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Parks v. Affiliated Bank

Court of Appeals of Texas, Fifth District, Dallas

May 3, 2018

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

          Before Justices Lang-Miers, Fillmore, and Stoddart

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         Tonya Parks and Parks Realty Firm, LLC (PRF) appealed from a trial court order signed by the Honorable Sally Montgomery that dismissed appellants' claims against Affiliated Bank pursuant to the Texas Citizens Participation Act, see Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011(West 2015) (the TCPA), and awarded Affiliated Bank $29, 876.40 in attorneys' fees. The record, however, reflects that Parks, individually and on behalf of PRF, orally agreed on the record not to appeal the order. Because Judge Montgomery did not modify the order to reflect that agreement, we abated this appeal and remanded the case to the trial court for a determination of whether Parks, individually and on behalf of PRF, voluntarily entered into an agreement under rule of civil procedure 11, [1] pursuant to which appellants forfeited their right to bring this appeal, and whether any agreement was enforceable.

         The Honorable Ted Akin conducted an evidentiary hearing and determined Parks agreed in open court not to appeal the order dismissing appellants' claims and the agreement was enforceable pursuant to rule of civil procedure 11. Appellants filed a supplemental brief asserting (1) this Court erred by abating this appeal because any agreement made by Parks is unenforceable due to Judge Montgomery's violation of appellants' right to procedural due process, and (2) Judge Akin abused his discretion by entering findings of fact and conclusions of law when there had not been a trial and by determining Parks did not enter into the agreement due to coercion or duress, the agreement was enforceable, Affiliated Bank complied with the agreement, and appellants breached the agreement. We dismiss this appeal.

         Background

         Appellants 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. Campbell filed a motion to dismiss under the TCPA on grounds the claims against him were based on statements he made in connection with a matter of public concern and appellants could not establish by clear and specific evidence a prima facie case for each essential element of their claims. Campbell requested the dismissal of the claims against him and the award of reasonable attorneys' fees. 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. Affiliated Bank also requested that it be awarded attorneys' fees pursuant to the TCPA. On March 24, 2016, Judge Montgomery signed an Order on Defendant Joshua Campbell's Motion to Dismiss (the March 24th Order), dismissing with prejudice appellants' claims against both Campbell and Affiliated Bank and awarding $62, 297.50 to Campbell and $29, 876.40 to Affiliated Bank for court costs, reasonable attorneys' fees, and other expenses incurred in defending the litigation.

         Appellants filed a motion for new trial. At the hearing on the motion, the parties agreed on the record that (1) Campbell and Affiliated Bank would not seek to recover the fees and expenses awarded in the March 24th Order, and (2) appellants would not appeal the March 24th Order. However, Parks subsequently filed a pro se notice of appeal for both herself and PRF. Affiliated Bank moved to dismiss the appeal based, in part, on Parks's agreement not to appeal the March 24th Order.[2] Parks and PRF responded Parks was "coerced by the trial court" into nonsuiting their claims under "extreme duress."

         After retaining counsel, appellants filed an appellate brief arguing in four issues that the trial court erred by dismissing appellants' claims against Affiliated Bank and the dismissal violated appellants' right to procedural due process. Following oral argument, we abated this appeal and remanded 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 appellants forfeited their right to bring this appeal, and whether any agreement was enforceable.

         In compliance with our order, Judge Akin conducted an evidentiary hearing on February 16, 2018. Judge Akin admitted into evidence pleadings from the underlying proceedings as well as the transcript of the hearing on appellants' motion for new trial. Parks also testified about the hearing on appellants' motion for new trial and her state of mind at the time she agreed to the settlement. On February 26, 2018, Judge Akin entered findings of fact and conclusions of law. Judge Akin specifically found:[3]

1. Parks is at least forty-two years old, has a B.B.A. degree from the University of North Texas, is a licensed realtor, owns and operates her own company, and is a sophisticated businesswoman;
2. In the underlying case, appellants' motion for new trial was heard on June 13, 2016, more than seventy-five days after the March 24th Order was signed;
3. Appellants were represented by counsel during the hearing, and appellants counsel was among the counsel who represented to Judge Montgomery that appellants' motion for new trial had been overruled by operation of law;
4. During the hearing, Judge Montgomery directed the parties to confer regarding potential settlement at three separate junctures, including one break that lasted for more than thirty minutes;
5. After the final break, during which Parks conferred with her counsel, the parties announced they had reached an agreement;
6. Counsel for all parties agreed on the record that Campbell and Affiliated Bank would forego seeking to recover the attorneys' fees awarded in the March 24th Order in exchange for a "full waiver of any appeal or further filings" by appellants;
7. The agreement constituted a "dismissal with prejudice" with appellants "giving a full and complete release of all claims" against Affiliated Bank and Campbell;
8. Defense counsel requested that Parks give her verbal assent to the agreement on the record;
9. Appellants' counsel "made it clear to his client that it was her decision, stating 'I'm not telling you what to do. I'm not pressuring you. ...

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