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Locascio v. Mongrain

Court of Appeals of Texas, Seventh District, Amarillo

September 30, 2019

ANTHONY LOCASCIO AND NICOLAS LOCASCIO, APPELLANTS
v.
NINA LOCASCIO MONGRAIN AND CHARLES MONGRAIN, APPELLEES

          On Appeal from County Court at Law Number 3 Lubbock County, Texas Trial Court No. 2010-774, 770; Honorable J. Phillip Hays, Presiding

          Before QUINN, C.J., [1] and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         This appeal arises from a contested probate matter that resulted in a Rule 11 settlement agreement among four siblings, which then turned into a lawsuit over implementation of that agreement. Appellants, Anthony LoCascio and Nicolas LoCascio, sued Appellees, Nina LoCascio Mongrain and her husband, Charles Mongrain, for breach of the settlement agreement and sought specific performance of their agreement to divide a family ranch inherited from their mother. Initially, the suit included the fourth sibling, Angela LoCascio Heath, but a subsequent pleading filed by Anthony and Nicolas dismissed her from the lawsuit when their disputes were settled. The Mongrains counterclaimed alleging that Anthony and Nicolas breached their obligations under the same settlement agreement, causing monetary damages. Trial was to a jury which found that all parties had failed to comply with the settlement agreement. Since Anthony and Nicolas received a deed to their share of the family ranch when they settled with Angela, the jury found they did not suffer any monetary damages as a result of the Mongrains' breaches. Monetary damages were, however, awarded to Nina for $832.75, relating to her claim for a portion of the proceeds from a grass lease, and to Charles for $50, 000, relating to his claim for lost profits. The jury also awarded both sides $90, 000 in reasonable and necessary attorney's fees and additional attorney's fees in the event of successful appeals. The trial court found that Anthony and Nicolas were not entitled to any attorney's fees because they "did not recover any actual damages against" the Mongrains. Anthony and Nicolas moved for a judgment notwithstanding the verdict and the Mongrains moved for a final verdict or, alternatively, a motion for an interlocutory verdict and a motion to sever. The trial court entered its Final Judgment in favor of the Mongrains for damages and attorney's fees consistent with the jury's findings. Anthony and Nicolas challenge the judgment by five issues.

         By their first issue, Anthony and Nicolas assert the trial court erred in rendering judgment for Charles on his breach of contract claim because, as a matter of law, he had no legally valid claim. They further contend there was no evidence to support the jury's finding of a breach by them and no evidence to support the award of $50, 000 for "lost net profits." Furthermore, they maintain that Charles's claims were barred by the doctrine of estoppel by contract and they allege the trial court erred by allowing Charles to testify using evidence of damages he failed to disclose in discovery.

         In their second issue, Anthony and Nicolas contend the trial court erred in rendering judgment for Nina because, as a matter of law, she had no legally valid claim. They also allege Nina lacked standing to sue. As to Charles, they contend there was no evidence to support the jury's finding of a breach of contract by them. Finally, they contend that Nina and Charles's claims were barred by the doctrine of estoppel by contract.

         By their third issue, Anthony and Nicolas allege the trial court erred in awarding attorney's fees to Nina and Charles. Specifically, they maintain the Mongrains failed to plead presentment of their breach of contract claim as required by section 38.002 of the Texas Civil Practice and Remedies Code. They also contend the Mongrains are not entitled to attorney's fees because they did not present legally sufficient evidence of a breach of contract or presentment of their breach of contract claim.

         Issue four presents a challenge to the trial court's refusal to render judgment in favor of Anthony and Nicolas for attorney's fees based upon the jury's finding of a breach of the settlement agreement by Nina and Charles. Anthony and Nicolas maintain that the equitable remedy of specific performance constitutes "something of value" sufficient to support an award for attorney's fees to them.

         By their fifth and final issue, Anthony and Nicolas contend the trial court erred in rendering judgment in favor of Nina and Charles because the jury's finding that they also breached the settlement agreement precluded enforcement of the agreement's release provisions.

         Nina and Charles raise a cross-issue complaining of the trial court's exclusion of expert testimony from Gary Terrell who would have testified regarding an encroachment issue. An offer of proof was made during trial. A separate notice of appeal was not filed nor required because Nina and Charles do not seek to alter the trial court's judgment. See Tex. R. App. P. 25.1(c).

         We affirm in part and reverse and render in part the claims for monetary damages, and we render declaratory relief.

         Background

         Darlene Abel LoCascio had four children, Anthony, Nicolas, Nina, and Angela. At the time of Darlene's death in 2010, she owned a ranch in Scurry County, Texas, described as "eight tracts of land in Scurry County, Texas, approximately [3, 566.62] acres, " valued at $3, 330, 160.

         In 2006, Darlene and her son-in-law, Charles Mongrain, entered into a Farm and Ranch Lease requiring him to pay $15, 000 per year to graze his cattle on the ranch. Three years later, in 2009, Darlene and Charles signed a Ranch Management Contract whereby she employed him as her ranch manager, with the responsibility of normal day-to-day business operations of her ranch. The contract provided that Charles's duties were "at no expense" to him as ranch manager.

         When Darlene died, her Last Will and Testament was filed for probate on May 18, 2010. Angela was appointed independent executrix of the estate. Under the will, Angela had broad discretion to "purchase, sell, exchange, partition, subdivide, manage, and improve real property." On behalf of Darlene's estate, Angela signed an Amended Ranch Management Contract with Charles which also relieved him of any expenses associated with operation of the ranch. By her will, Darlene devised the ranch to her four children in equal undivided shares.

         For five years, before Darlene's estate was finally settled, Charles continued to run his personal cattle operations on the ranch at no expense to himself. The five-year delay in settling Darlene's estate finally caused Anthony and Nicolas to ultimately file suit against Angela, Nina, and Charles in February 2015. In that lawsuit they asserted that Angela was refusing to close the estate and distribute the undivided interests in the ranch despite repeated requests by them to do so. The suit also alleged that Anthony and Nicolas were being denied access to the ranch to manage their oil and gas interests and that Charles was continuing to use the ranch "as if it were his own." In addition to other relief, Anthony and Nicolas sought declaratory relief and attorney's fees. In an attempt to resolve the pending suit, on November 13, 2015, the four siblings entered into a Rule 11 settlement agreement to divide the ranch somewhat differently than expressed in Darlene's will. The settlement agreement provided as follows:

1. [Anthony and Nicolas] are to be deeded the south half of the Scurry County Ranch ("Ranch") with the dividing property line running generally east to west so that the south half of the Ranch represents 51% of the total acreage of the Ranch. Defendants will be deeded the north half of the Ranch, which will represent 49% of the total acreage of the Ranch.
2. [Anthony and Nicolas] are to be granted full access to the south half of the Ranch within 120 days from the date hereof.
3. Mr. Mongrain has 120 days to remove his cattle and equipment from the south half of the Ranch.
4. The estate is to build a boundary fence splitting the Ranch into north and south halves as reflected in paragraph 1. Estate will notify [Anthony and Nicolas] upon (1) completion of the survey and (2) completion of the fence. Cost of fence and survey to be paid by estate.
5. [Anthony and Nicolas] are to pay $10, 000 each to Angela Heath upon closing of [their] conveyance of the south half of the Ranch.
6. The Parties agree to an easement to allow Defendants and their successors access [to] the north half of the Ranch. The estate will pay for the survey and preparation of the easement, said easement to follow the existing all-weather road that provides access to the north half of the Ranch. [Anthony and Nicolas] and [Angela, Nina, and Charles] will share equally in the cost of maintenance and repair of the access road/easement to the north half of the Ranch.
7. All lawsuits filed by the Parties to be non-suited with prejudice. All Parties agree to release each other and the estate from all claims, damages, causes of action, injuries and debts, including but not limited to all claims brought in the Lubbock County District Court case, the Lubbock County and County Court at Law No. 3 case, and the Scurry County case.
8. Closing of the conveyances contained in paragraph 1 will occur within 120 days from the date hereof. The estate's lawyer shall prepare the closing documents. If any party chooses to obtain a title policy, said party will be solely responsible for the costs of the title policy.
9. The Parties agree to the cancellation of the Farm and Ranch lease and the ranch management agreements with respect to the south half of the Ranch upon closing of the conveyances contained in paragraph 1.
10.[Charles] agrees to haul of [sic] the mobile homes and the 3 junk vehicles located on the south half of the ranch.
11.[Anthony and Nicolas] will have the right to access the Ranch with [the estate lawyer] to view the location of the proposed fence once the location of the fence is determined upon completion of the survey.
12.Once all estate expenses are paid, the remaining funds shall be distributed pursuant to the terms of the Last Will and ...

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