Hien Khac Vu v. Vicky Mong Nguyen and Tammy Mong Nguyen ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-422-CV
HIEN KHAC VU APPELLANT
V.
VICKY MONG NGUYEN AND APPELLEES
TAMMY MONG NGUYEN
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FROM THE 325th DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two issues, Appellant Hien Khac Vu (“Vu”) asserts error on the part of
the trial court in entering an Agreed Final Decree of Divorce based on a Rule 11
agreement to which Vu allegedly did not consent, and in denying Vu’s Motion
for New Trial, again based on the Rule 11 agreement to which he did not
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… See T EX. R. A PP. P. 47.4.
consent. Vicki Nguyen and Tammy Nguyen have not filed a response in this
appeal.
II. Factual and Procedural Background
It is appropriate in this case to create a time line of events, which is as
follows:
February 22, 2005 W ife V icki N guyen files for divorce,
represented by Joseph Bui.
April 11, 2005 Husband H ie n Khac Vu answ ers,
represented by Philip Nguyen.
February 8, 2006 Intervenor and sister of wife Tam m y
Nguyen files intervention, represented by
Joseph Bui.
July 19, 2006 Rule 11 Settlement Agreement signed by
Joseph Bui and Philip Nguyen, and faxed
filed with the Court.
July 20 or 21, 2006 According to Bui, he informs the Court’s
bailiff that the case is settled—apparently
Judge is not informed.
July 26, 2006 Case dismissed for want of prosecution.
July 31, 2006 Vu instructs Philip Nguyen to stop work on
his case and send the file to his new
attorney, Tammy Tran.
July 31, 2006 Tammy Tran instructs Philip Nguyen to
stop all activity in the case, as she is Vu’s
new counsel.
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August 1, 2006 Tammy Tran notified Joseph Bui of change
of counsel.
August 1, 2006 Joseph Bui filed Motion to Enter Final
Decree of Divorce.
August 1, 2006 Petitioner and Intervenor’s M otion to
Reinstate filed by Joseph Bui, served by
fax on Philip Nguyen.2
August 3, 2006 New divorce petition filed for Vu by Tran.
August 4, 2006 Joseph Bui notified Philip Nguyen of
August 24, 2006 hearing on Motion to
Reinstate and Enter Final Decree of
Divorce.
August 24, 2006 Order Granting Motion to Reinstate signed.
Agreed Final Decree of Divorce signed and
approved by Vicki Nguyen and Tammy
Nguyen. Approved as to form by Joseph
Bui and Philip Nguyen.3
September 23, 2006 Opposed Motion for New Trial filed by
Tammy Tran and Robert Clark, attorneys
for Vu.
November 17, 2006 Notice of Appeal filed.
November 30, 2006 Motion for New Trial denied.
2
… The exact sequence of the three August 1, 2006 communications and
filings is unclear.
3
… It appears that this signature was sent and received by fax on July 24,
2006.
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According to the affidavit of Vu filed in connection with his Opposed
Motion for New Trial, he never agreed with the Agreed Final Decree of Divorce
faxed to him on July 24, 2006 by his previous attorney, Philip Nguyen. He
informed Nguyen that he did not agree and refused to sign the Rule 11
agreement in connection therewith, and this was the reason that he stopped
Philip Nguyen from taking any further action in the case and hired Tammy Tran.
According to the same motion, Ms. Tran did not substitute into the case as
Vu’s attorney because when she contacted the court following her
communication with Vu, she learned that the case had been dismissed a few
days before and that no Motion to Reinstate had been filed, which is also why
the new petition for divorce was filed by her on Vu’s behalf on August 3, 2006.
III. Analysis
In both of his issues, Vu complains that the trial court’s error was based
on his lack of consent to the provisions of the Rule 11 agreement which was
the basis for entering the agreed final decree of divorce and the denial of his
motion for new trial.
An out-of-court Rule 11 agreement may be between the attorneys or
parties, must be in writing, signed, and filed with the court as part of the record
of the court. T EX. R. C IV. P. 11. Such a rule has existed since 1840, with the
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filing requirement being in existence since 1877. See Kennedy v. Hyde, 682
S.W.2d 525, 526 (Tex. 1984).
As we said in Kennedy, “Rule 11 is a minimum requirement for
enforcement of all agreements concerning pending suits.” The rule
provides, with certain exceptions not relevant here, 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, or unless it be made in open court and
entered of record.” T EX. R. C IV. P. 11. The rule has long been a
part of Texas jurisprudence. One hundred and fifty years ago, we
recognized the wisdom of eschewing the verbal agreements of
counsel in favor of written ones, noting that the vicissitudes of
memory would otherwise “beget misunderstandings and
controversies.” The rule continues to be an effective tool for
finalizing settlements by objective manifestation so that the
agreements “do not themselves become sources of controversy.”
In short, settlement agreements “must comply with Rule 11 to be
enforceable.”
Knapp Med. Ctr. v. De La Garza, 238 S.W.3d 767, 768 (Tex. 2007) (citations
omitted). The purpose of a Rule 11 agreement is to avoid disputes over the
terms of oral settlement agreement. Padilla v. LaFrance, 907 S.W.2d 454, 461
(Tex. 1995). If consent to settle is withdrawn by a party, the filing, to be
effective, does not have to occur before consent is withdrawn, but only before
it is sought to be enforced. Id. Such an agreement can be signed by either the
party or the party’s attorney. Ebner v. First State Bank of Smithville, 27
S.W.3d 287, 297 (Tex. App.—Austin 2000, pet. denied).
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It appears in this case that these signing and filing requirements were met
with the Rule 11 agreement in question. However, evidence was adduced at
the Opposed Motion for New Trial hearing that consent had been withdrawn
prior to judgment and that Vu’s attorney was so informed. When consent is
withdrawn, a court cannot enter a valid agreed judgment, but is not precluded,
after notice and hearing from enforcing a Rule 11 agreement even though one
side does not consent to the agreement. Id. Examples of these include
Quintero v. Jim Walters Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983);
Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex. 1951). Both cases involve
the reversal of an agreed judgment entered by the trial court accompanied by
the observation that the reversal was without prejudice to the rights of the
reversed party to plead and prove an enforceable settlement agreement, and as
noted in the Burnaman case, the right of a client to prove that his attorney did
not have the authority to enter into such an agreement. Jim Walters Homes,
652 S.W.2d at 444; Burnaman, 240 S.W.2d at 291.
We hold that the trial court abused its discretion in failing to grant the
opposed motion for new trial when confronted with uncontradicted evidence
that Vu had withdraw his consent, if indeed such consent existed, prior to the
entry of the agreed judgment.
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IV. Conclusion
Having sustained Vu’s second issue, the judgment of the trial court is
reversed and remanded for further proceedings consistent with this opinion.
BOB MCCOY
JUSTICE
PANEL B: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: April 24, 2008
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