MEMORANDUM OPINION

No. 04-09-00060-CV

BION CONSTRUCTION, INC.,

Appellant

v.

GRANDE VALLEY HOMES, LLC,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2007-CI-06065

Honorable Martha Tanner, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Marialyn Barnard, Justice

Delivered and Filed: December 9, 2009

AFFIRMED 

Appellant Bion Construction, Inc. sued Appellee Grande Valley Homes, LLC for breach 

of contract as well as breach of an alleged mediated settlement agreement. This appeal arises 

from a final judgment wherein the trial court found no liability on behalf of Grande Valley and 

awarded Bion $100.00 in damages resulting from the failed real estate transaction. Because the 

evidence supports the trial court’s findings, we affirm the judgment of the trial court.
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BACKGROUND

In the “Purchase and Sale Agreement” (PSA) at issue, the seller, Bion, is a successor-ininterest land developer, and Grande Valley is the purchaser. Under the PSA, Bion was to 

develop approximately fifty-acres of unimproved real property into 245 residential lots to be sold 

to Grande Valley.1

The first closing took place on December 13, 2006. Thereafter the parties entered into 

another amendment to the PSA scheduling the second closing for no later than February 10, 

2007. The second closing is the transaction at issue in this suit. The parties ran into further 

problems arranging for the second closing. Bion sent Grande Valley a number of default notices 

that included rights to cure. Grande Valley tendered its purchase money on March 21, 2007 

claiming it was in accordance with Bion’s request. Bion claimed it had previously terminated 

the PSA prior to March 21. Bion filed suit, but before serving Grande Valley, the parties 

participated in a mediation. However, there is a dispute regarding whether a settlement

agreement was reached. After a bench trial, in its findings of fact and conclusions of law, the 

trial court found Grande Valley did not breach the agreement and timely asserted its right to 

cure. 

 Once Bion substantially completed the development, Bion would convey 

thirty lots every ninety-one days to the purchaser in official closings. Thus, after the first 

closing, the next closing would automatically be ninety-one days later. 

STANDARD OF REVIEW

In a bench trial, the trial court, as fact-finder, is the sole judge of the credibility of the 

witnesses. Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 

1992, writ denied). The trial court’s findings of fact have the same force and dignity as a jury’s 

 1 The contract was initially between Texas PMR, Inc. and Grande Valley Homes. Approximately six 

months after signing the agreement, PMR assigned the contract to Bion Construction.
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verdict upon jury questions. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). 

However, the findings of fact are not conclusive when a complete reporter’s record appears in 

the record. Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.—San Antonio 1995, writ 

denied). 

When the trial court’s findings involve questions of law and fact, the appellate court 

reviews them for an abuse of discretion. Pony Express Courier Corp. v. Morris, 921 S.W.2d 

817, 820 (Tex. App.—San Antonio 1996, no writ). In applying the standard, the reviewing court 

defers to the trial court’s factual determinations if they are supported by the evidence and 

reviews its legal determinations de novo. Id. Unless they are erroneous as a matter of law, 

conclusions of law will not be reversed, but rather, will be upheld on appeal if the judgment can 

be sustained on any legal theory supported by the evidence. Tex. Dep’t of Pub. Safety v. 

Stockton, 53 S.W.3d 421, 423 Tex. App.—San Antonio 2001, pet. denied). 

In analyzing a legal sufficiency challenge, an appellate court reviews the evidence in the 

light most favorable to the verdict in determining whether the evidence at trial would enable 

reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 

168 S.W.3d 802, 821-22, 827 (Tex. 2005). In evaluating a factual sufficiency challenge, we 

consider and weigh all of the evidence and determine whether the evidence in support of a 

finding is so weak as to be clearly wrong and unjust or whether the finding is so against the great 

weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dow 

Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Pool v. Ford Motor Co., 715 S.W.2d 

629 (Tex. 1986). 
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BREACH OF PURCHASE AND SALE AGREEMENT

Bion asserts the trial court erred in finding: (1) Grande Valley did not breach the PSA; (2) 

Grande Valley timely asserted its right to cure; and (3) Bion refused to follow through with the 

sale of the property. In construing a written contract, we ascertain and give effect to the parties’

intentions as expressed in the document. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 

310, 311-12 (Tex. 2005); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). 

We, therefore, look to the entire writing and attempt to harmonize and give effect to all the 

provisions of the contract by analyzing these provisions with reference to the whole agreement. 

J.M. Davidson, 128 S.W.3d at 229.

The evidence supports a number of amendments to the PSA extending the due diligence 

period delayed the second closing. Each one of the eight amendments to the PSA was due to 

Bion’s failure to complete the infrastructure of the property. Because of these problems, the 

evidence supports Bion’s extension of the February closing date. Mark Dizdar, President of 

Grande Valley, testified that Bion did not have the lots ready, and he knew of no scheduled 

closing in February. On February 28, 2007, Bion’s attorney sent a twenty-day right to cure letter 

to Grande Valley stating that Grande Valley “has 20 days from today’s date to cure the defaults.” 

The original PSA permits a cure period and provides that the day the notice is sent is not counted 

in the cure period. The evidence supports that Grande Valley provided the funds required to 

close to the title company and was ready to close on March 21, 2007. As such, Grande Valley 

was timely in its performance on March 21, 2007. 

Bion’s arguments regarding Grande Valley’s right to cure period expiring on “February 

10 vs. March 2”, as a matter of law, are without merit. Grande Valley received a twenty-day 

right to cure letter from Bion signed on February 28, 2007. Bion argues the same February 28, 
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2007 letter offering the right to cure effectively terminated the PSA. However, Grande Valley 

asserted defenses of estoppel and waiver before the trial court and the evidence in the record 

supports that Grande Valley was ready to close on March 21, 2007, and Bion refused to go 

through with the sale of the property. Accordingly, we defer to the trial court’s findings that 

Grande Valley did not breach the PSA, and that Bion refused to perform under the contract. See

Catalina, 881 S.W.2d at 297.

MEDIATED SETTLEMENT AGREEMENT

Bion asserts the evidence does not support the trial court’s finding that there is no 

mediated settlement agreement (MSA). Grande Valley argues there was never an intent to be 

bound by the negotiations and no mediated settlement agreement ensued. We agree. 

A. Intent to Be Bound

A mediated settlement agreement is enforceable in the same manner as any other 

contract. TEX. CIV. PRAC. & REM. CODE ANN. § 154.071 (a) (Vernon 2005). Its construction is 

governed by legal principles applicable to contracts generally. Donzis v. McLaughlin, 981 

S.W.2d 58, 61 (Tex. App.—San Antonio 1998, no pet.). The intent of the parties to be bound by 

a mediated settlement agreement is an essential element of an enforceable contract and is 

generally a question of fact; however, where that intent is clear and unambiguous on the face of 

the agreement, it may be determined as a matter of law. Anderton v. Schindler, 154 S.W.3d 928, 

932 (Tex. App.—Dallas 2005, no pet.); see also Foreca, S.A. v. GRD Dev. Co., Inc., 758 S.W.2d 

744, 746 (Tex. 1988) (“[I]ntention is usually an inference to be drawn by the fact finder.”).

The parties agreed to mediate on April 25, 2007. Present at the mediation were attorneys 

for each side, Howard Kahn and Jesse Murphy, as well as John Ripley, President of Bion, and 

Larry Contreras, Grande Valley San Antonio Division President. The parties negotiated the 
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MSA during the mediation. The initial pages of the MSA show disagreement as to the terms, 

and the final pages show a new hand written agreement with initials from the attorneys on each 

page. The final page of the MSA contains signatures from both attorneys under the heading 

“Approved as to Form.” Ripley also signed in the space for Bion; however, the space for Grande 

Valley is clearly blank. At trial, Murphy testified that Contreras did not have authority to bind 

the company at the mediation, but rather “Mr. Dizdar [as President of Grande Valley] needed to 

sign the agreement.” The evidence confirms that the attorneys and representatives left the 

meeting believing the parties had not reached an agreement. Based on our deference to the trial 

court’s findings of fact, we affirm the trial court’s determination that there was no mediated 

settlement agreement. See Foreca, 758 S.W.2d at 746. 

B. Apparent or Actual Authority

Bion also argues, that even if Grande Valley did not intend to be bound, that Grande 

Valley was bound under the theory of apparent or actual authority because its counsel signed the 

MSA. Grande Valley asserts that while a party may clothe his attorney with actual or apparent 

authority, this was a fact issue that the trial court determined in its favor.

Undoubtedly, a party may clothe his attorney with actual or apparent authority to reach 

and sign a settlement agreement that binds the client. See Williams v. Nolan, 58 Tex. 708, 713-

14 (1883); accord W. Beach Marine, Ltd. v. Erdeljac, 94 S.W.3d 248, 256 (Tex. App.—Austin 

2002, no pet.). The presumption of actual authority, however, may be rebutted by affirmative 

proof that the client did not authorize his attorney to enter into the settlement. Johnson v. 

Rancho Guadalupe, Inc., 789 S.W.2d 596, 598 (Tex. App.—Texarkana 1990, writ denied) (op. 

on reh’g) (noting that there is no implied authority for an attorney to release the very right or 

interest he is employed to protect); Fail v. Lee, 535 S.W.2d 203, 207-08 (Tex. Civ. App.—Fort
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Worth 1976, no writ) (affirming summary judgment enforcing settlement agreement absent proof 

that defendant did not authorize his attorney to settle). 

Additionally, to establish apparent authority, the principal must make some manifestation 

to a third party that it is conferring authority or, by its actions, shows such a lack of ordinary care 

as to clothe the agent with indicia of authority. NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 

952-53 (Tex. 1996); see also Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984). A fact 

issue may arise as to whether an attorney has authority to bind the client to a mediation 

agreement. See Martin v. Black, 909 S.W.2d 192, 195 (Tex. App.—Houston [14th Dist.] 1995, 

writ denied) (holding that fact disputes over existence of MSA should be settled by fact finder). 

Bion asserts that because Grande Valley previously allowed its attorneys to sign binding 

contracts, that Grande Valley created apparent authority in its counsel, Murphy. Bion suggests 

the signature of Grande Valley’s counsel, Murphy, under the heading “Approved as to Form” 

binds Grande Valley to the substance of the MSA. 

It is well settled that when the notation “Approved as to Form” appears with an attorney’s 

signature, it does not create the same consent to substance as the notation “Approved as to Form 

and Substance” or “Approved as to Content”.2

 2 See e.g., Hill v. Bellville Gen. Hosp., 735 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1987, no 

writ) (holding notation “Approved,” standing alone, insufficient to establish a consent judgment); Morse v. Delgado, 

975 S.W.2d 378, 381 (Tex. App.—Waco 1998, no pet.) (holding that counsel’s signature indicating that he did not 

oppose the form of the judgment did not make it an agreed judgment).

 In fact, this court previously held “when an 

attorney’s signature indicates ‘Approved’ he has simply approved the judgment as to form only, 

unless other language in the judgment indicates that the substance of the judgment was also 

agreed.” Bexar County Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. 

App.—San Antonio 1989, no writ). Even further, this court later held that “Approved and 

Agreed” standing alone does not establish a consent decree. Oryx Energy Co. v. Union Nat’l 
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Bank of Tex., 895 S.W.2d 409, 417 (Tex. App.—San Antonio 1995, writ denied). Bion 

presented no evidence at trial, and submits no authority on appeal, to suggest the attorneys meant 

anything more than the plain meaning of “Approved as to Form.” Accordingly, the trial court 

did not err in its determination that the parties did not enter into a binding MSA.3

DAMAGES

Finally, in its last two issues, Bion argues that it was entitled to substantial damages and 

attorneys’ fees. However, having determined there is sufficient evidence to support the trial 

court’s findings that Grande Valley did not breach the PSA or enter into the MSA, such 

arguments are without merit. 

CONCLUSION

Based on the record before us, the evidence supports the trial court’s findings that Grande 

Valley did not breach the contract and that no mediated settlement agreement existed between 

the parties. Accordingly, the judgment of the trial court is affirmed.

Rebecca Simmons, Justice

 3 On appeal, Bion argues that the MSA “is also a Rule 11 Agreement.” However, Bion did not refer to the 

MSA as a Rule 11 agreement in the pleadings, trial, or motion for new trial. Pursuant to Rule 33.1, Bion has waived 

this issue on appeal. TEX. R. APP. PROC. 33.1 (a prerequisite to presenting a complaint for appellate review is a 

record showing the complaint was made before the trial court and either a ruling or objection to a refusal to rule 

appears on the record).