Rubye Mangum, as Executrix of the Estate of La Vada Oakes and as Beneficiary of the Will of La Vada Oakes and Paul Bradley Walker and Brenda Walker Owens v. Trent Turner and Donny Turner--Appeal from 77th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00004-CV

Rubye Mangum, as Executrix of the

Estate of La Vada Oakes and as

Beneficiary of the Will of La Vada

Oakes and Paul Bradley Walker and

Brenda Walker Owens,

Appellants

v.

Trent Turner and Donny Turner,

Appellees

From the 77th District Court

Freestone County, Texas

Trial Court No. 04-219-B

DISSENTING Opinion

The fundamental question in this proceeding is whether an enforceable contract to settle pending litigation was breached. The most important question, the one I thought was the reason we granted oral argument, is whether Rule 11 is a statute of frauds as to all agreements which purport to settle any matter in pending litigation, including the merits of the litigation, even if the agreement is not otherwise subject to a statute of frauds. That is not the question resolved by the majority.

Ships in the Night

I have never seen a more fundamental disconnect between the prevailing parties s argument about what the trial was about and an opinion affirming that victory than in this proceeding. Because the level of the disconnect is so great, no useful purpose would be served by a single judge s review of the issues raised in this appeal. Therefore, after I explain the disconnect, I will only briefly comment on the nature and merits of the appeal.

The majority goes to great effort to differentiate what they view as different agreements because they view it as dispositive of this appeal. Their entire analysis is based upon it.

Background Facts

Shortly before an impending trial date, the parties engaged in settlement discussions. At least some of the lawyers and parties believed they had orally agreed to terms that would resolve the dispute. A letter advising the court of what they thought had been accomplished, i.e., settlement, but without any discussion of the terms of the settlement, was signed by the attorneys representing both sides. The letter was filed with the court. I will refer to that document as the Rule 11 letter. The usual documents for the settlement of litigation were then prepared, as well as documents that were unique to the settlement of this proceeding. Those documents were being routed for signatures and all of the attorneys and parties had signed all the documents except the person who brought the original suit Rubye Mangum.

The Turners initially moved to enforce the Rule 11 letter filed on the eve of trial as a Rule 11 agreement. The trial court denied the request. The Turners then filed a claim for breach of contract. The claim for breach of contract was severed and tried to a jury. After the post-verdict motions and other proceedings, a judgment in favor of the Turners on their breach of contract claim was rendered. This appeal attacks that judgment.

The Turners s Ship

The Turners have defended the trial court s judgment. In doing so, they have, in several places in their brief, described or characterized their claim (originally a counterclaim and then severed). To avoid errors that might be made by me in paraphrasing the Turners s statements, I will set out their positions in their own words.

Mangum presents her Statement of the Issues in a two page narrative. The Turners contest the Statement because the issues are premised on the inaccurate contention that the judgment was based on an oral agreement. In contrast to Mangum s representations, the Settlement Agreement, as well as associated documents, was signed by the Turners, their counsel, and Mangum s counsel. The Turners submit that Mangum s Statement of the Issues does not accurately reflect the nature of the trial or the record of the proceedings.

Appellees brief, pg. 2.

The settlement documents were delivered to Jackson s office. (3RR 96). These documents were 1) a letter to XTO Energy, Inc., directing the payment of $52,000.00 of the suspense royalties to be paid to the Estate of LaVada Oakes (TX 4), 2) a Full, Final and Complete Release (TX 5), and 3) a check in the amount of $52,000.00 payable to Rubye Mangum and Reed Jackson (TX 6). The Turners and Martin signed the letter and the Release on October 11, 2005 in Jackson s office, and Jackson s wife notarized their signatures. Jackson signed the Release and the letter on the same day. (3RR 96-97, 132). Jackson and Martin also signed a Take Nothing Judgment to be presented to the court. (TX 7; 3RR 97-98, 133). At the time Jackson signed these documents, he had Mangum s permission and authority to settle the lawsuit per the terms of that settlement. (3RR 98-99).

Jackson received Mangum s authority to settle the case on September 26, 2005 when Mangum called him. (3RR 99). There was no suggestion before the papers were signed that he did not have the authority to settle the case. (3RR 99). There was no question in his mind that he didn t have Rubye Mangum s authority to settle the lawsuit at the time he and Martin executed the settlement documents on October 11, 2005. (3RR 103).

Appellees brief, pgs. 11-12.

The counterclaim to enforce the settlement agreement was severed from Mangum s claims by the agreement of the parties. (CR Feb 2, 101-03). The trial court submitted the issue of whether or not Reed Jackson had the authority of his client to settle to the jury. The jury found that Rubye Mangum authorized Reed Jackson to settle the law suit by the payment of $104,000.00 to Mangum and a release by Mangum of her claims against the Turners. (CR Feb 2, 170). Mangum filed two post-verdict motions, a Motion for Judgment Notwithstanding the Verdict (CR Mar, 2-13) and a Supplement to Her Motion for Judgment Notwithstanding the Verdict with Opposition to any Request for Additional Findings. (CR Mar, 45-107).

Turners s brief, pg. 14.

And probably the best statement of what the Turners s claim was about:

This is a suit to enforce a settlement agreement. The agreement was evidenced by a Full, Final and Complete Release, a letter directing payment of royalties as part of the consideration, a check paying the remainder of the consideration, and a Final Take Nothing Judgment prepared for the signature of the judge. The Release and the letter were signed by Donny and Trent Turner, their attorney, and Rubye Mangum s attorney. The attorneys also signed the Judgment.

Turners s brief, pg. 15.

Then continuing:

Mangum s position is that the question of whether or not an agreement existed had to be submitted to the jury. Mangum argues that because she contends there was no agreement, this issue must be resolved by the fact-finder. Contrary to this view, even when an issue is raised by a party s pleadings, if there is no conflict in the evidence with regard to the matter, it should not be submitted to the jury. Mangum cannot and does not dispute the fact that her attorney negotiated and subsequently signed the settlement agreement and associated documents. Because it was uncontroverted that the Turners, their attorney, and Mangum s attorney all agreed to the settlement and signed the documents, asking the jury about the existence of the settlement agreement would have been error.

Turners s brief, pg. 15.

And the following passage makes clear that the trial was not about an oral agreement:

Much of Mangum s argument is based on the proposition that the trial court s judgment enforced an oral agreement. While the Turners attorney did argue, mid-trial, that an oral agreement could be enforced in this case, that issue is not before the Court because the settlement (and the Turners performance) was evidenced by the written settlement agreement and associated documents. The Full, Final and Complete Release (TX 5) and the letter directing payment of the suspense royalties (TX 4) were signed by the Turners, their attorney, and Mangum s attorney. Enforceable Rule 11 Agreements may be signed by counsel, and the signature of the individual parties to the suit is not required. Batjet, Inc. v. Jackson, 161 S.W.3d 242, 247 (Tex.App. Texarkana 2005, no pet.) Thus, while Mangum s position that she did not authorize her attorney to settle the case undeniably put that discrete issue in dispute, the existence and terms of the settlement agreement were conclusively established by the exhibits noted above. As a result of her myopic denial of the record, Mangum s arguments are suppositioned on the false premise of an oral agreement and therefore lack validity, factual accuracy, and legal support.

Turners s brief, pgs. 17-18.

The Majority s Ship

The majority has affirmed the Turners s victory. But the majority affirms the judgment on a completely different agreement than the one upon which the Turners tried their case. This is evident when we look at the agreement the majority is relying upon to affirm the trial court s judgment, as well as the agreement the majority is expressly not relying upon.

To avoid the distortion of paraphrasing, I will again quote passages, this time from the majority s opinion.

In her fifth issue, Mangum also asserts that Texas Rule of Civil Procedure 11 negates the trial court s finding of a settlement agreement. To clarify, the Rule 11 Agreement that the Turners sought to enforce was a nonspecific ( The parties to the above litigation agree that all matters in controversy have been settled to the satisfaction of the plaintiff and the defendants. ) document the attorneys had signed, but the trial court refused to enforce it, and that ruling is not before us. The Turners apparently never filed and sought to enforce as a Rule 11 agreement the subsequent series of signed documents (the Release, the instruction letter, and Final Take Nothing Judgment). See, e.g., Padilla v. LaFrance, 907 S.W.2d 454, 460-61 (Tex. 1995) (series of letters between parties was sufficient to constitute writing that satisfied rule requiring settlement agreements to be in writing and filed with court).

Maj. Op., pg. 5, fn 1.

The tendered written release s statement that Mangum was ratifying the prior conveyances validity is irrelevant to her statute-of-frauds argument as to the oral agreement, which did not purport to include her ratification as a term.

Maj. Op, pg. 5, fn 2.

And from the majority s discussion of the objections and request regarding the jury charge and the trial court s findings:

In this case, the submitted question was necessarily referable to the Turners cause of action. Also, the trial court s finding is supported by sufficient evidence. In addition to the above-mentioned documentary evidence that supports the oral settlement agreement that the parties attorneys entered into, Mangum s attorney testified that the Turner s attorney accepted his offer to settle the lawsuit for $104,000 and that he had Mangum s permission to make the $104,000 offer, to make the oral settlement agreement, and to sign documents evidencing the settlement. He let Mangum know that the $104,000 offer had been accepted, and his secretary testified that she spoke with Mangum about settlement being reached and that Mangum was thankful and happy. While there was evidence that Mangum later did not agree to the written settlement documents, plainly there was factually sufficient evidence to support the trial court s settlement agreement finding and the judgment enforcing that settlement agreement.

Maj. Op., pg. 9.

And finally, it could not be more clear that the majority is affirming a judgment based on an alleged oral agreement:

Mangum s fourth issue complains that the evidence is factually insufficient on the contract elements of acceptance, mutual assent, and execution and delivery. Here, as in the second and third issues, Mangum s focus is misplaced. The settlement agreement that the trial court found and that the judgment enforces is not the written release agreement that Mangum did not agree to. Instead, as we stated above, the settlement agreement found by the trial court was the original settlement agreement between the parties attorneys, which the evidence is factually sufficient to support, as we held above. Mangum s fourth issue is overruled.

Maj. Op., pg. 10.

The Harbor

The Turners s ship is the written documents prepared, circulated, and signed after the Rule 11 letter was filed. The majority s ship is the oral agreement which it contends was made before the Rule 11 letter was prepared and filed. Thus, we have two ships passing in the night; fortunately for the Turners, they do not collide.

But the ships are headed to the same harbor. So, unless there is a legal equivalent to cross-tacking, one or both are on the wrong course. When the legal arguments of the victor and those of the Court s majority are so divergent to get to the result, it is probably a case that was tried on the wrong theory, and in fairness to all parties (in equity) should be reversed and remanded for a new trial.

There may be, however, a legal theory upon which not only is reversal an equitable result, it is a legal safe harbor as well. No one disputes that the Rule 11 letter lacks the specificity required to enforce it as a Rule 11 agreement to settle this case. No one disputes that this suit, the severed suit for breach of contract, was about an agreement between attorneys or parties related to a pending suit.

Because any such agreement is not enforceable unless it is 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, Rule 11 is the safe harbor, into which either ship must pass before it can safely drop anchor. Because it does not appear that either agreement made it to this harbor, it appears neither is entitled to enforcement. I will, however, defer a complete analysis of the Rule 11 issue until the course of travel for this litigation is more completely charted.

Conclusion

Rule 11 was adopted for a reason. That reason was to avoid satellite litigation on procedural as well as substantive issues. Now, rather than a trial on the merits of the parties real dispute, we have had a jury trial and an appeal on a severed breach of contract claim to determine if the other suit on the merits, which, of course, is still pending, was settled. It is clear from the majority opinion that there is not currently an enforceable Rule 11 agreement. However, rather than reversing the trial court s judgment, the majority affirms a judgment which enforces an agreement which touches on pending litigation.

If courts are going to do this, there is no tooth, much less teeth, in Rule 11. When I was in private practice, I always thought that until the settlement documents were all fully inked, the settlement could fall apart, and we were on for trial. Maybe I was always wrong.

I respectfully note my dissent on the basis of the foregoing discussion.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed February 27, 2008