Roeglin v. Daves

• Decision Date: 26 July 2002
• Docket Number: No. 03-01-00715-CV.,03-01-00715-CV.
• Citation: 83 S.W.3d 326
• Parties: Scott ROEGLIN/Sandra Daves and Alfred Daves, Appellants, v. Sandra DAVES and Alfred Daves/Scott Roeglin, Appellees.
• Court: Texas Court of Appeals

83 S.W.3d 326

Scott ROEGLIN/Sandra Daves and Alfred Daves, Appellants, v. Sandra DAVES and Alfred Daves/Scott Roeglin, Appellees.

No. 03-01-00715-CV.

Court of Appeals of Texas, Austin.

July 26, 2002.

Alexander N. Beard, E. Thomas Bishop, Bishop & Hummert, P.C., Dallas, for Roeglin.

Russell D. Daves, Lubbock, for Daves.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and YEAKEL.

LEE YEAKEL, Justice.

The district court found that there was a valid and enforceable Rule 11 agreement by which appellants Alfred and Sandra Daves (together "the Daveses") agreed to settle their claims against appellee Scott Roeglin ("Roeglin") for injuries suffered by Alfred Daves in an automobile collision, in exchange for payment by Roeglin's liability insurance carrier of its policy limits. See Tex.R. Civ. P. 11. After a hearing, the court rendered an interlocutory order granting Roeglin's motion to enforce the agreement, dismissing the claims of the Daveses and Universal Underwriters Insurance Company ("Universal"), Alfred Daves's employer's worker's compensation insurance carrier, against Roeglin, and denying Roeglin's request for attorney's fees. The district court then severed the matters determined by the interlocutory order and rendered a final appealable judgment.¹ The Daveses appeal, asserting that there is no agreement.² Roeglin appeals the denial of attorney's fees. We will reverse in part and affirm in part the district-court judgment.

THE DISPUTE

Factual Background

On March 19, 1999, Alfred Daves sustained serious injuries when a vehicle in which he was a passenger was involved in a collision with Roeglin. Because Daves was injured in the course and scope of his employment, Universal began paying Daves's medical expenses. At the time of this dispute, Universal had made payments to or on behalf of Alfred Daves in excess of $55,000.

Sandra Daves initiated this action against Roeglin, alleging damages for loss of consortium as a result of the injuries to her husband. Initially, Alfred Daves was not a plaintiff. When Universal learned of Sandra Daves's suit, it intervened, asserting a subrogation claim. In an amended petition, Alfred Daves joined Sandra Daves as a plaintiff and named State Farm Mutual Automobile Insurance Company ("State Farm"), the Daveses' uninsured/underinsured motorist ("UIM") insurance carrier, as an additional defendant. The Daveses and Universal soon discovered that Roeglin's liability insurance was limited to $20,023, substantially less than Universal's subrogation claim. The attorneys for the Daveses and Universal then commenced discussions concerning the apportionment of Roeglin's liability insurance.

A series of letters resulted, the first between the Daveses and Universal, followed by correspondence from Universal to Roeglin and Roeglin to Universal and the Daveses. Roeglin asserts, and the district court agreed, that these letters, collectively, constitute a valid and enforceable Rule 11 agreement among the Daveses, Roeglin, and Universal, providing, inter alia, for the dismissal of the Daveses' damage claims against Roeglin. The Daveses contend that they never had an agreement with Roeglin, and any agreement reflected by the letters was only between themselves and Universal.

As is germane to this dispute, Texas Rule of Civil Procedure 11 provides 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." Tex.R. Civ. P. 11. A series of letters among attorneys or parties to litigation may constitute an agreement in writing satisfying Rule 11. Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995).

The Letters

The alleged agreement consists of nine letters. The letters are all among the attorneys for the Daveses, Universal, and Roeglin. For ease in understanding, however, we will, with the exception of the final letter, refer to them as if written by the parties. As a threshold matter, we note that no one letter is signed by all parties, the attorneys for all parties, or any combination of all parties and their attorneys.

The first letter, from the Daveses to Universal dated October 26, 2000, is apparently in response to a letter the previous day from Universal to the Daveses that is not before us. Signed by the Daveses, their attorney, and the attorney for Universal, it provides, in pertinent part:

This letter, when agreed to by all parties by signing below, will confirm settlement of disputes between Universal ... and [the] Daves[es], in regards to claims by both Universal ... and/or [the] Daves[es] against ... Roeglin and State Farm ... and any other insurance company issuing UIM coverage, in effect at the time of the automobile accident made the basis of the above styled suit, as follows:

1. All proceeds received from the insurance carrier of ... Roeglin, in payment of any claims asserted by either Universal ... and/or [the] Daves[es] against ... Roeglin shall be split ninety percent (90%) to Universal ... and ten percent (10%) to [the] Daves[es].

(Emphasis added.) The letter goes on to address the division of UIM and future worker's compensation insurance proceeds that might be recovered by virtue of claims by the Daveses as well as other damages that might be recovered by the Daveses against State Farm. Neither Roeglin nor his insurer is an addressee or signatory of the letter. The letter contains no signature line for Roeglin or his attorney and does not reflect that either was forwarded a copy.

On November 15 Universal wrote Roeglin, advising that "Universal ... has reached a settlement agreement with Sandra Daves.... Universal ... will receive 90% of the tendered policy limits of $20,023.00 which equates to $18,020.70."³ Universal requested a "settlement draft" and stated it would "execute the appropriate settlement release upon receipt." This letter was not signed by the Daveses or their attorney and does not indicate that Universal sent them a copy.

Two months later, on January 16, 2001, Roeglin sent letters to the Daveses and Universal, each enclosing a proposed "Release and Settlement Agreement," "Agreed Order of Dismissal," and a check drawn on the account of State and County Mutual Fire Insurance Company, Roeglin's liability insurance carrier, dated December 12, 2000. The checks were payable $2002.30 to the Daveses and $18,020.70 to Universal. Universal signed a slightly revised settlement agreement on March 20. The agreement provided signature lines for Sandra Daves, Alfred Daves, and Universal, as well as signature lines for their attorneys to approve and agree to the document. The proposed order provided, inter alia, for the dismissal of all claims by the Daveses and Universal against Roeglin, and signature lines for the attorneys for all three parties to approve the order.

On April 2 Roeglin wrote the Daveses, inquiring if there was a problem with the agreement and when he might expect it to be executed.

On April 3 at the Daveses' request, Roeglin sent them a copy of the agreement as signed by Universal and requested that they likewise sign it.

An April 16 letter from Universal to Roeglin forwards the original agreement and proposed order of dismissal, signed by Universal.

The final letter, dated April 25, 2001, from Roeglin's attorney to the Daveses' attorney, reads as follows:

I am enclosing a copy of the Release and Settlement Agreement executed by the authorized representative of Universal....

You indicated that once [Universal] approved and executed the Release and Settlement Agreement, that you would have [the Daveses] do likewise. Would you please have [the Daveses] approve and execute the Release Agreement.

I am also enclosing a copy of the Agreed Partial Order of Dismissal With Prejudice. The Order has been approved and signed by [Universal]'s counsel. Would you please do likewise.

After doing so, please return to me the signature pages, along with the verification pages. I will then combine the signature and verification pages into one document, returning to you a copy. I will then file the Order with the court and provide to you a conformed copy.

Should you have any questions, please do not hesitate to call me.

Neither the Daveses nor their attorney signed any of the documents provided by Roeglin.

The October 26, 2000 letter was originally filed with the district-court clerk on November 20, 2000 as a Rule 11 agreement between the Daveses and Universal. The other eight letters were filed with the clerk on September 13, 2001 as exhibits to Roeglin's motion to enforce the alleged settlement agreement with the Daveses.

Relying on Padilla, 907 S.W.2d at 460, and all the letters taken together, Roeglin asserts that the district court "properly ruled that there was a valid and enforceable Rule 11 agreement whereby the Daveses agreed to settle their claims with ... Roeglin in exchange for payment of Roeglin's insurance carrier's policy limits of $20,023."

DISCUSSION AND ANALYSIS

The Daveses' Appeal

If there is to be a Rule 11 agreement between the Daveses and Roeglin, its substance must be determined by the October 26 letter between the Daveses and Universal, as the remaining eight letters are no more than cover letters or attempts by Roeglin to confirm an alleged settlement between him and the Daveses as described in the initial letter. That letter is as significant for its exclusions as its inclusions. It is neither addressed to nor contains the signature of Roeglin, his attorney, or his insurer, makes no reference to the amount of Roeglin's insurance, does not state that the Daveses will release Roeglin from liability to them, and does not state that the Daveses and Roeglin are settling their dispute. The letter does not reference a tender of policy limits by Roeglin's insurer or whether Roeglin has other assets from which either the Daveses or Universal might satisfy their claims. It does not state that the...