Affirmed as Modified and Memorandum Opinion filed November 3, 2011

In The

Fourteenth Court of Appeals

NO. 14-09-00495-CV

MARY RIGGINS, Appellant

V.

RONALD E. HILL, LINDA C. HILL, WEST COLUMBIA PLAZA LTD. AND 

LUCKY LINDY DEVELOPMENT, Appellees

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 35931

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

Appellant Mary Riggins appeals the grant of summary judgment in favor of the 

appellees, Ronald E. Hill, Linda C. Hill, West Columbia Plaza Ltd., and Lucky Lindy 

Development, ordering the enforcement of a Rule 11 settlement agreement. Riggins 

raises eight issues, contending the trial court erred or abused its discretion in (1) refusing 

to lift an order of abatement; (2) treating the parties differently regarding rulings on 

summary judgment motions in light of the abatement order; (3) failing to enter Riggins’s 

requested motion for enforcement; (4) granting the appellees’ enforcement of the Rule 11 

agreement, when consent had been withdrawn; (5) failing and refusing to enter a default 

judgment against Angela Stewart; (6) enforcing the Rule 11 agreement as a contract 
2

when the requisite mental capacity was lacking; (7) granting the appellees prospective 

attorney’s fees in the event that Riggins sought an appeal; and (8) granting summary 

judgment on the affirmative defense of release. We affirm as modified.

I

Mary Riggins originally sued the appellees, Angela Stewart, and others,1alleging 

that she was denied appropriate accommodations on the basis of her handicap or 

disabling condition while she was a tenant in appellees’ apartment complex, the West 

Columbia Plaza Apartments. Specifically, Riggins alleges that in February 2003, her 

physician sent a notice to the apartment complex stating that she needed a downstairs 

apartment because she had gout and surgery on both knees. Riggins claims that she was 

denied her requested accommodations, which resulted in her falling down the stairs on 

June 3, 2005, injuring her knees and back. 

Riggins also alleges that Angela Stewart was the manager of the apartment 

complex at the time of her fall, and that certain actions of Angela Stewart were made 

with the intent of targeting her for eviction. As a result, Riggins alleged retaliatory 

eviction, violations of the Fair Housing Act, negligence, and various other causes of 

action against the appellees and the other defendants.

In August 2006, the trial court granted a motion for abatement after Riggins’s

counsel represented during a hearing that Riggins was ―substantially unable to assist [her] 

in this case,‖ and explained that Riggins was medicated, missed almost every 

appointment counsel made with her, and was unable to provide information or documents 

to counsel. The trial court temporarily abated the case until ten days from the date the 

trial court, Riggins’s counsel, and the appellees’ counsel received a letter from Riggins’s 

physician indicating that Riggins was capable of assisting her attorney with the 

prosecution of her lawsuit.

 

1 The other defendants, Patrick Hennessey, Janet D. Hennessey, and Red River Development 

Corporation, moved for and were granted a summary judgment in their favor and are not parties to this 

appeal.
3

Shortly after that, Riggins moved to enforce an alleged Rule 11 agreement and 

motion to set aside the abatement. Riggins alleged that a January 25, 2008 letter with 

interlineations by Riggins’ counsel and a fax cover sheet of the same date constituted a 

settlement agreement. The appellees’ counsel denied there was ever a Rule 11 agreement 

to settle, pointing to the handwritten terms added by Riggins’s counsel, to which he never 

agreed. The trial court found there was no Rule 11 agreement to settle and signed an

order denying Riggins’s motions.

Several months later, the parties executed an agreement to settle, dated May 27, 

2008. Because of the allegations concerning Riggins’s mental condition, the appellees 

also requested that the trial court appoint a guardian ad litem. On June 11, 2008, the trial 

court agreed to this request and appointed a guardian ad litem. 

On September 30, 2008, Riggins filed a motion for a no-answer default judgment 

as to Angela Stewart. The trial court held a hearing on the motion the same day it was 

filed and received testimony from Riggins concerning her alleged damages, but did not 

sign a judgment that day.2

In October 2008, Riggins’s counsel formally notified the appellees’ counsel that 

Riggins was withdrawing her agreement to settle. The appellees moved for leave to file 

(1) a motion to enforce settlement agreement, (2) a counterclaim for breach of contract, 

and (3) a motion for summary judgment, with the motion to enforce and counterclaim. 

The trial court granted the motion for leave to file the motions and counterclaim, and 

accepted the motion to enforce settlement agreement and counterclaim already on file. 

The appellees then filed a separate motion for summary judgment requesting specific 

performance of the May 27 Rule 11 agreement and damages.

 

2 At the hearing, Riggins testified to damages of close to $280,000. Although the appellees’ 

counsel was identified as appearing in the reporter’s record of the default judgment hearing, the record 

does not reflect any recorded comments, statements, or cross-examination by the appellees’ counsel. 

Moreover, Riggins’ hand-written motion did not indicate that a copy was forwarded to the appellees. And, 

at the November hearing on appellees’ motion for summary judgment, the appellees’ counsel indicated 

that he was unaware of the default-judgment proceeding and objected that he was not provided with a 

copy of the motion as required under Rule 21 of Texas Rules of Civil Procedure.
4

In November 2008, the trial court held a hearing on the appellees’ counterclaim 

for breach of contract and motion for summary judgment. At the hearing, the trial court

announced that it would not sign the order for default judgment against Angela Stewart.

On February 2, 2009, the trial court signed an order granting the appellees’ motion for 

summary judgment. Riggins appeals from this order.

II

In her first issue, Riggins contends that the trial court abused its discretion in 

refusing to lift the abatement order, which was entered as a consequence of Riggins’s 

inability to assist her counsel and thereby complete discovery. The written order signed 

on October 10, 2006, provides in part:

(2) The case is completely abated including the application of prejudgment

interest, if any, until ten (10) days from the date the Court, Plaintiff’s 

counsel or defense counsel all receive an anticipated letter from Plaintiff’s 

physician indicating Plaintiff is capable of adequately assisting her counsel 

with the prosecution of this suit including without limitation presenting for 

deposition and answering written discovery, all with assistance of counsel;

. . .

(4) The hearing on Plaintiff’s Motion for Summary Judgment set by

Plaintiff for October 17, 2006 at 1:00 p.m. is cancelled.

Riggins contends that the abatement order precluded her ability to obtain 

discovery or to move forward with her motion for summary judgment. Further, Riggins 

asserts that the trial court’s order effectively precluded her from engaging in discovery 

before the appellees completed their discovery. She points to the following provision of 

the docket-control order:

There will be no discovery propounded upon any Defendant by Plaintiff 

until after Plaintiff has fully responded to the written discovery propounded 

to Plaintiff as of May 10, 2006 and the Plaintiff’s deposition has been 

completed. Plaintiff’s deposition will not be taken until she has been 

released by her physician to be in competent mental and physical condition

to present herself for deposition represented by counsel. . . . Plaintiff’s 

deposition will be completed within 22 days after her physician releases her 

for deposition. 
5

Riggins contends that, among other things, her deposition testimony was not needed to 

complete discovery because she had testified during the county-court-at-law trial 

concerning her eviction, damages, and fall, and the appellees could have used this 

previous testimony in lieu of deposition, but the trial court never ruled on her request.

In response, the appellees contend the order of abatement is not a final, appealable 

judgment. See Harper v. Welchem, Inc., 799 S.W.2d 492, 495–96 (Tex. App.—Houston 

[14th Dist.] 1990, no writ) (holding that an order that merely sustains a plea in abatement 

is interlocutory and not appealable). But this argument presumes Riggins is complaining 

about an ongoing abatement order. We understand Riggins’s argument to be that the trial 

court failed to lift the abatement order at her request, not that the trial court entered it in 

the first place and never lifted it. Moreover, the record shows that the abatement order 

was lifted before the trial court entertained the appellees’ motion for summary judgment 

and signed a final judgment.

Indeed, although Riggins contends the trial court entered the abatement order sua 

sponte, the record shows that, at the August 2006 hearing, Riggins’s counsel represented 

that Riggins was ―substantially unable to assist [her] in this case‖ due to her emotional 

issues. When the trial court inquired whether counsel wanted to abate the case while 

these issues were being resolved, Riggins’s counsel responded, ―I see that as the only 

viable solution at this time.‖ 3The appellees did not oppose the motion. On October 10, 

2006, the trial court signed an order reflecting that it had ―considered an extemporaneous 

Motion for Abatement by plaintiff’s attorney‖ and granted the abatement until ten days 

after the court and parties received a letter from Riggins’s physician indicating that 

Riggins was ―capable of adequately assisting her counsel with the prosecution of this suit 

including without limitation presenting for deposition and answering written discovery‖ 

with counsel’s assistance. 

 

3 Thus, to the extent Riggins may be contending the trial court abused its discretion in granting 

the abatement order, Riggins invited any error because she agreed to the order and therefore may not 

complain about it on appeal. See Metzger v. Sebek, 892 S.W.2d 20, 42 (Tex. App.—Houston [1st Dist.] 

1994, writ denied) (―A party cannot encourage the court to take a particular action and then complain on 

appeal that the court erred by taking it.‖).
6

In November 2007, Riggins’s psychiatrist forwarded a letter in which he opined 

that Riggins would be able to participate in mediation and was ―currently capable of 

providing her deposition.‖ Even after this letter was provided, however, Riggins’s 

counsel continued to maintain that Riggins was not able to be deposed. For example, in a 

hearing in January 2008, Riggins’s counsel stated that she did not think that Riggins ―can 

actually give her deposition.‖ At the same time, however, Riggins’s counsel sought to 

move for summary judgment. Appellees’ counsel maintained, and the trial court agreed, 

that once Riggins was able, appellees were entitled to take Riggins’s deposition before 

the court considered Riggins’s summary judgment motion or the case proceeded to trial. 

The trial court stated that the abatement would continue until either Riggins could be 

presented for deposition or a guardianship was filed on her behalf, and the court refused 

to lift the abatement or entertain Riggins’s summary-judgment motion at that time.

In early October 2008, the appellees filed the May 27 letter with the court. Shortly 

after that, the appellees filed their ―Motion for Leave to File Motion to Enforce 

Settlement Agreement and Counterclaim for Breach of Contract and Motion for 

Summary Judgment‖ and ―Motion to Enforce Settlement Agreement and Counterclaim 

for Breach of Contract‖ in which they sought ―permission and leave of Court from the 

Court’s prior Orders‖ to file their motions and counterclaim. The trial court granted this 

motion by order dated October 31, 2008, effectively lifting the abatement. That same day, 

the appellees served Riggins with their motion for summary judgment. The trial court 

signed the final judgment granting the appellees’ motion for summary judgment and 

motion to enforce settlement agreement on February 2, 2009.

Thus, the record shows that the abatement order was lifted before the trial court 

granted the appellees’ motion for summary judgment and signed the final judgment. For 

this reason, we do not consider the abatement order to be a continuing, interlocutory 

order over which we have no jurisdiction. Instead, we view this issue as a complaint that 

the trial court failed to lift the abatement order when Riggins requested it. We review the 

court’s orders granting or denying abatement for abuse of discretion. Tex. Mut. Ins. Co v. 
7

Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 479 (Tex. App.—Houston [14th Dist.] 2006, pet. 

denied). To prevail on this issue, Riggins must demonstrate not only that the trial court

abused its discretion, but also that the alleged abuse of discretion probably caused the 

rendition of an improper judgment. See Tex. R. App. P. 44.1(a).

Riggins maintains that the continued abatement prevented her from conducting 

discovery, pursuing a motion for summary judgment, and reaching a satisfactory 

resolution of the lawsuit. The record reflects, however, that Riggins sought to pursue her 

discovery and present her motion for summary judgment before allowing the appellees to 

depose her concerning her claims against them. The trial court abated the case until such 

time as Riggins could assist in the prosecution of her case, including giving her 

deposition and answering discovery. The trial court’s orders demonstrate a reasonable 

attempt to balance Riggins’s emotional and other problems with the appellees’ need for 

meaningful discovery, including taking the plaintiff’s deposition. We conclude that, on 

this record, the trial court did not abuse its discretion in refusing to lift the abatement 

order when Riggins requested that it do so. Further, although Riggins contends her 

deposition was unnecessary because the appellees could have looked to the transcript 

from the forcible entry and detainer lawsuit in the county court for the factual details of 

her claims, Riggins has made no showing that the transcript would have adequately 

substituted for her deposition or that she could not otherwise be required to appear for 

deposition in her own lawsuit before proceeding with her discovery and summaryjudgment motion. 

Because Riggins has failed to demonstrate reversible error by the trial court, we 

overrule her first issue.

III

In her second issue, Riggins contends that the trial court treated the parties 

differently regarding the parties’ summary-judgment motions in light of the abatement 

order. Specifically, Riggins complains that because the appellees objected to the trial 

court entertaining Riggins’s motion for summary judgment due to the abatement order
8

that was in effect, it was an abuse of discretion for the trial court to entertain the 

appellees’ motion for summary judgment seeking to enforce a settlement, ―given that the 

abatement order had not been lifted.‖ Riggins asserts, in a cursory manner, that the trial 

court’s actions violated the Fourteenth Amendment of the United States Constitution and 

the equal-protection and equal-rights provisions of the Texas Constitution. But as 

discussed in Riggins’ first issue, the trial court did lift the abatement order before ruling 

on the appellees’ motions. Therefore, the trial court did not engage in disparate treatment 

as Riggins suggests. We overrule her second issue.

IV

In her third issue, Riggins contends the trial court abused its discretion by failing 

to enter Riggins’s requested motion for enforcement of a purported Rule 11 settlement 

agreement dated January 25, 2008. Riggins cites Padilla v. LaFrance, 907 S.W.2d 454, 

460 (Tex. 1995), for the proposition that a series of correspondence was sufficient to 

constitute an agreement in writing satisfying Rule 11. Riggins further contends that, 

because no basis existed for the court’s failure to enforce the alleged settlement 

agreement, the trial court had a ministerial duty to enforce the agreement. See EZ Pawn 

Corp. v. Mancias, 934 S.W.2d 87, 91 (Tex. 1996). In response, the appellees contend 

Riggins’ purported agreement fails to satisfy the procedural and substantive requirements 

of Rule 11.

Rule 11 of the Texas Rules of Civil Procedure, titled ―Agreements to be in 

Writing,‖ provides:

Unless otherwise provided in these rules, 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. An agreement satisfies the requirements of Rule 11 if it is (1) in 

writing, (2) signed, and (3) filed with the papers as part of the record.4Tex. R. Civ. P. 11; 

 

4 Among other things, the appellees complain that the January 25 document fails to satisfy Rule 

11’s requirements because it was not ―filed with the papers as part of the record.‖ The clerk’s record does 
9

Padilla, 907 S.W.2d at 459. To satisfy the ―in writing‖ component of Rule 11, the 

contract principles that are used in determining whether a ―writing‖ satisfies the statute of 

frauds apply equally to Rule 11 agreements. See Padilla, 907 S.W.2d at 460. Thus, ―there

must be a written memorandum which is complete within itself in every material detail, 

and which contains all of the essential elements of the agreement, so that the contract can

be ascertained from the writings without resorting to oral testimony.‖ Id. (quoting Cohen 

v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978)). The written memorandum, however, 

need not be contained in one document. Id.

The document Riggins appears to rely on is a letter dated January 25, 2008, from 

the appellees’ counsel to Riggins, which begins as follows: ―This letter will confirm an 

agreement of the parties. Please sign below and return to me today if this accurately sets 

forth our agreement.‖ Riggins asserts that ―[a] few changes were noted to the agreement,‖ 

she signed it, and then faxed it back to the appellees’ counsel. The document reflects that 

the changes appear to relate to the existence of any outstanding liens and the addition of a 

requirement that appellees keep certain details of Riggins’s tenancy confidential. The 

document does not reflect, however, that the appellees’ counsel agreed to, initialed, or

otherwise approved of the additions. Moreover, at the March 7 hearing on Riggins’s

motion to enforce, the appellees’ counsel adamantly denied the parties had a Rule 11

agreement and pointed out that there was no document showing that he had agreed to the 

additional terms. The trial court denied the motion to enforce.

Although Riggins relies on Padilla, we find that case distinguishable. In Padilla,

the plaintiffs’ attorney, Steidley, made a demand for policy limits on April 10, and 

required payment by 5:00 on April 23. 907 S.W.2d at 456. After trying unsuccessfully to 

contact Steidley by the settlement date, the insurance adjuster, Bradshaw, faxed a letter 

 

not include any exhibits to Riggins’ motion to enforce. Instead, the record reflects a notation that the 

pleadings and exhibits from the hearing on March 7, 2008, were ―sealed by the court.‖ Riggins contends 

that she submitted the documents she relies on at the hearing, but they are not a part of the record. Riggins 

also states that inaccuracies in the court reporter’s preparation of the record were the subject of a 

contempt hearing against the court reporter and the full impact of these inaccuracies was not known until 

the preparation of her brief. In any event, we will assume for purposes of argument that a copy of the 

January 25 document containing Riggins’ counsel’s interlineations and additions was filed with the court.
10

on April 23 confirming the settlement agreement and noting that the ―only thing holding 

up resolution of this is the hospital lien.‖ Id. That same day, Steidley responded that ―this 

letter will confirm that the above referenced matter has been settled,‖ and ―[T]his office 

will [agree] to take care of the lien . . . .‖ Id. Bradshaw received Steidley’s confirmation 

on the morning of April 24, and defendant’s attorney, Chandler, tendered the checks a 

week later. Id. However, Steidley refused to accept the checks and claimed that the 

defendant had not timely accepted the April 10 offer. Id. at 456–57. The supreme court 

held that the writings constituted a binding settlement agreement, reasoning that, even 

though payment had not been tendered by the settlement deadline, Steidley’s 

confirmation that ―the above referenced matter has been settled‖ indicated that Steidley 

had agreed to a modification of the terms of acceptance set out in the original letter. Id. at 

460. Further, all the material terms of the agreement—Padilla’s agreement to pay 

$40,000 in settlement of all claims and the LaFrances’ agreement to pay the hospital lien 

out of those proceeds—were reflected in the series of letters. Id. at 460–61.

Unlike in Padilla, there is no indication that the appellees confirmed their 

agreement to Riggins’s modification of the terms of the original letter or that the 

modifications were not material. Indeed, at the March 7 hearing, Riggins’s counsel stated 

that the issue concerning the disclosure of Riggins’s information was preventing the 

parties from moving forward with the settlement. And, in her motion to enforce, she 

asserted that ―[t]he parties can not agree regarding terms of confidentiality to be afforded 

[Riggins] regarding her tenancy‖ and acknowledged that the provision she added ―alters 

the terms of settlement.‖ Thus, there was no written memorandum ―complete within itself

in every material detail‖ and which contained all of the essential elements of the

agreement. See id. at 460. On this record, the trial court did not abuse its discretion in 

determining that the January 25 letter with Riggins’ counsel’s additions did not constitute 

a valid Rule 11 agreement.
11

V

In her fourth, sixth, and eighth issues, Riggins contends that the trial court abused 

its discretion by enforcing the appellees’ May 27 Rule 11 agreement when consent had 

been withdrawn, enforcing the Rule 11 agreement as a contract, and granting summary 

judgment on the affirmative defense of release. Within these issues, she also contends 

that the motion for summary judgment was untimely and she lacked the requisite mental 

capacity to enter into a contract. Because these issues are interrelated, we address them 

together as necessary to resolve the appeal.

A

We begin with Riggins’ assertion that the appellees’ motions were untimely. 

Specifically, she contends that the trial court granted the motion for leave to file the 

appellees’ motion to enforce settlement and motion for summary judgment on October 31 

and held a hearing on the appellees’ motion to enforce settlement agreement and motion 

for summary judgment on November 21, 2008, denying her the three days notice 

afforded by 166a of the Texas Rules of Civil Procedure and the ―mailbox rule.‖ See 

Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (holding that when motion for 

summary judgment is served by mail, three days are added to the twenty-one-day notice 

period of the hearing prescribed by Rule 166a(c)). Riggins is correct that the trial court 

granted the appellees’ motion for leave to file its requested motions and counterclaim on 

October 31, 2008, and the appellees filed and served by mail their motion for summary 

judgment the same day. But the hearing on the motion for summary judgment was held 

on November 25, not November 21 as Riggins asserts. Therefore, the hearing on the 

appellees’ motion for summary judgment was not untimely.

B

We turn next to Riggins’ complaint that the trial court abused its discretion by 

granting the appellees’ motion to enforce the settlement agreement and the motion for 

summary judgment because Riggins had withdrawn her consent. Riggins again relies on 

Padilla and other cases for the propositions that consent must exist at the time a judgment 
12

is rendered and a party has the right to revoke its consent to a Rule 11 agreement at any 

time before the rendition of judgment. See, e.g., Padilla, 907 S.W.2d at 460; ExxonMobil 

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

2005, pet. denied). Riggins contends she withdrew her consent to the settlement in two 

letters, in addition to a formal notice that she rejected the settlement offer, which was 

filed and served on the appellees on October 24, 2008, before the trial court signed the 

final judgment. Riggins contends that because consent was withdrawn, the trial court’s 

judgment is void, and the case should be remanded for a new trial. See Quintero v. Jim 

Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983); Samples Exterminators v. 

Samples, 640 S.W.2d 873, 874–75 (Tex. 1982) (per curiam).

Riggins’s argument misapprehends the nature of the proceeding below. Although 

a trial court cannot render a valid agreed judgment absent a party’s consent at the time it 

is rendered, a trial court may, after proper notice and hearing, enforce a settlement 

agreement that complies with Rule 11 even though one party no longer consents to the 

terms of the settlement. See Padilla, 907 S.W.2d at 461; ExxonMobil Corp., 174 S.W.3d 

at 309. In such a case, the opposing party may seek to enforce the agreement under 

contract law. Mantas, 925 S.W.2d at 658; Padilla, 907 S.W.2d at 461. A claim to 

enforce a disputed settlement agreement may be raised through an amended pleading or 

counterclaim asserting breach of contract. Padilla, 907 S.W.2d at 462. 

The party seeking enforcement must pursue a separate breach-of-contract claim, 

however, 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); Padilla, 907 S.W.2d at 462; see also 

Quintero, 654 S.W.2d at 444. After proper pleading and proof, a party may obtain a 

judgment enforcing the contract under the Texas Rules of Civil Procedure through 

summary-judgment proceedings, if no fact issue exists, and by non-jury trial or jury trial, 

if a fact issue exists. Davis v. Wickham, 917 S.W.2d 414, 416 (Tex. App.—Houston 

[14th Dist.] 1996, no pet.). A trial court may render judgment on a settlement agreement 
13

when one of the parties contests his consent to be bound only by following one of these 

procedural vehicles. Id. at 416–17. 

In the present case, as discussed above, the appellees moved for leave to file three 

documents: a motion to enforce, a counterclaim for breach of contract, and a motion for 

summary judgment. The motion for leave included the motion to enforce and the 

counterclaim, and the motion for summary judgment was filed separately after the court 

granted the motion for leave. As explained above, the motion for summary judgment, 

along with the motion to enforce, was timely heard. The court’s final judgment recites the 

following: ―The Court having heard the argument of counsel concerning the Summary 

Judgment is of the opinion there is no genuine issue as to any material facts and that 

Defendants’ Motion for Summary Judgment/Motion to Enforce the Settlement 

Agreement is herein GRANTED.‖ The record shows that the appellees properly sought to 

enforce the settlement agreement after Riggins withdrew consent through a counterclaim 

and motion for summary judgment asserting breach of contract, and the trial court, 

finding no genuine issue of material fact, granted the motion for summary judgment. 

Therefore, the trial court did not abuse its discretion by rendering an agreed judgment 

after Riggins withdrew consent to the settlement. We overrule Riggins’s fourth issue.

C

In her sixth issue, apparently recognizing the procedural posture of the case below, 

Riggins contends the trial court abused its discretion by enforcing the Rule 11 agreement 

as a contract. Riggins contends that (1) she lacked the requisite mental capacity to sign 

the agreement, and (2) the appellees failed to establish breach of contract as a matter of 

law.

1

As an initial matter, Riggins contends that she lacked the mental capacity to enter 

into a binding Rule 11 settlement agreement based on the appointment of the guardian ad 

litem. Riggins did not raise this issue in her response to the motion for summary 

judgment, but asserted it in a motion for new trial. As Riggins points out, in the May 27 
14

Rule 11 agreement, both parties agreed to the appointment of a guardian ad litem by the 

court ―to review the proposed settlement on behalf of [Riggins]‖ and advise the court 

whether the settlement should be approved. At the summary-judgment hearing, the 

guardian ad litem stated that she believed the amount of the settlement was fair to the 

client and recommended that the court approve the settlement. Riggins contends that, 

because the trial court appointed the guardian ad litem, the court necessarily found that 

Riggins was incapacitated or incompetent and lacked the authority to enter into a Rule 11 

agreement.

Generally, the law presumes that a person possesses sufficient mental capacity to 

enter into a binding contract. Estate of Galland v. Rosenberg, 630 S.W.2d 294, 297 (Tex. 

Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.). Mere nervous tension, anxiety 

or personal problems do not amount to mental incapacity sufficient to raise a fact issue to 

defeat a summary-judgment motion. Schmaltz, v. Walder, 566 S.W.2d 81, 84 (Tex. Civ. 

App.—Corpus Christi 1978, writ ref’d n.r.e.); see Mandell & Wright v. Thomas, 441 

S.W.2d 841, 845 (Tex. 1969). Further, the party alleging mental incompetence has the 

burden of proving her contention. Hall v. Hall, 352 S.W.2d 765, 767 (Tex. Civ. App.—

Houston 1962, no writ). Here, Riggins presented no medical testimony or other evidence 

of mental incapacity below, and on appeal offers only conclusory statements that are 

insufficient to invalidate the summary judgment. Further, the record shows that the trial 

court did not appoint a guardian ad litem sua sponte, but at the appellees’ request, 

consistent with the parties’ agreement in the May 27 letter that a guardian ad litem be 

appointed for the sole purpose of reviewing and approving the settlement on Riggins’s 

behalf.

Moreover, the Rule 11 agreement was signed by Riggins’s counsel, not Riggins. 

The handwritten notation ―Reviewed: Mary Riggins‖ appears below the signature block 

where her counsel signed, signifying her agreement on Riggins’s behalf. The attorneyclient relationship is an agency relationship, and the attorney’s acts and omissions within 

the scope of his or her employment are regarded as the client’s acts. Gavenda v. Strata 
15

Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986). Thus, an attorney may execute an 

enforceable Rule 11 agreement on her client’s behalf. See In re R.B., 225 S.W.3d 798, 

803 (Tex. App.—Fort Worth 2007, no pet.). On these facts, we decline to conclude that 

Riggins’s unsupported assertions concerning her competency to agree to the Rule 11 

agreement require the reversal of the trial court’s judgment.

2

Turning to the summary-judgment proceedings, Riggins contends that (1) the 

appellees failed to show how, if at all, Riggins breached the contract; (2) the appellees 

failed to comply with the rules of civil procedure concerning timely notice; (3) Riggins 

was not afforded pretrial discovery concerning the breach of contract claim; and (4) there 

were disputed issues of fact concerning whether it was Riggins or the appellees who 

actually breached the contract and whether a binding agreement had ever been reached. 

Riggins also asserts other issues of fact existed.

As previously discussed, however, the record reflects that the appellees filed a 

counterclaim alleging breach of contract and a motion for summary judgment requesting, 

among other things, specific performance of the May 27 agreement. In the motion for 

summary judgment, the appellees recited the terms of the Rule 11 agreement, asserted 

that Riggins breached the agreement, and requested that the trial court enforce the 

agreement. See Tex. R. Civ. P. 11; Padilla, 907 S.W.2d at 462. A hearing on the motion 

was timely set. Riggins filed both a response and a supplemental response.

Additionally, the summary-judgment evidence attached to the motion for summary 

judgment established that an enforceable settlement agreement existed as a matter of law. 

The May 27 letter agreement was in writing, it was signed by both Riggins’s counsel and 

the appellees’ counsel, and it was separately filed with the trial court and attached to the 

motion for summary judgment. Thus, it satisfied the requirements of Rule 11. See 

Padilla, 907 S.W.2d at 461. The appellees also attached Riggins’s formal notice of 

rejection of the settlement offer, which included as attachments two earlier letters 

informing the appellees’ counsel that Riggins was withdrawing her consent to settle and 
16

was no longer interesting in settling the case. A breach of contract occurs when a party 

fails or refuses to perform on a promise. XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 632 

(Tex. App.—Houston [14th Dist.] 2006, pet. denied). Thus, the appellees demonstrated 

that the parties had a valid Rule 11 agreement and that Riggins breached the agreement 

by withdrawing her consent and refusing to perform. 

In her brief, Riggins asserts in a conclusory fashion that fact issues existed 

precluding summary judgment. But Riggins does not cite or refer to her either response 

or supplemental response for supporting argument or evidence. Riggins’s arguments in 

these responses concern primarily the timeliness of the motion for summary judgment. 

She also asserts in the summary-judgment responses that the parties had settled the case 

as reflected in the January 25 letter (which Riggins had earlier unsuccessfully argued 

constituted a Rule 11 settlement agreement), but continued to have disagreements over 

the terms of the settlement.5Further, although Riggins contends that she was denied 

pretrial discovery concerning the claim, she does not identify what pretrial discovery she 

would have sought or what defense it would have supported. 

As discussed above, however, the trial court correctly determined that the January 

25 letter did not constitute a valid Rule 11 agreement because Riggins added additional, 

material terms which the appellees did not accept. In contrast, the May 25 letter contains 

no unilateral revisions by one party and encompasses the material terms of the agreement. 

As to that agreement, Riggins acknowledges in her responses that she withdrew her 

consent to settle. Riggins’s responses do not raise a fact issue concerning her breach of 

the agreement. We therefore overrule her sixth issue.

D

In Riggins’s eighth issue, she contends the trial court erred in granting summary 

judgment on the affirmative defense of release. In this issue, she repeats the argument 

that the Rule 11 agreement was voidable because she lacked the capacity to agree to it. 

 

5

In fact, Riggins’ original response to the motion for summary judgment was filed October 24, 

2008, several days before the appellees filed their motion for summary judgment. Only Riggins’s 

supplemental response was filed after the appellees filed their motion. 
17

We have already considered and rejected this argument for the reasons explained above. 

We therefore overrule her eighth issue.

VI

In her fifth issue, Riggins contends that the trial court abused its discretion by 

failing to enter a default judgment against Angela Stewart. Riggins alleges that although 

Stewart was served with citation ―on or about November 30, 2005,‖ Stewart failed to 

answer. Riggins further states that Stewart was not represented by the appellees’ attorney 

or any other attorney.

The record reflects that Riggins’s counsel filed a handwritten motion for default 

judgment and presented Riggins to testify concerning her damages on the same day. At 

the hearing, Riggins testified to damages of close to $280,000.6 No exhibits were 

offered. Riggins apparently gave no notice of her motion for default judgment or that the 

motion would be heard that day to the appellees’ counsel. In her brief, Riggins explains 

that other matters were already set for hearing that day, but the appellees’ counsel had 

indicated to the court that he was not going to appear due to ―another legal obligation.‖ 

Riggins also provided the trial court with a certificate of last known address and 

nonmilitary affidavit. The trial court listened to Riggins’s testimony, but took the matter 

under advisement and did not sign a judgment that day.

Nearly two months later, on November 25, 2008, at the conclusion of the hearing 

on the appellees’ counterclaim and default judgment, Riggins’s counsel approached the 

court and requested that the default judgment be signed against Stewart. The appellees’ 

counsel responded that he was unaware of the default-judgment proceedings, and 

objected that Riggins failed to serve notice of her motion to the appellees as required 

under Rule 21 of the Texas Rules of Civil Procedure. The appellees’ counsel also argued 

that the May 27 Rule 11 agreement included Angela Stewart, because Riggins alleged 

that Stewart was the manager of the West Columbia Plaza Apartments. The Rule 11 

 

6 We note that Riggins’s assertion that she is entitled to a default judgment for roughly this 

amount based solely on her testimony is inconsistent with her repeated assertion that she was incompetent 

to enter into any settlement agreements. 
18

agreement provides that it ―applies to all persons and entities that are in any way related 

to any of my clients, defendants, herein, their agents, servants, representative and 

assigns,‖

7

and further provides that it would ―entirely end all matters asserted or that 

could have been asserted by your client regarding her residency and all matters related 

thereto at the West Columbia Apartments regardless of whether it was actually brought in 

this particular case, including without limitation all complaints and administrative 

proceedings.‖ The trial court agreed that the Rule 11 agreement encompassed Riggins’ 

claims against Angela Stewart, and so denied the default judgment.

Riggins contends that the trial court abused its discretion in refusing to enter a 

default judgment because she obtained the default judgment before the trial court ruled 

on the appellees’ motion to enforce the settlement agreement. We disagree. The 

operative date is not the date the appellees obtained a judgment enforcing the Rule 11 

agreement, but the date the parties executed the Rule 11 settlement agreement—May 27, 

2008—which was well before Riggins moved for default judgment against Stewart. See 

Coale v. Scott, 331 S.W.3d 829, 831–32 (Tex. App.—Amarillo 2011, no pet.) (stating 

that Rule 11 agreement ―becomes a contract when executed, not when the trial court 

attempts to enforce it‖). The Rule 11 agreement unambiguously settles the claims 

Riggins alleged against Stewart. We therefore conclude that the trial court did not abuse 

its discretion in failing to enter a default judgment against Stewart.

VII

Finally, in her seventh issue, Riggins contends that the trial court abused its 

discretion by granting the appellees prospective attorney’s fees in the event that she 

sought an appeal. The trial court’s judgment awarded the appellees $3,000 in attorney’s 

fees, $4,000 if Riggins appealed to the court of appeals, and $3,500 if Riggins appealed 

to the Supreme Court of Texas. Riggins maintains that the trial court’s unconditional 

award of attorney’s fees punishes her for taking a successful appeal. The appellees deny 

 

7 The Rule 11 agreement was filed with the court on October 6, 2008, a few days after the defaultjudgment hearing. The trial judge’s comments indicate that he did not recall seeing the Rule 11 agreement 

before the November 25 hearing.
19

that the trial court abused its discretion, but acknowledge that the trial court’s judgment 

may be reformed to reflect that any award of appellate attorney’s fees is conditioned upon 

a successful appeal to this court and the supreme court.

A trial court may not penalize a party for taking a successful appeal. Hoefker v. 

Elgohary, 248 S.W.3d 326, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.). An 

award of appellate attorney’s fees must be conditioned on the appellant’s unsuccessful 

appeal. Id. Therefore, the trial court should have awarded attorney’s fees conditioned 

upon the appellees’ success on appeal. Daugherty v. Jacobs, 187 S.W.3d 607, 620 (Tex.

App.—Houston [14th Dist.] 2006, no pet.). But, an unconditional award of appellate 

attorney’s fees does not require reversal. Id. Instead, we may modify the judgment to 

correct the award. Id. We therefore sustain Riggins’s seventh issue and modify the trial 

court’s judgment to condition the award of appellate attorney’s fees on the appellees’ 

success on appeal.

* * *

We sustain Riggins’s seventh issue and modify the trial court’s judgment to 

condition the award of appellate attorney’s fees on the appellees’ success on appeal. We 

affirm the judgment as modified.

/s/ Jeffrey V. Brown

Justice

Panel consists of Justices Brown, Boyce, and McCally