Opinion
No. 05-19-00156-CV
08-03-2020
CYNTHIA G. GORE, INDIVIDUALLY AND IN HER CAPACITY AS THE INDEPENDENT EXECUTOR OF THE ESTATE OF MORRIS C. GORE, Appellant v. M. GARRETT SMITH AND SPINNERHAWK SOUTHERN CROSS, LLC, Appellees
On Appeal from the 192nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-17-15814
MEMORANDUM OPINION
Before Justices Myers, Whitehill, and Pedersen, III
Opinion by Justice Whitehill
Among other issues, this case concerns (i) the sufficiency of evidence to confer intended third party beneficiary status on a non-contracting party and (ii) the efficacy of contracting parties' subsequent conduct to disturb that status.
In 2009, David Burkett sued appellees M. Garrett Smith and Spinnerhawk Southern Cross, LLC (SSC). That dispute arose from their purported agreement to use certain real property for a drug rehabilitation facility. According to Burkett, he was owed money from that agreement. The parties executed a Rule 11 agreement in which SSC agreed to make payments both to Burkett and to law firm that represented him.
Appellant Cynthia Gore claims that she succeeded to the law firm's rights by a pair of assignments and that appellees breached the contract by stopping her payments. The trial court granted a take nothing summary judgment against appellant, and she timely appealed.
A pivotal question is whether the law firm was a third-party beneficiary of the Rule 11 agreement. Because the agreement clearly and unequivocally expressed the parties' intent to directly benefit the law firm—such as by SSC's promise to pay the firm $120,000 when certain financing closed—we hold that the firm was a third-party beneficiary. For this and other reasons, we reverse the summary judgment in part, affirm it in part, and remand.
I. BACKGROUND
A. Facts
The summary judgment evidence supports the following facts:
Morris and Cynthia Gore were married until he died in January 2018. We use their first names to distinguish them. Morris and Cynthia separated in 2006 but never divorced.
In about 2007, appellees (Smith and SSC) began a business relationship with David Burkett to develop a drug rehabilitation facility. A dispute arose between appellees and Burkett, and Burkett sued appellees. Glast, Phillips & Murray, P.C. (GPM) and Morris, an attorney with that firm, represented Burkett in that lawsuit.
That lawsuit settled. First, the parties and their lawyers signed a Rule 11 agreement dated August 27, 2009 (the "Rule 11 Agreement"). The Rule 11 Agreement stated that the parties contemplated "more comprehensive settlement documentation" in the future, but it also stated that they intended the Rule 11 Agreement to be enforceable. The Rule 11 Agreement recited that the property in dispute was being leased to a tenant and provided that SSC and Burkett would share in the lease's proceeds after debt service. It further provided that SSC would pay GPM $120,000 when certain financing closed and that SSC would make certain periodic payments to GPM as follows:
From the Lease payment amounts payable to Burkett, SSC will disburse to GPM $400,000, payable in monthly installments of $3,000, commencing with the first Lease payment, will disburse to GPM 5% of the net proceeds of any sale or disposition of the Property, from proceeds payable to Burkett.Burkett, Morris, Smith, and Smith's lawyer signed the Rule 11 Agreement.
SSC paid the $120,000 to GPM.
Later, in September 2009, Smith, SSC, and Burkett executed a "Compromise Settlement Agreement and Mutual Release" (the "2009 Settlement Agreement"). It contained the following provision:
2.3.3. From the monthly SSC Lease Distributions payable to BURKETT, SSC agrees to disburse to GLAST, PHILLIPS & MURRAY, or its assigns, up to a total of $400,000 in 133 equal monthly installments of $3,000 and an additional payment of $1,000 the following month.
In 2010, Morris left GPM. When he left, GPM assigned its right to receive appellees' payments to Morris. In 2015, Morris assigned that right to Cynthia. She understood that $217,000 was still to be paid at that time, and she received $45,000 after Morris's assignment to her.
SSC made no more payments to Cynthia after its October 2016 payment.
SSC later asserted that it made a new agreement with Burkett in 2017 that terminated its duty to pay Cynthia. Cynthia was not consulted or advised about the 2017 agreement, was not a party to it, and did not agree to it.
B. Procedural History
Morris and Cynthia sued appellees on several legal theories including contract breach.
Appellees answered and counterclaimed.
Morris died, and Cynthia continued the lawsuit individually and as Morris's estate's executor.
In Cynthia's first amended petition, she claimed that SSC breached both the Rule 11 Agreement and the 2009 Settlement Agreement. She specifically alleged that she was a third-party beneficiary of both agreements.
Appellees moved for summary judgment on all of Cynthia's claims. Although the motion referenced both traditional and no evidence standards, its attacks on Cynthia's contract breach claims argued only traditional grounds.
The motion's contract breach section uses the phrase "no evidence" twice, but it doesn't attack any specific elements as being unsupported by evidence. Thus, it is insufficient to make a no evidence challenge. See Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. denied) (en banc).
Cynthia then filed a second amended petition that was her final live pleading. She reasserted against SSC the same contract breach theories as in her first amended petition. Specifically, Count I claimed breach of the Rule 11 Agreement, and Count II claimed breach of both the Rule 11 Agreement and the 2009 Settlement Agreement, relying expressly on a third-party beneficiary theory.
The trial court granted summary judgment against both sides on their claims without specifying the reasons, resulting in a take nothing judgment.
Cynthia timely appealed.
On appeal, Cynthia argues error only as to her contract breach claims, and appellees did not cross-appeal the summary judgment on their counterclaims. Accordingly, only Cynthia's contract breach claims are before us for review. See Ontiveros v. Flores, 218 S.W.3d 70, 71 (Tex. 2007) (per curiam).
II. STANDARD OF REVIEW
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313, 316 (Tex. 2019).
When we review a traditional summary judgment for a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Ward v. Stanford, 443 S.W.3d 334, 342 (Tex. App.—Dallas 2014, pet. denied). We take evidence favorable to the nonmovant as true, and we indulge every reasonable inference and resolve every doubt in the nonmovant's favor. Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019).
III. ANALYSIS
A. Issues One and Two: Did the trial court err by granting summary judgment against Cynthia on her claim that appellees breached the Rule 11 Agreement?
Yes. The evidence showed that GPM was a third-party beneficiary of the Rule 11 Agreement. The evidence also raised genuine fact issues as to all other summary judgment grounds regarding that contract.
1. The Summary Judgment Grounds
Cynthia claimed by assignment to be both a party to and a third-party beneficiary of the Rule 11 Agreement.
Appellees asserted these summary judgment grounds regarding that claim: (i) the Rule 11 Agreement is null and void; (ii) neither Cynthia nor Morris was a party to the Rule 11 Agreement; (iii) Cynthia was never assigned any rights under the Rule 11 Agreement; (iv) SSC had no duties to Cynthia as a third-party beneficiary; (v) Cynthia never performed or tendered performance; and (vi) SSC never breached the Rule 11 Agreement. We begin with whether GPM obtained rights under the Rule 11 Agreement that could be ultimately assigned to Cynthia.
2. Was GPM a party to or a third-party beneficiary of the Rule 11 Agreement?
Yes, appellees' summary judgment motion asserted that neither Morris nor Cynthia was a party to the Rule 11 Agreement. Cynthia doesn't claim otherwise; rather, she argues that GPM was a party to or third-party beneficiary of the contract and assigned its rights to Morris, who then assigned them to her. We agree that, at a minimum, GPM was an intended third-party beneficiary of the Rule 11 Agreement because the parties clearly and fully expressed their intent to confer a direct benefit—monetary payments—on GPM.
a. Applicable Law
Under general contract law, a claimant must show either privity or third-party beneficiary status to have standing to sue for contract breach. Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co., 393 S.W.3d 379, 387 (Tex. App.—Dallas 2012, no pet.).
Privity exists if the defendant contracted with the claimant or someone who assigned his or her cause of action to the claimant. Id.
Generally, whether someone is a third-party beneficiary depends solely on the contracting parties' intent. First Bank v. Brumitt, 519 S.W.3d 95, 102 (Tex. 2017). The person claiming third-party beneficiary status must show that the contracting parties intended to secure a benefit to that third party and entered into the contract directly for the third party's benefit. Id. It is not enough to show that the third party would benefit from the parties' performance, or even that the parties knew that the third party would benefit. Id. Rather, the parties must have intended to grant the third party the right to be a claimant in the event of a breach. Id. "Traditionally, Texas courts have maintained a presumption against third-party beneficiary agreements." Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011).
However, a third-party beneficiary does not have to show that the parties executed the contract solely to benefit the third-party beneficiary. Stine v. Stewart, 80 S.W.3d 586, 591 (Tex. 2002) (per curiam). Nor is it necessary for the contract to use the phrase "third-party beneficiary" or any other magic words. City of Houston v. Williams, 353 S.W.3d 128, 145 (Tex. 2011).
To determine whether someone is a third-party beneficiary, we look to the contract's language as a whole. First Bank, 519 S.W.3d at 102. The contract must clearly and unequivocally express the contracting parties' intent to directly benefit the third party. Id. at 103. Implied intent to create a third-party beneficiary is insufficient, courts presume that parties contracted only for themselves, and doubts musts be resolved against conferring third-party beneficiary status. Id.
If a contract is unambiguous, the court decides as a matter of law whether someone is a third-party beneficiary. See id. at 105-06.
b. Applying the Law to the Facts
Cynthia argues that the following evidence raises a genuine fact issue regarding whether GPM was a party to or third-party beneficiary of the Rule 11 Agreement:
• The Agreement is on GPM letterhead.
• The Agreement is addressed to appellee's lawyer and begins, "This letter agreement is intended to reflect the terms of our settlement of the above referenced lawsuit. This settlement is being entered into and signed by us and our respective clients." (Emphasis added.)
• The Agreement provides that SSC would pay GPM $120,000 upon the closing of certain financing, which was contemplated to occur within two or three weeks.
• After explaining how Burkett and Smith would divide lease payments derived from the property, the Agreement says:
From the Lease payment amounts payable to Burkett, SSC will disburse to GPM $400,000, payable in monthly installments of $3,000, commencing with the first Lease payment, will disburse to GPM 5% of the net proceeds of any sale or disposition of the Property, from proceeds payable to Burkett.
• Morris signed the Rule 11 Agreement twice—the first time, under GPM's name:
Please sign and have your client sign below. I will then have David Burkett sign also to reflect the agreement as set forth herein. I reiterate our intention and agreement that the agreement set forth herein is enforceable not withstanding any further or additional documentation.
Sincerely,
Glast, Phillips & Murray, P.C.
/s/
Morris C. Gore
AGREED and SIGNED:
/s/_________
Phillip R. Doepfner
Attorney for Defendants
/s/_________
Garrett M. Smith, Defendant
Spinnerhawk Southern Cross, LLC.
/s/_________
Morris C. Gore
Attorney for Plaintiff
/s/_________
David C. Burkett, Plaintiff
Appellees' brief doesn't directly address Cynthia's argument that GPM was a third-party beneficiary of the Rule 11 Agreement. Instead, it argues that the Agreement isn't clear and express enough to make Morris a third-party beneficiary. But whether Morris was personally an intended third-party beneficiary of that contract is not the issue.
We agree with Cynthia that GPM was a third-party beneficiary of the Rule 11 Agreement. The Agreement required monetary payments to "GPM," in specific amounts, and under specific circumstances. We conclude that (i) those payments are direct, not incidental, benefits to GPM and (ii) the Rule 11 Agreement clearly expresses appellees' and Burkett's intent to benefit GPM.
This case is similar to Stine, in which divorcing spouses agreed that a certain creditor would be paid once a property was sold. 80 S.W.3d at 588. The trial court ruled that the creditor was a third-party beneficiary of the agreement, the court of appeals reversed, and the supreme court agreed with the trial court. As the supreme court observed, "certain provisions in the agreement expressly state the Stewarts' intent to pay Stine the money due to her." Id. at 591. Similarly, the Rule 11 Agreement here expressly states the parties' intent that SSC pay GPM specific amounts under specific circumstances.
We therefore conclude that GPM was a third-party beneficiary of the Rule 11 Agreement.
3. Does the evidence conclusively show that the 2007 Settlement Agreement rendered the Rule 11 Agreement null and void as to GPM's third-party beneficiary status?
No. The evidence raises a genuine fact issue that GPM's rights survived the 2009 Settlement Agreement's execution by SSC, Smith, and Burkett because GPM accepted the contract before Burkett, SSC, and Smith executed the 2009 Settlement Agreement.
Appellees' summary judgment motion argued that the 2009 Settlement Agreement superseded the Rule 11 Agreement, rendering it null and void. Their appellees' brief reiterates the argument, relying specifically on the 2009 Settlement Agreement's merger clause:
17. Entire Agreement. This Agreement contains the entire agreement between BURKETT, SSC, and SMITH with regard to the matters set forth herein. THERE ARE NO OTHER PROMISES, UNDERSTANDINGS, REPRESENTATIONS, WARRANTIES, COVENANTS, OR AGREEMENTS, VERBAL OR OTHERWISE, IN RELATION THERETO
BETWEEN BURKETT, SSC, AND SMITH, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. (Emphasis original.)
Cynthia argues that this summary judgment ground was unsupported by the pleadings and is contrary to the evidence and the law. It does not appear that she preserved her lack of pleadings argument in the trial court. See TEX. R. APP. P. 33.1(a); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494-95 (Tex. 1991). But we agree with her substantive argument.
Appellees' argument is essentially novation, which is "the substitution of a new agreement in place of an existing agreement between the same parties." Fulcrum Cent. v. AutoTester, Inc., 102 S.W.3d 274, 277 (Tex. App.—Dallas 2003, no pet.); see also Tex. A&M Univ.-Kingsville v. Lawson, 127 S.W.3d 866, 872 (Tex. App.—Austin 2004, pet. denied) ("the 'merger doctrine' . . . refers to the absorption of one contract into another subsequent contract"). They also argue that the 2009 Settlement Agreement "revoked" the Rule 11 Agreement.
Appellees' appellate brief also asserts that the Rule 11 Agreement is not valid or enforceable because it was never incorporated into a final order. But they didn't assert that ground in their summary judgment motion, so we can't consider it as a ground for affirmance. See City of Brownsville ex rel. Pub. Utils. Bd. v. AEP Tex. Cent. Co., 348 S.W.3d 348, 353 (Tex. App.—Dallas 2011, pet. denied).
But, as Cynthia argues, "after a contract for the benefit of a third person has been accepted or acted on by him, it cannot be rescinded by the parties without his assent." Pac. Am. Gasoline Co. of Tex. v. Miller, 76 S.W.2d 833, 845 (Tex. App.—Amarillo 1934, writ ref'd) (internal quotations and citations omitted); see also Houston Lighting & Power Co. v. Wheelabrator Coal Servs. Co., 788 S.W.2d 933, 937 (Tex. App.—Houston [14th Dist.] 1990, no writ).
Here, the evidence raises a genuine fact issue whether GPM accepted the Rule 11 Agreement, thereby barring appellees and Burkett from changing the Agreement without GPM's consent. To begin, the Rule 11 Agreement is on GPM letterhead, Morris signed it under the name "Glast, Phillips & Murray, P.C.," and the Agreement's second sentence says, "This settlement is being entered into and signed by us and our respective clients." (Emphases added.) Moreover, the 2009 Settlement Agreement contains a recital in which Burkett acknowledges that GPM received the $120,000 payment promised in the Rule 11 Agreement. Thus, collectively, the Rule 11 Agreement's contents, Morris's signature on it under GPM's name, and the evidence that GPM accepted the $120,000 payment raise a genuine fact issue regarding GPM's acceptance of the Rule 11 Agreement before Burkett and appellees executed the 2009 Settlement Agreement.
And we see no evidence that GPM assented to the 2009 Settlement Agreement. On the contrary, that Agreement was executed only by SSC, Smith, and Burkett, and it recites specifically that GPM "is not a party to this Agreement."
Thus, the evidence raises a genuine fact issue that the 2009 Settlement Agreement did not revoke or otherwise terminate the Rule 11 Agreement as to GPM's rights thereunder. And, if GPM's rights were not terminated, it could later assign its rights under the Rule 11 Agreement.
4. Did the evidence conclusively establish that Cynthia was never assigned GPM's rights under the Rule 11 Agreement?
No. Moreover, Cynthia adduced some evidence that those rights were assigned to her.
Appellees' summary judgment motion asserted, without explanation or reference to evidence, that Cynthia "was never assigned any rights related to" the Rule 11 Agreement. But we see no summary judgment evidence supporting this assertion.
Regardless, Cynthia filed the following evidence raising a genuine fact issue that she received GPM's rights by assignment:
• A September 23, 2010 assignment whereby GPM assigned its interest in the 2009 Settlement Agreement to Morris.
• A notarized October 19, 2010 assignment whereby GPM again assigned its interest in the 2009 Settlement Agreement to Morris.
• The foregoing assignments were connected to the Rule 11 Agreement by GPM managing director Troy Phillips's October 22, 2018 declaration under penalty of perjury. Phillips said that in or about March 2017 he talked to Morris and agreed to execute an addendum to the assignment to confirm that the assignment to Morris included GPM's rights arising from the Rule 11 Agreement and from GPM's fee agreement with Burkett. Phillips further said that Morris sent him the addendum and he executed it. Phillips searched his files but couldn't find an executed copy of the addendum. But he confirmed that an unexecuted copy of the addendum attached to his declaration was the one he executed. That unexecuted copy says:
Re: Compromise Settlement Agreement by and between M. Garrett Smith, Spinnerhawk Southern Cross, LLC, and David Burkett, executed on or about September 22, 2009- attached Assignment dated September 10, 2010 (the "Assignment").
Dear Troy:
This letter serves as an addendum to the Assignment, and confirms that the Assignment includes all rights of, and amounts owed to GPM under both (1) the Rule 11 letter agreement filed August in connection with the above settlement, and (2) the "Contingent Attorney's Fee Agreement" between GPM and Burkett. Please sign below to so confirm.
Sincerely,
Morris C. Gore, this is intended as an electronic signature
Morris C. Gore
• Cynthia's declaration under penalty of perjury affirming that Morris assigned her all of his rights under the Rule 11 Agreement and the 2009 Settlement Agreement.
Appellees' brief doesn't re-urge their unsupported trial court argument regarding the sufficiency of Cynthia's evidence to raise a genuine fact issue regarding the chain of assignments to her.
Although the above-quoted addendum is not entirely clear because it refers to "the Rule 11 letter agreement filed August [sic] in connection with the above settlement," we conclude that it, even if it is ambiguous, together with Phillips's declaration, is sufficient to raise a genuine fact issue that GPM assigned its Rule 11 Agreement rights to Morris. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983) (interpretation of ambiguous contract presents fact question inappropriate for summary judgment). And Cynthia's declaration raises a genuine fact issue as to Morris's assignment to her.
Thus, the evidence raises a genuine fact issue whether Cynthia was assigned GPM's rights under the Rule 11 Agreement, which rights survived the 2009 Settlement Agreement.
5. Are appellees' remaining summary judgment grounds regarding the Rule 11 Agreement meritorious?
No, for the reasons stated below. We note that appellees do not re-urge these arguments on appeal.
Appellees' summary judgment motion asserted that SSC owed Cynthia no duties as a third-party beneficiary under the Rule 11 Agreement. However, we have concluded above that SSC owed GPM duties as a third-party beneficiary and that Cynthia raised a genuine fact issue as to her standing by assignment.
Appellees' motion asserted that Cynthia did not perform or tender performance. But as an alleged assignee who traces her rights to a third-party beneficiary, she owed no performance. See In re Palm Harbor Homes, Inc., 195 S.W.3d 672, 677 (Tex. 2006) (orig. proceeding) (third-party beneficiary was not a promisor and was not required to give consideration for agreement).
Finally, appellees asserted that SSC never breached the Rule 11 Agreement. But Cynthia's declaration says that SSC (i) stopped paying her under the Rule 11 Agreement after October 2016 and (ii) asserted that the 2017 Agreement terminated any obligations to her. And she deposed that not all of the payments called for in the Rule 11 Agreement were paid. This evidence raised a genuine fact issue regarding the breach element.
6. Conclusion
We sustain Cynthia's second issue and reverse the summary judgment as to Cynthia's claim for breach of the Rule 11 Agreement on a third-party beneficiary theory. Accordingly, we need not address Cynthia's first issue in which she argues that GPM was a party to the Rule 11 Agreement.
B. Issue Three: Did the trial court err by granting summary judgment against Cynthia on her claim that appellees breached the 2009 Settlement Agreement?
We conclude that Cynthia has not challenged all summary judgment grounds that attacked this claim, so we affirm the summary judgment as to it.
1. The Summary Judgment Grounds
In Cynthia's claim against SSC for breach of the 2009 Settlement Agreement, she claimed to be a third-party beneficiary of that contract. But her summary judgment response clarified that she claimed that GPM was a third-party beneficiary and that she was GPM's assignee.
Appellees asserted the following summary judgment grounds regarding Cynthia's claim for breach of the 2009 Settlement Agreement: (i) the 2017 Settlement Agreement terminated appellees' obligations under the 2009 Settlement Agreement; (ii) Cynthia was not a party to the 2009 Settlement Agreement; (iii) Cynthia was not a third-party beneficiary of the 2009 Settlement Agreement; (iv) Cynthia has not performed or tendered performance; (v) Cynthia has not provided consideration; and (vi) because SSC no longer owes Burkett any payments, SSC no longer has any duty "to distribute a portion from the amount payable to Gore."
Appellees' motion explained ground (vi) in further detail. Specifically, it argued that (i) in the 2009 Settlement Agreement, SSC promised to pay GPM only from amounts that otherwise would have been payable to Burkett under the Agreement; (ii) in the 2017 Settlement Agreement, the parties agreed that SSC would no longer pay any amounts to Burkett; so (iii) SSC no longer owes GPM or its assigns any payment obligation under the 2009 Settlement Agreement.
2. Analysis and Conclusion
When the trial court grants summary judgment based on a motion than presents multiple independent grounds for summary judgment and does not specify the reasons, the appellant must challenge and brief every independent ground. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (affirming summary judgment because appellant did not address limitations ground); Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.—Dallas 2005, no pet.) ("[A] reviewing court will affirm the summary judgment as to a particular claim if an appellant does not present argument challenging all grounds on which the summary judgment could have been granted.").
Here, although Cynthia asserts a broad issue that the trial court erred by granting summary judgment on her 2009 Settlement Agreement based claim, she presents no argument addressing appellees' ground (vi) discussed above. She argues, as she also does regarding her Rule 11 Agreement breach claims, that appellees breached the 2009 Settlement Agreement by ceasing to make the monthly payments called for in that instrument. But she does not address, or even mention, the substance of appellees' ground (vi), which is peculiar to her 2009 Settlement Agreement claim—that under appellees' interpretation of the 2009 Settlement Agreement, SSC no longer owed GPM or its assigns the monthly payments called for in that Agreement once appellees paid Burkett off and he relinquished any further right to payments under the 2009 Settlement Agreement.
Whether this ground is valid or not, the summary judgment could have been based on it, and we cannot conjure arguments on Cynthia's behalf to reverse it. See, e.g., State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989) (per curiam) ("[T]he court of appeals thus erred in raising [certain] arguments sua sponte and basing its reversal on these grounds.").
Accordingly, we overrule Cynthia's third issue.
IV. DISPOSITION
We reverse the trial court's judgment to the extent it dismissed with prejudice Cynthia's Rule 11 Agreement breach claim. We affirm the judgment in all other respects and remand the case for further proceedings consistent with this opinion.
Although Cynthia asks us to render judgment in her favor, we see no indication that she moved for summary judgment on her claims in the trial court. Thus, rendition is not available. See Int'l Med. Sales, Inc. v. Prudential Ins. Co. of Am., 690 S.W.2d 84, 86 (Tex. App.—Dallas 1985, no writ).
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 190156F.P05
JUDGMENT
On Appeal from the 192nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-17-15814.
Opinion delivered by Justice Whitehill. Justices Myers and Pedersen, III participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE the trial court's judgment to the extent it dismissed with prejudice appellant Cynthia Gore, Individually and in Her Capacity as the Independent Executor of the Estate of Morris C. Gore's claim for breach of contract regarding the Rule 11 Agreement described in Plaintiff's Second Amended Petition. In all other respects, the trial court's judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered August 3, 2020.