### 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 , Appellee s

FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C
- 1
- PB
- 20
- 000866 , THE HONORABLE GUY S. HER MAN , 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 Franc is M. Harrison filed an application in Travis Co unty t o p robate a 2015 will executed by his mothe r, Margaret Harrison

. A short time l ater , a ppellees Mary E. Freeh ill and Char les Gerard Harrison (two of Fran cis ’ s six siblings) filed in Williamson County an application to probate a 2020 will of Margaret

. 1 Aft er a transfer of the Williamson County proceeding to Travis County a n d attempted se t tlement, the trial court grante d appellees ’ motion for summary judgment dete rmin ing that the 2020 will is valid and dismissing Francis ’ s c laims about its invalidity

. Fran cis then perfect ed this appeal . He challenges the trial co urt ’ s orde r s (1) denyi n g h is motion to approve and enforc e a Rule 11 agreement and (2) denying his motion for a new trial or to mo dify the judgment. For th e fo llow ing reas ons, we affirm the challenged orders and the summary judgment

.

1 Because some of the parties shar e the same surnam e, for cl arity and ease we will refer to them b y thei r give n name s or their designation as app e llant or ap pellees.2 BACKGROUND Marg aret died Apri l 26, 2020 , in W illiamson County su rvived by se ven of her nine children

. In May 2020, Fran cis filed an application for probate of will and issuanc e of lett ers testam entary in Travi s County seeking to probate a 2 015 will executed by Margaret

. 2
La ter t hat s a me month , M ar y and Charles filed an applicati on for p robate of will and issuance of letters testamentary in Williamson County seeking to pro bate a 2020 wi ll executed by Mar garet. 3
S ub ject to his previously filed motion to transfer venue to Travis County , F rancis file d an answer and will contest in t he Williamson County ac tio n , alleging that the 2020 will and a re lated special warranty deed ex ecute d contemp oraneously w ere invalid because Mar garet lacked testamentary capacity and was unduly influenced

. The p arties agre ed t o transfer the Will iamson
Cou nty action to Travis County, consolidating the two probate ap p lications

.

Appellees filed an appl ication f or the appointment of a t emporary adm inistrator ,

ar guing that the pending will contest betwee n them an d F rancis nece ssit ated such ap pointment.
Fra ncis opposed the application. In July 2020, t he trial court appointed a temporary de p en d ent adminis trator , C harles O. Grigson, until the will “ contest is t erminated and an executor or

2 In t he 2 015 will , Marg aret bequeath ed all her p roperty , including her Austin home (co mpr ising the bulk of her estate) , to Francis , exce pt for her wedding ring, which she bequeathed t o M ary . I n that w ill M argaret appointed Mary as in d epend ent ex ecutor and the foll owing of her other children as respective first, second, and third cont i ngent executors : Helen Markow , Francis , and Cha rles

. C ontemporaneously with that will, Margare t purpo rtedly exe cu ted a so - ca lled “ ladybird deed ” conveyi n g her home to Fran cis but rese rving for herself a life es tate and the power to revoke the dee d

.

3 In t h e 2020 will , Mar garet b equeat hed a ll her property, i n equal shares, to her survi ving children. It appointe d C ha rles and M ary as independent co

- executo r s and Helen as c onti ngent inde pend ent executor , and it contained a no - contest clause: “ If any person should directly or indirectly obj ect to or contest the probate of this Will, the distribution or di sp osition of m y esta te, or in any manner hinder the car r ying out of the lett er and spi rit of this Will, then th at person . . . shall take nothing under this Will . . . . ”3

administrator wit h full po wer s is appoint ed. ” On November 17, 2020, Fr ancis filed an unsecured claim agains t the estate for $264,578.69 for payments he allegedly made for repairs, renovations, insura nce , and property taxes for Margaret ’ s home. Appellees objected to the clai m, con ten d ing that it was unsupported by admissible evidence and was barred by the applicable stat ute of limitations and the sta tute of frauds.

On N ovember 18, 2020, the parties mediated their dispute about the will cont est. Mary , Charle s, Francis, an d thei r resp e ctive couns e l s attended. Mary and Cha rles had obtained limited power s of attorney for three of their siblings

— Helen, Tom, and Sissy

— with res pect to any settlement they might reach with Francis

. The remaining su rviving sibling , Jos eph , was n o t
repr esente d and did no t ap pear at the mediati on . The mediation led to a Rule 11 a greement (Agreement) in the form of a series of e

- mails on No vember 18 , providing that Francis would pay $225,000 to C harles, Mary, and the three siblings they represented (the S ettlin g Parties ) i n co nsideration for the adm inis trat or ’ s convey ance of Marg aret ’ s home to Francis via a “ distribut ion deed. ” Franci s and the S ettling Parties agreed to “ execute all documen ts

nec essary to effectuate this tr ansaction ” and that, if it becam e nec e s sary to pro bate a will to effectuate t he transaction, the parties would probate the will that “ most eff icie ntly carr ies out th e terms of the agreement. ”

The Agreement further provi ded that if Francis was unable to close o n the purchase of Marga ret ’ s h om e “ within si xty (60) days of the exe cution of thi s Agre e men t, ” he would have “ an additional fifteen (15) days to v acate ” the home so that it could be sold by the administrator. If the admin istrator w ere thus required to sell th e home, he would li st it f or $385,000, a nd a ny associated costs (e.g., commis sions and closing costs) would be split between Francis paying 41 .6% and th e S ett ling Parties paying 58.4%. The re maining sale proceeds4

would b e divi ded thus: Francis would recei v e 41.6% and the Se ttl ing Pa r ties would rece ive 58.4%. The A g re ement p rovide d that the parties would execute an “ additional agreement includi ng these t erms and including full mutual releases no later than 10 days afte r the execution of this Agreement ” an d that the A greement did no t a ddress the dist ribution of tangible person al
pro perty , about which the parties could continue n egotiating and ret urn to the mediator if agreement could not be reached within ten days of execution of the A g reement. Fran cis and t he Settling Partie s never e x ecuted an a ddit ional agreement or t he referenced “ full m utual release s ” and did not return to the mediator regarding the di stribution o f personal property

.

On January 13, 2021, Mary and Charles filed t wo motions with the tr ial court: (1) a m otion t o app r ove and enf orce th e Agreement an d (2) a tradi tional and no

- evidenc e motion for summary judgm ent. In the motion to appro ve and enforce, to which they attached a copy of the Agreem ent, Mary and Charles repr esented that Jos eph was the only sibli ng “ who did n ot agree t o the terms of

” the Ag reement but t ha t Francis ’ s att orney had assured them that he would obtain Joseph ’ s signa ture because Jos eph had expre ssed his desire not to pursue “ any claim ” he had to the estate. They furthe r represented that their attor n ey had sinc e ca lled J oseph (who hung up on him) a nd sent Jo seph an e - mail seeking his signa ture to indicate his consent to the Agreement but had not received a response and w ould thus need to serve Jos eph and set a hearing on the matter o f his consen t. B e cause Franc is h ad “ suggested tha t he will not comply with the terms of the Agree ment, ” Ma ry 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 Jose p h ’ s

acce ptance of th e Agre ement , to whi ch they appended a n undated document signed by Jos eph indicating that he had “ carefully rea d the e

- mail agr eement be tween the parties to this ma tter5

dated November 18, 2020 , ” “ agree[s] to its terms, ” and “ underst and[s ] ” in ag reeing there b y that he “ will receive not hing ” f rom Margaret ’ s estate. In th eir summary -

judgment motion, Mary and Char les argued that their attached
summary - j udgment evidence established as a m atter of law that the 2020 will and dee d w ere

exec uted wit h all required f o rmalities a nd t hat Francis ’ s c lai ms that both documents are invalid should be dismissed. In th e no - evidence portion of t he motion , they argued th at Francis had

no evidence to support his claim s that the two 2 020 documents are inva lid beca use of undue
inf l uence or fo r “ o ther [unsp e cified ] reasons ” or that Margaret lacked capacity to execute th em. On February 5, Francis fil e d a response to t he summary

- judgment motion making the sole argument that the mot ion was “ mooted by ” the Ag reement. T he only evidence h e attached was the A greement ; an e - mail from appellees ’ counsel indicating that Joseph had n ot acce pted the Agreement pr ior to January 29 , 2021 ; and J oseph ’ s undated acceptance thereof

.

On February 12, Francis filed a respo ns e to the mo tion to approve a n d en fo rce
t he A gr eement re questi ng the court to approve the Agreement and to “ authorize the administrator to permit [Fra n cis] to purchase the Property as provided ” b y the A g reement. That same day, the trial court conducted a h earing on b oth motions, at w h ich M ar y an d Ch arles argue d that Francis ’ s recent filings “ suggested that [he doesn ’ t] want to abide by the ” Agreement a nd, if he did not, the y were “ go ing to move forward with [their] motion for summary judgment. ” They
argu ed that the s ixty

- day deadline for Francis to close on pu rc hasi ng the home had expired

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

. Because Francis did not comply with either deadline, they asked the c ourt to issue an ord er requiring Franc i s to move o ut i m mediately so th at Grigson could sell the home pursuant to the6

Agreement , as th e “ real estate m arket in Austin is on fire, ” and “ every single day that we lose that [Francis] is in that house is money th at ’ s lost out of thi s estate. ”

Throu g h counsel, Fran cis argued that the deadlines referenced in the A g reement did not start running until January 29, 2021, when Joseph indicated his acceptance of it. Alter natively, he argued that the deadlines would not be gi n running unti l the tri al court si g n ed an orde r ap prov in g the Agreemen t, as Grigson would not be able to provide a distribution deed t o Francis witho ut the court ’ s approval. Mary and Charles responded that they no longer wished to enforce the A g reement in light of Fran cis ’ s understa nding o f when the dead lines would run and his seeking the now - expired option of purchasing the home , and they proceed ed to argue the merits of thei r summary -

judgment motion. Brian Thompson , the a ttorney for Mary and Charles, testi fied tha t at the mediation, th e mediator t old him that Francis h ad been pre

- ap prov ed for a loan . Ho wever, despite Thompson ’ s requests then and since, Thompson explained that Francis never provided him documentation thereof

. Instead, Fran cis pr ovided him a loan a pplication dated Ja nua r y 12,
20 21

— five days before the s i xty

- day deadline f or Francis ’ s closing on the home purchase

— and had unsuccessfully attempted to ob tain the Settlin g Parties ’ agreement to an extension of t he cl osing deadline. Tho mpson also testifie d that prior to the me d iation, Fra nci s ’ s former counsel told Thompson that Francis had obtained a power o f attorney for Joseph

— the “ only sibling that kind of lines up on Francis ’ [s] side ”

— and that h e and his clients we re “ always under the
i mpression that J oseph . . . was okay w i th whatever

. ”

At the conclusio n of the hearing, the trial cou rt orally denied th e motion to enforce and approve the Agreement and granted the motion for summar y judgment and signed two orders o n February 26 re fl ecting those rulin gs. The order granting a ppellees ’ s u mma ry -7

judgment m otio n decreed that the 2020 will and deed are valid and were executed “ with all required formalitie s. ” It fu rther stated, “ This judgment is intended to be final and appe al able and is intended to dispose of all pa rties and issu e s related t o th e va lidity of the Will and the Deed. ”

On March 29, Francis filed a moti on for new t rial or to modify the jud gment , which the trial court denied May 1 0

. Francis perfected this appeal from the summary ju dgment ,

com plaining of the trial co u rt ’ s refusa l to enforce and appr ove the A g reement and deny ing his motion for new trial or to modify the judgment

. Although Francis appeals from the summary

judgment order, h e does not chal lenge the merits of the s ummary - judgment ruling

.
D ISCUSSION In his first is su e, F ran cis con tends that the tria l court abused its discre t ion in refu sing to appr ove and enfor ce the Agreement. 4 We review a trial court ’ s decisi on regarding enforcement of a Rule 11 agre ement for an abuse of discre tion. Mantas v. Fifth Circuit Court of App eal s , 925 S.W.2d 656, 659 (Te x. 1996) (per curiam) ; In f initi Hotel Grp., LLC v . Patel , No. 03

- 09

- 00601

- CV, 2011 WL 1344605, at * 6 (Tex. App.

— Au stin Apr. 8, 2011, pet. denied ) (mem. op.)

. A trial court abuses i ts discretion if it acts arbitrarily o r un reas ona bly, without reference to guiding rules or principl e s , or fails to analyze or apply the law correctly. Iliff v. Iliff , 339 S.W.3d 74, 78 (T ex. 2011)

.

To be enforceable, any agreement between parties touching on a pending suit must be in writing , sign ed, and entered into th e cou rt ’ s record. Tex. R. Civ. P. 11

. “ Ru le 11 agreements ha ve long been re c og nized as an effective tool for finalizing settlements by objective manifestation so that the agreements do not themselves become sources of con trov er s y. ”

4 Althou gh it was appellees who file d the motion to approve and enforce the Agre em ent, Fra ncis aske d for t he same relief in his re sponse to t he motion a nd o rally at the he aring

.8

Innovative Vision Sols., L LC v. Kempner , N o. 01

- 20

- 00 1 95

- CV , 2022 WL 868130, at * 6 (Tex. App.

— Houston [1 st Dist.] Mar. 24, 2022, no pet. ) (mem. op.) ( internal citations omitted). A Rule 11 settlement agreement must contain all the e ssential terms o f the settlement. Padilla v.
LaF rance , 907 S

. W. 2d 454, 460 ( T ex. 1995)

. Essential terms are t hose terms that the parties

“ would reasonably regard as vitally important elements of their bargain, ” including payment terms and re lease of claims. Kempner , 20 22 WL 868130, at *6 (citatio ns o mitted). Courts
construe Ru l e 11 agreem ents as they do other c ontracts. I d. A party has the right to revoke its con sent to a Rule 11 agreement at any time before the ren dition of judgment , s ee Quintero v. Jim Walter Home s, Inc

. , 654 S.W.2d 442, 444 (T ex. 1983) , and consent must e x ist at the time judgment is re ndered, s ee Exxon Mobil Corp. v. Valence Operating Co. , 174 S.W.3d 303, 309 (Tex. App.

— Ho uston [1 st Dist.] 2005, pet. denied )

. While a court is not precluded from en fo rcin g a Rule 11 agreement once it has been repudiated by o n e of the pa rties, an action to enforce a Rule 11 agreement to which consent has been withdrawn must be based on prop er pleading and proof

. See Padilla , 907 S.W.2d at 462 ; Quintero , 654 S.W.2d at 4 44

. Thus , while t he gener al rule is that a co urt has a “ m i nisterial d uty ” to enforce a v alid Rule 11 agreement by renderin g judgment thereon , see Exxo nMobil Corp. , 174 S.W.3d at 309 , when one party to s uch agreement has revoked its consent thereto prior t o

re ndition of judgment, t he other party may th en seek to e nforce t he agreement only unde r contract law and based up on proper pleading and proo f , see Padill a , 907 S.W.2d at 46 1

– 62 ; see also Quintero , 654 S.W.2d at 444 (noting that court ’ s power to render a g ree d judgment depends

on “ substance of the consent ” at ti m e judgment is rend ered and tha t party has right to revoke

con sent at any time before re ndition of judgment).9 Such an action to enforce the Rule 11 agreement as a contract, rather than as an
agr ee d ju dgment , requires full resolution of the surrounding fa c ts and circ umstances , and t he validity of a settlement agreement may not be determined without proper pleadings

. Quintero , 654 S.W.2 d at 444 ( reversing judgment of dismissal of case on joint mot io n to dismi ss where one
par ty no longer consented at tim e j u dgment was rendered and rem and ing cause without pr ejudice to other party ’ s right to attempt to plead and prove enforceable settlement agreement)

. Thus, the party seeking enforcement of a Rule 11 a gr ee ment w hen the other pa rty has revoked its consent

“ mus t p ursue a s eparate breach

- o f

- c ontract 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 co nsen t to the
A g reement, we conclude that the trial court c o uld reasona bly have determin ed that the validity of the A g reement could not be determined without proper pleadings

. 5 The Agreement required Franci s to (1) close o n the purchase of the home ( to i nc l ude paying the S e ttling Part ies $225,000)
within sixty days of th e Ag reement ’ s execution or , failing that, (2) move out of the home wit hin fifteen days after such date to allow the administrator to list th e home for sale at $385,000

. At the hearing , th e p art ies expr essed competing u nderstandings of when they considered the A greement

“ executed ” and thus from which date Francis ’ s c losi ng deadline began running. F r ancis argued that his sixty

- day closing d eadline did not start running until January 29 at t h e ear liest, when Joseph in dicated his acceptance of the Agreement , and th at he still had the right to purchase the home . Appelle es , on the other hand, argued that the clock on the closing deadline began running on Novem ber 1 8 and that Francis ’ s purchase o p tion had ex pired

. I n this context, the

5 At the hearing t he trial c ourt expressed its concern that t here was no present agreement among the parties: “ I ’ m not enforcing that agr eement. The parties I don ’ t believe ult im atel y had an agreement. And they ’ re in dispute abo ut t he agreement so I ’ m not going to enforce it. ”10

trial court reasonably could h ave determined that it would be improper to render judgment on the
A g reement as a “ min isterial duty

. ” See Kempner , 2022 WL 868130, at * 7

– 8 ( “ [W] hen

. . . a settlement dispute arises w hi le t he trial court has jurisdiction ove r the underl ying action, a clai m to enforce the settlement agreement should be asserted through an amended pleading , ” and the trial court ca nnot resolve such dispute in a “ m inis terial ” manner . ) ; Batjet, Inc. v . Jack so n , 1 61 S.W.3d 242, 245 (Tex. App.

— T exar k ana 2005, n o pet.) ( holdi ng th at, when se ttlement dispute ar ises, ren dering judgment on settlement agreement alone would “ depr ive a party of the right to be confronted by appropriate pleadings, assert defenses, con du ct d iscovery, and submit contested fact issues to a judge or jury ” )

. In light of these circumstan ces, w e hold that the trial

c ourt did not abuse its discretion in refusing to enforce the Agreement and render judgm ent thereon

. 6 See Mantas , 925 S.W.2d at 6 59

. Accor dingly, we overrule Francis ’ s first issue

.

I n hi s second i ssue, Francis argues that the tri al co urt abused its di scretion in denying his motion fo r new trial or to modify the jud gment , which rulings w e review for an abuse of discretion. See I n re R.R. , 209 S.W.3d 112, 114 (Tex. 200 6 ) ( motion f or new tri a l) ; Feat hers ton v. W

elle r , No. 03

- 05

- 00770

- CV , 2009 WL 1896072, at * 3 (Tex . App.

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

.

Besi des reiterating the arguments already d iscu s se d, F rancis argues that a new trial is r e quired “ in the in terests of ju stice ” because appellees were judicially estopped from

“ bene fitting from their own inconsistency ” by seeking to first enforce the Agre ement but then litiga ting the merits of their sum m ar y - ju dgment motion. He c ontends that ap p ellees th er eby
in duced him to “ forego ” developing the merits of his opposition to summary ju dgment

6 The record doe s not reflect that Francis thereafter sought to enforce the Agreement through a breach

- of

- cont ract claim or similar a ction.11

(including by submitting his own evidence)

. However, he does not e xplain how any of the elements of ju d icial estop pe l we r e met

. See Harris Cnty. Hosp. Dis t . v. Pu bl ic Util. Comm ’ n , 577 S.W.3d 370, 382

– 83 (Tex. App.

— Austin 2019, pet. d en ied ) (listi ng elements )

. We therefore conclude that t he trial court did not abuse it s discretion in denying the motion for new tr ial

.

Fr ancis next argues that the summary j udgment “ sh ould h ave bee n modi fied ”
to reflect that it was not “ final and appealable ” as it stated because a future order admitting the will to probate would constitu te the “ final ” judgment. 7 However, probate pro ce edin gs are an exception to the “ one fin a l judgment ” rule , in that mult ip le judgments that are final for purposes of appeal can be rendered on certain dis crete issues

. De Ayala v. Mackie , 193 S.W.3d 575, 578 (Tex. 2006 )

. In probate proceedings, to c o nst it ute a final, appealable order, a n ord er need only

“ disp ose[] of al l pa rties o r issues in a particular phase of the proceedings ” and adjudicate a

“ subst antial right. ” Id. at 578

– 79

. The su mmary - judgment ruling ended Francis ’ s challe nges to the valid it y of the 2020 will and deed

— and thus adjudi c ated a subs tantial right

— s uch 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.

— S a n A n t onio Aug. 31, 2012, no pet .) (mem. op.) ( holding th at summary judg ment that finally adjudica ted question of testamentary capacity conclusively disp osed of one phase o f proceedings and thus was final and appealable ). Accordingly, t he trial court did no t ab use its discretion in denying Francis ’ s motion to m odify the judgm ent.

W e overrule Francis ’ s second issue.

7 The record re flec t s that such order was signe d , on J une 15, 202 1.12 CONCLUSION We affirm the tria l court ’ s order s denying Francis ’ s motion to approve and enforce the Rule 11 Agre ement , denying his motion f or new t rial or to modify the judgment , and
gra n ting app ell ees ’ summar y - ju dgme nt m otion.

_____________ _____________________________ Thomas J. B ak er , Jus ti ce B efore Just ice s Goodwin, Baker, and T riana
Affir m ed Filed: October 21 , 2022