Opinion
No. 04-05-00341-CV
Delivered and Filed: June 21, 2006.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-04390, Honorable Pat Boone, Judge Presiding.
Reversed and Remanded.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Larry Polinard appeals the trial court's summary judgment in favor of Randal J. Vidal in Vidal's suit for breach of a settlement agreement. We reverse the judgment and remand the cause to the trial court.
Vidal alleges that he and Polinard agreed to settle two causes and that Polinard "materially breached the . . . Agreement" "[b]y failing to execute and deliver releases of judgments in [C]ause [N]os. 83-CI-00815 and 2000-CI-16594 to Vidal." Vidal moved for summary judgment, supported by his affidavit and a copy of the parties' agreement. The agreement, dated November 17, 2000, states:
The following sets forth the terms of settlement in 1983-CI-00815:
1. Vidal to pay to Polinard $10,000.00 by Monday, November 20, 2000;
2. Vidal to pay $12,500.00 to Polinard by Wednesday, November 29, 2000;
3. Vidal to execute a real estate lien promissory note on State Bar forms, payable to Polinard in the amount of $32,500.00 bearing interest at 10% (with no pre-payment penalty) with payments of $1,000.00 per month beginning on January 6, 2001, and on the sixth day of each month thereafter, until paid;
4. Vidal to execute a Deed of Trust on State Bar forms in favor of Polinard on the Castle Rose property to secure the note;
5. The judgment liens stay in effect;
6. Should Vidal not default on the note, and not fail to timely make any of the payments required by this agreement and/or the note, Polinard agrees to issue a release of judgment following receipt of the final payment required by this agreement and the note, and deliver same to Vidal. If Vidal fails to timely make any payment required by this agreement and/or the note, the full judgment, less any payments made by Vidal, shall become immediately thereupon fully due and payable and Polinard may, notwithstand [sic] anything to the contrary herein, seek full and all enforcement measures to collect the remainder of the judgment and/or this note, including, but not limited to, execution, enforcement proceedings, discovery, etc.;
7. Polinard will take no further action to execute, levy, or foreclose on any property of Vidal so long as Vidal is making timely payments as required by this agreement;
8. Polinard will cease post-judgment discovery, including but not limited to dropping the hearing currently set for November 21, 2000 and authorizing his attorney to enter an agreed order abating the show cause order entered by Judge David Peeples on November 15, 2000, for so long as Vidal makes timely payments pursuant to the note and this agreement and is not in breach hereof and/or the note[.]
Vidal states in his affidavit that although he made all the payments due under the agreement, Polinard refused to accept Vidal's final payment in January 2004 and failed to "issue a release of judgment." The trial court granted Vidal's motion and rendered judgment declaring the final judgments against Vidal in Cause Nos. 83-CI-00815 and 2000-CI-16594 are "satisfied and released."
Polinard argues the trial court erred in granting Vidal's motion for summary judgment because Vidal "failed to establish as a matter of law each element of his breach of contract claim." We agree. There is no evidence the parties' November 17, 2000 agreement encompassed a judgment in Cause No. 2000-CI-16594 or that Polinard otherwise agreed to release the judgment in that cause. Vidal contends that the post-judgment discovery and collection efforts referred to in paragraphs 7 and 8 of the agreement relate to a judgment in Cause No. 2000-CI-16594; and these paragraphs would be rendered meaningless by "[Polinard's] attempt to carve out the 2000 Judgment from the . . . Agreement." We disagree. The agreement unambiguously relates to Cause No. 1983-CI-00815, the judgment in that cause, and the post-judgment discovery and collection efforts in that cause. Vidal did not file any summary judgment evidence regarding Cause No. 2000-CI-16594 or establishing that the parties' agreement contained terms in addition to those set forth in the November 17, 2000 agreement. Because Vidal failed to conclusively establish the terms of the agreement he seeks to enforce, the trial court erred in granting the summary judgment. Accordingly, we reverse the trial court's judgment and remand the cause to the trial court.