Petition for Writ of Mandamus Denied and Memorandum Opinion filed
December 14, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-01104-CV
IN RE VAISHANGI, INC., SHIVANGI, INC., MEENA PATEL, AND
VINAYAK K. PATEL, Relators
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
190th District Court
Harris County, Texas
Trial Court Cause No. 2010-40753
MEMORANDUM OPINION
On December 11, 2012, relators Vaishangi, Inc., Shivangi, Inc., Meena
Patel, and Vinayak K. Patel filed a petition for writ of mandamus in this court. See
Tex. Gov’t Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition,
relators ask this court to compel the Honorable Patricia J. Kerrigan, presiding
judge of the 190th District Court of Harris County, to vacate her order granting a
motion to enforce settlement agreement. We deny the petition for writ of
mandamus.
This dispute arose out of a foreclosure, which began in 2010. Relators were
the obligors on the loan and real-party-in-interest Southwestern National Bank
(“the Bank”) was the lender. On May 23, 2011, the parties entered into a
handwritten Rule 11 agreement in which they agreed to dismissal of the claims;
relators agreed to execute modified loan documents and the Bank was entitled to
withdraw all funds in the court’s registry. On May 27, 2011, the trial court signed
an agreed order of dismissal pursuant to the Rule 11 agreement. The parties later
disagreed over the outstanding loan balance, and relators refused to execute
modified loan documents. According to the petition, the Bank filed a Motion to
Enforce Settlement Agreement on April 17, 2012. On June 4, 2012, the trial court
signed an order granting the Bank’s motion, and requiring relators to execute
modified loan documents and pay the Bank’s attorneys fees incurred in seeking
enforcement of the agreement.
Relators filed this petition for writ of mandamus complaining of the trial
court’s June 4, 2012 order. In their petition, relators assert that the dismissal order
signed May 27, 2011 was a final order, and that the trial court lost plenary
jurisdiction 30 days later. Therefore, they contend that the June 4, 2012 order
enforcing the settlement agreement is void for want of subject matter jurisdiction.
See Tex. R. Civ. P. 329b. Relators assert that the trial court did not have jurisdiction
to grant the Bank’s motion, and that the Bank’s only remedy was to file a separate
lawsuit alleging breach of the settlement agreement.
Relators correctly assert that the party seeking enforcement of the settlement
agreement must pursue a separate claim for breach of contract. See Padilla v.
LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). However, the fact that the Bank did
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not file a separate pleading does not necessarily divest the trial court of
jurisdiction. The supreme court has determined that a motion to enforce can be
considered as a pleading in a breach of settlement agreement case in certain
circumstances. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009)
(motion to enforce sufficient as a pleading to support a judgment for breach of
contract); see also Neasbitt v. Warren, 105 S.W.3d 113, 118 (Tex. App.—Fort
Worth 2003, no pet.) (same).
The issue is whether, under these circumstances, the Bank’s motion to
enforce can be considered a sufficient pleading in a breach of settlement agreement
case. In Neasbitt, the Fort Worth Court of Appeals considered the party’s motion
to enforce and reviewed it to determine whether it was sufficient to constitute a
pleading. 105 S.W.3d at 117–18. We cannot conduct such a review in this case
because relators have not provided this court with a copy of the Bank’s motion to
enforce.
It is relators’ responsibility to provide the court with a record supporting
their petition for writ of mandamus. See Tex. R. App. P. 52.7. Because relators
have not provided this court with a sufficient record showing they are entitled to
relief, they have not established entitlement to the extraordinary relief of a writ of
mandamus. Accordingly, we deny relators’ petition for writ of mandamus.
PER CURIAM
Panel consists of Justices Boyce, McCally, and Busby.
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