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Daneshjou v. Kasling, Hemphill, Dolezal and Atwell, L.L.P.

Court of Appeals of Texas, Third District, Austin

February 23, 2017

Benny M. B. Daneshjou, Sally Daneshjou and Daneshjou Company, Inc., Appellants
v.
Kasling, Hemphill, Dolezal and Atwell, L.L.P., Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT NO. D-1-GN-13-003405, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Goodwin

          MEMORANDUM OPINION

          David Puryear, Justice

         Benny M.B. and Sally Daneshjou, and their construction company-Daneshjou Company, Inc.-(collectively, the Daneshjous) appeal the trial court's judgment granting appellee Kasling, Hemphill, Dolezal and Atwell, L.L.P. (KHDA)'s Motion to Enforce Mediated Settlement Agreement. At issue is whether the settlement agreement imposed a condition precedent-appellee's dismissal of a lawsuit pending between the parties-on the Daneshjous' obligation to pay. Because we conclude that appellee's agreement to dismiss the lawsuit was not a condition precedent, we will affirm the trial court's judgment.

         BACKGROUND

         KHDA filed a lawsuit against the Daneshjous to recover legal fees in the amount of $308, 700.33 that KHDA alleged were owed and remained unpaid pursuant to the Daneshjous' retention of the law firm to provide legal advice and consultation with regard to various litigation matters over the past several years. While the cause was pending, the parties entered into a Mediated Settlement Agreement. The relevant paragraphs of the agreement provide:

1. [Plaintiffs and Defendants] agree to mutually release each other from any and
all claims asserted or that could be asserted in the above captioned case and agree to dismiss the above captioned case with prejudice.
***
4. In exchange, Defendants agree to pay to Plaintiffs $2500.00 on the day of execution of this agreement and to pay Plaintiffs an additional $32, 500.00 on or before March 1, 2016. If Defendants fail to pay the $32, 500.00 on or before March 1, 2016 then they will pay that amount plus an additional $5, 000 on or before June 1, 2016.
***
6. If Defendants fail to make the payments as set forth above on or before June 1, 2016, Defendants agree that Plaintiffs can refile their claims, notwithstanding the prior dismissal and the applicable statutes of limitations, for all claims and/or counterclaims will be tolled by this agreement from the date of the original filing of the above captioned case to 60 days after such failure to pay under this agreement, or alternatively Plaintiffs may elect to enforce this agreement and collect reasonable attorney's fees and interest of 10% from the date of the breach to the date of payment.

         After the Daneshjous failed to make the required payment by the date set out in the agreement, KHDA filed its motion to enforce the agreement. The Daneshjous then filed their own motion to enforce the agreement, asserting that KHDA breached the agreement by failing to dismiss its lawsuit against them.[1] After a hearing[2] on both motions, the trial court granted KHDA's motion and denied the Daneshjous' ...


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