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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
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I recently settled a lawsuit for conversion of property in

Customer Question

I recently settled a lawsuit for conversion of property in texas . to avoid a trial, the def and I signed a settlement agreement that she would pay me damages for 10 mos. she hasn't paid for three and the atty is ignoring me. since the agreement has been breached I want to reopen the case and set it for trial again, obviously, a nonsuit at this time is unacceptable. im not sure what the procedural steps are that I need to take to do that. do I file a motion to let the ct know the agreement was breached (what would it be called?) wait for a ruling and set it back on the docket? this is really a texas procedural question. I would appreciate any cites to texas rules of civil procedure or other helpful sources.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  LegalGems replied 1 year ago.

LegalGems :

Hi! LegalGems here. My goal: To Do My Best To Assist You. Please remember, I can only provide general information,as this is a public forum. There is nothing more frustrating than a breached settlement agreement. Generally, a settlement agreement is signed, and then the case is dismissed with prejudice. This means that the plaintiff can then refile the case if the agreement is breached. Let me get you some authority on that; I have a few things downloading. One moment please.

LegalGems :

Please see Texas rule of court 301: http://www.supreme.courts.state.tx.us/rules/TRCP/RCP_all.pdf . Also the following case law for authority that breach of settlement agreements constitute a breach of contract. (Texas 1995); Ford Motor Co. v. Castillo 200 SW3d 217 (Texas 2009, 13th Dist.).

LegalGems :

It appears as if you are offline; if you have any questions on the above, please post them here and I will reply as soon as I see it. If you have been satisfied with the research I provided for you, please don't forget to rate my answer a 3 (good) or better, as that is how we receive compensation from the website. But any further questions - post here! Thanks, XXXXX XXXXX

Customer :

im sorry, im not clear what you are saying. if the case is dismissed with prejudice, idoesnt that mean the plaintiff CANT refile.? also what about the statue of limitations? I don't want to have to refile, I need specific procedural information about how to reopen the case and put it on the court's docket for trial. since I wont agree for the defendant's attorney to file a nonsuit . ineed to know SPECIFICALLY how to bring the courts attention to the breach of agreement (if that's required) or do I just go forward with some kind of motion to set the case back on the docket? as far as I know the court would still have jurisdiction, right? I am an attorney but do federal work and know nothing about texas civil procedure. I would like to have a step by step plan with authorities if its your opinion that I could just reopen the case. thanks, XXXXX XXXXX

Customer :

I am aware that a breach of a settlement agreement is a breach of contract that doesn't address my procedural question,

LegalGems :

No; it is generally dismissed without prejudice whenever there is a settlement agreement. That means the plaintiff can file. It is generally only dismissed with prejudice if there is a substantive reason as to why the case can't be refiled. The statute of limitations would run from the breach of the settlement agreement; you mentioned it is three months in, so the statute of limitations would not be an issue. You would need to file a new case based on the breach of the settlement agreement. The complaint would detail the facts of the case i.e. the fact that the original lawsuit was for conversion, a settlement was reached, etc, it was subsequently breached, resulting in the new lawsuit for breach of contract. For example, this university has this sample breach of contract complaint http://ocw.kaplan.edu/legal/civil-litigation-i/course/documents/3complaint-breachofcontract.pdf. I apologize if I was unclear before; but the breach would result in a new filing, based on the most recent events i.e. the breach of the settlement agreement. If, for some reason, the judge reserved jurisdiction (the settlement agreement would generally indicate this, or an order incorporating the settlement agreement would indicate this), then you could bring a motion to enforce the settlement agreement. The Ford case is an example of this. http://www.supreme.courts.state.tx.us/historical/2009/apr/060875.htm.

LegalGems :

The motion would need to be drafted as there is no pro forma document for this. However, generally the court does not reserve jurisdiction, simply because it clogs the court and they prefer to dismiss without prejudice.

LegalGems :

And I apologize for the more basic explanation - I was not aware that you were an attorney until your reply! Normally in chat we start off with basics, and go from there based on the customer's response.

LegalGems :

This would be a good case to review regarding breach of settlement agreements (i.e. note the added charge for fraud in the inducement relating to the settlement agreement) http://faculty-rights-coalition.com/breach-of-settlement-agreement-Kalyanaram-v-UT-Dallas-Tex-App-Dallas-2007.html

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