Authorlee v. Tuboscope Vetco International, Inc. (Tex.App.- Houston [1st Dist.] Aug. 28,
2008)(Nuchia) (challenge to agreed judgment, fraud claim, aggregate settlement, mediation, motion for new trial)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Keyes and Higley
01-06-00719-CV        Anthony Authorlee, Dexter Burnett, Robert Derousselle, John Henry Young, Jerome
Stubblefield and Floyd Moran v. Tuboscope Vetco International, Inc.; AMF Incorporated; and Minstar, Inc.
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher
Dissenting Opinion by Justice Keyes        


In six issues, appellants, who were settling plaintiffs in the underlying lawsuit, seek to overturn the trial court's
denial of their motion for new trial. Appellants argue here, as they did in the trial court, that their agreed judgment
should be set aside as "void as against public policy" because their trial lawyers did not tell them it was an
aggregate settlement and because their trial lawyers, along with the appellees, committed fraud.

We affirm.



This is a dispute about the propriety of settlements in a mass tort case. Before the lawsuit at issue in this appeal,
appellants' trial attorney, Shelton Smith, had represented other plaintiffs in silicosis cases against appellees, the
"AMF defendants," establishing a course of conduct for negotiating and resolving these claims with Daniel Shank,
counsel for the AMF defendants. This course of conduct included evaluating the merits of each plaintiff's case
based on work history, medical diagnosis and impairment, and other factors that might have impacted the
outcome at trial. In those prior 40 lawsuits, Smith had recovered about $40 million in settlements for his clients.

Initial Settlement Negotiations

Appellants were among 176 plaintiffs who sued Tuboscope Vetco International, Inc., AMF, Inc., and Minstar, Inc.,
along with other defendants, for injuries they alleged were caused by their occupational exposure to silica while
working for AMF Tuboscope in Midland, Texas. In January 1999, appellants' trial attorneys, Shelton Smith and
Scott Hooper, approached appellees with vague, initial settlement demands. In one letter, Smith wrote:

I am presently representing 55 former AMF Tuboscope sandblasters who suffer from silicosis or mixed dust
pneumonoconiosis as a result of their employment at Tuboscope. Each of these 55 men has a serious
occupational lung disease. . . .

As of this date, I have filed 25 lawsuits against AMF, Inc. The other 30 diagnosed cases are ready to be filed.
There may be more . . . .

From January through May, Smith and Hooper had a series of conversations--in person, by telephone, and by
mail--with Daniel Shank, counsel for the AMF Defendants. They spoke about factors that would be involved in any
settlement. Shank proposed, on behalf of his clients and their insurers, that all of Smith's silicosis claims be
settled at one time, using the term "global" in several communications. Shank wrote:

At this point in time, my client and its insurers are not interested in negotiating a settlement in individual cases on
a case-by-case basis. Furthermore, my client and its [insurance] carriers are not interested in negotiating a
resolution of cases on a subgroup basis. However, my client and its carriers are interested in a global settlement
proposal. Accordingly, if you wish to resolve these cases, I would suggest that you proceed with preparing a
global settlement proposal. . . . If the parties seem reasonably in contact with each other, then it may be
appropriate for all parties to proceed with a global mediation . . . .

To the extent that my client and its insurers are not able to proceed with a global resolution of these matters,
please be advised that my client and its insurers are not interested at this time in negotiating settlements on a
piecemeal, case by case or subgroup basis. Rather, they would prefer pursuing a global approach without being
distracted by piecemeal or subgroup negotiations.

Shank later testified that he and his clients were interested only in a global resolution to ensure that cases with
similar liability and damages would settle for similar amounts. He said, "We were dealing with the strategy where
he would hitch his wagon to a highly valued case and then later on we would be fighting about whether or not an
apple is an apple or an apple is an orange."

Preparing for Mediation

The parties agreed to go to mediation in July. Before mediation, Shank suggested that they evaluate the first 21
cases to determine a method for resolving Smith's inventory of claims. Shank suggested this because he had
more information on those 21 plaintiffs than on the other plaintiffs: they had deposed the plaintiffs, reviewed their
medical records, and obtained "defense IMEs." (1) In addition, Smith sent Shank several boxes full of information
about individual plaintiffs, including information on all the appellants. However, only some plaintiffs had complete
case evaluations, including diagnosing medical reports and social security records verifying employment at AMF
Tuboscope. For example, only summaries but no medical reports were available for Anthony Authorlee.

Smith also contacted his clients before mediation. In a June 30, 1999 letter, Smith told his clients, "There are very
important events in July regarding your AMF Tuboscope case." He invited about half of the plaintiffs to a meeting
to provide details about the upcoming mediation and stressed the importance of attending the meeting. With the
invitation, Smith sent a report with questions and answers about the status of the litigation. In this report, Smith

We have a mediation scheduled for the second week of July. This is a negotiation session where we will meet with
attorneys and insurance representatives for AMF and discuss settlement possibilities for our AMF clients. Your
case could potentially be discussed at this three day session.

To prepare for the possibility of discussing your case, we have computerized a large amount of information about
you. Some of that information is printed on the Client Information Sheet. We need you to review that information
right now.

. . .

We know you have questions. But with the AMF mediation a few days away and since we represent more than
300 AMF clients, we simply cannot provide our typical personalized service for the next two weeks. We need to
focus all of our attention on preparing for this session with the AMF attorneys.

. . .


. . .

A very detailed overview of the AMF cases will be presented. Shelton Smith is your lead attorney who has
successfully pursued cases against AMF for 15 years. He will be reviewing the current situation and will be
discussing details of your case. Shelton has settled more than 40 cases against AMF.
. . .

Because of space limitations, we are only meeting with about half our clients on July 10. Another meeting or
meetings will be held this summer for the rest of our clients. ONLY THOSE CLIENTS WITH AN INVITATION

. . .

Though it is possible that some of these cases could be resolved soon, nothing is certain. Anything could
happen. It is possible that a reasonable solution involving your case may not be resolved for months or possibly
even years.

. . .

The upcoming mediation will be the first time we have discussed the possibility of resolving all of our AMF cases
will know more in two weeks.


According to Shank, several plaintiffs as well as representatives of appellees' lead insurance carriers attended
the mediation. The attorneys spent the first few days trying to agree on what criteria to use to establish the value
of each plaintiff's claim. For example, Smith had a matrix in which he had ranked the relative value of each
plaintiff's claim based on factors like: (1) length of exposure to silica while working at the Tuboscope plant, (2)
age, (3) marital status, (4) number and age of children, (5) severity of diagnosis and whether the diagnosis was
made by a doctor that the AMF defendants respected, (6) prior drug use, and other factors that may have
influenced a jury verdict at trial. On the other hand, appellees had their own matrix, and they wanted to focus on
exposure dates, pulmonary function test results, and impairment ratings.

Smith would not agree to appellees' criteria. He later testified that most of his clients were not symptomatic,
"[V]ery few of these men ever--ever had a complaint about a pulmonary problem. Very few, very few ever saw a
doctor for one or had any kind of treatment." He testified that at least one appellant's case would have been
"valueless" had he agreed to appellees' settlement criteria. (2)

Both Smith and Hooper stated that they did not discuss appellants' individual cases during the mediation. Smith
testified that they discussed a few cases individually as a means of reality testing the effect of the criteria each
side proposed. Smith testified that they did not discuss settling any particular plaintiff's case during the first few
days of the mediation. Scott Hooper testified that he was not aware of any individual negotiation for Anthony
Authorlee. Smith also said that at least twenty additional plaintiffs were added to the litigation after the mediation.

Shank also testified that he understood that they were discussing not just the 150 or so positively diagnosed
plaintiffs and that there would be additional plaintiffs added to the group prior to settlement. He said that there
were some offers made during the mediation, "I think there were matrix predicated conditional offers made
because obviously we had to get carrier approval . . . there were discussions involving numbers and matrixes,
and I believe we floated some of those with an actual number . . . ."

Most notably, however, Shank testified that he had no settlement authority at the mediation. He said he could only
agree to a framework for settlement, saying, "I was making proposals that I would recommend to my clients . . . ."
Shank explained that over the period for which liability may exist for AMF Tuboscope, roughly from 1961 to 1986,
when the plants stopped using silica, there were numerous different insurance policies issued to AMF Tuboscope
by different carriers. Shank explained that he was not "coverage counsel" for the AMF defendants and that other
lawyers were responsible for allocations among the various insurance carriers depending on the facts of a
particular case. He testified that before any settlement could be funded, coverage counsel for the AMF
defendants would establish where and when the diagnosed individual plaintiff worked and in what job function
(i.e., a job that exposed him to silica or not) based on Social Security records and AMF Tuboscope personnel
records. Using this information, coverage counsel would allocate responsibility in order to seek coverage from the
insurance carriers. Shank said that seven to fifteen separate carriers might be involved in an individual settlement
and different layers of insurance may also be involved. Therefore, each settlement had to be done individually.

After several days of fruitless mediation about which factors should be used to value the plaintiffs' claims, they
switched gears and decided to talk about a total amount of money needed to resolve all the claims at one time.
Appellees' attorney agreed that so long as the individual demands did not exceed $45 million, he would
recommend to his clients and their many insurance carriers to settle the claims, but only if 95% of Smith's clients
agreed. (3) They signed a Rule 11 agreement memorializing their understanding, although the Rule 11
agreement did not include the $45 million figure--or any sum of money--for settling Smith's inventory of claims.

Post-Mediation Negotiations and Settlement Agreements

After the mediation, appellants' attorneys recalculated the settlement amounts for each plaintiff, including about
twenty plaintiffs who were diagnosed with silicosis after the mediation. Smith then sent each appellant a letter
detailing an offer of settlement, based on the numbers he calculated using his matrix. The letters were
substantially the same, except for the settlement amounts, which, for the appellants, ranged from $209,000 to
$662,000, and which were characterized as a "final offer" made by defendants. (4) All but one or two plaintiffs of
the 178 or 179 pending claims agreed to settle.

In early August, each appellant signed an authorization to settle, which specifically acknowledged that each
appellant's claim was negotiated with other similar claims but was not part of an aggregate settlement. After each
appellant signed the authorization to settle, appellant's attorneys forwarded an individual, formal demand letter to
appellees, which appellees could accept or reject. From mid-September through mid-October, appellees
accepted all but one demand, at one point asking for additional time to review certain plaintiffs' settlement

In late October, before the settlements actually closed, Hooper wrote to Shank, requesting certain additions and
revisions to the Settlement Agreements, including the addition of the following language:

This Agreement supersedes all previous agreements, written or oral. Plaintiff and Defendants have been involved
in lengthy settlement negotiations, involving a variety of settlement offers, and proposals. This agreement reflects
the final settlement offer made by the Defendants and accepted by the Plaintiff. Any and all previous settlement
offers, by either party, are hereby revoked.

Defendants' payment of the settlement amounts stated herein are [sic] independent of its agreement to make
payments to other plaintiffs in the same or related lawsuits. Plaintiff and Defendants have negotiated this
settlement based upon the individual merits of the Plaintiff's claims. Defendants have not made any aggregate
settlement offer and this settlement is not part of any aggregate settlement.

Nothing in this Agreement shall be construed as a release, discharge, settlement or compromise of Plaintiff's right
to pursue Workers' Compensation benefits.

The release, settlement, assignment and indemnity of claims stated in this Agreement do not apply to Plaintiff's
claims against [the non-settling defendants].

This language was inserted verbatim, and Shank later testified by affidavit, "This language was drafted by
Plaintiffs' attorneys and was inserted into the Settlement Agreements without change at their request. Defendants
did not seek to include, draft, or edit this language."

In November, each appellant signed a Settlement, Indemnity and Release agreement and an affidavit that stated
each had relied on his lawyer's legal advice. Later that month, the 129th District Court granted the 177 settling
plaintiffs' motion to consolidate their cases. (5) In December, the trial court entered an agreed judgment on the

Appellants Hire New Counsel

In 2002, four appellants and eleven other settling plaintiffs terminated their attorney-client relationship with
Shelton Smith & Associates, engaged Robins, Cloud, Greenwood & Lubel, LLP, and moved to retain and sever
their claims, which were set to be dismissed for want of prosecution. The court granted their motion. In 2004, all
six appellants sued their trial attorneys, Smith and Hooper, and the appellees, alleging that Smith fraudulently
induced them to enter into an impermissible aggregate settlement and that appellees conspired in that process.

The Motion for New Trial

In May 2006, more than six years after the entry of the agreed judgment in appellants' silicosis cases, the trial
court severed appellants' claims, making the agreed judgment final as to them. Appellants then filed a motion for
new trial, arguing that: (1) the settlement agreements were void because they violated the aggregate settlement
rule in the Texas Rules of Professional Conduct, and therefore, the agreed judgment was also void; (2)
Tuboscope Vetco, AMF, and Minstar committed actual fraud in connection with the settlements; and/or (3)
Tuboscope Vetco, AMF, and Minstar conspired to commit fraud with appellants' trial counsel in connection with
the settlements.

Trial Court Denies Motion for New Trial

Two months later, the trial court (6) denied appellants' motion for new trial. The trial court's order denying the
motion for new trial included significant findings of fact and conclusions of law. First, the trial court found that
appellants' trial attorney "violated Rule 1.08(f) of the Texas Disciplinary Rules, the 'aggregate settlement rule.'"
However, the trial court concluded that such violation did not void the agreed judgment. Next, the trial court
concluded that there was no actual fraud committed by appellees because appellants could not prove reliance
and because it is "unreasonable for a person to rely on statements of the opposing party in settling litigation." (7)
Finally, the trial court concluded that "there can be no conspiracy to commit fraud in the litigation setting."


Appellants challenge the trial court's denial of their motion for new trial with six issues on appeal:

(1) Did the trial court correctly find that there was an aggregate settlement between the AMF defendants and the
original six plaintiffs that sued them?

(2) Are undisclosed aggregate settlements void as a matter of public policy?

(3) If undisclosed aggregate settlements are void as a matter of public policy, are they nevertheless enforceable
by defendants that enter into them with the knowledge that the Plaintiffs' lawyers have deceived their clients
about the character of the settlement?

(4) If undisclosed aggregate settlements are void as a matter of public policy, are they nevertheless enforceable
by defendants who collude with Plaintiffs' counsel and allow the Plaintiffs' lawyers to deceive their clients about
the character of the settlement?

(5) If undisclosed aggregate settlements are void as a matter of public policy, are they nevertheless enforceable
by defendants who knowingly include false representations in settlement agreements prepared by defendants?

(6) Does a defendant have a duty to provide all material information about the true nature of a settlement once
he voluntarily includes misleading representations about the nature of the settlement in his settlement papers? If
a defendant breaches such a duty and thereafter secures a settlement, should such a settlement and agreed
judgment be set aside as a matter of law?

Motion for New Trial

We review a trial court's denial of a motion for new trial for abuse of discretion. Jackson v. Van Winkle, 660
S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex.
2003). With respect to determination of the facts, we will not substitute our judgment for that of the trial court.
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Even if the reviewing court would have decided the issue
differently, it cannot disturb the trial court's decision unless the decision is shown to be arbitrary and
unreasonable. Id. at 840. On the other hand, review of a trial court's determination of the legal principles
controlling its ruling is much less deferential. Id. A trial court has no discretion in determining what the law is or
applying the law to the facts. Id. Thus, a clear failure by the trial court to analyze or apply the law correctly will
constitute an abuse of discretion and may result in appellate reversal. Id.

Agreed Judgment

In general, a party may not appeal from or attack a judgment to which he has agreed, absent allegation and proof
of fraud, misrepresentation, or collusion. Henke v. Peoples State Bank of Hallettsville, 6 S.W.3d 717, 720 (Tex.
App.--Corpus Christi 1999, pet dism'd w.o.j.); Bexar County Criminal Dist. Attorney's Office v. Mayo, 773 S.W.2d
642, 644 (Tex. App.--San Antonio 1989, no writ); Gillum v. Republic Health Corp., 778 S.W.2d 558, 562 (Tex.
App.--Dallas 1989, no writ); Charalambous v. Jean Lafitte Corp., 652 S.W.2d 521, 525 (Tex. App.--El Paso 1983,
writ ref'd n.r.e.). Therefore, absent allegation and proof of fraud, misrepresentation, or collusion, appellants would
not be entitled to a new trial.Fraud

Appellants argue that "AMF's lawyers knowingly agreed to insert false statements in the settlement documents to
protect Smith and Hooper from divulging the aggregate settlement to their clients." The allegedly false statements

Defendants' payment of the settlement amounts stated herein are independent of its agreement to make
payments to other plaintiffs in the same or related lawsuits. Plaintiff and Defendants have negotiated this
settlement based upon the individual merits of the Plaintiff's claims. Defendants have not made any aggregate
settlement offer and this settlement is not part of any aggregate settlement.

The elements of fraud are that: (1) a material representation was made; (2) the representation was false; (3)
when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of
the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party
should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.
In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (orig. proceeding) (citing Formosa Plastics Corp. v.
Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)). As the trial court noted, "A crucial element to
a fraud cause of action is reliance. Appellants all testified that they did not rely on any statements by appellees or
on the contents of the settlement agreement with the alleged false statements or omissions." In fact, in their brief,
appellants expressly concede that they did not rely on any statements by appellees or on the contents of the
settlement agreement with the alleged false statements or omissions.

The trial court found that appellees did not commit actual fraud. We cannot say the trial court erred in so doing.
Therefore, we hold that the trial court did not abuse its discretion by denying the motion for new trial on this basis.
Because we construe appellants' issues 5 and 6 as relating to their allegations that appellees committed fraud,
we overrule issues 5 and 6.

Conspiracy to Commit Fraud or Collusion

Similarly, we construe appellants' issues 3 and 4 as their argument that the trial court erred by denying the
motion for new trial because appellees allegedly colluded with or conspired with appellants' trial counsel to commit
fraud on appellants. The trial court held, "[T]here can be no conspiracy to commit fraud in the litigation setting."
We agree.

In Bradt v. West, we found no cause of action by one attorney against his former adversary for litigation conduct.
892 S.W.2d 56, 71-2 (Tex. App.--Houston [1st Dist.] 1994, writ denied). We noted that an attorney must zealously
represent his clients within the bounds of the law because "the public has an interest in 'loyal, faithful and
aggressive representation by the legal profession.'" Id. at 71 (citing Maynard v. Cabellero, 752 S.W.2d 719, 721
(Tex. App.--El Paso 1988, writ denied). Finding no private cause of action for litigation conduct, we opined:

An attorney should not go into court knowing that he may be sued by the other side's attorney for something he
does in the course of representing his client; such a policy would favor tentative representation, not the zealous
representation that our profession rightly regards as an ideal and that the public has a right to expect. That policy
would dilute the vigor with which Texas attorneys represent their clients, which would not be in the best interests
of justice.

Id. at 72. Moreover, we explicitly noted that unmeritorious litigation conduct could properly be the subject of
sanctions, not a private cause of action. Id. Other courts have agreed that it is the type of conduct in which the
attorney engages, not whether it was meritorious in the underlying lawsuit that governs a party's right to recovery
against an adversary's former attorney. See Taco Bell Corp. v. Cracken, 939 F. Supp 528, 532 (N.D. Tex. 1996);
Chapman Children's Trust v. Porter & Hedges, 32 S.W.3d 429, 440 (Tex. App.--Houston [14th Dist.] 2000, pet.

Here the trial court noted, "All of the actions of the defendants were in connection with the settlement of a
lawsuit." We cannot say the trial court abused its discretion in denying the motion for new trial on this basis. We
overrule appellants' issues 3 and 4.

Aggregate Settlements

Finally, as an alternative to fraud, collusion, or conspiracy to commit fraud, appellants argue that the settlement
agreements and, therefore, the agreed judgment are void because the settlement agreements were undisclosed
aggregate settlements and, as such, were void as against public policy. We disagree.

An aggregate settlement occurs when an attorney, who represents two or more clients, settles the entire case on
behalf of those clients without individual negotiations on behalf of any one client. Arce v. Burrow, 958 S.W.2d
239, 245 (Tex. App.--Houston [14th Dist.] 1997) reversed in part on other grounds, Burrow v. Arce, 997 S.W.2d
229, 247 (Tex. 1999); see Scrivner v. Hobson, 854 S.W.2d 148, 152 (Tex. App.--Houston [1st Dist.] 1993, orig.
proceeding). The Texas Disciplinary Rules of Professional Conduct prohibit only undisclosed aggregate

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims
of or against the clients . . . unless each client has consented after consultation, including disclosure of the
existence and nature of all the claims or pleas involved and of the nature and extent of the participation of each
person in the settlement. Tex. Disciplinary R. Prof'l Conduct 1.08(f) (1991), reprinted in Tex. Gov't Code Ann., tit.
2, subtit. G app. A (Vernon Pamph. 1997) (State Bar R. art. X, § 9).

Prior to the settlements, both sides conducted discovery, and they had numerous and lengthy discussions
regarding individual cases as well as similarities and differences among the various cases. Moreover, in their
authorizations to settle, each appellant acknowledged that his claim was negotiated with other similar claims.
Appellants argue, essentially, that there were no specific, individual negotiations during the mediation, and there
were not back-and-forth, demand-and-offer discussions after the mediation regarding their settlements. We find
no authority--and they do not direct us to any--that proscribes the manner in which negotiations must occur or
that requires haggling or horse-trading between the parties. After the mediation, appellants made settlement
demands on appellees, based on factors specific to each of their claims, and appellees accepted their demands
and paid them. This is the essence of negotiation.

Thus, there were individual negotiations on behalf of appellants. The Rule 11 agreement did not actually settle
any case, let alone all of the cases as an aggregate settlement. No amount of money was stated in the Rule 11
agreement, and, indeed, the Rule 11 agreement did not bind the defendants to a lump sum to be paid to the
plaintiffs' lawyers and divided among his clients. Shank testified that he had no settlement authority at the
mediation. Later, appellees rejected one plaintiff's settlement demand.

In addition, as Shank explained in his deposition, each appellant's case was settled individually, after a lengthy
negotiation process involving individual offers and acceptances. Shank explained that each settlement had to be
negotiated individually in order to determine issues of insurance coverage and allocation. Therefore, we hold that
the trial court erred in concluding that the settlements here were aggregate settlements. We overrule appellants'
first issue. Because we conclude that the settlements at issue in this case were not aggregate settlements, we
decline to address appellants' second issue, which asks whether undisclosed aggregate settlements are void as
against public policy.


We affirm the judgment of the trial court.

Sam Nuchia


Panel consists of Justices Nuchia, Keyes, and Higley.

Keyes, dissenting.

1. In mass-tort litigation, IMEs, or independent medical evaluations, are not independent in the traditional sense,
but rather IME is used as a term of art for a medical examination conducted by a doctor of the defendant's
choosing. Usually only one IME is done per plaintiff, with the defendants sharing in the cost and using the same
report in litigation.

2. "Dan's [appellees' attorney] whole deal when he was arguing about this matrix, you know, he wanted--he
wanted--he wanted a matrix that was heavily weighted to exposure dates, FVC [forced vital capacity], and
impairment rating. And if I would have ever agreed to that, then Dexter--Dexter Burnett's case would have been
basically worthless because he had 115 percent predicted FVC, which, you know, is no impairment, I mean, you
know, zero impairment. And if I would have ever agreed to Dan's form of matrix, that case would have been
basically valueless."

3. Smith testified, "My understanding with Dan [appellees' attorney] was that if all of my clients made individual
demands, that when you added them all up totaled in the range of $45 million, that he would then recommend to
his carriers and his client that they--that they pay those demands."

4. Anthony Authorlee ($488,000), Dexter Burnett ($384,000), Robert Deroesselle ($209,000), Floyd Moran
($314,000), Jerome Stubblefield ($384,000), John Young ($662,000).

5. They were consolidated in Cause No. 98-03885, John George Baxter, et al. v. Tuboscope Vetco International,
Inc., formerly AMF, Inc., et al., in the 80th District Court of Harris County, Texas.

6. This "trial court" is the 295th District Court of Harris County, Texas.

7. ' '