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Harris v. Balderas6/28/2000
ever made. The majority agrees with Consuelo in part, pointing to Tinning's September 23 letter in which he states that " he check did not meet our demand since your company improperly tries to add Mr. and Mrs. Balderas to the same $20,000.00 limit...." (underline in original). The majority says this evidence raises a fact issue concerning the existence of an agreement. The flaw in the analysis, however, is that when the settlement documents were prepared and delivered to Tinning, the agreement was already in place. The parties were at that time attempting to perform an enforceable agreement.
In my view, the check and release containing Octavio's name were, at worst, a defective attempt at performance. Whatever the perceived merits of adding Octavio's name to the documents, in truth it did not affect the agreement. Consequently, it was not a material breach of performance that would entitle Consuelo to repudiate the settlement agreement.
Because I believe Harris and USAA established the existence of an enforceable settlement agreement as a matter of law, they are entitled to a judgment. Accordingly, I respectfully dissent.
PAUL W. GREEN Justice
PUBLISH
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