TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00249-CV

Francis M. Harrison, Appellant

v.

Mary E. Freehill and Charles Gerard Harrison, Appellees

FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY

NO. C-1-PB-20-000866, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

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

The underlying probate action began when appellant Francis M. Harrison filed an 

application in Travis County to probate a 2015 will executed by his mother, Margaret Harrison. 

A short time later, appellees Mary E. Freehill and Charles Gerard Harrison (two of Francis’s six

siblings) filed in Williamson County an application to probate a 2020 will of Margaret.

1

 After a 

transfer of the Williamson County proceeding to Travis County and attempted settlement, the 

trial court granted appellees’ motion for summary judgment determining that the 2020 will is 

valid and dismissing Francis’s claims about its invalidity. Francis then perfected this appeal. He 

challenges the trial court’s orders (1) denying his motion to approve and enforce a Rule 11 

agreement and (2) denying his motion for a new trial or to modify the judgment. For the 

following reasons, we affirm the challenged orders and the summary judgment.

1 Because some of the parties share the same surname, for clarity and ease we will refer 

to them by their given names or their designation as appellant or appellees.
2

BACKGROUND

Margaret died April 26, 2020, in Williamson County survived by seven of her 

nine children. In May 2020, Francis filed an application for probate of will and issuance of 

letters testamentary in Travis County seeking to probate a 2015 will executed by Margaret.

2

Later that same month, Mary and Charles filed an application for probate of will and issuance of 

letters testamentary in Williamson County seeking to probate a 2020 will executed by Margaret.3

Subject to his previously filed motion to transfer venue to Travis County, Francis filed an answer 

and will contest in the Williamson County action, alleging that the 2020 will and a related 

special warranty deed executed contemporaneously were invalid because Margaret lacked 

testamentary capacity and was unduly influenced. The parties agreed to transfer the Williamson 

County action to Travis County, consolidating the two probate applications.

Appellees filed an application for the appointment of a temporary administrator, 

arguing that the pending will contest between them and Francis necessitated such appointment. 

Francis opposed the application. In July 2020, the trial court appointed a temporary dependent 

administrator, Charles O. Grigson, until the will “contest is terminated and an executor or 

2

In the 2015 will, Margaret bequeathed all her property, including her Austin home

(comprising the bulk of her estate), to Francis, except for her wedding ring, which she 

bequeathed to Mary. In that will Margaret appointed Mary as independent executor and

the following of her other children as respective first, second, and third contingent executors: 

Helen Markow, Francis, and Charles. Contemporaneously with that will, Margaret purportedly 

executed a so-called “ladybird deed” conveying her home to Francis but reserving for herself a 

life estate and the power to revoke the deed.

3

In the 2020 will, Margaret bequeathed all her property, in equal shares, to her surviving 

children. It appointed Charles and Mary as independent co-executors and Helen as contingent 

independent executor, and it contained a no-contest clause: “If any person should directly or 

indirectly object to or contest the probate of this Will, the distribution or disposition of my estate, 

or in any manner hinder the carrying out of the letter and spirit of this Will, then that person . . . 

shall take nothing under this Will . . . .”
3

administrator with full powers is appointed.” On November 17, 2020, Francis filed an unsecured 

claim against the estate for $264,578.69 for payments he allegedly made for repairs, renovations, 

insurance, and property taxes for Margaret’s home. Appellees objected to the claim, contending 

that it was unsupported by admissible evidence and was barred by the applicable statute of 

limitations and the statute of frauds.

On November 18, 2020, the parties mediated their dispute about the will contest. 

Mary, Charles, Francis, and their respective counsels attended. Mary and Charles had obtained 

limited powers of attorney for three of their siblings—Helen, Tom, and Sissy—with respect to 

any settlement they might reach with Francis. The remaining surviving sibling, Joseph, was not 

represented and did not appear at the mediation. The mediation led to a Rule 11 agreement

(Agreement) in the form of a series of e-mails on November 18, providing that Francis 

would pay $225,000 to Charles, Mary, and the three siblings they represented (the Settling

Parties) in consideration for the administrator’s conveyance of Margaret’s home to Francis 

via a “distribution deed.” Francis and the Settling Parties agreed to “execute all documents 

necessary to effectuate this transaction” and that, if it became necessary to probate a will to 

effectuate the transaction, the parties would probate the will that “most efficiently carries out the 

terms of the agreement.”

The Agreement further provided that if Francis was unable to close on the

purchase of Margaret’s home “within sixty (60) days of the execution of this Agreement,” he 

would have “an additional fifteen (15) days to vacate” the home so that it could be sold by the 

administrator. If the administrator were thus required to sell the home, he would list it for

$385,000, and any associated costs (e.g., commissions and closing costs) would be split between 

Francis paying 41.6% and the Settling Parties paying 58.4%. The remaining sale proceeds 
4

would be divided thus: Francis would receive 41.6% and the Settling Parties would receive 

58.4%. The Agreement provided that the parties would execute an “additional agreement 

including these terms and including full mutual releases no later than 10 days after the execution 

of this Agreement” and that the Agreement did not address the distribution of tangible personal 

property, about which the parties could continue negotiating and return to the mediator if 

agreement could not be reached within ten days of execution of the Agreement. Francis and the

Settling Parties never executed an additional agreement or the referenced “full mutual releases”

and did not return to the mediator regarding the distribution of personal property.

On January 13, 2021, Mary and Charles filed two motions with the trial court: 

(1) a motion to approve and enforce the Agreement and (2) a traditional and no-evidence motion 

for summary judgment. In the motion to approve and enforce, to which they attached a copy of 

the Agreement, Mary and Charles represented that Joseph was the only sibling “who did not 

agree to the terms of” the Agreement but that Francis’s attorney had assured them that he would 

obtain Joseph’s signature because Joseph had expressed his desire not to pursue “any claim” he 

had to the estate. They further represented that their attorney had since called Joseph (who hung 

up on him) and sent Joseph an e-mail seeking his signature to indicate his consent to the 

Agreement but had not received a response and would thus need to serve Joseph and set a 

hearing on the matter of his consent. Because Francis had “suggested that he will not comply 

with the terms of the Agreement,” Mary and Charles were seeking to have the court approve 

and enforce it. On February 2, 2021, appellees filed with the trial court a notice of Joseph’s 

acceptance of the Agreement, to which they appended an undated document signed by Joseph

indicating that he had “carefully read the e-mail agreement between the parties to this matter 
5

dated November 18, 2020,” “agree[s] to its terms,” and “understand[s]” in agreeing thereby that 

he “will receive nothing” from Margaret’s estate.

In their summary-judgment motion, Mary and Charles argued that their attached 

summary-judgment evidence established as a matter of law that the 2020 will and deed were

executed with all required formalities and that Francis’s claims that both documents are invalid 

should be dismissed. In the no-evidence portion of the motion, they argued that Francis had 

no evidence to support his claims that the two 2020 documents are invalid because of undue 

influence or for “other [unspecified] reasons” or that Margaret lacked capacity to execute them.

On February 5, Francis filed a response to the summary-judgment motion making the sole 

argument that the motion was “mooted by” the Agreement. The only evidence he attached was 

the Agreement; an e-mail from appellees’ counsel indicating that Joseph had not accepted the 

Agreement prior to January 29, 2021; and Joseph’s undated acceptance thereof.

On February 12, Francis filed a response to the motion to approve and enforce 

the Agreement requesting the court to approve the Agreement and to “authorize the administrator 

to permit [Francis] to purchase the Property as provided” by the Agreement. That same day,

the trial court conducted a hearing on both motions, at which Mary and Charles argued that

Francis’s recent filings “suggested that [he doesn’t] want to abide by the” Agreement and, if

he did not, they were “going to move forward with [their] motion for summary judgment.” They 

argued that the sixty-day deadline for Francis to close on purchasing the home had expired 

on January 17, and the deadline for him to vacate the home had also expired, on February 1. 

Because Francis did not comply with either deadline, they asked the court to issue an order

requiring Francis to move out immediately so that Grigson could sell the home pursuant to the 
6

Agreement, as the “real estate market in Austin is on fire,” and “every single day that we lose 

that [Francis] is in that house is money that’s lost out of this estate.”

Through counsel, Francis argued that the deadlines referenced in the Agreement 

did not start running until January 29, 2021, when Joseph indicated his acceptance of it.

Alternatively, he argued that the deadlines would not begin running until the trial court signed an 

order approving the Agreement, as Grigson would not be able to provide a distribution deed to 

Francis without the court’s approval. Mary and Charles responded that they no longer wished to 

enforce the Agreement in light of Francis’s understanding of when the deadlines would run and 

his seeking the now-expired option of purchasing the home, and they proceeded to argue the 

merits of their summary-judgment motion.

Brian Thompson, the attorney for Mary and Charles, testified that at the 

mediation, the mediator told him that Francis had been pre-approved for a loan. However, 

despite Thompson’s requests then and since, Thompson explained that Francis never provided 

him documentation thereof. Instead, Francis provided him a loan application dated January 12, 

2021—five days before the sixty-day deadline for Francis’s closing on the home purchase—and 

had unsuccessfully attempted to obtain the Settling Parties’ agreement to an extension of the 

closing deadline. Thompson also testified that prior to the mediation, Francis’s former counsel 

told Thompson that Francis had obtained a power of attorney for Joseph—the “only sibling that 

kind of lines up on Francis’[s] side”—and that he and his clients were “always under the

impression that Joseph . . . was okay with whatever.”

At the conclusion of the hearing, the trial court orally denied the motion to 

enforce and approve the Agreement and granted the motion for summary judgment and signed

two orders on February 26 reflecting those rulings. The order granting appellees’ summary-
7

judgment motion decreed that the 2020 will and deed are valid and were executed “with all 

required formalities.” It further stated, “This judgment is intended to be final and appealable and 

is intended to dispose of all parties and issues related to the validity of the Will and the Deed.”

On March 29, Francis filed a motion for new trial or to modify the judgment, 

which the trial court denied May 10. Francis perfected this appeal from the summary judgment, 

complaining of the trial court’s refusal to enforce and approve the Agreement and denying his

motion for new trial or to modify the judgment. Although Francis appeals from the summaryjudgment order, he does not challenge the merits of the summary-judgment ruling.

DISCUSSION

In his first issue, Francis contends that the trial court abused its discretion in 

refusing to approve and enforce the Agreement.4 We review a trial court’s decision regarding 

enforcement of a Rule 11 agreement for an abuse of discretion. Mantas v. Fifth Circuit Court of

Appeals, 925 S.W.2d 656, 659 (Tex. 1996) (per curiam); Infiniti Hotel Grp., LLC v. Patel,

No. 03-09-00601-CV, 2011 WL 1344605, at *6 (Tex. App.—Austin Apr. 8, 2011, pet. denied)

(mem. op.). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without

reference to guiding rules or principles, or fails to analyze or apply the law correctly. Iliff v. Iliff, 

339 S.W.3d 74, 78 (Tex. 2011).

To be enforceable, any agreement between parties touching on a pending suit

must be in writing, signed, and entered into the court’s record. Tex. R. Civ. P. 11. “Rule 11

agreements have long been recognized as an effective tool for finalizing settlements by objective 

manifestation so that the agreements do not themselves become sources of controversy.”

4 Although it was appellees who filed the motion to approve and enforce the Agreement, 

Francis asked for the same relief in his response to the motion and orally at the hearing.
8

Innovative Vision Sols., LLC v. Kempner, No. 01-20-00195-CV, 2022 WL 868130, at *6 (Tex. 

App.—Houston [1st Dist.] Mar. 24, 2022, no pet.) (mem. op.) (internal citations omitted). A 

Rule 11 settlement agreement must contain all the essential terms of the settlement. Padilla v. 

LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Essential terms are those terms that the parties 

“would reasonably regard as vitally important elements of their bargain,” including payment 

terms and release of claims. Kempner, 2022 WL 868130, at *6 (citations omitted). Courts 

construe Rule 11 agreements as they do other contracts. Id.

A party has the right to revoke its consent to a Rule 11 agreement at any time 

before the rendition of judgment, see Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444

(Tex. 1983), and consent must exist at the time judgment is rendered, see ExxonMobil Corp. v. 

Valence Operating Co., 174 S.W.3d 303, 309 (Tex. App.—Houston [1st Dist.] 2005, pet. 

denied). While a court is not precluded from enforcing a Rule 11 agreement once it has been 

repudiated by one of the parties, an action to enforce a Rule 11 agreement to which consent has 

been withdrawn must be based on proper pleading and proof. See Padilla, 907 S.W.2d at 462; 

Quintero, 654 S.W.2d at 444. Thus, while the general rule is that a court has a “ministerial duty”

to enforce a valid Rule 11 agreement by rendering judgment thereon, see ExxonMobil Corp., 

174 S.W.3d at 309, when one party to such agreement has revoked its consent thereto prior to 

rendition of judgment, the other party may then seek to enforce the agreement only under 

contract law and based upon proper pleading and proof, see Padilla, 907 S.W.2d at 461–62; see 

also Quintero, 654 S.W.2d at 444 (noting that court’s power to render agreed judgment depends 

on “substance of the consent” at time judgment is rendered and that party has right to revoke 

consent at any time before rendition of judgment).
9

Such an action to enforce the Rule 11 agreement as a contract, rather than as an 

agreed judgment, requires full resolution of the surrounding facts and circumstances, and the 

validity of a settlement agreement may not be determined without proper pleadings. Quintero, 

654 S.W.2d at 444 (reversing judgment of dismissal of case on joint motion to dismiss where one 

party no longer consented at time judgment was rendered and remanding cause without prejudice 

to other party’s right to attempt to plead and prove enforceable settlement agreement). Thus, the 

party seeking enforcement of a Rule 11 agreement when the other party has revoked its consent 

“must pursue a separate breach-of-contract claim, which is subject to the normal rules of 

pleading and proof.” Mantas, 925 S.W.2d at 658.

Here, although none of the parties expressly revoked their consent to the 

Agreement, we conclude that the trial court could reasonably have determined that the validity of 

the Agreement could not be determined without proper pleadings.

5

 The Agreement required 

Francis to (1) close on the purchase of the home (to include paying the Settling Parties $225,000) 

within sixty days of the Agreement’s execution or, failing that, (2) move out of the home within 

fifteen days after such date to allow the administrator to list the home for sale at $385,000. At the

hearing, the parties expressed competing understandings of when they considered the Agreement 

“executed” and thus from which date Francis’s closing deadline began running. Francis argued 

that his sixty-day closing deadline did not start running until January 29 at the earliest, when 

Joseph indicated his acceptance of the Agreement, and that he still had the right to purchase 

the home. Appellees, on the other hand, argued that the clock on the closing deadline began

running on November 18 and that Francis’s purchase option had expired. In this context, the 

5 At the hearing the trial court expressed its concern that there was no present agreement

among the parties: “I’m not enforcing that agreement. The parties I don’t believe ultimately had 

an agreement. And they’re in dispute about the agreement so I’m not going to enforce it.”
10

trial court reasonably could have determined that it would be improper to render judgment on the 

Agreement as a “ministerial duty.” See Kempner, 2022 WL 868130, at *7–8 (“[W]hen . . . a 

settlement dispute arises while the trial court has jurisdiction over the underlying action, a

claim to enforce the settlement agreement should be asserted through an amended pleading,”

and the trial court cannot resolve such dispute in a “ministerial” manner.); Batjet, Inc. v. Jackson, 

161 S.W.3d 242, 245 (Tex. App.—Texarkana 2005, no pet.) (holding that, when settlement 

dispute arises, rendering judgment on settlement agreement alone would “deprive a party of the 

right to be confronted by appropriate pleadings, assert defenses, conduct discovery, and submit 

contested fact issues to a judge or jury”). In light of these circumstances, we hold that the trial 

court did not abuse its discretion in refusing to enforce the Agreement and render judgment 

thereon.

6

 See Mantas, 925 S.W.2d at 659. Accordingly, we overrule Francis’s first issue.

In his second issue, Francis argues that the trial court abused its discretion in

denying his motion for new trial or to modify the judgment, which rulings we review for an 

abuse of discretion. See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (motion for new trial);

Featherston v. Weller, No. 03-05-00770-CV, 2009 WL 1896072, at *3 (Tex. App.—Austin 

July 3, 2009, no pet.) (mem. op.) (motion to modify).

Besides reiterating the arguments already discussed, Francis argues that a new 

trial is required “in the interests of justice” because appellees were judicially estopped from 

“benefitting from their own inconsistency” by seeking to first enforce the Agreement but then 

litigating the merits of their summary-judgment motion. He contends that appellees thereby 

induced him to “forego” developing the merits of his opposition to summary judgment 

6 The record does not reflect that Francis thereafter sought to enforce the Agreement 

through a breach-of-contract claim or similar action.
11

(including by submitting his own evidence). However, he does not explain how any of the 

elements of judicial estoppel were met. See Harris Cnty. Hosp. Dist. v. Public Util. Comm’n, 

577 S.W.3d 370, 382–83 (Tex. App.—Austin 2019, pet. denied) (listing elements). We therefore 

conclude that the trial court did not abuse its discretion in denying the motion for new trial.

Francis next argues that the summary judgment “should have been modified”

to reflect that it was not “final and appealable” as it stated because a future order admitting 

the will to probate would constitute the “final” judgment.7 However, probate proceedings are an 

exception to the “one final judgment” rule, in that multiple judgments that are final for purposes 

of appeal can be rendered on certain discrete issues. De Ayala v. Mackie, 193 S.W.3d 575, 578

(Tex. 2006). In probate proceedings, to constitute a final, appealable order, an order need only 

“dispose[] of all parties or issues in a particular phase of the proceedings” and adjudicate a 

“substantial right.” Id. at 578–79. The summary-judgment ruling ended Francis’s challenges to 

the validity of the 2020 will and deed—and thus adjudicated a substantial right—such that the 

2020 will could be admitted to probate; it was, thus, a final and appealable ruling. See In re 

Estate of O’Neil, No. 04-11-00586-CV, 2012 WL 3776490, at *3–4 (Tex. App.—San Antonio

Aug. 31, 2012, no pet.) (mem. op.) (holding that summary judgment that finally adjudicated 

question of testamentary capacity conclusively disposed of one phase of proceedings and thus 

was final and appealable). Accordingly, the trial court did not abuse its discretion in denying 

Francis’s motion to modify the judgment.

We overrule Francis’s second issue.

7 The record reflects that such order was signed, on June 15, 2021.
12

CONCLUSION

We affirm the trial court’s orders denying Francis’s motion to approve and 

enforce the Rule 11 Agreement, denying his motion for new trial or to modify the judgment, and 

granting appellees’ summary-judgment motion.

__________________________________________

Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed

Filed: October 21, 2022