NUMBER 13-15-00175-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

DOYLE WELLS, SEA OAT

INVESTMENTS I, L.P.

F/K/A LAMKIN PROPERTIES

LIMITED PARTNERSHIP, AND

QUIXOTE DUNES, INC., Appellants,

v.

TEXAS DEPARTMENT OF

TRANSPORTATION AND

TOWN OF SOUTH PADRE ISLAND, Appellees.

 

On appeal from the 138th District Court

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Hinojosa

Memorandum Opinion by Justice Benavides

By two issues, which we treat as one, appellants Doyle Wells, Sea Oats 
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Investments I, L.P., formerly known as Lamkin Properties Partnership, and Quixote 

Dunes, Inc. (collectively “Wells”) assert that the trial court erred by granting summary 

judgment in favor of appellee and cross-appellant the City of South Padre Island, Texas 

(“SPI”) regarding Wells’ inverse condemnation lawsuit against SPI. 

By one issue on cross appeal, SPI asserts that the trial court erred in denying its 

motion for summary judgment on its cross-claim to enforce a settlement agreement with 

Wells.1

We reverse and render in part and remand in part.

I. BACKGROUND

Wells purportedly owns various properties along Park Road 100 on South Padre 

Island. The Texas Department of Transporation (TxDOT) maintains Park Road 100, 

including keeping the roadway clear of sand. In 2008, Wells filed suit against SPI and 

TxDOT alleging that these entities unlawfully took sand from Wells’ property located on 

an easement next to Park Road 100, and transferred the sand to SPI’s beaches, which 

amounted to an unlawful and unconstitutional taking of Wells’ property. 

SPI denied Wells’ allegations by asserting that SPI “merely provided, through a 

subcontractor, the trucks necessary to transport the sand that TxDOT removed from the 

[Park Road 100] right of way” by placing the sand on its beaches as part of a beach renourishment program. SPI also filed a traditional motion for summary judgment as well 

as a no-evidence motion for summary judgment against Wells.

 

1 Because we sustain SPI’s issue on cross-appeal, and because SPI’s cross-appeal is dispositive 

to this appeal, we need not address Wells’ issue regarding the trial court’s granting of the takings-claim 

summary judgment in SPI’s favor. See TEX. R. APP. P. 47.1.
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A. Takings Claim 

In its traditional motion, SPI alleged that the summary judgment evidence 

conclusively showed: (1) no intentional action on SPI’s part that resulted in the taking of 

Wells’ property; (2) no causal connection between SPI’s actions and the alleged taking; 

(3) SPI is not a party to the roadway easement in dispute, is more akin to a contractor, 

and cannot be held to a higher standard than that of a private contractor. In its noevidence motion, SPI argued that Wells could not provide any evidence to establish any 

element of his takings claim. 

In response to these motions, Wells filed affidavits and attached exhibits to these 

affidavits in support of his opposition to SPI’s motions for summary judgment. 

Subsequently, SPI objected to the trial court’s consideration of these affidavits on various 

evidentiary grounds, including that the statements made in the affidavits were not based 

on personal knowledge, the statements made were conclusory, and some statements 

constituted hearsay. 

On June 30, 2014, after taking SPI’s motions for summary judgment under 

advisement, the trial court sustained SPI’s objections to Wells’ affidavit and granted SPI’s 

traditional motion for summary judgment. On the same day it granted summary 

judgment in favor of SPI, and while the order granting summary judgment remained 

interlocutory, the trial court ordered all parties (Wells, TxDOT, and SPI) to mediation. 

On August 7, 2014, the parties mediated the case, and all parties settled. 

Specifically, SPI settled with Wells for $10,000, to be paid to Wells’ attorney, Larry 
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Polsky’s trust account, in exchange for Wells’ dismissal of this lawsuit with prejudice.2 

The mediated settlement agreement (“MSA”) is signed by Wells, Polsky, and SPI’s 

attorney and was filed with the trial court on September 2, 2014. SPI’s attorney testified 

by affidavit that he tendered a $10,000 check to Polsky’s law office pursuant to the MSA.

On September 4, 2014, Wells filed a notice withdrawing his consent to the MSA 

with SPI and TxDOT because his signature “was not a knowing and willful consent [to the 

MSA] but the result of undue influence and pressure from my attorney at the time, 

[Polsky].” Wells further advised the trial court that he had terminated Polsky’s services. 

That same day, Polsky filed a motion to withdraw and also requested that the trial court 

allow him to impose a lien on Wells’ settlement for his services. The trial court 

subsequently granted Polsky’s motion to withdraw.

B. Mediated Settlement Agreement 

On September 25, 2014, SPI filed a counter claim against Wells for breach of 

contract related to his withdrawal of consent to the MSA. On October 13, 2014, SPI filed 

a motion for summary judgment to enforce its mediated settlement agreement with Wells. 

SPI asserted that it conclusively established the elements that Wells breached the 

settlement agreement. In support of its motion for summary judgment, SPI attached: (1) 

the August 7, 2014 settlement agreement filed with the trial court; (2) an affidavit from 

SPI’s attorney Paul Y. Cunningham, Jr. that outlined his role and work on this case; (3) a 

copy of the check paid to Wells’ attorney, Polsky, following the mediation; (4) various 

billing statements from outside counsel retained by SPI for work on this case; (5) copies 

 

2 TxDOT settled with Wells in a separate agreement for $45,000.
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of the agreement withdrawals filed by Wells, as well as representatives of Sea Oats 

Investments I. and Quixote Dunes; and (6) the deposition transcript of Ronald Hitchon, 

representative of Quixote Dunes. 

On November 14, 2014, Wells filed a response to the City’s motion for summary 

judgment by asserting that the contract is unenforceable for a number of reasons, 

including: (1) the MSA was reached “under the threat of and duress of SPI’s Motion to 

Dismiss, filed immediately prior to the mediation of this matter in August” related to the 

ownership of the land in question from which the sand was taken; and (2) the MSA does 

not mention the owner of the subject property, and thus, it lacks all essential and material 

terms to be an enforceable contract. In support of this response, Wells attached a copy 

of the MSA, as well as a post-MSA email exchange between Wells and Polsky regarding 

a dispute of the ownership of the land and the easements at issue in this case. Wells 

also attached an affidavit to his response which stated that he first learned of “TxDOT’s” 

position at the August 7, 2014 mediation that it actually owned the property at issue.3 

Wells further stated in his affidavit that at the time of the mediation, Wells “did not know 

[Polsky] had a limited knowledge of property law,” and “[t]his fact alone would have 

caused me to not agree to anything.” Wells further asserted that he “did not know what 

[he] was agreeing to and it would have made a difference . . . at the mediation because 

[he] would not have signed had [he] known this fact.” Finally, Wells alleged that Polsky 

“had a vested interest in TxDOT winning their Motion to Dismiss against [him]” because 

 

3 Although Wells’ response to SPI’s motion for summary judgment asserts that SPI contested 

ownership of the easements at mediation, Wells’ affidavit mentions only TxDOT’s position that it owned the 

property at issue. 
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Polsky worked on an unrelated case that took a similar position as TxDOT.

On March 24, 2015, the trial court denied SPI’s motion for summary judgment to 

enforce the settlement agreement. That same day, the trial court granted SPI’s motion 

to sever Wells’ lawsuit against it. This appeal and cross-appeal followed.

II. MEDIATED SETTLEMENT AGREEMENT

By its sole issue on cross-appeal, SPI asserts that the trial court erred in denying 

its summary judgment to enforce its MSA with Wells.

A. Standard of Review 

We review summary judgments de novo. Merriman v. XTO Energy, Inc., 407 

S.W.3d 244, 248 (Tex. 2013); Nalle Plastics Family L.P. v. Porter, Rogers, Dahlman & 

Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet. denied). We 

take as true all evidence favorable to the non-movant and indulge every reasonable 

inference and resolve any doubts in the non-movant's favor. Joe v. Two Thirty Nine Joint 

Venture, 145 S.W.3d 150, 157 (Tex. 2004). 

In advancing a traditional motion for summary judgment, the movant has the 

burden to show there is no genuine issue of material fact, and it is entitled to judgment as 

a matter of law on the issues expressly presented to the trial court by written motion, 

answer, or other response. TEX. R. CIV. P. 166a(c). 

B. Discussion

SPI argues that it established its right to enforce the MSA as a matter of law. We 

agree. 

To prevail on a breach of contract claim, the plaintiff must prove (1) a valid contract; 

(2) the plaintiff performed or tendered performance; (3) the defendant breached the 
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contract; and (4) the plaintiff was damaged as a result of the breach. Keszler v. Mem. 

Med. Ctr. of E. Tex., 105 S.W.3d 122, 128 (Tex. App.—Corpus Christi 2003, no pet.). In 

order to form a valid and binding contract, there must be (1) an offer; (2) acceptance in 

strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s 

consent to the terms; and (5) execution and delivery of the contract with the intent that it 

be mutual and binding. Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App.—Tyler 

2004, pet. denied). Lastly, consideration is a fundamental element of a valid enforceable 

contract. Id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 154.071(a) (“If the parties 

reach a settlement and execute a written agreement disposing of the dispute, the 

agreement is enforceable in the same manner as any other written contract.”).

Here, SPI produced conclusive evidence to establish a valid contract. The 

evidence shows a valid and binding mediated settlement agreement between SPI and 

Wells. In relevant part, the terms of the MSA state that in consideration of $10,000 paid 

by SPI to Wells within twenty-one days of August 7, 2014, Wells agreed to execute a full 

and final release and indemnity agreement in SPI’s favor, and that Wells will dismiss SPI 

from its lawsuit against it with prejudice. Furthermore, the MSA states that if it is filed 

with the trial court clerk, it “shall be enforceable as a Rule 11 Agreement pursuant to Rule 

11, Texas Rules of Civil Procedure,” but if it is not, it is enforceable pursuant to section 

154.071 of the Texas Civil Practice and Remedies Code. See TEX. R. CIV. P. 11; TEX.

CIV. PRAC. & REM. CODE ANN. § 154.071 (West, Westlaw through 2015 R.S.) (Effect of 

Written Settlement Agreement). Additionally, the MSA contains a handwritten term that 

states: “Consideration to be paid to/thru the trust (IOLTA) account of Attorney Larry M. 

Polsky.” Finally, the MSA is signed by Wells, Polsky (as attorney and on behalf of Sea 
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Oats Investments I, L.P. and Quixote Dunes, Inc.), and Cunningham, as SPI’s attorney. 

The MSA was filed with the trial court clerk on September 2, 2014. Thus, the MSA is 

undisputedly valid and enforceable under rule of civil procedure 11. 

However, Wells raised two affirmative defenses to attack the MSA’s validity as a 

matter of law. First, Wells argues that SPI placed ownership of the disputed property at 

issue in this case, and because the MSA “does not contain a disposition of the ownership 

of the subject property, an essential term,” the contract is unenforceable. We disagree. 

The record before this Court in this cause is devoid of SPI placing the ownership of the 

disputed property where the sand was located at issue. Additionally, we note that Wells’ 

affidavit in support of this contention places the ownership issue solely in the hands of 

TxDOT—not SPI. Accordingly, this argument fails as a matter of law. 

Secondly, Wells asserts that due to various failures of its counsel, it did not consent 

to the terms of the MSA. Again, we disagree. To be sure, in order for a valid contract 

to exist, each party must consent to the terms of an agreement. See Critchfield, 151 

S.W.3d at 233. However, in this case, Wells makes conclusory allegations in his affidavit 

that his attorney had “limited knowledge in property law” and as a result, Wells did not 

know what he was agreeing to in the MSA. Regardless of validity of such allegations 

against Polsky, the essential terms in this MSA were simple: SPI agreed to pay Wells 

$10,000 to end his litigation against it. Nothing in the MSA or the record shows that any 

issue of property ownership was in dispute at the time the MSA was entered into. 

Accordingly, this argument also fails as a matter of law. 

In addition to proving as a matter of law that a valid contract existed between SPI 

and Wells, SPI also conclusively established that: (1) it tendered performance by 
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delivering Polsky at $10,000 check within the terms of the MSA; (2) Wells breached the 

MSA by withdrawing his consent two days after the MSA was filed with the trial court; and 

(3) SPI suffered damages as a result of Wells’ post-mediation rejection of the MSA by 

having to incur further costs related to this breach. See Keszler, 105 S.W.3d at 128. 

Therefore, we hold that the trial court erred by denying SPI’s motion for summary 

judgment to enforce its MSA with Wells. We sustain SPI’s issue on cross-appeal. 

III. CONCLUSION

We reverse the trial court’s denial of SPI’s motion for summary judgment to enforce 

its mediated settlement agreement with Wells and render the motion granted. We 

remand the case to the trial court for further proceedings consistent with this opinion.

GINA M. BENAVIDES,

Justice

Delivered and filed the

2nd day of February, 2017.