In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-10-00091-CV

______________________________

ROBERT P. BERG, Appellant

V.

KRISTI WILSON, Appellee

 

On Appeal from the 62nd Judicial District Court

Hopkins County, Texas

Trial Court No. CV38399

 

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Chief Justice Morriss
2

O P I N I O N

On May 19, 2008, by entering into a Rule 111settlement agreement, Robert P. Berg and 

Kristi Wilson ―buried the hatchet‖ of a pending business-separation lawsuit. A central question 

for this appeal is whether the handle was left sticking out, in other words, whether Berg‘s 

underlying claims, predating the settlement, should have been part of the subsequent jury trial 

between Berg and Wilson.

Berg, a prominent designer of western jewelry, had met Wilson at the National Rodeo 

Finals in Las Vegas in 2005. Wilson, a mortician, desired a change of career—she intended to 

pursue her interest in all things western, having grown up raising horses and being involved in the 

rodeo business. Berg and Wilson began a relationship and also began working together in Berg‘s 

jewelry business, which was in somewhat of a financial strait. Wilson used her contacts in the 

industry to help rebuild the business, located in Yukon, Oklahoma. The business began to gain 

ground; in 2007, Wilson and Berg moved to Hopkins County and into a newly purchased house on 

eighty-seven acres.

2

 Wilson and Berg lived together and successfully operated the business of 

Bob Berg Designs, Inc., from that house.

 

1TEX. R. CIV. P. 11.

2The land is variously referred to as eighty-seven acres and eighty-nine acres; only one tract seems intended. Due to 

Berg‘s poor credit history, he was unable to obtain a loan to buy the property. Consequently, Wilson obtained the 

loan in her name and purchased the property for $389,000.00. A down payment of $100,000.00 was made on the 

property from proceeds of the jewelry business. The deed to the property is in Wilson‘s name only. 
3

Then, in March 2008, Berg and Wilson had a heated personal confrontation, which resulted 

in Wilson leaving the house. When Wilson returned a few days later, she discovered that Berg 

had moved the business inventory and financial records to the home of Martha Hayward, their only 

employee. As a result, the business was left in disarray. The following month, Wilson sued 

Berg for breach of fiduciary duty, seeking an accounting of partnership property and requesting a 

temporary restraining order to enjoin Berg from removing, encumbering, or transferring inventory 

of Bob Berg Designs, among other things. The trial court issued a temporary restraining order in 

April 2008. The following month, Wilson and Berg entered into the Rule 11 agreement, 

ostensibly resolving all disputes between them. 3 The agreement provided a number of 

 

3The settlement agreement, as dictated into the record, provides:

1. On or before 30 days after today or as soon thereafter as the bank has made the loan that‘s 

contemplated in paragraph three below, Kristi Wilson will surrender the following items of 

personalty to Bob Berg by placing them in an open area protected from weather and other hazards at 

3872 County Road 3504, and those items are as follows:

all personal items belonging to Bob Berg as of January, 2006;

all business inventory of the business Bob Berg Designs;

the copier;

a horse called Doc;

the white cargo trailer and its contents, which shall include everything that was in the 

trailer at the last time Bob Berg was there, for example, booths, belts, inventory, clothes, et 

cetera;

the aluminum horse trailer;

mirror in the house;

an orange tractor believed to be a Kabota [sic];

a Bombay desk;

an old laptop computer if it can be found;

a plasma television, 52 inches wide or approximately that wide; 

all booths for showing merchandise, except the screw together booths which Kristi Wilson 

will keep; 
4

 

2. Bob Berg will pick all of those items up by noon that day, weather permitting. After that hour, 

Kristi shall have no responsibility for any of it. When he picks the personal property up, Wilson 

will leave the white 1999 Ford F-350 pickup at the same place, at the same time, and in substantially 

the same condition it was when he got it a month or six weeks ago. 

3. No later than 30 days from today, Kevin Buchanan (attorney for Berg) will notify me (Bruce 

Monning, attorney for Wilson) of the date and time and give me at least between five and ten days in 

which to do it, that he would like for the longhorn cattle that are in my possession and owned by the 

parties or subject to this controversy to be delivered at a place of Mr. Buchanan‘s selection. 

4. No later than 30 days after today or at the same time if a real estate closing is required in order 

for Ms. Wilson to raise the money, Ms. Wilson will pay $25,000 cash to or for – to Bob Berg or for 

his account. If it is necessary to use a bank loan to raise that money, that money will be paid by the 

title company to Mr. Berg or at his direction.

5. At the same time as the closing, or if it is not necessary for Wilson to get a loan, Berg will 

execute a Special Warranty Deed to waive any and all interest he has in the 89 acres that was 

described on Plaintiff‘s Exhibit 6 earlier today to Ms. Wilson, and he will cause the lis pendens 

notice that‘s been issued in this case to be removed.

At this point in the proceeding, Buchanan pointed out that ―the loan that may be necessary 

that is contemplated by the Rule 11 Agreement will be no more than $25,000.‖ Monning 

responded simply with a ―yes.‖

6. Bob Berg, Martha Hayward, and Kristi Wilson agree to fully, completely, mutually releasing 

[sic] all claims that any of them has or may have against any other. 

7. Kristi Wilson and Bob Berg will not have any direct communications between them by 

telephone, fax, email, or in person or otherwise. This does not mean that the parties can have no 

communication with Martha Haywood. 

8. Bob Berg shall own the business Bob Berg Designs under any by that name [sic] including all 

cash, merchandise, inventory, work in progress, accounts receivable, copy rights [sic], and any 

deviation [sic] of the name of Bob Berg. Kristi Wilson relinquishes all claims she has to any of the 

Bob Berg designs or Bob Berg associated business. 

9. Kristi Wilson shall own the property described in Plaintiff‘s Exhibit 6, which is also 3872 

County Road 3504, and everything in it or on it except the items of personal property listed in 

paragraph one above.

10. All claims asserted by all parties will be dismissed with prejudice to refiling by any party. 

Each party denies any and all liability for any of the claims but agrees to this settlement only by 

peace and to avoid the cost of further litigation. 

11. Kristi Wilson represents that she has turned over or will turn over all business inventory where 

they‘re in her possession, custody or control. 
5

obligations, including one for Wilson to pay Berg the sum of $25,000.00, either within thirty days 

of the agreement, or as soon as a contemplated real estate loan was closed with a bank. The real 

estate loan was finalized August 20, 2008. Wilson, through counsel, tendered the $25,000.00 to 

Berg September 10, 2008. Berg refused to accept the tender of funds, claiming Wilson was in 

breach of the agreement. He filed an amended answer and counterclaim in the underlying 

lawsuit, alleging Wilson breached the Rule 11 agreement in failing to pay the $25,000.00 in a 

timely fashion, in failing to return business inventory, and in using copyrighted material in 

violation of the agreement.4

Wilson filed a motion to strike Berg‘s amended pleadings, a motion to enforce the Rule 11 

agreement, and a second amended original petition alleging Berg‘s breach of the Rule 11 

agreement.5 Next, Wilson filed a motion for summary judgment, alleging that the causes of 

action set forth in Berg‘s amended answer and counterclaim were released by the Rule 11 

agreement and moving for judgment on the affirmative defenses of accord and satisfaction and 

estoppel. Berg responded, alleging that there were genuine issues of material fact regarding 

Wilson‘s alleged breach of the agreement, thereby excusing Berg‘s performance. 

 

4Berg‘s counterclaim also alleged fraud, breach of contract, breach of fiduciary duty, conversion, theft (Texas Theft 

Liability Act), and sought a constructive trust on certain real property. 

5Allegations of breach were based on Berg‘s refusal to accept the $25,000.00 payment tendered by Wilson and further 

based on his refusal to execute a special warranty deed to the certain real property, as contemplated by the agreement. 
6

The trial court granted partial summary judgment, finding the Rule 11 agreement was 

―valid, legal and binding,‖ but reserving for trial the issues involving the parties‘ compliance or 

failure to comply with the Rule 11 agreement. 

After a four-day trial on the issue of whether either or both parties breached the Rule 11 

agreement, the jury determined that Berg breached the agreement and Wilson did not. The jury 

assessed attorneys‘ fees to Wilson.6 The final judgment ordered that Berg take nothing on his 

counterclaim and awarded attorneys‘ fees to Wilson in accordance with the jury verdict.7

We affirm the judgment of the trial court because (1) addressing the 

breach-of-settlement-agreement claims separately from the underlying claims was within the trial 

court‘s discretion, (2) Berg‘s affirmative defenses were fairly covered by the jury issues submitted, 

(3) declaring the lis pendens void was not error, and (4) awarding Wilson attorneys‘ fees was not 

error.

(1) Addressing the Breach-of-Settlement-Agreement Claims Separately from the Underlying 

Claims Was Within the Trial Court’s Discretion

In multifarious sub-points all basically complaining of the perceived loss of his 

counterclaim, Berg alleges trial court error. At its core, Berg‘s complaint is that, because Berg 

claimed that Wilson repudiated or breached the settlement agreement, Berg was entitled to elect 

 

6Wilson did not request damages, other than her attorneys‘ fees.

7

In addition, the judgment declared void the notice of lis pendens filed by Berg on or about June 27, 2008, in Hopkins 

County (eighty-seven-acre property titled in Wilson‘s name). 
7

his remedy—to either proceed on the underlying cause of action or claim damages for breach of 

the settlement agreement. Berg contends the partial summary judgment prevented him from 

presenting his counterclaims—those matters purportedly resolved by the settlement 

agreement—to the jury.8

Initially, Berg phrases the issue as an election of remedies, relying on well established 

Texas law that, when a claim is released for a promised consideration that is not given, the 

claimant may either pursue rights under the release, or treat the release as rescinded and recover on 

the underlying claim.9 Murray v. Crest Constr., 900 S.W.2d 342, 344 (Tex. 1995); see also

 

8Wilson‘s traditional motion for summary judgment alleges the existence of the Rule 11 agreement and recites that, 

subsequent to the execution of that agreement, Berg filed an amended counterclaim urging new causes of action 

against her and further asserting a breach of the agreement. Wilson claims the causes of action alleged by Berg 

(fraud, constructive trust, conversion, civil claim of theft) were released pursuant to the Rule 11 agreement. Wilson‘s 

motion interprets Berg‘s amended counterclaim as a withdrawal of consent to the Rule 11 agreement. Wilson moved 

the court to enforce the settlement agreement, because she alleged it met the requirements of Rule 11. See W. Beach 

Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 255 (Tex. App.—Austin 2002, no pet.). Wilson further moved the court to 

bar Berg‘s counterclaims based on her affirmative defenses of accord, satisfaction, release, and estoppel, and 

submitted affidavits to show her alleged compliance with the terms of the agreement. Wilson prayed that Berg take 

nothing on his counterclaims because her summary judgment evidence established accord, satisfaction, and release. 

In his response, Berg defensively asserted the existence of fact issues regarding Wilson‘s alleged repudiation of the 

agreement, and submitted affidavits in support of this allegation. The partial summary judgment entered by the trial

court found the existence of fact issues with respect to breach of the Rule 11 agreement by ―the parties.‖

9Berg further complains that the trial court erred in granting the partial summary judgment, because that judgment 

foreclosed his counterclaims. The court granted a partial summary judgment finding only that the parties had entered 

into a valid, legal, and binding agreement. The agreement was reduced to writing and was dictated into the court‘s 

record by the respective attorneys for each party. Both parties approved the settlement agreement as dictated into the 

record. An agreement to settle a case is enforceable by the trial court if it complies with Rule 11 of the Texas Rules of 

Civil Procedure. See Padilla v. La France, 907 S.W.2d 454, 460 (Tex. 1995). To comply with Rule 11, the 

agreement must be either (1) in writing, signed, and filed with the papers as part of the record, or (2) made in open 

court and entered of record. TEX. R. CIV. P. 11; Padilla, 907 S.W.2d at 459. Thus, a settlement agreement between 

the parties is a valid and enforceable agreement, even though it is not in writing, where the agreement is made in open 

court and agreed to by the parties. E. Tex. Salt Water Disposal Co. v. Hughes, No. 12-04-00333-CV, 2006 WL 

300410 (Tex. App.—Tyler Feb. 8, 2006, pet. denied) (mem. op.). Moreover, settlement agreements are governed by 

contract law. Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 819 (Tex. App.—Fort Worth 2001, no pet.). As such, a 
8

Hernandez v. LaBella, No. 14-08-00327-CV, 2010 WL 431253 (Tex. App.—Houston [14th Dist.] 

Feb. 9, 2010, no pet.) (mem. op.) (repudiation or anticipatory breach of settlement agreement 

permits nonbreaching party to elect not to proceed with settlement agreement); BACM 2001-1 San 

Felipe Rd. Ltd. P’ship v. Traflagar Holdings I, Ltd., 218 S.W.3d 137, 146 (Tex. App.—Houston 

[14th Dist.] 2007, pet. denied) (on failure of debtor to perform under executory accord, creditor 

may treat accord as repudiated and may choose to claim rights under the original cause of action or 

the accord); Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 247 (Tex. App.—Amarillo 1994, no pet.) (if 

settlement agreement breached, nonbreaching party may treat agreement as repudiated and claim 

rights either under the agreement or the underlying cause of action).

The hurdle Berg attempts to bypass is an actual finding of breach by Wilson. Here, both 

Berg and Wilson alleged the other breached the settlement agreement. Berg contends he should 

nevertheless have been permitted, on the mere allegation of breach, to try to the jury the 

underlying claims ostensibly resolved by the settlement agreement. Berg relies on the 

aforementioned cases in support of his contention that he was entitled to proceed to trial on the 

 

settlement agreement must define its essential terms with sufficient detail to allow a court to determine the obligations 

of the parties. Sadeghi v. Gang, 270 S.W.3d 773, 776 (Tex. App.—Dallas 2008, no pet.).

Here, the parties‘ actions of dictating their agreement into the record in open court complied with the 

procedural format of Rule 11 of the Texas Rules of Civil Procedure. Neither party contends the essential terms of the 

Rule 11 agreement are not sufficiently definite. Thus, the trial court‘s finding that the Rule 11 agreement was valid 

(as preceded by its findings that the parties entered into the agreement, which disposed of all claims and disputes 

between them, that the agreement was dictated into the record, and that the agreement was approved by the court) 

appears only to mean that the agreement indeed complied with Rule 11. The agreement was binding because its 

terms were sufficiently definite to permit enforcement. Wilson, therefore, contends that the trial court‘s finding that 

the agreement was ―valid, legal and binding‖ means nothing more than it complied with the terms of Rule 11 and was 

sufficiently definite to enforce. We agree. The partial summary judgment did not resolve or attempt to ―rule‖ on 

Berg‘s counterclaims.
9

underlying claims, without a judicial determination of whether Wilson breached the settlement 

agreement.10

In Murray, the primary case on which Berg relies, Murray and Crest settled a job dispute 

by Murray executing a waiver of lien in exchange for a promissory note from Crest. Murray, 900 

S.W.2d at 344. Subsequently, Crest informed Murray that it would not pay the full amount of the 

promissory note when it came due, claiming it was entitled to offset certain completion costs 

against the note. After receiving the claim for offset, Murray filed a lien against property in 

which Crest had an interest. Crest sued Murray, alleging tortious interference with Crest‘s 

contract with its general contractor. Murray counterclaimed for breach of contract. In affirming 

the trial court‘s judgment in Murray‘s favor, the high court determined that, once Crest repudiated 

the settlement agreement, Murray was under no obligation to honor the waiver of lien. Id. 

Crest‘s breach gave Murray an election to pursue a claim on the promissory note or to reassert its 

original claim on the construction job. Id.

While Murray is instructive on the issue of repudiation, it does not prescribe a procedure to 

determine the issue of breach in a circumstance where, as here, repudiation is not the issue.11 

 

10None of these cases adopt a procedure which would omit a judicial determination of a contested claim of material 

breach of a settlement agreement in favor of proceeding directly to trial on the settled claim(s). 

11To constitute repudiation, a party to a contract must absolutely and unconditionally refuse to perform the contract 

without just excuse. Bans Props., L.L.C. v. Housing Auth. of Odessa, 327 S.W.3d 310, 315 (Tex. App.—Eastland 

2010, no pet.). A party claiming anticipatory breach of a contract must establish the following three elements: (1) a 

party to a contract has absolutely repudiated the obligation; (2) without just excuse; and (3) the other party is damaged 

as a result. Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex. Comm‘n App. 1931, holding approved); Hauglum v. Durst, 
10

Here, the primary issue was whether one or both parties breached the Rule 11 settlement 

agreement. The decision on whether Berg would be entitled to try his counterclaims could not be 

made until such time as the issue of breach of the settlement agreement was resolved. This was 

acknowledged in the trial court.12

Whether a party has breached a contract is a question of fact to be determined by the trier of 

fact. Allied Capital Partners, L.P. v. PTRI, 313 S.W.3d 460 (Tex. App.—Dallas 2010, no pet.). 

Here, the jury determined that Berg, not Wilson, breached the agreement. This determination 

foreclosed Berg‘s option to try his counterclaims. Berg maintains, however, that, even if it was 

 

769 S.W.2d 646, 651 (Tex. App.—Corpus Christi 1989, no writ). The record here does not indicate repudiation of 

the settlement agreement by either party. 

12In context, this is the acknowledgment:

Mr. Buchanan [attorney for Berg]: We did not comply with the Rule 11 Agreement in a sense that 

once she tendered the money to us, then we didn‘t accept it, and we didn‘t tender ours. So, what - -

I have an affirmative defense plead which is offset in rescission - - 

essentially rescission. 

THE COURT: Let‘s say you get that issue, let‘s say it‘s found to be true, where does that leave 

you?

Mr. Buchanan: Election of remedies. I think the way the charge gets set up, it‘s an election of 

remedies. I get to ask the jury a question as to was there a material breach. Both parties ask that 

question. I get to ask the question as to whether or not I am excused . . . from performance. Then

we‘re both going to ask questions about what our damages are. 

Mr. Rogers: There it is.

Mr. Buchanan: We‘re both - - the reason why we‘re asking those is because if I win the 

rescission issue then I get - - I‘m the winner. I get to elect which way we‘re going. Either I can 

collect my money damages with the offset from them for whatever money damages they have, or I 

can elect rescission, and we go back to square one. 
11

appropriate to try the settlement agreement issues, his counterclaims should have been tried in the 

same trial.

Wilson contends the trial court was within its discretion to initially try the contract claims, 

in reliance on the reasoning employed in Zars v. Esquivel, No. 04-04-00892-CV, 2005 WL 

3115763 (Tex. App.—San Antonio Nov. 23, 2005, no pet.) (mem. op.). In that case, the parties 

entered into a settlement agreement, which was allegedly breached. The trial court granted 

summary judgment on the breach of contract claim and thereafter severed the original, underlying 

action. On appeal, Zars claimed the trial court erred in severing the underlying claims. In 

finding no error, the court recognized that the claimed breach of contract was a separate cause of 

action from the underlying claims intended to be resolved by the settlement agreement. The 

contract action involved different issues and facts than the underlying claims. Because the 

breach-of-contract claim was one that would be the proper subject of a lawsuit if independently 

asserted, the trial court did not abuse its discretion in granting the severance. Id. at *2.

Here, even though the contract claims were not formally severed, those claims—which 

involved different issues and were based on different facts than the underlying claims—were tried 

separately. 13 This was effectively a separate trial on the breach-of-settlement-agreement 

 

13The underlying claims asserted by Berg as counterclaims included fraud, breach of fiduciary duty, conversion, civil 

theft, and constructive trust. 
12

claims,14 which eliminated the need to introduce evidence on the underlying claims that would 

have been very time consuming and may have been prejudicial to one or both parties. This 

reasoning is likened to that employed in insurance matters where bad faith claims are typically 

severed from contract claims. See U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673 (Tex. 

App.—Houston [1st Dist.] 1993, writ denied). In that case, the court explained that bad faith, 

Insurance Code, and Deceptive Trade Practices Act (DTPA) claims are dependent on the outcome 

of the contractual cause of action:

This result obtains because the extra-contractual claims are based on allegations of 

bad faith on the part of defendant in its investigation of the plaintiffs‘ claims and 

inadequacy of its settlement offers. If, in the underlying case, the defendant 

prevails on liability, or if the finder of fact concludes that the plaintiffs‘ damages do 

not exceed the defendant‘s settlement offer, then defendant‘s conduct necessarily 

cannot have been in bad faith. It would be a waste of the court‘s, the jury‘s, the 

parties‘, and the attorneys‘ time to hear evidence on the bad faith claims when a 

finding in the contract lawsuit could be peremptorily dispositive.

This reasoning applies here as well. While a balance must be struck between the ability to 

shorten the process and the need to avoid piecemeal trials, the trial court‘s action in first trying the 

contract claims was reasonable and fit well with the logical structure of this case. The resolution 

of whether one or both parties breached the agreement would determine whether Berg was entitled 

to try his underlying counterclaims. Proceeding in this fashion allowed the trial court to 

 

14Rule 174(b) of the Texas Rules of Civil Procedure authorizes bifurcated trials. ―The court in furtherance of 

convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, or of any number of claims, 

counterclaims, third-party claims, or issues.‖ TEX. R. CIV. P. 174(b). We do not know, from this record, what the 

trial court would have done if the jury had come back with a verdict favoring Berg, for example, whether it might have 

continued into a second part of trial on the underlying issues. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 

1994).
13

defer—and thus avoid—a full-blown trial on the issues of fraud, breach of fiduciary duty, 

conversion, civil theft, and constructive trust. Had the jury returned the opposite verdict, Berg 

would have then been permitted to try his counterclaims, if he elected to do so. The trial court did 

not abuse its discretion in choosing to initially try the claims that the settlement agreement had 

been breached.15

(2) Berg’s Affirmative Defenses Were Fairly Covered by the Jury Issues Submitted

Berg submitted the following proposed jury question, which the trial court refused:

Was Bob Berg‘s failure to comply excused?

1. Failure to comply by Bob Berg is excused by Kristi Wilson‘s previous 

failure to comply with a material obligation of the same agreement.

2. Failure to comply by Bob Berg is excused by Kristi Wilson‘s prior 

repudiation of the same agreement.

 

15Berg also claims the trial court erred in summarily finding the Rule 11 agreement was ―valid, legal and binding‖ 

because such relief was neither prayed for nor sought in Wilson‘s motion for summary judgment. Wilson‘s summary 

judgment motion asked the court to bar Berg‘s counterclaims based on her affirmative defenses of accord and

satisfaction, release, and estoppel. The prayer asks that the court render judgment (1) that defendants take nothing on 

the claims asserted on defendant‘s first amended counterclaim and (2) that Wilson recover costs from defendants, 

attorneys‘ fees, together with such other and further relief to which defendants may be entitled. Wilson did not 

specifically ask the trial court to find the agreement to be ―valid, legal and binding.‖ Under Rule 166a(c), Texas 

Rules of Civil Procedure, a motion for summary judgment must ―state the specific grounds therefor,‖ and the trial 

court is to render judgment if ―the moving party is entitled to judgment as a matter of law on the issues expressly set 

out in the motion or in an answer or any other response.‖ TEX. R. CIV. P. 166a(c). Here, Wilson‘s summary 

judgment asserted that a Rule 11 agreement existed between the parties settling all matters. In addition, Wilson 

alleged, in great detail, her compliance with that agreement. Wilson‘s request that the trial court determine the 

affirmative defenses of accord and satisfaction, release, and estoppel were predicated on her compliance with the Rule 

11 agreement. The finding of a valid Rule 11 agreement is implicit in Wilson‘s request that the trial court bar Berg‘s 

counterclaims based on her compliance with the terms of that agreement. The issue of the validity of the Rule 11 

agreement was the predicate on which the requested relief was based. By definition, the motion included a request 

for such relief. This appears to be a case where the trial court did not grant more relief than requested. Rather, in 

only finding the Rule 11 agreement valid, legal, and binding, the trial court granted less relief than requested.
14

3. A party repudiates an agreement when she indicates by her words or 

actions that she is not going to perform her obligations under the agreement in the 

future, showing a fixed intention to abandon, renounce, and refuse to perform the 

agreement.

Berg claims this refusal constituted reversible error. We disagree.

The standard of review for alleged error in the jury charge is abuse of discretion. Lake 

Conroe Med. Ctr., Ltd. v. KMT Bldg. Co., 290 S.W.3d 541 (Tex. App.—Beaumont 2009, no pet.). 

A trial court‘s refusal to submit a properly requested question or instruction constitutes an abuse of 

discretion only if it acts without guiding rules or principles. Tex. Dep’t of Human Servs. v. E.B., 

802 S.W.2d 647 (Tex. 1990). ―The goal of the charge is to submit to the jury the issues for 

decision logically, simply, clearly, fairly, correctly and completely.‖ Hyundai Motor Co. v. 

Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). Accordingly, the trial court is accorded broad 

discretion so long as the jury charge is legally correct. Id.

Berg claims that, because there was more than a scintilla of evidence in the record of 

excuse and anticipatory repudiation, the trial court was required to submit the foregoing question 

and instructions. See id. (trial court must submit all questions, instructions, and definitions raised 

by evidence); Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992) (same); see also TEX. R. CIV. P.

278 (trial court shall submit questions, instructions, and definitions in form provided by Rule 277 

which are raised by pleadings and evidence). Berg outlines in his brief the evidence at trial he 

claims supported a submission of a jury question and instruction on these affirmative issues.

Wilson does not contend the evidence was insufficient to submit a question on excuse 
15

based on repudiation or failure to comply with a material obligation of the agreement. Rather, 

Wilson contends the issue of excuse (based on repudiation and/or failure to comply) was 

subsumed under the issues submitted. As previously discussed, the court submitted breach of 

contract questions disjunctively, together with an instruction directing the jury to decide who 

committed the first material breach. The commentary to PJC 101.2 (basic question on 

compliance) recognizes this method of submission.

Disjunctive question for competing claims of material breach. If both parties 

allege a breach of contract against one another, the court can ask the 

breach-of-contract question disjunctively, together with appropriate instruction 

directing the jury to decide who committed the first material breach. Mustang 

Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 200 (Tex. 2004). An 

alternative way to submit competing claims of breach of an agreement is set forth 

below.16

 

16The questions submitted here were submitted in the precise manner competing claims for breach are to be submitted 

under the PJC. Questions 1 and 2 read as follows:

Did Bob Berg fail to comply with the Rule 11 Settlement Agreement? (Question number 2 is the 

same, but asks if Kristi Wilson failed to comply with the Rule 11 Settlement Agreement). Both 

questions were accompanied by the following instructions:

1. A failure to comply with an agreement must be material. The circumstances to consider in 

determining whether a failure to comply is material include:

(a) the extent to which the injured party will be deprived of the benefit which he 

reasonably expected;

(b) the extent to which the injured party can be adequately compensated for the part of 

that benefit of which he will be deprived;

(c) the extent to which the party failing to perform or to offer to perform will suffer 

forfeiture;

(d) the likelihood that the party failing to perform or to offer to perform will cure his 

failure, taking into account the circumstances including any reasonable assurances;
16

The trial court then submitted a conditional instruction to determine who breached first (assuming 

both breached). The PJC commentary states:

The Committee believes that this conditional submission satisfies the supreme 

court‘s instruction in Mustang Pipeline Co., 134 S.W.3d at 200, to have the jury 

determine which party breached first and thereby excused performance by the other 

party. See Mustang Pipeline Co., 134 S.W.3d at 200. 

Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business,

Consumer, Insurance & Employment PJC 101.2 (2010). The jury found that Berg breached the 

agreement and that Wilson did not.

In Mustang, both parties raised the other‘s material breach as an affirmative defense. 

Here, Wilson alleged Berg‘s breach and Berg asserted the affirmative defense of excuse based on 

Wilson‘s material breach:17 ―Defendants also pled, as an affirmative defense to any claims 

brought by Plaintiff under any purported Rule 11 Settlement Agreement, that they are excused 

 

(e) the extent to which the behavior of the party failing to perform or to offer to perform 

comports with standards of good faith and fair dealing;

(f) the extent to which it reasonably appears to the injured party that the delay may 

prevent or hinder the injured party in making reasonable substitute arrangements;

2. Compliance with an agreement must occur within a reasonable time under the circumstances, 

unless the parties agreed that the compliance must occur within a specified time and the parties 

intended compliance within such time to be an essential part of the agreement.

3. In determining whether the parties intended time of compliance to be an essential part of the 

agreement, you may consider the nature and purpose of the agreement and the facts and 

circumstances surrounding its making.

17Berg further alleged Wilson‘s claim was barred by the affirmative defenses of waiver, justification, modification, 

offset, ratification, estoppel, fraud, and unclean hands. 
17

from performing under any such Rule 11 Settlement Agreement because Plaintiff materially 

breached any such Rule 11 Settlement Agreement.‖18

After discussing the issue of whether a material breach ensued, the high court noted that 

―these problems could have been avoided had the trial court submitted the breach of contract 

question disjunctively.‖ Mustang Pipeline Co., 134 S.W.3d at 200. In the standard contract 

dispute, one party refuses to perform due to the alleged breaches by the other—just as in this case. 

When that happens, ―jurors will often find both parties failed to comply with the contract (as they 

did here) unless instructed that they must decide who committed the first material breach.‖ Id. 

(citing Mead v. Johnson Group, Inc., 615 S.W.2d 685, 689 (Tex. 1981)) (default by one 

contracting party excuses performance by the other).

Because both parties claimed breach—Wilson in her case-in-chief and Berg as an 

affirmative defense—the trial court followed the directive of the Texas Supreme Court in 

submitting the breach of contract question disjunctively, accompanied by an appropriate 

instruction directing the jury to decide who committed the first material breach. As the matter 

was submitted, Berg would have been excused from performance under the settlement agreement 

if the jury would have found Wilson committed the first material breach of that agreement.

VingCard A.S. v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847 (Tex. App.—Fort 

Worth 2001, pet. denied), presents a similar situation. In that case, Merrimac sued VingCard for 

 

18Berg‘s third amended answer does not separately assert the affirmative defense of excuse based on repudiation. 

Berg‘s counterclaim alleges a separate breach of contract claim, together with an alternative claim of repudiation. 
18

breach of contract. VingCard asserted Merrimac‘s ―prior material breach‖ as both an affirmative 

defense and a counterclaim. VingCard requested the following question and instruction on its 

excuse defense:

Was VingCard A.S.‘s violation excused?

A party‘s violation of a contract is excused by the other party‘s prior unexcused 

violation of a material obligation of the contract.

Id. at 865. The Fort Worth court found the trial court submitted VingCard‘s counterclaim issue 

by asking whether Merrimac ―fail[ed] to fulfill‖ the agreement and ―fail[ed] to cure the 

non-fulfilling element(s), if any, within a reasonable time.‖ Id. Citing Hyundai Motor Co., 995 

S.W.2d at 664, the court recognized that ―a single, broad form question may relate to multiple legal 

theories to avoid the risk that the jury will become confused and answer questions incorrectly.‖ 

VingCard, 59 S.W.3d at 865. Moreover, 

While the trial court‘s questions should obtain fact-findings on all theories pleaded 

and supported by evidence, a trial court is not required to, and should not, confuse 

the jury by submitting differently worded questions that call for the same factual 

finding.

Id. at 865–66 (citing Hyundai Motor Co., 995 S.W.2d at 665–66). The court concluded:

Here, the trial court‘s decision to submit a broad form issue regarding Merrimac‘s 

breach of the agreement subsumed both VingCard‘s affirmative defense of excuse 

and its counterclaim for breach of contract. By finding Merrimac had not violated 

any material obligation of the VingCard contract, the jury necessarily found that 

VingCard‘s termination of the agreement was not excused. Because the submitted 

charge allowed consideration of VingCard‘s affirmative defense of excuse, we 

conclude the trial court did not abuse its discretion in refusing VingCard‘s 

requested issue on excuse. 
19

Id. at 866.

Berg attempts to distinguish VingCard on the basis that here, the separate claims of 

material breach and repudiation each have distinct elements. This is an accurate 

statement—Berg‘s defense of excuse was based on either material breach or repudiation. 

Material breach is defined as the ―previous failure to comply with a material obligation of the same 

agreement.‖ Texas Pattern Jury Charges: Business, Consumer, Insurance & Employment PJC 

101.2. The Pattern Jury Charges set out a separate instruction on anticipatory repudiation:

A party repudiates an agreement when he indicates, by his words or actions, that he 

is not going to perform his obligations under the agreement in the future, showing a 

fixed intention to abandon, renounce, and refuse to perform the agreement.

Texas Pattern Jury Charges: Business, Consumer, Insurance & Employment PJC 101.2. 

Because the jury found that Wilson was not in material breach of the agreement, it could 

not have logically found repudiation. This is especially true in light of the fact that the alleged 

repudiation (asserted only in Berg‘s counterclaim for breach of contract) was supported by the 

same facts alleged to have caused the breach.19 

 

19Berg‘s counterclaim for breach of contract states that Wilson materially breached the settlement agreement by:

(1) failing to timely tender the $25,000.00 payment required by the Settlement Agreement, 

(2) failing to turn over all inventory to BOB BERG, (3) failing to deliver inventory conveyed to 

BOB BERG under the terms of the Settlement Agreement, (4) failing to deliver personal items 

conveyed to BOB BERG under the terms of the Settlement Agreement, (5) converting to her own 

use inventory conveyed to BOB BERG under the terms of the Settlement Agreement and/or 

(6) using copyrights and intellectual property belonging to Bob Berg Designs conveyed to BOB 

BERG under the terms of the Settlement Agreement.
20

The issues of excuse and/or repudiation were subsumed by the trial court‘s submission of 

disjunctive questions for competing claims of material breach, together with an instruction 

directing the jury to determine who committed the first material breach. The trial court therefore 

did not abuse its discretion in failing to submit separate issues on these affirmative defenses.

(3) Declaring the Lis Pendens Void Was Not Error

Before the settlement agreement was made, Berg asserted an ownership interest in the real 

property (eighty-seven acres and house) titled in Wilson‘s name. This alleged ownership interest 

stems from a $100,000.00 cash down payment on the property made from the proceeds of Berg‘s 

business. With respect to the real property, the settlement agreement provided:

At the same time as the closing, [of the loan to obtain funds to pay Berg under the 

agreement] or if it is not necessary for Wilson to get a loan, Berg will execute a 

special warranty deed to waive any and all interest he has in the 89 acres that was 

described on Plaintiff‘s Exhibit 6 earlier today to Ms. Wilson, and he will cause the 

lis pendens notice that‘s been issued in this case to be removed. 

The final judgment stated that ―IT IS FURTHER ORDERED that the Notice of Lis Pendens filed 

by Defendant, Robert P. Berg on or about June 27, 2008 in Hopkins County is void.‖

 

Berg‘s claim of anticipatory repudiation indicates:

In addition and/or in the alternative, WILSON‘S actions, as described above, [actions purporting to 

show a breach of contract] including, but not limited to, her failure to tender payment of the 

$25,000.00 in a timely manner despite repeated requests, her refusal to deliver inventory of Bob 

Berg Designs, and her use of copyrighted intellectual property belonging to BOB BERG and Bob 

Berg Designs, constituted a refusal or inability to comply with the Rule 11 Settlement Agreement. 

The acts or omissions of WILSON constituted an unequivocal expression of her inability or refusal 

to comply with the Rule 11 Settlement Agreement such that BOB BERG is justified in accepting 

this expression as a final anticipatory breach or repudiation of the Rule 11 Settlement Agreement 

and he is relieved of any further obligations under the Rule 11 Settlement Agreement. BOB BERG 

seeks rescission of the Rule 11 Settlement Agreement. 
21

Berg claims the trial court erred in voiding the lis pendens, ―because there were genuine 

issues of material fact as to whether Wilson substantially complied and Berg had the right to elect 

to pursue his underlying claims to the real property.‖ 

The purpose of filing a lis pendens is twofold—to protect the rights the filing party claims 

in the property disputed in the lawsuit and to put those interested in the property on notice of the 

lawsuit. Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418 (Tex. App.—Fort Worth 2009, no pet.). 

A lis pendens notice, however, operates only during the pendency of the lawsuit and terminates 

with the judgment, in the absence of appeal. Hartel v. Dishman, 145 S.W.2d 865, 869 (Tex. 

1940); Collins, 297 S.W.2d at 418. Because the lis pendens terminates with the judgment, it was 

not necessary for the trial court to declare the lis pendens void. It was not, however, error to do 

that which was unnecessary, but was the result of the judgment. Berg fails to explain why the 

normal rules of lis pendens application should not apply here. We overrule this point of error.20

(4) Awarding Wilson Attorneys’ Fees Was Not Error

Berg also contends the trial court erred in awarding Wilson attorneys‘ fees under the 

Uniform Declaratory Judgments Act (UDJA) because hers was a suit to try title. Berg bases this 

contention on language in Wilson‘s second amended original petition alleging that, as part of her 

breach of contract claim, Berg ―released, transferred, and/or conveyed any interest which he had in 

 

20The lis pendens at issue was filed in the district clerk‘s office of Hopkins County, Texas. Section 12.007 of the 

Texas Property Code provides that a notice of lis pendens is to be filed with the county clerk of each county where a 

part of the property is located. TEX. PROP. CODE ANN. § 12.007(a) (West Supp. 2010). Wilson thus contends the 

lis pendens is void in any event. See Khraish v. Hamel, 762 S.W.2d 906 (Tex. App.—Dallas 1988, writ denied) 

(lis pendens filed in wrong county was void for failure to comply with statute).
22

the tract of land‖ in accordance with the terms of the agreement. Berg contends that because 

Wilson‘s claim for declaratory relief was merely incidental to title issues, the UDJA does not 

authorize an award of attorneys‘ fees. See Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 

289 (Tex. 2002). Section 22.001 of the Texas Property Code provides that a ―trespass to try title 

action is the method of determining title to lands, tenements, or other real property.‖ TEX. PROP.

CODE ANN. § 22.001 (West 2000). It is the exclusive remedy by which to resolve competing 

claims to property. Ely v. Briley, 959 S.W.2d 723, 727 (Tex. App.—Austin 1988, no pet.).

In her second amended original petition, Wilson asked the trial court to declare that the real 

property is her sole and separate property, pursuant to the UDJA. See TEX. CIV. PRAC. & REM.

CODE ANN. § 37.002 (West 2008). Additionally, Wilson specifically requested attorneys‘ fees 

pursuant to Chapter 37.009 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC.

& REM. CODE ANN. § 37.009 (West 2008) (―In any proceeding under this chapter, the court may 

award costs and reasonable and necessary attorneys‘ fees as are equitable and just.‖).

A declaration under the UDJA is appropriate ―to settle and afford relief from uncertainty 

and insecurity with respect to rights, status, and other legal relations.‖21 TEX. CIV. PRAC. & REM.

 

21The scope of the UDJA includes, 

A person interested under a deed, will, written contract, or other writings constituting a contract or 

whose rights, status, or other legal relations are affected by a statute, municipal ordinance, 

contract, or franchise may have determined any question of construction or validity arising under 

the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, 

or other legal relations thereunder.

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2008).
23

CODE ANN. § 37.002(b). Under the UDJA, the court ―may award . . . reasonable and necessary 

attorneys‘ fees as are equitable and just.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 37.009.

Berg does not question the amount of the fees, but rather challenges Wilson‘s right to 

recover under the statute. The availability of attorneys‘ fees under a particular statute is a 

question of law for the court. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999); 

Bollner v. Plastics Solutions of Tex., Inc. 270 S.W.3d 157, 171 (Tex. App.—El Paso 2008, no pet.). 

To preserve an issue of law, the appellant must raise the issue through one of the following: (1) a 

motion for directed verdict, (2) a motion for judgment notwithstanding the verdict, (3) an objection 

to the submission of the question to the jury, (4) a motion to disregard the jury‘s answer to a vital 

fact question, or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 

1991); Martin v. Martin, 326 S.W.3d 741, 746–47 (Tex. App.—Texarkana 2010, pet. denied).

The issue of whether attorneys‘ fees are recoverable under the UDJA in this instance was 

not preserved by any of the foregoing methods. Although Berg filed a motion for new trial, the 

motion did not address the issue of whether attorneys‘ fees are recoverable under the UDJA in this 

case.

22

 Berg also filed objections to the plaintiff‘s proposed judgment, in which he complained of 

the award of attorneys‘ fees based on the breach of contract claim. No objection or complaint was 

made in the trial court regarding the propriety of the award of attorneys‘ fees under the UDJA. 

 

22The motion for new trial claimed a lack of evidence to support the jury‘s answers to the breach of contract issues and

further complained of the trial court‘s refusal to submit defendant‘s requested jury question on excuse based on breach 

and/or repudiation. 
24

Because Berg did not preserve error to appeal the issue of whether attorneys‘ fees were 

recoverable under the UDJA, this point of appeal is overruled.23

We agree with Berg‘s contention that, to the extent attorneys‘ fees were awarded on 

Wilson‘s breach of contract claim, such award was improper. We review the trial court‘s 

decision to award attorneys‘ fees de novo. G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 

S.W.3d 537 (Tex. App.—Dallas 2005, no pet.).

In her second amended original petition, Wilson prayed for the recovery of attorneys‘ fees 

―because this is a claim on an oral or written contract within the meaning of the Texas Civil 

Practices [sic] and Remedies Code. As a result of Berg‘s breach, Wilson has been required to 

retain the services of counsel to prosecute this action as well as for any appeal therefrom.‖ 

Wilson did not seek damages independent of attorneys‘ fees, and the jury assessed only attorneys‘ 

fees.

Chapter 38 of the Texas Civil Practice and Remedies Code allows recovery of attorneys‘ 

fees in breach of contract cases in addition to the amount of a valid claim. TEX. CIV. PRAC. &

REM. CODE ANN. § 38.001(8) (West 2008). In order to recover fees, a party must (1) prevail on the 

breach of contract claim, and (2) recover damages. MBM Fin. Corp. v. Woodlands Operating 

Co., 292 S.W.3d 660, 666 (Tex. 2009); Mustang Pipeline Co., 134 S.W.3d at 201; Green Int’l, Inc. 

v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). The requirement of damages is implied from the 

statute‘s language, ―in addition to the amount of a valid claim,‖ the claimant must recover some 

 

23At oral argument, counsel for Berg conceded that this is not a trespass to try title action.
25

amount on that claim. MBM Fin. Corp., 292 S.W.3d at 666.

Wilson acknowledges the common theme of this line of cases—a breach without harm or 

damage will not support attorneys‘ fees under Section 38.001, but claims this case can be 

distinguished because the actual damage was her attorneys‘ fees. In support of this proposition, 

Wilson argues that the damage resulting from the breach of contract is the continuation of the 

litigation and the resulting attorneys‘ fees she incurred. She claims that the loss resulting here 

mirrors the damage elements in contract settings. Here, Wilson claims that, because she was 

forced to continue the litigation with resulting, necessary expenses, those fees are an element of 

contractual damages, and are thus recoverable under Section 38.001. While this argument is 

creative and highly logical, it is not supported by Texas statutory or caselaw. Because Wilson did 

not recover actual damages, she was not entitled to recover attorneys‘ fees on her breach of 

contract claim.

Wilson‘s second amended original petition alleges entitlement to attorneys‘ fees under 

both the UDJA and Chapter 38 of the Texas Civil Practice and Remedies Code. Neither the jury 

verdict, nor the final judgment awarding attorneys‘ fees, segregates the fees to the various causes 

of action. Generally, a party seeking attorneys‘ fees must show that the fees were incurred on a 

claim that allows recovery of such fees and must segregate fees incurred among different claims or 

separate parties. See Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997); Stewart 

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991), modified on other grounds by Tony 
26

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006). When, however, the claims 

are ―dependent upon the same set of facts or circumstances and thus are  ̳intertwined to the point of 

being inseparable,‘ the party suing for attorneys‘ fees may recover the entire amount covering all 

claims.‖ Sterling, 822 S.W.2d at 11 (citing Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 

680 (Tex. App.—Houston [14th Dist.] 1989), aff’d in part & modified in part on other grounds, 

797 S.W.2d 31 (Tex. 1990)).

In this case, the fees were undoubtedly based on the same set of facts and are thus 

―intertwined to the point of being inseparable.‖ Plus, there was no effort to separate them.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 28, 2011

Date Decided: November 2, 2011