                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Eric W. Miller,
Plaintiff below, Petitioner                                                        FILED
                                                                               October 11, 2019
vs.) No. 18-0957 (Lewis County 18-C-37)                                         EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
Terry D. Reed, et al.,
Defendants Below, Respondents

                                 MEMORANDUM DECISION

       Petitioner Eric W. Miller, pro se, appeals the October 2, 2018, order of the Circuit Court
of Lewis County dismissing this action. Respondent Lewis County Commission, by counsel
Kenneth L. Hopper, filed a response in support of the order. Respondent Terry D. Reed, in his
capacity as executor of the Estate of Byron Wayne Miller, also filed a response in support of the
dismissal.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

       On September 26, 2016, Byron Wayne Miller died testate with four heirs: three daughters
and a son. The son, Eric W. Miller, is the petitioner in this action. Tonya S. Moran, one of the
decedent’s daughters, was initially appointed as the administratrix of the estate of Byron Wayne
Miller (hereinafter “Mr. Miller’s estate”). Ms. Moran resigned as the Administratrix during the
pendency of the estate proceeding.1
       Thereafter, Terry D. Reed, an attorney licensed to practice law in West Virginia, was
appointed as Administrator c.t.a., d.b.n.2 of the Mr. Miller’s estate by the Lewis County

       1
           Per the record, petitioner was aware of, and was involved with, the estate proceeding.
Initially, petitioner waived his right to qualify as the administrator of the estate. Thereafter, on
March 4, 2017, petitioner signed a receipt acknowledging receipt of one-fourth of the tangible
personal property “[a]s split between the heirs up to the date below.”
       2
         An administrator c.t.a., also known as administrator cum testamento annexo or
administrator with the will annexed, is an administrator appointed to carry out the provisions of a

                                                  1
Commission and posted a bond in the sum of $485,000 upon his appointment. In connection with
his duties as Administrator, Mr. Reed took various steps to probate the Estate including completion
of an Appraisement and a Nonprobate Inventory of the Estate form. Thereafter, Mr. Reed executed
an affidavit declaring that “[m]ore than sixty (60) days ha[d] elapsed since the filing of any notice
required by Chapter 44, Section 2, Article 1 of the West Virginia Code, as amended”; that “[t]he
time for filing claims against this estate ha[d] expired; and that “[a]ll claims have been paid.” In
the discharge of his duties, Mr. Reed also prepared a report of receipts and disbursements. Mr.
Miller’s estate was settled and closed on February 28, 2018.
        On or about May 24, 2018, petitioner filed a complaint in the Circuit Court of Lewis County
raising various issues related to the handling of the estate.3 In response to the complaint,
respondents filed motions to dismiss. On or about August 20, 2018, the circuit court held a hearing
on the pending motions4 and entered an order on August 27, 2018, finding that petitioner’s claims
were barred by the legal doctrine of res judicata.5 Petitioner filed a “Request for Reversal of
Judgment or New Trial” on or about September 6, 2018. Thereafter, the circuit court entered an
October 2, 2018, “Order Denying Plaintiff’s Request for Reversal of Judgment or New Trial.” It
is from this order that petitioner appeals.
        On appeal, petitioner maintains that the circuit court improperly dismissed this action based
upon the legal doctrine of res judicata. This Court has established that “[a]ppellate review of a
circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).

will under the following circumstances: where there is no person named as executor in the will;
where the executor refuses or is incompetent to act; or where the executor died before performing
their duties. See Black’s Law Dictionary 54 (10th ed. 2014). Mr. Reed was also designated as an
administrator de bonis non, or administrator d.b.n., as he was appointed after Ms. Moran did not
fully administer the decedent’s estate.
       3
         Petitioner’s complaint did not include a style, but “request[ed] a trial on the following
matters concerning [t]he Lewis County Commission, [t]he [o]ffice of Cynthia S[.] Rowan Lewis
County Clerk and Terry D. Reed the executor of the Byron Miller Estate settled in Lewis County[,]
West Virginia.” In his complaint, petitioner alleged that Terry D. Reed failed to appropriately
discharge his duties as the executor. Petitioner also alleged various actions and omissions of the
Lewis County Clerk and the Lewis County Commission related to the administration of the Estate.
       4
          Terry D. Reed filed two separate motions to dismiss. The Lewis County Commission
filed its Motion to Dismiss/Motion for Summary Judgment arguing for dismissal on multiple
grounds, including res judicata and immunity pursuant to the West Virginia Governmental Tort
Claims and Insurance Reform Act.
       5
          On the following day, petitioner submitted a “Request for the Judge to Recuse and
Dismiss any Rulings.” This Court determined that the evidence was insufficient to warrant a
disqualification and entered an administrative order denying the request.

                                                 2
        Petitioner argues that the circuit court improperly found that this matter is precluded by the
doctrine of res judicata. Applying a de novo review of the record on appeal, we disagree. This
Court has previously held that a civil action can be precluded based upon the legal doctrine of res
judicata where three elements are satisfied.
       First, there must have been a final adjudication on the merits in the prior action by
       a court having jurisdiction of the proceedings. Second, the two actions must involve
       either the same parties or persons in privity with those same parties. Third, the cause
       of action identified for resolution in the subsequent proceeding either must be
       identical to the cause of action determined in the prior action or must be such that
       it could have been resolved, had it been presented, in the prior action.
Syl. Pt. 3, in part, Beahm v. 7-Eleven, Inc., 223 W. Va. 269, 672 S.E.2d 598 (2008).
         Here, the circuit court properly determined that the first element of res judicata was
satisfied as there was an adjudication on the merits in the prior action. Pursuant to West Virginia
Code § 44-12-1, the Lewis County Commission and the Lewis County Clerk had jurisdiction over
the Estate of Byron Wayne Miller. This statutory authority has previously been recognized by this
Court. See McClure v. McClure, 184 W. Va. 649, 403 S.E.2d 197 (1991). Exercising the
jurisdiction afforded to it, the Lewis County Commission finalized the Estate of Byron Wayne
Miller. Accordingly, there was an adjudication on the merits in the estate proceeding, and thus, the
first element of res judicata is satisfied.
        The second element of the doctrine of res judicata is also satisfied. The court in Beahm
found that in order for res judicata to apply the two actions must involve either the same parties or
persons in privity with those parties. In this civil action, Mr. Miller named three defendants: Terry
D. Reed, the Lewis County Commission, and the Lewis County Clerk. Here, there is no dispute
that petitioner was involved in the estate proceedings as a beneficiary. Additionally, Mr. Reed was
appointed as the administrator of the Estate in the underlying matter. Moreover, the underlying
estate proceedings involved the Lewis County Clerk, as the clerk is tasked with all probate matters
pursuant to West Virginia Code § 44-12-1 and West Virginia Code § 7-1-3. Inasmuch as the Lewis
County Clerk’s Office is an arm of the Lewis County Commission and these two entities are in
privity, they share many of the same legal rights. Thus, the circuit court did not err in determining
that the second element of res judicata was satisfied where the parties of the underlying estate
proceeding are the same parties or are parties in prvity with the parties involved in this action.
        Finally, this Court has held that res judicata requires a finding that the cause of action
identified for resolution in the subsequent proceeding is either identical to the cause of action
determined in the prior action, or such that it could have been resolved, had it been presented, in
the prior action. See Beahm, 223 W. Va. at 270, 672 S.E.2d at 599. The allegations raised by
petitioner in the circuit court proceeding are those very claims that were either raised, or could
have been raised, in the underlying estate matter.6 Accordingly, the circuit court did not err in
finding that the third element of res judicata was satisfied.

       6
        Petitioner claims that he properly filed an objection in the underlying estate proceeding.
As is demonstrated by the record, Mr. Reed filed the report of receipts and disbursements, as well

                                                  3
          Having found that the circuit court did not err in finding the elements of res judicata, 7 we
affirm.

                                                                                Affirmed.

ISSUED: October 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

as the appraisement of Mr. Miller’s Estate on December 28, 2017. All heirs had ten days to file
any objections to the report, request a hearing and present evidence and/or witness testimony. See
W. Va. Code § 44-2-1. Petitioner alleges that “I submitted [an] objection, in person, by appearing
in front of the Lewis County Clerk within [] the ten (10) day deadline, and again, in writing on
February 7, 2018.” Notably, there is no evidentiary support for the statement in the record that he
appeared before the Lewis County Clerk and submitted an objection, nor does petitioner note the
nature of any such “objection.” As to petitioner’s alleged written submission of February 7, 2018,
this was untimely. Also, the record suggests that additional correspondence may have been sent
by petitioner to a representative of the Lewis County Commission on February 28, 2018. This, too,
was untimely. When presented with this issue upon plaintiff’s request for reversal of judgment or
new trial, the circuit court found that “even if Plaintiff made some objection in the underlying
action, it is unclear whether or not Plaintiff followed the proper procedure to lodge that objection.”
Based upon the record, we agree.
          7
          On appeal, petitioner asserts numerous assignments of error related to the handling of Mr.
Miller’s Estate, many of which do not amount to appealable issues. As best we can discern,
petitioner appears to allege that he timely filed an objection to the underlying proceedings; that the
Lewis County Commission did not maintain a legal estate; that Mr. Reed should not have been
appointed as personal representative for Mr. Miller’s Estate; that Mr. Reed did not pay all claims
presented; and that the Lewis County Commission failed to establish if Mr. Reed’s bond was
maintained. Having found that the circuit court properly dismissed this action under the doctrine
of res judicata, we need not address these additional assignments of error.

                                                    4


       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOSEPH M. WALLS,                                 )
                                                 )
             Appellant/Plaintiff-Below,          )
                                                 )
      v.                                         )      C.A. No. N16A-10-012 ALR
                                                 )
BRUCE BURTON and,                                )
AKINBAYO KOLAWOLE,                               )
                                                 )
             Appellees/Defendants-Below.         )

                           Submitted: December 21, 2018
                             Decided: February 6, 2019

           On Appeal from the Decisions of the Court of Common Pleas
                                 AFFIRMED

                                       ORDER

      This is an appeal from the Court of Common Pleas on an Order granting

summary judgment to Defendants-Below.                Upon consideration of the facts,

arguments, and legal authorities set forth by the parties; statutory and decisional law;

and the entire record in this case, the Court hereby finds as follows:

      1.     Appellant/Plaintiff-Below, Joseph M. Walls (“Walls”), filed a civil

lawsuit in the Court of Common Pleas on June 26, 2015, against

Appellees/Defendants-Below, state officials employed by the Department of

Corrections (“DOC”).
      2.     After a hearing on July 29, 2016, the Court of Common Pleas granted

summary judgment to DOC on the basis of Walls’ failure to exhaust administrative

remedies available by means of DOC’s grievance process.1

      3.     Walls filed a Motion for Reargument which was subsequently denied

by Order dated October 10, 2016.2

      4.     Walls now appeals from the Court of Common Pleas decision granting

DOC’s Motion for Summary Judgment and denial of the Motion for Reargument.

Walls contends that summary judgment was inappropriate because a disputed

material fact existed as to whether the grievance process was available to resolve

Walls’ claim.

      5.     In response, DOC argues that the Court of Common Pleas’ properly

granted summary judgment on the ground of non-exhaustion of remedies.

      6.     When considering an appeal from the Court of Common Pleas, “this

Court sits as an intermediate appellate court.”3 The Court’s appellate role is limited

to correcting legal error and determining whether factual findings are “sufficiently

supported by the record and are the product of an orderly and logical deductive

1
  Joseph M. Walls v. Bruce Burton, et al., C.A. No. CPU4-15-001340, at 82-83 (Del.
Com. Pl. July 29, 2016) (TRANSCRIPT).
2
  Joseph M. Walls v. Bruce Burton, et al., C.A. No. CPU4-15-001340, at 1 (Del.
Com. Pl. October 10, 2016) (ORDER).
3
  State v. Richards, 1998 WL 732960, at *1 (Del. Super. May 28, 1998).

                                          2
process.”4 The decision of the Court of Common Pleas granting summary judgment

presents a question of law that is entitled to de novo review by this Court.5 A

decision granting summary judgment will be affirmed if it appears from the record,

in a light most favorable to the non-moving party, “that there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter of law.”6

      7.     Pursuant to Delaware statutory law, “[a] prisoner may not bring or file

a complaint relating to a condition of confinement . . . unless the prisoner has fully

exhausted all administrative remedies available through the institutional grievance

procedure.”7 The record in this case reveals that the Court of Common Pleas

properly found that Walls failed to exhaust his administrative remedies before

initiating the civil action. Accordingly, the decision granting DOC’s Motion for

Summary Judgment must be affirmed.

      8.     A de novo review of this case reveals that there are no genuine issues

of material fact and DOC is entitled to judgment as a matter of law. The Court of

Common Pleas decision is free from legal error. Moreover, the Court of Common

Pleas’ factual findings are supported by the record and are the product of an orderly

and logical deductive process.

4
  Wright v. Platinum Fin. Services, 2007 WL 1850904, at *2 (Del. June 28, 2007).
5
  Jackson v. Walgreens Corp., 2013 WL 2145938, at *2 (Del. Super. May 15, 2013).
6
  Id.
7
  10 Del. C. §8804(g).

                                          3
      NOW, THEREFORE, this 6th day of February, 2019, for the reasons

stated herein, the Court of Common Pleas decision granting Defendant’s

Motion for Summary Judgment and denial of the Motion for Reargument is

AFFIRMED.

      IT IS SO ORDERED.

                                                                                Andrea L. Rocanelli
                                      ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____

                                      The Honorable Andrea L. Rocanelli

cc:   Joseph M. Walls

                                  4


                                         In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               _________________
                                 NO. 09-12-00351-CV
                               _________________

            IN RE BANK OF AMERICA, N.A., BANK OF AMERICA
          CORPORATION AND COUNTRYWIDE HOME LOANS, INC.

________________________________________________________________________

                           Original Proceeding
________________________________________________________________________

                             MEMORANDUM OPINION

      Bank of America, N.A., Bank of America Corporation, and Countrywide Home

Loans, Inc. request mandamus relief from a pretrial sanctions order. The trial court

imposed a pretrial sanction for breach of an agreement. Relators are entitled to have the

case decided on the merits of the claim under the applicable rules of procedure. We

therefore conditionally grant mandamus relief.

                                     BACKGROUND

      This lawsuit is the third of a series. The first, which real party in interest Trudie

Crutchfield filed against Countrywide Home Loans, Inc. and Beal State Bank, SSB,

alleged the defendants failed to honor a loan modification agreement and wrongfully

                                            1
foreclosed on Crutchfield’s property. That suit settled in 2008. Apparently the parties

executed a mediated settlement agreement that provided for rescinding the foreclosure,

modifying the principal amount of the loan, payment of attorney fees, execution of a

release, and use of best efforts to remove derogatory credit reporting. The mandamus

record includes a copy of a settlement agreement and release executed by Crutchfield.

       In December 2011 Crutchfield filed a second lawsuit against Bank of America

Corporation f/k/a Countrywide Homes Loans, Inc. and Bank of America, N.A. The

petition stated that damages were less than $75,000.00. She alleged that Bank of America

had not complied with the settlement agreement. She asserted a claim for breach of

contract. The case settled. The parties executed a settlement agreement and release of

claims through which they agreed to reduce the balance of Crutchfield’s loan to zero, pay

attorney fees, execute a request to credit reporting agencies, and dismiss the claim with

prejudice. The settlement agreement was not filed with the court clerk or expressly

incorporated in the dismissal order. The trial court signed an order granting the parties’

joint motion to dismiss with prejudice.

       Crutchfield filed a third lawsuit on May 7, 2012. She requested a temporary

restraining order and temporary injunction of any foreclosure proceedings. Alleging she

had received notice of a trustee’s sale set for June 2012, she brought a claim against Bank

of America Corporation f/k/a Countrywide Home Loans, Inc. and Bank of America, N.A.

                                            2
for breach of the settlement agreements reached in the first two suits, and sought a

declaratory judgment regarding her rights under the agreements.

                                        SANCTIONS

       Crutchfield filed a motion requesting sanctions in the amount of $300,000.

Crutchfield alleged that relators intentionally and maliciously harassed her, justifying the

imposition of sanctions under Texas Rule of Civil Procedure 13. See generally Tex. R.

Civ. P. 13.

       Relators challenged the application of Rule 13 to the enforcement of a settlement

agreement, and claimed compliance with the settlement agreement by performing an

account write-off approximately fifty days after the trial court signed the final order in the

second suit. Relators also argued that imposing sanctions would modify the final

judgment after the trial court’s plenary power expired in the second suit.

       At the hearing on the motion for sanctions, Crutchfield invoked the trial court’s

inherent power to impose sanctions for bad faith abuse of the judicial process. Crutchfield

argued Bank of America committed this abuse in its collection efforts taken prior to her

third lawsuit. Counsel for Bank of America noted the trial court’s inherent powers were

limited by due process to matters over which the court had plenary power.

       The conduct made the basis of the motion for sanctions occurred before the third

suit commenced. Crutchfield’s counsel testified that Crutchfield had been the first of 300

plaintiffs who were subjected to demands for lump sum payments and penalties after the

                                              3
lender granted a 90-day extension following Hurricane Rita. Counsel conceded that the

last foreclosure notice was sent by mistake, but argued that the wrongful conduct “goes

back to 2006.” According to counsel, Crutchfield’s credit reports still state that she owes

$14,000 on her mortgage. In his opinion, a $300,000 sanction would be appropriate

because the settlement agreements were not signed in good faith. Counsel stated that by

breaching the settlement agreements, Bank of America had interfered with the trial

court’s legitimate exercise of power in the case now before the trial court. He argued

Crutchfield can no longer trust relators to abide by agreements, and consequently she

cannot enter into a Rule 11 agreement in this litigation. Counsel stated that Crutchfield

was not seeking to modify any prior judgment, as “[t]his is a completely separate

lawsuit.”

       At the conclusion of the June 27 hearing, the trial court announced its ruling

imposing a $300,000 sanction payable in thirty days, an additional $300,000 if

Crutchfield’s credit was not corrected within ninety days, and an additional $300,000 if

she receives another foreclosure notice. The trial court instructed the parties to “work out

reasonable attorneys’ fees” or another hearing would be scheduled.

       On July 20, Crutchfield filed a motion for sanctions in the first lawsuit. On July

23, she filed a motion to consolidate the first and third lawsuits. Crutchfield submitted an

attorney’s fee affidavit in the third lawsuit on July 27, the same day that the trial court

                                             4
signed orders consolidating the first and third lawsuits and imposing sanctions in the

consolidated case.

        The court withdrew the orally announced $300,000 sanction for failing to address

the credit reporting issues because relators had attempted to rectify the failure before the

written order was signed. The other sanctions remain in place. Concluding that sanctions

were justified because the cost of litigation had not deterred relators, the trial court

ordered them to pay attorney’s fees in the amount of $20,000 to Crutchfield within thirty

days.

                                        MANDAMUS

        Mandamus relief is appropriate if the trial court has abused its discretion and there

is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-

36 (Tex. 2004). Mandamus review of a significant ruling in an exceptional case may be

essential to preserve important procedural rights. Id. at 136. Relief may be granted to set

aside an order issued on the merits of a case after the trial court’s plenary power expires.

In re Daredia, 317 S.W.3d 247, 249-50 (Tex. 2010).

                                   POWER TO SANCTION

        Crutchfield argues that the egregious and flagrant disregard of the settlement

agreements justifies the pre-trial imposition of monetary sanctions in this breach of

contract case. See generally Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)

(requirement of direct nexus between improper conduct and the sanction). We first

                                              5
consider whether the trial court possessed the authority to impose sanctions for the

alleged conduct. In its order, the trial court invoked the rule of civil procedure addressing

a party’s responsibility for statements contained in court filings, the court’s contempt

power, and its inherent power to control court proceedings. See Tex. R. Civ. P. 13; see

also Tex. Gov’t Code Ann. § 21.002 (West 2004); see also In re Reece, 341 S.W.3d 360,

364 (Tex. 2011) (a trial court has broad inherent contempt power); Eichelberger v.

Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979) (“The inherent powers of a court are

those which it may call upon to aid in the exercise of its jurisdiction, in the administration

of justice, and in the preservation of its independence and integrity.”).

       “A court has all powers necessary for the exercise of its jurisdiction and the

enforcement of its lawful orders, including authority to issue the writs and orders

necessary or proper in aid of its jurisdiction.” Tex. Gov’t Code Ann. § 21.001(a) (West

2004). “As a general proposition, before a court may address the merits of any case, the

court must have jurisdiction over the party or the property subject to the suit, jurisdiction

over the subject matter, jurisdiction to enter the particular judgment, and capacity to act

as a court.” See State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994).

       Notwithstanding the post-hearing consolidation of the first and third lawsuits, the

procedural posture of the three cases affects the scope of the trial court’s authority to

regulate the parties’ conduct in this litigation by imposing sanctions. In the first suit,

Crutchfield neither sought to enforce the agreement nor to rescind the agreement and

                                              6
proceed to trial on her claim for Countrywide’s breach of the agreement for a 90-day

moratorium on her mortgage payments. Instead, she filed a second suit for breach of the

agreements made in the first case. That case proceeded to a final judgment that fully and

finally resolved the controversy relating to the breach of the settlement agreement

reached in the first suit. “A case becomes moot when it appears that a party seeks to

obtain judgment on a controversy when no controversy exists, or when a party seeks

judgment on a matter that cannot have a practical legal effect on a then existing

controversy.” Guidry v. Comm’rs Court of Jefferson Cnty., No. 09-11-00560-CV, 2012

WL 4017765, at *3 (Tex. App.—Beaumont Sep. 13, 2012, no pet. h.). Once a case

becomes moot, it must be dismissed. See City of Garland v. Louton, 691 S.W.2d 603, 604

(Tex. 1985).

      When the terms of a settlement are incorporated into a final judgment, the

agreement has the same degree of finality and binding force as one rendered by the court

at the conclusion of adversary proceedings. See Liberty Mut. Fire Ins. Co. v. Crane, 898

S.W.2d 944, 948 (Tex. App.—Beaumont 1995, no writ). Settlement terms not

incorporated in a judgment may be enforced by filing a suit asserting applicable claims

for breach of contract, fraud, or specific performance. See Compania Financiara Libano,

S.A. v. Simmons, 53 S.W.3d 365, 366 (Tex. 2001). The Supreme Court explained:

      Parties often choose to include terms of a settlement agreement in a final
      judgment so that they can be enforced as a judgment, but it is also true that
      parties often choose not to incorporate settlement terms in the final
      judgment. Indeed, parties often simply have the case dismissed and rely

                                           7
       entirely on their agreement for protection of their respective rights.
       Settlement terms need not be incorporated into a judgment to be
       enforceable.

Id. at 368. The terms of a mediated settlement agreement may be enforced as contract

rights regardless of whether they have been incorporated into a judgment. Id. at 367.

       Although the second suit’s settlement agreement is enforceable as a contractual

agreement, an enforcement action must be based on proper pleading and proof. See

Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex.1983) “[A] claim for

breach of settlement agreement is subject to the established procedures of pleading and

proof.” Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Staley v. Herblin,

188 S.W.3d 334, 336-37 (Tex. App.—Dallas 2006, pet. denied) (“To allow enforcement

of a disputed settlement agreement simply on motion and hearing would deprive a party

of the right to be confronted by appropriate pleadings, assert defenses, conduct discovery

and submit contested fact issues to a judge or jury.”). Parties are entitled to have their

cases decided on the merits. Staley, 188 S.W.3d at 336-37.

       Generally, Texas Rule of Civil Procedure 13 does not support a trial court

imposing sanctions relating to filings by a party in other lawsuits. See Michels v. Zeifman,

No. 03-08-00287-CV, 2009 WL 349167, at *3-4 (Tex. App.—Austin Feb. 12, 2009, pet.

denied) (mem. op.). None of the documents that are the basis of sanctions were signed or

filed by Bank of America in the third lawsuit. And “[o]bligations that are merely

                                             8
contractual cannot be enforced by contempt.” In re Coppock, 277 S.W.3d 417, 420 (Tex.

2009).

                                   ADEQUATE REMEDY

         “The adequacy of an appellate remedy must be determined by balancing the

benefits of mandamus review against the detriments.” In re Team Rocket, L.P., 256

S.W.3d 257, 262 (Tex. 2008). Crutchfield argues that because relators have not shown

that the sanctions imposed would prevent relators from defending this litigation,

mandamus relief must be denied. See Braden v. Downey, 811 S.W.2d 922, 929 (Tex.

1991). The trial court has determined the merits of Crutchfield’s breach of contract claim

in a pre-trial order. The relator was ordered to pay pre-trial for having breached the

settlement agreement. If Bank of America prevails at trial, it will have already paid, and

if it loses at trial it will pay again. An eventual appeal cannot cure the error or preserve

Bank of America’s right to have the merits of this lawsuit determined in a proceeding in

compliance with the Rules of Civil Procedure. See Travelers Indem. Co. of Conn. v.

Mayfield, 923 S.W.2d 590, 595 (Tex. 1996) (orig. proceeding) (An order that so skews

the litigation process that the party benefitting from the imposition of the sanction has

little incentive to resolve the dispute economically and efficiently cannot be adequately

remedied by appeal.).

         We conclude the trial court abused its discretion, and relators have no adequate

remedy by appeal. The petition for writ of mandamus is therefore conditionally granted.

                                             9
We are confident that the trial court will promptly vacate its order. The writ of mandamus

shall issue only if the trial court fails to comply.

       PETITION CONDITIONALLY GRANTED.

                                                              PER CURIAM

Submitted on September 14, 2012
Opinion Delivered October 11, 2012

Before McKeithen, C.J., Gaultney and Kreger, JJ.

                                               10


456 F.2d 15
Roscoe T. SCHAFER, Trustee for the Estate of Gibson Productsof Durango, Inc., a Colorado corporation, abankrupt, Appellee,v.Charles HAMMOND, Appellant.
No. 71-1380.
United States Court of Appeals,Tenth Circuit.
March 14, 1972.

John W. Overholser, Montrose, Colo., for appellee.
Donald P. MacDonald, Denver, Colo., for appellant.
Before SETH and BARRETT, Circuit Judges, and MECHEM*, District Judge.
BARRETT, Circuit Judge.

1
Roscoe T. Schafer, trustee in bankruptcy for Gibson Products of Durango, Inc., a Colorado corporation, brought this action against Dr. Charles Hammond, Lester E. Kelgard and Gertrude Richards to recover assets of the corporation for the benefit of its creditors under Section 67d(2) (a) of the Bankruptcy Act.  The property in question is a tract of land in Durango know as the "By-Pass" property.  The lower court dismissed Mrs. Richards as a party defendant for want of jurisdiction and entered judgment against Hammond and Kelgard in ruling that the "By-Pass" property is a part of the bankrupt's assets.  Dr. Hammond presents these issues on appeal:

2
1. Whether there was substantial evidence to support the finding that the bankrupt, Gibson Products of Durango, Inc., was insolvent on the material dates in question.

3
2. Whether the Court violated Mrs. Richards' right to due process in holding that she was not a bona fide purchaser of the "By-Pass" property when it did not have jurisdiction over her person.

4
3. Whether there was substantial evidence to support the finding that Dr. Hammond was not a bona fide purchaser.

5
4. Whether there was substantial evidence as a matter of law to grant the relief under Section 67d(2) (a) of the Bankruptcy Act.

6
The facts are basically not in dispute.  Lester Kelgard was the principal stockholder of Gibson Products of Durango, Inc., its president and manager.  The unimproved "By-Pass" property was acquired by the bankrupt on December 7, 1965 from I AM, INC. for $10,000 as a possible new site for the bankrupt's store.  As part of a plan to gain financing for the building construction, the property was conveyed by the bankrupt to Mrs. Richards, Lester Kelgard's mother, in exchange for $10,000 of par value stock of the Gibson store which Mrs. Richards owned.  This transfer was not approved at a stockholders' meeting of the bankrupt and only Lester Kelgard's signature appeared on the conveyance.  This transfer was effected on March 7, 1967.  The Gibson franchise for the Durango store had been revoked the previous day. The involuntary petition in bankruptcy was filed on April 10, 1967.

7
On April 3, 1967, Mrs. Richards contacted Dr. Hammond by telephone.  He agreed to purchase the "By-Pass" property.  He was to pay $2,000 down and execute a note for $8,000.  He accepted a warranty deed from Mrs. Richards without checking the title.  A receipt for the $2,000 down payment and the $8,000 note was executed on May 19, 1967 but backdated to April 3, 1967.  Gibson Products of Durango, Inc. was adjudged a bankrupt on April 26, 1967.  The value of the property was disputed but the trial court found, and we agree, that the value of the property was about $18,000.

Insolvency

8
Section 67d(1) (d) of the Bankruptcy Act defines insolvency as: "* * * a person is 'insolvent' when the present fair salable value of his property is less than the amount required to pay his debts; * * *".  The record discloses that the corporation's liabilities during March and April of 1967 exceeded $170,000.  Lester Kelgard's estimate of the value of the bankrupt's assets was $167,000.  However, the bankrupt's own bookkeeper valued its assets at only $114,385.75.  The inventory taken by Trustee Schafer disclosed the value of the assets at $96,885.75.  There is evidence that the bankrupt was having trouble paying its current bills for a period of several months before the involuntary bankruptcy proceedings were commenced.  Kelgard testified that he had informed his mother that the company was having trouble meeting its obligations.

Mrs. Richards

9
Dr. Hammond argues that the court did not have jurisdiction over Mrs. Richards and that any judgment affecting her property interests is without due process.  Without deciding whether he has standing to raise this issue, we hold that the lower court had jurisdiction over the property in question.  Under Section 67d(2) (a) of the Bankruptcy Act, any transfer of property by a debtor within one year of the filing of a petition in bankruptcy is fraudulent as to creditors existing at that time if the transfer is made without fair consideration and if the debtor is insolvent.  The title to property transferred in violation of Section 67d(2) (a) is held by the trustee.  He is obligated to recover the property from anyone who is not a bona fide holder for value.  Schneider v. O'Neal, 243 F.2d 914 (8th Cir. 1957).  The lower court held that Mrs. Richards' stock in Gibson's Products was worthless at the time the "By-Pass" property was conveyed by the corporation to her.  There is substantial evidence in the record to support this finding.  The transfer was not made for good and adequate consideration.

Dr. Hammond

10
We see no reason for Dr. Hammond to be treated any differently than Mrs. Richards.  Dr. Hammond was a friend of Lester Kelgard.  He had been a house guest of Kelgard at times when Mrs. Richards was staying with her son.  Dr. Hammond, on at least one occasion, had viewed the "By-Pass" property with Kelgard.  They had discussed the use of the property as a site for a new Gibson's store.  Dr. Hammond had worked at the Gibson store of Durango and was familiar with its operation.  Mrs. Richards telephoned Dr. Hammond in California and offered him the "By-Pass" property.  He agreed to purchase the property for $10,000.  Dr. Hammond paid $2,000 down and some time later he received a warranty deed.  He then executed a promissory note to Mrs. Richards for the remainder of the purchase price in the amount of $8,000.  The note and receipt for the down payment were backdated to a period of seven days before the bankruptcy petition was filed.  Dr. Hammond prepared a deed of trust for Mrs. Richards' benefit, without her request, knowledge or acceptance.  Considering the unusual facts of the sale, the inadequate purchase price, the lack of a title search or title insurance, we hold that the lower court was more than justified in ruling that Dr. Hammond was not a bona fide purchaser.

Section 67d(2) (a)

11
Under Section 67d(2) (a) of the Bankruptcy Act, in order to nullify a transfer a trustee must prove that there was a transfer without fair consideration by a debtor who was or thereby became insolvent as a result of the transfer with creditors in existence at the time of the transfer.  There is substantial evidence in support of the trial court's findings that the transfer of Mrs. Richards' stock in the insolvent Gibson corporation was not fair consideration to support the corporation's conveyance of the "By-Pass" property to her; that the $10,000 which Dr. Hammond agreed to pay for the "By-Pass" property was not a fair consideration in light of the assessed value of $18,000; that Gibson's Products of Durango, Inc., had been in financial trouble for several months prior to the bankruptcy filing; that the corporation had debts of $170,000 and assets of only about $100,000, and was insolvent.  There were many creditors who had an interest in the assets of the bankrupt.

12
The trial court's findings of fact are not to be disturbed unless clearly erroneous.  Scaramucci v. Dresser Industries, Inc., 427 F.2d 1309 (10th Cir. 1970).  We are satisfied that the trial court's findings are supported by substantial evidence.

13
We affirm.

*
 Of the District of New Mexico, sitting by designation


251 U.S. 259 (1920)
SOUTHERN PACIFIC COMPANY
v.
INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA ET AL.
No. 118.
Supreme Court of United States.
Submitted December 18, 1919.
Decided January 5, 1920.
CERTIORARI TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.
Mr. Henley C. Booth and Mr. William F. Herrin for petitioner.
Mr. Christopher M. Bradley and Mr. Warren H. Pillsbury, for respondents, contended that writ of error was the proper remedy and that certiorari would not lie.
On the merits.
*262 MR. JUSTICE McREYNOLDS delivered the opinion of the court.
William T. Butler, husband of respondent Mary E. Butler, was killed at Oakland, California, while employed by the Southern Pacific Company as an electric lineman. The Supreme Court of the State affirmed an award rendered by the California Industrial Commission against the company, and the cause is properly here by writ of certiorari.
The fatal accident, which occurred June 21, 1917, arose out of and happened in the course of deceased's employment. He "received an electric shock while wiping insulators, which caused him to fall from a steel power pole, producing injury which proximately caused his death." At that time the company, a common carrier by railroad, maintained a power house at Fruitvale, California, where it manufactured the electric current which moved its cars engaged in both interstate and intrastate commerce. From the generators this current passed along main lines or cables, through a reduction and transforming station, to the trolley wires, and thence to the motors. When he received the electric shock, deceased was engaged in work on one of the main lines necessary to keep it in serviceable condition. If such work was part of interstate commerce, the Workmen's Compensation Act of the State is inapplicable and the judgment below must be reversed. Otherwise, it must be affirmed. Employers' Liability Act, *263 April 22, 1908, c. 149, 35 Stat. 65; New York Central R.R. Co. v. Winfield, 244 U.S. 147; New York Central R.R. Co. v. Porter, 249 U.S. 168.
Generally, when applicability of the Federal Employers' Liability Act is uncertain, the character of the employment, in relation to commerce, may be adequately tested by inquiring whether, at the time of the injury, the employee was engaged in work so closely connected with interstate transportation as practically to be a part of it. Pedersen v. Delaware, Lackawanna & Western R.R. Co., 229 U.S. 146, 151; Shanks v. Delaware, Lackawanna & Western R.R. Co., 239 U.S. 556, 558; New York Central R.R. Co. v. Porter, supra; Kinzell v. Chicago, Milwaukee & St. Paul Ry. Co., 250 U.S. 130, 133.
Power is no less essential than tracks or bridges to the movement of cars. The accident under consideration occurred while deceased was wiping insulators actually supporting a wire which then carried electric power so intimately connected with the propulsion of cars that if it had been short-circuited through his body, they would have stopped instantly. Applying the suggested test, we think these circumstances suffice to show that his work was directly and immediately connected with interstate transportation and an essential part of it.
The judgment of the court below is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE CLARKE dissents.


                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1714
                         ___________________________

                      David Lynn Jones; Skunk Deville Music

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

              West Plains Bank & Trust Company; Roger Thompson

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                    Appeal from United States District Court
                 for the Eastern District of Arkansas - Batesville
                                  ____________

                           Submitted: September 21, 2015
                             Filed: December 28, 2015
                                  ____________

Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
                              ____________

BYE, Circuit Judge.

       David Lynn Jones, a singer and songwriter doing business as Skunk Deville
Music, sued West Plains Bank and Trust Company (West Plains Bank) and Roger
Thompson for copyright infringement and conversion. The district court granted West
Plains Bank's and Thompson's motion to dismiss Jones's claim for copyright
infringement and denied Jones's motion for leave to file an amended complaint. The
district court then entered final judgment dismissing with prejudice the copyright
infringement claim under Rule 54(b) of the Federal Rules of Civil Procedure.1

      We conclude the district court abused its discretion by entering final judgment
under Rule 54(b). We dismiss this appeal for lack of jurisdiction.

                                           I.

       This case arises out of the sale of audio tapes at a public foreclosure auction.
From 1993 to 2002 or 2003, Jones recorded over one hundred and fifty songs on
approximately twenty reels of recording tape, using two pieces of recording
equipment: an Otari MX-80 recorder and an Otari CB-120 S auto locator and stand.
At least thirty-nine of the songs recorded on the recording tapes are registered to Jones
and Bluewater Music Corporation as performing arts copyrights. Jones and Bluewater
also executed an "Exclusive Songwriter Agreement" in April 1991, under which Jones
assigned to Bluewater all copyrights to his new and prior compositions in exchange
for future royalties and payments for the tracks.

       In 2009, Jones gave his recording equipment and recording tapes to Bobby
Roberts, a recording engineer who owned a recording studio, so Roberts could convert
the recordings from analog to digital format. In 2011, Roberts defaulted on a loan
from West Plains Bank that was secured by the recording studio and equipment at the
studio. West Plains Bank took possession of the equipment at Roberts's studio,
including Jones's recording equipment and recording tapes, even though Roberts
alleges he told the bank that the equipment and tapes belonged to a customer.

      1
        The district court also certified its order regarding the proper measure of
damages for Jones's conversion claim for an interlocutory appeal under 28 U.S.C.
§ 1292(b). Jones, however, has not appealed this issue, and we decline to exercise
discretionary jurisdiction under 28 U.S.C. § 1292(b).

                                          -2-
      West Plains Bank sold the equipment and the tapes to Roger Thompson at a
public foreclosure sale in August 2011. Following the sale, Jones sent numerous
demands to West Plains Bank and Thompson to return the equipment and tapes. West
Plains Bank and Thompson refused. Neither West Plains Bank nor Thompson ever
copied, sold, or performed any of the recordings.

       On June 6, 2012, Jones filed a complaint against West Plains Bank and
Thompson, asserting claims for copyright infringement and conversion. In March
2014, West Plains Bank and Thompson filed a motion to dismiss the copyright
infringement claim, arguing Jones failed to state a claim for copyright infringement
because he had not applied for or registered sound recording copyrights for the tapes
at the time he filed the lawsuit. The district court granted the motion to dismiss the
copyright infringement claim on the grounds that copyright registration is a
pre-condition for filing a copyright infringement claim and Jones, by his own
admission, had not registered his claimed copyrights.

      Five days later, Jones received sound recording copyright registrations for a
number of songs on the tapes. Jones subsequently filed a motion for reconsideration
of the order granting the motion to dismiss, arguing the district court erred by
dismissing the copyright infringement claim because Jones had previously held
performing arts copyright registrations for the songs on the tapes, and his newly
acquired sound recording copyright registrations also related back to the date the
songs were created.

       The district court denied Jones's motion for reconsideration. The district court
held that Jones could not state a claim for copyright infringement because Jones did
not allege the defendants reproduced or copied the original compositions, merely that
they possessed the recordings. Since Thompson's mere possession of the recordings
did not interfere with Jones's exclusive rights under the Copyright Act, the district

                                         -3-
court reasoned that the "necessary element of copying" for a claim of copyright
infringement was missing.

        Jones then filed a motion for leave to file a first amended complaint, within the
time the district court allowed to file amended pleadings. Jones's proposed first
amended complaint still asserted claims for copyright infringement and conversion,
but it included additional factual allegations and also listed as a basis for the copyright
infringement claim the sound recording copyrights that Jones obtained while this
litigation was pending. The district court denied the motion for leave to file a first
amended complaint on the grounds that it had already addressed the copyright claim
and the issues the proposed amended complaint raised.

         Jones moved for entry of judgment on the copyright infringement claim under
Rule 54(b) of the Federal Rules of Civil Procedure. The district court granted Jones's
request and certified its order denying Jones's motion for reconsideration and
subsequent motion for leave to file an amended complaint as a final and direct entry
of judgment under Rule 54(b). This appeal followed. Jones's claim for conversion
is still pending before the district court.

                                            II.

       Before addressing the merits of an appeal, we are required to independently
consider our jurisdiction. Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d
1115, 1118 (8th Cir. 2011). While parties may typically appeal only final orders that
dispose of all claims, Rule 54(b) of the Federal Rules of Civil Procedure allows a
district court to enter a final judgment on fewer than all claims if the court determines
there is no just reason for delay. Fed. R. Civ. P. 54(b).

      "Rule 54(b) is to be used sparingly . . . ." Alpine Glass, Inc. v. Country Mut.
Ins. Co., 792 F.3d 1017, 1020 (8th Cir. 2015). To grant Rule 54(b) certification, the

                                           -4-
district court "must first determine that it is dealing with a 'final judgment'" that
disposes of a claim. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980).
Next, the district court must determine there is "no just reason for delay," considering
"both the equities of the situation and judicial administrative interests, particularly the
interest in preventing piecemeal appeals." Williams v. Cty. of Dakota, 687 F.3d 1064,
1067 (8th Cir. 2012) (quotation omitted). "Certification should be granted only if
there exists some danger of hardship or injustice through delay which would be
alleviated by immediate appeal." Id. (quotation omitted).

       We review a district court's decision to grant Rule 54(b) certification for abuse
of discretion. Id. Generally we defer to the district court's decision to certify a final
judgment under Rule 54(b) because the district court is "most likely to be familiar
with the case and with any justifiable reasons for delay." Clark v. Baka, 593 F.3d 712,
715 (8th Cir. 2010) (per curiam) (quotation omitted). But the district court must
properly "weigh and examine the competing interests involved in a certification
decision." Williams, 687 F.3d at 1068 (quoting Hayden v. McDonald, 719 F.2d 266,
268 (8th Cir. 1983) (per curiam)).

       In this case, the district court did not properly weigh the Rule 54(b) factors
when it entered judgment on the copyright infringement claim. The court reasoned
that Rule 54(b) certification was proper "[b]ecause Jones's damages are based
significantly on statutory damages for copyright infringement" and therefore a
piecemeal appeal would "serve the needs of the parties" and likely avoid a trial if this
Court affirmed the district court's order dismissing Jones's copyright infringement
claim. But we do not assume jurisdiction under Rule 54(b) "as an accommodation to
counsel . . . unless there is some danger of hardship or injustice which an immediate
appeal would alleviate." Taco John's of Huron, Inc. v. Bix Produce Co., LLC, 569
F.3d 401, 402 (8th Cir. 2009). The district court cited no hardship or injustice which
would result if Jones is not able to immediately appeal the order dismissing his
copyright infringement claim, and none is apparent from the record.

                                           -5-
        Even if we accepted as a valid Rule 54(b) factor the interest in avoiding further
litigation, it is not apparent that accepting jurisdiction and reaching the merits of
Jones's appeal would further this interest. If we reversed the district court's order
dismissing Jones's claim for copyright infringement, further litigation would
obviously proceed. And even if we affirmed the district court's order dismissing
Jones's claim for copyright infringement, his conversion claim would remain. Prior
to this appeal, the district court entered an order determining the measure of damages
for Jones's conversion claim, and the district court predicts a trial on the conversion
claim is unlikely because it is "highly questionable" Jones will be able to establish
damages for conversion. But Jones has not appealed the district court's measure of
damages for conversion, even though the district court certified this issue for
interlocutory appeal under 28 U.S.C. § 1292(b). Therefore, there remains a chance
that even if we accept the Rule 54(b) certification and address the merits of this
appeal, Jones will later appeal the measure of damages for conversion, which would
create precisely the type of piecemeal appeal we seek to avoid.

       We conclude the district court abused its discretion when it granted Rule 54(b)
certification on Jones's claim for copyright infringement. Therefore, we lack
jurisdiction to reach the merits of this appeal.

                                          III.

      For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.
                      ______________________________

                                          -6-