Jeremie Gordon and Amber Arnold-Gordon v. James B. Nickerson and Julia A. Nickerson, Trustees of the Nickerson Revocable Living Trust
03-16-00071-CV
| Tex. App. | Apr 27, 2017Background
- Gordons owned a parcel containing a water well; adjacent Nickersons historically used that well under a 1995 Well Use Easement.
- After Gordons purchased the parcel in 2015, they attempted to cut off the Nickersons’ access and demanded payment, prompting suit by the Nickersons for breach and injunctive relief; Gordons counterclaimed.
- Parties mediated and executed a written mediated settlement agreement (MSA): Gordons to convey a portion of their land (the conveyance property) containing the well to the Nickersons for $32,500, the Nickersons to survey prior to closing, parties to vacate/rewrite the easement, and arbitration for disputes; MSA stated Nickersons’ use would be exclusive and uninterrupted.
- Disputes arose over replatting/qualification for services and survey/access; an arbitrator enforced the MSA, required the Nickersons to accept the tract with limited expectations for governmental services, and awarded $3,000 in fees offset against the purchase price.
- Gordons then obstructed access, removed trees, and posted fences; Nickersons sought confirmation of the arbitration award, injunctive relief, and a temporary injunction was entered enjoining Gordons from interfering with the well or disturbing the conveyance property.
- After a bench trial the district court confirmed the MSA and arbitration awards, ordered conveyance for a net price of $29,500 less $8,571 for tree replacement and half closing costs, required access and a special warranty deed, awarded $9,563.48 attorneys’ fees to Nickersons, and entered a permanent injunction. Gordons appealed.
Issues
| Issue | Plaintiff's Argument (Gordons) | Defendant's Argument (Nickersons) | Held |
|---|---|---|---|
| 1. Enforceability — Illegality: MSA void because sale required replatting under law/ordinance | MSA is illegal because property could not be sold without replatting; renders agreement void | Illegality not pleaded as an affirmative defense at trial; cannot raise on appeal | Court: Affirmed — Gordons waived illegality defense by failing to plead it pretrial |
| 2. Modification of arbitration award — court altered award and added terms (price, fees) | Trial court improperly modified arbitration award by changing sale price and awarding additional attorney fees | Trial court had basis to enter damages (tree replacement) and confirm awards; attorney fees beyond arbitrator’s award were justified | Court: Affirmed in part, reversed in part — damages for tree loss upheld (not modification); award of additional $9,563.48 attorneys’ fees reversed as improper modification/duplication |
| 3. Segregation of attorney fees | Fees were not properly segregated between claims | Trial court’s fees were based on confirming the arbitration and injunctive relief | Court: Did not reach segregation issue because fee award itself was vacated; modification required striking the fee paragraph |
| 4. Injunctions — Temporary injunction compliance with Rule 683 and permanent injunction scope | Temporary injunction defective under Rule 683; permanent injunction improperly restrains Gordons’ rights | Temporary injunction expired with final judgment (moot); parties agreed to permanent injunction wording | Court: Temporary injunction issue moot; permanent injunction valid because Gordons consented — affirmed |
Key Cases Cited
- MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132 (Tex. 2014) (failure to plead affirmative defense of illegality precludes raising it on appeal)
- Ford Motor Co. v. Castillo, 279 S.W.3d 656 (Tex. 2009) (written settlement agreements enforceable as contracts)
- Crossmark, Inc. v. Hazar, 124 S.W.3d 422 (Tex. App.—Dallas 2004) (discusses limits on courts adding fees or altering arbitration awards)
- Stage Stores, Inc. v. Gunnerson, 477 S.W.3d 848 (Tex. App.—Houston [1st Dist.] 2015) (party’s baseless challenge to arbitration award can justify fee awards in some circumstances)
- Brines v. McIlhaney, 596 S.W.2d 519 (Tex. 1980) (temporary injunction operates only until final hearing or dissolution)
- Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83 (Tex. 1999) (issues about an inoperative temporary injunction are moot and not reviewable)