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

O P I N I O N

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. 
Nancarrow v. Whitmer Page 2

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 3

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-ofcontract 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 4

 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 5

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 summaryjudgment 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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 13

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 summaryjudgment 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 14

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 15

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 16

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 17

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 18

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 19

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 20

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]