
NO. 07-02-0390-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 7, 2004
______________________________

STEVEN C. SIMMONS,
 
								  Appellant

v.

THE ESTATE OF RUTH WALLACE,

								  Appellee

_______________________________

FROM THE COUNTY COURT AT LAW NO. 1  OF POTTER COUNTY;

NO. 22,558; HON. W.F. ROBERTS, PRESIDING
_______________________________

Memorandum Opinion
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
	Appellant Steven C. Simmons (Simmons) appeals from a judgment entered against
him awarding damages in favor of the administrator of the estate of Ruth E. Wallace,
deceased.  In three issues, he challenges 1) the trial court's award of sanctions against him
and 2) the failure of the trial court to enforce a Rule 11 agreement between the parties. 
We modify the judgment and affirm it as modified.

Background

	Simmons, a lawyer, was originally appointed as the independent executor of the
estate of Ruth Wallace, who died on July 1, 1992.  He was later removed as executor and
replaced by Chuck Hester (Hester).  The latter sued Simmons on February 23, 2001, for
declaratory relief and recovery of estate property which he claimed Simmons refused to
relinquish.  He also sought damages for fraud and conversion.
	  On January 22, 2002, the estate moved for sanctions against Simmons for his
failure to attend his deposition, notice of which was afforded him. On February 27, 2002,
a hearing was held on the motion for sanctions; Simmons did not appear at the
proceeding.  As a result, the court entered an order on June 10, 2002, through which it
struck the pleadings of Simmons, pronounced that judgment be entered on behalf of the
estate, and awarded attorney's fees.  Judgment was entered on the same day awarding
Hester (on behalf of the estate) $126,461, prejudgment and post-judgment interest,
attorney's fees, and court costs. 
	 Simmons timely moved for new trial.  He contended that the trial court's findings of
fact were not supported by the evidence, no notice was given of the trial court's intent to
enter a final judgment, and the amount of the judgment did not reflect all the payments
made to the beneficiary and successor administrator of the estate.  
	At the hearing on the motion for new trial held on September 16, 2002, (1) the parties
represented they had reached a settlement.  The settlement purportedly consisted of an
agreement to modify the judgment and provide for the recovery of $100,586 plus attorney's
fees.  The record does not reflect that any new trial was granted or modified judgment
signed.    
 Issue Two - Motion for New Trial

 In his second issue, Simmons complains the trial court abused its discretion in
failing to grant his motion for new trial because the parties had a valid Rule 11 agreement
regarding the modification of the judgment or the granting of a new trial.  We overrule the
issue in part and sustain the issue in part.
	Pursuant to Rule 11 of the Texas Rules of Civil Procedure:
		. . . 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.

Furthermore, a suit may be settled pursuant to this rule, as long as its requirements are
satisfied.  Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995).  Yet, implicit in the scope
of the rule is the need to arrive at an agreement.  That is, the parties to the supposed
accord must agree upon its terms and conditions before Rule 11 can be of any benefit to
them.  Simply put, if there is no agreement, then there is nothing to which Rule 11 can
apply.  
	According to the record before us, Hester represented the following to the trial court:
	We're going to enter into an agreement, Your Honor.  There is an agreement
to modify this judgment to provide for recovery of $100,586 to be paid to
Brad Finch - or for the benefit of Brad Russell Finch as the beneficiary of this
estate.  The same attorney's fees that are mentioned in the judgment will be
awarded, $8,643, and any fees incurred for collection of the judgment, and
payable to the law office of Peter Pratt will be in addition to the amount we've
just announced, as payable to the estate for the benefit of . . . Finch.

	We don't know exactly what that fee will be at this point, but any fees will be
payable by Mr. Simmons in addition to the $100,586 that we just announced
	and the attorney's fees.  And I will prepare an amended judgment to reflect 
	that.

At that point, the trial court stated:

	Okay.  Is that your agreement, Mr. Simmons?

Simmons replied:

	Judge, it is.  With the stipulation that the judgment that's currently in effect
will be either modified or a new trial granted and the new judgment entered,
all of which I believe the Court still has jurisdiction to do.  And so for
purposes of the agreement, there is an agreement that the new trial - my
[motion for] new trial, which we're here today on, would be granted and then
the new judgment would be immediately entered in accordance with this
agreement.
 
	And so with Mr. Hester's consent, I'll send an agreed order granting the new
trial - simple form - to him, and he's going to prepare the new judgment and
enter it like that, and it will only - it will - it will reflect an agreed judgment
versus one that was entered pursuant to the Court sanctions.  With those
stipulations, I approve and agree to the agreement.  

(Emphasis added).  After the court said "all right," Hester uttered:

	I don't have any problem with the judgment reflecting this agreed judgment
and being drawn in accordance with what we've talked about.

As can be seen from the foregoing exchange, Hester described the terms of a new
judgment, and Simmons responded by indicating that the agreement described was
acceptable so long as either the existing judgment was modified or a new trial was granted. 
Thereafter, Hester said he had no "problem with the judgment reflecting this agreed
judgment and being drawn in accordance with what we've talked about."  Yet, on the point
about granting a new trial, Hester remained silent.  Given this, the record discloses that
Hester actually accepted one of the two options posed by Simmons, that option being the
entry of a modified judgment.  There was no meeting of the minds or agreement regarding
a new trial, however.    
	Since all aspects of Rule 11 were satisfied (i.e. an agreement of the parties made
in open court and read into the record of the court) and the trial court acceded to the
accord by saying "all right," an enforceable Rule 11 agreement arose. (2)  Therefore, we
sustain that portion of Simmons' issue wherein he contends that the parties entered into
a valid Rule 11 agreement but overrule that part wherein he contends that the agreement
encompassed the granting of a new trial.  And, in our so holding, we have rendered moot
the remaining issues.  Simply put, we need not determine whether the trial court's
sanctions and original judgment were enforceable since the dispute was resolved (or
novated) through the execution of a valid Rule 11 agreement addressing Simmons' liability.
	Accordingly, we modify the judgment of the trial court to order that Simmons 1) pay
to Hester, as administrator of the estate of Ruth Wallace, $100,586 and 2) assume the
obligation to pay Peter Pratt for any and all attorney's fees incurred in the collection of the
judgment.  So too is the judgment modified to reflect that post-judgment interest shall
accrue on the judgment at the rate of 10 % per annum from September 16, 2002, until
paid.  Except as modified, the judgment is affirmed in all other respects.

							Brian Quinn
							   Justice					
1. The motion for new trial had already been overruled by operation of law at the time the hearing was
held on the motion.   See  Tex. R. Civ. P. 329b(c) (holding if a motion for new trial is not determined by written
order signed within 75 days after the judgment is signed, it shall be considered overruled by operation of law
at the expiration of that period).   
2. At oral argument, both parties represented that they remained willing to abide by the agreement
reached in the trial court.

