Affirmed and Opinion filed January 29,=20
2008.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-06-00500-CV
_______________
BAYLOR COLLEGE OF MEDICINE,=20
Appellant
V.
ROY A. CAMBERG, =
ADMINISTRATOR=20
OF THE ESTATE OF
ANA JULIA ORTIZ, DECEASED, and TEXAS =
DEPARTMENT=20
OF FAMILY & PROTECTIVE SERVICES as =
Next Friend=20
of
ANA DELIA MEJIA ORTIZ, ENID VALENTINA =
MEJIA ORTIZ,=20
and RIGOBERTO MEJIA ORTIZ, Minors,=20
Appellees
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On Appeal from Probate Court No. =
1
Harris County, =
Texas
Trial Court Cause No.=20
332744-402
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O P I N I=20
O N
This appeal from the =
trial=20
court=3Ds entry of judgment =
in a=20
wrongful death case comes to us in an usual procedural =
posture. =20
Appellant asks us to construe a Rule 11 settlement agreement =
entered into=20
by the parties during jury deliberations. Appellees, on the =
other=20
hand, contend that after the parties disputed the terms of the =
Rule 11=20
agreement, the trial court disregarded the agreement and entered =
judgment=20
on the jury=3Ds verdict. The =
record=20
supports the conclusion that the trial court entered judgment on =
the=20
jury=3Ds verdict rather than =
the Rule=20
11 agreement. We therefore affirm the trial =
court=3Ds judgment without =
the=20
necessity of construing the Rule 11 agreement.
I. =20
Factual and Procedural Background
Roy A. Camberg, =
Administrator=20
of the Estate of Ana Julia Ortiz, Deceased, and Texas Department =
of Family=20
& Protective Services as next friend of Ana Delia Mejia Ortiz, =
Enid=20
Valentina Mejia Ortiz, and Rigoberto Mejia Ortiz, minors =
(collectively,=20
Aappellees@) sued Baylor College =
of=20
Medicine (ABaylor@) for the wrongful =
death of the=20
minor children=3Ds mother, Ana Julia=20
Ortiz. At trial, while the jury was deliberating, =
Baylor and=20
appellees entered into a Rule 11 Ahigh-low =
agreement.@ The record =
reflects that=20
this agreement was initially proposed by Baylor as =
follows:
[If there is a damage award, a]nd =
it=3Ds less than $500,000, the Defendants =
agree to=20
[pay] the named Plaintiffs $500,000.
If the damages awarded by the Jury are =
between=20
$500,000 and $1.1 million, the Defendant will pay the verdict =
award by the=20
jury.
If the verdict is in excess of $1.1 =
million, the=20
Defendants will pay to the named Plaintiffs $1.1 =
million.
But appellees =
rejected this=20
offer because they did not want the minimum amount conditioned on =
a=20
finding of liability. Baylor then modified the agreement, =
which was=20
memorialized in the record as follows:
Court: Okay, high/low, low is $500,000, =
high is=20
$1.1 million, period.
Baylor:=20
And if=20
it=3Ds in-between, we pay the =
in-between.
Appellees: And =
the court=20
costs are $15,000, not to exceed, and the ad litem fees are =
$10,000,=20
not to exceed.
Court: Okay.
Baylor: =
=20
Now, can the Court make a docket entry on that?
Court: Well, is that your =
agreement?
Baylor: =
=20
Yes, sir.
Court:=20
=
Is that=20
your agreement?
Appellees: =
Yes, Your=20
Honor.
Court: You have the agreement. =
The jury returned its =
verdict=20
on March 8, 2006. As relevant to this appeal, the jury found =
$898,000 in damages. On March 14, appellees filed a motion =
for entry=20
of judgment that included a proposed judgment, which comported =
with the=20
jury=3Ds verdict but made no =
reference=20
to the Rule 11 agreement. The motion itself =
provided:
Plaintiffs hereby move the court to =
enter judgment=20
in this matter, as set forth in the attached proposed =
judgment. The=20
judgment is supported by the jury=3Ds verdict, and is for an amount within =
the=20
parties=3D agreement to settle this case under the =
high-low=20
agreement announced to the court on March 6, 2006.
In addition to =
$898,000 in=20
damages, appellees=3D proposed judgment =
included=20
prejudgment interest on the jury=3Ds damage award. =20
Appellees set this motion for hearing on March 23, 2006. =
The next day, Baylor =
responded=20
by filing a motion to enforce the Rule 11 agreement and for entry =
of final=20
judgment. Baylor attached its own proposed judgment, which=20
explicitly referenced the Rule 11 agreement and omitted any =
interest on=20
the damages found by the jury. This motion was also set for =
hearing=20
on March 23. At the beginning of the hearing, the =
trial court=20
noted, AI have had an =
opportunity to go=20
through everything. What I=3Dm going to do is =
enter=20
[appellees=3D] judgment, only =
I=3Dm changing [the =
amount of=20
certified court costs] . . . .@ The trial =
court signed=20
the final judgment at the hearing, and Baylor timely filed =
this=20
appeal.
II. =20
Issue Presented
In a single issue, =
Baylor=20
asserts that, by including prejudgment interest in its judgment, =
the trial=20
court supplied terms or essential details not included in the=20
parties=3D Rule 11 settlement =
agreement=20
and thus violated its Aministerial =
duty@ to record only that =
which was=20
agreed to by the parties. Appellees respond that the trial=20
court=3Ds judgment was not =
based on the=20
Rule 11 agreement, but instead was rendered on the =
jury=3Ds verdict because the =
parties=20
disputed the terms of the agreement.
III. =20
Standard of Review
The trial =
court=3Ds Adecision whether a =
settlement=20
agreement should be enforced as an agreed judgment or must be the =
subject=20
of a contract action requiring additional pleadings and proof is =
subject=20
to the abuse of discretion standard of review.@ Staley v. =
Herblin, 188=20
S.W.3d 334, 336 (Tex. App.CDallas 2006, pet. =
denied)=20
(citing Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, =
659 (Tex.=20
1996)). Because the trial court has no discretion in =
determining=20
what the law is or in applying the law to the facts, the trial=20
court=3Ds failure to analyze =
or apply=20
the law correctly is an abuse of discretion. In re Am. =
Homestar=20
of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001); =
Appleton v.=20
Appleton, 76 S.W.3d 78, 86 (Tex. App.CHouston [14th Dist.] =
2002, no=20
pet.). Finally, the appellant bears the burden to establish =
error in=20
the trial court=3Ds judgment. =
Englander=20
Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968) (per curiam);=20
Trevino v. Houston Orthopedic Ctr., 831 S.W.2d 341, 344 =
(Tex.=20
App.CHouston [14th Dist.] =
1992, writ=20
denied).
III. Analysis
A.=20
Preservation of=20
Error
As a preliminary =
matter,=20
appellees assert that Baylor did not preserve error because it =
failed to=20
plead or prove any claim for breach of contract or otherwise =
obtain a=20
ruling supporting its appellate complaint. But Baylor filed =
a motion=20
to enforce the Rule 11 agreement, which was noticed for hearing on =
the=20
same date as appellees=3D motion for entry of=20
judgment. By rendering judgment in accordance with the=20
jury=3Ds verdict, the trial =
court=20
implicitly overruled Baylor=3Ds motion. =
See Tex. R. App. P. =
33.1(a). =20
Thus, Baylor has preserved error on its appellate =
complaint.
B. =20
The Rule 11 Agreement
Here, the parties do =
not=20
dispute that they entered into a valid Rule 11 agreement. =
This Rule=20
provides:
Unless otherwise provided in these =
rules, no=20
agreement between attorneys or parties touching any suit pending =
will be=20
enforced unless it be in writing, signed and filed with the papers =
as part=20
of the record, or unless it be made in open court and entered =
of=20
record.
Tex.=20
R. Civ. P. 11=20
(emphasis added). As noted above, the parties in this case =
entered=20
into a Ahigh-low@ Rule 11 agreement, =
which was=20
memorialized in the record in open court.
A judgment rendered =
on a Rule=20
11 agreement must be Ain strict or literal=20
compliance@ with the terms =
recited into=20
the record and cannot remove or add material terms. =
See=20
Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per =
curiam)=20
(citing Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, =
292 (Tex.=20
1976) (per curiam)). When such a consent judgment is rendered =
after=20
consent is withdrawn or is not in strict compliance with the terms =
of the=20
agreement, the judgment must be set aside. Id. =
(citing=20
Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, =
291B92 (1951)). But =
notwithstanding an agreement valid under Rule 11, consent to the =
agreement=20
must also exist at the time an agreed judgment is rendered. =
See=20
id. at 98; Padilla v. LaFrance, 907 S.W.2d 454, =
461=20
(Tex. 1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d =
442,=20
444 (Tex. 1983).
Generally, the =
appellate remedy=20
for a trial court=3Ds entry of an agreed =
judgment=20
when the court is or should be aware that the parties no longer =
consent is=20
to reverse and remand for a new trial. See Quintero, =
654=20
S.W.2d at 444; Burnaman, 150 Tex. at 338B39, 240 S.W.2d at=20
291B93; Staley, =
188 S.W.3d=20
at 336B37; Sohocki v. =
Sohocki,=20
897 S.W.2d 422, 424 (Tex. App.CCorpus Christi 1995, =
no writ);=20
Farr v. McKinzie, 477 S.W.2d 672, 677B78 (Tex. Civ. =
App.CHouston [14th Dist.] =
1972, writ=20
ref=3Dd n.r.e.). A =
withdrawal=20
of consent must be effectively communicated to the trial =
court. =20
See First Heights Bank, FSB v. Marom, 934 S.W.2d 843, 845 =
(Tex.=20
App.CHouston [14th Dist.] =
1996, no=20
writ). AThe proper inquiry is =
whether=20
the information in the trial court=3Ds possession is =
clearly=20
sufficient and of such a nature as to put the court on notice that =
a=20
party=3Ds consent is lacking =
. . .=20
.@ =
Sohocki, 897=20
S.W.2d at 424. When parties to a settlement agreement submit =
conflicting motions for entry of judgment, the trial court is on =
notice=20
that mutual consent is lacking. Milstead v. Milstead, =
633=20
S.W.2d 347, 348 (Tex. App.CCorpus Christi 1982, =
no=20
writ). AThe only effect of a=20
party=3Ds withdrawal of =
consent to a=20
Rule 11 settlement agreement, practically speaking, is that the =
judgment=20
sought becomes one enforcing a binding contract rather than the =
basis of=20
an agreed judgment.@ Hon. Andrew S. =
Hanen=20
& Jeffrey M. Benton, The Enforceability of Settlement=20
Agreements, 40 Advoc. (St. B.=20
Tex. Litig. Sec. Rep.) 69, 74 (Fall 2007).
C. =20
The Trial Court=3Ds=20
Judgment
Baylor contends that =
consent to=20
the Rule 11 agreement in this case was not withdrawn by either=20
party. Instead, Baylor maintains that the parties asserted =
competing=20
interpretations of the agreement, =
and the=20
trial court erroneously entered judgment in accordance with=20
appellees=3D asserted =
interpretation. =20
Appellees argue that the trial court, aware of the =
parties=3D disputed =
interpretations of=20
the settlement agreement, rendered judgment on the =
jury=3Ds verdict because it =
determined=20
consent to the settlement agreement was lacking. After =
thorough=20
review of the record, we conclude that the record supports=20
appellees=3D position.
First, the trial =
court was=20
notified that the parties no longer consented to the Rule 11 =
agreement=20
because they filed conflicting motions for entry of judgment. =20
See Milstead, 633 S.W.2d at 348. Second, the record =
from the=20
hearing on the parties=3D motions to enter =
judgment is=20
devoid of any indication that the court was entering judgment =
based on the=20
Rule 11 agreement. Although Baylor claims in its reply brief =
that at=20
the hearing, Aneither party asked =
the trial=20
court to enter judgment on the verdict . . . , and the trial court =
said=20
nothing to support such a view of its judgment,@ the trial=20
court=3Ds only reference to =
the=20
judgment at this very brief hearing was that it had reviewed =
Aeverything@ and was entering=20
appellees=3D proposed judgment, =
with a=20
reduction to court costs. And, most importantly, the =
judgment=20
itself, rather than referencing or incorporating the Rule 11 =
agreement,=20
instead references and incorporates the jury=3Ds verdict as=20
follows:
On February 20, 2006, the court called =
this case=20
for trial. Plaintiffs . . . appeared . . . and announced =
ready for=20
trial. Defendant . . . appeared through its designated =
corporate=20
representative and through its attorney and announced ready for=20
trial. The court impaneled and swore the jury, which heard =
the=20
evidence and arguments of counsel. The court submitted =
questions,=20
definitions, and instructions to the jury.
On March 7, 2006, and in response to the =
questions=20
submitted, the jury made findings that the court received, filed, =
and=20
entered of record. The questions submitted to the jury =
and the=20
jury=3Ds findings are attached as Exhibit A and =
incorporated by reference.
(emphasis added).
Further, nothing in =
the record=20
indicates that Baylor employed a proper procedure for enforcing a =
Rule 11=20
settlement agreement once the parties proffered differing =
interpretations=20
of the agreement. For example, Baylor did not file a motion for =
summary=20
judgment seeking interpretation of the Rule 11 agreement. =
Cf.=20
Padilla, 907 S.W.2d at 462; Quintero, 654 S.W.2d at =
444;=20
Davis v. Wickham, 917 S.W.2d 414, 416 (Tex. =
App.CHouston [14th Dist.] =
1996, no=20
writ). In addition, Baylor did not seek correction or =
reformation of=20
the judgment entered by the trial court. =
In its reply brief, =
Baylor=20
asserts that Athe trial court had =
no power to=20
render judgment on the [jury] verdict because it was required to =
strictly=20
effectuate the exact terms of the Rule 11 agreement,@ citing Vickrey v. =
American=20
Youth Camps, Inc. 532 S.W.2d 292. The court in=20
Vickrey, however, was not faced with the unique procedural =
facts=20
that exist in this case, i.e., a disputed Rule 11 =
settlement=20
agreement and a jury verdict. In fact, there is no =
mention of=20
a jury verdict at all in that case. =20
Id. at 292. Instead, Vickrey stands for the=20
well-established proposition that A[a] final judgment =
which is=20
founded upon a settlement agreement reached by the parties must be =
in=20
strict or literal compliance with that agreement.@ =
Id. As=20
discussed above, the final judgment in this case does not purport =
to be=20
founded upon a settlement agreement.
Baylor further =
contends that=20
appellees=3D Amisleading assertions =
that the=20
judgment is not based on the Rule 11 agreement are negated by a =
motion=20
filed by Roy Camberg, . . . [the] administrator of the estate of =
Julia Ana=20
Ortiz.@ This motion, =
entitled=20
AMotion for Authority =
for=20
Administrator to Execute Partial Release of Judgment, Agreement =
Concerning=20
Partial Settlement and Appeal and Disbursement =
Agreement,@ states, AThis case was tried =
to a jury=20
and a high-low settlement agreement (>Agreement=3D) was reached. =
A dispute=20
has arisen whether interest should be included in the=20
Agreement.@ The documents =
cited in=20
this motion refer to the trial court=3Ds AFinal =
Judgment@ and do not indicate =
whether=20
this judgment was based on the Rule 11 agreement. Thus, =
contrary to=20
Baylor=3Ds argument, nothing =
in this=20
motion indicates that the trial court=3Ds judgment was =
rendered on the=20
settlement agreement.
Under the Texas Rules =
of Civil=20
Procedure, a trial court is required to render judgment on a=20
jury=3Ds special verdict =
unless=20
Aset aside or a new =
trial is=20
granted, or judgment is rendered notwithstanding verdict or jury =
finding .=20
. . . @ Tex. R. Civ. P. =
300. Baylor=20
has provided no argument or authority that the trial court was =
precluded=20
from rendering judgment on the jury=3Ds verdict in this=20
situation. As appellant, Baylor bears the burden to =
establish error=20
in the trial court=3Ds judgment. =
Englander=20
Co., 428 S.W.2d at 807; Trevino, 831 S.W.2d at =
344. Under=20
these circumstances, Baylor has not established that the trial=20
court=3Ds judgment was =
erroneously=20
rendered on the Rule 11 agreement. We therefore overrule=20
Baylor=3Ds sole =
issue.
III. Conclusion
In sum, the record =
supports the=20
conclusion that the parties disputed the terms of the Rule 11 =
agreement;=20
thus, the trial court was precluded from entering an agreed=20
judgment. Nothing in the record indicates Baylor employed a =
proper=20
procedure for enforcement of a settlement agreement. Finally, the =
judgment=20
itself indicates it is based on the jury=3Ds verdict rather the =
Rule 11=20
agreement. Because the record does not support =
Baylor=3Ds contention that the =
trial=20
court erroneously entered judgment on the Rule 11 agreement, we =
affirm the=20
trial court=3Ds judgment. =
/s/ Eva=20
M. Guzman
Justice
Judgment rendered and =
Opinion=20
filed January 29, 2008.
Panel consists of =
Justices=20
Yates, Fowler, and Guzman.
A high‑low agreement is =
defined as=20
A[a] settlement in which a defendant =
agrees to pay=20
the plaintiff a minimum recovery in return for the =
plaintiff=3Ds agreement to accept a maximum amount =
regardless=20
of the outcome of the trial.@ Black=3Ds Law =
Dictionary=20
746 (8th ed. =
2004).
An unsigned copy of this proposed =
judgment=20
is not included in our record because the trial court, after =
making an=20
adjustment to the figure for court costs, signed the copy of the =
judgment=20
attached to appellees=3D motion.
Appellees additionally assert =
that=20
prejudgment interest is a necessary part of damages in a wrongful =
death=20
case and thus properly included in the judgment even if the =
judgment were=20
based on the Rule 11 agreement. See, e.g.,=20
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 898 =
(Tex.=20
2000) (APrejudgment interest falls within the =
common-law=20
meaning of >damages.=3D@) (citing Cavnar v. Quality Control =
Parking,=20
Inc., 696 S.W.2d 549, 552B54 (Tex. 1985)); see also Carl =
J.=20
Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 908 (Tex. =
2005)=20
(AWe also held in both Columbia =
Hospital and=20
Horizon/CMS Healthcare Corp. v. Auld that language similar =
to=20
>amount of damages to be recovered by the =
claimant=3D includes not only actual damages but =
prejudgment=20
interest as well.@). We need not consider this =
argument,=20
however, because of our determination that the trial court =
rendered=20
judgment on the jury=3Ds verdict, rather than the Rule 11=20
agreement.
Baylor cites Romero v. KPH=20
Consolidation, Inc. to support its contention that in the =
context of a=20
high-low agreement, Aprejudgment interest should not be =
awarded on the=20
agreed settlement amount.@ While this contention may be =
true, we do=20
not find support for the proposition in Romero. 166 =
S.W.3d=20
212 (Tex. 2005). Indeed, the only reference to a high-low =
agreement=20
in Romero occurs in the section detailing the background =
facts of=20
the case:
The jury found actual damages of $28.6 =
million and=20
punitive damages of $12 million. Based on the verdict, the =
trial=20
court determined awards for each plaintiff against Columbia that =
totaled a=20
little over $25 million, including prejudgment interest, but under =
a=20
high-low settlement agreement, the trial court rendered judgment =
for=20
$11,440,000 in actual damages.
Id. at=20
219. We do not regard this brief mention of a high-low =
agreement=20
included in the factual background of that case as support for=20
Baylor=3Ds contention.
As noted above, =
appellees=3D motion for entry of judgment specified =
that the=20
attached proposed judgment was Asupported by the jury=3Ds verdict@ and Afor an amount within the =
parties=3D agreement.@ Their proposed judgment did not =
indicate=20
that it was based on the high-low agreement and instead appears to =
be a=20
judgment on the jury=3Ds verdict. Baylor=3Ds motion, on the other hand, stated, =
APlaintiffs have submitted a proposed =
Final=20
Judgment ignoring the Settlement Agreement and including =
pre-judgment=20
interest.@ Baylor=3Ds proposed judgment also specifically =
referenced=20
the high-low agreement.
See Tex. R. Civ. P. =
329b(g); see=20
also Hanen & Benton, supra, at 75 (observing that, =
where,=20
as here, the terms of a settlement agreement are not memorialized =
in a=20
trial court=3Ds judgment, Athe only avenue to keep the[] =
enforcement action=20
in the presiding court is through a motion to reinstate, or a =
motion to=20
modify, correct or reform a judgment, either of which must be =
filed within=20
30 days after the judgment is signed@) (citations omitted).
In Vickrey, the court =
noted,=20
Athe trial court entered final judgment,=20
referring to and incorporating the earlier settlement=20
agreement.@ Id. at 292 (emphasis =
added). =20
But here, the final judgment neither refers to nor incorporates =
the=20
settlement agreement.
The AAgreement Concerning Partial Settlement =
and=20
Appeal@ mentioned in the title of this motion =
refers to a=20
separate written settlement agreement entered into between =
appellees and=20
Baylor after judgment was rendered in this case. =20
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