Yvette C. Branch v. Matthew Bergin and Katherine Bergin

Affirmed in part, Reversed in part, Rendered in part, and Remanded and
Opinion Filed November 7, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01259-CV

YVETTE BRANCH, Appellant
V.
MATTHEW BERGIN AND KATHERINE BERGIN, Appellees

On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-07239

MEMORANDUM OPINION
Before Justices Goldstein, Garcia, and Miskel
Opinion by Justice Miskel
This case arises from an approximately seven-year dispute over the sale of

real property. Yvette Branch appeals the trial court’s final judgment in favor of

Matthew Bergin and Katherine Bergin on their claim for breach of a Mediated

Settlement Agreement (MSA) and order of a take-nothing judgment on Branch’s

competing breach-of-MSA counterclaim relating to the sale of real property.

Branch raises the following four issues on appeal, which she argues in the

alternative: (1) the trial court erred when it rendered judgment against Branch on the

Bergins’ breach-of-MSA claim because the MSA terminated by its own terms; (2) if
this Court upholds the finding that Branch breached the MSA, then the trial court

erred when it decided against Branch on her affirmative defense of failure of

consideration; (3) if this Court also upholds the rejection of Branch’s affirmative

defense, then the trial court erred when it granted the Bergins’ request for specific

performance; and (4) if this Court concludes that the trial court erred when it failed

to award Branch a take-nothing judgment on the Bergins’ breach-of-contract claims,

then the trial court also erred when it failed to award Branch attorney’s fees.

We conclude the evidence is legally insufficient to support the trial court’s

judgment in favor of the Bergins on their breach-of-MSA claim on which the specific

performance decree is based. We reverse the final judgment in part as to the Bergins’

breach-of-MSA claim and the award of specific performance and render judgment

that the Bergins take nothing as to their breach-of-MSA claim. We also reverse the

portion of the trial court’s final judgment as to the award of attorney’s fees. In all

other respects, we affirm the trial court’s final judgment. We remand the case to the

trial court to render a new judgment in favor of the Bergins for $14,339.29 plus pre-

and post-judgment interest and to determine an appropriate award of attorney’s

fees—trial and appellate—based on the part of the judgment that we affirm.

I. Factual and Procedural Background
The evidence introduced at trial supported the following facts. Branch placed

her house for sale because she had accepted a new position and was relocating to

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Georgia. The Bergins made an offer on the house, and the parties eventually agreed

to a purchase price of $248,000.

In May 12, 2017, the parties signed a residential sale contract (initial contract)

for the sale of the property and Branch moved out of the house. The initial contract

provided in part:

7. PROPERTY CONDITION:
A. PROPERTY CONDITION: . . . . Seller at Seller’s expense
shall immediately cause existing utilities to be turned on and
shall keep the utilities on during the time this contract is in
effect.

....
D. ACCEPTANCE OF PROPERTY CONDITION: “As Is”
means the present condition of the Property with any and all
defects and without warranty except for the warranties of title
and the warranties in this contract. Buyer’s agreement to accept
the Property As Is under Paragraph 7D(1) or (2) does not
preclude Buyer from inspecting the Property under Paragraph
7A, from negotiating repairs or treatments in a subsequent
amendment, or from terminating this contract during the
Option Period, if any.
....

(1) Buyer accepts the Property As Is.

....
E. LENDER REQUIRED REPAIRS AND TREATMENTS:
Unless otherwise agreed in writing, neither party is obligated to
pay for lender required repairs, which includes treatment for
wood destroying insects. If the parties do not agree to pay for
the lender required repairs or treatments, this contract will
terminate and the earnest money will be refunded to Buyer. If
the cost of lender required repairs and treatments exceeds 5%

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of the Sales Price, Buyer may terminate this contract and the
earnest money will be refunded to Buyer.

The initial contract also provided that “a Buyer [or] Seller . . . who prevails in any

legal proceeding related to this contract is entitled to recover reasonable attorney’s

fees and all costs of such proceeding.” The parties also signed a third-party-

financing addendum to the initial contract that provided in part that time was of the

essence. The closing was scheduled for June 29, 2017, but the parties later executed

an amendment to the initial contract changing the closing date to June 15, 2017.

In May 2017, the house was inspected and no bacterial growth or water

damage was found. However, prior to the scheduled closing, Branch’s current boss

shared some concerns about the viability of the Georgia company she was going to

work for. As a result, on May 25, 2017, Branch decided not to relocate or sell her

property.

On June 15, 2017, the closing did not occur. But on that same date, the

Bergins had the utilities for the property put in their name. When the closing did not

occur, Katherine Bergin requested that the utilities be transferred back to Branch that

same day but nevertheless received and paid some of the utility bills for the property

through approximately September 2017. She contended that the water company

stated the Bergins’ name would remain on the account until someone else put it in

their name and that Branch did not take that required action.

On June 16, 2017, the Bergins sued Branch alleging claims for breach of the

initial contract, fraud involving a real-estate contract, common-law fraud and
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misrepresentation, and they sought a temporary injunction, specific performance,

damages, exemplary damages, and attorney’s fees. Branch answered the lawsuit

generally denying the allegations and asserted a counterclaim for attorney’s fees

under the initial contract.

During the pendency of the suit and before the scheduled hearing on the

Bergins’ request for a temporary injunction, the parties executed a Rule 11

Agreement on September 11, 2017. The parties’ agreement is summarized as

follows:

 The title company will retain the earnest money in escrow
without liability.

 Branch will refrain from doing the following until the trial court
signs a subsequent order: (1) moving back into, leasing,
assigning, transferring, encumbering, renting, altering, allowing
third parties to occupy the property; (2) failing to keep the
utilities turned on; (3) failing to keep the mortgage and insurance
payments current; (4) failing to maintain the lawn and
landscaping; (5) instituting any liens; and (6) continuing to show
or list the property for sale.
In accordance with the terms of the initial contract, the parties agreed to

mediate their dispute. On December 27, 2017, the parties executed the MSA1 that

settled and released their claims and counterclaims. The following is a summary of

the parties’ MSA:

1
The MSA was a handwritten settlement agreement titled “Mediated Rule 11 Agreement” that states
it was “made and entered into at mediation on December 27, 2017 by and between the party signatories.”
It was signed by the Bergins and Branch as well as their counsel who signed as to form. Further, in their
first amended petition, the Bergins identified this agreement as an MSA and attached it to their pleading.
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 The parties agreed to reduce the $248,000 purchase price by
$22,500; the purchase price was changed to $225,500.

 The parties agreed that $35,000 of the purchase price would be
held in escrow by the title company to compensate for any
damages or changes in condition to the property and landscaping
that occurred after the first inspection with a $10,000 cap of the
escrow funds to be used toward any landscaping issues. They
also agreed the title company would prepare the escrow
agreement.

 The parties agreed to release one another as to any and all claims
except as to the escrow funds.

 The parties incorporated the terms of the initial contract that was
the subject of their dispute subject to the modifications
contained in the MSA.

 A new closing date was set for January 29, 2018.

 Branch agreed to immediately turn on the property’s utilities at
her expense.

 Branch agreed to deliver a key to the Bergins’ counsel to
facilitate entry onto the property by the Bergins’ inspectors and
appraisers.

 The parties agreed that each would bear their own fees and
expenses.

 In an exhibit incorporated by and attached to the MSA, the
parties also agreed to the following: (1) contractors will provide
estimates for the costs of fixing any damages to the house and
landscaping pointed out by inspectors and will be told in
advance they will not be given the work; (2) all of the
estimator’s expenses for inspections and reports will be
reimbursable from the escrow funds; (3) the Bergins will use
their best efforts to submit all estimates to Branch and the title
company 120 days before closing; (4) all unresolved disputes
over the escrow sum will be first submitted to mediation;
(5) instructions for the release of funds must be in writing and
agreed to by both parties’ attorneys; and (6) any costs relating to

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the title company’s creating an escrow agreement will be borne
equally by both parties.

The parties did not file the MSA with the trial court and obtain an order or judgment

disposing of the case. Instead, they agreed that, after closing, they would file an

agreed order of dismissal with prejudice. On December 29, 2017, two days after the

MSA was executed, Branch advised her attorney that all utilities should have been

turned on. However, only the electricity and water were on at that point; the gas was

turned on around January 8, 2018.

Before the new January 29, 2018, closing date, the Bergins’ inspectors

discovered mold damage to the house. As a result, the Bergins’ mortgage lender

refused to fund the loan before the mold damage was repaired. Neither Branch nor

the Bergins were willing to pay for the lender-required repairs before closing. As a

result, the Bergins were unable to secure financing for the purchase of the property

and the January 29, 2018, closing did not occur.

On January 30, 2018, the Bergins filed their first amended petition that

acknowledged the parties had executed the MSA and asserted claims for breach of

contract, fraud involving a real-estate contract, and common-law fraud and

misrepresentation. With respect to their breach-of-contract claims, the Bergins

alleged that Branch had: (1) breached the initial contract by failing to keep the

utilities turned on and close on the sale; (2) breached the September 11, 2017,

Rule 11 agreement by failing to keep the utilities turned on; and (3) breached the

MSA by failing to comply with the prior Rule 11 agreement, which created the
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conditions that allowed for the mold growth and by refusing to perform the mold

remediation before the January 29, 2018, closing date. The Bergins also requested

a temporary injunction preventing Branch from reoccupying the property and sought

specific performance, monetary damages, statutory damages under Chapter 27 of the

Texas Business and Commerce Code, exemplary damages under § 41.003(a) of the

Texas Civil Practice and Remedies Code and Chapter 27 of the Texas Business and

Commerce Code to punish Branch for “unconscionable overreaching,” and

attorney’s fees.

In her fourth amended answer, which she filed pro se, Branch generally denied

the allegations and asserted the following affirmative defenses among others: failure

of consideration, “unclean hands,” no reasonable reliance, modification of the initial

contract, waiver of the right to pursue claims based on the initial contract, and failure

to mitigate damages. Also, in her fourth amended counterclaims, Branch alleged

counterclaims for trespass to real property, negligence, and breach of the MSA. She

sought monetary damages and attorney’s fees.

In May 2018, Branch paid for the mold remediation to the house. Also, she

reoccupied the property in December 2018 or January 2019. Later, on

September 19, 2019, the trial court granted a partial summary judgment that the

Bergins take nothing on their claims for common-law fraud, fraud in a real-estate

transaction, and fraudulent misrepresentation.

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In March 2021, the case was tried before the court and Branch appeared pro

se. After the conclusion of the trial, Branch was again represented by counsel. On

September 28, 2021, the trial judge signed an interim judgment that found the

Bergins were the equitable owners in title to the real property and that Branch was

not lawfully occupying the property. The trial court ordered, among other things:

 the closing to occur within seventy-five days of the interim
judgment with a purchase price of $225,000;

 the partition of the sale proceeds and distribution of those
proceeds among the persons entitled to recover expenses and
commissions;

 that the Bergins may follow the common law steps of eviction to
take possession of the property prior to closing;

 that the costs of any eviction proceeding are recoverable
expenses of the sale;

 that Branch shall not allow the property to be placed in
foreclosure, shall not transfer, encumber, assign, or burden the
property with additional liens, shall maintain an insurance policy
on the property, shall not alter the property other than maintain
the lawn and landscaping;

 that the Bergins recover from Branch actual damages upon
adequate submission and proof, attorney’s fees, court costs, and
post-judgment interest; and

 that Branch take nothing on her counterclaims.

On October 28, 2021, Branch filed a motion for new trial arguing in part that

the trial court’s interim judgment erroneously conveyed title to the house to the

Bergins and allowed them to evict her from the property before the closing had

occurred and that the undisputed evidence showed that both parties refused to

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perform the lender-required repairs so the MSA terminated by its own terms and was

no longer enforceable. The Bergins responded and, after a hearing, the trial judge

signed an order on January 11, 2022, vacating the interim judgment.

In the meantime, on October 14, 2021, Branch requested findings of fact and

conclusions of law relating to the interim judgment. On November 9, 2021, the

Bergins filed proposed findings of fact and conclusions of law.2 And on

November 20, 2021, Branch filed a notice of past due findings of fact and

conclusions of law. The record does not contain any written findings of fact or

conclusions of law relating to the interim judgment.

On September 30, 2022, the trial judge signed a final judgment that impliedly

granted Branch’s motion for new trial in part and vacated the interim judgment

which is summarized as follows:

 The Bergins are the true owners in title to the real property,

 If the Bergins’ right to title remains in place after any appeal,
within twenty-five days of all appeals being exhausted the parties
will close on the property.

 The purchase price at closing will be $225,000.

2
The Bergins requested a finding of fact that “[a]dditional damages may be present within the Property
which have occurred since January 2018 which will only be discovered upon [the] Bergins[’] unfettered
access to the Property” and conclusions of law that “[the] Bergins are entitled to a separate hearing as to
any additional damages to the Property and other offsets to the purchase price which should be allowed”
and “[t]o accurately know the amount of damages, [] Branch must vacate the Property and the Bergins must
be able to have unfettered access to the Property.”

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 The Bergins are entitled to $14,330.29 in economic damages,
which will be deducted from the purchase price of the property.3

 The Bergins are awarded attorney’s fees in the amount of
$49,127.75, which will be deducted from the purchase price of
the property.

 After the economic damages and attorney’s fees are deducted,
the purchase price of the house will be $161,541.96.

 The Bergins may follow the common steps of eviction to take
possession of the property after closing.

 Branch was ordered to not cause or allow others to damage or
harm the property.

 Branch was ordered that she will not allow the property to be
placed in foreclosure.

 Branch was ordered that she may not transfer, encumber, assign,
or burden the property with additional liens.

 Branch was ordered to maintain an insurance policy on the
property.

 Branch was ordered not to alter the property other than to
maintain the lawn and landscaping during any period of
occupancy or until she has surrendered possession.

 The Bergins were entitled to recover their taxable court costs,
and post-judgment interest from Branch.

 It was ordered that Branch take nothing on her counterclaims.

Branch timely requested findings of facts and conclusions of law, and she

timely filed a notice of past-due findings and conclusions. But the trial court did not

3
We note that the parties do not explain the legal or evidentiary basis for this finding, nor does Branch
challenge it on appeal.
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issue findings and conclusions, and Branch does not complain about that failure on

appeal.

II. Judgment on the Bergins’ Breach-of-MSA Claim
In issue one, Branch argues the trial court erred when it rendered judgment

against her on the Bergins’ breach-of-MSA claim because there was no evidence she

was required to remediate the mold before closing. She contends that the express

terms of the MSA, which was the live contract, provided that if the buyers’ lender

required repairs to the property before it would fund the loan and neither party agreed

to pay for those repairs, the contract terminated. She also argues that it is undisputed

that neither she nor the Bergins agreed to perform the repairs required by the

Bergins’ lender. As a result, she claims that the MSA terminated by its own terms.

We construe Branch’s argument to assert the trial court impliedly found her

affirmative defense of modification in her favor and erred when it impliedly found

she breached the MSA and awarded the Bergins specific performance because the

evidence is legally insufficient to support that implied finding.

The Bergins respond that Branch’s multiple breaches of the initial contract,

the September 11, 2017, Rule 11 agreement, and the MSA support the trial court’s

judgment. They also argue that Branch’s breaches are not excused by the Bergins’

funding issues because Branch created those issues. As a result, they contend that

they were entitled to specific performance because Branch’s actions prevented the

parties from closing.

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A. Standard of Review
In an appeal from a bench trial, the trial court’s findings of fact are reviewable

for legal and factual sufficiency of the evidence by the same standards that are

applied in reviewing the evidence supporting a jury’s findings. Bradford Place

Apartments v. Rawlings, No. 05-22-01298-CV, 2024 WL 3897464, at *3 (Tex.

App.—Dallas Aug. 22, 2024, no pet.) (mem. op.). When there are no findings of

fact despite a timely request, an appellate court presumes that the trial court made

all the findings necessary to support its judgment. See Ad Villarai, LLC v. Chan Il

Pak, 519 S.W.3d 132, 135 (Tex. 2017). When the appellate record includes the

reporter’s record, these implied findings of fact may be challenged for legal and

factual sufficiency. Bradford Place, 2024 WL 3897464, at *3. Unchallenged

findings of fact are binding on the parties and the reviewing court. Id.

When an appellant challenges the legal sufficiency of an adverse finding on

which she did not have the burden of proof at trial, she must demonstrate there is no

evidence to support the adverse finding. Bradford Place, 2024 WL 3897464, at *3.

When reviewing the record, an appellate court determines whether any evidence

supports the challenged finding. Id. If more than a scintilla of evidence exists to

support the finding, the legal sufficiency challenge fails. Bradford Place, 2024 WL

3897464, at *3; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003) (more than a scintilla of evidence exists when evidence rises to a level that

would enable reasonable and fair-minded people to differ in their conclusions

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(internal quotation omitted)). An appellate court views the evidence in a light

favorable to the judgment, crediting favorable evidence if a reasonable fact-finder

could, and disregarding contrary evidence unless a reasonable fact-finder could not.

See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).

The trial court’s conclusions of law are reviewed de novo. See BMC Software

Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). An appellate court is not

bound by the trial court’s legal conclusions, but conclusions of law will be upheld

on appeal if the judgment can be sustained on any legal theory supported by the

evidence. Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no

pet.).

B. The Trial Court Impliedly Found that the MSA Was a Modification of
the Initial Contract
First, we address Branch’s arguments that the trial court (1) impliedly found

the MSA was a contract that replaced the initial contract and was the live contract at

the time of the parties’ trial and (2) impliedly concluded that the MSA was a

modification of the initial contract.

The record shows that the parties executed an MSA during mediation of the

parties’ claims based on the initial contract. Mediation is a forum in which an

impartial person, the mediator, facilitates communication between parties to

promote reconciliation, settlement, or understanding among them. TEX. CIV. PRAC.

& REM . CODE ANN. § 154.023(a). If the parties reach a settlement and execute a

written agreement disposing of the dispute, the agreement is enforceable in the same
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manner as any written contract. Id. § 154.071(a). The parties’ MSA expressly

reaffirms the initial real estate contract except as modified by the MSA.

The trial court’s judgment states the purchase price of the property at closing

will be $225,000, which is the reduced purchase price stated in the MSA. In the

initial contract, the purchase price was $248,000. Accordingly, we agree with

Branch that there is record support that the trial court (1) impliedly found that the

MSA was a contract that incorporated and modified the initial contract and was the

live contract at the time of the parties’ trial and (2) impliedly concluded the MSA

was a modification of the initial contract.

C. Breach-of-MSA Claim and Award of Specific Performance
Second, we address Branch’s argument challenging the legal sufficiency of

the evidence to support the trial court’s implied findings that Branch breached the

covenant in the MSA agreeing to sell the house and the elements of specific

performance were met. She claims there is no evidence of one or more elements of

the Bergins’ breach-of-MSA claim because the MSA terminated by its own terms

when both parties refused to pay for the lender-required mold remediation—which

occurred before Branch’s duty to convey the house ripened.

1. Applicable Law
A plaintiff asserting a breach-of-contract claim must prove: (1) the existence

of a valid contract; (2) the plaintiff performed or tendered performance as the

contract required; (3) the defendant breached the contract by failing to perform or

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tender performance as the contract required; and (4) the plaintiff sustained damages

as a result of the breach. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501

n.21 (Tex. 2018).

Specific performance is an equitable remedy that may be awarded upon a

showing of breach of contract. See DiGiuseppe v. Lawler, 269 S.W.3d 588, 593

(Tex. 2008); Stafford v. S. Vanity Mag., Inc., 231 S.W.3d 530, 535 (Tex. App.—

Dallas 2007, pet. denied). Specific performance is not a separate cause of action,

but rather an equitable remedy used as a substitute for monetary damages when such

damages would not be adequate. Stafford, 231 S.W.3d at 535. A contract will not

be specifically enforced if there is an adequate remedy at law. Id. However, specific

performance may be awarded when the property has a “special, peculiar, or unique

value or character.” See id.

2. The Evidence Conclusively Established that the MSA Terminated By Its
Own Terms
In their first amended petition, the Bergins alleged that Branch breached the

MSA by failing to comply with the prior September 11, 2017, Rule 11 agreement,

which created the conditions that allowed for the mold growth, and by refusing to

perform the mold remediation before the January 29, 2024, closing date. The parties

do not dispute, and the evidence shows, that the parties incorporated into the MSA

the terms of the initial contract that was the source of their dispute, subject to the

modifications contained in the MSA. The initial contract provided that if the parties

did not agree to pay for the lender-required repairs the MSA would terminate. This
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provision was incorporated into the MSA. Further, the evidence establishes and the

parties do not dispute that neither Branch nor the Bergins were willing to pay for the

lender-required mold remediation prior to closing.

The Bergins contend that the MSA’s escrow provision obligated Branch to

pay for any lender-required repairs in advance of the closing date. We disagree. In

the MSA, the parties agreed that $35,000 of the purchase price would be held in

escrow by the title company to compensate for any damages to the property that

occurred after the first inspection. However, nothing in the MSA suggests that

Branch was obligated to place those funds in escrow prior to closing or that the

escrow funds would come from a source other than the proceeds of the sale. Further,

Katherine Bergin testified at trial that she had anticipated paying for the repair of the

foundation, the stove, and the mold from the escrow account after the closing. That

testimony is inconsistent with the premise that the escrow provision obligated

Branch to pay for lender-required repairs before closing. Finally, the Bergins’

interpretation of the escrow provision is unreasonable in the face of the express

provision that the contract would terminate if the parties did not agree to pay for

lender-required repairs.

The Bergins also argue that Branch paid for the mold remediation after the

closing failed to occur and subsequently moved back onto the property. However,

Branch’s subsequent actions did not alter the terms of the MSA, which did not

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require her to pay for lender-required repairs. Nor did they place a retroactive

obligation on her to have done so.

Accordingly, we conclude the evidence conclusively shows that the MSA

terminated by its own terms before Branch’s obligation to convey the house ripened

and, as a result, there is no evidence to support the implied finding that Branch

breached the MSA by failing to convey the house to the Bergins. Accordingly, the

trial court erred by granting specific performance and by ordering Branch to convey

the house to the Bergins.

We note that the trial court also awarded the Bergins $14,339.29 as economic

damages to be offset against the purchase price. That award implies findings that

Branch breached a contract4 and that her breach caused the Bergins an injury

reasonably valued at $14,339.29. Branch does not challenge these implied findings,

so they are binding on the parties and this Court. See Bradford Place, 2024 WL

3897464, at *3.

Issue one is decided in favor of Branch. Based on our resolution of issue one,

we need not address Branch’s remaining issues that were raised in the alternative.

And because we are not rendering a take-nothing judgment against the Bergins, we

reject Branch’s fourth issue, which is premised on our rendering such a judgment.

4
The Bergins pleaded breaches of three agreements.

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D. Attorney’s Fees
The Bergins were awarded attorney’s fees in conjunction with their breach-

of-MSA claim. As discussed above, we have reversed the trial court’s grant of that

claim but affirmed the trial court’s unchallenged grant of economic damages in favor

of the Bergins. Based on our disposition of Branch’s first issue, we reverse the trial

court’s award of attorney’s fees and remand the case for the trial court to determine

the amount of the Bergins’ attorney’s fees due on the affirmed claim. See Cox

Paving of Tex. Inc. v. H.O. Salinas & Sons Paving, Inc., 657 S.W.3d 756, 771–72

(Tex. App.—El Paso 2022, pet. denied).

III. Conclusion
We conclude the evidence conclusively shows that the MSA terminated by its

own terms and, as a result, there is no evidence of one or more elements of the

Bergins’ breach-of-MSA claim on which the specific-performance decree is based.

We reverse the final judgment as to the Bergins’ breach-of-MSA claim and

the award of specific performance, and we render judgment that the Bergins take

nothing on their breach-of-MSA claim.

We also reverse the final judgment as to the award of attorney’s fees.

In all other respects the trial court’s final judgment is affirmed.

The case is remanded for the trial court to render a new judgment in favor of

the Bergins for $14,339.29 plus pre- and post-judgment interest and to determine an

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appropriate award of attorney’s fees—trial and appellate—based on the part of the

judgment that we affirm.

/Emily Miskel/
221259f.p05 EMILY A. MISKEL
JUSTICE

–20–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

YVETTE C. BRANCH, Appellant On Appeal from the 191st Judicial
District Court, Dallas County, Texas
No. 05-22-01259-CV V. Trial Court Cause No. DC-17-07239.
Opinion delivered by Justice Miskel.
MATTHEW BERGIN AND Justices Goldstein and Garcia
KATHERINE BERGIN, Appellees participating.

In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED in part, RENDERED in part, and AFFIRMED in part.

We REVERSE the final judgment as to appellees MATTHEW BERGIN and
KATHERINE BERGIN’s breach-of-MSA claim and the award of specific
performance, and we RENDER judgment that appellees MATTHEW BERGIN and
KATHERINE BERGIN take nothing on their breach-of-MSA claim.

We also REVERSE the final judgment as to the award of attorney’s fees.
In all other respects the trial court’s final judgment is AFFIRMED.
The case is REMANDED for the trial court to render a new judgment in favor
of the appellees MATTHEW BERGIN and KATHERINE BERGIN for $14,339.29
plus pre- and post-judgment interest and to determine an appropriate award of
attorney’s fees—trial and appellate—based on the part of the judgment that we
affirm.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 7th day of November, 2024.

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