in Re Jackie Lee Bibbs, Relator ( 2012 )

NO. 07-10-00398-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 1, 2012
CARBURANTE LAND MANAGEMENT, LLC, APPELLANT
v.
DILLARD E. HOPKINS, JR., MATTHEW CRUM AND
TRAVIS H. HOPKINS, APPELLEES
FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY;
NO. 153-248219-10; HONORABLE KEN CURRY, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Carburante Land Management, LLC (“CLM”), appeals an order
granting appellees, Dillard E. Hopkins, Jr. (“Eddie”), Matthew Crum, and Travis H.
Hopkins, summary judgment on the basis of a settlement agreement reached by the
parties and entered into the record on October 19, 2009. We will affirm the judgment of
the trial court.
Background
CLM is engaged in the business of acquiring minerals by purchase or lease. In
furtherance of that business, CLM hired Matthew Crum as legal counsel, and Travis
Hopkins as a land man responsible for mineral acquisitions. When each was hired, they
were required to sign consulting agreements which included provisions prohibiting them
from competing with CLM and imposing obligations upon them regarding CLM’s
confidential and proprietary information. After natural gas prices declined, CLM began
having difficulty in meeting its financial obligations, including payments owed to Matthew
Crum and Travis Hopkins under the consulting agreements.
To acquire capital to fund closing on two projects being undertaken by CLM,
Travis Hopkins approached his father, Eddie Hopkins, to negotiate a short-term loan to
CLM. The parties reached a deal. Eddie Hopkins loaned CLM $300,000 to be repaid in
12 months with 15 percent annual interest. Securing the loan, CLM pledged its interest
in Pleasant Ridge Partners, LLC.
In the summer of 2009, Matthew Crum and Travis Hopkins filed suit against CLM
seeking unpaid compensation under the consulting agreements. In a separate action,
Eddie Hopkins filed suit against CLM for foreclosure on the security for the loan on the
basis that CLM had defaulted on the loan.
On October 15, 2009, CLM filed suit against appellees. As part of this action,
CLM sought a temporary restraining order to prevent Eddie Hopkins’s foreclosure
action, and to enjoin Matthew Crum and Travis Hopkins from using or disseminating
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CLM’s confidential and proprietary information. A hearing on CLM’s application for
temporary restraining order was scheduled for October 19, 2009.
Prior to this scheduled hearing, however, the parties reached an agreement
settling all three of the pending cases. The agreement was memorialized by a letter
that was signed by counsel for all parties and admitted into evidence as an exhibit, and
additional terms of the agreement were read into the record by CLM’s counsel. After
this settlement agreement was presented to the trial court, it stated, “[t]hen the Court at
this time accepts the agreement of the parties, enters it into the records of the Court and
renders judgment accordingly. Who will be drafting the documents?”
One of the provisions of the letter memorializing the agreement provides that,
10. If this offer is accepted, I [Eddie Hopkins’s counsel] will prepare a
comprehensive Compromise and Settlement Agreement containing
customary language regarding the breadth of the releases, binding effect,
entirety clause, governing law, severability, specific performance, effective
date, time of the essence, confidentiality, no admissions, etc.
In accordance with this provision, Eddie Hopkins’s counsel prepared a draft of a
comprehensive Compromise and Settlement Agreement and forwarded it to counsel for
CLM for approval. However, CLM refused to sign this comprehensive Compromise and
Settlement Agreement. CLM’s correspondence regarding the comprehensive
agreement evinces that it was not dissatisfied with the way that the anticipated
formalities were added to the parties’ agreement, but rather that CLM wanted to
renegotiate the terms of the settlement agreement to include additional terms that were
not addressed by the settlement agreement read into the record on October 19, 2009.
Appellees refused to renegotiate the terms of the settlement agreement and, as a result,
no comprehensive Compromise and Settlement Agreement was ever executed.
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Appellees subsequently filed in the trial court a motion to enforce the settlement
agreement. By letter, the trial court stated that the settlement “agreement entered into
by the parties is simply too vague to allow the court to draft a settlement agreement for
the parties.” Rather, the trial court ordered the parties to mediation. Nothing in the
record establishes whether the parties participated in mediation.A few months later,
appellees filed a motion for summary judgment which contended that there was no
genuine issue of material fact as to the finality and enforceability of the October 19,
2009 settlement agreement. After considering appellees’ motion and summary
judgment evidence as well as CLM’s response and evidence, the trial court granted
appellees’ summary judgment motion. In a letter informing the parties of its ruling on
appellees’ motion, the trial court explained that its earlier indication that the settlement
agreement was too vague for the trial court to draft a settlement agreement for the
parties was intended only to indicate that the trial court would not impose the formalities
that the parties had agreed to include in a comprehensive Compromise and Settlement
Agreement by judgment. The trial court’s order granting summary judgment accurately
reflects the terms of the settlement agreement announced in open court on October 19,
2009. Following the trial court’s entry of summary judgment, CLM filed a motion for new
trial. The trial court denied CLM’s motion, and this appealed followed.
By five issues, CLM challenges the trial court’s entry of summary judgment. By
its first issue, CLM contends that there was no meeting of the minds on all material
terms in the October 19, 2009 settlement agreement. CLM’s second issue contends
that its counsel lacked authority to enter into the settlement agreement. By its third
issue, CLM contends that it repudiated the settlement agreement. CLM’s fourth issue
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contends that the settlement agreement is too vague to be subject to judicial
interpretation and enforcement. Finally, by its fifth issue, CLM contends that Matthew
Crum’s and Travis Hopkins’s continued use of confidential and proprietary information
constitutes a breach of the settlement agreement, and a failure of consideration.
Standard of Review
By its appeal, CLM challenges the trial court’s grant of summary judgment in
favor of appellees. In reviewing a summary judgment, the reviewing court must apply
the following, well-established standards: (1) the movant for summary judgment has the
burden of showing that there is no genuine issue of material fact, and that it is entitled to
judgment as a matter of law; (2) in deciding whether there is a disputed material fact
issue precluding summary judgment, evidence favorable to the nonmovant will be taken
as true; and (3) every reasonable inference must be indulged in favor of the non-
movant, and any doubts resolved in its favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d
420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.
1985).
To prevail on a motion for summary judgment, the movant must conclusively
establish the absence of any genuine issue of material fact and that he is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c). Once the movant has established
a right to summary judgment, the nonmovant has the burden to respond to the motion,
and present to the trial court any issues that would preclude summary judgment.
Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ
5
denied) (op. on reh’g en banc); see City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979).
Issue One – Meeting of the Minds
By its first issue, CLM contends that there was no meeting of the minds between
the parties on all material terms to be included in the October 19, 2009 settlement
agreement. Specifically, CLM challenges the breadth of the confidential information
which Matthew Crum and Travis Hopkins were required to return and cease using. In
addition, CLM contends that there was no meeting of the minds with regard to the
manner of notice of default and the duration of the opportunity to cure, the monetary
credit to be afforded CLM in the event of an automatic surrender of collateral, and the
absence of a definitive, written settlement agreement. Appellees respond contending
that all material terms were included in the settlement agreement.
For a contract to be binding, the parties to the contract must have a meeting of
the minds. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 25-26
(Tex.App.—Houston [14th Dist.] 2005, no pet.); Williford Energy Co. v. Submergible
Cable Servs., Inc., 895 S.W.2d 379, 384 (Tex.App.—Amarillo 1994, no writ). Such a
meeting of the minds must occur with respect to the subject matter of the agreement, as
well as all of the essential terms of the agreement. Bryant v. Pennington, 346 S.W.2d
367, 368 (Tex.Civ.App.—Amarillo 1961, no writ).
Likewise, a settlement agreement must contain all the essential terms of the
settlement. See Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). For a
settlement agreement to be enforceable, it must be in writing, signed, and filed with the
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papers as part of the record, or made in open court and entered of record. Id. at 459
(quoting TEX. R. CIV. P. 11). Further, the settlement agreement must be complete within
itself in every material detail so that the contract can be ascertained from the writing, or
record, without resort to oral testimony. Id. at 460.
In the present case, the settlement agreement between the parties includes a
two-page typewritten agreement, which also contains certain handwritten additions, as
well as additional provisions that were orally presented in open court and made part of
the record. See id. (settlement agreement may be comprised of more than one
document). The record makes clear that CLM’s attorney represented this agreement as
resolving the parties’ pending disputes:
Your Honor, I think you’ll be happy to know not only have we resolved I
think the issues with regard to the order, but also resolving all matters in
dispute in the underlying litigation as well as possibly resolving another
case pending in Judge Walker’s court [referring to Matthew Crum and
Travis Hopkins’s suit for unpaid compensation under their consulting
agreements].
We’ve agreed to resolve our complaints between the respective parties
pursuant to the terms and conditions set forth on Defendant’s Exhibit 1
[the two-page written agreement]. We’ll allow that document to speak for
itself.
CLM’s attorney then read certain additional terms into the record in open court.
Specifically, these additional terms required Matthew Crum and Travis Hopkins to return
a financial model developed by CLM and all title documents relating to the Walking T
unit, and to sign an affidavit stating that they have returned the financial model and title
documents and will not use or disseminate this information in the future. In addition, the
oral portion of the agreement required Matthew Crum and Travis Hopkins to withdraw
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from participation in the acquisition of any mineral assets in the Walking T, Eagleford, or
Rayburn units.
Essentially, the settlement agreement reached by the parties on October 19,
2009, will result in all parties dismissing their pending litigation; CLM will pay Matthew
Crum and Travis Hopkins $74,970 as unpaid compensation; CLM will pay Eddie
Hopkins $345,000 in repayment of the loan; in the event of a 15-day default on the loan,
the Pleasant Ridge Partners, LLC, collateral will automatically transfer to Eddie
Hopkins; and Matthew Crum and Travis Hopkins will return specified confidential
information, as identified in open court, and cease participation in certain projects, also
specifically identified in open court.
It is CLM’s contention that the settlement agreement is not enforceable because
there was no meeting of the minds in regard to certain essential terms of the
agreement. Specifically, CLM contends that there was no meeting of the minds with
regard to the breadth of the confidential information that appellees must return, the
manner of notice of loan default and the duration of the opportunity to cure, the
monetary credit to be afforded CLM in the event of an automatic surrender of collateral,
and the absence of a definitive, written settlement agreement. Taking each of these in
turn, we conclude that none are essential terms of the settlement agreement.
CLM’s contention regarding the breadth of the confidential information to be
covered by the settlement agreement is that it intended that Matthew Crum and Travis
Hopkins be precluded from using all information identified as proprietary and
confidential in its petition. It indicates that the manifestation of this intent can be seen
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by reviewing CLM’s Verified Original Petition. However, the very purpose of a
settlement agreement is for parties to a pending dispute to compromise as to the relief it
sought by the litigation. See Kerrville HRH, Inc. v. City of Kerrville, 803 S.W.2d 377,
388 (Tex.App.—San Antonio 1990, writ denied) (“A compromise and settlement is the
conclusion of a disputed or unliquidated claim through a contract in which the parties
agree to mutual concessions in order to avoid resolving their controversy through
litigation.”). The plain language of the settlement agreement specifically identifies the
confidential information which Matthew Crum and Travis Hopkins were required to
return to CLM. Nothing in the settlement agreement incorporates CLM’s pleading
allegations by reference nor does the agreement require the return of “all” of CLM’s
confidential information.
Next, CLM contends that there was no meeting of the minds regarding the
manner of notice required and the duration of the opportunity to cure in the event of
CLM’s default on the loan repayment to Eddie Hopkins. On the two-page written
agreement, beside the provision for automatic forfeiture of collateral in the event of
CLM’s default on the loan, “Notice and opportunity” was handwritten. We agree with
CLM that this was a negotiated addition to the terms of the settlement agreement.
However, we do not agree that the lack of specifics regarding the manner of notice and
duration of opportunity to cure are essential terms to the settlement agreement.
Whether the manner of notice or duration of opportunity to cure was reasonable would
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be an issue to be decided on a claim of breach of the settlement agreement rather than
an essential term of the settlement agreement.1
CLM also contends that there was no meeting of the minds regarding the amount
of monetary credit that it would be afforded in the event of the automatic surrender of
the collateral for its loan from Eddie Hopkins. However, nothing in the settlement
agreement addresses this concern. CLM contends, in its supplemental response to
appellees’ motion to enforce settlement agreement, that an automatic surrender of
collateral is generally given in full and complete satisfaction of the underlying debt. As
such, Eddie Hopkins would take the collateral in full and complete satisfaction of the
debt. Thus, in the absence of an express provision in the settlement agreement to the
contrary, the automatic surrender of the collateral would fully and completely satisfy the
debt. In any event, the absence of an express provision changing the value of collateral
that is presumed is not an essential term of the settlement agreement.
Finally, it is CLM’s contention that the lack of a definitive, written settlement
agreement is evidence of a lack of a meeting of the minds between the parties.
According to CLM, the language of paragraph 10 of the written portion of the settlement
agreement2 constituted an agreement to continue negotiation toward a final settlement
1
In CLM’s supplemental response to appellees’ motion to enforce settlement
agreement, CLM indicated that it would be agreeable to “five (5) business days notice
and opportunity to cure.”
2
While quoted above, as a reminder, paragraph 10 of the written portion of the
settlement agreement provides,
10. If this offer is accepted, I [Eddie Hopkins’s counsel] will prepare a
comprehensive Compromise and Settlement Agreement containing
customary language regarding the breadth of the releases, binding effect,
10
agreement. It is the lack of this subsequent formalization of the settlement upon which
CLM bases many of its contentions addressed above. However, we construe the
language used in paragraph 10 to establish that the “comprehensive Compromise and
Settlement Agreement” that was to be entered into by the parties was not intended to
add any essential terms to the settlement and, certainly, was not intended to allow
further negotiation regarding the essential terms of the settlement reached on October
19, 2009. The preparation of a comprehensive settlement agreement was conditioned
on CLM’s acceptance of appellees’ settlement offer as opposed to the preparation of a
comprehensive settlement agreement being a condition of settlement. See Lerer v.
Lerer, No. 05-02-00124-CV, 2002 Tex.App. LEXIS 8371, at *9-10 (Tex.App.—Dallas
Nov. 26, 2002, pet. denied); Hardman v. Dault, 2 S.W.3d 378, 381 (Tex.App.—San
Antonio 1999, no pet.). Thus, the preparation of a written, comprehensive settlement
agreement did not arise under the October 19, 2009 settlement agreement until that
settlement agreement was accepted by CLM. Further, the use of the phrase
“customary language” as identifying the additional provisions to be added in the
comprehensive settlement agreement evinces that there was no intent that the parties
needed to negotiate further. The term “customary” means “ordinary; usual; common.”
BLACK’S LAW DICTIONARY 268 (6th Ed. 1991). Thus, the comprehensive settlement
agreement was to include language that is ordinary, usual, and common to settlement
agreements regarding those subjects specified in paragraph 10. The use of the phrase
“customary language” is an indication that the parties did not intend to negotiate further
before entering a comprehensive settlement agreement. In fact, the manifestation that
entirety clause, governing law, severability, specific performance, effective
date, time of the essence, confidentiality, no admissions, etc.
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such terms would be included by the use of “customary language” indicates that the
parties did not view the inclusion of these terms to be essential to the settlement.
After considering each of the terms CLM claims to have been essential to the
October 19, 2009 settlement agreement and finding none of these to be essential, we
overrule CLM’s first issue.
Issue Two – Authority of CLM’s Counsel to Agree
By its second issue, CLM contends that its counsel did not have authority to
enter into the October 19, 2009 settlement agreement on CLM’s behalf. Appellees
respond by contending that CLM failed to raise the issue of its counsel’s authority
before the trial court and, therefore, it has waived the issue. We note, however, that
CLM did expressly raise the issue of counsel’s lack of authority in its motion for new
trial, which was overruled by the trial court.
The attorney-client relationship is one of agent and principal, and the acts of the
former ordinarily binds the latter. Breceda v. Whi, 187 S.W.3d 148, 152 (Tex.App.—El
Paso 2006, no pet.) (citing Tex. Emp’rs Ins. Ass’n v. Wermske, 162 Tex. 540, 349
S.W.2d 90, 93 (Tex. 1961)). Generally, every reasonable presumption is to be indulged
to support a settlement agreement made by a duly employed attorney. Ebner v. First
State Bank of Smithville, 27 S.W.3d 287, 300 (Tex.App.--Austin 2000, pet. denied);
Cleere v. Blaylock, 605 S.W.2d 294, 296 (Tex.Civ.App.--Dallas 1980, no writ). The
most important presumption of such an agency relationship is that the agent acts in
accordance with the wishes of the principal. Breceda, 187 S.W.3d at 152. However,
when the evidence reveals that the attorney did not have the client's authority to agree,
12
the agreement will not be enforced. Id.; Ebner, 27 S.W.3d at 300; Cleere, 605 S.W.2d
at 296. Thus, the presumption of authority of the attorney is a rebuttable one. Breceda,
187 S.W.3d at 152.
CLM contends that its November 3, 2009 comments to the proposed
comprehensive settlement agreement prepared by appellees is evidence that CLM’s
counsel did not have authority to enter into the October 19, 2009 settlement agreement.
Specifically, CLM indicates that the statement that Matthew Crum and Travis Hopkins
“will return to [CLM] all of [CLM’s] Proprietary and Confidential Information . . . in their
possession” establishes that its counsel lacked authority to settle the case for anything
less than the return of all of CLM’s confidential information. However, the language
immediately following this statement in the comment letter mirrors the language that
was read into the record on October 19, 2009,
[T]hey will return to [CLM] all copies, in whatever format, of what we’ve
referred to as the Walking T title documents or title information, which
includes all the underlying source documents, a summary of the title, a
title runsheet, and a Vizio flowchart of all the title information.
As such, it appears that these comments reiterate the terms of the October 19, 2009
settlement agreement rather than clearly indicate that CLM’s counsel lacked authority to
agree to the October 19, 2009 settlement agreement.
Further, while sufficient to preserve the issue for appellate review, we find it
significant that CLM did not clearly assert its contention that its counsel lacked authority
to agree to the October 19, 2009 settlement agreement until it filed its motion for new
13
trial after the trial court granted summary judgment in favor of appellees.3 By its motion
for new trial, CLM contends that its counsel did nothing more than approve the form of
the agreement, rather than its substance. However, this contention is belied by
counsel’s signature on the written portion of the settlement agreement indicating that it
was “accepted.” Further, counsel stated, on the record, that, “We’ve agreed to resolve
our complaints between the respective parties pursuant to the terms and conditions set
forth on Defendant’s Exhibit 1. We’ll allow that document to speak for itself.” Clearly,
such a statement evinces an acceptance of both the form and substance of the
settlement agreement. Furthermore, in its Response to Defendants’ Motion to Enforce
Settlement Agreement and Motion for Damages, which was filed on December 14,
2009, CLM stated, “[o]n the morning of October 19, 2009, the parties did meet for the
hearing and rather than the Court considering the Petition, the Parties agreed upon the
terms and conditions of an agreement resolving all matters between them” (emphasis
added). Clearly, the evidence contained within the record in this case fails to overcome
the presumption that counsel had the authority to accept the October 19, 2009
settlement agreement.
For the foregoing reasons, we conclude that the evidence fails to raise a genuine
issue of material fact regarding counsel’s authority to enter into the October 19, 2009
settlement agreement. Consequently, we overrule CLM’s second issue.
Issue Three – Repudiation of Settlement Agreement
3
We note, as pointed out by appellees, that a claim of lack of authority to
execute any written instrument must be verified by affidavit. See TEX. R. CIV. P. 93(7).
While CLM cites Zachary M. Stephens’s affidavit as evidence of counsel’s lack of
authority, nothing in this affidavit expressly denies counsel’s authority to enter into the
October 19, 2009 settlement agreement.
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By its third issue, CLM contends that it repudiated the October 19, 2009
settlement agreement. Appellees respond, contending that CLM failed to raise this
repudiation argument before the trial court and, therefore, this issue has been waived.
A party may revoke its consent to a settlement agreement at any time before
judgment is rendered on the agreement. S & A Rest. Corp. v. Leal, 892 S.W.2d 855,
857 (Tex. 1995) (per curiam). However, the repudiating party must effectively
communicate its withdrawal of consent to the trial court. Baylor Coll. of Med. v.
Camberg, 247 S.W.3d 342, 346 (Tex.App.—Houston [14th Dist.] 2008, pet. denied).
"The proper inquiry is whether the information in the trial court's possession is clearly
sufficient and of such a nature as to put the court on notice that a party's consent is
lacking. . . ." Id. (quoting Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex.App.—Corpus
Christi 1995, no writ)).
A review of the record reveals that CLM never effectively communicated its
withdrawal of consent to the trial court. It is clear that CLM consistently argued for a
favorable construction of the October 19, 2009 settlement agreement, but nowhere in
the record did CLM clearly place the trial court on notice that it did not consent to the
October 19, 2009 settlement agreement. In fact, in its Supplemental Response to
Defendants’ Motion to Enforce Settlement Agreement, CLM requested the trial court
enter a Take Nothing Judgment on the basis that all claims and causes of action
between the parties had been resolved by a settlement agreement reached on October
19, 2009.
15
Because any repudiation of consent for the October 19, 2009 settlement
agreement was insufficiently clear to put the trial court on notice that CLM had
withdrawn its consent to the settlement agreement, we overrule CLM’s third issue.
Issue Four – Vagueness of Settlement Agreement
By its fourth issue, CLM contends that the October 19, 2009 settlement
agreement is too vague to be enforceable. Appellees respond contending that the
settlement agreement contains all essential terms, and is sufficiently certain to be
enforceable by the trial court. CLM’s specific argument regarding the alleged
vagueness of the settlement agreement is based on the omission of the same terms
argued by CLM in Issue One. We have previously addressed these terms above, and
concluded that none are essential to the enforcement of the settlement agreement.
While not specifically addressed by CLM’s argument of its fourth issue, we do
note the January 8, 2010 letter of the trial court, which states that, “[a]fter consideration,
it is apparent that the agreement entered into by the parties is simply too vague to allow
the court to draft a settlement agreement for the parties.” However, by letter dated June
18, 2010, the trial court clarified the intent of its statement when it said,
It appears from the Plaintiff’s submission that they are under the mistaken
impression that I ruled the settlement agreement placed on the record to
be vague and unenforceable. The intent of my ruling was to inform the
parties that I thought it inappropriate for the court to draft contractual
clauses regarding “…breadth of the releases, binding effect, entirety
clause, governing law, severability, specific performance, effective date,
time of the essence, confidentiality, no admissions…” The gist of the prior
enforcement hearings, as I understood the same, was that the court would
cause creation of the final settlement papers. My ruling letter regarding
the prior motion to enforce specifically referenced a drafting of a
settlement agreement by the court.
16
The trial court’s indication that it cannot supply terms to the settlement agreement that
were not specifically agreed to by the parties is a correct statement of the law. See
Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam); Baylor Coll. Of
Med., 247 S.W.3d at 346. However, as addressed in our analysis of Issue One above,
the omission of these nonessential terms did not affect the enforceability of the
settlement agreement. See Padilla, 907 S.W.2d at 460.
Because we conclude that the October 19, 2009 settlement agreement is
sufficiently specific to be enforced, we overrule CLM’s fourth issue.
Issue Five – Breach of Settlement Agreement and Failure of Consideration
By its fifth issue, CLM contends that Matthew Crum and Travis Hopkins have
breached the October 19, 2009 settlement agreement, and that this breach constitutes
a failure of consideration. However, CLM’s entire contention depends upon its
construction of the settlement agreement being accepted by this Court. As addressed
above, the settlement agreement reached by the parties did not address the Range
Resource data and, therefore, Matthew Crum’s and Travis Hopkins’s continued use of
this information is not a breach of the settlement agreement, and, certainly, is not a
failure of consideration.
We overrule CLM’s fifth issue.
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Conclusion
Having overruled each of CLM’s issues, we affirm the trial court’s July 8, 2010
Order on Defendants’ Motion for Summary Judgment.
Mackey K. Hancock
Justice
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