*1 find no harm admission of tape the contemporaneous entire without
limiting instruction or the denial of the jury
requested instruction. We overrule final issue.
appellant’s
IY. Conclusion
Having appellant’s argu- overruled all of
ments, we affirm. CARE,
KINGWOOD HOME HEALTH Health
L.L.C. Solutions d/b/a Health, Appellant
Home
AMEDISYS INC. d/b/a Ltd.,
Texas, Appellee.
No. 14-11-00368-CV. Appeals
Court of Dist.). (14th 26, 2012.
Rehearing Aug. Overruled *2 Background
I. its em- Amedisys two of former sued several causes ployees and KHHC for arising from the former allegedly action employment with employees’ acceptance of with Amedisys ultimately settled employees. its former below, KHHC described in detail As Amedisys to settle a written offer to $90,000.1 Amed- exchange for claims Amedisys isys KHHC letter which sent acceptance of all constituted contends Thereafter, in the written Houston, Williard, Ap- for Steve Martin pay Amedisys and filed refused to pellant. Amedi- of consent to settle. withdrawal a claim sys asserting its petition, amended Pector, Houston, Appellee. for
Michelle purported breach of the against KHHC for agreement. FROST, Panel consists Justices SEYMORE, and JAMISON. Amedisys a traditional motion filed breach
summary judgment on its claim for re- In its of the settlement OPINION motion, ar- sponse Amedisys’s SEYMORE, W. Justice. CHARLES timely gued it withdrew consent summary certain affirmative defenses. granted judg- The trial court objected portions of KHHC’s Amedisys Home against Kingwood Health Febru- Care, summary-judgment evidence. On Health Solutions Home L.L.C. d/b/a (“KHHC”) Am- ary court sustained on Inc. Health d/b/a objections, evidentiary granted (“Amedisys”) edisys’s Ltd.’s claim issues, Amedisys’s summary judgment, motion for contract. In three for breach of pay and ordered KHHC contends the trial court erred parties’ striking pursuant judgment granting $29,274.12 attorney’s agreement and summary-judgment portions reverse remand. fees.2 evidence. We repeatedly made under Rule 167 "must not
1. In its non-monetary with was made in accordance and other stated include claims Chap- Practice & Remedies Code apply.” rule claims to which this does 167. ter 42 and Texas Rule of Civil Procedure 167.2(d). P. Tex.R. Civ. provide 42 and Rule 167 making an all mone- method for offer to settle Amedisys voluntarily one former 2. dismissed which, rejected, if claims between them and the oth- employee on December will the offeror to recover entitle employee February er on former awarded costs if to be Thus, judg- February significantly less favorable Amedisys became final on ment in favor of to the offeree than was the settlement offer. Amedisys’s February 2011 when generally Tex. Civ. Prac. Rem.Code remaining employee former were (West Supp. §§ 2008 & Ann. 42.001-42.005 dismissed. 2011); An Tex.R. Civ. 167.1-167.7. Summary Judgment Analysis II. B. issue, its first KHHC contends Amedisys presented the following *3 by granting Amedisys’s court erred summary-judgment proof evidence as judgment. for summary
motion Amedisys accepted the terms of KHHC’s
settlement offer. to Amed- isys Review and following language: included the A. Standard of Relevant Law Please this letter as an offer of regarding the above refer- summary We de judgment review enced matter. Specifically, [KHHC] Dorsett, Operating novo. Valence Co. v. this offer pay [Amedisys] makes (Tex.2005). 656, party 164 S.W.3d 661 A all monetary settle claims between the moving for traditional accordance with Texas Civil genuine must establish there is no of issue Practice & Chapter Remedies 42 Code judg fact he is entitled to and Texas Rule of Civil Procedure 167. as a law. matter of See Tex.R. Civ. makes KHHC this offer settlement at 166a(c); & Provident Accident Ins. Life (60) sixty (Tex. days least after Knott, KHHC has 211, v. 128 S.W.3d Co. 215-16 2003). appeared in this case. If right the movant establishes his judgment, burden shifts to KHHC makes this offer of settlement at nonmovant genuine to raise (14) least fourteen before days the case Centeq material fact. See Inc. v. Realty, is set for on conventional trial the mer- 195, (Tex.1995). Siegler, 899 197 S.W.2d its. must take true ah evidence favor Offer of Settlement to the every able nonmovant and draw offers to with Amedisys settle reasonable inference resolve all doubts following claims in accordance with in favor of the v. nonmovant. Mendoza Civil Practice & Remedies Code (Tex. Mart, 653, Fiesta 276 S.W.3d 655 Chapter 42 and Texas Rule of Civil Pro- 2008, App.-Houston pet. de [14th Dist.] 167: cedure nied). $90,000 offers a settle all claims or asserted which could
The foundational of a element by Amedisys against have been asserted breach-of-contract claim is the existence of above referenced case. Expro enforceable contract. See Amer This all m-one- icas, v. final Sanguine Exploration, LLC Gas full damages including attor- LLC, 915, 920 claimed — (Tex.App.-Hous neys fees, costs and interest that were filed). [14th ton To create Dist.] recoverable as this by date contract, an enforceable common-law there A lump-sum be a must clear and definite offer followed amount of will aby clear and definite in accor (15) days after ac- dance with the offer’s terms. Parker ceptance. Drilling Co., Supply Co. 316 Romfor 68, (Tex.App.-Houston Amedisys may
S.W.3d [14th of- 2010, denied); pet. Berg by serving Dist.] see also fer written notice KHHC’s Wilson, (Tex. 166, 2010, 172 S.W.3d n. 9 counsel before June which is at denied) (14) pet. App.-Texarkana days least after fourteen this offer <“[S]et- agreements governed tlement are con If is served. this offer is not law.”). p.m. tract by 5:00 on June it is Cnty. contract. v. Harris can serve as law Antonini rejected and
deemed (Tex. Dist., under Texas Appraisal costs S.W.2d basis for no pet.). App.-Houston [14th Dist.] Practice Remedies Procedure changes Texas Rule of Civil 42 and A an offer’s material terms consti- qualifies rather rejection tutes a and counteroffer your response, forward look Drilling, 316 acceptance. Parker than added). (emphasis are in “negotiations” at 74. When S.W.3d Amedisys sent KHHC response, *4 question whether offer writing, of containing following language: letter unconditionally accepted primarily 167.3(b) of the Texas to Rule Pursuant Antonini, 999 law for court. matter of Procedure, [Amedisys] of Rules at be exam- S.W.2d 611. Contracts should hereby Accepts [KHHC’s] offer case-by-case determine on a basis to ined against monetary asserted all claims terms are material or essential. which $90,000, for for the of KHHC 316 74. Drilling, Parker S.W.3d at lump sum shall which Amedisys by to KHHC tendered failed to argues Amedisys that days after acceptance. a material term of KHHC’s offer— accept you early contact next week I will that the would include namely, preparation and execution of discuss have asserted all claims could been memorial- that a settlement Amedisys contends its against KHHC. terms, necessary izes all “all monetary statement added). (emphasis offer be- was sufficient KHHC’s phrase “all cause the included Amedisys’s that argues However, monetary damages claimed.”4 of acceptance was not effective ignores contention the fact Amedisys did this the settlement because offered “to all claims assert- accept all material terms of the offer.3 KHHC settle not with the could been asserted.” acceptance An must be identical ed or which have added). Amedisys common- conclude binding (emphasis offer in order to make a offer, argue disagree. Amedisys may not of KHHC’s we In its contends KHHC letter, stated, Amedisys's appeal hereby time "[Amedisys] for the first the settlement offer of monetary Accepts all [KHHC’s] offer to settle However, may chal was ineffective. against (emphasis claims asserted KHHC.” legal lenge appeal first for the time on added). "settle,” The term as used sufficiency supporting Amedi- evidence context, Amedisys’s interpreted could be motion, supporting sys’s including evidence presently to release intent its of a McConnell v. the existence contract. See claims, monetary reserving right file 337, Dist., Indep. S.W.2d Southside Sch. 858 any monetary non- other One, N.A., 1993); (Tex. 218 342 Telia v. Bank underly stemming from the 109, (Tex.App.-Houston 118-19 [14th S.W.3d Infiniti, Inc. incident. Gunn 2007, pet.). challenge to the no Dist.] “[A] (Tex.1999) O’Byrne, 996 S.W.2d sufficiency legal movant’s "im (explaining offeror's of term "settle” use regardless judgment proof challengeable plicitly explicitly required if [offeree] not responds whether the non-movant answers claims”); Baty v. ProTech release his see also summary judg- to the movant's motion for (Tex.App.- Agency, 63 Ins. S.W.3d Jacobs, ment.” Bustillos denied) [14th Dist.] (Tex.App.-San pet.). Antonio no (recognizing in a that claims not mentioned extent contends its lan 4. To the discharged). are not release guage acceptance of all was sufficient to effect all did terms of parties claims between the in accor- Drilling, offer. See Parker KHHC’s dance with Texas Civil Practice Rem- S.W.3d at 74.5 edies 42 and Texas Rule of Civil Procedure 167. Amedisys’s
Accordingly, letter was not a valid and the binding do not have Settlement Offer of agreement. We sustain KHHC’s first is- sue, reverse the trial court’s KHHC offers to settle with
judgment, remand pro- for further the following claims in accordance with ceedings.6 Texas Civil Practice & Remedies Code Chapter 42 and Texas Rule of Civil Pro-
JAMISON, J., dissenting. cedure 167: Justice, JAMISON, MARTHA HILL KHHC offers a total sum dissenting. settle all claims asserted or which could *5 have been by Amedisys asserted against The that majority holds because Amedi- in the above referenced case. validly did sys accept not KHHC’s settle- This full final and offer for all offer, is mone- in grant- the court erred tary damages including attor- ing summary judgment predicated on claimed— [sic], neys costs, fees and interest that breach of the purported agree- settlement were recoverable as date of the of this ment. I would Because hold that Amedi- by offer A did, lump-sum payment in fact, offer, sys validly the the amount be will made respectfully dissent. (15) days
KHHC within fifteen after ac- Offer ceptance. your please If client agrees, by affixing indicate so your signature In his setting June 2010 letter forth below returning to me. the terms of the settlement KHHC’s Amedisys may accept counsel stated as follows: this settlement offer by serving written notice on RULE 167 STATUTORY OFFER OF KHHC’s counsel before June SETTLEMENT (14) days which is at least fourteen after this offer is served.... Please this letter an offer of as regarding settlement the above refer- Acceptance client, Specifically, my enced matter. pay your makes this offer In response,
[KHHC] to counsel for sent client, ... all Amedisys, following to settle mone- the email on 2010: argues party rejects or also that it all the terms of an modifies terms of offer KHHC's because did only party objects offer specifically when the object specifically any not to terms of the Moreover, to the proposition terms. such is 167.2(c) (providing offer. See Civ. Tex.R. law inconsistent with well-settled that an object may offeree that con- unreasonable the is formed when offeree ditions of offeror's Rule 167 of settle- offer accepts all material terms of an ment, subject made to a "an offer condi- tion determined the trial court to have remaining 6. We need consider KHHC's been unreasonable cannot be the basis for an issues because our resolution of KHHC's first rule"). award of costs under this dispositive appeal. However, Amedisys any does not cite authori- ty supporting proposition respond- a Drilling Co. v. E.g., Parker Amedisys’ accep- offer’s terms. please find
Attached Co., you Supply sent tance Romfor me (Tex.App.-Houston [14th Dist.] 167. Please let Rule pursuant denied). Monday A you when are available know changes qualifies offer’s terms of to discuss the counter- rejection constitutes acceptance. Id. at 74. offer rather than was a letter from to the email Attached in which stated: counsel she counsel, Amedisys’ The from responses 167.3(b) of to Rule Pursuant letter, and the attached both the email Procedure, [Amedisys] of Civil Rules “[accept] intention indicate a clear offer to settle hereby Accepts [KHHC’s] sent,” offer [KHHC’s counsel] all offer” in “hereby Accept and to [KHHC’s] $90,000, for The accordance with offer’s terms. shall lump sum responsive highlight- language Amedisys by tendered opinion best viewed majority ed days acceptance. after to the merely a shorthand reference on behalf KHHC. Discussion ref- own counsel made similar shorthand majority The holds that coun- of his beginning erence the offer at the accep- response did not constitute an sel’s letter, makes this offer stating “[KHHC] *6 was a counter-offer be- tance but instead ... between monetary settle all acceptance failed to cause the parties.” again the KHHC’s counsel term, specifically that accept a material in the the such a reference letter under include all claims the settlement would stating heading, “Offer of Statement” could been included have final offer for all mone- full and is “[t]his majority’s reading, the KHHC. Under the claimed.” coun- damages phrase the “all use of responded the offer unconditionally sel rejec- in response the indicated used using language the same and similar disagree. tion of the offer. I Additionally, in in the the reference offer. Proce- the to Texas Rule of Civil response It that to create an en- is well-settled 167.3(b) contract, further counsel’s there must a clear dure evidences forceable by a than re- followed clear and intent to offer rather and definite offer it There is no ject and counter-offer.1 acceptance in accordance with definite statute, by the served the offeror passed written notice 1. The of settlement designed liti- in the When an offer was as an incentive for deadline stated may file gants accepted, the offeror to make and reasonable settle- or offeree may early process. move ment offers offer and Ltd.., CompleteRx, In re court to enforce the settlement. h.). 167.3(b). no (Tex.App.-Tyler pet. was procedure That Tex.R. Civ. mechanism, legislature timely When the created this gave written followed here. KHHC, Supreme it also the Texas Court to directed filed the notice of its promulgate providing procedural rules acceptance and moved the court offer and response, implementation. for its details enforce the supreme adopted Texas Rule of Civil 167.3(c) court specifies a settlement Rule how 167.3(b) (written Procedure 167. Id. at 322-23. Rule rejected thereof to be notice accepted: specifies how is to be an offer written or failure to serve served on offeror procedure not fol- Acceptance acceptance). That was An offer that has not of offer. lowed here. been withdrawn can be response indication that material NATH, M.D., Rahul K. Appellant being challenged, qualified, were
changed.2 TEXAS HOSPITAL, CHILDREN’S disagree I that the trial court erred in Appellee
granting summary judgment because no agreement was reached be- Nath, M.D., Rahul K. Appellant tween Amedisys. KHHC and I believe law, that as a matter Baylor College Medicine, Appellee. reached between parties. Accordingly, 14-11-00034-CV, No. 14-11-00127-CV. proceed would to address KHHC’s re- Court of Appeals of maining grounds issues and for reversal.3 (14th Dist.). *7 42.001(6). It is unclear whether § KHHC’s offer to settle Infiniti, Gunn Inc. v. all claims "which could have been (Tex. 1999), O’Byrne, 996 S.W.2d cited proper under Rule 167.2. See Elaine A. majority, supports Amedisys’ position that Carlson, The New Texas Settlement it Offer of settlement offer. "When Steps Practice—The Newest in the Tort differences, parties agree Reform to settle their this is Dance, (Texas) (2008) 44 The Advoc. commonly fully resolving understood as those (raising regarding whether a Rule 167 differences.” Id. at 860. properly offer could cover claims pleaded at the time of the offer and stat- grounds 3. As additional for reversal of the question "[t]his awaits clarification summary judgment, Kingwood argued that courts”). (1) it withdrew its consent to the settlement judg- before the trial court entered majority suggests 2. The use of (2) agreement; present- ment based on the it word "settle” interpreted could be as "re establishing serving right” question ed evidence of fact on to sue KHHC on other However, fraud, affirmative claims. defenses of the term fraudulent in- “settlement offer” ducement, consideration; is defined in and failure of Civil Practice and Remedies 42.001(6) (3) Code section granting as "an offer the trial court erred in certain of compromise Amedisys’ objections a claim compliance Kingwood’s summary made in chapter.” with Tex. Civ. Prac. & Rem. evidence.