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Roemer v. Haskins

Court of Appeals of Texas, Fifth District, Dallas

August 23, 2019

WESLEY ROEMER, Appellant
v.
EDD HASKINS, Appellee

          On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. Dc-13-02661

          Before Justices Bridges, Brown, and Nowell

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE

         Wesley Roemer appeals the trial court's judgment incorporating two prior summary judgments. In a single issue, Roemer argues the trial court erred in (1) denying him summary judgment on his declaratory judgment claims and breach of fiduciary duty claims against Edd Haskins and (2) granting Haskins a take-nothing summary judgment on Roemer's breach of contract and breach of fiduciary duty claims and declaratory relief regarding the underlying contract. Roemer appeals the trial court's final judgment "only insofar as it incorporates those prior summary judgment orders against Roemer and for Haskins." In his cross-appeal, Haskins argues the trial court erred in awarding Roemer management fees associated with a certain project and the judgment should be modified to eliminate a percentage of the attorney's fees awarded to Roemer. We affirm the trial court's judgment in part, reverse in part, and remand for further proceedings.

         In July 2008, Roemer and Haskins, through the entity Haskins/Roemer L.L.C., began operating a real estate business developing sites for the construction of self-storage facilities. In April 2009, Haskins formed a limited liability company called Chapel Colorado, L.L.C. for the development of a self-storage project in Colorado Springs, Colorado. Although Haskins was listed as the sole member of Chapel Colorado, he shared in the equity and distributions with Roemer. In 2011, Haskins/Roemer entered into an agreement with Endeavor Real Estate Group (an "Endeavor deal") for a project known as Brodie MS, L.P. Haskins/Roemer was to act as the development member for Brodie and was to be paid a developer's fee, builder's fee, and management fee.

         A dispute arose between Roemer and Haskins regarding their respective rights and obligations related to Haskins/Roemer and other development projects. In December 2011, Roemer and Haskins entered into a settlement agreement to resolve their disagreement related to their respective roles in Haskins/Roemer. As Haskins stated in deposition testimony, "we both felt like that the association between the two of us was more beneficial than each of us individually going our own way." In pertinent part for purposes of this appeal, the settlement agreement provided as follows:

Independent Deals. With the exception of Pflugerville, Brodie, Chapel Colorado and any current or future Endeavor deals, Haskins/Roemer, LLC shall not pursue any future deals. Roemer and Haskins are free to pursue deals either independently or with other entities. Notwithstanding the existence of Haskins/Roemer, LLC, the Haskins/Roemer, LLC Operating Agreement, or this Settlement Agreement, either Haskins or Roemer may engage in whatever activities they choose, whether the same may be competitive with Haskins/Roemer, LLC or otherwise without having or incurring any obligation to offer any interest in such activities to Haskins/Roemer, LLC or any other member. Nothing in this Settlement Agreement or the Haskins/Roemer Operating Agreement shall prevent the members from engaging in such activities, or require any member to permit Haskins/Roemer, LLC or any other member to participate in any such activities, and as a material part of each Parties' consideration under this Settlement Agreement, each Party hereby waives any such right or claim of participation.

Notwithstanding the foregoing, the Parties agree to give Endeavor the right of first refusal on all self-storage deals in either the Austin or DFW SMSA. This requirement will expire on August 31, 2014 or one year after the issuance of a CO for any Endeavor- Haskins/Roemer, LLC self-storage project commenced before August 31, 2014, whichever comes later. Each party must be copied on all correspondence, offer or presentation of any deal made to Endeavor. If Endeavor declines to pursue such deal, within fourteen (14) days after same is presented to Endeavor either party shall be free to take any such deal to third-parties with no obligation to Haskins/Roemer, LLC or the other Party. If, however, Endeavor has indicated an interest in pursuing the deal, the Parties agree that they will not take the deal to any third-party so long as Endeavor continues to actively pursue such deal.

         In March 2013, Roemer filed his original petition against Haskins alleging, among other things, that Haskins engaged in a concerted effort to exclude Roemer from any existing or future development projects with Endeavor shortly after execution of the settlement agreement. Roemer alleged the known Endeavor deals at the time of the settlement agreement were Brodie and Southpark Meadows. Roemer alleged this was the second time Haskins had attempted to exclude Roemer from joint projects by forming new LLCs and stating Roemer was no longer a participant in the new entity. Specifically, Roemer alleged (1) Haskins informed Endeavor "he worked out other arrangements with Roemer and that Roemer was not participating in the Southpark Meadows project"; (2) Haskins and Endeavor thereafter continued to direct Roemer to make adjustments to the Southpark Meadows projections and two other projects; and (3) when Roemer requested status updates from Haskins regarding Southpark fees, Haskins told Roemer "there were delays and Roemer was not told that he had been unilaterally excluded from the project." Among other things, Roemer asserted against Haskins claims of breach of the settlement agreement and fraud in inducing Roemer to enter into the settlement agreement. Roemer also sought a finding that the terms of the settlement were ambiguous and a declaratory judgment construing the terms of the settlement agreement.

         In January 2015, Roemer filed a traditional motion for summary judgment seeking a declaration that the "Independent Deals" provision of the settlement agreement (1) left Roemer and Haskins free to pursue any deals without any obligation to each other or Haskins/Roemer except for the Pflugerville, Brodie, and Chapel Colorado deals and any current or future deals with Endeavor and (2) Haskins Roemer must present any deals in Austin or Dallas/Fort-Worth to Endeavor subject to the stated deadline, at which point Endeavor has a right of first refusal. The motion also sought to impose liability on Haskins for usurping a corporate opportunity by individually pursuing the Southpark Meadows project. The trial court denied Roemer's motion for summary judgment.

         Haskins filed competing motions for summary judgment seeking a declaration (1) that the settlement agreement allowed Haskins to engage in "any activity" he chooses, regardless of whether such activity competes with Haskins/Roemer and (2) by permitting Haskins to engage in "any activity," the settlement agreement eliminated any duty not to usurp any corporate opportunity. In making this argument, Haskins relied on the Independent Deals provision of the settlement agreement, especially the following language:

Notwithstanding the existence of Haskins/Roemer, LLC, the Haskins/Roemer, LLC Operating Agreement, or this Settlement Agreement, either Haskins or Roemer may engage in whatever activities they choose, whether the same may be competitive with Haskins/Roemer, LLC or otherwise without having or incurring any obligation to offer any interest in such activities to Haskins/Roemer, LLC or any other member.

         The trial court granted Haskins' motions for summary judgment but reserved for trial Roemer's claims for breach of contract for Haskins' (1) failure to pay Roemer the Brodie management fee and (2) failure to distribute proceeds from the Chapel Colorado sale. Following a bench trial, the trial court entered a final judgment awarding Roemer $81, 248.31 in fees associated with the Chapel Colorado deal and $36, 000 in fees associated with the Brodie deal. This appeal followed.

         In a single issue, Roemer argues the trial court erred in (1) denying him summary judgment on his declaratory judgment claims and breach of fiduciary duty claims against Edd Haskins and (2) granting Haskins a take-nothing summary judgment on Roemer's breach of contract and breach of fiduciary duty claims and declaratory relief regarding the underlying contract. In his brief, Haskins argues the settlement agreement unambiguously permits either Roemer or Haskins to pursue deals with Endeavor independently of Haskins/Roemer and each other and does not require them to pursue those deals through Haskins/Roemer. In effect, both Roemer and Haskins are raising on appeal the issues raised in their competing motions for summary judgment.

         Whether a contract is ambiguous is a question of law for the court to decide. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Arredondo v. City of Dallas, 79 S.W.3d 657, 666 (Tex. App.-Dallas 2002, pet. denied). If a contract can be given a definite or certain legal meaning or interpretation, then it is not ambiguous. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Arredondo, 79 S.W.3d at 666. If, however, the contract is reasonably susceptible to more than one meaning, it is ambiguous. Coker, 650 S.W.2d at 393; Arredondo, 79 S.W.3d at 666. A contract ambiguity may be either patent or latent. Arredondo, 79 S.W.3d at 666. A patent ambiguity is one evident on the face of the contract, while a latent ambiguity exists when a contract is unambiguous on its face, but fails because of some collateral matter that creates an ambiguity. Nat'l Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995); Arredondo, 79 S.W.3d at ...


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