Tomorrow Telecom, Inc. and Tomorrow West, LLC v. Alberto Silvas ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-20-00100-CV
TOMORROW TELECOM, INC. AND TOMORROW WEST, LLC, APPELLANTS
V.
ALBERTO SILVAS, APPELLEE
On Appeal from the 99th District Court
Lubbock County, Texas
Trial Court No. 2019-534,069, Honorable William C. Sowder, Presiding
June 16, 2021
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
This appeal results from a judgment rendered on a motion to enforce a Rule 11
agreement between the parties to this suit, appellants Tomorrow Telecom, Inc. (Telecom)
and Tomorrow West, LLC (West), and appellee Alberto Silvas. By their appeal, Telecom
and West challenge the finality of the trial court’s judgment and argue that the trial court
erred in the enforcement procedure utilized, in granting the partial summary judgment,
and in awarding attorney’s fees to Silvas. We reverse the trial court’s judgment.
Background
At the outset, we note that the facts in this case and similar legal issues between
parties represented by the same counsel were the subject of a recent appeal in Tomorrow
Telecom, Inc. v. Johnson, No. 07-19-00427-CV, 2021 Tex. App. LEXIS 1890 (Tex. App.—
Amarillo Mar. 11, 2021, no pet.) (mem. op.).
Silvas sued Telecom and West for unlawful employment practices under the Texas
Labor Code, claiming violations on the basis of sex. The parties filed a Rule 11 agreement
and agreed to settle “all claims between [Silvas] and [Telecom and West]” and to
“suspend all current settings in this cause for [d]epositions, [h]earings, or the like.” The
Rule 11 agreement called for a payment to Silvas no later than April 30, 2019, a nonsuit
with prejudice upon payment, and completion of a “separate settlement agreement
intended to be global in nature for the mutual purpose of settling all claims between the
[p]arties, whether pled or unpled.”
Disputes arose between the parties surrounding the wording of the separate
agreement and Silvas filed a motion to enforce the Rule 11 agreement, a motion for
sanctions, and a request for attorney’s fees. Silvas then filed for partial summary
judgment on his enforcement, sanctions, and attorney’s fees motions. Telecom and West
filed a notice of revocation and withdrawal of consent to the Rule 11 agreement and
responses to the motion to enforce and the motion for partial summary judgment.
The trial court signed an order granting Silvas’s motion for partial summary
judgment, finding the Rule 11 agreement was valid and enforceable and that Telecom
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breached the terms of the agreement. The court further ordered that Silvas’s motion for
sanctions and attorney’s fees would be determined at a subsequent hearing.
The trial court held a Rule 166 conference and ordered the parties to mediation.
The parties were to “[resolve] and [identify] the terms of the global release as required by
the Rule 11, and the amount of attorney’s fees, if any, to be paid by [Telecom and West.]”
The parties reached a partial agreement and signed a mutual settlement and release
agreement, but that agreement is not a part of the record.
After mediation, Silvas filed a motion to enforce the mutual settlement and release
agreement alleging Telecom and West failed to pay the settlement funds timely, and
subsequently filed a motion to supplement the request for attorney’s fees. After hearing,
the trial court granted Silvas’s request for attorney’s fees and conditional appellate
attorney’s fees. The trial court’s judgment incorporated the findings and orders contained
in the motion for partial summary judgment and assessed attorney’s fees.
Telecom and West timely appealed the trial court’s judgment. By their appeal,
Telecom and West present four issues. In their first issue, Telecom and West challenge
the finality of the trial court’s judgment. In their second issue, they assert that the trial
court erred in allowing Silvas to proceed on a motion to enforce the Rule 11 agreement
instead of amending his pleadings to assert a breach of contract claim. In their third issue,
Telecom and West argue that the trial court erred in granting the motion for partial
summary judgment. In the fourth issue, Telecom asserts the trial court erred in granting
Silvas’s request for attorney’s fees.
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Discussion and Law
Finality of Judgment and Enforcement Procedure
Issues one and two were discussed at length in our prior opinion and we refer the
parties to that opinion. See Johnson, 2021 Tex. App. LEXIS 1890, at *3-12.
Partial Summary Judgment
In their third issue, Telecom and West challenge the trial court’s grant of a partial
summary judgment on the Rule 11 agreement.
An appellate court reviews a trial court’s decision to grant a traditional summary
judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
The party moving for a traditional summary judgment has the burden to establish there is
no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c). The movant must establish its right to summary judgment on the issues
expressly presented to the trial court by conclusively proving all elements of the movant’s
cause of action or defense as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d
217, 223 (Tex. 1999). If the movant meets his burden, then the burden shifts to the
nonmovant to raise a genuine issue of material fact precluding summary judgment. Id.In reviewing a trial court’s ruling on summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and resolve all
doubts in the nonmovant’s favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d
211, 215 (Tex. 2003).
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A Rule 11 agreement is considered contractual in nature. Coale v. Scott, 331
S.W.3d 829, 832 (Tex. App.—Amarillo 2011, no pet.). As such, a Rule 11 agreement is
interpreted in the same manner as are contracts in general. Golden Spread Elec. Coop.,
Inc. v. Denver City Energy Assocs., L.P., 269 S.W.3d 183, 190-91 (Tex. App.—Amarillo
2008, pet. denied). A movant for summary judgment on a breach of contract claim based
on a Rule 11 agreement is required to establish entitlement to judgment as a matter of
law on each element of the breach of contract claim except the amount of damages. TEX.
R. CIV. P. 166a(c); Rivera v. White, 234 S.W.3d 802, 805-07 (Tex. App.—Texarkana
2007, no pet.) (exception that plaintiff need not show entitlement to prevail on damages
applies only to amount of unliquidated damages, not to existence of damages or loss). A
breach of contract claim requires pleading and proof of (1) the existence of a valid
contract; (2) performance or tendered performance by the plaintiff; (3) breach by the
defendant; and (4) damages sustained by the plaintiff as a result of that breach.
Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019).
In their third issue, Telecom and West assert that the trial court erred in granting a
partial summary judgment. As noted above, one of the elements of a breach of contract
claim is damages. Within the damage element of Silvas’s motion for partial summary
judgment, he alleges he “lost the use, enjoyment, and benefit of the funds to be paid,” but
he offered no affidavit or other testimony to support his damage claim except for the
attorney’s fees incurred.1 Attorney’s fees incurred in a breach of contract action do not
1 The affidavit of Silvas’s attorney states, “I make this affidavit for the sole purpose of showing that
[Silvas] has incurred attorney’s fees in this case, and therefore has suffered damage, as a result of [Telecom
and West’s] breach of the Rule 11 agreement. This affidavit is not tendered to show the amount of the
attorney’s fees incurred as this amount has yet to be determined.”
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qualify as damages. Berg v. Wilson, 353 S.W.3d 166, 182 (Tex. App.—Texarkana 2011,
pet. denied). In order for Silvas to recover attorney’s fees under section 38.001 for a
breach of contract, he is required to establish that he suffered damages, independent of
attorney’s fees. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2015) (allowing
recovery of attorney’s fees in addition to amount of valid claim). Here, Silvas did not seek
damages independent of attorney’s fees and costs and none were awarded to him.
Further, Silvas did not seek the equitable remedy of specific performance. 2 Because
Silvas did not produce summary judgment evidence that he sustained damages as a
result of Telecom and West’s breach, he failed to meet his burden to establish his
entitlement to partial summary judgment on his breach of contract claim. Consequently,
we sustain Telecom and West’s third issue and reverse the trial court’s grant of partial
summary judgment.
Attorney’s Fees
In its fourth issue, Telecom3 urges that the trial court erred in its award of attorney’s
fees to Silvas. Having determined that Silvas did not meet his burden to establish that he
was entitled to partial summary judgment as a matter of law, we conclude that Silvas was
not entitled to recover attorney’s fees. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390
(Tex. 1997) (to recover attorney’s fees under section 38.001, “a party must (1) prevail on
2
A party seeking the equitable remedy of specific performance in lieu of money damages may, in
some circumstances, be excused from pleading and proving performance. For this exception to apply, a
party must additionally plead and prove that, at all relevant times, it was ready, willing, and able to perform
under the contract. Pathfinder Oil & Gas, Inc., 574 S.W.3d at 890. Here, Silvas did not request specific
performance in his motion to enforce or his motion for partial summary judgment. Consequently, he did not
plead or prove that he stood ready, willing, and able to perform under the Rule 11 agreement.
3 The trial court awarded Silvas a judgment for attorney’s fees solely against Telecom.
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a cause of action for which attorney’s fees are recoverable, and (2) recover damages.”).4
We sustain this issue and reverse the trial court’s award of attorney’s fees.
Conclusion
Having concluded that the trial court erred in granting the motion for partial
summary judgment and in awarding attorney’s fees to Silvas, we reverse and remand this
cause for further proceedings in the trial court.
Judy C. Parker
Justice
4 In his appellate brief, Silvas contends that he sought “expectation damages, meaning he sought
the benefit of the bargain that he made.” However, Silvas did not submit evidentiary proof of any damages
related to the breach of the Rule 11 agreement separate and apart from his claim for attorney’s fees.
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