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At a Glance:
Barragan v. Nederland Independent School District
February 5, 2015
Unpublished Opinion

Barragan v. Nederland Independent School District

Court of Appeals of Texas, Beaumont.

Irma BARRAGAN, Appellant



NO. 09–13–00350–CV


Submitted on April 24, 2014


Opinion Delivered February 5, 2015

On Appeal from the 172nd District Court, Jefferson County, Texas, Trial Cause No. E–191,975. Donald Floyd, Judge.

Attorneys & Firms

John A. Cowan, Provost Umphrey Law Firm, LLP, Beaumont, TX, for Appellant.

Greg C. Wilkins, Orgain Bell & Tucker, LLP, Beaumont, TX, for Appellee.

Before Horton, JJ.



*1 Appellant Irma Barragan appeals the trial court’s enforcement of a purported Rule 11 agreement to settle the lawsuit and dismissal with prejudice of her personal injury lawsuit against appellee Nederland Independent School District (“NISD”). Barragan raises seven issues for our consideration. We reverse the trial court’s orders and remand the cause for further proceedings consistent with this opinion.


Barragan sued NISD and Janis L. Pokraka for injuries allegedly sustained when Barragan’s vehicle, which was sitting at a stop sign, was struck by a NISD bus driven by Pokraka when Pokraka made an improper left turn. Barragan asserted a cause of action for negligence, and she alleged that Pokraka was acting in the course and scope of her employment with NISD when the accident occurred. Barragan also alleged that she suffered significant bodily injuries as a result of the accident, and she asserted claims for both past and future medical expenses, as well as pain and suffering, mental anguish, loss of enjoyment of life, and physical impairment. Barragan pleaded that her damages “greatly exceed the sum of $100,000.00[.]” Barragan eventually filed a motion to non-suit her claims against Pokraka, and the trial court granted the motion. See Tex. Civ. Prac. & Rem.Code Ann. § 101.106(e) (West 2011) (“If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.”).

NISD asserted a general denial, specifically denied that it is liable in the capacity in which Barragan sued it, and specifically denied liability for money damages in excess of $100,000. NISD also alleged that Barragan was negligent in operating her vehicle and contended any recovery by Barragan should be reduced by her percentage of responsibility. The next document to appear in the clerk’s record after Barragan’s first amended petition is a letter, dated July 19, 2012, from NISD’s counsel, Monica Wilkins, to Barragan’s counsel, Cynthia Frederick, in which NISD offered to “settle this case” for $20,000 “inclusive of any and all subrogation claims, healthcare liens, Medicaid liens, Medicare liens, workers’ compensation liens, hospital liens and/or child support liens.” The letter requested, “[i]f your client agrees to settle for $20,000.00, please sign below and fax this agreement back to me.” The letter, which was e-filed with the district clerk on September 25, 2012, contains the signature of Frederick, but does not contain Barragan’s signature. On September 27, 2012, Barragan filed a motion to substitute Paul “Chip” Ferguson as her attorney, citing as grounds Frederick’s alleged failure to communicate, failure to adequately represent Barragan, and failure “to have or keep the client’s best interests[.]”

The next day, NISD filed a “Motion to Enforce Settlement Agreement[,]” in which it contended that the letter signed by Frederick constituted “an enforceable settlement agreement in accordance with Rule 11 agreement was not filed “until after [Barragan] had discharged Ms. Frederick.” Barragan also contended that despite requests from Barragan and Ferguson, Frederick had not provided Barragan with “any of her file materials.”

*2 On October 5, 2012, the trial court signed an order granting the motion to substitute, naming Ferguson counsel of record for Barragan, and ordering Frederick to send Barragan’s file to Ferguson within ten days. On October 10, 2012, NISD’s counsel sent a letter to Ferguson, in which NISD contended that “there was an agreement to settle this case[ ]” and that “[t]he agreement constitutes a contract which is subject to enforcement.” The letter demanded that Barragan tender a signed release and take nothing judgment, and stated that if Barragan refused to comply, NISD would “file a counterclaim for breach of contract” and “seek attorney’s fees[.]” Two days later, NISD’s counsel sent another letter demanding that Barragan either comply or be sued for breach of contract. However, NISD did not file a counterclaim for breach of contract.

Barragan subsequently filed a response and memorandum of authorities regarding the validity of the Rule 11 agreement until after any authority of Frederick had been revoked[.]”

Attached to the response was Barragan’s affidavit, in which she swore that in July 2012, she discussed the $20,000 settlement offer with Frederick, but Barragan never agreed to settle her case. Barragan swore that:

I was told by [Frederick] that she had already settled my case and that I had no choice. At that point, I was very frustrated and did not understand how or why Ms. Frederick could or would settle my case without my permission. I fired her as my attorney and eventually hired Mr. Ferguson. From the point in time that I fired Ms. Frederick, she was not authorized to act or work on my behalf. Before that time, she had no authority or consent to settle my case for $20,000....

... I would have never considered much less accepted a settlement that was less than my medical bills.

Barragan also attached to her response the transcript of Frederick’s deposition. Frederick testified in her deposition that in early to mid-September, Barragan called and expressed concern over the amount of her medical bills, and Frederick told Barragan “we’ve already made a deal[,]” and Barragan responded that “she hadn’t signed anything yet.” The record reflects that Barragan terminated Frederick’s representation of her by a letter dated September 19, 2012. In that letter, Barragan stated that she disagreed with Frederick’s evaluation of the value of her case, and that she had told Frederick the settlement offer was “not good[.]”

On October 4, 2012, the trial court conducted a hearing on NISD’s motion to enforce the Rule 11 agreement was granted, but did not make any factual findings or order Barragan to take any particular action.

*3 NISD subsequently filed a motion to dismiss the cause with prejudice, motion to adjudge costs, and request for attorney’s fees pursuant to Chapter 38 of the Texas Civil Practice and Remedies Code. In the motion, NISD pleaded that it filed the Rule 11 agreement, and it did not award damages to NISD. Barragan then filed this appeal.


In issue three, Barragan argues that the district court erred in entering a judgment in favor of NISD on a breach of contract (or affirmative defense of compromise and settlement) when no trial was held and no summary judgment was filed. In issue four, Barragan contends the district court erred in awarding attorney’s fees under Chapter 38 of the Civil Practice and Remedies Code when no actual damages were awarded. We address these issues together.

When parties reach a settlement agreement in pending litigation, the court may render an agreed judgment as long as no party has withdrawn consent. See Padilla, 907 S.W.2d at 460.

When a party has withdrawn consent, a court may enforce the settlement only as a written contract. Cadle Co. v. Castle, 913 S.W.2d 627, 632 (Tex.App.—Dallas 1995, writ denied)).

Neither the Civil Practice and Remedies Code nor the Rules of Civil Procedure creates a separate standard for enforcing disputed settlement agreements that bypasses the common law pleading and proof requirements. See In re Park Mem’ l Condo. Ass’n, Inc., 322 S.W.3d 447, 450 (Tex.App.—Houston [14th Dist.] 2010, orig. proceeding). “Due process requires a full hearing before a court having jurisdiction, the opportunity to introduce evidence at a meaningful time and in a meaningful manner, and the right to judicial findings based on the evidence.” Id.

*4 NISD effectively pleaded a breach of contract claim by filing its motion to enforce. See Castillo, 279 S.W.3d at 663. Accordingly, we sustain issue three.

Rule 11 agreement, dismissing Barragan’s case with prejudice and awarding attorney’s fees to NISD, and we remand the cause for further proceedings consistent with this opinion.


End of Document