Court of Appeals of Texas, Seventh District, Amarillo
Appeal from County Court at Law Number 3 Lubbock County,
Texas Trial Court No. 2010-774, 770; Honorable J. Phillip
QUINN, C.J.,  and CAMPBELL and PIRTLE, JJ.
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.
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
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.
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.
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.
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.
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).
affirm in part and reverse and render in part the claims for
monetary damages, and we render declaratory relief.
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.
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
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.
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
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
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
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