Tammy Tran, Minh-Tam, Attorney at Law, LLP and Hong-An, LP v. 2905 Fannin, LLC

Opinion issued December 31, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00391-CV
———————————
TAMMY TRAN, MINH-TAM, ATTORNEY AT LAW, LLP AND HONG-
AN, LP, Appellants
V.
2905 FANNIN, LLC, Appellee

On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2023-17402

MEMORANDUM OPINION

Hong-An, LP bought commercial real property in Houston, Texas by taking

a $2.8 million mortgage secured by a first lien on the property. Later, Hong-An

twice borrowed money ($400,000 and $283,000), securing those additional loans

with second and third liens on the same property. The second and third loans were
transferred to 2905 Fannin, LLC (“2905 Fannin”), which sued Hong-An, and

guarantors (and appellants) Tammy Tran and her law firm (Minh-Tran “Tammy”

Tran, Attorney at Law, LLP also known as the “Tran Law Firm”) for breach of

contract. After the parties signed a settlement agreement in that case, but before the

trial court entered judgment dismissing it with prejudice, the first lien holder

foreclosed on the property. 2905 Fannin sued the appellants for breach of the

settlement agreement for allowing the superior lien holder to foreclose on the

property, and it later added a claim for breach of contract—an alternative theory of

liability—based on the appellants’ failure to make a payment in accordance with

the schedule in the settlement agreement.

The trial court granted summary judgment in favor of 2905 Fannin based on

both alleged breaches. The appellants challenge that ruling on appeal, asserting that

both of 2905 Fannin’s alternative liability theories fail. First, they argue that 2905

Fannin’s breach of contract claim based on the foreclosure is barred by res judicata

because, through the exercise of diligence, 2905 Fannin could have raised that

claim in the prior lawsuit. Second, they argue that 2905 Fannin breached the

settlement agreement first by filing suit, and that breach excused their nonpayment

of amounts owed pursuant to the settlement agreement.

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We conclude that 2905 Fannin did not breach the settlement agreement by

filing suit, and the trial court did not err by granting summary judgment based on

the appellants’ default.1 We affirm the judgment of the trial court.

Background

I. Hong-An, LP buys property in Harris County, Texas and obtains two
additional loans secured by an interest in the property.

In 2012, Hong-An, LP purchased commercial real property located at 2905-

2915 Fannin Street in Harris County Texas for $2.8 million from R.A. Lane, Jr.

with a mortgage from The Bank of River Oaks. PlainsCapital Bank later succeeded

the Bank of River Oaks as the holder of the mortgage.

In January 2013, Hong-An took the first of two loans from Icon Bank.2 The

first loan, for the principal amount of $400,000, was memorialized in a promissory

note (“Note One”), secured by second lien deed of trust on the property at 2905-

2915 Fannin, and guaranteed by both Tran individually and the Tran Law Firm.

Nearly three years later, in December 2015, Hong-An took a second loan from

1
Because the summary judgment can be upheld based on breach of the payment
schedule in settlement agreement, we do not need to consider the arguments that
the other allegation of breach of contract is barred by res judicata. See TEX. R.
APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as
brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”)
2
Icon Bank was succeeded by merger with Bancorp South, which assigned both
notes along with their security instruments and guaranty agreements to Nicholas
Williams Associates, LLC, which later assigned them to 2905 Fannin.

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Icon Bank. The second loan, for the principal amount of $283,000, was

memorialized in a promissory note (“Note Two”), secured by third lien deed of

trust on the property at 2905-2915 Fannin, and guaranteed by both Tran

individually and the Tran Law Firm.

Both Notes One and Two included a provision that allowed the “Payee” the

option to accelerate the note after a missed payment.3 Both the Second and Third

Lien Deeds of Trust provided: “Grantors will not suffer or permit any lien superior

or equal to the lien created hereby to attach to or be enforced against the

Premises.”

II. 2905 Fannin sues for breach of contract, and the suit is resolved by
settlement amid foreclosure proceedings by PlainsCapital Bank.

A. 2905 Fannin settles its breach of contract claims relating to Notes
One and Two.

In 2021, 2905 Fannin sued Hong-An, its general partner Chua, LLC, Tran,

and the Tran Law Firm for default under the terms of Notes One and Two. Hong-

An, Chua, Tran, and the Tran Law firm filed a counterclaim. The parties resolved

their claims and signed a settlement agreement on February 3, 2023, which

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“IF ANY installment or payment of principal or interest of this note is not paid
within (10) days of its due date; or if default occurs under any document,
instrument or agreement executed in connection with or as security for this note .
. . and such default remains uncured for at least thirty (30) days . . . . thereupon, at
the option of Payee, this note and any and all other indebtedness of Maker to
Payee will become due and payable forthwith without demand, notice of default,
notice of intent to accelerate the maturity of this note, notice of acceleration of the
maturity of this note, notice of nonpayment, presentment, protest or notice of
dishonor, all of which are expressly waived by Maker and each other liable party.”
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included mutual releases, but it expressly provided that they “[did] not release any

obligations recognized or created by this Agreement or [Note One], [Note Two],

[the Personal Guarantees], and/or any and all modifications, renewals, and/or re-

arrangements thereof.”

The parties also signed Second and Third Lien Modification, Renewal, and

Extension Agreements, which were incorporated by reference into the settlement

agreement and extended the maturity dates of Notes One and Two to December 31,

2025. Each agreement required a payment on August 12, 2023: $16,733.36 and

$826.644 for Notes One and Two, respectively. Each modification agreement

incorporated by reference the obligations and liabilities under Notes One and Two

and the Second and Third Lien Deeds of Trust.5

4
The Modification, Renewal, and Extension Agreements included specific
repayment schedules with dates and amounts owed.
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Paragraph 4(a) of the Second Lien Modification, Renewal, and Extension
Agreement provided:

4. Borrower understands and agrees that:

(a) All covenants, agreements, stipulations, and conditions in the
Second Lien Promissory Note and Second Lien Deed of Trust
shall be and remain in full force and effect, except as herein
modified, and none of the Borrower’s obligations or liabilities
shall be diminished or released by any provisions hereof. Nor
shall this Modification Agreement in any way impair,
diminish, or affect any of Note Holder’s rights under or
remedies available under the Second Lien Promissory Note
and Second Lien Deed of Trust, whether such rights or
remedies arise thereunder or by operation of law. Also, this
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The parties filed a motion to dismiss on February 13, 2023, and the trial

court dismissed the case with prejudice the next day, February 14, 2023.

B. Contemporaneously, PlainsCapital Bank, the first lien holder,
foreclosed based on default.

Two cases proceeded simultaneously: the case filed by 2905 Fannin and a

suit brought by PlainsCapital Bank against Hong-An for default on the first

mortgage. In May 2022, Hong-An entered into a settlement agreement with

PlainsCapital Bank, which provided for monthly payments with a final balloon

payment on December 1, 2022, and permitted the bank to foreclose without further

notice upon default.

Modification Agreement does not impair, in any way, any
Personal Guaranty.

Similarly, Paragraph 4(a) of the Third Lien Modification, Renewal, and
Extension Agreement provided:

4. Borrower understands and agrees that:
(a) All covenants, agreements, stipulations, and conditions in the
Third Lien Promissory Note and Third Lien Deed of Trust
shall be and remain in full force and effect, except as herein
modified, and none of the Borrower’s obligations or liabilities
shall be diminished or released by any provisions hereof. Nor
shall this Modification Agreement in any way impair,
diminish, or affect any of Note Holder’s rights under or
remedies available under the Third Lien Promissory Note and
Third Lien Deed of Trust, whether such rights or remedies
arise thereunder or by operation of law. Also, this
Modification Agreement does not impair, in any way, any
Personal Guaranty.
6
On January 13, 2023, PlainsCapital Bank publicly posted and mailed to

Hong-An and Tran a “Notice of Substitute Trustee Sale” asserting that Hong-An

defaulted and that the property would be sold at a public auction. On February 7,

2023, PlainsCapital Bank bought the property at auction for $975,623.00.

III. 2905 Fannin sues for breach of the Settlement Agreement and prevails
on summary judgment.

Although PlainsCapital Bank foreclosed on the property a week before the

trial court dismissed the prior case, 2905 Fannin did not amend its petition. Instead,

just over a month later, on March 17, 2023, 2905 Fannin filed a second lawsuit

against Hong-An, Tran, and the Tran Law Firm. Initially, 2905 Fannin alleged that

the appellants breached the parties’ contract by allowing the superior lien holder to

foreclose on the property. On August 22, 2023, ten days after payments were due

pursuant to the settlement agreement’s payment schedule, 2905 Fannin added a

second, alternative, breach of contract claim based on the appellants’ default on

installment payments due August 12, 2023, as required by the settlement

agreement.

About two months later, 2905 Fannin moved for traditional summary

judgment on its breach of contract claims arguing that the foreclosure on the

property violated provisions of Notes One and Two and provisions of the second

and third lien deeds of trust. It also argued that the appellants defaulted on the

settlement agreement by failing to make scheduled payments beginning on August

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12, 2023.6 The appellants maintained that the breach of contract claim based on

foreclosure was barred by res judicata because it could have been raised in the

prior lawsuit. As to the breach of contract claim based on default, the appellants

argued that 2905 Fannin breached the contracts first by filing suit for breach of

contract.

Although 2905 Fannin argued that its claims in this case were different from

its claims in the prior suit and arose after the settlement agreement was signed,

appellants argued, among other things: “Plaintiff cannot breach the settlement

agreement by suing Defendants on March 17, 2023, then demanding Defendants to

pay Plaintiff on August 12, 2023. The law certainly does not allow Plaintiff to have

[it] both ways. As such, due to Plaintiff’s breach, the required payments were

justifiably excused.”

On March 4, 2024, the trial court signed a final summary judgment holding

that the appellants breached by allowing PlainsCapital Bank to foreclose on the

property and by failing to make payments required to be made by August 12, 2023.

The court awarded actual damages of $798,482.33 plus $9,352.12 in trial

attorney’s fees and $266 in costs of court. After the trial court denied the

appellants’ motion for a new trial, this appeal followed.

6
Because the measure of damages was the same for both claims and 2905 Fannin
was entitled to just one recovery, 2905 Fannin only needed to prevail on one of the
two alternative theories to be entitled to summary judgment.
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Analysis

The appellants challenge the summary judgment on two grounds. First, they

argue that 2905 Fannin’s claims are barred by res judicata because they arose from

the same legal relationship based on Notes One and Two and before the final

judgment in the prior lawsuit. Second, they argue that genuine issues of material

fact preclude summary judgment because they “vigorously protested the

foreclosure” and 2905 Fannin breached the agreement first.

The breach of contract claim based on failure to make scheduled payments

as per the settlement agreement undisputedly arose only after the final judgment in

the prior lawsuit. Therefore, regardless of whether 2905 Fannin’s other claims

were barred by res judicata, this claim would still stand. We affirm the district

court’s grant of summary judgment based on appellant’s default on the settlement

agreement.

I. We review summary-judgment rulings de novo.

We review summary judgment rulings de novo. Mann Frankfort Stein &

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A party moving

for traditional summary judgment must show that no genuine issue of material fact

exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

see Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

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“An affirmative defense prevents the granting of a summary judgment only if each

element of the affirmative defense is supported by summary judgment evidence.”

Fortitude Energy, LLC v. Sooner Pipe LLC, 564 S.W.3d 167, 180 (Tex. App.—

Houston [1st Dist.] 2018, no pet.). “A party raising an affirmative defense in

opposition to a summary judgment motion must either (1) present a disputed fact

issue on the opposing party’s failure to satisfy its own summary judgment burden

of proof or (2) establish the existence of a fact issue on each element of his

affirmative defense.” Id.

II. 2905 Fannin conclusively established its breach of contract claim, and
appellants did not raise a genuine question of material fact.

In its motion for summary judgment, 2905 Fannin argued that appellants

defaulted on payments due August 12, 2023 “under the Settlement Agreement and

resulting Note One and Note Two Modification Agreements.” To demonstrate its

entitlement to summary judgment, 2905 Fannin was required to produce evidence

that conclusively demonstrated each essential element of a breach of contract

claim, namely: (1) the existence of a valid contract between the plaintiff and the

defendant; (2) the plaintiff’s performance or tendered performance; (3) the

defendant’s breach of the contract; and (4) the plaintiff’s damages as a result of the

breach. See Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.

App.—Houston [1st Dist.] 2002, pet. denied).

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2905 Fannin’s summary-judgment evidence included the Settlement

Agreement and the second and third lien modification renewal, modification, and

extension agreements, which 2905 Fannin referred to as the “Note One and Note

Two Modification Agreements.” Appellants did not dispute the existence and

validity of these agreements. Thus, the first essential element of a breach of

contract claim—the existence of a valid contract—is conclusively established. See

Prime Prods., 97 S.W.3d at 636.

In both the second and third lien modification, renewal, and extension

agreements, 2905 Fannin agreed to capitalize the existing debt, stop interest from

accruing at 18.00% (the “Default Interest Rate”) as of January 12, 2023, fix the

annual, pre-default interest rate at 8.00%, and extend the maturity date to

December 31, 2025. As 2905 Fannin’s suit is based on the failure to make

scheduled payments based on this formula, we conclude that 2905 Fannin tendered

performance under the contracts, establishing the second essential element of its

breach of contract claim. See id.

2905 Fannin’s summary-judgment evidence included an affidavit from Eric

Schneider, an authorized representative of 2905 Fannin. He stated that appellants

breached the contract, which he specified included the settlement agreement and

the two modification, extension, and renewal agreements, “by failing to pay the

payments as they came due starting on August 12, 2023.” This conclusively

11
establishes the third essential element of a breach of contract claim, the appellants’

breach. See id. In addition, Schneider explained that by entering into the settlement

agreement and the two modification, extension, and renewal agreements, 2905

Fannin gave up its right to foreclose at that time, extended the maturity date,

lowered the interest rate in exchange for appellants’ promise to pay in the future.

He stated that, as of September 25, 2023, the total amount on Note One was

$600,464.40 and Note Two was $297,022.33. This conclusively establishes the

final element of breach of contract, 2905 Fannin’s damages. See id.

In response to the summary-judgment motion, the appellants provided no

evidence that contradicted 2905 Fannin’s proof. Thus, the appellants failed to raise

a genuine question of material fact on the essential elements of breach of contract.

Rather than showing a genuine issue of material fact, appellants argued that res

judicata barred the claim based on foreclosure and prior material breach excused

their failure to perform by paying scheduled amounts set forth in the modification,

renewal, and extension agreements.

“It is a fundamental principle of contract law that when one party to a

contract commits a material breach of that contract, the other party is discharged or

excused from further performance.” Mustang Pipeline Co., Inc. v. Driver Pipeline

Co., Inc., 134 S.W.3d 195, 196 (Tex. 2004). “The contention that a party to a

contract is excused from performance because of a prior material breach by the

12
other contracting party is an affirmative defense that must be affirmatively

pleaded.” Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636, 646

(Tex. App.—Dallas 2015, no pet.); see, e.g., ACS Invs., Inc. v. McLaughlin, 943

S.W.2d 426, 431 (Tex. 1997) (“A party must plead and prove the affirmative

defense of legal justification or excuse.”).

The appellants did not plead prior material breach, but in their response to

the motion for summary judgment, they sought leave to plead affirmative defenses

of res judicata and excuse, and 2905 Fannin has responded to this argument.

Whether 2905 Fannin breached first by filing suit depends on whether the parties’

contract prohibited it, a question we review de novo. Sundown Energy LP v. HJSA

No. 3, Ltd. P’ship, 622 S.W.3d 884, 888 (Tex. 2021) (courts review contract

construction de novo with primary concern for giving effect to parties’ intent,

while considering context, and construing contracts to avoid rendering contract

language meaningless). Having reviewed the relevant documents, we conclude that

they do not prohibit 2905 Fannin from filing suit.

The settlement agreement included mutual releases, but the release by 2905

Fannin expressly excluded “any obligations recognized or created by this

Agreement or the Second Mortgage, Third Mortgage, Second Mortgage Personal

Guaranty, Third Mortgage Personal Guaranty, and/or any and all modifications,

renewals, and/or re-arrangements thereof.” The modification, renewal, and

13
extension agreements expressly provided that they did not release claims or impair

rights provided by Notes One or Two, the deeds of trust, or any prior extension,

renewal, or modification agreements.7 Notes One and Two expressly reserved to

the Payee [now, 2905 Fannin] all legal and equitable remedies in case of default.

Both notes provide for attorney’s fees if the “Payee” retains an attorney in

7
For example, the Second Lien Modification, Renewal, and Extension Agreement
provided:

4. Borrower understands and agrees that:

(a) All covenants, agreements, stipulations, and conditions in the
Second Lien Promissory Note and Second Lien Deed of Trust shall
be and remain in full force and effect, except as herein modified, and
none of the Borrower’s obligations or liabilities under the Second
Lien Promissory Note and Second Lien Deed of Trust shall be
diminished or released by any provisions hereof. Nor shall this
Modification Agreement in any way impair, diminish, or affect any
of Note Holder’s rights under or remedies available under the
Second Lien Promissory Note and Second Lien Deed of Trust,
whether such rights or remedies arise thereunder or by operation of
law. Also, this Modification Agreement does not impair in any way,
any Personal Guaranty.

(c) [sic] Borrower has no right of set-off or counterclaim, or any defense to
the obligations of the Second Lien Promissory Note and Second
Lien Deed of Trust.

(d) Nothing in this Modification Agreement shall be understood or
construed to be a satisfaction or release in whole or in part of the
Second Lien Promissory Note and/or Second Lien Deed of Trust,
Loan Agreement, or any prior extension, renewal, or other
agreement.

The Third Lien Modification, Renewal, and Extension agreement included similar
terms.
14
connection with any default or to collect, enforce, or defend the note at maturity in

a lawsuit or other legal proceeding.

Having considered the contract language, we conclude that nothing in the

parties’ agreements prohibits 2905 Fannin from filing a breach of contract lawsuit.

See Sundown Energy, 622 S.W.3d at 888. Rather, the parties contemplated that

2905 Fannin might file a lawsuit as a remedy for default. Accordingly, we further

conclude that the appellants failed to establish a fact issue on their affirmative

defense because they provided no evidence that showed the existence of a valid

contract that prohibited 2905 Fannin from filing suit. See Fortitude Energy, 564

S.W.3d at 180.

We hold that the trial court did not err by granting summary judgment.

Conclusion

We affirm the judgment of the trial court.

Susanna Dokupil
Justice

Panel consists of Chief Justice Adams, and Justices Morgan and Dokupil.

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