### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00068- CV

Brenda Will iam s, Appellan t

v. Walgree n Co. and Warre n W. Gude, M.D., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-0 2-0 0336 8, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n this health car e liability case , Br enda Wil liams appea ls pro se from the trial court’s judgme nt in favor of appellee s Walgr een Co. and Warren W. Gude, M.D. After the parties enter ed into a mediated settlement ag ree ment, the claims aga inst Gude wer e nonsuited based upon a summary judgme nt ruling and court order in favor of Gude, and the trial court dismiss ed the claims ag ainst Walgr een Co. In three issues, Wil liams challeng es the mediated settlement ag ree ment and her attorney s’ conduct in repr esenting her. For the rea sons t h at fo l low, we aff irm the trial court’s judg ment.

BACK GR OUND

Wil liams, along with her husband Nathanie l Wooley and on behalf of their children, filed suit in 2002 in connec tion with m ed i ca l t reatment that Wooley rec eived conce rning apresc ription of Dilantin, an anti-seizure medication. Wil liams and Wooley contende d that Gude 1 presc ribed a dosag e of Dilantin that was ex cessive on its fac e and Walgr een Co. filled this presc ription in J uly 2000 causing Wooley to develop the condition “Dilantin tox icity .” Wooley was hospitaliz ed for

treatment a fe w day s after he beg an taking the pre scription of Dilantin. I n September 2005, the case was mediated, and the parties enter ed into a settlement ag ree ment. The mediated settlement ag ree ment, entitled “Memora ndum of Ag ree ment,” was filed with the trial court as a Rule 11 ag ree ment. See Tex. R. Civ. P. 11. I n the ag ree ment, “[e]ach party acknow ledg es that they have confe rre d with counsel reg arding the advisability of enter ing this ag ree ment prior to signing it” and that they “have rea d the settlement ag ree ment, understand it, ag ree to the terms stated in it, and believe that it is in their best interest.” The terms of the ag ree ment included that Walgr een Co

. would pay $75,000, and “Plaintiffs [would] execute a formalized settlement ag ree ment and dismiss all claims with prejudice ” ag ainst Walgr een Co. As to the claims ag ainst Gude, Tex as Medical L iability Trust ag ree d to pay on behalf of Gude “taxable court costs i n an am o unt not to exceed $5,000,” and “Plaintiffs ag ree [d] to enter a non-suit as to Def endant Gude” and a “settlement ag ree ment and full rele ase of claims with Defen d an t Dr. Gude.” To establish the taxable costs, “Plaintiffs ag ree [d] to provide documentation of all such t axable court costs” to Gude’ s counsel. Wil liams a nd Wooley , their counsel, and counsel for Walgr een Co. a nd Gude sig ned the mediated settlement ag ree ment.

Wil liams and Wooley named four other defe ndants in addition to Walgr een Co. and Gude 1 but nonsuited the other def endants prior

to the mediation. 2The parties proce eded acc ording to the terms of the settlement ag ree ment. Walgr een

Co. pa id $75,000, and Will iams and Wooley executed a f

ormal conf

idential settlement ag ree ment and release of t heir claims ag ainst Walgr een Co. in Novemb er 2 0 0 5. I n Dec ember 2005, counsel for Wil liams and Wooley submitt ed copi es o f invoices ref lecting taxable court costs totaling $3,146.30 to Gude’ s counsel, and Gude’ s counsel forwa rded a propo s ed rele ase for execution by Wil liams and Wooley in exchang e for pay ment of $3,146.30. Williams and Wooley , howeve r, failed to take further action to comply with the s ettlem en t agr eement from thi s point forwa rd. They did

n o t s ign the proposed rele ase conce rning their claims ag ainst Gude or consent to nonsuit t h ei r claims ag ainst him. They also decli n ed t o ex ecute a joint motion to dismiss their claims ag ainst Walgr een Co. On Fe bruar y 23, 2007, Gude amende d h is a n s w e r to in c lude a counter claim for brea ch of the mediated settlement ag ree ment and a motion for summary judgme nt on his coun t erc laim seeking enfor ceme nt of the ag ree ment. Evidence attache d to his motion included (i) the settlement ag ree ment betwee n the parties, (ii) a copy of a le tter sent by the m ediator to the t rial court the day af t er t h e m ediation stating that “a settlement was achie ved that was mutually acc eptable to all parties,” (iii) the letter sent in Dec ember 2 0 0 5 fr o m co u nsel for Wil liams and Wooley to Gude’ s counsel attaching invoices of taxable court costs, and (iv) the letter from Gude’ s counsel to counsel for Wil liams and Wooley attaching and reque sting that they execu t e a proposed “Complete Confidential Release , I ndemnity , and Settlement Ag ree ment.” Wil liams and Wooley did not file a response to Gude’s motion for summary judgme nt.

3The trial court heard Gude’s mot ion on Marc h 19, 20 0 7 , an d g rante d the m otion. 2

I n its order g ra n t i n g the motion, the trial court found that the mediated settlement ag ree ment was “filed pursuant t o R u l e 1 1 and [was] a binding, enfor cea ble contra ct” and that “Plaintiffs have brea ched that contra ct in f ailing to non- suit this case and in f ailing to e nter a settlement ag ree ment and full rele ase of claims.” The tri al co u rt also order ed the claims ag ainst Gude to be nonsuited within 10 day s. The following day , counsel for Wil liams and Wooley filed a motion for nonsuit, and the trial cour

t gr anted the motion. A fe w months later, Willi ams ac cepte d the settlement pay ment for the taxable court costs. At this point, the onl y rema ining claims pending befor e the trial court

wer e ag ainst Walgre en Co.

On Dec ember 11, 2008, Wil liams filed a motion to discharg e her att o rn ey s, L arr y L aden and J ustin Townsend, and for sanctions. I n her motion, she contende d t hat she 3 discharg ed her attorney s befor e Marc h 2008 and that they should be sanctioned for unethical conduct in r epre senting her, inc luding: (i) failing to w ithdraw from the case afte r she discharg ed them and faili n g to follow her wishes reg arding the nonsuit of Gude, (ii) proce eding with the summary judgme nt he aring in Ma

rch 2007, (iii) adding lang uag e to the mediated settlement ag ree ment afte r Wi lliams and Wooley had alre ady signe d the ag ree ment, and (iv) using “undue pressure , in ti mi d a ti o n and coer cion to forc e Br enda Wil liams to sign a rele ase and settlement ag ree ment.” Attache d to her

The re cord r efle cts that Wooley died the we ek bef

ore the summary

judgme nt hear ing. 2 The attorney initially repr esenting Wil liams and Wooley filed a motion to withdraw in 3 September 2004, and the trial court g rante d his motion in Dec ember 2 0 04. Severa l months later, Wil liams and Wooley

reta ined L aden a

nd Townsend on a

conting ency

basis. 4motion wer e letters to her attorney s dated J uly 14, 2008. I n the letters, she advised her attorney s that

she wa s “firing ” them.

Her attorney s filed a response to her motion that incl u d ed d o cumentar y evidenc e. They contende d that the documents att ac h ed to their response showed that Wil liams was “fully

awa re of the nature of the settlement and the lang uag e included there in” and that they “attempted to solicit Plaintiffs compliance with the settlement ag ree ment but wer e unsucce ssful.” Their evidenc e included th e l et t er from the mediator to the court that the parties had settled the case at the

me d ia ti o n , th e s e tt le ment ag ree ment, and corr espondenc e betwee n Wil liams and her attorney s d u r in g Marc h 2008. A few wee ks later, the trial court hear d Wil liams ’s m otion, as well as a pending motion by Walgr een Co. to ente r final judg ment. Walgr een Co. soug ht the dismiss al of all claims ag ainst it with prejudice

. At the hear ing, the confide ntial settlement ag ree ment and rele ase executed by Wil liams and Wooley conce rning their claims ag ains t Walgr een Co. and a document dated November 17, 2005, and signe d by Wil liams and Wooley to confirm rec eipt of the settlement funds from Walgr een Co. wer e submitt ed in came ra for th e t ri al co u rt ’s revie w. The trial court also admitted a letter fr o m No v ember 2005 sent by L aden to Wil liams and Wooley outlining possible risks with a cce pting the settlement funds. Wil liams and Wooley signe d at the bottom of this letter acknow ledg ing that they rea d the letter, “under stand what it ex p l ains and ag ree to [be] bound by its terms.”

5After the hear ing, the district cou rt en t er ed final judgme nt, dismiss ing the claims

ag ainst Walgr een Co. with prejudice , and denied Wil liams’s motion to discharg e her attorney s and for sa nctions. This appea l followed.

ANALYSIS I n three issues, Wil liams contends that her attorney s should have been sanctioned for “misrepr esentation, misconduct and lack of zealous repr esenta tion,” the settlement ag ree ment was unconsciona

ble and fra

udulent beca

use it should have only addre ssed claims ag ainst Walgr een Co., “re quiring this court to reve rse, remand, set aside or vaca te all judgme nts, order s of non-suit s and dismiss als,” and that the “trial court err ed and abused i t s d i s cr eti on in enfor cing and g ranting ” Gude’ s motion for summary judgme nt. Attorney’s Re

presentation I n her first issue, Wil liams challeng es the tri al court’s denial of her motion to sanction her attorney s, L aden and Townsend. Wil liams contends that the trial court should have sanctioned her attorney s beca

use they eng ag ed in misconduct and misrepre sentation and lacke d zeal in their repr esentation of her by taking the fol l o wi n g al leg ed actions: adding lang uag e to the settlement ag ree ment afte r Wil liams and Wooley had alre ady signe d it, using “undue p r e s s u r e , in timidation, and

coer cion” to forc e her to sign the settlement ag ree ment, failing to follow her wishes reg arding the nonsuit of Gude, and f

ailing to withdra

w af ter Willi ams dischar g ed them. We revie w a trial court’s ruling on a motion for sanctions under an abuse of discretion standard. Cire v. Cummings , 134 S.W .3d 835, 838 (Tex. 2004). The test for abuse of discretion is

6“whe ther the court acte d without ref erence to any g uiding rules and principles.” Downer v. Aquamarine O

perators, Inc ., 701 S.W .2d 238, 241-42 (Te x . 1985). Wil liams sought sanc tions ag ainst her attorney s pursuant to Rule 13 of the rule s of civil proce dure. See Tex. R. Civ. P. 13. Wil liams, howeve r, fails to provide authority , and we have found none, that would support sanctioning her attorney s pursuant to Rule 13. Rule 13 allows a trial court to sanction an attorney or a p ar t y for filing motions, pleading s, or other paper s that are g roundless and broug ht in bad faith or for purpose of hara ssment. Id

. Wil liams alleg es conduct by her attorney s that is unrelated to filing motions, pleading s, or other paper s except for the filing of the motion to nonsuit Gude and, as to that motion, Wil liams was under court order to nonsuit her claims ag ainst Gude at the time that her attorney s filed the motion.

I n any event, the evidenc e in the rec ord does not support a finding that her attorney s eng ag ed in misconduct, made misrepre sentations to her, or lacke d zeal in their repr esenta tion. The evidenc e included an aff

idavit from Townsend, the mediator’s letter to the trial court, the mediated settlement ag ree ment, and L aden’ s letter to Wil liams and Wooley that outlined possible risks with

acc epting settlement funds. At the hearing o n the m otion, the t rial court also revie wed in came ra the confide ntial settlement ag ree ment and rele ase conce rning the claims ag ainst Walgr een Co. and the document in which Wil liams and Wooley confirme d that they had rec eived the settlement funds from Walgr een Co. This evidenc e shows that her attorney s wer e proce eding in acc ordanc e with the settlement ag ree ment and that Wil liams and Wooley wer e awa re of the terms of the ag ree ment and

acc epted those terms for at least several months afte r the mediation. Wil liams did not provide contra ry evidenc e.

7We conclude that the trial court was well within it s d i scre tion to deny Wil liams’s

motion to sanction her attorney s. See Cire , 134 S.W .3d at 838. We overr ule Wil liams’s first issue. Settlement Agre eme nt

I n her second and third issues, Wil liams challeng es the validity of the mediated settlement ag ree ment. I n her second issue, she contends that the ag ree ment is unc onscionable and fra udulent or ba s e d upon unilatera l mistake and, there fore , should be set aside beca use her ag ree ment to settle was only with Walgr een Co., and that she never intended to rele ase Gude. I n her third issue, she contends that the trial court err ed and abused its discretion by g ranting Gud e’ s motion for summary judgme nt and enfor cing t h e agreement. Be cause Wil liams conce des that she ag ree d to settle with Walgr een Co. at the mediati o n fo r $ 7 5 ,000 and does not dispute that she executed the subsequent “Confidential Settlement Ag ree me n t a n d Re le a s e ” a s to h e r claims ag ainst Walgr een Co., we lim it our review under both issues to the t erms of the m ediated settlem en t agre ement between Wil liams, Wooley , and Gude. I n its order g ranting summary judgme nt for Gu d e, t h e trial court 4 expressly found that the mediated settlement ag ree ment was a “binding , enfor cea ble contra ct” and that “Plaintiffs have breach ed t h at co n t ract in failing to non-suit this case and in failing to enter a settlement ag ree ment and full re lease of cla ims.”

To the extent Wil liams challeng es the settlement ag ree ment conce rning Walgr een Co. 4 and/or raises new issues in her reply briefs, she has not prese rved t h es e issues for this Court’s revie w. See Tex. R. App. P. 38.1, 38.3; Dallas Co. v. Gonzales , 183 S.W .3d 94, 104 (Tex. App.—Dallas 2006, pet. denied) (rules of appellate proce dure do not allow an appellant to raise new issue in reply brief) ; Howell v. Texas W orkers’ Comp. Comm’n , 143 S.W .3d 416, 439 (Tex. App.—Austin 2004, pet. denied) (same)

. 8We revie w the trial cour t ’s d ec i s ion to g rant summary judgme nt de novo . Valence

Operating Co. v. Dorsett , 1 6 4 S

. W

. 3 d 656, 661 (Tex. 2005). To preva il on a sum mary judgme nt motion, the movant must demonstrate that there are no g enuine issues of materia l fac t and that it is entitled to judgme n t as a matter of law. Tex. R. Civ. P. 166a(c ); City of Houston v. Clear Creek Basin Auth ., 589 S.W .2d 671, 678 (Tex. 1979). I n deciding whether there is a disputed materia l fac t issue prec luding summary judgme nt, we must take ev i d en ce favor able to the nonmovant as true, indulge ever

y rea sonable infere nce in fav o r of the nonmovant, and resolve any doubts in the nonmovant’s favor

. Dorsett , 164 S.W .3d at 661; Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548-49 (Te x . 1985).

Settlement ag ree ments may be enfor ced as contra cts even if o ne party withdraws consent before judgme nt is enter ed on the agree m en t. See Padilla v. L aFrance , 907 S.W .2d 454, 4 6 1 (T ex . 1995); see also Tex. Civ. Prac. & Rem. Code Ann. § 154.071(a) (West 2005) (“ I f t h e parties rea ch a settlement and execute a written ag ree ment disposing of the dispute, the ag ree ment is enfor cea

ble in the same manner as any other written contra ct.”)

. When consent is withdrawn, the p ar t y s ee k ing enforc ement of the s ettlement agr eeme nt may pursue a separ ate claim for breac h o f contra ct. Padilla , 907 S.W .2d at 461-62. That is what happene d here

. After Wil liams and Wooley failed to sign Gude’ s proposed rele ase of their claims ag ainst him and would not consent to nonsuit those claims, Gude amende d h i s answe r to asser t a counter claim for brea ch of the mediated settlement ag ree ment.

Gude then fil ed a motion for summ ary judgme nt on his counter claim. See Tex. R. Civ. P. 166a(a ). As part of his motion, Gude soug ht enfor ceme nt of t h e m ed i at ed settlement

9ag ree ment and an order of dismiss al. To be entitled to summary j u d gm en t o n his counter claim

and his reque sted relief

, Gude had to establish as a matter of law that the mediated settlement ag ree ment was valid and that Wil liams brea ched the ag ree ment. See Taub v. Houston Pipeline Co. , 75 S.W .3d 606, 615 (Tex. App.—Texarkana 2002, p et

. d en ied) (ele ments of brea ch of contra ct claim).

Gu d e ’ s s u mm a r y ju d g ment evidenc e included the mediated settlement a g r e e me n t th a t

was filed with the trial court, the mediator’s letter to the trial court that “a settlement was achie ved that was mutually acc eptable to all parties,” the letter sent by counsel for Wil liams to Gude’ s counsel documenting taxable court costs, and the let t er s en t by Gude’ s counsel to counsel for Wil liams attaching and reque sting that Wil liams and Wooley execute a proposed “Complete Confidential Release , I ndemnity , and Settlement Ag ree ment.” Wil liams did not file a response or controve rting evidenc e. See Tex. R. C iv. P. 166a(c); City of Houston , 589 S.W .2d at 678.

The undisputed summary j u d g ment evidenc e, then, established that the parties executed the settlement ag ree ment at the mediation and that the ag ree ment was filed in acc ordanc e with Rule 11 of the rules of civil proce dure. See Tex. R. Civ. P. 11. The settlement ag ree ment itself established the terms of the ag ree ment, including the ag ree ment by Wil liams and Wooley to nonsuit Gude and to execute a full rele ase of t heir claims ag ainst Gude in exchang e for pay ment of their taxable court costs. The evidenc e also showed that Wil liams and Wooley ref used to sign the proposed rele ase or to nonsuit Gude in acc ordanc e with the terms of the ag ree ment. This evidenc e established that the settlement ag ree ment was valid, that Wil liams brea ched the ag ree ment, and that Gude was entitled to summary judgme nt as a matter of law. We conclude that the trial court did not

10err in g ranting Gude’ s motion for sum m ar y j udg ment and enfor cing the mediated settlement

ag ree ment. We overrule Wil liams’s second issue.

As to her third issue, Wil liams contends that the mediated settlement ag ree ment was

u nconsciona

ble or fra udulent or based upon unilatera l mistake beca use she and her hus b an d o n l y ag ree d to settle with Walgr een Co. at the mediation, and not with Gude. Be cause she did not file any response to Gude’ s motion for summary judgme nt, howeve r, she failed to raise these issues with the trial court, and we may not consider them as g rounds for reve rsing the summary judgme nt in favor of Gude. See Tex. R. Civ. P. 166a(c ) (“I ssues not expressly prese nted to the trial cour t by written motion, answer or

other re sponse s hall not be considered on appea l as g round for reve rsal.”) . We

overr ule Will iams’s third issue.

CONCLUSION Having overr

uled Will iams’s issues, we a ffirm the tria l court’s judg ment. 5

Pending befor e this Court are Walgr een Co.’s M o t i on to Strike Appellant’s Br ief and 5 Motion to Dismiss, Gude’ s Motion to Dismiss, and Wil liams’s “Objec tion to Appellee s’ St. David’s and Dr. Warren W. Gude’ s Motion to Dismiss, and any and all Motion to Strike Appellant’s Br ief, or Alterna tively , Motion to Amend Br ief.” L aden and Townsend, the atto rn ey s repr esenting Wil liams befor e the trial court, also filed a motion to dismiss for l ac k o f j urisdiction. We deny these motions. 11__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Oc tober 12, 2010

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