## In the Court of Appeals Second Appellate District of T exas

at Fort Worth

__ _________________________ No. 02

- 19

- 00320

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas T rial Court No. 048

- 284212

- 16
Before Sudderth, C.J.; Ker r and Womack, JJ. Memorandum Opinion o n R e hearing by Justice Womack 

### R AY 

### F ISCHER AND 

### C ORPORATE 

### T AX 

### M ANAGEMENT 

### , I NC



### . N 

### / K 

### / A 

### RY

F ISCHER 

### & A SSOCIATES 

### , I NC



### . , Appellants

V



### . M ARK 

### B OOZ ER 

### , J ERROD 

### R AYMOND 

### , AND 

### CTMI, LLC , Appellees2 MEMORANDUM OPINION ON REHEARING On October 7, 202 1, w e issued a memorandum opinion and judgment reversing the trial court ’ s fin al judgment in favor of Appellees M ark Boozer, Jerrod
R aymo nd, and CTM I, LLC (the CTMI Parties ) , and we rendered judgment in favor of Appellants Ray Fischer and Corporate Tax Manag ement, Inc. n/k/a RY Fischer &
A ssociates, Inc. (the Fischer Partie s )

. The Fis cher Parties filed a motion for rehearing

a sking tha t we revise our judgment to award them pre

- and post

- judgment int er est. After review

ing th e motion for reh ea ring , th e response, and t he reply, we grant the

mot ion for rehearing in par t, withdraw our Octobe r 7, 2021 memorandum opi nion and judgment, and substitu t e the fo llow ing.
I. I NTRODUCTION In a prior lawsuit , the Fischer Partie s entered into a settlement agreem e nt (the
Settlement Agreement) in open court with the CTMI Parties

. As part of the
Settlemen t Agreement, the parti es agree d that o ne of the claims i n the la wsui t wou ld proceed to trial and that CTMI would p lace certain funds relating to that cl aim in an

a ccount controlled by T. Wesley Hol mes, attorney for two of the CTMI Par ties , pendin g resoluti on of the case

. The parties fu rther a greed that if Fis c her was ulti matel y successful on the claim, h e wo uld receive p ayment of the funds

. While the
Fischer Parti es ulti mately prevailed on the claim, Fischer did not receive payment
b ecause Holme s absconde d with t he money that CTMI had placed in the account.3

In this law suit, the CTMI P arties sought a de claration that they had fulfilled their obligations under the Settlement Agreement and owed no further liability to the
Fischer Part

ies under the Settleme nt Agreement , and the Fischer Pa rties brought a
bre ach

- o f

- contra ct c laim a gainst the CTMI Parties for breach of the Settlement
A g reement
. The F ischer Parties file d a motion to tran sfer venue, which was denied
b y the trial court. The pa rties also filed du eling motions for summary judgment , an d
the trial court ultimate ly r uled in the CTMI Parties ’ favor. In their first issue , the
Fischer Part

ies argue that the tria l court abused its dis cretion by denying the motion
to transfer venue , and in their s econd is sue, the Fischer Parties cont end that t he trial

court e r red by e nter ing f

inal judgment in the CTMI Parties ’ favor. We will sustain the
Fischer Parties ’ second iss u e and reverse and render in part and remand in part
. II. B ACKGROUND
A
. Fischer Sells His Busin ess , a Lawsuit Aris es from th e Sale , and the Par ties Enter into the Settlement A g re ement . In 2007, Fischer owned Corporate Tax M anagement , Inc. , 1 a tax

- consulting
business. 2 Sometim e that year, Fischer began negotiations to sell the ass ets of the
busin ess to Boozer a nd Raym ond. Boozer an d Raymond c reat e d a b usiness, CTMI,
L L C , to re ceive the assets a nd operat e the business , and i n 2007, the parties ex ecuted

1 Corporate Tax Man agement , I nc. (an appellant in this case) should not be confused with C TMI, L LC (an a p pe llee in this case).

2 M any of the fac ts rel atin g to t h i s case are s et ou t in Fischer v. CT M I, L.L.C. , 479 S

. W.3d 231 (Tex. 2016) , a case we will re ference later in our opinion.4

a written asset

- purchase a greement by which CTM I purchased the business from
Fischer.
In 200 8 , a dispute aro se betw een the Fischer Part ies an d th e CTMI Parties regarding paymen ts ma d e under the asse t

- purchase agreement, an d the parties filed claims ag ainst each other in the 192 nd D istri ct C ourt of Dallas County

. At the 20 11

tr ial of th at case, th e parties enter ed into the Sett le ment A g re ement in o p en court. Through the Settlem ent A g reement, t he p arties agreed to a judgment awarding
Fi sch er $1.7 million; the sett lement, h ow ever , specifically ex cluded one of CTMI ’ s claim s relating to a prior agreem ent between the partie s that we will refer to as the

“ 20 10 Adjustment. ” 3 Th e parti es ag r eed to sever CTMI ’ s clai m that the 2010 Adjustment wa s unenforceable , agreed that CTMI would p l a ce funds relating to the 2010 Adjustment in a CTMI account controlled b y Holm es whi l e the par ties li tiga ted
CTMI ’ s clai m re g arding t he 2010 Adjustment , an d agr e ed that Fisc her would receive
th ose funds if he was u ltimately successful in the litigation

. Because it is key to our analysis , we will set forth pertinent portion s of the
Settlem ent Agr eement c oncerni ng CTMI ’ s o blig a tion to pay the 2010 Adjustmen t. T h ose portions read :

3 The 2010 Ad just ment involved an agreement that CTMI would pay Fisc her an a d ju sted “ earn out payment ” from reve n ues recei ved i n 201 1 on projects for which Fischer had p e rformed w ork in 201 0. CTMI maintained that the 2010 Adj ustment constituted an unenforceable agreement to agree.5 [Mr. Cu nningham 4

]: All right. Upon

– thereafter, upon receipt of the revenue [relating to the 2010 Adjustment] , 15 percent of all tha t revenue rece ived on those p rojects listed will, u pon receipt , be paid into an interest bearing escro w account. [ Mr. Shamoun]: Either, either in Mr. Holmes’ escrow accou nt or my escrow account, dep ending on what Mr. Holmes and I agree in that rega rd.
Is that fair, Mr . Holmes? [Mr. Holmes ]: That is corr ect. [Mr. Sham o un]: Okay. [Mr. Holmes] : And I jus t want to say it would prob ably be a new account that we would have c ontrol of so it wouldn’t be comingled with other client trust funds. [Mr. Sha moun]: Well, I think it has to be a separat e account, beca use I’m not goi n g to be paying income tax on t he in t erest that
a ccrues on it. [Mr. Holmes]: I agree. [Mr. Shamoun]: An d so it won’t be under my ta x ID numbe r. [Court]: All right. Let’s m ove on. [Mr. S hamoun]: Well, I need to know whose tax ID number i t needs to be o p ened under, because then that’ s goi n g to be the reporting requ irement for the IRS. Who would you recomm end?

4 During the 2011 trial, the Fischer Part ies were re presente d by Jonathan Cunningham a nd Gregor y Sh a moun, C TM I was r epr ese nted by Andrew Turne r , and Bo o zer an d R aymond were represented by Holmes.6 [Mr. Holmes]: Your Hon or, I don’t know exactly how to handle tha t. [Cou rt]: Wh oever’s going t o be benefitti ng from the numbers. I would ass ume y a’ll [sic] will be. [Mr. Holm es]: C orrect. Pro bably what we’ll do is have it be a CTMI account, but have it be controlled by me. [Mr. Shamoun]: That’s fair. I agree with that. [Mr. Ho lmes]: Then the y will pay the taxes o n it, but I’m o n the hook. [M r . Shamoun]: I agree with that. Oka y . [Mr. Turn er]: I think [I] lik e that one t oo because I wasn’t on the hoo k. [Mr. Shamoun]: But I want to make absolutely sure, guys, that we under stan d how w hen that money come s in , 15 pe rcent of the gr oss receipt s is put into that account. Right Mr. H o lmes? [Mr. Holmes]: Correct. [ Mr. Shamoun] : And that money is not going to be used to pay Mr. Fischer, if [the revenue relating to the 20 10 Adjustment] comes in, I d on’t want to us e th at 15 p ercent. That comes off the to p, irrespective of anythin g do you . . . understand? [Mr. Ho lmes] : That’s corr ect. [Mr. Shamoun]: Is that what we agreed to? [ Mr. Holmes]: That’s correct. [Mr. Shamoun]: Thank you. Go ahead.7 [Mr . Cunningham]: Then upon t he exhaustion of all ap p ellate rights by any party that rela t e to an appeal of the declar [ a ] tory judgment, wh ich will be severed from the causes of action in t his suit

– i n other words, separate from the agreed judgment the Cour t will sever the decl ara tory judgment action the de fen dant s have asked fo r regarding the issue of agreement to agree, a nd th e Judge will issue a separate dec lar[a]tory judgment on that. Okay?
Which will also award fees regarding that declar[a]tory judgme nt , which will in cur tri al f

ees and appellate fees.
S o th en, upon the ex haustion of all appellate rights relating to t hat d e clar[a]tory judgment, if the dec lar[a]tory judgment of the tri al Court is upheld, then Ray Fischer will receive payment of the 15 p er cent gross reve nue tha t is being held in escrow. An d 15 per

– I mean, he will rec eive

– he will be distributed that 15 pe r cent of the gross revenue that
w as being held in escrow, okay. 100 percen t of that.

. . . . [Mr. Shamoun]: That c onclude s our se ttlement. I [w ]ould like t o
– I woul d like to call my c lient. [Mr. C unningham]: Let me be sure and be clear on the rec o r d that what is

– it’s agreed by the part ies that what is being entered on to the record in this Rule 11 setting, does n ot cont empla te the parties sit ting down an d executin g any further settl ement agreement to be writ ten o r agreed upon.
This is to be use d as the settl ement agreement, this transc ript. [Mr. Shamoun]: Is that co rrect? [Mr. Cunningham]: For all purposes. [Mr. Holme s]: Yes. [Mr. Tu rner]: Yes. [Mr. Sha moun]: Is that corr ect, Mr. Turner ?8 [Mr. Tu rner

] : Agreed. 5
B
. The 1 92nd Di str ic t Court Enter s a Judgment Relatin g to the 2010 Adjustment , the Dallas Court of Appeals Reverse s, and the Texas Supreme Court Reverses
. In June 20 11 , the 192n d District Court of Dal las Co u n ty en tered judg ment in
the Fis c her Parties ’ favor regardi ng t he 20 1 0 Adjustment , declaring that the 2010 Adjustment was not an un enforceable agreement to agree as CTMI had claimed

. CTMI appealed that j udgment to th e Dallas Cou rt of Appeals, and in August 2013,
the Dalla s Court of Appe a ls reversed the 192nd District Cour t , holding th at “ the 2010 Adjustment was . . . an unenforceable agre ement to agree. ” CTMI, LLC v. Fischer , 47 9 S .W.3d 279, 283 (Tex. App.

— Dallas 201 3 ), rev ’ d , 479 S. W.3d 231 (Tex. 2016). I n Jan u ary 2016, the Texas Supr e me Court reversed the Dallas C ourt o f Appeals, h olding
that “ the 2010 [A]djustment [was] not an un enfor ceable agreement to agree. ” Fischer , 479 S .W.3d at 244. The Texas Supreme Cou rt ’ s mandate issued on February 1 9,
2016.
C
. Holmes Sets Up a CTMI B ank A ccount, CTMI Deposits Funds in to th a t Account , a nd Holmes Absconds with the Fu nds
. In October 20 11

—

while the 192 nd District Court ’ s fi nal judgment was bei ng appealed t o the Dalla s Co ur t of Appeals

— Holmes open ed a Regions Ba nk account.

5 Fischer then testi fied that he approved of the Settlement A g reement on behalf of himself and Corpo r at e Tax Ma nagement , I nc. Raymon d li kewise t estified that he app roved of the S et tlement Agreemen t , a n d Boozer testif i ed that he approved of the Settlement Ag reem ent on behalf of himself and CTMI

.9

CT MI was list ed a s the owner of the account , alt hough the address li s ted for CTMI
was the address of Holmes ’ s law fi rm. According to a declarati on mad e by Raymond,
one of CTMI ’ s owners, “ [n]either CTMI nor any of its principals, agents or emp loyees had any control ” ov er t h e bank account , and Holmes w as the “ sole authori zed signatory ” on the account
. Bank statements re lating to the account were sent to

“ Thomas Wesle y Holmes FBO CTMI LLC ” at the address of Holmes ’ s law firm , and Regions Bank li kewise issued 1 099

- INT for ms t o “ Tho mas Wesle y Holmes FBO
CTM I LLC ” at the add r ess of Holme s ’ s law firm.
Between October 2011 and December 20 12

— whi l e the appeal was s till pending in the Dallas Cour t of Appeals

— CT MI deposited funds totaling $990,175.66
i nto the Regions Bank ac cou nt. Between June 2014 and December 201 5

— while the

ca se was still pending before the Texas Supreme Cour t

— Holmes absconded with the
funds

. D
. The CTMI Parties File the Prese nt Lawsuit, the Trial Court Denies the Fischer Parties ’ Motion to Trans fer Venue, the F ischer Pa rties File a Counterc laim f

or Breach of Contract, and the Trial Court Enters a Final J udg ment in the CTMI Parties ’ Favor
. According to Raymond, the CTM I Parti es discovered t hat Holmes had
abs conded with the funds s ometime in earl y March 201 6. A few days lat er , the CTMI
Part ies f i led the pres ent lawsuit in the 48th District Court of Tarrant County

. The CTMI Parties sought a de claration that they had fulfilled their o bligatio ns under the
Settlement Agr eement and owe d no further li ab ility t o the F ische r Parties under the10

Settl ement Agreement

. 6 T he Fischer Parties filed a motion to transfer ve nue to Dallas County , and the t rial court denied the motion

. The Fisch er Part ies also filed a
counterclaim against the CTMI Pa rties for , amon g other thi ngs, breach of the
Settleme nt Agr e e ment. The Fische r Parties sought summary judgment on their breach

- of

- contract

counter clai m , arguing that they had not received the funds due to them und er the
Settlement A g reement and had bee n damaged in the amount of $ 990,175 .66

. The
trial court denied the Fi scher Parties ’ mot ion for sum mary judgment.
The CTMI Partie s filed three motions for summary judgment. In their first
motion , the y conte nd ed tha t they had fulfi lled all the ir obligations under the
Settlement Agreement and o wed no further liability to th e Fis c her Parties

. The trial court granted the CTMI Parties ’ first motion for summary judgment in part, finding
that the y h ad accur ately calculate d the a mount s due u nder the 2010 Adjustment and had timely depo sited payme nts t otal ing $990,175.66 into the R egion s Bank accoun t. Th e CTMI P arties later filed their seco nd motion for summary judgment, argu ing that
because the Regions Bank a ccount const itu ted an “ e scrow account, ” they were
entitled to s ummary judgment on the Fis cher Parties ’ breach

- of

- contract co unter c laim

an d en t i t led to summary judgment on certain affirm ative defenses raised by the

6 The CTMI Parties (and la ter the Fischer Par ties) also bro ught cla i m s ag ainst H olmes and the law firm t hat had r ep r e s ented CTMI in the 1 92n d District Court

. T h ose cl aim s were later severed in to a new ca se.11

Fischer Parties. The trial court granted the CTM I Partie s ’ second motion for summary judgment, finding , among other thi ngs, that t he S e ttlement Agreement

“ created an esc r o w ac c ount
. ” The CTMI Parties later filed their third m otion for summary judgment, contendi ng that in light of the t rial court ’ s prev ious sum mary

judgment rulings, they were entitled to a d eclaration that they had f ulfi l led their obligations under th e Set t lement Agree ment and owed no further liability to the
F ischer Parties under the Settlement Agreement

. The tr ial court gr anted the CTMI
Parti es ’ third motion for summary judgm ent
. The tri al court later incorporate d it s summary

- judgment rulings into a fi n al judgment. In the final judgment, the trial court dec lar ed that “ [t]he Settle ment
A g re ement create d an escrow account ” and t hat “ th e CTMI Par ties have no further
liabil ity to the Fischer Par ties

. . 

### . a s it relate s to any legally enforceable obliga tions imposed upon the CTMI Parties by [the] Settlement A g ree men t, the CTMI Parties having per formed and m et all of their obligation s under the S e ttl ement A g reement. ”
The t rial court also awarde d attorney ’ s fe es in accor danc e with a Rule 11 agreement
made by t h e parties. This appeal e nsued.
III. D ISCUSSION
A. We Will Address the Fischer Parti es ’ Second Iss u e Firs t B ecause It Provid es the Grea test R elief
. In their first issue, the Fischer Part ies argue that the trial c ourt erred by den ying
their motion to tr a nsfer venue. As to that issue, t he Fisch er Parties as k that we12

reverse and remand the case w i t h ins tructions to transfer i t t o Dallas County. In their second issue, the Fischer Parties ar gue that the tr ial court e rred by granting summary judgment i n t he CTMI Parties ’ favor. As to that issue, the Fischer Par ti es ask that we reverse and render judgment in the ir favor. When a p a rty presents multi ple grounds for reversal of a judgment on ap peal, the appel late court shou l d fi rst address those grounds tha t w ould affor d the party the greatest reli ef. CMH H

o mes , Inc. v. Daenen , 15 S.W .3d 97, 99 (Tex. 2000); Brad leys ’ Elec. , Inc. v. Cigna Lloyds Ins. C o. , 995 S.W.2d 675, 677 (Tex. 1999). Theref ore, we will
ad dress the F isch e r Pa rties ’ second issue first. S ee CMH Homes , 1 5 S .W.3d at 99 (declining t o “ r each t h e v en ue question, whic h if sustained would only result in a remand, ” when a different issue ent itled the appella nt to rendition of judgment in its favor) ; Bradleys ’ Elec

. , 99 5 S.W.2d at 67 7 (

holding t hat c o urt of app ea ls erred by remanding case on v enue g r oun ds when the appellant ha d also raised an issue upon which the court of ap peals could have re ndered judgment).
B. Standard of Review
We review a summ ar y judgment de n o vo. Tr avel ers Ins. Co. v. Joa chim , 315 S.W.3d 8 60, 862 (T ex. 2010)

. When both partie s mov e for summary judgm e n t and th e t r ial court grants one mot ion and de nie s the other, the rev i ewing court should
review bot h parties’ sum mary

- judgment e vidence and det e rmine all questions presented. Ma n n Frankfort S t e i n & Lipp A dv

i s ors , Inc. v. Fi elding , 2 89 S .W.3d 844 , 848 ( Tex. 2009). We s hould then render the judgment that th e t rial co urt sho u ld have13

rendered. S ee Myrad Pr

ops ., Inc. v . LaSalle Ba nk Nat’l Ass’n , 30 0 S. W.3d 74 6, 753 (Tex. 2009); Mann F

rankfort , 28 9 S.W. 3d at 848

. C. Did the Se ttleme n t A g r eement Create an Escrow Agreement? Through this appeal, we must constr ue whether the Sett lement Agreement created an escrow agreement . The CTMI Par tie s argued at t he t rial level and n ow
argue o n app e al that the Sett lement Agreement created a “ valid [e ]sc r ow [a]greement. ” According to the CTMI Parties , because the Settlemen t Agreement created an escrow agreement, their obligations and liability under the Se ttle ment A g reement ceased when they dep osi te d the $990,17 5.66 into the Regi ons Ba n k account. See No rman v. Wilson , 41 S.W.2d 331, 332 (Tex. App.

— Austin 1931, writ ref

’ d) ( “ When the bank acc epted by written indorsement thereon the esc row agreement d eposited wi th i t , and which

c h arged it with ce rtain duties, it b ec ame the depositor y and trustee to carry o ut its terms, and if it imp roperly did so, would be liable to those inj ured thereby. ” ). I n contrast, the Fischer Parties argued at th e t rial level a nd now argu e on appeal that the
Sett lement Agr eemen t did not cre ate an escrow agreement. According to the Fischer Parties, because the Settlement Agreem en t did not create an esc row agreement, the
CT MI Parties were not relieved of thei r obli gation s under t he Settleme nt A g reeme nt by merely depo siting t he $9 9 0,175.66 in the Regio ns Bank account , and as the Fische r Parties did not receive the $990,175.66 , the C T MI Parties breached th e Settlement Agreem ent
.14

1. The Law
Al l parties agree that the Settlement Agreem ent w as a Rule 11 agreement. See
Tex. R . Ci v . P. 11. As such, it was en forceable as a contract. L ane
– Valente Indus. (Nat ’ l), Inc. v. J.P. Morgan Chase, N.A. , 468 S.W.3d 200, 204 (Tex

. App

. — Houst on [14th Dist.] 201 5, no pet.).

“ We construe contra cts ‘ from a uti l itarian standpoint bearing in mind the particul ar business activity sought to be served ’ a nd ‘ will avoid when poss ible and
p roper a c onstructio n which is unreaso nable , inequitable, and op pressive. ’ ” Frost Na t ’ l
Bank v. L & F Dist., Ltd. , 1 65 S.W.3d 3 10, 3 12 (Tex. 2005) (quoting Reilly v. R angers Mgmt. , Inc. , 727 S.W.2d 527, 530 (Tex. 1987)). When construing a contract , our prima ry concern is to ascertain the tru e int ent of the par ties as expressed in their

c ontract
. Chrysl

er Ins. Co. v. G reenspoi

nt Dodg e of Hous

. , Inc. , 297 S.W.3d 24 8, 2 5 2 (Tex.
2009 ); NP Anderson Cotton Exch., L.P. v. Pott e r , 230 S.W.3d 457, 463 (Tex. A pp.

— Fort Worth 2007, no pet.). We must ex amine and consider the ent ire contract to harm o nize and give ef

fect to all prov

isions so t hat n one are rendered meaningless.
MCI Telecomms. C

orp. v. Tex. Utils. Elec. Co. , 995 S.W.2d 6 47, 652 (Tex. 1999); NP
Anderson , 230 S .W.3d at 463. We presume that p artie s to a contrac t inten d ever y clause to hav e some effect, a nd we give terms used in a cont r act their p lain, ordinary,
and gen e rally accept ed meaning unless the contract shows that t he parties used them
in a tech nical or different sens e. FWT, Inc. v. H askin Wallace Ma son Prop. Mgmt.,15

L.L. P. , 301 S. W.3d 787, 794 (T ex. App.

— Fort Wo rth 2009, p et. d enied) (op. on
reh ’ g).
Under Texa s law, an esc row agreement is
a written instrument whi c h by its terms imports a legal obligat ion, and which i s dep osited by the gran tor , promisor, or o bl igor, or his agent,
w ith a strange r o r th ird party, t o be kept b y th e depositary until the performa nce o f a conditio n or the happening of a certain event, an d then to be delivered over to the grantee , promise e , o r oblige e. Campbe ll v. Barber

, 272 S .W.2d 7 50, 753 (Tex. App.

— Fo rt Worth 1954, w rit ref ’ d

n. r.e. ) ; see E scr

ow , B l ack ’ s Law Dictionary (1 1 th ed . 20 1 9 ) (defining “ escrow ” as a

“ leg al document or property de l ivered by a promiso r to a third party to be held by th e third party for a giv en amount of time or until the occurrence of a conditi on, at which
tim e the third part y i s to hand over the document or p roperty to t he pr omise e ” ). Cases defining escrow agree me n ts highlight that e scrow involves deposits with

neutra l third partie s who are strangers to the con tract. See , e.g. , Wi lliams v. La nd Title Co. of Dall. , No. 05

- 96

- 00 039

- CV, 1997 WL 196345, at *5 ( T ex. App.

— Dal las Apr. 23, 1997, no pet. ) (not designated f o r publication

) ( “ To create an escrow, the parties to a n underlying t ransactio n must dep osit instru ments or funds with a neutral thi rd party. ” ) ; Bel l v. Safeco Titl

e I ns. Co. , 830 S.W.2d 157, 16 0 (T e x. App.

— Dall as 1992, writ denied) (explaining that for es c row agreements, “the grantor deposits the funds or pro perty with a n eutral th ird party ” ); Campbell , 272 S.W.2d at 753 ( stating that escrow is a
wri tten instru ment dep osited with “ a stranger or thir d party ” ). I ndeed, an escrow cannot typically be deposi ted with one of the parties to the escrow agreement, n or16

with the agent or at torney of one of the parties to the agreem ent. See Br adley v. Howell

, 126 S.W.2d 547, 56 4 (Tex. App.

— Fort Worth 193 9, w r it dism ’ d ju dgm ’ t cor.) ( “ An escrow deposit cannot be mad e with one of the parties to the instrument, or his
age nt. ” ) ; Smith v. D aniel

, 288 S.W. 528 , 531 (T ex. App.

— Beaumont 192 6, writ dism ’ d

w. o.j.) ( “ A d eed is not in es cro w while deposited with one of t h e parties, n or with his
agent or attorney. ” ) ; see also Jo h nson v. Freytag , 338 S.W.2d 257, 262 (Tex. App.

— Bea umo nt 1960, writ ref

’d n.r .e.) (stating that “[ a]n es crow depositary should be a
strange r or thi rd party ” b ut re co g nizing that there may be ci rcum s tances where an agent of or party to an instrument may be a depos itary ).

“ The purpose of requiring a promisor to place [an item ] in escr ow is to p rotect the promise e by having a neutral t hird party ho ld the item un til t he happening of a
contin gency or p e rforma nce of a condition , and then deliver that item to th e
p romis ee. ” Vector Indus. , Inc. v. Dupre , 793 S.W.2d 97 , 101 (Tex. Ap p.

— Dallas 1990,

no writ ). An escro w agent owes fid ucia ry du ties to the part ies of the escro w

a greement, including the dut y of loyalty, the duty to make full disclosure, and the duty

to e x ercise a high d egree of care to conserve the money pla ce d in escrow and pay i t only to th ose persons entitled to receiv e it. Tr ahan v. Lone Sta r Title Co

. of E l P aso , 247 S.W.3d 269, 287 (T ex. A pp.

— El Paso 2007, pet. denied) ; Williams , 1997 WL 196345, at *5

.17

2
. Applicat ion of th e Law to the Facts
We begin our analysis by examin ing wheth er Ho lmes was a neutra l third par ty who w as a stranger to the Settle m ent A g re ement. See Williams , 1997 WL 1 96345, at
*5 ; Bell , 83 0 S.W.2d at 160; Campbell , 272 S.W.2 d a t 753. The summary

- judgment
record reflects that Holme s was an atto rney repre senting B oozer and Raymond at trial
in the 192nd D istrict Court , th at the Set t lemen t A greement was e ntered at tri al , that
Boozer and Raymond were parties t o the Settlement Agr eement , that Holmes spoke
on behal f of Boozer and Raymond when the part ies entered the Set tlement
A greement , and that Holmes repres ented Boozer and Raymond in the a ppe al bef ore the Dallas Court of A ppeals where the parties were substan t ively arguing over w ho was entitled to the funds place d in the Regions Bank a ccount. See C TMI , 479 S.W.3d

at 280. Bas ed on that record, we cannot say that Holmes was a neutral t hird par ty

w ho was a strange r to th e S e ttlement Agr eement. 7 See Williams , 1 9 97 WL 196345, at
*5 ; Bell , 83 0 S.W.2d at 160; Campbell , 272 S.W.2d at 753.
The CTMI Part

ies argue t hat even if Holme s was not a neutral th ird party who
was a strange r to the S e ttlem ent Agreement, that d id not ne ces s aril y preven t him from

7 In th e ir brief, the CTMI Parties place a g reat deal of emphasis on the fact that Holm es r epres en ted Booz er and R a ym ond and not CTMI

. While that fac t may be t rue, it doe s not transfo rm Holmes into a neutra l third pa rty wh o was a st ranger to the Settlement Agreem ent. As sta te d above, Boozer and Raymond were parties to t he Settle ment Agreement, an d Holmes rep resen ted th em at trial in the 192nd District Court, re pres e nt ed t h e m while the Se ttlement Agreement w a s being e ntered , and represented them on appeal be fore t he Dallas Co ur t of Appeals.18

serving as an escrow agent , particu larly where the esc row agreement was made in
open court. But just beca use parties may agr ee that a party or agent of a party may b e a depositary to an escrow agree men t does n ot necessarily mea n th a t the Settle ment
A g reement was an escrow agreement
. See J ohnson , 338 S.W. 2d at 262 ( “ We do not

m e an to say th at under no circums tances may an agent of or party to an instrument be a deposi ta ry, but in the abse n ce of a cle arl y expressed mutual agreemen t o f both
par tie s to the instrument to that effect it will not be implied

. . . . ” ). And, h ere, if we are to harm onize and give ef fect to all provi si ons of the
Settlement A g reement so that n one are rendered meaningles s , we must co nst rue the
Settlement A g re e ment to be s omething other than an escrow ag reement
. Firs t, the
Settle ment Agree ment establishes that t he contemplat ed bank acco unt was to be a
C TM I account

— not Holmes ’s account

— and the su mmary

- judgment ev idence
ref l ects that th e R egions Bank account was indeed a CTM I account. S econd, the Settlement Agreement e stabl ishes that CTMI was to pay taxes on the account, and the
summary

- j udgment evidence re flects that Regions Bank issued 1099

- INT forms to
“Thomas Wesle y Hol m es FBO CTMI LLC

. ” 8 Third , and p erh aps most cri tica lly, the
S ettlement A g reement states in two pl aces t hat Fischer “ will receive ” payment of the deposite d funds. If we are to const rue th e Settlement A g reement as an escrow

8 In their brief, the CTMI Par ti es emphas ize that the Settlement A g reem ent s tat e d that Holmes would be “ on the hook

. ” But ju st b e cause Holmes stated th at he would be “ on t h e hook , ” does n o t mean that CTMI would be “ off the hook ” if Fischer did not receive th e pay ments contemplated under the Settlement Agreement.19

ag ree ment, then those provisions have no mean ing b ecause Fischer did no t receive
pay ment of the deposite d funds. 9
Based on our re view of th e summary

- ju dgment record , we hold that th e unique
Settlement Agreement before u s was not an escrow agreement but was sim ply a
Rule 11 agr eement

— a c o ntract

— enter ed b e tween the parties. A c cordingly, w e hold that the trial court erred by declar ing th at the Settlement A g reement was an e scrow agreement and erred by dec laring that the CTM I Parties had fulfilled their obligations
under the Settle ment Agree m ent and owed no further liability t o t h e Fischer Pa rties under the Settlement Agreement

. W e f urt her hold t hat the summary

- j udgment
evid ence establishes that the CTMI P arties b reached the Settlement Agreement by failing to pay F ischer the amount s due unde r it

. 10 See R ice v. Metro

. Life Ins. Co

. , 324 S.W.3d 660, 6 66 (Tex. App.

— Fort Worth 2010, no pet.) ( setting forth e lements
of a breach

- of

- contract claim). Accordingly, we sustain the Fisc her Part ies ’ second

9 W hile the term “es c ro w ” was used five ti me s in the Set t lement Ag reem e nt, a part y ’s mere use of the term “escrow ” does not trans f orm an agreement into a n escrow agreemen t. Cf. Chapman Children ’s T ru st v. Porter & Hedges, L.L.P. , 32 S.W.3d 429 , 439 n.7 (Tex. App.

— Hou ston [1 4 t h Dist.] 2000, pet. den ied) ( “In th i s case, t he T r ust s p oint to a let ter from one of Atkins ’ s attorney s whic h pur ports to char acteri ze Porter & Hedge s as a ‘stakeholder ’ of the se tt lem ent funds. This type of unilateral cha racterization , alone, is not suf f ic ient to create a fidu ciary duty. ” )

.

10 As noted by the Fisch er Par tie s in their reply bri e f, “ Fische r nev e r contested whether [th e CTMI Parties] h a d properly determined the a mo un t owed under the Settlement Agreement; rat her, Fischer ’ s only disp ute with [th e CTMI Parties ] was whether Fisch er actual ly re c eived those a mount s, as required by the S e ttlement A greem e nt. ”20

issue, reverse the tr

ial court ’ s final judgment, and render j udg ment ordering the CT MI
P arties to pa y Fisch er $990,175.66

. 11
3
. A w ard of Attorn ey ’ s Fees
Prior to the tria l court ’ s entering its final judgment, the parties entered a
R ule 11 agreement concerning attorney ’ s fe es. Pursuant to tha t agree m ent, the par tie s agreed that if the Fi s cher Parti es ultimately prevailed i n th e lawsuit, they we r e to

rec over from t he CTMI Parties $450,000 as their reasonable and nec essary attorney ’ s f ees for work done at the trial level, an additional $60,00 0 if they w ere successf ul following an appeal to t he c ourt o f a ppeals, an additional $10,000 if the y were

s u c cessful on appeal following a petition of review to the Texas Supreme Court, and
an addit ional $30,000 if they were successful on appeal following a grant of a petition

o f r eview by the Texas S upr e me Court. T he R ule 11 agreement provided tha t in the

even t the C TMI Parties ultimately prevailed, they would be entitled to rec o ver their
reasonabl e and necessary attorney ’ s fees for ident ical amounts as t hose to be awarded

to t he Fischer Part

ies if t he y prevailed

. In the tr ial court ’ s fi nal jud gment, the tri al court awarded the CTMI Parties their attorney ’ s fees in accordance w ith the Rule 11 agr eement. Because the Fischer
Parties have ultimately preva iled on th i s appeal , we r e v erse th e trial cour t ’ s award of

11 Because we have sustained the Fi sc her Parties ’ second issue, we need not dec ide their first issue challenging the trial court ’ s de ni a l of t hei r motion to transfer
venue. S ee Tex. R. A pp. P

. 47.1.21

att orney ’ s fe es to the CTMI Parti es, and we order that the Fischer Parties recover from the CTMI Parties $450,000 for th e Fischer Part ies ’ reasonable and nec essary attorney ’ s fees for work done at the trial c ourt level, and we f u r ther order th at t he
Fis cher P art

ies recover f

ro m the C TMI Parties $60,000 f or the Fis cher Parties ’ reasonable and necessary attorney ’ s fees for wo rk done at the c o ur t of a ppeals level.
We further order tha t if the Fischer Parties pr e vail in an appeal of this court ’ s j udg m ent to the T exas Supreme Cou rt , the Fischer Part ies will a dditional ly recover
from the CTMI Part

ies $10,000 for the Fischer Parti es ’ reasonable and necessary

att orney ’ s fees if the case is resolved on a petition for review. A nd in t he ev ent the petition for review is gr a nted by the Tex as Supreme Court and the Fi scher Pa rties
ulti mately prevail, the Fi scher Parties will recover from the CTMI Parties b oth the $10,00 0 and an additional $ 30,000 for th e Fischer Parties ’ reasonable and necessary

att orney ’ s fe e s . 4. Pre

- and P ost -

Judgment Interes t In their motion f

or rehearing, t he Fisc her Parties have requested that we award them pre

- and post

- judgment interest. 12 The two sources of authority for an award of

12 The CTMI Par ties argue that the F ischer Parties have waived any entitlement to pre

- and p ost

- judgment interest by not raising a complaint regarding pre

- and post

judgment interest in thei r appella te brief. We disagree. The Fischer Parties requested in both their live cou nterclaim an d i n their motion for summary judgment that t he trial court a ward them pre

- and post

- judgment intere st. And i n their appella te brief, the Fischer Parties req uested that we reverse the trial court ’ s judg men t and re nder an award in their favor. We do not thin k tha t the Fischer Parties were required to compl ain about pre

- and post

- judgment interest in their app ellate br ief when the trial22

p re

- judgment interest are : (1) an enabling s tatute and (2) legal principles of equ ity

. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc. , 962 S.W. 2d 507, 528 (Tex. 1998); Asta Partners, LLC v. Palaniswamy , No. 02

- 20

- 00371

- CV, 2021 WL 5133888, at *13 (Tex. App.

— Fort Worth Nov. 4, 2021, no pet. h.) (mem. op.) ; Citizens Nat ’ l Bank v

. Allen Rae Invs., Inc. , 142 S.W.3d 459, 4 86

– 87 (Tex. App.

— For t Worth 2 004, no pet.) (op. on reh ’ g)

. The enabling st atute, Section 304.104 of the Finance Code, only applies t o wrongful

- death, personal

- injury, and property

- damage cases. Asta Partners , 202 1 WL 5133888, at *13 ; Siam v. Mounta in Vis t a Builders , 544 S.W.3d 504, 513 ( Tex. App.

— El Paso 2018, no pet.) ; see Tex

. Fin. Code Ann. § 304.101 (stating that the subchapter de aling with pre

- judgment interest “applies only to a wrongful [

- ] death , personal [

- ] injury , or property [

- ] damage case ”).

court had no t awarded the m any amount by which int ere st could accrue , and we t hus hold that the Fischer Parties have n ot waiv e d th eir entitlement to pre

- and post

judgment interest. See Tex. R. App. P. 38.1(f) ( “The statement o f an issu e or po int will be treated as cover ing every subsid iary question that is fai r ly included. ”) ; DeGr oot v. DeGroot

, 369 S.W.3d 918, 926

– 27 (Tex. Ap p
. — Da llas 2012, no pet .) ( “ P ost

judgment interest is recoverable even if it is not specifically awarded in [a tr ial court ’ s] judgment. ” ) ; Lee v. Lee , 47 S.W.3d 767, 799 ( Tex. App.

— H ous ton [14th Dist.] 2 001, p e t. denied) ( “ An award of prejudgment interest

. . . is a n automatic legal consequence since ap pellants pled for prejudg ment interest. Neither the award o f prejudg ment interest, nor the accrual date of this interest, required a poi nt of error for preservat ion. ” ) ; see also Hernandez v. LaBella , No

. 14

- 0 8

- 00327

- C V, 2010 WL 431253, at *5 (Tex. App.

— Houston [14th Dist .] Feb. 9, 2010, no pet.) (mem. op.) (revers ing judgm ent of trial court and rendering judgment that appellees breached a settlement agreement and that appellant recover $100,000 , but reman d ing t o trial c ourt for further proceedings to determine appell ant’s entit lement to pre

- judgment interest).23

In this breach

- of

- contract case, no en abl i ng statute controls , and , thus, the o nly
p otential source for an award of pre

- judgment interest is “general princi ples of equity.” Asta Partners , 2021 WL 5133888, at *13. Where , as here, no enabling statute controls, the decision to award pre

- judg men t interest is l eft to the sound discretio n of
the trial court , which should rely upon equitable principles and public policy in making its decision. Id

.; Whitlock v. CSI Risk Mgmt. , L LC , No. 05

- 19

- 01297

- CV, 2021 WL 1712215, at *15 (Tex. App.

— Dallas Apr . 3 0, 2021, pet. deni e d ) (mem. op.); Henry

v . Mas son , 453 S.W.3d 43, 49 (Tex. App.

— Houston [1st Dist.] 2014, no pet.).
B ecause the trial court , rather than this court , has the ultimate d iscretion to award pre

- judgment interest , we decline the Fischer Part ies ’ invi tation to award them
pre

- judgment i nt ere st outright, and we instead remand the case to the trial court to
determine the Fischer P arties ’ entitle ment to pre

- judgment interest and to calculate
the amount of pre

- judgment interest to be awarded, if any. 13 See Hernandez , 2010 WL
43125 3, at *5

. We likewise remand the case to the trial court for determination of
post

- judgment interest

. 14 See Tex. Fin. Code Ann. § 304.003 ( provi ding post

judgment intere st r ate )

.

13 Be cause we remand th is determination to the trial court, we are only granti ng the Fischer Parties ’ motion for rehearing in part.

14 We note that “ [p] ost

- j u dgmen t interest is mandated by section 304.001 o f the Texas Finance Code, and is recoverable whether or not spec ifically aw arded in the judg ment. ” SAP Trading Inc. v. Sohani , N o. 14

- 06

- 00641

- CV, 2007 WL 1599 719 , at *2 (Tex. App.

— Houston [14th Dist.] June 5, 2007, no pet.) ( mem. op
. )

.24 IV. C ONCLUSION Having susta ined t h e Fisc h er Parties ’ se cond issue a nd n eed ing not de cide the
Fischer Parties ’ first issue, we reverse the trial court ’ s final judgment an d render judgment awarding F isc her $990,175 .6 6 o n his breach

- of

- co nt ract claim an d aw ard ing
attorney ’ s fees as set forth above

. We remand the case to the trial court for further proceedings to determine the Fischer P arties ’ entitle ment to pre

- judgment interest and
to calculate the amount of pre

- judgment interest to be awarded, if any , and for determination of post

- judgment interest

. See id .; Hernandez

, 2010 WL 431253, a t *5

.

/ s/ Dana Womack
Dana Womack Justice
Delivered: Dec ember 16 , 2021