Thursday, August 18, 2011

Forum-selection clause enforced by mandamus; suit ordered dismissed

Dallas Court of Appeals finds absence of other adequate remedy and grants mandamus relief to countermand and correct trial court's failure to enforce forum-selection clause by dismissing suit filed in wrong court. One justice on the panel dissented.  
In re Cornerstone Healthcare Holding Group, Inc.,
No. 05-11-00634-CV (Tex.App. - Dallas, Aug. 18, 2011)(mandamus)(case ordered dismissed in accordance with forum-selection clause)
CONCLUSION

A trial court abuses its discretion when it does not properly interpret or apply a forum- selection clause. Laibe Corp., 307 S.W.3d at 316. In addition, the Texas Supreme Court has held there is no adequate remedy by appeal when a trial court abuses its discretion by refusing to enforce a valid forum-selection clause that covers the dispute. See In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (orig. proceeding). Thus, the trial court's failure to enforce the forum- selection clause in this case is properly corrected by issuance of a writ of mandamus. See In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig. proceeding); Laibe Corp., 307 S.W.3d at 316. We conditionally grant the relators' petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its April 26, 2011 Order Denying Defendants' Motion to Dismiss and to enter an order granting the motion to dismiss.  
OPINION BY JUSTICE FITZGERALD

Relators Cornerstone Healthcare Holding Group, Inc. (“Cornerstone”) and Highland Capital Management, L.P. (“Highland”) filed this mandamus proceeding after the trial court denied their motion to dismiss based on the parties' forum selection. We conclude the trial court abused its discretion in denying the motion and relators have no adequate remedy by appeal. We therefore conditionally grant the writ of mandamus.


Background

Real party in interest MHC Holding Company (“Mariner”) sold a chain of hospitals to CS Healthcare Holdco, LLC (“Holdco LLC”), for $161 million in the summer of 2005. The transaction was accomplished by the parties' execution of an Asset Purchase Agreement (the “APA”). As part of the transaction, Mariner received $151 million in cash and a $10 million promissory note (the “Note”) from CS Healthcare Holdco, Inc. (“Holdco”), a wholly-owned subsidiary of Holdco LLC and a defendant in the suit below. Immediately after the closing of the APA, Holdco LLC assigned all of its rights and interest in the APA to Cornerstone, pursuant to an assignment and assumption agreement. Thus, Cornerstone became the owner of all the assets originally transferred by Mariner.

in 2007, Holdco and Cornerstone entered into a Restructuring and Support Agreement (the “Restructuring Agreement”) with relator Highland, which had come to own more than $55 million of Cornerstone's debt. Pursuant to the Restructuring Agreement, ownership of the hospitals was transferred to Highland. Mariner was not a party to the Restructuring Agreement. The Note was identified in a schedule to the Restructuring Agreement as a material agreement into which Holdco had entered, but the debt created by the Note was not addressed by the Restructuring Agreement.

In 2010, Mariner sued Highland, Cornerstone, and Holdco, alleging a fraudulent transfer that left Holdco insolvent and unable to repay the Note. In its live petition, Mariner seeks the alternative remedies of avoidance of the 2007 restructuring transaction to the extent necessary to satisfy Mariner's claim for the $10 million owed by Holdco, or judgment “in the amount due under the [Note]” against either Highland or Cornerstone.

Cornerstone and Highland jointly filed a motion to dismiss the lawsuit on the basis of forum- selection clauses in the APA and the Note, both of which called for disputes to be resolved in New York County, New York. The trial court denied the motion. This original proceeding followed.

The Forum-Selection Clauses

In order to obtain mandamus relief, Cornerstone and Highland must show both that the trial court abused its discretion and that they have no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Forum-selection clauses are generally enforceable and presumptively valid. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding). A trial court abuses its discretion when it does not properly interpret or apply a forum- selection clause. Id. Moreover, an appellate remedy is inadequate when a trial court improperly refuses to enforce a forum-selection clause; allowing the trial to go forward will simply vitiate the subject matter of an appeal, which is trial in the proper forum. See In re AIU Ins. Co., 148 S.W.3d 109, 115 (Tex. 2004) (orig. proceeding).

Paragraph 12.11 of the APA, entitled “Consent to Jurisdiction,” contains the following forum-selection clause:

The parties hereto each hereby irrevocably submit to the exclusive jurisdiction of any state or federal court sitting in New York County, New York for the purposes of any suit, action or other proceeding arising out of or based upon this Agreement or the subject matter hereto brought by any other party hereto. Each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court . . . .

The Note contains the following forum-selection clause:

The execution, delivery and performance of this Note shall be governed by and construed in accordance with the laws of the State of New York . . . . Sections 12.11 (entitled “Consent to Jurisdiction”) and 12.12 (entitled “Waiver of Jury Trial”) of the Asset Purchase Agreement shall apply in connection with any dispute under or enforcement of this Note.

The parties disagree concerning which (if either) of these clauses is implicated by the current litigation, and they disagree as to the scope of the clause in the Note. They cast their issues differently, but the forum-selection issues before us come down to which clause is implicated by Mariner's suit and whether Mariner's suit is properly within the scope of the implicated clause.

As to the clause implicated, Cornerstone and Highland contend there is actually only one forum-selection clause and that the Note merely incorporates the APA's clause by reference. Thus, for the relators, the APA's clause is implicated by this action. Mariner, for its part, contends initially that neither clause is implicated in this case because its claims do not arise under the APA or the Note. However, if forum selection is implicated in this litigation, Mariner urges us to apply the Note's forum-selection clause. That clause, Mariner contends, was purposefully negotiated to be narrower than the APA's, because it envisions applying the APA's provision only “in connection with any dispute under or enforcement of” the Note. Mariner argues that if we apply the Note's clause, we will conclude-as Mariner does-that its lawsuit below is not subject to the forum- selection provision.

We are persuaded by relators' argument. Both sides acknowledge that the Note is tied to the APA. Indeed, Mariner asserts that “the Note and the APA were parts of a unified transaction.” The Note itself states that it is “issued pursuant to, and in accordance with the terms of, that certain Asset Purchase Agreement . . . .” Likewise, the APA includes the Note among its exhibits that were to be executed along with the APA. Settled law requires separate documents executed at the same time, for the same purpose, and in the course of the same transaction to be construed together. See Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 327 (Tex. 1984).

When we construe the forum-selection clauses in the Note and the APA together, two points cannot be ignored. First, the drafters incorporated the APA's clause-in its entirety-into the Note. Had they desired a separate clause with different underpinnings, they would have drafted such a clause. Second, the clauses select the same forum, i.e., New York County, New York. Thus, unlike most exercises in contract construction, this one is not based on conflicting provisions. Instead, viewing the clauses together underscores the parties' intention that litigation related to the unified transaction would occur in the same location.

As to the breadth of the two clauses, given their origins in the same transaction we see no reason to read restrictions into the Note's provision. Again, the Note was issued pursuant to the APA and incorporates the entirety of the APA's forum-selection clause. Thus, we conclude Mariner's claims fall within the intended forum selection of the parties so long as they qualify as “action[s] or proceeding[s] arising out of or relating to” the transaction. We conclude further that Mariner's fraudulent-transfer suit below does arise out of or relate to that transaction. Specifically, the suit arises out of or relates to rights Mariner possesses pursuant to the Note: the injury it claims is Holdco's inability to pay on the Note; its standing as a creditor will require proof of Holdco's debt created by the Note; and the remedies it seeks amount to repayment pursuant to the Note. Simply put, Mariner would have no right to complain of the Restructuring Agreement except for its status as Holdco's creditor pursuant to the Note.

Mariner's lawsuit involves a dispute under the Note. Accordingly, the parties' single forum- selection clause applies to Mariner's claims. We conclude the parties agreed to litigate this matter in New York County, New York.

The Right to Enforce Forum Selection

We have concluded the parties agreed to a single forum-selection clause and that this dispute is within the scope of that clause. We next address whether relators-who were not parties to the APA or the Note-have the right to enforce the forum-selection clause against Mariner. See Footnote 1 Cornerstone and Highland asserted in their motion to dismiss that they were entitled to do so. Cornerstone based its right to enforce the clause on its status as assignee of Holdco LLC, which allowed Cornerstone to assert all of Holdco LLC's rights pursuant to the APA, including the Note that was appended to and made part of that agreement. See Phoenix Network Tech. (Europe) v. Neon Sys., Inc., 177 S.W.3d 605, 620 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (contracting party's assignee can enforce contract's forum-selection clause). Mariner did not challenge Cornerstone's right to enforce the forum-selection clause in its response to the motion to dismiss below. Nor has it made any argument against Cornerstone's right to enforce the clause in this Court. Thus, the issue of Cornerstone's right to enforce forum selection is not before us. See Footnote 2

In the motion to dismiss, Highland asserted it was entitled to enforce the forum-selection clauses under a theory of equitable estoppel. Texas law includes a number of variations on the general principle of equitable estoppel. See, e.g., Meyer v. WMCO-GP, L.L.C., 211 S.W.3d 302, 306 (Tex. 2006) (interdependent and concerted misconduct estoppel); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 2005) (orig. proceeding) (direct-benefit estoppel); In re Polymerica, LLC, 271 S.W.3d 442, 449 (Tex. App.-El Paso 2008, orig. proceeding, pet. struck) (substantial- benefit estoppel); Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 136 (Tex. App.-Houston [14th Dist.] 2000, pet. dism'd) (quasi-estoppel). Estoppel is an equitable doctrine and its application depends on the facts of each case. Van Zanten v. Energy Transfer Partners, L.P., 320 S.W.3d 845, 848-49 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (citing In re Weekley Homes, 180 S.W.3d 127, 134-35 (Tex. 2005)). The lynchpin for all equitable estoppel is equity. Hill v. G E Power Sys., Inc., 282 F.3d 343, 349 (5th Cir. 2002).

In the motion to dismiss below, Highland urged application of an estoppel based on Mariner's allegations of interdependent and concerted misconduct by Holdco, Cornerstone, and Highland. Highland contended that Mariner's suit was an attempt to gain the benefits of the Note (while not specifically suing to enforce the Note on its terms) by asserting “intertwined claims” against the three parties. The result was a claim that purported to tie all three defendants to the obligations of Holdco under the Note. Highland asserted that, under these circumstances, equity required that it be allowed to join in the enforcement of the parties' forum selection. In this Court, Highland continues to rely on the estoppel theory, stressing that Mariner's claims invoke equitable concerns based on both concerted misconduct and intertwined claims against related defendants.

Highland's theory is supported, inter alia, by the opinion in Deep Water Slender Wells, Ltd. v. Shell International Exploration & Production, Inc., 234 S.W.3d 679 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). In that case, the court advised: “Courts should apply equitable estoppel when a signatory to the contract containing the forum-selection clause raises allegations of substantially interdependent and concerted misconduct by both nonsignatories and one or more signatories to the contract.” Id. at 694 (citing Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527 (5th Cir. 2000), and Meyer v. WMCO-GP, L.L.C., 211 S.W.3d 302, 306 (Tex. 2006)). In the situation described by Deep Water Slender Wells, the signatory has brought nonsignatories into a lawsuit based on an instrument they did not sign, but it has made allegations that they acted in concert with another signatory. This is precisely the situation in Mariner's lawsuit.

Mariner contends the theory of equitable estoppel relied upon by relators has been rejected by the Texas Supreme Court in In re Merrill Lynch Trust Co., 235 S.W.3d 185 (Tex. 2007) (orig. proceeding). Mariner reads Merrill Lynch too broadly. In that case, the plaintiffs (a husband and wife) were signatories to an agreement that contained an arbitration clause. The plaintiffs did not sue the other signatory; instead, they sued a number of nonsignatories, who attempted to compel arbitration. The supreme court concluded some parties could enforce the arbitration clause and some could not. For example, where the parties sued certain employees of the signatory, but not the signatory itself, for conduct in the course of their employment, the employees were entitled to enforce their employer's arbitration clause. See id. at 189-90. However, the plaintiffs also sued a pair of companies that had their own contracts with the plaintiffs; those contracts did not contain arbitration clauses. The supreme court concluded that allowing those companies to compel arbitration would, in effect, permit them to re-write their contracts with the plaintiffs. Id. at 191.

The defendant companies then urged the supreme court to apply an equitable estoppel based upon concerted misconduct and allow them to force the plaintiffs to arbitrate against them as well. The court asserted that it had “never compelled arbitration based solely on substantially interdependent and concerted misconduct,” and it declined to do so in Merrill Lynch as well. Id. (emphasis added). Amidst this very conclusion, however, the supreme court stated:

We noted allegations of concerted misconduct in Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 306-07 (Tex. 2006), but compelled arbitration because the plaintiff's claims depended on the underlying agreement, and thus were governed by principles of direct-benefit estoppel.

Id. at 191 n.22. Meyer was decided just a year before Merrill Lynch, and this reference to it within Merrill Lynch assures us that Meyer is still good law. Meyer actually sets forth two scenarios when equitable estoppel would support a nonsignatory compelling compliance with a contract:

Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. When each of a signatory's claims against a nonsignatory makes reference to or presumes the existence of the written agreement, the signatory's claims arise out of and relate directly to the written agreement, and arbitration is appropriate. Second, application of equitable estoppel is warranted when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract. Otherwise the arbitration proceedings between the two signatories would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted.

Meyer, 211 S.W.3d at 305-06 (emphasis added). In the case before us, both of these bases for equitable estoppel exist. Mariner, a signatory, must rely on the Note in asserting its claims against Cornerstone and Highland. And Mariner has made allegations of substantially interdependent and concerted misconduct by Holdco, Cornerstone, and Highland.

We agree this is not a typical direct-benefit-estoppel case. In such a case, a nonsignatory plaintiff who seeks the benefits of a contract is estopped from simultaneously attempting to avoid the contract's burdens. In re Kellogg Brown & Root, Inc. 166 S.W.3d at 739. However, the supreme court included the Meyer estoppel within this category, and we can certainly see parallels in Mariner's case. Here, the signatory is attempting to avoid its own contract's burden while enforcing the benefits it derived from the contract. As we noted above, the lynchpin for all equitable estoppel is equity. Hill, 282 F.3d at 349. Under the facts of this case, equity demands that Highland be permitted to hold Mariner to its own bargain.

We conclude Highland may enforce the parties' selection of the New York forum by virtue of equitable estoppel.

Conclusion

A trial court abuses its discretion when it does not properly interpret or apply a forum- selection clause. Laibe Corp., 307 S.W.3d at 316. In addition, the Texas Supreme Court has held there is no adequate remedy by appeal when a trial court abuses its discretion by refusing to enforce a valid forum-selection clause that covers the dispute. See In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (orig. proceeding). Thus, the trial court's failure to enforce the forum- selection clause in this case is properly corrected by issuance of a writ of mandamus. See In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig. proceeding); Laibe Corp., 307 S.W.3d at 316. We conditionally grant the relators' petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate its April 26, 2011 Order Denying Defendants' Motion to Dismiss and to enter an order granting the motion to dismiss.

KERRY P. FITZGERALD

JUSTICE

Murphy, J., dissenting.

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Footnote 1

The parties sometimes use the term “standing” in this context of the right to enforce forum selection. See, e.g., “But Mariner is wrong about Highland's standing.” Relators' Reply Brief, p. 13. We avoid that term in this context because of the potential for confusion. The right to enforce a contractual agreement is a defensive issue for a contracting party, not a jurisdictional one. Unlike standing that is a component of subject matter jurisdiction, the right to enforce a contractual agreement can be waived. Moreover, we will not raise the issue in this Court-as we would an issue of subject matter jurisdiction-if it is not raised as an issue by the parties.

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Footnote 2

We disagree with the dissent's conclusion that Mariner challenged Cornerstone's right to enforce forum selection in the trial court. Mariner made an argument below concerning the scope of the Note's forum-selection clause. That argument asserted Cornerstone treated the Note's forum- selection clause as “non-existent” and stated Cornerstone had “not even tried” to establish a right to enforce it. Mariner's characterization is flawed substantively: Cornerstone does not treat the Note's forum-selection clause as non-existent. Instead, Cornerstone has consistently maintained that the Note merely incorporates by reference the forum-selection clause in the APA, as part of a unified transaction. Consistent with that analysis, Cornerstone asserts a right to enforce forum selection as assignee to the rights under the APA. Nevertheless, the dissent adopts Mariner's characterization of Cornerstone's argument and treats it as a challenge to Cornerstone's right to enforce the forum-selection clause in the Note. The dissent charges that “Cornerstone never asserted the right to enforce the Note, either below or in this proceeding.” Given its theory of this issue, Cornerstone had no reason to contend it had a right, independently, to enforce the Note or its forum-selection clause.

Mariner raised three arguments below in response to the motion to dismiss: (1) neither forum-selection clause governs this dispute; (2) the forum-selection clause in the Note excludes this dispute; and (3) Highland is not entitled to dismissal because its only asserted basis for enforcing a forum-selection clause has been overruled. In this Court, Mariner argues: (1) the trial court did not abuse its discretion in overruling the motion to dismiss (addressing rules of contract construction); (2) the relators' arguments for a single clause are unconvincing; (3) the dispute is too remote to come under the 2005 forum-selection clause; and (4) Highland cannot enforce any forum-selection clause as a nonsignatory. Both times, Mariner unambiguously raised Highland's right to enforce forum selection, not Cornerstone's, as a specific issue in its briefing.

Even if Mariner's discussion below of the scope of the Note's forum-selection clause could be read as a challenge to Cornerstone's right to enforce it-and we do not read it that way-the issue is not raised in this original proceeding.

Tuesday, August 16, 2011

Mandamus granted to enforce arbitration under contracted-for rules, not before the AAA as the trial court had ordered


Dallas Court of Appeals dismisses interlocutory appeal as unauthorized by statute, but grants mandamus relief to enforce arbitration under to the rules and procedure specified in the arbitration agreement, holding that an appeal from a final award/judgment would not provide an adequate remedy under the circumstances. Trial court found to have abused discretion in ordering arbitration under AAA rules contrary to the provisions of the underlying arbitration agreement.


Austin Commercial Contractors, L.P. v. Carter & Burgess, Inc.
No. 05-10-01542-CV (Tex.App. - Dallas, Aug. 15, 2011)(interlocutory appeal of order compelling arbitration dismissed for lack of jurisdiction)
In re Austin Commercial Contractors, L.P .,
No. 05-10-01542-CV (Tex.App. - Dallas, Aug. 15, 2011)(mandamus granted)
 
POINT OF LAW

Parties may specify by contract the rules under which their arbitration will be conducted, and enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA. Volt Info. Sci., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989). And there is no adequate remedy by appeal when a party is erroneously denied its contracted-for arbitration rights under the FAA. In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81 (Tex. 2006).

THE DECISION

We dismiss ACCLP's interlocutory appeal for lack of jurisdiction. We conditionally grant the petition for mandamus insofar as it complains of the portion of the October 29, 2010 order that orders the arbitration to proceed before the AAA. We direct the trial court (1) to vacate that portion of its order, and (2) to amend the order to require the arbitration to proceed as directed by the Prime Contract, under the rules of the CBCA. We are confident the district court will comply without delay. The writ will issue only if it does not.

FULL TEXT OF OPINION BY JUSTICE FITZGERALD

In this consolidated interlocutory appeal and mandamus proceeding, Austin Commercial Contractors, L.P. (“ACCLP”) challenges the trial court's October 29, 2010 Order Regarding Plaintiff's Motion to Compel Arbitration, which both compels arbitration and orders the arbitration to proceed before the American Arbitration Association (the “AAA”). We dismiss the interlocutory appeal for lack of jurisdiction, but we conditionally grant the petition for mandamus.

Background

The Regents of the University of California entered into an agreement with ACCLP (the “Prime Contract”) for the latter to act as general contractor on a project involving construction of a new building at the Los Alamos National Laboratories in New Mexico.   See Footnote 1  As general contractor, ACCLP entered into a Consultant Agreement with Carter & Burgess to provide all architectural and engineering services required by the project. ACCLP sued Carter & Burgess alleging breach of contract. Carter & Burgess answered subject to a motion to dismiss. It also served discovery and asserted a counterclaim for breach of contract.

Approximately two and one half months after filing suit, ACCLP filed a motion to compel arbitration pursuant to the Consultant Agreement. It relied on a clause in that agreement which states:
19.1 Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be subject to the dispute resolution procedures, if any, set out in the Prime Contract between [ACCLP] and [LANS]. Should the Prime Contract contain no specific requirement for the resolution of disputes, any such controversy or claim shall be resolved by arbitration pursuant to the Construction Industry Rules of the American Arbitration Association then prevailing, and judgment upon the award by the Arbitrator(s) shall be entered in any Court having jurisdiction thereof.

The Prime Contract does contain specific requirements for dispute resolution: submission of the dispute to mediation and then-if not resolved-to binding arbitration before the Civilian Board of Contract Appeals (the “CBCA”).   See Footnote 2  ACCLP's motion sought two specific rulings: the parties should be compelled to arbitration, and the arbitration should proceed before the CBCA.
Carter & Burgess opposed the motion. It contended that the CBCA lacked jurisdiction over a dispute between ACCLP and Carter & Burgess, that there was no agreement requiring it to arbitrate before the CBCA, and that the CBCA could not assume jurisdiction merely through agreement of the parties. Carter & Burgess also contended that ACCLP had waived its right to elect arbitration by filing suit. And, alternatively, Carter & Burgess argued that if the agreements do require arbitration before the CBCA, then ACCLP had failed to satisfy conditions precedent to arbitration.

The trial court's October 29, 2010 order granted the motion in part and denied it in part.   See Footnote 3  It ordered the matter to proceed to arbitration as ACCLP had requested; neither party challenges that ruling in this Court. But the order also ordered the arbitration to proceed before the AAA. ACCLP appealed and sought mandamus relief as to this ruling. We consolidated the two proceedings for resolution in this Court.

Interlocutory Appeal

In 2009, the Texas Legislature added a provision to the civil practice and remedies code addressing interlocutory appeals arising under the Federal Arbitration Act:
In a matter subject to the Federal Arbitration Act (9 U.S.C. Section 1 et seq.), a person may take an appeal or writ of error to the court of appeals from the judgment or interlocutory order of a district court, county court at law, or county court under the same circumstances that an appeal from a federal district court's order or decision would be permitted by 9 U.S.C. Section 16.
Tex. Civ. Prac. & Rem. Code Ann. § 51.016 (West Supp. 2011). The parties agree any arbitration ordered will be governed by the Federal Arbitration Act. Thus, an interlocutory appeal in this case will be permitted only if it would be permitted under the same circumstances under section 16. See CMH Homes v. Perez, 340 S.W.3d 444, 449 (Tex. 2011). Section 16, in turn, allows appeals from:

(1) an order--

        (A) refusing a stay of any action under section 3 of this title,
        (B) denying a petition under section 4 of this title to order arbitration to proceed,
        (C) denying an application under section 206 of this title to compel arbitration,
        (D) confirming or denying confirmation of an award or partial award, or
        (E) modifying, correcting, or vacating an award;

(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an arbitration that is subject to this title.
9 U.S.C. § 16(a) (West 2009). Section 16 goes on to identify interlocutory orders that will not support an immediate appeal:

        (1) granting a stay of any action under section 3 of this title;
        (2) directing arbitration to proceed under section 4 of this title;
        (3) compelling arbitration under section 206 of this title; or
        (4) refusing to enjoin an arbitration that is subject to this title.

Id. § 16(b).

        It is clear the portion of the trial court's order compelling arbitration would not be appealable under federal law, so it is not appealable in this case. See id § 16(b)(3). The portion of the court's order directing arbitration to proceed before the AAA actually speaks to the rules under which the arbitration shall take place. (The Prime Contract directs the Board to arbitrate all claims “in accordance with the Rules of the Board; the Consultant Agreement directs resolution, when appropriate, “by arbitration pursuant to the Construction Industry Rules of the [AAA].”) We find no provision in section 16 permitting appeal of such an order. Accordingly, we conclude this portion of the trial court's order is not appealable either. See CMH Homes, 340 S.W.3d at 451. Our conclusion comports with the rule that section 16 “generally permits immediate appeal of orders hostile to arbitration, whether the orders are final or interlocutory, but bars appeal of interlocutory orders favorable to arbitration.” See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86 (2000); In re Gulf Exploration, LLC, 289 S.W.3d 836, 839 (Tex. 2009).         The trial court's order is not appealable under section 16. Accordingly we dismiss ACCLP's interlocutory appeal for lack of jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.016.   See Footnote 4

Petition for Mandamus

To show itself entitled to mandamus, a relator must show that (1) the trial court clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. Gulf Exploration, 289 S.W.3d at 842. Mandamus is generally unavailable if the order at issue compels arbitration: even if the relator can meet the first prong of this test by showing an abuse of discretion, it can rarely meet the second prong. Id. Indeed, “[i]f a trial court compels arbitration when the parties have not agreed to it, that error can unquestionably be reviewed by [final] appeal.” Id. Although parties may expend time and money if they are ordered to arbitration improperly, delay and expense-standing alone-will not render the final appeal inadequate. Id. That rule is especially true when the substance of the arbitration is a contract claim, because the party that prevails can recover its fees and expenses. Id.

The case before us involves only contract claims, and it does not implicate any conflicting legislative mandates. See id. (identifying rare exception when mandamus may allow appellate court to give direction to law that would otherwise prove elusive in appeal from final judgment). Thus, the parties have an adequate remedy by appeal with which to make their challenges, if any, to the portion of the trial court's order compelling arbitration.

ACCLP contends, however, that it has no adequate remedy by appeal for the second portion of the trial court's order, which requires the arbitration to proceed under AAA rules rather than the rules of CBCA. We must agree. Parties may specify by contract the rules under which their arbitration will be conducted, and enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA. Volt Info. Sci., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989). And there is no adequate remedy by appeal when a party is erroneously denied its contracted-for arbitration rights under the FAA. In re D. Wilson Const. Co., 196 S.W.3d 774, 780-81 (Tex. 2006).

Recently, in CMH Homes v. Perez, 340 S.W.3d 444 (Tex. 2011), our supreme court addressed a case in which the parties had contracted to name their arbitrator but were unable to reach agreement on the issue. The trial court intervened and appointed an arbitrator. CMH Homes filed an interlocutory appeal challenging the appointment and requesting, in the alternative, that its appeal be treated as a petition for mandamus. Id. at 446. The court of appeals concluded it lacked jurisdiction to hear the interlocutory appeal, and the supreme court affirmed that ruling. Id. at 452. However, the supreme court concluded the court of appeals erroneously declined to treat the appeal as a mandamus proceeding. Id. at 454. In reaching that conclusion, the supreme court cited In re Louisiana Pacific Corp., 972 S.W.2d 63 (Tex. 1998), in which the court had concluded a trial court's order appointing an arbitrator could be reviewed by mandamus. 340 S.W.3d at 452. The court stated that its holding in Louisiana Pacific was not altered by the Legislature's adoption of section 51.016 because “[t]here is still no remedy by appeal because the FAA does not provide for the review of this type of order in state court.” Id. The court stressed there is no adequate remedy by appeal when a party is denied its contractual arbitration rights. Id. (citing D. Wilson, 196 S.W.3d at 780). We conclude we are bound by this principle in the case before us: if the trial court denied AACLP its contractual arbitration rights by ordering arbitration before the AAA, then ACCLP will lack an adequate remedy by appeal.
We further conclude the trial court clearly abused its discretion in compelling arbitration to proceed under the rules of the AAA. The Consultant Agreement unambiguously provides that any claim arising out of or relating to the breach of that agreement “shall be subject to the dispute resolution procedures, if any, set out in the Prime Contract.” And, as we discussed above, the Prime Contract does set out specific dispute resolution procedures, which are centered on binding arbitration under the rules of the CBCA. Thus, the back-up procedure of arbitration before the AAA should not have been implicated unless Carter & Burgess identified a reason the Prime Contract's dispute resolution procedure was, in essence, non-existent. But Carter & Burgess's objections to the jurisdiction of the CBCA and its contention that ACCLP has failed to satisfy conditions precedent to arbitration are matters of procedure that are for the arbitrator and not for the court. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84-85 (2002) (questions of procedural arbitrability are matters for arbitrator to decide); see also Am. Realty Trust, Inc. v. JDN Real Estate- McKinney, L.P., 74 S.W.3d 527, 531 (Tex. App.-Dallas 2002, pet. denied) (question whether any contractually-based prerequisites to arbitration have been satisfied is for arbitrator). Nor are we persuaded by Carter & Burgess's argument that by initiating arbitration before the AAA-as it was ordered to do-ACCLP has waived its right to complain of arbitration in that forum.

Conclusion

We dismiss ACCLP's interlocutory appeal for lack of jurisdiction. We conditionally grant the petition for mandamus insofar as it complains of the portion of the October 29, 2010 order that orders the arbitration to proceed before the AAA. We direct the trial court (1) to vacate that portion of its order, and (2) to amend the order to require the arbitration to proceed as directed by the Prime Contract, under the rules of the CBCA. We are confident the district court will comply without delay. The writ will issue only if it does not.                                           
                                                        KERRY P. FITZGERALD
                                                        JUSTICE
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Monday, August 15, 2011

MSA given effect by court even though signatory tried to change its terms

ENFORCING SETTLEMENT AGREEMENTS

Abdulwahab v. Sam's Real Estate Business Trust
(Tex.App.- Fort Worth, Jul. 21, 2011)

Fort Worth Court of Appeals explains that agreed judgment cannot be entered when party withdraws consent to settlement agreement (or refuses to sign final court document effecting the terms of the settlement). Remedy in such cases is a claim for breach of settlement agreement by the non-breaching party. Motion to dismiss held sufficient in this case in lieu of breach-of-contract pleadings to give opposing party notice and provide a basis for dismissal in accordance with the terms of the settlement, which included release language. Breaching party -- who objected to the scope of the release -- did not respond to motion to dismiss and therefore couldn't complain later about denial of the right to assert defenses to breach-of-settlement agreement claim.


POINTS OF LAW ON WITHDRAWAL -- OR REVOCATION -- OF CONSENT TO SETTLEMENT AGREEMENT PRIOR TO ENTRY OF JUDGMENT

Written settlement agreements and rule 11 agreements may be enforced as contracts even if one party withdraws consent before judgment is entered on the agreement. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); see Tex. Civ. Prac. & Rem. Code Ann. § 154.071(a) (West 2011) ("If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract."); Tex. R. Civ. P. 11; City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 626 (Tex. App.-Fort Worth 2003, pet. denied). When consent is withdrawn, an agreed judgment based on the settlement agreement is inappropriate; instead, the party seeking enforcement of the settlement agreement must pursue a claim for breach of contract. Ford Motor Co., 279 S.W.3d at 663; Padilla, 907 S.W.2d at 461 ("Although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude the court, after proper notice and hearing, from enforcing a settlement agreement . . . even though one side no longer consents to the settlement."); Alcantar v. Okla. Nat'l Bank, 47 S.W.3d 815, 819 (Tex. App.-Fort Worth 2001, no pet.).

A settlement agreement can be enforced as a contract by the trial court only after proper pleading, notice, hearing, and proof. Ford, 279 S.W.3d at 663; Padilla, 907 S.W.2d at 462; Neasbitt v. Warren, 105 S.W.3d 113, 117 (Tex. App.-Fort Worth 2003, no pet.); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) ("Where the settlement dispute arises while the trial court has jurisdiction over the underlying action, a claim to enforce the settlement agreement should, if possible, be asserted in that court under the original cause number.").

Although an amended pleading is one method of raising a claim that a settlement agreement should be enforced as a contract, we have held that a motion seeking enforcement of the settlement agreement is a sufficient pleading to allow a trial court to render judgment enforcing the settlement because such a motion gives the alleged breaching party an opportunity to defend itself. Neasbitt, 105 S.W.3d at 117; see Twist v. McAllen Nat'l Bank, 248 S.W.3d 351, 361 (Tex. App.-Corpus Christi 2007, orig. proceeding [mand. denied]) (holding that an oral motion to enforce a settlement agreement was sufficient because "[a]s long as the motion recites the terms of the agreement, states that the other party has revoked its previously stated consent to the agreement, and requests the trial court to grant relief, the motion is sufficient"); Bayway Servs., Inc. v. Ameri-Build Constr., L.C., 106 S.W.3d 156, 160 (Tex. App.-Houston [1st Dist.] 2003, no pet.). If the motion satisfies the general purposes of pleadings, which is to give the other party fair notice of the claim and the relief sought, it is sufficient to allow the trial court to render judgment enforcing the settlement. Twist, 248 S.W.3d at 361; Neasbitt, 105 S.W.3d at 117.[7]

FULL CASE STYLE: HUSSAIN ABDULWAHAB, INDIVIDUALLY AND D/B/A FURNITURE GALAXY AND BAZAAR v. SAM'S REAL ESTATE BUSINESS TRUST, A DELAWARE STATUTORY TRUST, (Tex.App.- Dallas, July 21, 2011)

FULL TEXT OF OPINION BY TERRIE LIVINGSTON 

MEMORANDUM OPINION [1]

This appeal arises from a judgment that the trial court rendered after the parties entered into a Mediation Settlement Agreement (MSA). The trial court granted appellee Sam's Real Estate Business Trust, a Delaware Statutory Trust's motion to dismiss, which sought enforcement of the MSA. We affirm the trial court's judgment.

Background Facts

In February 2007, appellee sued appellant for breach of a commercial sublease that was related to a building in Grand Prairie.[2] Appellee claimed that appellant had breached the agreement by not paying rent and other costs. Appellant admitted to entering into the sublease but asserted that although appellee had represented that it would repair various aspects of the building, it had not done so. Thus, appellant counterclaimed for breach of warranty of suitability, breach of covenant of quiet enjoyment, and deceptive trade practices.[3] Appellee answered the counterclaims, and appellee filed a motion to strike them based on appellant's alleged failure to properly answer discovery, a hybrid motion for summary judgment on the counterclaims, and a no-evidence motion for summary judgment on appellant's affirmative defenses. The trial court granted appellee's hybrid motion for summary judgment, ruling that appellee was entitled to judgment as a matter of law on appellant's counterclaims.

The parties then mediated appellee's breach of contract claim. On October 23, 2009, the parties reached an agreement to settle the case. The terms of the MSA, in its entirety, are as follows:

On this the 23th [sic] day of October 2009, the parties identified below resolved the referenced matter on the dependent terms outlined below:

1. Without stipulation as to liability, all parties agree to completely release and discharge any and all claims of any kind, asserted or unasserted, known or unknown, that were or that could have been joined in the referenced litigation between these parties.

. . . .[4]

3. Counsel for Plaintiff will prepare formal settlement and dismissal documents.

By signing below we acknowledge our understanding of and agreement to the terms outlined above.

The agreement displays appellant's signature as well as the signatures of counsel for both parties.

The MSA was filed three days later. In May 2010, seven months after the MSA had been executed, appellee filed a motion to dismiss all claims, alleging that appellant had refused to sign a formal settlement document because he was considering filing a lawsuit against the real estate broker who helped market the property that appellant subleased from appellee.[5] The motion to dismiss stated that appellant had failed to appear for two dismissal hearings scheduled by the trial court and that the court had "directed" that the motion be filed. The motion recited that the formal settlement document that appellant had refused to sign contained "customary release language" that precluded claims against agents of either party.[6] Finally, the motion informed the trial court that appellant disagreed that claims against the parties' agents should be dismissed.

On May 28, 2010, appellee gave appellant written notice that the motion to dismiss would be submitted for the trial court's consideration on June 7, 2010, without an oral hearing. Appellant did not file a response by June 7, and on that date the trial court signed an order granting the motion and stating that

any and all claims of any kind, asserted or unasserted, known or unknown, that were or that could have been joined in this lawsuit, which includes claims against potential agents of either [appellee] or [appellant] (including real estate brokers), are released by both [appellee] and [appellant] and discharged with prejudice.

Two weeks later, appellant requested findings of fact and conclusions of law. Appellee objected, arguing that the trial court's findings and conclusions would not be proper under the rules of civil procedure because the court did not hear conflicting evidence on the dismissal motion. The trial court agreed with appellee and denied appellant's request.

Appellant filed a motion to modify, reform, or correct the judgment, stating that the MSA settled claims among only the named parties. In the motion, appellant represented that he had not withdrawn his consent to the settlement agreement, but he stated that he never gave consent to "any settlement extending beyond the named parties." The trial court denied appellant's motion to reform the judgment, and appellant brought this appeal.

The Propriety of the Trial Court's Judgment

In three issues, appellant contends that the trial court erred by granting appellee's motion to dismiss with prejudice, denying appellant's request for findings of fact and conclusions of law, and denying appellant's motion to modify, reform, or correct the judgment.

The judgment complied with the MSA

In his first issue, appellant contends that the trial court erred by signing its June 7, 2010 "Order Granting Motion to Dismiss All Claims, Asserted and Unasserted, Including Potential Agents, with Prejudice" because the order does not strictly and literally comply with the MSA and because the trial court was on notice that he did not consent to a release of claims against potential agents, including real estate brokers, at the time of the judgment. Appellant argues that the trial court altered the express release language in the MSA and therefore rendered an improper consent judgment, an improper ruling that appellant had breached the settlement agreement when no pleading for breach of contract had been filed, or an improper judgment enforcing a settlement agreement when no motion for enforcement had been filed.

Texas has a public policy of encouraging the peaceful resolution of disputes and the early settlement of pending litigation through voluntary settlement procedures. Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (West 2011); Brooks v. Brooks, 257 S.W.3d 418, 421 (Tex. App.-Fort Worth 2008, pet. denied). Trial and appellate courts are charged with the responsibility of carrying out this public policy. Tex. Civ. Prac. & Rem. Code Ann. § 154.003 (West 2011); Brooks, 257 S.W.3d at 421.

Appellee argues that the trial court's dismissal order was not an agreed order and that it is therefore irrelevant whether appellant withdrew his consent to the MSA before the entry of the order. Written settlement agreements and rule 11 agreements may be enforced as contracts even if one party withdraws consent before judgment is entered on the agreement. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); see Tex. Civ. Prac. & Rem. Code Ann. § 154.071(a) (West 2011) ("If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract."); Tex. R. Civ. P. 11; City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 626 (Tex. App.-Fort Worth 2003, pet. denied). When consent is withdrawn, an agreed judgment based on the settlement agreement is inappropriate; instead, the party seeking enforcement of the settlement agreement must pursue a claim for breach of contract. Ford Motor Co., 279 S.W.3d at 663; Padilla, 907 S.W.2d at 461 ("Although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude the court, after proper notice and hearing, from enforcing a settlement agreement . . . even though one side no longer consents to the settlement."); Alcantar v. Okla. Nat'l Bank, 47 S.W.3d 815, 819 (Tex. App.-Fort Worth 2001, no pet.). A settlement agreement can be enforced as a contract by the trial court only after proper pleading, notice, hearing, and proof. Ford, 279 S.W.3d at 663; Padilla, 907 S.W.2d at 462; Neasbitt v. Warren, 105 S.W.3d 113, 117 (Tex. App.-Fort Worth 2003, no pet.); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) ("Where the settlement dispute arises while the trial court has jurisdiction over the underlying action, a claim to enforce the settlement agreement should, if possible, be asserted in that court under the original cause number.").

Although an amended pleading is one method of raising a claim that a settlement agreement should be enforced as a contract, we have held that a motion seeking enforcement of the settlement agreement is a sufficient pleading to allow a trial court to render judgment enforcing the settlement because such a motion gives the alleged breaching party an opportunity to defend itself. Neasbitt, 105 S.W.3d at 117; see Twist v. McAllen Nat'l Bank, 248 S.W.3d 351, 361 (Tex. App.-Corpus Christi 2007, orig. proceeding [mand. denied]) (holding that an oral motion to enforce a settlement agreement was sufficient because "[a]s long as the motion recites the terms of the agreement, states that the other party has revoked its previously stated consent to the agreement, and requests the trial court to grant relief, the motion is sufficient"); Bayway Servs., Inc. v. Ameri-Build Constr., L.C., 106 S.W.3d 156, 160 (Tex. App.-Houston [1st Dist.] 2003, no pet.). If the motion satisfies the general purposes of pleadings, which is to give the other party fair notice of the claim and the relief sought, it is sufficient to allow the trial court to render judgment enforcing the settlement. Twist, 248 S.W.3d at 361; Neasbitt, 105 S.W.3d at 117.[7]

Appellant argues that the trial court erred by rendering judgment releasing claims against potential agents when the only pleading pending was a motion to dismiss.[8] Although appellee's motion was labeled as a motion to dismiss, it was essentially a motion to enforce the MSA because appellee alleged that appellant "refuse[d] to sign a formal settlement document `releas[ing] . . . any and all claims of any kind . . . that could have been joined in [this] litigation' as he agreed to do in [the MSA]." The motion specifically recited and attached the terms of the MSA and stated that appellee's counsel had prepared the formal settlement and dismissal documents required by the agreement. The motion further alleged that the formal settlement documents were forwarded to and approved by appellant's counsel but that appellant refused to sign them. Appellee requested that the motion to dismiss be set for a hearing with notice to appellant and asked the trial court to enforce the settlement agreement.[9] Thus, the motion contained all of the necessary elements to request enforcement of the MSA. See Twist, 248 S.W.3d at 361-62; Neasbitt, 105 S.W.3d at 117.

Furthermore, the trial court correctly enforced the settlement agreement to preclude claims against third parties that could have been brought in the litigation between appellee and appellant. The MSA is a contract and is therefore governed by the same rules of construction applicable to all contracts. See Doe v. Tex. Ass'n of Sch. Bds., Inc., 283 S.W.3d 451, 458 (Tex. App.-Fort Worth 2009, pet. denied). Thus, in construing the MSA, our primary concern is ascertaining the true intent of the parties as expressed in the agreement. Id. (citing NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex. App.-Fort Worth 2007, no pet.)); see Republic Nat'l Bank of Dallas v. Nat'l Bankers Life Ins. Co., 427 S.W.2d 76, 79-80 (Tex. Civ. App.-Dallas 1968, writ ref'd n.r.e.) (noting that courts should not consider the "intention which the parties may have had, but failed to express in the instrument"). "Words in a contract must carry their ordinary, generally accepted meanings unless the contract itself shows that the terms have been used in a technical or different sense. In construing a contract, we may not rewrite it nor add to its language." Doe, 283 S.W.3d at 458 (citation omitted). The interpretation of an unambiguous contract is a matter of law to be determined by the trial court. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000).

The trial court literally and strictly complied with the MSA by ordering that it precluded all claims "that were or that could have been joined in this lawsuit, which includes claims against potential agents."[10] This is precisely what the MSA required when the parties agreed to "completely release and discharge any and all claims of any kind, asserted or unasserted, known or unknown, that were or that could have been joined in the referenced litigation between these parties." Appellant's interpretation of the MSA, that it releases only claims that could have been brought between appellant and appellee, is unreasonable because it would have required the trial court to rewrite the agreement to state, in effect, that the parties agreed to "completely release and discharge any and all claims of any kind between these parties, asserted or unasserted, known or unknown, that were or that could have been joined in the referenced litigation."

Because we hold that the trial court did not err by granting appellee's motion to dismiss (of which appellant had notice and an opportunity to respond) and by strictly enforcing the terms of the MSA, we overrule appellant's first issue. See Neasbitt, 105 S.W.3d at 117-19.

The request for findings of fact and conclusions of law was inappropriate

In his second issue, appellant argues that the trial court erred by refusing to file findings of fact and conclusions of law. "In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law." Tex. R. Civ. P. 296. "Findings and conclusions are appropriate if there is an evidentiary hearing and the trial court is called upon to determine questions of fact based on conflicting evidence." Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am.-UAW v. Gen. Motors Corp., 104 S.W.3d 126, 129 (Tex. App.-Fort Worth 2003, no pet.) (citing Port Arthur ISD v. Port Arthur Teachers Ass'n, 990 S.W.2d 955, 958 (Tex. App.-Beaumont 1999, pet. denied)). When the trial court rules without determining questions of fact, a request for findings of fact and conclusions of law is inappropriate. Id.; see O'Donnell v. McDaniel, 914 S.W.2d 209, 210 (Tex. App.-Fort Worth 1995, writ denied) (stating that a dismissal of a case without an evidentiary hearing does not constitute a case that has been "tried" within the meaning of rule 296); see also Puri v. Mansukhani, 973 S.W.2d 701, 708 (Tex. App.-Houston [14th Dist.] 1998, no pet.) ("The purpose of Rule 296 is to give a party a right to findings of fact and conclusions of law finally adjudicated after a conventional trial. . . . In other cases, findings and conclusions may be proper, but a party is not entitled to them.").

The trial court did not hold an evidentiary hearing, and its decision to grant appellee's motion to dismiss and enforce the MSA was not based on the determination of any fact issue about which there was conflicting evidence. Instead, at most, it was based on the parties' competing interpretations of the principal evidence presented, the MSA, and on appellant's undisputed refusal to sign a document that complied with the MSA's language.

Appellant contends that the trial court decided a disputed fact issue of the parties' intent in signing the MSA. But intent in entering a contract is only a fact issue where the contract is ambiguous, and based on our reasoning above, we hold that the MSA was not ambiguous. See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996); Doe, 283 S.W.3d at 459.

For these reasons, we hold that the trial court did not err by declining to file findings of fact and conclusions of law. See Tex. R. Civ. P. 296. We overrule appellant's second issue.

The trial court correctly denied appellant's motion to modify, reform, or correct the judgment

In his third issue, appellant argues that the trial court erred by denying his motion to modify, reform, or correct the judgment. That motion and the argument contained in the body of appellant's third issue recast the contentions that appellant made in his first issue. Therefore, for the same reasons that we overruled appellant's first issue, we overrule his third issue. See Neasbitt, 105 S.W.3d at 118-19.

Conclusion

Having overruled each of appellant's issues, we affirm the trial court's judgment.

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