Richard S. Ohendalski v. Frank Daniel Leasure and Choctaw Payroll Services, Inc., Dan-Cav Enterprises, Inc., the ELC Trust, and Mountaintop Management Trust

IN THE
TENTH COURT OF APPEALS
No. 10-16-00124-CV
RICHARD S. OHENDALSKI,
Appellant
v.
FRANK DANIEL LEASURE AND
CHOCTAW PAYROLL SERVICES, INC.,
DAN-CAV ENTERPRISES, INC., THE ELC TRUST,
AND MOUNTAINTOP MANAGEMENT TRUST,
Appellees
From the 278th District Court
Walker County, Texas
Trial Court No. 24,095
MEMORANDUM OPINION
Richard Ohendalski appeals from the trial court’s order granting Frank Leasure’s
Motion to Enforce Rule 11 Agreement and dismissing Ohendalski’s cause with prejudice.
We affirm.
Background Facts
On December 14, 2007, Richard Ohendalski filed suit against Frank Leasure and
four entities owned or controlled by Leasure to recover for accounting services. On
March 28, 2013, the trial court entered an order granting Ohendalski’s motion for
summary judgment. Leasure obtained counsel and filed a Motion for Rehearing, for New
Trial, or to Alter or Amend the Judgment. The trial court granted the motion and set
aside the order granting Ohendalski’s motion for summary judgment. The parties
entered into a settlement agreement in August 2013, and Leasure paid Ohendalski
$25,000 in settlement in exchange for a dismissal of the lawsuit with prejudice.
Ohendalski subsequently filed a nonsuit with respect to Leasure, but not the other four
entities owned by Leasure.
On August 24, 2015, Ohendalski filed a motion to compel discovery against the
four entities, Choctaw Payroll Services, Inc., Dan-Cav Enterprises, Inc., The ELC Trust,
and Mountaintop Management Trust. Leasure filed a Motion to Enforce Rule 11
Agreement, and the trial court granted the motion and dismissed the remaining claims
in the lawsuit.
Enforcement of Agreement
In the first, second, and third issues, Ohendalski argues that the trial court erred
in enforcing the Rule 11 Agreement and dismissing the lawsuit. The Settlement
Agreement states that it is made and entered by and between Ohendalski and Leasure.
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The Settlement Agreement further states that Ohendalski filed a “lawsuit” and defines
the “lawsuit” as being against Leasure and Choctaw Payroll Services, Inc., Dan-Cav
Enterprises, Inc., The ELC Trust, and Mountaintop Management Trust to recover for:
accounting services, punitive damages, interest, costs, and other expenses. The parties
agreed to compromise and settle all of their differences in the “lawsuit,” and the
Settlement Agreement specifically provided that “the Lawsuit shall be promptly
dismissed with prejudice after the execution of this Agreement and Leasure’s payment
of the Settlement Amount.” The record shows that the parties agreed to dismiss the entire
“lawsuit” which is specifically defined in the Settlement Agreement as including all the
named defendants. The trial court did not err in enforcing the Rule 11 Agreement and
dismissing the lawsuit.
Ohendalski argues that the trial court erred in failing to recognize his timely
revocation of the Settlement Agreement. The Settlement Agreement was signed in
August 2013, and Ohendalski accepted the consideration under the agreement. Over two
years later on January 20, 2016, Ohendalski filed a notice of revocation of Rule 11
Agreement in the trial court.
Rule 11 requires that the agreement be filed of record before the court may enforce
it. Coale v. Scott, 331 S.W.3d 829, 831(Tex.App.-Amarillo 2011, no pet.). If the accord is in
writing, signed by the parties or their attorneys, and filed of record, it does not matter
whether a party no longer agrees to it when the trial court is finally asked to enforce it.
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Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.1995); Coale v. Scott, 331 S.W.3d at 832. The
trial court did not err in finding that Ohendalski’s revocation of the Rule 11 Agreement
was invalid. We overrule the first, second, and third issues.
Findings of Fact
In the fourth issue, Ohendalski complains that the trial court failed to provide
findings of fact and conclusions of law. The record shows that the trial court signed
findings of fact and conclusions of law on April 4, 2016. We overrule the fourth issue.
Summary Judgment
In the fifth issue, Ohendalski argues that the trial court erred in setting aside its
order granting his motion for summary judgment. The trial court has the power to set an
interlocutory order aside any time before the final judgment is entered. Fruehauf
Corporation v. Carillo, 848 S.W.2d 83, 84 (Tex.1993). We find that the trial court did not err
in setting aside its order granting Ohendalski’s motion for summary judgment. We
overrule the fifth issue.
Default Judgment
In the sixth issue, Ohendalski argues that the trial court erred in failing to grant
default judgments for him against the four entity defendants. Ohendalski contends that
the four entities were not represented by counsel and did not file an answer to the lawsuit.
Ohendalski does not cite to any authority to support his argument. Citation to authorities
is required in order to properly present an issue to this Court. TEX.R.APP. P. 38.1. This
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issue is inadequately briefed and therefore, presents nothing for review. See TEX.R.APP.
P. 38.1(h). Moreover, the record shows that Ohendalski entered into a settlement
agreement after he filed a motion for default judgment in which he agreed to dismiss the
lawsuit which included his claims against the four entities. We overrule the sixth issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed March 29, 2017
[CV06]
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