Preview
Electronically Filed
9/15/2023 4:32 PM
Hidalgo County District Clerks
Reviewed By: Analyssa Suarez
CAUSE NO. C-0963-15-I
ARTURO G. DACOSTA § IN THE DISTRICT COURT
§
VS. § 398TH JUDICIAL DISTRICT
§
ABELARDO BALLI § HIDALGO COUNTY, TEXAS
RESPONSE TO THE DEFENDANT'S MOTION TO ENFORCE
RULE 11 AGREEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, Arturo G. DaCosta, files this Response to Defendant's Motion to Enforce
Rule 11 Agreement and says:
1. BACKGROUND
As shown by the pleadings, the Plaintiff's Original Petition and Supplemental
Petitions and Defendants Answers, the Plaintiff in 2008 purchased a house from
Defendant Balli for $35,000.00 and monthly payments of $400.00 a month until the
purchase price was paid.
2. Plaintiff paid most of the monthly payments and in 2008 the Plaintiff was
contacted by a buyer who wanted to purchase the house for $47,000.00. Plaintiff sought
to get a payoff figure by Defendant Balli but Defendant refused to give him a payoff figure
by reason of which the proposed sale for $47,000.00 never occurred.
3. In 2017, the Defendant filed a countersuit for a Judicial Foreclosure and in
2019 the Plaintiff filed his First Amended First Supplemental Petition and answered to the
counterclaim wherein the Plaintiff alleged numerous violation of the Texas Property Code
by reason of which the Defendant was not entitled to recover anything on the
counterclaim.
Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 1 of 6
Electronically Filed
9/15/2023 4:32 PM
Hidalgo County District Clerks
Reviewed By: Analyssa Suarez
4. In 2019, the Plaintiff filed an Amended Petition wherein the Plaintiff sought
to recover damages and title and possession to the property. The Court ordered a
mediation on the case and attached is a Confidential Mediation Memorandum which
outlined the issues to be mediated.
5. The Plaintiff wanted a Warranty Deed to the House because he had another
buyer for the house, but the Defendant wanted to either foreclose on the property or be
paid what was owed to him. During the Mediation, the Plaintiff disclosed that he had a
buyer for the house but that sale could not be closed until the Defendant provided a
Warranty Deed to the property and delivered such deed to Capital Title Company in
Weslaco who would be closing the sale of property by the Plaintiff to his buyer. The
Parties also agreed that out of the funds for the sale of the house the title company would
pay Defendant $17,500,00 and all taxes would be paid. Defendant agreed to deliver the
deed to the house to the title company.
6. It is clear from the Rule 11 Agreement that the property had to be sold so
that funds would be generated to pay the Defendant and the taxes to wits; (1) the General
Warranty Deed was to be delivered to Capital Title in Weslaco, Texas; (2) the Plaintiff
had a contract to sell the house and Capital Title in Weslaco would be handling the closing
of that sale; (3) at the closing, the Defendant would be paid $17,500.00 by the Title
Company and the back taxes would be paid out of the closing funds. Thus, the sale of
the property was clearly a condition precedent to Plaintiffs obligation in the Rule 11
Agreement.
Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 2 of 6
Electronically Filed
9/15/2023 4:32 PM
Hidalgo County District Clerks
Reviewed By: Analyssa Suarez
ARGUMENTS AND AUTHORITIES
Contract law governs settlement agreements made pursuant to Rule 11. Padilla v.
LaFrance, 907 S.W.2d 454, 460 (Tex. 1995).
The obligation to perform a contract may be affected by a "condition precedent."
See Dillon v. Lintz, 582 S.W.2d 394, 395 (Tex. 1979); 537 S.W.2d 1, 3 (Tex. 1976);
Hohenberg Bros. Co. v. George E. Gibbons & Co., (condition precedent may affect
formation of contract or obligation to perform).
A party seeking to recover under a contract has the burden of proving that all
conditions precedent have been satisfied. Sharifi v. Steen Automotive, LLC, 370 S.W.3d
126, 144 (Tex. App.—Dallas 2012, no pet.); Cate v. Woods, 299 S.W.3d 149, 153 (Tex.
App.—Texarkana 2009, no pet.); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 300 (Tex.
App.—Dallas 2009, no pet.); CDI Engineer Group v. Administrative Exch., 222 S.W.3d
544, 548 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)).
A "condition precedent" that affects an obligation to perform is an act or event,
occurring after the making of a contract, that must occur before there is a right to
performance and before there can be a breach of contractual duty. Centex Corp. v.
Dalton, 840 S.W.2d 952, 956 (Tex. 1992); see Restatement, Second, of Contracts § 224
("A condition is an event, not certain to occur, which must occur, unless its non-
occurrence is excused, before performance under a contract becomes due").
If such an event has been expressly and clearly made a condition of the obligor's
performance by the terms of the parties' contract, then the obligor's performance is
excused if the express condition is not satisfied. Centex Corp. v. Dalton, 840 S.W.2d 952,
956 (Tex. 1992); see Restatement, Second, of Contracts § 225 ("Unless it has been
Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 3 of 6
Electronically Filed
9/15/2023 4:32 PM
Hidalgo County District Clerks
Reviewed By: Analyssa Suarez
excused, the non-occurrence of a condition discharges the duty when the condition can
no longer occur"). Here the condition (sale) were not satisfied.
Based on the Rule 11 Agreement, the Defendant being paid the $17,500 was
conditioned on the sale and closing occurring — the condition precedent. The sale and
closing did not happen, therefore, there was no breach of a contractual duty by Dacosta.
Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992); Restatement, Second, of
Contracts § 224 ("A condition is an event, not certain to occur, which must occur, unless
its non-occurrence is excused, before performance under a contract becomes due").
The Fact that the details of the sale of the property the closing of the title company
and the disbursement of the funds by title company was put into the Rule 11 Agreement
is clear evidence that the sale of the property was a condition precedent. Without the
sale there would be no money for the Plaintiff to pay to the Defendant or for the taxes to
be paid. If it was not a condition precedent there be need for putting that into the Rule 11
Agreement and all the Rule 11 Agreement would have to say was that the Plaintiff would
pay the Defendant $17,500.00. The condition precedent makes it clear that it is not the
Plaintiff but the title company that is to pay the Defendant out of the closing of the sale of
the property.
Since there was no sale of the property the condition precedent has not been met
and the Defendant has no pleadings that the condition precedent has been met and no
evidence the condition precedent has been met. In other word for the Defendant to ask
the Court to enforce the Rule 11 Agreement, the Court would have to find that the
condition precedent, that is the sale, occurred and no money has been paid. That cannot
be proven because the sale did not happen.
Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 4 of 6
Electronically Filed
9/15/2023 4:32 PM
Hidalgo County District Clerks
Reviewed By: Analyssa Suarez
In addition, it is the title company that is obligated under the Rule 11 Agreement to
pay the Defendant the $17,500.00. The title company is not a party to this Rule 11
Agreement and there is no way the Court could enforce the agreement against the title
company and require the title company to pay out money without a sale to produce the
funds.
WHEREFORE PREMISES CONSIDERED, the Plaintiff prays that the Court deny
the Defendant's Motion to Enforce the Rule 11 Agreement.
Respectfully submitted,
O.C. Hamilton, Jr.
ATLAS, HALL & RODRIGUEZ, LLP
818 West Pecan Boulevard
McAllen, Texas 78501
(956) 682-5501
(956) 686-6109 Facsimile
By: Oe(
O.C. Hamilton, Jr.
Texas State Bar No. 08847000
Email: och@atlashall.com
Attorneys for Arturo G. Dacosta
Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 5 of 6
Electronically Filed
9/15/2023 4:32 PM
Hidalgo County District Clerks
Reviewed By: Analyssa Suarez
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document
was sent by electronic service on September 14, 2023 to opposing counsel as follows:
Juan E. Gonzalez
Law Office of Juan E. Gonzalez, PLLC
3110 E. Bus. Hwy 83
Weslaco, Texas 78596
Email: lawofjeg@aol.com
Attorney for Defendant Abelardo Balli
O.C. Hamilton, Jr.
Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 6 of 6
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Yesenia Olazaran on behalf of O. Hamilton
Bar No. 08847000
yolazaran@atlashall.com
Envelope ID: 79621237
Filing Code Description: Answer/Response
Filing Description: Response to the Defendant's Motion to Enforce Rule
11 Agreement
Status as of 9/15/2023 4:47 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Carl Hamilton och@atlashall.com 9/15/2023 4:32:20 PM SENT
Juan E.Gonzalez lawofjeg@aol.com 9/15/2023 4:32:20 PM SENT
JUAN GONZALEZ JUANEGONZALEZ@JEGLAW.NET 9/15/2023 4:32:20 PM SENT
PERALEZ LAW SERVICE@PERALEZFRANZLAW.COM 9/15/2023 4:32:20 PM SENT
Preview
Electronically Filed 9/15/2023 4:32 PM Hidalgo County District Clerks Reviewed By: Analyssa Suarez CAUSE NO. C-0963-15-I ARTURO G. DACOSTA § IN THE DISTRICT COURT § VS. § 398TH JUDICIAL DISTRICT § ABELARDO BALLI § HIDALGO COUNTY, TEXAS RESPONSE TO THE DEFENDANT'S MOTION TO ENFORCE RULE 11 AGREEMENT TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff, Arturo G. DaCosta, files this Response to Defendant's Motion to Enforce Rule 11 Agreement and says: 1. BACKGROUND As shown by the pleadings, the Plaintiff's Original Petition and Supplemental Petitions and Defendants Answers, the Plaintiff in 2008 purchased a house from Defendant Balli for $35,000.00 and monthly payments of $400.00 a month until the purchase price was paid. 2. Plaintiff paid most of the monthly payments and in 2008 the Plaintiff was contacted by a buyer who wanted to purchase the house for $47,000.00. Plaintiff sought to get a payoff figure by Defendant Balli but Defendant refused to give him a payoff figure by reason of which the proposed sale for $47,000.00 never occurred. 3. In 2017, the Defendant filed a countersuit for a Judicial Foreclosure and in 2019 the Plaintiff filed his First Amended First Supplemental Petition and answered to the counterclaim wherein the Plaintiff alleged numerous violation of the Texas Property Code by reason of which the Defendant was not entitled to recover anything on the counterclaim. Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 1 of 6 Electronically Filed 9/15/2023 4:32 PM Hidalgo County District Clerks Reviewed By: Analyssa Suarez 4. In 2019, the Plaintiff filed an Amended Petition wherein the Plaintiff sought to recover damages and title and possession to the property. The Court ordered a mediation on the case and attached is a Confidential Mediation Memorandum which outlined the issues to be mediated. 5. The Plaintiff wanted a Warranty Deed to the House because he had another buyer for the house, but the Defendant wanted to either foreclose on the property or be paid what was owed to him. During the Mediation, the Plaintiff disclosed that he had a buyer for the house but that sale could not be closed until the Defendant provided a Warranty Deed to the property and delivered such deed to Capital Title Company in Weslaco who would be closing the sale of property by the Plaintiff to his buyer. The Parties also agreed that out of the funds for the sale of the house the title company would pay Defendant $17,500,00 and all taxes would be paid. Defendant agreed to deliver the deed to the house to the title company. 6. It is clear from the Rule 11 Agreement that the property had to be sold so that funds would be generated to pay the Defendant and the taxes to wits; (1) the General Warranty Deed was to be delivered to Capital Title in Weslaco, Texas; (2) the Plaintiff had a contract to sell the house and Capital Title in Weslaco would be handling the closing of that sale; (3) at the closing, the Defendant would be paid $17,500.00 by the Title Company and the back taxes would be paid out of the closing funds. Thus, the sale of the property was clearly a condition precedent to Plaintiffs obligation in the Rule 11 Agreement. Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 2 of 6 Electronically Filed 9/15/2023 4:32 PM Hidalgo County District Clerks Reviewed By: Analyssa Suarez ARGUMENTS AND AUTHORITIES Contract law governs settlement agreements made pursuant to Rule 11. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). The obligation to perform a contract may be affected by a "condition precedent." See Dillon v. Lintz, 582 S.W.2d 394, 395 (Tex. 1979); 537 S.W.2d 1, 3 (Tex. 1976); Hohenberg Bros. Co. v. George E. Gibbons & Co., (condition precedent may affect formation of contract or obligation to perform). A party seeking to recover under a contract has the burden of proving that all conditions precedent have been satisfied. Sharifi v. Steen Automotive, LLC, 370 S.W.3d 126, 144 (Tex. App.—Dallas 2012, no pet.); Cate v. Woods, 299 S.W.3d 149, 153 (Tex. App.—Texarkana 2009, no pet.); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 300 (Tex. App.—Dallas 2009, no pet.); CDI Engineer Group v. Administrative Exch., 222 S.W.3d 544, 548 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)). A "condition precedent" that affects an obligation to perform is an act or event, occurring after the making of a contract, that must occur before there is a right to performance and before there can be a breach of contractual duty. Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992); see Restatement, Second, of Contracts § 224 ("A condition is an event, not certain to occur, which must occur, unless its non- occurrence is excused, before performance under a contract becomes due"). If such an event has been expressly and clearly made a condition of the obligor's performance by the terms of the parties' contract, then the obligor's performance is excused if the express condition is not satisfied. Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992); see Restatement, Second, of Contracts § 225 ("Unless it has been Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 3 of 6 Electronically Filed 9/15/2023 4:32 PM Hidalgo County District Clerks Reviewed By: Analyssa Suarez excused, the non-occurrence of a condition discharges the duty when the condition can no longer occur"). Here the condition (sale) were not satisfied. Based on the Rule 11 Agreement, the Defendant being paid the $17,500 was conditioned on the sale and closing occurring — the condition precedent. The sale and closing did not happen, therefore, there was no breach of a contractual duty by Dacosta. Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992); Restatement, Second, of Contracts § 224 ("A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due"). The Fact that the details of the sale of the property the closing of the title company and the disbursement of the funds by title company was put into the Rule 11 Agreement is clear evidence that the sale of the property was a condition precedent. Without the sale there would be no money for the Plaintiff to pay to the Defendant or for the taxes to be paid. If it was not a condition precedent there be need for putting that into the Rule 11 Agreement and all the Rule 11 Agreement would have to say was that the Plaintiff would pay the Defendant $17,500.00. The condition precedent makes it clear that it is not the Plaintiff but the title company that is to pay the Defendant out of the closing of the sale of the property. Since there was no sale of the property the condition precedent has not been met and the Defendant has no pleadings that the condition precedent has been met and no evidence the condition precedent has been met. In other word for the Defendant to ask the Court to enforce the Rule 11 Agreement, the Court would have to find that the condition precedent, that is the sale, occurred and no money has been paid. That cannot be proven because the sale did not happen. Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 4 of 6 Electronically Filed 9/15/2023 4:32 PM Hidalgo County District Clerks Reviewed By: Analyssa Suarez In addition, it is the title company that is obligated under the Rule 11 Agreement to pay the Defendant the $17,500.00. The title company is not a party to this Rule 11 Agreement and there is no way the Court could enforce the agreement against the title company and require the title company to pay out money without a sale to produce the funds. WHEREFORE PREMISES CONSIDERED, the Plaintiff prays that the Court deny the Defendant's Motion to Enforce the Rule 11 Agreement. Respectfully submitted, O.C. Hamilton, Jr. ATLAS, HALL & RODRIGUEZ, LLP 818 West Pecan Boulevard McAllen, Texas 78501 (956) 682-5501 (956) 686-6109 Facsimile By: Oe( O.C. Hamilton, Jr. Texas State Bar No. 08847000 Email: och@atlashall.com Attorneys for Arturo G. Dacosta Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 5 of 6 Electronically Filed 9/15/2023 4:32 PM Hidalgo County District Clerks Reviewed By: Analyssa Suarez CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document was sent by electronic service on September 14, 2023 to opposing counsel as follows: Juan E. Gonzalez Law Office of Juan E. Gonzalez, PLLC 3110 E. Bus. Hwy 83 Weslaco, Texas 78596 Email: lawofjeg@aol.com Attorney for Defendant Abelardo Balli O.C. Hamilton, Jr. Response to the Defendant's Motion to Enforce Rule 11 Agreement Page 6 of 6 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Yesenia Olazaran on behalf of O. Hamilton Bar No. 08847000 yolazaran@atlashall.com Envelope ID: 79621237 Filing Code Description: Answer/Response Filing Description: Response to the Defendant's Motion to Enforce Rule 11 Agreement Status as of 9/15/2023 4:47 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Carl Hamilton och@atlashall.com 9/15/2023 4:32:20 PM SENT Juan E.Gonzalez lawofjeg@aol.com 9/15/2023 4:32:20 PM SENT JUAN GONZALEZ JUANEGONZALEZ@JEGLAW.NET 9/15/2023 4:32:20 PM SENT PERALEZ LAW SERVICE@PERALEZFRANZLAW.COM 9/15/2023 4:32:20 PM SENT