Veronica Nancarrow v. Wade W. Whitmer, M.D.

IN THE
TENTH COURT OF APPEALS
No. 10-13-00369-CV
VERONICA NANCARROW,
Appellant
v.
WADE W. WHITMER, M.D.,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 11-003427-CV-361
OPINION
The events and the summary-judgment evidence relevant to this appeal are set
forth in the following timeline:
 December 20, 2011: Appellant Veronica Nancarrow sued Appellee Wade
W. Whitmer, M.D., alleging medical negligence during her shoulder
surgery.
 June 28, 2013: Nancarrow’s counsel had a telephone conversation with
Dr. Whitmer’s counsel, during which Dr. Whitmer’s counsel informed
Nancarrow’s counsel for the first time that, in addition to Dr. Whitmer, he
would be designating J.P. Bramhall, M.D., as a testifying expert. Dr.
Whitmer’s counsel also allegedly said that he had tried to find another
orthopedic expert but had been unable to locate an expert who was
willing to give testimony in support of Dr. Whitmer’s treatment of
Nancarrow.
 July 1, 2013: Nancarrow sent a settlement demand to Dr. Whitmer’s
counsel, offering to settle the case for a cash payment of $200,000, the
limits provided by Dr. Whitmer’s primary policy.
 July 3, 2013: Dr. Whitmer served Nancarrow with his responses to
Nancarrow’s requests for disclosure. As had been indicated in the June 28
telephone conversation, Dr. Whitmer designated Dr. Bramhall as a
testifying expert. Dr. Whitmer also included the following statements
regarding the substance of Dr. Bramhall’s opinions and his anticipated
testimony:
It is Dr. Bramhall’s professional opinion that Dr. Whitmer’s
evaluation, care and treatment of patient Veronica
Nancarrow met all applicable standards of care for a board
certified orthopedic surgeon practicing in College Station,
Texas, and that no action of [sic] omission of Dr. Whitmer
was a proximate cause of Plaintiff’s alleged damages herein.
Dr. Bramhall will testify Plaintiff suffered a severe injury to
her shoulder in the fall of 10/13/2009 which, in the absence
of any action or omission of Defendant, was a proximate
cause of Plaintiff’s ultimate injuries and/or damages
herein…. Dr. Bramhall will testify there were other
procedures possible for Plaintiff to undergo rather than a
reverse shoulder procedure, and that such procedure has left
her with few future options. Dr. Bramhall will testify there
is insufficient data to suggest Plaintiff will need to undergo a
future revision surgery or other future surgery as a result of
her injuries.
 July 18, 2013: Nancarrow’s counsel received a telephone call from Dr.
Whitmer’s counsel, informing him that Dr. Whitmer was willing to pay
the policy limits of $200,000 to settle the case.
 July 23, 2013: The settlement of the claim for $200,000 was memorialized
in a Rule 11 agreement.
 July 30, 2013: Nancarrow and her counsel learned that Dr. Whitmer’s
expert disclosure was allegedly false because Dr. Bramhall had actually
Nancarrow v. Whitmer Page 2
refused to testify on Dr. Whitmer’s behalf. Dr. Bramhall had never
expressed the opinions attributed to him in Dr. Whitmer’s expert
disclosure and would not testify to them if called as a witness.
 August 1, 2013: Dr. Whitmer filed a motion to enforce the settlement
agreement and a counterclaim asserting breach of contract. Nancarrow in
turn filed a motion for sanctions against Dr. Whitmer, arguing that he
perpetrated a fraud upon the court.
 August 2, 2013: Nancarrow filed a motion to rescind the Rule 11
agreement based on Dr. Whitmer’s alleged fraud.
 August 5, 2013: Nancarrow filed an amended motion for sanctions
against Dr. Whitmer.
 August 6, 2013: The trial court held a hearing on Nancarrow’s and Dr.
Whitmer’s competing motions.
 September 23, 2013: The trial court signed an order granting Dr.
Whitmer’s motion to enforce the settlement agreement. The order stated
that “the Rule 11 agreement dated July 23, 2013 signed by both counsel,
and filed with the records of the court, is a valid and binding contract for
settlement which was not obtained through fraud or other material
misrepresentation by Defendant or his counsel.”
 October 14, 2013: Nancarrow filed a notice of appeal asserting that she
was appealing the trial court’s order granting Dr. Whitmer’s motion to
enforce the settlement agreement. It was docketed in the above appellate
cause number.
 October 17, 2013: Dr. Whitmer filed a traditional motion for summary
judgment, supported by summary-judgment evidence, on his breach-of-
contract counterclaim. He claimed that he was entitled to summary
judgment because the trial court
has already concluded that the parties’ Rule 11 Agreement is
a valid and enforceable settlement agreement, and the
evidence conclusively establishes that despite Dr. Whitmer’s
continued ability, willingness, and efforts to tender the
agreed-upon settlement funds in compliance with that Rule
11 Agreement, [Nancarrow] nevertheless refuses to execute a
release of her claims against Dr. Whitmer and/or accept the
agreed-upon funds as settlement of this lawsuit.
Nancarrow v. Whitmer Page 3
 November 4, 2013: Nancarrow filed her response to Dr. Whitmer’s
motion for summary judgment, arguing that the Rule 11 agreement was
fraudulently induced and thus void. The response was supported by the
following summary-judgment evidence: (1) Dr. Whitmer’s responses to
Nancarrow’s requests for disclosure, (2) Dr. Bramhall’s curriculum vitae,
(3) Nancarrow’s counsel’s affidavit, (4) Nancarrow’s affidavit, (5) Dr.
Bramhall’s affidavit, and (6) the Rule 11 agreement.
 November 11, 2013: Dr. Whitmer filed his reply in support of his motion
for summary judgment, arguing in part that Nancarrow had failed to
plead the affirmative defense of fraudulent inducement.
 November 13, 2013: Nancarrow filed her original answer to Dr.
Whitmer’s breach-of-contract counterclaim and asserted her defense that
the agreement was the product of fraudulent inducement.
 January 7, 2014: The trial court signed a final summary judgment
granting Dr. Whitmer’s motion for summary judgment.
Nancarrow then filed a notice of appeal of the trial court’s January 7 final
summary judgment. The appeal was docketed as appellate cause number 10-14-00045-
CV, but we dismissed the appeal docketed under No. 10-14-00045-CV as moot.
Nancarrow v. Whitmer, No. 10-14-00045-CV, 2014 WL 2159552, at *1 (Tex. App.—Waco
May 22, 2014, no pet.) (mem. op.). We granted leave to file an amended notice of appeal
in this appeal and directed Nancarrow to file an amended brief in this appeal that
included any issues that were to be raised in No. 10-14-00045-CV. Id. at *1-2.
Nancarrow filed an amended notice of appeal in this appeal, appealing from the
January 7 final summary judgment, and then filed an amended appellant’s brief. In her
sole issue, Nancarrow contends that the trial court erred in entering its final summary
judgment because it was based on a Rule 11 agreement regarding settlement that was
fraudulently induced and thus vitiated. Dr. Whitmer filed an amended appellee’s brief.
Nancarrow v. Whitmer Page 4
We review the trial court’s ruling on a motion for summary judgment de novo.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To
be entitled to summary judgment, the movant must demonstrate that no genuine issue
of material fact exists and that he is entitled to judgment as a matter of law. See TEX. R.
CIV. P. 166a(c). A nonmovant wanting to assert an affirmative defense to the motion for
summary judgment must urge the defense in her response and present summary-
judgment evidence to create a fact issue on each element of the defense. Am. Petrofina,
Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Brownlee v. Brownlee, 665 S.W.2d 111, 112
(Tex. 1984); Bassett v. Am. Nat’l Bank, 145 S.W.3d 692, 696 (Tex. App.—Fort Worth 2004,
no pet.). Evidence favorable to the non-movant will be taken as true, and every
reasonable inference must be indulged in favor of the non-movant and any doubts
resolved in her favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).
As stated, Nancarrow contends that the trial court erred in entering its final
summary judgment because it was based on a Rule 11 agreement regarding settlement
that was fraudulently induced and thus vitiated. The issue in this appeal is therefore
whether Nancarrow provided enough summary-judgment evidence to create a fact
issue on each element of the affirmative defense of fraudulent inducement. See Am.
Petrofina, Inc., 887 S.W.2d at 830; Brownlee, 665 S.W.2d at 112; Bassett, 145 S.W.3d at 696.
A party asserting that it was fraudulently induced into entering an agreement must
show that (1) the other party made a material representation, (2) the representation was
false and was either known to be false when made or made without knowledge of its
truth, (3) the representation was intended to be and was relied upon by the injured
Nancarrow v. Whitmer Page 5
party, and (4) the injury complained of was caused by the reliance. See In re Int’l Profit
Assocs., Inc., 274 S.W.3d 672, 678 (Tex. 2009) (citing Am. Tobacco Co. v. Grinnell, 951
S.W.2d 420, 436 (Tex. 1997)). We will address each element in turn.
1. The other party made a material representation.
The representations that Nancarrow complains about are the statements
regarding the substance of Dr. Bramhall’s expert opinions and his anticipated testimony
contained in Dr. Whitmer’s responses to her requests for disclosure, as quoted above.
Nancarrow argues that these statements were material because, without Dr. Bramhall’s
testimony, Dr. Whitmer would have been left with only his own expert testimony to
defend against Nancarrow’s claims of medical negligence. Nancarrow points to her
counsel’s affidavit to support this argument. Nancarrow’s counsel stated in his
affidavit that Dr. Whitmer’s counsel revealed in their June 28th telephone conversation
that he had tried to find another orthopedic expert besides Dr. Bramhall but had been
unable to locate an expert who was willing to give testimony in support of Dr.
Whitmer’s treatment of Nancarrow.
Nancarrow further argues that the statements were material because they
induced her (and her counsel) to settle the case and give up her right to a jury trial. See
Brush v. Reata Oil & Gas Corp., 984 S.W.2d 720, 727 (Tex. App.—Waco 1998, pet. denied)
(“A misrepresentation is material if it induces a party to enter a contract.”). To support
this argument, Nancarrow again points to her counsel’s affidavit, in which he stated:
Over the course of this lawsuit, I had learned of Dr. Bramhall. I
understood him to be a very well respected and well known orthopedic
surgeon in the Bryan/College Station area. He had been an outstanding
Nancarrow v. Whitmer Page 6
student athlete at Texas A&M University and has been the Team
Physician and Orthopaedic Surgeon for the Texas A&M Department of
Athletics for over 20 years. Dr. Bramhall has also served as the Director of
Sports Medicine at Texas A&M University since 2001. Dr. Bramhall was
also one of Mrs. Nancarrow’s treating physicians as Dr. Whitmer had
consulted with him and asked him to assist in an operation performed on
Mrs. Nancarrow.
The designation of Dr. Bramhall was very concerning to me. As he had
long time ties as Team Physician for Texas A&M University, I felt that he
would be most persuasive with a jury picked from the Bryan/College
Station community. While I had designated an expert highly critical of
Dr. Whitmer’s treatment, our expert was from the Dallas area. I was very
worried that Dr. Bramhall would “carry the day” at trial due to his long
held local ties.
….
In essence, the opinions that Dr. Bramhall set forth in Dr. Whitmer’s
Expert Disclosure would completely exonerate Dr. Whitmer of all
wrongdoing. Dr. Whitmer’s Expert Disclosure also revealed that Dr.
Bramhall would also be used to attack the damage model we had
developed for Mrs. Nancarrow.
….
Thus, I was now faced with what I viewed as an unimpeachable expert
witness who would testify at trial that the Defendant had done nothing
wrong nor was he the proximate cause of any of Mrs. Nancarrow’s
injuries.
….
[B]ased upon the Expert Disclosure by Dr[.] Whitmer of Dr. Bramhall as a
testifying expert and Dr. Whitmer’s disclosure of the opinions that Dr.
Bramhall would be expressing at trial, I believed that Dr. Bramhall’s
testimony would be too damaging to her case to allow the jury to reach a
verdict in Mrs. Nancarrow’s favor. Based upon the Expert Disclosure by
Dr[.] Whitmer, I told Mrs. Nancarrow that I felt she should settle the case
for the amount offered by Dr. Whitmer’s insurance carrier to avoid a loss
at trial. Due to Dr. Whitmer’s Expert Disclosure, Mrs. Nancarrow most
reluctantly gave me her permission to settle the case and take the steps
necessary to bring the case to conclusion. On July 23, at my request my
Nancarrow v. Whitmer Page 7
partner signed a Rule 11 Agreement on behalf of Mrs. Nancarrow
agreeing to settle the case.
….
But for Dr. Whitmer’s Expert Disclosure, I would have never
recommended to Mrs. Nancarrow that she accept the settlement and the
Rule 11 Agreement agreeing to settle the case would never have been
signed. But for Dr. Whitmer’s Expert Disclosure, I would have
recommended to Mrs. Nancarrow that we proceed to trial for as revealed
by [Dr. Whitmer’s counsel], he was unable to find any other independent
expert willing to defend Dr. Whitmer. Thus, without the trial testimony of
Dr. Bramhall as indicated in Dr. Whitmer’s Expert Disclosure, the only
defense expert would have been Dr. Whitmer himself….a very strong
position for Mrs. Nancarrow.
Had I known the truth that Dr. Bramhall was not willing to testify for Dr.
Whitmer, there would have been no way that I would have recommended
settling the case. Indeed, I would have strongly recommended
proceeding to trial as I believe that, without the trial testimony of Dr.
Bramhall in support of Dr. Whitmer, Mrs. Nancarrow would easily
prevail at trial and receive a verdict far in excess of the $200,000.00 for
which we ultimately agreed to settle. But for the concerns of Dr. Bramhall
testifying on behalf of Dr. Whitmer and the specific exonerating opinions
of Dr. Bramhall, all as set forth in Dr. Whitmer’s Expert Disclosure, Mrs.
Nancarrow would have had her day in court. Instead, due to the false
statements contained in Dr. Whitmer’s Expert Disclosure, I felt I had no
choice but to recommend that Mrs. Nancarrow accept the settlement.
Similarly, Nancarrow stated in her own affidavit:
During the course of this case, [my counsel] explained that the insurance
carrier for Dr. Whitmer had offered to settle my case. I asked [my
counsel] his thoughts as to the likelihood of a verdict in my favor. [My
counsel] explained that Dr. Whitmer was going to call J.P. Bramhall, M.D.
as his expert at the time of trial. I know that Dr. Bramhall is held in very
high esteem in our community. I do so as well. Dr. Bramhall is a local
surgeon and in fact, is the team orthopedic surgeon for Texas A&M
University. He was himself an outstanding athlete while attending Texas
A&M.
[My counsel] expressed his concerns as to the persuasive effect that Dr.
Bramhall’s testimony would have on our local jury. [My counsel]
Nancarrow v. Whitmer Page 8
explained that Dr. Whitmer’s Expert Disclosure had identified specific
opinions to which Dr. Bramhall would testify that completely exonerated
Dr. Whitmer from any negligence or wrongdoing. Further, [my counsel]
explained that Dr. Whitmer’s Expert Disclosure had stated specific
opinions to which Dr. Bramhall would testify that refuted the damages I
believe I had sustained due to Dr. Whitmer’s acts and/or omissions.
Based upon the Expert Disclosure by Dr[.] Whitmer in which he stated
that Dr. Bramhall would be testifying on his behalf and further, that Dr.
Bramhall’s opinions that he would testify to completely exonerated Dr.
Whitmer, [my counsel] and I believed that Dr. Bramhall’s testimony
would be too damaging to my case to allow the jury to reach a verdict in
my favor. Based upon the Expert Disclosure by Dr[.] Whitmer, I agreed to
settle the case for the amount offered by Dr. Whitmer’s insurance carrier
and gave [my counsel] my authority to take the steps to settle the case.
….
But for Dr. Whitmer’s Expert Disclosure, I would have never accepted the
settlement and would have never given [my counsel] my authority to
settle and enter in to a Rule 11 Agreement. But for Dr. Whitmer’s Expert
Disclosure, I would have demanded that we proceed to trial. It was only
the fear of an adverse verdict created by the concerns of Dr. Bramhall
testifying on behalf of Dr. Whitmer and the specific exonerating opinions
of Dr. Bramhall, all as set forth in Dr. Whitmer’s Expert Disclosure, that
drove me to agree to settle the case.
Dr. Whitmer responds that Nancarrow’s own evidence demonstrates that the
alleged misrepresentations were not material. Dr. Whitmer argues that the alleged
misrepresentations could not have induced Nancarrow to settle the case because his
responses to Nancarrow’s requests for disclosure containing the alleged
misrepresentations were served two days after Nancarrow tendered her settlement
offer.
But to be enforceable, a settlement agreement must comply with Rule 11. Padilla
v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). In other words, Nancarrow and Dr.
Nancarrow v. Whitmer Page 9
Whitmer did not enter into an enforceable settlement agreement until the agreement
was either (1) in writing, signed by the parties or attorneys, and filed as part of the
record1 or (2) made orally in open court and entered as part of the record. See TEX. R.
CIV. P. 11; Neasbitt v. Warren, 105 S.W.3d 113, 116 (Tex. App.—Fort Worth 2003, no pet.).
The parties agree that this did not happen until they memorialized the settlement in the
Rule 11 agreement on July 23, 2013, twenty days after Dr. Whitmer’s responses to
Nancarrow’s requests for disclosure were served. The fact that Dr. Whitmer’s
responses to Nancarrow’s requests for disclosure containing the alleged
misrepresentations were served two days after Nancarrow tendered her settlement offer
does not conclusively establish that the representations were not material. While it is
some evidence that the representations were not material, the evidence in Nancarrow’s
and her counsel’s affidavits is some evidence that the representations were material.
We conclude that Nancarrow presented summary-judgment evidence to create a fact
issue on the element of whether Dr. Whitmer made a material representation.
2. The representation was false and was either known to be false when
made or made without knowledge of its truth.
Nancarrow points to Dr. Bramhall’s affidavit to support the argument that the
statements regarding the substance of his opinions and his anticipated testimony are
false and were either known to be false when made or made without knowledge of their
truth. Dr. Bramhall’s affidavit, which was signed less than one month after Dr.
Whitmer’s responses to Nancarrow’s requests for disclosure were served, states:
1 Rule 11 does not require the writing to be filed before consent is withdrawn by one of the parties; rather,
it merely requires that the agreement be filed before it is sought to be enforced. Padilla, 907 S.W.2d at 461.
Nancarrow v. Whitmer Page 10
Several months ago, I was contacted by Dr. Whitmer’s attorney …. In that
conversation, [Dr. Whitmer’s counsel] asked if I would serve as an expert
witness on behalf of Dr. Whitmer. In response to [Dr. Whitmer’s
counsel’s] inquiry, I stated that I was unwilling to serve as Dr. Whitmer’s
expert witness. I advised [Dr. Whitmer’s counsel] that I would be unable
to help with Dr. Whitmer’s defense and advised him further that he
should not compel my testimony via subpoena as I would likely prejudice
that defense.
I have since learned that [Dr. Whitmer’s counsel] has designated me as an
expert witness on behalf of Dr. Whitmer. In that expert designation,
certain opinions are attributed to me. In particular, I understand that the
following are stated to be my opinions:
“It is Dr. Bramhall’s professional opinion that Dr. Whitmer’s
evaluation, care and treatment of patient Veronica
Nancarrow met all applicable standards of care for a board
certified orthopedic surgeon practicing in College Station,
Texas, and that no action or omission of Dr. Whitmer’s was a
proximate cause of Plaintiff’s alleged damages herein. Dr.
Bramhall will testify Plaintiff suffered a severe injury to her
shoulder in the fall of 10/13/2009 which, in the absence of
any action or omission of Defendant, was a proximate cause
of Plaintiff’s ultimate injuries and/or damages herein.
Dr. Bramhall will testify there were other procedures
possible for Plaintiff to undergo rather than a reverse
shoulder procedure, and that such procedure has left her
with few future options. Dr. Bramhall will testify there is
insufficient data to suggest Plaintiff will need to undergo a
future revision surgery or other future surgery as a result of
her injuries.”
I was unaware that I would be designated as an Expert Witness for the
defense in this matter and was not advised by the defense that I had been
so designated. At no time did I ever express these opinions to [Dr.
Whitmer’s counsel] or Dr. Whitmer nor would I testify as stated in the
expert designation.
Additionally, Dr. Whitmer’s counsel signed the responses to Nancarrow’s
requests for disclosure, and Rule of Civil Procedure 191.3(b) states: “The signature of
Nancarrow v. Whitmer Page 11
an attorney or party on a disclosure constitutes a certification that to the best of the
signer’s knowledge, information, and belief, formed after a reasonable inquiry, the
disclosure is complete and correct as of the time it is made.” TEX. R. CIV. P. 191.3(b)
(emphasis added). Dr. Whitmer’s counsel’s signature on the disclosure responses was
therefore also some evidence that the responses to Nancarrow’s requests for disclosure
were either known to be false when made or made without knowledge of their truth.
Dr. Whitmer responds that the complained-of representations were predictions
about Dr. Bramhall’s anticipated future testimony and, therefore, not actionable as
fraud. We disagree. First, the statement “[i]t is Dr. Bramhall’s professional opinion that
…” (emphasis added) is not a prediction about Dr. Bramhall’s anticipated future
testimony. It is a statement of fact of what Dr. Bramhall’s current opinion is. Second,
predictions about the future that are made with present knowledge that the statements
are false are actionable misrepresentations. See Bryant v. Transcontinental Gas Pipe Line
Corp., 821 S.W.2d 187, 190 (Tex. App.—Houston [14th Dist.] 1991, writ denied); Tex.
Indus. Trust, Inc. v. Lusk, 312 S.W.2d 324, 326-27 (Tex. Civ. App.—San Antonio 1958, writ
ref’d); see also Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983). As stated above, Dr.
Bramhall averred in his affidavit,
In response to [Dr. Whitmer’s counsel’s] inquiry, I stated that I was
unwilling to serve as Dr. Whitmer’s expert witness. I advised [Dr.
Whitmer’s counsel] that I would be unable to help with Dr. Whitmer’s
defense and advised him further that he should not compel my testimony
via subpoena as I would likely prejudice that defense.
Dr. Bramhall’s affidavit further indicates that he advised Dr. Whitmer’s counsel of this
before Dr. Whitmer served his responses containing the representations. Therefore,
Nancarrow v. Whitmer Page 12
even if the statements about what Dr. Bramhall would testify are predictions about his
anticipated future testimony, Dr. Bramhall’s affidavit raises a fact issue as to whether
the statements were made with present knowledge that the statements were false.
In light of the foregoing, we conclude that Nancarrow presented summary-
judgment evidence to create a fact issue on the element of whether the representations
were false and were either known to be false when made or made without knowledge
of their truth.
3. The representation was intended to be and was relied upon by the
injured party.
We begin our discussion of this element by addressing whether Nancarrow
presented summary-judgment evidence to create a fact issue about whether Dr.
Whitmer intended the representations to be relied upon by her. Nancarrow argues that
because Dr. Whitmer’s counsel had been unable to find a retained expert willing to
testify on Dr. Whitmer’s behalf, he included the misrepresentations in the responses to
“scare Nancarrow’s counsel and Nancarrow that they would face an unimpeachable
defense expert who would likely be revered by the jury.” Dr. Whitmer first claims that
Nancarrow failed to present any evidence to support this argument. But Nancarrow
does refer to her counsel’s affidavit in which he stated that Dr. Whitmer’s counsel
revealed in their June 28th telephone conversation that he had tried to find another
orthopedic expert besides Dr. Bramhall but had been unable to locate an expert who
was willing to give testimony in support of Dr. Whitmer’s treatment of Nancarrow.
Dr. Whitmer also argues that the evidence demonstrates that he did not serve his
Nancarrow v. Whitmer Page 13
disclosures with the intent to induce a settlement agreement because Nancarrow had
already made the settlement offer two days before he served the disclosures. But, for the
same reasons discussed above with regard to the materiality of the representations, the
fact that Dr. Whitmer’s responses were served two days after Nancarrow tendered her
settlement offer does not conclusively establish that the representations were not
intended to be relied upon by Nancarrow. While the fact that Dr. Whitmer’s responses
were served two days after Nancarrow tendered her settlement offer may be some
evidence that the representations in the responses were not intended to be relied upon
by Nancarrow, the issue here is whether Nancarrow provided summary-judgment
evidence to create a fact issue about whether Dr. Whitmer did intend the representations
in the responses to be relied upon by her.
Finally, Dr. Whitmer contends that Nancarrow could not have created a fact
issue on this element because he served his expert disclosures to comply with Rules of
Civil Procedure 194.2(f) and 193.6(a), the purpose of which is not to induce a settlement.
See TEX. R. CIV. P. 193.6(a), 194.2(f). Rule 194.2(f) states that a party may request
disclosure of a testifying expert’s identity, the subject matter on which the expert will
testify, a summary of the expert’s mental impressions and opinions, and, if the expert is
retained by the responding party, the data that the expert reviewed in anticipation of
his testimony. TEX. R. CIV. P. 194.2(f). As stated by Dr. Whitmer in his brief, the specific
purpose of this pretrial disclosure rule is “to give the opposing party sufficient
information about the expert’s opinions to prepare to cross-examine the expert and to
prepare expert rebuttal evidence.” Bexar County Appraisal Dist. v. Abdo, 399 S.W.3d 248,
Nancarrow v. Whitmer Page 14
256 (Tex. App.—San Antonio 2012, no pet.) (quoting Miller v. Kennedy & Minshew, P.C.,
142 S.W.3d 325, 348 (Tex. App.—Fort Worth 2003, pet. denied)). Accordingly, Rule
193.6(a) provides that a party who fails to timely provide this information once it has
been requested may not offer the expert’s testimony unless the trial court finds that
there was good cause for the failure to timely provide the information or that the failure
to provide the discovery will not unfairly surprise or prejudice the other party. TEX. R.
CIV. P. 193.6(a).
The broader purpose of discovery, however, is to “seek the truth, so that disputes
may be decided by what the facts reveal, not by what facts are concealed.” In re Colonial
Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (quoting Jampole v. Touchy, 673 S.W.2d 569,
573 (Tex. 1984), disapproved of on other grounds by Walker v. Packer, 827 S.W.2d 833 (Tex.
1992)). And by encouraging full discovery of issues and facts before trial, parties are
able to assess their respective positions, thereby facilitating settlements of disputes. Best
Indus. Unif. Supply Co. v. Gulf Coast Alloy Welding, Inc., 41 S.W.3d 145, 157 (Tex. App.—
Amarillo 2000, pet. denied) (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396
(Tex. 1989)). Therefore, the fact that Dr. Whitmer served his expert disclosure to
comply with Rules 194.2(f) and 193.6(a) does not conclusively establish that the
representations were not intended to be relied upon by Nancarrow. Instead, we
conclude that Nancarrow’s evidence of Dr. Whitmer’s counsel’s statement in the June
28th telephone conversation that, besides Dr. Bramhall, he had been unable to locate an
expert who was willing to give testimony in support of Dr. Whitmer’s treatment of
Nancarrow, followed by Nancarrow’s settlement demand on July 1st, followed by the
Nancarrow v. Whitmer Page 15
inclusion of the statements in Dr. Whitmer’s responses to Nancarrow’s requests for
disclosure on July 3rd, followed by Dr. Whitmer’s prompt acceptance of Nancarrow’s
settlement demand on July 18th is sufficient circumstantial evidence to create a fact
issue about whether Dr. Whitmer intended the representations in the responses to be
relied upon by Nancarrow.
We next turn to whether Nancarrow presented summary-judgment evidence to
create a fact issue about whether she actually relied upon the representations.
Nancarrow’s argument that she relied upon the representations to settle the case and to
give up her right to a jury trial, along with the evidence supporting her reliance
argument in both her counsel’s and her own affidavits, were discussed above as part of
her argument that the representations were material. We conclude that Nancarrow
presented summary-judgment evidence to create a fact issue about whether she actually
relied upon the representations.
Dr. Whitmer’s response is that any reliance by Nancarrow was not justified. Dr.
Whitmer argues that the representations occurred in arguably the most adverse context
possible, that Nancarrow and her counsel had been aware of Dr. Bramhall for some
time, and that if “Dr. Bramhall’s opinions were destined to be such a persuasive force in
a jury trial and [Nancarrow’s] decision to settle,” she should have therefore exercised
“ordinary care for the protection of her own interests [and] certainly have spoken with
Dr. Bramhall prior to making a settlement offer and/or prior to memorializing her own
proposed settlement agreement.” But failure to use due diligence to suspect or discover
someone’s fraud will not act to bar the defense of fraud to the contract. Koral Indus. v.
Nancarrow v. Whitmer Page 16
Sec.-Conn. Life Ins. Co., 802 S.W.2d 650, 651 (Tex. 1990). As stated above, Dr. Whitmer’s
counsel signed the responses to Nancarrow’s requests for disclosure, and Rule 191.3(b)
states: “The signature of an attorney or party on a disclosure constitutes a certification
that to the best of the signer’s knowledge, information, and belief, formed after a
reasonable inquiry, the disclosure is complete and correct as of the time it is made.”
TEX. R. CIV. P. 191.3(b).
4. The injury complained of was caused by the reliance.
Nancarrow contends that she was injured by her reliance because she would not
have settled her case for the $200,000 policy limits had she known that the only true
defense expert was to be Dr. Whitmer himself. Nancarrow argues that instead of
agreeing to settle her case for $200,000 and foregoing her right to a trial, she would have
proceeded to trial and, in all likelihood, obtained a verdict in her favor in excess of
$200,000. Nancarrow points to her counsel’s and her affidavits to support this
argument. Nancarrow’s counsel stated in his affidavit:
On or about July 18, I received a telephone call from [Dr. Whitmer’s
counsel] who informed me that Dr. Whitmer was willing to pay the policy
limits of $200,000.00 to settle the case. Mrs. Nancarrow asked my opinion
as to what she should do. Due to the extensive injuries caused by Dr.
Whitmer, Mrs. Nancarrow had large past and future medical expenses. In
addition, due to her impairment, ongoing pain, and disfigurement, her
non-economic damages caused by Dr. Whitmer were far in excess of the
cap of $250,000.00 placed on such damages by Tort Reform. Mrs.
Nancarrow had a verdict potential far in excess of Dr. Whitmer’s policy
limits of $200,000.00.
However, based upon the Expert Disclosure by Dr[.] Whitmer of Dr.
Bramhall as a testifying expert and Dr. Whitmer’s disclosure of the
opinions that Dr. Bramhall would be expressing at trial, I believed that Dr.
Bramhall’s testimony would be too damaging to her case to allow the jury
Nancarrow v. Whitmer Page 17
to reach a verdict in Mrs. Nancarrow’s favor. Based upon the Expert
Disclosure by Dr[.] Whitmer, I told Mrs. Nancarrow that I felt she should
settle the case for the amount offered by Dr. Whitmer’s insurance carrier
to avoid a loss at trial. Due to Dr. Whitmer’s Expert Disclosure, Mrs.
Nancarrow most reluctantly gave me her permission to settle the case and
take the steps necessary to bring the case to conclusion. On July 23, at my
request my partner signed a Rule 11 Agreement on behalf of Mrs.
Nancarrow agreeing to settle the case.
….
But for Dr. Whitmer’s Expert Disclosure, I would have never
recommended to Mrs. Nancarrow that she accept the settlement and the
Rule 11 Agreement agreeing to settle the case would never have been
signed. But for Dr. Whitmer’s Expert Disclosure, I would have
recommended to Mrs. Nancarrow that we proceed to trial for as revealed
by [Dr. Whitmer’s counsel], he was unable to find any other independent
expert willing to defend Dr. Whitmer. Thus, without the trial testimony of
Dr. Bramhall as indicated in Dr. Whitmer’s Expert Disclosure, the only
defense expert would have been Dr. Whitmer himself….a very strong
position for Mrs. Nancarrow.
Had I known the truth that Dr. Bramhall was not willing to testify for Dr.
Whitmer, there would have been no way that I would have recommended
settling the case. Indeed, I would have strongly recommended
proceeding to trial as I believe that, without the trial testimony of Dr.
Bramhall in support of Dr. Whitmer, Mrs. Nancarrow would easily
prevail at trial and receive a verdict far in excess of the $200,000.00 for
which we ultimately agreed to settle. But for the concerns of Dr. Bramhall
testifying on behalf of Dr. Whitmer and the specific exonerating opinions
of Dr. Bramhall, all as set forth in Dr. Whitmer’s Expert Disclosure, Mrs.
Nancarrow would have had her day in court. Instead, due to the false
statements contained in Dr. Whitmer’s Expert Disclosure, I felt I had no
choice but to recommend that Mrs. Nancarrow accept the settlement.
Similarly, Nancarrow stated in her own affidavit:
Based upon the Expert Disclosure by Dr[.] Whitmer in which he stated
that Dr. Bramhall would be testifying on his behalf and further, that Dr.
Bramhall’s opinions that he would testify to completely exonerated Dr.
Whitmer, [my counsel] and I believed that Dr. Bramhall’s testimony
would be too damaging to my case to allow the jury to reach a verdict in
my favor. Based upon the Expert Disclosure by Dr[.] Whitmer, I agreed to
Nancarrow v. Whitmer Page 18
settle the case for the amount offered by Dr. Whitmer’s insurance carrier
and gave [my counsel] my authority to take the steps to settle the case.
….
But for Dr. Whitmer’s Expert Disclosure, I would have never accepted the
settlement and would have never given [my counsel] my authority to
settle and enter in to a Rule 11 Agreement. But for Dr. Whitmer’s Expert
Disclosure, I would have demanded that we proceed to trial. It was only
the fear of an adverse verdict created by the concerns of Dr. Bramhall
testifying on behalf of Dr. Whitmer and the specific exonerating opinions
of Dr. Bramhall, all as set forth in Dr. Whitmer’s Expert Disclosure, that
drove me to agree to settle the case.
Dr. Whitmer responds that Nancarrow failed to present any competent evidence
that the alleged misrepresentations caused her injury. Dr. Whitmer claims that the
assertions in Nancarrow’s counsel’s affidavit that Nancarrow’s injuries exceeded
$200,000 are conclusory. Dr. Whitmer argues in his brief:
[Nancarrow] and her counsel … did not present any evidence—such as
paid/incurred medical bills or testimony—to support the unidentified
economic and non-economic damages that [Nancarrow]’s counsel
speculates [Nancarrow] could have recovered if the case had proceeded to
trial. In particular, even though [Nancarrow] filed an affidavit, her
affidavit did not contain even a single sentence addressing her alleged
economic and non-economic damages.
But the agreement that Nancarrow was allegedly fraudulently induced into
entering is a settlement agreement. And, in entering the settlement agreement,
Nancarrow gave up not only her right to a jury trial but also her right to a jury trial in
which she might have been awarded more than $200,000. Nancarrow states in her
affidavit, “But for Dr. Whitmer’s Expert Disclosure, I would have demanded that we
proceed to trial.” We therefore conclude that Nancarrow presented summary-judgment
evidence to create a fact issue that the injury she complained of was caused by the
Nancarrow v. Whitmer Page 19
reliance.
In conclusion, we hold that Nancarrow presented summary-judgment evidence
to create a fact issue on each element of the affirmative defense of fraudulent
inducement. We sustain Nancarrow’s sole issue, reverse the trial court’s final summary
judgment, and remand this cause to the trial court for further proceedings consistent
with this opinion.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed April 30, 2015
[CV06]
Nancarrow v. Whitmer Page 20