      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00068-CV



                                   Brenda Williams, Appellant

                                                  v.

                    Walgreen Co. and Warren W. Gude, M.D., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
       NO. D-1-GN-02-003368, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this health care liability case, Brenda Williams appeals pro se from the trial court’s

judgment in favor of appellees Walgreen Co. and Warren W. Gude, M.D. After the parties entered

into a mediated settlement agreement, the claims against Gude were nonsuited based upon a

summary judgment ruling and court order in favor of Gude, and the trial court dismissed the claims

against Walgreen Co. In three issues, Williams challenges the mediated settlement agreement

and her attorneys’ conduct in representing her. For the reasons that follow, we affirm the trial

court’s judgment.


                                         BACKGROUND

               Williams, along with her husband Nathaniel Wooley and on behalf of their children,

filed suit in 2002 in connection with medical treatment that Wooley received concerning a
prescription of Dilantin, an anti-seizure medication.1 Williams and Wooley contended that Gude

prescribed a dosage of Dilantin that was excessive on its face and Walgreen Co. filled this

prescription in July 2000 causing Wooley to develop the condition “Dilantin toxicity.” Wooley was

hospitalized for treatment a few days after he began taking the prescription of Dilantin.

               In September 2005, the case was mediated, and the parties entered into a settlement

agreement. The mediated settlement agreement, entitled “Memorandum of Agreement,” was filed

with the trial court as a Rule 11 agreement. See Tex. R. Civ. P. 11. In the agreement, “[e]ach party

acknowledges that they have conferred with counsel regarding the advisability of entering this

agreement prior to signing it” and that they “have read the settlement agreement, understand it, agree

to the terms stated in it, and believe that it is in their best interest.” The terms of the agreement

included that Walgreen Co. would pay $75,000, and “Plaintiffs [would] execute a formalized

settlement agreement and dismiss all claims with prejudice” against Walgreen Co. As to the claims

against Gude, Texas Medical Liability Trust agreed to pay on behalf of Gude “taxable court costs

in an amount not to exceed $5,000,” and “Plaintiffs agree[d] to enter a non-suit as to Defendant

Gude” and a “settlement agreement and full release of claims with Defendant Dr. Gude.” To

establish the taxable costs, “Plaintiffs agree[d] to provide documentation of all such taxable court

costs” to Gude’s counsel. Williams and Wooley, their counsel, and counsel for Walgreen Co. and

Gude signed the mediated settlement agreement.




       1
         Williams and Wooley named four other defendants in addition to Walgreen Co. and Gude
but nonsuited the other defendants prior to the mediation.

                                                  2
               The parties proceeded according to the terms of the settlement agreement. Walgreen

Co. paid $75,000, and Williams and Wooley executed a formal confidential settlement agreement

and release of their claims against Walgreen Co. in November 2005. In December 2005, counsel

for Williams and Wooley submitted copies of invoices reflecting taxable court costs totaling

$3,146.30 to Gude’s counsel, and Gude’s counsel forwarded a proposed release for execution by

Williams and Wooley in exchange for payment of $3,146.30. Williams and Wooley, however, failed

to take further action to comply with the settlement agreement from this point forward. They did

not sign the proposed release concerning their claims against Gude or consent to nonsuit their

claims against him. They also declined to execute a joint motion to dismiss their claims against

Walgreen Co.

               On February 23, 2007, Gude amended his answer to include a counterclaim for breach

of the mediated settlement agreement and a motion for summary judgment on his counterclaim

seeking enforcement of the agreement. Evidence attached to his motion included (i) the settlement

agreement between the parties, (ii) a copy of a letter sent by the mediator to the trial court the day

after the mediation stating that “a settlement was achieved that was mutually acceptable to all

parties,” (iii) the letter sent in December 2005 from counsel for Williams and Wooley to Gude’s

counsel attaching invoices of taxable court costs, and (iv) the letter from Gude’s counsel to counsel

for Williams and Wooley attaching and requesting that they execute a proposed “Complete

Confidential Release, Indemnity, and Settlement Agreement.” Williams and Wooley did not file a

response to Gude’s motion for summary judgment.




                                                  3
                The trial court heard Gude’s motion on March 19, 2007, and granted the motion.2

In its order granting the motion, the trial court found that the mediated settlement agreement was

“filed pursuant to Rule 11 and [was] a binding, enforceable contract” and that “Plaintiffs have

breached that contract in failing to non-suit this case and in failing to enter a settlement agreement

and full release of claims.” The trial court also ordered the claims against Gude to be nonsuited

within 10 days. The following day, counsel for Williams and Wooley filed a motion for nonsuit, and

the trial court granted the motion. A few months later, Williams accepted the settlement payment

for the taxable court costs. At this point, the only remaining claims pending before the trial court

were against Walgreen Co.

                On December 11, 2008, Williams filed a motion to discharge her attorneys,

Larry Laden and Justin Townsend, and for sanctions.3 In her motion, she contended that she

discharged her attorneys before March 2008 and that they should be sanctioned for unethical conduct

in representing her, including: (i) failing to withdraw from the case after she discharged them and

failing to follow her wishes regarding the nonsuit of Gude, (ii) proceeding with the summary

judgment hearing in March 2007, (iii) adding language to the mediated settlement agreement after

Williams and Wooley had already signed the agreement, and (iv) using “undue pressure, intimidation

and coercion to force Brenda Williams to sign a release and settlement agreement.” Attached to her




       2
           The record reflects that Wooley died the week before the summary judgment hearing.
       3
         The attorney initially representing Williams and Wooley filed a motion to withdraw in
September 2004, and the trial court granted his motion in December 2004. Several months later,
Williams and Wooley retained Laden and Townsend on a contingency basis.

                                                  4
motion were letters to her attorneys dated July 14, 2008. In the letters, she advised her attorneys that

she was “firing” them.

                 Her attorneys filed a response to her motion that included documentary evidence.

They contended that the documents attached to their response showed that Williams was “fully

aware of the nature of the settlement and the language included therein” and that they “attempted to

solicit Plaintiffs compliance with the settlement agreement but were unsuccessful.” Their evidence

included the letter from the mediator to the court that the parties had settled the case at the

mediation, the settlement agreement, and correspondence between Williams and her attorneys during

March 2008.

                 A few weeks later, the trial court heard Williams’s motion, as well as a pending

motion by Walgreen Co. to enter final judgment. Walgreen Co. sought the dismissal of all claims

against it with prejudice. At the hearing, the confidential settlement agreement and release executed

by Williams and Wooley concerning their claims against Walgreen Co. and a document dated

November 17, 2005, and signed by Williams and Wooley to confirm receipt of the settlement funds

from Walgreen Co. were submitted in camera for the trial court’s review. The trial court also

admitted a letter from November 2005 sent by Laden to Williams and Wooley outlining possible

risks with accepting the settlement funds. Williams and Wooley signed at the bottom of this letter

acknowledging that they read the letter, “understand what it explains and agree to [be] bound

by its terms.”




                                                   5
               After the hearing, the district court entered final judgment, dismissing the claims

against Walgreen Co. with prejudice, and denied Williams’s motion to discharge her attorneys and

for sanctions. This appeal followed.


                                            ANALYSIS

               In three issues, Williams contends that her attorneys should have been sanctioned for

“misrepresentation, misconduct and lack of zealous representation,” the settlement agreement was

unconscionable and fraudulent because it should have only addressed claims against Walgreen Co.,

“requiring this court to reverse, remand, set aside or vacate all judgments, orders of non-suits and

dismissals,” and that the “trial court erred and abused its discretion in enforcing and granting”

Gude’s motion for summary judgment.


Attorney’s Representation

               In her first issue, Williams challenges the trial court’s denial of her motion to sanction

her attorneys, Laden and Townsend. Williams contends that the trial court should have sanctioned

her attorneys because they engaged in misconduct and misrepresentation and lacked zeal in their

representation of her by taking the following alleged actions: adding language to the settlement

agreement after Williams and Wooley had already signed it, using “undue pressure, intimidation, and

coercion” to force her to sign the settlement agreement, failing to follow her wishes regarding the

nonsuit of Gude, and failing to withdraw after Williams discharged them.

               We review a trial court’s ruling on a motion for sanctions under an abuse of discretion

standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The test for abuse of discretion is



                                                   6
“whether the court acted without reference to any guiding rules and principles.”                 Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

                Williams sought sanctions against her attorneys pursuant to Rule 13 of the rules of

civil procedure. See Tex. R. Civ. P. 13. Williams, however, fails to provide authority, and we have

found none, that would support sanctioning her attorneys pursuant to Rule 13. Rule 13 allows a trial

court to sanction an attorney or a party for filing motions, pleadings, or other papers that are

groundless and brought in bad faith or for purpose of harassment. Id. Williams alleges conduct by

her attorneys that is unrelated to filing motions, pleadings, or other papers except for the filing of the

motion to nonsuit Gude and, as to that motion, Williams was under court order to nonsuit her claims

against Gude at the time that her attorneys filed the motion.

                In any event, the evidence in the record does not support a finding that her attorneys

engaged in misconduct, made misrepresentations to her, or lacked zeal in their representation. The

evidence included an affidavit from Townsend, the mediator’s letter to the trial court, the mediated

settlement agreement, and Laden’s letter to Williams and Wooley that outlined possible risks with

accepting settlement funds. At the hearing on the motion, the trial court also reviewed in camera

the confidential settlement agreement and release concerning the claims against Walgreen Co. and

the document in which Williams and Wooley confirmed that they had received the settlement funds

from Walgreen Co. This evidence shows that her attorneys were proceeding in accordance with the

settlement agreement and that Williams and Wooley were aware of the terms of the agreement and

accepted those terms for at least several months after the mediation. Williams did not provide

contrary evidence.



                                                    7
               We conclude that the trial court was well within its discretion to deny Williams’s

motion to sanction her attorneys. See Cire, 134 S.W.3d at 838. We overrule Williams’s first issue.


Settlement Agreement

               In her second and third issues, Williams challenges the validity of the mediated

settlement agreement. In her second issue, she contends that the agreement is unconscionable and

fraudulent or based upon unilateral mistake and, therefore, should be set aside because her agreement

to settle was only with Walgreen Co., and that she never intended to release Gude. In her third issue,

she contends that the trial court erred and abused its discretion by granting Gude’s motion for

summary judgment and enforcing the agreement. Because Williams concedes that she agreed to

settle with Walgreen Co. at the mediation for $75,000 and does not dispute that she executed the

subsequent “Confidential Settlement Agreement and Release” as to her claims against Walgreen Co.,

we limit our review under both issues to the terms of the mediated settlement agreement between

Williams, Wooley, and Gude.4 In its order granting summary judgment for Gude, the trial court

expressly found that the mediated settlement agreement was a “binding, enforceable contract” and

that “Plaintiffs have breached that contract in failing to non-suit this case and in failing to enter a

settlement agreement and full release of claims.”




       4
          To the extent Williams challenges the settlement agreement concerning Walgreen Co.
and/or raises new issues in her reply briefs, she has not preserved these issues for this Court’s
review. See Tex. R. App. P. 38.1, 38.3; Dallas Co. v. Gonzales, 183 S.W.3d 94, 104 (Tex.
App.—Dallas 2006, pet. denied) (rules of appellate procedure do not allow an appellant to raise new
issue in reply brief); Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 439 (Tex.
App.—Austin 2004, pet. denied) (same).

                                                  8
               We review the trial court’s decision to grant summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a summary judgment

motion, the movant must demonstrate that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek

Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In deciding whether there is a disputed material fact

issue precluding summary judgment, we must take evidence favorable to the nonmovant as true,

indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the

nonmovant’s favor. Dorsett, 164 S.W.3d at 661; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1985).

               Settlement agreements may be enforced as contracts even if one party withdraws

consent before judgment is entered on the agreement. See Padilla v. LaFrance, 907 S.W.2d 454,

461 (Tex. 1995); see also Tex. Civ. Prac. & Rem. Code Ann. § 154.071(a) (West 2005) (“If the

parties reach a settlement and execute a written agreement disposing of the dispute, the agreement

is enforceable in the same manner as any other written contract.”). When consent is withdrawn, the

party seeking enforcement of the settlement agreement may pursue a separate claim for breach of

contract. Padilla, 907 S.W.2d at 461-62. That is what happened here. After Williams and Wooley

failed to sign Gude’s proposed release of their claims against him and would not consent to nonsuit

those claims, Gude amended his answer to assert a counterclaim for breach of the mediated

settlement agreement.

               Gude then filed a motion for summary judgment on his counterclaim. See Tex. R.

Civ. P. 166a(a). As part of his motion, Gude sought enforcement of the mediated settlement



                                                 9
agreement and an order of dismissal. To be entitled to summary judgment on his counterclaim

and his requested relief, Gude had to establish as a matter of law that the mediated settlement

agreement was valid and that Williams breached the agreement. See Taub v. Houston Pipeline Co.,

75 S.W.3d 606, 615 (Tex. App.—Texarkana 2002, pet. denied) (elements of breach of

contract claim).

                Gude’s summary judgment evidence included the mediated settlement agreement that

was filed with the trial court, the mediator’s letter to the trial court that “a settlement was achieved

that was mutually acceptable to all parties,” the letter sent by counsel for Williams to Gude’s counsel

documenting taxable court costs, and the letter sent by Gude’s counsel to counsel for Williams

attaching and requesting that Williams and Wooley execute a proposed “Complete Confidential

Release, Indemnity, and Settlement Agreement.” Williams did not file a response or controverting

evidence. See Tex. R. Civ. P. 166a(c); City of Houston, 589 S.W.2d at 678.

                The undisputed summary judgment evidence, then, established that the parties

executed the settlement agreement at the mediation and that the agreement was filed in accordance

with Rule 11 of the rules of civil procedure. See Tex. R. Civ. P. 11. The settlement agreement itself

established the terms of the agreement, including the agreement by Williams and Wooley to nonsuit

Gude and to execute a full release of their claims against Gude in exchange for payment of their

taxable court costs. The evidence also showed that Williams and Wooley refused to sign the

proposed release or to nonsuit Gude in accordance with the terms of the agreement. This evidence

established that the settlement agreement was valid, that Williams breached the agreement, and that

Gude was entitled to summary judgment as a matter of law. We conclude that the trial court did not



                                                  10
err in granting Gude’s motion for summary judgment and enforcing the mediated settlement

agreement. We overrule Williams’s second issue.

               As to her third issue, Williams contends that the mediated settlement agreement was

unconscionable or fraudulent or based upon unilateral mistake because she and her husband only

agreed to settle with Walgreen Co. at the mediation, and not with Gude. Because she did not file any

response to Gude’s motion for summary judgment, however, she failed to raise these issues with the

trial court, and we may not consider them as grounds for reversing the summary judgment in favor

of Gude. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written

motion, answer or other response shall not be considered on appeal as ground for reversal.”). We

overrule Williams’s third issue.


                                         CONCLUSION

               Having overruled Williams’s issues, we affirm the trial court’s judgment.5




       5
         Pending before this Court are Walgreen Co.’s Motion to Strike Appellant’s Brief and
Motion to Dismiss, Gude’s Motion to Dismiss, and Williams’s “Objection to Appellees’ St. David’s
and Dr. Warren W. Gude’s Motion to Dismiss, and any and all Motion to Strike Appellant’s Brief,
or Alternatively, Motion to Amend Brief.” Laden and Townsend, the attorneys representing
Williams before the trial court, also filed a motion to dismiss for lack of jurisdiction. We deny
these motions.

                                                11
                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: October 12, 2010




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