Mary Maxey, Individually and as Initial Trustee of the Bryan Maxey Family, Trust, as Initial Trustee of the Carlotta Maxey Marital Income Trust: Exempt, as Trustee of the Carlotta Maxey Marital Income Trust: Non-Exempt, and as Trustee of the Mary Maxey Descendant's Trust v. Carolyn Maxey, Individually, as Successor Trustee of the Bryan Maxey Family Trust, as Successor Trustee of the Carlotta Maxey Marital Income Trust Exempt and as Trustee of the Carolyn Maxey Descendants Trust

• Court: Court of Appeals of Texas
• Decided: December 29, 2020
• Docket: 01-19-00078-CV
• Status: Published

Opinion

Opinion issued December 29, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00078-CV ——————————— MARY MAXEY, INDIVIDUALLY AND AS INITIAL TRUSTEE OF THE BRYAN MAXEY FAMILY, TRUST, AS INITIAL TRUSTEE OF THE CARLOTTA MAXEY MARITAL INCOME TRUST: EXEMPT, AS TRUSTEE OF THE CARLOTTA MAXEY MARITAL INCOME TRUST: NON-EXEMPT, AND AS TRUSTEE OF THE MARY MAXEY DESCENDANT’S TRUST, Appellant V. CAROLYN MAXEY, INDIVIDUALLY, AS SUCCESSOR TRUSTEE OF THE BRYAN MAXEY FAMILY TRUST, AS SUCCESSOR TRUSTEE OF THE CARLOTTA MAXEY MARITAL INCOME TRUST: EXEMPT AND AS TRUSTEE OF THE CAROLYN MAXEY DESCENDANT’S TRUST, Appellee

On Appeal from the Probate Court No. 1 Harris County, Texas Trial Court Case No. 414,060-401 OPINION

In this dispute arising out of the probate of her mother’s estate, appellee

Carolyn Maxey sued her sister, appellant Mary Maxey, for breach of a settlement

agreement and sought specific performance of the agreement’s terms. After a jury

found that Mary breached the settlement and rejected Mary’s counterclaims, the trial

court entered judgment on the jury verdict, awarding specific performance of release

language in the settlement agreement and assessing attorney’s fees against Mary. In

three issues, Mary contends the trial court erred by (1) determining that the

settlement agreement was ambiguous and allowing in parol evidence to assist the

jury in interpreting the terms of the agreement; (2) awarding specific performance

to Carolyn because she failed to request and secure jury findings on the essential

elements of specific performance; and (3) awarding unsegregated attorney’s fees to

Carolyn.

We reverse and remand.

Background

Bryan and Carlotta Maxey had two daughters: Carolyn and Mary, the parties

to the underlying dispute. Bryan died in 1999, and in his will, he left his property to

Carlotta via three trusts. Carolyn serves as trustee for two of the trusts, and Mary

serves as trustee for the third trust. Carlotta died in 2011. Her will created two

additional trusts—the Mary Maxey Descendant’s Trust and the Carolyn Maxey

2 Descendant’s Trust—and provided that these two trusts were to be funded with the

assets of the three trusts created in Bryan’s will. Carolyn and Mary were appointed

as co-executors of Carlotta’s estate, but they could not agree on how their parents’

assets were to be distributed between the trusts. Mary filed suit against Carolyn in

2015, and Carolyn filed counterclaims against Mary.

A. The Settlement Agreement

On the morning of the trial on their claims against each other, the sisters

executed a document entitled “Binding Irrevocable Settlement Term Sheet” (the

Settlement Agreement) on December 12, 2016. In the Settlement Agreement, the

sisters agreed to divide the properties owned by the three trusts created in Bryan’s

will. These properties were listed on two exhibits that were incorporated into the

agreement. One of these properties was approximately sixty acres of land located in

Marble Falls in Burnet County (the Marble Falls Property). The exhibit provided

that the “CAD Value” of the property was $361,914.00, and that, upon partition of

the property, both the Mary Maxey Trust and the Carolyn Maxey Trust would

receive parcels valued at $180,957.00. A notation on the exhibit stated, with respect

to this property, “Mary Maxey Trust to receive West 50% and Carolyn Maxey Trust

to receive East 50%.” The Agreement required Carolyn to partition this property and

to handle installation of a fence on the property.

3 The sisters agreed that “all property shall be deeded by” January 30, 2017.

Mary agreed to provide Carolyn a full accounting of Carlotta’s estate within sixty

days of the agreement. The sisters agreed to release all claims relating to the trusts

created in Bryan’s will and relating to his estate, but they did not agree to “release

claims relating to the administration and/or settlement of” Carlotta’s estate. The

Settlement Agreement also included the following provisions:

10. The parties will enter into a final release and settlement agreement consistent with the foregoing material terms and will submit a final judgment in Cause No. 414,060-401 [the underlying cause], consistent with this agreement that releases and discharges Carolyn and Mary as trustees of the [three trusts created in Bryan’s will]. .... 13. The parties agree that this Binding Irrevocable Settlement Term Sheet contains all material terms and that the parties shall be entitled to judgment in Texas. 14. The parties agree that time is of the essence and that they will cooperate to effectuate the terms of this agreement, including the execution of all anticipated documents, entry of all judgments and delivery of all payments, by 1/30/2017. 15. THIS BINDING IRREVOCABLE SETTLEMENT AGREEMENT IS NOT SUBJECT TO REVOCATION AND IS BINDING ON ALL PARTIES. EACH PARTY TO THIS AGREEMENT IS ENTITLED TO REQUEST JUDGMENT ON THE TERMS OF THE BINDING IRREVOCABLE SETTLEMENT AGREEMENT CONTAINED HEREIN.

4 The Agreement also included a provision stating, in all caps, that it “may not be

contradicted by evidence of prior, contemporaneous, or subsequent oral or written

agreements between or among one or more of the parties hereto.”

B. The Underlying Claims

In May 2017, Carolyn, who was originally the defendant when litigation

commenced over Carlotta’s estate, filed a first supplemental answer and

counterclaim.1 Carolyn alleged that, contrary to the terms of the Settlement

Agreement, Mary had not conveyed two properties2 to her. She also alleged that

Mary had filed incorrect tax returns for Carlotta’s estate, had not filed final tax

returns for the trust for which Mary was trustee, had not delivered an agreed order

of dismissal, and had failed to provide a sufficient accounting of Carlotta’s estate.

Carolyn sued Mary for breach of the Settlement Agreement for her failure to transfer

certain pieces of real property and sought specific performance of the agreement.

Carolyn also noted that Mary had provided Carolyn with an accounting, but Carolyn

set out ten specific objections to that accounting and claimed that the accounting was

1 During the litigation, the trial court re-aligned the parties and Carolyn became the plaintiff. 2 The Agreement also provided that Mary was to convey to Carolyn seven lots in Marble Falls known as the Collier Lots as well as a property in Galveston County known as the Kohfeldts Property. Mary transferred the Kohfeldts Property to Carolyn during the pendency of the litigation. At trial, Carolyn acknowledged that she had received a deed to the Collier Lots, and she agreed with her counsel that she had no further complaint concerning that property. 5 insufficient. Carolyn later filed an amended pleading in which she sought declaratory

relief, including a declaration that the Settlement Agreement was binding and

enforceable. Carolyn also sought attorney’s fees.

Mary generally denied the allegations in Carolyn’s amended pleading and

asserted multiple defenses and affirmative defenses. Mary also asserted multiple

causes of action against Carolyn, including breach of contract, promissory estoppel,

unjust enrichment, suit to quiet title, trespass to real property, negligent

misrepresentation, fraud, and breach of fiduciary duty. With respect to her breach of

contract cause of action, Mary alleged that Carolyn breached the Settlement

Agreement by dividing the Marble Falls Property “in a way that was neither equal

in value nor acreage, as Carolyn deeded herself a greater share of this property.”

Mary sought damages and specific performance “of reforming the conveyance of

the 60-acre tract in Marble Falls to comply with the terms of the settlement.”

Mary moved for partial summary judgment on her claim for breach of the

Settlement Agreement. Mary argued that, under the agreement, Carolyn was

required to divide the Marble Falls Property into two parcels of equal value, with

Mary receiving the “West 50%” and Carolyn receiving the “East 50%.” Mary argued

that Carolyn breached the Settlement Agreement by conveying to herself

approximately 31.939 acres, or more than 50% of the Marble Falls Property,

“leaving Mary with less land than she bargained for under the settlement.” Mary

6 argued that Carolyn breached the Settlement Agreement as a matter of law, but she

acknowledged that “the precise amount of damages [she] is entitled to under this

claim is a fact issue that a jury must resolve.”

In response, Carolyn argued that partial summary judgment was not proper

because, among other things, a disagreement existed “over the language of the

Agreement as to what portion of the real property was to be conveyed.” Carolyn

argued that she had had the Marble Falls Property surveyed and platted into two

separate tracts (the Brookes Baker Survey) and that both parties had used this survey

“during settlement negotiations to supply meaning to the terms of the Agreement

specifying the property division.” The Brookes Baker Survey divided the Marble

Falls Property into east and west tracts of unequal size and unequal value. The

Survey favored Carolyn as to both acreage and value of the property.

Carolyn argued that without reference to this survey the Settlement

Agreement was ambiguous. She argued that the Marble Falls Property was an

“irregular plot of land with limited access to the road and portions of terrain that

inhibit the marketability of the land,” that the Brookes Baker Survey took these

irregularities into account when dividing the property, and that the parties agreed to

this division while negotiating the Settlement Agreement. Carolyn argued that

extrinsic evidence, specifically the Brookes Baker Survey, was necessary to

7 determine what the parties intended by “West 50%” and “East 50%” of the Marble

Falls Property and therefore summary judgment was improper.

Mary objected to the Brookes Baker Survey and several other of Carolyn’s

summary judgment exhibits, arguing that admission of these exhibits would vary the

terms of the Settlement Agreement and would therefore violate the parol evidence

rule. Mary also argued that the Settlement Agreement was not ambiguous, pointing

out that Carolyn had not offered “another reasonable interpretation of the

settlement’s 50% language.” She argued that, instead, the Settlement Agreement’s

language providing that Mary would receive the “West 50%” and Carolyn the “East

50%” of the Marble Falls Property could be given definite legal meaning and was

therefore unambiguous. Mary disputed Carolyn’s assertion that she and Carolyn had

agreed to use the Brookes Baker Survey to divide the Property.

The trial court denied Mary’s motion for partial summary judgment and set

the case for trial.

C. The Jury Trial

Before trial, both parties filed motions in limine. Mary’s motion requested that

the trial court grant a motion in limine with respect to the following matters, among

others:

19. Any statement, testimony, argument, or other evidence from Carolyn or her attorneys or witnesses that the settlement agreement involved in this case or any of its terms [is] ambiguous since Carolyn testified [in her deposition] that the agreement is unambiguous. 8 20. Any statement, testimony, argument, or other evidence from Carolyn or her attorneys or witnesses with regard to any settlement negotiations or terms that were not written into the terms of the settlement agreement involved in this case, including any evidence relating to any survey or discussion of same. Such evidence is barred by the parol-evidence rule. 21. Any statement, testimony, argument, or other evidence from Carolyn or her attorneys or witnesses with regard to any difficulty partitioning the Marble Falls 60 acres equally in terms of acreage or value. Carolyn failed to properly designate any expert witness qualified to testify about such matters or disclose any mental impressions or the bases of any opinions about such matters. . . . Such evidence is also barred by the parol-evidence rule to vary, alter, or supplement the terms of the settlement agreement at issue in this case.

(Internal citations omitted.)

Carolyn objected to these portions of Mary’s motion in limine and argued that

the parol evidence rule does not prohibit courts from considering extrinsic evidence

of the facts and circumstances surrounding execution of the contract in order to aid

in construing the contract’s language.

On July 23, 2018, the trial court granted Mary’s motion in limine on each of

the three above-mentioned matters, among others. After a jury had been selected,

but before the parties made their opening statements, the parties discussed the

matters again with the trial court. The trial court determined that the Settlement

Agreement—specifically, the language stating that Mary would receive the “West

50%” of the Marble Falls Property and Carolyn would receive the “East 50%”—was

ambiguous, and the court ruled that it would allow the jury to “hear the context” of

9 what the parties considered when negotiating the Settlement Agreement, including

the Brookes Baker Survey. The trial court agreed with Carolyn that the lawyers who

represented the sisters during the negotiation of the Settlement Agreement could

testify concerning that process.

At trial, David Bolton, a real estate appraiser, testified as to the division of the

Marble Falls Property under the Brookes Baker Survey. He testified that Mary’s tract

of the Property was 27.438 acres and Carolyn’s tract was 31.939 acres. Bolton

valued the tracts as of December 28, 2016, the date Carolyn divided the property.

He valued Mary’s tract at $935,000 and Carolyn’s tract at $1,180,000. Bolton also

testified that the property could have been divided in a way that “equalizes the

interior lake area” and that would have divided the property equally.

Sarah Pacheco, who represented Carolyn in the initial phases of the lawsuit

and up through the execution of the Settlement Agreement, testified regarding that

Agreement. Pacheco testified that the purpose of the Settlement Agreement was to

promptly enter judgment dividing the assets in the trusts created under Bryan’s will

“with no co-ownership” of the assets. She testified that, with respect to the Marble

Falls Property, the Settlement Agreement did not address whether future surveys of

the property would be conducted or whether appraisers would be hired in the future

to appraise the property. Nor did it address what methodology would be used to

determine equal value of the two parcels of the property. Pacheco stated that she and

10 Mary’s former counsel had discussed how to define “West 50%” and “East 50%.”

She testified:

There was a partition or a survey [the Brookes Baker Survey] that was done right before [the December 2016] trial [setting] and it kind of divides the property into an east and a west or right and a left but there was a line through it and the goal was to agree to the sides and that was the sides of that survey or partition . . . .

She agreed with Carolyn’s current counsel that the Brookes Baker Survey formed

the basis of the agreement between the parties as to what “West 50%” and “East

50%” in the Settlement Agreement mean. She further agreed on cross-examination

that the Brookes Baker Survey was not attached as an exhibit to the Settlement

Agreement, even though the Agreement included other exhibits.

Pacheco testified that the parties did not agree that an appraisal of the two

tracts in the Survey would occur at a later date to determine that the tracts were of

equal value. She testified that Mary proposed an appraisal or valuation of the tracts

but Carolyn refused, wanting the division of the properties to be completed as

quickly as possible.

Jason Ostrom, Mary’s former counsel, likewise testified concerning

negotiation of the Settlement Agreement. Ostrom testified that the agreement

concerning the Marble Falls Property was that the “property will be divided in half

with each Trust receiving an equal value” and that “[e]ach Trust here is allocated the

same value.” He agreed that the Settlement Agreement made no provision for

11 redoing the division if the two tracts of the property were not of equal value. He also

agreed that, prior to execution of the Settlement Agreement, he had seen a survey

dividing the Marble Falls Property into two tracts—the Brookes Baker Survey. He

testified that he had proposed dividing the property based on that survey and then,

after an appraisal of the tracts, equalizing the value of the tracts through a cash

payment. His proposal, however, was rejected by Carolyn. Ostrom also agreed that,

in April 2017, Carolyn’s counsel sent him a proposed order dismissing the claims in

the lawsuit. Ostrom did not recall responding to Carolyn’s counsel concerning this

proposed order or signing that order.

On cross-examination by Mary’s current counsel, Ostrom testified that the

purpose of the Settlement Agreement was “to split up the Trusts as evenly as possible

between Carolyn and Mary in order to avoid the trial that was about to take place.”

He stated that, in negotiating the agreement, the attorneys “were trying to equalize

the value as best we could.” With respect to the Marble Falls Property, Ostrom

testified, “We divided it equally between Mary and Carolyn’s Trust.” He also

testified that Mary would not have allowed the Brookes Baker Survey to “be a

controlling document” relating to the Settlement Agreement because she disagreed

with how the survey divided the property.3 Ostrom also agreed that he never signed,

3 On re-direct examination, Ostrom stated, “[M]y client agreed to take that designated half so long as it was equal value. That’s what she was agreeing to.” 12 on behalf of Mary, the proposed order of dismissal because Mary believed that

Carolyn had not fulfilled her obligations under the Settlement Agreement.

During Carolyn’s testimony, her counsel asked whether the parties intended

to divide the properties owned by the trusts equally, such that “each side would get

an absolute equal value of property.” Carolyn responded, “As best as possible.” She

acknowledged that the schedules attached as exhibits to the Settlement Agreement

reflected a difference in value between the properties that she was to receive versus

the properties that Mary was to receive. Carolyn testified that after execution of the

Settlement Agreement, she conveyed a tract of the Marble Falls Property to Mary in

December 2016. When asked how she divided the Marble Falls Property, Carolyn

responded, “I had the surveyor divide it as equally as possible.” She testified that

Mary had a copy of the Brookes Baker Survey before they signed the Settlement

Agreement.

Carolyn testified that the Colorado River forms the northern boundary of the

Marble Falls Property. At one point, Bryan used the property for gravel mining, and

now the property has a gravel pit that has been filled with water to form a lake. A

road runs along the western boundary of the property, and Carolyn testified that

because Mary received the western half of the property Carolyn did not have access

to that road. Carolyn testified that the property is used for cattle grazing and that it

does not have any improvements or municipal services. When asked to describe the

13 topography of the property, Carolyn stated, “It’s all over the place. A lot of it is in

the floodplain. I think there is a portion that’s not in the floodplain. The rest slopes

down and is all covered in floodplain.”

The trial court admitted an e-mail exchange between the sisters that occurred

in late December 2016, after execution of the Settlement Agreement. Mary asked

Carolyn for “the specific plat line for the fence” Carolyn intended to put on the

Marble Falls Property to divide their two tracts. Carolyn responded that she had

“provided the survey plat lines last month” and that Mary’s attorney had the property

division for the Marble Falls Property, referring to the Brookes Baker Survey.

Carolyn did not receive any response from Mary objecting to using the Brookes

Baker Survey to divide the property, nor did she receive a survey or proposed

property division from Mary. However, in an email exchange that occurred in

February 2017, concerning construction of the fence on the Marble Falls Property,

Mary told Carolyn, “Do not move forward with this. We do not agree with this nor

do we agree with the division of the property.”

Carolyn’s counsel asked, “What was your understanding of the Settlement

Agreement, how [the Marble Falls Property was] to be divided?” Carolyn responded,

“As the survey had divided them.” Carolyn also testified that she had asked the

surveyors, in dividing the property, “to do equal highway footage, equal lake front

footage and equal land,” and Carolyn believed the Brookes Baker Survey met those

14 requirements. She testified that when the Settlement Agreement referred to the

“West 50%” and “East 50%” of the property, her understanding was that meant the

Brookes Baker Survey.

Carolyn testified that the fence on the Marble Falls Property was completed

around March 2017 and that, except for distributing “whatever remaining cash there

was,” she believed she had fulfilled all of her obligations under the Settlement

Agreement. She requested that Mary complete her duties and have the underlying

litigation dismissed. She agreed that she had her counsel deliver a proposed order of

dismissal to Mary’s counsel, but she never received a response from Mary or her

counsel. When asked what relief Carolyn sought from the jury, Carolyn stated that

she wanted her attorney’s fees, a finding that she had complied with the Settlement

Agreement, and dismissal of the case pursuant to the Settlement Agreement.

Mary testified that she received and studied the Brookes Baker Survey before

she signed the Settlement Agreement and that she told Ostrom, her attorney at the

time, that she could not agree to the Settlement Agreement if it was based on this

survey. She did not agree that “West 50%” and “East 50%” as used in the Settlement

Agreement referred to the Brookes Baker Survey, and she testified that the survey

“was not any part of the settlement.” She agreed with Carolyn’s counsel that, even

if the acreage of the two tracts of the Marble Falls Property was unequal, she would

not have a complaint if the values of the two tracts had been equal, but they were

15 not. Her complaint with the way Carolyn had divided the property was that Carolyn

received more acreage and her tract had a higher value. Mary further agreed with

Carolyn’s counsel that the earliest time she told Carolyn that she did not agree with

the division of the Marble Falls Property was in February 2017, when Carolyn

contacted her about constructing a fence on the property. She also agreed that there

was no “natural division” of the property into an east half and a west half, and

therefore dividing the property was a judgment call that involves considering several

factors including river access, road access, lake access, and how much of the

property was located in the floodplain, but she did not believe that Carolyn made a

fair judgment in dividing the property.

Carolyn’s attorney testified concerning attorney’s fees, and the trial court

admitted all of the billing records sent to Carolyn. Carolyn requested that the jury

award her $148,025 for attorney’s fees through the time of trial and $80,000 for

conditional appellate attorney’s fees. Mary cross-examined Carolyn’s counsel about

attorney’s fees and pointed out that, initially, Carolyn had asserted several ways in

which Mary allegedly breached the Settlement Agreement but only proceeded to

trial on one of those ways—failure to obtain an order of dismissal from the trial

court—but counsel had not attempted to segregate the fees related to the claims that

were not pursued at trial. Carolyn’s counsel responded that “[t]he additional time

spent on those matters were nominal” and that “the primary amount of time” was

16 spent defending against Mary’s affirmative claims, which was interrelated with

Carolyn’s remaining affirmative claim.

Question Number One of the jury charge asked, “Did Carolyn and Mary agree

to divide the Marble Falls 60 acres pursuant to the Survey?” The charge defined

“Survey” as the Brookes Baker Survey. This question instructed the jury as follows:

“You must decide the intent of the parties at the time of the Settlement Agreement.

Consider all the facts and circumstances surrounding the making of the Settlement

Agreement, the interpretation placed on the Settlement Agreement by the parties,

and the conduct of the parties.” The jury answered “yes” to this question.

In Question Number Two, the jury found that Carolyn did not fail to comply

with the Settlement Agreement with respect to the Marble Falls Property. In

Question Number Four, the jury found that Mary failed to comply with the

Settlement Agreement “with respect to the ‘Agreed Order of Dismissal.’” And in

Question Number Five, the jury found that Mary’s failure to comply was not

excused. In Question Number Nine, the jury found that “a reasonable fee for the

necessary services of Carolyn’s attorney” was $148,025 “[f]or representation

through trial and the completion of proceedings in the trial court.” The jury also

found that a total of $80,000 in appellate attorney’s fees was reasonable and

necessary. The jury further found that Carolyn did not make a negligent

17 misrepresentation to Mary, did not commit fraud against Mary, and did not breach

her fiduciary duties to Mary.4

D. The Post-Trial Proceedings

After trial, Carolyn moved for entry of judgment on the jury verdict,

requesting that the trial court dismiss all claims “as a matter of specific performance

of the settlement agreement” and award her attorney’s fees. Mary objected and

argued, among other things, that Carolyn did not request a jury question on specific

performance and obtained no jury findings relating to specific performance, such as

whether Carolyn was ready, willing, and able to perform under the Settlement

Agreement at all relevant times. Mary argued that, as a result of that failure, the trial

court could not award specific performance or attorney’s fees to Carolyn. Mary also

argued that Carolyn was not entitled to specific performance as an equitable remedy

for breach of contract because Carolyn could not establish that there was no adequate

remedy at law due to the availability of money damages. She further argued that the

trial evidence was legally and factually insufficient to support the amount of

attorney’s fees awarded to Carolyn, contending that the evidence was insufficient to

support a determination that the work performed by her attorneys was reasonable

and necessary. Mary also argued that Carolyn failed to segregate her attorney’s fees.

4 Mary asserts no complaints concerning these findings on appeal. 18 On October 31, 2018, the trial court signed a final judgment. The judgment

stated:

IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff Carolyn Maxey have and recover judgment against Defendant Mary Maxey for Defendant’s breach of and failure to comply with the Settlement Agreement (as that term was defined in the Jury Charge) and dismissal of claims that in any way relate to the settlement agreement between Carolyn Maxey and Mary Maxey. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiff Carolyn Maxey have and recover judgment against Defendant Mary Maxey for specific performance of the Settlement Agreement which Settlement Agreement provided for full, final and complete release and discharge of all claims asserted between Plaintiff Carolyn Maxey and Defendant Mary Maxey prior to the entry of the settlement agreement and dismissal of those claims that were bifurcated 5 and not tried per the Court’s order of October 12, 2017. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any relief sought by Defendant Mary Maxey against Plaintiff Carolyn Maxey is denied.

The judgment awarded Carolyn attorney’s fees in the amount of $148,025 “for

representation through trial and the completion of proceedings in this Court” and

awarded a total of $80,000 in conditional appellate attorney’s fees.

Mary moved for a new trial. Mary argued that Carolyn was not entitled to

recover attorney’s fees because Carolyn (1) did not obtain necessary jury findings

5 Before the case went to trial, the trial court signed an order bifurcating trial of the claims. The court ordered that the first trial would cover only claims relating to the Settlement Agreement and, if necessary, the second trial would cover all other claims between the parties arising out of the administration of their parents’ estates. The trial concerning the Settlement Agreement resolved all claims between the parties. 19 relevant to specific performance; (2) failed to segregate recoverable and

unrecoverable attorney’s fees; and (3) did not present legally sufficient proof that

her attorney’s fees were reasonable and necessary. Mary also argued that the trial

court erred by allowing Carolyn to introduce extrinsic evidence—including the

Brookes Baker Survey—to show how the parties had intended to divide the Marble

Falls Property. The trial court denied Mary’s motion for new trial. This appeal

followed.

Parol Evidence Rule

In her first issue, Mary contends that the trial court erred by admitting parol

evidence and allowing the jury to interpret the terms of the Settlement Agreement,

which was unambiguous. Specifically, Mary argues that the trial court erred by

determining that the Settlement Agreement was ambiguous and that the trial court

should not have allowed parol evidence—such as the Brookes Baker Survey and

testimony from the attorneys involved in negotiating the Settlement Agreement—to

construe the meaning of the Settlement Agreement.

A. Standard of Review and Governing Law

When construing a contract, we must look to the language of the parties’

agreement. Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471,

479 (Tex. 2019). We must give effect to the parties’ intentions as expressed in their

agreement. Id.; Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d

20 882, 888 (Tex. 2019) (stating that “primary objective” when construing contract is

“to give effect to the written expression of the parties’ intent”). When discerning the

contracting parties’ intent, we examine the entire agreement and give effect to each

provision so that none is rendered meaningless. Kachina Pipeline Co. v. Lillis, 471

S.W.3d 445, 450 (Tex. 2015) (quoting Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex.

2011)). We give contract terms their plain and ordinary meaning unless the contract

indicates that the parties intended a different meaning. Id. (quoting Dynegy

Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009)).

We do not give any single provision, taken alone, controlling effect; rather, we

consider all provisions with reference to the entire instrument. Id. (quoting Tawes,

340 S.W.3d at 425). “A contract’s plain language controls, not ‘what one side or the

other alleges they intended to say but did not.’” Great Am. Ins. Co. v. Primo, 512

S.W.3d 890, 893 (Tex. 2017) (quoting Gilbert Tex. Constr., L.P. v. Underwriters at

Lloyd’s London, 327 S.W.3d 118, 127 (Tex. 2010)). We construe contracts under a

de novo standard of review. Barrow-Shaver Res., 590 S.W.3d at 479.

If a written instrument, such as a contract, is worded in such a way that it can

be given a definite or certain legal meaning, the contract is not ambiguous and courts

construe the contract as a matter of law. See id.; Union Pac. R.R. Co. v. Ameriton

Props., Inc., 448 S.W.3d 671, 677 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied) (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). Courts enforce

21 an unambiguous contract as written and will not receive parol evidence “for the

purpose of creating an ambiguity or to give the contract a meaning different from

that which its language imports.” Union Pac. R.R., 448 S.W.3d at 677–78 (quoting

David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam)). A

trial court errs when it submits an unambiguous contract to the jury rather than

construing it as a matter of law. Barrow-Shaver Res., 590 S.W.3d at 480.

“Only where a contract is ambiguous may a court consider the parties’

interpretation and ‘admit extraneous evidence to determine the true meaning of the

instrument.’” David J. Sacks, P.C., 266 S.W.3d at 450–51 (quoting Nat’l Union Fire

Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (per

curiam)). If the contract contains two or more reasonable interpretations, the contract

is ambiguous, and a fact issue exists regarding the parties’ intent. Barrow-Shaver

Res., 590 S.W.3d at 479; Title Res. Guar. Co. v. Lighthouse Church & Ministries,

589 S.W.3d 226, 232 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (stating that

ambiguity in contract arises only after application of established rules of

interpretation leaves contractual language susceptible to more than one reasonable

meaning). When a court determines that a contract is ambiguous, extraneous

evidence may be admitted to help determine the language’s meaning. Barrow-

Shaver Res., 590 S.W.3d at 480.

22 “Contract language is not ambiguous simply because it is unclear or because

the parties ‘assert forceful and diametrically opposing interpretations.’” Title Res.

Guar., 589 S.W.3d at 232 (quoting In re D. Wilson Constr. Co., 196 S.W.3d 774,

781 (Tex. 2006) (orig. proceeding)); Universal Health Servs., Inc. v. Renaissance

Women’s Grp., P.A., 121 S.W.3d 742, 746 (Tex. 2003) (“Lack of clarity does not

create an ambiguity, and ‘[n]ot every difference in the interpretation of a

contract . . . amounts to an ambiguity.’”) (quoting Forbau v. Aetna Life Ins. Co., 876

S.W.2d 132, 134 (Tex. 1994)). Whether a contract is ambiguous is a question of law

that we review de novo. First Bank v. Brumitt, 519 S.W.3d 95, 105 (Tex. 2017);

Union Pac. R.R., 448 S.W.3d at 678. This question “must be decided by examining

the contract as a whole in light of the circumstances present when the contract was

entered.” Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d

445, 449–50 (Tex. 2011) (quoting David J. Sacks, P.C., 266 S.W.3d at 451).

The parol evidence rule is a rule of substantive law. S. Green Builders, LP v.

Cleveland, 558 S.W.3d 251, 258 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

The rule applies “when parties have a valid, integrated written agreement, and

precludes enforcement of prior or contemporaneous agreements.” Houston Expl. Co.

v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011); see

West v. Quintanilla, 573 S.W.3d 237, 243 (Tex. 2019) (“When parties have entered

into a valid, written, integrated contract, the parol evidence rule precludes

23 enforcement of any prior or contemporaneous agreement that addresses the same

subject matter and is inconsistent with the written contract.”). “[A] written

instrument presumes that all prior agreements relating to the transaction have been

merged into it and will be enforced as written and cannot be added to, varied, or

contradicted by parol testimony.” S. Green Builders, 558 S.W.3d at 258. The rule

does not, however, prohibit consideration of surrounding circumstances that

“inform, rather than vary from or contradict, the contract text.” Houston Expl., 352

S.W.3d at 469; Anglo-Dutch Petroleum Int’l, 352 S.W.3d at 451 (“Extrinsic

evidence cannot be used to show that the parties probably meant, or could have

meant, something other than what their agreement stated.”).

In recent years, the Texas Supreme Court has clarified when courts may

consider surrounding circumstances and parol evidence when construing a contract.

Courts may consider facts and circumstances including “the commercial or other

setting in which the contract was negotiated and other objectively determinable

factors that give context to the parties’ transaction.” Americo Life, Inc. v. Myer, 440

S.W.3d 18, 22 (Tex. 2014) (emphasis added); Houston Expl., 352 S.W.3d at 469;

see also Kachina Pipeline, 471 S.W.3d at 450 (“But while evidence of circumstances

can be used to ‘inform the contract text and render it capable of only one meaning,’

extrinsic evidence can be considered only to interpret an ambiguous writing, not to

create ambiguity.”) (quoting Americo Life, 440 S.W.3d at 22).

24 “Because objective intent controls the inquiry, only circumstantial evidence

that is objective in nature may be consulted.” URI, Inc. v. Kleberg Cty., 543 S.W.3d

755, 768 (Tex. 2018). These “objectively determinable factors” can include, for

example, “[t]he manner in which the insurance policy [at issue in the particular case]

was negotiated in the [relevant] market” because those circumstances were “crucial

to understanding [the policy’s] terms.” See, e.g., Houston Expl., 352 S.W.3d at 469–

70; Murphy Expl. & Prod. Co.—USA v. Adams, 560 S.W.3d 105, 110 (Tex. 2018)

(considering “realities” of horizontal shale drilling as part of “facts and

circumstances surrounding the contract’s execution” that “may inform” court’s

construction of lease language); Tawes, 340 S.W.3d at 426 (considering “customary

purpose” in oil and gas industry for using joint operating agreements when

determining whether parties intended for royalty provision to benefit third parties).

The Texas Supreme Court has stated:

If a court concludes that the parties’ contract is unambiguous, it may still consider the surrounding “facts and circumstances,” but “simply [as] an aid in the construction of the contract’s language.” In other words, the parol-evidence rule “does not prohibit consideration of surrounding circumstances that inform, rather than vary from or contradict, the contract text.” Courts may consider such contextual evidence “in determining the parties’ intent as expressed in the agreement, but the court must determine the parties’ expressed intent. Extrinsic evidence cannot be used to show that the parties probably meant, or could have meant, something other than what their agreement stated.” . . . In the same way that dictionary definitions, other statutes, and court decisions may inform the common, ordinary meaning of a statute’s unambiguous language, circumstances surrounding the formation of a contract may inform the meaning of a 25 contract’s unambiguous language. But courts may not rely on evidence of surrounding circumstances to make the language say what it unambiguously does not say.

First Bank, 519 S.W.3d at 110 (emphasis added) (internal citations omitted); see

Pathfinder Oil & Gas, 574 S.W.3d at 889 (“Circumstantial evidence is merely ‘an

aid in the construction of the contract’s language’ and may only be used to give the

contract a meaning consistent with that to which its terms are reasonably

susceptible.”) (quoting URI, 543 S.W.3d at 765).

“Objective manifestations of intent control, not ‘what one side or the other

alleged they intended to say but did not.’” URI, 543 S.W.3d at 763–64 (quoting

Gilbert Tex. Constr., 327 S.W.3d at 127); see Piranha Partners v. Neuhoff, 596

S.W.3d 740, 749 (Tex. 2020) (“The parol evidence rule prohibits us from relying on

such evidence to ‘create ambiguity in the contract’s text,’ to ‘augment, alter, or

contradict the terms of an unambiguous contract,’ to ‘show that the parties probably

meant, or could have meant, something other than what their agreement stated,’ or

to ‘make the language say what it unambiguously does not say.’”) (internal citations

omitted). We cannot rewrite a contract or add to its language “under the guise of

interpreting it.” Abdullatif v. Choudhri, 561 S.W.3d 590, 602 (Tex. App.—Houston

[14th Dist.] 2018, pet. denied); S. Green Builders, 558 S.W.3d at 259 (stating that

trial court “could not rely on extrinsic evidence to create an intent that the contract

itself does not express”).

26 B. Analysis

Prior to the Settlement Agreement, the Marble Falls Property was owned by

a trust created in Bryan’s will, and Carolyn was the trustee of this trust. In the

Settlement Agreement, the sisters agreed that properties owned by this particular

trust “shall be divided, as indicated on the Agreed Settlement Distribution Schedule,

attached hereto as Exhibit A.” Exhibit A to the Settlement Agreement identified the

Marble Falls property, stated that the appraisal district had valued the property at

$361,914, and provided that the Mary Maxey Trust was to receive a tract worth half

of that value and that the Carolyn Maxey Trust was to receive a tract worth half of

that value. Exhibit A also included a notation that stated, “Mary Maxey Trust to

receive West 50% and Carolyn Maxey Trust to receive East 50%.”

The trial court ruled that the Settlement Agreement was “ambiguous as to the

sixty-acre tract of land and its distribution and division,” and it allowed the

introduction of parol evidence to aid the jury in its interpretation of the Settlement

Agreement. Specifically, the trial court admitted a copy of the Brookes Baker

Survey, which divided the land unequally in Carolyn’s favor in terms of both acreage

and value. The court then allowed Carolyn and her former attorney to testify to their

belief that the Settlement Agreement required dividing the property into two tracts

as set out in the survey. Mary and her former attorney were allowed to testify that

they had received a copy of the Brookes Baker Survey before executing the

27 Settlement Agreement, but they did not agree to the division of the property as set

out in that survey and that, if that survey had formed the basis of the Settlement

Agreement, Mary would not have agreed to it.

We disagree with the trial court that the Settlement Agreement is ambiguous.

The Settlement Agreement identifies the Marble Falls Property, provides that it is to

be divided in such a way that Mary’s trust receives a tract worth one-half of the value

of the entire property and Carolyn’s trust receives a tract worth one-half of the value

of the entire property, and further provides that Mary’s trust is to receive the “West

50%” and Carolyn’s trust the “East 50%.” As Mary argues, this language is clear

and can be given definite meaning: the sisters agreed that the Marble Falls Property

was to be divided into two tracts, equivalent in value, and that Mary would receive

the western tract and Carolyn the eastern tract. This language is not reasonably

susceptible to more than one meaning. See Barrow-Shaver Res., 590 S.W.3d at 479

(stating that contract is unambiguous if language can be given certain or definite

legal meaning, but if language is subject to two or more reasonable interpretations,

contract is ambiguous and fact issue exists concerning parties’ intent); cf. Toler v.

Sanders, 371 S.W.3d 477, 481 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

(stating that phrase “50% of the community property of Ron’s Rail Road Retirement

Benefits” in mediated settlement agreement is not reasonably susceptible to more

than one meaning and unambiguously entitles wife “to that share of all of the

28 retirement benefits earned for the specified period under the railroad retirement

plan”).

To the extent the trial court ruled that the Settlement Agreement was

ambiguous because it was silent on precisely how the Marble Falls Property was to

be divided and did not set out metes and bounds for the two specific tracts, we note

that our sister courts have repeatedly held that ambiguity in contract language is not

to be confused with silence. See Providence Land Servs., LLC v. Jones, 353 S.W.3d

538, 543 (Tex. App.—Eastland 2011, no pet.); E.P. Towne Ctr. Partners, L.P. v.

Chopsticks, Inc., 242 S.W.3d 117, 122 (Tex. App.—El Paso 2007, no pet.) (“There

is a significant legal difference between a contract’s silence—i.e., its failure to

address a particular issue—and the presence of an ambiguity in the contract

language.”); Hewlett-Packard Co. v. Benchmark Elecs., Inc., 142 S.W.3d 554, 561

(Tex. App.—Houston [14th Dist.] 2004, pet. denied); Lidawi v. Progressive Cty.

Mut. Ins. Co., 112 S.W.3d 725, 731 (Tex. App.—Houston [14th Dist.] 2003, no pet.);

Embrey v. Royal Indemn. Co., 986 S.W.2d 729, 731 n.2 (Tex. App.—Dallas 1999),

aff’d, 22 S.W.3d 414 (Tex. 2000).

An ambiguity results when the intention of the parties is expressed in language

that is susceptible to more than one meaning. Providence Land Servs., 353 S.W.3d

at 543. In contrast, when a contract is silent, the question “is not one of interpreting

the language but, rather, one of determining its effect.” Id.; E.P. Towne Ctr.

29 Partners, 242 S.W.3d at 122 (“When a contract is silent on a particular issue, the

court must determine the effect of the silence.”). Courts may not and will not rewrite

contracts to insert provisions that the parties could have included, but did not, and

that are not essential to the construction of the language of the contract. Robinson v.

Home Owners Mgmt. Enters., Inc., 549 S.W.3d 226, 240 (Tex. App.—Fort Worth

2018), aff’d, 590 S.W.3d 518 (Tex. 2019); Providence Land Servs., 353 S.W.3d at

543 (“Courts are without authority to supply the missing terms of a contract which

the parties themselves had either not seen fit to place in their agreement, or which

they omitted to agree upon.”) (quoting Dempsey v. King, 662 S.W.2d 725, 728 (Tex.

App.—Austin 1983, writ dism’d)); Hewlett-Packard, 142 S.W.3d at 561 (“A jury

may not be called upon to construe the legal effect of an agreement or to supply an

essential term upon which the parties did not mutually agree.”).

The fact that the Settlement Agreement did not specify, through metes and

bounds or some other method, how Carolyn was to divide the Marble Falls Property

does not make the language in the Settlement Agreement ambiguous. The agreement

provided that the property was to be divided into two tracts of equivalent value, with

Mary receiving the western tract and Carolyn receiving the eastern tract. As we have

held, this language can be given certain and definite legal meaning, and it is not

susceptible to more than one reasonable interpretation. We therefore conclude that

the Settlement Agreement is not ambiguous. See Barrow-Shaver Res., 590 S.W.3d

30 at 479 (stating that contract is unambiguous if language can be given certain or

definite legal meaning, but if language is subject to two or more reasonable

interpretations, contract is ambiguous and fact issue exists concerning parties’

intent).

Carolyn argues that, even if the Settlement Agreement’s language is

unambiguous, the trial court properly allowed the admission of the Brookes Baker

Survey and the testimony of the parties and their former attorneys concerning their

interpretations of the Settlement Agreement because this evidence provided context

to the Settlement Agreement and informed, rather than contradicted, the terms of the

agreement, which are permissible uses for parol evidence. We disagree.

During trial, Carolyn and her former attorney testified that the Brookes Baker

Survey—which was also admitted into evidence—had been completed prior to

execution of the Settlement Agreement and that the way that survey divided the

Marble Falls Property into two tracts formed the basis of the “West 50%” and “East

50%” language in the Settlement Agreement. Carolyn’s former attorney agreed,

however, that the Settlement Agreement did not refer to the Brookes Baker Survey

and the survey was not attached as an exhibit to the Settlement Agreement or

otherwise incorporated by reference into the agreement. Mary and her former

attorney testified that, although they were aware of the Brookes Baker Survey prior

to signing the Settlement Agreement, Mary did not agree with how that survey

31 proposed division of the property and, if that survey had formed the basis of how the

property was to be divided, Mary would not have signed the Settlement Agreement.

And Carolyn testified that she herself divided the Marble Falls Property based on

the Brookes Baker Survey after the sisters entered into the Settlement Agreement.

Question Number One of the jury charge asked, “Did Carolyn and Mary agree

to divide the Marble Falls 60 acres pursuant to the Survey?” The charge defined

“Survey” as the Brookes Baker Survey. This question included the following

instructions: “You must decide the intent of the parties at the time of the Settlement

Agreement. Consider all the facts and circumstances surrounding the making of the

Settlement Agreement, the interpretation placed on the Settlement Agreement by the

parties, and the conduct of the parties.” The jury answered “yes” to this question.

When a contract is unambiguous, courts “may still consider the surrounding

‘facts and circumstances’” in which the agreement was made, “but ‘simply [as] an

aid in the construction of the contract’s language.’” First Bank, 519 S.W.3d at 110

(quoting Sun Oil Co. (Del.) v. Madeley, 626 S.W.2d 726, 731 (Tex. 1981)). The

parol evidence rule “does not prohibit consideration of surrounding circumstances

that inform, rather than vary from or contradict, the contract text.” Id. (quoting

Houston Expl., 352 S.W.3d at 469). Courts may not use extrinsic evidence, however,

to show “that the parties probably meant, or could have meant, something other than

32 what their agreement stated.” Id. (quoting Anglo-Dutch Petroleum Int’l, 352 S.W.3d

at 451). As the Texas Supreme Court has stated:

Parties cannot rely on extrinsic evidence to “give the contract a meaning different from that which its language imports,” “add to, alter, or contradict” the terms contained within the agreement itself, “make the language say what it unambiguously does not say,” or “show that the parties probably meant, or could have meant, something other than what their agreement stated.”

URI, 543 S.W.3d at 769 (internal citations omitted).

Here, the Settlement Agreement instructed Carolyn, as trustee of the trust that

owned the Marble Falls Property, to divide the Property into two tracts, east and

west, of equal value. It made no reference to the Brookes Baker Survey, and that

survey was not attached as an exhibit to or incorporated into the Settlement

Agreement. The trial court, however, allowed the parties and their former attorneys

to testify concerning whether they agreed that the Marble Falls Property should be

divided according to the Brookes Baker Survey. The use of parol evidence in this

case went beyond using “objectively determinable” facts and circumstances, see

Houston Expl., 352 S.W.3d at 469, as “an aid in the construction of the contract’s

language.” See First Bank, 519 S.W.3d at 110; see also Anglo-Dutch Petroleum

Int’l, 352 S.W.3d at 451 (stating that courts may consider surrounding circumstances

“in determining the parties’ intent as expressed in the agreement” but cannot use

extrinsic evidence to show parties probably meant something other than what

agreement stated). Instead, the jury heard evidence of Carolyn’s subjective intent 33 that the division of the Marble Falls Property into a “West 50%” tract and an “East

50%” tract would occur pursuant to the division set out in the Brookes Baker Survey.

See URI, 543 S.W.3d at 769–70 (“Even though the contract admits no ambiguity,

the lower courts engrafted limitations that are entirely external to the instrument and

directed to fulfilling Kleberg County’s unexpressed subjective intent. This is not a

proper use of surrounding facts and circumstances. ‘[C]ourts cannot rewrite the

parties’ contract or add to or subtract from its language.’”) (quoting Fischer v. CTMI,

L.L.C., 479 S.W.3d 231, 242 (Tex. 2016)).

Moreover, the jury was ultimately asked to determine whether Carolyn and

Mary agreed to divide the Marble Falls Property pursuant to the Brookes Baker

Survey, even though the relevant contract—the Settlement Agreement—said

nothing about the survey, and Mary and her former counsel disputed Carolyn’s claim

that there had ever been an agreement between the sisters to divide the Property in

accordance with that survey. The survey was not included in the exhibits attached to

the Settlement Agreement, and Carolyn, the trustee of the trust that owned the

Property, testified that she divided the property according to the Brookes Baker

Survey after the Settlement Agreement had been signed. Thus, in this case, parol

evidence was used not as an aid to interpret language in the contract, but instead to

add terms to the unambiguous Settlement Agreement that were not included in that

contract and were even contrary to its plain language. See Barrow-Shaver Res., 590

34 S.W.3d at 479 (stating that, when construing contract, we look to language of

parties’ agreement); Great Am. Ins., 512 S.W.3d at 893 (“A contract’s plain

language controls, not ‘what one side or the other alleges they intended to say but

did not.’”). This is an impermissible use of parol evidence. See Barrow-Shaver Res.,

590 S.W.3d at 483; URI, 543 S.W.3d at 769–70; First Bank, 519 S.W.3d at 110 (“In

the same way that dictionary definitions, other statutes, and court decisions may

inform the common, ordinary meaning of a statute’s unambiguous language,

circumstances surrounding the formation of a contract may inform the meaning of a

contract’s unambiguous language. But courts may not rely on evidence of

surrounding circumstances to make the language say what it unambiguously does

not say.”) (internal citation omitted).

We conclude that, because the language of the Settlement Agreement is

unambiguous, the trial court—and not the jury—should have determined the parties’

intent as a matter of law, “and it could not do so by relying on extrinsic evidence to

create an intent that the contract itself does not express.” See First Bank, 519 S.W.3d

at 110. We therefore hold that the trial court reversibly erred by ruling that the

Settlement Agreement was ambiguous, admitting and instructing the jury to consider

parol evidence concerning whether the parties intended to divide the Marble Falls

Property according to the Brookes Baker Survey, and submitting Question Number

One to the jury.

35 We sustain Mary’s first issue.

Specific Performance

In her second issue, Mary contends that the trial court erred by awarding

specific performance of the Settlement Agreement to Carolyn when she did not

obtain jury findings on the essential elements of specific performance. Specifically,

she argues that Carolyn failed to obtain jury findings that (1) she tendered her own

performance and (2) that she was ready, willing, and able to perform “at all times

relevant to the contract and thereafter.”

Specific performance is an equitable remedy that may be awarded upon a

showing of breach of contract. Ifiesimama v. Haile, 522 S.W.3d 675, 685 (Tex.

App.—Houston [1st Dist.] 2017, pet. denied); Stafford v. S. Vanity Magazine, Inc.,

231 S.W.3d 530, 535 (Tex. App.—Dallas 2007, pet. denied). Specific performance

is not a separate cause of action but is instead an equitable remedy that is used as a

substitute for monetary damages when such damages would not be adequate.

Ifiesimama, 522 S.W.3d at 685; Stafford, 231 S.W.3d at 535. To be entitled to the

remedy of specific performance, the plaintiff must show that she has substantially

performed her part of the contract and that she is able to continue performing her

part of the agreement but that the other party has breached the contract. DiGiuseppe

v. Lawler, 269 S.W.3d 588, 594 (Tex. 2008); Ifiesimama, 522 S.W.3d at 685. “The

plaintiff’s burden of proving readiness, willingness and ability [to perform] is a

36 continuing one that extends to all times relevant to the contract and thereafter.”

DiGiuseppe, 269 S.W.3d at 594. “The party seeking specific performance must show

that [she] has complied with [her] obligations under the contract.” Ifiesimama, 522

S.W.3d at 685; see DiGiuseppe, 269 S.W.3d at 594 (“It is also a general rule of

equity jurisprudence in Texas that a party must show that he has complied with his

obligations under the contract to be entitled to specific performance.”). As a general

rule, the party seeking specific performance must actually tender performance as a

prerequisite to obtaining this remedy. Ifiesimama, 522 S.W.3d at 685–86. For

specific performance to be awarded, the fact-finder must find that the defendant has

breached a contract. Ifiesimama, 522 S.W.3d at 690.

Here, the jury charge asked multiple questions relating to breach of the

Settlement Agreement. Question Number One asked whether Carolyn and Mary

agreed to divide the Marble Falls property “pursuant to the Survey.” The jury

answered “yes” to this question. Question Two asked whether Carolyn—who

divided the Property according to the Brookes Baker Survey—failed to comply with

the Settlement Agreement “with respect to the Marble Falls 60 acres.” The jury

answered “no” to this question. Question Four asked whether Mary failed to comply

with the Settlement Agreement “with respect to the ‘Agreed Order of Dismissal’”

and Question Five asked whether Mary’s failure to comply was excused. The jury

answered that Mary failed to comply with the Settlement Agreement and that her

37 failure was not excused. Because the jury found that Carolyn did not fail to comply

with the Settlement Agreement, the jury did not answer Question Six, concerning

who failed to comply with the Settlement Agreement first. The jury charge did not

include questions on whether either Carolyn or Mary was ready, willing, or able to

perform under the contract.

The jury questions on breach of contract, particularly the questions concerning

whether Carolyn breached the Settlement Agreement, are related to Question One,

whether the sisters agreed to divide the Property pursuant to the Brookes Baker

Survey. We have held, however, that the trial court erred in its submission of this

question to the jury. Because we hold that the issue of breach of the Settlement

Agreement must be retried, and specific performance is an equitable remedy for

breach for contract, we likewise reverse the trial court’s judgment awarding Carolyn

specific performance of the Settlement Agreement.

We sustain Mary’s second issue.6

6 Because we hold that the trial court erred in submitting the breach of contract issue to the jury and remand this case for a new trial, Carolyn is no longer a prevailing party entitled to attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (providing that person may recover reasonable attorney’s fees “in addition to the amount of a valid claim and costs” if claim is for written contract). We therefore do not address Mary’s third issue—whether the trial court erred in awarding Carolyn her unsegregated attorney’s fees. 38 Conclusion

We reverse the judgment of the trial court and remand this case for further

proceedings consistent with this opinion.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Lloyd, and Landau.