Sherman Moore, Individually and D/B/A S & S Security Inc. and George Adams v. Patriot Security Inc. ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00182-CV
____________________
SHERMAN MOORE, INDIVIDUALLY AND D/B/A
S&S SECURITY INC. AND GEORGE ADAMS, Appellants
V.
PATRIOT SECURITY INC., Appellee
_______________________________________________________________________
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-191,488
_______________________________________________________________________
MEMORANDUM OPINION
Appellants Sherman Moore (“Moore”), S&S Security Inc. (“S&S”), and
George Adams (“Adams”) filed this appeal complaining of a summary judgment
rendered in favor of Appellee Patriot Security Inc. (“Patriot” or “Appellee”). We
affirm.
1
Background
The underlying lawsuit was filed in 2011 by Patriot against Moore, S&S, and
Adams (collectively “Defendants”). Patriot alleged claims for tortious interference
with contract and misappropriation of trade secrets. A jury trial commenced on
December 8, 2015. After testimony by Adams, counsel for Patriot advised the court
as follows:
The parties now announce that we’ve settled this case, the
Patriot, Inc.; Cause No. A-191,488 against S & S Investigation and
Security, Inc., and Sherman Moore individually, and George Adams.
I will try to recite it as best I remember, and these two able
lawyers will jump in when my memory fails me. It will -- that
settlement will include $100,000, 50,000 of which is due this Friday,
. . . [t]he 11th[.]
....
And, then, another $50,000 will be paid 60 days from today’s
date, which will put it -- pick a date. . . . February 15th -- . . . [T]he
money will be delivered to my office. That will be made payable to
Patriot Security, Inc.
Also, in addition to the monetary payment, the defendants have
agreed to enter into a noncompete, confidentiality agreement,
nonsolicitation of employees; but the noncompete applies to Jefferson
and Orange County.
....
They have -- whatever that number is, they’ve agreed not to
solicit, nor accept, or advertise for security business, which is the . . .
[a]rmed business [for] [t]hirty-six months[.]
....
2
There will be a confidentiality provision placed in that document.
There will be a liquidated damage provision added, for $150,000, that
-- if there is a breach of the agreement.
Counsel for Moore and S&S advised the court that
Defendant S & S Investigations and Security has agreed to
provide, through their accounting firm or accountant, the financial
documents or records that prove that, over this 36-month period, that
there has been no new accumulation of Jefferson County or Orange
County businesses.
After some discussion regarding businesses with offices or operations in multiple
counties, Mr. Moore stated he would make a list of “11 to 13 clients” in Jefferson
and Orange Counties to which the noncompete agreement would apply and told the
court “we’re not gonna put labor in Orange County or Jefferson County.” The court
stated “I accept the tendered offer and I’ll await your order and it will conform with
what you said and we’ll have the record and, if it conforms, I’ll sign it.” The
proceedings then concluded.
At some point following the trial, Moore obtained new counsel, and on
December 14, 2015, Moore’s new attorney filed a Motion for Mistrial and Notice of
Rescission. In the motion for mistrial and notice of rescission, Moore argued that the
attorneys had an exchange that was “more of a discussion with the court as opposed
to any fashion of agreement.” In the notice of rescission, Moore alleged that “there
is not now nor has there ever been a full and final agreement between all the parties
3
disposing of any and all issues” and due to “missing terms[]” and “missing
resolutions for pending factual disputes amongst the litigants[,]” Moore stated that
he was rescinding any purported agreements or obligations imposed in the course of
the judicial proceedings.
On December 18, 2015, Patriot filed a Fifth Amended Original Petition. The
amended petition alleged in part as follows:
[] On Friday, December 11, 2015, before 9:28 a.m., Defendants
requested that Plaintiff allow Defendants to wire TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($25,000.00) to the trust
(IOLTA) account of [the] Bernsen Law Firm before noon of the same
day and to wire the additional TWENTY-FIVE THOUSAND AND
NO/100 DOLLARS ($25,000.00) to the Bernsen Law Firm trust
account on Tuesday, December 15, 2015. Plaintiff agreed to
Defendants[’] request and at 9:20 a.m. sent wiring instructions to
Bernsen Law Firm’s IOLTA account.
[] No monies have been received to date from Defendants.
The amended petition also alleged that, despite the fact that Defendants had agreed
to provide a client list of “11 to 13 clients” in Jefferson and Orange Counties, the
Defendants actually provided a “purported list of 39+ clients” in Jefferson and
Orange Counties. The amended petition stated a claim for breach of contract or, in
the alternative, specific performance of the contract, and sought damages of
$250,000 plus attorney fees and costs.
On February 2, 2016, the court held a hearing on Moore’s motion for mistrial.
Counsel for Moore argued that the discussion on the record on December 8, 2015,
4
did not reflect an agreement as to who among the Defendants was to make a
payment. According to Moore’s counsel, there was no agreement, no entry of
judgment, and “basically [it] is our right to rescind or back out of any type of an
agreement until there is, in fact, a final judgment or rendition from the Court.”
Counsel for Patriot explained that Patriot had relied upon the representations of
Defendants and their previous counsel to settle the case and that the parties had
arrived at an agreement. The court denied the motion for mistrial.
On March 14, 2016, Patriot filed a traditional motion for summary judgment
on its claim for breach of contract, attaching affidavits, an excerpt of proceedings,
and various other exhibits. According to the motion, the parties had made a
settlement agreement whereby, in exchange for Patriot dismissing the jury and
eventually releasing Defendants from the lawsuit, Defendants would pay Patriot
$100,000 in cash and agreed to a three-year non-compete provision. According to
the motion for summary judgment, the Defendants also agreed on the record to
provide a list of “11 to 13” clients that Defendants would keep and that would be
exempt from the noncompetition agreement, and then instead sent Patriot a list of
thirty-nine clients, some of whom Patriot alleged were already clients of Patriot.
Patriot summarized its arguments as follows:
In short, Defendants made Plaintiff an offer which was promptly
accepted in exchange for the dismissal of the jury and eventual
5
dismissal of the suit upon Defendants performance of the agreement.
Defendants quickly sough[t] to alter the agreement with Plaintiff’s
approval, then eventually expanded the scope of the non-compete
without Plaintiff’s approval and in bad faith. Moreover, Defendants
now refuse to pay the agreed sum of money all together. Finally,
Defendants filed an official notice of an intent to continue to breach the
agreement, as such, Defendants are liable to Plaintiff for the amount of
the original settlement amount, the liquidated damages, attorney’s fees,
and strict enforcement of the non-compete agreement.
The motion alleged that Defendants breached the settlement agreement in two
respects: they produced a list of clients far in excess of the agreed-upon eleven-to-
thirteen number, and they did not make the agreed-upon payments. Patriot further
argued in the motion
[] Per the Settlement Agreement, Defendants [are] owe[d]
$150,000 in liquidated damages due to their breach. Additionally,
Defendants still owe Plaintiff the initial $100,000 from the settlement
agreement as well. Furthermore, Plaintiff has incurred additional
attorney fees to enforce the terms of the Settlement Agreement. These
costs and damages exist solely because of Defendants’ breach.
....
[] Defendants have breached the settlement agreement in this
case and are now liable for $250,000 in damages and attorney fees of
$54,217.50 and expenses of $2,946.70, prejudgment interest from the
date of the Breach of Contract (Dec. 11, 2015), costs of court and post
judgment interest.
On March 23, 2016, Adams filed a response to the motion for summary
judgment, asserting that he “was never a party to any contractual agreement whereby
he promised to pay any sum of money to the Plaintiff[]” and that the recitation before
6
the trial court imposed no specific action or inaction on Adams. Adams’s response
was supported by an excerpt of the transcript of the December 8, 2015 proceeding
and Adams’s affidavit.
On April 2, 2016, Moore and S&S filed a response to the motion for summary
judgment. Therein, Moore and S&S cited to no legal authority, but argued that
numerous fact issues existed, including the existence and terms of the alleged
settlement agreement as well as whether the court had accepted and implemented
the agreement “proposed” in court on December 8, 2015. Moore and S&S also
argued that no consideration supported the alleged agreement; that Patriot was
attempting to obtain a double recovery by pursuing a claim for breach of the alleged
settlement agreement as well as the original lawsuit; that liquidated damages were
available only for a breach of the noncompete or confidentiality provisions and that
a liquidated damages award would preclude an award of attorney’s fees; that the
alleged agreement lacked sufficient specificity and was vague and ambiguous; that
an order dismissing a prior lawsuit functions as res judicata as to Patriot’s current
claims; and that there had been inadequate time for discovery. In support of their
response, Moore and S&S attached affidavits of Sherman Moore and Sheila Moore,
transcripts of the December 8, 2015 proceeding, notices of depositions and emails
pertaining thereto, a 2011 order dismissing with prejudice as to a lawsuit between
7
Patriot and Adams, and an order quashing depositions. The affidavit by Sherman
Moore alleges, in relevant part, that the settlement agreement alleged by Patriot was
vague and incomplete.
On April 12, 2016, the court held a hearing on Patriot’s motion for summary
judgment. Patriot argued at the hearing that the parties had a binding settlement
agreement announced in open court and during the trial, that the Defendants failed
to make the scheduled payments, and submitted a bad faith list of clients that far
exceeded the parties’ agreement, and that Patriot was entitled to $100,000 plus
$150,000 for liquidated damages for breach of the agreement, and attorney’s fees.
Moore and S&S argued at the hearing that there had not yet been an
opportunity to conduct discovery on the Fifth Amended Petition, but did not make a
request for a continuance. Moore and S&S also argued that there had been no
“meeting of the minds” on a settlement agreement and that Patriot had not
established all elements for an enforceable agreement, specifically which party was
to pay and the companies to which the non-compete provision would apply. Counsel
for Moore and S&S also argued that if Patriot was entitled to anything, it should be
limited to recovery of $150,000 in liquidated damages and it should not also be
allowed to recover attorney’s fees and $100,000.
8
The trial court stated “it was clear to the Court that [Mr. Moore] assumed the
mantle of responsibility for paying this[]” and
. . . I know there was an agreement. I know there was a meeting
of the minds. I was here. I watched [Mr. Moore] respond to this and
make his own assertions of what he thought the agreement was between
him and [a representative of Patriot]. And, so, there is a meeting of the
minds.
....
. . . I’m going to grant the motion for summary judgment. I think
they’re liable for $100,000 in the original contract amount; $150,000
liquidated damages; $54,217.50 for attorneys’ fees; and expenses of
$2,946.70.
On May 11, 2016, the court entered a Final Summary Judgment in favor of Patriot,
awarding actual damages of $250,000, and $57,164.20 in attorney’s fees and
expenses, as well as interest and costs. The judgment also ordered that Patriot’s
recovery be from Moore, S&S, and Adams “individually, jointly and severally[.]”
The judgment did not grant Patriot’s request for injunctive relief to enforce the
noncompete and expressly “finally dispose[d] of all claims and all parties[.]”
On May 25, 2016, Moore and S&S filed a motion for new trial or to reform
the judgment, arguing that there are “numerous contested fact issues[,]” the
judgment failed to limit damages to liquidated damages, and the judgment lacked
evidentiary support. The motion included no exhibits, affidavits, or other
9
attachments. Also on or about May 25, 2016, Moore and S&S filed their notice of
appeal.
On May 31, 2016, Adams filed a motion for new trial that argued Patriot’s
summary judgment evidence included “no proposal to include George Adams as
being jointly responsible for $250,000 in damages.” Adams’s motion attached an
excerpt of the trial proceedings concerning settlement. Also on May 31, 2016,
Adams filed his notice of appeal. On June 14, 2016, the court held a hearing on the
motions for new trial, and on July 14, 2016, the court entered a Reformed Final
Judgment, reforming the original summary judgment so that Patriot is to recover
individually, jointly, and severally from Moore and S&S and orders that Patriot “take
nothing from Defendant George Adams.”
On July 20, 2016, Moore and S&S filed a Request for Findings of Fact and
Conclusions of Law. Patriot filed a response on August 5, 2016. The trial court
denied Moore and S&S’s request on August 9, 2016.
On August 5, 2016, Moore and S&S filed another motion for new trial.
Therein, Moore and S&S challenged the sufficiency of the evidence for summary
judgment, alleged the evidence was disputed and that fact issues existed, argued that
no evidence supported attorney’s fees, and challenged the award of both attorney’s
10
fees and liquidated damages. On August 5, 2016, Moore and S&S filed an amended
notice of appeal.
On August 11, 2016, Patriot filed a Notice of Cross-Appeal claiming the
Reformed Final Judgment is in error for omitting recovery from George Adams.
Thereafter, on February 13, 2017, Patriot filed an unopposed motion to dismiss its
cross-appeal.
The final judgment, as reformed, was a “take nothing” judgment as to
defendant George Adams, which renders George Adams’s appeal moot. Therefore,
we dismiss George Adams’s appeal for lack of jurisdiction. See Valley Baptist Med.
Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (explaining that a mooted appeal
presents no live controversy, such that a court has no jurisdiction to render an opinion
thereon). We also grant Appellee’s unopposed motion to dismiss its cross-appeal.
Therefore, we confine our analysis to the issues raised by Moore and S&S on appeal.
See Tex. R. App. P. 47.1
Issues
In three issues, appellants Moore and S&S argue that the trial court erred in
granting summary judgment. In their first issue, Moore and S&S argue that the
Recitation failed to include all the necessary elements of an agreement to support
the judgment. In a second issue, they argue that there were disputed fact issues that
11
precluded summary judgment. And in a third issue, Moore and S&S argue that the
trial court’s judgment was in error because the Recitation provides no basis for the
award of liquidated damages. In Appellants’ Reply Brief, Moore and S&S re-urged
the arguments in their opening brief.
Standard of Review
Summary Judgment
We conduct a de novo review of an order granting a traditional motion for
summary judgment. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003). In our review, we deem as true all evidence that is favorable to the
nonmovant, indulge every reasonable inference to be drawn from the evidence, and
resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). Where, as here, a trial court does not specify the
grounds on which it granted the motion for summary judgment, we must affirm if
any of the grounds asserted in the motion are meritorious. Merriman v. XTO Energy,
Inc., 407 S.W.3d 244, 248 (Tex. 2013).
To be entitled to traditional summary judgment, a movant must establish that
there is no genuine issue of material fact and that the movant is entitled to judgment
as a matter of law on the issues set forth in the motion. Tex. R. Civ. P. 166a(c); Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
12
On a traditional motion for summary judgment, a nonmovant need not file an answer
or response to a motion for summary judgment in order to challenge the sufficiency
of the evidence relied on by the movant. See Fantastic Homes, Inc. v. Combs, 596
S.W.2d 502, 502 (Tex. 1979) (citing City of Houston v. Clear Creek Basin Authority,
589 S.W.2d 671, 678 (Tex. 1979)). We may consider only the grounds expressly set
forth in the motion for summary judgment and the issues of fact expressly set forth
in the response thereto. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,
341-43 (Tex. 1993). However, the nonmovant’s failure to respond cannot supply by
default the summary judgment proof necessary to establish the movant’s entitlement
to judgment. Id. at 342.
Contracts
Contract law governs settlement agreements made in open court pursuant to
Rule 11. See Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 744 (Tex.
App.—Houston [1st Dist.] 2014, no pet.) (citing Padilla v. LaFrance, 907 S.W.2d
454, 460 (Tex. 1995)). Whether an agreement is legally enforceable is a question of
law. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.—
Houston [14th Dist.] 2005, no pet.); Gaede v. SK Investments, Inc., 38 S.W.3d 753,
757-58 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“Whether an
agreement constitutes a valid contract is generally a legal determination for the
13
court. . . . However, whether parties intended to make a contractual agreement is
usually a fact issue for the jury.”). The issue of whether a Rule 11 settlement
agreement fails for lack of essential terms is “a question of law to be determined by
the court, unless there is ambiguity or unless surrounding facts and circumstances
demonstrate a factual issue as to an agreement.” Ronin v. Lerner, 7 S.W.3d 883, 888
(Tex. App.—Houston [1st Dist.] 1999, no pet.).
Applicable Law
To prevail on a breach of contract claim, a claimant must prove (1) the
existence of a valid contract, (2) the claimant’s performance or tender of
performance, (3) breach by the other party to the contract, and (4) the claimant’s
damages resulting from the breach. See Bank of Tex. v. VR Elec., Inc., 276 S.W.3d
671, 677 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); Sullivan v. Smith, 110
S.W.3d 545, 546 (Tex. App.—Beaumont 2003, no pet.). “A breach of contract
occurs when a party fails to perform an act that it has expressly or impliedly
promised to perform.” Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d
760, 769-70 (Tex. App.—Dallas 2005, pet. denied). Attorney’s fees may be
recoverable, in addition to the amount of a valid claim and costs, by a party that
prevails on a claim for breach of contract. See Tex. Civ. Prac. & Rem. Code § 38.001
(West 2015).
14
A Rule 11 agreement made in open court and entered of record is enforceable
provided the contract terms that are “material and essential” to the parties’ agreement
are certain. See Tex. R. Civ. P. 11; Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237
(Tex. 2016) (quoting Radford v. McNeny, 104 S.W.2d 472, 475 (Tex. 1937)); see
also T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)
(“The material terms of the contract must be agreed upon before a court can enforce
the contract.”). Material and essential terms are those that parties would reasonably
regard as “vitally important ingredient[s]” of their bargain. See Fischer, 479 S.W.3d
at 237 (citing Neeley v. Bankers Tr. Co., 757 F.2d 621, 628 (5th Cir. 1985); Stergiou,
438 S.W.3d at 744; Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526, 531
(Tex. App.—Houston [1st Dist.] 2007, no pet.)). A settlement agreement may still
be enforceable even if some of the terms remain to be negotiated. See Stergiou, 438
S.W.3d at 747-48, 752; W. Beach Marina Ltd. v. Erdeljac, 94 S.W.3d 248, 257 (Tex.
App.—Austin 2002, no pet.) (citing Scott v. Ingle Bros. Pac., Inc., 489 S.W.2d 554,
555 (Tex. 1972) (“[P]arties may agree upon some of the terms of a contract, and
understand them to be an agreement, and yet leave other portions of an agreement
to be made later.”); Cantu v. Moore, 90 S.W.3d 821, 825 (Tex. App.—San Antonio
2002, pet. denied).
15
Analysis
We first examine whether the movant in the motion for summary judgment—
Patriot—established that it was entitled to judgment as a matter of law on the issues
set forth in the motion. See Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.
Patriot’s motion for summary judgment alleged that during trial Moore and S&S
reached a settlement agreement to pay Patriot and end the litigation. According to
Patriot, under the terms of the agreement as announced on the record at trial, Moore
and S&S agreed to pay Patriot $50,000 on Friday, December 11, 2015, and $50,000
on February 15, 2016, as well as adhere to a three-year non-compete agreement.
Patriot argued that the trial court and the parties accepted the settlement and the
proceedings concluded and the jury was dismissed. Patriot further argued that neither
Moore nor S&S made the scheduled payments to Patriot. Patriot supported its
motion for summary judgment with exhibits and affidavits, including portions of the
transcript from the December 8, 2015 trial proceedings. Specifically, one section of
the hearing transcript included the announcement by the parties that “[t]here will be
a liquidated damage provision added, for $150,000, that -- if there is a breach of the
agreement.”
On the record before us, we conclude that Patriot established, through its
motion and summary judgment evidence, that an enforceable settlement agreement
16
existed and that Patriot was entitled to judgment as a matter of law on its claim that
Moore and S&S breached that agreement based upon the failure of the Defendants
to make the scheduled payments. See Bank of Tex., 276 S.W.3d at 677; Case Corp.,
184 S.W.3d at 769-70. Accordingly, the trial court did not err in concluding that
Patriot met its initial burden of proof to establish a breach of the settlement
agreement. See Fielding, 289 S.W.3d at 848.
We note that although Moore and S&S’s response to the motion for summary
judgment made arguments about the lack of a “meeting of the minds” or allegations
that certain damages are not recoverable, it included no citations to any legal
authority. In addition, Moore and S&S’s brief on appeal includes few citations to
legal authority, and it does not cite to the record for the basis of its arguments or
establish where such arguments were preserved in a written response to the motion
for summary judgment or exhibits thereto. See Tex. R. App. P. 38.1(i) (an appellate
brief must cite to relevant legal authority and to the record). Assuming without
deciding that Moore and S&S have sufficiently preserved error for appeal,1 we
1
To preserve error for appellate review requires the complaining party to
show that it presented its complaint to the trial court in a timely request, objection,
or motion and that the trial court ruled on the request. See Tex. R. App. P. 33.1;
Burbage v. Burbage, 447 S.W.3d 249, 257 (Tex. 2014). A party may nevertheless
raise an argument regarding the legal or factual sufficiency of the evidence in a
nonjury case for the first time on appeal in the complaining party’s brief. See Tex.
R. App. P. 33.1(d).
17
conclude that the trial court did not err in granting the summary judgment. Patriot
was entitled to summary judgment as a matter of law because Moore and S&S
breached the settlement agreement by failing to make the $100,000 payments. See
Fielding, 289 S.W.3d at 848. Moore and S&S failed to raise a material fact issue
sufficient to defeat the summary judgment. Walker v. Harris, 924 S.W.2d 375, 377
(Tex. 1996). At most, the Sherman Moore affidavit provided evidence that the
parties anticipated further discussion or negotiation on the list of clients that would
not be part of the noncompetition agreement. See Fischer, 479 S.W.3d at 243-44 (a
settlement agreement is not unenforceable because the parties anticipate future
negotiations provided the agreement contains all material terms) (citing McCalla v.
Baker’s Campground, Inc., 416 S.W.3d 416, 417 (Tex. 2013)); Stergiou, 438
S.W.3d at 744-51; Erdeljac, 94 S.W.3d at 259 (to be enforceable, an agreement must
contain sufficient terms to determine the parties’ obligations but is not required to
address all possible terms and issues). A settlement agreement, such as the one here,
is enforceable where it includes material terms, such as an agreement to pay an
amount for settlement of claims, and the agreement is made in open court and it is
18
fully supported by the reporter’s transcription.2 See Tex. R. Civ. P. 11; Padilla, 907
S.W.2d at 460-61.
As to damages, the reporter’s record of the December 8, 2015 proceeding
reflects that the parties agreed to liquidated damages of $150,000 if the “agreement”
was breached.
Patriot’s motion for summary judgment argued that it had incurred attorney’s
fees and costs in the amount of $57,164.20 as a result of the Defendants’ breach of
the settlement agreement. The motion was supported by an affidavit of its attorney
that asserted a claim for attorney’s fees under section 38.001(8) of the Texas Civil
Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8)
(West 2015) (a party that prevails on an underlying claim for breach of contract may
recover attorney’s fees); Intercontinental Grp. P’ship v. KB Home Lone Star L.P.,
2
Moore and S&S argued without citation to any authority that any settlement
agreement made in court on December 8, 2015, was not enforceable because it was
a “proposed agreement [that] was never accepted and implemented by the Court.”
We note that under Rule 11, a settlement agreement made by the parties in open
court need not be otherwise reduced to writing or entered into a judgment to be
enforceable. See Tex. R. Civ. P. 11; McLendon v. McLendon, 847 S.W.2d 601, 606-
07 (Tex. App.—Dallas 1992, writ denied) (an oral agreement that is read into the
record in open court, supported by the court reporter’s transcription and the parties’
sworn testimony, satisfies Rule 11); see also Ronin v. Lerner, 7 S.W.3d 883, 886-88
(Tex. App.—Houston [1st Dist.] 1999, no pet.) (finding a settlement agreement
made in open court was enforceable under Rule 11 where supported by the court
reporter’s transcripts).
19
295 S.W.3d 650, 653 (Tex. 2009). Patriot also submitted a billing statement of its
attorney for time spent and costs incurred from December 13, 2015 through March
11, 2016, totaling $57,164.20. Moore and S&S submitted no contrary evidence to
create a fact issue on the matter of attorney’s fees and costs, nor did they challenge
the reasonableness of the fees.
Based upon the appellate record now before us, we cannot say the trial court
erred in concluding that there were no material issues of fact and that Patriot was
entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c);
Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797-98 (Tex. 2008). We
overrule all issues presented by Moore and S&S.
Having overruled all of Moore and S&S’s issues, and having granted
Appellee’s unopposed motion to dismiss its cross-appeal, we affirm the trial court’s
Reformed Final Judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on January 4, 2018
Opinion Delivered March 8, 2018
Before Kreger, Horton, and Johnson, JJ.
20