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Parks v. Affiliated Bank

Court of Appeals of Texas, Fifth District, Dallas

December 20, 2017

TONYA PARKS AND PARKS REALTY FIRM, LLC, Appellants
v.
AFFILIATED BANK, Appellee

         On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-15-04540-C

          ORDER

          ELIZABETH LANG-MIERS, PRESIDING JUSTICE

         Tonya Parks and Parks Realty Firm, LLC (PRF) appeal the trial court's dismissal of their claims against Affiliated Bank pursuant to the Texas Citizens Participation Act (the TCPA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011 (West 2015). On our own motion, we abate this appeal and remand the case to the trial court for findings relating to whether Parks, individually and on behalf of PRF, voluntarily entered into an agreement under rule of civil procedure 11, pursuant to which Parks and PRF forfeited their right to bring this appeal, and whether any agreement is enforceable.

         Parks and PRF sued Joshua A. Campbell and his former employer, Affiliated Bank, asserting a number of causes of action based on an internet posting by Campbell concerning Parks's work as a real estate agent.[1] Campbell filed a motion to dismiss under the TCPA, arguing the claims against him were based on statements he made in connection with a matter of public concern, and Parks and PRF could not establish by clear and specific evidence a prima facie case for each essential element of their claims. At the hearing on Campbell's motion, Affiliated Bank argued it "should be included as far as being dismissed" because there was no evidence to support the causes of action asserted against it, and requested that it be awarded attorneys' fees pursuant to the TCPA. On March 24, 2016, the trial court signed an Order on Defendant Joshua Campbell's Motion to Dismiss (the March 24th Order), that dismissed with prejudice Parks's and PRF's claims against both Campbell and Affiliated Bank, and awarded Campbell $62, 297.50, and Affiliated Bank $29, 876.40, for court costs, reasonable attorneys' fees, and other expenses incurred in the litigation.

         Parks and PRF filed a motion for new trial. At the hearing on the motion, the parties discussed settling the dispute. The attorneys for Parks and PRF, Affiliated Bank, and Campbell stated on the record in open court that they had an agreement Campbell and Affiliated Bank would forego seeking to recover the attorneys' fees awarded by the trial court "in exchange for full waiver of any appeal or further filings" by Parks and PRF and a release of all claims against Campbell and Affiliated Bank. Affiliated Bank's attorney requested that Parks "indicate her agreement with this on the record." After some discussion between Parks and the trial court, Parks stated, "I accept the deal."

         An agreement to settle a case is enforceable by the trial court if it complies with rule of civil procedure 11. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995); In re Barton, No. 05-17-00364-CV, 2017 WL 6275920, at *1 (Tex. App.-Dallas Dec. 11, 2017, no pet. h.) (mem. op.). An agreement complies with rule 11 if it is "made in open court and entered of record." Tex.R.Civ.P. 11. A trial court has a ministerial duty to strictly enforce a valid rule 11 agreement. In re Barton, 2017 WL 6275920, at *1; Draper v. Guernsey, No. 03-16-00745-CV, 2017 WL 2224540, at *4 (Tex. App.-Austin May 18, 2017, pet. denied) (mem. op.); see also Fortis Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007) ("As this is a valid pretrial agreement under Rule 11, the trial court had a duty to enforce its terms."). Accordingly, if there was an enforceable rule 11 agreement, the trial court had a duty to enforce the agreement entered into by the parties by modifying or vacating the March 24th Order to reflect the parties' agreement, see In re Barton, 2017 WL 6275920, at *1 (trial court "has no authority to render judgment which does not fall strictly within the terms of the agreement dictated into the record by the parties themselves"), but failed to do so.

         Generally, a party may revoke its consent to a rule 11 agreement before the trial court renders judgment on the agreement. Milner v. Milner, 361 S.W.3d 615, 618 n.2 (Tex. 2012) (citing Padilla, 907 S.W.2d at 461). If the party revokes its consent, the agreement still might be enforceable, but only as a breach of contract action. Padilla, 907 S.W.2d at 461 ("after proper notice and hearing, " a party may enforce a settlement agreement complying with rule 11 as a "binding contract" even though one side no longer consents to the settlement). In this case, Parks filed a pro se notice of appeal in contravention of the parties' agreement. She also filed a letter with this Court asserting the agreement was the result of duress and coercion, and she did not and does not agree with the settlement.

         Affiliated Bank requests that we dismiss this appeal as moot because, pursuant to the parties' agreement, Parks and PRF have no right to appeal. Parks and PRF contend the rule 11 agreement is not enforceable because it was made due to duress and coercion, and request that we consider the merits of whether the trial court erred by dismissing their claims against Affiliated Bank. This Court, therefore, is confronted with an appeal from an order that was apparently superseded by agreement of the parties, but never vacated by the trial court, with Parks attempting to revoke the agreement on appeal.

         To assist this Court in resolving this appeal, we ABATE this appeal for a period of forty-five days, and ORDER the trial court, after proper notice to the parties, to conduct a hearing to determine whether Parks, individually and on behalf of PRF, entered into the rule 11 agreement due to coercion or duress and whether the rule 11 agreement is enforceable. See e.g., Tex.R.App.P. 44.4 (requiring appellate courts to direct trial courts to correct any correctable error that prevents "the proper presentation of a case to the court of appeals"); Ad Villarai, LLC v. Pak, 519 S.W.3d 132, 136 (Tex. 2017) (per curiam) (noting that when trial court's failure to make properly requested findings of fact is harmful, "the preferred remedy is for the appellate court to direct the trial court to file the missing findings"); In re A.P., No. 07-10-00481-CV, 2011 WL 780525, at *3 (Tex. App.-Amarillo Mar. 7, 2011) (order) (per curiam) (abating case and remanding to trial court to conduct hearing to determine whether trial court's termination order incorrectly reflected judgment of court and, if so, whether mistake was clerical error subject to correction nunc pro tunc). We ORDER the trial court to file by February 5, 2018, (1) a supplemental clerk's record containing its findings regarding all matters it considered in conjunction with this order, and (2) a supplemental reporter's record of the hearing held on this matter.

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Notes:

[1] Parks and PRF also sued Affiliated Bank FSB, Affiliated Bank FSB, Inc., BancAffiliated, Inc., and Katherine Campbell, but dismissed their claims ...


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