                          NUMBER 13-11-00479-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


DEBORAH MCDONALD,                                                           Appellant,

                                            v.

DONNA FOX,                                                                   Appellee.


               On appeal from the County Court at Law No. 2
                        of Nueces County, Texas.


                          MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                Memorandum Opinion by Justice Rodriguez
       This is an appeal from the jury's verdict that appellant Deborah McDonald

breached her mediated settlement agreement with appellee Donna Fox. By four issues,

McDonald argues that:      (1) the evidence was insufficient to support the award of

attorneys' fees to Fox; (2) the evidence was insufficient to support the amount of contract
damages awarded to Fox; (3) the trial court abused its discretion in admitting the

mediator's report regarding the settlement; and (4) the mediated settlement agreement

was not enforceable as a matter of law. We affirm.

                                     I. Background

       McDonald and Fox are sisters. When their mother died in May 2009, Fox was

appointed temporary administrator of their mother's estate. McDonald then attempted to

probate their mother's will. Fox contested the will and obtained a temporary injunction to

stop distribution of the proceeds of their mother's life insurance policy to their brother

John Fox, the named beneficiary. The trial court ordered the parties to mediation to

resolve their disputes over the disposition of their mother's estate.

       The mediation was held in early January 2010.            At the conclusion of the

mediation, a settlement agreement was signed by the parties.             The agreement

purportedly awarded to Fox the entire amount of the life insurance policy, a Wells Fargo

bank account, and an ING account. The name of the parties' other brother, Fred Fox,

had been crossed out as an additional recipient of the life insurance proceeds. The

agreement also provided that, upon releases signed by McDonald and John Fox to their

interests in the life insurance proceeds, Fox would deed her interest in the parties'

mother's house to John Fox.

       In the days and weeks following the mediation, a dispute arose between the

parties over the terms of the agreement. McDonald and John Fox objected to the

deletion of Fred Fox as a recipient of the life insurance proceeds, contending they had

never agreed to the cross-out of his name in the settlement agreement. The parties

attempted further mediation over the phone, but negotiations eventually broke down
                                             2
when McDonald and John Fox refused to sign their releases to the life insurance

proceeds. In April 2010, Fox filed suit against McDonald and John Fox for breach of the

settlement agreement.

        In her suit, Fox alleged that McDonald and John Fox breached the settlement

agreement when they refused to sign their releases to the life insurance proceeds, which

prevented enforcement and execution of the remainder of the settlement agreement. In

January 2011, Fox's suit was tried to a jury, which found that: the settlement agreement

gave Fox the life insurance proceeds, the Wells Fargo bank account, and the ING

account; McDonald and John Fox failed to comply with the settlement agreement;

McDonald and John Fox's failure to comply was not excused; and $199,060.78 would

fairly and reasonably compensate Fox for her damages. The jury also awarded Fox

attorney's fees for the services of each of her attorneys in preparing for trial: $66,287.24

for Monte English's services; and $10,670.38 for Brenda Baker's services. 1

        McDonald and John Fox filed a motion for judgment notwithstanding the verdict

and motion to disregard the jury's answer, arguing, in relevant part, that there was no

evidence to support the attorney's fees awarded for English's services; the jury's

damages finding should be reduced to reflect that Fox failed to perform her obligation

under the agreement to deed her interest in the mother's house to the defendants; and

the agreement was unenforceable as a matter of law. The trial court denied McDonald

and John Fox's motions and entered judgment for Fox in the amount of $281,608.00,

which included the damages award, the attorney's fees for both English and Baker, and


        1
          The jury also awarded fees for English's services in the event of an appeal, but McDonald does
not challenge that portion of the fee award.
                                                   3
$5,589.60 in prejudgment interest. This appeal followed.

                                     II. Attorney's Fees

       By her first issue, McDonald argues that the evidence was legally and factually

insufficient to support the reasonableness of the attorney's fees awarded for English's

services. Specifically, McDonald argues that there was no evidence offered of the work

performed by English or of the reasonableness of shifting the contingency fee English

and Fox agreed on to McDonald. McDonald also argues that Fox failed to segregate

English's fees.

A. Reasonableness of Fees

       We review a jury's finding of the amount of reasonable and necessary attorney's

fees incurred for sufficiency of the evidence. Carlile v. RLS Legal Solutions, Inc., 138

S.W.3d 403, 409 (Tex. App.—Houston [14th Dist.] 2004, no pet.). "We must be mindful,

however, that we are reviewing a jury's verdict and may not substitute our judgment for

that of the fact[]finder." C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex.

App.—Houston [1st Dist.] 2004, no pet.).

       We will sustain a legal-sufficiency or no-evidence challenge if the record shows:

(1) the complete absence of evidence of a vital fact; (2) that the court is barred by the

rules of law or evidence from giving weight to the only evidence offered to prove a vital

fact; (3) that the evidence offered to prove a vital fact is no more than a scintilla; or (4) that

the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson,

168 S.W.3d 802, 810 (Tex. 2005). When reviewing a no-evidence challenge, we view

the evidence in the light favorable to the finding, crediting favorable evidence if a

reasonable fact-finder could and disregarding contrary evidence unless a reasonable
                                                4
fact-finder could not. Id. at 807. The ultimate test for legal sufficiency is whether the

evidence would enable reasonable and fair-minded people to make the finding under

review. Id. at 827.

       In reviewing a factual-sufficiency challenge to a jury finding on an issue on which

the appellant did not have the burden of proof, we consider and weigh all of the evidence

and set aside the verdict only if the evidence that supports the jury finding is so weak as to

make the verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986) (per curiam); Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 469-70 (Tex.

App.—Corpus Christi 2008, pet. denied).

       In determining whether an attorney's fee award is reasonable, we consider the

following factors: (1) the time and labor required, novelty, and difficulty of the question

presented and the skill required to properly perform the legal service; (2) the likelihood

that the acceptance of employment precluded other employment by the lawyer; (3) the

fee customarily charged in the locality for similar services; (4) the amount involved and

the results obtained; (5) the time limitations imposed by the client or by the

circumstances; (6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer performing the services; and (8)

whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997) (citing TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04; Ragsdale

v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990)). A litigant is not

required to present evidence on each of these factors. In re Estate of Vrana, 335 S.W.3d

322, 329-30 (Tex. App.—San Antonio 2010, pet. denied) (citing Burnside Air Conditioning

& Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 898 (Tex. App.—Dallas 2003, no
                                              5
pet.); Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex.

App.—Houston [14th Dist.] 2000, no pet.)). Rather, we look at the entire record, the

evidence presented on reasonableness, the amount in controversy, the common

knowledge of the participants as lawyers and judges, and the relative success of the

parties in determining the reasonableness of the fee award.            Garrod Invs., Inc. v.

Schlegel, 139 S.W.3d 759, 767 (Tex. App.—Corpus Christi 2004, no pet.).

                [A] contingency fee agreement alone cannot support an award of
       attorney's fees. . . . [W]hile a contingent fee may be a reasonable fee from
       the standpoint of the parties to the contract, i.e., a plaintiff and his
       lawyer, . . . the mere fact that a party and a lawyer have agreed to a
       contingent fee [does not] mean[] that the fee arrangement is in and of itself
       reasonable for purposes of shifting that fee to the defendant. . . .
       [A]lthough a party's contingent fee agreement should be considered by the
       fact[]finder, a determination of the reasonableness of the fee must [still] take
       into consideration the factors required by [Texas Disciplinary Rule of
       Professional Conduct 1.04 and Arthur Andersen].

Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 777-78 (Tex. App.—Corpus

Christi 2007, no pet.) (citing TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04; Arthur Andersen,

945 S.W.2d at 818-19). In other words, "[t]he plaintiff cannot simply ask the jury to award

a percentage of the recovery as a fee; without evidence of the [Arthur Andersen factors],

the jury has no meaningful way to determine if the fees were in fact reasonable and

necessary." Transcont'l Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 675 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied) (citing Arthur Andersen, 945 S.W.2d at

818-19).

       Here, the attorney's fees question submitted to the jury specified the eight Arthur

Andersen factors as factors the jury may have considered in determining what a

reasonable fee would be for English's services.         The jury awarded $66,287.24 for

                                              6
English's fees for preparation and trial. And having reviewed the trial record, we believe

there was sufficient evidence of most of the Arthur Andersen factors such that the jury

could have determined that $66,287.24 was reasonable.

       The testimony at trial established that English became involved with the dispute in

January 2010 when it became apparent to Fox that McDonald and John Fox were

disputing the terms of the settlement agreement. This is evidence of the sixth factor, the

nature and length of the professional relationship between English and Fox.

       Brenda Baker, Fox's probate attorney who had represented Fox in the mediation,

testified that she referred Fox to English for representation in the breach-of-contract suit

because English had unique experience trying cases involving the enforcement of

settlement agreements. Baker testified that English's reputation as a trial lawyer was

"sterling" and that he had tried hundreds of cases in his thirty years as a lawyer. This is

evidence of the first and seventh factors.

       Baker testified that Fox and English entered into a contingency fee agreement in

which Fox agreed to pay English one-third of any award she recovered in her suit; Baker

testified Fox would not have been able to afford English's services without a contingency

agreement. Baker also testified that the one-third contingency fee was a customary fee

in cases like Fox's. The contract between Fox and English outlining the contingency fee

was admitted into evidence.      The jury's award of $66,287.24 for English's fees in

preparing for trial was approximately one-third of the $199,060.78 in damages awarded to

Fox. The foregoing is all evidence relating to the third and eighth factors.

       Baker then testified that the amount of money involved in the case was significant;

other evidence at trial established that the value of the life insurance policy and bank
                                             7
accounts involved exceeded $200,000. This is evidence relating to the fourth factor.

        Finally, Baker testified that the circumstances of the case made time of the

essence. She testified that the dispute over the settlement agreement prevented any

resolution of the will contest and that the estate's assets were depleting as the dispute

between the siblings continued. This is evidence relating to the fifth factor.

        McDonald argues that because there was no testimony about the time English

spent on the case, the jury's award was not reasonable. We note that, while there was

no specific testimony about the hours English spent on the case, time spent working on

the case is only one consideration for the first Arthur Andersen factor. There was

testimony that enforcement of settlement agreements is a novel and difficult

subject-matter and that English had the particular skills to handle such a case.

Regardless, evidence need not be submitted to support every factor. See In re Estate of

Vrana, 335 S.W.3d at 329-30; see also Bank of Tex. v. VR Elec., Inc., 276 S.W.3d 671,

684-85 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (holding that evidence of

attorneys' fees was sufficient despite failure of evidence to address each Arthur Andersen

factor); see also McAlester Fuel Co. v. Carpenter, No. 01-07-00653-CV, 2009 WL

417301, at *6 (Tex. App.—Houston [1st Dist.] Feb. 19, 2009, pet. dism'd) (mem. op.)

(holding that the absence of evidence for two factors did not render the evidence of fees

insufficient). And in contingency fee cases, in particular, courts do not always require

evidence of hours spent on the case in order for a jury to be able to determine a

reasonable amount of attorney's fees.2 See Brazos Elec. Power Co-op., Inc. v. Weber,

        2
          McDonald directs us to Ford Motor Co. v. Garcia, a March 2012 Texas Supreme Court case in
which the Court reversed an award of guardian ad litem attorney's fees where the evidence showed that the
ad litem did not perform all tasks listed on his invoice, the invoice did not set out the amount of time each
                                                     8
238 S.W.3d 582, 586-87 (Tex. App.—Dallas 2007, no pet.) (holding that there was

sufficient evidence of the Arthur Andersen factors to support shifting contingency fee

where there was testimony about the number of months the attorney had spent on the

case, the length and nature of the relationship between the attorney and client, the

attorney's expertise in the subject-matter of the case and that the contingency fee was a

customary fee in this type of case); Vingcard A.S. v. Merrimac Hospitality Systems, Inc.,

59 S.W.3d 847, 869-70 (Tex. App.—Fort Worth 2001, pet. denied) (holding that there was

sufficient evidence to support shifting contingency fee where there was testimony: that a

contingency arrangement was customary in these type of cases and that the percentage

being charged was, in fact, less than other cases of the same type; explaining how the fee

would be used to pay costs and co-counsel fees; and explaining the jury how to calculate

the percentage).

        Viewing the evidence in the light most favorable to the verdict, we conclude that a

reasonable and fair-minded jury could have found that $66,287.24 was a reasonable fee

for English's services. See City of Keller, 168 S.W.3d at 807, 827. We also conclude

that the evidence supporting the jury's finding on English's fees was not so weak as to

make the verdict clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.



task took, and many of the tasks listed were not compensable under the rule of civil procedure governing
the compensation of guardians ad litem. 363 S.W.3d 573, 580-82 (Tex. 2012). McDonald asserts that
Ford Motor Company v. Garcia "reaffirmed the principle that the fact finder must determine attorney's fees
in light of the work performed in the very case for which the fee is sought." In another recent case, the
Texas Supreme Court weighed in on the proof required for fees awarded based on the lodestar method,
holding that "the fee application and record must include proof documenting the performance of specific
tasks, the time required for those tasks, the person who performed the work, and his or her specific rate."
El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 765 (Tex. 2012). We do not find either of these cases
dispositive of this appeal as both involve specific fee arrangements not present in this case—guardian ad
litem fees and lodestar method fees—and neither involve contingency fee agreements and the unique
standard involved in proving the reasonableness of shifting a contingency fee.
                                                    9
B. Segregation

       Next, noting that Fox's "attorneys pursued several claims, including a will contest,

an interpleader involving life insurance proceeds, a temporary administration with several

contests, motions to enforce the purported settlement agreement filed under the will

contest cause of action, and the case at hand," McDonald argues that Fox failed to

segregate English's fees between the services for which fees were recoverable and those

for which they were unrecoverable. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d

299, 313 (Tex. 2006) ("[W]e reaffirm the rule that if any attorney's fees relate solely to a

claim for which such fees are unrecoverable, a claimant must segregate recoverable from

unrecoverable fees."). However, the evidence shows that English was only involved

with the breach-of-contract suit to enforce the settlement agreement. Baker was Fox's

attorney for the remaining claims indentified by McDonald, and McDonald does not

challenge Fox's segregation of Baker's fees. The settlement agreement specifically

provides that the prevailing party in any dispute over the enforcement of the agreement

shall recover attorney's fees, and McDonald does not dispute this.          Because all of

English's services involved Fox's efforts to enforce the settlement agreement, there was

no need to segregate his fees.

C. Summary

       Having determined that the evidence was sufficient to support the reasonableness

of the jury's attorney's fee award and that Fox was not required to segregate English's

fees, we overrule McDonald's first issue.

                                 III. Contract Damages

       By her second issue, McDonald argues that the damages awarded by the jury
                                            10
were supported by legally and factually insufficient evidence because the damages were

not properly offset by the costs Fox avoided by not conveying her interest in the mother's

house, as required by the settlement agreement. The jury was charged as follows on

damages:

            What sum of money, if any, if paid now in cash, would fairly and
      reasonably compensate Donna Fox for her damages, if any, that resulted
      from [McDonald and John Fox's] failure to comply [with the settlement
      agreement].

             Consider the following elements of damages, if any, and none other.

             The difference in value, if any, between the value of the obligations
             agreed to by the parties and the value of the obligations performed
             by John E. Fox and Deborah McDonald. The difference in value, if
             any, shall be determined at the time and place the obligations were
             performed.

The jury then answered that $199,060.78 was a reasonable amount for damages

sustained by Fox. McDonald argues that, under the charge, it was unreasonable for the

jury to not reduce the amount it awarded Fox by the value of her one-third interest in the

house, which interest she was obligated to convey under the settlement agreement but

undisputedly never did. We disagree—the amount of damages awarded by the jury

complied with the charge and was supported by the evidence at trial.

      Here, the jury specifically found that Fox was entitled, under the settlement

agreement, to the proceeds from the mother's life insurance policy, a Wells Fargo bank

account, and an ING account. At trial, there was evidence that: the life insurance policy

was valued at approximately $185,000; the Wells Fargo account had a balance of

approximately $12,000; and the ING account had a balance of approximately $1,600.

These figures totaled almost $199,000, very near the amount awarded by the jury.

                                           11
McDonald argues that the jury should have reduced its award by the value of Fox's

one-third interest in the mother's home.3 But the charge, to which McDonald lodged no

objections, did not require the jury to make the offset McDonald urges. Rather, under the

charge, it was reasonable for the jury to disregard the value of Fox's interest in the house

because, in the settlement agreement admitted as evidence at trial, Fox's obligation to

deed her interest in the house was conditioned on McDonald and John Fox's execution of

releases regarding the life insurance proceeds. In other words, because there was

evidence that McDonald and John Fox never executed those releases, it was reasonable

for the jury to conclude that Fox's obligation to deed her interest was never triggered and,

therefore, was not a cost avoided by Fox that needed to be reflected in the damages

awarded. We believe this apparent finding is further supported by the jury's finding that

McDonald and John Fox's failure to comply with the settlement agreement was not

excused by any breach of the agreement by Fox. Ultimately, juries have considerable

latitude in making damages awards within the evidence presented at trial. See Gulf

States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) (citation omitted). And we will

not disturb the jury's award in this case as it was clearly supported by the evidence and

authorized by the charge.

       In sum, viewing the evidence in the light most favorable to the verdict, we conclude

that a reasonable and fair-minded jury could have found that Fox suffered $199,060.78 in

damages as a result of McDonald's failure to comply with the settlement agreement.

See City of Keller, 168 S.W.3d at 807, 827.               We also conclude that the evidence


       3
        The evidence at trial showed the home to be valued at approximately $234,000; one-third of this
amount would have been approximately $78,000.
                                                  12
supporting the jury's finding on Fox's damages was not so weak to make the verdict

clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. McDonald's second

issue is overruled.

                        IV. Validity of Settlement Agreement

       By her fourth issue, McDonald argues that the settlement agreement in this case

was unenforceable as a matter of law because: (1) the deletion of Fred Fox as a

recipient of the life insurance proceeds materially altered McDonald's initial settlement

offer to Fox, was therefore not a valid acceptance, and thus no legally enforceable

contract formed; and (2) the ratification of the alteration by McDonald's attorney did not

bind McDonald.

               [A] written settlement agreement may be enforced though one party
       withdraws consent before judgment is rendered on the agreement. See
       Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). Where consent is
       lacking, however, a court may not render an agreed judgment on the
       settlement agreement, but rather may enforce it only as a written contract.
       Id. at 462. [In such a case], the party seeking enforcement must pursue a
       separate breach-of-contract claim, which is subject to the normal rules of
       pleading and proof. Id.

Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996). To prevail in a

breach-of-contract suit, a plaintiff must prove: (1) existence of a valid contract; (2)

performance or tendered performance by the plaintiff; (3) a breach by the defendant; and

(4) damages sustained by the plaintiff as a result of the breach. Sauceda v. GMAC

Mortgage Corp., 268 S.W.3d 135, 140 (Tex. App.—Corpus Christi 2008, no pet.).

       Here, McDonald challenges the existence of a valid and enforceable contract. In

order for a contract to be enforceable, there must be an offer, an acceptance in strict

compliance with the terms of the offer, a meeting of the minds, consideration, each party's

                                            13
consent to the terms, and execution and delivery of the contract with the intent that it be

mutual and binding. ABB Kraftwerke Aktiengesellschaft v. Brownsville Barge & Crane,

Inc., 115 S.W.3d 287, 291 (Tex. App.—Corpus Christi 2003, pet. denied) (citing Fed. Sign

v. Tex. So. Univ., 951 S.W.2d 401, 408-09 (Tex. 1997); Labor Ready Cent. III, L.P. v.

Gonzalez, 64 S.W.3d 519, 522 (Tex. App.—Corpus Christi 2001, no pet.)). Whether a

contract is enforceable is a question of law we review de novo. Perry Homes v. Cull, 258

S.W.3d 580, 598 (Tex. 2008).

        McDonald contends that, during the mediation, she tendered an offer to Fox in the

form of a type-written draft settlement document.4 In relevant part, the draft agreement

provided that the life insurance policy would be paid "in its entirety to Donna A. Fox and

Fred Fox." In the settlement document that eventually became the subject of this suit,

Fred Fox's name had been crossed out.                   There was conflicting testimony at trial

concerning the negotiations that led to the deletion of Fred Fox's name. McDonald

testified that she never agreed to the deletion of Fred Fox's name as a recipient of the life

insurance funds; she testified that she was unaware of the deletion until her lawyer made

her aware of the alteration the day after the mediation.                 Both John Fox's attorney,

Vaughn Westheimer, and Fox's attorney, Brenda Baker, testified that Fred Fox's name

was eliminated early in the negotiations. Westheimer testified that, although McDonald

and John Fox signed their names to the settlement document before any hand-written

deletions or other alterations were made, he specifically pointed out the deletion of Fred

Fox's name to everyone in the room, including McDonald, before the conclusion of the


        4
         Fox does not dispute this characterization of the negotiations and it is supported by the record.
See TEX. R. APP. P. 38.1(g).
                                                   14
mediation. Westheimer testified that, at the end of the mediation, he was under the

impression an agreement had been reached. Finally, the settlement agreement was

admitted into evidence.    The agreement, which included the deletion, included the

signatures of both McDonald and her attorney.         Further, the initials of McDonald's

attorney appear by the deletion of Fred Fox's name.

      Both of McDonald's arguments in this issue center on her contention that she

never agreed to the deletion of Fred Fox as a recipient of the life insurance proceeds.

First, McDonald argues that the deletion by Fox was not in strict compliance with the

terms of her offer and, thus, was not a valid acceptance by Fox. See ABB Kraftwerke

Aktiengesellschaft, 115 S.W.3d at 291.      We are not persuaded by this argument.

Assuming that the deletion of Fred Fox constituted a counter-offer by Fox to McDonald's

initial offer, there was evidence that this deletion was agreeable to the parties. There

was testimony that the deletion of Fred Fox's name was discussed by the parties early in

the negotiations and that the deletion was pointed out to all the parties by one of the

attorneys before the end of the mediation. We are also mindful of the agreement itself,

which included the complained-of deletion and McDonald's signature. Had McDonald

disagreed with the hand-written deletion of Fred Fox's name that occurred after she

initially signed the document, she could have removed her signature before the end of the

mediation. Instead, in light of the fact that McDonald does not contend that the deletion

was made surreptitiously or otherwise fraudulently, and because we presume that parties

know the contents of contracts they sign, we presume that McDonald agreed to the terms

of this document which contains her signature. See In re Bank of Am., N.A., 278 S.W.3d

342, 344-45 (Tex. 2009) (holding that courts presume a party that signs a contract knows
                                           15
its contents, and absent fraud or imposition, a party's failure to read an instrument before

signing is not a ground for avoiding it). In short, there was evidence that the parties

ultimately had a meeting of the minds and consented to the terms. See ABB Kraftwerke

Aktiengesellschaft, 115 S.W.3d at 291. In determining that an enforceable agreement

existed, the trial court was free to disregard McDonald's self-serving testimony that she

would never have agreed to the deletion and credit the foregoing evidence that the parties

ultimately reached an agreement, which included the deletion of Fred Fox's name. In

light of the conflicting evidence, we will not disturb the trial court's determination in that

regard.

       Next, McDonald argues that the initials of her attorney by the deletion, alone, did

not bind her to the contract. McDonald argues that her attorney, Brad Bunting, had no

authority to approve the deletion of Fred Fox's name because McDonald never consented

to the deletion. See 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.) ("It has long been settled that the mere

employment of counsel does not clothe the counsel with authority to settle the cause

without the specific consent of the client."). Again, we are not persuaded. As discussed

above, Bunting's initials were not the only evidence of McDonald's assent that was before

the trial court. There was other evidence that all parties, including McDonald, were

aware of the deletion before the end of the mediation. This is evidence that McDonald

herself agreed to the terms in the settlement agreement as she left her signature on the

agreement even after being made aware of the deletion. We believe the foregoing

makes Bunting's initials—and whether he had McDonald's specific consent—irrelevant.

       We conclude that the trial court did not err in determining, as a matter of law, that
                                             16
the settlement agreement was enforceable. We overrule McDonald's fourth issue.

                        V. Admission of Mediator's Statement

       By her third issue, McDonald argues that the trial court abused its discretion in

admitting as evidence the mediator's report to the court, in which the mediator indicated

that the case had been settled. McDonald argues that Fox failed to lay the proper

predicate for the mediator's report to be used as expert testimony and that the report was

hearsay that did not fall into the public records exception of rule 803. See TEX. R. EVID.

702, 703, 803(8). McDonald argues she was harmed by the admission of the evidence

because Fox relied on the mediator's statement that a settlement had been reached as

part of her theory at trial that a contract had formed between the parties.

       Assuming without deciding that the trial court erred in admitting the mediator's

report, we cannot agree that McDonald was harmed by its admission. Erroneously

admitted evidence warrants reversal only if the error probably resulted in the rendition of

an improper judgment. TEX. R. APP. P. 44.1(a); Nissan Motor Co. v. Armstrong, 145

S.W.3d 131, 144 (Tex. 2004). To determine whether the admission of evidence was

harmful, "we must evaluate the entire case from voir dire to closing argument, considering

the evidence as a whole, the strength or weakness of the case, and the verdict." U-Haul

Int'l, Inc. v. Waldrip, No. 10-0781, 2012 WL 3800220, at *14 (Tex. Aug. 31, 2012) (citing

Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008); Spohn

Hosp. v. Mayer, 104 S.W.3d 878, 883-84 (Tex. 2003)). "In determining whether the

erroneous admission of evidence probably led to an improper judgment, courts look to the

role the evidence played in the context of the trial and the efforts made by counsel to

emphasize the erroneous evidence, as well as whether contrary evidence existed that the
                                            17
improperly admitted evidence was calculated to overcome." Id. (citations omitted).

      Here, the mediator's report was introduced by Fox and admitted by the trial court

during the testimony of Brenda Baker, Fox's probate attorney. The exchange relevant to

the admission of the report was as follows:

      [Counsel for Fox]:   Now, we talked about, in the Court's [order referring
                           the parties to mediation], when the the Court ordered
                           the case to be mediated, one of the things the Court
                           also ordered is to — said the mediator shall file a report
                           with this court within 48 hours after the completion of
                           the mediation indicating only whether the case settled
                           in whole or in part, correct?

      [Baker]:             That's correct.

      [Counsel for Fox]:   And that's a normal thing in a mediation to have
                           happen, right?

      [Baker]:             Yes, it is.

      [Counsel for Fox]:   Now, we'll mark Plaintiff's Exhibit 6 which is in
                           evidence, this is dated January 15[, 2010]. So that's
                           three days after January 12, the letterhead is Michael
                           Elliott, the mediator, and it was to Judge Lisa
                           Gonzales, regarding the estate of Rose Marie, and it
                           says: "The above case on file was subject to
                           mediation conducted by me on Tuesday, January 12.
                           I am pleased to announce that the parties have
                           entered into a settlement of the case and will be
                           submitting the appropriate orders within the next 10
                           days." And that's signed by Michael Elliott.

      [Baker]:             Yes, that's correct.

      [Counsel for Fox]:   And it was carbon copied to all three attorneys,
                           correct?

      [Baker]:             Yes, it was.

      [Counsel for Fox]:   So did you also feel at the time that an agreement had
                           been reached?

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      [Baker]:              Yes.

The foregoing is the only testimony regarding the mediator's report presented at the

three-day trial. The report was next mentioned in closing argument by Fox's counsel:

             After the mediation, the mediator, Mike Elliott says: "I am pleased
      to announce that the parties have settled the case." So the mediator is
      saying, hey, Judge, we settled the case. So [John Fox's] attorney Vaughn
      Westheimer feels they settled so does the mediator who was in there. So
      we got four people that say the case was settled; the mediator, Vaughn
      Westheimer, attorney, Brenda Baker, and Donna Fox all say the case
      settled.

              Remember we were talking about those scales of justice when we
      started the case? If you want to just talk about the scales of justice, it's four
      against three. Their attorney, Brad Bunting says it wasn't settled. John
      Fox says it wasn't settled. Deborah McDonald said not settled. But there
      are more people saying it settled. And the real interesting thing is one of
      them is on their side, Vaughn Westheimer. And the other guy is totally
      impartial, Mike Elliott. So, Brad Bunting, three days later says, oh, I just
      realized that "and Fred Fox's" name was scratched out. So he sends a
      letter to Brenda Baker and says, Ms. Baker, I've got something I want Fred
      Fox to sign. So he says, okay, I've just noticed this. Let me send
      something for him to sign. Kind of the — the [implication] is, well, if you'll
      just sign it then everything's fine, we'll go on. So, here's Fred Fox. I put
      his picture here. He signs a release on January 24th showing that we did
      what they asked [us] to do. Fred signed it. . . .

      Having reviewed the entire record, we do not believe the foregoing probably

caused the rendition of an improper verdict.          As discussed in our resolution of

McDonald's fourth issue, there was other evidence that the parties reached a settlement

agreement, including testimony that the deletion of Fred Fox's name had been discussed

early in the negotiations and that the deletion was pointed out to all parties before the

conclusion of the mediation.       McDonald's signature on the document, absent any

allegations of fraud or other impropriety, is also strong evidence that an agreement was

reached.   And even if we were to focus singularly on counsel's closing argument,

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counsel emphasized the opinion of John Fox's attorney that an agreement had been

reached just as forcefully as the mediator's report.     Following his mention of the

mediator's report, counsel then immediately emphasized further evidence of an

agreement between the parties—that McDonald's attorney, Brad Bunting, requested that

Fred Fox sign a release, which implied that the terms of the settlement document were

agreeable to McDonald.

      In other words, it appears that the mediator's report was but a small part of Fox's

evidentiary arsenal, which included ample other strong evidence that the parties had

reached an agreement. See U-Haul Int'l, Inc., 2012 WL 3800220, at *14. Thus, we

cannot conclude that the mediator's report probably caused the rendition of an improper

verdict by the jury. See TEX. R. APP. P. 44.1(a). McDonald's third issue is overruled.

                                   VI. Conclusion

      We affirm the judgment of the trial court.



                                                             NELDA V. RODRIGUEZ
                                                             Justice


Delivered and filed the 15th
day of November, 2012.




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