ROBERT H. CAULFIELD, FROM A DISTRICT COURT APPELLANT, v. MARY JOYCE CAULFIELD, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-87-00827-CV
 
ROBERT H. CAULFIELD,                        FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
MARY JOYCE CAULFIELD,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES McCLUNG, KINKEADE AND OVARD
OPINION BY JUSTICE KINKEADE
APRIL 19, 1989
        Mary Joyce and Robert H. Caulfield obtained a divorce in Linn County, Iowa. The divorce decree provided that Mr. Caulfield pay alimony to Ms. Caulfield. On August 27, 1976, Ms. Caulfield sued to enforce the Iowa judgment in the 301st district court of Dallas County, Texas. In 1981, after the case had been on file for five years, the attorneys for the parties corresponded regarding an alleged agreement to settle the case. Mr. Caulfield filed a counterclaim to enforce the settlement agreement. Ms. Caulfield moved for summary judgment on her claim against Mr. Caulfield and on his counterclaim against her. Mr. Caulfield moved for summary judgment on his counterclaim. The trial court conducted a hearing on the petition and the counterclaim and rendered summary judgment in favor of Ms. Caulfield on both causes of action. Mr. Caulfield appeals from this judgment and contends that the trial court erred in 1) refusing to enforce the alleged settlement agreement; 2) overruling his motion for summary judgment on the counterclaim; granting Ms. Caulfield's motion for summary judgment 3) on the counterclaim and 4) on her claim for enforcement of the divorce decree; and 5) awarding attorney's fees. We disagree with Mr. Caulfield on his first four points of error, but agree that there is insufficient evidence of attorney's fees. We affirm the trial court's judgment in part and remand for a hearing on attorney's fees.
        Mr. Caulfield's first three points of error focus on the validity of the alleged settlement agreement. He argues that Ms. Caulfield's attorney approached Mr. Caulfield's attorney and, with her authorization, offered to settle the case for $10,000.00. Mr. Caulfield accepted the offer and his attorney confirmed the agreement in a telephone conversation with Ms. Caulfield's attorney. The two attorneys, believing that the case was settled, removed the cause of action from the trial court's docket. Subsequently, Ms. Caulfield announced that she did not consider the agreement binding and refused to settle the case.
        Mr. Caulfield urges that the settlement agreement meets the requirements of Rule 11 of the Texas Rules of Civil Procedure. Rule 11 states:
            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. Mr. Caulfield filed several letters which were written between the parties' attorneys concerning the agreement. He maintains that these letters sufficiently set out the terms of the agreement and that the attorneys' signatures on the letters bind the parties under an agency theory. The Supreme Court has held that even when a valid Rule 11 agreement exists, all parties must consent to the agreement at the time the agreed judgment is rendered. Kennedy v. Hyde, 682 S.W.2d 525, 528 (Tex. 1984). Our Court, following the Kennedy decision, ruled that a judgment cannot be rendered on a settlement agreement when one of the parties has withdrawn his consent to the agreement. Formby's KOA v. BHP Water Supply Corp., 730 S.W.2d 428, 429 (Tex. App.--Dallas 1987, no writ). Even if the correspondence in this case does comply with Rule 11, which point we do not decide, any such agreement would not be enforceable because Ms. Caulfield withdrew her consent before the judgment was rendered.
        We do not agree with Mr. Caulfield's contentions that the agreement was partially performed and is enforceable in equity. The act of removing the case from the trial court's docket did not prevent the parties from resetting it for another date, nor did it impair the rights of either party. This case distinguishable from Dehnert v. Dehnert, 705 S.W.2d 849 (Tex. App.--Beaumont 1986, no writ) in which one party took advantage of the settlement agreement by receiving property, thus rendering the agreement enforceable.
        The Kennedy case sets out the guideline for enforcing Rule 11 agreements. We know of no case decided after Kennedy which permits a court to enforce a Rule 11 agreement on grounds of equity. The trial court was correct refusing to enforce the alleged agreement, rendering judgment for Ms. Caulfield and ordering that Mr. Caulfield take nothing on his counterclaim to enforce the agreement. We overrule the first, second and third points of error.
        In his fourth point of error, Mr. Caulfield claims that the court erred in rendering judgment for Ms. Caulfield for the full amount of the Iowa judgment. He recites several affirmative defenses, including estoppel, accord and satisfaction, and release and waiver, which he contends bar Ms. Caulfield's recovery. In order to defeat a motion for summary judgment on the basis of an affirmative defense, a defendant must, by competent summary judgment proof, raise an fact issue on each element of his affirmative defense. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex. 1974). Mr. Caulfield failed to present summary judgment evidence sufficient to raise a fact issue on each of the elements of any one of his affirmative defenses. The affirmative defenses did not present an impediment to the judgment for Ms. Caulfield. We overrule the fourth point of error.
        Mr. Caulfield maintains that the trial court erred in awarding attorney's fees to Ms. Caulfield because the evidence was insufficient to support the award. The suit was tried under Iowa law, which allows attorney's fees to be awarded in suits to enforce divorce decrees for alimony and support. Texas courts may award attorney's fees in suits to enforce foreign judgments if the law of the state that rendered judgment would allow attorney's fees. Tibbetts v. Tibbetts, 679 S.W.2d 152, 154 (Tex. App.--Dallas 1984, no writ). The court may, on its own motion, take judicial notice of the laws of foreign states. TEX. R. CIV. P. 184. Thus, the trial court could properly take judicial notice of the law of Iowa providing for attorney's fees. However, there must be some evidence of the amount of attorney's fees in order to support an award.
        In this case, it was conceded in oral argument that the only basis for the amount of attorney's fees was a letter which Ms. Caulfield wrote to the trial court. The letter was not a part of the record on appeal, therefore, there is no evidence before us of the amount of attorney's fees. We sustain Ms. Caulfield fifth point of error. We affirm the judgment of the trial court in all respects except the award of attorney's fees. We reverse the judgment as to attorney's fees and remand the case to the trial court for a hearing to determine the issue of attorney's fees.
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
87-00827.F
 
 
File Date[01-02-89]
File Name[870827]