                              Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                        No. 04-11-00697-CV

Luz CHAVEZ, Individually and as the Representative of the Estates of Rudolph Chavez, Sr. and
           Rudolph Chavez, Jr. and as Next Friend of Joel Chavez, a Minor,
                                      Appellants

                                                   v.

              KANSAS CITY SOUTHERN RAILWAY COMPANY and Jose Juarez,
                                   Appellees

                     From the 406th Judicial District Court, Webb County, Texas
                               Trial Court No. 2007-CVE-000347-D4
                            Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 13, 2013

REVERSED AND REMANDED

           This is an appeal from a final judgment in a wrongful death action. The appellant, Luz

Chavez, argues the trial court erred in enforcing a settlement agreement and in rendering

judgment based on the settlement agreement. We reverse and remand to the trial court for further

proceedings consistent with this opinion.
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                                          BACKGROUND

        Chavez’s husband and son died when a motor vehicle and a train collided at a railroad

crossing in Aguilares, Texas. Chavez’s husband, Rudolph Chavez Sr., was the driver of the

vehicle, and her adult son, Rudolph Chavez Jr., was a passenger in the vehicle. The train was

owned by Kansas City Southern Railway Company. Jose Juarez was the engineer driving the

train at the time of the accident.

        Chavez and other family members, hereinafter referred to as “the plaintiffs,” filed a

wrongful death action against Kansas City Southern Railway Company and Juarez, hereinafter

referred to as “the defendants.” Chavez filed the action in her individual capacity, as next friend

of Rudolph Chavez Sr.’s minor son, Joel, and as the representative of the estates of Rudolph

Chavez Sr. and Rudolph Chavez Jr. Rudolph Chavez Sr.’s mother and father and his two adult

children, Darlene and Allen, were also plaintiffs in the action. All of the plaintiffs were

represented by multiple attorneys affiliated with the same law firm, Rosenthal & Watson, P.C.

        The case was tried to a jury. The jury returned a verdict in favor of the defendants, and

the trial court signed a judgment in accordance with the verdict. The judgment was set aside,

however, when the trial court granted the plaintiffs’ motion for new trial.

        Thereafter, the plaintiffs’ counsel and the defendants’ counsel entered into negotiations

and reached a settlement agreement. The settlement agreement was set out in emails as well as in

an October 5, 2010, letter from the plaintiffs’ counsel to the defendants’ counsel. The trial court

appointed a guardian ad litem for Joel, who was a minor, and set a hearing to approve the

settlement agreement on behalf of the child. At the hearing, which occurred on April 7, 2011,

Chavez appeared and stated:

               At this time, I wish not to go forward. I would like you to grant me at least
        three months to find me another law firm. And I wish for them to be able to get all
        the documents that we need with the new lawyers that I’m—I want to get within
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       the three months. I would like you to grant me that. I no longer want to continue
       with Rosenthal & Watson. I do not feel comfortable with them at all.

In response to Chavez’s request, the trial court reset the hearing for May 31, 2011. Nothing was

filed indicating that the attorney-client relationship between Chavez and Rosenthal & Watson

had been dissolved.

       On April 27, 2011, the defendants filed a motion to enforce the settlement agreement.

The motion states that in September and October 2010 the plaintiffs’ and the defendants’ counsel

negotiated a settlement agreement, the essential terms of which were set forth in emails and an

October 5, 2010, letter written by plaintiffs’ counsel to defendants’ counsel. The trial court set

the motion to enforce the settlement for hearing on May 31, 2011. The defendants’ counsel

served the motion to enforce the settlement agreement on plaintiffs’ counsel, who remained

Chavez’s counsel of record.

       The trial court held a hearing on May 31, 2011. Chavez failed to appear at this hearing.

Plaintiffs’ counsel and defendants’ counsel appeared at this hearing. Defendants’ counsel urged

the trial court to enforce the settlement agreement. Plaintiffs’ counsel confirmed that they had

entered into a written settlement agreement with the defendants in October 2010, and that they

had done so with Chavez’s consent. At the conclusion of the hearing, the trial court stated it was

granting the defendants’ motion to enforce the settlement agreement. Subsequently, however,

and apparently in response to correspondence from Chavez, the trial court set the motion to

enforce the settlement agreement for rehearing on June 23, 2011. The trial court clerk notified

Chavez and all counsel of record of the June 23, 2011, hearing.

       Chavez failed to appear at the June 23, 2011, hearing. Plaintiffs’ counsel and defendants’

counsel appeared at the hearing. At the hearing, the trial court stated,

       [T]his hearing was set for the benefit of Ms. Chavez so that, you know, if she was
       going to hire a new firm or if she wanted to make any additional statements to the
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       Court or present any additional arguments to the Court, this was her opportunity
       for that. And so, at this time, the Court is going to sign off on the order granting
       the motion to enforce settlement agreement, and it will be pronounced and
       rendered today, June 23, 2011.

At the conclusion of the hearing, the trial court signed the defendants’ motion to enforce the

settlement agreement, and rendered a final judgment that the plaintiffs recover $531,000.00 from

Kansas City Southern Railway Company.

       Thereafter, Chavez filed a pro se motion for new trial, which was overruled by operation

of law. Chavez then filed a pro se notice of appeal.

                                           DISCUSSION

       On appeal, Chavez argues, among other things, that the trial court erred in granting the

motion to enforce the settlement agreement and in rendering judgment on the written settlement

agreement because the written settlement agreement was not filed as required by Rule 11 of the

Texas Rule of Civil Procedure. Rule 11 states that “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.” TEX. R.

CIV. P. 11. The Texas Supreme Court has stated: “Rule 11 is a minimum requirement for

enforcement of all agreements concerning pending suits.” Kennedy v. Hyde, 682 S.W.2d 525,

528 (Tex. 1984). The rule is an effective tool for finalizing settlements by objective

manifestation so that the agreements themselves do not become sources of controversy. Knapp

Medical Ctr. v. De La Garza, 238 S.W.3d 767, 768 (Tex. 2007). “[S]ettlement agreements ‘must

comply with Rule 11 to be enforceable.’” Id. (citing Padilla v. LaFrance, 907 S.W.2d 454, 460

(Tex. 1995)).

       Here, it is undisputed that the settlement agreement was in writing and signed by the

plaintiffs’ counsel. The record reflects that at the May 31, 2011, hearing on the motion to enforce


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the settlement agreement, the defendants’ counsel handed the trial court a copy of an October 5,

2010, letter. The October 5, 2010, letter apparently set out the terms of the settlement agreement.

The defendants, however, never filed the October 5, 2010, letter “with the papers as part of the

record” as required by Rule 11. See TEX. R. CIV. P. 11. Further, the settlement agreement was not

“made in open court and entered of record” as required by Rule 11.

           The defendants contend they satisfied Rule 11’s requirement because the defendants’

counsel presented the trial court with a judgment reflecting the settlement agreement, and

Chavez’s counsel of record joined in the request that the trial court sign this judgment. See City

of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (“[R]ule 11 is satisfied

if the oral waiver or agreement made in open court is described in the judgment.”). We disagree

with the defendants’ contention. The record shows that Chavez’s counsel of record, Lynn

Watson, appeared at both hearings. 1 At the first hearing, held on May 31, 2011, Watson stated it

was clear to her that she had been discharged by Chavez and she no longer represented Chavez.

Watson also stated she was not taking a position “one way or the other” on the motion to enforce

the settlement agreement because she no longer represented Chavez. Watson indicated Chavez

had not told her who would be substituting as counsel, and therefore, Watson had not yet filed a

motion to withdraw or to substitute counsel. Additionally, at the second hearing, held on June 23,

2011, Watson reiterated that her firm’s services had been terminated by Chavez. And, although

Watson also represented to the trial court that Chavez had consented to the settlement on

September 28, 2010, Watson nevertheless took no position on the motion to enforce the

settlement agreement. Thus, although Watson had not withdrawn as counsel of record, it is clear

from the record that she was no longer authorized by Chavez to act on Chavez’s behalf at the

hearings on the motion to enforce the settlement agreement. Thus, Watson’s actions at the

1
    At the second hearing, Watson appeared by telephone.

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                                                                                    04-11-00697-CV


hearing did not satisfy the requirements of Rule 11 because it was apparent to all concerned that

Watson was no longer authorized to act on Chavez’s behalf.

       Although the record indicates that the October 5, 2010, letter was before the trial court at

the May 31, 2011, hearing, the letter is nowhere in the record. The defendants simply failed to

file the letter in accordance with the plain requirements of Rule 11. See TEX. R. CIV. P. 11.

Because the requirements of rule 11 were not satisfied, we are constrained to hold that the trial

court erred in rendering judgment on the settlement agreement. See Knapp, 238 S.W.3d at 768

(holding an alleged settlement agreement was not enforceable when it was neither in writing, nor

made in open court and entered of record).

       We need not address Chavez’s remaining arguments because they are unnecessary to the

disposition of this appeal. See TEX. R. APP. P. 47.1.

       The trial court’s judgment is reversed. This case is remanded to the trial court for

proceedings consistent with this opinion.

                                                  Karen Angelini, Justice




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