Nancarrow v. Whitmer

• Citation: 463 S.W.3d 243
• Decision Date: 30 April 2015
• Docket Number: No. 10–13–00369–CV,10–13–00369–CV
• Parties: Veronica Nancarrow, Appellant v. Wade W. Whitmer, M.D., Appellee
• Court: Texas Court of Appeals

463 S.W.3d 243

Veronica Nancarrow, Appellant

v.Wade W. Whitmer, M.D., Appellee

No. 10–13–00369–CV

Court of Appeals of Texas, Waco.

Opinion delivered and filed April 30, 2015

B. Kent Buckingham, Richard Barrera Jr., Buckingham Barrera Law Firm, Midland, TX, for Appellant/Relator.

Paul Byron Starr, Ryan Bueche, Germer Beaman & Brown, PLLC, Austin, TX, for Appellee/Respondent.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

OPINION

REX D. DAVIS, Justice

The events and the summary-judgment evidence relevant to this appeal are set forth in the following timeline:

• December 20, 2011: Appellant Veronica Nancarrow sued Appellee Wade W. Whitmer, M.D., alleging medical negligence during her shoulder surgery.

• June 28, 2013: Nancarrow's counsel had a telephone conversation with Dr. Whitmer's counsel, during which Dr. Whitmer's counsel informed Nancarrow's counsel for the first time that, in addition to Dr. Whitmer, he would be designating J.P. Bramhall, M.D., as a testifying expert. Dr. Whitmer's counsel also allegedly said that he had tried to find another orthopedic expert but had been unable to locate an expert who was willing to give testimony in support of Dr. Whitmer's treatment of Nancarrow.

• July 1, 2013: Nancarrow sent a settlement demand to Dr. Whitmer's counsel, offering to settle the case for a cash payment of $200,000, the limits provided by Dr. Whitmer's primary policy.

• July 3, 2013: Dr. Whitmer served Nancarrow with his responses to Nancarrow's requests for disclosure. As had been indicated in the June 28 telephone conversation, Dr. Whitmer designated Dr. Bramhall as a testifying expert. Dr. Whitmer also included the following statements regarding the substance of Dr. Bramhall's opinions and his anticipated testimony:

It is Dr. Bramhall's professional opinion that Dr. Whitmer's evaluation, care and treatment of patient Veronica Nancarrow met all applicable standards of care for a board certified orthopedic surgeon practicing in College Station, Texas, and that no action of [sic ] omission of Dr. Whitmer was a proximate cause of Plaintiff's alleged damages herein. Dr. Bramhall will testify Plaintiff suffered a severe injury to her shoulder in the fall of 10/13/2009 which, in the absence of any action or omission of Defendant, was a proximate cause of Plaintiff's ultimate injuries and/or damages herein.... Dr. Bramhall will testify there were other procedures possible for Plaintiff to undergo rather than a reverse shoulder procedure, and that such procedure has left her with few future options. Dr. Bramhall will testify there is insufficient data to suggest Plaintiff will need to undergo a future revision surgery or other future surgery as a result of her injuries.

• July 18, 2013: Nancarrow's counsel received a telephone call from Dr. Whitmer's counsel, informing him that Dr. Whitmer was willing to pay the policy limits of $200,000 to settle the case.

• July 23, 2013: The settlement of the claim for $200,000 was memorialized in a Rule 11 agreement.

• July 30, 2013: Nancarrow and her counsel learned that Dr. Whitmer's expert disclosure was allegedly false because Dr. Bramhall had actually refused to testify on Dr. Whitmer's behalf. Dr. Bramhall had never expressed the opinions attributed to him in Dr. Whitmer's expert disclosure and would not testify to them if called as a witness.

• August 1, 2013: Dr. Whitmer filed a motion to enforce the settlement agreement and a counterclaim asserting breach of contract. Nancarrow in turn filed a motion for sanctions against Dr. Whitmer, arguing that he perpetrated a fraud upon the court.

• August 2, 2013: Nancarrow filed a motion to rescind the Rule 11 agreement based on Dr. Whitmer's alleged fraud.

• August 5, 2013: Nancarrow filed an amended motion for sanctions against Dr. Whitmer.

• August 6, 2013: The trial court held a hearing on Nancarrow's and Dr. Whitmer's competing motions.

• September 23, 2013: The trial court signed an order granting Dr. Whitmer's motion to enforce the settlement agreement. The order stated that “the Rule 11 agreement dated July 23, 2013 signed by both counsel, and filed with the records of the court, is a valid and binding contract for settlement which was not obtained through fraud or other material misrepresentation by Defendant or his counsel.”

• October 14, 2013: Nancarrow filed a notice of appeal asserting that she was appealing the trial court's order granting Dr. Whitmer's motion to enforce the settlement agreement. It was docketed in the above appellate cause number.

• October 17, 2013: Dr. Whitmer filed a traditional motion for summary judgment, supported by summary-judgment evidence, on his breach-of-contract counterclaim. He claimed that he was entitled to summary judgment because the trial court

has already concluded that the parties' Rule 11 Agreement is a valid and enforceable settlement agreement, and the evidence conclusively establishes that despite Dr. Whitmer's continued ability, willingness, and efforts to tender the agreed-upon settlement funds in compliance with that Rule 11 Agreement, [Nancarrow] nevertheless refuses to execute a release of her claims against Dr. Whitmer and/or accept the agreed-upon funds as settlement of this lawsuit.

• November 4, 2013: Nancarrow filed her response to Dr. Whitmer's motion for summary judgment, arguing that the Rule 11 agreement was fraudulently induced and thus void. The response was supported by the following summary-judgment evidence: (1) Dr. Whitmer's responses to Nancarrow's requests for disclosure, (2) Dr. Bramhall's curriculum vitae, (3) Nancarrow's counsel's affidavit, (4) Nancarrow's affidavit, (5) Dr. Bramhall's affidavit, and (6) the Rule 11 agreement.

• November 11, 2013: Dr. Whitmer filed his reply in support of his motion for summary judgment, arguing in part that Nancarrow had failed to plead the affirmative defense of fraudulent inducement.

• November 13, 2013: Nancarrow filed her original answer to Dr. Whitmer's breach-of-contract counterclaim and asserted her defense that the agreement was the product of fraudulent inducement.

• January 7, 2014: The trial court signed a final summary judgment granting Dr. Whitmer's motion for summary judgment.

Nancarrow then filed a notice of appeal of the trial court's January 7 final summary judgment. The appeal was docketed as appellate cause number 10–14–00045–CV, but we dismissed the appeal docketed under No. 10–14–00045–CV as moot. Nancarrow v. Whitmer, No. 10–14–00045–CV, 2014 WL 2159552, at *1 (Tex.App.–Waco May 22, 2014, no pet.) (mem.op.). We granted leave to file an amended notice of appeal in this appeal and directed Nancarrow to file an amended brief in this appeal that included any issues that were to be raised in No. 10–14–00045–CV. Id. at *1–2.

Nancarrow filed an amended notice of appeal in this appeal, appealing from the January 7 final summary judgment, and then filed an amended appellant's brief. In her sole issue, Nancarrow contends that the trial court erred in entering its final summary judgment because it was based on a Rule 11 agreement regarding settlement that was fraudulently induced and thus vitiated. Dr. Whitmer filed an amended appellee's brief.

We review the trial court's ruling on a motion for summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). To be entitled to summary judgment, the movant must demonstrate that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c). A nonmovant wanting to assert an affirmative defense to the motion for summary judgment must urge the defense in her response and present summary-judgment evidence to create a fact issue on each element of the defense. Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.1994) ; Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984) ; Bassett v. Am. Nat'l Bank, 145 S.W.3d 692, 696 (Tex.App.–Fort Worth 2004, no pet.). Evidence favorable to the non-movant will be taken as true, and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985).

As stated, Nancarrow contends that the trial court erred in entering its final summary judgment because it was based on a Rule 11 agreement regarding settlement that was fraudulently induced and thus vitiated. The issue in this appeal is therefore whether Nancarrow provided enough summary-judgment evidence to create a fact issue on each element of the affirmative defense of fraudulent inducement. See Am. Petrofina, Inc., 887 S.W.2d at 830 ; Brownlee, 665 S.W.2d at 112 ; Bassett, 145 S.W.3d at 696. A party asserting that it was fraudulently induced into entering an agreement must show that (1) the other party made a material representation, (2) the representation was false and was either known to be false when made or made without knowledge of its truth, (3) the representation was intended to be and was relied upon by the injured party, and (4) the injury complained of was caused by the reliance.See In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 678 (Tex.2009) (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex.1997) ). We will address each element in turn.

1. The other party made a material representation.

The representations that Nancarrow complains about are the statements regarding the substance of Dr. Bramhall's expert opinions and his anticipated testimony contained in Dr. Whitmer's responses to her requests for disclosure, as quoted above. Nancarrow argues that these statements were material because, without Dr. Bramhall's testimony, Dr. Whitmer would have been left with only his own expert testimony to defend against Nancarrow's claims of medical negligence. Nancarrow points to her counsel's affidavit to support this argument. Nancarrow's counsel stated in his affidavit that Dr. Whitmer's counsel revealed in their June 28th telephone conversation that ...