Case Information
*0 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 2/24/2015 10:52:36 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 14-14-00077-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 2/24/2015 10:52:36 AM CHRISTOPHER PRINE CLERK CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Attorneys at Law 1200 SMITH STREET, SUITE 1400 HOUSTON HOUSTON, TEXAS 77002-4496 KEVIN D. JEWELL ATLANTA SHAREHOLDER (713) 658-1818 (800) 342-5829 PHILADELPHIA DIRECT DIAL NO.(713) 654-9620 (713) 658-2553 (FAX) E-MAIL: kevin.jewell@chamberlainlaw.com SAN ANTONIO chwwm@chamberlainlaw.com
Christopher Prine, Clerk
Fourteenth Court of Appeals
301 Fannin, Room 245
Re: No. 14-14-00077-CV; MKM Engineers, Inc., et al v. Jal B. Guzder ; in
the Fourteenth Court of Appeals, Houston, Texas.
Dear Justices Christopher, Donovan, and Wise:
Appellants MKM and PIKA would like to respond to Appellee’s February
19, 2015 letter.
1. Appellants stated in oral argument that Guzder never provided a signed
document containing releases. That statement is true. Guzder’s February
19, 2015 letter cites unsigned , proposed releases. The May 27, 2011 letter,
assuming it is binding, required Guzder (and others) to provide signed
releases, not draft or proposed releases. They never provided signed releases
to Appellants or to the District Court and Guzder did not prove (or argue)
otherwise in his motion for summary judgment.
2. Guzder contends that EETCO and Zenobia Guzder did not have to sign the
Rule 11 letter because Mr. Voyles, their lawyer, could sign for them. Clients
settle cases, not counsel, and Mr. Voyles signed only as agent for one
principal, i.e ., “on behalf of Jal Guzder.” If EETCO and Zenobia wanted to
sign the letter, counsel should have so indicated instead of expressly limiting
his signature to only Guzder. Imagine the roles were reversed and
EETCO/Zenobia argued they were not bound by the Rule 11 letter. They
would be right. That their lawyer now says they will go along with the deal
after the fact does not mean the Rule 11 letter was binding on all parties
when it was signed. “ All of the parties must assent to the same thing in the
same sense at the same time.” Soliman v. Goltz , No. 05-93-00008-CV, 1993
WL 402740, at *8 (Tex. App.—Dallas October 6, 1993, no writ) (emphasis
added); Finley v. Hundley , 252 S.W.2d 958, 962 (Tex. Civ. App.—Dallas
1952, no writ).
3. Citing Justice Christopher, Guzder argues that parties who do not wish to be
bound by a preliminary letter should expressly say so. This is a preferable
approach to be sure, but not one Texas law has ever required. Appellate
courts holding settlement agreements unenforceable have done so despite the
absence of contract language stating, “This agreement is non-binding.” E.g .,
Martin v. Martin , 326 S.W.3d 741, 754 (Tex. App.—Texarkana 2010, pet.
denied); Brooks v. Metiscan Technologies, Inc ., No. 05-08-01042-CV, 2009
WL 3087258, at *3 (Tex. App.—Dallas September 29, 2009, no pet.);
Soliman , 1993 WL 402740, at *8.
4. Guzder says Appellants are bound because they drafted the Rule 11 letter.
But every appellate decision that held a settlement agreement unenforceable
did so on behalf of a party who either proposed the agreement or expressly
agreed to it. See , e.g ., Martin , 326 S.W.3d at 754; Brooks , 2009 WL
3087258, at *3; Soliman , 1993 WL 402740, at *8. Enforcement does not
depend on who proposed or drafted the alleged agreement.
Respectfully submitted, CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY By: /s/ Kevin Jewell Kevin D. Jewell State Bar No. 00787769 1200 Smith Street, Suite 1400 Houston, Texas 77002 Telephone: (713) 658-1818 Telecopy: (713) 658-2553 ATTORNEYS FOR APPELLANT, PIKA INTERNATIONAL, INC. *3 AKIN, GUMP, STRAUSS, HAUER & FELD LLP By: /s/ Murry B. Cohen Murry B. Cohen Texas Bar No. 04508500 1111 Louisiana Street, 44th Floor Houston, Texas 77002 (713) 220-5800 (Telephone) (713) 236-0822 (Facsimile) ATTORNEYS FOR APPELLANT, MKM ENGINEERS, INC.
KDJ/dlk
1739319_1
Via electronic service
Adam Q. Voyles
Lubel Voyles LLP
5020 Montrose Blvd., Ste. 800
Houston, Texas 77006
Via electronic service
Alan N. Magenheim
Magenheim & Associates
3701 Kirby Drive, Suite 1144
Via electronic service
Michael L. Orsak, L.P.
611 Houston Street
Richmond, Texas 77469