Preview
3/25/2020 9:49 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 41928985
By: Tiffany Jefferson
Filed: 3/25/2020 9:49 PM
CAUSE NO. 2018-09038
CYNSEAN YANCEY and § IN THE DISTRICT COURT
ALBERT YANCEY, §
Plaintiffs, §
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v. § HARRIS COUNTY, TEXAS
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SEYED MOHMOUND AMJADI, §
CARLOS SALINAS and A & A §
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PALLET AND LUMBER COMPANY, §
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Defendants. § 164th JUDICIAL DISTRICT
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DEFENDANT/COUNTER-PLAINTIFF
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SEYED MOHMOUND AMJADI’S MOTION FOR SUMMARY JUDGMENT
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TO THE HONORABLE JUDGE OF SAID COURT:
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COMES NOW Defendant/Counter-Plaintiff Seyed Mohmound Amjadi (“Amjadi”), and
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files this, his Motion for Summary Judgment pursuant to Texas Rule of Civil Procedures 166a(c),
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and in support thereof would respectfully show the Court as follows:
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I.
BACKGROUND AND SUMMARY OF MOTION
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This matter is a personal injury suit arising, in part, out of an automobile collision that
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occurred on or about July 5, 2017 involving Amjadi and Albert Yancey (“Albert”). Notably,
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Plaintiff Cynsean Yancey (“Cynsean”) was not involved in the incident with Amjadi and has not
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brought any claims against him in this suit. Albert and Cynsean, however, were allegedly involved
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in another automobile collision involving Co-Defendants Carlos Salinas and A&A Pallet and
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Lumber Company on April 6, 2017, wherein they claim to have sustained injuries as a result. This
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motion for summary judgment does not address any claims and/or allegations related to that April
6, 2017 incident to which Defendant/Counter-Plaintiff Amjadi was not a party.
In regard to the July 5, 2017 collision, Albert alleges he was injured when her vehicle was
struck from behind by a vehicle driven by Amjadi (the “Incident”). Following the collision, insurer
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GEICO Advantage Insurance Company (“GEICO”), on behalf of Amjadi and as representative of
Amjadi, entered into an oral agreement (which was audio recorded with permission) with Albert
wherein Albert settled his bodily injury claim against Amjadi arising from the Incident. See
Exhibit “A” (Recorded Statement of Albert Yancey). Specifically, Albert agreed to “settle [his]
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bodily injury claim for a total of $2,765.31” that sum being comprised of “$550 that will be mailed
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directly to” Albert and “$2,215.31 that will be mailed out to providers for the date of loss
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treatment[.]” Id. at p. 2.
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Albert agreed as part of the settlement to “indemnify and hold harmless” Amjadi as to “any
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and all claims relating to [Albert’s] injury, illness, or disease, related to the [Incident].” Id.
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Further, Albert agreed to release Amjadi from liability and confirmed that it was his “desire to
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settle this claim as discussed” against Amjadi. Id. Albert confirmed that he understood the
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conversation. Id. at p. 3.
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However, despite agreeing to fully release and settle his bodily injury claims against
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Amjadi for a specified sum, Albert filed an amended petition in this cause on March 8, 2019 joining
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Amjadi as a co-defendant and seeking damages against him. See Exhibit “B” (Plaintiff’s First
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Amended Petition). In response, Amjadi filed his Original Answer with this Court contending
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Albert’s claims against him were barred by—among other affirmative defenses—settlement,
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payment, or release. See Exhibit “C” (Amjadi’s Original Answer). On March 18, 2020, Amjadi
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filed a counterclaim against Albert alleging breach of the oral settlement agreement and seeking
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specific performance, dismissal of the claims against him, and his reasonable and necessary
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attorney’s fees under Chapter 38 of the Texas Civil Practices and Remedies Code. See Exhibit
“D” (Defendant’s Original Counterclaim).
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The oral settlement contract between Albert and Amjadi’s insurer, GEICO, entered into by
the insurer on behalf of Amjadi, is a valid and enforceable contract. The essential elements of a
contract are met, and the oral settlement contract is not barred by the Statute of Frauds.
Accordingly, Albert’s claims against Amjadi were brought in violation of the oral settlement
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contract entered into between the parties. Amjadi is entitled to summary judgment here;
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specifically, Amjadi is entitled to summary judgment on his affirmative defense of settlement and
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release, as well as summary judgment on his counterclaim asserting Albert breached the oral
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settlement contract. Therefore, Amjadi respectfully requests that the Court: (1) grant summary
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judgment in favor of Amjadi as to his affirmative defense of settlement and release; (2) enter
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judgment in favor of Amjadi dismissing Plaintiffs’ claims against him with prejudice; (3) grant
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summary judgment in favor of Amjadi on his breach of contract counterclaim; (4) enter judgment
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ordering specific performance on Counter-Defendant Albert’s part; and (5) upon final hearing,
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award Amjadi his reasonable and necessary attorney’s fees.
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II.
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SUMMARY JUDGMENT STANDARD OF REVIEW
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Under Rule 166a(c) of the Texas Rules of Civil Procedure, summary judgment is appropriate
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where there is no genuine issue as to a material fact and the moving party is entitled to judgment
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as a matter of law. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
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1995). A defendant “who conclusively negates at least one of the essential elements of a cause of
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action is entitled to summary judgment as to that cause of action.” Id. Further, a defendant is
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entitled to summary judgment when it “establishes each element of an affirmative defense.” Id.
An issue is conclusively established or negated “if reasonable minds could not differ about the
conclusion to be drawn from the facts in the record.” Cmty. Health Sys. Prof'l Servs. Corp. v.
Hansen, 525 S.W.3d 671, 681 (Tex. 2017).
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III.
SUMMARY JUDGMENT EVIDENCE
Amjadi relies on the following summary judgment evidence in support of this Motion:
Exhibit A: Recorded Statement of Plaintiff Albert Yancey
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Exhibit B: Plaintiff’s First Amended Petition
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Exhibit C: Defendant’s Original Answer
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Exhibit D: Defendant’s Original Counterclaim
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Exhibit E: Deposition Transcript of Plaintiff Albert Yancey
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Exhibit F: Chapter 38 Presentment Letter
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Exhibit G: Affidavit in Support of Attorney’s Fees
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IV. Bu
RELEVANT FACTS
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As stated above, Albert was involved in an automobile collision with Amjadi on July 5,
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2017. Exhibit “E” at p. 28, ln. 19-22 (Deposition of Albert); see also Exhibit “A” (Recorded
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Statement of Albert Yancey). Albert was examined by EMS at the scene and taken to a hospital
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for injuries he allegedly sustained in the collision. Id. at p. 30, ln. 18-22. Albert was offered
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medication and discharged from the hospital’s emergency room without being admitted. Id. at p.
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32, ln. 18-22; p. 33, ln. 13-18.
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On July 2, 2018, Albert spoke to GEICO representative Patti Tall (“Tall”) regarding his
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claim related to the Incident. Id. at p. 41, ln. 14—p. 42., ln. 15; p. 47, ln. 15—p. 52, ln. 9; see also
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Exhibit “A” at p. 1 (Recorded Statement of Albert Yancey). During that conversation, Tall
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offered, as a representative of Amjadi, to settle Albert’s claims regarding bodily injury on behalf
of Amjadi for a total of $2,765.31, of which $550.00 would go directly to Albert and the remainder
to medical providers for date of loss treatment. Id. at p. 51, ln. 2—p. 52, ln. 9; see also Exhibit
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“A” at p. 1-2. Albert’s testimony confirmed he agreed to settle his claim, release Amjadi and
GEICO from further liability, and agreed to indemnify and hold Amjadi and GEICO harmless
from any and all claims resulting from the Incident. Id. at p. 50, ln. 13—p. 52, ln. 9; see also
Exhibit “A” at p. 2. When asked by Tall if he had understood all of her questions, Albert confirmed
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that he had. Exhibit “A” at p. 3. The recorded conversation that took place on July 2, 2018 between
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Albert and Tall, attached as Exhibit “A”, is incorporated herein as if set forth in its entirety.
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IV.
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ARGUMENT AND AUTHORITY
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Under Texas law, the affirmative defense of settlement and release is governed by contract
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law. Fritz v. McDowell, No. 02-16-00373, CV, 2017 WL 3821889, at *5 (Tex. App.—Fort Worth
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Aug. 31, 2017, pet. denied) (mem. op.) (citing Bu
Williams v. Glash, 789 S.W.2d 261, 264 (Tex.
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1990)). Settlement agreements are enforceable contracts if they include all the terms necessary
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for the contract’s enforcement as a matter of law. McCalla v. Baker’s Campground, Inc., 416
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S.W.3d 416, 418 (Tex. 2013) (per curiam). The settlement agreement at issue in McCalla
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contained a general release, a description of the contract subject at issue, the timeline for
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completing the transaction, the identities of the parties, and the price; there was no indication that
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the terms remained open for negotiation. Id. The Court stated “[i]f a court was trying to enforce
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the settlement agreement, it could find all the terms necessary for its enforcement,” thus rendering
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the settlement agreement “an enforceable contract as a matter of law.” Id. Moreover,
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“[a]greements to enter into future contracts are enforceable if they contain all material terms.” Id.
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A party seeking to enforce a settlement agreement “must pursue a separate claim for breach
of contract.” In re Vaishangi, Inc., 442 S.W.3d 256, 260 (Tex. 2014). Amjadi has filed his
counterclaim for breach of contract in accordance with Texas law. See Exhibit “D” (Defendant’s
Original Counterclaim).
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A. The Essential Elements of a Contract Apply to Oral Contracts
Whether an agreement is an enforceable contract is a question of law. Fiduciary Fin. Servs.
of Sw. Inc. v. Corilant Fin., LP, 376 S.W.3d 253, 256 (Tex. App.—Dallas 2012, pet. denied); Meru
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v. Huerta, 136 S.W.3d 383, 390 (Tex. App.—Corpus Christi 2004, no pet.). The elements of
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written and oral contacts are the same and must be present for a contract to be binding. Tyco
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Valves & Controls, L.P. v. Colorado, 365 S.W.3d 750, 771 (Tex. App.—Houston [1st Dist.] 2012),
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aff’d, 432 S.W.3d 885 (Tex. 2014) (citing Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555
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(Tex. App.—Houston [1st Dist.] 2002, no pet.)). Thus, to be valid, an oral contract must consist
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of “(1) an offer; (2) acceptance; (3) meeting of the minds; (4) each party’s consent to the terms;
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and (5) execution and delivery of the contract with the intent that it be mutual and binding.” Id.
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(citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st
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Dist.] 2002, pet. denied) (although oral contracts obviously cannot include physical “delivery and
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execution,” they are still binding and enforceable if other elements are met).
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To be enforceable, a contract must define its essential terms with sufficient detail to allow
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a court to determine the obligations of the parties. Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237
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(Tex. 2016) (referencing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.
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1992)). Parties may agree on some terms sufficient to create a contract, leaving other provisions
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for later negotiation. Fiduciary Fin., 376 S.W.3d at 256 (citing Scott v. Ingle Bros. Pac., Inc., 489
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S.W.2d 554, 555 (Tex. 1972)). As with any other contract, to create an oral contract, the parties
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must have a “meeting of the minds” and must communicate consent to the terms of the agreement.
David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008); Crisp Analytical Lab, LLC v.
Jakalam Props., Ltd., 422 S.W.3d 85, 89 (Tex. App.—Dallas 2014, pet. denied).
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A meeting of the minds is a mutual understanding and assent to the expression of the
parties’ agreement. Potcinske v. McDonald Property Investments, Ltd., 245 S.W.3d 526, 530 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). To determine if there was an agreement or meeting of
the minds, courts use an objective standard, considering what the parties did rather than “the
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subjective beliefs of the parties.” Davis v. Tex. Farm Bureau Ins., 470 S.W.3d 97, 106 (Tex.
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App.—Houston [1st Dist.] 2015, pet. dism’d); Bright v. Addison, 171. S.W.3d 588, 596 (Tex.
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App.—Dallas 2005, pet. dism’d) (fact finder uses an objective standard of examining what the
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parties said and did rather than look at their subjective states of mind). In considering “whether
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there was an offer and acceptance using an objective standard, courts consider the parties’
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communications and actions pertaining to the formation of the contract.” Id.; see also Komet v.
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Gravese, 40 S.W.3d 596, 601 (Tex. App.—San Antonio 2001, no pet.).
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B. Oral Contracts are Valid and Enforceable
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Oral contracts are valid and enforceable under Texas law. See, e.g., Crisp, 422 S.W.3d at
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89 (enforcing oral contract); Parker v. HTR, Inc., 2012 WL 5964396 (Tex. App.—Houston [14th
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Dist.] Nov. 29, 2012, no pet.) (evidence established an enforceable oral contract); Pennington v.
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Gurkoff, 899 S.W.2d 767, 770 (Tex. App.—Fort Worth 1995, writ denied) (personal services oral
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contract was enforceable). Chapter 38 of the Civil Practice and Remedies Code further clarifies
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that “[a] person may recover reasonable attorney’s fees from an individual or corporation . . . if
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the claim is for: . . . an oral or written contract.” TEX. CIV. PRAC. & REM. CODE § 38.001(8).
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Likewise, pre-suit oral settlement agreements are enforceable under Texas law. The Texas
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Supreme Court addressed the validity of a pre-suit settlement agreement in Banda v. Garcia, 955
S.W.2d 270 (Tex. 1997) (per curiam). In that case, an attorney representing an injured claimant
allegedly settled the claim for $60,000 by orally agreeing to the opposing party’s acceptance of
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the offer and agreeing to extend the deadline for submitting the checks and releases. Id. at 271.
However, by letter, the attorney subsequently stated the deadline had passed and filed suit. Id.
The defendant filed a motion to enforce the settlement agreement. Id. Ultimately, the Court found
the attorney’s unsworn testimony was valid evidence of an oral agreement between the parties. Id.
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at 271-272. “Accordingly, the court of appeals should have affirmed the trial court’s judgment
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enforcing the [pre-suit settlement] agreement.” Id. at 272.
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In Harris v. Balderas, 27 S.W.3d 71 (Tex. App.—San Antonio 2000, pet. denied), as in
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this case, the parties reached a pre-suit oral settlement agreement. Id. at 73. Despite the agreement,
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the claimants filed a personal injury lawsuit. Id. The defendant then filed a counterclaim, just as
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in this case, contending that the claimants had agreed to release her from liability in exchange for
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$20,000. Id. The facts showed that the defendant’s insurer’s (USAA) representative had called the
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claimants’ attorney’s office and spoken with a paralegal. Id. at 75. The claims representative
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advised that USAA was tendering its $20,000 limits as to one claimant on behalf of the insured
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and the paralegal made a memo of the conversation which states, “they were going to pay policy
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limits [to one claimant].” Id. at 72-73. The claimants’ attorney called and requested the settlement
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papers and check. Id. at 75. Another memo from the paralegal established that a conversation was
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held the same day about delivery of the policy limits. Id. A letter confirming settlement and
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enclosing the check and release were sent to the claimants’ attorney. Id. The claimants’ attorney
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returned the check since it included additional claimants and filed suit. Id.
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The appellate court noted that “[t]he terms of the settlement agreement will govern the
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outcome of the suit; the validity of the personal injury judgment will be irrelevant to the outcome.”
Id. at 74 (emphasis added). The court further stated that “[t]he existence of an oral contract may
be proved by circumstantial as well as direct evidence.” Id. at 77. The court will “look to the
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communications between the parties and to the acts and circumstances surrounding those
communications.” Id. The court noted the elements of a contract: offer, acceptance, a meeting of
the minds, and the terms expressed with sufficient certainty so that there will be no doubt as to
what the parties intended (the court did not address the “delivery” requirement, as the contract at
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issue was an oral contract). Id. at 77. Ultimately, the court remanded the case due to a fact issue
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as to the existence of a contract, as the paralegal may not have had authority such that her
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agreement could bind the claimants. Id. at 77-8.
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However, no such fact issue exists in this case. The parties who negotiated the oral contract
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were Albert himself and the GEICO representative, Tall, acting on behalf of Amjadi. See generally
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Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312 (Tex. 1994) (insurer may settle with claimant
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on behalf of insured); TEX. R. CIV. P. 192.5 (insurer may be a party’s representative). Unlike
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Harris, in this case, there was no intermediary or other party required to approve the settlement
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agreement. All of the elements necessary to establish a valid and enforceable oral contract are met
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here.
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C. There Was a Meeting of the Minds, an Offer, Acceptance, and Consent to the
Terms of the Settlement Agreement
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As in Harris, Albert entered into an oral settlement agreement with Amjadi’s insurer. An
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offer, acceptance, and meeting of the minds took place. Each party consented to the terms.
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Albert’s recorded statement and his testimony establish the following: (1) GEICO, on behalf of
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Amjadi, offered to pay Alberts’s reasonable and necessary medical expenses incurred on the date
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of loss, July 5, 2017, valued at $2,215.31 directly to the medical providers and offered to pay
$550.00 directly to Albert; (2) in exchange, Albert agreed to give up any further claims or lawsuits
arising out of the July 5, 2017 incident against Amjadi and GEICO; and (3) Albert acknowledged
he understood these terms and agreed to them, providing GEICO’s representative with an address
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to mail his direct payment to him. Thus, the objective evidence and the actions and
communications of the parties here show there was a meeting of the minds, an offer, and
acceptance. Each party agreed to the terms of the settlement, identified the quantifiable
consideration offered by each side, and confirmed their understanding as to its terms.
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In this matter, all the essential terms to an enforceable oral contract have been established:
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(1) the parties to the contract are identifiable; (2) the amount of the contract is identifiable, i.e. the
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consideration was clearly stated; (3) the subject matter is identifiable; and (4) there is no indication
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that the terms of the contract remained open for negotiation. See McCalla, 416 S.W.3d at 418
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(settlement agreement was valid when it contained the identity of the parties, a description of the
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subject matter of the agreement, and the price, and no terms remained open for negotiation).
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Further, the transcript attached as Exhibit “A” operates as a memorandum of the oral agreement.
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See Tindall v. Bishop, Peterson & Sharp, PC, 961 S.W.2d 248 (Tex. App.—Houston [1st Dist.
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1997, no writ). The oral settlement agreement between Albert and Amjadi’s insurer GEICO is
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thus a valid and enforceable contract.
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D. The Pre-Suit Oral Settlement Agreement Clearly Identifies the Released Parties.
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Furthermore, a settlement release discharges “only those persons or entities that it names
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or specifically identifies.” Fritz, No. 02-16-00373, CV, 2017 WL 3821889, at *5 (citing McMillen
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v. Klingensmith, 467 S.W.2d 193, 196 (Tex. 1971)). A party may claim the protection of a release
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“only if the release refers to him or her by name or with such descriptive particularity that his or
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her identity or connection with the event is not in doubt.” Fritz, No. 02-16-00373, CV, 2017 WL
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3821889, at *5 (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984)). The
test in determining whether a party is released is whether “a stranger could readily identify the
released party.” Id.
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Here, the recorded statement attached as Exhibit “A” clearly identifies Amjadi and his
insurer GEICO as released parties. Albert’s deposition testimony outlined above provides further
evidence as to the identities of the parties. Because a stranger could identify from this objective
evidence that Albert intended for Amjadi and GEICO to be the released parties under the
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settlement agreement, Amjadi is entitled—as a matter of law—to claim the protection of the pre-
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suit oral settlement release. Accordingly, Amjadi is entitled to summary judgment on his
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affirmative defense of settlement and release. See Fritz, No. 02-16-00373, CV, 2017 WL 3821889,
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at *5 (affirming trial court’s grant of summary judgment in favor of released parties under the
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affirmative defense of settlement and release); see also Gilbert v. Fitz, No. 05-16-00218-CV, 2016
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WL 7384167, at *7 (Tex. App.—Dallas Dec. 21, 2016, no pet.) (affirming summary judgment for
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the defendant where the plaintiff filed suit after entering into oral settlement agreement with the
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defendant’s insurer). And because Albert is in breach of that contract, he is also entitled to
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summary judgment on his counterclaim.
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E. The Statute of Frauds Does Not Apply
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The Statute of Frauds does not apply in this matter. The Statute of Frauds is applicable only
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Preview
3/25/2020 9:49 PM Marilyn Burgess - District Clerk Harris County Envelope No. 41928985 By: Tiffany Jefferson Filed: 3/25/2020 9:49 PM CAUSE NO. 2018-09038 CYNSEAN YANCEY and § IN THE DISTRICT COURT ALBERT YANCEY, § Plaintiffs, § § v. § HARRIS COUNTY, TEXAS k § ler SEYED MOHMOUND AMJADI, § CARLOS SALINAS and A & A § tC PALLET AND LUMBER COMPANY, § ric Defendants. § 164th JUDICIAL DISTRICT ist DEFENDANT/COUNTER-PLAINTIFF sD SEYED MOHMOUND AMJADI’S MOTION FOR SUMMARY JUDGMENT es TO THE HONORABLE JUDGE OF SAID COURT: rg COMES NOW Defendant/Counter-Plaintiff Seyed Mohmound Amjadi (“Amjadi”), and Bu files this, his Motion for Summary Judgment pursuant to Texas Rule of Civil Procedures 166a(c), n ily and in support thereof would respectfully show the Court as follows: ar M I. BACKGROUND AND SUMMARY OF MOTION of e This matter is a personal injury suit arising, in part, out of an automobile collision that ffic occurred on or about July 5, 2017 involving Amjadi and Albert Yancey (“Albert”). Notably, yO Plaintiff Cynsean Yancey (“Cynsean”) was not involved in the incident with Amjadi and has not op C brought any claims against him in this suit. Albert and Cynsean, however, were allegedly involved ial in another automobile collision involving Co-Defendants Carlos Salinas and A&A Pallet and fic Lumber Company on April 6, 2017, wherein they claim to have sustained injuries as a result. This of Un motion for summary judgment does not address any claims and/or allegations related to that April 6, 2017 incident to which Defendant/Counter-Plaintiff Amjadi was not a party. In regard to the July 5, 2017 collision, Albert alleges he was injured when her vehicle was struck from behind by a vehicle driven by Amjadi (the “Incident”). Following the collision, insurer -1- GEICO Advantage Insurance Company (“GEICO”), on behalf of Amjadi and as representative of Amjadi, entered into an oral agreement (which was audio recorded with permission) with Albert wherein Albert settled his bodily injury claim against Amjadi arising from the Incident. See Exhibit “A” (Recorded Statement of Albert Yancey). Specifically, Albert agreed to “settle [his] k ler bodily injury claim for a total of $2,765.31” that sum being comprised of “$550 that will be mailed tC directly to” Albert and “$2,215.31 that will be mailed out to providers for the date of loss ric treatment[.]” Id. at p. 2. ist sD Albert agreed as part of the settlement to “indemnify and hold harmless” Amjadi as to “any es and all claims relating to [Albert’s] injury, illness, or disease, related to the [Incident].” Id. rg Further, Albert agreed to release Amjadi from liability and confirmed that it was his “desire to Bu settle this claim as discussed” against Amjadi. Id. Albert confirmed that he understood the n ily conversation. Id. at p. 3. ar M However, despite agreeing to fully release and settle his bodily injury claims against of Amjadi for a specified sum, Albert filed an amended petition in this cause on March 8, 2019 joining e ffic Amjadi as a co-defendant and seeking damages against him. See Exhibit “B” (Plaintiff’s First O Amended Petition). In response, Amjadi filed his Original Answer with this Court contending y op Albert’s claims against him were barred by—among other affirmative defenses—settlement, C payment, or release. See Exhibit “C” (Amjadi’s Original Answer). On March 18, 2020, Amjadi ial fic filed a counterclaim against Albert alleging breach of the oral settlement agreement and seeking of specific performance, dismissal of the claims against him, and his reasonable and necessary Un attorney’s fees under Chapter 38 of the Texas Civil Practices and Remedies Code. See Exhibit “D” (Defendant’s Original Counterclaim). -2- The oral settlement contract between Albert and Amjadi’s insurer, GEICO, entered into by the insurer on behalf of Amjadi, is a valid and enforceable contract. The essential elements of a contract are met, and the oral settlement contract is not barred by the Statute of Frauds. Accordingly, Albert’s claims against Amjadi were brought in violation of the oral settlement k ler contract entered into between the parties. Amjadi is entitled to summary judgment here; tC specifically, Amjadi is entitled to summary judgment on his affirmative defense of settlement and ric release, as well as summary judgment on his counterclaim asserting Albert breached the oral ist sD settlement contract. Therefore, Amjadi respectfully requests that the Court: (1) grant summary es judgment in favor of Amjadi as to his affirmative defense of settlement and release; (2) enter rg judgment in favor of Amjadi dismissing Plaintiffs’ claims against him with prejudice; (3) grant Bu summary judgment in favor of Amjadi on his breach of contract counterclaim; (4) enter judgment n ily ordering specific performance on Counter-Defendant Albert’s part; and (5) upon final hearing, ar M award Amjadi his reasonable and necessary attorney’s fees. of II. e SUMMARY JUDGMENT STANDARD OF REVIEW ffic Under Rule 166a(c) of the Texas Rules of Civil Procedure, summary judgment is appropriate yO where there is no genuine issue as to a material fact and the moving party is entitled to judgment op C as a matter of law. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. ial 1995). A defendant “who conclusively negates at least one of the essential elements of a cause of fic action is entitled to summary judgment as to that cause of action.” Id. Further, a defendant is of Un entitled to summary judgment when it “establishes each element of an affirmative defense.” Id. An issue is conclusively established or negated “if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.” Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017). -3- III. SUMMARY JUDGMENT EVIDENCE Amjadi relies on the following summary judgment evidence in support of this Motion: Exhibit A: Recorded Statement of Plaintiff Albert Yancey k Exhibit B: Plaintiff’s First Amended Petition ler Exhibit C: Defendant’s Original Answer tC ric Exhibit D: Defendant’s Original Counterclaim ist Exhibit E: Deposition Transcript of Plaintiff Albert Yancey sD Exhibit F: Chapter 38 Presentment Letter es Exhibit G: Affidavit in Support of Attorney’s Fees rg IV. Bu RELEVANT FACTS n ily As stated above, Albert was involved in an automobile collision with Amjadi on July 5, ar M 2017. Exhibit “E” at p. 28, ln. 19-22 (Deposition of Albert); see also Exhibit “A” (Recorded of Statement of Albert Yancey). Albert was examined by EMS at the scene and taken to a hospital e ffic for injuries he allegedly sustained in the collision. Id. at p. 30, ln. 18-22. Albert was offered O medication and discharged from the hospital’s emergency room without being admitted. Id. at p. y op 32, ln. 18-22; p. 33, ln. 13-18. C On July 2, 2018, Albert spoke to GEICO representative Patti Tall (“Tall”) regarding his ial fic claim related to the Incident. Id. at p. 41, ln. 14—p. 42., ln. 15; p. 47, ln. 15—p. 52, ln. 9; see also of Exhibit “A” at p. 1 (Recorded Statement of Albert Yancey). During that conversation, Tall Un offered, as a representative of Amjadi, to settle Albert’s claims regarding bodily injury on behalf of Amjadi for a total of $2,765.31, of which $550.00 would go directly to Albert and the remainder to medical providers for date of loss treatment. Id. at p. 51, ln. 2—p. 52, ln. 9; see also Exhibit -4- “A” at p. 1-2. Albert’s testimony confirmed he agreed to settle his claim, release Amjadi and GEICO from further liability, and agreed to indemnify and hold Amjadi and GEICO harmless from any and all claims resulting from the Incident. Id. at p. 50, ln. 13—p. 52, ln. 9; see also Exhibit “A” at p. 2. When asked by Tall if he had understood all of her questions, Albert confirmed k ler that he had. Exhibit “A” at p. 3. The recorded conversation that took place on July 2, 2018 between tC Albert and Tall, attached as Exhibit “A”, is incorporated herein as if set forth in its entirety. ric IV. ist ARGUMENT AND AUTHORITY sD Under Texas law, the affirmative defense of settlement and release is governed by contract es law. Fritz v. McDowell, No. 02-16-00373, CV, 2017 WL 3821889, at *5 (Tex. App.—Fort Worth rg Aug. 31, 2017, pet. denied) (mem. op.) (citing Bu Williams v. Glash, 789 S.W.2d 261, 264 (Tex. n 1990)). Settlement agreements are enforceable contracts if they include all the terms necessary ily ar for the contract’s enforcement as a matter of law. McCalla v. Baker’s Campground, Inc., 416 M S.W.3d 416, 418 (Tex. 2013) (per curiam). The settlement agreement at issue in McCalla of e contained a general release, a description of the contract subject at issue, the timeline for ffic completing the transaction, the identities of the parties, and the price; there was no indication that yO the terms remained open for negotiation. Id. The Court stated “[i]f a court was trying to enforce op C the settlement agreement, it could find all the terms necessary for its enforcement,” thus rendering ial the settlement agreement “an enforceable contract as a matter of law.” Id. Moreover, fic “[a]greements to enter into future contracts are enforceable if they contain all material terms.” Id. of Un A party seeking to enforce a settlement agreement “must pursue a separate claim for breach of contract.” In re Vaishangi, Inc., 442 S.W.3d 256, 260 (Tex. 2014). Amjadi has filed his counterclaim for breach of contract in accordance with Texas law. See Exhibit “D” (Defendant’s Original Counterclaim). -5- A. The Essential Elements of a Contract Apply to Oral Contracts Whether an agreement is an enforceable contract is a question of law. Fiduciary Fin. Servs. of Sw. Inc. v. Corilant Fin., LP, 376 S.W.3d 253, 256 (Tex. App.—Dallas 2012, pet. denied); Meru k ler v. Huerta, 136 S.W.3d 383, 390 (Tex. App.—Corpus Christi 2004, no pet.). The elements of tC written and oral contacts are the same and must be present for a contract to be binding. Tyco ric Valves & Controls, L.P. v. Colorado, 365 S.W.3d 750, 771 (Tex. App.—Houston [1st Dist.] 2012), ist sD aff’d, 432 S.W.3d 885 (Tex. 2014) (citing Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 es (Tex. App.—Houston [1st Dist.] 2002, no pet.)). Thus, to be valid, an oral contract must consist rg of “(1) an offer; (2) acceptance; (3) meeting of the minds; (4) each party’s consent to the terms; Bu and (5) execution and delivery of the contract with the intent that it be mutual and binding.” Id. n ily (citing Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st ar M Dist.] 2002, pet. denied) (although oral contracts obviously cannot include physical “delivery and of execution,” they are still binding and enforceable if other elements are met). e ffic To be enforceable, a contract must define its essential terms with sufficient detail to allow O a court to determine the obligations of the parties. Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 y op (Tex. 2016) (referencing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. C 1992)). Parties may agree on some terms sufficient to create a contract, leaving other provisions ial fic for later negotiation. Fiduciary Fin., 376 S.W.3d at 256 (citing Scott v. Ingle Bros. Pac., Inc., 489 of S.W.2d 554, 555 (Tex. 1972)). As with any other contract, to create an oral contract, the parties Un must have a “meeting of the minds” and must communicate consent to the terms of the agreement. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008); Crisp Analytical Lab, LLC v. Jakalam Props., Ltd., 422 S.W.3d 85, 89 (Tex. App.—Dallas 2014, pet. denied). -6- A meeting of the minds is a mutual understanding and assent to the expression of the parties’ agreement. Potcinske v. McDonald Property Investments, Ltd., 245 S.W.3d 526, 530 (Tex. App.—Houston [1st Dist.] 2007, no pet.). To determine if there was an agreement or meeting of the minds, courts use an objective standard, considering what the parties did rather than “the k ler subjective beliefs of the parties.” Davis v. Tex. Farm Bureau Ins., 470 S.W.3d 97, 106 (Tex. tC App.—Houston [1st Dist.] 2015, pet. dism’d); Bright v. Addison, 171. S.W.3d 588, 596 (Tex. ric App.—Dallas 2005, pet. dism’d) (fact finder uses an objective standard of examining what the ist sD parties said and did rather than look at their subjective states of mind). In considering “whether es there was an offer and acceptance using an objective standard, courts consider the parties’ rg communications and actions pertaining to the formation of the contract.” Id.; see also Komet v. Bu Gravese, 40 S.W.3d 596, 601 (Tex. App.—San Antonio 2001, no pet.). n ily B. Oral Contracts are Valid and Enforceable ar M Oral contracts are valid and enforceable under Texas law. See, e.g., Crisp, 422 S.W.3d at of 89 (enforcing oral contract); Parker v. HTR, Inc., 2012 WL 5964396 (Tex. App.—Houston [14th e ffic Dist.] Nov. 29, 2012, no pet.) (evidence established an enforceable oral contract); Pennington v. O Gurkoff, 899 S.W.2d 767, 770 (Tex. App.—Fort Worth 1995, writ denied) (personal services oral y op contract was enforceable). Chapter 38 of the Civil Practice and Remedies Code further clarifies C that “[a] person may recover reasonable attorney’s fees from an individual or corporation . . . if ial fic the claim is for: . . . an oral or written contract.” TEX. CIV. PRAC. & REM. CODE § 38.001(8). of Likewise, pre-suit oral settlement agreements are enforceable under Texas law. The Texas Un Supreme Court addressed the validity of a pre-suit settlement agreement in Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997) (per curiam). In that case, an attorney representing an injured claimant allegedly settled the claim for $60,000 by orally agreeing to the opposing party’s acceptance of -7- the offer and agreeing to extend the deadline for submitting the checks and releases. Id. at 271. However, by letter, the attorney subsequently stated the deadline had passed and filed suit. Id. The defendant filed a motion to enforce the settlement agreement. Id. Ultimately, the Court found the attorney’s unsworn testimony was valid evidence of an oral agreement between the parties. Id. k ler at 271-272. “Accordingly, the court of appeals should have affirmed the trial court’s judgment tC enforcing the [pre-suit settlement] agreement.” Id. at 272. ric In Harris v. Balderas, 27 S.W.3d 71 (Tex. App.—San Antonio 2000, pet. denied), as in ist sD this case, the parties reached a pre-suit oral settlement agreement. Id. at 73. Despite the agreement, es the claimants filed a personal injury lawsuit. Id. The defendant then filed a counterclaim, just as rg in this case, contending that the claimants had agreed to release her from liability in exchange for Bu $20,000. Id. The facts showed that the defendant’s insurer’s (USAA) representative had called the n ily claimants’ attorney’s office and spoken with a paralegal. Id. at 75. The claims representative ar M advised that USAA was tendering its $20,000 limits as to one claimant on behalf of the insured of and the paralegal made a memo of the conversation which states, “they were going to pay policy e ffic limits [to one claimant].” Id. at 72-73. The claimants’ attorney called and requested the settlement O papers and check. Id. at 75. Another memo from the paralegal established that a conversation was y op held the same day about delivery of the policy limits. Id. A letter confirming settlement and C enclosing the check and release were sent to the claimants’ attorney. Id. The claimants’ attorney ial fic returned the check since it included additional claimants and filed suit. Id. of The appellate court noted that “[t]he terms of the settlement agreement will govern the Un outcome of the suit; the validity of the personal injury judgment will be irrelevant to the outcome.” Id. at 74 (emphasis added). The court further stated that “[t]he existence of an oral contract may be proved by circumstantial as well as direct evidence.” Id. at 77. The court will “look to the -8- communications between the parties and to the acts and circumstances surrounding those communications.” Id. The court noted the elements of a contract: offer, acceptance, a meeting of the minds, and the terms expressed with sufficient certainty so that there will be no doubt as to what the parties intended (the court did not address the “delivery” requirement, as the contract at k ler issue was an oral contract). Id. at 77. Ultimately, the court remanded the case due to a fact issue tC as to the existence of a contract, as the paralegal may not have had authority such that her ric agreement could bind the claimants. Id. at 77-8. ist sD However, no such fact issue exists in this case. The parties who negotiated the oral contract es were Albert himself and the GEICO representative, Tall, acting on behalf of Amjadi. See generally rg Texas Farmers Ins. Co. v. Soriano, 881 S.W.2d 312 (Tex. 1994) (insurer may settle with claimant Bu on behalf of insured); TEX. R. CIV. P. 192.5 (insurer may be a party’s representative). Unlike n ily Harris, in this case, there was no intermediary or other party required to approve the settlement ar M agreement. All of the elements necessary to establish a valid and enforceable oral contract are met of here. e ffic C. There Was a Meeting of the Minds, an Offer, Acceptance, and Consent to the Terms of the Settlement Agreement yO As in Harris, Albert entered into an oral settlement agreement with Amjadi’s insurer. An op C offer, acceptance, and meeting of the minds took place. Each party consented to the terms. ial Albert’s recorded statement and his testimony establish the following: (1) GEICO, on behalf of fic of Amjadi, offered to pay Alberts’s reasonable and necessary medical expenses incurred on the date Un of loss, July 5, 2017, valued at $2,215.31 directly to the medical providers and offered to pay $550.00 directly to Albert; (2) in exchange, Albert agreed to give up any further claims or lawsuits arising out of the July 5, 2017 incident against Amjadi and GEICO; and (3) Albert acknowledged he understood these terms and agreed to them, providing GEICO’s representative with an address -9- to mail his direct payment to him. Thus, the objective evidence and the actions and communications of the parties here show there was a meeting of the minds, an offer, and acceptance. Each party agreed to the terms of the settlement, identified the quantifiable consideration offered by each side, and confirmed their understanding as to its terms. k ler In this matter, all the essential terms to an enforceable oral contract have been established: tC (1) the parties to the contract are identifiable; (2) the amount of the contract is identifiable, i.e. the ric consideration was clearly stated; (3) the subject matter is identifiable; and (4) there is no indication ist sD that the terms of the contract remained open for negotiation. See McCalla, 416 S.W.3d at 418 es (settlement agreement was valid when it contained the identity of the parties, a description of the rg subject matter of the agreement, and the price, and no terms remained open for negotiation). Bu Further, the transcript attached as Exhibit “A” operates as a memorandum of the oral agreement. n ily See Tindall v. Bishop, Peterson & Sharp, PC, 961 S.W.2d 248 (Tex. App.—Houston [1st Dist. ar M 1997, no writ). The oral settlement agreement between Albert and Amjadi’s insurer GEICO is of thus a valid and enforceable contract. e ffic D. The Pre-Suit Oral Settlement Agreement Clearly Identifies the Released Parties. O Furthermore, a settlement release discharges “only those persons or entities that it names y op or specifically identifies.” Fritz, No. 02-16-00373, CV, 2017 WL 3821889, at *5 (citing McMillen C v. Klingensmith, 467 S.W.2d 193, 196 (Tex. 1971)). A party may claim the protection of a release ial fic “only if the release refers to him or her by name or with such descriptive particularity that his or of her identity or connection with the event is not in doubt.” Fritz, No. 02-16-00373, CV, 2017 WL Un 3821889, at *5 (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (Tex. 1984)). The test in determining whether a party is released is whether “a stranger could readily identify the released party.” Id. -10- Here, the recorded statement attached as Exhibit “A” clearly identifies Amjadi and his insurer GEICO as released parties. Albert’s deposition testimony outlined above provides further evidence as to the identities of the parties. Because a stranger could identify from this objective evidence that Albert intended for Amjadi and GEICO to be the released parties under the k ler settlement agreement, Amjadi is entitled—as a matter of law—to claim the protection of the pre- tC suit oral settlement release. Accordingly, Amjadi is entitled to summary judgment on his ric affirmative defense of settlement and release. See Fritz, No. 02-16-00373, CV, 2017 WL 3821889, ist sD at *5 (affirming trial court’s grant of summary judgment in favor of released parties under the es affirmative defense of settlement and release); see also Gilbert v. Fitz, No. 05-16-00218-CV, 2016 rg WL 7384167, at *7 (Tex. App.—Dallas Dec. 21, 2016, no pet.) (affirming summary judgment for Bu the defendant where the plaintiff filed suit after entering into oral settlement agreement with the n ily defendant’s insurer). And because Albert is in breach of that contract, he is also entitled to ar M summary judgment on his counterclaim. of E. The Statute of Frauds Does Not Apply e ffic The Statute of Frauds does not apply in this matter. The Statute of Frauds is applicable only O