NUMBER 13-19-00620-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

HAP FAIRHART A/K/A HAP FARHART, Appellant,

v.

KAYLEE AYN TURNER, LISA AYN 

FARHART TURNER, AND WILLIAM 

TURNER, Appellees.

 

On appeal from the 197th District Court 

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Benavides

By two issues, appellant Hap Fairhart a/k/a Hap Farhart (Fairhart) challenges the 

trial court’s judgment enforcing a mediated settlement agreement (MSA) between Fairhart 

and the appellees Kaylee Ayn Turner, Lisa Ayn Farhart Turner, and William Turner 

(Turners). Fairhart argues the trial court erred when it (1) entered judgment solely based 
2

on the motion to enforce the MSA when no underlying breach of contract claim was raised 

in the petition and (2) granted final judgment on the terms of the MSA in light of evidence 

of Fairhart’s incapacity and contractual defenses. We affirm.

I. BACKGROUND

This case is a dispute between family members that arose out of a disagreement 

regarding the ownership of land and stock options surrounding the Longhorn Cattle 

Company restaurant (Longhorn) in San Benito, Texas. In 1976, Fairhart acquired the 5.49 

acres of land that Longhorn sits on. Lisa and William Turner are Fairhart’s daughter and 

son-in-law and began helping run Longhorn in the 1980’s; Kaylee is their daughter. 

In 1993, Fairhart executed a warranty deed transferring the land Longhorn sits on 

to Kaylee, with a life estate in the property to himself and Lisa. Fairhart alleged in his 

petition that he did not physically transfer the deed to Kaylee or Lisa, but somehow the 

Turners obtained the deed and filed it with the county clerk’s office. The Turners state 

that Fairhart gave the deed to Lisa and was aware of the filing near the time it occurred.

Twenty-two years later, in 2015, Fairhart filed suit requesting a declaration that the 

deed was invalid, and he asked the trial court to rescind the filing of the deed with the 

county clerk’s office, cancel the deed, and quiet title. Fairhart also alleged fraud and 

breach of fiduciary duty actions against the Turners.1In 2018, the trial court sent the case 

to mediation for a third time. 

1 Fairhart also raised claims regarding stock options held by Lisa and William that were dated in 

1987 and 1988 that were later included as terms of the MSA.

 
3

On April 30, 2018, the mediation was conducted and resulted in a handwritten 

MSA. The parties, minus Kaylee, signed that agreement. 2 However, the MSA was 

converted to a typed version, signed by all of the parties, and finalized on May 2, 2018. 

The mediator sent the trial court a report on May 2, 2018, in which he stated that he 

“mediated the case on April 30, 2018, and kept working with the [p]arties, and am happy 

to report to you that the case has been settled.” 

In September 2018, the Turners filed a motion to dismiss all claims with prejudice 

based on the MSA. On February 6, 2019, Fairhart filed a motion to set aside the MSA in 

which he said that due to his medical and physical condition, 3 he was unable to 

understand the terms of the proposed MSA and did not understand the nature and 

consequences of his action on April 30, 2018. 

The trial court held a hearing in which Fairhart testified. He stated he was at the 

mediation on April 30, 2018, from approximately 7:30 a.m. to 8:00 p.m. Fairhart told the 

trial court he did not want to go to mediation and was going to just “go through the motions” 

while he was there. At the end of the mediation, Fairhart stated he was in distress from 

his condition and he could not read the handwriting on the MSA, the MSA was never 

explained to him, he did not have the mental capacity to understand the MSA, and there 

was never a “meeting of the minds” in his opinion. Fairhart claimed he e-mailed his 

2 Kaylee resided in the Austin area during this lawsuit, and the MSA was discussed with her by her 

attorney before she signed the MSA in early May 2018. 

3 Fairhart suffered from polio, was wheelchair bound, and had to catheterize his bladder every six 

to seven hours. 
4

attorneys the following morning and told them there was no agreement because there 

was no “meeting of the minds,” but he also stated that he told the attorneys he was willing 

to negotiate an agreement. Fairhart did not believe that he “knowingly” signed the MSA 

with any intention that it was an agreement and he told his attorneys he “did not have the 

mental capacity to agree over and over.” He also stated that both times he signed the 

MSA (handwritten and typed versions), he signed it without knowing what it was. On 

cross-examination, Fairhart agreed he wrote an e-mail to the Turners on May 6, 2018, 

seven days after the mediation, that discussed recovering some of his private property 

from Longhorn and made references to the “agreement.” He also made it clear that 

although no one “forced” him to stay during the mediation, he “wants his day in court.”

Two witnesses also testified by deposition: Gilberto Hinojosa, one of Fairhart’s 

lawyers, and Reynaldo Garza Jr., the mediator. Hinojosa stated he had known Fairhart 

for a lengthy period of time, that Fairhart has polio, and he was aware of his medical

condition. In regards to signing the typed version of the MSA on May 2, 2018, Hinojosa 

said he would have never sent the document to be signed if he felt that Fairhart had not 

known or understood the consequences of signing it. Hinojosa also explained that if he 

had seen “something” on April 30 that caused him to feel that Fairhart was not mentally 

capable of making decisions regarding the mediation, he would have an “ethical 

obligation” to stop the mediation, but he did not see anything that caused him concern. 

Garza testified that Fairhart was not under “duress” during the mediation. He also 

stated that neither he nor the attorneys restrained or threatened Fairhart. Garza stated 
5

that if he had felt that Fairhart was impaired during the mediation, he would have spoken 

to the attorneys regarding it, but that conversation was not necessary.

On September 18, 2018, the Turners filed a response to a Rule 11 request from 

Fairhart regarding a previous hearing. In this response, they attached the MSA, the Rule 

11 agreement regarding the MSA, and a letter dated October 24, 2017 that also 

incorporated terms of the settlement. The Turners also filed a motion to dismiss all claims 

with prejudice. Fairhart filed his motion to set aside the MSA on February 6, 2019. The 

Turners then filed an “Objection and Response to [Fairhart’s] Motion to Set Aside the 

[MSA] and [Turner’s] Motion to Enforce [MSA] and Request for Sanctions” in May 2019. 

The trial court issued its final judgment enforcing the MSA on November 8, 2019. This 

appeal followed.

II. MEDIATED SETTLEMENT AGREEMENT

Fairhart alleges that the trial court (1) erred by entering its judgment based solely 

on the MSA when there was no underlying breach of contract claim that was raised in the 

petition, and (2) abused its discretion in granting the final judgment on the MSA due to 

evidence of Fairhart’s incapacity and contractual defenses.4

A. Standard of Review and Applicable Law

The trial court cannot render an agreed judgment after a party has withdrawn its 

consent to a settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454, 461–62 (Tex. 

1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983). “When a 

4 Although Fairhart references the handwritten MSA signed on April 30, 2018 in his brief, we refer 

to the typewritten MSA on May 2, 2018, filed with the trial court throughout this memorandum opinion. 
6

trial court has knowledge that one of the parties to the suit does not consent to a judgment, 

the trial court should refuse to sanction the agreement by making it the judgment of the 

court.” Quintero, 654 S.W.2d at 444; Burnaman v. Heaton, 240 S.W.2d 288, 291(1951); 

see Kanan v. Plantation Homeowner’s Ass’n Inc., 407 S.W.3d 320, 329 (Tex. App.—

Corpus Christi–Edinburg 2013, no pet.). 

Nevertheless, a written settlement agreement may be enforced as a contract even 

though one party withdraws consent before the judgment is rendered on the agreement. 

Mantas v. Fifth Ct. of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (per curiam); Padilla, 

907 S.W.2d at 462; Gamboa v. Gamboa, 383 S.W.3d 263, 269 (Tex. App.—San Antonio 

2012, no pet.); Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. App.—Dallas 2006, pet. 

denied). The trial court’s “decision whether a settlement agreement should be enforced 

as an agreed judgment or must be the subject of a contract action requiring additional 

pleadings and proof is subject to the abuse of discretion standard of review.” Baylor Coll. 

of Med. v. Camberg, 247 S.W.3d 342, 345–46 (Tex. App.—Houston [14th Dist.] 2008, no 

pet.); Kanan, 407 S.W.3d at 329; see Mantas, 925 S.W.2d at 659; Staley, 188 S.W.3d at 

336. 

Where consent to an agreement has been withdrawn, a court may enforce it 

through a separate breach of contract claim which is subject to the normal rules of 

pleading and proof. Kanan, 407 S.W.3d at 334; see Padilla, 907 S.W.2d at 462 (“An action 

to enforce a settlement agreement, where consent is withdrawn, must be based on proper 

pleading and proof.”); Mantas, 925 S.W.2d at 658. A claim to enforce a disputed 
7

settlement agreement should be raised through an amended pleading or counterclaim 

asserting breach of contract. Padilla, 907 S.W.2d at 462; Staley, 188 S.W.3d at 336. Such 

a pleading must contain a short statement of the cause of action sufficient to give fair 

notice of the claims involved, including an allegation of a contractual relationship between 

the parties and the substance of the contract which supports the pleader’s right to recover. 

Cadle Co. v. Castle, 913 S.W.2d 627, 630–31 (Tex. App.—Dallas 1996, writ denied). A 

motion to enforce can be considered a sufficient pleading to raise a breach of contract 

claim in a settlement agreement case. Kanan, 407 S.W.3d at 334; see Ford Motor Co. v. 

Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Twist v. McAllen Nat’l Bank, 248 S.W.3d 351, 

361 (Tex. App.—Corpus Christi–Edinburg 2007, orig. proceeding [mand. denied]); 

Bayway Servs., Inc. v. Ameri-Build Constr., L.C., 106 S.W.3d 156, 160 (Tex. App.—

Houston [1st Dist.] 2003, no pet.); see also Martinez v. Farmers Ins. Exch., No. 13-09-

00648-CV, 2011 WL 3241912, at *3 (Tex. App.—Corpus Christi–Edinburg July 28, 2011, 

no pet.) (mem. op.). If the motion satisfies the general purposes of pleadings, which is to 

give the other party fair notice of the claim and relief sought, it is sufficient to allow the 

trial court to render judgment enforcing the settlement. Kanan, 407 S.W.3d at 334; Twist, 

248 S.W.3d at 361; Bayway Servs. Inc., 106 S.W.3d at 160. 

B. Breach of Contract Claim

In his first issue, Fairhart argues that the trial court erred when it enforced the MSA 

when no breach of contract claim was raised in a petition or counterclaim. However, a 

motion to enforce can be sufficient to raise a breach of contract claim in a settlement 
8

proceeding. Kanan, 407 S.W.3d at 334. The motion to enforce the MSA the Turners filed 

in this case described in detail the history and timeline of the case, addressed Fairhart’s 

claims of incompetence due to medical issues, and requested that the trial court to 

enforce the MSA. As long as the motion to enforce gives the other party fair notice of the 

claim and relief sought, it is enough to allow the trial court to enforce the settlement 

agreement. See id.; Bayway Servs., Inc., 106 S.W.3d at 160. Here, based on the detail 

provided in the motion to enforce, there was sufficient support that Fairhart had notice of 

the claim and the relief being sought. See Kanan, 407 S.W.3d at 334. The trial court did 

not abuse its discretion by approving the MSA. See Camberg, 247 S.W.3d at 345–46; 

Kanan, 407 S.W.3d at 329; Mantas, 925 S.W.2d at 659; Staley, 188 S.W.3d at 336. We 

overrule Fairhart’s first issue. 

C. Incapacitation

In his second issue, Fairhart alleges the trial court abused its discretion when it 

granted enforcement of the MSA in light of evidence of his incapacity. However, within 

the argument section of his brief, Fairhart does not make any argument regarding this 

issue or cite to any authority regarding this issue. A brief “must contain a clear and concise 

argument for the contentions made, with appropriate citations to authorities and to the 

record.” TEX. R. APP. P. 38.1. Even though the courts are to interpret briefing requirements 

reasonably and liberally, parties asserting error on appeal still must put forth some 

specific argument and analysis citing the record and authorities in support of their 

argument. San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—
9

Houston [14th Dist.] 2005, no pet.). Because Fairhart made no argument other than 

raising it as an “issue,” we find his second issue has been waived.

III. CONCLUSION

We affirm the trial court’s judgment.5 

GINA M. BENAVIDES

Justice

Delivered and filed on the

27th day of May, 2021.

5 Pending before this Court are two motions filed by the Turners that we carried with the case: (1) 

a motion for damages and (2) a motion to dismiss a frivolous appeal. We now deny these two motions.