                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-385-CV


ESTATE OF WILLIAM BERNARD
HERRING, JR., DECEASED


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             FROM PROBATE COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Evelyn Petzold, who is proceeding pro se, appeals the judgment

signed by the probate court awarding property (“the Rosemere property”) to

Appellee Janis McCrary, Independent Administratrix of the Estate of William

Bernard Herring, Jr., Deceased. The primary issue that we decide is whether

the trial court abused its discretion by enforcing the parties’ Rule 11 agreement




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          … See Tex. R. App. P. 47.4.
and awarding the Rosemere property to McCrary in her capacity as

administratrix. We will affirm.

                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      The record reflects that the Rosemere property was transferred from W.P.

Brothers to Herring and his wife Juanita by warranty deed on March 29, 1962,

and that Juanita predeceased Herring. Herring did not transfer the property

during his lifetime and continuously resided on the property from 1962 until

2005. During part of that time, Herring allowed several individuals to live with

him, including his business partner Esther Jackson, his cousin Paula Petzold,

and Evelyn. As part of this living arrangement, Paula and Esther took out a

$78,000 loan to expand the house to accommodate the four of them.

      Herring died intestate in 2005, and thereafter, Evelyn, Esther, and Paula

filed affidavits in the Tarrant County Deed Records challenging Herring’s sole

ownership of the Rosemere property. Evelyn, in her affidavit, claimed that

Herring had orally given her an ownership interest in the Rosemere property.

      McCrary filed an application in the probate court for letters of

administration and was appointed the independent administratrix of Herring’s

estate.   McCrary filed an inventory, appraisement, and list of claims and

included the Rosemere property as part of Herring’s estate. The probate court

approved the inventory.

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      McCrary obtained a judgment of possession for the Rosemere property,

but the day before the writ of execution could be executed by the sheriff,

Evelyn filed for bankruptcy. In the bankruptcy proceedings, the bankruptcy

judge indicated that a state court should determine ownership of the property.

      McCrary, in her capacity as independent administratrix, then filed a

trespass to try title lawsuit against Evelyn, Esther, and Paula.2 Evelyn filed a

pro se answer.    Six months after McCrary filed suit, the parties attended

mediation and entered into a written “Memorandum of Agreement.” As part of

the agreement, the defendants agreed to

      give up all claims to the house at 509 Rosemere, Fort Worth, Texas
      76111 and agree[d] that no claims thereon will be made or further
      asserted in United States Bankruptcy Court, except as follows[:]
      . . . (D) Upon sale of the house, Defendants will receive 10% of the
      sellers distribution after all expenses of sale including, but not
      limited to such items as Realtors liens, tax liens, utility liens,
      materialman’s liens, mechanics liens and any other debts on the
      property.

      After the mediation, the defendants filed a motion for summary judgment

and counterclaim, along with affidavits, stating that “they will follow the

agreement for division made at mediation” but asking that the court

acknowledge their affidavits and that the Rosemere property “be removed from




      2
       … McCrary also filed suit against John Petzold; however, he did not
claim an interest in the property and was dismissed from this suit.

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the assets listed [in Herring’s estate,] except for the proceeds of sale due to

[them].”     McCrary filed a motion requesting that the probate court sign a

judgment awarding the Rosemere property to Herring’s estate.

         The probate court held a hearing on the motion for summary judgment

and on McCrary’s motion for judgment. Of the defendants, only Paula and

Esther appeared at the hearing.         At the outset of the hearing, McCrary’s

attorney stated that no proper relief was requested in the defendants’ motion

for summary judgment and that the probate court should proceed on McCrary’s

motion for judgment.         McCrary’s attorney asked that title be awarded to

McCrary as administratrix and that the probate court accept the mediation

agreement as a Rule 11 agreement. The probate court asked if the defendants

had an objection to the form of the judgment, and the following discussion took

place:

              [PAULA]: Yes, I do.      Only in the fact that I don’t
         understand why we’re going through this when –

                  THE COURT:      It has been required by the bankruptcy
         court.

                  [PAULA]:   This has been required by the bankruptcy court?

                THE COURT:           Yes, because we control title in the State.
         So title is in dispute -- even if there is a settlement agreement. The
         settlement agreement is not the Court speaking. I can only speak
         by order, decree or judgment. So this stands between all of you
         and resolution for this matter.

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            [PAULA]:     Did not the mediation that we went through --

           THE COURT:        That’s how you reach an agreement; the
      mediation does not put it into effect.

              [PAULA]:   I’m still confused. I’m not an attorney so I’m a
      little confused.

            What does this actually do, this Rule 11?

            THE COURT:     Rule 11 was your settlement agreement;
      this [judgment] sets and puts into effect your settlement
      agreement.

            ....

            It resolves the matter and allows the property to be sold,
      according to your agreement. The title company is not going to
      close without an order from the Court.

The probate court spent a great deal of time explaining to Esther and Paula the

necessity of entering a judgment, and the probate court ultimately accepted the

parties’ agreement and signed a judgment awarding the Rosemere property to




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McCrary as independent administratrix of Herring’s estate.3 This appeal by

Evelyn followed.

                   III. S ETTLEMENT A GREEMENT W AIVES C LAIMS

      Evelyn characterizes the following statements as her “issues”:

      1). When a verbal contractual agreement has been made, and is
      evidenced by the payments made, and by the performance of both
      parties for an extended period of time (18 years), there is no
      requirement that the contract be written to be considered valid.

      2). In a Trespass to try Title action a plaintiff must establish
      superior title out of a common source or prove title by prior
      possession coupled with proof that possession was not abandoned.

      3). Undisputed affidavits, executed before an independent Notary
      Public and sworn under declaration of penalty of perjury, which
      fully state the facts of a case, cannot be ignored or overruled.

      4). No judgment is necessary when a Rule 11 agreement has been
      reached and accepted by the Court.

Evelyn, in her prayer, urges us to take notice of and to acknowledge the

evidence of the verbal contract mentioned in the undisputed affidavits and the




      3
       … The probate court did not enter a separate order on the defendants’
motion for summary judgment or reference their motion for summary judgment
in its order. Because the probate court’s judgment awards the Rosemere
property to McCrary in her capacity as administratrix, it thereby impliedly denied
the relief prayed for in the defendants’ motion for summary judgment, no
separate judgment denying the motion for summary judgment was necessary.
See generally Parker v. Barefield, 206 S.W.3d 119, 121 (Tex. 2006) (holding
that request for leave to amend pleadings was effectively denied when trial
court granted special exceptions and dismissed case).

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payment records included with the motion for summary judgment, to rescind

the judgment signed by the probate court, and to “reaffirm” the Rule 11

agreement. In accordance with Texas Rule of Appellate Procedure 38.9, we

liberally construe Evelyn’s four issues as a complaint that the trial court erred

or abused its discretion by enforcing the parties’ Rule 11 agreement and

awarding the Rosemere property to McCrary in her capacity as administratrix.

See Tex. R. App. P. 38.9.

      Pursuant to Rule 11, no agreement between the parties or their attorneys

shall be enforceable unless the agreement is either (1) in writing, signed by the

parties, and filed with the papers as part of the record or (2) made orally in

open court and entered as part of the record. Tex. R. Civ. P. 11. Rule 11 aims

to eradicate the misunderstandings and controversies commonly associated

with verbal agreements among parties and counsel. Padilla v. LaFrance, 907

S.W.2d 454, 460 (Tex. 1995). Agreements in writing and filed with the court

allow the writings to “speak for themselves” so that “the court can judge of

their import, and proceed to act upon them with safety.” Id. A trial court has

a ministerial duty to enforce a valid Rule 11 agreement.        Scott-Richter v.

Taffarello, 186 S.W.3d 182, 189 (Tex. App.—Fort Worth 2006, pet. denied);

ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 309 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied).

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      Thus, the trial court here had a ministerial duty to enforce the parties’

Rule 11 agreement if it was valid. Evelyn did not appear at the hearing on

McCrary’s motion for judgment and never challenged the validity and

enforceability of the September 12, 2007 Rule 11 agreement (e.g., by attacking

it on the grounds of fraud or mistake or by arguing that some exception to its

enforcement applied), and she does not raise such a challenge on appeal. See

Scott-Richter, 186 S.W.3d at 190. Instead, she urges us to “reaffirm” the Rule

11 agreement.

      Because Evelyn urges us to “reaffirm” the Rule 11 agreement, it appears

that she does not understand the legal effect of it. The Rule 11 agreement is

“reaffirmed” by the trial court’s judgment. Although the Rule 11 agreement

does not explicitly state that the Rosemere property should be awarded to

McCrary as independent administratrix, that is the effect of Evelyn’s and the

other defendants’ agreeing to relinquish all their claims to the property.

Without their claims clouding the title, the Rosemere property remained solely

titled in Herring because he did not transfer his interest in the property by deed

prior to his death. Consequently, the property remained in Herring’s estate, of

which McCrary was charged as independent administratrix with the duty of

disposing of all property within Herring’s estate. See generally Tex. Prob. Code

Ann. § 405 (Vernon 2003) (listing items that must be included in account for

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final settlement of estate, including disposition of property belonging to estate

which has come into the administrator’s hands).

       The Rule 11 agreement signed by the parties is clear and unambiguous,

stating that the parties “give up all claims to the house at 509 Rosemere, Fort

Worth, Texas 76111.”      Accordingly, because Evelyn agreed to give up all

claims to the Rosemere property pursuant to a valid Rule 11 agreement, the

probate court did not err or abuse its discretion by performing its ministerial

duty and granting McCrary’s motion to enforce the settlement agreement. See

Tex. R. Civ. P. 11; Scott-Richter, 186 S.W.3d at 191 (upholding trial court’s

grant of appellees’ amended motion to enforce settlement agreement, despite

appellants’ arguments that settlement agreement had effect of imposing

additional material terms to agreement that parties had yet to negotiate and

agree upon, because appellants never challenged validity and enforceability of

Rule   11   agreement);   see   also   Childers   v.   King   Ranch,   Inc.,   No.

13-03-00006-CV, 2005 WL 774512, at *5 (Tex. App.—Corpus Christi Apr. 7,

2005, no pet.) (mem. op.) (holding trial court did not abuse its discretion by

granting relief in strict accordance with parties’ Rule 11 agreements).        We

therefore overrule Evelyn’s four issues.




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                            IV. C ONCLUSION

     Having overruled Evelyn’s four issues, we affirm the probate court’s

judgment.




                                              PER CURIAM

PANEL: WALKER, J.; CAYCE, C.J.; and LIVINGSTON, J.

DELIVERED: February 19, 2009




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