Dismissed and Memorandum Opinion filed July 16, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-00225-CV

NAVIDEA BIOPHARMACEUTICALS, INC. AND MACROPHAGE 

THERAPEUTICS, INC., Appellants 

V.

CAPITAL ROYALTY PARTNERS II, L.P., CAPITAL ROYALTY 

PARTNERS II - PARALLEL FUND “A”, L.P., CAPITAL ROYALTY 

PARTNERS II (CAYMAN) L.P., AND CAPITAL ROYALTY PARTNERS II 

- PARALLEL FUND “B” (CAYMAN) L.P., Appellees 

On Appeal from the 151st District Court 

Harris County, Texas 

Trial Court Cause No. 2016-22242 

MEMORANDUM OPINION 

This case involves a commercial loan dispute resolved by a high-low 

settlement agreement and a trial to the court. After several days of trial, the court 

found that the borrowers owed the lenders an amount in excess of the maximum 

recovery permitted by the settlement agreement. The court signed a judgment in 
2

favor of the lenders for the maximum allowed minus an amount the borrowers had 

agreed to pay under the settlement agreement. On appeal, the borrowers contend 

that the evidence is legally and factually insufficient to support the judgment. 

Because we conclude that appellants agreed to waive their right to appeal and do 

not assert a valid basis to invalidate the waiver, we dismiss the appeal. 

BACKGROUND

 Consistent with the parties’ briefing in the trial court and on appeal, we refer 

to appellants as Navidea and appellees as CRG.1

 We discuss only those matters 

necessary to advise the parties of the court’s decision and the basic reasons for it. 

Tex. R. App. 47.4. 

 Navidea entered into a loan agreement and related documents with CRG. In 

accordance with the terms of the loan documents, CRG initially loaned $50 million 

to Navidea. One year later, on April 7, 2016, CRG filed suit against Navidea 

asserting that Navidea had committed several events of default under the loan 

agreement. CRG initially sought a declaratory judgment and damages for breach of 

contract. Shortly after that, CRG exercised its contractual right under the loan 

documents to require U.S. Bank to transfer funds from a certain Navidea account 

to CRG. U.S. Bank provided CRG $4,112,434.17 from the account. The parties 

refer to the roughly $4.1 million that CRG received from U.S. Bank as the “swept 

funds.” 

 The scope of the litigation quickly escalated to involve proceedings between 

CRG and Navidea in Texas and Ohio. Eventually, however, Navidea and CRG 

 

1

“Navidea” collectively refers to Navidea Biopharmaceuticals, Inc. and Macrophage 

Therapeutics, Inc. “CRG” collectively refers to Capital Royalty Partners II, L.P., Capital Royalty 

Partners II – Parallel Fund “A”, L.P., Parallel Investment Opportunities Partners II, L.P., Capital 

Royalty Partners II (Cayman) L.P., and Capital Royalty Partners II – Parallel Fund “B” 

(Cayman) L.P. 
3

agreed to settle their disputes. In February 2017, the parties stipulated to the terms 

of a settlement in open court during a proceeding in an Ohio court of common 

pleas. Among other things, Navidea agreed to pay CRG $59 million and CRG 

agreed to allow Navidea to sell certain of its assets to a third party. Navidea also 

agreed to withdraw its counterclaims in the Texas suit and to not assert such (or 

similar) counterclaims in the future in the Texas suit. 

 The parties reduced their settlement to writing in a document titled “Global 

Settlement Agreement.” Under the settlement agreement, CRG and Navidea would 

litigate CRG’s claims and Navidea’s defenses in the Texas suit subject to a highlow agreement. The settlement agreement also provided that the Texas court’s 

decision would be “final and non-appealable.” In relevant part, the settlement 

agreement provided: 

 The Texas Court shall adjudicate the Texas Claims to 

determine the final amount of the Obligations owed by the Company 

to the Lenders under the Loan Documents (the “Final Obligation 

Amount”), provided, that the Final Obligation Amount shall in no 

event be less than $47,000,000 (the “Obligation Minimum”) or more 

than $66,000,000 (the “Obligation Maximum) with each such amount 

net of any amounts received by the Lenders on or prior to receipt of 

the Deposit Amount,

2

and (1) provided however, that the Company 

retains, among other rights, the right to assert that all offsets, 

payments and credits have not been allowed, including without 

limitation, the credit due for the U.S. Bank funds previously taken by 

Lenders and (2) provided further, that the Texas Court’s decision shall 

be final and non-appealable and not subject to reconsideration, and

shall be binding on all the Parties to this Agreement.

 The Texas suit was tried to the court over several days in December 2017. 

After hearing the evidence, the court found that Navidea had breached the loan 

 

2 The “Deposit Amount” is the $59 million Navidea agreed to pay CRG under the 

settlement agreement.
4

agreement with CRG and that CRG had incurred damages in excess of $66 million. 

After subtracting the $59 million Navidea had paid under the settlement agreement 

from the Final Obligation Amount of $66 million, the court signed a judgment 

ordering Navidea to pay CRG $7 million. 

 Navidea immediately filed a letter and emergency motion to stay execution, 

arguing that the trial court should correct its “math errors” and reduce the judgment 

to account for CRG’s receipt of the swept funds and other reductions. Navidea also 

filed a motion to correct the judgment in which it argued that the trial court should 

correct the “math error” in its judgment to reduce the amount of money owed to 

CRG from $7 million to approximately $2 million. 

 On January 10, 2018, the trial court signed an amended final judgment again 

ordering Navidea to pay CRG $7 million damages. The judgment specified that the 

$7 million “is new money, in addition to the $59,000.000.00 previously paid to 

[CRG] pursuant to the high-low settlement in this case.” The judgment also 

informed the parties that “no additional filings or motions or corrections will be 

accepted by this Court pursuant to the plain language of the Parties’ agreements” 

and that the court would “not hold any additional hearings in this case.” The same 

day, the court filed detailed amended findings of fact and conclusions of law. 

 Navidea then filed an “Emergency Motion to Set Supersedeas Bond and to 

Modify the Judgment,” arguing that the trial court’s judgment failed to account for 

the swept funds and seeking a supersedeas bond in the amount Navidea believed it 

owed to CRG. Because Texas procedure requires the court to set the amount of a 

supersedeas bond, the court held a hearing on Navidea’s motion. At the hearing, 

the court rejected Navidea’s argument, stating: 
5

The answer is that it is not in excess of what the Court intended to 

issue. The Court meant what it said, $7 million in new money, period. 

That’s what the judgment says. That’s what it means. That’s what the 

evidence was at trial. 

The court also stated that “the evidence sufficiently demonstrated that [CRG is] 

entitled to an additional $7 million and that the swept funds were just as easily 

contemplated in the 59 million.” The trial court ordered that Navidea file a cash 

bond of $7,717,500.00 if it wished to appeal.3 This appeal followed. 

WAIVER OF RIGHT TO APPEAL

 In a single issue, Navidea contends that the trial court erred by awarding 

damages that CRG conceded it did not owe, namely the swept funds. According to 

Navidea, the trial court’s inclusion of the swept funds in its calculations constitutes 

a double recovery that is not supported by legally or factually sufficient evidence. 

 CRG disagrees that the evidence is insufficient to support the judgment. 

CRG’s primary argument, however, is that Navidea’s appeal is barred because both 

parties expressly and without qualification waived their right to appeal in the 

settlement agreement and therefore the appeal should be dismissed. 

 Anticipating that CRG would argue that Navidea waived its right to appeal, 

Navidea makes to two arguments in support of its asserted right to appeal. First, 

Navidea argues that it waived only its right to appeal the trial court’s determination 

of the Final Obligation Amount, and not the calculation of damages based on that 

determination. Second, Navidea argues that a waiver of appeal does not bar an 

appeal of a gross mistake or an absurd result. 

 

3 After this order was filed, Navidea filed another suit in the Ohio court alleging 

numerous claims against CRG, which spawned additional filings by the parties and rulings in 

both the Texas and Ohio courts, including this court. None of these matters are before us in this 

appeal.
6

A. The Scope of the Parties’ Waiver of Appeal 

 Navidea first contends that it did not waive the right to pursue this appeal. 

According to Navidea, it waived appeal of the trial court’s determination of the 

Final Obligation Amount, but it did not waive its right to appeal a damages award 

based on the Final Obligation Amount. Navidea’s argument requires us to 

determine the scope of the settlement agreement’s waiver of appeal. 

 The settlement agreement expressly provides that it is “governed by, 

construed, and enforced” in accordance with New York law, so we look to that law 

for guidance. Under New York law, settlement agreements and stipulations are 

“favored by the courts and not lightly cast aside.” Hallock v. State, 474 N.E.2d 

1178, 1180 (N.Y. 1984); see Cunha v. Shapiro, 42 A.D.3d 95, 100 (N.Y. App. Div. 

2007) (“The strict enforcement of open-court stipulations of settlement serves the 

interests of efficient dispute resolution, the management of court calendars, and the 

integrity of the litigation process.”). As with a contract, courts should not disturb a 

valid stipulation of settlement absent a showing of good cause such as fraud, 

collusion, mistake or duress; or unless the agreement is unconscionable or suggests 

an ambiguity indicating that the words did not fully and accurately represent the 

parties’ agreement. McCoy v. Feinman, 99 N.Y.2d 295, 302 (N.Y. 2002); Hallock, 

474 N.E.2d at 1181.

 New York law recognizes and regularly enforces stipulations and settlement 

agreements that include a waiver of the right to appeal. See, e.g. Cunha, 42 A.D.3d 

at 98–101 (enforcing high-low settlement agreement triggered by jury verdict and 

noting that the settlement agreement’s provision that there would be “no appeals or 

post-trial motions” was “[c]onsistent with the concept of settlement”); Guardino v. 

Kidd, 305 A.D.2d 635, 635 (N.Y. App. Div. 2003) (holding defendant in 

foreclosure action waived his right to appeal by stipulation and therefore the appeal 
7

“must be dismissed”); Ogu v. Faulkner, 265 A.D. 469, 469 (N.Y. App. Div. 1999) 

(dismissing appeal based on a “complete settlement” of the parties’ dispute 

because the parties stipulated in open court that they could “never come back to 

court ever again” with respect to automobile collision or injuries sustained); Matter 

of Dep’t of Social Servs. v. Herbert R., 213 A.D.2d 636, 636 (N.Y. App. Div. 

1995) (dismissing appeal when appellant stipulated to waive his right to appeal 

from fact-finding adjudication and failed to show any grounds upon which to 

vacate the stipulation of settlement).

 Navidea does not contend that New York law would not recognize the 

settlement agreement’s waiver of appeal; rather, Navidea contends that the waiver 

is confined to the settlement agreement’s high-low provision and does not purport 

to apply to the entire case. Navidea argues that the waiver of appeal does not 

expressly state that it applies to “the judgment,” the “entire case,” or the “dispute.” 

Navidea also argues that the waiver of appeal is appended to the end of the highlow provision and merely applies to “the Texas Court’s decision,” which Navidea 

maintains is limited to determining whether the Final Obligation Amount is $47 

million or $66 million “or some amount in between.” Thus, according to Navidea, 

the parties merely waived the appeal of the trial court’s “decision” about the Final 

Obligation Amount but not the right to appeal an erroneous damages award. 

 As additional support for its position, Navidea asserts that if the parties had 

intended the waiver of appeal to be broader, the parties understood how to draft the 

correct language. Navidea points to the “Governing Law” section of the settlement 

agreement that includes references to “all” or “any” proceedings or matters. 

Navidea also suggests that a right to appeal the trial court’s decision was provided 

in the Governing Law section as highlighted: 
8

[A]ll legal proceedings concerning the interpretation, enforcement and 

defense of the transactions contemplated by this Agreement (and any 

and all Exhibits hereto) shall be commenced exclusively in the Texas 

Court (and appealed only to a court with jurisdiction over the 

Texas Court’s decisions) and each Party submits to the exclusive 

jurisdiction of the Texas Court (or any appeals court with 

jurisdiction over the Texas Court’s decisions) for the adjudication 

of any dispute thereunder or in connection therewith . . . .

 We are not persuaded by Navidea’s arguments. First, it is evident that when 

viewed in the context of the entire section, the waiver of appeal is not limited to the 

trial court’s determination of the Final Obligation Amount, but applies to the 

entirety of the adjudication of the “Texas Claims” in the “Texas Action” between 

Navidea (the Company) and CRG (the Lenders): 

 Section 2. Texas Court Determination of Remaining 

Obligations. 

 Section 2.1 The Texas Claims. The Company and the 

Lenders shall continue to litigate, in the Texas Court as part of the 

Texas Action,4the Lenders’ claims against the Company arising under 

the Loan Documents and the Company’s defenses and affirmative

defenses thereto, (the “Texas Claims”), provided, however, that (a) 

the Company shall withdraw its counterclaims against the Agent and 

the Lenders in the Texas Action by filing, on the Closing Date, a 

Notice of Nonsuit With Prejudice, substantially in the form of Exhibit 

2.1(a) hereto, with the Texas Court in the Texas Action and (b) the 

Company hereby agrees not to assert in the future such (or similar) 

counterclaims against the Agent and/or the Lenders and/or their 

affiliates in the Texas Action. For avoidance of doubt, the Texas 

Claims shall include all defenses and affirmative defenses, whether 

contractual or extra-contractual, (including, without limitation, rights 

of setoff and offset) to the causes of action pled by the Lenders in the 

Texas Action (collectively, “Defenses”), provided that the Defenses 

are permitted by New York law, in a manner consistent with the 

mediation transcript, dated February 22, 2017, Case No.16CV-5801, a 

 

4 The “Texas Action” is defined as CRG’s lawsuit against Navidea filed on April 7, 2016. 

The “Texas Court” is defined as the 151st Judicial District Court of Harris County.
9

copy of which is attached hereto as Exhibit 2.l(b). The Texas Court 

shall adjudicate the Texas Claims to determine the final amount of the 

Obligations owed by the Company to the Lenders under the Loan 

Documents (the “Final Obligation Amount”), provided, that the 

Final Obligation Amount shall in no event be less than $47,000,000 

(the “Obligation Minimum”) or more than $66,000,000 (the 

“Obligation Maximum”) with each such amount net of any amounts 

received by the Lenders on or prior to receipt of the Deposit Amount, 

and (1) provided however, that the Company retains, among other 

rights, the right to assert that all offsets, payments and credits have not 

been allowed, including without limitation, the credit due for the U.S. 

Bank funds previously taken by Lenders and (2) provided further, that 

the Texas Court’s decision shall be final and non-appealable and not 

subject to reconsideration, and shall be binding on all of the Parties to 

this Agreement. In furtherance thereof, the Lenders and the Company 

shall notify the Texas Court of this Agreement.

This section addresses the portion of the parties’ global settlement agreement 

concerning the litigation of CRG’s Texas Claims in the Texas Action. As to the 

Texas Claims, Navidea agreed to nonsuit its counterclaims but retained the right to 

assert “all defenses and affirmative defenses” to those claims, including “the credit 

due for the U.S. Bank Funds previously taken by Lenders[,]” i.e., the swept funds 

that are the subject of this appeal. The Texas Court is then directed to “adjudicate 

the Texas Claims” to “determine” the Final Obligation Amount “net of any

amounts received by the Lenders on or prior to receipt of the [$59 million Navidea 

paid under the settlement agreement]” to reach its “decision.”

 We conclude that the only fair reading of the reference to the “Texas Court’s 

decision” is that it refers to the trial court’s adjudication of the Texas Claims, 

which encompasses the determination of the Final Obligation Amount “net of” 

(i.e., minus) any amounts CRG received before Navidea’s payment of the $59 

million, subject to Navidea’s right to assert a credit due for the swept funds and 

other defenses. In this case, the trial court’s amended final judgment is the 
10

“decision” that is “final and non-appealable,” “not subject to reconsideration,” and 

“binding” on all parties. 

 Our conclusion is supported by the insertion of no less than three successive 

phrases to emphasize the finality of the trial court’s decision, contrary to Navidea’s 

assertion that the parties intended to leave some aspects of the Texas Court’s 

adjudication of the Texas Claims appealable. Moreover, the Ohio judge who heard 

the parties’ stipulation recited his understanding that the dispute between Navidea 

and CRG regarding the Texas loan and any amounts owed “will be litigated in 

Texas before the judge that it’s currently set in front of with no appeal. That’s a 

final decision.”5

 Navidea did not object to the Ohio judge’s statement that the 

parties were waiving the right to appeal the Texas Court’s decision without 

qualification, indicating its agreement to a complete settlement. See Cunha, 42 

A.D.3d at 99–100.6

 

 Navidea’s general references to the section on “Governing Law” do not 

compel a different result. The recitation of a right to appeal in that section is 

limited to subsequent legal proceedings “concerning the interpretation, 

enforcement and defense of the transactions contemplated by” the settlement 

 

5 The reporter’s record of this hearing is incorporated into the settlement agreement. We 

also note that during the stipulation, Navidea’s counsel stated that although CRG retained the 

swept funds, Navidea reserved the right to argue that the amount of the swept funds should be 

credited back to Navidea in addition to its other arguments in the Texas case.

6 Because Navidea specifically stipulated that it agreed to waive the right to appeal the 

trial court’s “decision” rather than some limited aspect of that decision, the cases on which 

Navidea relies are easily distinguishable. See Grochowski v. Fudella, 70 A.D.3d 1407, 1408

(N.Y. App. Div. 2010) (holding that stipulation waiving the right to request a directed verdict did 

not preclude the filing of a motion to set aside the verdict as against the weight of the evidence or 

a motion for new trial); Rodriguez v. Villarreal, 314 S.W.3d 636, 645–46 (Tex. App.—Houston 

[14th Dist.] 2010, no pet.) (holding that right to appeal was not waived when jury’s verdict did 

not trigger terms of stipulated high-low settlement and parties’ stipulation at most waived only 

the right to appeal the jury’s verdict rather than the judgment).
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agreement that are commenced in the Texas Court “[f]rom and after” the 

settlement agreement’s effective date. Because CRG’s Texas suit was necessarily 

filed well before the effective date of the settlement agreement, the provision 

cannot apply to that suit. 

 An unambiguous settlement agreement or stipulation is a contract that must 

be enforced according to the plain meaning of its terms. McCoy, 99 N.E.2d at 302; 

Erie Blvd. Hydropower, L.P. v. State, 113 A.D.3d 906, 907 (N.Y. App. Div. 2014). 

Navidea’s argument—that the only non-appealable “decision” is the trial court’s 

determination of the Final Obligation Amount—is unsupported by the section’s 

plain text and inconsistent with the purpose of settlements generally as a means of 

expediting and simplifying the resolution of disputes. See Cuhna, 42 A.D.3d at 98; 

see also Sacco v. Profit, 133 A.D.2d 535, 535 (N.Y. App. Div. 1987) (dismissing 

appeal based on stipulation that appellant agreed not to appeal from the court’s 

determination, noting that parties “are free to chart their own litigation course and 

may stipulate that the decision of a lower court shall be final, thus waiving their 

right of appeal”). 

B. Gross Mistake or Absurd Result 

 Navidea next argues that, even if the waiver of appeal applies, it does not 

prevent the appeal of a judgment when there is a gross mistake or the judgment 

would lead to an absurd result. As noted above, under New York law, a valid 

settlement agreement, like a contract, will not be invalidated “absent a showing of 

good cause such as fraud, collusion, mistake or duress; or unless the agreement is 

unconscionable or contrary to public policy; or unless it suggests an ambiguity 

indicating that the words did not fully and accurately represent the parties’ 

agreement.” McCoy, 99 N.Y.2d at 302 (citations omitted); see Hallock, 474 N.E.2d 

at 1180–81. 
12

 1. Navidea has not shown a gross mistake. 

 In support of its argument against enforcement of the waiver of appeal based 

on gross mistake, Navidea cites a Texas case holding that a waiver of appeal did 

not preclude the appellants from appealing a “gross mistake” in the judgment 

because “it was not adequate to effectuate the parties’ agreement.” See Steele v. 

McDonald, No. 10-05-00266-CV, 2007 WL 2200008, at *6 (Tex. App.—Waco 

Aug. 1, 2007, pet. denied) (mem. op.) (citing Barsness v. Scott, 126 S.W.3d 232, 

238 (Tex. App.—San Antonio 2003, pet. denied)); accord McCoy, 99 N.Y.2d at 

302. The court concluded that the judgment was erroneous because the legal 

descriptions of the real property affected by the judgment were insufficient, 

requiring the court to modify the judgment to correct the inadequate property 

descriptions to fully effectuate the parties’ settlement agreement. See Steele, 2007 

WL 2200008, at *4–6.

Navidea contends that the trial court’s judgment failed to effectuate the 

parties’ agreement because CRG conceded that it had applied the swept funds to 

certain categories of interest, fees, and expenses specified in the loan agreement 

that were later reflected as amounts due and owing in the trial court’s amended 

findings of fact. Navidea’s real complaint is that the evidence is insufficient to

support the trial court’s judgment, not that the judgment does not fully and 

accurately represent the parties’ settlement agreement.7

 As previously explained, 

however, the settlement agreement specified how the trial court was to render a 

decision the Texas Claims, and the record reflects that the trial court’s judgment 

fully effectuates the parties’ agreement. 

 

7 Navidea’s argument is further undercut by its specific references in the settlement 

agreement and stipulation to preserving its right to assert a credit for the swept funds as a defense 

to CRG’s claims, which suggests that the applicability of the swept funds to Navidea’s debt was 

a contested issue.
13

 Navidea also contends that the trial court committed a second kind of gross 

mistake by its “failure to exercise an honest judgment in reaching a decision.” In 

support of this argument, Navidea again relies on Texas cases. See Xtria L.L.C. v. 

Int’l Ins. Alliance Inc., 286 S.W.3d 586, 598 (Tex. App.—Texarkana 2009, pet. 

denied); Brown v. Eubank, 443 S.W.2d 386, 391 (Tex. App.—Dallas 1969, no 

writ). Navidea complains that because there were no conflicting claims regarding 

the swept funds, the trial court committed a gross mistake when it awarded them to 

CRG despite CRG’s concession. Assuming such a mistake would be recognized 

under New York law, we note that a failure to exercise honest judgment does not 

mean an egregious mistake of fact or law. Xtria, 286 S.W.3d at 598. Moreover, 

“[a] judgment rendered after honest consideration given to conflicting claims, no

matter how erroneous, is not arbitrary or capricious.” Id. (emphasis added) The 

record shows that the trial court heard argument and considered evidence in a 

multi-day trial and in post-judgment motions. We conclude that on this record, 

Navidea has failed to demonstrate that the trial court failed to exercise honest 

judgment in reaching its decision. See id. 

2. Navidea has not shown an absurd result. 

 Finally, Navidea contends that a waiver of appeal does not apply to the 

extent that it “could lead to an absurd result.” See Rodriguez, 314 S.W.3d at 645. 

Navidea argues that the trial court violated the settlement agreement by awarding 

CRG a double recovery of the swept funds and complains that “it is difficult to 

conceive of a more absurd result” than an award of relief that a party did not seek. 

But Navidea cites no case in which a Texas or New York court has invalidated an 

otherwise valid waiver of appeal based on the type of mistake of fact alleged here, 

and we decline to do so in this case. 
14

CONCLUSION

 We conclude that Navidea waived its right to appeal the trial court’s 

judgment in the parties’ settlement agreement and, accordingly, we dismiss the 

appeal. 

 

 /s/ Ken Wise 

 Justice 

Panel consists of Justices Wise, Zimmerer, and Spain.