Fred Kettrick and Judy Kettrick v. Luanne Appel Coles

Opinion issued

August 25, 2011

In The

Court of Appeals

For The

First District of Texas

NO. 01-10-00855-CV

FRED KETTRICK AND JUDY KETTRICK, Appellants

V.

LUANNE APPEL COLES, Appellee

On Appeal from the 335th District Court

Washington County, Texas

Trial Court Cause No. 33,873

MEMORANDUM

OPINION

Appellants, Fred and Judy Kettrick, challenge

the trial court’s entry of judgment, after a bench trial, in favor of appellee,

Luanne Appel Coles, in Coles’s suit against the Kettricks for breach of a Rule

11 Agreement (the “Rule 11 Agreement”). [1] In two issues, the Kettricks contend that the

trial court erred in concluding that their former attorney, Steven Haley, had

actual and apparent authority to bind them to the Rule 11 Agreement.

We affirm.

Background

In

2007, Coles filed her original petition, seeking to partition a forty-four acre

tract of land, located in Independence, Texas and which she co-owned with the

Kettricks, Rhonda and Greg Cupit, [2]

and Evelyn Tate. [3] The Kettricks filed a counterclaim for

contribution, alleging that they had expended labor and money for improvements

to the property over the course of their ownership.

On May 1, 2009, the trial court

entered a “Decree Ordering Partition in Kind, Appointing Surveyor and Special

Commissioners, and Determining Contribution Claims.” In its decree, the trial court found that the

Kettricks owned 23.2% of the surface interest and 23.2% of the mineral interest

in the property, Coles owned 38.4% of the surface interest and 38.4% of the

mineral interest in the property, the Cupits owned 38.4% of the surface

interest in the property, and Tate owned 38.4% of the mineral interest in the

property. It also found that the

property should be partitioned into separate tracts proportionate to the value

of each party’s interest, and it appointed a surveyor and three special

commissioners to partition the property.

The trial court further found that Fred Kettrick had a contribution

claim in the amount of $31,875 and Coles had a contribution claim in the amount

of $14,976, but it deferred entering a contribution award.

On

August 7, 2009, the commissioners filed their report (the “Commissioners’

Report”), in which they divided the property into three separate tracts and recommended

awarding a 13.332 acre tract to Fred Kettrick, a 12.442 acre tract to Coles,

and a 18.570 acre tract to Rhonda Cupit.

The commissioners attached to their report exhibits depicting the

location of these tracts, and the exhibits indicated that Coles’s tract

contained two houses, referred to by the parties as the “Spring House” and the “Old House,” that were located

on the property. All parties filed an

agreed objection to the Commissioners’ Report on the ground that the report

failed to account for the mineral estate.

The Kettricks, the Cupits, and Tate also filed objections to the Commissioners’

Report on the grounds that it did not represent a fair and equitable partition

of the property and it did not account for the Kettricks’ contribution credits. The Kettricks, the Cupits, and Tate requested

that the trial court reject the report and set the matter for jury trial.

It

is undisputed that on March 9, 2010, prior to trial, Coles, who was represented

by her lawyer, Josh Clover, and Fred Kettrick and Rhonda Cupit, who were

represented by their lawyer Steven Haley, met at Haley’s office for settlement

discussions. Following the meeting, the

parties traveled to the property, where they further discussed the partition of

the property. However, the parties

dispute whether they had agreed to settle the case while at the property.

On

March 10, 2010, Clover sent Haley a letter, which was entitled “Rule 11

agreement,” in which he stated,

After yesterday’s settlement conference and inspection

of the real property the subject of the above referenced partition suit, the

parties have agreed to settle. In order

to effectuate this agreement, the parties will execute a Compromise Settlement

Agreement in substantially the same form as the document attached hereto as

Exhibit I and containing the following material terms:

(1) The real property

the subject of this suit will be partitioned in the manner directed in the

Report of Commissioner’s filed with the Court on August 7, 2009, with the

following exceptions:

a) Fred Kettrick

will additionally have partitioned to him a parcel containing the Spring House

with the boundaries delineated on Exhibit B to Exhibit I attached hereto; and,

b) Mrs.

Coles will additionally have partitioned to her a parcel (i) bordering FM 390;

(ii) adjacent to the western boundary of the tract already partitioned to her;

(iii) equal in acreage to the parcel additionally partitioned to Fred Kettrick

in paragraph I) a) above; and, (iv) with the boundaries delineated on Exhibit C

to Exhibit I attached hereto.

(2) John

Pledger will be engaged in order to conduct the additional survey work

necessary to properly describe by metes and bounds, the additional parcels described

in paragraph I) above.

(3) Mrs.

Coles will pay 50% of the cost of Mr. Pledger’s additional survey work, and

Fred Kettrick and the remaining Defendants will pay 50% of the cost of Mr.

Pledger’s additional survey work.

(4) Fred Kettrick

and the remaining Defendants will have until June 1, 2010 to remove all personal

property from the tract partitioned to Mrs. Coles. After June 1, 2010, any personal property left

on the tract, or in improvements located on the tract partitioned to Mrs.

Coles, will be considered abandoned, and Mrs. Coles may keep or dispose of it

at her sole discretion.

If this accurately sets forth our agreement, please

sign below and return a copy to me.

Clover attached to this letter a copy

of an unexecuted “Compromise Settlement Agreement,” which provided that the

parties would submit an agreed judgment to the trial court containing those

terms set forth in the Rule 11 Agreement.

Haley, also on March 10, 2010, signed

the Rule 11 Agreement on behalf of the Kettricks, the Cupits, and Tate. Haley, also on that same day, sent Fred

Kettrick, Rhonda Cupit, and Tate a letter enclosing the “proposed Compromise

Settlement Agreement formalizing the agreement of the Parties in settling the

above matter.” Haley instructed his

clients to “look this over” and, “[i]f okay,” to sign and return it” or to “[c]all

with any questions.” Haley also asked Fred

Kettrick, Rhonda Cupit, and Tate to note that there was a June 1 deadline to

remove any personal items from the property awarded to Coles, and Haley stated

that he needed Fred Kettrick to pay one-half of the surveyor cost for surveying

“the two small tracts created by this settlement.”

The Kettricks and the Cupits did not execute

the Compromise Settlement Agreement, and a dispute arose between the Kettricks

and Haley over the Rule 11 Agreement. On

March 25, 2010, Haley withdrew as counsel for the Kettricks, the Cupits, and

Tate, and they, now represented by Stephen Moon, their new attorney, filed in

the trial court a “Verified Withdrawal of Consent for Rule 11 Agreement and

Request for Jury Trial on Defendants’ Objection to Report of

Commissioners.” In this document, the

Kettricks, the Cupits, and Tate stated that the Rule 11 Agreement had been

signed by Haley without their knowledge, consent, or authorization, and they

revoked their consent to the Rule 11 Agreement.

Coles filed an amended petition,

alleging a claim for breach of contract arising from the refusal to comply with

the Rule 11 Agreement, which she filed with the trial court. [4] The trial court subsequently conducted a

bench trial on Coles’s breach of contract claim. [5]

At trial, Coles testified that she

and her husband, with Clover, met with Fred Kettrick, Rhonda Cupit, and Haley

at his office, and they all devised “a plan to settle” the dispute. Coles explained that both the Spring House

and the Old House were located on the tract to be awarded to her in the

Commissioners’ Report. As part of the settlement,

Coles agreed to give up the Spring House and one or two surrounding acres in

exchange for an equal amount of acreage on the Kettricks’ tract. After coming to this proposed agreement in Haley’s

office, the parties, along with their attorneys, drove to the property, where

Fred Kettrick “showed [them] what he wanted” around the Spring House. Coles and her husband agreed to this request. In regard to the acreage to be added to her

tract, Coles explained that although the parties had agreed at Haley’s office to

add this acreage “by taking it off the western side,” the parties subsequently

agreed that she would instead receive an area of land, which she referred to as

the “rock pile,” on the front of the Kettricks’ tract. Coles stated that she did this as an

accommodation to Rhonda Cupit, who “wanted the pasture land” for her horses. Coles believed that all the parties had

agreed to these terms and that all parties understood that the actual

boundaries “would have to be confirmed by the . . . surveyor.” Coles reviewed the Rule 11 Agreement and

confirmed that it accurately represented the agreement reached by the parties

at the property after two to three hours of settlement discussions.

On cross-examination, Coles stated that

she did not know whether the parties had discussed the provision in the Rule 11

Agreement regarding the removal of the personal items from the property during their

settlement discussions, but she explained that she assumed that “whoever got

the house would get the remaining furniture.” She also stated that the parties had

“already divided it.” When asked if she

had taken any steps “in reliance” upon the Rule 11 Agreement, Coles stated that

she “couldn’t do that because it wasn’t legally divided to [her]” at that time. She also agreed that she had not tried to

sell the property.

Fred Kettrick testified that on March

9, 2010, he, Rhonda Cupit, Coles, Coles’s husband, Haley, and Clover met at

Haley’s office to try to settle the dispute.

After over an hour at the office, the parties traveled to the

property. Kettrick agreed that at this

time, he thought there was “possibly” an agreement, the terms of which would

include his receipt of the Spring House and some surrounding acreage and Coles’s

receipt of some acreage on the western boundary of her tract. When asked about whether the “same acre or

two” would be added to Coles’s property, Kettrick agreed that this was

“contemplated” before visiting the property, but this ultimately is how the

deal “fell apart.” The parties walked

the property and agreed to boundaries around the Spring House, but a dispute

developed over Coles’s “makeup acreage.”

Kettrick stated that he “didn’t care to give [Coles] anything for the

acreage around the Spring House.” When

asked if he had participated in the discussions about adding the “rock pile”

land, Kettrick denied that any such discussion occurred. He agreed that, at the conclusion of the

parties’ visit to the property, Coles “probably” understood that the parties

had reached a settlement and he did not say anything “to make [Coles] think that

the case hadn’t been settled.” Kettrick also

understood that Haley believed that the case had been settled, but he did not

speak to Haley after they had visited the property.

Later on the same day that the

parties had visited the property, Kettrick asked Rhonda Cupit to call Haley to

tell him not to enter into a settlement agreement and complain that the survey

lines on the property were incorrect. Kettrick

agreed that he did not have personal knowledge about the subsequent phone

conversation between Rhonda Cupit and Haley.

When asked why he had not raised any complaints while at the property

about the additional acreage to be given to Coles, Kettrick said, “I don’t

know.”

Kettrick explained that he did not

realize that Haley had signed the Rule 11 Agreement until he had later met with

his new attorney. Kettrick explained

that he did not authorize Haley to sign the Rule 11 Agreement, the parties had

never discussed the provisions in the Rule 11 Agreement about the additional

survey work or the removal of personal items from the property, and Haley and

Clover must have taken it “upon themselves” to insert those provisions into the

Rule 11 Agreement. He denied making any

statements suggesting that the parties had reached a settlement or any representations

that Haley was authorized to sign a Rule 11 Agreement. Kettrick understood that, after leaving the

property, the attorneys were “going to draw some papers up,” but he maintained

that he had not authorized Haley to sign any settlement papers.

Haley testified that after several

hours of settlement discussions at Haley’s office, Fred Kettrick, Rhonda Cupit,

and the Coles agreed to settle the case by adopting the Commissioners’ Report,

but with some exceptions. The parties

agreed that Fred Kettrick would receive the Spring House and some surrounding acreage

and Coles, in exchange, would receive acreage from the Kettrrick tract. The parties then traveled to the property,

where, over the course of two hours, everyone agreed to the boundaries around

the Spring House and the makeup acreage, which was a triangular piece of land. Haley stated that Fred Kettrick and Rhonda

Cupit confirmed that this was their agreement.

Specifically, Haley had asked Fred Kettrick if he “would agree to the

proposal that was then before the parties,” and Fred Kettrick affirmed. Haley was “convinced [his] clients had agreed

to what was in there.”

Later that day, Haley received a telephone

call from Rhonda Cupit, who told him that she and Fred Kettrick were concerned

about the location of some of the surveying pins on the property. Haley did not think that Rhonda Cupit’s

concern substantively affected the terms of the settlement, and she did not

tell Haley that the “deal had changed or that [she or Fred Kettrick] had

changed their mind.” Haley explained that

he signed the Rule 11 Agreement because there “was some necessity to act while

Mrs. Coles was still agreeing,” and he only learned, some “weeks later,” that

Kettrick disputed the Rule 11 Agreement and would not sign the Compromise and

Settlement Agreement.

On cross-examination, Haley stated

that it is normal to negotiate settlements for “husband and wife” when one

spouse is not present, and he explained that Tate would have been unaffected by

the Rule 11 Agreement because she was only a mineral interest holder. Haley agreed that he did not specifically

discuss the Rule 11 Agreement with his clients or inform them that he would be

signing the agreement on their behalf. He also agreed that his clients had not given

him “affirmative authorization” to sign the Rule 11 Agreement. However, Haley maintained that there was “no

indication” in Rhonda Cupit’s telephone call after the purported settlement

that either she or Fred Kettrick were “unhappy with or desiring to distance

themselves from the previous agreement.”

Haley explained that the Rule 11 Agreement

was “an attempt to be a shorthand rendition of the follow along Compromise [and]

Settlement Agreement.” When asked if the

parties had discussed the third and fourth provisions of the Rule 11 Agreement,

which concerned the payment of additional surveying fees and the removal of

personal items from the property, Haley stated that there “was some discussion

of [the survey fees], but certainly no discussion of [the removal of personal items].” However, he explained that there was “already

a deal” regarding the personal items and this provision of the Rule 11

agreement provided an extension of time to remove the items. Haley agreed that he did not call his clients

upon receiving or signing the Rule 11 Agreement, but he noted that he did send his

clients a letter.

Haley did not see any “material differences”

between the Rule 11 Agreement and the Compromise Settlement Agreement, but he

agreed that the percentages of payment for the additional survey work contained

in the Rule 11 Agreement were not discussed at the property and these percentages

“were proposed by Coles and seemed like a good deal to [him] since [his

clients] owned considerably more in terms of percentage of the property than

she did.” Haley acknowledged that a “few

minutes” before leaving the property, he informed Fred Kettrick and Rhonda Cupit

that Coles had refused to agree to their request for a right of first refusal

on the sale of her property, but he did not think that this term was a “deal

killer.”

Rhonda Cupit testified that she did

not realize that Haley had signed the Rule 11 Agreement until several days after

the parties had met at the property and she did not authorize Haley to sign the

Rule 11 Agreement. On March 9, 2010,

while at the property, she did not think that the survey “lined up”

correctly. Cupit denied that the parties

had discussed the provision regarding the payment for the survey work and,

although she agreed that there was some discussion about the removal of

personal items, she stated that the parties had not discussed this in any detail. Following the parties’ visit to the property,

she called Haley and told him that Fred Kettrick was “very upset” and that the

survey lines were not correct. Cupit

also stated that she had asked Haley to obtain a right of first refusal on the

property from Coles, this term had been “an issue the whole time,” and she

would not have entered into a settlement agreement that lacked a right of first

refusal.

On cross-examination, Cupit stated

that the parties had not agreed to anything, but had only discussed how they

might reach an agreement. Cupit noted that, at the conclusion of the property

visit, the parties got into an argument concerning the fact that Fred Kettrick was

not receiving anything on his contribution claim.

After the trial, the trial court

entered final judgment in favor of Coles on her claim for breach of

contract. The trial court ordered that

the property be partitioned in the manner directed in the Commissioners’

Report, with the exceptions that, in accord with the Rule 11 Agreement, the

Kettricks would receive a tract containing the Spring House with some

surrounding acreage and Coles would receive, in return, a tract equal in

acreage. The trial court included in its

judgment diagrams depicting these awarded tracts, and it ordered that

additional survey work be performed and Coles and Kettrick to each pay 50% of

the costs associated with this work.

Finally, the trial court ordered that the Kettricks, the Cupits, and

Tate remove any personal items from Coles’s property no later than August 31,

2010.

The trial court subsequently entered

findings of fact and conclusions of law.

It found that on March 9, 2010, the parties had reached a “tentative

settlement agreement” at Haley’s office that “contemplated” that Coles would

concede the Spring House along with one or two surrounding acres to Fred

Kettrick and Fred Kettrick would concede the same amount of acreage to Coles on

the north/south boundary of their two tracts; the parties then traveled to the

property to stake the boundaries; the parties, at the property, made one

additional change to the agreement; and Fred Kettrick conceded a pie-shaped

piece of property along the north side of his tract instead of along the

western boundary of Coles’s track. The

trial court further found that at the time the parties left the property, Fred Kettrick

knew that Haley understood the case to be settled on the above terms, Rhonda Cupit

subsequently called Haley concerning the placement of surveyor pins, Kettrick

did not communicate again with Haley, and, on March 10, 2010, Haley and Clover

memorialized the terms of the parties’ settlement in the Rule 11 Agreement.

The trial court concluded that the

Rule 11 Agreement was an enforceable contract and settlement agreement and,

thus, Coles’s claims for breach of contract and specific performance were

meritorious. It further concluded that Haley

had apparent authority to bind his clients [6] to

the Rule 11 Agreement, Haley’s clients actually authorized him to sign the Rule

11 Agreement, and Haley had actual authority to bind his clients to the Rule 11

Agreement.

Standard of Review

In an appeal of a judgment rendered

after a nonjury trial, a trial court’s findings of fact have the same weight as

a jury’s verdict, and we review the legal and factual sufficiency of the

evidence used to support them just as we would review a jury’s findings. Catalina v. Blasdel , 881 S.W.2d 295, 297

(Tex. 1994); Daniel v. Falcon Interest

Realty Corp. , 190 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, no

pet.). In conducting a legal sufficiency

review of the evidence, we must consider all of the evidence in the light most

favorable to the verdict and indulge every reasonable inference that would

support it . City of Keller v. Wilson , 168 S.W.3d 802,

822 (Tex. 2005). In determining whether legally sufficient evidence supports

the finding under review, we must consider evidence favorable to the finding,

if a reasonable fact finder could consider it, and disregard evidence contrary

to the finding, unless a reasonable fact finder could not disregard it. Id .

at 827; Brown v. Brown , 236 S.W.3d

343, 348 (Tex. App.—Houston [1st Dist.] 2007, no pet.). However, if the evidence at trial would enable

reasonable and fair-minded people to differ in their conclusions, then jurors must

be allowed to do so. City of Keller , 168 S.W.3d at 822 ; see also King Ranch, Inc. v. Chapman ,

118 S.W.3d 742, 751 (Tex. 2003). When a party attacks the legal sufficiency of

an adverse finding on which it did not have the burden of proof, it must demonstrate

that there is no evidence to support the adverse finding. Croucher

v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983); Bellino v. Comm’n for Lawyer Discipline , 124 S.W.3d 380, 385 (Tex.

App.—Dallas 2003, pet. denied). We will sustain a legal sufficiency

or “no evidence” challenge if the record shows one of the following: (1) a

complete absence of evidence of a vital fact, (2) rules of law or evidence bar

the court from giving weight to the only evidence offered to prove a vital

fact, (3) the evidence offered to prove a vital fact is no more than a

scintilla, or (4) the evidence establishes conclusively the opposite of the

vital fact. City of Keller , 168 S.W.3d at 810 .

In reviewing a factual sufficiency

challenge, we consider and weigh all of the evidence supporting and

contradicting the challenged finding and set aside the finding only if the

evidence is so weak as to make the finding clearly wrong and manifestly unjust.

Cain

v. Bain , 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex. 1989).

When a party attacks the factual

sufficiency of an adverse finding on an issue on which it did not have the

burden of proof at trial, it must show that there is insufficient evidence to

support the adverse finding. Vongontard v. Tippit , 137 S.W.3d 109,

112 (Tex. App.—Houston [1st Dist] 2004, no pet.).

We review a trial court’s conclusions

of law de novo, and we will uphold the conclusions if the judgment can be

sustained on any legal theory supported by the evidence. BMC

Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002); In re Moers , 104 S.W .3d 609, 611 (Tex.

App.—Houston [1st Dist.] 2003, no pet.). Although a trial court’s conclusions of law

may not be challenged for factual sufficiency, we may review the legal

conclusions drawn from the facts to determine whether the conclusions are

correct. BMC Software Belgium, N.V ., 83 S.W.3d at 794 ; Holloway–Houston, Inc. v. Gulf Coast Bank & Trust Co. , 224

S.W.3d 353, 357 (Tex. App.—Houston [1st Dist.] 2006, no pet.). If we determine that a conclusion of law is

erroneous, but that the trial court nevertheless rendered the proper judgment,

the error does not require reversal. BMC Software Belgium, N.V ., 83 S.W.3d at

794 .

Finally, we note that the trial court

acts as fact-finder in a bench trial and is the sole judge of the credibility

of witnesses. See Murff v. Murff , 615 S.W.2d 696, 700 (Tex. 1981); HTS Servs., Inc. v. Hallwood Realty

Partners, L.P. , 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no

pet.).

Actual Authority

In their first issue, the Kettricks

argue that the trial court erred in concluding that Haley had actual authority

to bind them to the Rule 11 Agreement because Rhonda Cupit told Haley that he

was not authorized to enter into a settlement agreement, the Rule 11 Agreement

was signed on behalf of all of Haley’s clients but only Fred Kettrick and

Rhonda Cupit were present at the settlement conference, Haley did not contact

his other clients, the Rule 11 Agreement contained provisions that the parties

did not discuss, Haley agreed that his clients did not “affirmatively

authorize[]” him to enter into the Rule 11 Agreement, and Haley’s letter, with

the attached Compromise and Settlement Agreement, contained statements

“inconsistent with an attorney who thought he was authorized to sign” the Rule

11 Agreement.

“Generally, a court will indulge

every reasonable presumption to support a settlement agreement made by a duly

employed attorney.” Ebner v. First State Bank of Smithville , 27 S.W.3d 287, 300 (Tex.

App.—Austin 2000, pet. denied); see also Breceda

v. Whi , 187 S.W.3d 148, 152 (Tex. App.—El Paso 2006, no pet.) (“Generally,

within these roles, every reasonable presumption is to be indulged in favor of

the attorney duly employed.”); Behzadpour

v. Bonton , No. 14-09-01014-CV, 2011 WL 304079 , at *3 n.2 (Tex. App.—Houston

[14th Dist.] Jan. 27, 2011, no pet.) (mem. op.) (“An attorney retained for

litigation is presumed to possess actual authority to enter into a settlement

on behalf of a client.”). However, this

presumption may be rebutted by “affirmative proof that the client did not

authorize his attorney to enter into the settlement.” City of

Roanoke v. Town of Westlake , 111 S.W.3d 617, 629 (Tex. App.—Fort Worth

2003, pet. denied). When the evidence demonstrates that the attorney did not

have the authority to enter into the settlement agreement, the agreement will

not be enforced. Ebner , 27 S.W.3d at 300 ; see

also Kelly v. Murphy , 630 S.W.2d 759, 761 (Tex. App.—Houston [1st Dist.]

1982, writ ref’d n.r.e.) (noting that presumption that attorney is acting within

authority given by client is rebuttable); Sw.

Bell Tel. Co. v. Vidrine , 610 S.W.2d 803, 805 (Tex. Civ. App.—Houston [1st

Dist.] 1980, writ ref’d n.r.e.) (stating that “mere employment of counsel does

not clothe the counsel with authority to settle the cause without specific

consent of the client”).

A party may clothe his attorney with

either actual or apparent authority to reach and sign a binding settlement

agreement. W. Beach Marina, Ltd. v. Erdeljac , 94 S.W.3d 248, 255 (Tex. App.—Austin

2002, no pet.); see also Ebner , 27 S.W.3d at 300 (“To establish

authority, the principal must make some manifestation to the agent (actual

authority) or to a third party (apparent authority) that he is conferring such

authority.”). Actual authority is authority that the principal intentionally

conferred on the agent or allowed the agent to believe was conferred. City of

Roanoke , 111 S.W.3d at 627 ; Ebner ,

27 S.W.3d at 300 ; see also Behzadpour , 2011 WL 304079 , at *3 (“Actual

authority is created through written or spoken words or conduct of the

principal communicated to the agent.”). Actual

authority includes both express and implied authority and “usually denotes that

authority a principal (1) intentionally confers upon an agent, (2)

intentionally allows the agent to believe that he possesses, or (3) allows the

agent to believe that he possesses by want of due care. [7] Spring

Garden 79U, Inc. v. Stewart Title Co. , 874 S.W.2d 945, 948 (Tex. App.—Houston

[1st Dist.] 1994, no writ). Implied

actual authority is an “adjunct” to express actual authority, “because implied

authority is that which is proper, usual, and necessary to the exercise of the

authority that the principal expressly delegates.” Id .

In reviewing the sufficiency of the

evidence to support the trial court’s findings of fact that pertain to Haley’s

actual authority and the trial court’s conclusion of law that Haley possessed

actual authority, we consider the testimony provided by Coles, Fred Kettrick,

Haley, and Cupit. Coles testified that

she, her husband, and her attorney met with Fred Kettrick, Rhonda Cupit, and

their attorney to settle the dispute, which had arisen over the proposed award

to her of a tract of land that contained both the Spring House and the Old House. In order to settle the dispute, she agreed to

give Kettrick the Spring House with surrounding acreage in exchange for an

equal amount of acreage. The parties met

at the property and agreed to the acreage to be exchanged. Coles confirmed that the Rule 11 Agreement

accurately represented the parties’ agreement, and although she did not know if

the parties had discussed the removal of personal items from the property, she noted

that the parties had already divided the items.

Haley testified that Fred Kettrick,

Rhonda Cupit, and the Coles agreed to the boundaries of the tracts to be

exchanged, Fred Kettrick and Rhonda Cupit confirmed their agreement, and Haley

was “convinced” that his clients had agreed to the stated terms. Haley denied that Cupit had instructed him to

change the terms or withdraw from settlement, and he only learned some “weeks

later” that Fred Kettrick disputed the Rule 11 Agreement. Haley also explained that it was normal

practice to negotiate settlements for “husband and wife.” Although Haley conceded that he did not

specifically discuss the Rule 11 Agreement with his clients, he noted that the

parties had agreed on the property division, had engaged in “some discussion”

of the survey fees, and there was “already a deal” on the personal property

provision, which was simply an extension of time for the parties to remove the

property.

Fred Kettrick also agreed that the parties

met for settlement purposes and that, at the time the parties traveled to the

property, he thought there was “possibly” an agreement. Although Kettrick asserted that a dispute had

developed over Coles’s “makeup acreage,” he agreed that, at the conclusion of

the parties’ meeting, Coles “probably” understood that the parties had reached

a settlement, he did not say anything “to make [Coles] think that the case

hadn’t been settled,” and he knew that even Haley believed that the case had

been settled. Moreover, although Kettrick

testified that he subsequently asked Cupit to instruct Haley not to settle the

dispute, he agreed that he did not have personal knowledge of what Cupit had told

Haley and he had not spoken to Haley since the settlement discussions. Kettrick denied that he had authorized Haley

to sign the Rule 11 Agreement or the parties had discussed additional survey fees

or the removal of personal items from the property. However, he agreed that he was aware that,

after leaving the property, the attorneys were “going to draw some papers up.”

Cupit testified that the parties had

only discussed a possible agreement, she did not authorize Haley to sign the

Rule 11 Agreement, she had not discussed additional survey fees, and she did

not engage in any detailed discussion about the removal of personal items from

the property. Cupit stated that, following

the parties’ property visit, she informed Haley in a telephone call that Fred

Kettrick was “very upset” and that the survey lines were not correct. Cupit also stated that she would not have

entered into a settlement agreement that lacked a right of first refusal.

Viewing the evidence in a light most

favorable to the verdict, we conclude that the record contains sufficient evidence

that would have permitted the trial court to conclude that Haley had actual

authority to execute the Rule 11 Agreement on behalf of his clients and, thus,

that the agreement was enforceable on this basis. In regard to the critical disputed terms,

i.e., the property exchange provisions, Haley testified that Fred Kettrick

agreed to these terms, he was “convinced” his clients had agreed to the terms,

and he was never instructed that the terms had changed. Coles similarly testified that the parties

had all agreed to the property exchange provisions. Kettrick’s testimony also indicates that, at

the conclusion of the property visit, he knew that both Haley and Coles

believed that the dispute had been settled.

In regard to the survey fees and the

removal of personal items from the property, Haley testified that the parties

had engaged in “some discussion on the fees” and the parties had already

reached a deal on the removal of personal items from the property. Coles similarly testified that the parties

had already agreed to divide the personal items, and her testimony supports a

finding that the provision concerning the removal of personal items from the

property was simply a reflection of this prior agreement. Moreover, although Kettrick and Cupit

presented some conflicting testimony, the trial court could have also noted

that there were inconsistencies in Kettrick’s and Cupit’s testimony regarding

the scope of the settlement discussions while at the property as well as the

matters discussed in Cupit’s subsequent telephone conversation with Haley. The trial court also could have inferred from

Kettrick’s testimony about his instructions for Cupit to call Haley that the

parties had, in fact, already reached an agreement.

In sum, we conclude that there is

more than a scintilla of evidence to show that Kettrick conferred actual

authority upon Haley to settle the dispute and execute the Rule 11 Agreement

or, alternatively, that Kettrick allowed Haley to believe that actual authority

had been conferred. [8] See City of Roanoke , 111 S.W.3d at 629 ; see also Cadle Co. v. Morgan , No.

01-03-01020-CV, 2005 WL 856901 , at *4 (Tex. App.—Houston [1st Dist.] Apr. 14,

2005, no pet.) (mem. op.) (holding that there was sufficient evidence to

support trial court’s finding that attorney possessed actual authority to

settle case). We further conclude that

the evidence is not so weak as to make the trial court’s findings clearly wrong

and manifestly unjust. Accordingly, we hold that the evidence is legally and

factually sufficient to support the trial court’s findings regarding Haley’s

actual authority to settle the dispute by executing the Rule 11 Agreement. We further hold that the evidence is legally

sufficient to support the trial court’s conclusion that Haley had actual

authority to execute the Rule 11 Agreement and the trial court did not err in

enforcing the Rule 11 Agreement.

We overrule the Kettricks’ first

issue. [9]

Conclusion

We

affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Bland,

and Massengale.

[1] See Tex. R. Civ. P. 11 (“Unless otherwise

provided in these rules, no agreement between attorneys or parties touching any

suit pending will be enforced unless it is 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.”) .

[2] Rhonda Cupit is Fred Kettrick’s

daughter.

[3] Rhonda and Greg Cupit and Evelyn Tate,

who were defendants in the underlying suit, have not appealed the trial court’s

judgment. It is undisputed that Tate

held only a mineral interest in the property.

[4] Although a court may not render an

agreed judgment absent consent of the parties at the time the judgment is

rendered, the court may nevertheless enforce a settlement agreement that complies with rule 11 as a contract, even

after one party has withdrawn its consent.

City of Roanoke v. Town of

Westlake , 111 S.W.3d 617, 626 (Tex. App.—Fort Worth 2003, pet. denied).

[5] The trial court limited the bench

trial to this claim p ursuant to a

motion to bifurcate filed by the Kettricks, and it stated that it would conduct

a trial on the partition matter, if necessary.

[6] In its findings and conclusions, the

trial court generally referred to the “Defendants,” but it identified the

Kettricks, the Cupits, and Tate all as defendants at various points. It also noted that Greg Cupit, Judy Kettrick,

and Floyd Tate “were joined to this cause to the extent that they may have a

homestead interest in their respective spouses’ undivided interest” in the

property.

[7] In

contrast, apparent authority exists when conduct by a principal leads a reasonable

third party to believe that an agent has the authority that he purports to exercise. Ebner

v. First State Bank of Smithville , 27 S.W.3d 287, 300 (Tex. App.—Austin

2000, pet. denied). Apparent authority

may also arise when the principal shows such a lack of ordinary care as to

clothe the agent with an indicia of authority.

Id .

[8] The Kettricks make a number of

arguments concerning whether third parties, who are not parties to this appeal,

actually authorized Haley to execute the Rule 11 Agreement on their

behalf. Because those parties have not

appealed the judgment as it relates to them, we do not consider these

arguments. To the extent that Fred

Kettrick argues that Haley was not authorized by his wife to enter the Rule 11

Agreement, Haley’s evidence supports a finding that he was actually authorized

by all of his clients, including the Kettricks, to enter into the Rule 11

Agreement.

[9] Having held that the trial court did

not err in enforcing the Rule 11 Agreement on the basis of actual authority, we

need not consider the Kettricks’ second issue, in which they challenge the

trial court’s findings and conclusions pertaining to Haley’s apparent

authority.