
                           NO. 07-10-0515-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL A

                           FEBRUARY 23, 2011

                     ______________________________


               IN RE: CHARLES ROBISON AND CHERIE ROBISON,
                                RELATORS
                   _________________________________

                          ORIGINAL PROCEEDING
      ARISING OUT OF PROCEEDINGS BEFORE THE 72ND thDISTRICT COURT
               646646464DISTRICT COURT OF LUBBOCK COUNTY;
  NOS. 2009-546,118 & 2009-546,118-B, HONORABLE RUBEN G. REYES, JUDGE
                    _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                OPINION

       Relators,  Charles  Robison  and  Cherie   Robison,   (hereafter
collectively,  "the  Robisons")  submit  this  petition  for  writ   of
mandamus complaining of three  separate  orders  of  the  trial  court,
entered in two separate causes of action, arising out of  a  claim  for
personal injuries stemming  from  a  work-related  injury  suffered  by
Charles Robison while employed by the  Real  Party  In  Interest,  West
Star Transportation, Inc., (West Star).  For the reasons  that  follow,
we conditionally grant their petition  as  to  the  dismissal  of  West
Star's claims presently pending in Cause  No.  2009-546,118-B,  thereby
rendering moot their petition as it pertains  to  the  disqualification
of the Robisons’ counsel in that cause and the abatement of  Cause  No.
2009-546,118.

                               Background

      On or about April 23, 2007, Charles Robison was injured  when  he
fell while working  for  West  Star.   Charles,  joined  by  his  wife,
Cherie, originally filed suit (hereafter the "personal injury cause  of
action") against West  Star,  under  the  Texas  Workers'  Compensation
Act,[1] which suit was assigned Cause No. 2009-546,118.[2]  West  Star,
a  non-subscriber,  maintained  an  insurance  policy  with  limits  of
$500,000.  During the  course  of  this  litigation,  pursuant  to  the
Stowers doctrine,[3] the Robisons  offered  to  settle  their  personal
injury cause of action for a sum  within  West  Star's  policy  limits.
The Robisons'  settlement  offer  expressly  provided  that  the  offer
expired at 5:00 p.m. on May 8, 2009.   West  Star  maintains  that  its
counsel,  Levi  McCathern,  verbally  accepted  that  offer  during   a
telephone  conversation  with   one   of   the   Robisons'   attorneys,
Christopher  Carver,  on  May  7,  2009.   McCathern  faxed  a  written
acceptance of the settlement offer to Judson Waltman, another  attorney
for the Robisons, at 5:41 p.m. on May 8, 2009.  A  dispute  then  arose
as to whether or not  an  enforceable  settlement  agreement  had  been
reached.

      When the Robisons refused to be bound by the disputed  settlement
agreement, West Star amended its answer on May  29,  2009,  to  include
the affirmative defense of settlement. In response, the Robisons  filed
a no-evidence motion for partial summary judgment as to  that  defense,
averring that there  was  no  effective  settlement  agreement  because
there was no  meeting  of  the  minds  and  the  settlement  offer,  as
presented, was not timely accepted.  On July 31, 2009, West Star  filed
its response to the Robisons' motion for partial summary  judgment  and
it filed a motion to enforce the settlement agreement.  Thereafter,  on
November 24, 2009, West Star filed a counterclaim against the  Robisons
alleging a breach of contract based upon the failure  of  the  Robisons
to honor the purported settlement agreement.

      On February 5, 2010, the trial court denied  West  Star's  motion
to enforce the settlement agreement; and, at the same time, ruled  that
the Robisons’ motion  for  partial  summary  judgment  was  moot.   Six
months later, on August 26, 2010, West Star filed  a  motion  to  sever
its breach of contract counterclaim from the Robisons’ personal  injury
cause of action.  Following a hearing on this motion, the  trial  court
stated that it was "of the opinion that there is not  an  agreement  in
compliance with Texas Rule of Civil  Procedure  11,"  but  nevertheless
denied the Robisons’ motion for partial  summary  judgment  (previously
determined to be moot), granted the motion to  sever,  and  abated  the
personal injury cause of action "until  such  time  as  Defendant  West
Star's counterclaim  against  Plaintiffs  Charles  Robison  and  Cherie
Robison is fully adjudicated."  The severed cause of action  (hereafter
"the contract cause of action")  was  then  assigned  Cause  No.  2009-
546,118-B.  On September 20, 2010, in the  contract  cause  of  action,
West Star filed its motion to disqualify the Robisons’ counsel  on  the
basis that they were witnesses  to  necessary  facts  relevant  to  the
contract cause of action,  to-wit:  the  terms  and  existence  of  the
alleged oral settlement agreement.  On December  16,  2010,  the  trial
court granted West Star's motion to disqualify Carver and Waltman,  but
denied the motion to disqualify as to the Lanier  Law  Firm,  P.C.  and
the law firm of Christopher Carver.

      The Robisons  now  seek  a  writ  of  mandamus  from  this  Court
directing the trial  court  to:  (1)  dismiss  West  Star's  breach  of
contract cause of action, (2) vacate its  order  abating  the  personal
injury cause of action, and (3)  vacate  its  order  disqualifying  the
Robisons' counsel.

                      Mandamus Standard of Review

      In order to be entitled to relief by writ of mandamus, a  relator
must meet two basic requirements: (1)  it  must  show  that  the  trial
court clearly abused its discretion, and (2) it  must  show  that  they
have no adequate remedy by appeal.  In re Ford Motor  Co.,  988  S.W.2d
714, 718 (Tex. 1998) (orig. proceeding); Walker v. Packer,  827  S.W.2d
833, 840-44 (Tex. 1992) (orig. proceeding).  (Mandamus issues  only  to
correct a clear abuse of discretion or the violation of a duty  imposed
by law when there is no other adequate remedy  by  law.(   Walker,  827
S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals,  700  S.W.2d
916, 917 (Tex. 1985) (orig. proceeding)).  To  establish  an  abuse  of
discretion, the complaining  party  must  demonstrate  that  the  trial
court acted unreasonably, arbitrarily,  or  without  reference  to  any
guiding rules or principles.    See  Downer  v.  Aquamarine  Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1965).   Accordingly,  an  incorrect
construction of the law or a misapplication of the  law  to  undisputed
facts is an abuse of discretion.  Walker, 827 S.W.2d at 840.

      As to the second  requirement,  no  adequate  remedy  by  appeal,
there is no comprehensive definition of the  word  adequate.   Instead,
the determination of whether or not there  is  an  adequate  remedy  by
appeal is a matter left to  the  sound  discretion  of  the  compelling
court after a  "careful  balance  of  jurisprudential  considerations,"
including both public and private interests.   In  re  Prudential  Ins.
Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding); In  the
Matter of the Marriage of J.B. and H.B.; In  re  State  of  Texas,  326
S.W.3d 654, 661 (Tex.App.--Dallas 2010, pet. filed) (direct appeal  and
orig. proceeding).

      While generally a mere increase in the cost of  litigation  or  a
delay in the resolution of disputed issues does  not,  per  se,  render
appellate review inadequate, In re Ford Motor Co., 988 S.W.2d  at  727,
the Texas Supreme Court  has  recognized  that  there  are  exceptional
occasions where  the  benefits  of  mandamus  are  so  great  that  the
available appellate procedures are rendered inadequate:

      Mandamus review of significant rulings in exceptional  cases  may
      be essential to preserve  important  substantive  and  procedural
      rights from impairment or loss, allow  the  appellate  courts  to
      give needed and helpful direction to the law that would otherwise
      prove elusive  in  appeals  from  judgments,  and  spare  private
      parties and the public the time and money utterly wasted enduring
      eventual  reversal  of  improperly  conducted  proceedings.    An
      appellate remedy is “adequate”  when  any  benefits  to  mandamus
      review are outweighed  by  the  detriments.   When  the  benefits
      outweigh the detriments, appellate courts must  consider  whether
      the appellate remedy is adequate.


In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.


      In any event, when a petition for writ of mandamus is filed,  the
relator  bears  the  burden  of  showing  entitlement  to  the   relief
requested.  Johnson, 700 S.W.2d at 917.   Therefore,  in  order  to  be
entitled to mandamus relief in this case, the Robisons  would  have  to
establish (1) that the complained of decisions were a  clear  abuse  of
discretion and (2) that they did not have an adequate remedy at law.

                                Analysis

      According to the Robisons' argument, if  the  trial  court  would
have  granted  their  motion  for  partial  summary  judgment   seeking
dismissal of West Star's contract cause of  action,  then  there  would
have been no need to abate the personal injury cause of action  and  no
need to disqualify their counsel in the contract cause of action.    As
such, the very gravamen of the Robisons' complaint is  that  the  trial
court erred in denying their motion for partial summary judgment as  to
West Star's contract cause of action.  In  its  Response  to  Relator's
Petition for Writ of Mandamus, West Star agrees; however,  it  contends
that mandamus simply will not lie to remedy the denial of a motion  for
partial summary judgment because the Robisons have an  adequate  remedy
by appeal.  Therefore, for purposes of logical sequence, we will  first
review whether the trial court abused its  discretion  by  denying  the
Robisons' motion for partial summary judgment and then  review  whether
any remedy the Robisons might have by appeal is adequate.

                          Abuse of Discretion

      The Robisons, relying upon Rule 11 of the Texas  Rules  of  Civil
Procedure, contend the trial court erred by denying  their  no-evidence
motion for partial summary judgment because West Star's contract  cause
of  action  relies  upon   an   unenforceable   settlement   agreement.
Specifically, the Robisons contend that West Star did not  comply  with
Rule 11 by timely accepting their settlement offer  in  writing.   West
Star counters arguing that because the Robisons' settlement  offer  did
not specify a means of acceptance, the offer could be accepted  in  any
reasonable  manner,  including  oral  acceptance.   West  Star  further
contends that because the  settlement  offer  was  timely  accepted  by
McCathern's oral acceptance  on  May  7,  2009,  and  because  the  fax
confirmation  of  the  oral  acceptance  satisfies  the  "in   writing"
requirement of Rule 11, the trial court did  not  err  in  denying  the
Robisons’ motion for partial summary judgment.  We  believe  West  Star
confuses general  contract  principles  with  the  requirements  of  an
enforceable settlement agreement.

      The pivotal legal issue presented by this  case  is  whether  the
oral acceptance of a written settlement offer  complies  with  the  "in
writing" requirement of Rule 11?  We conclude that it does  not.   Rule
11 provides:

      Unless otherwise provided in these Rules,  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.




       Rule  11  was  designed  to  avoid  disputes   concerning   oral
settlement agreements.  Padilla v.  La  France,  907  S.W.2d  454,  461
(Tex. 1995).   In Kennedy v. Hyde, 682  S.W.2d  525  (Tex.  1984),  the
Texas Supreme Court stated that the policy behind  Rule  11  is  clear.
"The rationale underlying  Rule  11  is  sensible  and  contributes  to
efficient  court  administration.   Agreements  and  stipulations   are
welcomed by the courts because they limit the  matters  in  controversy
and expedite trial proceedings.  Rule 11 ensures that  such  agreements
do not themselves become sources of controversy,  impending  resolution
of suits.  The requirements of Rule 11 are not  onerous;  the  benefits
are substantial."  Id. at 530 (emphasis added).

      So just what are the "non-onerous" requirements  of  Rule  11  as
they apply to the facts of this case?  Clearly, the disputed  agreement
touches upon a pending suit and, just as clearly,  that  agreement  was
not made in open court and entered of  record.   Therefore,  under  the
facts of this case, in order to be enforceable,  the  only  requirement
of Rule 11 is that the agreement be "in writing, signed and filed  with
the papers as part of the record."[4]

      First, West Star contends that the "in  writing"  requirement  of
Rule 11 is met by the Robisons’ written settlement  offer  itself  and,
therefore, the trial court did not  err  in  denying  summary  judgment
because the oral acceptance of that offer  presented  a  disputed  fact
issue.  Secondly, West Star contends its oral  acceptance  followed  by
written confirmation satisfies  the  "in  writing"  requirement  of  an
enforceable Rule 11 agreement.

      Even assuming  that  a  factual  dispute  exists  as  to  whether
McCathern did orally accept the  settlement  agreement  in  his  May  7
telephone conversation with Carter, that is not  a  dispute  pertaining
to a  material  issue  because  West  Star's  oral  acceptance  of  the
Robisons’ written settlement agreement, even if it occurred,  does  not
comply with the "in writing" requirement of Rule 11.

      It is undisputed that prior to 5:00 p.m. on May  8,  2009,  there
was no written document "signed" by West Star accepting  the  Robisons’
offer.[5]  Because there was no written  document  binding  West  Star,
the  existence  of  any  settlement  agreement  cannot  be  ascertained
without resorting to oral testimony.  Under  these  circumstances,  the
purpose of the rule is furthered by requiring  the  written  acceptance
of a settlement offer.

      Furthermore, in discussing the "in writing" requirement  of  Rule
11, the Texas Supreme Court has analogized that rule to the statute  of
frauds, which also requires certain  contracts  be  in  writing  before
they are enforceable.[6]   Padilla,  907  S.W.2d  at  460.   Under  the
statute of  frauds,  in  order  to  form  a  binding  contract  by  the
acceptance of a written offer, "the acceptance  must  be  in  writing."
Hill v. Rich, 522 S.W.2d 597  (Tex.Civ.App.--Austin  1975,  writ  ref'd
n.r.e.) (quoting Am. Nat'l Ins. Co.  v.  Warnock,  131  Tex.  457,  114
S.W.2d 1161, 1164 (1938))  (holding  that  the  oral  acceptance  of  a
written offer was ineffective to form a contract otherwise required  to
be in writing); Walker Ave. Realty Co. v. Alaskan Fur Co.,  131  S.W.2d
196, 200  (Tex.Civ.App.--Galveston  1939,  writ  ref'd)  (holding  oral
acceptance of written offer to lease real property was  ineffective  to
form a lease  agreement).  We  believe  that  this  statute  of  frauds
principle  equally  applies  to  Rule  11  agreements.   Therefore,  we
conclude the requirements of Rule 11 were not satisfied by West  Star's
oral acceptance of the Robisons’ written settlement offer.

      Whether West Star's  fax  confirmation  of  its  oral  acceptance
satisfied the "in  writing"  requirement  of  an  enforceable  Rule  11
agreement is also immaterial  for  several  reasons.   One,  the  trial
court previously found that there was "not an agreement  in  compliance
with Texas Rule of Civil Procedure 11."  Two, the express terms of  the
settlement offer required acceptance by 5:00 p.m. on May 8,  2009,  and
the record is devoid  of  any  evidence  of  a  pre-5:00  p.m.  written
acceptance.  Where a settlement offer prescribes  a  specific  deadline
for acceptance, that deadline must be met in order to create a  binding
settlement agreement.  Padilla, 907 S.W.2d at 460.  Finally, West  Star
bore the burden of at least raising a fact issue  concerning  any  pre-
5:00 p.m. written acceptance and it failed to do so.

       The  dispute  pending  between  the  Robisons  and   West   Star
concerning the settlement agreement in question is  the  very  scenario
Rule 11  was  designed  to  prevent.   Because  there  was  no  written
acceptance in compliance with the terms  of  the  Robisons’  settlement
offer, the trial court's decision to  allow  the  settlement  agreement
litigation to continue was a misapplication of the law  to  the  facts,
i.e., a clear abuse of discretion.  See  Walker,  827  S.W.2d  at  840.
Accordingly, we find the  trial  court  did  abuse  its  discretion  in
denying the Robisons' motion for partial summary judgment.

                       Adequate Remedy by Appeal

       Having satisfied the first requirement for mandamus  relief,  we
must now determine whether the  Robisons  had  an  adequate  remedy  by
appeal.  While mandamus relief is generally not available when a  trial
court denies summary judgment,  it  is  not  automatically  unavailable
just because the complaining party may have some theoretical  appellate
relief available at some time in the future.  See In re  United  Servs.
Auto. Ass'n, 307 S.W.3d 299, 314 (Tex. 2010) (orig. proceeding)  (trial
court directed to grant motion for summary judgment).  See  also  State
Bar of Texas v. Heard, 603 S.W.2d 829 (Tex.  1980)  (orig.  proceeding)
(trial court directed to grant motion to suspend  license  to  practice
law during pendency of appeal); In the Matter of the Marriage  of  J.B.
and H.B.; In re State of Texas, 326 S.W.3d 654,  681  (Tex.App.--Dallas
2010, pet. filed) (direct  appeal  and  orig.  proceeding).   In  those
cases where the benefits of mandamus relief  outweigh  the  detriments,
an appellate court should not allow the hyper-technical application  of
procedural devices and constructs to thwart the rule  of  law  and  the
ends of justice.

      Because the trial court erred in  denying  summary  judgment,  an
almost four-year-old personal injury cause of action has  been  put  on
hold while the parties litigate an unenforceable settlement  agreement.
 The Robisons have been forced to hire new counsel,  and  all  parties,
including both the trial court  and  this  Court,  will  be  forced  to
endure the  delay,  cost,  and  expense  of  both  the  litigation  and
inevitable  appeal  of  nothing  more  than   an   unenforceable   oral
settlement of the abated personal injury cause of action.   Considering
the merits of the contract cause of action, discussed  hereinabove,  we
find that denying mandamus  relief  would  frustrate  the  purpose  and
intent of Rule 11 by a "too strict application of  our  own  procedural
devices."  See In re McAllen Med.  Ctr.,  275  S.W.3d  458,  467  (Tex.
2008).  See also In re United Servs. Auto. Ass'n, 307  S.W.3d  at  314.
Accordingly, under the facts of this case, we believe the  benefits  of
mandamus review greatly outweigh the detriments and, accordingly,  find
that the Robisons have no adequate remedy at law.

                               Conclusion

      This is an exceptional case because it implicates  not  only  the
basic  principles  of  subject-matter  jurisdiction  in   controversies
involving Rule 11 settlement agreements, it also implicates  a  party's
constitutional right to representation by counsel of  his  or  her  own
choosing.  Denying mandamus  relief  in  this  case  would  thwart  the
purpose  and  policy  considerations  underlying   Rule   11,   thereby
rendering it meaningless.  Because  these  extraordinary  circumstances
merit  extraordinary  relief,  we  conditionally  grant  the  Robisons'
petition for writ of mandamus on  the  dismissal  issue.   Accordingly,
the trial court is directed to grant the Robisons' motion  for  partial
summary judgment as  to  the  contract  cause  of  action.   The  trial
court's orders severing the contract cause of action from the  personal
injury cause of action, abating the personal injury  cause  of  action,
and disqualifying the  Robisons'  attorneys  in  the  severed  contract
cause of action will be rendered  moot  thereby.   Only  if  the  trial
court fails to comply with this order will a writ issue.

                                             Per Curiam

-----------------------
[1]See Tex. Lab. Code Ann. §§ 401.001 - 419.007 (West 2006 and West
Supp. 2010).

[2]Plaintiff's Original Petition, filed January 29, 2009, also named A
& S Transportation, Inc. as a defendant.

[3]G. A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d  544  (Tex.
Comm'n App. 1929, holding approved).
[4]There is no dispute as to whether an agreement was "filed  with  the
papers as part of the record."  See Padilla, 907 S.W.2d at 461.

[5]A contract is "signed" if it contains an authentication that
identifies and binds the signing party.  Tex. Bus. & Com. Code Ann. §
2.201, cmt. 1 (West 2009).

[6]The Statute of Frauds provides:

      (a)   A promise or agreement described in Subsection (b) of this
      section is not enforceable   unless the promise or agreement, or
      a memorandum of it, is
           (1)   in writing; and
           (2)   signed by the person to be charged with the promise
           or agreement or someone      lawfully authorized to sign
           for him.


Tex. Bus. & Com. Code § 26.01 (West 2010) (emphasis added).

