                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-422-CV


HIEN KHAC VU                                                       APPELLANT

                                              V.

VICKY MONG NGUYEN AND                                              APPELLEES
TAMMY MONG NGUYEN

                                          ------------

           FROM THE 325th DISTRICT COURT OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

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                                    I. Introduction

      In two issues, Appellant Hien Khac Vu (“Vu”) asserts error on the part of

the trial court in entering an Agreed Final Decree of Divorce based on a Rule 11

agreement to which Vu allegedly did not consent, and in denying Vu’s Motion

for New Trial, again based on the Rule 11 agreement to which he did not


      1
          … See T EX. R. A PP. P. 47.4.
consent. Vicki Nguyen and Tammy Nguyen have not filed a response in this

appeal.

                    II. Factual and Procedural Background

      It is appropriate in this case to create a time line of events, which is as

follows:

      February 22, 2005        W ife V icki N guyen files for divorce,
                               represented by Joseph Bui.

      April 11, 2005           Husband     H ie n    Khac Vu answ ers,
                               represented by Philip Nguyen.

      February 8, 2006         Intervenor and sister of wife Tam m y
                               Nguyen files intervention, represented by
                               Joseph Bui.

      July 19, 2006            Rule 11 Settlement Agreement signed by
                               Joseph Bui and Philip Nguyen, and faxed
                               filed with the Court.

      July 20 or 21, 2006      According to Bui, he informs the Court’s
                               bailiff that the case is settled—apparently
                               Judge is not informed.

      July 26, 2006            Case dismissed for want of prosecution.

      July 31, 2006            Vu instructs Philip Nguyen to stop work on
                               his case and send the file to his new
                               attorney, Tammy Tran.

      July 31, 2006            Tammy Tran instructs Philip Nguyen to
                               stop all activity in the case, as she is Vu’s
                               new counsel.




                                       2
     August 1, 2006             Tammy Tran notified Joseph Bui of change
                                of counsel.

     August 1, 2006             Joseph Bui filed Motion to Enter Final
                                Decree of Divorce.

     August 1, 2006             Petitioner and Intervenor’s M otion to
                                Reinstate filed by Joseph Bui, served by
                                fax on Philip Nguyen.2

     August 3, 2006             New divorce petition filed for Vu by Tran.

     August 4, 2006             Joseph Bui notified Philip Nguyen of
                                August 24, 2006 hearing on Motion to
                                Reinstate and Enter Final Decree of
                                Divorce.

     August 24, 2006            Order Granting Motion to Reinstate signed.
                                Agreed Final Decree of Divorce signed and
                                approved by Vicki Nguyen and Tammy
                                Nguyen. Approved as to form by Joseph
                                Bui and Philip Nguyen.3

     September 23, 2006         Opposed Motion for New Trial filed by
                                Tammy Tran and Robert Clark, attorneys
                                for Vu.

     November 17, 2006          Notice of Appeal filed.

     November 30, 2006          Motion for New Trial denied.




     2
        … The exact sequence of the three August 1, 2006 communications and
filings is unclear.
     3
         … It appears that this signature was sent and received by fax on July 24,
2006.

                                         3
      According to the affidavit of Vu filed in connection with his Opposed

Motion for New Trial, he never agreed with the Agreed Final Decree of Divorce

faxed to him on July 24, 2006 by his previous attorney, Philip Nguyen. He

informed Nguyen that he did not agree and refused to sign the Rule 11

agreement in connection therewith, and this was the reason that he stopped

Philip Nguyen from taking any further action in the case and hired Tammy Tran.

According to the same motion, Ms. Tran did not substitute into the case as

Vu’s attorney because when she contacted the                court following her

communication with Vu, she learned that the case had been dismissed a few

days before and that no Motion to Reinstate had been filed, which is also why

the new petition for divorce was filed by her on Vu’s behalf on August 3, 2006.

                                  III. Analysis

      In both of his issues, Vu complains that the trial court’s error was based

on his lack of consent to the provisions of the Rule 11 agreement which was

the basis for entering the agreed final decree of divorce and the denial of his

motion for new trial.

      An out-of-court Rule 11 agreement may be between the attorneys or

parties, must be in writing, signed, and filed with the court as part of the record

of the court. T EX. R. C IV. P. 11. Such a rule has existed since 1840, with the




                                        4
filing requirement being in existence since 1877. See Kennedy v. Hyde, 682

S.W.2d 525, 526 (Tex. 1984).

      As we said in Kennedy, “Rule 11 is a minimum requirement for
      enforcement of all agreements concerning pending suits.” The rule
      provides, with certain exceptions not relevant here, 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.” T EX. R. C IV. P. 11. The rule has long been a
      part of Texas jurisprudence. One hundred and fifty years ago, we
      recognized the wisdom of eschewing the verbal agreements of
      counsel in favor of written ones, noting that the vicissitudes of
      memory would otherwise “beget misunderstandings and
      controversies.” The rule continues to be an effective tool for
      finalizing settlements by objective manifestation so that the
      agreements “do not themselves become sources of controversy.”
      In short, settlement agreements “must comply with Rule 11 to be
      enforceable.”

Knapp Med. Ctr. v. De La Garza, 238 S.W.3d 767, 768 (Tex. 2007) (citations

omitted). The purpose of a Rule 11 agreement is to avoid disputes over the

terms of oral settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454, 461

(Tex. 1995). If consent to settle is withdrawn by a party, the filing, to be

effective, does not have to occur before consent is withdrawn, but only before

it is sought to be enforced. Id. Such an agreement can be signed by either the

party or the party’s attorney.   Ebner v. First State Bank of Smithville, 27

S.W.3d 287, 297 (Tex. App.—Austin 2000, pet. denied).




                                       5
      It appears in this case that these signing and filing requirements were met

with the Rule 11 agreement in question. However, evidence was adduced at

the Opposed Motion for New Trial hearing that consent had been withdrawn

prior to judgment and that Vu’s attorney was so informed. When consent is

withdrawn, a court cannot enter a valid agreed judgment, but is not precluded,

after notice and hearing from enforcing a Rule 11 agreement even though one

side does not consent to the agreement.        Id.   Examples of these include

Quintero v. Jim Walters Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983);

Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951). Both cases involve

the reversal of an agreed judgment entered by the trial court accompanied by

the observation that the reversal was without prejudice to the rights of the

reversed party to plead and prove an enforceable settlement agreement, and as

noted in the Burnaman case, the right of a client to prove that his attorney did

not have the authority to enter into such an agreement. Jim Walters Homes,

652 S.W.2d at 444; Burnaman, 240 S.W.2d at 291.

      We hold that the trial court abused its discretion in failing to grant the

opposed motion for new trial when confronted with uncontradicted evidence

that Vu had withdraw his consent, if indeed such consent existed, prior to the

entry of the agreed judgment.




                                       6
                              IV. Conclusion

     Having sustained Vu’s second issue, the judgment of the trial court is

reversed and remanded for further proceedings consistent with this opinion.




                                         BOB MCCOY
                                         JUSTICE

PANEL B:   GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: April 24, 2008




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