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Breakfront, LLC v. Southwest Guaranty Investors, Ltd.

Court of Appeals of Texas, Fourth District, San Antonio

April 5, 2017

BREAKFRONT, LLC, Golden Oak Partners, LLC, Mark Slotkin, Individually and Mark Slotkin as Trustee of the Slotkin Family Children's Trust Dated January 1, 1997, Appellants
v.
SOUTHWEST GUARANTY INVESTORS, LTD., Appellee

         From the 81st/218th Judicial District Court, Atascosa County, Texas Trial Court No. 14-04-0331-CVA Honorable Russell Wilson, Judge Presiding

         AFFIRMED

          Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

          MEMORANDUM OPINION

          Luz Elena D. Chapa, Justice

         Breakfront, LLC, Golden Oak Partners, LLC, and Mark Slotkin, Individually and as Trustee of the Slotkin Family Children's Trust, appeal the trial court's judgment, which was rendered after a jury trial. They argue there is insufficient evidence to support the jury's findings that (1) they breached their Settlement Agreement with Southwest Guaranty Investors, Ltd. (SWGI); (2) SWGI did not breach the Settlement Agreement; and (3) SWGI did not waive appellants' breach. We affirm the trial court's judgment.

         Background

         Mark Slotkin is a trustee for Breakfront LLC, Golden Oak Partners LLC, and the Slotkin Family Children's Trust. In 2008, Breakfront and Golden Oak Partners borrowed $2.5 million from SWGI. Slotkin, individually and as trustee of the Slotkin's Family Children's Trust, signed as a guarantor on the note. Appellants refer to themselves collectively as "Slotkin."

         After SWGI foreclosed on the security for the loan, Slotkin sued for wrongful foreclosure and SWGI counterclaimed for a deficiency judgment. SWGI obtained a final summary judgment in the amount of $987, 548.84, post-judgment interest, and attorney's fees. Slotkin notified SWGI he intended to appeal the judgment, and the parties entered into the Settlement Agreement that is the subject of this case. Article I of the Settlement Agreement contains recitations regarding the factual background. Article II provides the following settlement terms:

1. At closing of this Agreement, the Slotkin Parties shall file with the Clerk of the Atascosa County, Texas District Court, a Stipulation to Forego Appeal (the "Stipulation") in the form attached hereto as Exhibit "A".
2. The Judgment shall remain in full force and effect, and shall continue to accrue interest at the legal rate of 5% per annum as therein provided, subject only to compromise as hereinbelow provided.
3. The Judgment shall be compromised and settled for the total sum of $40, 000, paid by the Breakfront Parties and the Slotkin Parties to SWGI (or its designee) as follows (the "Payout"):
(a)$10, 000.00 immediately at closing of this Agreement;
(b) $1, 000.00/month installments for 12 months beginning Jan 1, 2012 = $12, 000.00;
(c) $1, 500.00/month installments for 12 months beginning Jan. 1, ...

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