Superbash 2017, LLC, Edward Corral and Thaddeus Berry v. Fun Fest Entertainment, John Hardy, Corey Williams and Lorenzo Ware ( 2021 )

Affirmed and Opinion filed October 5, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00190-CV
SUPERBASH 2017, LLC, EDWARD CORRAL AND THADDEUS BERRY,
Appellants
V.
FUN FEST ENTERTAINMENT, JOHN HARDY, COREY WILLIAMS AND
LORENZO WARE, Appellees
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2017-18368
OPINION
Three parties to a settlement agreement appeal the trial court’s judgment
after a bench trial in which the trial court rendered a money judgment against them
based on the plaintiffs’ claims for breach of a written settlement agreement. The
appellants assert that the settlement agreement is unenforceable because two
parties to the agreement failed to sign it. However, at trial, appellants took the
opposite position—that the settlement agreement was a valid and enforceable
contract but that the other side materially breached the agreement first. Concluding
that appellants’ arguments lack merit, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2017, Houston hosted the National Football League’s Super Bowl LI.
Music World Properties, LLC (“Music World”) owned an entertainment complex
(the “House of Dereon Center”) that included “The House of Dereon Event
Center.” This complex was close to many of the planned Super Bowl festivities
and provided a potential venue for hosting a Super Bowl party headlined by
musicians. Appellees/plaintiffs John Hardy, Corey Williams, and Lorenzo Ware
were the principals of appellee/plaintiff Fun Fest Entertainment (“Fun Fest”).1
Hardy, Williams, and Ware decided that Fun Fest should hold a Super Bowl
LI event at Music World’s House of Dereon Center the day before Super Bowl LI.
Trial evidence showed that Hardy and Williams entered into a contract with Music
World to rent its facility from 5 a.m. on Saturday, February 4, 2017 to 5 a.m. on
Sunday, February 5, 2017 (the “First Rental Contract”).
Defendant/appellant Superbash 2017, LLC (“Superbash”) is a Texas limited
liability company. Trial evidence showed that defendant/appellant Edward Corral
1
In the live petition in today’s case, the plaintiffs allege that “Fun Fest Entertainment is a general
partnership formed under the laws of Texas” and that “[i]ts members include John Hardy, Corey
Williams, and Lorenzo Ware.” In the Settlement Agreement discussed below, Hardy, Williams,
and Ware are described as “partners of Fun Fest Entertainment a/k/a Fun Fest Entertainment,
Inc.” Trial evidence showed that a Texas corporation named Fun Fest Entertainment, Inc. was
formed on December 2, 2016. At trial, John Hardy testified that he was president of “Fun Fest
Entertainment” and president of “Fun Fest Entertainment, Incorporated.” According to Hardy,
the general partnership “Fun Fest Entertainment” and the Texas corporation “Fun Fest
Entertainment, Incorporated” are the same entity. Before December 2, 2016, “Fun Fest
Entertainment, Incorporated” did not exist. After that date, Hardy, Williams, and Ware may have
been acting on behalf of a general partnership named “Fun Fest Entertainment” or on behalf of a
Texas corporation named “Fun Fest Entertainment, Incorporated.” We need not decide this
question to adjudicate today’s appeal, and in this opinion we refer to the entity for whom Hardy,
Williams, and Ware were acting as “Fun Fest.”
2
is a “director” of Superbash and that defendant/appellant Thaddeus Berry helped
Superbash with artist support and ticket sales. After Music World rented the House
of Dereon Center to Fun Fest, Superbash decided that it wanted to hold a Super
Bowl party at the same venue on the same date, i.e., Saturday, February 4, 2017. In
September 2016, Corral and Superbash signed a contract with Music World to rent
the House of Dereon Center from 5 a.m. on Saturday, February 4, 2017 to 5 a.m.
on Sunday, February 5, 2017, the same time period covered by the First Rental
Contract. Superbash agreed to pay Music World twice the rent that Fun Fest had
agreed to pay. Superbash and Corral were aware of the First Rental Contract.
According to Corral, Matthew Knowles2 of Music World told Corral that the First
Rental Contract had a clause that allowed Music World to buy out the First Rental
Contract by returning the deposit and paying Fun Fest ten percent of rental price in
the First Rental Contract. Corral testified that Knowles showed him the First
Rental Contract and the clause in question. According to Corral, Music World’s
purported ability to buy out the First Rental Contract made Corral feel good about
renting the House of Dereon Center, and Corral signed a rental contract with Music
World (“Second Rental Contract”).
Fun Fest disagreed that Music World had the ability under the First Rental
Contract to buy out Fun Fest. In October 2016, Fun Fest, Hardy, Williams, and
Ware (collectively, the “Fun Fest Parties”) filed suit in the trial court below against
Music World and Knowles (the “Music World Parties”), alleging breach of the
First Rental Contract and tortious interference and seeking injunctive relief (the
“First Suit”). In this lawsuit, the Fun Fest Parties did not sue Superbash, Corral, or
Berry. Trial evidence showed that Fun Fest then obtained a temporary injunction
against Music World and Knowles.
2
The Fun Fest Parties alleged that Matthew Knowles is the President and Director of Music
World.
3
The Fun Fest Parties, the Music World Parties, and the Superbash Parties
engaged in mediation. Hardy testified that all the parties agreed to a settlement
agreement. A written agreement, entitled “Settlement Agreement and Mutual
Release of Claims” (“Agreement”) was created. Under the terms of the Agreement,
Hardy, Williams, Ware, Fun Fest, Knowles, Music World, Corral, Berry, and
Superbash were parties to the Agreement. The parties agreed that the “Effective
Date” of the Agreement would be “the date the Agreement is executed by all
Parties.” The Agreement also provided as follows:
(1) As of the Effective Date, the First Rental Contract shall be
cancelled, revoked, and rescinded, and neither the Fun Fest Parties nor
the Music World Parties shall claim any rights or remedies under the
First Rental Contract;
(2) The Music World Parties shall pay to Fun Fest a total of $65,000,
as follows: (a) $16,500 within three business days of the Effective
Date; (b) $23,500 within fourteen days of the Effective Date; and (c)
$25,000 on or before February 10, 2017;
(3) On or before March 10, 2017, the Superbash Parties shall pay to
the Fun Fest Parties, by cashier’s check made payable to Fun Fest
Entertainment, Inc., the amount of $135,000;
(4) No later than 5 p.m. on the calendar day following the Effective
Date, the Music World Parties and the Fun Fest Parties each shall file
in the First Suit a notice of nonsuit with prejudice of all claims and
defenses alleged by the party in the First Suit;
(5) The Agreement provided for the mutual release of certain claims;
and
(6) The Fun Fest Parties agreed that they would not, at any time on or
after the Effective Date, and until such time as the Music World
Parties no longer have any interest in the House of Dereon Center,
enter or attempt to enter or be present or attempt to be present on or at
the House of Dereon Center.
Section 21 of the Agreement provided that “No Party shall be bound by the terms
of this Agreement unless and until each Party has properly executed an original of
4
this Agreement.” The last page of the Agreement contained the following language
at the top: “IN WITNESS WHEREOF, and intending to be legally bound, each
Party hereto has caused this Agreement to be executed as of the date(s) set forth
below.” Below this language were places for the following parties to sign the
Agreement: Music World, Knowles, Fun Fest, Hardy, Williams, Ware, Superbash,
Corral, and Berry. The undisputed evidence at trial showed that on January 13,
2017, Knowles on behalf of Music World, Knowles on his own behalf, Hardy,
Williams, Ware, Corral, and Berry signed in the place designated for their
signature on a counterpart of the last page of the Agreement. No evidence at trial
showed that Fun Fest or Superbash ever signed any counterpart of the Agreement
in the place designated for the signature of the respective party. On January 13,
2017, the Fun Fest Parties filed a nonsuit with prejudice of all their claims in the
First Suit.
After none of the Music World Parties or the Superbash Parties made any
payment to any of the Fun Fest Parties under the Agreement, the Fun Fest Parties
filed this lawsuit in March 2017.3 The Fun Fest Parties asserted claims against the
Music World Parties and the Superbash Parties for breach of the Agreement. The
Fun Fest Parties alleged that on or about January 13, 2017, the Fun Fest Parties, the
Music World Parties and the Superbash Parties executed a valid and enforceable
written contract. The Fun Fest Parties asserted that the Music World Parties and
the Superbash Parties had breached the Agreement by failing to make the
payments required by the Agreement. The Fun Fest Parties asserted breach-of-
contract claims based on alleged breaches of the Agreement. They did not seek
3
The First Suit was filed in the 234th District Court. The second suit was filed in the 127th
District Court but was transferred by the Administrative Judge of the Civil Trial Division to the
234th District Court pursuant to the local rules of the Civil Trial Division of the District Courts
of Harris County.
5
relief based on any alleged oral agreement.
In the Superbash Parties’ live answer, they asserted a general denial and the
following affirmative defenses: (1) the Fun Fest Parties allegedly lacked the
capacity to sue or recover in the capacity in which they had sued; (2) the defense of
discharge by material breach; and (3) the defense of offset. Although the Fun Fest
Parties alleged that Superbash had executed a valid and enforceable written
contract on or about January 13, 2017, Superbash did not set up in its live pleading
a denial of the execution of the Agreement by itself or by its authority.
Shortly before this case was set for trial, the Fun Fest Parties and the Music
World Parties entered into a settlement agreement, and the trial court severed the
Fun Fest Parties’ claims against the Music World Parties into a different case. The
claims by the Fun Fest Parties against the Superbash Parties proceeded to a bench
trial. Hardy testified that it was his understanding that Corral and Berry signed the
Agreement for themselves and also on behalf of Superbash. Corral testified that the
Superbash Parties did not have a lawyer representing them in relation to the First
Lawsuit. Corral said it was his understanding that the Agreement canceled the First
Rental Contract and that pursuant to the Agreement and the Second Rental
Contract, Fun Fest was not supposed to be using the name “House of Dereon.”
When asked what Superbash was supposed to be getting out of the Agreement
“that you agreed and obligated yourself to pay $135,000 for,” Berry answered,
“[w]e were expecting to get the [House of Dereon Center] and everything that was
connected to the compound, you know, all their rights to use it for us; not have any
interference, be able to put on the event and have a great event.” Berry stated that
“the whole reason for entering into [the Agreement] was to just — everybody have
a clear understanding, you know, what was going to happen.” Berry testified as
follows:
6
[Counsel for the Superbash Parties]: And, so, if the [Superbash
Parties] did not get what they were hoping for from the [Agreement],
meaning the unrestricted, unfettered, uninterfered-with use of the
[House of Dereon Center] in name, because Fun Fest continued to use
it after the date of the [Agreement], January 13, Superbash did not get
what they had intended for and bargained for with the [Agreement]; is
that fair?
[Berry]: Yes. We didn’t get — once we signed the agreement, we
thought for sure everything was going to go as stated. You know, they
would move out of the way, take all their stuff down, have no
interference. And we can, you know, market and make sure that
people were sure that the Superbash event was going on.
Berry further testified that “one of the things Superbash had bargained for” was
Superbash’s ability to make money from its Super Bowl event.
After the bench trial the trial court rendered judgment in favor of the Fun
Fest Parties on their breach-of-contract claims against the Superbash Parties
rendering judgment that the Fun Fest Parties recover from the Superbash Parties,
jointly and severally, $135,000 plus prejudgment interest, postjudgment interest,
and court costs. The trial court did not award the Fun Fest Parties any attorney’s
fees.
At the request of the Superbash Parties, the trial court filed findings of fact
and conclusions of law. The trial court found that “[o]n or about January 13, 2017,
the parties entered into and executed a Settlement Agreement and Mutual Release
of Claims . . . wherein . . . the Superbash [Parties] agreed to pay [the Fun Fest
Parties] in the amount of $135,000 on or before March 10, 2017.”
The Superbash Parties filed a timely motion for new trial, which was
overruled by operation of law. Though the Superbash Parties filed their notice of
appeal more than ninety days after final judgment, under the Supreme Court of
Texas’s holding in Verburgt v. Dorner, the law deemed that the Superbash Parties
had filed a motion for extension of time to file a notice of appeal. See 959 S.W.2d
7615, 617 (Tex. 1997). This court granted the Superbash Parties’ motion for
extension of time to file a notice of appeal; so their notice of appeal was timely.
See id.II. ISSUES AND ANALYSIS
On appeal, the Superbash Parties assert in a single issue that the trial court
erred by enforcing the Agreement—that two parties bound by the trial court’s
judgment did not sign—despite the signature requirement in Rule 11 of the Texas
Rules of Civil Procedure and the Agreement’s express provision that the
Agreement does not bind any party until all parties have signed it. Under their sole
appellate issue, the Superbash Parties assert two arguments. The Superbash Parties
argue that the trial court erred in enforcing the Agreement because the Agreement
unambiguously provides that it does not bind any party until each party to the
Agreement has properly executed an original of the Agreement and because Fun
Fest and Superbash did not properly execute an original of the Agreement (the
“First Argument”). The Superbash Parties also argue that the trial court erred in
enforcing the Agreement because the Agreement is unenforceable as a matter of
law under Rule 11 of the Texas Rules of Civil Procedure, in light of Rule 11’s
requirement that any agreement between parties “touching any suit pending” be
signed by all parties and the failure of Fun Fest and Superbash to sign the
Agreement (the “Second Argument”).
A. Liberally construing the Superbash Parties’ briefing as sufficiently
briefing an argument that the trial evidence is legally insufficient to
support a finding that the Agreement existed as a valid contract, does
this argument have merit?
In their appellate briefing, the Superbash Parties do not assert that the
evidence is legally or factually insufficient. They do not cite the standard of review
applied to a legal-sufficiency challenge or to a factual-sufficiency challenge. In
8
making the First Argument, the Superbash Parties assert that under the
Agreement’s unambiguous language, the Agreement does not bind any party until
each party to the Agreement has properly executed an original of the Agreement.
The Superbash Parties rely on section 21 of the Agreement, which provides that
“No Party shall be bound by the terms of this Agreement unless and until each
Party has properly executed an original of this Agreement.” The other sentence in
section 21 provides as follows: “This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which when taken
together shall constitute one or more of the same instruments.”
We presume for the sake of argument that, under the Agreement’s plain text,
no party to the Agreement is bound by the Agreement’s terms unless and until each
party to the Agreement has properly executed an original of the Agreement. Under
this presumption, if one or more parties to the Agreement did not properly execute
an original of the Agreement, the Agreement would not be a binding contract, and
the Agreement would not exist as a valid contract. See Lujan v. Alorica, 445
S.W.3d 443, 448–49 (Tex. App.—El Paso 2014, no pet.); West Texas Hospitality,
Inc. v. Enercon Int’l, Inc., No. 07-09-0213-CV, 2010 WL 3417845, at *5 (Tex.
App.—Amarillo Aug. 31, 2010, no pet.) (mem. op.). The essential elements of a
breach-of-contract claim are (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. Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.—Houston [14th Dist.]
2005, pet. denied). Liberally construing the Superbash Parties’ briefing, they have
sufficiently briefed an argument that the trial evidence is legally insufficient to
support a finding that the Agreement existed as a valid contract because the
evidence is legally insufficient to support a finding that Fun Fest or Superbash
9
properly executed an original of the Agreement.4 This challenge to the legal
sufficiency of the evidence falls within an exception to the usual preservation-of-
error requirements. See Tex. R. App. P. 33.1(d) (stating that “[i]n a civil nonjury
case, a complaint regarding the legal or factual insufficiency of the evidence . . .
may be made for the first time on appeal in the complaining party’s
brief”); Briones v. Brazos Bend Villa Apartments, 438 S.W.3d 808, 815 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).
In their live pleading the Fun Fest Parties asserted claims against the
Superbash Parties for breach of the Agreement, alleging that on or about January
13, 2017, the Fun Fest Parties, the Music World Parties and the Superbash Parties
executed a valid and enforceable written contract. In the Superbash Parties’ live
answer, they asserted a general denial and the following affirmative defenses: (1)
the Fun Fest Parties allegedly lacked the capacity to sue or recover in the capacity
in which they had sued; (2) the defense of discharge by material breach; and (3) the
defense of offset.
Although the Fun Fest Parties alleged that Superbash had executed a valid
and enforceable written contract on or about January 13, 2017, Superbash did not
set up in its answer a denial of the execution of the Agreement by itself or by its
authority. Instead, the Superbash Parties pleaded the defense of discharge by
material breach. Under this defense, a defendant asserts that it is not liable for
breach of a contract because prior to the defendant’s alleged breach, the plaintiff
materially breached the contract, thus discharging the defendant from any further
obligation to perform the contract. See Mustang Pipeline Co. v. Driver Pipeline
4
Even under a liberal construction of the Superbash Parties’ briefing, the Superbash Parties have
not sufficiently briefed challenge to the factual sufficiency of the evidence based on the
Agreement’s providing that no party to the Agreement is bound by its terms unless and until each
party to the Agreement has properly executed an original of the Agreement.
10
Co., 134 S.W.3d 195, 196 (Tex. 2004); Copeland v. Walker, No. 05-17-00925-CV,
2018 WL 6333240, at *3 (Tex. App.—Dallas Nov. 29, 2018, no pet.) (mem. op.).
In pleading this defense, the Superbash Parties asserted that the Agreement
“expressly canceled, revoked and rescinded the [First Rental Contract].” The
Agreement provided that its “Effective Date” is “the date the Agreement is
executed by all Parties.” In their answer, the Superbash Parties alleged that the Fun
Fest Parties “continued to exercise rights granted by the [First Rental Contract]
after the Effective Date of the [Agreement] and in material breach of the
[Agreement], including but not limited to continuing to advertise the Fun Fest
[Parties’] now-cancelled event at the [House of Dereon Center], [and] selling tickets
and collecting money for the Fun Fest [Parties’] now-cancelled event at the
[House of Dereon Center].” (emphasis added). The Superbash Parties alleged that
these material breaches of the Agreement by the Fun Fest Parties “depriv[ed] [the
Superbash Parties] of the benefit of their bargain.” The Superbash Parties also
asserted the defense of offset “for any monies collected by [the Fun Fest Parties]
after the Effective Date of the Settlement Agreement5 which the [Fun Fest Parties
had no right to collect . . . .”
In their answer, the Superbash Parties did not make any of the following
assertions: (1) that the parties did not execute a valid contract; (2) that no contract
between the parties was formed; or (3) that the Agreement never became binding
on any party because a party to the Agreement did not execute an original of the
Agreement. The Superbash Parties did not plead that the Agreement never became
a binding contract, and then plead in the alternative that even if the Agreement had
become a binding contract, the Superbash Parties were discharged from any
payment obligation by the Fun Fest Parties’ prior material breach of the
5
underlining in the original.
11
Agreement. Instead, without pleading in the alternative, the Superbash Parties pled
just the opposite. They asserted that the Agreement had canceled the First Rental
Contract, and that after the Effective Date—defined as the date the Agreement was
executed by all Parties—the Fun Fest Parties had materially breached the
Agreement, depriving the Superbash Parties of the benefit of their bargain.
During trial, the Superbash Parties did not mention section 21 of the
Agreement, which provides that no party is bound by the Agreement until each
party has properly executed an original of the Agreement. During trial, the
Superbash Parties did not assert that the Agreement was never formed, not binding,
or unenforceable because the Agreement requires that each party properly execute
an original of the Agreement, yet not all parties properly executed an original of
the Agreement. At trial, the Superbash Parties focused on their defense of
discharge by prior material breach. In open court during trial, the trial court
engaged in a colloquy with the trial attorney for the Superbash Parties. During this
colloquy, the trial court stated that the House of Dereon Center “was tied up by
Fun Fest like existing [sic] contract until January 13th. And then y’all were able to
reach an agreement to get rid of their contract on January 13th. And, so, then
you’re saying it took another 12 days after the contract. They got rid of their
contract. Then there was a 12-day gap before y’all were able to sell to Eventbrite.”
(emphasis added). In response to this summary by the trial court, the attorney for
the Superbash Parties said, “Exactly.” Later on during this colloquy counsel for the
Superbash Parties stated that “the settlement agreement required [the Fun Fest
Parties] to stop using [the House of Dereon Center].”
On this record, we conclude that the Superbash Parties judicially admitted
that the Superbash Parties and the other parties to the Agreement entered into and
executed the Agreement as a valid and binding agreement. See Li v. 1821 West
12
Main Development, LLC, No. 14-10-01227-CV, 2011 WL 5926679, at *4–5 (Tex.
App.—Houston [14th Dist.] Nov. 29, 2011, pet. denied) (holding appellant could
not dispute the existence of a contract with appellee because appellant judicially
admitted the existence of the contract in her live pleading) (mem. op.); Wheeler v.
White, 314 S.W.3d 225, 228–29 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) (holding that party’s premising her claim on the enforceability of an
agreement constituted a judicial admission by the party that the agreement was
enforceable for the purposes of the lawsuit and relieved the opposing parties from
having to prove that the agreement was enforceable). Therefore, the Superbash
Parties may not dispute the existence of the Agreement and the Fun Fest Parties
were relieved of the burden of having to prove the existence of the Agreement as a
valid contract. See Li, 2011 WL 5926679, at *4–5; Wheeler, 314 S.W.3d at 228–
29; Aguiar, 167 S.W.3d at 450. Thus, the argument that the trial evidence is legally
insufficient to support a finding that the Agreement existed as a valid contract
lacks merit because the Superbash Parties judicially admitted that the Superbash
Parties and the other parties to the Agreement entered into and executed the
Agreement as a valid and binding agreement. See Li, 2011 WL 5926679, at *4–5;
Wheeler, 314 S.W.3d at 228–29; Aguiar, 167 S.W.3d at 450.
B. Did the Superbash Parties preserve error in the trial court on the First
Argument?
In the First Argument, the Superbash Parties contend that the trial court
erred in enforcing the Agreement because the Agreement unambiguously provides
that it does not bind any party until each party to the Agreement has properly
executed an original of the Agreement and because Fun Fest and Superbash did not
properly execute an original of the Agreement. As a threshold matter, we consider
whether the Superbash Parties preserved error in the trial court as to the First
Argument.
13
There are “important prudential considerations” behind the preservation-of-
error rules. Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314,
317 (Tex. 2012). First, requiring that parties initially raise complaints in the trial
court conserves judicial resources by providing trial courts the opportunity to
correct errors before appeal. Id. Second, judicial decision-making is more accurate
when trial courts have the first opportunity to consider and rule on error. Id. Third,
a party “should not be permitted to waive, consent to, or neglect to complain about
an error at trial and then surprise [the party’s] opponent on appeal by stating [the
party’s] complaint for the first time.” Id. (internal quotations omitted). In their
appellate briefing, the Superbash Parties do not assert that the evidence is legally
or factually insufficient. They do not cite the standard of review applied to a legal-
sufficiency complaint or to a factual-sufficiency complaint. Absent a liberal
construction of the Superbash Parties’ briefing as sufficiently briefing the legal-
sufficiency challenge addressed in the previous section, no exception to the usual
preservation-of-error requirements applies, and to reverse the trial court’s
judgment based on the First Argument, the Superbash Parties needed to follow
these requirements in the trial court. See Tex. R. App. P. 33.1(a); Mansions in the
Forest, L.P., 365 S.W.3d at 317.
To preserve a complaint for appellate review the record must show that (1)
the complaint was made to the trial court by a timely request, objection, or motion
that: (A) stated the grounds for the ruling that the complaining party sought from
the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context; and (B)
complied with the requirements of the Texas Rules of Evidence or the Texas Rules
of Civil or Appellate Procedure; and (2) the trial court: (A) ruled on the request,
objection, or motion, either expressly or implicitly; or (B) refused to rule on the
request, objection, or motion, and the complaining party objected to the refusal.
14
Tex. R. App. P. 33.1(a).
None of the Superbash Parties asserted in the trial court that the Agreement
may not be enforced because the Agreement unambiguously provides that it does
not bind any party until each party to the Agreement has properly executed an
original of the Agreement and because Fun Fest and Superbash did not properly
execute an original of the Agreement. To the contrary, the Superbash Parties
asserted the opposite. A week before trial, the Superbash Parties submitted
proposed findings of fact and conclusions of law. We presume, without deciding,
that these proposed findings of fact and conclusions of law constituted a timely
request and that the trial court’s issuing of different findings of fact and
conclusions of law after judgment constituted an implicit ruling on the request by
the trial court. In these proposed findings, the Superbash Parties asked the trial
court to make the following findings of fact:
11. On January 13, 2017, a Settlement Agreement was entered
into to resolve the First Lawsuit and provide Edward Corral,
Thaddeus Berry and Superbash 2017, LLC with their contracted for
rights under the second Leas[e] Agreement with Music World
Properties, LLC.
...
15. In consideration for the Settlement Agreement, Edward
Corral, Thaddeus Berry and Superbash 2017, LLC were required to
pay $135,000 via check made payable to Fun Fest Entertainment, Inc.
by March 10, 2017.
...
17. John Hardy, Corey Williams, Lorenzo Ware, [the Music World
Parties], Edward Corral and Thaddeus Berry are named parties to the
Settlement Agreement and signed the Settlement Agreement, as of
January 13, 2017.
18. Fun Fest Entertainment, Inc. is a named party to the Settlement
Agreement and the Settlement Agreement is not signed by Fun Fest
Entertainment, Inc.
15
19. Superbash 2017, LLC is a named party to the Settlement
Agreement and the Settlement Agreement is not signed by Superbash
2017, LLC.
...
22. As of January 13, 2017 and as a material term of the
Settlement Agreement, John Hardy, Corey Williams, Lorenzo Ware,
[and Fun Fest] no longer had a right to sell tickets, collect money
and/or retain money for a Superbowl 2017 event at the [House of
Dereon Center].
23. After January 13, 2017 and in material breach of the
Settlement Agreement John Hardy, Corey Williams, Lorenzo Ware,
[and Fun Fest] continued to use the names HOUSE OF DEREON or
MUSIC WORLD ENTERTAINMENT in advertising and
promotional materials disseminated to the general public for their
now-cancelled Superbowl 2017 event at the [House of Dereon
Center].
24. After January 13, 2017 and in material breach of the
Settlement Agreement John Hardy, Corey Williams, Lorenzo Ware,
[and Fun Fest] continued to sell tickets, collect money and/or retain
money from ticket sales for their now-cancelled Superbowl 2017
event at the HOUSE OF DEREON or [the House of Dereon Center].
...
26. The affirmative acts of selling tickets, collecting money and/or
retaining money from ticket sales for their now-cancelled Superbowl
2017 event at the [House of Dereon Center] by John Hardy, Corey
Williams, Lorenzo Ware, [and Fun Fest] after January 13, 2017,
materially interfered with Edward Corral, Thaddeus Berry and
Superbash 2017, LLC’s rights under the Settlement Agreement and
the second Lease Agreement.
...
39. Pursuant to the Statute of Frauds, TEX. BUS. & COM.
CODE §26.01, the Settlement Agreement is void because it is not
signed by all the parties to the Settlement Agreement, specifically
[Fun Fest] and Superbash 2017, LLC, and never became effective.
...
42. Any alleged obligation to pay money under the Settlement
16
Agreement by Edward Corral, Thaddeus Berry and Superbash 2017,
LLC to [Fun Fest], John Hardy, Corey Williams, [and] Lorenzo Ware
. . . was discharged by the prior, material breach of the Settlement
Agreement by [Fun Fest], John Hardy, Corey Williams, [and]
Lorenzo Ware . . . through the continued use of the name HOUSE OF
DEREON and MUSIC WORLD ENTERTAINMENT in advertising
and promotion materials for a Superbowl 2017 event at the [House of
Dereon Center] and selling tickets, collecting money and/or retaining
money from ticket sales for a cancelled Superbowl 2017 event at the
[House of Dereon Center], after the Settlement Agreement was signed
by these parties.
Various findings and conclusions proposed by the Superbash Parties indicate
that the Agreement is binding, valid, and in existence. The Superbash did propose
one conclusion of law in which the court would conclude that the Agreement is
void under the Statute of Frauds because it is not signed by all parties and never
became effective. But, none of the proposed findings or conclusions state that the
trial court may not enforce the Agreement because the Agreement unambiguously
provides that it does not bind any party until each party to the Agreement has
properly executed an original of the Agreement and because Fun Fest and
Superbash did not properly execute an original of the Agreement. The Superbash
Parties did not voice this complaint at trial, nor did they raise it in their motion for
new trial. After carefully considering the record, we conclude that the Superbash
Parties waived the First Argument by failing to preserve error on it in the trial
court. See In re E.W., No. 14-19-00666-CV, 2020 WL 742327, at *13 (Tex.
App.—Houston [14th Dist.] Feb. 13, 2020, pet. denied) (maj. mem. op.); In re
L.W., No. 12-19-00375-CV, 2020 WL 2078793, at *2 (Tex. App.—Tyler Apr. 30,
2020, no pet.) (mem. op.); Parker v. Three Rivers Flying Service, 220 S.W.3d 160,
163–64 (Tex. App.—Eastland 2007, no pet.).
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C. Did the Superbash Parties preserve error in the trial court on the
Second Argument?
In the Second Argument, the Superbash Parties assert that the trial court
erred in enforcing the Agreement because the Agreement is unenforceable as a
matter of law under Rule 11 of the Texas Rules of Civil Procedure, in light of Rule
11’s requirement that any agreement between parties “touching any suit pending”
be signed by all parties and the failure of Fun Fest and Superbash to sign the
Agreement. Rule 11 provides that “[u]nless otherwise provided in these rules, no
agreement between attorneys or parties touching any suit pending will be enforced
unless it be in writing, signed and filed with the papers as part of the record, or
unless it be made in open court and entered of record.” Tex. R. Civ. P. 11. Rule
11’s text might appear plain and categorical, and the Supreme Court of Texas has
held that Rule 11 “means precisely what it says.” Kennedy v. Hyde, 682 S.W.2d
525, 529 (Tex. 1984). Yet, in articulating this holding the Kennedy court also
declared that the holding “should not be interpreted as requiring ‘slavish
adherence’ to the literal language of [Rule 11] in all cases.” Kennedy, 682 S.W.2d
at 529. The high court stated that an agreement that does not comply with Rule 11
nonetheless may be enforced for certain “equitable reasons.” Id; Massey v. Galvan,
822 S.W.2d 309, 317–18 (Tex. App.—Houston [14th Dist.] 1992, writ denied)
(enforcing an agreement touching a pending suit despite the failure of the
agreement to comply with the Rule 11 requirements based on the “equitable
reasons” exception stated by the Supreme Court of Texas in Kennedy v. Hyde).6
6
In Araiza v. Bumb, the court did not cite the part of Kennedy in which the high court stated that
an agreement that does not comply with Rule 11 nonetheless may be enforced for certain
“equitable reasons,” nor did the Araiza court address the Massey case. No. 14-18-00633-CV,
2019 WL 3725554, at *2–*3 (Tex. App.—Houston [14th Dist.] Aug. 8, 2019, no pet.) (mem.
op.). The Araiza court did not address whether a court may enforce an agreement that does not
comply with Rule 11 based on “equitable reasons.” See id. Despite the Araiza opinion, we are
still bound by the precedent from Kennedy and Massey. See Glassman v. Goodfriend, 347
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If not all of the parties have signed a settlement agreement governed by Rule
11 and if no exception to the enforcement of Rule 11 applies, then Rule 11 would
bar enforcement of the agreement, but application of this rule would not prevent
the formation or existence of the agreement. See Tex. R. App. P. 11 (stating that
“[u]nless otherwise provided in these rules, no agreement between attorneys or
parties touching any suit pending will be enforced unless . . .”) (emphasis added);
Kennedy, 682 S.W.2d at 528 (stating that “[a] better statement of the general rule is
that Rule 11 is a minimum requirement for enforcement of all agreements
concerning pending suits, including, but not limited to, agreed judgments”)
(emphasis added). Thus, even if Rule 11’s signature requirement applied to the
Agreement, this requirement would be an affirmative defense, rather than
something that vitiates an essential element of the Fun Fest Parties’ breach-of-
contract claims. See Tex. R. App. P. 11, 94; Kennedy, 682 S.W.2d at 528; Aguiar,
167 S.W.3d at 450. The Superbash Parties did not plead Rule 11 in their answer,
and the parties did not try by consent the issue of whether Rule 11 bars
enforcement of the agreement. See Moneyhon v. Moneyhon, 278 S.W.3d 874, 879
(Tex. App.—Houston [14th Dist.] 2009, no pet.). In this context, even under a
liberal construction of the Superbash Parties’ briefing, we conclude that the
Superbash Parties have not sufficiently briefed a challenge to the legal or factual
sufficiency of the evidence based on Rule 11.
Absent a liberal construction of the Superbash Parties’ briefing as
challenging the sufficiency of the evidence, no exception to the usual preservation-
of-error requirements applies, and to reverse the trial court’s judgment based on the
Second Argument, the Superbash Parties needed to satisfy these requirements in
S.W.3d 772, 781–82 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc);
Burnett v. Sharp, 328 S.W.3d 594, 597–98 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
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the trial court. See Tex. R. App. P. 33.1(a); Mansions in the Forest, L.P., 365
S.W.3d at 317. None of the Superbash Parties asserted in the trial court that Rule
11 of the Texas Rules of Civil Procedure required the Agreement to be signed by
all parties or that the Agreement was unenforceable under Rule 11 because the
Agreement was not signed by all the parties. The Superbash Parties did not raise
the Second Argument in the trial court or obtain an adverse ruling on a request,
objection, or motion in which they asserted the Second Argument. After carefully
considering the record, we conclude that the Superbash Parties waived the Second
Argument by failing to preserve error on it in the trial court. See In re E.W., 2020
WL 742327, at *13; In re L.W., 2020 WL 2078793, at *2; Parker, 220 S.W.3d at163–64.
III. CONCLUSION
Liberally construing the Superbash Parties’ briefing, the Superbash Parties
have sufficiently briefed an argument that the trial evidence is legally insufficient
to support a finding that the Agreement existed as a valid contract because the
evidence is legally insufficient to support a finding that Fun Fest or Superbash
properly executed an original of the Agreement. This argument lacks merit because
the Superbash Parties judicially admitted that the Superbash Parties and the other
parties to the Agreement entered into and executed the Agreement as a valid and
binding agreement. The Superbash Parties waived the First Argument and the
Second Argument by failing to preserve error on either argument in the trial court.
Therefore, we overrule the Superbash Parties’ sole issue and affirm the trial court’s
judgment.
/s/ Randy Wilson
Justice
Panel consists of Justices Zimmerer, Poissant, and Wilson.
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