IN THE
TENTH COURT OF APPEALS
No. 10-16-00124-CV
RICHARD S. OHENDALSKI,
Appellant
v.
FRANK DANIEL LEASURE AND CHOCTAW
PAYROLL SERVICES, INC., DAN-CAV
ENTERPRISES, INC., THE ELC TRUST, AND
MOUNTAINTOP MANAGEMENT TRUST,
Appellees
From the 278th District Court
Walker County, Texas
Trial Court No. 24,095
D I S S E N T I N G OPINION
This appeal presents a recurring problem: the proper procedure to be utilized
when one party believes a Rule 11 agreement to settle the entire proceeding has been
breached by the other party. We should take this opportunity to clarify the procedure
and try to prevent future problems. The Court’s disposition is contrary to Supreme Court
precedent and the precedent from this Court. It, therefore, fails to provide the guidance
needed for the bench and bar.
Ohendalski sued Leasure and four other defendants. Both Ohendalski and
Leasure initially represented themselves. It also appears that Leasure filed an answer on
behalf of himself and the four entities that were also named as defendants, although it
does not appear that Leasure is an attorney. Notwithstanding the answers filed,
Ohendalski obtained a default judgment. Leasure then hired an attorney that was
successful in having the default judgment set aside. Thereafter, Ohendalski and Leasure
entered into a settlement agreement. Then the trouble really began.
Leasure paid the agreed amount of the settlement to Ohendalski. Ohendalski
dismissed his claims against Leasure but not his claims against the other four defendants.
When Ohendalski began to try to obtain discovery from the other four defendants,
Leasure filed a motion to enforce the settlement agreement as a “Rule 11 Agreement.”
Leasure contends that the Rule 11 Agreement required Ohendalski to dismiss all the
defendants, in effect dismissing his entire case in the trial court. In response, Ohendalski
contended that under the agreement he was not required to dismiss anyone other than
Leasure, and that if the settlement agreement required more than that, he was
fraudulently induced into the agreement. Ohendalski, prior to the entry of judgment,
also filed a document which he contends revoked his assent to the settlement agreement.
The trial court, nevertheless, resolved the disputed factual allegations, and construed the
Ohendalski v. Leasure Page 2
agreement to require the dismissal of the entire case.
The question thus framed is whether a trial court may grant a motion to enforce a
Rule 11 Agreement and render a judgment that enforces the agreement that one party
contends disposes of the entire proceeding if the other party raises factual issues or
defenses and otherwise opposes that disposition. The simple answer, supported by
ample case authority, is that the trial court cannot. Texas does not have a procedure that
allows such a disposition. The proper procedure for the party asserting a failure to
comply with a Rule 11 Agreement that the party contends settled the entire dispute is to
amend their pleadings to assert a breach of contract claim. The party asserting the breach
of a Rule 11 Settlement Agreement, in this case Leasure, must then use traditional
procedural tools to dispose of the issue.
The most likely procedure would be for the allegedly aggrieved party to then file
a motion for summary judgment, with the procedural safeguards provided therein, to
prove the validity of and to enforce the Rule 11 Agreement. This Court described the
application of this procedure in the disposition of Nancarrow v. Whitmer, 463 S.W.3d 243
(Tex. App.—Waco 2015, no pet.).
As the Texas Supreme Court succinctly expressed the rule of law in an essentially
identical procedural context:
When a trial court has knowledge that one of the parties to a suit does not
consent to a judgment, the trial court should refuse to sanction the
agreement by making it the judgment of the court. … Here, the trial court
was fully advised that the Quinteros did not consent to the joint motion to
Ohendalski v. Leasure Page 3
dismiss when it rendered the judgment of dismissal. Therefore, the trial
court erred and the judgment of dismissal must be set aside.
Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983).
In this proceeding, Leasure used an improper procedural vehicle to dispose of
potentially disputed fact issues. Ohendalski challenged the propriety of that procedure
in the trial court before judgment was rendered against him and now complains about
the result of using that improper procedure on appeal. While Ohendalski’s pro se brief
may not be a work of legal art, it directs the Court to the proper authorities that show the
trial court erred in disposing of his trial court case by simply granting Leasure’s motion
to enforce the Rule 11 Settlement Agreement.1
Consequently, I would sustain Issue 3 in Ohendalski’s brief, reverse the trial
court’s judgment, and remand this proceeding to the trial court for a proper disposition
of the issues that must be resolved by a fact finder or summary judgment procedure.2
Because the Court does not, I respectfully dissent.
TOM GRAY
Chief Justice
1This is not to say that no Rule 11 agreement can be enforced by a motion. Some Rule 11 agreements relate
to issues like discovery where it may be appropriate to resolve the dispute via motion practice. But whether
this Rule 11 agreement involved the settlement of the entire case is the disputed issue and, therefore, cannot
be resolved simply by a motion to enforce.
2
As to the other issues raised by Ohendalski, I would not rule on Issue 1 as that is the dispute that must be
resolved on remand. I would overrule Issues 2 and 4 because the trial court has the authority, with rare
exceptions not applicable here, to change its mind with regard to the ruling on a motion or proceeding until
it has lost plenary jurisdiction. I would dismiss Issue 5 because the trial court subsequently filed findings
of fact and conclusions of law. And I would not reach Issue 6 because it is unnecessary to a disposition of
this appeal.
Ohendalski v. Leasure Page 4
Dissenting opinion delivered and filed March 29, 2017
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