law-rule 11 | TRCP 11 | Tex. R. Civ. R. 11 | settlement agreements |
RULE 11 CASELAW CLIPS
Under Texas Rule of Civil Procedure 11, no agreement between the attorneys or parties to a suit
is enforceable unless it is in writing, signed, and filed with the papers as part of the record, or
unless it is made in open court and entered of record. See Tex. R. Civ. P. 11. A settlement
agreement must comply with Rule 11 to be enforceable. See Padilla v. LaFrance, 907 S.W.2d
454, 460 (Tex. 1995). To satisfy the “in writing” component of Rule 11, the contract principles that
are used in determining whether a “writing” satisfies the statute of frauds apply equally to Rule 11
agreements. See id. Thus, “there must be a written memorandum which is complete within itself
in every material detail, and which contains all of the essential elements of the agreement, so that
the contract can be ascertained from the writings without resorting to oral testimony.” Id. (quoting
Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978)). The written memorandum, however,
need not be contained in one document. Id.
In Padilla, the parties had exchanged a series of letters regarding terms of a settlement while a lawsuit was
pending against Enrique Padilla. See 907 S.W.2d at 455. Padilla claimed that the letters represented a
written settlement between the parties and asked the trial court to enforce the agreement. See id. at 457.
The plaintiffs, however, contended that there was no written agreement between the parties. See id.
The Texas Supreme Court concluded that the series of letters between the parties were sufficient to
constitute an agreement in writing satisfying Rule 11. See id. at 460. In doing so, the Court noted that the
letters specifically confirmed a settlement agreement between the parties and contained all the material
terms of the agreement: an agreement to pay a specified sum of money in exchange for the settlement of
all claims. See id. at 460–61.
Green v. Midland Mortgage Co., Tex: Court of Appeals, 14-09-01036-CV (Tex.App. - [14th Dist.] Apr. 12,
Texas Rule of Civil Procedure 11 provides that,
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.
Tex. R. Civ. P. 11. Rule 11 agreements “are contracts relating to litigation.” Trudy’s Tex. Star, Inc. v. City
of Austin, 307 S.W.3d 894, 914 (Tex. App.—Austin 2010, no pet.). “The purpose of Rule 11 is to ensure
that agreements of counsel affecting the interests of their clients are not left to the fallibility of human
recollection and that the agreements themselves do not become sources of controversy.” ExxonMobil
Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
Trial courts have a ministerial duty to enforce valid Rule 11 agreements. Id. (citing EZ Pawn Corp. v.
Mancias, 934 S.W.2d 87, 91 (Tex. 1996) and Fed. Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 690
(Tex. App.—Houston [1st Dist.] 1995, writ denied)).
“[I]t is not sufficient that a party’s consent to a Rule 11 agreement may have been given at one time;
consent must exist at the time that judgment is rendered.” Id.; see also Padilla v. LaFrance, 907 S.W.2d
454, 461 (Tex. 1995) (“[C]onsent must exist at the very moment the court undertakes to make the
agreement the judgment of the court.”). A party may revoke his consent to a Rule 11 agreement at any
time before rendition of judgment. ExxonMobil, 174 S.W.3d at 309. “A court is not precluded from
enforcing a Rule 11 agreement once it has been repudiated by one of the parties, but an action to enforce
a Rule 11 agreement to which consent has been withdrawn must be based on proper pleading and proof.”
Id.; see also Padilla, 907 S.W.2d at 462 (“An action to enforce a settlement agreement [pursuant to Rule
11], where consent is withdrawn, must be based on proper pleading and proof.”). If a party revokes his
consent to a Rule 11 agreement, the opposing party may attempt to enforce the Rule 11 agreement under
contract law. ExxonMobil, 174 S.W.3d at 309; see Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. App.—
Dallas 2006, pet. denied) (“[W]here consent [to a Rule 11 agreement] has been withdrawn, a court may
not render judgment on the settlement agreement, but may enforce it only as a written contract.
Accordingly, the party seeking enforcement must pursue a separate breach of contract claim which is
subject to the normal rules of pleading and proof.”); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d
656, 658 (Tex. 1996) (per curiam) (holding same).
If fact issues are raised or a party has withdrawn consent, “the only method available for enforcing a [Rule
11] agreement is through summary judgment or trial.” Staley, 188 S.W.3d at 336. The non-breaching
party should raise its claim to enforce the disputed agreement “through an amended pleading or
counterclaim asserting breach of contract.” Id.; see also Padilla, 907 S.W.2d at 462 (approving of Padilla’s
counterclaim seeking enforcement of Rule 11 agreement); Baylor College of Med. v. Camberg, 247 S.W.
3d 342, 348 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (“[N]othing in the record indicates that
Baylor employed a proper procedure for enforcing a Rule 11 settlement agreement once the parties
proffered differing interpretations of the agreement. For example, Baylor did not file a motion for summary
judgment seeking interpretation of the Rule 11 agreement.”). “To allow enforcement of a disputed [Rule
11] agreement simply on motion and hearing would deprive a party of the right to be confronted by
appropriate pleadings, assert defenses, conduct discovery, and submit contested fact issues to a judge or
jury.” Staley, 188 S.W.3d at 336–37.
RULE 11 SETTLEMENT AGREEMENT - DID ATTORNEY HAVE AUTHORITY TO SIGN IT?
“Generally, a court will indulge every reasonable presumption to support a settlement agreement made by
a duly employed attorney.” Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 300 (Tex. App.—Austin
2000, pet. denied); see also Breceda v. Whi, 187 S.W.3d 148, 152 (Tex. App.—El Paso 2006, no pet.)
(“Generally, within these roles, every reasonable presumption is to be indulged in favor of the attorney
duly employed.”); Behzadpour v. Bonton, No. 14-09-01014-CV, 2011 WL 304079, at *3 n.2 (Tex. App.—
Houston [14th Dist.] Jan. 27, 2011, no pet.) (mem. op.) (“An attorney retained for litigation is presumed to
possess actual authority to enter into a settlement on behalf of a client.”). However, this presumption may
be rebutted by “affirmative proof that the client did not authorize his attorney to enter into the settlement.”
City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 629 (Tex. App.—Fort Worth 2003, pet. denied).
When the evidence demonstrates that the attorney did not have the authority to enter into the settlement
agreement, the agreement will not be enforced. Ebner, 27 S.W.3d at 300; see also Kelly v. Murphy, 630 S.
W.2d 759, 761 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.) (noting that presumption that
attorney is acting within authority given by client is rebuttable); Sw. Bell Tel. Co. v. Vidrine, 610 S.W.2d
803, 805 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.) (stating that “mere employment of
counsel does not clothe the counsel with authority to settle the cause without specific consent of the
A party may clothe his attorney with either actual or apparent authority to reach and sign a binding
settlement agreement. W. Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 255 (Tex. App.—Austin 2002,
no pet.); see also Ebner, 27 S.W.3d at 300 (“To establish authority, the principal must make some
manifestation to the agent (actual authority) or to a third party (apparent authority) that he is conferring
such authority.”). Actual authority is authority that the principal intentionally conferred on the agent or
allowed the agent to believe was conferred. City of Roanoke, 111 S.W.3d at 627; Ebner, 27 S.W.3d at
300; see also Behzadpour, 2011 WL 304079, at *3 (“Actual authority is created through written or spoken
words or conduct of the principal communicated to the agent.”). Actual authority includes both express
and implied authority and “usually denotes that authority a principal (1) intentionally confers upon an
agent, (2) intentionally allows the agent to believe that he possesses, or (3) allows the agent to believe
that he possesses by want of due care. Spring Garden 79U, Inc. v. Stewart Title Co., 874 S.W.2d 945,
948 (Tex. App.—Houston [1st Dist.] 1994, no writ). Implied actual authority is an “adjunct” to express
actual authority, “because implied authority is that which is proper, usual, and necessary to the exercise of
the authority that the principal expressly delegates.” Id.
Murff, MD v. Pass, No. 07-0294 (Tex. Mar. 28, 2008) (jury selection, juror confusion, disqualification)
W. GENE MURFF, M.D. AND MURFF-WANG-MOORE ASSOCIATES, P.A. v. WANDA KAYE PASS, AS
NEXT FRIEND OF LESLIE LEANN PASS, A MINOR; from McLennan County; 10th district (10-06-00162-CV,
___ S.W.3d ___, 02-28-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
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