Wesley Roemer v. Edd Haskins

Opinion

ACCEPTED

05-17-01335-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

6/4/2018 11:10 AM

LISA MATZ

CLERK

No. 05-17-01335-CV

___________________________________________________________

FILED IN

5th COURT OF APPEALS

In the Fifth District Court Appeals DALLAS, TEXAS

at Dallas, Texas 6/4/2018 11:10:08 AM

___________________________________________________________

LISA MATZ

Clerk

Wesley Roemer,

Appellant , FILED IN

5th COURT OF APPEALS

DALLAS, TEXAS

v. 6/4/2018 11:10:08 AM LISA MATZ

Clerk

Edd Haskins,

Appellee.

___________________________________________________________

Appellant’s Brief

___________________________________________________________

Scott P. Stolley Craig A. Albert State Bar No. 19284350 State Bar No. 00790076 scott@appellatehub.com calbert@cplalaw.com Stolley Law, P.C. Cherry Petersen Landry 4810 Purdue Ave. Albert LLP Dallas, Texas 75209 8350 N. Central Expressway Phone: (469) 235-4588 Suite 1500 Dallas, Texas 75206

Phone: (214) 382-3040

Counsel for Appellant Wesley Roemer Oral Argument Requested

LIST OF PARTIES AND COUNSEL

Appellant/Cross-Appellee/ Appellate Counsel Plaintiff

Wesley Roemer Scott P. Stolley Stolley Law, P.C.

4810 Purdue Ave.

Dallas, Texas 75209

Trial and Appellate Counsel

Craig A. Albert

Kartik R. Singapura

Cherry Petersen Landry

Albert LLP

8350 N. Central Expressway Suite 1500

Dallas, Texas 75206

Appellee/Cross-Appellant/ Appellate Counsel Defendant

Edd Haskins Jeffrey S. Levinger Levinger PC

1700 Pacific Ave.

Suite 2390

Dallas, Texas 75201

J. Carl Cecere

Cecere PC

6035 McCommas Blvd.

Dallas, Texas 75206

Trial Counsel

Michael J. Lang

Crawford, Wishnew & Lang

PLLC

1700 Pacific Ave

Suite 2390

Dallas, Texas 75201

William S. Richmond

Platt Cheema Richmond PLLC 3906 Lemmon Ave.

Suite 212

Dallas, Texas 75219

TABLE OF CONTENTS

Page

List of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

___________________________________________________________

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . 14

___________________________________________________________

Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

___________________________________________________________

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 (1) The LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 (2) The Settlement Agreement . . . . . . . . . . . . . . . . . . . 16 (3) The Endeavor Deals . . . . . . . . . . . . . . . . . . . . . . . . 17 (4) The Southpark Project . . . . . . . . . . . . . . . . . . . . . . . 18 (5) The Steiner Ranch Project . . . . . . . . . . . . . . . . . . . . 19 (6) Roemer’s Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 (7) The Judicial Resolution . . . . . . . . . . . . . . . . . . . . . . 22

Appellant’s Brief Page 4

Page

___________________________________________________________

Summary of Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

(1) Denial of Roemer’s Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

(2) Granting of Haskins’s Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

(3) Erroneous Final Judgment . . . . . . . . . . . . . . . . . . . 25

___________________________________________________________

Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Paragraph F of the Settlement Agreement perpetuated the LLC for certain projects, including current and future Endeavor projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

2. The Settlement Agreement does not allow Haskins to individually pursue Endeavor projects, including the Southpark and Steiner Projects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

3. Haskins admitted that the Southpark and Steiner Projects were opportunities of the LLC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

4. Haskins did not conclusively defeat Roemer ’s contract claim. . . . . . . . . . . . . . . . . . . . . . . . . . 39

5. Haskins’s fiduciary duties barred him from usurping Endeavor projects, including the Southpark and Steiner Projects. . . . . . . . . . . . . . . . . 41

Appellant’s Brief Page 5

Page

6. The law of usurpation of corporate opportunities also supports Roemer’s appeal. . . . . . . . . . . . . 43

7. Nothing in the Settlement Agreement waived or limited Haskins’s fiduciary duties regarding Endeavor projects. . . . . . . . . . . . . . . . . . . . 46

8. The trial court did not enter any declarations for Haskins. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

9. The Settlement Agreement contains no condition precedent to Roemer’s right to recover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

10. Alternatively, the Settlement Agreement is ambiguous, requiring a remand for a jury trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

___________________________________________________________

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

___________________________________________________________

Appendices A — Final Judgment (SuppCR4-6)

B — Order on Motions for Summary Judgment (3CR3046-48)

C — Order on Motions for Summary Judgment (3CR3138-40)

Appellant’s Brief Page 6

D — Settlement Agreement and Release (1CR711-718)

INDEX OF AUTHORITIES

CASES

Page

Allen v. Devon Energy Holdings, L.L.C., 367 S.W.3d 355 (Tex. App.—

Houston [1st Dist.] 2012, rev.

granted and judgm’t set aside by agreement) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Arredondo v. City of Dallas, 79 S.W.3d 657 (Tex. App.—

Dallas 2002, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Calvert v. Employees Retirement Sys. of Tex., 648 S.W.2d 418 (Tex. App.—

Austin 1983, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . 51

Cantey Hanger LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) . . . . . . . . . . . . . . . . . . . . . . . . 49

Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) . . . . . . . . . . . . . . . . . . . 28, 29, 53

Criswell v. European Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945 (Tex. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 52

Dunagan v. Bushey, 152 Tex. 530, 263 S.W.2d 148 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . 29

Page

Furmanite Worldwide, Inc. v. NextCorp, Ltd., 339 S.W.3d 326 (Tex. App.—

Dallas 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Gearhart Indus., Inc. v. Smith Int’l, Inc., 741 F.2d 707 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . 44

Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 44

Heritage Res., Inc. v. NationsBank, 939 W.W.2d 118 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . 29

Highlands Mgmt. Co. v. First Interstate Bank, 956 S.W.2d 749 (Tex. App.—

Houston [14th Dist.] 1997, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354

Imperial Group (Texas), Inc. v. Scholnick, 709 S.W.2d 358 (Tex. App.—

Tyler 1986, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . 48

In re Hardee, 2013 WL 1084494 (Bankr.

E.D. Tex. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

In re TSC Sieber Servs., LC, 2012 WL 5046820 (Bankr.

E.D. Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Page

International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963) . . . . . . . . . . . . . . . . . . . . . . . . 44

Jochec v. Clayburne, 863 S.W.2d 516 (Tex. App.—

Austin 1993, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . 47

Kartsotis v. Bloch, 503 S.W.3d 506 (Tex. App.—

Dallas 2016, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 37, 39

Landon v. S&H Mktg. Group, Inc., 82 S.W.3d 666 (Tex. App.—

Eastland 2002, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Lifshutz v. Lifshutz, 199 S.W.3d 9 (Tex. App.—

San Antonio 2006, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 42

Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . 46

Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Petro Pro, Ltd. v. Upland Res. Inc., 279 S.W.3d 743 (Tex. App.—

Amarillo 2007, pet. denied) . . . . . . . . . . . . . . . . . . . . . . 50, 51

Page

Redmon v. Griffith, 202 S.W.3d 225 (Tex. App.—

Tyler 2006, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . 28

Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438 (Tex.1993) . . . . . . . . . . . . . . . . . . . . . . . . 54

Strebel v. Wimberly, 371 S.W.3d 267 (Tex. App.—

Houston [1st Dist.] 2012, pet.

denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 46, 47

White v. Moore, 760 S.W.2d 242 (Tex.1988) . . . . . . . . . . . . . . . . . . . . . . . . 54

Wynnewood State Bank v. Embrey, 451 S.W.2d 930 (Tex. Civ. App.

—Dallas 1970, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . 28

XCO Prod. Co. v. Jamison, 194 S.W.3d 622 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

STATUTES

Tex. Civ. Prac. & Rem. Code ch. 37 . . . . . . . . . . . . . . . . . . . 26

STATEMENT OF THE CASE

This dispute between the two co-managers/members of a

Texas real-estate-development LLC was adjudicated by a partial summary judgment, followed by a bench trial before the Hon Gena Slaughter, of the 191st District Court of Dallas County. (SuppCR4-6.)

Plaintiff/Appellant Wesley Roemer appeals:

(1) the orders denying him summary judgment on (a)

his declaratory-judgment claim to construe the contract at issue, and (b) his breach-of-fiduciary-

duty claim against Defendant/Appellee Edd Haskins for usurping the Southpark Project;

(2) the summary-judgment orders granting Haskins (a) a take-nothing summary judgment on Roemer ’s breach-of-contract and breach-of-fiduciary-

duty claims, and (b) declaratory relief regarding the contract at issue; and

(3) the Final Judgment, but only insofar as it incorporates those prior summary-judgment orders against Roemer and for Haskins.

(3CR3046-48, 3138-40; SuppCR4-6.)

Haskins has cross-appealed as to the awards made against him in the Final Judgment (entered after the bench trial), award- ing Roemer: (a) about $117,000 in actual damages for the Chapel

Colorado and Brodie Projects; (b) $50,000 in attorney’s fees for trial; (c) additional attorney’s fees for appeal; (d) prejudgment in- terest; and (e) post-judgment interest. (SuppCR4-6.)

STATEMENT REGARDING ORAL ARGUMENT Roemer requests oral argument because of the complicated summary-judgment history of this case.

ISSUES

Erroneous Summary-Judgment Orders — Did the trial court commit reversible error by: (a) denying Roemer’s motion for sum- mary judgment on his claim to declare the contract’s interpreta- tion and on his breach-of-fiduciary-duty claim regarding the Southpark Project; (b) granting Haskins a take-nothing sum- mary judgment on Roemer’s breach-of-contract and fiduciary- duty claims; and (c) granting Haskins a summary judgment on his claim to declare the contract’s interpretation?

STATEMENT OF FACTS

(1) The LLC In July 2008, Roemer and Haskins began operating a real-

estate-development business through an entity they formed, called Haskins/Roemer, L.L.C. (the “LLC”). (1CR705-06.) Through the LLC, Roemer and Haskins developed sites for the construction of self-storage facilities. (1CR706.)

(2) The Settlement Agreement A dispute arose between Roemer and Haskins about their relative roles in the LLC, and in December 2011, they entered into a Settlement Agreement and Release (the “Settlement Agreement”) to resolve the dispute. (1CR706-07, 711-18, 726-27.) At the time of the Settlement Agreement, Roemer and Haskins, as the sole members of the LLC, had the option of winding up the LLC, but they chose not to do so. (1CR706-07.) Instead, as Haskins said, “at the time the Settlement Agreement was en- tered into, we felt like the association between the two of us was more beneficial than each of us individually going our own way ... .” (1CR731; see 1CR712 (Recital H, saying the same thing).)

Therefore, the Settlement Agreement states that the LLC continued to exist for the limited purpose of the following deals: “Pflugerville, Brodie, Chapel Colorado and any current or future Endeavor [Real Estate Group] deals ... .” (1CR715 (emphasis added).) Endeavor Real Estate Group acted as an equity partner on the Brodie Project with the LLC. (1CR695.) On behalf of the LLC, Roemer also worked extensively on developing other poten- tial projects with Endeavor. (2CR1730-34; 3CR1924-27, 1934-36.)

(3) The Endeavor Deals Expressly dealing with “Endeavor deals,” Paragraph F of the Settlement Agreement states in pertinent part:

Notwithstanding the foregoing, the Parties agree to give Endeavor the right of first refusal on all self-

storage deals in either the Austin or DFW SMSA.

This requirement will expire on August 31, 2014 or one year after the issuance of a CO for any Endeavor Haskins/Roemer, LLC self-storage project commenced before August 31, 2013, whichever comes later. Each party must be copied on all correspondence offer or presentation of any deal made to Endeavor . If Endeavor declines to pursue such deal within fourteen (14) days after same is presented to Endeavor either party shall be free to take any such deal to third-parties with no obligation to Haskins/Roemer LLC or the other Party. If, however, Endeavor has indicated an interest in pursuing the deal the Parties agree that they will not take the deal to any third-party so long as Endeavor continues to actively pursue such deal.

(1CR715.) This language ensures that if there are projects with Endeavor, such projects will be done for the benefit of the LLC, rather than for the benefit of Roemer or Haskins individually. (1CR705-09, 715; 2CR1706-08, 1714-17, 1730-34; 3CR1924-26, 1934-36; see pages 26-39, below.)

(4) The Southpark Project As early as January 2011, almost a year before execution of the Settlement Agreement, Roemer began performing significant feasibility work and financial projections on behalf of the LLC for a project known as Southpark Meadows (the “Southpark Pro- ject”). (1CR708.) The Southpark Project was a self-storage project in the Austin SMSA,1 which was underwritten and developed

1 SMSA is an abbreviation for Standard Metropolitan Statistical Area. (1CR558-59.)

with Endeavor. (Id.)

Roemer performed work on the Southpark Project until Haskins unilaterally excluded Roemer and the LLC from the pro- ject. (Id.) Haskins cut Roemer and the LLC out of communica- tions with Endeavor, and took the project for himself. (1CR705- 09.) Haskins pursued the Southpark Project with Endeavor for the benefit of Southpark SS, LLC (“Southpark SS”), an entity formed by Haskins in July 2012, nearly four months before Haskins unilaterally excluded Roemer and the LLC from the Southpark Project. (1CR788-90.)

Earlier emails from Endeavor showed Endeavor’s under-

standing that the LLC was part of the Southpark Project. (2CR848 (Roemer explaining how Endeavor sent him banking documents showing his liability on the Southpark Project, thus reflecting Endeavor’s understanding that Roemer was indeed part of the deal).)

(5) The Steiner Ranch Project For the LLC, Roemer was in charge of preparing pro formas, feasibility studies, and unit-mix analysis, to send to Endeavor re- lated to the Steiner Ranch Project, and he, in fact, did provide those services, both before and after the Settlement Agreement. (3CR1934-35.) Haskins’s email to Roemer dated August 31, 2012 (long after the Settlement Agreement) confirms that Roemer was preparing the “update” on Steiner Ranch to provide to Endeavor. (3CR1937 (“Steiner is on a fast track to close. Can you have the update by Monday?”).) Haskins’s email to Roemer dated Septem- ber 1, 2012 instructs him, in addition to “updating rents and de- mands,” to “project separately what this will look like if they [the competitors] actually build the dam site project and both [the competitors’ project and the project of Endeavor/Haskins/Roe- mer] are in lease-up at the same time.” (3CR1938.)

As reflected in the September 1st email, Roemer was working on this “as fast as I can.” (Id.) In response to these instructions, on September 6, 2012, Roemer delivered the “Proforma Storage Steiner Marshall Ford Site,” which reflects his extensive work on the Steiner Ranch Project being developed by Endeavor and the LLC. (3CR1939-44.) On that same day, Roemer sent to Endeavor the related report entitled “Estimate Demand for Steiner Ranch/ Marshall.” (3CR1945-54.)

After Roemer’s delivery of this work product, Haskins stopped communicating with Roemer with any regularity. In the next day or so, Haskins declared unilaterally that the LLC was “terminated.” (3CR1935.)

(6) Roemer’s Claims In this lawsuit, Roemer contends (among other things) that by forming Southpark SS and pursuing the Southpark Project with Endeavor, Haskins breached the Settlement Agreement and his fiduciary duty to the LLC, by usurping the opportunity be- longing to the LLC. (1CR23-24.) Roemer also asserted claims for breach of contract and breach of fiduciary duty with respect to any other Endeavor projects that Haskins usurped for himself. (1CR33.) During discovery, Roemer learned that Haskins had usurped at least one other Endeavor project (Steiner Ranch). (See pages 19-21, above.) Further, Roemer asserted claims for money that Haskins owed him for the Chapel Colorado and Brodie Pro- jects. (1CR480-83.)

(7) The Judicial Resolution Roemer filed a traditional motion for partial summary judg-

ment, seeking (a) a declaration construing Paragraph F of the Settlement Agreement, and (b) imposition of liability on Haskins for his breach of fiduciary duty in usurping the LLC’s opportunity in the Southpark Project. (1CR693-702.) Haskins filed multiple motions for summary judgment on various topics. (1CR101-23, 1CR281-323; 2CR1886-94; 3CR2442-54.)

The trial court denied Roemer’s motion for summary judg-

ment and granted three of Haskins’s motion for summary judg- ment. 2 (3CR3046-48; SuppCR4-6.) But in the process, the court reserved for a bench trial Roemer’s claims regarding the Brodie and Chapel Colorado Projects. (3CR3046-48, 3138-40.) After the

2 The trial court also granted a fourth motion for summary judgment that Haskins filed (regarding NL Land Holdings), but that summary judgment is not at issue in this appeal. (3CR2442-54.)

bench trial, the court entered judgment awarding amounts to Roemer for the Brodie and Chapel Colorado Projects, as described on pages 12-13, above.

SUMMARY OF ARGUMENTS

(1) Denial of Roemer’s Summary Judgment — The trial court erred in denying Roemer’s motion for summary judgment on his declaratory and fiduciary-duty claims, because (a) the Settlement Agreement clearly and unambiguously binds Haskins to do cur- rent and future Endeavor projects through the LLC, (b) Texas law imposes fiduciary duties on Haskins as an LLC manager, (c) the Settlement Agreement did not waive or limit Haskins’s fidu- ciary duties, and (d) Haskins breached his fiduciary duties by usurping the Southpark Project for himself. Roemer is entitled to (a) a summary judgment declaring the interpretation of the Set- tlement Agreement in his favor, (b) a summary judgment that Haskins is liable for breach of fiduciary duty related to the South- park Project, and (c) a remand for a trial on remaining issues.

(2) Granting of Haskins’s Summary Judgment — For the reasons listed above, the trial court erred in granting Haskins (a) a take-nothing summary judgment on Roemer’s breach-of-con- tract and fiduciary-duty claims, and (b) a summary judgment on

Haskins’s declaratory claim. The trial court also erred, because Haskins did not prove his lack of liability as a matter of law, and Roemer raised genuine issues of material fact that precluded summary judgment. An alternative ground for reversal is that if the Settlement Agreement is not construed in Roemer’s favor as a matter of law, then the agreement is, at a minimum, ambigu- ous, which would create a fact issue that precludes summary judgment.

(3) Erroneous Final Judgment — The summary-judgment or-

ders, which were incorporated in the Final Judgment, errone- ously deprived Roemer of a trial on his breach-of-fiduciary-duty and breach-of-contract claims, thus necessitating a remand for a trial on those claims. The judgment (and the underlying orders) are also defective by not actually making any declarations re- garding interpretation of the Settlement Agreement.

ARGUMENTS

1. Paragraph F of the Settlement Agreement perpetuated the LLC for certain projects, including current and future Endeavor projects.

Under the Declaratory Judgments Act (Texas Civil Practice

and Remedies Code ch. 37), Roemer asked the trial court to con- strue the Settlement Agreement (1CR697-98), including the key Paragraph F, which reads:

F. Independent Deals. With the exception of Pflugerville , Brodie, Chapel Colorado and any current or future Endeavor deals, Haskins/Roemer, LLC shall not pursue any future deals. Roemer and Haskins are free to pursue deals either independently or with other entities. Notwithstanding the existence of Haskins/Roemer, LLC, the Haskins/Roemer, LLC Operating Agreement, or this Settlement Agreement, either Haskins or Roemer may engage in whatever activities they choose, whether the same may be competitive with Haskins/Roemer, LLC or otherwise without having or incurring any obligation to offer any interest in such activities to Haskins/Roemer, LLC or any other member. Nothing in this Settlement Agreement or the Haskins/Roemer Operating Agreement shall prevent the members from engaging in such activities, or require any member to permit Haskins/Roemer, LLC or any other member to participate in any such activities, and as a material part of each Parties’ consideration under this Settlement Agreement, each Party hereby waives any such right or claim of participation.

Notwithstanding the foregoing, the Parties agree to give Endeavor the right of first refusal on all self-

storage deals in either the Austin or DFW SMSA.

This requirement will expire on August 31, 2014 or one year after the issuance of a CO for any Endeavor Haskins/ Roemer, LLC self-storage project commenced before August 31, 2014, whichever comes later. Each party must be copied on all correspondence , offer or presentation of any deal made to Endeavor . If Endeavor declines to pursue such deal, within fourteen (14) days after same is presented to Endeavor either party shall be free to take any such deal to third-parties with no obligation to Haskins/ Roemer, LLC or the other Party. If, however, Endeavor has indicated an interest in pursuing the deal, the Parties agree that they will not take the deal to any third-party so long as Endeavor continues to actively pursue such deal.

(1CR715.)

Based on the plain, unambiguous words of that paragraph, Roemer requested that the trial court declare, as a matter of law, the following:

(a) Both Roemer and Haskins are free to pursue any deals for development of self-storage facilities without any obli-

gation to each other or the LLC, except for the following deals: (a) Pflugerville; (b) Brodie; (c) Chapel Colorado;

and (d) any current or future deals with Endeavor.

(b) For all self-storage deals in the Austin or Dallas-Fort Worth SMSAs, the LLC must present the deal to En-

deavor subject to the stated deadline, at which point En-

deavor has the right of first refusal on such deals.

(1CR697-98.)

These requests obviously required the court to construe the Settlement Agreement, which is subject to the usual rules for con- tract interpretation. Among other things, the contract must be construed as a whole. E.g., Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). This is an application of the long-established rule that “[n]o one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions.” Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579, 583 (1938); see, e.g., Wynnewood State Bank v. Em- brey, 451 S.W.2d 930, 932 (Tex. Civ. App.—Dallas 1970, writ ref’d n.r.e.).

The court must examine and consider the entire writing in an effort to harmonize and give effect to all provisions of the con- tract so that none will be rendered meaningless. E.g., Coker, 650 S.W.2d at 393. Texas courts presume that the parties to the con- tract intend every clause to have some effect. E.g., Heritage Res., Inc. v. NationsBank, 939 W.W.2d 118, 121 (Tex. 1996); XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 627 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). Moreover, a specific provision controls over a general provision. E.g., Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex. 1994).

In this case, Roemer’s declaratory requests reflect a plain-

reading construction that gives full force and effect to the entire Settlement Agreement and gives controlling effect to specific pro- visions over general provisions.

Paragraph F starts by confirming that the LLC will continue in business, stating: “With the exception of Pflugerville, Brodie, Chapel Colorado and any current or future Endeavor deals, Haskins/Roemer, LLC shall not pursue any future deals.” (1CR715.) Although that first sentence of Paragraph F is par- tially stated in the negative (that the LLC “shall not pursue any future deals”), the sentence also makes clear that the LLC will continue for certain projects, including for “any current or future Endeavor deals.” (Id.) Other language in the Settlement Agree- ment sets out the terms under which the LLC will continue. (1CR711-18.)

The continuation of the LLC to do Endeavor projects is con-

firmed by Paragraph H. of the Recitals, which states:

H. Whereas, Haskins/Roemer, LLC is presently engaged in development deals with Endeavor Real Estate Group (“Endeavor”) and Haskins/Roemer, LLC wishes to continue to do business or attempt to do business with Endeavor and the parties believe they may more successfully deal with Endeavor as Haskins/Roemer, LLC rather than as Haskins or Roemer in their individual capacity.

(1CR712.) This recital of the Agreement’s purpose must be given effect when interpreting the Agreement. See, e.g., Furmanite Worldwide, Inc. v. NextCorp, Ltd., 339 S.W.3d 326, 336 (Tex. App.—Dallas 2011, no pet.) (court may review purpose and intent expressed in a “recital,” which is “[a] preliminary statement in a contract or deed explaining the reasons for entering into it or the background of the transaction”).

After the first sentence, the next few sentences of Paragraph F state that Roemer and Haskins are otherwise free to inde- pendently pursue other projects. (1CR715.) But then the first sen- tence of the second paragraph (under Paragraph F) states the parties’ intent that the freedom to independently pursue other projects is restricted: “Notwithstanding the foregoing, the Parties agree to give Endeavor the right of first refusal on all self-storage deals in either the Austin or DFW SMSA.” (Id.) The next few sen- tences then set out procedures for giving Endeavor the oppor- tunity to be involved in such projects with the LLC. (Id.)

Importantly, the second paragraph of Paragraph F makes clear that any project Endeavor decides to pursue will remain a project of the LLC. Roemer and Haskins are prohibited from tak- ing any such projects for themselves. The specific language is:

If Endeavor declines to pursue such deal, within fourteen (14) days after same is presented to Endeavor either party shall be free to take any such deal to third-parties with no obligation to Haskins/ Roemer, LLC or the other Party. If, however, Endeavor has indicated an interest in pursuing the deal, the Parties agree that they will not take the deal to any third-party so long as Endeavor continues to actively pursue such deal.

(Id.)

This language makes clear that as long as Endeavor is inter-

ested in (or is “pursuing”) a project, Roemer and Haskins must pursue the project through the LLC, not independently for them- selves. The parties can independently pursue such projects with other investors besides Endeavor only if Endeavor has turned down and is no longer pursuing the project. But neither Roemer nor Haskins is free to independently pursue such a project with Endeavor’s participation. The key to independently pursuing a project is whether Endeavor is involved: If Endeavor is involved, the project belongs to the LLC.

Roemer offers a common-sense, rational reading of the Set-

tlement Agreement. The reading offered by Haskins is not rea- sonable because it renders meaningless multiple portions of the Settlement Agreement, including the first sentence of Paragraph F, the second paragraph of paragraph F, and Recital H. Thus, the trial court erred by not reading the language in Roemer’s favor as a matter of law, which led the court into the error of granting summary judgment to Haskins and denying the summary judg- ment that Roemer requested. Roemer is entitled to the declara- tions he requested regarding the Settlement Agreement’s mean- ing, and Haskins is not entitled to the declarations he requested. 3

2. The Settlement Agreement does not allow Haskins to individually pursue Endeavor projects , including the Southpark and Steiner Projects .

Haskins erroneously defended his conduct by claiming that

the Settlement Agreement authorizes him to pursue individual deals. But the parties expressly agreed that the LLC would con- tinue its existence for the purpose of “any current or future En- deavor deals.” (1CR 715.) Paragraph F’s contractual allowance of “independent deals” is harmonized in the context of the first sen- tence, which expressly saves the following opportunities for the LLC: “Pflugerville, Brodie, Chapel Colorado and any current or future Endeavor deals.” (Id. (emphasis added).)

3 If the Court believes that Haskins has proffered a reasonable interpretation, then the contract is ambiguous. This scenario is discussed in section 10, below.

In furtherance of the preservation of “any current or future Endeavor deals” for the LLC, the Settlement Agreement ex- pressly:

a. Sets out a fee-split schedule for “Endeavor projects into which Haskins/Roemer, LLC enters into a Development Agreement ... .” (1CR713.)

b. Splits equally the brokerage commission for such En-

deavor projects: “The Parties agree that any brokerage fee that Haskins/Roemer LLC is to receive under any Endeavor development agreement ... will be evenly split between Haskins and Roemer.” (Id.)

c. Splits equally the equity taken by Haskins and Roemer in such future Endeavor projects: “The Parties agree that all any equity interest that Haskins/Roemer, LLC receives under any development agreement with En-

deavor will be evenly split between Haskins and Roe-

mer.” (1CR715.)

It is undisputed the Southpark Project is a project involving

Endeavor. (1CR708.) Therefore, it does not fall within the cate- gory of “independent deals” allowed by Paragraph F of the Settle- ment Agreement. (See 1CR715.) Indeed, Haskins admitted that before excluding Roemer and the LLC from the Southpark Project in October 2012, the LLC was in a position to pursue that project with Endeavor. (1CR744.)

Despite the language in Paragraph F, Haskins formed South-

park SS in July 2012 for the purpose of doing the Southpark Pro- ject with Endeavor. (1CR788-90.) The birth of this new entity was purportedly the product of Haskins “exercise[ing] our rights un- der the Settlement Agreement to compete with Mr. Roemer and with Haskins and Roemer.” (1CR741.)

But the Settlement Agreement includes no such unilateral right to omit the LLC from the Southpark Project, which is an Endeavor project within the Austin SMSA that was developed before the expiration date of August 31, 2014. (1CR707-08.) To the contrary, the Settlement Agreement expressly states that such deals belong to the LLC and may not be pursued by Haskins individually. (1CR715.)

The same is true of other projects that Haskins has done with Endeavor (whether known to Roemer or unknown to Roemer) be- fore the expiration date stated in Paragraph F. Thus, Roemer is entitled to his declarations, and Haskins is not entitled to the declarations he sought. (1CR298, 697-98.)

Finally, Haskins included a request for declarations that es-

sentially asked the court to rule that Haskins could do deals with Endeavor if Endeavor chose him over the LLC. (1CR298.) But as discussed earlier, Paragraph F means that if Endeavor is in the project, then it is an LLC opportunity. (See pages 26-36, above.) If Endeavor wants to do the deal, then the LLC must be involved, not Haskins or Roemer individually.

3. Haskins admitted that the Southpark and Steiner Projects were opportunities of the LLC.

Regarding the Southpark Project, Roemer was in charge of

preparing pro formas, feasibility studies, and unit-mix analysis, to send to Endeavor, and he, in fact, did that work for the LLC relating to the Southpark Project. (2CR1714-17.) Haskins sent emails to Roemer reflecting that Roemer was running that aspect of the project with Endeavor and that he (Haskins) was not in- volved. (2CR1718.) In the same period, Haskins was discussing with Roemer in writing what the “stake” in Southpark would be for the LLC. (2CR1719.) When addressing the “stake” or “South- park Splits,” Haskins assured Roemer in writing that “I don’t ex- pect them [Endeavor] to screw us.” (2CR1720.)

When Roemer expressed further concern about the “split,”

Haskins encouraged Roemer in writing to “feel free to speak with him [Chris Ellis at Endeavor] about it.” (2CR1722.) These con- temporaneous email communications confirm that the Southpark Project was an LLC project. See, e.g., Kartsotis v. Bloch, 503 S.W.3d 506, 516 (Tex. App.—Dallas 2016, pet. denied) (“In deter- mining the parties’ intent, we may consider the construction the parties placed on the contract as evidenced by their conduct.”). At minimum, these communications raised a fact question to pre- clude a summary judgment for Haskins.

Another “Endeavor deal” in dispute is the Steiner Project.

With respect to this project, Roemer was similarly in charge of preparing a pro forma, feasibility studies, and unit-mix analysis to send to Endeavor, and he, in fact, did provide those services for the LLC, both before and after the Settlement Agreement. (3CR1934-35.) Haskins sent an email to Roemer dated August 31, 2012 (long after the Settlement Agreement), which confirms that Roemer was preparing the “update” on Steiner to provide to En- deavor. (3CR1934-37.)

Further, Haskins’s email to Roemer dated September 1, 2012 instructs Roemer, in addition to “updating rents and demands,” to “project separately what this will look like if they [the compet- itors] actually build the dam site project and both [the competi- tors’ project and the project of Endeavor/Haskins/Roemer] are in lease-up at the same time.” (3CR1938.) In response to these in- structions, on September 6, 2012, Roemer delivered the “Proforma Storage Steiner Marshall Ford Site,” which reflects Roemer’s extensive work on the Steiner Project being developed by Endeavor in cooperation with the LLC. (3CR1939-44.) On that same day, Roemer sent to Endeavor a related report entitled “Es- timate Demand for Steiner Ranch/Marshall,” further evidencing his work related to Steiner Ranch on behalf of the LLC.

(3CR1945-54.)

Accordingly, Haskins’s own admissions, as well as communi-

cations between the parties, (a) demonstrate that Roemer’s inter- pretation is correct, and (b) contradict the positions now taken by Haskins. The parties contemplated preserving certain Endeavor deals for the benefit of the LLC, and indeed, operated in that manner after execution of the Settlement Agreement. This post- execution conduct demonstrates that both parties intended the Settlement Agreement to mean what Roemer advocates in this case. See, e.g., Kartsotis v. Bloch, 503 S.W.3d 506, 516 (Tex. App.—Dallas 2016, pet. denied) (“In determining the parties’ in- tent, we may consider the construction the parties placed on the contract as evidenced by their conduct.”).

4. Haskins did not conclusively defeat Roemer’s contract claim.

In moving for summary judgment, Haskins argued that he

had conclusively defeated Roemer’s contract claim, although Haskins limited that argument to the Southpark and Steiner Ranch Projects. (1CR310-13.)

First, he argued that Roemer cannot prove a breach, because Haskins was free under the Settlement Agreement to take En- deavor deals for himself. (1CR311-12.) But as demonstrated else- where in this brief, the Settlement Agreement required that the Endeavor deals remain with the LLC. (See sections 1-3, above.)

Second, Haskins argued that Roemer did not perform duties he was required to perform (specifically, to identify the two sites for Southpark and Steiner). (1CR312-13.) But nothing in the Set- tlement Agreement made site selection by Roemer a condition precedent to his ability to recover. (See 1CR711-18.) Indeed, the Settlement Agreement contains no preconditions that Roemer had to perform in order to be able to recover. (See section 9, be- low.) Further, to the extent Roemer had to contribute to those two projects, he in fact performed significant work. (See pages 18-22, 36-39, above.)

In short, Haskins did not conclusively prove that Roemer cannot recover on his contract claim. At a minimum, the record shows there are fact issues that preclude summary judgment on the contract claim.

5. Haskins’s fiduciary duties barred him from usurping Endeavor projects, including the Southpark and Steiner Projects.

A member-manager of an LLC, like Haskins, owes a fiduci-

ary duty to the LLC itself. See, e.g., Allen v. Devon Energy Hold- ings, L.L.C., 367 S.W.3d 355, 393 (Tex. App.—Houston [1st Dist.] 2012, rev. granted and judgm’t set aside by agreement); Strebel v. Wimberly, 371 S.W.3d 267, 284 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

This duty of loyalty dictates that a manager-member must act in good faith and must not allow his or her personal interests to prevail over the interests of the company. Strebel, 371 S.W.3d at 284. The duty of loyalty requires an extreme measure of can- dor, unselfishness, and good faith on the part of the manager- member. Id. A fiduciary is under an obligation not to usurp com- pany opportunities for personal gain. See, e.g., Landon v. S&H Mktg. Group, Inc., 82 S.W.3d 666, 672 (Tex. App.—Eastland 2002, no pet.).

Regarding Southpark, on November 12, 2012, Haskins usurped the LLC’s opportunity by having his newly created en- tity, Southpark SS, LLC, enter into a Development Management Agreement with a sole-purpose Endeavor entity called South First All Stor, Ltd. (2CR1355-56.) Regarding Steiner, on January 10, 2014, Haskins usurped the LLC’s opportunity by having his newly created entity, Steiner SS, LLC, enter into a Development Management Agreement with a sole-purpose Endeavor entity called Steiner MF, Ltd. (2CR1084.)

By individually pursuing the Southpark and Steiner Projects with Endeavor, Haskins breached his fiduciary duty of loyalty owed to the LLC (for which Roemer is suing as the derivative plaintiff (1CR23-24)), in addition to breaching the Settlement Agreement. See Lifshutz v. Lifshutz, 199 S.W.3d 9, 19 (Tex. App.—San Antonio 2006, no pet.); In re Hardee, 2013 WL 1084494, at *9 (Bankr. E.D. Tex. 2013) (managing member owed LLC formal fiduciary duties based on Texas LLC law); In re TSC Sieber Servs., LC, 2012 WL 5046820, at *7 (Bankr. E.D. Tex. 2012).

Accordingly, the trial court should have granted Roemer’s traditional motion for partial summary judgment regarding Haskins’s usurpation of the Southpark Project, while reserving for trial the determination of damages and the determination whether Haskins is liable for usurping other LLC opportunities with Endeavor. (1CR702.)

6. The law of usurpation of corporate opportunities also supports Roemer’s appeal.

It is well-settled Texas law that officers and directors of a

corporation are fiduciaries. See, e.g., Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 431 (1949) (“Undoubtedly, as a director and the managing officer of the corporation, [Defendant] occupied the position of a fiduciary towards the company.”); see also Red- mon v. Griffith, 202 S.W.3d 225, 237 (Tex. App.—Tyler 2006, pet. denied) (noting fiduciary duty among co-shareholders of an LLC may exist).

As fiduciaries, officers and directors owe to the corporation a duty of loyalty that specifically prohibits them from wrongfully diverting corporate opportunities for themselves. See, e.g., Inter- national Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 576

(Tex. 1963) (“A corporate fiduciary is under obligation not to usurp corporate opportunities for personal gain or wrongfully di- verting corporate opportunities themselves.”); Dunagan v. Bushey, 152 Tex. 530, 263 S.W.2d 148, 152 (1953) (“The directors of a corporation stand in a fiduciary relationship to the corpora- tion and its stockholders, and they are without authority to act as such in a matter in which the director’s interest is adverse to that of the corporation.”).

Moreover, the duty of loyalty requires an extreme measure of candor, unselfishness, and good faith on the part of the officer or director. E.g., Holloway, 368 S.W.2d at 577. Transactions in which a corporate fiduciary derives personal profit are subject to the closest examination. Id.

Importantly, the burden of proof is on the interested officer or director to show that the conduct under consideration is not a usurpation of a corporate opportunity. See id. at 576; Gearhart Indus., Inc. v. Smith Int’l, Inc., 741 F.2d 707, 720 (5th Cir. 1984). The summary-judgment record demonstrates that Haskins usurped company opportunities belonging to the LLC. (See sec- tion 5, above.) At a minimum, there is a fact issue about this — particularly in view of the rule that the burden shifted to Haskins to demonstrate that he did not usurp company opportunities.

Haskins is a co-managing member of the LLC. (1CR727.)

Moreover, the parties expressly contemplated current and future deals with Endeavor when executing the Settlement Agreement, and mutually agreed that such deals will be done for the benefit of the LLC, rather than its individual members. (1CR715.)

The Southpark Project was an opportunity of the LLC, since it was: (a) a self-storage project; (b) in the Austin SMSA; (c) un- derwritten and developed by Endeavor; and (d) commenced be- fore the expiration date of August 31, 2014. (1CR708, 715.) De- spite the express terms of the Settlement Agreement and the clear company opportunity presented by the Southpark Project, Haskins formed Southpark SS in July 2012, and pursued the Southpark Project with Endeavor for his own personal benefit. (1CR788-90.)

As a matter of Texas law, Haskins usurped a company oppor-

tunity of the LLC, breached the Settlement Agreement, and breached his fiduciary duty to the LLC. The trial court should have granted Roemer’s motion for summary judgment (as to Haskins breach of fiduciary duty related to the Southpark Pro- ject), and should not have granted Haskins a take-nothing sum- mary judgment on breach of fiduciary duty.

7. Nothing in the Settlement Agreement waived or limited Haskins’s fiduciary duties regarding Endeavor projects.

Haskins argued that the Settlement Agreement altered his

fiduciary duties. (2CR1886-94.) For a party to waive or limit his fiduciary duties, it must be done by clear and unequivocal lan- guage. Texas courts has emphasized the importance of honoring parties’ contractual terms defining the scope of their obligations and agreements, including limiting fiduciary duties that might otherwise exist. See, e.g., Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 703 (Tex. 2007); Strebel v. Wimberly, 371 S.W.3d 267, 283 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied).

On a plain reading, Paragraph F is not an express and clear waiver of fiduciary duties as to current and future Endeavor deals carved out of the “independent deals” category. Tellingly, there is no language anywhere in Paragraph F about eliminating or even limiting fiduciary duties. This is in sharp contrast to cases where waivers or limits were found.

In Strebel, the manager-member expressly disclaimed any fi-

duciary duty owed to the LLC, through a provision in a secondary agreement, which said that “the General Partner shall have no duties (including fiduciary duties) except as expressly set forth in this Agreement.” Strebel, 371 S.W.3d at 283. This secondary agreement eliminated the fiduciary duties that the General Part- ner had owed under the parties’ original agreement.

In Jochec v. Clayburne, 863 S.W.2d 516, 520 (Tex. App.—

Austin 1993, writ denied), the court held that the trial court erred by refusing to recognize that a trustee’s fiduciary duties had been contractually limited. The agreement provided that the defend- ants were permitted “to engage in and carry on any business or undertaking … with any person, firm, corporation or trustee un- der any other trust.” Although the court concluded the language was not specific enough to provide a clear indication of the par- ties’ intent, evidence presented at trial established that the plain- tiffs did not object to the defendants serving in a dual capacity. Therefore, the parties clearly intended this provision to serve as a limitation of the defendant’s fiduciary duty.

In contrast, Roemer offered summary-judgment evidence (in-

cluding multiple affidavits) that the parties did not contemplate a waiver of fiduciary duties relative to the carved-out Endeavor deals. (1CR693-703; 2CR1081-98; 3CR1915-23.)

The common-law fiduciary duty is the source of the duty of an LLC manager not to usurp LLC opportunities. “The so-called ‘corporate opportunity’ rule is but a means, judicially designed, to test the conduct of the fiduciary respecting the requirements cast on him of ‘utmost good faith in his relations to the corpora- tion he represents.’” Imperial Group (Texas), Inc. v. Scholnick, 709 S.W.2d 358, 363 (Tex. App.—Tyler 1986, writ ref’d n.r.e.).

The Settlement Agreement nowhere mentions, much less abrogates, the fiduciary duties owed by Haskins to the LLC under common law. The trial court should have denied Haskins’s sup- plemental motion for summary judgment on this issue. (2CR1886-94.)

For the same reasons, the trial court should have denied Haskins’s summary-judgment argument that his “affirmative de- fenses” of waiver and estoppel conclusively defeated Roemer’s fi- duciary-duty claim. (1CR116-18, 315-17; 2CR1893.) First, those defenses are nothing but recast versions of his incorrect argu- ment that the Settlement Agreement allows him to take En- deavor deals for himself. (1CR109-10.) Second, Haskins made no effort to conclusively prove the elements of waiver and estoppel, which was his summary-judgment burden since he claims these are “affirmative defenses.” (1CR116-18, 315-17; 2CR1893.) See, e.g., Cantey Hanger LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) (de- fendant moving for summary judgment on affirmative defense carries the burden to establish, as a matter of law, each legal el- ement of its defense).

8. The trial court did not actually enter any declarations for Haskins.

Although Haskins requested specific declarations from the

trial court (1CR298), the summary-judgment orders simply granted summary judgment, without making any declarations. (3CR3046-48, 3138-40.) The Final Judgment simply incorporated the summary-judgment rulings, again without making any dec- larations. (SuppCR4-6.)

In the absence of declarations, the judgment is fatally flawed and cannot support Haskins’s claim that the Settlement Agree- ment means what he claims. See Petro Pro, Ltd. v. Upland Res. Inc., 279 S.W.3d 743, 747-48 (Tex. App.—Amarillo 2007, pet. de- nied). In Petro Pro, as in this case, the judgment merely granted summary judgment without declaring the parties’ rights. Id. at 747-48 & n.2. The court of appeals complained that it “was left to speculate as to exactly what the trial court determined the rights of the parties under the assignments to be.” Id. at 748. The court continued that “[a] properly drafted declaratory judgment should terminate the uncertainty or controversy giving rise to suit by declaring the rights of the parties as to those matters upon which the parties joined issue.” Id. Thus, the court ruled that “the fail- ure of the judgment to specifically declare those rights was error.” Id.; see Calvert v. Employees Retirement Sys. of Tex., 648 S.W.2d 418, 419 (Tex. App.—Austin 1983, writ ref’d n.r.e.) (where the trial court granted summary judgment without including decla- rations, the district court failed in its duty).

The Petro Pro court then determined that it should neverthe-

less declare the rights of the parties, since the issue was joined by cross-motions for summary judgment. Petro Pro, 279 S.W.3d at 748. This Court should do the same, but unencumbered (as in Petro Pro) by any speculation about what the trial court intended to declare but did not.

9. The Settlement Agreement contains no conditions precedent to Roemer’s right to recover.

Haskins asserted that he is entitled to declarations that Roe-

mer had to fulfill certain duties before he can recover for En- deavor projects. (1CR298.) But there is no such condition in the Settlement Agreement. The duty language that Haskins relied on does not state that the duties are a condition precedent to par- ticipation in the monetary benefits that Haskins usurps for him- self. (1CR713.) See, e.g., Criswell v. European Crossroads Shop- ping Ctr., Ltd., 792 S.W.2d 945, 948 (Tex. 1990) (condition prece- dent usually requires words such as “if,” “provided that,” or “on condition that”).

Further, Paragraph C of the Settlement Agreement provides that any alleged failure to perform by the parties must be re- solved internally through good-faith efforts, and by mediation if those efforts fail to resolve the dispute. (1CR713.) The parties also expressly agreed in Paragraph C that “in no event shall such dispute be used as a basis to delay or deny distribution” under the Settlement Agreement. (Id.) Thus, the Settlement Agreement contains no condition precedent or predicate that permits Haskins to “delay or deny distribution” regarding deals that are LLC opportunities.

And in any case, the trial court could not have properly granted summary judgment to Haskins on the basis of any con- dition precedent because, at minimum, Roemer raised material questions of fact regarding his performance. (2CR1083, 1354-55; see pages 18-21, 36-39, above.)

10. Alternatively, the Settlement Agreement is ambiguous , requiring a remand for a jury trial.

A contract is ambiguous when its meaning is uncertain and

doubtful or it is reasonably susceptible to more than one inter- pretation. E.g., Coker v. Coker, 391, 650 S.W.2d 391, 394 (Tex. 1983). Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was created. E.g., id. When a contract contains an ambiguity, the granting of a mo- tion for summary judgment is erroneous because the interpreta- tion of the contract becomes a fact issue. E.g., id.

At worst, the trial court in this case was presented with an ambiguous contract, and the interpretation of the contract should have been resolved by a full trial — not by summary judgment. See, e.g., id.; see also Arredondo v. City of Dallas, 79 S.W.3d 657, 666-67 (Tex. App.—Dallas 2002, pet. denied) (“Patent ambiguity of a contract may be considered for the first time on appeal from a motion for summary judgment.”); Highlands Mgmt. Co. v. First Interstate Bank, 956 S.W.2d 749, 752 n.1 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (court can consider ambiguity whether or not raised by parties); cf. White v. Moore, 760 S.W.2d 242, 243 (Tex.1988) (reversing summary judgment in will-contest case due to ambiguity, where parties had agreed the will was un- ambiguous); Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex.1993) (“A court may conclude that a con- tract is ambiguous even in the absence of such a pleading by ei- ther party.”).

CONCLUSION

Roemer requests that the Court reverse the trial court’s sum-

mary judgment for Haskins, reverse the trial court’s denial of Roemer’s motion for summary judgment, enter the summary judgment that Roemer requested, reverse the final judgment only insofar as it is predicated on the summary-judgment orders, and remand for further proceedings on Roemer’s breach-of-contract and breach-of-fiduciary-duty claims. Roemer also requests gen- eral relief.

Respectfully submitted,

Stolley Law, P.C.

By: /s/ Scott P. Stolley Scott P. Stolley

State Bar No. 19284350

scott@appellatehub.com

4810 Purdue Ave.

Dallas, Texas 75209

Phone: (469) 235-4588

Craig A. Albert

Cherry Petersen Landry

Albert LLP

State Bar No. 00790076

calbert@cplalaw.com

8350 N. Central Expressway Suite 1500

Dallas, Texas 75206

Phone: (214) 265-7457

Fax: (214) 265-7008

Counsel for Appellant

Wesley Roemer

CERTIFICATE OF COMPLIANCE

This brief was prepared using Microsoft Word 2013 in Century font with 14-point type. This brief contains 6444 words, not counting the sections excluded by Tex. R. App. P. 9.4(i)(1).

/s/ Scott P. Stolley

Scott P. Stolley

CERTIFICATE OF SERVICE

On June 4, 2018, a copy of this brief was served through efileTexas.gov on counsel for Appellee, as indicated below:

Jeffrey S. Levinger J. Carl Cecere Levinger PC Cecere PC 1700 Pacific Ave. 6035 McCommas Blvd. Suite 2390 Dallas, Texas 75206 Dallas, Texas 75201 ccecere@cecerepc.com jlevinger@levingerpc.com

/s/ Scott P. Stolley

Scott P. Stolley

Appendix A

CAUSE NO. DC-13-02661

WESLEY ROEMER, Individually § IN THE DISTRICT COURT and Derivatively on Behalf of § Haskins/Roemer, L.L.C.; § §

Plaintiffs, § §

v. § 191 st JUDICIAL DISTRICT §

§

EDD HASKINS § §

Defendant. § DALLASCOUNTY,TEXAS

FINAL JUDGMENT

On December 14, 2015, this case proceeded to a bench trial. Plaintiff Wesley Roemer ("Plaintiff') appeared in person and through counsel and announced ready. Defendant Edd Haskins ("Defendant") appeared in person and through counsel and announced ready.

After receiving evidence through the testimony of live witnesses and the admission of

I

exhibits, and the parties having rested and closed, the Court is of the opinion that Plaintiff should recover from Defendant as follows :

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff Wesley Roemer shall have judgment against Defendant Edd Haskins for actual damages on the contract claims related to Chapel Colorado LLC and the Brodie management fees in the amount of $117,248.31, plus pre-judgment interest as follows :

6% per annum running from September 16, 2014 [180 days after Defendant received written notice of the claim on March 20, 2014] on the actual damage amount of

FINAL JUDGMENT Page 1

5

$81 ,248.31 [one-half of the March 7, 2014 distribution in the amount of $162,496.63]

related to the sale proceeds being held by Defendant for Plaintiffs interest in Chapel Colorado LLC; AND 6% per annum running from March 5, 2013 [the date of the filing of the lawsuit] on the actual damage amount of $36,000.00 related to the Brodie management fees owed by Defendant to Plaintiff;

For total amount of pre-judgweat iatereit iJ:1 the 0:fl'l01:1at of$ IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff Wesley Roemer shall have judgment against Defendant Edd Haskins for reasonable attorney's fees for the contract claims pursuant to Chapter 38 in the amount of $50,000 for pre-trial, trial, and post- trial and costs of court.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff Wesley Roemer shall have judgment against Defendant Edd Haskins for post-judgment interest on the actual damages, attorney's fees and court costs, in the amount of 5% compounded annually, starting on the date of the entry of this judgment and running until the date paid.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff shall be entitled to recover the following reasonable attorney' s fees from Defendant in the event Plaintiff is successful in any appeals:

For appeal to the Dallas Court of Appeals $30,000 For petition to the Texas Supreme Court $10,000 For briefing to the Texas Supreme Court $13,000 For oral argument to the Texas Supreme Court $7,000

FINAL JUDGMENT Page2

6

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff is entitled to recover post-judgment interest on the amounts of appellate attorney's fees, in the amount of 5% compounded annually from the following dates: (1) on the date an appeal is perfected, for the $30,000 in the court of appeals; and (2) on the date a petition for review is filed for the fees in the Supreme Court.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff shall have all writs of execution and other processes necessary to enforce this judgment.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that while the Court entered two Orders on Motions for Summary Judgment on November 23, 2015 and February 16, 2016, granting Defendant's Motion for Partial Summary Judgment on Declaratory Judgment without any express declaratory relief given, the Court determines that it is not equitable and just to award to Defendant attorney' s fees or costs of court against Plaintiff under the declaratory judgment claim. These two above-referen~ed summary judgment orders are hereby merged into this Final Judgment.

This is the Final Judgment that disposes of all claims between all parties. All other relief not expressly granted ~r.:)~ denied.

SIGNED this~ __ 'adJay o/2;/;.017.

FINAL JUDGMENT Page3

Appendix B

3046

,. 1/),!JT

. I

toe.'' " " " 41 i

CAUSE NO. DC-13-02661

WESLEY ROEMER, Individually § IN THE DISTRICT COURT And Derivatively on Behalf of § HASKINS/ROEMER, L.L.C. § §

Plaintiffs, § 191st-J JUDICIAL DISTRICT §

v. § §

EDD HASKINS, § §

Defendant. § DALLASCOUNTY,TEXAS

ORDER ON MOTIONS FOR SUMMARY JUDGMENT Came on for hearing Defendant Edd Haskins's ("Defendant") Motion for Partial Summary Judgment and Defendant's Motion for Partial Summary Judgment on Declaratory Judgment and Breach of Contract, and Defendant's Supplemental Motion for Summary Judgment against Plaintiff Wesley Roemer, individually and derivatively on behalf of Haskins/Roemer, LLC ("Plaintiff') (collectively, "Defendant's Motions for Summary Judgment").

The Court also heard Plaintiffs Traditional Motion for Partial Summary Judgment (Chapel Colorado, LLC), Plaintiffs Traditional Motion for Partial Summary Judgment (Brodie Management Fees), and Plaintiffs Traditional Motion for Partial Summary Judgment (Endeavor Deals) against Defendant (collectively, "Plaintiff's Motions for Summary Judgment").

The Court also heard Defendants Motion for Traditional Summary Judgment and No Evidence Summary Judgment on claims Plaintiff asserted against Defendant relating to a project owned by NL Land Holdings, Ltd. (the ''NL Land Holdings Summary Judgment"), as well as Defendant's Motion to Strike Plaintiffs claims relating to the project owned by NL Land Holdings, Ltd. as untimely (the "Motion to Strike").

ORDER O MOTIONS FOR SUMMARY JUDGMENT Page t

3047

The Court, having considered Defendant's Motions for Summary Judgment and the NL Land Holdings Summary Judgment, Plaintiff's Responses in Opposition to Defendant's Motions for Summary Judgment and the NL Land Holdings Summary Judgment, Defendant's Replies in Support of Defendant's Motions for Summary Judgment, Defendant's Objections to Plaintiffs Summary Judgment Evidence, the summary judgment evidence admitted for consideration, and the pleadings on file in this case, is of the opinion that Defendant's Motions for Summary Judgment and NL Land Holdings Summary Judgment should be GRANTED in their entirety, except as to Defendant' s motion for summary judgment on Plaintiff's claim for breach of contract regarding Defendant' s alleged failure to pay Plaintiff the Brodie Management Fee.

The Court, having considered Plaintiffs Motions for Summary Judgment, Defendant's Responses in Qpposition to Plaintiff's Motions for Summary Judgment, Defendant's Objections and Motion to Strike Summary Judgment Evidence, Defendants Motions for Summary Judgment and the summary judgment evidence admitted for consideration, is of the opinion that Plaintiffs Motions for Summa_ry Judgment should be DENIED.

IT IS FURTHER ORDERED that Defendant's Motions for Summary Judgment and NL Land Holdings Summary Judgment are GRANTED in their entirety, except for Defendant's motion for summary judgment for breach of contract regarding Defendants' alleged failure to pay Plaintiff the Brodie Management Fee;

IT IS FURTHER ORDERED that Defendant' s Motion to Strike Untimely Disclosures and Claim is DENIED as moot.

IT IS FURTHER ORDERED that Plaintiff's Motions for Summary Judgment are DENIED in their entirety;

ORDER ON MOTIONS FOR SUMMARY JUDGMENT Page 2

3048

IT IS FURTHER ORDERED that Plaintiff shall . take nothing by his claims against Defendant, which are hereby dismissed with prejudice, except for Defendant's motion for summ.ary judgment for Defendant's alleged breach of contract for failure to pay Plaintiff the Brodie Management Fee and Plaintiffs claim for Defendant's alleged breach of contract for failure to distribute proceeds from the sale of certain property known as Chapel Colorado.

SIGNED this JD /lJday of Jo.J 2015.

~G-----

ORDER ON MOTIONS FOR SUMMARY JUDGMENT - Page 3

Appendix C

3138

42JfJ ...•.000466

CAUSE NO. DC-13-02661

WESLEY ROEMER, Individually § IN THE DISTRICT COURT And Derivatively on Behalf of § HASKINS/ROEMER, L.L.C. § §

Plaintiffs, § 191 5t-J JUDICIAL DISTRICT §

v. § §

EDD HASKINS, § §

Defendant. § DALLASCOUNTY,TEXAS

ORDER ON MOTIONS FOR SUMMARY JUDGMENT Came on for hearing Defendant Edd Haskins's ("Defendant") Motion for Partial Summary Judgment and Defendant's Motion for Partial Summary Judgment on Declaratory Judgment and Breach of Contract, and Defendant's Supplemental Motion for Summary Judgment against Plaintiff Wesley Roemer, individually and derivatively on behalf of Haskins/Roemer, LLC ("Plaintiff') (collectively, "Defendant's Motions for Summary Judgment").

The Court also heard Plaintiff's Traditional Motion for Partial Summary Judgment (Chapel Colorado, LLC), Plaintiff's Traditional Motion for Partial Summary Judgment (Brodie Management Fees), and Plaintiff's Traditional Motion for Partial Summary Judgment (Endeavor Deals) against Defendant (collectively, "Plaintiff's Motions for Summary Judgment").

The Court also heard Defendants Motion for Traditional Summary Judgment and No Evidence Summary Judgment on claims Plaintiff asserted against Defendant relating to a project owned by NL Land Holdings, Ltd . (the "NL Land Holdings Summary Judgment"), as well as Defendant's Motion to Strike Plaintiff's claims relating to the project owned by NL Land Holdings, Ltd. as untimely (the "Motion to Strike").

ORDER ON MOTIONS FOR SUMMARY JUDGMENT - Page 1

3139

The Court, having considered Defendant's Motions for Summary Judgment and the NL Land Holdings Summary Judgment, Plaintiffs Responses in Opposition to Defendant's Motions for Summary Judgment and the NL Land Holdings Summary Judgment, Defendant's Replies in Support of Defendant's Motions for Summary Judgment, Defendant's Objections to Plaintiffs Summary Judgment Evidence, the summary judgment evidence admitted for consideration, and the pleadings on file in this case, is of the opinion that Defendant's Motions for Summary Judgment and NL Land Holdings Summary Judgment should be GRANTED in their entirety, except as to Defendant's motion for summary judgment on Plaintiffs claim for breach of contract regarding Defendant's alleged failure to pay Plaintiff the Brodie Management Fee.

The Court, having considered Plaintiffs Motions for Summary Judgment, Defendant's Responses in Opposition to Plaintiffs Motions for Summary Judgment, Defendant's Objections and Motion to Strike Summary Judgment Evidence, Defendants Motions for Summary Judgment and the summary judgment evidence admitted for consideration, is of the opinion that Plaintiffs Motions for Summary Judgment should be DENIED.

IT IS FURTHER ORDERED that Defendant's Motions for Summary Judgment and NL Land Holdings Summary Judgment are GRANTED in their entirety, except for Defendant's motion for summary judgment for breach of contract regarding Defendants' alleged failure to pay Plaintiff the Brodie Management Fee;

IT IS FURTHER ORDERED that Defendant's Motion to Strike Untimely Disclosures and Claim is DENIED as moot.

IT IS FURTHER ORDERED that Plaintiffs Motions for Summary Judgment are DENIED in their entirety;

ORDER ON MOTIONS FOR SUMMARY JUDGMENT- Paae 2

3140

~- - - - - -·--·--· -··-·· ·-·--·---- - - -- .... ·- - - - - ·- - - ·

IT IS FURTHER ORDERED that Plaintiff shall take nothing by his claims against Defendant, which are hereby dismissed with prejudice, except for Plaintiffs claim against Defendant for alleged breach of contract for failure to pay Plaintiff the Brodie Management Fee and Plaintiffs claim for Defendant's alleged breach of contract for failure to distribute proceeds from the sale of certain property known as Chapel Colorado.

ORDER ON MOTlONS FOR SUMMARY JUDGMENT - Pase J

Appendix D

711

··- -· ----··--·- --·--····--- - - -·--- ... --- .........-. ....... '

This Settlement Agreement and Release (this "Agreement'') is entered into by and among the followiDg "Parties":

I. PARTIES

A. Edd Haskins, individually and as Managing Member of Hwddns/Roemcr, LLC ("Haskins''); and

B. Wesley Roemer, Individually and as a member ofH.as~emer. LLC ("Roemer").

II. RECITAL~.

A. WHEREAS, Haskins and Roemer had been members of various limited liability companies.

8. WHEREAS, Haskins/Roemer, LLC was formed in July 2008. Roemer is 1o identify feosible sites for the deveJopmcnt of self-storage facilltles that Endeavor. or other equity partners, will underwrite and develop (''Roemcr's duties"). Haskins acts to detmnine whether sites Roemer Identifies are capable of development, oversees the site planning, design, development, zoning and _pennittiug process ("Haskins duties"). Under the various agreements described below, both parties are to participate In the management of various self-storage fl\oilities (the "Management duties") (Roemer's duties, Haskins duties and the Management dulics arc collectively refem:d to herein as the "Parties'

duties").

C. WHEREAS, in December 2008, Hasldns/Rocmer, LLC c,cccuted the Limited Liability Operating Agreement for Pflugerville 45 Storase, L.L.C. ("Pflugerville"). Under the Pflugerville Agreement, Haskins/Roemer, U.C was to act as the Development Mernbet of the Project, and was paid a Developer's Fee. In addition, under that agreeme11t, Hesldm/Rocmer was to act a.s the Owner/Builder Member of the project, and WI!$ paid a Builder's Fee. In connection with the Pflugerville Agreement, Hastdns/Roemer is also to act as the Self-Storage Management Company after the project was completed, and ls beiDa paid a Management Fee.

D. WHEREAS on April 9, 2009, Haskins formed Chapel Colorado, LLC. Haskins is the sole member ofCbnpel Colorado, LLC.

E. WHEREAS, in 2011, Haskins/Roemer, LLC executed the Limited Liability Operating Aarecment for Brodie MS, L.P. ("Brodie"). Under the Brodie A&TCCD1cnt, Ha.skins/Roemer, LLC is to act as the Developmcot Member of the Project, and will be paid a Oevelopec's Fee, a Builder's Fee end a Management Fee.

F. WHEREAS, in connection with Haskin!IR.ocmer, LLC's obligations wider the Pflugerville Agreement and the Brodie Agecment, Haskln!!/R.ocmer, LLC cngaeed Hulcins to act as the jobsite superintendent. Haskins has acted 11S the jobsltc

SE'flLBMENT AORBEMENT Pap·l

HAS022153

- - - --·- - -~· ...

superintendent for Haskins/Roemer, LLC- m CODDcctiou with tbe Pflugerville development and the Brodie Development. In connection with this duty, Haskins haa been paid or wfll be paid ajobsite superintendent fee.

G. WHEREAS, disputes arose between Haskins mid Roemer regarding each Parties ownership interest in llllSkins/R.ccmer, LLC, as well as the Parties' Duties and then respective contributio11 to various development projects and the percentage of compensation that each party is entitled to receive in connection with pest, c\ln'eot and future development projects, as well as Haskins role as on-site superintendent for the PDueerville, Brodie and future projects, and issues related to disproportionate cil'aws (the "Disputes").

H. WHEREAS, Haskins/Roemer, LLC Is presently engaged in development deals with EDdeavor Real Estate Oroup ("Endeavor") and Haskins/Roemer, U.C wishes to continue to do .business or attempt to do business with Endeavor and the parties believe they ma.y more succes&fully deal with Endenvor as Hnsldns/Rocmcr, LLC rather than u Haskinli or Roemer in their individual capacity.

L WHBREAS, the Parties to 1his Agreement desire to and have a&reed to settle and resolve all controvcrales of every sort in dispute between them ~latios lo the Dispute&, as well as to memorialize their agreements regarding their respective interests in Hukins/R.oemcr, LLC, any other entity that the Parties may cotleotively fomi in connection with providing services for Endeavor, and the Parties' Duties.

J. NOW, THEREFORE, in consideration of die foregoing recitals and tho mutual promises and covenants herein set forlh and for other good and valuable consideration.. tho receipt and sufficiency of which is hereby acknowledged by all Parties to this Agreement, it is agreed u follo'WI:

m. AGREEMENTS

A. PQUJeryille. With reiiard to the Development Pee, the Builder Fee, and the Management Fee that was or is to be pa.id to Hask.las/Roemer, LLC under the Pflugerville Agreement, tho Parties agree to divide and dimibute the&o fees as follows:

Fc:c Haskins Roemer 1. Development Fee 50Yo SO% 2. Builder Fee SO% SO% 3. Management Fee SO% 50% 4. Jobsite Superintendent Fee 100% 0%

Upon execution of the final Settlement Agreement, Haskins agrees to distribute to Roemer any unpaid portion of the previously undistributed $45,000.00 to compensate Roemer for any and all past monies owed to Roemer under the Pflugerville Agreement for work perfonned and/or monies received through August 15, 2011 and for any claims that Haskins bu received a greater amount in draws in connection with Pflugerville or any other project that preceded Pflugerville.

HAS022154

B. BrgcHo yd l'ptprf Egdearet Pe•b. AJ comlderation for the Parties' Duties. the Parda aaree that Oil Brodie and all fu.ture P.ndeavor projects into which Huldns/R.oemer, U.C entera Into a Development Aarcea1ent. Haskins and Roemer agree to spUt the Development Fee, the Builder Fee, the 1obsite Superintendent Fee, and the Management Fee as follows:

Fe8 Hoskins Roemer l. Development Fee SO% 50% 2. Builder Fee 70% 30% 3. Mmagement Fee 50-h SO% 4. Jobsito Superintendent Fee 100% 0%

As ~nsldcration for the Parties' agreement that oach Party will each receive a percentage of tho .Dcvolopment Fee, the BuiJdu Fee 111d Maaagemcat Peo, for oach project, each party apos 1o ped'orm tbe r.pectlve Party'• DutJe9 md proportionate lhare of all duties that HuldnalRDcmer, LLC ii obligated to perform In cocmectioA with the Development Fee, Builder Fee, and Management Pee.

Auy 1111d Ill reuonable aod ~ ~ inouued by either Haskins or Roemr In .ft&lfl1llna the O,bUptlol\l of Hasldna/Rocmer, LLC • tbo OevelopmllClt Member of the project ..0 bo cbarpd aaafmt 111d ICCGUlltld for In .rcladan to ~ respecdYe f'eo prior to df.9tribadOll. By way o f ~ In PfluprfWe the Development Pee wu paid 11p0n obCalnfna a comCractiocl Jou. n..toro. all expena, Incurred by HM1dns/Romner, U.C in obtafofns tbe COlllb'Dadoll lOlll lUCh • !111111.oility ltudiea. obetimug emldemesrt,, etc.

lhail bis expeued apimt tha Dewlopment Fee prior to dillri!:,utlcm. Tbe Builder Fee ·U paid to Haski.mllloomtr. LLC tor its role u the Owaer/Buildma Member oftbe project.

It is the cqu1valeat of a gentral contractor poution. All expcm,ca related to ill role u • general coat:ractar allall be eapemed 1rmn tho Bulldcr Foe prior to dlatributioo; slmilarly, Ibo nonmil tnd c:unmuy t:lI*1IIOS ofajc,baite S1J1erintecdaat-operalinc W1der a pneral !)Ontractw lhlil be expensed qainst the Jobslte sopedntoadent l!e. Finally. all expemes related to the post-construetlon management would be charged against the Management Fee.

The Parties agrco that any brokerage fee that Haskin/Roemer, LLC is to receive wider any .Endeavor dc~lopment agreement, including under the Brodie As:reement, will be cveoly split between Haskins and Roemer.

C. Manasc•egt Fee. As consideration for the Parties' agreement that each Party will each receive SO% of the Management Fee, c:11.ch Party agrees to handle 50% of all "Manager Duties" that Haskins/Roemer. llC is obligated to perform in coimection with any Proparty Management AJ*Ule11t between HasJcim/R.oc:me, LLC and Bndavor. If there la a dispute between the Partiea as to whetbet the other Party Is per:fbnnina his required duties and .the Plltlu 111'11 not able In aood faith to resolve the di1p11te, they will submit tho dispute to mediation, but In no event shall such dispute be used as a basis to delay or deny distribution in accordance with paragraph D. The Parties acknowledge that as these

Pagel

HAS022155

projects mature, their 01Hite Management Duties mAY decrease and the Parties may mutually agree to amend this par88raph in the manner set forth herein below.

D. llu1d2f'Baeapr. LLC Baak Aee,ggt. aaree The Parties lhat ~er WW have complete aceea to Ill put. preteot a.ad ftature business l'CCOfda and b.ank ~ m.alntahled by or !ot Hastias/R.oemer, U.C., R®met/H&ak.lns, UC, Chapel Colotado, LLC or any o!ber entit;)I In whicb the Parties have been involved. To &cllitate this acceu. Huklm lball provide lhe nmne IDd ecaunt number of all financ:lll institution accounts lDCI •bail provide wrlt1e11 authority for 1ccea and c:opym& by Roemc:ir. Haskins, ho"O'nMQ', wW hive IOlc authority to write cbecb tm of the Huldns/R.oemer, LLC rot

account amounts due to third parti11& !n mdberanm or my Develcpaiant Apemenl or Property Mlll111KDent Agrument entered into ~en HaskinslRoemer, LLC and BndeaYor tzd/~ foe puq,oses of WJ:itin1 checka to the Diltrl'budo.n. Accounlll. Ruldm aball not haw authority to write cheeks out ot rbe ~ a r . I.LC account p&yablc din,ctly or lodirectiy to himlolt or o.q his behalf. To tho contnry. Ill mcn1es paid to either Party must be paid solely uom the Dlttrl~oc Account.

Within ten (10) days of the execution ofthls Settlement Asreemeot, HIL!lkins shall open a Haskirul/R.ocmer, LLC distribution account, which shall be separate ftom tho Haskins/Reemer, LLC account (the "Distribution Account',.

With regard to the distribution, tbe Parties agree as follows:

(l) Within one week of receipt, 100% of any Developer' a Fee shalJ be distributed to the Parties;

(2) Within one week of receipt, SO% of any Builder', Pee shall be distributed to the Parties until retainage is paid, and then the remaining balance shall be distributed according to the schedule outlined in the agreement with Endeavor. Both Parties will receive the AIA draw foon w:h month, which wm fully disclose what has been paid, and what is to be paid; · (3) Wbhin one week of receipt, I 00% of any management fee will be distributed to the Parties pursuant to the terms of this Agreement.

E. Chapel Colorado. LLC. Haskins owns 100% of Cbape.l Colorado, LLC lllld agr~ to transfer SO% of his inteRst in Chapel Colorado, LLC to Roemer. Within thirty {30) days of the execution of tbe fuw Settlement Agreement, Roemer shall provide Haskins with documents sufficient to transfer SO% of Haskins' interest In Chapel Colorado, LLC to Roemer. Any documents Roemer provides in connection with the transfer of SO% of Haskins' interest in Chapel Colorado, LLC shall contain an indemnity agreement whereby Roemer agrees to Indemnify Haskins for any com and fees lhat Haskills incw'S in connection with any dispute between Roemer and his ex-wife relating to the Colorado Springs/ Chapel Colorado, LLC. Following such traosfcr, Roemer and Haskins shall each be an owner of one-half (112th) of Chapel Colorado, LLC, each sooll be entitled to 50% of any future distribution and each shall be a co-managina member.

SETTLEM!NT AOl!EM!HT P1g114

HAS022156

F. Ipdepepdent De1J1. With the exception of Pflugerville, Brodie, Chapel Colorado and any cunent or future Endeavor deals. Ha.skin8'Roemer. LLC shall not pursue any futw:e deals. Roemer and Haskins are free to pu11Ue deau eitbcr independently or with other entities. Notwith!tlmding the existence of Haskins/Roemer, LLC. the Haskins/Roemer, LLC Operatin1 Agreement. or this Settlement Agreement, either Haskins or Roemer may engage in whatever activities they choose, whether the note may be competitive with Haskins/R.o.emer, LLC or otherwise wi1hout having or incurring any obligation to offer any interest in such activities to ffaslcins/Rl)emcr, LLC or any other member. Nothing in this Settlement Agreement or the Haskins/Roemer Operating Agreement shall prevent the members from enga2in2 in such activities, or require any member to J)Cffllit Haskins/Roemer, LLC or any other member to partJcipatc in any such activities, and as a materinl part of each Parties' consideration under this Settlement Agreement, each Party hereby waives any auc.h right or claim of participation.

Notwithstanding tho foregoing, the Parties agree to give Endeavor the right offust refusal on all self-storage deals In either the Auslln or DFW SMSA. This requhcment will expire on Auaust 31, 2014 or one ytll' after the isswmce of a CO for any Bndeavor· Haskins/Roemer, LLC self-lltorase project commenced before August 31, 2014, whichever comes later. Each party must be copied on all correspondence. offer or presentadon of any deal made to Endeavor. ff Bndeavor declines to pursue such deal, within fourteen (14) days after same, is presented to Endeavor clthcrparty shall be ftce to take any such deal to 1hird-parties with no oblipdon to Haskins/Roemer, LLC or the other Party. If. however, Endeavor has indicated an interest in pursuing tho deal, lhe Parties agree that lhey will not take the deal to any tmrd-party so Jong u Endeavor continues to aotively pursue such deal.

G. Brokerage Fees op Epdeayor Deals. Any brokerage fee paid to Haskilu/Roemer for any Endeavor deal that is not contained i'!l a development deal will be split as follows:

70% to Roemer and 30% to Haskins.

H. Egulty on all Endeavor Deals. The Parties agree that all any equity intereat that Ha.skins/Roemer, LLC receives under any development a&reement with Eodeavcr will be evenly split between Haskiua and ·Roemec.

I. Acccg to lpfol'lllatlop. Haskins will provide Roemel' an accounting of all fees paid or to be paid to Haskins/Roemer, LLC in conoection with Pflugerville, Brodie and any Endeavor project. On all current and future deals or projects in which Haskins and Roeme1· both have a direct or illdirect interest, Haskins agrees to provide Roemer access to all records of accounting of costs, expenses, income and dislrlbutioos u requested.

Roemer agrees to provide Hastdns with full access to infonnation upon request. includios but not limited to access to all feasibility studies performed by Roemer, all rent comps, street atlas, profonnas spreadsheet equations. reports, and raw data. Haskins agrees to provide Roemer with full access to information upon request including, but not limited to, all entitlement studies, costs projections, budgets, con.struction schedules, contractors contracts and other relevant data.

Page$

HAS022157

71 5

J. NP«odMP:cnt to t•e .HyJdat'Boamcr, LLC Onerattas AaaemepJ. Within thil'ty (30)

days ftom the execution of the final Settlement Agreement, the Parties agree to amend the Haskins/Roemer, LLC Operating Agreement to include and incorporate the tcnns and agreements described herein, and to reflect tho.I Roemer as a manager/member with SOYo ownership.

K. Mutu11l Release, Haslcms and Roemer hereby release sod discharge each other from any and all claims, demands, actions, suits, and caURS of action, known or UDknown, fixed or contingent, liquidated or unliquidated, which each may have against the other.

L. Authority apd Competence. The Parties represent and wllll'ant that each ,espcctlvc:

Party and their respective representatives:

(a) are legally compcrtcnt to enter Into thJs Aarcci:ncm: and (b) possess the aulhorlty to enter Into this Agreement,

M. Q,rpenblp of Claim 1. The Parties represent that they are the sole owners of the claims being released pursuant to this Agreement aad 1bat they have not transferred the claims to any third party. The Parties acknowledge that eaoh ls relying on the others representation of owncnhip in entcdug into this Agreement.

N, Undcntnndipc of Am;emcpt, The Parties represent that they have read this Agreement prior to its ex"ution and have discussed it wi1h their .respective co11D1el and fully understand it. The Parties also represent that no party bu made any reprcscntetion, other 1hao as expressly set forth herein, regarding tb!s Agreement The Putfes also understand that this is a full, fmal and complete release of all of their past and/or present claims against one another.

O. No Admfsslops. The Parties to this A&reement acknowledge that this Agtccm1111t is entered into for the 11>le purpose of settling viaorously contested chums. No 11gJCeme11t, statement, represeatatioa, and/or warranty contained in this Agreement is intended to be or should be construed u an admission of fault or liability by any party.

P. Entire Agreement Betwgp fho Partig. The Parties hereto agree that this Agxecmeot and the attached exhibits contain the entire agreement between the Parties and superaedc any and all prior agreements, IID'ongeinents or widerslandings between lho Parties rotating to the subject matter hereof. No oral understanding.,, statements or promises contrary to the terms of this Agreement exist. This Agreement may be amended, supplemented, or modlficd only by written instrument signed by the Parties.

Q. Copptnaction. This Agreement shall be consll'UCd without regard to which Party drafted it, and it shall be Interpreted as {f all Parties participated cquaUy in drafting the Agreemc.ot.

R. Seyerability, The Wlcnforceability or invalidity, as datennined by a court of competent jurisdiction, of any provision of this Agreement shall no, l'Cl;lder unenforceable or invalid any other provision of this Agreement, and tbe rcawning provisions of this Agreement

SE'TTLEM!NT AGREEMENT · Page 6

HAS022158

shall rcmnin in full force and ·dfect Md shall.not ba offectcd by the illeglll, invlllld, or unenforceable FOvldou or by. it, teYl!rll\CC here!rom. Furtbcnnote, in Ueu of such Illegal, invalid, or UMOUll'CC4blc provision, there shall bi, added automnticully u p11rt of this Agreement. DplO'rilion u shollar ID 1uch illega~ invalid, or unenfon:enble provision as may be posst"ble and be legal, valid, and cnforccoblc.

S. Governing L9)!, This ApemCllt shall be gonmed by nnd construed in accordance with the l•ws of the State of Texas. TI1is Agl'eaotent is made and is to be performed in the City of I>allu, Oellu County, Texas, and the courts of Dalles County, Texas sholl have sole and exclusive venue and jurisdiction over any disputes concerning this Agreement.

T. Di.yputo Ro,o!yllon, The hrtiell qroe that before filialg suit ove,: 11 dispute Involving this Agrccment, they will Mtempt 10 resolve the dispute by telephone conferenec or mceto -face confcteuee betWl!Cll·rq:11:esentatives of the Parties who have authority to settle such dispute.

U. Counternart.t, This Aifl:Cmcnt may be executed in multiple eountcrparts, identically worded, and each such counterpart sholl constitute 11 single agreement of the Pnrtle.s.

v. He3dln11. The beadings and titles an, inscrt:d only fo1· convenience and shall not be deemed part of tho Agraemant or taken into consideration In the lntmpmlltion or construction of this Agreemeot.

£i?V.- Edd Huklm, individually and es Maoaging Member ofHasldnsl.Rocmer, LLC Wesley Roemer, individually ond os o member oflwklm/R.ocmcr, LLC

Mich11.el 1. Lang on behalf of Roger A1brigbt on behalf of Edd Haskios, lndlviduclly And as Wesley Roemer, individually and Managing Member of Haskins/Roemer, UC IS II Jlletnber of Haskins/Roemer, LLC

SIITTLCMENT AGREEMENT

HAS022159

- - ··------- ----· r

'lh11II rl'muin in J'uil lirn:I.' .uiJ cill'l:11111.J ~1111111111; Ii.! nll~li:il h)' II);! illc1.,1I. hw11IIJ. ••1 uncnfr,n:,•nhl~· tir1>visio11 or h)' 11~ ~,vcnui.:e h.:-1'1:li11111. Hn1h:!r1111ll'~. Ill liL'U nl' ~11..,h lllc.,::11. i0\•.1l1J. or 1111~11li1rcc11'1h'. pnwisilln. 1h11n: shull l'II: :sdd1:d K111nni.11lcully us tmt ni'

lhi:; 1\i:rcc111cn1. u pr,)~i:1io1111:. si111l1;1r 10 .,uch ill~g.il, bm1IIJ. ur 111,~nf\111.'\:ul~c pnwl.-1011 o.~ mny ht! J111~~1h~ llllll lic ~gal. ,~1Uu. und t'lf furc.:uhll!.

S. C:tl\'crnlng Will'· illi~ ,,~~'l!11wn1 ~hllll N 110,1~'1·111:J h)· mid "''m~1n1cd in :i.:curJIUl\!c wi1h •h~· faw:; 11J the Stulc 111' 'fr~11~. 'l11ls Airc~1111m1 i.~ 11111<11.: und I~ 10 hll ,,.,,f,inw:11 in the <'ity or 1111!111~ 0 :111:i.'I ( \11111ly. Tc:c.,,s. 1U)lf d1.: wurl~ of' UnlloY C11u11ly. Tcsm1 •:hall hil\e ~ulc 1111J c~chrm~ \'.:mw u11d j11rilidl..:1h111 ,wcr i111y Ji~111111:M ,,111rs!rnit1J,1 thit< t\)lrt'CR>Cnt.

T. Di,wylc HnttMWR· Thi.' l':tr,ics :.ei::rcu rhnt l1t!lhro liliu1.1 :cuit 1,1\'::r ,1 Jb11utc ill\'«Jll'iol!

lhi~ A1J~1111:n(, tlti:}· wi11 m1c:111r1 It, re:111lw 1hll iliapule: hy 1cl<:phun.- ~1111ft·rc11i:i: or llm:-

lc:>-ftll:C 1:u11(i:r..-ncc1 br111'l.'.on rtllN1i<.111a1iw:c 11r th~· 1•:u1i..:~ \\·hn h11Vi: 11uthorily lo ~(Iii:

•111:h di~pllh:.

1/, ~IIIUIICtnUfj!I, 'lhi~ ;\~11.:~IIWIII 11111y bi: \:St.'1:UlciJ i1111111lliJ1lc c,11111k:rp11rli1, idemit:UIJ)'

w11rJcd. m1d eoch ~1.1ch i:n11111r.l'J'nr1 ~hull c1111~1i111tc 11 •1h11~I~ ;r1,m!>lnl.:llll ol'lllll Pnrti.-i;.

V, Htp~Jm,~. 111~· l1L'111lial!5 l'llld till~ :Ire 111~11nt!fl /'tlll)· rnr CQIIH'llii:n~..: nntl ~hall lhll I>.:

,,~~nll!,I l),lll 111' 1l1c 1\tffi:,·m,'III ()l' 111k1,:11 fr.to 1:umd,lcmtiun ill the htt",pn:111111111 •.•r c1111,:1r111:1i11n nl'Oil~ ,\~l'l.'OIIMll,

ftJd l·fa.Qk In~. inJi vidunl ly nnd ~~ · uJ1,r~/\ ___

Wc~ll.'y l{o,:mcr. lmlivi.f1~1lly 111ul Mttnnl:1111! ~i.-111hcrof tl~klml/R1ll.!111cr. I.I.I.' u~ ,11111m1l,cr,,n,~~ki11s/lt11'!111cr.

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Mhiim11I J. f.WlU ,;11 J;;;ij;jii'ttf'-~ i<owt~T l\li:ii~~ll~;li' 11f 1:dci Hu~kh1tt, ;,;divid1111lly 1111d .i.< Wc~l~>· l{111:111~r, liulivkhmlJy 11nJ ~l.uutylng ~ 1.:mhcr or Ila.skiiwRo,ml(.i·. I.I .l' :1~ a 111,,,,h~r 111'1 luskins:'RnL'Oll.'r, LU'

HAS022160