Triton Consulting Inc., Formerly Known as Triton Consulting LLC v. Simon Vandyk, Laura Vandyk, Touchstone District Services, LLC, Coleen Culpepper, Michael Willett and Calep Estes ( 2024 )

Opinion issued October 10, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00183-CV
———————————
TRITON CONSULTING INC., FORMERLY KNOWN AS TRITON
CONSULTING LLC, Appellant
V.
SIMON VANDYK, LAURA VANDYK, TOUCHSTONE DISTRICT
SERVICES, LLC, COLEEN CULPEPPER, MICHAEL WILLETT, AND
CALEP ESTES, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2020-13091
MEMORANDUM OPINION
Appellant Triton Consulting Inc. appeals from the trial court’s order granting
summary judgment in favor of Appellees on its breach of contract claim. In four
issues, Triton argues the trial court erred in granting summary judgment because
(1) the settlement agreement between the parties is an enforceable contract that
may be enforced via a breach of contract action, (2) its claim for breach of contract
is not a collateral attack on a final judgment, (3) it did not waive its right to pursue
a breach of contract action, and (4) it presented evidence on each element of its
claim to preclude summary judgment and Appellees failed to present competent
summary judgment evidence entitling them to summary judgment.
We reverse and remand.
Background
Appellant Triton Consulting Inc. is a communications consulting firm that
“predominantly render[s] services for small government entities” in Texas. Triton
is a consultant to the boards of various municipal and special purpose districts such
as Municipal Utility Districts (“MUDs”), Emergency Services Districts, and
Municipal Management Districts, among others, primarily in Harris, Fort Bend,
Denton, and Collin Counties in Texas. According to its founding member, David
Aitken IV, Triton’s main function “is to help municipal districts develop
communication tools and adopt strategies to improve transparency . . . while
bolstering the[ir] . . . communication with the community.” Triton provides its
clients with advice “in all matters of public outreach and information
dissemination,” including “outreach initiatives, community educational and
awareness programs, online presence development, public relations, crisis
2
management, technology development, strategic advisement, and emergency alert
services.”
At one time, Triton employed five of the six Appellees. Triton hired
Appellee Calep Estes as its Information Technology Director in 2014, requiring
him to sign a non-disclosure agreement. Triton hired Appellee Simon VanDyk
(“Simon”) as an independent contractor in 2016, requiring him to sign both non-
compete and non-disclosure agreements. Appellee Coleen Culpepper was hired as
Triton’s Administrative Director in 2018. And in 2017, Triton hired Appellee
Michael Willett as its Content Manager and Customer Service Representative,
requiring him to sign both non-compete and non-disclosure agreements.
Appellee Laura VanDyk (“Laura”), Simon’s wife, formed and registered
Appellee Touchstone District Services, LLC with the Texas Secretary of State in
June 2018. Touchstone is in direct competition with Triton. In July 2018, Simon,
Willett, Estes, and Culpepper resigned from Triton and began to work for
Touchstone. Triton claims that after their resignations, it “uncovered spoliated
evidence demonstrating [that Appellees had] breached their respective non-
disclosure agreements, duplicated all Triton server data and documents, and
misappropriated [Triton’s] trade secrets and other confidential and proprietary
information.”
3
A. The 2018 Lawsuit
In 2018, Triton sued Appellees Simon, Laura, Willett, Estes, Culpepper, and
Touchstone1 for breach of contract, tortious interference, misappropriation of
confidential information, theft of trade secrets, unfair competition, and civil
conspiracy (“2018 Lawsuit”).2 Triton successfully sought a temporary restraining
order and, subsequently, a temporary injunction that prohibited Appellees from,
among other things, “[s]oliciting business with the clients of [Triton] for the
purposes of establishing or continuing a commercial relationship involving the
provision of services of the same type provided by [Triton]” and “[p]roposing to
enter into business with the clients or prospective clients of [Triton] to provide
services of the same type provided by [Triton] using [Triton’s] confidential and
property information.”
Trial began on June 24, 2019. During a recess on June 25, 2019, the parties
announced they had “reached an agreement for a resolution of the case” and had
1
It is unclear whether Touchstone was an original defendant or added later in
subsequent pleadings.
2
The 2018 Lawsuit is captioned Triton Consulting, LLC v. Simon VanDyk, Laura
VanDyk, Touchstone District Services, LLC, Colleen Culpepper, Michael Willett,
and Calep Estes, No. 2018-46007, in the 189th District Court of Harris County,
Texas.
4
“settled this case.”3 The parties then dictated the terms of their settlement into the
record:
Mr. Rosenberg:4 So there are two components – several
components of the settlement. The first is a
cash payment jointly and severally from all
the defendants to the plaintiffs in the amount
of $200,000, payable as follows: $40,000
within 90 days, and then after that, $160,000
payable monthly within three years. The
approximate monthly amount is 4,444.44.
There’s going to be an agreement – or an
agreement on the part of the defendants
jointly and severally not to solicit any
current clients of Triton, and we will put that
in the formalized settlement agreement.
There will be a held agreed judgment,
meaning that it will not be filed upon the
record of the papers of the cause unless there
is a breach, and the parties will exercise
their remedies for that.
There is a continuing agreement on the part
of the defendants, jointly and severally, not
to use any of plaintiff’s property or
confidential proprietary information to the
extent they have any. And obviously, last is
the Court would retain jurisdiction to
enforce the settlement.
Mr. Martin:5 Two – add two more provisions as well, too.
3
Although the terms of the settlement were confidential and the hearing involving
the settlement was sealed, the transcript was included in the (unsealed) clerk’s
record in the present appeal and both Triton’s and Appellees’ briefs liberally quote
the sealed portion of the reporter’s record from the 2018 Lawsuit.
4
Mr. Rosenberg was trial counsel for Triton.
5
Mr. Martin was trial counsel for Simon, Laura, and Touchstone.
5
So the parties have agreed that the
settlement agreement, the terms, and the
agreed judgment are all to be confidential
and only disclosure will be allowed by the
parties is that the case has been resolved and
the case has been settled.
Another provision is that there will be a non-
disparagement provision amongst the parties
–
Mr. Rosenberg: Mutual.
Ms. Garcia-Martin:6 Mutual.
Mr. Martin: – mutual non-disparagement provision with
the parties.
Mr. Martinez:7 Which – but does allow the parties to tell
whoever is inquiring that the lawsuit has
been resolved.
Mr. Martin: And the last thing is that there will be no
prepayment penalty should the defendants
wish to pay the entire balance of the agreed
settlement beforehand.
...
Mr. Martinez: And the – the injunction not to solicit is
pursuant to certain terms. Can you say this
by a case?
Mr. Rosenberg: Pursuant to Texas law, there’s a case out of
the Fourteenth Court of Appeals called
6
Ms. Garcia-Martin was trial co-counsel for Simon, Laura, and Touchstone.
7
Mr. Martinez was trial counsel for Culpepper, Willett, and Estes.
6
Athens, A-T-H-E-N-S.8 I don’t have the
citation, but the word “solicit” was recently
defined by the Fourteenth Court of Appeals
in that case.
Mr. Martinez: And lastly, the term of the non-solicit is for
one year, starting when?
Mr. Rosenberg: The date of the – would be this morning and
start today.
Mr. Martinez: Make it easier, 365 days, starting – today is
Day 0, and tomorrow is Day 1?
Mr. Rosenberg: Correct.
Mr. Martin: And on the release itself – it will be a full
release of all the defendants of all current
causes of actions and any known or
unknown causes of action.
Mr. Rosenberg: Counterclaims as well.
Mr. Martin: Correctly. [sic]
Mr. Rosenberg: That’s it.
Mr. Martinez: Mutual releases.
Mr. Rosenberg: Yes.
The Court: All right. Does this reach the – is this is the
entire – entirety of the agreement between
the parties?
Mr. Rosenberg: Yes.
8
Presumably, the reference is to In re Athans, 478 S.W.3d 128, 135 (Tex. App.—
Houston [14th Dist.] 2015, orig. proceeding) (defining term “solicit”).
7
Mr. Martin: Well, we will now paper the settlement
agreement, Your Honor.
The Court: Correct, but it’s – it’s on the record. I’m
going to pronounce it – render a judgment
here on the record as dictated so I want to
make sure you dictated all the terms in its
entirety here on the record.
Mr. Martin: Do you want to draft the settlement?
The Court: Because once I do those magic words,
you’re done.
Mr. Martinez: I can – I can draft it.
Mr. Rosenberg: Generally, you’re the one paying, you would
do it, but –
Mr. Martin: That’s fine.
Mr. Rosenberg: – I’m happy to.
Mr. Martin: Either way.
Mr. Rosenberg: Okay. Why don’t you do it, and we’ll take a
shot at –
Mr. Martinez: The parties are in mutual releases for
execution and then dismissal of the case.
Mr. Martin: Defendants will get you a draft within two
weeks.
Mr. Martinez: That’s fine.
Mr. Rosenberg: Two weeks is fine.
8
The Court: Okay. Does this reach the agreement in its
entirety of the settlement between the parties
of all issues in this case?
Mr. Rosenberg: Yes.
Mr. Martin: Yes, Judge.
Mr. Martinez: Yes.
The Court: All right. I’ll ask your clients here that –
You’re here. You all have heard your
attorneys, and you’ve entered into some
discussions herein this morning for a couple
of hours. And I applaud your efforts for
doing that, but I’m going to ask each one of
you if you understand the terms of this
settlement agreement?
Unidentified Party: I do.
Unidentified Party: (Moving head up and down.)
The Court: Yes? I have to hear “Yes” or “No.”
Unidentified Party: I do.
The Court: Okay.
Unidentified Party: Yes.
The Court: Yes?
Unidentified Party: Yes.
The Court: Yes. Okay. And so we’re on the record . . .
So that’s an affirmative response by all, and
I further ask you: Do you have any questions
9
of your counsel here today before the Court
renders a judgment? No? No? No? No?
Unidentified Party: No, Your Honor.
The Court: Do you have any questions of the Court?
Do you fully understand? Do you have any
questions of me before we go? No? No?
No? No? All right.
...
The Court: The last thing I’m going to ask you is if you
consent to and you request the Court to enter
the judgment herein today, as prayed for?
Yes? Yes? Yes? Yes? “Yes,” an
affirmative response by all.
...
The Court: The Court will render a judgment herein, as
dictated by the terms of your settlement
agreement on the record. Ask that you go
forth and prepare the closing documents
accordingly. If there’s nothing further,
congratulations.
...
So when it comes back – if there’s any
question, you come back, look at the record,
I’ve rendered a judgment based on the terms
of your settlement agreement. Case over.
That’s it. Okay? You’re not going to come
back and say, “Well, didn’t do it.”
10
A final judgment was later entered, and the lawsuit was dismissed.9 It is
undisputed that the parties did not later reduce their settlement agreement to
writing.
According to Triton, within weeks of the parties’ settlement agreement,
Appellees began disparaging Triton and soliciting its customers. And in “clear
awareness that their actions were in breach of the settlement contract,” Appellees
presented to “Triton proposed agreement papers which attempted to carve out
exceptions to the parties’ June 25, 2019, settlement contract,” which Triton
rejected because according to Triton, they were “new terms” inconsistent with the
parties’ settlement agreement. As of June 2020, Appellees also had not made any
of the payments contemplated under the settlement agreement.
B. The Present Lawsuit
In February 2020, Triton filed the present lawsuit against Appellees
asserting claims for breach of contract, tortious interference, misappropriation of
confidential information and trade secrets, unfair competition, and civil conspiracy.
Triton premised its contract claims on purported violations of the non-competition
and non-solicitation agreements signed by Appellees Simon, Willet, and Estes and,
separately, on Appellees’ breach of the settlement agreement “made at the
conclusion of the first trial.” By the time Triton filed its second amended petition
9
The judgment from the 2018 Lawsuit is not in the appellate record.
11
in October 2021, its only remaining claims were its claim for breach of the parties’
June 25, 2019 settlement agreement and a claim for contempt of court.10 Triton
alleged that Appellees had breached the settlement agreement “by failing to pay
any of the judgment, by failing to make payments in accordance with the payment
schedule, by using Triton’s confidential proprietary information, by disparaging
Triton, and by soliciting Triton’s customers.”
On October 29, 2021, Simon, Laura, and Touchstone (collectively, “VanDyk
Appellees”) filed a traditional and no-evidence motion for summary judgment,
which Culpepper, Willett, and Estes (collectively, “CWE Appellees”) joined on
November 1, 2021 (collectively, “Summary Judgment Motion”).11
In support of their no-evidence Summary Judgment Motion, Appellees
alleged that Triton had no evidence to support the elements of its breach of
contract claim. And in support of their traditional Summary Judgment Motion,
Appellees argued they were entitled to summary judgment on Triton’s breach of
contract claim because (1) no enforceable contract existed between the parties and
(2) Triton’s remedy was limited to an action to enforce the final judgment rendered
in the 2018 Lawsuit. According to Appellees, Triton could not establish the
10
The breach of contract claim is the only claim before this Court.
11
The CWE Appellees did not assert additional arguments in their joinder. They
instead joined the arguments made in the Summary Judgment Motion filed by the
VanDyk Appellees.
12
existence of an enforceable contract because the parties never reduced their
settlement agreement to writing and the “contract” Triton was seeking to enforce
was “actually a final judgment.” Thus, Appellees argued, Triton’s remedy was
limited “to an action to enforce the judgment.”
In response to the Summary Judgment Motion, Triton argued that two
distinct events had taken place on June 25, 2019: (1) the parties entered into a
settlement agreement that was dictated on the record, and (2) the trial court entered
final judgment based on the terms of the parties’ settlement agreement, and there
was nothing inconsistent about these two events. Triton argued that the failure to
reduce the parties’ agreement to writing did not render the parties’ agreement
unenforceable because the essential terms of the parties’ settlement agreement
were read into the record. To the extent Appellees argued Triton had breached the
settlement agreement by failing to execute a written agreement, Triton argued there
was no evidence Appellees had presented Triton “with a settlement agreement
consistent with those terms prior to the filing” of its action to enforce the
agreement. Triton also argued that Appellees’ payment of the settlement funds
after June 2020 corroborated the terms and existence of the settlement agreement.
And it argued that its only obligation under the agreement was to release its claims
against Appellees which “was accomplished by the Final Judgment” entered in the
2018 Lawsuit. Triton last argued that Appellees had breached the settlement
13
agreement contract by soliciting Triton’s clients, failing to make settlement
payments,12 disparaging Triton, and using Triton’s marketing materials to create
“confusion in the industry among clients.” Appellees did not file a reply in support
of their Summary Judgment Motion.
On December 7, 2021, the trial court granted the VanDyk Appellees’
Summary Judgment Motion dismissing Triton’s “claims and causes of actions
against the VanDyk Defendants . . . with prejudice.” And on December 9, 2021,
the trial court granted summary judgment in favor of the CWE Appellees based on
their joinder to the VanDyk Appellees’ Summary Judgment Motion dismissing
Triton’s “claims and causes of action asserted in th[e] lawsuit against” the CWE
Appellees with prejudice.13 The trial court did not specify the grounds for its
rulings.
Triton filed a Motion for Reconsideration and Motion for New Trial, which
12
Appellees assert they were up to date on all payments identified in the Final
Judgment by the time the Summary Judgment Motion was ruled upon.
13
Separate from their joinder to the VanDyk Appellees’ motion for summary
judgment, the CWE Appellees previously filed a traditional and no evidence
motion for summary judgment, which the trial court heard on October 4, 2021.
The record does not reflect that the trial court separately ruled on that motion, and
the trial court’s December 9, 2021 order granting the CWE Appellees’ joinder
does not dispose of their separately filed motion for summary judgment. The
CWE Appellees’ motion for summary judgment was filed on May 20, 2021, and
the arguments raised therein are thus not before us.
14
the trial court denied. This appeal ensued.14
On appeal, Triton argues the trial court erred in granting Appellees’
Summary Judgment Motion because it raised a genuine issue of material fact as to
each of element of its breach of contract claim, and Appellees are not entitled to
summary judgment as a matter of law.
Standard of Review and Applicable Law
We review a trial court’s ruling on a motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a
party moves for both traditional and no-evidence summary judgment, we first
review the trial court’s ruling under the no-evidence standard of review. Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the trial court
properly granted the no-evidence motion, we need not analyze the arguments
raised in the traditional summary judgment motion. Id.A party may move for a no-evidence summary judgment after an adequate
time for discovery has passed, asserting that no evidence exists to support one or
more essential elements of a claim on which the adverse party has the burden of
14
Although Triton states in its notice of appeal that it appeals from the trial court’s
Summary Judgment order and “from any other adverse rulings from the trial court,
including the overruling of its motion for new trial,” Triton’s appellate brief does
not address its Motion for Reconsideration or Motion for New Trial. We thus do
not address those motions in our opinion. See Jonson v. Duong, 642 S.W.3d 189,
194 (Tex. App.—El Paso 2021, no pet.) (“[W]hen an appellant does not
adequately brief an issue on appeal in accordance with [Texas] Rule [of Appellate
Procedure] 38.1, any error that may have occurred in the trial court is waived.”).
15
proof at trial. TEX. R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688
(Tex. 2006); Walker v. Eubanks, 667 S.W.3d 402, 406 (Tex. App.—Houston [1st
Dist.] 2022, no pet.). A no-evidence summary judgment must be denied if the
nonmovant brings forth more than a scintilla of evidence raising a genuine issue of
material fact. Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex.
2003). More than a scintilla of evidence exists if the evidence “would allow
reasonable and fair-minded people to differ in their conclusions.” Id. “Less than a
scintilla of evidence exists when the evidence is so weak as to do no more than
create a mere surmise or suspicion of a fact.” Id. (quoting King Ranch v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (internal quotation omitted)).
In reviewing a no-evidence summary judgment, we review the evidence “in
the light most favorable to the party against whom summary judgment was
rendered, crediting evidence favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.” Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005)). “To challenge on appeal each possible ground
advanced in support of the no-evidence summary judgment, an appellant must cite
the specific evidence in the record he relied upon to defeat the motion and he must
describe why that evidence raised a fact issue.” Walker, 667 S.W.3d at 407 (citing
Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San Antonio
16
2003, no pet.) (“An appellant has a duty to show that the record supports her
contentions.”); Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 868 (Tex.
App.—Houston [1st Dist.] 1999) (noting “general” assertions of existence of
“genuine issues of material fact” are inadequate), aff’d, 73 S.W.3d 193 (Tex.
2002)).
In reviewing a ruling on a traditional motion for summary judgment, “we
take as true all evidence favorable to the nonmovant, and we indulge in every
reasonable inference and resolve any doubts in the nonmovant’s favor.” Walker,
667 S.W.3d at 407 (citing Valence Operating, 164 S.W.3d at 661). To prevail on a
traditional summary judgment motion, the movant must establish both that no
genuine issues of material fact exist and that it is entitled to judgment as a matter
of law. TEX. R. CIV. P. 166a(c). If the movant establishes it is entitled to summary
judgment, the burden shifts to the non-movant to raise a genuine issue of material
fact to defeat the summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d
195, 197 (Tex. 1995). The defendant who moves for traditional summary
judgment has the burden to “conclusively negate” at least one essential element of
the plaintiff’s cause of action. Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d
374, 381 (Tex. 2004). Under the traditional rule, courts “never shift the burden of
proof to the non-movant unless and until the movant has establish[ed] his
entitlement to a summary judgment . . . by conclusively proving all essential
17
elements of his cause of action or defense as a matter of law.” Draughon v.
Johnson, 631 S.W.3d 81, 87–88 (Tex. 2021) (quoting Casso v. Brand, 776 S.W.2d
551, 556 (Tex. 1989) (internal quotation omitted)).
When, as here, a trial court grants a motion for summary judgment without
specifying the grounds for granting the motion, we must uphold the trial court’s
judgment if any of the grounds advanced in the motion are meritorious.
Roadmasters Transp. Co., LLC v. Saens, No. 01-16-00813-CV, 2018 WL 650291,
at *2 (Tex. App.—Houston [1st Dist.] Feb. 1, 2018, no pet.) (mem. op.) (citing
Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st
Dist.] 2005, pet. denied)). If the movant urges multiple grounds for summary
judgment and the order does not identify the ground on which the trial court relied
in granting summary judgment, the appellant must negate all grounds on appeal.
McCoy v. Rogers, 240 S.W.3d 267, 271 (Tex. App.–Houston [1st Dist.] 2007, pet.
denied).
Discussion
To prevail on a breach of contract claim, a plaintiff must establish that (1) a
valid contract exists, (2) it performed or tendered performance as the contract
required, (3) the defendant breached the contract by failing to perform or tender
performance as the contract required, and (4) it suffered damages as a result of the
18
breach. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 502 n.21 (Tex.
2018).
A. No-Evidence Summary Judgment
In their no-evidence Summary Judgment Motion, Appellees identified the
elements of a breach of contract claim and argued that Triton “lack[ed] any
competent summary judgment evidence as [to] any of the elements[.]” In
response, Triton argued that the terms of the settlement agreement in the 2018
Lawsuit
were fully dictated on the record and reduced to writing via
transcription by the official Court reporter for the 189th Judicial
District Court. The Defendants’ agreement to comply with the terms
(i.e., their “signature”) was also transcribed. The Defendants do not
challenge the accuracy of reliability of the official court record.
Triton further argued it had performed its obligations under the settlement
agreement—the parties’ contract—and that it had presented evidence raising a
genuine issue of material facts as to each of the remaining elements of its claim
because it presented evidence it performed under the contract, Appellees breached
the contract, and Triton had suffered damages as a result. We analyze each
element of Triton’s breach of contract claim below.
1. Existence of Contract
The elements of a contract are (1) an offer, (2) acceptance, (3) a meeting of
the minds, (4) each party’s consent to the terms, and (5) execution and delivery of
19
the contract with the intent that it be mutual and binding. Innovative Vision Sols.,
LLC v. Kempner, No. 01-20-00195-CV, 2022 WL 868130, at *10 (Tex. App.—
Houston [1st Dist.] Mar. 24, 2022, no pet.) (mem. op.) (citing Savoy v. Nat’l
Collegiate Student Loan Tr. 2005-3, 557 S.W.3d 825, 835 (Tex. App.—Houston
[1st Dist.] 2018, no pet.). To determine whether the parties had a meeting of the
minds, we utilize an objective standard. Id. We consider the meaning reasonably
conveyed by what the parties said and did, not their subjective state of mind. Id.A contract must be “sufficiently definite to confirm that both parties actually
intended to be contractually bound.” Id. (quoting Fischer v. CTMI, L.L.C., 479
S.W.3d 231, 237 (Tex. 2016)).
In their Summary Judgment Motion, Appellees argued that there was no
contract and thus no evidence to support an essential element of Triton’s breach of
contract claim because the parties never executed a written settlement agreement.15
15
Appellees argue in their appellate brief that their summary judgment evidence
“conclusively negated the elements of Appellant’s breach of contract claim by
applying well established law to the evidence.” They argue that Triton “could not
show a fully executed contract existed, failed to tender performance, committed a
prior material breach, failed to deliver the promised consideration, and in fact, no
breach had been committed by Appellees even if a contract existed.” But, with the
exception of their argument that no contract existed because a settlement
agreement was never signed, Appellees did not raise these additional affirmative
defenses or arguments in their Summary Judgment Motion. We thus decline to
consider them on appeal. See Dyegard Land P’ship v. Hoover, 39 S.W.3d 300,
306 (Tex. App.—Fort Worth 2001, no pet.) (“Simply stated, a summary judgment
cannot be affirmed on grounds never presented to the trial court by the motion.”);
see also Jourdan v. Jacobs, No. 04-17-00487-CV, 2018 WL 3634990, at *4 (Tex.
App.—San Antonio Aug. 1, 2018, no pet.) (mem. op.) (“To properly preserve an
20
Triton responded that the settlement agreement the parties read into the record
constituted a valid Rule 11 agreement, which is construed like any other contract.
See TEX. R. CIV. P. 11 (“Unless 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
affirmative defense for purposes of appeal of a summary judgment, a defendant
must expressly present that affirmative defense to the trial court in the summary
judgment proceeding . . . and adduce proof supporting that defense.) (citing TPS
Freight Distribs., Inc. v. Tex. Commerce Bank, 788 S.W.2d 456, 459 (Tex. App.—
Fort Worth 1990, writ denied)). For the same reason, we decline to address
Appellees’ additional arguments concerning the statute of frauds, payment in full,
and full compliance none of which Appellees raised in their Summary Judgment
Motion. While some of those grounds were argued in the CWE Appellants’
motion for summary judgment separately filed on May 20, 2021, the trial court did
not rule on that motion for summary judgment, and thus that motion and the
arguments raised therein are not before us on appeal. See Dyegard, 39 S.W.3d at
306; Jourdan, 2018 WL 3634990, at *4. In the absence of a record demonstrating
that these additional affirmative defenses were presented to the trial court in the
summary judgment proceeding giving rise to this appeal, we may not consider
them. See Stiles v. Resolution Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[A]
summary judgment cannot be affirmed on grounds not expressly set out in the
motion or response.”). We thus grant Triton’s Motion to Strike, which requests
that we strike the portions of Appellees’ brief addressing grounds not raised in
their Summary Judgment Motion. We hereby strike those portions of Appellees’
brief that argue Appellees were entitled to summary judgment on the basis of the
affirmative defenses of failure to tender performance, prior material breach, failure
of consideration, payment in full, full compliance, and statute of frauds set forth in
pages 32-42 and pages 56-62. We also strike those portions of Appellees’
Statement of Facts that rely on exhibits not attached to Appellees’ Summary
Judgment Motion, and we grant Triton’s Motion to Strike Appellees’ Appendix,
which attached documents not considered by the trial court in the summary
judgment proceeding at issue. The appendix comprised two documents, neither of
which was attached to the Summary Judgment Motion or Triton’s response. See
Dashtgoli v. Eye Care of Austin, P.A., No. 03–06–00744–CV, 2008 WL 2852286,
at *10 (Tex. App.—Austin July 23, 2008, no pet.) (mem. op.) (“We cannot
consider documents attached to briefs that were not before the trial court and are
not part of the [summary judgment] record.”).
21
made in open court and entered of record.”); Harrison v. Freehill, No. 03-21-
00249-CV, 2022 WL 12069261, at *4 (Tex. App.—Austin Oct. 21, 2022, no pet.)
(mem. op.) (observing Rule 11 agreements are construed like other contracts);
Innovative, 2022 WL 868130 at *6 (“Courts construe Rule 11 settlement
agreements just as they would any contract.”).
In its brief, Triton argues that each term of the settlement agreement was
dictated into the record by the parties and that the agreement was understood and
agreed to on the record by everyone involved. It further argues that it complied
with its obligations under the contract because the 2018 Lawsuit was dismissed,
and Appellees were released from the claims advanced in the suit. Triton last
argues that the failure to reduce the settlement agreement to writing is
inconsequential because the material terms of the agreement were dictated into the
record and an “agreement to prepare formal settlement documents in the future
does not render an oral settlement contract dictated on the record unenforceable.”
As Triton asserts, the terms of the parties’ settlement agreement were
dictated by the parties into the record in the 2018 Lawsuit. The transcript from the
settlement hearing in the 2018 Lawsuit, which Triton attached to its response to
Appellees’ Summary Judgment Motion, reflects the following settlement terms:
(1) a cash payment jointly and severally from all Appellees to Triton in the amount
of $200,000, with $40,000 to be paid within 90 days, and the rest within three
22
years with an approximate monthly payment of $4,444.44, (2) an agreement on the
part of Appellees not to solicit any current clients of Triton for one year, (3) a held
agreed judgment, meaning the agreement would not be filed upon the record of the
papers of the cause unless there was a breach, and the parties would exercise their
remedies for that, (4) a continuing agreement on the part of Appellees not to use
any of Triton’s property or confidential proprietary information, (5) an agreement
to keep the settlement agreement, its terms, and the agreed judgment confidential,
(6) a mutual non-disparagement agreement, and (7) Triton’s full release of
Appellees from “all current causes of actions and any known or unknown causes of
action” and counterclaims. The parties agreed that the non-solicitation agreement
was to begin on June 25, 2019, with a duration of one year, and that the term
“solicit” would be defined consistent with the definition of solicit as “a case out of
the Fourteenth Court of Appeals, called Athens.”
Appellees do not dispute that the terms of the parties’ settlement agreement
were dictated into the record. Rather, they argue that the agreement dictated into
the record is not binding because the parties never executed a formal written
settlement agreement. But even when parties to a settlement agreement
contemplate reducing their agreement to a formal writing, the eventual failure to do
so does not by itself render a settlement agreement unenforceable. In deciding the
character of an agreement, we determine “whether the parties intended for the
23
contemplated formal writing to be a condition precedent to the formation of a
contract, or merely a memorial of an already enforceable contract.” Border
Gateway, L.L.C. v. Gomez, No. 14-10-01266-CV, 2011 WL 4361485, at *3 (Tex.
App.—Houston [14th Dist.] Sept. 20, 2011, no pet.) (mem. op). “Normally, the
intention of the parties is a question of fact, but where that intent is clear and
unambiguous on the face of the agreement, it may be decided as a matter of law.”
Id.A “condition precedent to contract formation is ‘clearly’ evidenced where an
agreement unequivocally provides that a party does not intend to be bound until the
execution of a final contract.” Id. In other cases, “an intent not to be bound may
be shown as a matter of law where an agreement expressly provides that its terms
are ‘non-binding’ until the satisfaction of some other event.” Id. Appellees argue
that execution of a written settlement agreement was a condition precedent to the
formation of a contract and that the summary judgment evidence conclusively
established that Triton failed to meet this condition. We disagree.
When asked by the trial court if the parties’ recitation of their settlement
agreement into the record reflected the “entirety of the settlement between the
parties of all issues,” all parties responded, “Yes.” Counsel for the VanDyk
Appellees stated, “Well, we will now paper the settlement agreement, Your
Honor,” and the trial court responded, “Correct, but its . . . on the record. I’m
24
going to pronounce it . . . render a judgment here on the record as dictated so I
want to make sure you dictated all the terms in its entirety here on the record.” In
response, the parties again confirmed to the trial court that their dictation reflected
the entirety of the settlement agreement between the parties, and they further
confirmed their agreement to have the trial court enter judgment consistent with
their agreement. Pursuant to the parties’ agreement, the trial court rendered
judgment, and the 2018 Lawsuit ultimately was dismissed. There is nothing in the
record suggesting that the parties intended not to be bound until execution of a
final written contract, nor did Appellees produce evidence of such an intent. See
id. (rejecting appellants’ argument that mediation agreement was not enforceable
because parties had not executed formal settlement agreement, and holding terms
of mediation agreement were binding); see also Gen. Metal Fabricating Corp. v.
Stergiou, 438 S.W.3d 737, 747 (Tex. App.—Houston [1st Dist. 2014], no pet.)
(holding that settlement agreement announced in court was enforceable even
though parties contemplated that additional documents would have to be executed
because particular terms of additional documents were not essential).
The decision in Cantu v. Mercy Health Center is instructive. No. 04-06-
00010-CV, 2006 WL 3085703 (Tex. App.—San Antonio Nov. 1, 2006, no pet.)
(mem. op.). In Cantu, the parties announced settlement on the day of trial, and
they dictated the terms of their agreement into the record:
25
Appellee’s attorney: Your honor, we have agreed to accept
$5,200 as complete and final payment
settlement of all accounts due and owing by
Dr. Cantu to Mercy Health Center. We have
agreed, Your Honor, to leave the case
pending. We have given him six months to
pay that amount. As soon as the amount is
paid in full, whether it be before then or
within six months, we will be filing a
nonsuit and dismissal with the Court. We’ve
also agreed that upon complete payment
Mercy Health Center will notify any of the
credit companies that have been notified of
these debts that they have been settled in
full.
Appellant’s attorney: . . . the terms of the settlement agreement
will be . . . reduced to writing and put in a
compromising settlement agreement.
Appellee’s attorney: . . . [the] agreement will be held by the
parties only and will not be filed with the
Court unless we get to the point where
payment isn’t made and six months have
passed.
Id. at *1. On appeal, the appellant argued that the settlement agreement the parties
read into the record was not enforceable because it had not been reduced to writing
and because it did not “state the consequences of his failure to pay in accordance
with the terms of the agreement,” among other things. Id. at *2. The court of
appeals disagreed, noting that the settlement agreement “contained all the material
terms of the agreement.” The appellant
agreed to pay $5,200 to appellee within six months; appellee agreed to
accept $5,200 as complete and final settlement of all accounts due and
26
owing by appellant; the suit would remain pending, to be dismissed
upon full payment; and, upon full payment, appellee agreed to notify
the appropriate credit companies that the debt had been settled in full.
Id. The court held there was “no indication on the record that the parties
contemplated that their agreement would not be binding until it was reduced to
writing.” Id.
Our recent opinion in Innovative Vision Solutions, LLC v. Kempner, No. 01-
20-00195-CV, 2022 WL 868130 (Tex. App.—Houston [1st Dist.] Mar. 24, 2022,
no pet.) (mem. op.) is likewise illustrative. Innovative concerned the construction
and enforceability of an oral Rule 11 settlement agreement read into the trial
court’s record. The parties disagreed about the interpretation of the agreement,
resulting in a bench trial. Id. at *4. Following the bench trial, the court concluded
that the parties had entered into an enforceable settlement agreement and this Court
agreed, holding that “[w]hen [the parties] read their Rule 11 Settlement Agreement
into the record, the parties indicated that they all understood the terms and agreed.
The fact that the parties intended to reduce the agreement to a formal written
settlement agreement does not prohibit the formation of a binding agreement—
agreements to enter into future contracts are enforceable if they contain all material
terms.” Id. at *10 (citing McCalla v. Baker’s Campground, Inc., 416 S.W.3d 416,
418 (Tex. 2013)). We observed that there may be a binding settlement “when
27
parties agree upon some terms, understanding them to be an agreement, and leave
other terms to be made later.” Id. (citing Stergiou, 438 S.W.3d at 744).
Similarly in the present case, the parties confirmed to the trial court that they
had dictated “all the terms” of their settlement agreement on the record and that the
settlement agreement read into the record was the “entirety of the agreement
between the parties.” In addition, they agreed that the non-solicitation terms of the
settlement agreement were to begin immediately:
Mr. Martinez: And lastly, the term of the non-solicit is for
one year, starting when?
Mr. Rosenberg: The date of the – would be this morning and
start today.
Mr. Martinez: Make it easier, 365 days, starting – today is
Day 0, and tomorrow is Day 1?
Mr. Rosenberg: Correct.
And they agreed that the term “solicit” would have the meaning ascribed to that
term in the “Fourteenth Court of Appeals, called Athens.”16 Appellants did not
16
Appellees do not specifically argue that the lack of definition of “solicit” was a
material term that was omitted from the agreement. Rather, they argue that for
months, the parties “focused their commentary and efforts on providing clear,
enforceable language to define the meaning and scope of ‘solicitation’ pursuant to
the In re Athens” as agreed, but that no “clear, enforceable definition of what
constituted a ‘non-solicitation pursuant to the In re Athens case’ was ever agreed
to” and thus “it was never memorialized in writing or incorporated into a
Settlement Agreement.” In support, Appellees point to emails between the parties
concerning this matter. Appellees, however, did not make this argument in their
Summary Judgment Motion nor did they attach to their motion the emails they
now reference in their brief. We therefore do not consider the argument or the
28
produce any evidence that the parties intended not to be bound nor did they
establish as a matter of law that the parties’ dictated agreement manifested an
intent not to be bound or that execution of a settlement agreement was a condition
precedent to their agreement.17
Appellants argue that execution of a written agreement was “one of the
central terms in the judgment.” Essential terms are those terms “that the parties
‘would reasonably regard as vitally important elements of their bargain.’”
Stergiou, 438 S.W.3d at 744 (quoting Potcinske v. McDonald Prop. Invs., Ltd., 245
S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). “Where an
essential term is open for future negotiation, there is no binding contract.” T.O.
referenced emails in our analysis. TEX. R. APP. P. 33.1; see also Rise Above Steel
Co., LLC. v. Liberty Mut. Ins. Co., 656 S.W.3d 577, 586 (Tex. App.—El Paso
2022, no pet.) (stating argument not made in summary judgment motion may not
be raised for first time on appeal).
17
Although no particular words are necessary for the existence of a condition
precedent, “such terms as ‘if’, ‘provided that’, ‘on condition that’, or some other
phrase that conditions performance, usually connote an intent for a condition
[precedent] rather than a promise.” See Hohenberg Bros. Co. v. George E.
Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976). The absence of conditional
language is “probative of the parties[’] intention that a promise be made, rather
than a condition be imposed.” Criswell v. European Crossroads Shopping Ctr.,
Ltd., 792 S.W.2d 945, 948 (Tex. 1990). “‘Because of their harshness in operation,
conditions are not favorites of the law.’” Hohenberg Bros., 537 S.W.2d at 3
(quoting Sirtex Oil Indus., Inc. v. Erigan, 403 S.W.2d 784 (Tex. 1966)). The
transcript of the settlement conference from the 2018 Lawsuit does not reflect any
verbiage that conditions Appellees’ performance on Appellant’s execution of a
written settlement agreement.
29
Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).18
Whether a Rule 11 settlement agreement fails for lack of an essential term 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.” Stergiou, 438 S.W.3d at 744 (quoting Ronin v. Lerner, 7 S.W.3d 883,
888 (Tex. App.—Houston [1st Dist.] 1999, no pet.)).
Appellees argue that a “material term of the June 25, 2019 settlement was
that the parties execute” a settlement agreement and mutual release “to effectuate
the settlement terms dictated to the Court on June 25, 2019, and for their mutual
benefit.” In support, they cite to the settlement conference transcript where the
parties indicated on the record that the parties would “now paper the settlement
agreement,” and other portions where the parties alluded to the fact they would put
their agreement in writing, including the statement that the non-solicitation
agreement would be “put” in a “formalized settlement agreement” and that there
18
See Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 744 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (“When an agreement leaves essential (or
material) matters open for future negotiation and those negotiations are
unsuccessful . . . the agreement ‘is not binding upon the parties and merely
constitutes an agreement to agree.’”) (quoting Fort Worth Indep. Sch. Dist. v. City
of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000)); see also Fischer v. CTMI,
L.L.C., 479 S.W.3d 231, 237 (Tex. 2016) (“It is well settled law that when an
agreement leaves material matters open for future adjustment and agreement that
never occur, it is not binding upon the parties and merely constitutes an agreement
to agree.”) (citation omitted).
30
would “be a full release of all the defendants of all current causes of actions and
any known or unknown causes of action.”
Even taking these statements into consideration, there is nothing in the
record that suggests the parties regarded the execution of a settlement agreement as
an essential term or that their settlement was contingent on the execution of a
written agreement. See Martin v. Black, 909 S.W.2d 192, 196 (Tex. App.—
Houston [14th Dist.] 1995, writ denied) (“The question is the intention of the
parties.”); Herring v. Heron Lakes Estates Owners Ass’n, Inc., No. 14–09–00772–
CV, 2011 WL 2739517, at *2 (Tex. App.—Houston [14th Dist.] Jan. 4, 2011, no
pet.) (mem. op.) (observing that in determining enforceability of settlement
agreement when future documents were to be prepared, “[t]he key question is
whether the parties intended for a formal document to be executed as a condition
precedent to being bound by contract”). Even if the parties desired to further flesh
out their agreement, as this Court has explained, “that parties may provide more
definite terms in a later agreement does not answer the question whether the initial
agreement addresses all the material terms in a sufficiently definite manner to bind
the parties.” Jetall Companies, Inc. v. Jefferson Smith, L.L.C., No. 01-20-00461-
CV, 2022 WL 2347922, at *10 (Tex. App.—Houston [1st Dist.] June 30, 2022,
pet. denied) (mem. op.).
31
Here, the essential terms of the parties’ settlement agreement were dictated
into the record, and counsel for the parties agreed on the record that their recitation
comprised “the entirety of the settlement between the parties of all issues in this
case.” To confirm the parties understood the terms of their agreement, the trial
court spoke directly to the parties:
The Court: All right. I’ll ask your clients here that –
You’re here. You all have heard your
attorneys, and you’ve entered into some
discussions herein this morning for a couple
of hours. And I applaud your efforts for
doing that, but I’m going to ask each one of
you if you understand the terms of this
settlement agreement?
Unidentified Party: I do.
Unidentified Party: (Moving head up and down.)
The Court: Yes? I have to hear “Yes” or “No.”
Unidentified Party: I do.
The Court: Okay.
Unidentified Party: Yes.
The Court: Yes?
Unidentified Party: Yes.
The Court: Yes. Okay. And so we’re on the record . . .
So that’s an affirmative response by all, and
I further ask you: Do you have any questions
32
of your counsel here today before the Court
renders a judgment? No? No? No? No?
Unidentified Party: No, Your Honor.
The Court: Do you have any questions of the Court?
Do you fully understand? Do you have any
questions of me before we go? No? No?
No? No? All right.
...
The Court: The last thing I’m going to ask you is if you
consent to and you request the Court to enter
the judgment herein today, as prayed for?
Yes? Yes? Yes? Yes? “Yes,” an
affirmative response by all.
...
The Court: The Court will render a judgment herein, as
dictated by the terms of your settlement
agreement on the record. Ask that you go
forth and prepare the closing documents
accordingly. If there’s nothing further,
congratulations.
During the settlement conference, the parties did not indicate they intended for a
formal agreement to be executed as a condition to being bound by the terms of
their settlement agreement. Nor did Appellees produce any evidence in support of
their argument that that was the parties’ intent. Appellants thus did not establish as
a matter of law that the settlement agreement read into the record manifested an
intent not to be bound.
33
2. Performance, Breach, and Damages
In their Summary Judgment Motion, Appellees also argued that Triton had
no evidence to support the elements of performance, breach, or causation to
support its breach of contract claim. They argued without more, that “[Triton]
lack[ed] any competent summary judgment evidence as to any of the elements
above. Accordingly, the cause of action for breach of contract should be
dismissed.”
In response to Appellees’ Summary Judgment Motion, Triton attached to its
response the transcript of the June 25, 2019 settlement read into the trial court’s
record, a July 31, 2021 email exchange between counsel regarding a docket control
order;19 the Agenda of the Pine Village Public Utility District’s July 10, 2019
board of directors meeting; the declaration of David Aitken, Triton’s founding
member and Chief Executive Officer; documents purportedly produced in
discovery by the VanDyk Appellees; and the declaration of Shannon Waugh,
owner of a website design company that “often competes with Triton Consulting
Services, LLC and Touchstone District Services, LLC.” Appellees did not file a
reply or present any evidence in support of their Summary Judgment Motion.
19
This exhibit was attached to support Triton’s argument that the Summary
Judgment Motion was untimely, an argument not raised on appeal.
34
There is also no indication in the record that Appellees objected to any of the
evidence attached to Triton’s response.20
a. Performance
Triton argues it “presented evidence that it completely performed its portion
of the agreement, and that [Appellees] received the benefit of their bargain”
because in “exchange for [Appellees’] promises, Triton agreed to the entry of final
judgment dismissing its case.” Triton agreed on the record during the settlement
hearing to “a full release of all the defendants of all current causes of actions and
any known or unknown causes of action” and Appellees agreed to release all
counterclaims. Triton argued in its Summary Judgment Response that its
only obligation under the contract was to release its claims against
[Appellees] (which was accomplished by the Final Judgment). To the
extent [Appellees] argue [Triton] failed to execute a written settlement
agreement prior to [Appellees’] breach, there is simply no evidence to
support this fact. [Appellees’] counsel agreed to prepare a settlement
agreement consistent with the terms dictated on the record. There is
no evidence [Appellees] presented [Triton] with a settlement
agreement consistent with those terms prior to the filing of this second
lawsuit so as to trigger any performance obligation by [Triton].
Appellees do not dispute that the 2018 Lawsuit was dismissed or that they
were released from the claims asserted in the lawsuit. Nor did Appellees submit
any evidence in support of their Summary Judgment Motion or in response to
20
Appellees objected to a previous declaration of David Aitken when it was
submitted in response to a separate summary judgment motion filed by the CWE
Appellees, which is not before us on appeal. The trial court ruled on the objection
but apparently not on CWE’s summary judgment motion.
35
Triton’s response or evidence. Triton thus presented more than a scintilla of
evidence in support of the performance element of its breach of contract claim. See
Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 490 (Tex. App.—Beaumont
2004, pet. denied) (noting non-movant defeats no-evidence summary judgment
motion “by producing more than a scintilla of probative evidence raising a genuine
issue of material fact” on each element of challenged claim).
b. Breach
We equally find that Triton satisfied its no-evidence evidentiary burden with
respect to the breach element of its claim. Triton proffered evidence concerning
Appellees’ alleged violation of their non-disparagement and non-solicitation
obligations. Waugh, the owner of Off Cinco, a website design company that
“often competes” with Triton and Touchstone, stated in her unsworn declaration21
that Simon “disparage[d]” Triton in front of her and one other person 22 on August
20, 2019 during a meeting called to allow Off Cinco, Triton, and Touchstone to
21
Unsworn declarations are competent summary judgment evidence if they satisfy
the rules set forth in Section 132.001 of the Civil Practice and Remedies Code.
Chagoya v. Vilchis, No. 01-22-00864-CV, 2024 WL 3417049, at *4 (Tex. App.—
Houston [1st Dist.] July 16, 2024, no pet. h.) (mem. op.). Section 132.001
requires the unsworn declarations be written and subscribed as true under penalty
of perjury. Waugh’s unsworn declaration satisfied these requirements. TEX. CIV.
PRAC. & REM. CODE § 132.001(c).
22
According to Waugh’s declaration, the other person in the room was the spouse of
the owner of Tax Techy, “a Tax Assessor Collector in the industry.”
36
present a proposal to the board of directors for a website redesign. 23 According to
Waugh, Simon told her that Triton had shown up to board meetings uninvited,
pitched Triton’s services at inappropriate times, and was “unprofessional.” He also
talked in front of Waugh “about Triton’s business practices and how he disagreed
with the way they went about their business[.]” In addition, in his sworn
declaration, Aitken identified three entities Touchstone purportedly solicited within
a year of the parties’ agreed judgment in violation of the parties’ agreement: Fort
Bend County Levee Improvement District (“LID”) 7, Fort Bend County MUD 41,
and Pine Village Public Utility District, all of which he claimed were Triton
customers on June 25, 2019, when the agreed judgment was entered.
In their brief, Appellees argue that this evidence is insufficient because
Touchstone did not solicit Fort Bend County LID 7 until after the district
terminated Triton, Appellees provided different services to Fort Bend County
MUD 41 for which Triton was not invited to bid, and Appellees never sent a
proposal to Pine Village Public Utility District. Appellees, however, never made
23
Appellees argue in their brief that they objected to Waugh’s declaration because it
was not produced in discovery. This argument was not before the trial court
during the summary judgment proceeding, as it was only raised in response to
Triton’s motion for reconsideration. See Robinson v. Tex. Timberjack, Inc., 175
S.W.3d 528, 530 (Tex. App.—Texarkana 2005, no pet.) (“Summary judgment
cannot be affirmed on grounds raised for the first time in a response to a motion
for new trial.”). In addition, the summary judgment rules do not require that
declarations or affidavits proffered in support of or in response to a summary
judgment motion be produced in discovery prior to their use in summary judgment
proceedings.
37
those arguments to the trial court in support of the Summary Judgment Motion nor
did they attach to their motion the various emails and documents they now cite as
evidence in their brief. We may therefore not consider their argument or the
referenced evidence. See Dyegard Land P’ship v. Hoover, 39 S.W.3d 300, 306
(Tex. App.—Fort Worth 2001, no pet.) (“A motion for summary judgment must
stand or fall on the grounds expressly presented in the motion. . . . Simply stated, a
summary judgment cannot be affirmed on grounds never presented to the trial
court by the motion.”) (citations omitted).
And even if we could consider their argument or the evidence, they would at
most create a fact issue on the element of breach precluding summary judgment.
We thus hold that Triton presented more than a scintilla of evidence on the breach
element of its cause of action precluding summary judgment. See Entergy Gulf
States, 143 S.W.3d at 490 (stating no-evidence summary judgment is improper if
non-movant presents more than scintilla of evidence on each element of challenged
claim).
c. Damages
In response to Appellees’ Summary Judgment Motion, Triton argued it had
been damaged “in the amount of lost revenue and business opportunities.” It
argued it lost two clients—Fort Bend County LID 7 and Fort Bend County MUD
41—as a result of Appellees’ actions and “those losses account[ed] for nearly
38
$87,000 in damages.” According to Aitken’s declaration, which Triton attached to
its response, Triton incurred two measures of damages: attorney fees of more than
$138,254 and lost profits of $87,000 as the result of the loss of Fort Bend County
LID 7 and Fort Bend County MUD 41 to Touchstone. Aitken stated that “Triton’s
average revenue from Fort Bend County LID 7 was $37,281.29”; the “average cost
of a municipal district bond is $50,000”; and “[a]s of October 31, 2021, the Raley
& Bowick law firm has billed $138,254.76 in attorney fees on this matter.”
Appellees argue that Aitken’s declaration is conclusory and further that it
should not be considered because he is an interested witness. Triton responds that
the testimony of an interested witness goes to credibility and could still raise a fact
question. It also argues the testimony is not conclusory as it was supported by
“direct evidence produced by Appellees and Appellees’ deposition testimony,” and
Appellees did not controvert or raise any objections to the declaration in the trial
court.
Challenges to the “affidavits of interested witnesses present a defect of form
requiring an objection in the trial court.” Ahumada v. Dow Chem. Co., 992 S.W.2d
555, 562 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).24 Because
24
Moreover, even if preserved, in “a summary judgment proceeding, the testimony
of an interested witness usually creates a fact issue as to his credibility.” Newman
v. Tropical Visions, Inc., 891 S.W.2d 713, 719 (Tex. App.—San Antonio 1994,
writ denied) (citations omitted); Arraby Properties, LLC v. Brown, 695 S.W.3d
532, 552 (Tex. App.—Houston [1st Dist.] 2023, pet. filed) (“Generally, the
39
Appellees did not raise their “interested witness” argument in the trial court, the
issue was not preserved for appeal. A litigant, however, may raise a conclusory
objection to an affidavit, a defect of substance, for the first time on appeal. Ortega
v. Cach, LLC, 396 S.W.3d 622, 627 (Tex. App.—Houston [14th Dist.] 2013, no
pet.).
Appellees argue that eight statements made by Aitken in his affidavit are
“not factual but instead [are] . . . conclusory statements and legal conclusions.”
The purportedly conclusory statements are:
• Defendants breached the non-disparagement agreement.
• Defendants breached the non-solicitation agreement prior to the
expiration of the 365 days.
• Defendants solicited Fort Bend County LID 7 prior to June 24, 2020.
• Triton lost business opportunities as a result of Defendant’s solicitation.
• Triton’s average revenue from Fort Bend County LID 7 was $37,281.29.
• Defendants solicited Fort Bend County MUD 41 prior to June 24, 2020.
• Triton lost business opportunities as a result of Defendant’s solicitation.
• The average cost of a municipal district bond is $50,000.
“A conclusory statement is one that does not provide the underlying facts to
support the conclusion.” Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 50 (Tex.
testimony of an interested witness . . . does no more than raise a fact issue, and
whether to credit that testimony is a question for the factfinder.”).
40
App.—San Antonio 2005, no pet.) (quoting Haynes v. City of Beaumont, 35
S.W.3d 166, 178 (Tex. App.—Texarkana 2000, no pet.)). Triton attached to its
summary judgment response documents that provide underlying facts in support of
most of the statements about which Appellees complain. For example, Triton
attached documents produced by some of the Appellees that address the alleged
solicitation by Touchstone of LID 7 in September and December 2019, and
minutes of the board meeting when the Fort Bend County LID 7 board voted to
terminate Triton’s contract effective December 31, 2019. In addition, Triton
attached the unsworn declaration of Shannon Waugh, who testified about Simon’s
alleged disparagement of Triton to others in the industry. And Triton attached
documents obtained during discovery that reflected Appellees’ alleged retention
and subsequent firing of Triton by Fort Bend County MUD 41 prior to June 24,
2020. With the exception of Aitken’s complained of final statement regarding the
average cost of a municipal bond, we conclude the statements about which
Appellees complain are not conclusory because other evidence attached to Triton’s
response supplied facts supporting the statements in his affidavit.
Appellees argue that since Triton did not provide competent summary
judgment evidence as to “actual damages,” it is not entitled to recover attorneys’
fees because it is not a prevailing party under Chapter 38 of the Texas Civil
Practice and Remedies Code. But Triton does not seek to recover attorneys’ fees
41
as a prevailing party. Rather, Triton seeks to recover attorneys’ fees as actual
damages claiming it incurred the fees as a result of Appellees’ alleged breaches.25
See In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168, 175 (Tex. 2013)
(orig. proceeding) (“While attorney’s fees incurred in prosecuting this [breach of
contract] claim are not compensatory damages, the fees comprising the breach-of-
contract damages are.”).
Moreover, we believe Triton satisfied its summary judgment burden to
present more than a scintilla of evidence regarding its claimed damages, at least
with respect to the revenue it would have recouped from working on the Fort Bend
County LID 7 project. See Wright v. CAE SimuFlite, Inc., No. 05-07-00759-CV,
2008 WL 2841165, at *3–4 (Tex. App.—Dallas July 24, 2008, no pet.) (mem. op.)
(“Opinions or estimates of lost profits may be competent evidence if that opinion
or estimate is based on objective facts, figures, or data from which the amount of
lost profits may be ascertained.”) (citing KMG Kanal–Muller–Gruppe Deutschland
GmbH & Co. KG v. Davis, 175 S.W.3d 379, 391 (Tex. App.—Houston [1st Dist.]
2005, no pet.)).
Given that Triton presented more than a scintilla of evidence in support of
each element of its contract claim, we now turn to the traditional portion of the
Summary Judgment Motion to determine whether it was providently granted.
25
Appellees do not challenge the reasonableness or necessity of the attorneys’ fees
Triton seeks.
42
B. Traditional Summary Judgment
In their traditional Summary Judgment Motion, Appellees argued that
(1) there is no contract because the parties never executed a settlement agreement;
(2) the contract under which Triton tries to sue is actually a final judgment;
(3) Triton judicially admitted that the trial court rendered a final judgment; and
(4) Triton’s remedy is limited to an action to enforce the judgment.
Appellees attached a single exhibit26 to their Summary Judgment Motion
consisting of a response filed by Triton in a separate post-judgment action it filed
against Appellees in June 2020. In that separate action, Triton filed five
applications for writs of garnishment against each of the Appellees to collect
payments due under the parties’ settlement agreement, which Triton alleged
remained outstanding. According to Appellees, Triton admitted in that action that
“the terms it alleges were breached are [actually] a final judgment.”27 Appellees
assert that this is a judicial admission by Triton “that the settlement terms
26
In reviewing the trial court’s order granting Appellees’ Summary Judgment
Motion, we review only those documents attached to the Summary Judgment
Motion. See Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 888 (Tex.
App.—Houston [1st Dist.] 1987, no writ) (“A motion for summary judgment must
be supported by its own summary judgment proof. . . . Verified copies of
documents, in order to constitute part of the summary judgment evidence, must be
attached to the [summary judgment] affidavit.”) (internal citations omitted).
27
Neither Triton’s applications for writs of garnishment nor Appellees’ motions to
dissolve the writs are in the appellate record. Appellees’ Summary Judgment
Motion states that the five applications for writs of garnishment were filed on June
1, 2020 in Cause Nos. 2018-46007A, 2018-46007B, 2018-46007C, 2018-46007D,
and 2018-46007E in the 189th District Court of Harris County, Texas.
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constitute a final judgment.” Thus, according to Appellees, Triton’s remedy is
limited to an action to enforce the final judgment. And in fact, Triton already
“sought post-judgment enforcement actions in the First Lawsuit and separate from
this case.”
We have already concluded that the parties reached a settlement agreement
in the 2018 Lawsuit, that the parties dictated the essential terms of their agreement
into the record, and that Appellees did not establish as a matter of law that the
contract is unenforceable because the agreement was not reduced to writing. We
now consider Appellees’ remaining argument, that because the settlement
agreement resulted in the rendition of judgment in the 2018 Lawsuit, Triton’s
breach of contract claim is somehow barred, and its only remedy is one to enforce
the final judgment against Appellees.
In its response to the Summary Judgment Motion, Triton acknowledged the
filing of its post-judgment action and explained that its statements regarding the
rendition of judgment were unremarkable. Triton explained that two distinct
events occurred on June 25, 2019: (1) the parties entered into a settlement
agreement that was dictated on the record, and (2) the trial court entered final
judgment based on the terms of the parties’ settlement agreement. According to
Triton, there is nothing contradictory about these two events.
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We agree. These two events may co-exist without contradiction. Indeed,
the parties do not dispute that the final judgment was rendered based on the
agreement of the parties and pursuant to the settlement terms dictated into the
record. In any event, regardless of whether the contract is identified as a
settlement agreement or a final judgment, we hold that a breach of contract action
is a proper way for Triton to enforce it. “The proper way to enforce an agreed
judgment is by a lawsuit in the nature of a contract action.” Direct Advert., Inc. v.
Willow Lake, LP, No. 13-14-00212-CV, 2016 WL 1393974, at *3 (Tex. App.—
Corpus Christi–Edinburg Apr. 7, 2016, no pet.) (mem. op.).28 That is because an
agreed judgment “must be interpreted as if it were a contract between the parties
and the interpretation is, accordingly, governed by the laws related to contracts.”
Id. (citing cases); see also Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 71
(Tex. 1997) (observing that suit on agreed judgment ordinarily sounds in contract);
Ex parte Jones, 358 S.W.2d 370, 375 (Tex. 1962) (“This agreed judgment must be
interpreted as if it were a contract between the parties and the interpretation thereof
28
In Direct Advertising, Inc. v. Willow Lake, LP, No. 13-14-00212-CV, 2016 WL
1393974 (Tex. App.—Corpus Christi–Edinburg Apr. 7, 2016, no pet.) (mem. op.),
the Corpus Christi–Edinburg Court of Appeals held that claims based on an
alleged failure to comply with the terms of an agreed judgment were properly
brought as a breach of contract action. Id. at *3. The court observed, “This action
could not have been brought as part of its earlier suit because Direct Advertising
did not engage in the conduct alleged—i.e., breaching the agreed judgment—until
after it was signed.” Id.
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is governed by the laws relating to contracts, rather than laws relating to
judgments.”); Canadian River Mun. Water Auth. v. Hayhook, Ltd, 469 S.W.3d 301,
304 n.4 (Tex. App.—Amarillo 2015, pet. denied) (“Agreed judgments are
interpreted as if they were contracts, and their interpretation is governed by the
laws relating to contracts, not judgments.”); Gracia v. RC Cola-7-Up Bottling Co.,
667 S.W.2d 517, 519–20 (Tex. 1984) (“It is settled law that the construction of an
agreed judgment and a determination of the obligations imposed upon the parties
are governed by the rules applicable to contracts generally.”); Thieleman v.
Prokop, No. C14-86-699-CV, 1987 WL 12509, at *2 (Tex. App.—Houston [14th
Dist.] June 18, 1987, no writ) (not designated for publication) (“Noncompliance
with the terms of an existing agreed judgment can be the basis for a new cause of
action. An agreed judgment must be interpreted as if it were a contract between the
parties and the interpretation thereof is governed by the laws relating to contracts.
The proper way to enforce an agreed judgment . . . is by a lawsuit in the nature of a
contract action.”) (internal citations omitted); Pate v. Pate, 874 S.W.2d 186, 188
(Tex. App.—Houston [14th Dist.] 1994, writ denied) (“Agreed judgments, once
rendered, are contracts between the parties that excuse error and operate to end all
controversy between the parties.”).
To the extent Appellees contend Triton’s breach of contract action
constitutes a collateral attack on the final judgment, we disagree. “A collateral
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attack is an attempt to avoid the binding force of a judgment in a proceeding not
instituted for the purpose of correcting, modifying, or vacating the judgment, but in
order to obtain some specific relief which the judgment currently stands as a bar
against.” Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); see also Zarate
v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 620 (Tex. App.—San Antonio 2001,
pet. denied) (“A collateral attack is any proceeding to avoid the effect of a
judgment which does not meet all the requirements of a valid direct attack.”)
Triton is not challenging the validity of the final judgment rendered in the 2018
Lawsuit, nor is it seeking to relitigate the matters settled in that action. Triton
seeks instead to enforce the parties’ settlement agreement to recover damages for
breaches it alleges occurred after the parties reached settlement, including
Appellees’ alleged failure to make the payments contemplated under the settlement
agreement, as well as their alleged solicitation of Triton’s customers and
disparagement of Triton, all of which Triton alleges occurred after the parties
settled the 2018 Lawsuit and constitute a breach of the settlement agreement. Such
an action is not a collateral attack on the final judgment. See Employers Cas. Co.
v. Block, 744 S.W.2d 940, 943 (Tex. 1988) (defining collateral attack as “an
attempt to avoid the effect of a judgment brought in a proceeding brought for some
other purpose”); Armentor v. Kern, 178 S.W.3d 147, 149 (Tex. App.—Houston
[1st Dist.] 2005, no pet.) (same).
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We thus conclude that Appellees’ traditional Summary Judgment Motion
lacks merit with respect to its argument that there is no enforceable contract, that
Triton’s remedy is limited to an action to enforce the judgment, and that Triton’s
action is an improper collateral attack on a final judgment. The trial court erred to
the extent it granted summary judgment in Appellees’ favor on these bases.
Conclusion
We reverse the trial court’s summary judgment and remand for proceedings
consistent with this opinion.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Kelly, Landau, and Rivas-Molloy.
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