Richard S. Ohendalski v. Frank Daniel Leasure and Choctaw Payroll Services, Inc., Dan-Cav Enterprises, Inc., the ELC Trust, and Mountaintop Management Trust

• Court: Court of Appeals of Texas
• Decided: March 29, 2017
• Docket: 10-16-00124-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-16-00124-CV

RICHARD S. OHENDALSKI, Appellant v.

FRANK DANIEL LEASURE AND CHOCTAW PAYROLL SERVICES, INC., DAN-CAV ENTERPRISES, INC., THE ELC TRUST, AND MOUNTAINTOP MANAGEMENT TRUST, Appellees

From the 278th District Court Walker County, Texas Trial Court No. 24,095

MEMORANDUM OPINION

Richard Ohendalski appeals from the trial court’s order granting Frank Leasure’s

Motion to Enforce Rule 11 Agreement and dismissing Ohendalski’s cause with prejudice.

We affirm. Background Facts

On December 14, 2007, Richard Ohendalski filed suit against Frank Leasure and

four entities owned or controlled by Leasure to recover for accounting services. On

March 28, 2013, the trial court entered an order granting Ohendalski’s motion for

summary judgment. Leasure obtained counsel and filed a Motion for Rehearing, for New

Trial, or to Alter or Amend the Judgment. The trial court granted the motion and set

aside the order granting Ohendalski’s motion for summary judgment. The parties

entered into a settlement agreement in August 2013, and Leasure paid Ohendalski

$25,000 in settlement in exchange for a dismissal of the lawsuit with prejudice.

Ohendalski subsequently filed a nonsuit with respect to Leasure, but not the other four

entities owned by Leasure.

On August 24, 2015, Ohendalski filed a motion to compel discovery against the

four entities, Choctaw Payroll Services, Inc., Dan-Cav Enterprises, Inc., The ELC Trust,

and Mountaintop Management Trust. Leasure filed a Motion to Enforce Rule 11

Agreement, and the trial court granted the motion and dismissed the remaining claims

in the lawsuit.

Enforcement of Agreement

In the first, second, and third issues, Ohendalski argues that the trial court erred

in enforcing the Rule 11 Agreement and dismissing the lawsuit. The Settlement

Agreement states that it is made and entered by and between Ohendalski and Leasure.

Ohendalski v. Leasure Page 2 The Settlement Agreement further states that Ohendalski filed a “lawsuit” and defines

the “lawsuit” as being against Leasure and Choctaw Payroll Services, Inc., Dan-Cav

Enterprises, Inc., The ELC Trust, and Mountaintop Management Trust to recover for:

accounting services, punitive damages, interest, costs, and other expenses. The parties

agreed to compromise and settle all of their differences in the “lawsuit,” and the

Settlement Agreement specifically provided that “the Lawsuit shall be promptly

dismissed with prejudice after the execution of this Agreement and Leasure’s payment

of the Settlement Amount.” The record shows that the parties agreed to dismiss the entire

“lawsuit” which is specifically defined in the Settlement Agreement as including all the

named defendants. The trial court did not err in enforcing the Rule 11 Agreement and

dismissing the lawsuit.

Ohendalski argues that the trial court erred in failing to recognize his timely

revocation of the Settlement Agreement. The Settlement Agreement was signed in

August 2013, and Ohendalski accepted the consideration under the agreement. Over two

years later on January 20, 2016, Ohendalski filed a notice of revocation of Rule 11

Agreement in the trial court.

Rule 11 requires that the agreement be filed of record before the court may enforce

it. Coale v. Scott, 331 S.W.3d 829, 831(Tex.App.-Amarillo 2011, no pet.). If the accord is in

writing, signed by the parties or their attorneys, and filed of record, it does not matter

whether a party no longer agrees to it when the trial court is finally asked to enforce it.

Ohendalski v. Leasure Page 3 Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.1995); Coale v. Scott, 331 S.W.3d at 832. The

trial court did not err in finding that Ohendalski’s revocation of the Rule 11 Agreement

was invalid. We overrule the first, second, and third issues.

Findings of Fact

In the fourth issue, Ohendalski complains that the trial court failed to provide

findings of fact and conclusions of law. The record shows that the trial court signed

findings of fact and conclusions of law on April 4, 2016. We overrule the fourth issue.

Summary Judgment

In the fifth issue, Ohendalski argues that the trial court erred in setting aside its

order granting his motion for summary judgment. The trial court has the power to set an

interlocutory order aside any time before the final judgment is entered. Fruehauf

Corporation v. Carillo, 848 S.W.2d 83, 84 (Tex.1993). We find that the trial court did not err

in setting aside its order granting Ohendalski’s motion for summary judgment. We

overrule the fifth issue.

Default Judgment

In the sixth issue, Ohendalski argues that the trial court erred in failing to grant

default judgments for him against the four entity defendants. Ohendalski contends that

the four entities were not represented by counsel and did not file an answer to the lawsuit.

Ohendalski does not cite to any authority to support his argument. Citation to authorities

is required in order to properly present an issue to this Court. TEX.R.APP. P. 38.1. This

Ohendalski v. Leasure Page 4 issue is inadequately briefed and therefore, presents nothing for review. See TEX.R.APP.

P. 38.1(h). Moreover, the record shows that Ohendalski entered into a settlement

agreement after he filed a motion for default judgment in which he agreed to dismiss the

lawsuit which included his claims against the four entities. We overrule the sixth issue.

Conclusion

We affirm the trial court’s judgment.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray dissenting) Affirmed Opinion delivered and filed March 29, 2017 [CV06]

Ohendalski v. Leasure Page 5