Sutton Levetz, Brenda Gail v. Sutton, Thomas Michael, 2013 Tex. App. LEXIS 6803

Brothers Brenda Levetz and Thomas Sutton dispute estate matters arising from their father’s will and a corollary will contest in Bowie County.
The dispute began with Sutton’s breach of fiduciary duty/related claims and Levetz filed to transfer venue for convenience to Bowie County.
Mediation produced a mediated settlement agreement (MSA) approved to form part of the record.
Levetz later claimed lack of capacity to enter the MSA due to fibromyalgia and medications; Sutton sought enforcement of the MSA.
The trial court held Levetz had capacity, denied setting aside the MSA, and granted Sutton’s enforcement motion, then severed and transferred the breach of contract claim to Bowie County.
On appeal, Levetz challenged the severance/transfer and the enforcement award; the court sustained the challenge to severance and reversed the judgment on enforcement, remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether severance was proper	Levetz argues severance separated intertwined issues.	Sutton argues severance avoided prejudice and aided efficiency.	Severance was improper; the contract claim and capacity issue are interwoven.
Whether the MSA was properly enforceable	Levetz asserts insufficient evidence of breach and improper on-record relief.	Sutton contends the MSA can be enforced and the court can grant declaratory relief.	Enforcement failed; breach and specific performance not proven; remand appropriate.
Whether the trial court erred in admitting/excluding testimony on capacity	Levetz objects to expert testimony timing and to exclusion of her testimony.	Sutton defends the evidentiary rulings as proper under procedures.	Court erred in evidentiary rulings; capacity evidence insufficiently supported.
Whether Levetz’s testimony and expert were properly admitted/excluded	Levetz argues improper exclusion of her testimony and expert.	Sutton asserts timely disclosure and admissibility standards were met or not prejudicial.	Exclusion of contested testimony reflected error; remand for proper proceedings.
Whether the judgment properly addressed breach of contract and declaratory relief	Levetz contends the final judgment exceeded the scope of the capacity determination.	Sutton asserts the judgment furthers enforcement of the MSA.	Judgment improper; remedy limited to contract formation issues; remand for merits or transfer determination.

Cadle Co. v. Castle, 913 S.W.2d 627 (Tex. App.—Dallas 1995) (ADR settlement enforcement not via special summary procedure)
Cadle Co. v. Castle, 913 S.W.2d 627 (Tex. App.—Dallas 1995) (enforcement of mediated agreements requires contract-like action if consent withdrawn)
Gunter v. Empire Pipeline Corp., 310 S.W.3d 19 (Tex. App.—Dallas 2009) (no special ADR procedure; mediation cannot create a summary enforcement)
Ford Motor Co. v. Castillo, 279 S.W.3d 656 (Tex. 2009) (breach of contract claims follow standard pleading/proof requirements)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal and factual sufficiency review in nonjury trials)
Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455 (Tex. App.—Dallas 2006) (formation elements of contract; capacity as defense to formation)
Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2007) (elements of breach of contract and proof burden)
Mantas v. Fifth Court of Appeals, 925 S.W.2d 656 (Tex. 1996) (no summary enforcement of mediated settlement; enforce as contract)