Preview
FILED
4/22/2024 10:04 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Belinda Hernandez DEPUTY
CAUSE NO. DC-20-18383
IN THE DISTRICT COURT
§§§§§§§§§§§§§§§§§§§§§§
115 MANAGEMENT, INC.,
Plaintiff,
V.
MEDICALUSA SUPPLY, LLC and
RYON SCOTT KESTLER,
Defendants,
v.
134TH JUDICIAL DISTRICT
ZEPHYR COLLECTIONS, LLC,
Intervenor,
V.
ZEPHYR COLLECTIONS, LLC,
AARON CAIN, DAVID SCHILLER,
DERRICK ARMSTRONG and
CONTROLLED ELEMENTS
SANITARY SOLUTIONS, LLC,
Third-Party Defendants. DALLAS COUNTY, TEXAS
DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND
RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, MEDICALUSA SUPPLY, LLC (“MedicalUSA”) and RYON SCOTT
KESTLER (“Kestler”) (collectively, Defendants”), submit this Motion to Modify the March 22,
2024 Final Judgment (the “Final Judgment”) because: (1) solely MedicalUSA, not Kestler, is
unambiguously obligated to make payments per the Settlement Agreement; and (2) .
I. Kestler Has N0 Contractual Obligation to Make Payments
Settlement agreements are within the scope of rulel 1 of the Texas Rules of Civil Procedure —
to be enforceable, the agreement must be in writing, signed by the party against Whom enforcement
is sought and filed in the records of the Court. TEX. R. CIV. P. 1 1; Padilla v. La France, 907 S.W.2d
DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND
RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT
I:\24029\Pleadings\lVIotion to Modify Judgment - Defendants.240421..doc Page 1 of 4
454, 459-60 (Tex. 1995).
When a written contract provides that a signed wn'ting is required to modify the contract, the
intended signatures are a condition precedent to a valid, new agreement. Simmons & Simmons
Constr. C0. v. Rea, 155 Tex. 353, 356-57, 286 S.W.2d 415, 417 (1955). Parol evidence cannot
modify a written agreement absent ambiguity. David J. Sacks, P. C. v. Haden, 266 S.W.3d 447, 448
(Tex. 2008) (per curiam). Parol evidence may not be considered to modify or add to unambiguous
written language in a contract. David J. Sacks, P. C., 266 S.W.3d at 451.
Following a bench trial, the August 10, 2023 Order (the “Order”) enters judgment in favor of
Intervenors Daniel Hoang (“Hoang”) and Zephyr Collection, LLC (“Zephyr”) (collectively
“Intervenors”) on Intervenors’ breach of settlement agreement cause of action against Kestler and
MedicalUSA, jointly and severally, awarding actual damages and attorneys’ fees. Critically, Kestler
is not required to make payments under section 3 of the Settlement Agreement: “. . . the Parties
hereby agree to and covenant that Defendants MedicalSupplyUSA shall pay to Plaintiff-
Intervenor, Zephyr Collections, LLC and Daniel Hoang, a settlement of One Hundred and Forty
Thousand and 00/ l 00 dollars ($140,000.00), (hereinafter “Settlement Funds”) . . .” (emphasis added)
Clearly, Kestler is not obligated to pay the Settlement Funds.
Defendants are cognizant of the language in section 3 .b. stating that Intervenors may inquire
as the expected payment made that month by Medical/U SA and/or Kestler, but this language does
not create a payment obligation and does not create an ambiguity — it simply allows Intervenors to
ask if a payment will be made and if it will be by MedicalUSA or Kestler. Similarly, the language in
section 4 of the Settlement Agreement stating “[a]fter execution of the Agreed Judgment and receipt
of funds from Defendants Kestler and MedicalUSA Plaintiff-Intervenor shall file the Agreed
Judgment with the Court in which this action lies” does not create an ambiguity and does not create a
DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND
RYON SCOTT KESTLER’S MOITON T0 MODIFY JUDGMENT
I:\24029\Pleadings\lVIotion to Modify Judgment - Defendants.240421..doc Page 2 of 4
payment obligation. To the extent that Intervenors assert the existence of an ambiguity, there is none,
and parol evidence may not be used to modify the contract. See David J. Sacks, P.C., 266 S.W.3d at
448, 451.
Next, section 10 of the Settlement Agreement states that it may be modified only by a
subsequent written agreement signed by each of the parties. There is no signed writing satisfying this
condition precedent, thus there is no amendment to the settlement agreement. See Simmons &
Simmons Constr. C0., 155 Tex. at 356-57, 286 S.W.2d at 417.
In conclusion, there is no contractual requirement that Kestler make a payment. As a result,
Kestler could not breach the Settlement Agreement.
PRAYER
For the above reasons, Defendants ask the Court to file this Notice so that Mr. Sandberg is
reflected as counsel for Defendants, and that that upon final hearing hereof, Plaintiffs take nothing
by way of their cause of action herein, that Defendants recover their costs herein expended, and for
such other and further relief, at law or in equity, to which Defendants may show themselves justly
entitled to receive.
Respectfully submitted,
By: /s/ Jeffrey R. Sandberg
JEFFREY R. SANDBERG
State Bar No. 00790051
PALMER LEHMAN SANDBERG, PLLC
8350 North Central Expressway, Suite 1111
Dallas, Texas 752096
Telephone: (214) 242-6454
Facsimile: (214) 265-1950
Email: jsandberg@pam1aw.com
COUNSEL FOR DEFENDANTS
MEDICALUSA SUPPLY, LLC and RYON
SCOTT KESTLER
DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND
RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT
I:\24029\Pleadings\lVIotion to Modify Judgment - Defendants.240421..doc Page 3 of 4
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing document has been served on
all counsel of record by electronic delivery through the Texas e-filing system on this 22nd day of
April 2024 and also as noted below:
VIA E-FILING AND EMAIL:
Charles M.R. Vethan
Attorney-in-Charge
Joseph L. Lanza
820 Gessner Road, Suite 1510
Houston, Texas 77024
Telephone: (713) 526-2222
Facsimile: (713) 526-2230
Email: edocs@vwtexlaw.com
R. Sandberg
/s/ Jeffrey
JEFFREY R. SANDBERG
DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND
RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT
I:\24029\Pleadings\Motion to Modify Judgment - Defendants.240421..doc Page 4 of 4
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.
Maria lslas on behalf of JEFFREY SANDBERG
Bar No. 00790051
mislas@pamlaw.com
Envelope ID: 87092479
Filing Code Description: Motion - Miscellanous
Filing Description:
Status as of 4/26/2024 1:39 PM CST
Associated Case Party: RYONSCOTTKESTLER
Name BarNumber Email TimestampSubmitted Status
JEFFREY RSANDBERG jsandberg@pamlaw.com 4/26/2024 8:46:56 AM SENT
Maria Islas mislas@pamlaw.com 4/26/2024 8:46:56 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Francine Ly fly@dallascourts.org 4/26/2024 8:46:56 AM SENT
Charles Marcellus Vethan 791852 edocs@vethanlaw.com 4/26/2024 8:46:56 AM SENT
Craig Jackson craig@cjlawoffice.com 4/26/2024 8:46:56 AM SENT
Cameron Weir edocs@vwtexlaw.com 4/26/2024 8:46:56 AM SENT
Jason LeeVan Dyke jason@marsalalawgroup.com 4/26/2024 8:46:56 AM SENT
The Vethan Law Firm edocs@vwtexlaw.com 4/26/2024 8:46:56 AM SENT
Caitlin J. Scott cscott@lpfletcherlaw.com 4/26/2024 8:46:56 AM ERROR
Ross A.Williams rwilliams@bellnunnally.com 4/26/2024 8:46:56 AM SENT
Ryon Kestler ryon@depgco.com 4/26/2024 8:46:56 AM SENT
Charles Vethan edocs@vethanlaw.com 4/26/2024 8:46:56 AM SENT
Joseph Lanza Jlanza@vethanlaw.com 4/26/2024 8:46:56 AM SENT
Cameron Weir cweir@vethanlaw.com 4/26/2024 8:46:56 AM SENT
Associated Case Party: LOYSTPFLETCHER
Name BarNumber Email TimestampSubmitted Status
Loyst Fletcher loyst@lpfletcherlaw.com 4/26/2024 8:46:56 AM SENT
Preview
FILED 4/22/2024 10:04 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Belinda Hernandez DEPUTY CAUSE NO. DC-20-18383 IN THE DISTRICT COURT §§§§§§§§§§§§§§§§§§§§§§ 115 MANAGEMENT, INC., Plaintiff, V. MEDICALUSA SUPPLY, LLC and RYON SCOTT KESTLER, Defendants, v. 134TH JUDICIAL DISTRICT ZEPHYR COLLECTIONS, LLC, Intervenor, V. ZEPHYR COLLECTIONS, LLC, AARON CAIN, DAVID SCHILLER, DERRICK ARMSTRONG and CONTROLLED ELEMENTS SANITARY SOLUTIONS, LLC, Third-Party Defendants. DALLAS COUNTY, TEXAS DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, MEDICALUSA SUPPLY, LLC (“MedicalUSA”) and RYON SCOTT KESTLER (“Kestler”) (collectively, Defendants”), submit this Motion to Modify the March 22, 2024 Final Judgment (the “Final Judgment”) because: (1) solely MedicalUSA, not Kestler, is unambiguously obligated to make payments per the Settlement Agreement; and (2) . I. Kestler Has N0 Contractual Obligation to Make Payments Settlement agreements are within the scope of rulel 1 of the Texas Rules of Civil Procedure — to be enforceable, the agreement must be in writing, signed by the party against Whom enforcement is sought and filed in the records of the Court. TEX. R. CIV. P. 1 1; Padilla v. La France, 907 S.W.2d DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT I:\24029\Pleadings\lVIotion to Modify Judgment - Defendants.240421..doc Page 1 of 4 454, 459-60 (Tex. 1995). When a written contract provides that a signed wn'ting is required to modify the contract, the intended signatures are a condition precedent to a valid, new agreement. Simmons & Simmons Constr. C0. v. Rea, 155 Tex. 353, 356-57, 286 S.W.2d 415, 417 (1955). Parol evidence cannot modify a written agreement absent ambiguity. David J. Sacks, P. C. v. Haden, 266 S.W.3d 447, 448 (Tex. 2008) (per curiam). Parol evidence may not be considered to modify or add to unambiguous written language in a contract. David J. Sacks, P. C., 266 S.W.3d at 451. Following a bench trial, the August 10, 2023 Order (the “Order”) enters judgment in favor of Intervenors Daniel Hoang (“Hoang”) and Zephyr Collection, LLC (“Zephyr”) (collectively “Intervenors”) on Intervenors’ breach of settlement agreement cause of action against Kestler and MedicalUSA, jointly and severally, awarding actual damages and attorneys’ fees. Critically, Kestler is not required to make payments under section 3 of the Settlement Agreement: “. . . the Parties hereby agree to and covenant that Defendants MedicalSupplyUSA shall pay to Plaintiff- Intervenor, Zephyr Collections, LLC and Daniel Hoang, a settlement of One Hundred and Forty Thousand and 00/ l 00 dollars ($140,000.00), (hereinafter “Settlement Funds”) . . .” (emphasis added) Clearly, Kestler is not obligated to pay the Settlement Funds. Defendants are cognizant of the language in section 3 .b. stating that Intervenors may inquire as the expected payment made that month by Medical/U SA and/or Kestler, but this language does not create a payment obligation and does not create an ambiguity — it simply allows Intervenors to ask if a payment will be made and if it will be by MedicalUSA or Kestler. Similarly, the language in section 4 of the Settlement Agreement stating “[a]fter execution of the Agreed Judgment and receipt of funds from Defendants Kestler and MedicalUSA Plaintiff-Intervenor shall file the Agreed Judgment with the Court in which this action lies” does not create an ambiguity and does not create a DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND RYON SCOTT KESTLER’S MOITON T0 MODIFY JUDGMENT I:\24029\Pleadings\lVIotion to Modify Judgment - Defendants.240421..doc Page 2 of 4 payment obligation. To the extent that Intervenors assert the existence of an ambiguity, there is none, and parol evidence may not be used to modify the contract. See David J. Sacks, P.C., 266 S.W.3d at 448, 451. Next, section 10 of the Settlement Agreement states that it may be modified only by a subsequent written agreement signed by each of the parties. There is no signed writing satisfying this condition precedent, thus there is no amendment to the settlement agreement. See Simmons & Simmons Constr. C0., 155 Tex. at 356-57, 286 S.W.2d at 417. In conclusion, there is no contractual requirement that Kestler make a payment. As a result, Kestler could not breach the Settlement Agreement. PRAYER For the above reasons, Defendants ask the Court to file this Notice so that Mr. Sandberg is reflected as counsel for Defendants, and that that upon final hearing hereof, Plaintiffs take nothing by way of their cause of action herein, that Defendants recover their costs herein expended, and for such other and further relief, at law or in equity, to which Defendants may show themselves justly entitled to receive. Respectfully submitted, By: /s/ Jeffrey R. Sandberg JEFFREY R. SANDBERG State Bar No. 00790051 PALMER LEHMAN SANDBERG, PLLC 8350 North Central Expressway, Suite 1111 Dallas, Texas 752096 Telephone: (214) 242-6454 Facsimile: (214) 265-1950 Email: jsandberg@pam1aw.com COUNSEL FOR DEFENDANTS MEDICALUSA SUPPLY, LLC and RYON SCOTT KESTLER DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT I:\24029\Pleadings\lVIotion to Modify Judgment - Defendants.240421..doc Page 3 of 4 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing document has been served on all counsel of record by electronic delivery through the Texas e-filing system on this 22nd day of April 2024 and also as noted below: VIA E-FILING AND EMAIL: Charles M.R. Vethan Attorney-in-Charge Joseph L. Lanza 820 Gessner Road, Suite 1510 Houston, Texas 77024 Telephone: (713) 526-2222 Facsimile: (713) 526-2230 Email: edocs@vwtexlaw.com R. Sandberg /s/ Jeffrey JEFFREY R. SANDBERG DEFENDANTS MEDICALUSA SUPPLY, LLC’S AND RYON SCOTT KESTLER’S MOITON TO MODIFY JUDGMENT I:\24029\Pleadings\Motion to Modify Judgment - Defendants.240421..doc Page 4 of 4 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. Maria lslas on behalf of JEFFREY SANDBERG Bar No. 00790051 mislas@pamlaw.com Envelope ID: 87092479 Filing Code Description: Motion - Miscellanous Filing Description: Status as of 4/26/2024 1:39 PM CST Associated Case Party: RYONSCOTTKESTLER Name BarNumber Email TimestampSubmitted Status JEFFREY RSANDBERG jsandberg@pamlaw.com 4/26/2024 8:46:56 AM SENT Maria Islas mislas@pamlaw.com 4/26/2024 8:46:56 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Francine Ly fly@dallascourts.org 4/26/2024 8:46:56 AM SENT Charles Marcellus Vethan 791852 edocs@vethanlaw.com 4/26/2024 8:46:56 AM SENT Craig Jackson craig@cjlawoffice.com 4/26/2024 8:46:56 AM SENT Cameron Weir edocs@vwtexlaw.com 4/26/2024 8:46:56 AM SENT Jason LeeVan Dyke jason@marsalalawgroup.com 4/26/2024 8:46:56 AM SENT The Vethan Law Firm edocs@vwtexlaw.com 4/26/2024 8:46:56 AM SENT Caitlin J. Scott cscott@lpfletcherlaw.com 4/26/2024 8:46:56 AM ERROR Ross A.Williams rwilliams@bellnunnally.com 4/26/2024 8:46:56 AM SENT Ryon Kestler ryon@depgco.com 4/26/2024 8:46:56 AM SENT Charles Vethan edocs@vethanlaw.com 4/26/2024 8:46:56 AM SENT Joseph Lanza Jlanza@vethanlaw.com 4/26/2024 8:46:56 AM SENT Cameron Weir cweir@vethanlaw.com 4/26/2024 8:46:56 AM SENT Associated Case Party: LOYSTPFLETCHER Name BarNumber Email TimestampSubmitted Status Loyst Fletcher loyst@lpfletcherlaw.com 4/26/2024 8:46:56 AM SENT