Opinion
No. 11-14-00261-CV
02-18-2016
PERFORMANCE CHEMICAL COMPANY, Appellant v. ECHOLS HOLDING, LLC, Appellee
On Appeal from the 244th District Court Ector County, Texas
Trial Court Cause No. C-136,518
MEMORANDUM OPINION
This is an appeal from a summary judgment order entered in favor of Echols Holding, LLC as to Echols's motion to enforce a mediation agreement entered into by Echols and Performance Chemical Company. We modify and affirm.
In 2012, Performance Chemical Company leased a lot from Echols. When Performance moved from the premises in 2013, Performance spilled Pro-Hib 315, a scale inhibitor, on the property. Performance hired Eco-Logical Environmental Services, Inc. to clean up the spill. Performance believed that the spill was cleaned up adequately; Echols did not.
Echols filed suit against Performance for breach of contract, negligence, and negligence per se. The parties mediated the underlying suit and signed a mediation agreement. The mediation agreement provided that Echols would accept $40,000 from Performance as full and final settlement of all claims in connection with the suit. Subsequently, Echols filed an amended petition and claimed that Performance breached the mediation agreement when it failed to perform its obligations under the agreement. Performance filed an amended answer and counterclaim and alleged that the mediation agreement was unenforceable. Performance also alleged that it was excused from performing under the terms of the mediation agreement because Echols breached the agreement when it attempted to dispose of the soil by using forms that were not agreed upon during the mediation. Performance also claimed that Echols fraudulently induced it into signing the agreement.
Echols filed traditional and no-evidence motions for summary judgment. It later filed amended motions. Echols argued in its amended traditional motion for summary judgment that it was entitled to judgment as a matter of law on its claim for breach of the mediation agreement and on its underlying claim of breach of the lease agreement. Echols included an alternative motion to enforce the mediation agreement and Rule 11 agreement within its traditional motion for summary judgment. In its amended no-evidence motion for summary judgment, Echols attacked certain elements of Performance's defenses and counterclaims of fraudulent inducement and breach of the mediation agreement. Performance filed a combined response to Echols's motions. Both parties objected to certain evidence included within the other party's motions/response; however, the trial court did not rule on any of the parties' objections. The trial court entered an order granting Echols's motion, "as it pertains to the request for enforcement of the mediation agreement." The trial court found that the mediation agreement was an enforceable contract, that it was not ambiguous, and that no genuine issue of material fact existed to refute the elements of the contract. The trial court further found that Performance breached the mediation agreement when it failed to submit payment to Echols in a timely manner and in accordance with the terms of the agreement.
Subsequently, Echols filed a motion in which it requested the trial court to reconsider and increase the attorney's fees awarded in the trial court's order regarding the motion to enforce. After a hearing on the motion, the trial court granted Echols's request and increased the award of attorney's fees to $15,540 from $12,850. In the modified final judgment, the trial court ordered that Echols was entitled to recover the $40,000 that Performance owed under the terms of the mediation agreement, $15,540 in attorney's fees, $4,274.93 in costs of court, and pre- and post-judgment interest. The trial court also ordered that Echols was entitled to recover $7,500 in attorney's fees if Performance pursued an appeal in our court and $5,000 if it pursued an appeal in the supreme court. Performance filed motions for a new trial, which the trial court denied.
Performance presents four issues for our review. In its first three issues, Performance argues that the trial court erred when it granted Echols's traditional and no-evidence motions for summary judgment and when it granted Echols's motion to enforce the mediation agreement. Performance contends in its fourth issue that the trial court erred when it unconditionally granted Echols's appellate attorney's fees.
We review a trial court's grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the nonmovant. Id. A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The nonmovant is not required to file a response to defeat the movant's summary judgment motion; however, once the movant establishes a right to judgment as a matter of law, the nonmovant must come forward with evidence or law that precludes summary judgment. Clear Creek, 589 S.W.2d at 678-79.
We note that the general rule is that, when a party moves for summary judgment on both traditional and no-evidence grounds, we review the no-evidence grounds first. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). However, here, the rule is not applicable because, even if Performance failed to meet its burden to produce legally sufficient evidence to meet its burden as to the no-evidence motion, which attacked elements of Performance's defenses and counterclaims, we would still need to address whether Echols satisfied its burden under its traditional motion in which it claimed that it was entitled to judgment as a matter of law on its breach of contract claim against Performance. See id. (stating that the reasoning behind the rule is that, "if the non-movant fails to produce legally sufficient evidence to meet his burden as to the no-evidence motion, there is no need to analyze whether the movant satisfied its burden under the traditional motion"). --------
In its first issue, Performance alleges that the trial court erred when it granted Echols's traditional motion for summary judgment because Echols did not conclusively prove that the mediation agreement was an enforceable agreement in that Echols did not show that the parties had a mutual understanding of the essential terms of the agreement and did not show that there was consideration. In the alternative, Performance argues that it presented sufficient summary judgment evidence to raise a genuine issue of material fact regarding the issue of which documents comprised the mediation agreement, regarding whether there was mutual assent, and regarding whether there was consideration. Performance also argues that it raised a genuine issue of material fact as to whether it was discharged from its contractual obligations due to Echols's material breach of the mediation agreement. Performance contends that Echols breached the agreement by not recognizing that certain documents were part of the agreement and by reporting information to the Texas Commission on Environmental Quality (TCEQ) that was not consistent with the agreement. Performance further argues that it raised a fact question as to whether it was excused from its obligations because Echols had fraudulently induced Performance to enter into the mediation agreement.
The mediation agreement in this case is very short. It is two pages and provides that Echols agreed to accept the sum of $40,000 as full and final settlement of all claims in connection with this matter. According to the agreement, Performance was to tender the amount to Echols no later than 5:00 p.m. on April 28, 2014. The agreement also provided that the parties would each bear its own costs and that the parties would equally divide the mediation fees. Performance was to prepare the "Settlement, Compromise Agreement, and Release of All Claims," as well as the dismissal motion. The parties further agreed that the agreement would remain confidential and that the parties would not disparage one another or their respective companies. Finally, the parties agreed and stipulated that "the soil described in the 'Final Report for Site Cleanup . . .' prepared by Joe W. Quick is one in the same as the soil described in the attached TCEQ Generator Disposal Form signed by Performance Chemical as Generator." The Generator Form and Final Report for Site Cleanup (also referred to by the parties as the June Turner Report & Analysis) were attached to the mediation agreement. The Generator Form described the waste as soil contaminated by nonhazardous and nonregulated liquid product; the description, "Soil Contaminated by spill of fracking chemicals," was crossed out. In addition, the Generator Form indicated that the volume of waste was "5 yards of soil."
The first question we must answer is whether Echols conclusively established, in its traditional motion for summary judgment, that the mediation agreement was enforceable. A settlement agreement, in which the parties execute a written agreement disposing of the dispute, is enforceable in the same manner as any other written contract. TEX. CIV. PRAC. & REM. CODE ANN. § 154.071(a) (West 2011). In its motion, Echols asserted that the agreement complied with TEX. R. CIV. P. 11 and, therefore, was enforceable. Echols attached a sealed copy of the agreement to its motion. Rule 11 states that "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." TEX. R. CIV. P. 11. A settlement agreement must comply with Rule 11 to be enforceable. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995) (citing Kennedy v. Hyde, 682 S.W.2d 525, 528 (Tex. 1984)).
However, Performance does not take issue with whether the agreement complies with Rule 11. The agreement is in writing, is signed, and was filed under seal with the clerk of the court. Performance argues that the agreement is not enforceable because the parties did not have a mutual understanding of the essential terms of the agreement and because there was no consideration. Performance contends that Echols failed to establish these elements in its traditional motion for summary judgment or, in the alternative, that Performance raised a genuine issue of material fact regarding whether these elements existed.
Two of the elements required to establish an enforceable contract are a meeting of the minds and consideration. Coleman v. Reich, 417 S.W.3d 488, 491 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A "meeting of the minds" refers to the parties' mutual understanding of and assent to the subject matter and essential terms of the agreement. Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2007, no pet.). "Evidence of mutual assent in written contracts generally consists of signatures of the parties and delivery with the intent to bind." Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). There is no dispute that representatives of Performance and Echols signed the mediation agreement with the intent to bind one another to the terms of the agreement.
Performance argues that there was no meeting of the minds between the parties regarding various terms of the mediation agreement because the parties did not agree to the following: (1) whether the soil was hazardous or nonhazardous; (2) whether the soil was regulated or nonregulated; (3) whether the June Turner Report & Analysis was valid or invalid; (4) whether the Generator Form was a part of the mediation agreement; (5) whether the June Turner Report & Analysis was a part of the mediation agreement; (6) how many yards of soil were involved; and (7) whether Performance was obligated to perform any additional acts other than compensate Echols under the terms of the mediation agreement. Although the parties may dispute these issues, we do not believe that these issues make up the essential terms of the settlement agreement.
Essential or material terms are those terms that the parties would reasonably regard as vitally important elements of their bargain. Potcinske, 245 S.W.3d at 531 (citing Neeley v. Bankers Trust Co. of Tex., 757 F.2d 621, 628 (5th Cir. 1985)). Here, the essence of the settlement agreement is that Performance promised to pay Echols $40,000 in exchange for the dismissal of the lawsuit. The subject matters on which Performance alleges that there was no meeting of the minds are matters that are ancillary to the mediation agreement. The mediation agreement provides that Performance will pay $40,000 and that Echols will release its claim against Performance for breach of the underlying lease agreement. Performance argues that it believed it was only required to pay $40,000 and that Echols believed the same. The mediation agreement does not require Echols to dispose of the soil, and it does not require Performance to provide anything to Echols so that Echols can dispose of the soil. While not disposing of the soil could be problematic for both parties, there is nothing in the mediation agreement that required any further action by either party regarding the soil. Whether the soil was hazardous or regulated, how many cubic yards of soil were involved, and whether the Generator Form and June Turner Report & Analysis were incorporated as part of the agreement may be important questions to determine before the soil can be disposed of properly, but they are not questions that must be determined for this case.
Performance has not challenged the parties' mutual assent to the essential terms of the settlement agreement, which are that Performance was to pay Echols $40,000 in exchange for settlement of all claims in connection with the suit. See, e.g., CherCo Props., Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 265-66 (Tex. App.—Fort Worth 1999, no pet.) (relying on Padilla, 907 S.W.2d at 461, for the proposition that the material terms of a settlement agreement are "an agreement to pay a specified sum of money in exchange for the settlement of all claims"). Therefore, the agreement does not fail for a lack of a meeting of the minds between the parties.
As to the element of consideration, Performance argued in its response to Echols's motion for summary judgment that valid consideration was not given because Echols was still pursuing the underlying suit. Consideration is a bargained-for exchange of promises. Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). Here, Echols promised to dismiss the suit and release Performance in exchange for Performance's payment of $40,000. Performance has not received the benefit of Echols's promise because Performance failed to pay the settlement amount by the deadline imposed in the mediation agreement, not because the agreement lacked consideration.
We hold that Echols established as a matter of law that the mediation agreement entered into by the parties was an enforceable agreement and that Performance did not raise a genuine issue of material fact as to whether the agreement was unenforceable. We must now determine whether Performance raised a genuine issue of material fact as to whether it was discharged from its contractual obligations due to Echols's material breach of the mediation agreement and as to whether it was excused from its obligations because Echols had fraudulently induced Performance to enter into the mediation agreement.
Performance filed a combined response to Echols's traditional motion and no-evidence motion for summary judgment. Echols attacked Performance's counterclaims of fraudulent inducement and material breach in its no-evidence motion. In its second issue, Performance argues that the trial court erred when it granted Echols's no-evidence motion because Performance raised a genuine issue of material fact as to its fraudulent inducement and material breach claims. Because Echols specifically challenged elements of these claims in its no-evidence motion, we will review this argument under the standard or review for no-evidence motions. Before we reach the merits of the no-evidence motion, however, we must address Performance's other arguments presented within its second issue.
In addition to its argument that it raised a genuine issue of material fact as to its counterclaims, Performance also argues in its second issue that the trial court erred when it granted Echols's no-evidence motion for summary judgment because there was not an adequate time for discovery before Echols filed its motion. Rule 166a(i) of the Texas Rules of Civil Procedure provides that, after adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party has the burden of proof. TEX. R. CIV. P. 166a(i).
Echols alleged in its amended motion that an adequate time for discovery had passed because the matter had been pending since October 20, 2013. However, Performance responded, and the record shows, that Echols amended its suit to include the claim for breach of the mediation agreement on May 23, 2014. Performance also filed its first amended answer and counterclaim on May 23, 2014. The initial suit, which was actually filed on October 30, 2013, alleged that Performance breached the underlying lease agreement, not that Performance breached the mediation agreement. The parties did not enter into the mediation agreement until March 28, 2014. Echols filed its amended no-evidence motion on July 2, 2014. Performance argued that it needed additional time to conduct written discovery and to take several depositions because less than sixty days had passed since Echols filed its amended petition. Specifically, Performance claimed that it still needed time to take the depositions of six people: a TCEQ representative; a Globe Energy Services, LLC representative; a Price Construction representative; Scott Turner; Perry Echols; and Aaron Pachlhofer. The trial court implicitly denied Performance's request when it entered an order in which it granted the motion to enforce the mediation agreement on July 25, 2014.
We review a trial court's determination that there was an adequate time for discovery under an abuse-of-discretion standard. McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To determine whether the trial court permitted an adequate time for discovery we consider several factors, such as the nature of the case, the nature of the evidence necessary to controvert the no-evidence motion, the length of time the case was active, the amount of time the no-evidence motion was on file, whether the movant had requested stricter deadlines for discovery, the amount of discovery that had already taken place, and whether the discovery deadlines in place were specific. McInnis, 261 S.W.3d at 201; see also Milici v. Corr. Corp. of Am., No. 11-03-00373-CV, 2005 WL 673305, at *1 (Tex. App.—Eastland March 24, 2005, pet. denied) (mem. op.) ("An adequate time for discovery depends upon the nature of the claims, the evidence needed to controvert the motion, the length of time the case has been on file, and any deadlines set by the court."). "When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance." Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). But see Ford Motor Co. v. Castillo, 279 S.W.3d 656, 662-63 (Tex. 2009) (holding that it is not necessary for a party to file an affidavit or motion for continuance to preserve error when the trial court denies the party its ability to conduct any discovery on the contested claim).
Here, Performance attached an affidavit to its response in which Performance's attorney attested to the filing dates that we have set out above, as well as to the need for additional time to conduct discovery. There is no question that the time frame between when Echols asserted the claim for breach of the mediation agreement—May 23, 2014—and when Echols filed its no-evidence motion—July 2, 2014—was very short. The time frame from the filing of the motion to the July 25 order, in which the trial court granted the motion to enforce, was also very short. A discovery order was not in place in this case; thus, there were no specific deadlines imposed upon the parties, except that, based on Echols's pleadings, discovery was to be conducted under TEX. R. CIV. P. 190.3 (Level 2). Based on the summary judgment evidence that was attached to each party's motions, we know that at least four depositions had been taken regarding the claims at issue. We also know, based on Performance's motion and on the attached affidavit by counsel, that Performance believed that six additional depositions were necessary. Performance, however, did not articulate any reasons why these six additional depositions were necessary, what it hoped to learn from these six depositions, or why it had not been able to notice or take these additional depositions prior to filing its response.
Rule 166a(g) provides that a trial court may deny the motion for summary judgment or may order a continuance to permit discovery if "it appear[s] from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition." TEX. R. CIV. P. 166a(g). Performance did not provide the trial court, or this court, with reasons as to why it needed more time for discovery or as to why it needed the specific discovery that it requested. Because Performance failed to explain why the additional discovery was necessary, we cannot say that the trial court abused its discretion when it implicitly denied Performance's request for additional time to conduct discovery. See, e.g., Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161-62 (Tex. 2004) (holding that the trial court did not abuse its discretion when it denied the nonmovant's motion for continuance when the nonmovant failed to identify essential facts to justify its need for additional time to conduct discovery).
We now turn to the merits of the no-evidence motion. A trial court must grant a no-evidence motion for summary judgment if the nonmovant fails to produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged element of the cause of action. TEX. R. CIV. P. 166a(i); Ridgway, 135 S.W.3d at 600. A nonmovant produces more than a scintilla of evidence when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ridgway, 135 S.W.3d at 601 (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)) (internal quotation marks omitted).
Echols attacked Performance's counterclaims of fraudulent inducement and breach of the mediation agreement in its no-evidence motion for summary judgment. Regarding the counterclaim for breach of the mediation agreement, Echols argued that Performance had no evidence that Echols materially breached the agreement. Performance responded that Echols breached the agreement when it tried to wrongfully dispose of hazardous waste by using the Generator Form signed by Performance at the mediation agreement and by attaching invalid documents to the Generator Form when submitting the information to TCEQ. Included in Performance's summary judgment evidence are several letters from the TCEQ in which the TCEQ denied authorization to dispose of the waste. Performance also asserted in its response that "the TCEQ states that the soil is regulated and hazardous, a breach of Echols['s] stipulation and representation as set forth in the Mediation Settlement Agreement." Performance further asserted that TCEQ considers the soil in dispute to measure eleven cubic yards, instead of the five yards agreed upon by the parties. In short, Performance responded that Echols breached the agreement by reporting information to the TCEQ that was inconsistent with the agreement.
As we have discussed, the mediation agreement does not require either party to dispose of the soil; thus, Echols could not be in breach of the mediation agreement for wrongfully attempting to dispose of hazardous waste. Whether Echols has somehow damaged Performance by not disposing of the soil in a proper manner is not a question before us. Regardless of whether Performance showed that Echols wrongfully attempted to dispose of hazardous waste by using the Generator Form signed by Performance, Performance failed to produce more than a scintilla of evidence that raised a genuine issue of material fact as to whether Echols materially breached the agreement.
As to the claim for fraudulent inducement, Echols alleged that Performance had no evidence that Echols made any material misrepresentations to Performance, that there was any fraudulent conduct, that Performance justifiably relied on the misrepresentations, or that Performance had suffered any damages due to the misrepresentations. Performance asserted several misrepresentations in its amended answer and counterclaim: (1) that Echols misrepresented and stipulated that the June Turner Report & Analysis was valid and that it pertained to the soil in dispute; (2) that Echols misrepresented that it agreed that the dirt was nonregulated and nonhazardous; (3) that Echols misrepresented that it agreed that the quantity of the dirt was five yards or less; (4) that Echols misrepresented that the Generator Form was being used for the soil in dispute; and (5) that Echols misrepresented the amounts that it was invoiced for storage of the soil.
In its motion, Echols argued that, even if it had made these misrepresentations at mediation, Performance could not actually show that Echols made the misrepresentations because Section 154.073 of the Texas Civil Practice and Remedies Code provides that communications relating to mediation are confidential and cannot be used as evidence in any judicial or administrative proceeding. See CIV. PRAC. & REM. § 154.073(a). In response, Performance explained that it was "not attempting to disclose confidential information by and through its defenses" and that the documents it relied upon, except for the mediation agreement itself, were produced or obtained outside of the mediation process. The trial court made no determination of whether certain evidence used by Performance in its response was inadmissible under Section 154.073. Furthermore, we do not agree that Performance was categorically barred from presenting evidence of representations that may have been made at mediation. While the general rule is that communications relating to mediation are confidential, the statute itself lists several exceptions; courts have also expounded upon these exceptions. See id. § 154.073(c)-(d); see also Avary v. Bank of Am., N.A., 72 S.W.3d 779, 794-95 (Tex. App.—Dallas 2002, pet. denied) (discussing exceptions to Section 154.073). For example, evidence relating to the parties' intent in entering into a settlement agreement, evidence relating to an ambiguity in the agreement, or evidence relating to affirmative defenses to a claim for breach of the agreement, such as what we have here, may, in some circumstances, involve evidence of otherwise confidential mediation communications. Avary, 72 S.W.3d at 800.
Echols also argued that the alleged misrepresentations regarding the validity of the June Turner Report and the description of the soil, if made, had no material effect on the mediation agreement. Performance attached an affidavit from its representative, Jerry Fuller, in which Fuller stated that Performance relied upon the misrepresentations regarding the validity of the report, the description of the soil, and the purpose of the Generator Form when it entered into the mediation agreement. Performance also relied upon the letters from the TCEQ concerning the rejected generator forms to show that Echols misrepresented the validity of the forms and reports, as well as the description of the soil. In addition, Performance attached deposition testimony from Joe W. Quick, the person who prepared the June Turner Report, in which Quick testified that the report was valid only to show proper cleanup of the soil and that it was not valid for disposal purposes.
Although Performance produced evidence regarding the validity of the report and regarding the use of the Generator Form it signed, Performance failed to show that any of the representations regarding the soil and the related reports and forms were material. "Material means a reasonable person would attach importance to and would be induced to act on the information in determining his choice of actions in the transaction in question." Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011) (quoting Smith v. KNC Optical, Inc., 296 S.W.3d 807, 812 (Tex. App.—Dallas 2009, no pet.)). As we discussed in evaluating whether there was a meeting of the minds concerning the material terms of the agreement, the parties did not include any terms regarding disposition of the soil in the mediation agreement. If the agreement required Echols to dispose of the soil in a certain manner, the representations regarding the soil and the reports would surely be important to Performance's decision to enter into the agreement. However, we do not see, and Performance has not shown, how such representations would be important in deciding whether to settle the case for $40,000. We are not saying that disposition of the soil is not important to the parties, but the subject was not made part of the agreement before us. Thus, any misrepresentations that affect disposition cannot be material to entering into the agreement.
As to the alleged misrepresentation regarding the invoices for the storage fees, Performance alleged in its first amended petition and counterclaim that Echols summarized the amounts and presented those amounts to Performance during the mediation and that Performance relied on those amounts when it agreed to the settlement amount. Performance further alleged that it later learned from Heather Martin, an employee in Globe Energy Services' accounting department, that "all but two of the invoices were for frac tanks rented to a company named Price Construction." Performance contended that the invoices were fabricated and used by Echols to induce Performance to sign the agreement. However, in its response to Echols's motion, Performance did not provide an affidavit or other evidence to show that the invoices were in fact fabricated or that Echols misrepresented the amount that it had paid to store the soil during the pendency of the case. The only evidence that Performance attached to its response concerning the invoices was an excerpt from Fuller's deposition testimony. Fuller testified that only two of the invoices were labeled as roll-offs and that the others were labeled as frac tanks, which cannot hold dirt. Fuller also testified that he received the matching work orders for each of the invoices and that each work order specifically said "roll-off." Fuller made a comment that the documents "looked like they had been cut and pasted." We cannot say that Performance produced more than a scintilla of evidence regarding the invoices. The only evidence that shows that the invoices may have been fabricated is Fuller's bare allegation that they looked fabricated. Performance did not attach the invoices or work orders to its response.
Having reviewed the alleged misrepresentations and corresponding summary judgment evidence, we hold that Performance failed to produce more than a scintilla of evidence that raised a genuine issue of material fact as to whether Echols made material misrepresentations to fraudulently induce Performance to agree to the terms of the mediation agreement. Based on this disposition, it is not necessary for us to determine whether Performance produced more than a scintilla of evidence to show that it justifiably relied on the misrepresentations or that it suffered any damages due to the misrepresentations. See TEX. R. APP. P. 47.1.
Performance also argues that the trial court erred when it granted Echols's no-evidence motion to the extent that the trial court, in reaching its ruling, considered the over 250 pages of evidence attached to Echols's no-evidence motion. Evidence attached to a no-evidence motion for summary judgment should not be considered unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). There is no indication from the record that the trial court relied on any evidence attached to Echols's no-evidence motion in its determination of whether to grant or deny the motion. In addition, although Echols attached evidence that could be used to conclusively defeat Performance's counterclaims, we did not consider that evidence in our review of the trial court's decision because the evidence did not create a fact question. Because the evidence did not affect our review and because we do not know whether the trial court actually considered this evidence, we cannot say that the trial court erred.
We hold that Performance failed to raise a genuine issue of material fact in response to Echols's traditional motion for summary judgment and that it failed to produce more than a scintilla of evidence that raised a genuine issue of material fact on the challenged elements of breach and material misrepresentation of its counterclaims in response to Echols's no-evidence motion for summary judgment. Therefore, the trial court did not err when it granted Echols's traditional and no-evidence motions. We overrule Performance's first and second issues.
In its third issue, Performance contends that the trial court erred when it granted Echols's motion to enforce the mediation agreement because Performance withdrew its consent to the agreement. Performance argues that, if a party withdraws its consent to a mediated settlement agreement before judgment is entered, the agreement can only be enforced through a breach of contract cause of action, not a motion to enforce.
Performance is correct in that a trial court cannot enforce a settlement agreement when a party has withdrawn consent, unless the party seeking to enforce the agreement alleges and proves a cause of action for breach of contract. See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009) (citing Padilla, 907 S.W.2d at 461-62) ("Written settlement agreements may be enforced as contracts even if one party withdraws consent before judgment is entered on the agreement," so long as the party seeking enforcement "pursue[s] a separate claim for breach of contract."). The judgment entered by the trial court in such a case is a judgment that enforces a binding contract, not an agreed judgment. Padilla, 907 S.W.2d at 461.
Echols pleaded, in its amended petition, that Performance breached the enforceable mediation agreement. Echols then moved for summary judgment on that claim, and as we have held, Echols conclusively established that the mediation agreement was enforceable and that Performance breached the agreement when it failed to pay the agreed amount by the imposed deadline. The modified final judgment reflects that the trial court found that the mediation agreement was not ambiguous, that it was an enforceable agreement, and that no genuine issues of material fact existed to refute the elements of the mediation agreement or to support the counterclaims alleged by Performance. The trial court further found that Echols was entitled to judgment as a matter of law on the enforcement of the mediation agreement. In its judgment, the trial court clearly considered the breach of contract claim alleged and moved for on summary judgment by Echols. The trial court did not enter an agreed judgment in this case; it entered a judgment that enforced a binding contract. We overrule Performance's third issue.
Performance contends in its final issue that the trial court erred when it unconditionally granted Echols's appellate attorney's fees. Echols concedes that this was error and asks us to modify the judgment. We have held that, "[w]hen there is an award of unconditional attorney's fees on appeal, we will modify the judgment so that the award depends on the paying party's lack of success on appeal." Neidert v. Collier, No. 11-10-00007-CV, 2011 WL 4526869, at *9 (Tex. App.—Eastland Sept. 29, 2011, no pet.) (mem. op.) (citing Hoefker v. Elgohary, 248 S.W.3d 326, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). Here, the trial court failed to condition the $7,500 award of attorney's fees if Performance pursued an appeal in our court and the $5,000 award of attorney's fees if it pursues an appeal in the supreme court on whether Performance was unsuccessful on such appeals. Performance's fourth issue is sustained.
We modify the judgment to reflect that the award of appellate attorney's fees is conditioned on Performance's lack of success on appeal. In all other respects, we affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE February 18, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.