Summary
holding that written rule 11 agreement was not valid because it was not signed by appellant or his counsel
Summary of this case from Araiza v. BumbOpinion
No. 01-03-00855-CV
Opinion issued August 19, 2004.
On Appeal from Probate Court No. 1, Harris County, Texas, Trial Court Cause No. 326542-401.
Panel consists of Justices NUCHIA, ALCALA, and HIGLEY.
MEMORANDUM OPINION
This appeal stems from the summary judgment rendered by the trial court in favor of appellees Philip A. Donisi and Robert J. Pilegge, individually and as the independent co-executors of the estate of Hubert S. Finkelstein, deceased, and Medallion International Corporation against appellant, Cesar Sylva. Sylva sued Hubert S. Finkelstein and Medallion International Corporation (Medallion) asserting claims of breach of contract, tortious interference with a business relationship, and intentional infliction of emotional distress based on Medallion's and Finkelstein's refusal to sign a settlement agreement in the underlying lawsuit. We affirm.
BACKGROUND
Medallion filed suit against Sylva and Sylva Engineering Corporation (SEC) for breach of contract for consulting services. At the time of the initial lawsuit, Hubert Finkelstein operated and was a part owner of Medallion. Finkelstein is now deceased, and appellees Philip Donisi and Robert Pilegge are co-executors of his estate. During the pendency of the lawsuit, Medallion's counsel, Michael Lennon, contacted Sylva and indicated that Medallion and Finkelstein were willing to settle. Sylva's counsel, Patricia Casey, told Lennon that Sylva was only willing to settle if offered an agreement wherein Finklestein and Medallion would agree not to file any further lawsuits against Sylva and SEC based on their past dealings, since there was a history of litigation between companies controlled by Finklestein and companies controlled by Sylva. At the time of the settlement offer, Sylva was negotiating to sell SEC to a third party.
In a discussion with Sylva and Casey, Lennon indicated that he did not think that there would be a problem with the terms of the settlement. Casey drafted a proposed settlement agreement, which she sent via facsimile machine to Lennon. Lennon made certain changes to the proposed draft and returned it, unsigned, to Casey. Kirk Worley, a lawyer in Casey's firm, incorporated the revision, had Sylva execute the agreement, and sent the draft of the settlement agreement to Lennon, asking him to have it executed by Finkelstein. At no point during this process did Finkelstein or any other representative of Medallion sign the agreement.
Medallion sent SEC a proposed "Settlement and Release agreement," signed by its vice president, Robert Pilegge, that limited the scope of the settlement and release to Medallion's claims against Sylva and SEC. Sylva and SEC did not sign the agreement proposed by Medallion. The lawsuit was finally resolved by summary judgment in favor of Sylva and SEC.
Sylva then brought suit against Medallion and Finkelstein, alleging breach of contract, tortious interference with business relations, and intentional infliction of emotional distress. The breach-of-contract claim is based on Medallion's refusal to abide by the requirements of the unsigned rule 11 agreement; the tortious-interference claim is based on the effect that the continuing litigation had on Sylva's ability to sell SEC; and the intentional-infliction-of-emotional-distress claim is based on Sylva's allegations that he suffered severe depression as a result of the breach of contract and tortious interference.
DISCUSSION
Standard of Review
Rule 166a(c) provides that summary judgment is proper only when the movant proves that there is no genuine issue as to any material fact and he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When evaluating a summary judgment, we assume that all evidence favorable to the non-movant is true and indulge every reasonable inference in favor of the non-movant. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the movant shows that he is entitled to judgment as a matter of law, the non-movant must present evidence raising a fact issue in order to defeat summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Competence of Evidence
In his third issue, Sylva argues that Medallion's evidence was insufficient to support any form of summary judgment because it did not present competent evidence to support the claims made in its motion for summary judgment. Sylva complains only that the affidavit of Greg Schuelke relates to damages. Sylva does not mention the remaining 200 pages of summary judgement evidence attached to Medallion's motion, nor does he cite to any authority to support his contention. Sylva has waived his complaint in his third issue by his inadequate briefing. See RE/MAX of Texas, Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex. App.-Houston [1st Dist.] 1997, pet. denied) (concluding that appellant's failure to provide argument, authority, or record references in support of point of error left nothing for appellate court to review).
Sylva's Issues
In his second issue, Sylva contends that the trial court erred if it granted Medallion's motion for summary judgment under rule 166a(c) because Sylva, by means of pleadings, affidavits, and other summary judgment evidence, raised issues of material fact. Sylva asserts that Medallion, in its motion for summary judgment, did not negate Sylva's breach-of-contract claim as a matter of law. Sylva argues that the facsimile communications between Casey and Lennon constitute a rule 11 agreement because, taken together, they contain all of the material terms of the settlement agreement between the parties. Sylva contends that, even though the communications were not signed, they should still be held sufficient to satisfy the requirements of rule 11.
See Tex. R. Civ. P. 11.
Rule 11 states, "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 supreme court has held that settlement agreements must satisfy the requirements of rule 11 to be enforceable. Kennedy v. Hyde, 682 S.W.2d 525, 528-29 (Tex. 1984).
Sylva relies upon Padilla v. LaFrance to support his contention that the agreement is enforceable despite not being signed. In Padilla, a party revoked his consent to a settlement agreement enforceable under rule 11 before the agreement was filed with the court. Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995). The Texas Supreme Court held that, while the rule 11 agreement had to be filed in the court record, the filing did not have to take place before consent was withdrawn by one of the parties for the rule 11 agreement to be valid. Id. at 461. The court in Padilla also reasoned that the "in writing" requirement of rule 11 could be analogized to the statute of frauds, so that a series of communications that were complete within themselves in every material detail and that contained all the elements of the agreement could constitute a rule 11 agreement. Id. at 460. Padilla does not address the requirement that the rule 11 agreement be signed, and therefore Padilla does not support Sylva's contention.
Sylva also argues that Ebner v. First State Bank of Smithville and Kosowska v. Khan indicate that substantial compliance with rule 11 is sufficient. Ebner v. First State Bank of Smithville, 27 S.W.3d 287 (Tex. App.-Austin 2000, pet. denied); Kosowska v. Khan, 929 S.W.2d 505 (Tex. App.-San Antonio 1996, writ denied). However, in Ebner, a written and unsigned rule 11 agreement was held not to be enforceable. Ebner, 27 S.W.3d at 294-95. Kosowska concerned an oral agreement and whether it was made and entered into the record in a manner that complied with the second way to create an enforceable rule 11 agreement: making the agreement in open court and entering it of record. Kosowska, 929 S.W.2d at 507-08. Neither of these cases supports the proposition that a written rule 11 agreement can be valid if not signed by one of the parties or their counsel.
Sylva admits that the agreement that he seeks to enforce is unsigned and has provided no authority for the proposition that an unsigned written agreement need not comply with the requirements of rule 11 to be enforceable. We hold that this agreement is unenforceable. Sylva's breach-of-contract claim fails as a matter of law.
Sylva also contends that Medallion's breach of contract was the "tortious or otherwise wrongful act" that gives rise to his tortious-interference claim. Given our disposition of the breach-of-contract issue, this argument fails as a matter of law.
Sylva further asserts that his affidavit established his claim for intentional infliction of emotional distress. In that affidavit, Sylva stated that, as a result of the "many years of frivolous litigation" filed against him by Finkelstein and Medallion, the failure of the sale of SEC to close, his loss of time, the expenses incurred, and the stress resulting from the breach of the rule 11 agreement, he became depressed to an extent that it was affecting his ability to work, he suffered loss of sleep, weight loss, and had suicidal thoughts. However, in his petition, Sylva's claim for intention infliction of emotional distress was based on his allegations that Finklestein and Medallion breached the rule 11 agreement. Because we have held that the agreement was not enforceable, Sylva's argument fails as a matter of law.
Accordingly, we overrule Sylva's second issue.
CONCLUSION
In light of our ruling on Sylva's second and third issues, we need not reach his first issue, challenging the summary judgment on the basis of rule 166a(i).
We affirm the judgment of the trial court.