*1 MURPHY, Before SEARS and DRAUGHN, JJ.
MAJORITY OPINION SEARS, Justice. appeal question of wheth-
This involves the agreement, pursuant pend- er a settlement ing litigation, is enforceable under contract the re- law when does quirements of Tex.R.Civ.P. 11. Under the facts of this we hold that it cannot be a contract. enforced as sued and others for Appellees injuries personal sustained in an automobile driving pick-up Appellant accident. was intoxicated and crossed the cen- truck while striking car ter line of the road contain- family. LaFrance ing the LaFrance Ruth killed, seriously LaFrance was Ernest was LaFrance, attorney, injured, and Michelle injury head and is severe- sustained severe damaged. ly permanently She is brain currently permanent vegetative state. family appellant, and The LaFrance sued others, defendant is the appellant and appeal. The negoti- appellees into settlement entered ations, hotly dispute consummated. *2 by payee checks. Bradshaw con- insured Farm Mu- on one of the Appellant was State Steidley’s he informed one of em- Company, tends that tual Automobile Insurance and his ployees that there was a medical Ken still by adjuster, Phil claim was handled their outstanding that needed to be resolved be- attorney Farm retained Bradshaw. State settle. In the late fore the could original Brian Chandler to defend the law- 23, 1991, April which was lawsuit, afternoon of During pendency suit. of the Steidley, Bradshaw faxed deadline set ex- series of letters and memoranda were Steidley read in full: memorandum to changed Bradshaw Chandler and/or attorney, Jeffrey Steidley, confirm our settlement appellees’ re- This wiU 4/18/91, whereby Farm of State garding of ment possible settlement limit set $40,000.00. agreed poKcy to meet the demand claim for the limit of your out in letter of 4/10/91. 10, 1991, April Steidley sent an “offer On thing holding up resolution of this is the to settlement” Chandler which stated hospital Ken re: MicheUe. I await word pertinent parts as follows: you regarding the I from Ken so know [sic] At this time we make demand the for payable. whom to make drafts $40,000.00 policy limits of for full and final Steidley responded day the same with the against of this settlement ease the insured foKowing: you represent. Payment of this sum This letter will confirm that the above Tuesday, should be made or before for all referenced matter has been settled April by delivery p.m., 1991 at 5:00 limits, appKcable poKcy which have been appropriate cheeks amounts to the $40,000.00. represented to us to be Please undersigned payable offices of the made above forward settlement checks following following amounts and to the agreed referenced matter. This office wiK payees: [sic] [the to take care Ken filed $20,000.00 One check the amount of hospital] out of the funds for- settlement Madeleine LaFrance as next friend of Mi- by your [sic] wared office. Steidley. chelle LaFrance and Oliver N. Bradshaw claims he did not see the re- $20,000.00 One check the amount of sponse until he to his letter returned office LaFrance, payable to Ernest J. Mar- foKowing day, April April 1991. On Luther, Marilyn Koenig, lene Madeleine 30, 1991, requested apparently Chandler Steidley, LaFrance and Oliver N. their Steidley Steidley extension of time from attorneys of record. refused to extend the offer. On that same n n n n n n day, Chandler tendered two checks to the although Please be advised that I will be appellant along with another settlement happy more than discuss case with agreement. Steidley accept refused to you your representatives, no oral agreement. sign checks or to Chandler may discussion that we have will serve Steidley’s April subsequently copy sent a expressed alter the time limits in the cor- office, 23rd letter to the district clerk’s re- respondence. receipt look forward to of questing that the letter be filed with the specified, the checks on or before date papers of the cause. failing which this offer to settle will be AppeKant subsequently filed a cross-action my proceed
withdrawn and clients will lawsuit, contending in the that the perfect rights under Texas law.... parties had entered into a contract and he (emphasis original). Appel- sued for enforcement of the contract. adjuster, summary judgment As the insurance Bradshaw con- lant filed a motion for Steidley regarding tacted the settlement of- wherein he contends fer, him, contract, offer, complete requested documentation from ment was AppeKees re- including acceptance, a death certificate of Ruth LaF- and consideration. regarding sponded by answering rance and information her estate. the cross-action 15, 1991, Steidley moving Ap- of that action. On sent a letter to for a severance peKees summary judg- Bradshaw which allowed an alteration of the also filed a motion for Cothron, cross-action, contending it the court held: “Because there ment based on the requirements of genuine failed to with the of material fact as to the is a issue 11, and, that no contract existed as a formation of a we do not determine of law. matter procedural requirements of Rule whether the equity demands 11 were met or whether *3 granted appellees’ trial court motion The require procedural even if the enforcement summary judgment grounds on the that Cothron, 11 not met.” ments of Rule were support a lack of consideration to there was the 843 at 265. The court reversed contract, and, S.W.2d legally that no en- there was granting summary judgment agreement trial court’s of a forceable Rule 11 as a matter of appellant’s solely genuine law. trial court also denied on the existence of “a based summary judgment par on the motion for material fact as to whether the issue of grounds that there was a fact issue concern- agreement.” ties entered into a settlement contract, ing performance of the there was though dealing not Id. Even the court was contract, for the insufficient consideration issue, in is with this it stated dicta: “This and, that as a the contract matter law was governed settlement because legally not Rule 11. sufficient under by This is the contract law.” Id. at 263. by of law is relied on the statement which error, points appellant In six contends authority for that appellant. the granting appel- that in court erred Interna statement was Adams v. Petrade summary judgment motion for and in lees’ tional, 696, (Tex.App.— 715 754 S.W.2d denying his motion. He contends there is a denied). 1988, writ [1st Dist.] Houston fact issue as to whether agreement on contract is enforceable based reading A Adams reveals that the set principles. Appellees bring cross-points six Adams agreement tlement involved they challenge court’s of error which prior litigation. ease was entered into jurisdiction, contending transcript that Further, 11, discussing that court Rule timely previously was not filed. This court held: “... and an oral settlement appellant’s found that motion for reconsider- litigation prior to the initiation of equivalent trial court ation was added). provisions.” (emphasis to its trial, appellant a motion for new that Adams, Clearly 754 at 715. the set S.W.2d extended, time table was and that the tran- agreement in Adams was controlled tlement script timely filed. All of was it entered into contract law because was cross-points are overruled. litigation, apply Rule 11 does not prior to appellant’s points of error Because all of pre-litigation agreements. The Cothron deal with his belief that the settlement relied on Hernandez v. opinion Aviation also contract, ment is enforceable as a we will Telles, 91, (Tex.App. Paso 663 S.W.2d 93 — El points all the of error at one time. deal with writ). case, 1983, no Like the Adams upon basic statement of law an en Hernandez ease involved is: “The law of con which relies litigation. prior into tered governs agreements.” In tracts later rene had a contract of sale law, statement of the of this broad gotiated contract and the first into second eases. Avia cites several Cothron effectively was cancelled. Subse contract tion, Corp., Inc. Avco brought on the first quently, when suit was denied); (Tex.App. writ Worth — Ft. “agree of the second the existence Ortega-Carter International v. American by contract was established ment” 439, 442 Adjustment Company, 834 S.W.2d apply. Again, Rule 11 did not denied); (Tex.App. writ Stew — Dallas upon by the opinion relied The second (Tex.Civ. Mathes, 116, 118 art v. 528 S.W.2d Ortega-Carter case. appellants is the 1975, writ); Massey v. App. no — Beaumont summary judgment based on that Galvan, (Tex.App. denied). upheld was withdrawn settlement 1992, writ A Dist.] —Houston[14th Ortega-Carter “did not raise de- important of these cases is discussion agreement.” misplaced. fense to the Rule appellant’s that reliance is show judg Therefore, of one was withdrawn before at 443. the case was not sent law, by contract decided rendered. We held determined but was ment was party’s “agreement” on the failure to raise a de- was not enforceable. based fense, thereby waiving that defense. Procedure, Texas Rules of Civil
Massey v.
is a case out of this
It read as follows:
Galvan
first enacted
court,
inapposite. Massey
and is likewise
par-
agreement between
No
of the
to take
involved
pending will be en-
ties
courts,
dispute out of the civil
submit
writing, signed
unless it be
forced
arbitration,
and be bound
the results.
record,
papers
part
as
filed with the
Massey
complain
arbi-
did not
until after the
open
court and
or unless it be made
that was unfa-
tration had entered
award
of record.
entered
*4
case,
parties
In
vorable to her.
that
took
unchanged until
The rule remained
courts, thereby
ren-
the case out of
civil
preface:
when it was amended
include
dering
Massey
11
Rule
ineffective. The
case
provided
these
“Unless
otherwise
clearly
support
appellant’s posi-
”
cannot be
rules,....
it
The 1988 amendment made
tion,
opinion.
and is not
conflict with this
subject
clear that Rule 11 was
to modification
Massey
The
court held that:
a
“When
by any
procedure. The
other rule of civil
agrees
through
dispute
to have a
resolved
of Rule 11
Texas Rule 47
source
judicial proceedings,
arbitration rather than
(for
courts).
county
district and
jury
right
that
has waived its
to a
confu
While there has been considerable
Massey,
trial.”
822
at
The
S.W.2d
318.
dicta,
sion,
concerning
an
and
abundance
Massey
analogous
court makes an
situation
says,
Rule 11 means what it
fee,
party paying jury
proceeding
to a
a
but
Supreme
tried to settle the confusion
Court
situation,
to trial
court. In
before the
such a
Kennedy
Kennedy Hyde, 682
in the
case.
v.
the court
"...
held that
cannot
(Tex.1984).
Supreme
525
The
Court
S.W.2d
complain
jury
that it
was entitled
have a
require
11
“minimum
held that Rule
was a
court,
decide the issue rather than the
once
agreements
of all
con
ment for enforcement
adversely
party’s posi-
the court rules
to the
at
The
cerning pending suits-”
Id.
529.
tion.” Id.
Bumaman,
proposition
Court cited
for the
upon by appellant
The
case relied
that
“notwithstanding
that
...
a valid Rule 11
support
argument
his
is Stewart v. Mathes.
agreement, consent must exist at the time an
court,
Probate,
sitting
trial
enforced a
agreed judgment
Id. at 528
is rendered.”
agreement,
which was withdrawn
Heaton,
(citing
v.
150 Tex.
Burnaman
judgment,
before
based on contract
(1951)).
Supreme
Court
We
with the Stewart
and
court
previously
contrary.
compliance
In
11 would
have
held to the
with Rule
Joachim,
agreed judgment
v.
an
on the merits
Co.
704 S.W.2d
authorize
suit,
underlying
an
(Tex.App.
writ
and
[14th Dist.]
— Houston
ref'd.),
“Notwithstanding
11 would
the same
we held:
valid
violation Rule
agreement,
at
of a contract to
Rule 11
consent must exist
results based on
breach
Kennedy court rea
agreed judgment
time an
is rendered.”
Id.
settle the lawsuit. The
agree
interpretation
would
at 483. In that
soned that such
clearly
finding
in a
that “no
ment was read into the record with both
result
attorneys
or
acknowledging
11.”
comply
need
with Rule
consent.
the trial court did not
Supreme
immediately
judgment,
Kennedy,
con
at 528. The
“render”
and the
S.W.2d
language in the new
approved
held that
a result
not be
the identical
Court
such
would
say:
Kennedy,
“If
at
correct. The court went on to
Rule 11.
529.
See
stipulation
comply
fails to
with Rule
but
A review of all the ease law surround
could nonetheless be enforced as
ing
it clear that
the rule
Rule
makes
11.” Id.
there would be no need for Rule
court administration
contributes
efficient
Supreme
We believe that the
Court could not
controversy,
because it limits matters and
have
than
did
clearer statement
Further,
expedites
proceedings.
Kennedy. They specifically
held that con-
Rule 11 “insures that such
do
applied
tract law could not be
to enforce
controversy,
themselves
sources of
become
does not
impeding resolution of suits.”
very
opinion,
Supreme
short
agreements are
at 530. Whether the
again
“A
Court
cited Bumamcm
held:
written, they
dispute
oral
party may
to settle a ease
revoke his consent
rejection
they comply
unless and until
anytime
rendered.”
with Rule 11.
Samples
Samples,
Exterminators
(Tex.1982).
873, 874
example of
appeal
This
is a classic
Appellant contends
reason behind Rule 11.
Litigation
litigation
always
within
has
accepted an offer of settlement made
he
been viewed with disfavor
the Texas
appellees. Appellees
the offer was
contend
*5
courts,
approve
and we see no reason to
of it.
payment being
no
upon
conditioned
received
Kennedy
recognized
court
that some
23,
Appel-
p.m., April
later than 5:00
holding
abridge
would view that their
would
changed by
argues
lant
the “deal” was
his
contracts,
thereby
the substantive law of
and
acceptance
letter of
and
making authority granted
exceed the rule
change. Appellees counter that the
of that
(Vernon
art.
1731a
Tex.Rev.Civ.Stat.Ann.
payment”
changed, pay-
1962).
“time for
was never
provides
Article 1731a
that rules of
received,
timely
the offer
ment was not
and
procedure
abridge, enlarge
or
“shall
alternatively
Appellant
con-
was withdrawn.
modify
rights
any litigant.”
of
the substantive
by filing
complied
he
Rule 11
the
Supreme
recognized
Court
that Rule 11 tends
with
may
right by rendering
the court.
affect a substantive
“letters” with the records of
How-
ever,
touching
rejected
oral contracts
on a
suit
offer
appellee
However,
unenforceable in contract law.
the
filed with the court.
the letters were
before
caselaw,
court cited the
rationale for the rule Therefore,
foregoing
based on the
counsel,
“Agreements
respecting the
as:
of
no
there was no
and there was
causes,
disposition
merely
which
ver
are
prevents
compliance
Rule 11. Rule
bal,
very
to
misconstrued or
are
liable
be
dispute
dispute, and
type
within a
misunderstandings
forgotten,
beget
and to
make
clearly outlines what must be done to
controversies;
great
and
and hence there is
any “agreement
parties
or
between
propriety
requires
that all
the rule
pending”
enforceable. We
respecting
of counsel
in this case
hold the settlement
not,
writing,
and if
the
causes shall be
comply with
to Rule
did not
They
court
not enforce them.
will then
will
under con-
and is not enforceable
themselves,
speak for
and the court can
tract
judge
import,
proceed to act
of their
and
points
appellant’s
All of
of error are over-
safety.
upon them with
The rule is a salu
judgment
court
ruled and the
of the trial
one,
tary
ought to be adhered to whenev
and
affirmed.
disagree
er counsel
as to what has tran
added).
spired
(emphasis
between them”
MURPHY, Justice, dissenting.
(quoting
Kennedy,
requirements of Rule 11 the other
party reneges agreement goes against on his jurisprudence grain Texas the settlement of lawsuits.2 As favors argued, has a settlement when reached, obtain Today’s holding
peace of mind.
removes
mind,
peace
any motivation
as well as
(Tex.App.
writ ref’d
agree
spe-
[14th Dist.]
that such a contract could not be
—Houston
n.r.e.).
enforced,
cifically
as that would be tantamount
authorizing
on an
consent
Smithwick,
ment where one
has withdrawn consent
Co. v.
2. See Scurlock Oil
528;
(Tex.1986);
agreement.
v. Commercial Union
See
682 S.W.2d at
McGuire
(Tex.1968).
Joachim,
Co.,