OPINION
Hector Canales Rodriguez d/b/a Cowboy Transport appeals the portion of a judgment awarding exemplary damages to ap-pellee, Jose Villarreal. In two issues, Rodriguez contends the trial court erred by failing to apply the statutory exemplary-damages cap when rendering judgment on the jury’s verdict. Villarreal has filed a motion to dismiss the appeal and award sanctions, contending Rodriguez waived his right to appeal. We ordered the motion taken with the сase. Because we agree the trial court erred by failing to apply the statutory exemplary-damages cap, we modify the judgment and affirm as modified. Because we conclude Rodriguez did not waive his right to pursue this appeal, we deny Villarreal’s motion to dismiss and for sanctions.
I. BACKGROUND
Villarreal sued Rodriguez for injuries sustained in a vehicle accident. During trial, the parties entered into what they characterized as a “high/low agreement.” They orally announced the agreement on the record as follows.
THE COURT: Are we ready to go forward or—
[RODRIGUEZ’S COUNSEL]: We need to make a record. Judge, defense counsel and [Villarreal's] counsel would like to announce an agreement of a high/low agreement in this case—
THE COURT: Okay.
[RODRIGUEZ’S COUNSEL]: —with the guaranteed recovery of [Villarreal] a minimal of a hundred thousand, maximum of 750,000. We will proceed forward and let the jury render a verdict and if the verdict comes in between 100 and 750, it will be the verdict.
[VILLARREAL’S COUNSEL]: We agree each party waives right to appeal. [RODRIGUEZ’S COUNSEL]: Fine, yes. So agreed.
THE COURT: Okay. I am not — and so if the jury returns a verdict that is within your high/low, that’s the verdict?
[VILLARREAL’S COUNSEL]: Right.
THE COURT: If it is outside on either side, your high/low agreement controls; is that right?
[RODRIGUEZ’S COUNSEL]: Correct. Correct. It’s a Rule 11 agreement for maximum and minimum.
THE COURT: Okay. All right. Okay. 1
A jury found that Rodriguez’s negligence proximately caused the accident and assessed $112,109 in compensatory damages, which consisted of $108,109 in economic damages and $4,000 in non-economic damages. The jury also found that Rodriguez was grossly negligent and assessed $550,000 in exemplary damages.
Subsequently, Villarreal filed a “Motion to Enforce Rule 11 Settlement Agreement and for Attorney’s Fees and Sanctions,” and both parties filed a motion for judgment. In essence, Villarreal asserted that the parties’ agreement required rendition of judgment for the full amount of compensatory and exemplary damages assessed by the jury. In contrast, Rodriguez argued that the agreement did not preclude application of the statutory exemplary-damages cap, which would mandatе judgment for $220,218 in exemplary damages, as opposed to the $550,000 assessed by the jury. See Tex. Civ. Prac. & Rem.Code Ann. § 41.008(b) (Vernon Supp. 2009) (“Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000”).
On June 3, 2008, the trial court signed a judgment, reflecting the court interpreted the agreement as asserted by Villarreal and awarding him $112,109 in compensatory damages, $550,000 in exemplary damages, costs of court, and pre-judgment and post-judgment interest. Rodriguez timely filed a motion to modify the judgment, re-urging his contention that the exemplary-damages cap must be applied. The trial court denied the motion by written order.
II. Analysis
In his first issue, Rodriguez advances two somewhat interrelated reasons that the trial court erred by failing to apply the statutory exemplary-damages cap: (1) the high-low agreement was inаpplicable because the conditions precedent were not triggered; or (2) even if the high-low agreement were applicable, the trial court incorrectly interpreted it. Rodriguez’s second issue is an alternative contention; he argues that, even if the high-low agreement were applicable, the trial court erred by refusing to apply the exemplary-damages cap because it can be waived only by express agreement. Villarreal сontends that, not only did the trial court correctly interpret the parties’ agreement and refuse to apply the exemplary-damages cap,
A. The Parties’ Agreement
With respect to his first issue, Rodriguez contends the high-low agreement would be triggered only if the verdict fell outside its limits; i.e., if the verdict were less than $100,000, Villarreal was entitled to recоver $100,000, and if the verdict were greater than $750,000, Villarreal’s recovery was limited to $750,000. Rodriguez contends the high-low agreement was inapplicable if a verdict fell between these amounts; thus the trial court was required to render judgment on the verdict by applying all legal concepts, including the exemplary-damages cap, that are ordinarily applicable when rendering judgment on a jury verdict.
A “high-low agreement” is “[a] settlement in which a defendant agrees to pay the plaintiff a minimum recovery in return for the plaintiffs agreement to accept a maximum amount regardless of the outcome of the trial.” Black’s Law Dictionary 746 (8th ed. 2004);
see Baylor Coll. of Med. v. Camberg,
Initially, we agree with Rodriguez’s contention that the high-low agreement was never triggered. The parties’ recitations, particularly the following response to the trial court’s question, made clear that the high-low agreement controlled only if the verdict fell outside its limits:
THE COURT: If it is outside on either side, your high/low agreement controls; is that right?
[RODRIGUEZ’S COUNSEL]: Correct. Correct. It’s а Rule 11 agreement for maximum and minimum.
Moreover, as a sister-state court recognized in a case cited by Rodriguez,
A high-low agreement, when initially reached by the parties in a litigation, is, in fact, a conditional settlement. The condition of the agreement is that the jury render a verdict that falls outside the range of the high-low agreement. When a verdict is rendered outside of the agreed-upon range, the condition is triggered and the “high” or the “low” becomes binding upon the parties аs a settlement. By contrast, when a jury renders a verdict within the range of the high-low agreement, the condition is not met and the high-low agreement is rendered academic.
Cunha v. Shapiro,
Villarreal frames his contention as an argument that the high-low agreement applied even if the verdict fell between $100,000 and $750,000 and Rodriguez agreed to pay the amount of any such verdict. However, the high-low agreement was clearly inapplicable to a verdict between its dollar limits considering the naturе and purpose of such an agreement.
See id.;
Black’s Law Dictionary 746. Nevertheless, Villarreal repeatedly sug
We disagree that the parties made an agrеement that Rodriguez would pay the amount of any verdict between $100,000 and $750,000. The parties represented at both the outset and conclusion of their announcement that they were dictating a “high-low” agreement. They did not represent that they made any sort of compromise settlement relative to a verdict between the limits of the high-low agreement. The only language in their announcement relative to such a verdict was the following:
[RODRIGUEZ’S COUNSEL]: —with the guaranteed recovery of [Villаrreal] a minimal of a hundred thousand, maximum of 750,000. We will proceed forward and let the jury render a verdict and if the verdict comes in between 100 and 750, it will be the verdict.
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THE COURT: Okay. I am not — and so if the jury returns a verdict that is within your high/low, that’s the verdict? [VILLARREAL’S COUNSEL]: Right,
(emphasis added).
In his brief, Villarreal summarizes the above-cited statement by Rodriguez’s counsel as follows: “[W]e will proceed forward and let the jury render a verdict and if the verdict comes in between 100 and 750, it [the guaranteed recovery] will be the verdict.” Therefore, Villarreal contends that the word “it” in Rodriguez’s counsel’s statement referred to “the guaranteed recovery,” reflecting the parties agreed that the guaranteed recovery would be the amount of the verdict. We disagree. The only noun preceding “it” in this statement, to which “it” could have referred, was the word “verdict.” Accordingly, the parties merely stated that the verdict will be just that — “the verdict.”
Further, the trial court’s above-cited question and the answer thereto confirmed the parties did not agree that “the guaranteed recovery” will be “the verdict.” When the trial court asked, “a verdict that is within your high/low, that’s the verdict?,” Villarreal’s counsel acquiesced in the trial court’s summary and did not impose language ensuring “the guaranteed recovery” will be the amount of the verdict. We are not authorized to rewrite agreements to insert provisions parties could have included or to imply restraints for which they have not bargained.
See Tenneco, Inc. v. Enter. Prods. Co.,
Moreover, as Rodriguez asserts, the parties did not state that a verdict between $100,000 and $750,000 will be “the amount Rodriguez will pay,” “the judgment,” “the recovery,” or similar words to that effect. Villarreal offers no authority demonstrating a defendant’s agreement that a certain amount constitutes a “verdict” translates into the defendant’s “guarantee” to pay that amount to the plaintiff. To the contrary, the term “verdict” does not entail a guarantee that a party will recover the amount of damages found by the jury. A “verdict” is “a written declaration by a jury of its decision, comprehending the whole or all the issues submitted to the jury_” Tex.R. Civ. P. 290. Although a trial court must generally render judgment on a verdict, Tex.R. Civ. P. 300, the judgment “shall be so framed as to give the party all the relief
to which he may be entitled either in law or equity.”
Tex.R. Civ. P. 301 (emphasis added);
see
Black’s Law DictionaRY 858 (8th ed. 2004) (defin
Consistent with this requirement, there are various legal principles, in addition to the exemplary-damages cap, that may apply when a trial court renders judgment on a verdict and cause the ultimate recovery to be less, or even more, than the total damages found by the jury. See, e.g., Tex. Civ. Prac. & Rem.Code Ann. § 33.012(a) (Vernon 2008) (providing that, relative to certain causes of action, trial court shall reduce amount of damages to be recovered by claimant by a percentage equal to his percentage of responsibility); id. § 33.012(b) (requiring trial court, when this provision is applicable, to reduce claimant’s recovery of damages by sum of all his settlements in the cause of action); Tex. Civ. Prac. & Rem.Code Ann. § 74.301 (Vernon 2005) (prescribing certain limits on damages recoverable in health-care liability suits); Tex. Fin.Code Ann. § 304.102 (Vernon 2006) (“A judgment in a wrongful death, personal injury, or property damage case earns prejudgment interest.”). In fact, Villarreal maintained he was entitled to, and indeed was awarded, pre-judgment interest although such award caused an ultimate recovery greater than the “verdict.” Accordingly, Rodriguez’s agreement that a verdict between $100,000 and $750,000 “will bе the verdict” did not constitute an agreement that Villarreal is entitled to recover the amount of that verdict.
Villarreal also emphasizes the general concepts that a high-low agreement is considered a complete settlement, and Texas law favors enforcement of agreements between parties.
See In re BP Prods. N. Am. Inc.,
Additionally, Villarreal raises two estoppel arguments. First, he cites the doctrine of estoppel by election, whiсh has been recognized as the principle that a person will not be permitted to accept the beneficial part of a transaction and repudiate the disadvantageous part.
See San Antonio Sav. Ass’n v. Palmer,
Next, Villarreаl asserts the principle of quasi-estoppel, which precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken.
Lopez v. Munoz, Hockema & Reed, L.L.P.,
Finally, Villarreal posits that Rodriguez waived application of the exemplary-damages cap by failing to expressly reserve this right when making the Rule 11 agreement. Villarreal relies on
ASI Technologies,
a products-liability case, in which the defendant seller and the defendant manufacturer entered into a high-low agreement with the plaintiff, specifying minimum and maximum recoveries.
On appeal, the court held that, although the verdict-sharing agreement was silent with respect to statutory indemnity under section 82.002, the seller intentionally waived such a right because enforcing the statute would render the agreement meaningless.
ASI Techs.,
ASI Technologies is distinguishable from the present case because its defendants agreed to each pay a certain amount of the plaintiffs recovery; thus, the statutory indemnity sought by the seller would have directly altered their agreement by effectively causing the manufacturer to pay the entire recovery. See id. at 547-49. Once again, in the present case, the parties did not enter into an agreement that Rodriguez would pay a verdict which fell between the limits of the high-low agreеment. Therefore, application of the exemplary-damages cap to such a verdict would not render meaningless any agreement of the parties. Consequently, Rodriguez did not waive his right to request application of the exemplary-damages cap by entering into the Rule 11 agreement.
Further, because the parties made no settlement agreement relative to such a verdict, Rodriguez was not required to reserve his right to later request applicаtion of any legal concepts ordinarily applicable to rendering judgment on a verdict. Rodriguez had already pleaded for application of the exemplary-damages cap and then reiterated his request after the jury returned the verdict.
In sum, the trial court misinterpreted the Rule 11 agreement by deciding it included a settlement agreement for payment of the amount of any verdict between $100,000 and $750,000. Accordingly, the trial court erred by refusing to apply the-exеmplary-damages cap when rendering
B. Right to Appeal
However, our inquiry does not end here because Villarreal contends that Rodriguez waived his right to pursue this appeal. Villarreal emphasizes the general principle that the right to appellate review may be waived by agreement.
See In re Long,
Although the parties stated, “[w]e agree each party waives right to appeal,” it is unclear whether they waived the right to appeal only a verdict subject to the high-low agreement or any verdict. Arguably, the waiver applied to only a verdict subject to the high-low agreement because the parties made clear they were making only a high-low agreement. Nevertheless, even if the waiver also applied to a verdict between the limits of the high-low agreement, the parties waived, at most, the right to appeal the “verdict” and not the right to appeal a judgment improperly rendered after the verdict.
Waiver is “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.”
Jernigan v. Langley,
We construe waiver of the right to appeal the verdict as relinquishing the right to raise issues which might vitiate the verdict such as challenges to sufficiency of the evidence to support the verdict, evi-dentiary rulings, or jury-charge errors. However, as Rodriguez asserts, construing the waiver as applying to аny judgment rendered in this case could lead to an absurd result.
See Lane v. Travelers Indem. Co.,
We note that a federal court has implicitly reached the same conclusion with respect to a similar waiver provision. In
Vargo v. Mangus,
Villarreal primarily relies on
In re Long,
in which the court dismissed an appeal based on a waiver provision in the parties’ settlement agreement.
In sum, we sustain Rodriguez’s first issue, and we need not consider his second issue. We modify the judgment to reduce the award of exemplary damages from $550,000 to $220,218 and affirm the judgment as modified. We deny Villarreal’s motion to dismiss and for sanctions.
Notes
. We recognize Villarreal’s attorney did not expressly state that he agreed with each recitation by Rodriguez's counsel, and the trial court's questions regarding the announcement were not each answered by both counsel. Nonetheless, the parties do not dispute the entire announcement constituted their Rule 11 agreement. See Tex.R. Civ. P. 11 ("Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”). Rather, as we will discuss, the dispute involves interpretation of the agreement.