Opinion filed August 31, 2011

In The

Eleventh Court of Appeals 

__________

No. 11-10-00016-CV

__________

EDITH FONTENOT, Appellant 

V.

MARGARET HANUS, MICHAEL HANUS, 

AND WILLIAM S. CARVER, III, Appellees

On Appeal from the 353rd District Court

Travis County, Texas

Trial Court Cause No. D-1-GN-06-002652

M E M O R A N D U M O P I N I O N

This is an appeal from an order granting summary judgment. It arises from a claim 

seeking enforcement of a mediated settlement agreement by specific performance. In granting 

the summary judgment, the trial court determined that the settlement agreement is enforceable. 

We affirm.

Background Facts

Appellant, Edith Fontenot, instituted the underlying action in 2006 by filing a petition for 

declaratory judgment seeking to establish a prescriptive easement across property owned by 
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appellees, Margaret Hanus, Michael Hanus, and William S. Carver, III. Appellant alleged the 

right to use an “access road that runs from the (now named) Union Lee Church Road, between 

portions of Defendants Hanus’ property and Defendant Carver’s property to the entrance of 

Plaintiff’s property.”

The parties subsequently engaged in mediation with the Dispute Resolution Center on 

July 16, 2009, in an effort to settle the suit. At the conclusion of the mediation, the parties 

executed a written settlement agreement that stated as follows:

The matter of Edith Fontenot and William Carver and Michael Hanus and 

Margaret Hanus was mediated on July 16, 2009, and the parties agreed to the 

following:

On July 22, 2009, William Carver and Michael and Margret [sic]

Hanus will pay Edith Fontenot $10,000 and William Carver will 

quitclaim to Edith Fontenot his interest in the Second Tract as 

described in Vol. 631, Page 89 recorded in the Travis County deed 

records (the “Second Tract”), Edith Fontenot will quitclaim any 

and all alleged interest over any property owned by William 

Carver and Michael and Margret [sic] Hanus, and the parties will 

sign a joint notice to dismiss the lawsuit. The documents will be 

prepared by Michael Hemer. William Carver will remove his 

fence across the Second Tract no later than August 19, 2009.

Signed this 16 day of July, 2009

[signed by parties]

Appellees subsequently filed the mediated settlement agreement as a Rule 11 Agreement. 

TEX. R. CIV. P. 11. 

Appellant informed appellees’ attorney on July 23, 2009, that she would not be abiding 

by the terms of the settlement agreement. Based upon this information, appellees filed a 

counterclaim on July 30, 2009, seeking enforcement of the settlement agreement by specific 

performance. Appellees additionally filed a motion for summary judgment on their counterclaim 

on October 18, 2009. In her pro se response to the motion, appellant asserted that the mediation 

agreement is ineffectual under the statute of frauds because it does not contain an adequate 

property description. See TEX. BUS. & COM. CODE ANN. § 26.01 (Vernon 2009). Appellant 

bases her contention on the provision of the settlement agreement requiring her to “quitclaim any 
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and all alleged interest over any property owned by William Carver and Michael and Margret 

[sic] Hanus.” 

The trial court considered the motion for summary judgment at a hearing conducted on 

November 10, 2009. The court granted the motion by requiring specific performance of the 

settlement agreement. Specifically, the court ordered appellant to execute and deliver quitclaim 

deeds attached as exhibits to the judgment.

Analysis

Appellant alleges in two issues that the trial court erred in granting appellees’ motion for 

summary judgment. Her contentions on appeal are limited to her assertion that the settlement 

agreement does not contain a sufficient property description to satisfy the statute of frauds. 

We review the trial court’s summary judgment de novo. Valence Operating Co. v. 

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 

S.W.3d 211, 215 (Tex. 2003). A trial court must grant a traditional motion for summary 

judgment if the moving party establishes that no genuine issue of material fact exists and that the 

movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v. 

Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant establishes a right to summary 

judgment, the nonmovant must come forward with evidence or law that precludes summary 

judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979).

When reviewing a traditional summary judgment, the appellate court considers all the evidence 

and takes as true evidence favorable to the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 

S.W.2d 546, 548-49 (Tex. 1985). The appellate court “must consider whether reasonable and 

fair-minded jurors could differ in their conclusions in light of all of the evidence presented” and 

may not ignore “undisputed evidence in the record that cannot be disregarded.” Goodyear Tire & 

Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).

If parties reach a settlement agreement and execute a written agreement disposing of the 

dispute, the agreement is enforceable in the same manner as any other written contract. TEX.

CIV. PRAC. & REM. CODE ANN. § 154.071(a) (Vernon 2011). After a settlement agreement is 

accepted, enforcement is by a suit upon the contract, either for breach or for specific 

performance. Stevens v. Snyder, 874 S.W.2d 241, 243 (Tex. App.—Dallas 1994, writ denied) 

(“Once a party accepts a settlement offer, he cannot withdraw from the agreement arbitrarily.”). 
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To be entitled to specific performance, an agreement must be valid and enforceable. Abraham 

Inv. Co. v. Payne Ranch, Inc., 968 S.W.2d 518, 527 (Tex. App.—Amarillo 1998, pet. denied).

Whether an agreement falls within the statute of frauds is a question of law. Fuqua v. 

Oncor Elec. Delivery Co., 315 S.W.3d 552, 555 (Tex. App.—Eastland 2010, pet. denied). By its 

express terms, the statute of frauds applies to a contract for the sale of real property. TEX. BUS.

& COM. CODE ANN. § 26.01(b)(4) (Vernon 2009). We conclude that the settlement agreement at 

issue in this appeal is subject to the statute of frauds because it relates to the conveyance of real 

property interests in two material respects. First, it pertains to the conveyance of the “Second 

Tract” to appellant. Second, it effectively surrenders appellant’s claimed prescriptive easement 

across appellees’ property. See Fuqua, 315 S.W.3d at 555 (An express easement is an interest in 

land that is subject to the statute of frauds.). 

The conveyance in the settlement agreement that appellant attacks is her relinquishment 

of the prescriptive easement she claimed in the lawsuit. For a conveyance or contract of sale to 

meet the requirements of the statute of frauds, it must, insofar as the property description is 

concerned, furnish within itself or by reference to other identified writings then in existence the 

means or data by which the particular land to be conveyed may be identified with specific 

certainty. Jones v. Kelley, 614 S.W.2d 95, 99 (Tex. 1981); Morrow v. Shotwell, 477 S.W.2d 538, 

539 (Tex. 1972); Wilson v. Fisher, 188 S.W.2d 150, 152 (Tex. 1945). We direct our attention to 

the “other writings” exception. 

The settlement agreement at issue is a product of the litigation between the parties. The 

settlement agreement expressly acknowledges this fact by its opening provision wherein it states,

“The matter of Edith Fontenot and William Carver and Michael Hanus and Margaret Hanus was

mediated on July 16, 2009, and the parties agreed to the following: . . .” Accordingly, the 

settlement agreement obviously references the other documents filed in connection with the 

litigation. These documents include appellant’s pleadings wherein she asserted a prescriptive 

easement across the tracts owned by appellees. In support of this contention, she attached 

various deeds to her original petition, including the deed conveying the Hanuses’ property to 

them and the deed conveying Carver’s property to him. These deeds contained the property 

descriptions for appellees’ property and appellant’s property. Accordingly, the settlement 

agreement complied with the statute of frauds because it referenced existing documents that 
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provided the means by which to identify the particular land to be conveyed with specific 

certainty. Appellant’s two issues on appeal are overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

August 31, 2011

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.