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Hewitt v. Biscaro

Court of Appeals of Texas, Dallas
353 S.W.3d 304 (Tex. App. 2011)


Biscaro, et al. (plaintiffs) brought suit against Richard M. Hewitt and his company (defendants), alleging violations of the Texas Securities Act, among other things. During the suit, the parties signed a Settlement Agreement and Release, which required the defendants to pay the plaintiffs in installments a total of $1.3 million. After paying about $400,000, the defendants stopped paying. At this time, the plaintiffs amended their pleading to include a claim for breach of the settlement agreement. Hewitt signed an affidavit asserting that he had met with staff of the Securities and Exchange Commission (SEC) and that they had instructed him to cease making payments under the settlement agreement until the SEC completed its investigation into the matter. Thus, at trial, the defendants asserted an affirmative defense of impracticability or impossibility of performance. The plaintiffs filed a motion for summary judgment on the settlement agreement breach claim and the trial court granted the motion. The defendants appealed.

Rule of Law


Holding and Reasoning (Fillmore, J.)

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