BENNY M.B. DANESHJOU 

SALLY DANESHJOU 

DANESHJOU COMPANY, INC. 

APPELLANTS 

v. 

KASLING, HEMPHILL, DOLEZAL AND ATWELL, L.L.P. 

APPELLEE 

Appealed from the 53rd District Court of Travis County Texas 

Trial Court Cause No. D-1-GN-13-003405 

Honorable KARIN CRUMP Judge Presiding 

APPELLANTS' BRIEF 

Respectfully submitted, 

THE FERRARO LAW FIRM 

/s/ Peter E. Ferraro 

Peter E. Ferraro, Esq. 

1011 West 10th Street 

Austin, Texas 78703 

State Bar No. 06934600 

Tel: (512) 474-7742 

Fax: (512) 474-8106 

Email: ferrarolaw@mac.com 

ATTORNEY FOR APPELLANTS 

ORALARGUMENTRF.QUESTED 

1 
CAUSE NO. 03-16-00664-CV 

THE COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AUSTIN 

BENNY M.B. DANESHJOU 

SALLY DANESHJOU 

DANESHJOU COMPANY, INC. 

APPELLANTS 

V. 

KASLING, HEMPHILL, DOLEZAL AND ATWELL, L.L.P. 

APPELLEE 

Appealed from the 53rd District Court of Travis County Texas 

Trial Court Cause No. D-1-GN-13-003405 

Honorable KARIN CRUMP Judge Presiding 

APPELLANTS'BRIEF 

TO THE HONORABLE THIRD COURT OF APPEALS: 

Appellants, M.B. "Benny" Daneshjou, Sally Daneshjou and Daneshjou 

Company, Inc., submit this, their Brief on the merits. Throughout this Brief, the 

Clerk's Record shall be referred to as "C.R. [page#]." 

2 
IDENTITY OF PARTIES AND COUNSEL 

Peter E. Ferraro 

THE FERRARO AW FIRM 

1011 West 10th Street 

Austin, Texas 78703 

Tel: (512) 474-7742 

Fax: (512) 474-8106 

Email: ferrarolaw@mac.com 

ATTORNEY FOR APPELLANTS 

.BENNY MB DANESHJOU 

SALLY DANESHJOU 

DANESHJOU COMPANY, INC. 

Trey Dolezal 

KASLING, HEMPHILL, DOLEZAL and ATWELL, L.L.P. 

301 Congress Ave. Suite 300 

Austin, Texas 78701 

Tel: (512) 472-6800 

Fax: (512) 472-6823 

Email: dolezal@khdalaw.com 

ATTORNEY FOR APPELLEE 

KASLING, HEMPHILL, DOLEZAL and ATWELL, L.L.P. 

TRIAL COURT: 53rd Judicial District Court, 

Travis County Texas 

Honorable KARIN CRUMP, Judge Presiding 

3 
TABLE OF CONTENTS 

IND ENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

TABLE OF CONTENTS ... ......... . ... .. .. .............. ....... .... ..... .... . ...... 4 

INDEX OF AUTHORITIES ........... .. .... ... .. ......... ....... . .. . .... ... ....... .. 5 

STATEMENT OF CASE .................. . ... ... ........ .. .. .... ..... ... ...... . ..... 6 

a. Nature of case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

b. Trial Court ........... ...... .... ... .. . ........ .... ..... ............... . 7 

c. Trial Court Disposition .. ....... .. ................ ...... ... .......... 7 

ISSUE PRESENTED ............. ..... ......... ...... . ..... ... ......... ..... ....... ... . 7 

STATEMENT OF FACTS .. .... .... .. ... ... ..... . ..... .... .. . .. ............. . .. ..... . 7 

SUMMARY OF ARGUMENT .... .... .. .... ... .... ..... ........................ . ... . 8 

ARGUMENT AND AUTHORITIES ....... . .... ......... ......... .................. 8 

CONCLUSION AND PRAYER ... ................. ...... . ..... ...... .. .... .. ....... 11 

CERTIFICATE OF COMPLIANCE .. .. ....... .. ... ..... ...... .................. ... 12 

CERTIFICATE OF SERVICE ....... ... .... . .. . .. .. .. .. ....... ...... .. .... ..... ..... 12 

4 
INDEX OF AUTHORITIES 

CASES 

Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 844 

(Tex. App.-Austin 2003, no pet.) .. . .. .. .. . . . . .. . . . . . . . . . .. . .. .. . .. .. .. . . .. . . . .. . . . 9 

Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992) 

Citv of San Antonio v. Guido Bros. Construction Co., 460 S.W.2d 155, 163 

(Tex. Civ. App. 1970) 

Kinnison Bros. v. Steger, 11 S.W.2d 527, 529 (Tex.Civ.App. -Texarkana, 

1928, error dism.) ..... .... ............ .. ........... ...... ... .... ..... . .. ..... .... .. .. . 

9 

10 

10 

McDonald v. Grey, 29 Tex. 80, 82 (1867).. .. .. . . . . . . ... . . . . . . . . . . . . . . .. . . . . . . .. . . .. 11 

Mensa-Wilmont v. Smith Int'l, Inc., 312 S.W.3d 771, 781 (Tex. App.-Houston 

[ 1st Dist.] 2009, no pet.) . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . ... 9 

Smallwood v. Melton, 97 S.W.2d 781, 785 (Tex.Civ.App. Fort Worth, 1963, 

error dis1n.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 

York v. Hughes, 286 S.W. '165, 167 (Tex.Com.App., '1926) ...... .. .. ... .... ... .. 11 

s 
STATEMENT OF THE CASE 

Nature of the case: 

This case concerns the interpretation of a Mediated Settlement Agreement 

between the law firm Kasling, Hemphill, Dolezal and Atwell, L.L.P. ("Appellee") 

and their clients M.B. "Benny" Daneshjou, Sally Daneshjou and Daneshjou 

Company, Inc. ("Appellants"). A dispute arose over the fees to be paid to Appellee 

concerning prior legal representation and the Appellee filed suit to collect its legal 

fees. The parties then mediated the issue and reached a mediated settlement 

agreement on March 25, 2015 with a Record of Mediation Agreement signed by all 

parties on June 18, 2015 (C.R. 14-15). Under the signed agreement, the payment 

for the agreed legal fees was deferred until the following year to allow time for 

Appellants to raise the necessary funds for payment. As part of the Mediated 

Settlement Agreement, Appellee agreed to dismiss the pending lawsuit with the 

right to reinstitute it if Appellants failed to make all the payments under the 

Mediated Settlement Agreement. 

Appellee failed to dismiss the pending lawsuit and Appellants were unable 

to raise the necessary funds to make the deferred payments to Appellee. Appellee 

then filed a Motion to Enforce Mediated Settlement Agreement (C.R. 10-15). 

Appellants likewise filed a Motion to Enforce Mediated Settlement Agreement 

(C.R. 16-19), requesting that Appellee dismiss the pending lawsuit. 

6 
Trial Court: 

The Honorable Karin Crump of the 53rd District Court. 

Trial Court Disposition: 

The trial court signed a Final Judgment dated July 8, 2016 (C.R. 36-37) 

granting Appellee's Motion to Enforce Mediated Settlement Agreement and 

denying Appellant's Motion to Enforce Mediated Settlement Agreement. This 

judgment forms the basis of this appeal. 

ISSUE PRESENTED 

1. Did the trial court err in granting Appellee's Motion to Enforce Mediated 

Settlement Agreement where Appellee breached the agreement by failing to 

satisfy a condition precedent to dismiss the pending lawsuit? 

STATEMENT OF FACTS 

M.B. "Benny" Daneshjou, Sally Daneshjou and Daneshjou Company, Inc., 

Defendants in the trial court action and Appellants in this matter, were sued by 

Kasling, Hemphill, Dolezal and Atwell, L.L.P., Plaintiff in the trial court action 

and Appellee in this matter, concerning a fee agreement over prior legal 

representation. The parties then mediated the issue and reached a mediated 

settlement agreement on March 25, 2015 with a Record of Mediation Agreement 

7 
signed by all parties on June 18, 2015 (C.R. 14-15). Under the signed agreement, 

the payment for the agreed legal fees was deferred until the following year to allow 

time for Appellants to raise the necessary funds for payment. As part of the 

Mediated Settlement Agreement, Appellee agreed to dismiss the pending lawsuit 

with the right to refile a lawsuit if Appellants failed to make all the payments under 

the Mediated Settlement Agreement. Appellee failed to dismiss the pending 

lawsuit and Appellants were unable to raise the funds to make the necessary 

payments under the Mediated Settlement Agreement. 

SUMMARY OF ARGUMENT 

The trial court erred in granting Appellee's Motion to Enforce Mediated 

Settlement Agreement because Appellee breached the agreement by failing to 

satisfy a condition precedent to dismiss the pending lawsuit. The doctrine of 

"condition precedent" for breach of contract law prevents Appellee from enforcing 

the payment obligation against Appellants under the Mediated Settlement 

Agreement. 

ARGUMENT AND AUTHORITIES 

Appellants asse11 that the trial court erred in granting Appellee's Motion to 

Enforce Mediated Settlement Agreement because Appellee breached the agreement 

by failing to satisfy a condition precedent to dismiss the pending lawsuit. The 

8 
condition requiring that Appellee dismiss the pending lawsuit was a condition 

precedent under Texas law which prevented Appellee from enforcing the terms of 

the Mediated Settlement Agreement. 

A party seeking to enforce a contract bears the burden of proving that all 

conditions precedent have been satisfied. See Mensa-Wilmont v. Smith Int'l, Inc., 

312 S.W.3d 771, 781 (Tex. App.-Houston [1st Dist.] 2009, no pet.). When a 

party 's obligation under the contract is conditioned upon the happening of a future 

event, the condition must be performed or fulfilled exactly as set forth in the 

contract before the promise can be enforced. See Centex Corp. v. Dalton, 840 

S.W.2d 952,956 (Tex. 1992); Beard Family P'ship v. Commercial Indem. Ins. Co., 

116 S.W.3d 839, 844 (Tex. App.- Austin 2003, no pet.). 

A key element of the Mediated Settlement Agreement was that Appellee 

dismiss the pending lawsuit in order that Appellants would be in a much better 

position to obtain funding to make the necessary payments due to Appellee under 

the Mediated Settlement Agreement. The condition was material as it affected the 

ability of the Appellants to obtain credit which would have assisted Appellants in 

fulfilling their payment obligations under the Mediated Settlement Agreement. 

(This was not a covenant under the agreement, but a condition precedent to its 

enforcement.) As such, it was incumbent on Appellee to dismiss the pending 

9 
lawsuit (which Appellee never did). Section 1 under the Mediated Settlement 

Agreement reads as follows: 

1. Trey L. Dolezal and KHDA ("Plaintiffs") and DCI and Sally and 

Benny Daneshjou ("Defendants") agree to mutually release each 

other from any and all claims asserted or that could be asserted in 

the above captioned case and agree to dismiss the above captioned 

case with prejudice. 

By this language, the parties clearly contemplated that this very lawsuit 

would be dismissed with prejudice. However, if Appellants failed to make all the 

payments required under the Mediated Settlement Agreement, then Appellee 

would have the right to reinstitute a lawsuit against Appellants. Section 6 under the 

Mediated Settlement Agreement reads as follows: 

6. If Defendants fail to make the payments as set forth above on or 

before June 1, 2016, Defendants agree that Plaintiffs can refile 

their claims, notwithstanding the prior dismissal and the applicable 

statute of limitations, for all claims and/or counterclaims will be 

tolled by this agreement from the date of the original filing of the 

above captioned case to 60 days after such failure to pay under this 

agreement and collect reasonable attorney's fees and interest of 

10% from the date of the breach to the date of payment. 

If a contract contains a condition precedent, Texas law provides that the 

burden of proof is upon the party seeking to impose liability thereon to establish 

the happening of the events upon which the condition was based. See City of San 

Antonio 1•. Guido Bros. Construction Co., 460 S.W.2d 155, 163 (Tex. Civ. 

App. 1970), Kinnison Bros. v. Steger, 11 S.W.2d 527,529 (Tex.Civ.App. -

10 
Texarkana, 1928, error dism.). Indeed, it is said that when such condition precedent 

appears in a contract, the fulfillment of the named condition becomes a prerequisite 

to the debtor's promise. York v. Hughes, 286 S.W. 165, 167 (Tex.Com.App., 

1926); l\1cDonald v. Grey, 29 Tex. 80, 82 (1867); Smallwood v. Melton, 97 

S.W.2d 781 , 785 (Tex.Civ.App. Fort Worth, 1963, error dism.). In the case at 

hand, the condition precedent of the dismissal of the pending lawsuit was not 

accomplished by Appellee. Therefore, Appellee is prohibited from enforcing the 

Mediated Settlement Agreement and collecting the money from Appellants. 

CONCLUSION AND PRAYER 

Based upon the foregoing, the pleadings, summary judgment evidence, and 

the records on file, the trial court erred in granting Appellee's Motion to Enforce 

Mediated Settlement Agreement because Appellee breached the agreement by 

failing to satisfy a condition precedent to dismiss the pending lawsuit. Therefore, 

Appellants respectfully request that this Court reverse the decision of the trial 

court. 

11 
Respectfully submitted, 

Isl Peter E. Ferraro 

Peter E. Ferraro 

The Ferraro Law Firm 

SBN: 06934600 

1011 W. 10th St. 

Austin, Texas 78703 

Tel: (512) 474-7742 

Fax: (512) 474-8106 

E-mail: ferrarolaw@mac.com 

CERTIFICATE OF COMPLIANCE 

I certify that the Appellants' Brief contains 1,779 words. 

Isl Peter E. Ferraro 

Peter E. Ferraro 

CERTIFICATE OF SERVICE 

This is to certify that a true and correct copy of the above and foregoing has 

been forwarded to the following counsel of record in compliance with the Texas 

Rules of Civil Procedure on this 22nd day of November, 2016: Trey Dolezal, 

Kasling, Hemphill, Dolezal and Atwell, L.L.P., 301 Congress Avenue, Suite 300, 

Austin, Texas 78701 at 512-472-6823. 

Isl Peter E. Ferraro 

Peter E. Ferraro 

12 
Tab A 

Tab B 

INDEX TO APPENDIX 

Final Judgment (July 8, 2016) 

Mediated Settlement Agreement 
Tab A 
Filed in The District Court 

of Travis County, Texas 

Cause No. D-l-GN-13-003405 JUL O& 2016 - f\) I\)'\._ 

KASLING, HEMPHILL, DOLEZAL 

&ATWELL, LLP 

Plaintiff, 

V. 

M.B. "BENNY" DANESHJOU, SALLY 

DANESHJOU, AND DANESHJOU 

COMPANY, INC. 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

:FINAL JUDGMENT 

At_ ) I'· I "' C\. M, 

IN THE DIS~11'10Jmifrlct Cieri< 

53RD JUDICIAL DISTRICT 

OF TRAVIS COUNTY, TEXAS 

On July 6, 2016, the Court considered Plaintiffs' Motion to Enforce Mediated Settlement 

Agreement and Defendants' Motion to Enforce Mediated Settlement Agreement. Plaintiff 

appeared tlu-ough its attorney of record, Trey L. Dolezal. Defendants appeared through their 

attorney of record, Peter E. Ferraro. The record of testimony was duly reported by Jamie Foley, 

the substitute court reporter for the 250th Judicia1 District Court. 

After reviewing the parties' motions, the pleadings, evidence presented, arguments of the 

parties, and applicable law, the Court is of the opinion that Plaintiffs Motion to Enforce 

Mediated Settlement Agreement should be and is hereby GRANTED and Defendant's Motion to 

Enforce Mediated Settlement Agreement should be and is hereby DENIED. 

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiffs' Motion 

to Enforce is hereby GRANTED. 

IT IS FURTHER ORDERED that Defendant's Motion to Enforce Mediated Settlement 

Agreement should be and is hereby DENIED. 

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff shall have 

and recover of and from Defendants the total sum of $37,500.00 with interest accruing on said 

FINAL JUDGMENT 

\ 11111111111 IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII 

004672795 
sum at the rate of 10% per annum from June 1, 2016, thereafter until paid in full, and $2,500.00 

for attorney fees, for all of which let execution issue. 

All relief not expressly granted herein is denied. 

This Order disposes of all parties and claims and is a final and appealable judgment. 

...-,-pSigned this 1 day of July 2016. 

FIN AL JUDGMENT 

Pagel of2 

37 
TabB 
.. , . . RECORD OF MEDIATION AGREEMENT : :· .. ·: ·.': : •, / ,::. . 

On tbe i 8

1

h da)1 of June.2015 with Be11 Pluymen serving as mediator. the following case w~s mediated: 

Re: Cause No. D-l-GN-lJ-003405; K.Hl)A et al. v. Danesl?fou, et al.; In the 53rd Judicial Distl'ict 

Court of Travis County, Texas 

THE PARTIES HA VE VOLUNTARILY AGREED TO THE FOLLOWING: 

This case wns mediated in person with the mediator on March 25, 2015 and fully and finally ·resolved in 

person between the parties on June l 8, 2015 outside the presence of the mediator at . the scheduled 

deposition of the parties on June 18, 2015. That Mediated Settlement Agreement is attached hereto as 

Exhibit A. 

Although the mediator has assisted in di·afting a basic outline of this Settlement Agreeme11t with the 

parties' counsel as a courtesy to facilitate the final resolution of this dispute, the parties and their counsel 

bave thoroughly reviewed such outline and have, where necessary, modified it to conform to the 

requirements of their agreement. All the parties and/or signatories to this Settlement Agreement hereby 

release the Mediator from any and all responsibility arising from the drafting of this Settlement 

Agreement, ·and by signing this Settlement Agreement acknowledge that they, or their attorneys, have 

been advised by the mediator that this Settlement Agreement should be independently reviewed by 

counsel before executing the Agreement. 

The partie_s acknowledge that they ha".e npt _been coer~~d py anyone into entering th~s agreem~nt bllt do 

so of their own free v,iill and independent judgment. They also acknowledge that this is an in·evocable 

settlement agreement, that they have read it. tmd°erstand it; agree to the tei·ms ~tated, and believe that it is • • f I i :.; I 

in their best interest. If necessary, this agreement may be enforce.d as a Rule 11 Agreement and as a . . 

contractual settlement agreement. Each party acknowledges that thij mediator bas not given them any 

legal or settlemeI?t. advice and that they have conferred with their own independent legal counsel 

regarding the advisability of entering into this binding agreement before signing it. 

Signed and. agreed to this the 18

th 

day oflune, 2015~~----

- ~ -,~-----~~~ 

EXHIBIT 

J 

14 
Exhibit A 

MEDIATED SETTLEMENT AGREEMENT 

-RE: CAUSE #D-1-GN-13-003405 

KHDA V. DANESHJOU et al. 

The Parties by their signatures have agreed to the following mediated ·settlement agreement: 

1. Trey L. Dolezal and KHDA ("Plaintiffs") and DCI and Sally arid Benny Daneshjou 

("Defendants") agree to mutually release each other from any and all claims asserted 

or that could be asserted in the above captioned case and agree to dismiss the above 

captione.d ~ase with prejudice. 

2. The parties agree to keep tltis resolution confidential. 

3. The parties agree to a mutual non-disparagement clause in the settlement agreement. 

4. In exchange, Defendants agree to pay to Plaintiffs $2500.00 on the day of execution of 

this agreement and to pay Plaintiffs an additional $32,500.00 on or before March 1, 

2016. If Defendants fail to pay the $32,500.QO on or before March 1, 2016 then they 

will pay that amount plus an additional $5,000 on or-before June _1, 2016. 

5. Defendants agree that if the property l_pcated at 43 01 Bee Caves Road, Austin, Texas is 

sold to a third party and funded, Plaintiffs will be paid any and all amounts still owing 

under this agreement from the proceeds of that sale. Such payment will be made at 

the time of closing and Defendants agree to instruct the title company to pay such 

amounts due at the time of closing. Plaintiffs agree that they have no interest c:\irectly 

or indirectly in the subject property. 

6. If Defendants fail to make the payments as set fortl1 above on or befqre June 1, 2016, 

Defendants agree that Plaintiffs can refile their claims, notwithstanding the prior 

dismissal and the applicable statutes of limitations, for all claims and/or 

counterclaims will be tolled by this agreement from the date of the original filing of 

the above captioned case to 60 days after such failure to pay under this agreement, or 

alternatively Plaintiffs may elect to enforce this agreement and collect reasonable 

attorney's fees and interest of to% from the date of the breach to the date of payment. 

7. The parties agree to coo·perate in completing all documents necessary to finalize this 

agreement. 

8. Each party will pay their own mediation and litigation costs, including but not limited 

to attorneys' fees. 

2 

15