In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-19-00320-CV

___________________________

On Appeal from the 48th District Court

Tarrant County, Texas

Trial Court No. 048-284212-16

Before Sudderth, C.J.; Kerr and Womack, JJ.

Memorandum Opinion on Rehearing by Justice Womack

RAY FISCHER AND CORPORATE TAX MANAGEMENT, INC. N/K/A RY

FISCHER & ASSOCIATES, INC., Appellants

V.

MARK BOOZER, JERROD RAYMOND, AND CTMI, LLC, Appellees
2

MEMORANDUM OPINION ON REHEARING

On October 7, 2021, we issued a memorandum opinion and judgment 

reversing the trial court’s final judgment in favor of Appellees Mark Boozer, Jerrod 

Raymond, and CTMI, LLC (the CTMI Parties), and we rendered judgment in favor of 

Appellants Ray Fischer and Corporate Tax Management, Inc. n/k/a RY Fischer & 

Associates, Inc. (the Fischer Parties). The Fischer Parties filed a motion for rehearing

asking that we revise our judgment to award them pre- and post-judgment interest.

After reviewing the motion for rehearing, the response, and the reply, we grant the 

motion for rehearing in part, withdraw our October 7, 2021 memorandum opinion 

and judgment, and substitute the following.

I. INTRODUCTION

In a prior lawsuit, the Fischer Parties entered into a settlement agreement (the 

Settlement Agreement) in open court with the CTMI Parties. As part of the

Settlement Agreement, the parties agreed that one of the claims in the lawsuit would 

proceed to trial and that CTMI would place certain funds relating to that claim in an 

account controlled by T. Wesley Holmes, attorney for two of the CTMI Parties, 

pending resolution of the case. The parties further agreed that if Fischer was 

ultimately successful on the claim, he would receive payment of the funds. While the 

Fischer Parties ultimately prevailed on the claim, Fischer did not receive payment 

because Holmes absconded with the money that CTMI had placed in the account.
3

In this lawsuit, the CTMI Parties sought a declaration that they had fulfilled 

their obligations under the Settlement Agreement and owed no further liability to the 

Fischer Parties under the Settlement Agreement, and the Fischer Parties brought a 

breach-of-contract claim against the CTMI Parties for breach of the Settlement 

Agreement. The Fischer Parties filed a motion to transfer venue, which was denied 

by the trial court. The parties also filed dueling motions for summary judgment, and 

the trial court ultimately ruled in the CTMI Parties’ favor. In their first issue, the 

Fischer Parties argue that the trial court abused its discretion by denying the motion 

to transfer venue, and in their second issue, the Fischer Parties contend that the trial 

court erred by entering final judgment in the CTMI Parties’ favor. We will sustain the 

Fischer Parties’ second issue and reverse and render in part and remand in part.

II. BACKGROUND

A. Fischer Sells His Business, a Lawsuit Arises from the Sale, and the Parties 

Enter into the Settlement Agreement.

In 2007, Fischer owned Corporate Tax Management, Inc.,

1

a tax-consulting 

business.2 Sometime that year, Fischer began negotiations to sell the assets of the 

business to Boozer and Raymond. Boozer and Raymond created a business, CTMI, 

LLC, to receive the assets and operate the business, and in 2007, the parties executed 

1Corporate Tax Management, Inc. (an appellant in this case) should not be 

confused with CTMI, LLC (an appellee in this case).

2Many of the facts relating to this case are set out in Fischer v. CTMI, L.L.C., 

479 S.W.3d 231 (Tex. 2016), a case we will reference later in our opinion.
4

a written asset-purchase agreement by which CTMI purchased the business from 

Fischer.

In 2008, a dispute arose between the Fischer Parties and the CTMI Parties 

regarding payments made under the asset-purchase agreement, and the parties filed 

claims against each other in the 192nd District Court of Dallas County. At the 2011 

trial of that case, the parties entered into the Settlement Agreement in open court. 

Through the Settlement Agreement, the parties agreed to a judgment awarding 

Fischer $1.7 million; the settlement, however, specifically excluded one of CTMI’s

claims relating to a prior agreement between the parties that we will refer to as the

“2010 Adjustment.”

3

 The parties agreed to sever CTMI’s claim that the 2010 

Adjustment was unenforceable, agreed that CTMI would place funds relating to the 

2010 Adjustment in a CTMI account controlled by Holmes while the parties litigated 

CTMI’s claim regarding the 2010 Adjustment, and agreed that Fischer would receive 

those funds if he was ultimately successful in the litigation.

Because it is key to our analysis, we will set forth pertinent portions of the

Settlement Agreement concerning CTMI’s obligation to pay the 2010 Adjustment. 

Those portions read:

3The 2010 Adjustment involved an agreement that CTMI would pay Fischer an 

adjusted “earn out payment” from revenues received in 2011 on projects for which 

Fischer had performed work in 2010. CTMI maintained that the 2010 Adjustment 

constituted an unenforceable agreement to agree. 
5

[Mr. Cunningham4]: All right. Upon – thereafter, upon receipt of 

the revenue [relating to the 2010 Adjustment], 15 percent of all that 

revenue received on those projects listed will, upon receipt, be paid into 

an interest bearing escrow account.

[Mr. Shamoun]: Either, either in Mr. Holmes’ escrow account or 

my escrow account, depending on what Mr. Holmes and I agree in that 

regard.

Is that fair, Mr. Holmes?

[Mr. Holmes]: That is correct.

[Mr. Shamoun]: Okay.

[Mr. Holmes]: And I just want to say it would probably be a new 

account that we would have control of so it wouldn’t be comingled with 

other client trust funds.

[Mr. Shamoun]: Well, I think it has to be a separate account, 

because I’m not going to be paying income tax on the interest that 

accrues on it.

[Mr. Holmes]: I agree.

[Mr. Shamoun]: And so it won’t be under my tax ID number.

[Court]: All right. Let’s move on.

[Mr. Shamoun]: Well, I need to know whose tax ID number it 

needs to be opened under, because then that’s going to be the reporting 

requirement for the IRS.

Who would you recommend?

4During the 2011 trial, the Fischer Parties were represented by Jonathan 

Cunningham and Gregory Shamoun, CTMI was represented by Andrew Turner, and 

Boozer and Raymond were represented by Holmes. 
6

[Mr. Holmes]: Your Honor, I don’t know exactly how to handle 

that.

[Court]: Whoever’s going to be benefitting from the numbers. I 

would assume ya’ll [sic] will be.

[Mr. Holmes]: Correct. Probably 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. Holmes]: Then they will pay the taxes on it, but I’m on the 

hook.

[Mr. Shamoun]: I agree with that. Okay.

[Mr. Turner]: I think [I] like that one too because I wasn’t on the 

hook.

[Mr. Shamoun]: But I want to make absolutely sure, guys, that we 

understand how when that money comes in, 15 percent of the gross 

receipts is put into that account.

Right Mr. Holmes?

[Mr. Holmes]: Correct.

[Mr. Shamoun]: And that money is not going to be used to pay 

Mr. Fischer, if [the revenue relating to the 2010 Adjustment] comes in, I 

don’t want to use that 15 percent. That comes off the top, irrespective

of anything do you . . . understand?

[Mr. Holmes]: That’s correct.

[Mr. Shamoun]: Is that what we agreed to?

[Mr. Holmes]: That’s correct.

[Mr. Shamoun]: Thank you. Go ahead.
7

[Mr. Cunningham]: Then upon the exhaustion of all appellate

rights by any party that relate to an appeal of the declar[a]tory judgment, 

which will be severed from the causes of action in this suit – in other 

words, separate from the agreed judgment the Court will sever the 

declaratory judgment action the defendants have asked for regarding the

issue of agreement to agree, and the Judge will issue a separate 

declar[a]tory judgment on that. Okay?

Which will also award fees regarding that declar[a]tory judgment, 

which will incur trial fees and appellate fees.

So then, upon the exhaustion of all appellate rights relating to that 

declar[a]tory judgment, if the declar[a]tory judgment of the trial Court is 

upheld, then Ray Fischer will receive payment of the 15 percent gross 

revenue that is being held in escrow. And 15 per – I mean, he will 

receive – he will be distributed that 15 percent of the gross revenue that 

was being held in escrow, okay. 100 percent of that.

. . . .

[Mr. Shamoun]: That concludes our settlement. I [w]ould like 

to – I would like to call my client.

[Mr. Cunningham]: Let me be sure and be clear on the record that 

what is – it’s agreed by the parties that what is being entered onto the 

record in this Rule 11 setting, does not contemplate the parties sitting 

down and executing any further settlement agreement to be written or 

agreed upon.

This is to be used as the settlement agreement, this transcript.

[Mr. Shamoun]: Is that correct?

[Mr. Cunningham]: For all purposes.

[Mr. Holmes]: Yes.

[Mr. Turner]: Yes.

[Mr. Shamoun]: Is that correct, Mr. Turner?
8

[Mr. Turner]: Agreed.5

B. The 192nd District Court Enters a Judgment Relating to the 2010 

Adjustment, the Dallas Court of Appeals Reverses, and the Texas 

Supreme Court Reverses.

In June 2011, the 192nd District Court of Dallas County entered judgment in 

the Fischer Parties’ favor regarding the 2010 Adjustment, declaring that the 2010 

Adjustment was not an unenforceable agreement to agree as CTMI had claimed.

CTMI appealed that judgment to the Dallas Court of Appeals, and in August 2013,

the Dallas Court of Appeals reversed the 192nd District Court, holding that “the 2010 

Adjustment was . . . an unenforceable agreement to agree.” CTMI, LLC v. Fischer, 

479 S.W.3d 279, 283 (Tex. App.—Dallas 2013), rev’d, 479 S.W.3d 231 (Tex. 2016). In 

January 2016, the Texas Supreme Court reversed the Dallas Court of Appeals, holding 

that “the 2010 [A]djustment [was] not an unenforceable agreement to agree.” Fischer, 

479 S.W.3d at 244. The Texas Supreme Court’s mandate issued on February 19, 

2016. 

C. Holmes Sets Up a CTMI Bank Account, CTMI Deposits Funds into that

Account, and Holmes Absconds with the Funds.

In October 2011—while the 192nd District Court’s final judgment was being 

appealed to the Dallas Court of Appeals—Holmes opened a Regions Bank account.

5Fischer then testified that he approved of the Settlement Agreement on behalf 

of himself and Corporate Tax Management, Inc. Raymond likewise testified that he 

approved of the Settlement Agreement, and Boozer testified that he approved of the 

Settlement Agreement on behalf of himself and CTMI. 
9

CTMI was listed as the owner of the account, although the address listed for CTMI 

was the address of Holmes’s law firm. According to a declaration made by Raymond,

one of CTMI’s owners, “[n]either CTMI nor any of its principals, agents or employees 

had any control” over the bank account, and Holmes was the “sole authorized 

signatory” on the account. Bank statements relating to the account were sent to 

“Thomas Wesley Holmes FBO CTMI LLC” at the address of Holmes’s law firm, and 

Regions Bank likewise issued 1099-INT forms to “Thomas Wesley Holmes FBO

CTMI LLC” at the address of Holmes’s law firm. 

Between October 2011 and December 2012—while the appeal was still 

pending in the Dallas Court of Appeals—CTMI deposited funds totaling $990,175.66 

into the Regions Bank account. Between June 2014 and December 2015—while the 

case was still pending before the Texas Supreme Court—Holmes absconded with the 

funds.

D. The CTMI Parties File the Present Lawsuit, the Trial Court Denies the 

Fischer Parties’ Motion to Transfer Venue, the Fischer Parties File a 

Counterclaim for Breach of Contract, and the Trial Court Enters a Final 

Judgment in the CTMI Parties’ Favor.

According to Raymond, the CTMI Parties discovered that Holmes had 

absconded with the funds sometime in early March 2016. A few days later, the CTMI 

Parties filed the present lawsuit in the 48th District Court of Tarrant County. The 

CTMI Parties sought a declaration that they had fulfilled their obligations under the 

Settlement Agreement and owed no further liability to the Fischer Parties under the 
10

Settlement Agreement.

6 The Fischer Parties filed a motion to transfer venue to Dallas 

County, and the trial court denied the motion. The Fischer Parties also filed a 

counterclaim against the CTMI Parties for, among other things, breach of the 

Settlement Agreement.

The Fischer Parties sought summary judgment on their breach-of-contract 

counterclaim, arguing that they had not received the funds due to them under the 

Settlement Agreement and had been damaged in the amount of $990,175.66. The 

trial court denied the Fischer Parties’ motion for summary judgment. 

The CTMI Parties filed three motions for summary judgment. In their first 

motion, they contended that they had fulfilled all their obligations under the 

Settlement Agreement and owed no further liability to the Fischer Parties. The trial

court granted the CTMI Parties’ first motion for summary judgment in part, finding 

that they had accurately calculated the amounts due under the 2010 Adjustment and 

had timely deposited payments totaling $990,175.66 into the Regions Bank account. 

The CTMI Parties later filed their second motion for summary judgment, arguing that 

because the Regions Bank account constituted an “escrow account,” they were 

entitled to summary judgment on the Fischer Parties’ breach-of-contract counterclaim

and entitled to summary judgment on certain affirmative defenses raised by the 

6The CTMI Parties (and later the Fischer Parties) also brought claims against 

Holmes and the law firm that had represented CTMI in the 192nd District Court. 

Those claims were later severed into a new case. 
11

Fischer Parties. The trial court granted the CTMI Parties’ second motion for 

summary judgment, finding, among other things, that the Settlement Agreement 

“created an escrow account.” The CTMI Parties later filed their third motion for 

summary judgment, contending that in light of the trial court’s previous summaryjudgment rulings, they were entitled to a declaration that they had fulfilled their 

obligations under the Settlement Agreement and owed no further liability to the 

Fischer Parties under the Settlement Agreement. The trial court granted the CTMI 

Parties’ third motion for summary judgment.

The trial court later incorporated its summary-judgment rulings into a final 

judgment. In the final judgment, the trial court declared that “[t]he Settlement 

Agreement created an escrow account” and that “the CTMI Parties have no further 

liability to the Fischer Parties . . . as it relates to any legally enforceable obligations

imposed upon the CTMI Parties by [the] Settlement Agreement, the CTMI Parties 

having performed and met all of their obligations under the Settlement Agreement.”

The trial court also awarded attorney’s fees in accordance with a Rule 11 agreement

made by the parties. This appeal ensued.

III. DISCUSSION

A. We Will Address the Fischer Parties’ Second Issue First Because It 

Provides the Greatest Relief.

In their first issue, the Fischer Parties argue that the trial court erred by denying 

their motion to transfer venue. As to that issue, the Fischer Parties ask that we
12

reverse and remand the case with instructions to transfer it to Dallas County. In their 

second issue, the Fischer Parties argue that the trial court erred by granting summary 

judgment in the CTMI Parties’ favor. As to that issue, the Fischer Parties ask that we 

reverse and render judgment in their favor.

When a party presents multiple grounds for reversal of a judgment on appeal, 

the appellate court should first address those grounds that would afford the party the 

greatest relief. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); Bradleys’ Elec., 

Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999). Therefore, we will 

address the Fischer Parties’ second issue first. See CMH Homes, 15 S.W.3d at 99

(declining to “reach the venue question, which if sustained would only result in a 

remand,” when a different issue entitled the appellant to rendition of judgment in its 

favor); Bradleys’ Elec., 995 S.W.2d at 677 (holding that court of appeals erred by 

remanding case on venue grounds when the appellant had also raised an issue upon 

which the court of appeals could have rendered judgment).

B. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). When both parties move for summary judgment 

and the trial court grants one motion and denies the other, the reviewing court should 

review both parties’ summary-judgment evidence and determine all questions 

presented. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 

(Tex. 2009). We should then render the judgment that the trial court should have 
13

rendered. See Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746, 753 (Tex. 

2009); Mann Frankfort, 289 S.W.3d at 848.

C. Did the Settlement Agreement Create an Escrow Agreement?

Through this appeal, we must construe whether the Settlement Agreement 

created an escrow agreement. The CTMI Parties argued at the trial level and now 

argue on appeal that the Settlement Agreement created a “valid [e]scrow [a]greement.”

According to the CTMI Parties, because the Settlement Agreement created an escrow 

agreement, their obligations and liability under the Settlement Agreement ceased when 

they deposited the $990,175.66 into the Regions Bank account. See Norman v. Wilson, 

41 S.W.2d 331, 332 (Tex. App.—Austin 1931, writ ref’d) (“When the bank accepted 

by written indorsement thereon the escrow agreement deposited with it, and which 

charged it with certain duties, it became the depository and trustee to carry out its 

terms, and if it improperly did so, would be liable to those injured thereby.”). In 

contrast, the Fischer Parties argued at the trial level and now argue on appeal that the 

Settlement Agreement did not create an escrow agreement. According to the Fischer 

Parties, because the Settlement Agreement did not create an escrow agreement, the 

CTMI Parties were not relieved of their obligations under the Settlement Agreement 

by merely depositing the $990,175.66 in the Regions Bank account, and as the Fischer 

Parties did not receive the $990,175.66, the CTMI Parties breached the Settlement 

Agreement. 
14

1. The Law

All parties agree that the Settlement Agreement was a Rule 11 agreement. See 

Tex. R. Civ. P. 11. As such, it was enforceable as a contract. Lane–Valente Indus. 

(Nat’l), Inc. v. J.P. Morgan Chase, N.A., 468 S.W.3d 200, 204 (Tex. App.—Houston 

[14th Dist.] 2015, no pet.). 

“We construe contracts ‘from a utilitarian standpoint bearing in mind the 

particular business activity sought to be served’ and ‘will avoid when possible and 

proper a construction which is unreasonable, inequitable, and oppressive.’” Frost Nat’l 

Bank v. L & F Dist., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (quoting Reilly v. Rangers 

Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)). When construing a contract, our 

primary concern is to ascertain the true intent of the parties as expressed in their 

contract. Chrysler Ins. Co. v. Greenspoint Dodge of Hous., Inc., 297 S.W.3d 248, 252 (Tex. 

2009); NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex. App.—Fort 

Worth 2007, no pet.). We must examine and consider the entire contract to

harmonize and give effect to all provisions so that none are rendered meaningless.

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652 (Tex. 1999); NP 

Anderson, 230 S.W.3d at 463. We presume that parties to a contract intend every 

clause to have some effect, and we give terms used in a contract their plain, ordinary, 

and generally accepted meaning unless the contract shows that the parties used them 

in a technical or different sense. FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., 
15

L.L.P., 301 S.W.3d 787, 794 (Tex. App.—Fort Worth 2009, pet. denied) (op. on 

reh’g).

Under Texas law, an escrow agreement is

a written instrument which by its terms imports a legal obligation, and 

which is deposited by the grantor, promisor, or obligor, or his agent, 

with a stranger or third party, to be kept by the depositary until the 

performance of a condition or the happening of a certain event, and

then to be delivered over to the grantee, promisee, or obligee.

Campbell v. Barber, 272 S.W.2d 750, 753 (Tex. App.—Fort Worth 1954, writ ref’d 

n.r.e.); see Escrow, Black’s Law Dictionary (11th ed. 2019) (defining “escrow” as a 

“legal document or property delivered by a promisor to a third party to be held by the 

third party for a given amount of time or until the occurrence of a condition, at which 

time the third party is to hand over the document or property to the promisee”).

Cases defining escrow agreements highlight that escrow involves deposits with 

neutral third parties who are strangers to the contract. See, e.g., Williams v. Land Title 

Co. of Dall., No. 05-96-00039-CV, 1997 WL 196345, at *5 (Tex. App.—Dallas Apr. 23, 

1997, no pet.) (not designated for publication) (“To create an escrow, the parties to an 

underlying transaction must deposit instruments or funds with a neutral third party.”); 

Bell v. Safeco Title Ins. Co., 830 S.W.2d 157, 160 (Tex. App.—Dallas 1992, writ denied) 

(explaining that for escrow agreements, “the grantor deposits the funds or property 

with a neutral third party”); Campbell, 272 S.W.2d at 753 (stating that escrow is a 

written instrument deposited with “a stranger or third party”). Indeed, an escrow 

cannot typically be deposited with one of the parties to the escrow agreement, nor 
16

with the agent or attorney of one of the parties to the agreement. See Bradley v. Howell,

126 S.W.2d 547, 564 (Tex. App.—Fort Worth 1939, writ dism’d judgm’t cor.) (“An 

escrow deposit cannot be made with one of the parties to the instrument, or his 

agent.”); Smith v. Daniel, 288 S.W. 528, 531 (Tex. App.—Beaumont 1926, writ dism’d 

w.o.j.) (“A deed is not in escrow while deposited with one of the parties, nor with his 

agent or attorney.”); see also Johnson v. Freytag, 338 S.W.2d 257, 262 (Tex. App.—

Beaumont 1960, writ ref’d n.r.e.) (stating that “[a]n escrow depositary should be a

stranger or third party” but recognizing that there may be circumstances where an 

agent of or party to an instrument may be a depositary). 

“The purpose of requiring a promisor to place [an item] in escrow is to protect

the promisee by having a neutral third party hold the item until the happening of a 

contingency or performance of a condition, and then deliver that item to the 

promisee.” Vector Indus., Inc. v. Dupre, 793 S.W.2d 97, 101 (Tex. App.—Dallas 1990, 

no writ). An escrow agent owes fiduciary duties to the parties of the escrow 

agreement, including the duty of loyalty, the duty to make full disclosure, and the duty 

to exercise a high degree of care to conserve the money placed in escrow and pay it 

only to those persons entitled to receive it. Trahan v. Lone Star Title Co. of El Paso, 

247 S.W.3d 269, 287 (Tex. App.—El Paso 2007, pet. denied); Williams, 1997 WL 

196345, at *5.
17

2. Application of the Law to the Facts

We begin our analysis by examining whether Holmes was a neutral third party 

who was a stranger to the Settlement Agreement. See Williams, 1997 WL 196345, at 

*5; Bell, 830 S.W.2d at 160; Campbell, 272 S.W.2d at 753. The summary-judgment 

record reflects that Holmes was an attorney representing Boozer and Raymond at trial 

in the 192nd District Court, that the Settlement Agreement was entered at trial, that 

Boozer and Raymond were parties to the Settlement Agreement, that Holmes spoke 

on behalf of Boozer and Raymond when the parties entered the Settlement 

Agreement, and that Holmes represented Boozer and Raymond in the appeal before 

the Dallas Court of Appeals where the parties were substantively arguing over who 

was entitled to the funds placed in the Regions Bank account. See CTMI, 479 S.W.3d 

at 280. Based on that record, we cannot say that Holmes was a neutral third party 

who was a stranger to the Settlement Agreement.7 See Williams, 1997 WL 196345, at 

*5; Bell, 830 S.W.2d at 160; Campbell, 272 S.W.2d at 753. 

The CTMI Parties argue that even if Holmes was not a neutral third party who 

was a stranger to the Settlement Agreement, that did not necessarily prevent him from 

7

In their brief, the CTMI Parties place a great deal of emphasis on the fact that 

Holmes represented Boozer and Raymond and not CTMI. While that fact may be 

true, it does not transform Holmes into a neutral third party who was a stranger to the 

Settlement Agreement. As stated above, Boozer and Raymond were parties to the

Settlement Agreement, and Holmes represented them at trial in the 192nd District

Court, represented them while the Settlement Agreement was being entered, and 

represented them on appeal before the Dallas Court of Appeals.
18

serving as an escrow agent, particularly where the escrow agreement was made in 

open court. But just because parties may agree that a party or agent of a party may be 

a depositary to an escrow agreement does not necessarily mean that the Settlement 

Agreement was an escrow agreement. See Johnson, 338 S.W.2d at 262 (“We do not 

mean to say that under no circumstances may an agent of or party to an instrument be 

a depositary, but in the absence of a clearly expressed mutual agreement of both 

parties to the instrument to that effect it will not be implied . . . .”).

And, here, if we are to harmonize and give effect to all provisions of the 

Settlement Agreement so that none are rendered meaningless, we must construe the 

Settlement Agreement to be something other than an escrow agreement. First, the 

Settlement Agreement establishes that the contemplated bank account was to be a 

CTMI account—not Holmes’s account—and the summary-judgment evidence 

reflects that the Regions Bank account was indeed a CTMI account. Second, the 

Settlement Agreement establishes that CTMI was to pay taxes on the account, and the 

summary-judgment evidence reflects that Regions Bank issued 1099-INT forms to

“Thomas Wesley Holmes FBO CTMI LLC.”

8 Third, and perhaps most critically, the 

Settlement Agreement states in two places that Fischer “will receive” payment of the 

deposited funds. If we are to construe the Settlement Agreement as an escrow 

8

In their brief, the CTMI Parties emphasize that the Settlement Agreement 

stated that Holmes would be “on the hook.” But just because Holmes stated that he 

would be “on the hook,” does not mean that CTMI would be “off the hook” if 

Fischer did not receive the payments contemplated under the Settlement Agreement.
19

agreement, then those provisions have no meaning because Fischer did not receive 

payment of the deposited funds.9

Based on our review of the summary-judgment record, we hold that the unique 

Settlement Agreement before us was not an escrow agreement but was simply a 

Rule 11 agreement—a contract—entered between the parties. Accordingly, we hold 

that the trial court erred by declaring that the Settlement Agreement was an escrow 

agreement and erred by declaring that the CTMI Parties had fulfilled their obligations

under the Settlement Agreement and owed no further liability to the Fischer Parties 

under the Settlement Agreement. We further hold that the summary-judgment 

evidence establishes that the CTMI Parties breached the Settlement Agreement by 

failing to pay Fischer the amounts due under it.

10

 See Rice v. Metro. Life Ins. Co., 

324 S.W.3d 660, 666 (Tex. App.—Fort Worth 2010, no pet.) (setting forth elements 

of a breach-of-contract claim). Accordingly, we sustain the Fischer Parties’ second 

9While the term “escrow” was used five times in the Settlement Agreement, a 

party’s mere use of the term “escrow” does not transform an agreement into an 

escrow agreement. Cf. Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 

429, 439 n.7 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“In this case, the 

Trusts point to a letter from one of Atkins’s attorneys which purports to characterize

Porter & Hedges as a ‘stakeholder’ of the settlement funds. This type of unilateral 

characterization, alone, is not sufficient to create a fiduciary duty.”).

10As noted by the Fischer Parties in their reply brief, “Fischer never contested 

whether [the CTMI Parties] had properly determined the amount owed under the

Settlement Agreement; rather, Fischer’s only dispute with [the CTMI Parties] was 

whether Fischer actually received those amounts, as required by the Settlement 

Agreement.”
20

issue, reverse the trial court’s final judgment, and render judgment ordering the CTMI 

Parties to pay Fischer $990,175.66.

11

 

3. Award of Attorney’s Fees

Prior to the trial court’s entering its final judgment, the parties entered a 

Rule 11 agreement concerning attorney’s fees. Pursuant to that agreement, the parties 

agreed that if the Fischer Parties ultimately prevailed in the lawsuit, they were to

recover from the CTMI Parties $450,000 as their reasonable and necessary attorney’s 

fees for work done at the trial level, an additional $60,000 if they were successful 

following an appeal to the court of appeals, an additional $10,000 if they were 

successful on appeal following a petition of review to the Texas Supreme Court, and 

an additional $30,000 if they were successful on appeal following a grant of a petition 

of review by the Texas Supreme Court. The Rule 11 agreement provided that in the 

event the CTMI Parties ultimately prevailed, they would be entitled to recover their 

reasonable and necessary attorney’s fees for identical amounts as those to be awarded 

to the Fischer Parties if they prevailed.

In the trial court’s final judgment, the trial court awarded the CTMI Parties 

their attorney’s fees in accordance with the Rule 11 agreement. Because the Fischer 

Parties have ultimately prevailed on this appeal, we reverse the trial court’s award of 

11Because we have sustained the Fischer Parties’ second issue, we need not 

decide their first issue challenging the trial court’s denial of their motion to transfer 

venue. See Tex. R. App. P. 47.1.
21

attorney’s fees to the CTMI Parties, and we order that the Fischer Parties recover 

from the CTMI Parties $450,000 for the Fischer Parties’ reasonable and necessary 

attorney’s fees for work done at the trial court level, and we further order that the 

Fischer Parties recover from the CTMI Parties $60,000 for the Fischer Parties’

reasonable and necessary attorney’s fees for work done at the court of appeals level. 

We further order that if the Fischer Parties prevail in an appeal of this court’s 

judgment to the Texas Supreme Court, the Fischer Parties will additionally recover 

from the CTMI Parties $10,000 for the Fischer Parties’ reasonable and necessary 

attorney’s fees if the case is resolved on a petition for review. And in the event the 

petition for review is granted by the Texas Supreme Court and the Fischer Parties 

ultimately prevail, the Fischer Parties will recover from the CTMI Parties both the 

$10,000 and an additional $30,000 for the Fischer Parties’ reasonable and necessary

attorney’s fees.

4. Pre- and Post-Judgment Interest

In their motion for rehearing, the Fischer Parties have requested that we award 

them pre- and post-judgment interest.12 The two sources of authority for an award of 

12The CTMI Parties argue that the Fischer Parties have waived any entitlement 

to pre- and post-judgment interest by not raising a complaint regarding pre- and postjudgment interest in their appellate brief. We disagree. The Fischer Parties requested

in both their live counterclaim and in their motion for summary judgment that the 

trial court award them pre- and post-judgment interest. And in their appellate brief,

the Fischer Parties requested that we reverse the trial court’s judgment and render an 

award in their favor. We do not think that the Fischer Parties were required to 

complain about pre- and post-judgment interest in their appellate brief when the trial 
22

pre-judgment interest are: (1) an enabling statute and (2) legal principles of equity. 

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, 486–87 (Tex. App.—Fort Worth 2004, no pet.) 

(op. on reh’g). The enabling statute, Section 304.104 of the Finance Code, only 

applies to wrongful-death, personal-injury, and property-damage cases. Asta Partners, 

2021 WL 5133888, at *13; Siam v. Mountain Vista 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 dealing with pre-judgment interest “applies only to a wrongful[-]death, 

personal[-]injury, or property[-]damage case”).

court had not awarded them any amount by which interest could accrue, and we thus 

hold that the Fischer Parties have not waived their entitlement to pre- and postjudgment interest. See Tex. R. App. P. 38.1(f) (“The statement of an issue or point 

will be treated as covering every subsidiary question that is fairly included.”); DeGroot 

v. DeGroot, 369 S.W.3d 918, 926–27 (Tex. App.—Dallas 2012, no pet.) (“Postjudgment interest is recoverable even if it is not specifically awarded in [a trial court’s] 

judgment.”); Lee v. Lee, 47 S.W.3d 767, 799 (Tex. App.—Houston [14th Dist.] 2001, 

pet. denied) (“An award of prejudgment interest . . . is an automatic legal consequence 

since appellants pled for prejudgment interest. Neither the award of prejudgment

interest, nor the accrual date of this interest, required a point of error for 

preservation.”); see also Hernandez v. LaBella, No. 14-08-00327-CV, 2010 WL 431253, at 

*5 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op.) (reversing 

judgment of trial court and rendering judgment that appellees breached a settlement 

agreement and that appellant recover $100,000, but remanding to trial court for 

further proceedings to determine appellant’s entitlement to pre-judgment interest).
23

In this breach-of-contract case, no enabling statute controls, and, thus, the only 

potential source for an award of pre-judgment interest is “general principles of 

equity.” Asta Partners, 2021 WL 5133888, at *13. Where, as here, no enabling statute 

controls, the decision to award pre-judgment interest is left to the sound discretion of 

the trial court, which should rely upon equitable principles and public policy in 

making its decision. Id.; Whitlock v. CSI Risk Mgmt., LLC, No. 05-19-01297-CV, 2021 

WL 1712215, at *15 (Tex. App.—Dallas Apr. 30, 2021, pet. denied) (mem. op.); Henry 

v. Masson, 453 S.W.3d 43, 49 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

Because the trial court, rather than this court, has the ultimate discretion to 

award pre-judgment interest, we decline the Fischer Parties’ invitation to award them

pre-judgment interest outright, and we instead remand the case to the trial court to 

determine the Fischer Parties’ entitlement to pre-judgment interest and to calculate

the amount of pre-judgment interest to be awarded, if any.13 See Hernandez, 2010 WL 

431253, 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 (providing postjudgment interest rate).

13Because we remand this determination to the trial court, we are only granting 

the Fischer Parties’ motion for rehearing in part.

14We note that “[p]ost-judgment interest is mandated by section 304.001 of the 

Texas Finance Code, and is recoverable whether or not specifically awarded in the 

judgment.” SAP Trading Inc. v. Sohani, No. 14-06-00641-CV, 2007 WL 1599719, at *2 

(Tex. App.—Houston [14th Dist.] June 5, 2007, no pet.) (mem. op.).
24

IV. CONCLUSION

Having sustained the Fischer Parties’ second issue and needing not decide the 

Fischer Parties’ first issue, we reverse the trial court’s final judgment and render 

judgment awarding Fischer $990,175.66 on his breach-of-contract claim and awarding 

attorney’s fees as set forth above. We remand the case to the trial court for further

proceedings to determine the Fischer Parties’ entitlement 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, at *5.

/s/ Dana Womack

Dana Womack

Justice

Delivered: December 16, 2021