marriage to date of death by either you or
(Dkt. #32, Exhibit 1 at p. 34). Further, Request for Production #5 requested all “joint signature
documents between you and Decedent . . . from date of marriage to date of death” (Dkt. #29-1 at
According to Young’s attorney, David Chowins (“Chowins”), at the time of the discovery,
under the Texas Rules of Civil Procedure, there was no duty to disclose relevant documents unless
properly requested (Dkt. #32, Exhibit 2 ¶ 11). Further, according to him, because of the date
restrictions in the requests and based on some objections he made, he believed that no request
required the disclosures of the PMA (Dkt. #32, Exhibit 2 ¶ 10). Between June and August 2020,
the Ershicks filed three motions to compel regarding the discovery responses—though none
specifically related to the PMA (Dkt. #29-9; Dkt. #29-10; Dkt. #29-11). On August 20, 2020, the
Denton County Probate Court held a hearing on the motions to compel but did not rule on them
(Dkt. #29-14 at p. 5).
On August 31, 2020, Richard Kelsey (“Kelsey”), the Ershick’s attorney, took the
deposition of Plaintiff (Dkt. #32, Exhibit 1 at p. 41). After Kelsey asked whether Plaintiff and
Decedent “ha[d] a premarital agreement of any kind,” Plaintiff responded:
Yes, I guess you could say that. We - - we had this little rinky-dink thing that we
printed off. And then we found out later that it was probably no good because we
didn't go to a lawyer and have one drawn up and signed and notarized and all of
that kind of good stuff, so . . .
(Dkt. #32, Exhibit 1 at p. 41). Kelsey then asked Plaintiff if she still had a copy of the agreement,
and Plaintiff responded “Probably” (Dkt. #32, Exhibit 1 at p. 41). At that point, Kelsey asked
Plaintiff why he had not received the agreement even though he had “asked for [it],” and Chowins
objected to the question on work-product grounds (Dkt. #32, Exhibit 1 at p. 41).
On October 27, 2020, almost two months after Plaintiff’s deposition and prior to any ruling
on the discovery motions, the parties attended a mediation session via Zoom video conferencing
(Dkt. #23 at p. 2; Dkt. #30 at p. 3). At the mediation, the parties entered a Rule 11 Agreement (the
“Rule 11 Agreement” or the “Agreement”) pursuant to the Texas Rules of Civil Procedure (Dkt.
#23 at p. 2). The Rule 11 Agreement was signed by all parties and filed with the Denton County
Probate Court the same day (Dkt. #23 at p. 2). The Rule 11 Agreement provides that it “will be
reduced to a [later-drafted] Family Settlement Agreement (“FSA”),” which “shall recite additional
terms necessary to complete the Agreement.” (Dkt. #29, Exhibit 12).1 However, section nine of
the Rule 11 Agreement also provides that the Agreement “is intended to be a complete and final
agreement . . . not subject to revocation by the Parties[,] and is intended to be the basis for a final
and binding settlement” (Dkt #29, Exhibit 12).
According to the Rule 11 Agreement, Plaintiff agreed to pay the Ershicks $5,000, make
the 1979 Chevrolet Camaro available for pickup at 11122 Sugar Mill Lane, Frisco, Texas (“Sugar
Defendant objects to disclosure of the contents of the Agreement because it is a record made at mediation and is
confidential under § 154.073(b) of the Texas Civil Practice and Remedies Code (Dkt. #30 at pp. 3–4); See TEX. CIV.
PRAC. & REM. CODE ANN. § 154.073(b) (providing that “[a]ny record made at an alternative dispute resolution is
confidential, and the participants or the third party facilitating the procedure may not be required to testify in any
proceedings relating to or arising out of the matter in dispute or be subject to process requiring disclosure of
confidential information or data relating to or arising out of the matter in dispute”). However, Defendant submitted
the Rule 11 Agreement as an exhibit in his summary judgment motion (Dkt. #29-18). Furthermore, as Plaintiff notes,
Defendant ignores the fact that the document was filed in the public record with the consent of all parties (Dkt. #31 at
p. 2). Thus, the Court considers the contents of the Rule 11 Agreement. Indeed, “[t]o hold otherwise would be
tantamount to rendering these types of agreements unenforceable, which is contrary to the law.” Fastracked Exec.,
LLC v. Prevost Car (US), Inc., No. 01-20-00735-CV, 2022 WL 2068817, at *9 (Tex. App.—Houston [1st Dist.] June
9, 2022, no pet.).
Mill Lane”), and subsequently transfer title to it, as well as deliver the property in Exhibit A of the
Rule 11 Agreement to the Ershicks at Sugar Mill Lane (Dkt. #29, Exhibit 12). In exchange, the
Ershicks agreed to make no other claim to any property of Decedent’s estate including the real
property located at Sugar Mill Lane and agreed to allow Plaintiff to be the independent
administrator (Dkt. #29, Exhibit 12). Additionally, under the Agreement, all parties agreed to
execute global releases and to execute all documents to affect the terms of the Agreement, and
each agreed to pay their own attorney’s fees (Dkt. #29, Exhibit 12). Per the Rule 11 Agreement,
Chowins was tasked with drafting the initial FSA and Kelsey was given seven days to respond to
the FSA draft (Dkt. #29, Exhibit 12).
On November 4, 2020, pursuant to the Rule 11 Agreement, Chowins submitted a draft of
the FSA to Kelsey (Dkt. #23 at p. 3; Dkt. #30 at p. 4). On November 6, 2020, Kelsey responded
to Chowins’ email, redrafting parts of the FSA (Dkt. #23, Exhibit 4). The email exchanges reveal
that the parties disagreed over details of the FSA—namely whether the Ershicks would have one
or three days to retrieve the property identified in Exhibit A of the Rule 11 Agreement at Sugar
Mill Lane and whether the Ershicks would be allowed to walk through the Sugar Mill Lane
property to retrieve the personal items, as well as whether additional items of Decedent would be
given to the Ershicks in exchange for something of value (Dkt. #23, Exhibit 4; Dkt. #23, Exhibit
5). According to Plaintiff, she was ready, able, and willing to perform every obligation required
of her under the Rule 11 Agreement and the proposed FSA, but the Ershicks refused to sign the
FSA (Dkt. #23 at p. 3; Dkt. #30 at pp. 4–5). Indeed, Defendant admits that he withdrew his consent
to the Rule 11 Agreement via email on November 17, 2020 (Dkt. #30 at p. 6).
On February 24, 2021, Chowins, on behalf of Young, sent the Ershicks a notice of breach
letter (Dkt. #23, Exhibit 3 at pp. 58–59). One day letter, Kelsey responded, stating: “There can be
no resolution of this case until you and your client produce the premarital agreement your client
acknowledged under oath existed and that she had a copy of” (Dkt. #30, Exhibit 5). Moreover, in
the letter, Kelsey acknowledged that his “client has repudiated the Rule 11 Agreement” (Dkt. #30,
Exhibit 5). On March 25, 2021, the Probate Court ordered Young to produce the PMA, which she
later did (Dkt. #29 at p. 3). On April 21, 2021, Young filed suit for breach of contract in the
Denton County Probate Court, requesting specific performance, damages, and attorney’s fees (Dkt.
#2).2 On July 30, 2021, Defendant James Ershick was served, and, on August 14, 2021, Defendant
removed the action from the Denton County Probate Court to the Eastern District Court of Texas
based on diversity jurisdiction (Dkt. #1).
On February 10, 2022, Plaintiff filed her motion for summary judgment, requesting that
the Court enter judgment on her breach of contract claim (Dkt. #23). On February 28, 2022,
Defendant filed his motion for summary judgment, asking the Court to grant him a take nothing
judgment and deny Plaintiff’s motion for summary judgment (Dkt. #29). On March 10, 2022,
Defendant filed his response to Plaintiff’s motion for summary judgment (Dkt. #30). On March
17, Plaintiff filed her reply to her summary judgment motion, (Dkt. #31), and on March 24, 2022,
Defendant filed his sur-reply (Dkt. #33). On March 21, 2022, Plaintiff filed her response to
Defendant’s motion for summary judgment (Dkt. #32). On March 28, 2022, Defendant filed his
reply (Dkt. #34), and Plaintiff later filed her sur-reply (Dkt. #35; Dkt. #36).
The purpose of summary judgment is to isolate and dispose of factually unsupported claims
or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper
In January 2021, Constance Ershick passed away (Dkt. #29 at p. 3). Accordingly, though both the Ershicks signed
the Rule 11 Agreement, Young is suing James Ershick Individually and James Ershick as Executor of the Estate of
under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court
“must resolve all reasonable doubts in favor of the party opposing the motion for summary
judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).
The party seeking summary judgment bears the initial burden of informing the court of its
motion and identifying “depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of
material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden
of proof on a claim or defense for which it is moving for summary judgment, it must come forward
with evidence that establishes “beyond peradventure all of the essential elements of the claim or
defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant
bears the burden of proof, the movant may discharge the burden by showing that there is an absence
of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning
News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).
Once the movant has carried its burden, the nonmovant must “respond to the motion for
summary judgment by setting forth particular facts indicating there is a genuine issue for trial.”
Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A nonmovant must present
affirmative evidence to defeat a properly supported motion for summary judgment. Anderson, 477
U.S. at 257. Mere denials of material facts, unsworn allegations, or arguments and assertions in
briefs or legal memoranda will not suffice to carry this burden. Rather, the Court requires
“significant probative evidence” from the nonmovant to dismiss a request for summary judgment.
In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson
v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the
evidence but “refrain from making any credibility determinations or weighing the evidence.”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
Plaintiff and Defendant both move for summary judgment (Dkt. #23; Dkt. #29). Plaintiff’s
motion argues that summary judgment should be granted for her breach of contract claim because
the parties entered a valid contract—the Rule 11 Agreement—and the Ershicks breached the
contract by refusing to dismiss their challenge to the application for administration and refusing to
give consent to the appointment of Plaintiff as independent administrator without bond (Dkt. #23
at p. 8). Defendant’s motion for summary judgment contends that two main reasons preclude a
judgment for Plaintiff: (1) the Rule 11 Agreement is not a binding contract; and (2) fraudulent
concealment of the PMA voided any such contract (Dkt. #29 at pp. 10–11).
Thus, the summary judgment motions present several issues to be decided by the Court:
(1) whether the parties formed a valid contract when they entered the Rule 11 Agreement; (2)
whether Defendant’s asserted fraudulent concealment defense prevents summary judgment for
Plaintiff; and (3) whether Plaintiff can prevail on her breach of contract claim if she proves the
Rule 11 Agreement was a valid contract. The Court will examine these issues in turn, considering
all the briefing together because of the substantial overlap in the arguments within the filings, and
beginning with determining whether the Rule 11 Agreement is a valid contract.
Whether the Rule 11 Agreement is a Valid Contract3
The briefing of the parties reveals that the crux of their dispute is the effect of the Rule 11
Agreement. Plaintiff argues that the parties formed a valid contract when they entered into the
Rule 11 Agreement (Dkt. #23 at p. 8). Conversely, Defendant asserts various reasons why the
Rule 11 Agreement is not enforceable—namely because (1) Defendant withdrew his consent
before any action by the trial judge (Dkt. #30 at p. 6); (2) the parties did not intend for it to be a
binding contract (Dkt. #30 at p. 16); (3) there was no meeting of the minds as to the essential terms
of the Agreement (Dkt. #29 at p. 7); (4) the terms of the Rule 11 Agreement are not sufficiently
definite (Dkt. #30 at p. 16); and (5) Plaintiff’s obligations under the Agreement were illusory
(Dkt. #30 at p. 12).4 The Court considers these issues in turn, starting with Defendant’s argument
that the Rule 11 Agreement is not a contract because Defendant withdrew his consent and “Rule
11 is only a procedural tool and is not applicable to contract law” (Dkt. #34 at p. 1).
A. Enforcement of Rule 11 Agreements as Contracts
Defendant argues that “Plaintiff has erroneously conflated the role and function of a Rule
11 Agreement and a contract” (Dkt. #30 at p. 14). According to Defendant, “[a] Rule 11
“It is a long-recognized principle that federal courts sitting in diversity cases ‘apply state substantive law and federal
procedural law.’” Shady Grove Orthodpedic Assoc., P.A., v. Allstate Ins. Co., 559 U.S. 393, 417 (2010) (quoting
Hanna v. Plumer, 380 U.S. 460, 465 (1965)). Under Texas law, in contract cases where the parties have not agreed
to the contrary, the law of the state with the most significant relationship should be applied. Duncan v. Cessna Aircraft
Co., 665 S.W.2d 414, 421 (Tex. 1984). Here, it appears that Texas has the most significant relationship to the Rule
11 Agreement—it was filed in a Texas probate court, concerns real property and performance in Texas, and one of
the parties to the Agreement resides in Texas. See Faloona by Fredickson v. Hustler Mag., Inc., 799 F.2d 1000, 1003
(5th Cir. 1986) (noting contacts to take into account in determining the applicable law include the place of contracting
and place of performance). Further, the parties appear to agree that Texas law governs their dispute, as they cite to
Texas law and Fifth Circuit cases applying Texas law in their briefing. See CIMC Vehicles Grp. Co. v. Direct Trailer,
LP, No. H-10-709, 2012 WL 4017985, at *9 (S.D. Tex. Aug. 24, 2012), report and recommendation adopted by 2012
WL 4018200 (S.D. Tex. Sept. 12, 2012) (“By uniformly relying on Texas law, the parties agree that it applies to their
controversy. Absent any indication in the record that any other law should apply, the court applies Texas law.”). Thus,
in determining whether the parties formed a valid contract, the Court applies Texas law.
Although Defendant’s briefing contains scattered references to these arguments or semblances of them, the Court
notes that Defendant’s briefing provides little elaboration. For example, while Defendant’s briefing contains citation
to some authorities, he often provides no discussion or argument of the cases cited beyond a quotation from the case
of a general principle. Nor does Defendant explain how the cases support his specific contentions.
Agreement may be withdrawn simply by notifying the judge that he/she cannot sign an ‘Agreed
Order,’” and, here, Defendant withdrew his consent (Dkt. #29 at p. 9). In response, Plaintiff asserts
that Defendant “makes an incorrect statement of the law” (Dkt. #32 at p. 7). The Court agrees
Rule 11 agreements have long been recognized in Texas as “an effective tool for finalizing
settlements by objective manifestation so that the agreements ‘do not themselves become sources
of controversy.’” Knapp Med. Ctr. v. De La Garza, 238 S.W.3d 767, 768 (Tex. 2007) (quoting
Kennedy v. Hyde, 682 S.W.2d 525, 530 (Tex. 1984)). Rule 11 requires settlement agreements to
“be in writing, signed and filed with the papers as part of the record.” TEX. R. CIV. P. 11.
Importantly, a settlement agreement must comply with Rule 11 to be enforceable. Knapp Med.
Ctr., 238 S.W.3d at 768. Here, while there is no dispute over whether the requirements of Rule
11 were met, Defendant argues that the Rule 11 Agreement at issue is not a contract because Rule
11 is a procedural rather than substantive rule (Dkt. #30 at p. 14). Thus, according to Defendant,
“[a] Rule 11 [agreement] is never an enforceable contract and may be unilaterally withdrawn for
any reason prior to the judge accepting the stipulation for entry” (Dkt. #30 at p. 14).
However, Defendant’s argument is misplaced—that the parties styled their agreement as a
Rule 11 Agreement does not mean the document cannot be an enforceable contract. Indeed,
“[c]ourts construe Rule 11 settlement agreements just as they would any contract.” MKM Eng’rs,
Inc. v. Guzder, 476 S.W.3d 770, 778 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citing
Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)). To be sure, Defendant’s argument
“confuse[s] the requirements for an agreed judgment with those for an enforceable settlement
agreement.” Padilla, 907 S.W.2d at 461.
In Padilla, in rejecting a similar argument to
Defendant’s, the Supreme Court of Texas stated:
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 complying with Rule 11 even though one side no
longer consents to the settlement. The judgment in the latter case is not an agreed
judgment, but rather is a judgment enforcing a binding contract.
Id. Thus, contrary to Defendant’s argument, a written settlement agreement may be enforced
though one party withdraws consent before judgment is rendered on the agreement. Id.; see also
Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996). However, as the Texas
Supreme Court has explained, where consent is lacking, a court may not render an agreed judgment
on the settlement agreement but may enforce it only as a written contract. Padilla, 907 S.W.2d at
461. As such, even if Rule 11 is a procedural rule, the Rule 11 Agreement may be enforced as a
contract so long as it satisfies all of the elements of a valid contract. See id. at 460; see also Exp.
Worldwide, Ltd. v. Knight, No. SA–05–CA–647, 2007 WL 628746, at *5 (W.D. Tex. Feb. 27,
Nevertheless, while Rule 11 is a minimum requirement for enforcement of all settlement
agreements, it is not exclusive, and other law may provide additional requirements before an
agreement is enforceable. See Kennedy, 682 S.W.2d at 529. As such, when examining settlement
agreements, courts employ the same procedures used to enforce other contracts, interpreting them
under ordinary contract interpretation principles. Odom v. Southcross Sec., Inc., No. 01-17-00915CV, 2018 WL 2925709, at *1 (Tex. App.—Houston [1st Dist.] June 12, 2018, no pet.); see also
TEX. CIV. PRAC. & REM. CODE § 154.071(a) (“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
With this issue resolved, the Court turns to consider Defendant’s next argument—that the
Rule 11 Agreement is not an enforceable contract because the parties did not intend for it to be.
B. The Parties’ Intent to be Bound
Courts construe Rule 11 settlement agreements just as they would any contract. 5 Guzder,
476 S.W.3d at 778; see also Padilla, 907 S.W.2d at 460–61. The intent of the parties to be bound
is an essential element of an enforceable contract. Guzder, 476 S.W.3d at 778; see also Foreca,
S.A. v. GRD Dev. Co., 758 S.W.2d 744, 746 (Tex. 1988). A Rule 11 settlement agreement also
must contain all the essential terms of the settlement. Padilla, 907 S.W.2d at 460.
When interpreting a contract, courts “look to the language of the parties’ agreement.”
Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 479 (Tex. 2019). It is
fundamental that courts “may neither rewrite the parties’ contract nor add to its language.” Am.
Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 162 (Tex. 2003). Nor may courts “consider only
the parts favoring one party and disregard the remainder.” City of Keller v. Wilson, 168 S.W.3d
802, 811 (Tex. 2005). Instead, “[w]hen discerning the contracting parties’ intent, courts must
examine the entire agreement and give effect to each provision so that none is rendered
meaningless.” Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 450 (Tex. 2015) (quoting Tawes v.
Barnes, 340 S.W.3d 419, 425 (Tex. 2011)). If the language in a contact can be given a definite or
certain legal meaning, then courts construe the contract as a matter of law. Barrow-Shaver, 590
S.W.3d at 479. But if, after the rules of construction are applied, the contractual language is
susceptible to two or more reasonable interpretations, then the contract is ambiguous, creating a
fact issue as to the parties’ intent. Id. Only if a contract is ambiguous may courts consider the
The Court notes that where no material facts concerning the existence of an agreement are in dispute, the entry of an
order without a hearing is permissible. Lee v. Hunt, 631 F.2d 1171, 1177 (5th Cir. 1980); see also Borden v. Banacom
Mfg. and Mktg., Inc. 698 F. Supp. 121, 123 n.1 (N.D. Tex. 1988). Here, there is no dispute over whether the parties
reached a written agreement at mediation. However, what is in dispute is whether the parties intended to be presently
bound by the Rule 11 Agreement and whether the Rule 11 Agreement included all essential terms.
parties’ interpretations and admit extraneous evidence to prove the true meaning of the contractual
language. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450–51 (Tex. 2008) (per curiam).
Here, the parties dispute whether the Rule 11 Agreement was intended to be an enforceable
contract or intended to serve merely as a preliminary, non-binding agreement. On the one hand,
Plaintiff argues that since “it was expressly agreed that [the Rule 11 Agreement] was complete and
final,” the intent to be bound was clear and unambiguous (Dkt. #23 at p. 8). Further, according to
Plaintiff, the FSA “was just a procedure to memorialize the [Rule 11] [A]greement” (Dkt. #23 at
p. 8). Conversely, Defendant argues “[i]ntent is always a fact question,” (Dkt. #30 at p. 12), and
“[t]he wording of the Rule 11 [A]greement conclusively shows that it was never contemplated to
be a contract” (Dkt. #29 at p. 10).
Parties may enter into a binding settlement agreement even if the parties contemplate that
a more formal document memorializing the agreement will be executed at a later date. See Foreca,
758 S.W.2d at 745–46; see also Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554, 555 (Tex. 1972)
(stating that parties may agree upon certain contractual terms and leave other matters for later
negotiation). But if the parties do not intend to be bound until other terms are negotiated or until
a formal document is executed, then there is no binding contract, but merely “an agreement to
agree.” Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000);
Foreca, 758 S.W.2d at 745–46. Importantly, “[t]he critical issue for determining enforceability
when the parties agree that some terms will remain open is whether the parties intended for their
agreement to be a present, binding agreement in the absence of an agreement on the remaining
terms or whether they intended their agreement to have no legal significance until agreement on
the remaining terms is reached.” Guzder, 476 S.W. 3d at 779; see also Martin v. Black, 909 S.W.2d
192, 196 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (noting that whether settlement
agreement that is subject to additional documentation is binding is determined by intent of parties);
Border Gateway, L.L.C. v. Gomez, No. 14-10-01266-CV, 2011 WL 4361485, at *3 (Tex. App.—
Houston [14th Dist.] Sept. 20, 2011, no pet.) (stating that determination of whether mediation
agreement is mere agreement to agree or binding obligation turns on “whether the parties intended
for the contemplated formal writing to be a condition precedent to the formation of a contract, or
merely a memorial of an already enforceable contract”).
Although the intent of the parties to be bound is generally a question of fact, it may be
determined as a matter of law where that intent is clear and unambiguous on the face of the
agreement. Foreca, 758 S.W.2d at 746; Hardman v. Dault, 2 S.W.3d 378, 380 (Tex. App.—San
Antonio 1999, no pet.). Foreca is the leading case on whether “intent to be bound” presents a fact
question or a question of law. 758 S.W.2d at 744. In Foreca, the Supreme Court of Texas held
that a handwritten document created a fact issue as to the parties’ intentions because the document,
although it included many essential terms, included the phrase “subject to legal documentation
contract to be drafted by [one of the party’s attorneys].” 758 S.W.2d at 745–46. The Court held
that the language was ambiguous, and it was for the jury to resolve whether the document was
intended to be the final expression of the contract or was only a preliminary negotiation which the
parties did not intend to have legal significance until execution of the contemplated legal
documentation. Id. at 746. Similarly, in Martin v. Black, a Texas appellate court, relying on
Foreca, held that the phrase in a mediation term sheet “subject to securing documentation
satisfactory to the parties” created a fact issue as to the parties’ intentions. 909 S.W.2d at 197.
By contrast, in distinguishing the “subject to” language in Foreca, another Texas appellate
court held that the phrase in a written settlement agreement “final documents to be signed by 1–
1–97” did not create a fact issue as to the parties’ intent because it was unambiguous that the parties
did not view the signing of future documents to be a condition precedent to creation of a binding
contract. Hardman, 2 S.W.3d at 381. Thus, summary judgment enforcing the written the settlement
agreement was proper. Id. Similarly, in Coastal Corp. v. Atlantic Richfield Co., 852 S.W.2d 714,
717 (Tex. App.—Corpus Christi 1993, no writ), a Texas appellate court found that no fact issue
existed as to whether the parties intended for there to be a binding contract. Id. In the case, a letter
agreement for the sale of securities provided that “[n]othing in this Agreement shall be binding
upon any of the parties until this Agreement is executed by all of the parties by their duly
authorized officers.” Id. Thus, because the document memorializing the agreement expressly
required it to be executed and the agreement was never executed, the court found “it  clear that
the [parties] did not consider themselves to have a contract.” Id.
Here, viewing the Rule 11 Agreement as a whole, there is only one reasonable
interpretation—that the parties intended for it to be a present, binding settlement agreement. See
Great Am. Ins. Co. v. Primo, 512 S.W.3d 890, 893 (Tex. 2017) (“A contract’s plain language
controls, not ‘what one side or the other alleges they intended to say but did not.’”) (quoting Gilbert
Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 127 (Tex. 2010)). To
begin, the document was “expressly drafted as a Rule 11 Agreement—a recognized tool for
finalizing settlements—presumably because the parties intended to settle their disputes by entering
into an enforceable contract.” Guzder, 476 S.W. 3d at 779. Further, though parts of the Rule 11
Agreement are drafted in the future tense, the document contains no language indicating that it
was merely intended as a preliminary, non-binding agreement. See John Wood Grp. USA, Inc. v.
ICO Inc., 26 S.W.3d 12, 19 (Tex. App.–Houston [1st Dist.] 2000, pet. denied) (cautioning that a
party who does not wish to be prematurely bound by a letter agreement should include a provision
clearly stating that the letter is nonbinding).
Nor does the Agreement provide that it is “subject to” a more formal agreement, contingent
on agreement as to the terms of additional documents, or contain language indicating that certain
actions are a condition precedent to the agreement’s enforceability. Cf. Foreca, 758 S.W.2d at 745
(formal documentation was condition precedent to formation of contract when provision in
document containing material terms for sale and purchase of amusement park rides provided that
document was “subject to legal documentation contract to be drafted by [the attorney for one of
the parties]”); Border Gateway, 2011 WL 4361485, at *3 (stating that “a condition precedent to
contract formation is ‘clearly’ evidenced where an agreement unequivocally provides that a party
does not intend to be bound until the execution of a final contract”); Hardman, 2 S.W.3d at 381
(noting absence of any “subject to” language in settlement agreement); CherCo Props., Inc. v.
Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 266 (Tex. App.—Fort Worth 1999, no pet.)
(observing that parties’ written settlement agreement did not state that additional term was
condition precedent to binding agreement). Rather, the Rule 11 Agreement unambiguously states
the opposite—that it is “intended to be a complete and final agreement” (Dkt. #29, Exhibit 12).
More specifically, section nine of the Agreement provides:
This agreement is intended to be a complete and final agreement, although the FSA
shall recite additional terms necessary to complete the Agreement. This Agreement
is not subject to revocation by the Parties and is intended to be the basis for a final
and binding settlement.
(Dkt. #29, Exhibit 12). Thus, the clear and unambiguous language shows that the parties intended
to enter into a binding settlement agreement—not a preliminary agreement.
enforceability of the Rule 11 Agreement was not made subject to agreement on the terms of the
FSA. Rather, though recognizing that the FSA shall “recite additional terms necessary to complete
the Agreement,” the Rule 11 Agreement nevertheless explicitly states that it is “intended to be a
complete and final agreement” (Dkt. #29, Exhibit 12).
To be sure, this case is more like Hardman and Coastal than Foreca or Martin. In Coastal,
the language of the agreement was clear and unambiguous when it specifically stated that it would
not be binding until it was executed. See Coastal Corp., 852 S.W.2d at 717 (noting that the
agreement provided that “[n]othing in this Agreement shall be binding upon any of the parties until
this Agreement is executed by all of the parties by their duly authorized officers”). Thus, because
the document expressly required that it be executed before it was binding, the Texas appellate
court found that there was no fact issue as to whether the parties intended for the agreement to
binding. Similarly, here, the Rule 11 Agreement is clear and unambiguous because it specifically
states that it “is intended to be a complete and final agreement . . . is not subject to revocation by
the Parties[,] and is intended to be the basis for a final and binding settlement” (Dkt. #29, Exhibit
12). Thus, the language shows a clear and unambiguous intent for the Agreement to be presently
binding. Further, unlike Foreca and Martin, the Rule 11 Agreement does not contain any language
that the Agreement is “subject to” a more formal agreement or conditioned on agreement as to
terms of the additional documents. Cf. Foreca, 758 S.W.2d at 745; Martin, 909 S.W.2d at 197 with
Hardman, 2 S.W.3d at 381; see also Criswell v. European Crossroads Shopping Ctr., Ltd., 792
S.W.2d 945, 948 (Tex. 1990) (noting that in construing a contract, forfeiture by finding a condition
precedent is to be avoided when another reasonable reading of the contract is possible).
Thus, Defendant’s attempt to overcome the clear and unambiguous language in section
nine of the Agreement is unavailing. Indeed, though the Rule 11 Agreement states that it “will be
reduced to a Family Settlement Agreement” that “shall recite additional terms necessary to
complete the Agreement,” here, like Hardman, the mere fact that additional documents were to be
created is not enough to create a fact issue as to whether the parties intended to be presently bound.
See Hardman, 2 S.W.3d at 381; see also MCRB I Ltd. v. Sw. Rail Indus., Inc., No. 14–10–00922–
CV, 2011 WL 4031023, at *3–4 (Tex. App.—Houston [14th Dist.] Sept. 13, 2011, no pet.) (finding
that agreement’s reference to additional formal documents to be sent to the parties did not create
a fact issue on whether the parties intended to be bound); Guzder, 476 S.W.3d at 779 (rejecting
argument that because parties contemplated taking additional actions at a later date, there was a
fact issue as to the parties’ intent); Watson v. Purvis, No. 14-18-00132-CV, 2019 WL 2939816, at
*3 (Tex. App.—Houston [14th Dist.] July 9, 2019, no pet.) (mem. op.) (finding no fact issue as to
whether the parties intended their agreement to be a present, binding agreement even though
agreement was “subject to final paperwork” and the parties left “additional provisions” to be
Rather, as case law makes clear, what is crucial is not the Agreement’s mere reference to
additional documents—but whether execution of the additional documents is characterized as a
condition precedent to the formation of a binding settlement agreement. See Gen. Metal
Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 749 (Tex. App.—Houston [1st Dist.] 2014, no
pet.) (“Although the Rule 11 agreement read into the record contemplated execution of additional
documents, this was not characterized as a condition requisite to the formation of a binding
settlement agreement; indeed, the Rule 11 agreement does not include any language indicating that
the parties had engaged only in preliminary negotiations or that their agreement was contingent on
agreement as to the terms of the additional documents.”). And, here, the Agreement does not
contain any language indicating that final agreement is conditioned upon anything in the future.
Instead, to belabor the point, the Rule 11 Agreement expressly states that it “is intended to be a
complete and final agreement” and “not subject to revocation” (Dkt. #29, Exhibit 12).
Lastly, Defendant argues that the parties’ continued negotiations after the Rule 11
Agreement’s execution show that “at least a fact question exists whether the settlement was still
being negotiated” (Dkt. #30 at p. 14). However, as the Rule 11 Agreement expressly contemplated
an FSA, “working toward final settlement documents is exactly what the Rule 11 Agreement
contemplated the parties would do.” Guzder, 476 S.W. at 780. Thus, the Court finds Defendant’s
argument regarding the parties’ continued negotiations to be unpersuasive. Moreover, the Court
finds that other actions by Defendant in the days after execution of the Rule 11 Agreement
undermine Defendant’s argument on the matter. For example, one day after the mediation,
Kelsey’s paralegal, on behalf of Kelsey, emailed the Probate Court that “[t]he parties settled their
case yesterday in mediation . . . .” (Dkt. #23, Exhibit 3 at p. 9). Further, in another email, though
Kelsey recognized that “[t[he devil is in the details” and that “[t]he Rule 11 mediated settlement
agreement is clearly a skeleton which anticipates the flesh and skin being added later[,]” Kelsey
also stated: “I believe the Rule 11 MSA is complete to the point that no one can substantively back
off from the agreement” (Dkt. #23, Exhibit 3 at pp. 6–7). Thus, immediately after the Rule 11
Agreement was signed, Defendant’s counsel behaved as though the Rule 11 Agreement was
binding. See Stergiou, 438 S.W.3d at 750.
In sum, the Court finds that the Rule 11 Agreement unambiguously shows that the parties
intended for it to be presently binding. In other words, neither the language of the Rule 11
Agreement, nor the actions of the parties after the Agreement raises an issue of fact about the
parties’ intent to be bound. The Court turns to consider the parties’ next point of disagreement—
whether the Rule 11 Agreement contains all of the material and essential terms to be enforceable.
Whether the Rule 11 Agreement Contains All of the Essential and
“To be enforceable, a contract must address all of its essential and material terms with a
reasonable degree of certainty and definiteness.” Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237
(Tex. 2016) (internal quotations and citations omitted).
More specifically, an agreement’s
essential terms must be sufficiently definite “to enable a court to understand the party’s
obligations” and “to give an appropriate remedy if they are breached.” Id. (internal quotations and
citations omitted). Generally, under Texas law, “material and essential terms are those that parties
would reasonably regard as ‘vitally important ingredient[s]’ of their bargain.” Id. (quoting Neeley
v. Bankers Tr. Co., 757 F.2d 621, 628 (5th Cir. 1985)). However, contracts should be examined
on a case-by-case basis to determine which terms are material or essential. T.O. Stanley Boot Co.,
Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). While Texas courts favor validating
transactions rather than voiding them, “a court may not create a contract where none exists and
generally may not add, alter, or eliminate essential terms.” Stergiou, 438 S.W.3d at 745. The
question of whether a settlement agreement contains all the essential terms for it to be enforceable
is a question of law. See McCalla v. Baker’s Campground, Inc., 416 S.W.3d 416, 418 (Tex. 2013)
Here, Plaintiff contends that the Rule 11 Agreement contains all of the essential terms
because it “provide[s] payment of funds and the release of certain property by the Plaintiff” in
return for Defendant “consenting to the appointment of [Plaintiff] as Independent Administrator
and the mutual release of claims” (Dkt. #32 at p. 5). In response, Defendant asserts that the Rule
11 Agreement is “incomplete” and contains no “meeting of the minds[,]” specifically noting that
the Rule 11 Agreement contains no mention on “how and when the bilateral ‘consideration’ was
to be paid or exchanged” (Dkt. #30 at p. 12).
As an initial matter, Texas courts have long “held that the essential terms for a settlement
agreement are the amount of compensation and the liability to be released.” Chowning v. Boyer,
No. 03-20-00387-CV, 2021 WL 3233859, at *6 (Tex. App.—Austin July 30, 2021, no pet.)
(collecting cases); see, e.g., Guzder, 476 S.W.3d at 782 (concluding that Rule 11 agreement
contained all material terms because it contained payment terms and a statement that the parties
will exchange mutual releases); see Padilla, 907 S.W.2d at 460-61 (finding all material terms of
the agreement existed where terms included agreement to pay amount in exchange “for full and
final settlement of this case”); Cantu v. Moore, 90 S.W.3d 821, 825 (Tex. App.—San Antonio
2002, pet. denied) (holding that settlement agreement contained all material terms when one party
agreed to pay other party $150,000 and all parties agreed to execute full releases though agreement
did not contain the source of the funds from which the settlement was to be paid and the terms of
the indemnity); CherCo Props., Inc., 985 S.W.2d at 266 (holding that settlement agreement that
included payment terms and statement that parties would execute mutual releases contained all
material terms and finding that a time for performance was not a material term). Nevertheless, the
parties dispute whether several essential terms are either too indefinite or missing from the Rule
11 Agreement, rendering it unenforceable. And, more importantly, contracts are reviewed on a
case-by-case basis. See Barrow-Shaver, 590 S.W.3d at 479; Fischer, 479 S.W.3d at 237.
Turning to the parties’ Rule 11 Agreement, it provides, in relevant part, that (1) Young will
pay the Ershicks $5,000, deliver certain personal property items to the Ershicks at Sugar Mill Lane,
and make the 1979 Chevrolet Camaro available for pickup at Sugar Mill Lane, as well as transfer
title of the Camaro no sooner than when the FSA is approved by the Court; (2) the Ershicks will
make no further claim to any property of Decedent’s estate or property otherwise in possession of
Decedent including the real property at Sugar Mill Lane, stipulate that the real property on Sugar
Mill Lane is awarded to Young in its entirety, and stipulate in the FSA that they are in agreement
to allow Plaintiff to be the independent administrator and shall not oppose any bond; and (3) that
the parties will execute a global release of the other parties and execute all documents to affect the
terms of the Agreement (Dkt. #29, Exhibit 12).
Thus, after examining the Rule 11 Agreement, the Court concludes that the parties agreed
to all essential terms, including that Plaintiff would pay $5,000 and deliver certain property to the
Ershicks in exchange for the Ershicks agreeing to make no further claim to any other property in
possession of Decedent and consenting to the appointment of Plaintiff as Independent
Administrator, as well as the parties’ mutual release of claims. See Guzder, 476 S.W.3d at 778
(“Essential or material terms of a Rule 11 settlement agreement include payment terms and release
of claims.”); see also Watson, 2019 WL 2939816, at *3 (finding settlement agreement included
essential terms where it provided one party would pay the other party monthly payments of $2,500
and return certain personal property and that the parties would enter general mutual releases).
Moreover, if Defendant was correct in his assertion that the Rule 11 Agreement lacks essential
terms, then the agreement would be unenforceable, which would result in the disfavored outcome
of complete forfeiture. Fischer, 479 S.W.3d at 239 (noting that courts should find the terms to be
sufficiently definite when the language is reasonably susceptible to that interpretation because the
law disfavors forfeitures).
Though the Rule 11 Agreement does not resolve the details as to when the exchanges would
take place, the methodology for the pickup up of the property, or the details of the mutual releases,
agreement as to these collateral matters is not fatal. See E.P. Towne Ctr. Partners, L.P. v.
Chopsticks, Inc., 242 S.W.3d 117, 123 (Tex. App.—El Paso 2007, no pet.) (holding that parties
entered into binding settlement agreement even though agreement did not address disposition of
tenant’s security deposit or date to vacate premises—terms which “may have been significant to
the parties’ relationship”—because those terms were unessential “collateral matters”); see also In
re Deepwater Horizon, 786 F.3d 354, 357 n.26 (5th Cir. 2015) (collecting cases holding that even
when the existence of a release is material, the precise terms and specific language of the releases
are not material). First, as to the timing of performance, “Texas courts hold that time of
performance such as the time of payment of a settlement amount is not an essential term because
time ordinarily is not of the essence in a contract.” Love v. Harrison, No. 14-16-00632-CV, 2017
WL 3567868, at *6 (Tex. App.—Houston [14th Dist.] Aug. 17, 2017, no pet.) (collecting cases);
see CherCo Props., Inc., 985 S.W.2d at 266 (finding that time of performance in settlement
agreement was not a material term); see also Fischer, 479 S.W.3d at 239 (noting that courts often
imply a term setting reasonable time of payment).
Further, as with time of performance, Texas courts routinely hold that the manner of
payment and performance are not essential terms. See Yazdani-Beioky v. Sharifan, 550 S.W.3d
808, 827 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (rejecting argument that that time
and manner of performance were material terms of parties’ agreement); Eastman Gas Co., L.L.C.
v. Goodrich Petroleum Co., L.L.C., 456 S.W.3d 319, 329 (Tex. App.–Texarkana 2015, pet. denied)
(“[T]he manner of payment and the amount and rate of interest are not essential terms [of the Rule
11 agreement].”). Thus, though Defendant points out that the parties failed to agree on “how and
when the bilateral ‘consideration’ was to be paid or exchanged[,]” the lack of agreement on these
terms does not render the agreement unenforceable. To be sure, these are the only two terms that
Defendant points to that are missing from the Rule 11 Agreement.
settlement agreements need only “contain sufficient terms to determine the parties’ obligations but
[are] not required to resolve all disputed issues.” W. Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d
248, 258–59 (Tex. App.—Austin 2002, no pet.). Thus, the Court finds that the Rule 11 Agreement
contains all essential terms.
D. Whether the Rule 11 Agreement Fails for Indefiniteness Because It Leaves
Terms to be Agreed Upon by the FSA
Relatedly, Defendant argues that the Rule 11 Agreement is unenforceable because it
contemplates terms to be agreed upon by the FSA—terms that were never agreed to. Thus, because
the parties could not agree on the additional terms and a court cannot supply terms not agreed
upon, Defendant hints that the agreement is impossible to enforce. However, “the fact that the
parties have left certain terms open for negotiation in an agreement that they intend to be binding
does not make the agreement indefinite.” Stergiou, 438 S.W.3d at 752. Accordingly, that the Rule
11 Agreement contemplates the execution of an FSA at a later date and leave other terms open to
be agreed upon later does not preclude its enforcement. See id. at 751-52 (rejecting argument that
Rule 11 Agreement could not be enforced because the parties could not agree on the additional
documents’ terms). Indeed, “[c]ourts often enforce settlement agreements that contemplate
additional documentation or leave other terms open to be agreed upon later.” Jennings v. Jennings,
625 S.W.3d 854, 862–63 (Tex. App.—San Antonio 2021, pet. filed) (collecting cases).
To be sure, “[a]greements to enter into future contracts are enforceable if they contain all
material terms.” McCalla, 416 S.W.3d at 418 (per curiam). When an “agreement to enter into a
future contract already contains all the material terms of the future contract,” courts can determine
and enforce the parties’ obligations, and concerns about indefiniteness and reasonable certainty do
not arise. Id. Accordingly, an agreement that contains all of its essential terms is not unenforceable
merely because the parties anticipate some future agreement. See id. (holding that even if
settlement agreement in which party promised that he “will agree” and “agree[s] to enter an
agreement” constituted “agreement to agree,” it was nevertheless enforceable because it contained
all material terms). Thus, a binding settlement may exist when parties agree upon some terms,
understanding them to be an agreement, and leave other terms to be made later. See, e.g., Foreca,
758 S.W.2d at 746; Stergiou, 438 S.W.3d at 744.
For example, in Martin v. Martin, 326 S.W.3d 741 (Tex. App.—Texarkana 2010, pet.
denied), two brothers had a dispute over the management of their closely-held corporation. Id. at
743. In an effort to settle their dispute over “corporate control,” the brothers reached a settlement
agreement that, among other things, required them to negotiate a shareholder agreement in good
faith. Id. at 743–44. However, they never agreed to the terms of the shareholder agreement. Id. at
744. On appeal, the Texas appellate court concluded that their settlement agreement was not an
enforceable agreement because the to-be-negotiated shareholder agreement “would be the
foundational document of [the company] and would define the [brothers’] rights vis-a-vis each
other and [the company].” Id. at 754. Thus, because the settlement agreement left the terms of the
shareholder agreement open for future agreement that never occurred, the court found that the
settlement agreement was unenforceable as a matter of law. Id.
Conversely, in Stergiou, another Texas appellate court found that a Rule 11 agreement was
enforceable as a matter of law though the Rule 11 agreement contemplated additional documents
to be executed and failed to supply information as to the specific terms of the additional documents.
438 S.W.3d at 743. In distinguishing Martin, the court found that that “the additional documents
d[id] not have the same ‘foundational’ importance to the underlying dispute.” Id. at 746. After
noting the essence of the parties’ agreement was the promise to pay $300,000 in exchange for the
return of stock and the dismissal of the lawsuit, the court found that the additional documents,
which would have included provisions relating to inspection rights, insurance, prepayment of debt,
and repair of collateral, were not “vitally important elements of their bargain.” Id. Further, though
acknowledging that the Rule 11 agreement required one party to make installment payments for a
number of years to the other party, the Court found that the Rule 11 agreement did not require the
parties to have a relationship “akin to the parties in Martin, who continued to be involved in the
operation of the same closely-held corporation.” Id. Thus, the court found that the terms of the
additional documents were not essential. Id. at 747.
Here, the Rule 11 Agreement’s contemplation of the execution of the FSA is more like the
contemplation of additional documentation in Stergiou than Martin. Like Stergiou, here, the
additional document contemplated by the Rule 11 Agreement—the FSA—relates to details
regarding implementation of the Rule 11 Agreement.
Indeed, like Stergiou, the Rule 11
Agreement sets forth the general terms of the parties’ settlement—including payment obligations
and the release of claims. See 438 S.W.3d at 756. And like Stergiou, where the terms in the
additional documents that were never agreed to related to payment and were found to be nonessential, here, the terms relate to the details of performance and timing and are non-essential. See
id. Further, unlike Martin, where the shareholder agreement was contemplated to be the
foundational document of the settlement agreement, here, the FSA was simply intended to “recite
additional terms necessary to complete the Agreement” Cf. Martin, 326 S.W.3d at 754 with Dkt.
#29, Exhibit 12.
In sum, the Court finds that the Rule 11 Agreement contains all the essential terms with
enough definiteness to be enforceable. The Court turns to Defendant’s last argument as to why
the Rule 11 Agreement is not a valid contract.
E. Whether the Rule 11 Agreement Fails for Mutuality of Obligation
Defendant’s briefing makes a few scattered references to the idea that Plaintiff’s promises
were illusory (Dkt. #30 at p. 12; Dkt. #34 at p. 4). For example, Defendant asserts: “Note the
wording in the FSA which hedged Plaintiff’s obligation by tying performance to the ‘approval’ by
the probate court judge and other factors solely under Plaintiff’s control” (Dkt. #30 at p. 12). In
response, Plaintiff argues that the “Rule 11 Agreement provided consideration on both sides—that
is a release of claims and the payment of money” and “[t]hat is all that is required” (Dkt. #31 at p.
4). The Court finds Defendant’s argument to be misplaced.
To be enforceable, a contract must be based on consideration, also known as mutuality of
obligation. See Tex. Gas Utils. v. Barrett, 460 S.W.2d 409, 412 (Tex. 1970). Consideration is a
present exchange bargained for in return for a promise and consists of benefits and detriments to
the contracting parties. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991).
The detriments must induce the parties to make the promises, and the promises must induce the
parties to incur the detriments. Id. What constitutes consideration is a question of law. Brownwood
Ross Co. v. Maverick Cnty., 936 S.W.2d 42, 45 (Tex. App.—San Antonio 1996, writ denied).
Courts strive to construe a contract to promote mutuality and to avoid a construction that makes
promises illusory. Young v. Neatherlin, 102 S.W.3d 415, 420 (Tex. App.—Houston [14th Dist.]
2003, no pet.). However, a promise is illusory if it does not bind the promisor, such as when the
promisor retains the option to discontinue performance. In re 24R, Inc., 324 S.W.3d 564, 567 (Tex.
Thus, lack of consideration occurs when the contract, at its inception, does not impose
obligations on both parties. Burges v. Mosley, 304 S.W.3d 623, 628 (Tex. App.—Tyler 2010, no
pet.). The contract lacks mutuality of obligation and is unenforceable. Id. Here, the Court finds
that Plaintiff’s promises were not illusory, but were supported by consideration. For example,
under the terms of the Rule 11 Agreement, Plaintiff agreed to pay $5,000 and deliver certain
personal property to the Ershicks in exchange for their release of other claims to any property of
the estate (Dkt. #29, Exhibit 12).
Moreover, per section nine of the Agreement, it was “not subject to revocation” by either
party (Dkt. #29, Exhibit 12). Thus, if Plaintiff’s promise was illusory and she could unilaterally
revoke some of her obligations, as Defendant contends, the Agreement’s revocation provision
would be rendered superfluous. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) (readings
that render phrases meaningless are disfavored). Accordingly, because the Rule 11 Agreement
does not give Plaintiff the unilateral power to terminate the Agreement, it is not illusory.
In sum, the Court finds Defendant’s arguments as to validity of the Rule 11 Agreement are
unavailing. Stated differently, the Court finds that the parties formed a valid contract when they
entered the Rule 11 Agreement. Nonetheless, Defendant argues that his pleading of fraudulent
concealment as an affirmative defense prevents summary judgment for Plaintiff (Dkt. #30 at p.
10). Accordingly, the Court turns to consider the effect of Defendant’s fraudulent concealment
Fraud by Non-Disclosure
Fraud by non-disclosure is a subcategory of fraud that occurs when a party has a duty to
disclose certain information and fails to disclose it. Bombardier Aerospace Corp. v. SPEP Aircraft
Holdings, LLC, 572 S.W.3d 213, 219 (Tex. 2019). To establish fraud by non-disclosure, the
plaintiff must show:
(1) the defendant failed to disclose material facts to the plaintiff that the defendant
had a duty to disclose; (2) the defendant knew the plaintiff was ignorant of the facts
and the plaintiff did not have an equal opportunity to discover the facts; (3) the
defendant was deliberately silent when the defendant had a duty to speak; (4) by
failing to disclose the facts, the defendant intended to induce the plaintiff to take
some action or refrain from acting; (5) the plaintiff relied on the defendant's
Defendant alleges in his answer and re-affirms in his briefing that he “has pleaded fraudulent concealment which
allows Defendant to rescind his Rule 11 Agreement” (Dkt. #29 at p. 11). “Fraudulent concealment,” however “is a
defense to the statute of limitations.” Stabilis Fund II, LLC v. Compass Bank, No. 3:18-CV-0283-B, 2020 WL 487497,
at *6 n.2 (N.D. Tex. Jan. 30, 2020) (citing BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011)).
Accordingly, because Defendant also discusses fraud by non-disclosure and cites cases regarding fraud by nondisclosure, the Court assumes that Defendant meant fraud by nondisclosure.
nondisclosure; and (6) the plaintiff was injured as a result of acting without that
D'Onofrio v. Vacation Publ’ns, Inc., 888 F.3d 197, 218 (5th Cir. 2018) (quoting White v. Zhou Pei,
452 S.W.3d 527, 537 (Tex. App.—Houston [14th Dist.] 2014, no pet.)). Importantly, “for there to
be actionable nondisclosure fraud, there must be a duty to disclose.” Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 341 (5th Cir. 2008) (quoting Newby v. Enron Corp., 388 F. Supp. 2d 780, 788
(S.D. Tex. 2005)); Bradford v. Vento, 48 S.W.3d 749, 755–56 (Tex. 2001) (“[F]ailure to disclose
information does not constitute fraud unless there is a duty to disclose the information”).
Here, Defendant argues that though Plaintiff was under an affirmative duty to reveal the
PMA, yet Plaintiff and Chowins fraudulently concealed it, “which allows Defendant to rescind his
Rule 11 Agreement” (Dkt. #29 at p. 11; Dkt. #34 at p. 9). Indeed, Defendant argues that “[t]hough
[he] tried on multiple occasions to discover the PMA,  Plaintiff and her attorney simply
stonewalled and ignored Plaintiff’s duty to Defendant and the duty of candor to the court” (Dkt.
#29 at p. 12). More specifically, according to Defendant, “the proof is [in] Plaintiff’s own words
in her deposition taken on August 31, 2021,” (Dkt. #29 at p. 11), where “she lies about the
existence of the PMA” (Dkt. #33 at p. 3). Further, “to evidence Plaintiff’s duplicity,” Defendant
points to Request for Production No. 23, “which specifically asks for any ‘premarital agreement’”
and “Plaintiff’s lack of response” (Dkt. #33 at pp. 2–3).
In response, Plaintiff argues that “Defendant’s poorly drafted discovery definitions,
requests and questions at the Deposition  never placed Plaintiff under an obligation to disclose
the premarital agreement” (Dkt. #31 at p. 2). According to Plaintiff, “[a]t the time of this
discovery, [under the Texas Rules of Civil Procedure], there was no duty of automatic disclosure
of relevant documents and Plaintiff only was required to respond to discovery as asked” (Dkt. #31
at p. 2). Further, according to Plaintiff, because “Defendant limited the time period of requested
documents, Plaintiff was not required to volunteer documents outside of those parameters” (Dkt.
#31 at pp. 2-3). Moreover, “[t]here was no misrepresentation by Plaintiff—she acknowledged that
there was a premarital agreement [at her deposition]” (Dkt. #32 at p. 12).
Thus, the crux of the parties’ dispute is whether Plaintiff had a duty to disclose the PMA.
While Defendant argues Plaintiff was under an affirmative duty to reveal the PMA, Plaintiff argues
the PMA was never properly requested, which would have triggered the duty to disclose it.
Importantly, if there was no legal duty to disclose the PMA, then there can be no fraud for failing
to disclose it. See Natour v. Bank of Am., N.A., No. 4:21-CV-00331, 2022 WL 2252588, at *3
(“[A] mere failure to disclose information does not constitute fraud unless there is a duty to disclose
A. Whether a Duty to Disclose Existed
Whether a duty to disclose exists is a question of law for the court. Bradford, 48 S.W.3d at
755. Under Texas law, a duty to disclose may arise in four situations. Bombardier Aerospace
Corp., 572 S.W.3d at 220. First, if the parties have a confidential or fiduciary relationship, there
may be a duty to disclose.7 Id. Second, a person may assume a duty to disclose when he or she
voluntarily discloses partial information but fails to disclose the whole truth. Id. Third, a duty to
disclose arises when a person makes a representation and fails to disclose new information that
makes the earlier representation misleading or untrue. Id. Finally, a duty to disclose arises when a
person’s partial disclosure conveys a false impression. Id.
A fiduciary duty arises “as a matter of law in certain formal relationships, including attorney-client, partnership, and
trustee relationships.” Ins. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998) (citations omitted). A confidential
relationship is one in which the “parties have dealt with each other in such a manner for a long period of time that one
party is justified in expecting the other to act in its best interest.” Id.; see also Meyer v. Cathey, 167 S.W.3d 327, 331
(Tex. 2005) (per curiam) (recognizing that an informal relationship giving rise to a duty may also be created by a
“special relationship of trust and confidence [which] exist[s] prior to, and apart from, the agreement”) (citation
omitted). An informal relationship giving rise to a duty may also be formed from “a moral, social, domestic or purely
personal relationship of trust and confidence.” Meyer, 167 S.W.3d at 331 (citation omitted).
Here, though Defendant cursorily argues that “Plaintiff was under an affirmative duty to
reveal the PMA before inducing an agreement,” he fails to elaborate any further on the legal basis
for his argument (Dkt. #34 at p. 9). Indeed, he does not discuss—or even mention—which
situation the duty to disclose arose from in this case—namely, whether it was from (1) the
existence of a fiduciary relationship, (2) the Plaintiff’s disclosure of partial information, (3) the
Plaintiff’s failure to disclose new information after making a representation, or (4) the Plaintiff’s
partial disclosure, which conveyed a false impression. Further, though he cites three cases for the
proposition that Plaintiff was under an affirmative duty to disclose the PMA, these cases offer no
support for Defendant’s position or any guidance on the matter.
Nevertheless, though failing to produce any legal authority to support his contentions,
Defendant points to two specific instances that triggered the duty to disclose the PMA—(1)
Defendant’s discovery requests to Plaintiff and (2) Plaintiff’s deposition. However, the Court
disagrees with Defendant. First, the discovery requests served upon Plaintiff established no duty
to disclose the PMA for several reasons. To begin, as Plaintiff notes, at the time of the discovery,
in contrast to the Federal Rules of Civil Procedure, the Texas Rules of Civil Procedure did not
require the automatic disclosure of relevant documents. See Matter of Smith, No. 01-19-00014CV, 2020 WL 5269417, at *4 (Tex. App.—Houston [1st Dist.] Sept. 3, 2020, no pet.) (mem. op.)
(“The comments to Rule 194 indicate that “[d]isclosure is designed to afford parties basic
discovery of specific categories of information, not automatically in every case, but upon
request[.]”) (citing TEX. R. CIV. P. 194 cmt. 1) (emphasis in original). Further, though Defendant
points to two specific discovery requests and suggests they required Plaintiff to produce the PMA,
the Court disagrees (See Dkt. #33 at p. 2).
For example, Defendant points to Interrogatory 3, which provided:
3. Have you ever created or provided information to be recorded in any
document/media regarding your marital status (e.g. W-4, W-9, tax returns,
employment application, insurance application, property information, medical
forms or histories, jury questionnaires, real estate documents, mortgage documents,
bank records, stock brokerage records, investment accounts, title documents (e.g.
automobile title, automobile purchase or sale, land purchase and sales of personal
property), general contracts, conveyance documents (e.g. bill of sale), church
documents, social media, etc.)? If so, please describe said document, date or
approximate date of documents, and state what marital status you recorded on each
(Dkt. #32, Exhibit 1 at p. 26). Significantly, however, the instructions to the interrogatories
provided: “Unless otherwise specified, please provide information which is current at the time you
are answering these interrogatories, or from date of marriage to Decedent to the current date”
(Dkt. #32, Exhibit 1 at p. 24) (emphasis added).
GENERAL OBJECTIONS: Except where Applicant responded to the specific
interrogatory without objection, Applicant, Linda Young hereby OBJECTS to the
"Contestants' Interrogatories to Applicant" on the grounds that the Discovery
sought is overbroad and not reasonably tailored to include only matters relevant to
the case before the court. Further, such discovery amounts to an impermissible
"fishing expedition." The Applicant further states that the discovery sought
amounts to impermissible annoyance and harassment of Applicant by the
Contestants and an invasion of her personal, constitutional and property rights
including her rights to privacy as to matters not before the Court. Furthermore, the
probative value of the information sought is outweighed by the time and expense
burden on the Applicant given the needs of this case.
OBJECTIONS: Applicant reiterates her General Objections and further objects to
this interrogatory as overly broad and not reasonably tailored to include only
matters relevant to the case. The applicant further objects to this interrogatory as
vague as to the meaning of “information to be recorded in any document/media”,
and not relevant to any matter before the court nor reasonably calculated to lead to
discovery of information relevant to any matter before this court. Without waiving
these objections, Applicant responds as follows:
RESPONSE: Yes. Since the date of my marriage to Decedent through the
Decedent’s death, I have only represented my marital status as married. As such,
there are too many documents to reasonably identify in response to this request
given the length of our marriage. However, all federal tax returns filed during my
marriage to Decedent were filed using a filing status available to married persons
(Dkt. #32, Exhibit 1 at pp. 27–28). Similarly, as to the second discovery request that Defendant
points to, Request for Production No. 23, it stated:
Provide a copy of all estate planning documents (e.g. wills, powers of attorney,
directive to physicians, health care power of attorney, designation of agent, trusts,
bank signature cards, survivorship agreements, marital or premarital agreements,
etc.) made or executed from date of marriage to date of death by either you or
(Dkt. #32, Exhibit 1 at p. 34) (emphasis added). Plaintiff’s Objections and Response provided:
OBJECTIONS: Applicant reiterates her General Objections and further objects to
this request as overly broad and not reasonably tailored to include only matters
before the court.
RESPONSE: Without waiving these objections, Applicant responds as follows: No
(Dkt. #32, Exhibit 1 at p. 36).
Thus, upon review of Defendant’s specific discovery requests and Plaintiff’s responses,
Defendant is mistaken that a duty to disclose the PMA arose from them. As to the interrogatory
request, the PMA neither fell within the requested document examples nor fell within the time
parameters of the request as provided in the instructions to the request. Similarly, as to the request
for production, though it specifically lists a premarital agreement as an example of a responsive
document, it also clearly restricts the request to documents made or executed from the date of
marriage to date of death. Thus, because of the date restriction within the request, the PMA, which
was signed prior to the date of marriage, was not responsive to the request. Accordingly,
Defendant’s discovery requests and Plaintiff’s responses did not create a situation in which a duty
to disclose the PMA arose.8
However, the outcome would be different if the Federal Rules of Civil Procedure or the current Texas Rules of Civil
Procedure, which were amended in 2021, had governed the parties’ discovery process. In contrast to the previous
version of Rule 194 of the Texas Rules of Civil Procedure, which imposed no mandatory disclosure requirement, Rule
Moreover, though Defendant argues that “Judge Jahn’s orders belie Plaintiff’s arguments,”
pointing out that the Denton County Probate Court ultimately found the PMA to be “relevant” and
ordered that it be produced, this argument is misleading (See Dkt. #33 at p. 2). As Chowins notes,
the motions to compel filed before mediation did not directly concern production of the PMA and
Kelsey did not file a motion specifically concerning production of the PMA until months after
mediation (Dkt. #32, Exhibit 2 at p. 5). And though the Probate Court ultimately found the PMA
to be “relevant” and ordered that it be produced, the Court did not find that it was responsive to
any discovery request or that there was any wrongdoing by Plaintiff (Dkt. #32, Exhibit 2 at p. 5).
Thus, the Court does not find it persuasive that the Probate Court ultimately ordered production of
Second, Defendant argues that the duty to disclose the PMA arose from Plaintiff’s
deposition testimony, “wherein she lie[d] about the existence of the PMA” (Dkt. #33 at p. 3). At
Plaintiff’s deposition taken on August 31, 2020, the following exchange took place:
Q. (BY MR. KELSEY): Okay. Do you - - Did you and Eric have a premarital
agreement of any kind?
A. Yes, I guess you could say that. We - - we had this little rinky-dink thing that
we printed off. And then we found out later that it was probably no good because
we didn't go to a lawyer and have one drawn up and signed and notarized and all of
that kind of good stuff, so . . .
Q. Do you still have a copy of that?
Q. I asked for that, and I have never received it. Do you know why I haven't received
MR. CHOWINS: Objection, work product.
194 of the Texas Rules of Civil Procedure and Rule 26(a) of the Federal Rules of Civil Procedure both require the
automatic disclosure of certain documents—namely documents that a party “may use to support its claims or
defenses.” See TEX. R. CIV. P. 194.2(b)(6); FED. R. CIV. P. 26(a)(1)(A)(ii).
MR. KELSEY: Counsel, how is an existing document work product? Done prior MR. CHOWINS: You’re - MR. KELSEY: - - to - MR. CHOWINS: - - assuming facts that - - that go into the impressions of the case.
MR. KELSEY: And that’s the only response you have to that question; is that
MR. CHOWINS: Objection, form, as well.
MR. KELSEY: Okay. Please certify that, Madam Reporter.”
(Dkt. #30, Exhibit 2 at p. 4).
Here, while Plaintiff arguably downplayed the significance of the PMA, she, in fact,
admitted that it existed. Thus, contrary to Defendant’s argument, the Court does not find that “she
lie[d] about the existence of the PMA” (See Dkt. #33 at p. 3). Moreover, though Defendant
suggests Chowins was complicit in the fraud by “ma[king] a frivolous objection” when Kelsey
asked Plaintiff why he hadn’t received the agreement, (Dkt. #29 at p. 12), a closer inspection of
the exchange shows that Chowins only objected on “work product” grounds after Kelsey asked
why the document had not been produced earlier. Thus, the Court does not find any wrongdoing
by Chowins or Plaintiff.
More importantly, though Kelsey asked Plaintiff why the PMA had not been produced, he
failed to ask that it be produced. Similarly, while Kelsey certified the question concerning the
PMA, he failed to request a hearing on the deposition question before the mediation in October.
Indeed, according to Chowins, after Plaintiff’s deposition, Kelsey “never requested the premarital
agreement referred to in the deposition, either formally or informally, until months after the
mediated Rule 11 Agreement was entered into” (Dkt. #32, Exhibit 2 at p. 4). Nor does Plaintiff
dispute that he failed to follow up on the existence of the PMA or take any further action to obtain
it in the time between Plaintiff’s deposition on August 31, 2020 and the mediation on October 27,
2020—a period of almost two months (see also Dkt. #29, Exhibit 21).
In short, though Defendant attempts to blame Plaintiff for his failure to receive the PMA
before the mediation, Defendant has no one to blame but his counsel. Though Defendant’s counsel
had a useful tool at his disposable to obtain the PMA—discovery—he failed to wield it in an artful
Indeed, because of the date restrictions in Defendant’s poorly drafted discovery
definitions and requests, Plaintiff was under no affirmative obligation to disclose the PMA—a
document outside of Defendant’s parameters. And though now Defendant points the finger at
Plaintiff, it should go without saying that litigation is an adversarial process. “Parties must act to
protect their own interest.” Matter of Marriage of Moncur, 640 S.W.3d 309, 318 (Tex. App.—
Houston [14th Dist.] 2022). As such, when Defendant limited the time period of requested
documents, Plaintiff was under no obligation to correct Defendant’s mistake by producing
documents that were not asked for. See Richman Trs. v. Kutner, 504 S.W.2d 539, 544 (Tex. Civ.
App.—Dallas 1973, writ ref’d n.r.e.) (seller of strip shopping center had no duty to disclose facts
about extent of insurance converge because buyer failed to make inquiry and discover such
information); Am. Marine Upholstery Co. v. Minsky, 433 S.W.2d 717, 720 (Tex. Civ. App.—
Eastland 1968, writ ref’d n.r.e.) (lessor had no duty to inform lessee of previous flooding because
lessee failed to inquire about whether the creek had flooded).
Even more so, Defendant’s counsel was alerted to the existence of the PMA almost two
months before the mediation, but he did nothing to obtain the document in the meantime. Indeed,
he failed to ask that it be produced. He failed to send supplemental discovery requests. He failed
to request a hearing on the deposition question. He did not request to postpone the mediation.
Instead, with knowledge that a premarital agreement existed, Defendant and his counsel chose to
forego the rest of the adversarial process and settle Defendant’s claims based on whatever
information was available to them at the time.9
Yet, though Defendant’s counsel knowingly chose to roll the dice as to the uncertainty of
the contents of the PMA at the time, Defendant now blames Plaintiff for failing to disclose it. But
Plaintiff acknowledged that there was a premarital agreement in her deposition. It was Defendant’s
counsel who failed to take action to uncover the contents of the agreement or even wait and see
how the Probate Court would rule on the previously filed motions to compel. Again, though
Defendant attempts to shift the blame to Plaintiff, he can only blame his counsel—he is the one
who chose to settle Defendant’s claims in reliance on incomplete information. See Advanced
Multilevel Concepts, Inc. v. Bukstel, No. 11-3718, 2014 WL 6907973, *7 (E.D. Pa. Dec. 9, 2014)
(rejecting claim of fraud when party decided to settle his claims with full knowledge that discovery
was ongoing, that additional evidence was likely be disclosed, and three pending motions to
compel remained outstanding at the time of the settlement). Indeed, “[g]iven the expertise of the
participants, a party considering entering into the contract would be expected to discover and
clarify th[e] information.” Pellegrini v. Cliffwood-Blue Moon Joint Venture, Inc., 115 S.W.3d 577,
580 (Tex. App.—Beaumont 2003, no pet.). But Defendant’s counsel did not.
While Defendant’s counsel was on notice that the PMA existed before mediation because Young’s deposition took
place months before, it is unclear whether Defendant himself—James Ershick—knew of the existence of the PMA at
the time of mediation. In his unsworn declaration, he states: “My wife and I would never have agreed to the Rule 11
Agreement if we had known of the PMA . . . .” (Dkt. #30, Exhibit 14 at p. 2). Thus, from this statement, it appears
Defendant had no knowledge whatsoever of the PMA. However, even if this is true, a party is accountable for the
acts and omissions of its counsel. Pioneer Inv. Servs. Co. v. Brunswick Assoc. L.P., 507 U.S. 380, 396; Silvercreek
Mgmt., Inc. v. Banc of Am. Securities, LLC, 534 F.3d 469, 472–73 (5th Cir. 2008); see also Harris v. Boyd Tunica,
Inc., 628 F.3d 237, 240 (5th Cir. 2010) (noting that a party is bound by acts of her lawyer). Nevertheless, this issue
goes beyond the scope of this motion. What is relevant for this motion is that Plaintiff had no duty to disclose the
PMA based on the facts presented.
For all of these reasons, Defendant has failed to establish Plaintiff had a duty to disclose
Therefore, the Court finds that Defendant’s fraud by non-disclosure defense cannot carry
the day. As such, because Defendant’s defense fails as a matter of law and Plaintiff has proven
that the Rule 11 Agreement was a valid, enforceable contract, Plaintiff has proven the first element
for her breach of contract claim. The Court now turns to consider whether she has proven the
Whether Plaintiff Can Prevail On Her Breach of Contract Claim
Under Texas law, there are four elements for a breach of contract claim: (1) the existence
of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the
contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach.
Valero Mktg. & Supply Co. v. Kalama Int’l, 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.]
2001, no pet.). As noted, Plaintiff has proven the first element—that there was an enforceable
contract between the parties. As to the remaining elements, the parties devote little time in their
briefs to discussing these. Nevertheless, the Court finds that Plaintiff meets all of the elements on
her breach of contract claim.
A. Whether Plaintiff Performed and Defendant Breached the Contract
To begin, pursuant to section 10 of the Rule 11 Agreement, Plaintiff’s attorney was
obligated to “draft the initial Family Settlement Agreement draft” and the Ershicks’ attorney was
given “7 days to respond to the FSA draft” (Dkt. #29, Exhibit 12). Moreover, both parties agreed
to “execute all documents to affect the terms of this Agreement” (Dkt. #29, Exhibit 12). In
compliance with the Agreement, Chowins drafted the first draft of the FSA and emailed it to
Kelsey for review (Dkt. #23, Exhibit 3 at p. 11). Kelsey emailed back a revised FSA with
additional changes (Dkt. #23, Exhibit 3 at p. 22). The email exchanges between Chowins and
Kesley reveal that the parties disagreed as to how many days pickup of the personal property would
take, what part of the Sugar Mill Lane house the Ershicks would have access to, and whether
additional personal property items would be exchanged (Dkt. #23, Exhibit 3).
Defendant admits that he withdrew his consent to the Rule 11 Agreement via email dated
November 17, 2020 (Dkt. #30, Exhibit 4; Dkt. #30 at p. 6). And, on February 24, 2021, Chowins
emailed Kelsey to notify him that Plaintiff would file a breach of contract action if the Ershicks
did not perform their contractual obligations. In the email, Chowins stated that the Ershicks had
“failed to comply with their contractual obligations under the Rule 11 Agreement by . . . fail[ing]
to execute any draft of the FSA contemplated by the Rule 11 Agreement even though several drafts
ha[d] been presented to them” (Dkt. #23, Exhibit 3 at p. 58). The next day, Kelsey responded to
Chowins’ email, affirming that Mr. Ershick had “reupdiated the Rule 11 Agreement” (Dkt. #30,
Thus, the conduct and communications of the parties after execution of the Rule 11
Agreement reveal that (1) Defendant breached the Rule 11 Agreement and (2) Plaintiff performed
her obligations. To begin, because the Rule 11 Agreement required Defendant to “execute all
documents to affect the terms of this Agreement[,]” Defendant’s failure to do so constituted a
breach. See Deutsche Bank Nat’l Tr. Co. v. Guerrero, No. A-13-CV-513 LY, 2014 WL 12580037,
at *8 (W.D. Tex. Oct. 7, 2014) (finding that where settlement agreement required defendant to
execute documents necessary to carrying out the agreement, defendant’s failure to do so was a
breach). Indeed, Defendant does not dispute this—he admits that he withdrew his consent to the
Rule 11 Agreement via email on November 17, 2020 and further repudiated the Rule 11 Agreement
by letter dated February 25, 2021 (Dkt. #30 at pp. 6–7).
Conversely, Plaintiff tendered performance under the Rule 11 Agreement by having her
attorney draft the FSA, and she states that she “was ready, able and willing to perform every
obligation required of her under both the Rule 11 Agreement and the FSA proposed” (Dkt. #23 at
p. 8). Moreover, though Plaintiff never tendered $5,000 to the Ershicks or delivered the property
covered under the Rule 11 Agreement, this does not preclude her recovery since these obligations
were not due under the Rule 11 Agreement until later. Further, “[i]t is a fundamental principle of
contract law that when one party to a contract commits a material breach of that contract, the other
party is discharged or excused from further performance.” Mustang Pipeline Co. v. Driver Pipeline
Co., 134 S.W.3d 195, 196 (Tex. 2004). Thus, because Defendant failed to perform under the Rule
11 Agreement prior to the date any payment or delivery of personal property was due from
Plaintiff, Plaintiff was excused from these obligations. See Narvaez v. Wilshire Credit Corp., 757
F. Supp. 2d 621, 629 (N.D. Tex. 2010) (nonperformance of contract excused when performance
is prevented by other party); Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st
Dist.] 2003, pet. denied) (noting that prevention of performance by one party excuses performance
by the other party). Thus, the Court concludes that Defendant breached the Rule 11 Agreement,
and Plaintiff’s remaining performance was excused by Defendant’s breach.
As set forth above, the final element necessary to establish a claim for breach of contract
is that the plaintiff has suffered damages. Prime Income Asset Mgmt. Inc. v. One Dallas Centre
Assoc. LP, 358 Fed. App’x. 569, 571 (5th Cir. 2009) (noting that to establish breach of contract
claim under Texas law, plaintiff must prove damages to the plaintiff resulting from breach). The
Court turns to consider this issue.
As a result of Defendant’s breach of the Rule 11 Agreement, Plaintiff seeks (1) specific
performance of the Rule 11 Agreement, (2) $133,410.20 as additional damages caused by the
breach of contract, and (3) reasonable and necessary attorney’s fees (Dkt. #23 at pp. 8–9).
Defendant contests each request—though, as with most of his other arguments, citing little case
law in support of his positions. The Court considers the requests in turn.
Specific Performance of the Rule 11 Agreement
First, Plaintiff seeks an order requiring Defendant to:
(1) stipulate to the probate court that he is in agreement to allow Ms. Young to be
the independent administrator and to not oppose any bond amount suggested,
including no bond; (2) to stipulate that Defendant will make no claim to any
property of the estate except for the property described in Exhibit A of the Rule 11
agreement, the Camaro and $5,000.00; (3) to relinquish any claim to the real
property located at 11122 Sugar Mill Lane, Frisco Texas and to stipulate that the
home will be awarded to Linda Young in its entirety
(Dkt. #36 at p. 1). Further, according to Defendant, “[a]n order from this court requiring Defendant
to sign the Family Settlement Agreement . . . would supply all necessary terms and would allow
the probate court to continue with its duties in administering the Estate” (Dkt. #36 at p. 1). In
response, Defendant asserts that “[t]his court must abstain from making orders in the probate
court” (Dkt. #33 at p. 1). According to Defendant, though “the only issue before this court is a
plain breach of contract claim . . . Plaintiff would have this court order the probate court judge to
render and enter a judgment on Plaintiff’s appointment as Administratix, order a mutual
release, . . . [and] deal with the effect of the Premarital Agreement” (Dkt. #33 at pp. 1–2).
Specific performance is an equitable remedy that may be awarded upon a showing of
breach of contract. Ifiesimama v. Haile, 522 S.W.3d 675, 685 (Tex. App.—Houston [1st Dist.]
2017, pet. denied); Stafford v. S. Vanity Mag., Inc., 231 S.W.3d 530, 535 (Tex. App.—Dallas 2007,
pet. denied). Specific performance is not a matter of right, but a matter committed to the discretion
of the trial court. Id. Notably, courts in Texas have held that “[s]pecific performance is an
appropriate remedy for breach of a mediated settlement agreement.” Knight, 2007 WL 628746, at
To be entitled to specific performance, a party must plead and prove the following: (1)
there is no adequate remedy at law; see Woody v. J. Black’s LP, No. 03-15-00293-CV, 2016 WL
3677241 at *3 (Tex. App.—Austin July 7, 2016, no pet.) (mem. op.); South Plains Switching, Ltd.
v. BNSF Ry. Co., 255 S.W.3d 690, 703 (Tex. App.—Amarillo 2008, pet. denied) (holding it to be
a “fundamental rule of equity that specific performance may not be granted unless it is shown there
is no adequate remedy at law”); (2) a readiness to perform; see Cozzens v. Barstow, No. 03-9700194-CV, 1998 WL 20721 at *1 (Tex. App.—Austin Jan. 23, 1997, no writ) (mem. op.) (holding
“[p]roof of the plaintiff's readiness, willingness, and ability to perform the contract is an essential
element of his cause of action for specific performance”); and (3) performance of other material
contractual obligations by the party seeking specific performance or a pleading that performance
would have been tendered but for the defendant’s breach or repudiation. See DiGiuseppe v. Lawler,
269 S.W.3d 588, 594 (Tex. 2008) (“It is also a general rule of equity jurisprudence in Texas that a
party must show that he has complied with his obligations under the contract to be entitled to
specific performance.”) see also Jennings, 625 S.W.3d at 867 (“If a defendant repudiates a
contract, a plaintiff may be excused from tendering performance before filing suit.”).
Here, Plaintiff has met these requirements (See Dkt. #23 at p. 3 (“Linda Young was ready,
able, and willing to perform every obligation required of her under both the Rule 11 Agreement
and the FSA proposed.”)). Indeed, Defendant does not dispute this—he makes no argument
concerning whether Plaintiff has satisfied these requirements. Instead, Plaintiff and Defendant
dispute the logistics of the specific performance order and its effect on the underlying probate
matter in the Denton County Probate Court. However, the Court finds Defendant’s arguments on
whether the Court can order specific performance to be unpersuasive. To be sure, by ordering
specific performance, the Court is not interfering in probate matters. It is simply enforcing the
parties’ Rule 11 Agreement by providing a remedy to Plaintiff on her breach of contract claim.
This Court has the power to do this solely because the parties have sought the Court’s aid to resolve
the breach of contract dispute between the parties. Indeed, a “court has no power to decree specific
performance in any manner except in keeping with the terms of the agreement made by the
parties.” Hubler v. Oshman, 700 S.W.2d 694, 699 (Tex. App.–Corpus Christi 1985, no writ).
Consequently, because Plaintiff has elected specific performance as her remedy, the Court
orders that the parties specifically perform the terms of the Rule 11 Agreement. Though Plaintiff
only requests an order of specific performance concerning Defendant’s obligations, the Court finds
that this would be improper. See Woody, 2016 WL 3677241, at *3 (“[A] court’s order of specific
performance of a contract must compel performance by both parties, rather than ordering only one
party to specifically perform.”) (collecting cases).
Accordingly, the Court finds that Defendant shall:
a. Stipulate to the probate court that Plaintiff may be appointed the independent
administrator and to not oppose any bond amount suggested, including no bond;
b. Execute a global release of Plaintiff;
c. Stipulate to the probate court that Defendant will make no claim to any property
of the estate except for the property described in Exhibit A of the Rule 11
Agreement, the Camaro, and $5,000.00;
d. Relinquish any claim to the real property located at 11122 Sugar Mill Lane,
Frisco, Texas and stipulate the home will be awarded to Plaintiff in its entirety;
e. Accept the items listed on Exhibit A to the Rule 11 Agreement dated October
27, 2020 at 11122 Sugar Mill Lane, Frisco Texas 75033; and
f. Accept delivery and title of the 1979 Chevrolet Camero at 11122 Sugar Mill
Lane, Frisco Texas 75033.
Additionally, Plaintiff shall:
a. Pay $5,000.00 to Defendant;
b. Deliver the property described in Exhibit A of the Rule 11 Agreement and the Camaro
to 11122 Sugar Mill Lane, Frisco, Texas 75033 and subsequently transfer title to the
c. Execute a global release of Defendant.
With this issue resolved, the Court turns to Plaintiff’s request for additional damages.
Second, Plaintiff seeks $133,410.20 in damages for “the additional cost of preserving and
maintaining real estate property caused by the delay in probating the estate due to the Ershicks not
consenting to her appointment” (Dkt. #23 at p. 9). In support of her request for damages, Plaintiff
submits an affidavit from herself and a spreadsheet detailing the costs of preserving the estate (Dkt.
#23 at p. 9). In response, Defendant contends that “Plaintiff makes no effort to prove that her
monetary damages resulted from Defendant’s alleged breach” (Dkt. #30 at p. 17). Indeed,
according to Defendant, Plaintiff’s request for the additional costs “ignores the fact that the same
costs would have been incurred had there not been a repudiation of the Rule 11 Agreement” (Dkt.
#30 at p. 17) (emphasis in original). To be sure, according to Defendant, because “Plaintiff asks
for specific performance which would clear 100% of the title to the house . . . if Plaintiff prevails,
she would still incur the same costs to pay the lien on the house and expenses of maintenance”
(Dkt. #30 at p. 17).
The general rule is that damages constitute an alternative remedy available only when
specific performance either is not sought or is not available. Foust v. Hanson, 612 S.W.2d 251,
253 (Tex. Civ. App.—Beaumont 1981, no writ); see Heritage Housing Corp. v. Ferguson, 674
S.W.2d 363, 365 (Tex. App.—Dallas 1984, writ ref’d n.r.e.).
However, in appropriate
circumstances, the court may order, in addition to specific performance, payment of expenses
incurred by plaintiffs as a result of a defendant’s late performance. Heritage Housing Corp., 674
S.W.2d at 365–66; see also Paciwest, Inc. v. Warner Alan Props., LLC, 266 S.W.3d 559, 575 (Tex.
App.—Fort Worth 2008, pet. denied); see also Davis v. Luby, No. 04-09-00662-CV, 2010 WL
3160000, at *3 (Tex. App.—San Antonio Aug. 11, 2010, no pet.) (“[T]he relief associated with
specific performance may include monetary compensation in narrow circumstances—when it is
deemed necessary to place the parties in the same position as if the contract had been performed
This compensation is not considered breach of contract damages, but rather “equalizes any
losses occasioned by the delay by offsetting them with money payments.” Heritage Housing
Corp., 674 S.W.2d at 366. The rationale for the compensation is that the contract is being enforced
retrospectively and the equities adjusted accordingly. Goldman v. Olmstead, 414 S.W.3d 346, 362
(Tex. App.—Dallas 2013, pet. denied). The trial court, in order to relate the performance back to
the contract date, may equalize “any losses occasioned by the delay by offsetting them with money
Here, Plaintiff argues that she has incurred $133,410.20 in additional costs of preserving
and maintaining estate property as a result of Defendant’s delay in performing his obligations
under the contract (Dkt. #23 at p. 9). In response, Defendant asserts that Plaintiff would have
incurred at least some of the same costs of maintaining the estate had there not been a breach of
the Rule 11 Agreement. Thus, the Court finds there is a factual dispute as to the amount of the
damages Plaintiff has incurred as a result of Defendant’s delay in performing in his obligations
under the Rule 11 Agreement. See Paciwest, 266 S.W.3d at 575 (finding trial court erred by
determining that that appellees were precluded from presenting evidence at trial as to the damages
they incurred as a result of other party’s delay in performing its obligations under the contract);
see also TLC Hosp., LLC v. Pillar Income Asset Mgmt., Inc., 570 S.W.3d 749, 773 (Tex. App.—
Tyler 2018, pet. denied) (affirming trial court’s award of delay damages). Stated differently,
Plaintiff fails to establish as a matter of law that she is entitled to $133,410.20, the damages amount
set forth in her motion, “as neither [Plaintiff’s affidavit] nor the [spreadsheet]  adequately explain
the damages calculation or the various monetary amounts included therein.” NB Gathering IX Pref,
L.L.C v. Nelson, No. 3:20-CV-3491-K, 2022 WL 347610, at *3 (N.D. Tex. Feb. 4, 2022).
Lastly, Plaintiff seeks an award of $29,706.44 for additional attorney’s fees that Plaintiff
has incurred because of Defendant’s breach of the contract (Dkt. #23 at p. 9). In support of her
request, Plaintiff submits an affidavit of David Lowrance detailing the additional attorney’s fees
(Dkt. #23 at p. 9). In response, Defendant asserts that “Plaintiff is caught by her own argument,
i.e. that the ‘Rule 11 Agreement’ is a contract” (Dkt. #34 at p. 8). According to Defendant, “[i]f
so, then paragraph 6 [of the Rule 11 Agreement] is a contract that each party must pay her/his
attorney fees” (Dkt. #34 at p. 8).
Here, as an initial matter, the Court finds Defendant’s argument unpersuasive. Section six
of the Rule 11 Agreement states: “Each party shall pay to [sic] their own attorney’s fees and Linda
Young shall pay any ad litem fees” (Dkt. #29, Exhibit 12). Clearly, contrary to Defendant’s
argument, the parties’ agreement on this provision pertains to attorney’s fees relating to the
settlement of the original, underlying claims—not to attorney’s fees incurred in enforcing the
settlement agreement. Herring, 2011 WL 2739517, at *6. Indeed, “[n]othing in the Rule 11
Settlement Agreement indicate[s] an intent of the parties to foreclose the right to seek attorney's
fees in future litigation seeking to enforce the terms of the settlement.” Innovative Vision Sols.,
LLC v. Kempner, No. 01-20-00195-CV, 2022 WL 868130, at *14 (Tex. App.—Houston [1st Dist.]
March 24, 2022, no pet.). Thus, the Rule 11 Agreement does not bar Plaintiff from recovering her
Moreover, under the Texas Civil Practice and Remedies Code, a person may recover
reasonable attorney’s fees, in addition to the amount of a valid claim and costs, if the claim is “for
an oral or written contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8)(b)(8). Under
§ 38.001(8), a “valid claim” is not limited to an action seeking monetary damages and may include
an action seeking specific performance of the underlying contract. See Jarvis v. Peltier, 400
S.W.3d 644, 655 (Tex. App.—Tyler 2013, pet. denied); see also Woody, 2013 WL 5744359 at *6
(Tex. App.—Amarillo Oct. 18, 2013, pet. denied) (mem. op.) (concluding that a judgment
awarding specific performance on a breach of contract claim is a valid claim under § 38.001(8));
see also Henry v. BG of Dallas Corp., No. 3:13-CV-2060-BF, 2014 WL 10919570, at *2 (N.D.
Tex. Oct. 8, 2014) (awarding attorneys’ fees in addition to granting a motion for enforcement of
Thus, by obtaining specific performance to enforce the Rule 11
Agreement, Plaintiff is entitled to attorney’s fees under § 38.001.
Further, Plaintiff has satisfied the remaining requirements under § 38.002. Under § 38.002,
to recover attorney’s fees, (1) the claimant must be represented by an attorney, (2) the claimant
must present the claim to the opposing party, and (3) payment must not have been tendered before
30 days have elapsed after the claim is presented. TEX. CIV. PRAC. & REM.CODE § 38.002. Here,
Plaintiff is represented by an attorney. Plaintiff presented her claim to the opposing party, and
payment has not been tendered (Dkt. #23 at p. 3). Thus, an award of attorney’s fees is appropriate.
Nonetheless, having reviewed the briefing regarding attorney’s fees, the Court finds that
Plaintiff’s arguments as to the amount of fees that should be awarded are best saved for a Rule 54
motion for attorney’s fees. Accordingly, the Court will not address the amount of attorney’s fees
at this time.
It is therefore ORDERED that that Plaintiff’s Motion for Summary Judgment (Dkt. #23)
is hereby GRANTED in part, and Defendant James Ershick’s Motion for Summary Judgment
(Dkt. #29) is hereby DENIED. The damages issue remains to be determined.
IT IS SO ORDERED.
SIGNED this 29th day of July, 2022.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?