Letter,Correspondence: Stephanie Rockov-Medina VS. Chirag Parghi, MD and Anita Bangale, MD

On May 15, 2020 a Letter,Correspondence was filed involving a dispute between Rockov-Medina, Stephanie, and Bangale, Anita, Md, Parghi, Chirag, Md, for Contract-Other >$200,000 in the District Court of Montgomery County.

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p SCHEEF & STONE
SOLID COUNSEL

January 4, 2022

Judge Vince Santini
457th Judicial District
301 North Main St., Ste. 200
Conroe, Texas 773001

Defendants’ Motion for Reconsideration filed in Cause No. 20 05791; Stephanie
Rockov Medina v. Chirag Parghi MD and Anita Bangale MD; pending in the 457th
Judicial District, Montgomery County, Texas

Dear Judge Santini,

This day the Defendants, Chirag Parghi MD and Anita Bangale MD (“Defendants”), filed their
Motion for Reconsideration of the Denial of Defendants and Counter Plaintiffs Traditional and No
Evidence Motion for Summary Judgment, which included case law not previously before the Court prior
to or at the summary judgment hearing. Along with this filing, Defendants have attached highlighted
copies of the cases cited in that Motion for the Court’s consideration.

rial, nlyrief the ndings
additional researchwillleconsider this case law

Kind Regards,

(il fre Baker
Joe Baker
State Bar No. 24058547
joe. Baker @solidcounsel.com
SCHEEF & STONE, LLP
500 N. Akard St. Suite 2700
Dallas, TX 75201
Telephone (214) 706 4200
Facsimile (214) 706 4242
ce: Viae
Matthew J. Mussali
Brandon Hedblom
The Mussalli Law Firm

Via e ail (pj.miller@mctx.org)

JB/d

2600 Network Blvd. Suite400 Frisco, Texas 75034 = Tel: (214) 472 2100 Fax: (214) 472 2150
-Solidcounsel.com
874 Tex. 766 SOUTH WESTERN REPORTER, 2d SERIES

2d 868 (1970). The United States Supreme assistance of counsel for appellant; we
Court said that juveniles need the assist- should be no less solicitous that appellant
ance of counsel to cope with problems of gets effective assistance. Instead, we ap-
law, to insist upon regularity of the pro- pear to be compelling appellant to defend
ceedings, and to make skilled inquiry into himself, as an adult, against an attempted
the facts. In re Gault, 887 U.S. at 36, 87 capital charge, because a court-appointed
S.Ct. at 1448, “The child ‘requires the criminal defense attorney ran into an in-
guiding hand of counsel at every step in flexible technicality of the civil rules of
the proceedings against him.’” Jd. (em- procedure. We are, in short, leaving appel-
phasis added). lant in no better position than if he had no
The United States Supreme Court has counsel at all on this appeal.
held that the juvenile court’s decision to Particularly should we consider appel-
waive jurisdiction and send the juvenile to lant’s appeal on the merits, because the
the criminal courts is “critically impor- statement of facts has been completed and
tant.” Kent, 383 U.S. at 560, 86 S.Ct. at tendered to this Court, pending the disposi-
1056. “It is clear beyond dispute that the tion of appellant’s motion to compel the
waiver of jurisdiction is a ‘critically impor- clerk to file it. Granting appellant’s mo-
tant’ action determining vitally important tion will result in no undue delay. I would
statutory rights of the juvenile.” Id. at therefore hold that adhering strictly to the
556, 86 S.Ct. at 1054. In Kent itself, the
Texas Rules of Appellate Procedure, as in
waiver of jurisdiction “was potentially as
civil actions generally, is unconstitutional,
important to [Kent] as the difference be-
when, as here, the result is to deprive one
tween five years’ confinement and a death
appealing an order making him stand trial
sentence, .” Id, at 557, 86 S.Ct. at 1055.
as an adult of effective assistance of coun-
A juvenile is entitled “to the essentials of
sel on appeal, and, indeed, an effective ap-
due process and fair treatment.” Jd. at
peal of any kind. I would therefore grant
562, 86 S.Ct. at 1056. The Supreme Court
appellant’s motion and order the clerk of
determined that juveniles must be afforded
the Court to file the statement of facts as
counsel in waiver proceedings. Jd. “The
of the date it was tendered to the Court.
right to representation by counsel is not a
formality... It is the essence of justice.”
Id. at 561, 86 S.Ct. at 1057. “[TJhere is no
place in our system of law for reaching a
result of such tremendous consequences
without ceremony—without hearing, with-
out effective assistance of counsel, without
a statement of reasons.” Id. at 554, 86
S.Ct. at 1058 (emphasis added).
Neel COTTEN, Appellant,
Certainly a juvenile having to defend
against a charge as serious as an attempt- ve
ed capital murder has no less a constitu- Geoffrey James DEASEY and Charles
tional right to effective assistance of coun- Randall Goodman, Appellees.
sel at every stage of the proceeding
against him, no matter how the nature of a
No. 05-88-00788-CV.
particular step in that proceeding is techni- Court of Appeals of Texas,
cally characterized. We have recognized Dallas.
that “a party whose counsel is unable to
provide effective representation is in no March 8, 1989.
better position than one who has no counsel Rehearing Denied April 7, 1989.
atall.” Shead, 711 S.W.2d at 347 (quoting
Evitts v. Lucey, 469 US. 387, 105 S.Ct.
830, 836, 83 L.Ed.2d 821 (1985). The trial Real estate broker brought action to
court did what it could to ensure effective recover commission under alleged listing
COTTEN v. DEASEY Tex. 875
Cite
as 766 $.W.2d 874 (Tex.App—Dallas 1989)
agreement. The 116th District Court, Dal- 6. Contracts €176(1)
las County, Frank Andrews, J., granted Whether party’s dissatisfaction about
sellers’ motion for partial summary judg- contract condition was feigned or in good
ment. Broker appealed. The Court of Ap- faith is fact issue, in contract dispute.
peals, Whitham, J., held that: (1) exchange
of correspondence between parties did not 7. Vendor and Purchaser 79
create new, nonexclusive listing agreement, Contract of sale conditioned on pur
but rather, extended term of original list- chaser’s determination that financing was
ing agreement; (2) “sold,” as used within available to him in amount and on terms
the agreement, meant to secure, within the satisfactory to purchaser in his sole judg-
required period of time, the existence of ment does not render contract nonbinding
binding offer to buy property under the and unenforceable.
terms and conditions specified by sellers; 8. Vendor and Purchaser $137
and (8) contract of sale entered into by
Contract of sale conditioned on good
sellers was enforceable.
and marketable title as evidenced by stan-
Reversed and remanded. dard form title policy subject only to exist-
ing leases as may be approved by purchas-
1, Contracts €227 er and other encumbrances and matters as
may be approved by purchaser does not
Even if exact date of performance is
render contract nonbinding and unenforce-
specified in contract, this provision can be
able.
waived by the parties.
9. Appeal and Error ¢78(1), 863
2. Contracts 242
Extension of time for performance of When both parties file motions for
contract may be implied as well as ex- summary judgment and one motion is
pressed; where exact duration of extension granted, then trial court’s judgment is final
of time is not expressed, law will imply and appealable and, on appeal, appellate
reasonable time. court should determine all questions
presented.
38. Contracts ¢=242
Effect of extension of time for per- 10. Appeal and Error ¢>1175(1)
formance of contract is merely to substi- Real estate broker was not entitled to
tute new time for old; extension does not rendition of judgment in his favor on his
affect other provisions of the contract. motion for summary judgment after appel-
late court determined that trial court erred
4. Brokers ¢7 in granting sellers’ motion for partial sum-
Exchange of correspondence between mary judgment, in action to recover com-
sellers and real estate broker did not create mission under listing agreement; only er-
new, nonexclusive listing agreement, but ror assigned by broker complained of
rather, extended term of old, exclusive list- granting of sellers’ summary judgment mo-
ing agreement. tion, and broker did not make assignment
5. Brokers 60 of error that trial court erred in failing to
“Sold,” as used within exclusive listing grant his motion.
agreement, did not require broker to see 11. Appeal and Error ¢1078(1)
that deed was delivered and that buyer’s All assignments of error not brought
check was good, but rather, meant to se- forward as points of error are waived.
cure, within the required time period, the
existence of binding offer to buy property
under terms and conditions specified by AE. Andres, Thurman & Wilder, Arling-
sellers. ton, for appellant.
See publication Words and Phrases
for other judicial constructions and James H. Baumgartner, Jr., Vial, Hamil-
definitions. ton, Koch & Knox, Dallas, for appellees.
876 Tex. 766 SOUTH WESTERN REPORTER, 2d SERIES

Before WHITHAM, THOMAS and dence established as a matter of law that
BURNETT, JJ. the listing agreement upon which the bro-
ker based his cause of action expired by its
WHITHAM, Justice. own terms on January 30, 1986. Second,
In this suit to recover a commission un- the sellers maintain that even if the parties
der an alleged exclusive right to sell listing extended the listing agreement until April
agreement, the appellant-real estate bro- 80, 1986, the property was not “sold” until
ker, Neel Cotten, appeals from a summary after April 30, 1986. Third, the sellers
judgment in favor of the appellee-sellers, insist that there was never a “sale” be-
Geoffrey James Deasey and Charles cause the transaction of February 3, 1986,
Randall Goodman. Both the sellers and was not @ binding contract of sale.
the broker filed motions for summary judg-
ment on the issue of breach of contract. The sellers’ first argument requires us to
The trial court granted the sellers’ motion determine whether the term of the listing
and denied the broker’s motion. In his sole agreement was extended from January 30,
point of error, the broker contends that the 1986, through April 30, 1986, The listing
trial court erred in granting the sellers’ agreement provides that “(sellers and bro-
motion for summary judgment. We agree. ker] may extend this listing agreement
Accordingly, we reverse and remand. from time to time and may modify its
terms only by written agreement.” As to
Cotten is a licensed real estate broker.
whether the listing agreement was extend-
Cotten and the sellers entered a Greater ed or expired by its own terms on January
Dallas Board of Realtors form listing
80, 1986, we quote the exchange of corre-
agreement which gave Cotten the exclusive
spondence between the parties. The bro-
right to sell their property. The initial
listing covered the one-year period from ker’s December 27, 1985 letter states:
January 30, 1985, through January 30, Pursuant to your instructions concerning
1986. On December 27, 1985, Cotten sent the listed price on your property under
a proposed six-month extension of the list- our listing agreement dated January 30,
ing for signature by the sellers. On Janu- 1985, this letter will serve as your autho-
ary 10, 1986, the sellers responded with a rization to reduce the price of the proper-
written authorization for Cotten to contin- ty to $1,854,336.00 which is $22.00 per
ue to represent their property for three square foot.
months, through April 30, 1986. Cotten Per our discussion, I recommend install-
continued his performance of the listing ing a sign at the northwest corner of
agreement through April 1986, by endeav- your property. If you do not wish to
oring to sell the property. Unknown to install a sign, please strike this para-
Cotten, on February 8, 1986, the sellers graph as it pertains to your approval
entered into a contract of sale with Ken- below.
neth M. Standley covering their property, It will be appropriate to extend the term
in which they provided for the closing to of the listing to July 30, 1986.
take place on May 1, 1986, one day after
If the above meet with your approval, we
the end of Cotten’s listing. Closing oc-
will appreciate your signatures in the
curred on May 1, 1986, at which time the
space provided below and return one
sellers received $1,685,000.00 in cash. Cot-
copy to us.
ten’s five percent commission was not paid.
Enclosed please find the copy of the ap-
The dispute between the parties centers praisal from which I have made copies.
on the reasons advanced by the sellers to
Thank you for the opportunity to work
support the grant of summary judgment in
with you.
their favor. In this connection, the sellers
contend that the trial court properly award- The sellers’ January 10, 1986 response re-
ed them summary judgment for three rea- plies:
sons. First, the sellers assert that the I am in receipt of your letter of
uncontradicted summary-judgment evi- 12/27/85. After reviewing the market
COTTEN v. DEASEY Tex. 877
Cite
as 766 8.W.2d 874 (Tex.App.—Dallas 1989)
both Randy and I will authorize you to Next, we consider the sellers’ second ar-
continue to represent our property at gument in which sellers maintain that, even
$1,854,386.00 or $22.00 per square foot if the parties extended the listing agree
for a period continuing until April $0, ment until April 30, 1986, the property was
1986. At this time I will again review not “sold” until after April 30, 1986. Be-
the progress you and your associates fore proceeding, we point out that it is
have made in light of the price reduction. undisputed that the broker continued to
We obviously appreciate all your assist- perform his obligations under the listing
ance in marketing the property and cer- agreement during the period of January 80,
tainly hope the new pricing will produce 1986, until April 80, 1986. Thus, we focus
a qualified purchaser. on the word “sold” as used in the listing
Also, thanks for the return of the ap- agreement: “If during the term of this
praisal. listing agreement, the property is sold by
(Emphasis added). The sellers insist that [sellers], [sellers] will pay to [broker] ... a
this exchange of correspondence created a commission in cash as set forth above.”
new, non-exclusive listing rather than con- The sellers maintain that “sold” means
tinue the old exclusive listing agreement. transfer of legal title and payment for the
We disagree. property. It is undisputed that the trans-
[1-4] Even if an exact date of perform- action was closed on May 1, 1986. It is
ance is specified in a contract, this provi- undisputed that title was transferred and
sion can be waived by the parties. IJn- that payment was made at the May 1, 1986
termedics, Inc. v. Grady, 683 S.W.2d 842, closing. Hence, sellers assert that the
846 (Tex.App.—Houston [1st Dist.] 1984, property “sold” on May 1, 1986, after expi-
writ ref’d nr. An extension of time for ration of the extended term of the listing
performance may be implied as well as agreement.
express. Intermedics, 683 S.W.2d at 846.
[5] In the present case, we conclude
Where the exact duration of an extension
that “sold,” as that word is used in the
of time is not expressed, the law will imply
listing agreement, does not require a con-
a reasonable time. Intermedics, 683 S.W.
summated transaction. We reach this con-
2d at 846. The effect of such an extension
is merely to substitute a new time for the clusion in light of the listing agreement’s
old. It does not affect the other provisions language whereby sellers appoint the bro-
of the contract. Intermedics, 688 S.W.2d ker as their agent. To quote the listing
at 846. The extension of the term of a agreement: “[Sellers] hereby irrevocably
contract is the extension of all its provi- [appoint] [broker] as [their] exclusive
sions. See Morgan v. Stover, 511 S.W.2d agent, with the exclusive right ... [t]o sell
362, 365 (Tex.Civ.App.—Eastland 1974, said property upon the following terms and
writ ref’d n.r.e.). We conclude that the conditions or on such other terms as ap-
exchange of correspondence between the proved by [sellers].” Thus, we reason that
parties on December 27, 1985, and January the sellers engaged the broker to obtain an
10, 1986, constituted an extension of the offer meeting specified terms and condi-
term of the listing agreement from Janu- tions; not to produce a successful closing
ary 30, 1986, until April 30, 1986. We in which title is transferred and purchase
conclude further that this extension of time price paid. Indeed, if the parties had in-
extended all of the provisions of the listing tended that the broker obtain a consum-
agreement. It follows that we find no mated transaction before he earned his
merit in the sellers’ argument that the list- commission, it would have been a simple
ing agreement expired by its own terms on matter to so provide in the listing agree-
January 30, 1986, and that the parties cre- ment. A contract, whether written or oral,
ated a new, non-exclusive listing. Instead, must define its essential terms with suffi-
we conclude that the parties extended the cient precision to enable the court to deter-
term of the listing agreement until April mine the obligations of the parties. Weitz-
30, 1986. man v. Steinberg, 688 S.W.2d 171, 175
878 Tex. 766 SOUTH WESTERN REPORTER, 2d SERIES

(Tex.App.—Dallas 1982, no writ). Hence, a contract—whether the agreement is
we decline to hold that “sold,” as used in not illusory in character because condi-
the listing agreement, requires the broker tioned upon the whim or caprice of the
to see that the deed is delivered and that party to be satisfied. Since, however,
the buyer’s check is good. To the contrary, such a promise is generally considered as
we hold that “sold,” in the context of the requiring a performance which shall be
present owner-realtor dispute, means to se- satisfactory to him in the exercise of an
cure, within the required period of time, honest judgment, such contracts have
the existence of a binding offer to buy the been almost universally upheld.
property under the terms and conditions Cited with approval in Atomic Fuel Ex-
specified by the owner. See Cox v. Huff- traction Corp. v. Slick’s Estate, 886 S.W.
man, 159 Tex. 298, 319 S.W.2d 295, 297 2d 180, 185 (Tex.Civ.App—San Antonio
(1958). Moreover, it is undisputed that the 1964), writ ref'd n.re. per curiam, 408
sellers accepted an offer meeting terms S.W.2d 784 (Tex.1965). Whether a party’s
and conditions agreeable to them within the dissatisfaction about the conditions was
extended term of the listing agreement. feigned or in good faith is a fact issue.
Consequently, we conclude that “during The decision must be made in good faith.
the term of the listing agreement, the prop- Atomic Fuel, 886 S.W.2d at 185. Hence,
erty [was] sold” within the meaning of the we conclude that contracts conditioned as
listing agreement. It follows that we find in the present case require the exercise of
no merit in the sellers’ argument that the honest eT te 2 the rere of a 3
property was not sold until after April 30,
1986. Instead, we conclude that the prop-
erty was “sold” during the extended term
of the listing agreement so as to trigger
the sellers’ contractual obligation to “pay
to [broker] ... a commission in cash” equal
to five percent of $1,685,000.00. We hold further that a contract
[6-8] We now turn to sellers’ third rea- of sale conditioned on good and marketable
son advanced to support the summary title as evidenced by a standard form title
judgment in their favor. The sellers insist insurance policy subject only to such exist-
that there was no “sale” because the trans- ing leases as may be approved by purchas-
action of February 3, 1986, was not a bind- er and such other encumbrances and mat-
ing contract of sale. The sellers reason ters as may be approved by purchaser does
that the contract of sale to Standley was not render the contract nonbinding and un-
unenforceable against sellers because it enforceable. Thus it follows that the two
was conditioned on two matters: first, conditions pointed to by the sellers do not
Standley’s determination that financing render the seller-Standley contract of sale
was available to him in an amount and on nonbinding and unenforceable. Therefore,
terms satisfactory to him in his sole judg- we find no merit in the sellers’ argument
ment; and, second, good and marketable that there was never a “sale” because the
title as evidenced by a standard form title transaction of February 3, 1986, was not a
insurance policy subject only to such exist- binding contract of sale.
ing leases as may be approved by purchas- [9-11] For the above reasons, we con-
er and such other encumbrances and mat- clude that the trial court erred in granting
ters as may be approved by purchaser. the sellers’ motion for partial summary
We disagree that the contract was unen- judgment on the issue of breach of contract
forceable. As stated in 5 Williston on Con- as to the listing agreement. We sustain
tracts (3rd Ed.) § 675A: the broker’s sole point of error insofar as it
It has been questioned whether an agree- complains of the granting of this motion
ment in which the promise of one party is for partial summary judgment. Therefore,
conditional on his own or the other par- we do not reach the broker's contentions
ty’s satisfaction contains the elements of under his sole point of error complaining of
Cite
LYON v. STATE
as 766 S.W.2d 879 (Tex.App.—Austin 1989)
Tex. 879
the trial court’s granting of the sellers’
motion for partial summary judgment on Barbara K. LYON, Appellant,
the issue of good faith and fair dealing.
Our conclusion of trial court error as to the v.
issue of breach of the listing agreement The STATE of Texas, Appellee.
alone requires that we reverse the trial
No, 3-88-167-CR.
court’s judgment. The broker, however,
does not, by an assignment in a point of Court of Appeals of Texas,
error or by argument, complain that the Austin.
trial court erred in failing to grant his
motion for summary judgment. When March 15, 1989.
both parties file motions for summary Rehearing Denied April 12, 1989.
judgment and one such motion is granted,
then the trial court’s judgment is final and
appealable and, on appeal, this court should
Defendant was convicted in the County
determine all questions presented. Tobin
Court at Law No. 6, Travis County, Wilford
v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400
Flowers, J., of violating provision of Bingo
(1958). If reversible error is found, this
Enabling Act prohibiting person from of-
court should render such judgment as the
trial court should have rendered. Tobin, fering award of door prize or other prize to
816 S.W.2d at 400. Where, however, the person present at bingo occasion or partici-
only error assigned by the appellant com- pating in bingo occasion in addition to
plains of the granting of the appellee’s prizes awarded for winning individual bin-
motion for summary judgment and there is go games. Defendant appealed. The
no assignment of error that the trial court Court of Appeals, Jones, J., held that de-
erred in failing to grant the appellant’s fendant, who awarded door prize to person
own motion for summary judgment, this during intermission separating two sepa-
court may not render judgment. See rate series of bingo games, did not violate
Buckner Glass & Mirror v. T.A. Pritchard statute.
Co, 697 S.W.2d 712, 714-15 (Tex.App.— Reversed and reformed.
Corpus Christi 1985, no writ); Holmquist
v. Occidental Life Ins. Co., 586 S.W.2d
434, 488 (Tex.Civ.App.—Houston [14th
1. Gaming 6
Dist.] 1976, writ ref’d n.r.e.). Instead, we
may only remand the cause to the trial Term “bingo occasion” in Bingo En-
court. Buckner Glass, 697 S.W.2d at 714- abling Act means time during which series
15; Holmquist, 586 S.W.2d at 438. Conse- of successive bingo games is conducted by
quently, we conclude that the broker is not an organization within licensed operating
entitled to rendition of a judgment in his hours during which it is authorized to con-
favor on his own motion for summary judg- duct such games. Vernon’s Ann.Texas
ment. All assignments of error not Civ.St. art. 179d, § 1 et seq.
brought forward as points of error are See publication Words and Phrases
waived. Mullinaz, Wells, Baab and for other judicial constructions and
definitions.
Cloutman, P.C. v. Sage, 692 S.W.2d 533,
536 (Tex.App.—Dallas 1985, writ ref’d n.r. 2, Statutes €219(5)
e). Interpretation by Attorney General is
Accordingly, we reverse the trial court’s often given considerable weight, but need
judgment and remand the cause to the trial not be adopted when contrary to intention
court. of Legislature as disclosed by provision of
act.

3. Gaming ¢62
Defendant, who awarded door prize to
766 S.W.2d—20 person during intermission separating two
case as a responsible third party. This we

We hold that in circumstances such as

Franchised automobile deal-

sible third party designation. Issue One is

The Court of Appeals, Anne

() “best efforts” provision of agreement

(2) evidence was legally sufficient to sup-

(8) evidence was legally sufficient to sup-

Indeed, it is not difficult to envision a cir- it enacted § 33.004 of the Texas Civil Practice

Because we have concluded that Relators

the claimant's injury or damage. This cannot
Cite
as 362 $.W.3d 160 (Tex.App.—Fort Worth 2012)

(4) dealer’s experts’ reliance on manufac-

(5) prejudgment interest accrued from

(6) provision of contract that non-breach

1. Appeal and Error

6. Appeal and Error
that could not be mitigated. Rules App.

7. Appeal and Error

See publication Words and Phrases

See publication Words and Phrases
Cite
as 362 $.W.3d 160 (Tex.App.—Fort Worth 2012)
31. Appeal and Error

27. Appeal and Error

mandatory. V.T.C.A., Civil Practice &
Remedies Code § 38.001.

33. Appeal and Error
Cite
as 362 $.W.3d 160 (Tex.App.—Fort Worth 2012)
fees evidence at trial. V.T.C.A, Civil
Practice & Remedies Code § 38.001.

PANEL: GARDNER and WALKER,
JJ.; and DIXON W. HOLMAN (Senior

35. Appeal and Error

In four is-

is also mandatory. V.T.C.A., Civil Practice
& Remedies Code § 38.001.

prejudgment interest. In his cross-appeal,

Tommy J. Manuel; Tommy Manuel Chrys-
ler-Jeep, Inc; and Manuel Dodge, Ltd. were
plaintiffs in the trial court. During the pen-
pellate attorney's fees. We affirm in part

Chrysler manufactures Chrysler,

hicles. Tommy Manuel has been a fran-

and Richardson. At the time of trial,
In accord with the policy

A. Historical Backdrop

The Court held that a state may,

Ford and General Motors. As an essential

The trial court made extensive findings of
fact—twenty-nine pages’ worth. Findings of 439 US. 96, 101-02 & n. 5, 99

722 S.W.2d 694, 696 (Tex.1986);

178 S.W.3d

nied). We draw the bulk of the facts recited

at 107-08, 99 S.Ct. at 410-11.
Automobile Dealers’ Day in Court Act,
15 U.S.C. §§ 1221-1225 (1956).
Cite
as 362 $.W.3d 160 (Tex.App.—Fort Worth 2012)
B. Project 2000
The

Manuel. Manuel was aware of Chrysler’s

participant for several reasons. Chrysler

The filing of a notice of protest litigation), and

litigation. Additionally, Man-

and he had refused to sell it. Chrysler

the protest could take years. Complicat-
2000 market realignment. Chrysler ap-

Act of April 7, 1971, 62nd Leg., R.S., ch.
51, 1971 Tex. Gen. Laws 89. The TMVC has

inception. Currently, the regulatory function
Tex. Oce.Code Ann. § 2301.652 (West

Tex. Occ.Code § 2301.001 (West 2004). Cur-
§ 2301.803 (West Supp. 2011).
§ 2301.003 (West 2004).
be the most expensive to deal with. Joe

proceeded to negotiate. Chrysler offered subject to the protest.” The AESSA in

ership to replace it. The parties discussed

ships in joining Project 2000. By the end

were signed in August 1999. As required

C. The Agreements

litigation). One approved on January 14, 2000. Manuel

D. Meador’s Protest
participating in Project 2000. Pursuant to

volved in Project 2000. The second agree-

dealership. The filing of Meador’s protest
Agreement” (the AESSA). By the AES-
Cite
as 362 $.W.3d 160 (Tex.App.—Fort Worth 2012)

protest. Chrysler moved to have the pro-
E. This Suit

by Meador’s settlement agreement. Fail-

February 2002. A significant downturn in

protest. The federal court initially stayed 2002. They were continuing at the time of

for resolution. Chrysler then sought and

fore the Commission. In July 2000,

and attorney’s fees. Manuel contended
district court’s adverse decision. Also in

Meador. Chrysler ultimately settled the forts clause by Chrysler. The parties

issue and damages. Among its findings of
attorney's fees. In November 2000,

The trial court ren-

The trial court's findings of fact and con- clusions of law do not expressly state that
attorney’s fees. Both parties appealed. 301 S.W.3d 747,

287 S.W.3d 840, 843—

Il. BEST EFFORTS 2. Goals and guidelines

Chrysler first argues that “best ef-

held enforceable. But Chrysler’s own gen-

used to implement Project 2000. More-

was ultimately met. Chrysler alternative-
E. Farns-
§ 7.17¢

A. Enforceability of “Best Efforts”
able) (citations omitted); Kenneth A.
1 Standard of Review

50 No. 4 Practical Lawyer,

995
enforceable). “Whatever the test of best.
650 S.W.2d 391, 393 (Tex.
191

stances.” E. Farnsworth,
law, which we review de novo.”). More Keep One’s Promises: The Duty of Best

AESSA. The trial court had also previously
Manuel urges us to summarily overrule

3 of the Settlement Agreement. Thus, we will
the Settlement Agreement. But the trial
Cite
as 362 $.W.3d 160 (Tex.App.—Fort Worth 2012)
46 U. Pitt. L.Rev.

at 580. CKB appealed.

court

goal and fall well short. Under different

at
581. Thus, that court reasoned, “To be
601 F.2d 609, 614-15 (2d

30 N.Y.2d 519 F.Supp. 118, 121
(S.D.N.Y.1981)). The court concluded that

46 U. Pitt. L-Rev. at
at 582. Only when a party

and by compar-
specifically

(citing 601 F.2d at 613-14;
guidelines. 809 S.W.2d at 580. In that 519 F.Supp. at 122;
176 F.Supp.
862, 866 (S.D.N.Y.1959)). Ultimately, the

at 578. Instead of refining to meet the produc-

stating: “As a matter of law, no efforts
(citing
at 579, 582. Thus, the

As Manuel notes, other Texas courts have
179 S.W.3d 152, 158
South Arlington] dealership.” The best

or settle the Meador protest. Manuel re-

January 1, 2001. Manuel references lan-

Rather, the goal or objective of the

the contract required

That Chrysler agreed to an extension of

48 S.W.3d 225, 233-34 (Tex.App.-San

583 S.W.2d 852, 864 (Tex.Civ.
Cite
as 362 $.W.3d 160 (Tex.App.—Fort Worth 2012)

thus enforceable. We overrule the first

B. The Quality of Chrysler’s Efforts
Chrysler next argues that, even if

opened. Thus, Chrysler, citing
“upon surrounding cireumstances); Mark 302 F.3d at 559, argues that the

used its best efforts is irrelevant. But the

is again instructive in rejecting this
argument. In that case, Lucent eventually

This is in accord with the well-
at 557. But by that time, the

The

best efforts clause; in other words, that
142

985
at 561.
1999, no pet.). What is a reasonable time

985
S.W.2d at 266. Therefore, even if the
analysis, we consider the
of an average, prudent,

809
S.W.2d at 582. We conclude that, even
806
We overrule this part of Chrysler's first S.W.2d 791, 794 (Tex.1991). The trial

C. Legally Sufficient Evidence of

917 S.W.2d
In the final part of its first issue,

lishes that it used its best efforts. Manuel

328 F.3d 331, 334 (7th Cir.2003)
1 Standard of Review
We may sustain a legal sufficiency chal-

fact; (2) the court is barred by rules of law

fact is no more than a mere scintilla; or (4)

38
977 S.W.2d 328,
526 U.S. 1040,

838
38 Tex. L.Rev. 361, 362-63 (1960). In

228 S.W.3d 649, 651

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