HARVEY BROWN, Justice.
This is an agreed interlocutory appeal
Stergiou and the GMF Companies have been embroiled in litigation over the ownership of certain shares of the GMF Companies' stock for more than a decade. This case has been tried, appealed, reversed and remanded, and tried again. See Stergiou v. Gen. Metal Fabricating Corp., 123 S.W.3d 1 (Tex.App.-Houston [1st Dist.] 2003, pet. denied); see also Gen. Metal Fabricating, Inc. v. Stergiou, No. 010800921CV, 2009 WL 3673112, at *1 (Tex.App.-Houston [1st Dist.] Nov. 5, 2009, no pet.) (mem. op.).
While the jury deliberated during the second trial, Stergiou announced to the trial court that the parties had reached an "agreement which has been written down and signed by counsel." Not content to rely solely on the written settlement agreement, however, Stergiou's counsel asked to put the settlement terms on the record, thereby invoking the protection of Rule 11 of the Rules of Civil Procedure for agreements "made in open court and entered of record." TEX.R. CIV. P. 11. The trial court agreed but first instructed the parties — who were sitting in the courtroom when the settlement agreement was announced — to "listen intently while these terms are dictated into the record because I will swear you in and I will confirm that you are seeking my approval of this proposal." After Stergiou's counsel read the Rule 11 agreement on the record, the trial court inquired of counsel for each party whether the terms reflected "the totality" of their agreement. Both counsel replied that it did. The trial court then reminded each party that they were under oath and asked whether they had consulted with counsel regarding the terms and "implication" of the "proposed settlement," understood it, approved it, and "request[ed] the court to enter and approve" it. To each question, the parties answered affirmatively. Neither party indicated that the agreement was contingent upon the execution of other documents nor requested that the trial court delay acceptance of the agreement or verdict until other documents could be drafted and executed. The trial court announced that, "based upon
The specific details of the Rule 11 agreement were contingent upon the jury's answers. If the jury found in favor of the GMF Companies, Stergiou would assign all of the stock at issue to Curry and the parties would execute a mutual release of all claims. If the jury found in Stergiou's favor, however, the GMF Companies would pay Stergiou $300,000 for the return of the stock. Payment would be in the form of a promissory note, with a $20,000 down payment being due "on or before May 3, 2006" and, on the first day of each month, "[c]ommencing on June 1, 2006," an "installment of $4,000.00 of principal and interest [would be] due and payable until the Note ha[d] been paid in full."
The note would be "secured by a first lien Deed of Trust and Security Agreement covering all furniture, fixtures, equipment, receivables (from the ordinary course of business), inventory, and real property owned by the GMF Companies known [as] (the White Buildings and the empty lot) (excluding the four lots the `Blue Building' resides upon and the `Blue Building') of General Metal Fabrication, Inc. and GMF Leasing, Inc." The parties agreed "to execute all documents necessary to effectuate [their] agreement including all financing statements and deed(s) of trust" and to file a joint notice of non-suit with prejudice within ten days of the trial court's acceptance of the jury's verdict.
The jury returned a verdict for Stergiou. Although drafts of the additional documents contemplated by the Rule 11 agreement (i.e., the promissory note, the deeds of trust, the security agreements, and the financing statements) were circulated between them, the GMF Companies and Stergiou did not agree on the specific terms to be included in those documents. The agreed deadline for dismissing the case pursuant to the settlement was twice extended to allow the parties additional time to agree on the additional documents, but the additional documents were never consummated. The GMF Companies eventually tendered to Stergiou an executed motion to dismiss the lawsuit, one cashier's check in the amount of $20,000 for the down payment required by their settlement, and a second cashier's check for the remaining $280,000 owed. Stergiou rejected the tender and moved for entry of judgment on the jury's verdict.
After the trial court entered judgment on the verdict, the parties continued to dispute the terms and effect of the Rule 11 agreement. They sought to resolve their dispute by competing summary judgment motions. The first set of summary judgment motions concerned the enforceability of the Rule 11 agreement. The GMF Companies contended the Rule 11 agreement was an enforceable contract; Stergiou contended it was not. The second set of summary judgment motions addressed the issue of prepayment. The GMF Companies asked the trial court to find that Curry could pay the entire amount owed under the Rule 11 agreement at once; Stergiou asked the trial court to require Curry to make monthly installment payments. After the trial court determined that the Rule 11 agreement was enforceable but did not permit prepayment of the full amount owed, the parties agreed to this interlocutory appeal to resolve the controlling questions of law.
Both the trial court's order permitting this interlocutory appeal and the parties' joint notice of appeal raise two issues: (1) whether the Rule 11 agreement is an enforceable agreement and (2) whether Curry has the right to prepay his debt under the Rule 11 agreement.
Our review of a summary judgment is de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex.2007); City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). Under the traditional summary judgment standard, the movant must show that no genuine issue of material fact exists and judgment should be rendered as a matter of law. TEX.R. CIV. P. 166a(c); City of Galveston, 196 S.W.3d at 221. We view all evidence in a light favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. City of Galveston, 196 S.W.3d at 221. When both parties move for summary judgment and the trial court grants one motion and denies the other, we consider both motions, their evidence, and their issues, and we may render the judgment that the trial court should have rendered. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009); City of Galveston, 196 S.W.3d at 221.
In his sole issue on appeal, Stergiou challenges the trial court's determination that the Rule 11 agreement was enforceable. He asserts three reasons why the trial court erred: (1) he and the GMF Companies never achieved anything more than an "agreement to agree," (2) the trial court could not order compliance with the agreement because its terms are too indefinite, and (3) the agreement does not satisfy the statute of frauds.
The Rule 11 agreement required the parties to execute additional documents: a promissory note, deed of trust, security agreement, and any necessary financing statements. Stergiou argues in his first sub-issue that, because the Rule 11 agreement does not supply any information as to the specific terms of those documents (e.g., information with respect to any right or obligation to inspect, insure, maintain, or repair the collateral, the notice and cure periods in the event of default, and any right of or prohibition against prepayment), it fails for lack of essential terms and is nothing more than an unenforceable "agreement to agree" as a matter of law. In the alternative, Stergiou asserts that there is a fact issue as to whether the execution of the additional documents was a condition precedent to the formation of a binding Rule 11 agreement.
The GMF Companies respond that the Rule 11 agreement is enforceable because, at its core, the agreement is a settlement containing all terms necessary to resolve the gravamen of the parties' dispute, and the parties unequivocally indicated their intent to be bound by it when they affirmatively testified that they agreed to its terms and asked the trial court to approve it, twice extended the deadline for dismissing the case, and attempted to negotiate the terms of the additional documents. According to the GMF Companies, that the Rule 11 agreement contemplates the execution of additional, more formal documents
Contract law governs settlement agreements made in open court pursuant to Rule 11. See Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex.1995). The issue of whether a Rule 11 settlement agreement fails for lack of essential terms 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." Ronin v. Lerner, 7 S.W.3d 883, 888 (Tex. App.-Houston [1st Dist.] 1999, no pet.); see McCalla v. Baker's Campground, Inc., 416 S.W.3d 416, 418 (Tex.2013) (enforceability of settlement agreement is question of law); Southern v. Goetting, 353 S.W.3d 295, 300 (Tex.App.-El Paso 2011, pet. denied); Martin v. Martin, 326 S.W.3d 741, 746 (Tex.App.-Texarkana 2010, pet. denied) ("The question of whether an agreement is an unenforceable agreement to agree is a question of law, not a question for the jury.").
A binding settlement may exist when parties agree upon some terms, understanding them to be an agreement, and leave other terms to be made later. Oakrock Exploration Co. v. Killam, 87 S.W.3d 685, 690 (Tex.App.-San Antonio 2002, pet. denied). When an agreement leaves essential (or material)
Like most settlement agreements, the Rule 11 agreement here included essential terms for the payment of money in exchange for the performance of some act: Stergiou would return his shares of the GMF Companies' stock, the GMF Companies would pay $300,000, and together the parties would dismiss the lawsuit with prejudice. See Padilla, 907 S.W.2d at 460-61 (noting that material terms of Rule 11 settlement agreement include payment and release of claims); see also CherCo Props., Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 266 (Tex.App.-Fort Worth 1999, no pet.) (holding settlement agreement that included terms of payment and statement that parties would execute mutual releases contained all material terms). The Rule 11 agreement further detailed when the stock would be returned ("upon payment of the $20,000 down payment... and the execution of all documents necessary to provide the security described therein"), how and when the money would be paid (in the form of a "promissory note" with "$20,000 of principal... paid on or before May 3, 2006" and monthly installments of $4,000 thereafter), the interest that would accrue ("6.5% per annum"), and the nature of the collateral ("all furniture, fixtures, equipment, receivables (from the ordinary course of business), inventory, and real property owned by the GMF Companies known [as] (the White Buildings and the empty lot) (excluding the four lots the `Blue Building' resides upon and the `Blue Building')"). See T.O. Stanley Boot Co., 847 S.W.2d at 221 (noting that material terms of contract to loan money are loan amount, maturity date, interest rate, and repayment terms). We acknowledge that the Rule 11 agreement required the parties to execute a promissory note, a deed of trust, a security agreement, and a financing statement, and that, as an affidavit included in Stergiou's summary judgment evidence suggests, the "forms" for those documents include certain standard provisions for things like
In Martin, two brothers had a dispute over the management of their closely-held corporation. 326 S.W.3d at 743. In an effort to settle their dispute over "corporate control," the brothers reached a "settlement agreement" that, among other things, required them to negotiate a shareholder agreement. Id. at 743-44. They never agreed as to the terms of the shareholder agreement. The court of appeals concluded that their settlement was not an enforceable agreement because the to-be-negotiated shareholder agreement "would be the foundational document of [the company] and would define the [brothers'] rights vis-a-vis each other and [the company]." Id. at 754. Here, the additional documents do not have the same "foundational" importance to the underlying dispute. The essence of the Rule 11 agreement is the GMF Companies' promise to pay Stergiou $300,000 in exchange for the return of the GMF Companies' stock and the dismissal of the lawsuit. Although the Rule 11 agreement requires the GMF Companies to make installment payments for a number of years, it does not require Stergiou to have a relationship with the GMF Companies akin to the parties in Martin, who continued to be involved in the operation of the same closely-held corporation.
In DKH Homes, LP v. Kilgo, No. 03-10-00656-CV, 2011 WL 1811435 (Tex. App.-Austin May 11, 2011, no pet.) (mem. op.), a homebuilder alleged that the Kilgos failed to comply with a contractual obligation to build a new home. 2011 WL 1811435, at *1. The court of appeals determined that the parties' agreement did not include all terms essential to a contract for the construction of a new home. Id. at *3 (noting appellant's acknowledgement that agreement lacked several elements it considered essential to contract for construction of home). The agreement did not sufficiently define the undertaking, such as the size of the house contemplated, the price of the house on a per-square-foot or other basis, or the time for completing construction. Id. Stergiou argues that, like the specifications for the construction of a home in Kilgo, a security agreement is absolutely necessary to define the parties' undertaking here. Two terms for security are included in the Rule 11 agreement — the identity of the collateral and the obligation that the security agreement would provide Stergiou with a first lien. Certainly the detailed terms of a security agreement may be essential in some agreements to make future payments, but that cannot be said to be always true. Whether a term is essential should be determined on a case-by-case basis. T.O. Stanley Boot Co., 847 S.W.2d at 221; see also Potcinske, 245 S.W.3d at 531 (observing that "different considerations come into play when determining the materiality of a finance provision in each context").
This case is more analogous to Montanaro v. Montanaro, 946 S.W.2d 428 (Tex.App.-Corpus Christi 1997, no writ) and Sadeghi v. Gang, 270 S.W.3d 773 (Tex. App.-Dallas 2008, no pet.). Montanaro was a suit for an accounting, dissolution of a family-owned partnership, fraud, and breach of fiduciary duties. 946 S.W.2d at 429. The parties agreed on the general terms of their settlement, including payment obligations and the release of claims. Id. The payment obligations were to be secured by a to-be-drafted promissory note, but despite having exchanged drafts, the parties could not agree on the promissory note's terms. Id. at 431. The court of appeals concluded that the record nevertheless established the essential terms of a settlement agreement because, like Stergiou and the GMF Companies, the parties agreed as to the exact amount of the payments and the period over which they were to be made. Id. "Additional terms regarding overdue, or post-maturity, interest and acceleration upon default were not necessary to enable the parties to comply with the terms of the note, or the underlying settlement agreement ...." Id.
The court of appeals in Sadeghi reversed a summary judgment that a settlement agreement announced on the record was unenforceable. 270 S.W.3d at 774. Similar to the facts here,
Id. at 776-77. Likewise here, we conclude that the particular terms of the additional documents were not essential and therefore did not destroy the Rule 11 agreement's effectiveness, and we hold that the Rule 11 agreement is not an unenforceable "agreement to agree."
Stergiou further asserts that there is a fact issue as to whether the execution of the additional documents was a condition precedent to the formation of a binding Rule 11 agreement. As we have already noted, a binding settlement may be shown even if the parties contemplate that a more formal document memorializing their agreement will be executed at a later date. See Fort Worth Indep. Sch. Dist., 22 S.W.3d at 846; Foreca, S.A. v. GRD Dev. Co., 758 S.W.2d 744, 745-46 (Tex.1988). The critical issue for determining enforceability when the parties agree that some terms will remain open is whether the parties intended for their agreement to be a present binding (enforceable) agreement in the absence of an agreement on the remaining terms or whether they intended their agreement to have no legal significance until agreement on the remaining terms is reached.
Contrary to his statement to the trial court that the parties had reached an "agreement," Stergiou now contends that a fact issue exists on whether he intended to agree or merely agreed to agree. While intent is normally an issue of fact, "in some cases, a court may determine the intentions of the parties as a matter of law." MCRB I, Ltd. v. Sw. Rail Indus., Inc., No. 141000922CV, 2011 WL 4031023, at *3 (Tex.App.-Houston [14th Dist.] Sept. 13, 2011, no pet.) (mem. op.) (citing WTG Gas Processing, L.P. v. ConocoPhillips Co., 309 S.W.3d 635, 643 (Tex.App.-Houston [14th Dist.] 2010, pet. denied)). "[T]he actions of the parties may conclusively establish their intention to enter a binding agreement even if some terms are left for future agreement." Tex. Oil Co. v. Tenneco, Inc., 917 S.W.2d 826, 830 (Tex.App.-Houston [14th Dist.] 1994), rev'd on other grounds, 958 S.W.2d 178 (Tex.1997); see also RESTATEMENT (SECOND) OF CONTRACTS § 33(1) cmt. a (1981) ("[T]he actions of the parties may show conclusively that they have intended to conclude a binding agreement, even though one or more terms are missing or are left to be agreed upon."). As a matter of law, the record here does not support Stergiou's contention on appeal.
The parties did not indicate an intent not to be bound before the trial court or in the Rule 11 agreement itself. The transcript of the trial court proceedings clearly reflects that the parties were entering into a settlement agreement. At no time did either party state on the record that the Rule 11 agreement was merely a preliminary agreement. That is, neither party nor their counsel informed the trial court of any terms, material or otherwise, upon which agreement had yet to be reached. Although the Rule 11 agreement read into the record contemplated execution of additional documents, this was not characterized as a condition requisite to the formation of a binding settlement agreement; indeed, the Rule 11 agreement does not include any language indicating that the parties had engaged only in preliminary negotiations or that their agreement was contingent on agreement as to the terms of the additional documents. Cf. Foreca, 758 S.W.2d at 745 (formal documentation was condition precedent to formation of contract when provision in document containing material terms for sale and purchase of amusement park rides provided that document was "subject to legal documentation contract to be drafted by [the attorney for one of the parties]"); Border Gateway, 2011 WL 4361485, at *3 (stating that "a condition precedent to contract formation is `clearly' evidenced where an agreement unequivocally provides that a party does
Moreover, the summary judgment record is not limited to the absence of evidence of an intention not to be bound — the parties affirmatively represented to the trial court that they were bound by the Rule 11 agreement and requested that the trial court approve its terms. Cf. Ronin, 7 S.W.3d at 888 (observing that, in response to trial court's inquiry, party stated his agreement to terms of settlement dictated into record, and considering lack of statement on record that Rule 11 agreement was only preliminary factor in enforcing agreement). The parties behaved as though their settlement was binding after the hearing by working on the settlement documents after the trial court approved the Rule 11 agreement. They exchanged drafts of the additional documents contemplated by the Rule 11 agreement, and they twice extended the agreed deadline for dismissing the lawsuit in order to continue negotiating the terms of the additional documents.
The timing and circumstances of this particular settlement agreement also evidence an intention to be bound immediately. The specific terms of the settlement were contingent on the jury's verdict. If the Rule 11 agreement was only preliminary and not intended to be final until the details of the additional documents were agreed upon, the party that prevailed before the jury might prefer the "win" over the compromised settlement, have little incentive to agree to the details of the additional documents, and choose to escape the settlement simply by refusing to execute the additional documents. Thus, in effect, Stergiou's interpretation reads a "get out of jail free" card into the Rule 11 agreement. If we were to hold as Stergiou suggests, trial courts would have difficulty approving settlements entered on the eve of trial or, as here, during the jury's deliberations because the parties generally will require additional time to prepare the formal documents memorializing their agreement. On the other hand, it is relatively easy to make it clear to the trial court that the agreement is contingent on further agreement on other documentation. Yet there is no evidence that Stergiou viewed the agreement as to the terms of the security agreement — other than the identification of the collateral, which was set out in the agreement — as a condition precedent to the formation of a binding settlement.
We thus conclude that agreement upon the terms of the additional documents
Stergiou next argues that absent the parties' agreement on the terms of the additional documents, the Rule 11 agreement cannot be enforced as written because its terms are not sufficiently definite. He complains that it is impossible to enforce the Rule 11 agreement because the parties cannot agree on the additional documents' terms and a reviewing court cannot supply terms not agreed upon by forcing either Stergiou or the GMF Companies to accept the other's version of the additional documents. This challenge to the definiteness of the Rule 11 agreement is closely related to the issue just decided — namely, the issue of whether the terms of the additional documents are essential and whether the failure to execute those documents renders the Rule 11 agreement unenforceable.
"[A] contract is legally binding only if its terms are sufficiently definite to enable a court to understand the parties' obligations." Fort Worth Indep. Sch. Dist., 22 S.W.3d at 846; see also T.O. Stanley Boot Co., 847 S.W.2d at 221 (observing that contract must "be sufficiently definite in its terms so that a court can understand what the promisor undertook"); Gannon v. Baker, 830 S.W.2d 706, 709 (Tex.App.-Houston [1st Dist.] 1992, writ denied) ("If an alleged agreement is so indefinite that it is impossible for a court to fix the legal obligations and liabilities of the parties, it cannot constitute an enforceable contract."); Playoff Corp. v. Blackwell, 300 S.W.3d 451, 455 (Tex.App.-Fort Worth 2009, pet. denied) (same). "The rules regarding indefiniteness of material terms of a contract are based on the concept that a party cannot accept an offer so as to form a contract unless the terms of that contract are reasonably certain." Tex. Oil Co., 917 S.W.2d at 830. The Restatement states that contract terms are reasonably certain "if they provide a basis for determining the existence of a breach and for giving an appropriate remedy." Restatement (Second) of Contracts § 33(2) (1981); see Kelly, 128 S.W.3d at 766; Oakrock Exploration Co., 87 S.W.3d at 690; Martin, 326 S.W.3d at 749. "The degree of certainty required may be affected by the dispute which arises and by the remedy sought." RESTATEMENT (SECOND) OF CONTRACTS § 33 cmt. a (1981). For example, when a suit seeks money damages — rather than specific performance — less certainty is needed to render a contract enforceable. Somers v. Aranda, 322 S.W.3d 342,
Moreover, the fact that the parties have left certain terms open for negotiation in an agreement that they intend to be binding does not make the agreement indefinite; "courts endeavor, if possible, to attach a sufficiently definite meaning to" an agreement intended to be binding, "even though one or more terms are missing or are left to be agreed upon.... Where the parties have intended to conclude a bargain, uncertainty as to incidental or collateral matters is seldom fatal to the existence of the contract." RESTATEMENT (SECOND) OF CONTRACTS § 33 cmt. a; see Kelly, 128 S.W.3d at 766 (explaining that "Texas courts favor validating transactions rather than voiding them"); E.P. Towne Ctr. Partners, 242 S.W.3d at 122 ("Where the parties have intended to conclude a bargain, the agreement's silence as to non-essential, or collateral, matters is not fatal."); see also Crest Ridge Constr. Grp., Inc. v. Newcourt Inc., 78 F.3d 146, 152 (5th Cir.1996) (Benavides, J., concurring) ("Industry custom can fill in missing terms of a contract or determine the meaning of an agreement"); Tex. Oil Co., 917 S.W.2d at 830 (observing that, in certain situations, court may uphold agreement by supplying missing terms but may not create contract where none exists or interject or eliminate essential terms). Whether an agreement fails for indefiniteness is a question of law. Am.'s Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex.App.-San Antonio 1996, writ denied).
In support of his contention that the Rule 11 agreement fails for indefiniteness, Stergiou argues this case is analogous to Nash v. Conatser, 410 S.W.2d 512 (Tex. App.-Dallas 1966, no writ). There, the court observed that specific performance of a contract cannot be ordered when the contract is unenforceable for lack of material terms. Id. at 519-21. Because we have already disapproved of Stergiou's assertion that the Rule 11 agreement lacked material terms by overruling Stergiou's first issue, Nash is not controlling.
Here, the Rule 11 agreement set out the amounts to be paid for the return of the GMF Companies' stock and the dismissal of the lawsuit, how those amounts were to be paid and when, and the interest rate. These terms provide a basis for determining the existence of a breach and for giving an appropriate remedy, meaning they are sufficiently definite to enable a court to ascertain the parties' respective legal obligations. We therefore hold that the terms of the Rule 11 agreement are not so indefinite so as to preclude its enforcement, and we overrule Stergiou's second sub-issue.
Part of the dispute on appeal concerns the description of the security for Curry's promise to pay Stergiou $300,000 for the return of his stock. The Rule 11 agreement provides that the promissory note "will be secured by a first lien Deed of Trust and Security Agreement covering all furniture, fixtures, equipment, receivables (from the ordinary course of business), inventory, and real property owned by the GMF Companies known [as] (the White Buildings and the empty lot) (excluding the four lots the `Blue Building' resides upon and the `Blue Building') of General Metal Fabrication, Inc. and GMF Leasing, Inc."
Stergiou argues that we should reverse the trial court's summary judgment and render judgment that the Rule 11 agreement is not enforceable because it does not sufficiently describe the real property offered as security. This argument rests on the premise that the Rule 11 agreement is
The statute of frauds does not require that a complete description of the land to be conveyed appear in a single document. See Padilla, 907 S.W.2d at 460 (holding that series of letters between parties satisfied statute of frauds). A property description is sufficient if the writing furnishes within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. See AIC Mgmt. v. Crews, 246 S.W.3d 640, 645 (Tex.2008). The description of the land may be obtained from documents that are prepared in the course of the transaction, even if those documents are prepared after the parties' contract for sale. See Porter v. Reaves, 728 S.W.2d 948, 949 & n. 2 (Tex.App.-Fort Worth 1987, no writ) (description of land as "1/2 of a 20-acre tract" satisfied statute of frauds because location of tract was not disputed, parties referenced drawing of tract in their contract, and seller was required to furnish "current survey" of land after contract was executed); see also Adams v. Abbott, 151 Tex. 601, 254 S.W.2d 78, 80 (1952) (description furnished by exchange of correspondence between the parties).
The GMF Companies' summary judgment evidence included Curry's affidavit testimony that they owned three tracts of land, which were commonly referred to as the "Blue Building," the "White Buildings," and the "empty lot." Stergiou's attorney drafted the Rule 11 agreement using those same terms. Although the Rule 11 agreement describes the property to be secured by the deed of trust only as the "White Buildings" and "empty lot," but not "the four lots the `Blue Building' resides upon and the `Blue Building,'" the various deeds of trust and the security agreements circulated as drafts between the parties contain sufficient legal descriptions of those properties. The "White Buildings" are described as:
The "empty lot" is described as:
These same legal descriptions appear in the drafts prepared by Stergiou and in the drafts prepared by the GMF Companies. Thus, there was no dispute between the parties regarding the identification of the real estate.
For this reason, we hold that the statute of frauds does not bar enforcement of the Rule 11 agreement, and we overrule Stergiou's third sub-issue.
Having determined that the Rule 11 agreement is enforceable, we now consider whether, as argued by the GMF Companies in their appeal, the agreement authorized Curry to pay the entire amount owed under the agreement at one time. In four issues, the GMF Companies contend (1) the Rule 11 agreement included a right of
The Rule 11 agreement provided that the GMF Companies would pay Stergiou $300,000, in the form of a promissory note and on the following terms:
There is no dispute that, pursuant to these provisions, the GMF Companies tendered the full $300,000 owed to Stergiou before the down-payment deadline.
In their first issue, the GMF Companies argue that the trial court erred in determining that they had no right to prepay the full $300,000 because the agreement included language requiring payment of $20,000 of principal "on or before" May 3, 2006. They assert that "when an instrument permits a payment `on or before' a certain date, the maker — while required to make the minimum payment due by that date — also has the right to prepay any other amount, so long as he does so by the due date. And, the right to prepay is not simply a right to pay early, but a right to avoid paying unearned interest." Stergiou responds that the "on or before" language applied only to the $20,000 down payment and did not confer any general right to prepay the future payments owed. According to Stergiou, the interpretation urged by the GMF Companies would vitiate his right to receive interest and a long-term payout under the settlement.
When a contract is not ambiguous, we construe it according to the plain meaning of its express wording and enforce it as written. Chapman v. Abbot, 251 S.W.3d 612, 616-17 (Tex.App.-Houston [1st Dist.] 2007, no pet.). "Extrinsic evidence may not be used to create an ambiguity." See Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 745. (Tex.1998). "We may, however, examine the contract as a whole in light of the circumstances present when the contract was entered." Transcontinental Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 665 (Tex. App.-Houston [1st Dist.] 2000, pet. denied).
"Our primary concern when interpreting a contract is to ascertain and give effect to the intent of the parties as it is expressed in the contract." Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006); see also Padilla, 907 S.W.2d at 460 (providing that contract law governs settlement agreements made pursuant to Rule 11). "To achieve this objective, we examine the entire writing in an effort to harmonize and give effect to all the contract's provisions so that none will be rendered meaningless."
As is often true in cases involving contract disputes, neither side asserts that the Rule 11 agreement's payment provisions are ambiguous. But the existence of ambiguity is a legal question for the court. Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996). If the contract can be given a certain or definite legal meaning, it is not ambiguous, and a court should construe the contract as a matter of law. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex.2005). When a contract contains an ambiguity, however, the instrument's interpretation is a fact issue. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983); Quality Infusion Care, Inc. v. Health Care Serv. Corp., 224 S.W.3d 369, 379 (Tex.App.-Houston [1st Dist.] 2006, no pet.).
The words "on or before" have a particular meaning in Texas case law. More than one hundred years ago the Texas Supreme Court wrote: "The words `on or before' are of such common use in promissory notes as to be well understood to mean, `immediately at or at any time in advance of,' `a period named.'" Lovenberg v. Henry, 104 Tex. 550, 140 S.W. 1079, 1080 (Tex.1911). The GMF Companies rely on this well-established definition to support their assertion of a right to prepay the entire amount owing under the rule 11 agreement. But there is a critical distinction in the authorities cited by the GMF Companies: in each case the "on or before" language immediately preceded the payment at issue or the contract included an express right of prepayment. See Cmty. Sav. & Loan Ass'n v. Fisher, 409 S.W.2d 546, 548 (Tex.1966) (note included express provision for prepayment of "entire balance before maturity"); Novosad v. Svrcek, 129 Tex. 34, 102 S.W.2d 393, 394 (1937) (involving three payment obligations, each using "on or before" language); Lovenberg, 140 S.W. at 1080 (involving single payment obligation using "on or before" language); Karam v. Ballou, 673 S.W.2d 643, 643 (Tex.App.-Texarkana 1984, writ ref'd n.r.e.) (involving two payment obligations, each using "on or before" language); Fortson v. Burns, 479 S.W.2d 722, 723 (Tex.App.-Waco 1972, writ ref'd n.r.e.) (involving monthly installment obligations, each installment being due "on or before" certain date).
To apply these authorities here, we would have to presume that, by including the "on or before" language in the down payment provision, the parties intended it to apply to all of the payment provisions even though that language is not included in the provision for the future payments that are at issue. The structure of the rule 11 agreement counsels against making such a presumption. The down-payment provision and the future-payment provision are separately stated in separate bullet-pointed paragraphs using complete punctuation. The agreement uses different language to establish the time at which the down payment and monthly installments were due and payable. Moreover, under settled Texas law, "unless the loan agreement provides otherwise, a borrower does not have the right to prepay the loan." Groseclose v. Rum, 860 S.W.2d 554, 557 (Tex.App.-Dallas 1993, no writ); Fisher, 409 S.W.2d at 551 (contract did not permit prepayment of monthly payments where only express prepayment privilege was with respect to entire balance of the note); Ware v. Traveler's Indem. Co., 604 S.W.2d 400, 401 (Tex.Civ.App.-San Antonio 1980, writ ref'd n.r.e.) (note allowing prepayment of principal "on any interest due date" did not permit prepayment on any other dates); Shipp v. Anderson, 173 S.W. 598, 600 (Tex.Civ.App.-Galveston 1915, no writ) (absent contractual right, borrower
The language "on or before" in the Rule 11 agreement applies only to the down payment. The monthly payments, on the other hand, are governed by the language, "Commencing on June 1, 2006, and continuing monthly on the same day of each month thereafter an[ ] installment... shall be due and payable." (emphasis added). When the contract specifies that an amount is payable on a certain date, but not on or before that date, the amount is not payable at any other time. Ware, 604 S.W.2d at 401; see also Burns v. True, 5 Tex.Civ.App. 74, 24 S.W. 338, 340 (1893) (notes maturing on fixed dates, not on or before such dates, not subject to prepayment). Further, when the contractual language establishes a right to prepay a certain amount, that right does not extend to prepayment of other sums. Fisher, 409 S.W.2d at 551. We therefore reject the contention of the GMF Companies that the inclusion of "on or before" in the down-payment provision permits prepayment of any other amounts. Id.; see also Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 646 (Tex.1996) ("We have long held that courts will not rewrite agreements to insert provisions parties could have included or to imply restraints for which they have not bargained.").
The GMF Companies argue that giving too much weight to the structure of the rule 11 agreement ignores their undisputed intent to provide a mechanism by which they could avoid paying Stergiou interest on the balance owed. Curry explained in his affidavit that "[he] did not believe [he] would have access to $300,000, which would be required in the event the jury's verdict went against GMF. [He] therefore sought to include a provision in the [rule 11 agreement] that would allow GMF to pay the $300,000 settlement amount if the jury's verdict required GMF to pay that amount." But this is evidence that Curry was concerned the GMF Companies could pay the $300,000 owed at all, not that his concern was for the avoidance of interest.
We also reject the GMF Companies' contention that the Rule 11 agreement required a down payment of "at least" $20,000. GMF Companies rely on Black's Law Dictionary to support their contention that a "down-payment" usually refers to the minimum amount due. See BLACK'S LAW DICTIONARY 1244 (9th ed.) (2009). Such usage stems from the creditor's limitation on the amount of credit available to a borrower and does not affect our interpretation of the unambiguous requirement here for "$20,000 of principal." Nor do we find it persuasive that the agreement does not state the amount of principal due at the start of the monthly payment period or specify an amortization schedule or number of monthly payments. GMF Companies do not identify any authority for the principle that the absence of such elements indicates the existence of a prepayment right. To read the agreement as calling for an initial payment of "at least $20,000 of principal" would imply the words "at least" before each payment amount in any
Finally, we reject the contention that the term "until paid" implies that the parties contemplated prepayment of any amounts. As used in the Rule 11 agreement, the term "until paid" simply establishes that monthly payments would continue until the debt was satisfied, without a balloon payment or any breaks in the series of payments. The cases upon which GMF Companies rely are not controlling and are distinguishable. For example, in Miller v. Potier, 649 So.2d 1130 (La.Ct. App.1995), a Louisiana intermediate court held that borrowers who made prepayments against a mortgage without paying its full balance were not relieved of the obligation to make future monthly payments. Id. at 1130-31. The lender accepted the payments, but applied them to principal, rather than as prepayments of monthly installments. Id. The issue was not whether the borrowers had a right of prepayment, but how prepayments voluntarily accepted by the lender were to be applied. Id. at 1131-32. The court therefore did not rely on the "until paid" language of the note in reaching its conclusion. Id. at 1132.
Likewise, in In re Hunter, 144 B.R. 871 (Bankr.D.S.D.1992), the bankruptcy court considered a bankruptcy plan in which the parties had contemplated payment of a ten percent dividend, to be paid in ten annual installments without interest. 144 B.R. at 872, 874. The liens and encumbrances held by the creditors were to be held "until paid in accordance with this Plan." Id. at 872. The debtor, however, sought to pay less than the agreed amount by paying the "present value" of the obligations — that is, the agreed amount minus an offset for a hypothetical rate of return. Id. The court held that prepayment of the agreed — upon amounts would be consistent with the goals of the bankruptcy plan, because it would return the contemplated dividend, but payment of the "present value" of those payments was not permitted. Id. at 875. Hunter is thus comparable to a scenario in which the GMF Companies had tendered all of the contemplated payments, not merely the original principal of the debt. That is not the scenario before us. On the contrary, when "the holder has bargained for the right to receive interest during the term of the instrument, the holder has the right to refuse an offer of payment before the instrument is due." Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 187 (Tex.App.-Corpus Christi 1999, no pet.).
GMF Companies also rely on Coco v. Soniat, 144 So.2d 432, 433 (La.Ct.App. 1962), where a Louisiana court construed an agreement requiring annual payments with "interest at six per cent per annum from date [u]ntil paid." That agreement, however, explicitly permitted prepayment of certain amounts. Id. The court decided not whether such a right existed, but whether the prepayment constituted an advance of the next annual installment or a prepayment of principal. Id. GMF Companies' other cases are similarly distinguishable. E.g., Engler v. Senter, No. 0404164CVCNKL, 2006 WL 1476945, at *4 (W.D.Mo.2006) (prepayment right based on express provision that "Buyer shall have the right of prepayment ... at any time" and not on language "until balloon is paid on or before 1 year"); see also Stauth v. Brown, 241 Kan. 1, 734 P.2d 1063, 1067 (1987) (prepayment right did not derive from "until the total price is paid" language where contract explicitly gave borrowers right to prepay "all or any part of the unpaid balance without penalty").
GMF Companies also rely on a line of cases from other states construing the language "if not sooner paid" as conferring a right of prepayment. See Latimer v. Grundy Cnty. Nat'l Bank, 239 Ill.App.3d 1000, 180 Ill.Dec. 400, 607 N.E.2d 294, 296 (1993) (language "shall be due and payable on June 1, 2003, if not sooner paid" contemplated prepayment right); Beth-June, Inc. v. Wil-Avon Merch. Mart, Inc., 211 Pa.Super. 5, 233 A.2d 620, 622 (1967) (holding that prepayment right existed where contract called for payment of "balance of principal remaining unpaid together with accrued interest thereon, if not sooner paid"). The Rule 11 agreement does not contain such language or its equivalent. These cases therefore have no relevance to this dispute.
A plain, literal reading of the words used in the rule 11 agreement compels a conclusion that the agreement did not confer any right of prepayment with respect to the GMF Companies' future payment obligations. Consequently, the trial court did not err in granting summary judgment against the GMF Companies on this issue, and we overrule their first issue.
In their remaining issues, the GMF Companies argue that they substantially performed under the Rule 11 agreement, that Stergiou waived his right to collect interest on the settlement amount by refusing the GMF Companies' tender of full payment under the Rule 11 agreement, and that Stergiou failed to mitigate his damages. The trial court, however, authorized this interlocutory appeal only from the "two orders ... on the parties' cross motions for summary judgment on the issues of whether (1) their Rule 11 settlement agreement is enforceable, granted in favor of [the GMF Companies], and (2) [the GMF Companies] had the right to prepay the amount due under the Rule 11 settlement agreement, granted in favor of [Stergiou]." See Act of May 27, 2005, 79th Leg., R.S., ch. 1051, § 1, 2005 Tex. Gen. Laws 3512, 3513, amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 203, § 3.01, 2011 Tex. Gen. Laws 759, 761 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West Supp.2013)).
Given that the trial court's orders and the parties' joint notice of appeal frame the issues to be decided in the same narrow manner, we conclude that the GMF Companies' arguments regarding their substantial performance of the Rule 11 agreement, Stergiou's waiver of the right to receive interest, and Stergiou's alleged failure to mitigate damages are outside the scope of this appeal. We therefore overrule the GMF Companies' second, third, and fourth issues.
Having concluded that the trial court did not err in determining that the Rule 11
Justice SHARP, dissenting with opinion.
JIM SHARP, Justice.
Although I agree with the Court that the parties' Rule 11 agreement is enforceable, I disagree with the Court's interpretation of the agreement's payment provisions in its May 29, 2014 opinion. I would hold — as the Court did in its last opinion — that the Rule 11 agreement includes a right of prepayment and therefore authorized Curry to pay the entire amount owed on or before the down-payment deadline. In its third opinion issued on September 17, 2013, the Court correctly held that:
Because the Court has changed course and now holds otherwise, I do not join that part of the Court's opinion and I respectfully dissent from the Court's judgment.
The GMF Companies correctly assert that the words "on or before" have a particular, commonly accepted meaning: they permit the obligor to pay any amount of principle not due "`immediately at or at any time in advance of,' `a period named.'" Lovenberg v. Henry, 104 Tex. 550, 140 S.W. 1079, 1080 (Tex.1911). Nothing in the Rule 11 agreement prohibits prepayment. Yet, relying on the "structure" of an agreement drafted in haste while the jury deliberated, the Court concludes that any right of prepayment is severely limited in this case-i.e., Curry may prepay the down payment of $20,000 principal but may not prepay the future monthly installments. The Court adopts this construction of the agreement because the down-payment and monthly installment provisions are "separately stated ... using complete punctuation."
I would not place such great weight on the "structure" of the Rule 11 agreement. The right of prepayment is not important because it allows for the payment of principal before it is due. The right of prepayment is important because it allows for the avoidance of unearned interest. By holding that the Rule 11 agreement only authorizes Curry to prepay $20,000 in principal as a down-payment, the Court renders the "on or before" language meaningless because no interest was earned on that amount. Instead, the Rule 11 agreement provides for the accrual of interest after the down-payment deadline. I agree with the GMF Companies that "the only way to give meaning to `on or before' in the `down-payment' paragraph — and to harmonize that term-of-art with the more restrictive `on' in the next paragraph — is to interpret the [Rule 11 agreement] as authorizing [the GMF Companies] to prepay so much of the settlement amount as [they] desired (including the full amount), so long as that occurred on or before" the down-payment deadline.
I also agree with the GMF Companies that the plain language of the Rule 11 agreement (i.e., monthly installments are only due "until the Note has been paid in full") clearly contemplates the accrual of interest on the unpaid principal balance, but only as long as there is a balance. As the GMF Companies correctly point out, other courts have consistently construed
In light of the plain language of the Rule 11 agreement and given that there is no dispute that Curry tendered the full $300,000 owed under the agreement to Stergiou, I would reverse the trial court's summary judgment that the Rule 11 agreement did not convey any right of prepayment and render judgment for the GMF Companies on this issue.
Justice SHARP, dissenting.
Id. at 628; see also Goetting, 353 S.W.3d at 300 (stating that term is essential "if, when contracting, the parties would reasonably regard it as a vitally important element of the bargain"); Domingo v. Mitchell, 257 S.W.3d 34, 40-41 (Tex.App.-Amarillo 2008, pet. denied).
Id. (quoting 1 Corbin on Contracts 87-91, 93-95 (1963)); see also Frank B. Hall & Co., Inc. v. Buck, 678 S.W.2d 612, 629 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.) (citing same).
