                                                                                                                   ACCEPTED
                                                                                                              14-14-00077-CV
                                                                                                FOURTEENTH COURT OF APPEALS
                                                                                                            HOUSTON, TEXAS
                                                                                                        2/24/2015 10:52:36 AM
                                                                                                          CHRISTOPHER PRINE
                                                                                                                       CLERK

                      CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & AUGHTRY
                                          A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
                                                    Attorneys at Law
                                                1200 SMITH STREET, SUITE 1400
           KEVIN D. JEWELL                HOUSTON, TEXAS 77002-4496                           FILEDHOUSTON
                                                                                                     IN
            SHAREHOLDER
                                            (713) 658-1818 (800) 342-5829              14th COURT OF    APPEALS
                                                                                                    ATLANTA
   DIRECT DIAL NO.(713) 654-9620
                                                                                          HOUSTON,PHILADELPHIA
                                                                                                       TEXAS
E-MAIL: kevin.jewell@chamberlainlaw.com            (713) 658-2553 (FAX)                           SAN ANTONIO
                                                chwwm@chamberlainlaw.com
                                                                                       2/24/2015 10:52:36 AM
                                                                                       CHRISTOPHER A. PRINE
                                                                                                Clerk




                                              February 24, 2015

 Christopher Prine, Clerk
 Fourteenth Court of Appeals
 301 Fannin, Room 245
 Houston, Texas 77002

            Re:           No. 14-14-00077-CV; MKM Engineers, Inc., et al v. Jal B. Guzder; in
                          the Fourteenth Court of Appeals, Houston, Texas.

 Dear Justices Christopher, Donovan, and Wise:

       Appellants MKM and PIKA would like to respond to Appellee’s February
 19, 2015 letter.

 1.           Appellants stated in oral argument that Guzder never provided a signed
              document containing releases. That statement is true. Guzder’s February
              19, 2015 letter cites unsigned, proposed releases. The May 27, 2011 letter,
              assuming it is binding, required Guzder (and others) to provide signed
              releases, not draft or proposed releases. They never provided signed releases
              to Appellants or to the District Court and Guzder did not prove (or argue)
              otherwise in his motion for summary judgment.

 2.           Guzder contends that EETCO and Zenobia Guzder did not have to sign the
              Rule 11 letter because Mr. Voyles, their lawyer, could sign for them. Clients
              settle cases, not counsel, and Mr. Voyles signed only as agent for one
              principal, i.e., “on behalf of Jal Guzder.” If EETCO and Zenobia wanted to
              sign the letter, counsel should have so indicated instead of expressly limiting
              his signature to only Guzder. Imagine the roles were reversed and
              EETCO/Zenobia argued they were not bound by the Rule 11 letter. They
              would be right. That their lawyer now says they will go along with the deal
February 24, 2015
Page 2

     after the fact does not mean the Rule 11 letter was binding on all parties
     when it was signed. “All of the parties must assent to the same thing in the
     same sense at the same time.” Soliman v. Goltz, No. 05-93-00008-CV, 1993
     WL 402740, at *8 (Tex. App.—Dallas October 6, 1993, no writ) (emphasis
     added); Finley v. Hundley, 252 S.W.2d 958, 962 (Tex. Civ. App.—Dallas
     1952, no writ).

3.   Citing Justice Christopher, Guzder argues that parties who do not wish to be
     bound by a preliminary letter should expressly say so. This is a preferable
     approach to be sure, but not one Texas law has ever required. Appellate
     courts holding settlement agreements unenforceable have done so despite the
     absence of contract language stating, “This agreement is non-binding.” E.g.,
     Martin v. Martin, 326 S.W.3d 741, 754 (Tex. App.—Texarkana 2010, pet.
     denied); Brooks v. Metiscan Technologies, Inc., No. 05-08-01042-CV, 2009
     WL 3087258, at *3 (Tex. App.—Dallas September 29, 2009, no pet.);
     Soliman, 1993 WL 402740, at *8.

4.   Guzder says Appellants are bound because they drafted the Rule 11 letter.
     But every appellate decision that held a settlement agreement unenforceable
     did so on behalf of a party who either proposed the agreement or expressly
     agreed to it. See, e.g., Martin, 326 S.W.3d at 754; Brooks, 2009 WL
     3087258, at *3; Soliman, 1993 WL 402740, at *8. Enforcement does not
     depend on who proposed or drafted the alleged agreement.

                                    Respectfully submitted,

                                    CHAMBERLAIN, HRDLICKA, WHITE,
                                    WILLIAMS & AUGHTRY

                                    By:       /s/ Kevin Jewell
                                         Kevin D. Jewell
                                         State Bar No. 00787769
                                         1200 Smith Street, Suite 1400
                                         Houston, Texas 77002
                                         Telephone: (713) 658-1818
                                         Telecopy: (713) 658-2553
                                    ATTORNEYS FOR APPELLANT,
                                    PIKA INTERNATIONAL, INC.
February 24, 2015
Page 3

                                AKIN, GUMP, STRAUSS, HAUER &
                                FELD LLP

                                By:     /s/ Murry B. Cohen
                                    Murry B. Cohen
                                    Texas Bar No. 04508500
                                    1111 Louisiana Street, 44th Floor
                                    Houston, Texas 77002
                                    (713) 220-5800 (Telephone)
                                    (713) 236-0822 (Facsimile)
                                ATTORNEYS FOR APPELLANT,
                                MKM ENGINEERS, INC.


KDJ/dlk
1739319_1


Via electronic service
Adam Q. Voyles
Lubel Voyles LLP
5020 Montrose Blvd., Ste. 800
Houston, Texas 77006

Via electronic service
Alan N. Magenheim
Magenheim & Associates
3701 Kirby Drive, Suite 1144
Houston, Texas 77098

Via electronic service
Michael L. Orsak, L.P.
611 Houston Street
Richmond, Texas 77469
