1 

In The 

Court of Appeals 

Ninth District of Texas at Beaumont 

________________ 

NO. 09-13-00350-CV 

________________ 

IRMA BARRAGAN, Appellant 

V. 

NEDERLAND INDEPENDENT SCHOOL DISTRICT, 

Appellee 

________________________________________________________________________ 

On Appeal from the 172nd District Court 

Jefferson County, Texas 

Trial Cause No. E-191,975 

________________________________________________________________________ 

MEMORANDUM OPINION 

Appellant Irma Barragan appeals the trial court’s enforcement of a purported 

Rule 11 agreement to settle the lawsuit and dismissal with prejudice of her 

personal injury lawsuit against appellee Nederland Independent School District 

(“NISD”). Barragan raises seven issues for our consideration. We reverse the trial 

court’s orders and remand the cause for further proceedings consistent with this 

opinion. 
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BACKGROUND 

Barragan sued NISD and Janis L. Pokraka for injuries allegedly sustained 

when Barragan’s vehicle, which was sitting at a stop sign, was struck by a NISD 

bus driven by Pokraka when Pokraka made an improper left turn. Barragan 

asserted a cause of action for negligence, and she alleged that Pokraka was acting 

in the course and scope of her employment with NISD when the accident occurred. 

Barragan also alleged that she suffered significant bodily injuries as a result of the 

accident, and she asserted claims for both past and future medical expenses, as well 

as pain and suffering, mental anguish, loss of enjoyment of life, and physical 

impairment. Barragan pleaded that her damages “greatly exceed the sum of 

$100,000.00[.]” Barragan eventually filed a motion to non-suit her claims against 

Pokraka, and the trial court granted the motion. See Tex. Civ. Prac. & Rem. Code 

Ann. § 101.106(e) (West 2011) (“If a suit is filed under this chapter against both a 

governmental unit and any of its employees, the employees shall immediately be 

dismissed on the filing of a motion by the governmental unit.”). 

 NISD asserted a general denial, specifically denied that it is liable in the 

capacity in which Barragan sued it, and specifically denied liability for money 

damages in excess of $100,000. NISD also alleged that Barragan was negligent in 

operating her vehicle and contended any recovery by Barragan should be reduced 

by her percentage of responsibility. The next document to appear in the clerk’s 
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record after Barragan’s first amended petition is a letter, dated July 19, 2012, from 

NISD’s counsel, Monica Wilkins, to Barragan’s counsel, Cynthia Frederick, in 

which NISD offered to “settle this case” for $20,000 “inclusive of any and all 

subrogation claims, healthcare liens, Medicaid liens, Medicare liens, workers’ 

compensation liens, hospital liens and/or child support liens.” The letter requested, 

“[i]f your client agrees to settle for $20,000.00, please sign below and fax this 

agreement back to me.” The letter, which was e-filed with the district clerk on 

September 25, 2012, contains the signature of Frederick, but does not contain 

Barragan’s signature. On September 27, 2012, Barragan filed a motion to 

substitute Paul “Chip” Ferguson as her attorney, citing as grounds Frederick’s 

alleged failure to communicate, failure to adequately represent Barragan, and 

failure “to have or keep the client’s best interests[.]” 

The next day, NISD filed a “Motion to Enforce Settlement Agreement[,]” in 

which it contended that the letter signed by Frederick constituted “an enforceable 

settlement agreement in accordance with Rule 11 of the Texas Rules of Civil 

Procedure” and “[s]aid agreement constitutes in all things a contract of settlement 

entered into . . . by the Plaintiff and Defendant.” NISD further asserted in its 

motion that it had emailed a Compromise and Settlement Agreement, Release of 

Claims, and Covenant Not to Sue, as well as a proposed Final Judgment, to 

Frederick. Barragan filed a motion for continuance, in which she asserted that she 
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never agreed to the Rule 11 agreement, Frederick lacked Barragan’s consent or 

permission to enter into such an agreement, Frederick lacked authority to enter into 

the agreement, and the Rule 11 agreement was not filed “until after [Barragan] had 

discharged Ms. Frederick.” Barragan also contended that despite requests from 

Barragan and Ferguson, Frederick had not provided Barragan with “any of her file 

materials.” 

On October 5, 2012, the trial court signed an order granting the motion to 

substitute, naming Ferguson counsel of record for Barragan, and ordering 

Frederick to send Barragan’s file to Ferguson within ten days. On October 10, 

2012, NISD’s counsel sent a letter to Ferguson, in which NISD contended that 

“there was an agreement to settle this case[]” and that “[t]he agreement constitutes 

a contract which is subject to enforcement.” The letter demanded that Barragan 

tender a signed release and take nothing judgment, and stated that if Barragan 

refused to comply, NISD would “file a counterclaim for breach of contract” and 

“seek attorney’s fees[.]” Two days later, NISD’s counsel sent another letter 

demanding that Barragan either comply or be sued for breach of contract. 

However, NISD did not file a counterclaim for breach of contract. 

Barragan subsequently filed a response and memorandum of authorities 

regarding the validity of the Rule 11 agreement. In that pleading, Barragan alleged 

that she suffered significant injuries as a result of the accident, she had incurred 
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$22,000 in past medical expenses, and she anticipated that her future medical care 

would cost $118,000. Barragan pleaded that she had discharged Frederick and 

retained Ferguson, and that “[i]t was only after learning of the termination of 

Frederick that Wilkins filed the Rule 11 agreement. Stated another way, Wilkins 

did not file the Rule 11 agreement until after any authority of Frederick had been 

revoked[.]” 

Attached to the response was Barragan’s affidavit, in which she swore that 

in July 2012, she discussed the $20,000 settlement offer with Frederick, but 

Barragan never agreed to settle her case. Barragan swore that: 

I was told by [Frederick] that she had already settled my case and that 

I had no choice. At that point, I was very frustrated and did not 

understand how or why Ms. Frederick could or would settle my case 

without my permission. I fired her as my attorney and eventually hired 

Mr. Ferguson. From the point in time that I fired Ms. Frederick, she 

was not authorized to act or work on my behalf. Before that time, she 

had no authority or consent to settle my case for $20,000. . . . 

. . . I would have never considered much less accepted a settlement 

that was less than my medical bills. 

Barragan also attached to her response the transcript of Frederick’s deposition. 

Frederick testified in her deposition that in early to mid-September, Barragan 

called and expressed concern over the amount of her medical bills, and Frederick 

told Barragan “we’ve already made a deal[,]” and Barragan responded that “she 

hadn’t signed anything yet.” The record reflects that Barragan terminated 

Frederick’s representation of her by a letter dated September 19, 2012. In that 
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letter, Barragan stated that she disagreed with Frederick’s evaluation of the value 

of her case, and that she had told Frederick the settlement offer was “not good[.]” 

 On October 4, 2012, the trial court conducted a hearing on NISD’s motion to 

enforce the Rule 11 agreement. Frederick was present at the hearing, and she 

represented to the trial court that she spoke to Barragan by telephone on July 25 

“and got clearance to settle. I explained to her the pros and cons. And she said that 

that would be okay. She agreed at that time.” Wilkins argued at the hearing that 

Barragan, as the principal, is bound by the conduct of her agent, Frederick. 

Ferguson argued that because the Rule 11 agreement was not filed until after 

Barragan terminated Frederick, the agreement is no longer valid. On November 27, 

2012, the trial court signed an order granting NISD’s motion to enforce the Rule 11 

agreement. The trial court’s order simply stated that NISD’s motion to enforce the 

Rule 11 agreement was granted, but did not make any factual findings or order 

Barragan to take any particular action. 

NISD subsequently filed a motion to dismiss the cause with prejudice, 

motion to adjudge costs, and request for attorney’s fees pursuant to Chapter 38 of 

the Texas Civil Practice and Remedies Code. In the motion, NISD pleaded that it 

filed the Rule 11 agreement after learning that Barragan had terminated Frederick. 

NISD also pleaded that “pursuant to CPRC 38.001 proper notice was given to 

[Barragan] regarding [NISD]’s intent to recover attorney[’s] fees[.]” On June 13, 
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2013, the trial court conducted a hearing on NISD’s motion to dismiss, and on June 

26, 2013, the trial court signed an order granting NISD’s motion to dismiss and 

awarding court costs of $299.64 and attorney’s fees of $4839 to NISD, as well as 

attorney’s fees of $4500 for appeal to the Court of Appeals, $3000 in the event 

Barragan sought review at the Supreme Court, and $3000 if the Supreme Court 

were to grant review. The trial court’s order did not order Barragan to sign a 

settlement agreement, release, judgment, or otherwise specifically perform any 

other obligations under the Rule 11 agreement, and it did not award damages to 

NISD. Barragan then filed this appeal. 

ISSUES THREE AND FOUR 

In issue three, Barragan argues that the district court erred in entering a 

judgment in favor of NISD on a breach of contract (or affirmative defense of 

compromise and settlement) when no trial was held and no summary judgment was 

filed. In issue four, Barragan contends the district court erred in awarding 

attorney’s fees under Chapter 38 of the Civil Practice and Remedies Code when no 

actual damages were awarded. We address these issues together. 

When parties reach a settlement agreement in pending litigation, the court 

may render an agreed judgment as long as no party has withdrawn consent. See

Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). If a party has withdrawn 

its consent, the settlement may be enforced as a contract if the agreement complies 
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with the requirements of Rule 11 of the Texas Rules of Civil Procedure. Id. The 

agreement may be filed with the trial court even after one of the parties withdraws 

its consent, but it must be filed before one of the parties attempts to enforce it. Id. 

Rule 11 of the Texas Rules of Civil Procedure provides, in pertinent part, that “no 

agreement between attorneys or parties touching any suit pending will be enforced 

unless it be in writing, signed and filed with the papers as part of the record, or 

unless it be made in open court and entered of record.” Tex. R. Civ. P. 11. 

Although the agreement need not be contained in one document, the writings must 

be complete in every material detail and must contain all of the essential elements 

of the agreement so that the agreement can be ascertained from the writing without 

resorting to oral testimony. Padilla, 907 S.W.2d at 460. 

When a party has withdrawn consent, a court may enforce the settlement 

only as a written contract. Id. at 461; see Schriver v. Tex. Dep’t of Transp., 293 

S.W.3d 846, 851 (Tex. App.—Fort Worth 2009, no pet.) (“Settlement agreements 

are governed by the law of contracts.”) Thus, the party seeking enforcement must 

pursue a separate claim for breach of contract, which is subject to the normal rules 

of pleading and proof. Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 

(Tex. 1996); see Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009) 

(“Like any other breach of contract claim, a claim for breach of settlement 

agreement is subject to the established procedures of pleading and proof.”). In 
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actions to enforce settlement agreements, parties have “‘the right to be confronted 

by appropriate pleadings, assert defenses, conduct discovery, and submit contested 

fact issues to a judge or jury.’” Avary v. Bank of Am., N.A., 72 S.W.3d 779, 799 

(Tex. App.—Dallas 2002, pet. denied) (quoting Cadle Co. v. Castle, 913 S.W.2d 

627, 632 (Tex. App.—Dallas 1995, writ denied)). 

Neither the Civil Practice and Remedies Code nor the Rules of Civil 

Procedure creates a separate standard for enforcing disputed settlement agreements 

that bypasses the common law pleading and proof requirements. See Mantas, 925 

S.W.2d at 659 n.2; Cadle Co., 913 S.W.2d at 632; see also Ford Motor Co. v. 

Castillo, 200 S.W.3d 217, 224 (Tex. App.—Corpus Christi 2006), rev’d on other 

grounds by Castillo, 279 S.W.3d at 656. A motion to enforce a settlement 

agreement is a sufficient pleading by which to raise a cause of action for breach of 

contract. Neasbitt v. Warren, 105 S.W.3d 113, 117-18 (Tex. App.—Fort Worth 

2003, no pet.); Browning v. Holloway, 620 S.W.2d 611, 615 (Tex. Civ. App.—

Dallas 1981, writ ref’d n.r.e.). However, “[t]he validity of a settlement agreement 

cannot be determined without ‘full resolution of the surrounding facts and 

circumstances.’” Castillo, 279 S.W.3d at 663 (quoting Quintero v. Jim Walter 

Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983)). Due process requires notice and a 

fair opportunity to be heard. In re Park Mem’l Condo. Ass’n, Inc., 322 S.W.3d 447, 

450 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding). “Due process 
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requires a full hearing before a court having jurisdiction, the opportunity to 

introduce evidence at a meaningful time and in a meaningful manner, and the right 

to judicial findings based on the evidence.” Id. 

 NISD effectively pleaded a breach of contract claim by filing its motion to 

enforce. See Neasbitt, 105 S.W.3d at 117-18; Browning, 620 S.W.2d at 615. 

However, the trial court did not order Barragan to sign a settlement agreement, 

release, judgment, or otherwise specifically perform under the Rule 11 agreement, 

and it did not award monetary damages to NISD. The trial court had before it 

conflicting evidence from Barragan and Frederick regarding whether Frederick had 

actual or apparent authority to settle Barragan’s case, and with the exception of the 

monetary amount of the settlement and the liens to which it was intended to apply, 

no evidence was before the trial court as to the specific terms of the purported 

settlement agreement. See Padilla, 907 S.W.2d at 460. NISD did not present either 

its motion to enforce the agreement or its motion to dismiss as a summary 

judgment motion, a request for declaratory judgment, or a motion to dismiss under 

Rule 91a of the Texas Rules of Civil Procedure, nor did it observe the procedures 

applicable to seeking such final pretrial dispositions, and the trial court did not 

conduct a bench trial. See generally Tex. Civ. Prac. & Rem. Code Ann. § 37.004 

(West 2008); Tex. R. Civ. P. 91a, 166a. The trial court did not resolve any factual 

issues, nor did it determine that no genuine issues of material fact exist. We 
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conclude that the trial court erred by adjudicating the validity of the Rule 11 

agreement and dismissing Barragan’s case with prejudice without either following 

proper procedures for a final pretrial disposition or conducting a bench trial. See 

Park Mem’l Condo., 322 S.W.3d at 450; Castillo, 279 S.W.3d at 663. Accordingly, 

we sustain issue three. 

Section 38.001 of the Civil Practice and Remedies Code provides that a 

person may recover reasonable attorney’s fees, “in addition to the amount of a 

valid claim and costs, if the claim is for. . . an oral or written contract.” Tex. Civ. 

Prac. & Rem. Code Ann. § 38.001(8) (West 2008). To recover attorney’s fees 

under section 38.001, a party must both prevail on a breach of contract claim and 

recover damages. Berg v. Wilson, 353 S.W.3d 166, 182 (Tex. App.—Texarkana 

2011, pet. denied); Rodgers v. RAB Invs., Ltd., 816 S.W.2d 543, 551 (Tex. App.—

Dallas 1991, no writ). In this case, the trial court did not award damages to NISD 

in either its order granting NISD’s motion to enforce the Rule 11 agreement or its 

order dismissing Barragan’s case with prejudice. Therefore, NISD is not entitled to 

recover attorney’s fees pursuant to section 38.001. See Tex. Civ. Prac. & Rem. 

Code Ann. § 38.001; Berg, 353 S.W.3d at 182; Rodgers, 816 S.W.2d at 551. We 

sustain issue four. We need not address Barragan’s remaining issues, since they 

would not result in greater relief. See Tex. R. App. P. 47.1. We reverse the trial 

court’s orders granting NISD’s motion to enforce the Rule 11 agreement, 
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dismissing Barragan’s case with prejudice and awarding attorney’s fees to NISD, 

and we remand the cause for further proceedings consistent with this opinion. 

REVERSED AND REMANDED. 

_____________________________ 

 CHARLES KREGER 

 Justice 

Submitted on April 24, 2014 

Opinion Delivered February 5, 2015 

Before McKeithen, C.J., Kreger and Horton, JJ.