1 

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00061-CV 

________________

ARMANDO VELARDEZ, Appellant

V.

CARLOS E. PARRA JR., Appellee

________________________________________________________________________ 

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Cause No. 21-03-04078-CV

________________________________________________________________________ 

MEMORANDUM OPINION

Armando Velardez appeals the trial court’s Order Dismissing Case for want 

of jurisdiction. Velardez sued Parra for breach of and to enforce a mediated 

settlement agreement from a prior lawsuit between the parties, together with an 

associated maintenance agreement. Parra answered and filed a Motion to Dismiss 

Based Upon Res Judicata. After a hearing, the trial court found that all issues 

regarding a 2018 breach of contract lawsuit between the same parties were resolved 
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by final judgment after a bench trial in the prior lawsuit and the court dismissed the 

second lawsuit for want of jurisdiction. On appeal, Velardez argues the trial court 

erred by dismissing the subsequent underlying lawsuit because Parra breached the 

terms of a Mediated Settlement Agreement (MSA) and an associated Two Year 

Initial Maintenance Contract entered between the parties during the pendency of the 

first lawsuit and his claims for breach of the terms of the MSA, including the separate 

warranty agreement, were not litigated in the first lawsuit. The trial court entered an 

Order Dismissing Case for want of jurisdiction. After review of the record, we hold 

the trial court has subject matter jurisdiction over the underlying lawsuit and 

therefore, we reverse the trial court’s order and reinstate the second lawsuit.

Background

In August 2017, Velardez hired Parra by written contract to install a septic 

system at his property in Montgomery County. According to Velardez, a permit was 

issued by the Montgomery County Health Department, but Parra did not properly 

install the septic system and sewage leaked under Velardez’s home. Velardez sent 

Parra notice via certified mail, but Parra did not correct the problems. Subsequently, 

Velardez was issued a citation by the Montgomery County Health Department for 

the faulty septic system.
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First Lawsuit

In November 2018, Velardez sued Parra under cause number 18-11-15230, 

which case was assigned to the 284th District Court. In that suit, Velardez alleged a 

claim for breach of contract, requested economic and actual damages, multiple 

damages under the Texas Business and Commerce Code, exemplary damages, and 

sought declaratory relief, and attorney’s fees. In response, Parra filed a general 

denial, asserted affirmative defenses, and counterclaimed for the remaining balance 

he alleged was owed to him under the initial contract Velardez signed to install the 

septic system.

While the first lawsuit was pending, the parties entered into a mediated 

settlement agreement, termed a “Binding Settlement Agreement.” The MSA 

provided in part that Parra would remove and replace the septic system in Velardez’s 

property within 120 days. The MSA also stated that “[t]his is the proposal [and] is 

preliminary agreement with the reservation of the right to come back to the mediator 

to resolve any remaining issues.” As part of the MSA, Parra signed a written

agreement to provide maintenance of the septic system for two years. The parties 

agreed to continue the first case for 120 days for Parra to comply with the terms of

the MSA. This agreement was signed by all parties.

In August 2020, Parra filed a Motion to Dismiss Plaintiff’s Claims with 

Prejudice Based Upon Mediated Settlement Agreement. In his motion, Parra argued 
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that he had complied with the terms of the MSA, and Velardez failed to pay him the 

remaining balance due under the MSA. He asked the court to dismiss Velardez’s suit 

and grant him judgment in the amount of the remaining balance. The trial court did 

not rule on Parra’s motion but instead, on August 18, 2020, the trial court entered a 

final judgment after a bench trial ordering that Velardez take nothing on his claims 

and Para recover $3750 from Velardez for actual damages, including attorney’s fees 

and court costs. The judgment further provided “All other relief not expressly 

granted herein is denied.” Neither party appealed from the Final Judgment. In this 

appeal, Velardez did not include a reporter’s record from the trial that ended with a 

final judgment favoring Para in cause number 18-11-15230.

Second Lawsuit

In March 2021, Velardez filed an Original Petition to Enforce Settlement 

Agreement, which the district clerk assigned cause number 21-03-04078. In his 

petition, Velardez stated 

Carlos E. Parra Jr., was to begin the two (2) year maintenance of the 

septic system beginning on the day the system passes inspection by 

Montgomery County Health Department. The project was not 

completed within one hundred and twenty days but was approved by 

the Montgomery County Health Department on September 23, 2020, 

starting the two-year maintenance agreement. (See Exhibit “B”) 

Defendant, however, has refused to abide by the terms of the contract 

by failing to perform the inspections, testing, and responding to the 

owners complaints and requests within 2-days as stated in the 

Agreement. The new system has totally failed and Defendant has totally 

refused to perform warranty work.
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Velardez alleged breach of contract against Parra and requested specific 

performance, contending the MSA signed by the parties was a “binding and 

enforceable contract between [Velardez] and [Parra]...[d]espite [Velardez’s] 

repeated requests for performance, [Parra] has refused and continues to refuse to 

perform. [Parra’s] conduct constitutes a material breach of the agreement. [Velardez] 

has contacted [Parra] on at least seven different occasions and [Parra] has failed to 

acknowledge the request made by [Velardez].” Parra answered and asserted various 

affirmative defenses, including res judicata. Parra filed a Motion to Dismiss Based 

Upon Res Judicata, attaching several pleadings and trial exhibits from the previous 

lawsuit and trial, arguing the case was barred by res judicata and should be 

dismissed. 

On December 10, 2021, the trial court signed an order dismissing the case 

finding 

Although the cause of action for breach of the MSA was not alleged in 

the Closed Case, at trial the evidence related to a claim that Mr. Parra 

breached his contract to install a septic system because the septic 

systems did not work. The evidence in the trial of the Closed Case made 

no distinction between the Johnson System or the Hubert System. In 

fact, the evidence at trial included much post-MSA activity. With the 

Court having found that Mr. Parra’s contractual obligation was limited 

to installing the septic system per someone else’s design, and having

found that Mr. Parra properly installed [what] he was hired to install, 

the issues in the pending case have already been resolved and are, 

therefore, moot. Consequently, this Court lacks jurisdiction over this 

moot case[.] 
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It is ORDERED that this case is DISMISSED FOR WANT OF 

JURISDICTION.

The trial court subsequently denied Velardez’s motion for new trial but, upon 

Velardez’s request, entered Findings of Facts and Conclusions of Law. The trial 

court did not make additional Findings of Facts or Conclusions of Law as requested 

by Velardez. Velardez then filed this appeal.

Standard of Review

The question of whether a court has subject-matter jurisdiction is a question 

of law, and a trial court’s order dismissing a cause for want of jurisdiction is 

reviewed de novo. See Graber v. Fuqua, 279 S.W.3d 608, 631 (Tex. 2009) 

(Wainwright, J., dissenting); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 

217, 226 (Tex. 2004). A plaintiff’s petition must state facts which affirmatively show 

the jurisdiction of the court in which the action is brought. Richardson v. First Nat’l 

Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967); see also Tex. Ass’n of Bus. v. Tex. 

Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When reviewing a trial court’s 

order dismissing a case for want of jurisdiction, we construe the pleadings in favor 

of the plaintiff and look at the pleader’s intent. Tex. Ass’n of Bus., 852 S.W.2d at 

446 (citations omitted); see also Athans v. Athans, No. 09-20-00047-CV, 2022 WL 

120009, at *2 (Tex. App.—Beaumont Jan. 13, 2022), opinion withdrawn and 

superseded on overruling of reh’g, No. 09-20-00047-CV, 2022 WL 1295429 (Tex. 

App.—Beaumont Apr. 29, 2022, no pet.). 
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Analysis

Our trial courts are courts of general jurisdiction and presumably have subject 

matter jurisdiction unless a contrary showing is made. Dubai Petroleum Co. v. Kazi, 

12 S.W.3d 71, 75 (Tex. 2000). In his first three issues, Velardez argues that (1) the 

trial court has jurisdiction to enforce the MSA, (2) abused its discretion by 

determining the issue of the enforceability of Parra’s warranty under the MSA had 

already been tried, and (3) in dismissing Velardez’s claims without hearing any 

evidence.

Velardez filed the suit at issue in this appeal (“the second suit”) on March 24, 

2021. Velardez entitled his petition as Original Petition to Enforce Settlement 

Agreement. Parra filed his initial answer on June 14, 2021. While the Docket Control 

Order was not made a part of the record before us, the trial court appears to have set 

the case for trial on November 15, 2021. Parra filed a Motion for Continuance, and 

the trial court scheduled a hearing via Zoom on November 8, 2021. At the hearing, 

the trial court questioned its jurisdiction to hear the case, questioning whether res 

judicata or collateral estoppel barred the second suit. The court reset the hearing to 

December 3, 2021 and requested briefing from the parties on the subject of 

jurisdiction. On December 2, 2021, Velardez filed what he entitled Plaintiff’s 

Memorandum of Law of Jurisdiction. On December 3, 2021, Parra filed what he 

denominated “Motion to Dismiss Based Upon Res Judicata,” attaching several 
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pleadings and trial exhibits from the previous lawsuit and trial as evidence to support 

his motion and requesting the trial court dismiss the lawsuit on the grounds of res 

judicata. Without further hearing, the trial court entered the Order Dismissing Case 

on December 10, 2021.

In his first three issues, Velardez asserts the trial court has jurisdiction of the 

second suit to enforce the MSA and maintenance agreement and the trial court erred 

when it ruled it did not have jurisdiction and by summarily dismissing the lawsuit 

on Parra’s motion to dismiss. This court abated the appeal and remanded the lawsuit 

to the trial court to determine whether the trial court took judicial notice of any of 

the record from the first lawsuit. While the trial court answered us in the negative, 

the trial court clarified that it considered the pleadings and exhibits from the first 

lawsuit attached to the motion to dismiss, as well as the trial court’s Findings of Fact 

and Conclusions of Law the trial court entered in the first suit.1 Except for the 

documents the trial court mentions in its findings, we note the trial court did not 

conduct an evidentiary hearing in the second suit before ordering the case dismissed 

for want of jurisdiction. 

1 While the trial court prepared and filed separate Findings of Fact and 

Conclusions of Law in the underlying lawsuit (second suit), it summarily dismissed 

the suit for want of jurisdiction. Pursuant to Tex. R. Civ. P. 296, findings of fact and 

conclusions of law are only proper in a case after it has been tried without a jury. 

Therefore, any findings of fact or conclusions of law entered before a trial are 

improper and cannot be considered by this court. 
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In the trial court’s Findings of Facts and Conclusions of Law from the first 

lawsuit, the trial court found, in part, the following:

Findings of Fact: 

7. After the above captioned cause was filed, the parties went to 

mediation and settled the case via a mediated settlement agreement (the 

“MSA”). The gist of the MSA was that Mr. Parra would obtain plans for 

an engineered septic system for Mr. Velardez’s property and would 

install that system. 

. . . 

12. While it appears that the septic system on the property does 

not work, Mr. Parra never guaranteed that it would.

Conclusions of Law:

5. No one pleaded anything with regard to seeking relief on the 

MSA. Consequently, whether the MSA was complied with or breached 

was not before the Court for a ruling.

In the second suit, Velardez alleged, in part:

[] On November 20, 2019, in order to avoid the expense and 

uncertainties of further litigation, [Velardez] and [Parra] mediated, the 

parties agreed to recess the mediation. The parties later agreed to reset 

the mediation for July 03, 2020. The parties settled and compromised 

all claims which had been or could have been brought between them. 

To memorialize the settlement, [Velardez[ and [Parra] entered into a 

binding contract, the Binding Settlement Agreement (hereinafter 

“Agreement”).

. . . 

Carlos E. Parra Jr., was to begin the two (2) year maintenance of 

the septic system beginning on the day the system passes inspection by 

Montgomery County Health Department. The project was not 

completed within one hundred and twenty days but was approved by 
10

the Montgomery County Health Department on September 23, 2020, 

starting the two-year maintenance agreement. (See Exhibit “B”) 

[Parra], however, has refused to abide by the terms of the contract by 

failing to perform the inspections, testing, and responding to the owners 

complaints and requests within 2-days as stated in the Agreement. The 

new system has totally failed and [Parra] has totally refused to perform 

warranty work.

Velardez seeks specific performance of the terms of the MSA and maintenance 

agreement and, in the alternative, damages and attorney’s fees.

A mediated settlement agreement is enforceable under contract law, and the 

same procedures used to enforce and enter judgment on other contracts should apply 

to mediated settlement agreements. See Schriver v. Tex. Dep’t of Transp., 293 

S.W.3d 846, 851 (Tex. App.—Fort Worth 2009, no pet.). When the legislature 

enacted the alternative dispute resolution statute, it did not order the courts to follow 

a special procedure applicable only to mediated settlement agreements. It said only 

that a mediated settlement agreement is enforceable as any other contract. Martin v. 

Black, 909 S.W.2d 192, 195 (Tex. App.—Houston [14th Dist.] 1995, writ denied).

Texas courts have held generally that the essential terms for a settlement agreement 

are the amount of compensation and the liability to be released. See Padilla v. 

LaFrance, 907 S.W.2d 454, 455 (Tex. 1995) (concluding that complete and 

enforceable agreement existed where terms included agreement to pay amount in 

exchange “for full and final settlement of this case”); Disney v. Gollan, 233 S.W.3d 

591, 595 (Tex. App.—Dallas 2007, no pet.) (concluding that settlement agreement’s 
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essential terms are amount of compensation and liability to be released); CherCo 

Props., Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 266 (Tex. App.—

Fort Worth 1999, no pet.) (holding that settlement agreement that included payment 

terms and statement that parties would execute mutual releases contained all material 

terms). While the MSA in the first suit may not meet the terms of a settlement 

agreement under alternate dispute resolution provisions in that it did not provide for 

payment of an amount in exchange for a full and final settlement of the lawsuit, the 

agreement must be analyzed for the elements of an enforceable contract. 

A plaintiff asserting a breach-of-contract claim must prove (1) the existence 

of a valid contract; (2) the plaintiff performed or tendered performance as the 

contract required; (3) the defendant breached the contract by failing to perform or 

tender performance as the contract required; and (4) the plaintiff sustained damages 

as a result of the breach. See USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 

501 (Tex. 2018). The only methods existing under the rules of civil procedure to 

enforce a contract and obtain a judgment are: (1) summary judgment proceedings, if 

no fact issue exists; and (2) trial, jury or non-jury, if a fact issue exists. See Tex. R. 

Civ. P. 166a, 262-270, 295. A trial court may enter a judgment on a mediated 

settlement agreement where one of the parties contests his intent to be bound only 

by following one of these vehicles set out in the rules of civil procedure. Martin, 909 

S.W.2d at 196. See also In re BBX Operating, LLC, No. 09-17-00079-CV, 2017 
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WL 1437135, at *1 (Tex. App.—Beaumont Apr. 20, 2017, orig. proceeding) (mem. 

op.) (trial court abused its discretion by enforcing a settlement agreement 

involuntarily without a bench trial or jury trial or by summary judgment); Lewoczko 

v. Crews, No. 09-18-00432-CV, 2020 WL 6494207, at *4 (Tex. App.—Beaumont 

Nov. 5, 2020, no pet.) (mem. op.). Like any other breach of contract claim, a claim 

for breach of a settlement agreement is subject to the established procedures of 

pleading and proof. A party against whom a claim for breach of contract has been 

asserted is entitled to be confronted by appropriate pleadings, assert defenses, 

conduct discovery, and submit factual disputes to a fact finder. Levetz v. Sutton, 404 

SW.3d 798, 805-06 (Tex. App.—Dallas 2013, pet. denied).

Parra’s motion to dismiss based on res judicata in the underlying lawsuit made 

the basis of this appeal asserts an affirmative defense, i.e., a matter constituting an 

avoidance or bar to the plaintiff’s petition. Tex. R. Civ. Proc. 94. Affirmative 

defenses are “pleas in bar,” and do not provide a justification for summary dismissal 

on the pleadings. Kelley v. Bluff Creek Oil Co., 309 S.W.2d 208, 214-15 (Tex. 1958); 

Union Pac. Fuels, Inc. v. Johnson, 909 S.W.2d 130, 134 (Tex. App.—Houston [14th 

Dist.] 1995, no writ); Montgomery Cty. v. Fuqua, 22 S.W.3d 662, 668-69 (Tex. 

App.—Beaumont 2000, pet. denied). As defenses “in bar” they are not the proper 

subject matter of disposition on a preliminary hearing before the court, such as pleas 
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in abatement, for example. See Haesly v. Whitten, 580 S.W.2d 104, 106 (Tex. Civ. 

App.—Waco 1979, no writ).

Mootness

In its order dismissing the case, the trial court found that it did not have 

jurisdiction to hear Velardez’s motion because “[w]ith the Court having found that 

Mr. Parra’s contractual obligation was limited to installing the septic system per 

someone else’s design and having found that Mr. Parra properly installed what he 

was hired to install, the issues in the pending case have already been resolved and 

are, therefore, moot. Consequently, this Court lacks jurisdiction over this moot 

case[.]” But, according to the trial court’s Findings of Facts and Conclusions of Law

filed in the first suit, under Conclusions of Law, the trial court stated:

5. No one pleaded anything with regard to seeking relief on the 

MSA. Consequently, whether the MSA was complied with or breached 

was not before the Court for a ruling.

Since the pleadings in the first suit did not involve a claim under the MSA, 

the Final Judgment in the first lawsuit is not a final judgment that adjudicated the 

claims Velardez raised in his second suit regarding Parra’s alleged breach of the 

MSA. For that reason, the second suit Velardez filed to enforce the terms of the MSA 

properly invoked the trial court’s jurisdiction.

Here, Velardez sought to enforce the MSA, arguing that Parra breached the 

contract and sought specific performance. The trial court did not conduct a trial
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regarding the allegations, but summarily dismissed Velardez’s petition as moot. 

And, while Parra may seek to prove this claim could be moot, as we express no 

opinion on the merits of that issue, the trial court erred by disposing of Velardez’s 

allegation that Parra failed to service the septic system for two years as he promised 

in the MSA in a summary fashion by dismissing the claim without following 

“established procedures of pleading and proof[]” that include discovery and a 

hearing required to resolve disputed issues of fact. See Levetz, 404 S.W.3d at 805-

06. Because the trial court improperly dismissed the underlying lawsuit without due 

process, we sustain Velardez’s first, second, and third issues on appeal.2

Conclusion

Having found that the trial court dismissed the underlying lawsuit for want of 

jurisdiction in error, we sustain Velardez’s first, second, and third issues on appeal

and we reverse and remand the trial court’s judgment and remand the cause to the 

trial court for further proceedings consistent with the opinion. 

2 As we have reversed the judgment in this case, we need not address 

Velardez’s final issue as it would give him no greater relief on appeal. See Tex. R. 

App. P. 47.1.
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REVERSED AND REMANDED.

 

 

 ________________________________

 CHARLES KREGER

 Justice

 

Submitted on November 22, 2022

Opinion Delivered December 22, 2022

Before Kreger, Horton and Johnson, JJ.