Opinion issued February 22, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00319-CV ——————————— DAVID PATRICK DANIEL, JR., Appellant V. JENNIFER LEIGH MORRIS, PHILIP PLACZEK, AND PLACZEK LAW, PLLC, Appellees
On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2019-78634
MEMORANDUM OPINION
This appeal arises from a lawsuit between former spouses concerning whether
the ex-wife violated the confidentiality provisions of a settlement agreement they
executed to resolve custody and defamation lawsuits between them. Also ensnarled
in the current lawsuit is the mediator who facilitated their settlement agreement. The trial court granted summary judgment in favor of the ex-wife and
mediator, entering a final take-nothing judgment on all the ex-husband’s claims. The
ex-husband appeals. Based on the summary-judgment record, we conclude that the
trial court properly dismissed some claims but not others. Accordingly, we affirm
the trial court’s judgment in part, reverse the trial court’s judgment in part, and
remand this cause to that court for further proceedings consistent with our opinion.
BACKGROUND
David Patrick Daniel, Jr. and his ex-wife, Jennifer Leigh Morris, became
embroiled in litigation after their divorce. Daniel sued Morris for defamation, and
Morris filed suit to modify the custodial arrangements concerning their child. They
mediated these suits and resolved them in a single settlement agreement. Or so it
briefly seemed. Daniel now sues Morris, as well as the mediator and his law firm,
alleging that they violated the settlement agreement’s confidentiality provisions.
In relevant part, the settlement agreement identifies the parties entering into it
as Daniel and Morris (who is identified by her maiden name Garrett). They agreed
that the agreement is irrevocable and that either party is entitled to a judgment based
on the agreement. The agreement spells out the custody arrangements of their child
and the parties’ child-support obligations. Under the agreement, the parties were
obliged to dismiss their respective lawsuits, and Daniel was to pay Morris $155,000.
2 The settlement agreement also had several confidentiality provisions. First,
the agreement provided that the parties would enter into a confidentiality agreement
about the claims and allegations they made and seal certain court-filed documents.
Second, the agreement prohibited the parties and their spouses from disclosing or
distributing in any manner information or documents relating to the two lawsuits.
Third, the agreement prohibited Morris and her new husband from contacting the
lawyers, their agents, or anyone affiliated with a family-law proceeding in
Wisconsin to which Daniel’s new wife was a party. In the event that Daniel sued
Morris or her husband, the confidentiality provisions of the suit would be waived.
The settlement agreement also provided that a violation of its terms would
render the agreement null and void. In this event, Daniel was entitled to the return
of all consideration he paid within 24 hours of him giving notice of the violation.
The mediator, Philip Placzek, was not a party to the settlement agreement. But
along with Daniel and Morris, he signed it under a signature block indicating that
the signatories both approved and agreed to the terms of the settlement agreement.
In his live pleading, Daniel asserts a claim for breach of contract against
Morris, Placzek, and Placzek’s firm for breaching the settlement agreement’s
confidentiality provisions. On the same basis, he seeks a declaration that the
settlement agreement is null and void, as well as rescission, including the return of
consideration he paid. Finally, Daniel asserts a malpractice claim against Placzek
3 and his firm on the ground that Placzek violated his duty of confidentiality in his
capacity as mediator.
Daniel alleges several particular breaches of confidentiality, including:
● on June 18, 2019, Morris, Placzek, and his firm filed an unsealed and unredacted copy of the settlement agreement in the custody suit;
● on August 6, 2019, Morris filed an unsealed and unredacted proposed order containing the settlement agreement’s terms; and
● on August 9, 2019, Morris filed an unsealed and unredacted motion seeking entry of the proposed order containing the agreement’s terms. Morris moved for traditional and no-evidence summary judgment. She
asserted that there is no evidence she breached the confidentiality provisions of the
settlement agreement. Morris also argued that the summary-judgment evidence—
including her own affidavit and the affidavit of a third party associated with her and
Daniel’s child’s school—showed she did not breach the confidentiality provisions.
Placzek and his firm likewise moved for traditional and no-evidence summary
judgment but on different grounds. With respect to breach of contract, they asserted
that there is no evidence they were parties to the settlement agreement or that they
received any consideration binding them to this agreement. Regarding rescission,
they asserted that there is no evidence Daniel offered to restore any consideration or
benefit he received, which they posited to be a requisite for rescission. As to Daniel’s
malpractice claim, they asserted entitlement to traditional summary judgment on the
basis that Daniel’s pleading shows this claim is barred by the statute of limitations.
4 Daniel opposed both summary-judgment motions. With regard to Morris’s
motion, Daniel submitted evidence that he argued supported each of the breaches of
confidentiality identified in his live pleading. He also identified two more breaches:
● on June 18, 2019, Morris’s husband contacted a lawyer in the Wisconsin family-law suit and disclosed the terms of the settlement agreement; and
● on August 20, 2019, Morris sent a letter that disclosed the terms of the settlement agreement to the school her and Daniel’s child attends.
As to Placzek’s motion, Daniel argued that the mediator’s signature approving
and agreeing to the settlement agreement made him a party to the agreement. Daniel
did not address Placzek’s arguments regarding lack of consideration and limitations.
The trial court granted both summary-judgment motions, and the trial court
entered a judgment that Daniel take nothing on his claims. Daniel now appeals.
DISCUSSION
Standard of Review
We review summary judgments de novo. Dillard v. SNC-Lavalin Eng’rs &
Constructors, 629 S.W.3d 692, 696 (Tex. App.—Houston [1st Dist.] 2021, no pet.).
After adequate time for discovery, a party may move for summary judgment
on the basis that there is no evidence to support one or more essential elements of
the nonmovant’s claim. TEX. R. CIV. P. 166a(i); Dillard, 629 S.W.3d at 696. The
trial court must grant no-evidence summary judgment unless the nonmovant
5 responds by producing competent evidence raising a genuine issue of material fact
as to each challenged element. TEX. R. CIV. P. 166a(i); Dillard, 629 S.W.3d at 696.
The no-evidence summary-judgment standard of review mirrors legal-
sufficiency review. Dillard, 629 S.W.3d at 696. Thus, we will affirm a no-evidence
summary judgment when there is a complete absence of evidence of a vital fact, the
court is barred by rules of law or evidence from giving weight to the sole evidence
offered to prove a vital fact, the evidence offered to prove a vital fact is no more than
a mere scintilla, or the evidence conclusively shows the opposite of a vital fact. Id.
We consider the evidence in the light most favorable to the nonmovant. Id.
To obtain traditional summary judgment, a party must show that no genuine
issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.
R. CIV. P. 166a(c). Thus, when a defendant moves for summary judgment, it must
either conclusively disprove at least one essential element of a challenged claim or
conclusively prove the elements of an affirmative defense. Blair v. Fritsch, 608
S.W.3d 407, 412–13 (Tex. App.—Houston [1st Dist.] 2020, pet. stricken).
If a defendant establishes its entitlement to traditional summary judgment, the
burden shifts to the nonmovant to raise a genuine issue of material fact. Id. at 413.
A genuine issue of material fact exists when the summary-judgment evidence would
allow reasonable and fair-minded people to differ in their conclusions. Id. Once
again, we review the summary-judgment evidence in the light most favorable to the
6 nonmovant, crediting evidence that favors the nonmovant if reasonable jurors could,
disregarding contrary evidence unless reasonable jurors could not, and indulging all
reasonable inferences and resolving any doubts in the nonmovant’s favor. Id.
We cannot affirm a summary judgment on a ground that the movant did not
raise in its summary-judgment motion in the trial court. Garrett Operators v. City of
Houston, 461 S.W.3d 585, 591 (Tex. App.—Houston [1st Dist.] 2015, no pet.); see
also Mott v. Red’s Safe & Lock Servs., 249 S.W.3d 90, 98 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (stating that no-evidence motion that fails to specifically
identify challenged elements is defective and cannot support summary judgment).
I. Summary Judgment in Morris’s Favor
Daniel’s claims against Morris are all premised on her breach of the settlement
agreement’s confidentiality provisions. Morris successfully moved for summary
judgment on the ground that there either was no evidence of breach or that the
evidence conclusively disproves breach. We address each alleged breach in turn.
A. June Contacts with Wisconsin Lawyer
In support of his allegation that Morris’s husband disclosed the terms of the
settlement agreement or other confidential information to a Wisconsin lawyer named
Michael R. Phegley, Daniel relies on Phegley’s affidavit. In this affidavit, Phegley
states he was contacted by Morris’s husband (then only Morris’s boyfriend) on June
6 and June 11, 2019, and given various information relating to the Texas custody
7 dispute between Daniel and Morris. Phegley also states in his affidavit that Morris’s
husband contacted him a third time, on June 18, 2019, and requested that Phegley
refrain from seeking a specific type of relief in the Wisconsin litigation—drug
testing—because the parties in the Texas custody dispute “were close to reaching an
agreement” that could be jeopardized by the relief in question. Finally, Phegley
states that he received correspondence from Morris’s lawyer on June 19, 2019,
informing Phegley that the Texas custody suit had been resolved, and that the
parties’ agreement included “a confidentiality clause prohibiting all parties from
communicating the terms of the agreement to anyone” outside of the custody suit.
Contrary to Daniel’s argument, Phegley’s affidavit does not support the
allegation that Morris’s husband breached the settlement agreement by divulging it
or other confidential information. Morris’s husband’s June 6 and June 11 contacts
with Phegley occurred before the parties to the Texas defamation and custody suits
signed the settlement agreement on June 18, 2019. Morris obviously could not have
breached the settlement agreement by contacting Phegley on these two occasions
because the settlement agreement and its confidentiality provisions did not yet exist.
See AKIB Constr. v. Shipwash, 582 S.W.3d 791, 806 (Tex. App.—Houston [1st
Dist.] 2019, no pet.) (indicating that party commits breach of contract when it fails
or refuses to do something party has contractually committed to do). The same is
true of Morris’s husband’s third contact on June 18, as Morris’s husband advised
8 Phegley that the Texas parties were close to reaching an agreement and requested
that Phegley refrain from acting in a way that would undermine the possibility of
settlement. The only contact regarding the Texas suits that Phegley had afterward
came from Morris’s lawyer, not Morris’s husband, and her lawyer informed Phegley
that the parties had signed an agreement requiring confidentiality.
In sum, Phegley’s affidavit supplies no evidence in support of this alleged
breach, and breach is an essential element of Daniel’s contract claim. See id. (stating
that essential elements of contract claim include breach by defendant). As Phegley’s
affidavit is the sole evidence on which Daniel relies for this breach, Morris is correct
that no evidence supports this particular allegation of breach, and the trial court
therefore did not err in granting summary judgment as to this allegation. See TEX. R.
CIV. P. 166a(i) (requiring court to grant no-evidence summary judgment unless
nonmovant produces evidence that raises genuine issue of material fact).
B. June 18 Filing of Settlement Agreement
In support of his allegation that Morris disclosed the terms of the settlement
agreement by filing an unsealed and unredacted copy in the custody suit, Daniel
relies on another filing—specifically, an August 9, 2019 motion requesting the entry
of an agreed order—in which Morris represented that she had previously “filed the
mediated settlement agreement on June 18, 2019.” Daniel argues that this
representation is a binding judicial admission that Morris cannot now contradict.
9 In general, a party makes a judicial admission when she makes a statement of
fact, other than an assertion of fact pleaded in the alternative, that conclusively
disproves a claim or defense that she asserts. H2O Sols. v. PM Realty Grp., 438
S.W.3d 606, 617 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). However, a
statement made by mistake or based on a mistaken belief of the facts does not qualify
as a judicial admission. Thomas v. St. Joseph Hosp., 618 S.W.2d 791, 794 (Tex.
App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.); City of Webster v. Hunnicutt, 650
S.W.3d 792, 801 (Tex. App.—Houston [14th Dist.] 2022, pet. denied).
Here, Morris submitted summary-judgment evidence that her lawyer’s
representation in the August 9 motion was mistaken. The lawyer in question,
Bernadette A. Barbee, filed a declaration, in which she explained that the mediator,
Placzek, was the person who actually filed the settlement agreement with the court.
Barbee further explained that she did not actually file the agreement, as Placzek had
already done so, and her contrary statement in the motion was thus erroneous.
Daniel did not adduce any evidence contradicting Barbee’s declaration. On
the contrary, he filed summary-judgment evidence that corroborates her declaration.
Specifically, Daniel included a copy of the electronic service notification for the
June 18, 2019 filing of the settlement agreement with the trial court. That notice
identifies Placzek as the filer. Based on this notice, in his opposition to Morris’s
summary-judgment motion, Daniel states: “Despite the confidential nature of the
10 settlement and its terms, the unsealed and unredacted Memorandum of Settlement
with Binding Irrevocable Settlement Agreement was filed directly into the record.
The filing identifies it was performed by Placzek at 7:46 p.m. on June 18, 2019.”
Daniel further argues that the contradictory nature of the representations made
by Morris’s lawyer presents a genuine issue of material fact. That is, Daniel
maintains that a factfinder must decide whether Morris actually filed the settlement
agreement, as represented in the motion requesting the entry of an agreed order, or
did not do so, as represented in Barbee’s subsequent declaration. If these two pieces
of contradictory evidence were the lone summary-judgment evidence on this issue,
we would agree. But the electronic service notification, which Daniel himself
included in the summary-judgment record, conclusively resolves any doubt on this
issue, given that the notification’s authenticity and accuracy are not questioned by
anyone. See Prosper Florida, Inc. v. Spicy World of USA, 649 S.W.3d 661, 671 (Tex.
App.—Houston [1st Dist.] 2022, no pet.) (reciting that evidence is conclusive when
reasonable people could not differ in their conclusions, including when evidence
definitively negates contrary proof in some fashion). In the face of this additional
evidence, a factfinder could not reasonably find that Morris, rather than Placzek, was
the one who actually filed the settlement agreement. See id.
In sum, Daniel conclusively proved the identity of the filer is not Morris.
Hence, Morris is correct that the evidence defeats this particular allegation of breach,
11 which is an essential element of Daniel’s contract claim. See AKIB Constr., 582
S.W.3d at 806 (stating that essential elements of contract claim include breach by
defendant). Therefore, the trial court did not error in granting summary judgment as
to this particular allegation of breach. See TEX. R. CIV. P. 166a(c) (requiring
rendition of traditional summary judgment when evidence shows there is no genuine
issue of material fact and movant is entitled to judgment as matter of law).
C. August 6 and August 9 Filings as to Proposed Order
In support of his allegation that Morris divulged confidential information in
two proposed orders filed with the trial court in the custody suit, Daniel relies on
filings made by Morris on August 6 and August 9, 2019. In these filings, both
proposed orders modifying the parent–child relationship, Morris included the terms
of the settlement agreement, which addressed custodial arrangements concerning
Daniel’s and Morris’s son. The settlement agreement itself was not attached as an
exhibit to or otherwise included as part of either of these filings (as the agreement
had already been filed by Placzek). The proposed orders merely incorporated
language from the settlement agreement. Daniel argues that doing so violated the
confidentiality provisions of the settlement agreement, even though he agreed to the
entry of an order incorporating language from the agreement shortly thereafter, and
the trial court signed the agreed order incorporating this language on August 16.
12 We hold that, as a matter of law, Morris’s incorporation of the settlement
agreement’s language or terms into the proposed orders is not a breach of the
agreement’s confidentiality provisions. Thus, the August 6 and August 9 filings do
not raise a genuine issue of material fact precluding no-evidence summary judgment.
The settlement agreement states on its first page in bold font and all capital
letters that the parties agree that either one is entitled to a judgment on the agreement.
And the settlement agreement includes provisions about the conservatorship,
residency, and possession of the parties’ child, as well as provisions about the
parties’ child-support obligations, which necessarily must be incorporated into an
order modifying the parent–child relationship in the custody suit that the agreement
resolves. Thus, the right to seek entry of a judgment reflecting the settlement
agreement is explicitly guaranteed in the agreement itself and would be implicit
otherwise. While the agreement also contains confidentiality provisions, those
provisions must be read in harmony with the agreement as a whole, not in isolation
from its other provisions. See, e.g., Shawn Ibrahim, Inc. v. Houston-Galveston Area
Loc. Dev. Corp., 582 S.W.3d 753, 768 (Tex. App.—Houston [1st Dist.] 2019, no
pet.) (reciting that court must consider entire contract, harmonizing and giving effect
to all its provisions so none is rendered meaningless, and that no single provision
should be given controlling effect without reference to remainder). To hold that the
settlement agreement’s confidentiality provisions prohibit the parties from seeking
13 entry of a judgment on its terms would amount to judicial deletion of the provision
guaranteeing the right to a judgment on the agreement and effectively make the
agreement unenforceable. See, e.g., Maxey v. Maxey, 617 S.W.3d 207, 224 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (citing authority for proposition that court
cannot rewrite parties’ contract or add or subtract from contract’s language).
Arguably, one could harmonize the right-to-judgment and confidentiality
provisions of the settlement agreement by requiring the parties to file under seal any
request for the entry of judgment. Daniel appears to make this argument in his live
pleading, in which he complains that these filings were unsealed and unredacted.
We disagree. The settlement agreement addresses sealing in its confidentiality
provisions, indicating that the parties would make “a motion to seal certain
documents in the Court’s file.” But this provision does not identify the documents
in question, let alone refer to motions seeking the entry of judgment on the
agreement. This reference to “a motion to seal” is the agreement’s lone mention of
sealing the record. The settlement agreement does not require a party who seeks
entry of a judgment on the agreement to do so under seal, and we cannot add to the
agreement’s terms. See id. (noting that court cannot add to contract’s terms).
In sum, the August 6 and August 9 filings do not evidence a breach of the
parties’ agreement, and breach is an essential element of Daniel’s claim. See AKIB
Constr., 582 S.W.3d at 806 (stating that essential elements of contract claim include
14 breach by defendant). Thus, this evidence does not preclude summary judgment. See
TEX. R. CIV. P. 166a(i) (requiring court to grant no-evidence summary judgment
unless nonmovant produces evidence that raises genuine issue of material fact).
D. August 20 Letter to Son’s School
In support of his allegation that Morris provided her and Daniel’s son’s school
with a copy of the settlement agreement in violation of its confidentiality provisions,
Daniel relies on an August 20, 2019 letter penned by another of Morris’s lawyers.
In this letter, Susan Myres wrote to the school in response to a request from the
school “that information be provided regarding the meaning of the language
contained in the Binding Irrevocable Settlement Agreement.” Daniel maintains that
the school’s request for this information, and Myres’s response to the school’s
request in which she references the settlement agreement by name, give rise to an
inference that Morris provided the school with a copy of the settlement agreement.
Morris maintains that Myres’s letter is mistaken. According to Morris, she
gave the school of copy of the trial court’s order modifying the parent–child
relationship that incorporated the terms of the settlement agreement. In support of
this proposition, she relies on a notarized December 3, 2019 letter from the school’s
director of admissions, in which the director of admissions states that Morris
provided the school with a copy of the trial court’s order to help the school
“understand the court-mandated expectations regarding parental rights.” In the trial
15 court, Morris also apparently relied on an affidavit made by Myres explaining that
her reference to the settlement agreement in her August 20 letter was mistaken. But
Myres’s affidavit is not included in the clerk’s record or any of its supplements.
We agree with Daniel that this evidence shows the existence of a genuine issue
of material fact. The evidence is conflicting: the August 20 letter indicates that
Morris gave the school a copy of the settlement agreement, while the December 3
letter supports Morris’s contention that the August 20 letter was mistaken about this.
And, unlike the factual dispute concerning whether Morris or Placzek filed the
settlement agreement with the trial court, there is no evidence in the record that
conclusively resolves which version of events is accurate. When, as here, conflicting
evidence supports two different accounts on a material issue, one of which supports
the nonmovant’s position on summary judgment, and the conflict in the evidence is
not conclusively resolved by other evidence, summary judgment is improper. See
Carter v. Allstate Ins. Co., 962 S.W.2d 268, 270 (Tex. App.—Houston [1st Dist.]
1998, pet. denied) (noting that conflicting evidence on issue creates genuine issue of
material fact for factfinder to resolve and precludes traditional summary judgment);
Cuidado Casero Home Health of El Paso v. Ayuda Home Health Care Servs., 404
S.W.3d 737, 743 (Tex. App.—El Paso 2013, no pet.) (stating that conflicting or
inconsistent evidence raises fact issue and defeats no-evidence summary judgment).
16 In sum, whether Morris provided the school with a copy of the settlement
agreement in violation of its terms or provided the school with a copy of the trial
court’s order incorporating the settlement’s terms, which is permissible because an
order cannot be sealed under Rule 76a(1) of the Texas Rules of Civil Procedure,1 is
a question that must be resolved by a factfinder. This alleged breach is viable.
E. Breaches Based on Third-Party Conduct
In his live pleading and his summary-judgment responses, Daniel also
seemingly treated certain third-party conduct as actionable breaches by Morris. For
example, Daniel noted that Phegley, the Wisconsin lawyer, was able to obtain a copy
of the settlement agreement via the trial court clerk after it was filed with the trial
court by Placzek. Setting aside that Placzek, not Morris, is responsible for filing the
settlement agreement with the trial court, Phegley’s conduct is not an independent
breach attributable to either Placzek or Morris, but a consequence of the filing of the
settlement agreement in the record. Assuming arguendo that the filing of the
agreement is a breach, it is the act of filing itself that would constitute the breach.
Daniel cannot rely on each subsequent post-filing instance of third-party access as
an additional breach of contract by whomever filed the settlement agreement.
1 Quite apart from inability to seal a court order, the trial court’s order modifying the parent–child relationship also contains a disclaimer of confidentiality, which provides that the parties’ confidentiality agreement does not apply to the order and authorizes them to disclose the order “as may be required to effect or enforce the same.” 17 ***
The trial court correctly granted summary judgment regarding all the
confidentiality breaches alleged by Daniel, excepting the one about disclosure of the
settlement agreement to the school. As there is a genuine issue of material fact as to
that breach, the trial court erred in granting summary judgment on Daniel’s claim
against Morris for breach of the settlement agreement’s confidentiality provisions.
Thus, we reverse the trial court’s summary judgment in Morris’s favor and remand
this cause to the trial court for further proceedings consistent with our opinion.
II. Summary Judgment in Placzek’s Favor
Daniel alleges two distinctly different types of claims against Placzek:
contract claims premised on Placzek’s alleged breach of the settlement agreement’s
confidentiality provisions, and a malpractice claim premised on his breach of the
confidentiality inherent in the mediation process. In both cases, the sole breach of
confidentiality alleged consists of Placzek’s filing of the settlement agreement.
Placzek contends he is entitled to summary judgment on the contract claims
because he is not a party to the settlement agreement and therefore cannot be sued
for breaching its terms even if filing the settlement agreement otherwise would be a
breach of the agreement’s confidentiality provisions. He also contends that there is
no evidence that he received any consideration as to the settlement agreement.
18 Regarding Daniel’s malpractice claim, Placzek contends that Daniel did not
assert this claim until after the two-year statute of limitations had already expired.
A. Contract Claims
The question of whether Placzek is a party to the settlement agreement who
can be held liable for breaching its confidentiality provisions is a question of contract
interpretation. When a contract is unambiguous, its interpretation presents a question
of law. Zurich Am. Ins. Co. v. Coastal Cargo, 596 S.W.3d 381, 385 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied). We consider the contract’s language as a
whole, trying to give effect to all of its terms so none are made meaningless. Id.
Furthermore, we interpret the contract from a utilitarian perspective, taking into
account its subject matter and avoiding, if possible, interpretations that are
unreasonable, inequitable, and oppressive. Unocal Pipeline Co. v. BP Pipelines
(Alaska), 512 S.W.3d 492, 500 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
Daniel relies on the signature pages of the settlement agreement. He notes that
he, Morris, and Placzek each signed the agreement under a signature block that reads
“approved and agreed” in bold font and capital letters. Under Morris’s and Daniel’s
signature lines, their names are typewritten. Under Placzek’s signature line, the title
“mediator” appears, rather than his typewritten name. Daniel contrasts this signature
page with the one for the lawyers who represented the parties in mediation. Their
19 signature block reads “approved as to form only” in bold font and capital letters.
Based on these signature blocks, Daniel posits that Placzek is a party to contract.
But when interpreting a contract, we do not consider just the terms that favor
one party’s interpretation and disregard the rest. Zurich Am. Ins. Co., 596 S.W.3d at
385. And based on a review of all the settlement agreement’s terms, we are
persuaded that the agreement as a whole refutes Daniel’s position for eight reasons.
First, the settlement agreement resolves two lawsuits, a custody suit and a
defamation suit, in which Daniel and Morris are both litigants. Placzek is not a party
to either suit. Apart from his role as mediator, he has no connection to these suits.
Second, the settlement agreement indicates in bold font and capital letters that
it is bilateral in nature, stating that “either party is entitled to a judgment on this
agreement.” Notably, the agreement does not confer any rights on Placzek, such that
this language regarding the right to entry of a judgment is meaningless as to him.
Third, in significant part, the terms of the settlement agreement are devoted to
issues of conservatorship, custody, possession, and child support concerning
Daniel’s and Morris’s child. Placzek has no discernible interest in these matters.
Fourth, the settlement agreement requires the parties to dismiss the two
aforementioned lawsuits, which Placzek could not do as a nonparty, and further
requires Daniel to pay Morris $155,000. Placzek receives nothing in the agreement.
20 Fifth, the settlement agreement’s confidentiality provisions neither mention
Placzek by name nor refer to the mediator in general. This omission is especially
telling. If Placzek was to be subject to suit for violation of these provisions, one
would expect them to make some reference to him personally or his role as mediator.
Sixth, the settlement agreement addresses the possibility of future litigation
between the parties, requiring them to first mediate any dispute. The agreement
identifies five acceptable mediators, one of whom is Placzek. It seems unlikely that
Placzek would be an acceptable mediator if he was also a party to the agreement.
Seventh, the settlement agreement contains a provision requiring arbitration
of any drafting disputes concerning the contents of the final order implementing the
terms of the settlement agreement. The agreement names Placzek as the sole
arbitrator, a position he could not occupy if he was also a party to the agreement.
Eighth, the settlement agreement provides that violation of its terms “causes
this agreement to become null and void,” requiring all consideration paid by Daniel
to be returned to him within 24 hours after he gives notice of the violation. This term
only makes sense in a bilateral agreement between Daniel and Morris. If Placzek
was also a party, then a violation of the agreement’s confidentiality provisions by
him would unwind the entire agreement, regardless of whether or not Morris, or
anyone associated with her, was also responsible for the violation of the agreement.
21 The preceding eight aspects of the settlement agreement account for all its
substantive provisions. None of them suggest Placzek is a party to the agreement.
Given the substantive provisions of the agreement, which neither confer rights nor
impose responsibilities on Placzek by name or by title in his role as mediator, we
reject Daniel’s position that Placzek’s signature, standing alone, does what the
remainder of the agreement does not—make Placzek a party to the agreement. When
viewed as a whole, the settlement agreement shows Placzek is not a party to the
agreement who can be sued for breach of contract if he violates its provisions. See
Prent v. rJET, L.L.C., No. 01-14-00408-CV, 2015 WL 1020207, at *3–4 (Tex.
App.—Houston [1st Dist.] Mar. 15, 2015, no pet.) (mem. op.) (reviewing provisions
of aircraft lease and concluding person who signed as president of one party did not
herself become party to lease, notwithstanding provision in which she certified she
was responsible for operational control of aircraft and had responsibility to comply
with regulations); see also Mission Grove, L.P. v. Hall, 503 S.W.3d 546, 551–54
(Tex. App.—Houston [14th Dist.] 2016, no pet.) (stating that contract between
others cannot create obligation or duty as to non-party and holding that person who
signed contract as president of one party did not thereby make himself party).
Daniel argues that, at the very least, Placzek’s signature indicating both
approval and agreement with the terms of the settlement agreement makes the
22 agreement ambiguous as to whether Placzek is a party. Therefore, Daniel maintains,
a jury must decide whether Placzek is a party to the agreement. We do not agree.
Whether a contract is ambiguous is a question of law for the court. Maxey,
617 S.W.3d at 220. A contract is ambiguous only if its language permits two or more
reasonable interpretations. Id. at 219. In deciding whether alternative interpretations
are reasonable, we again consider the contract as a whole in light of the
circumstances present when the contract was entered. Charles R. Tips Family Tr. v.
PB Com., 459 S.W.3d 147, 153 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
Placzek’s signature, standing alone, is admittedly less clear than it could be as
to his status as a signatory. But this simple lack of clarity does not make the
agreement as a whole ambiguous as to whether he is a party. See, e.g., id. (stating
“simple lack of clarity or disagreement between parties does not render a term
ambiguous”). As shown by his signature block, Placzek signed the agreement in his
role as the mediator. Mediators are not customarily parties to the settlement
agreements they broker. See generally Mediator, BLACK’S LAW DICTIONARY (11th
ed. 2019) (defining “mediator” as “neutral person who tries to help disputing parties
reach an agreement”). And, as we have already discussed, none of the substantive
provisions of the settlement agreement hint that Placzek is a party. On the contrary,
the agreement’s substantive provisions dispel the notion that Placzek is a party.
Viewed as a whole, the agreement is not ambiguous as to his non-party status.
23 Finally, Daniel posits either that the settlement agreement and the agreement
retaining Placzek as mediator are a single contract, such that Placzek may be sued
for violations of the settlement agreement’s confidentiality provisions, or that
Placzek may be sued simply for breach of the agreement retaining him as mediator.
But neither of these positions can withstand Placzek’s summary-judgment motion.
Daniel does not cite authority for the general proposition that an agreement
retaining a mediator and any subsequent settlement agreement entered in mediation
must be read together as a single contract. If we held this was the case here, our
holding might well make all mediators parties to the settlements they facilitate
because Daniel does not rely on terms peculiar to the particular agreement retaining
Placzek. We decline to fashion a new rule that either always makes mediators parties
to the settlements resulting from mediation or creates a fact issue on this question.
See Unocal Pipeline Co., 512 S.W.3d at 500 (instructing that we are to interpret
contracts from utilitarian perspective, accounting for their subject matter, and avoid,
when possible, interpretations that are unreasonable, inequitable, and oppressive).
As to suit on the retention agreement itself, Daniel does not cite any
confidentiality provisions contained in that agreement. The contractual provisions
that Daniel alleges Placzek violated are all contained in the settlement agreement.
While Daniel also alleges that Placzek had a non-contractual obligation to maintain
24 confidentiality, Daniel’s contract claims rise and fall with the settlement agreement’s
confidentiality provisions alone, and Placzek simply is not a party to that agreement.
Because the unambiguous settlement agreement shows as a matter of law that
Placzek is not a party to the agreement, Daniel cannot sue him for breach of the
agreement’s confidentiality provisions. See Prent, 2015 WL 1020207, at *3–4; see
also Mission Grove, 503 S.W.3d at 551–54. Therefore, the trial court did not err in
granting summary judgment in Placzek’s favor on Daniel’s contract claims.
B. Malpractice Claim
The sole issue relating to malpractice that is before us on appeal is whether
Daniel asserted his malpractice claim before the two-year statute of limitations for
this claim expired. See Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988)
(reasoning that legal malpractice is in nature of tort and therefore subject to two-year
limitations period for torts established by section 16.003 of Texas Civil Practice and
Remedies Code). As Placzek did not challenge the proposition below, we assume
without deciding for purposes of this appeal that Texas law recognizes a cause of
action for mediator malpractice based on a mediator’s breach of the general duty to
maintain confidentiality regarding mediation-related matters. See In re Cartwright,
104 S.W.3d 706, 714 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding)
(indicating that in general all matters concerning mediation are confidential and thus
may not be disclosed even to court). But see SARAH R. COLE ET AL., 1 MEDIATION:
25 LAW, POLICY & PRACTICE § 11:13 (2022) (“Although it has been over twenty years
since the first edition of this treatise was published and noted no reported cases of
mediator liability, there continue to be few cases even recognizing a cause of action
for mediator malpractice.”).
Limitations is an affirmative defense. TEX. R. CIV. P. 94. Therefore, a movant
may only seek summary judgment based on limitations in a motion for traditional
summary judgment. See Young Refin. Corp. v. Pennzoil Co., 46 S.W.3d 380, 385
(Tex. App.—Houston [1st Dist.] 2001, pet. denied) (noting that movants cannot
obtain no-evidence summary judgment on affirmative defenses, like limitations,
because they, not nonmovants, will bear burden of proof on these defenses at trial).
To obtain summary judgment based on limitations, the movant must prove as a
matter of law that the nonmovant’s cause of action is time-barred, including the date
on which the cause of action accrued. E.g., Gandy v. Williamson, 634 S.W.3d 214,
233 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). A cause of action accrues
when either the allegedly wrongful act was committed and caused an injury or when
the facts authorizing a party to seek a judicial remedy came into existence. Id.
Because Daniel’s malpractice claim is based on Placzek’s filing of the
settlement agreement with the district clerk, Placzek maintains that Daniel’s claim
accrued on the date of filing—June 18, 2019. Because Daniel did not assert his
26 mediator malpractice claim until his live pleading, which was filed on November 12,
2021, Placzek contends the claim is barred by the two-year limitations period.
Daniel counters that he first asserted a malpractice claim in an earlier version
of his pleading, which was filed on May 8, 2020, before limitations had expired.
Resolution of the parties’ dispute turns on the application of the relation-back
doctrine, which is codified in section 16.068 of the Texas Civil Practice and
Remedies Code. That section provides that if a filed pleading relates to a cause of
action that is not subject to limitations when the pleading is filed, a later amended or
supplemental pleading that changes the facts or grounds of liability is not subject to
limitations “unless the amendment or supplement is wholly based on a new, distinct,
or different transaction or occurrence.” TEX. CIV. PRAC. & REM. CODE § 16.068. In
short, this provision is designed to allow a party to assert other grounds of liability
after limitations has run, provided that these other grounds relate to the same
transaction or occurrence the party has placed at issue in an earlier pleading filed
within limitations. Syrian Am. Oil Corp. v. Pecten Orient Co., 524 S.W.3d 350, 363
(Tex. App.—Houston [1st Dist.] 2017, no pet.). In deciding whether causes of action
arise from the same transaction or occurrence, we focus on whether there is a logical
relationship between them. Attalla v. Loyc Invs. Ltd. Co., No. 01-21-00078-CV,
2022 WL 2976223, at *9 (Tex. App.—Houston [1st Dist.] July 28, 2022, pet. denied)
(mem. op.). If the causes of action arise from a common core of operative facts, then
27 they arise from the same transaction or occurrence, even though the requirements
for the proof of these causes of action differ somewhat. Id. It is immaterial that the
later pleading asserts a different cause of action. Long v. State Farm Fire & Cas.
Co., 828 S.W.2d 125, 128 (Tex. App.—Houston [1st Dist.] 1992, writ denied).
In his live pleading, Daniel states a cause of action for “malpractice” against
Placzek. Citing a mediator’s duty of confidentiality, Daniel alleges that Placzek’s
public disclosure of the settlement agreement constitutes malpractice. As damages,
Daniel seeks to recover the consideration that he paid Placzek for confidentiality.
In his earlier May 2020 pleading, Daniel alleged a cause of action for “legal
malpractice” against Placzek. Though Daniel complained of unspecified “drafting
errors and omissions” on Placzek’s part, he also alleged that Placzek had negligently
disclosed the settlement agreement by filing it in the public records of the court.
Though it appears that Placzek stated a different cause of action in his earlier
pleading than the later one—legal malpractice versus mediator malpractice—both
causes of action arise from the same transaction or occurrence. In both instances,
Daniel’s claim arises from the same particular circumstance: Placzek’s public
disclosure of the settlement agreement. Accordingly, Daniel’s malpractice claim in
his live pleading relates back to his earlier pleading and is not barred by limitations.
See Attalla, 2022 WL 2976223, at *9 (explaining that when causes of action are
based on common core of operative facts, then relation-back doctrine applies).
28 Because the relation-back doctrine applies to the mediator malpractice claim
Daniel alleges in his live pleading, his malpractice claim is not barred by limitations.
Thus, the trial court erred in granting summary judgment on the malpractice claim.
III. Other Appellate Complaints
On appeal, Daniel makes two additional complaints. First, he contends the
trial court erred in denying his motions to compel discovery responses from Placzek.
Second, Daniel contends the trial court erred in denying his motion for continuance
to allow further discovery with respect to Placzek’s summary-judgment motion.
Neither of these additional complaints are directed at the trial court’s summary
judgment in favor of Morris; they solely concern Daniel’s claims against Placzek.
A. Discovery
In his brief, Daniel does not identify particular discovery requests he made
and then explain why the trial court’s denial of discovery on these particular requests
was erroneous. Instead, Daniel generally refers us to his requests for disclosure and
production, cites to parts of the record below, mentions a couple of general topics of
discovery in passing (the professional organizations to which Placzek belongs and
their rules) and leaves it as an exercise for this court to examine the cited portions of
the record for itself and ascertain whether and why Placzek’s “refusal to fully
answer,” as Daniel phrases it, was proper or improper without the aid of argument.
29 Daniel’s briefing on discovery-related issues does not preserve anything for
review because he has not presented particular complaints supported by specific
arguments. See TEX. R. APP. P. 38.1(i) (requiring brief to “contain a clear and concise
argument for the contentions made, with appropriate citations to authorities”);
Banakar v. Krause, 674 S.W.3d 564, 578 (Tex. App.—Houston [1st Dist.] 2023, no
pet.) (stating brief should acquaint court with issues and present argument that will
enable court to decide them, not conclusorily assert positions without support).
Moreover, to the extent Daniel contends he was denied relevant discovery on
his contract-related claims against Placzek, we have held that Placzek is not a party
to the settlement agreement as a matter of law. Our holding rests on an examination
of the agreement’s unambiguous text alone. Because the settlement agreement is
unambiguous in this respect, neither the trial court nor we can look to extrinsic
evidence to add to or alter its terms. See, e.g., Maxey, 617 S.W.3d at 225 (concluding
that settlement agreement was unambiguous so that trial court should have decided
parties’ intent as matter of law and erred in allowing jury to decide parties’ intent
based on parol evidence about their intentions). Thus, the trial court did not err by
disallowing discovery from Placzek relating to Daniel’s contract-related claims.
As for discovery relating to Daniel’s mediator malpractice claim, Placzek
solely sought summary judgment based on the affirmative defense of limitations.
Daniel does not contend that any of his requests related to the subject of limitations,
30 and, in any event, we have reversed the trial court’s limitations-based judgment.
Thus, any ostensible error arising from the trial court’s denial of discovery relating
to mediator malpractice could not constitute a basis for reversal. See TEX. R. APP. P.
44.1(a) (providing that judgment cannot be reversed based on error of law unless
error probably caused rendition of improper judgment or prevented proper
presentation of case on appeal). Having reversed this aspect of the trial court’s
summary judgment, it is the trial court’s role to reevaluate any discovery issues
relating to Daniel’s mediator malpractice claim, if necessary, in light of our opinion.
B. Continuance
Daniel’s complaints about the trial court’s denial of his motion for
continuance are premised on the position that he should have been allowed
additional discovery on his claims against Placzek. Like his discovery complaints,
Daniel’s briefing regarding his requested continuance is general and conclusory.
Accordingly, he once again has not preserved this issue for our review. See TEX. R.
APP. P. 38.1(i); Banakar, 674 S.W.3d at 578. In addition, because the dispositive
summary-judgment issues were legal questions turning on undisputed facts—
Placzek’s non-party status as to the settlement agreement and the operation of the
two-year statute of limitations on the mediator malpractice claim—Daniel cannot
show the trial court erred in denying his request for a continuance in any event. See,
e.g., Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 29–30 (Tex. App.—
31 Houston [1st Dist.] 2004, pet. denied) (holding trial court did not err in refusing
further discovery before ruling on summary-judgment motion because there was no
need for it given nature of dipositive issues and citing authority for proposition that
court does not err in denying continuance sought to conduct immaterial discovery).
CONCLUSION
We affirm the trial court’s judgment in part, reverse the trial court’s judgment
in part, and remand this cause for further proceedings consistent with our opinion.
Gordon Goodman Justice
Panel consists of Justices Goodman, Countiss, and Farris.