Court of Appeals Tenth Appellate District of Texas
10-23-00145-CV
Blue Angel Weimaraner Rescue, Inc., Appellant
v.
Jacob Ayars and Brandy Tillman, Appellees
On appeal from the County Court at Law No. 2 of Johnson County, Texas Judge F. Steven McClure, presiding Trial Court Cause No. CC-C20210183
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
Blue Angel Weimaraner Rescue, Inc., appeals from the trial court’s order
granting Jacob Ayars’s and Brandy Tillman’s motion for summary judgment.
We will affirm.
Factual and Procedural Background
Blue Angel is a nonprofit organization that rescues unwanted dogs and
places them with permanent homes. In March 2021, Ayars and Tillman agreed to foster one of Blue Angel’s dogs, Oliver, and they planned to permanently
adopt the dog. At some point, the relationship between Blue Angel and Ayars
and Tillman deteriorated, and Blue Angel demanded that they return Oliver.
After Ayars and Tillman did not return Oliver, Blue Angel filed suit against
them 1 for conversion, theft, and breach of contract. Ayars and Tillman filed a
counterclaim for breach of contract alleging that they had entered into a valid
oral contract to permanently adopt Oliver and that Blue Angel had breached
the contract by demanding return of the dog and by trying to repossess the dog.
In January 2022, the parties entered into settlement negotiations. Pat
Austin, the President of Blue Angel, through Randy Turner, the corporate
attorney for Blue Angel, authorized DaNae Couch, who was retained to
represent Blue Angel on this matter, to make the following settlement offer:
They pay $7,700 and sign [Blue Angel’s] adoption contract . . . , They sign non-disclosure and non-disparagement agreements, Each side is responsible for their own attorney’s fees, Both sides non-suit with prejudice, They keep Oliver.
On January 13, 2022, Couch sent an email to Ayars’s and Tillman’s counsel
noting she was authorized to make the following settlement offer:
1. $8,500 payable to [Blue Angel]; 2. Executed Adoption Agreement for Oliver between [Blue Angel] and [Ayars and Tillman][;]
1 Blue Angel also filed suit against Schellie Ayars, but the record shows that she was dismissed from
the suit.
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 2 3. Settlement Agreement between [Blue Angel, Ayars, and Tillman] with mutual releases, confidentiality, and non- disparagement; 4. Return of the crate; 5. Non-suit with prejudice, with all parties bearing their own attorney’s fees.
Counsel for Ayars and Tillman responded to Couch with a counteroffer
including all of Blue Angel’s proposed terms except it made an offer for $5,000
payable to Blue Angel. On January 17, 2022, Couch sent the following email
to counsel for Ayars and Tillman:
This email is being sent to confirm our settlement agreement as follows:
1. $6,500 payable to [Blue Angel] within 30 days; 2. Executed Adoption Agreement for Oliver between [Blue Angel] and [Ayars and Tillman][;] 3. Settlement Agreement between [Blue Angel, Ayars, and Tillman] with mutual releases, confidentiality, and non- disparagement; 4. Return of the crate; 5. Non-suit with prejudice with all parties bearing their own attorney’s fees.
Counsel for Ayars and Tillman responded that same day noting they were
“settled on those terms.”
On January 31, 2022, Ayars and Tillman filed a Notice of Settlement in
the trial court that included the terms of the agreement as set out in the
January 17 email and also included the email exchange between respective
counsel. Blue Angel filed a response arguing that the parties did not have a
finalized settlement agreement but rather “an agreement-to-agree” because
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 3 they had not accepted the terms of the adoption agreement. Blue Angel stated
in its response that the offer to settle was conditioned on Ayars and Tillman
executing an Adoption Agreement for Oliver and that Austin understood that
they would sign Blue Angel’s Standard Adoption Agreement without
modification. Because Ayars and Tillman presented a modified Adoption
Agreement, Blue Angel maintained that there was no settlement between the
parties. Blue Angel terminated Couch and retained new counsel to represent
them in this matter.
Ayars and Tillman replied to Blue Angel’s response and stated that the
settlement agreement was not an “agreement-to-agree” because the parties
had agreed to all material terms, and there was no mutual mistake. Ayars and
Tillman then filed a Motion to Enforce the Rule 11 Settlement requesting the
trial court to declare that the January 17 Agreement was binding on the
parties. Blue Angel responded that the Rule 11 Agreement was not enforceable
as a written contract. After a hearing on March 30, 2022, the trial court signed
an order granting Ayars’s and Tillman’s Motion to Enforce the Rule 11
Settlement Agreement. The trial court determined that the January 17
Agreement settled all of the claims and disputes of the parties. The Order
directed the parties to “work through the language of an Adoption Agreement
and a Settlement Agreement” on or before May 1, 2022. The parties were
ordered to jointly file the Adoption Agreement and the Settlement Agreement
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 4 with the trial court. However, the parties were unable to agree on the terms
of the Adoption Agreement.
Ayars and Tillman filed a supplemental counterclaim to include breach
of the valid and enforceable contract (the January 17 Settlement Agreement).
Ayars and Tillman filed a Motion for Summary Judgment on their breach of
contract counterclaim. They argued that there was no genuine issue of
material fact because the trial court had already approved and confirmed that
the parties entered into a valid Rule 11 Settlement Agreement. Blue Angel
responded that summary judgment was not appropriate because there was a
fact issue over the terms of the Adoption Agreement. Blue Angel also claimed
that it had recently discovered that Couch extended terms of the settlement
agreement that Austin did not authorize. According to Austin, she only
authorized use of Blue Angel’s Standard Adoption Agreement. Couch extended
an offer for an executed Adoption Agreement without specifying that only the
Blue Angel Standard Adoption Agreement was acceptable. Austin would not
agree to any substantial modifications of the Blue Angel Standard Adoption
Agreement. Blue Angel maintained that the January 17 Agreement was
voidable because of the unilateral mistake by its former counsel.
The trial court granted Ayars’s and Tillman’s Motion for Summary
Judgment and awarded Ayars and Tillman attorney’s fees. This appeal
followed.
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 5 Issues One and Two
In its first and second issues, Blue Angel argues that because there was
no valid Settlement Agreement, the trial court erred by granting Ayars’s and
Tillman’s motion for summary judgment and motion to enforce the Rule 11
Settlement Agreement.
A. Standard of Review and Applicable Law
1. Summary Judgment
We review a trial court’s order granting summary judgment de novo; in
doing so, we indulge every reasonable inference in favor of the nonmovant,
resolve any doubts in favor of the nonmovant, and take as true all evidence
favorable to the nonmovant. See Cmty. Health Sys. Pro. Servs. Corp. v.
Hansen, 525 S.W.3d 671, 680 (Tex. 2017). In a traditional summary judgment
motion, the movant must state specific grounds, and if the movant conclusively
negates at least one essential element of a cause of action or conclusively
establishes all the elements of an affirmative defense, the movant is entitled
to summary judgment. TEX. R. CIV. P. 166a(c); see KCM Fin. LLC v. Bradshaw,
457 S.W.3d 70, 79 (Tex. 2015). When reviewing a traditional motion for
summary judgment, we must determine whether the movant met its burden
to establish that no genuine issue of material fact exists, and that the movant
is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 6 “If the order granting the summary judgment does not specify the
grounds upon which judgment was rendered, we must affirm the summary
judgment if any of the grounds in the summary judgment motion is
meritorious.” Palacio v. AON Props., Inc., 110 S.W.3d 493, 497 (Tex. App.—
Waco 2003, no pet.) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000)).
2. Enforcement of a Settlement Agreement
When one party withdraws consent before judgment is entered on a
written settlement agreement, the agreement may still be enforced as a
contract. Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex. 2009); Padilla
v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); see TEX. CIV. PRAC. & REM. CODE
ANN. § 154.071(a) (“If the parties reach a settlement and execute a written
agreement disposing of the dispute, the agreement is enforceable in the same
manner as any other written contract.”); TEX. R. CIV. P. 11.
When consent is withdrawn, the party seeking enforcement of the
settlement agreement must pursue a separate claim for breach of contract.
Ford Motor Co., 279 S.W.3d at 663; Padilla, 907 S.W.2d at 461. The action
must be based on proper pleading and proof. Ford Motor Co., 279 S.W.3d at
663; Padilla, 907 S.W.2d at 462. A motion seeking enforcement of the
settlement agreement is a sufficient pleading to allow the trial court to render
judgment enforcing the settlement, but only if the motion satisfies the general
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 7 purpose of pleadings, which is to give the other party fair notice of the claim
and the relief sought. Twist v. McAllen Nat’l Bank, 248 S.W.3d 351, 361 (Tex.
App.—Corpus Christi–Edinburg 2007, orig. proceeding [mand. denied]);
Neasbitt v. Warren, 105 S.W.3d 113, 117 (Tex. App.—Fort Worth 2003, no pet.).
B. Discussion
Blue Angel specifically argues that no valid settlement ever existed
because (1) no form of adoption agreement other than the Blue Angel Standard
Adoption Agreement was authorized, (2) the Rule 11 Agreement was an
unenforceable “agreement to agree,” (3) the Rule 11 Agreement fails the
Statute of Frauds, (4) the Rule 11 agreement lacks a meeting of the minds, and
(5) unilateral mistake in communicating the settlement offer prevented
proceeding with the settlement.
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.’” Knapp Med. Ctr. v. De La
Garza, 238 S.W.3d 767, 768 (Tex. 2007) (per curiam) (quoting Kennedy v. Hyde,
682 S.W.2d 525, 530 (Tex. 1984)). Courts construe Rule 11 Settlement
Agreements just as they would any contract. See Padilla, 907 S.W.2d at 460;
Trudy's Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex. App.—
Austin 2010, no pet.).
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 8 The intent of the parties to be bound is an essential element of an
enforceable contract. See Foreca, S.A. v. GRD Dev. Co., 758 S.W.2d 744, 746
(Tex. 1988); MKM Eng’rs v. Guzder, 476 S.W.3d 770, 778 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). A Rule 11 Settlement Agreement must contain all
the essential terms of the settlement. Padilla, 907 S.W.2d at 460. Essential
or material terms of a Rule 11 Settlement Agreement include payment terms
and release of claims. Id. at 460–61; MKM Eng’rs, 476 S.W.3d at 778.
Essential terms are those terms that the parties “would reasonably regard as
vitally important elements of their bargain.” MKM Eng’rs, 476 S.W.3d at 778.
We must first determine the material and essential terms of the
Settlement Agreement. The parties were negotiating the transfer of ownership
of Oliver from Blue Angel to Ayars and Tillman. Blue Angel and Ayars and
Tillman are not in dispute that they reached an agreement for (1) Ayars and
Tillman to pay Blue Angel $6,500, (2) a settlement agreement with mutual
releases, confidentiality, and non-disparagement, (3) return of the crate, and
(4) non-suit with prejudice with all parties bearing their own attorney’s fees.
All Blue Angel’s arguments are based upon the parties’ agreement for an
executed Adoption Agreement for Oliver.
There is no dispute that Blue Angel was in agreement to transfer
ownership of Oliver to Ayars and Tillman. An executed Adoption Agreement
served as the documentation for that transfer. Therefore, the essential terms
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 9 of the agreement for the transfer of Oliver included an Adoption Agreement
and a payment. See Padilla, 907 S.W.2d at 460–61. Ayars and Tillman argue,
and we agree, that the settlement agreement contained the material and
essential terms for the transfer of Oliver— an executed Adoption Agreement,
the payment to Blue Angel, and the release of claims. See MKM Eng’rs, 476
S.W.3d at 778.
While the Settlement Agreement referenced an “Executed Adoption
Agreement” without providing the specific terms, a binding settlement may
exist when parties agree upon some terms, understanding them to be an
agreement, and leave other terms to be made later. Id.; Gen. Metal Fabricating
Corp. v. Stergiou, 438 S.W.3d 737, 744 (Tex. App.—Houston [1st Dist.] 2014,
no pet.). Courts have often “enforced settlement agreements that contemplate
additional documentation or leave open certain terms for future negotiation.”
Stergiou, 438 S.W.3d at 747–48.
In this case, the agreement specifically stated the parties “are settled on
those terms.” The terms included an executed Adoption Agreement. A binding
settlement may exist when parties agree upon some terms, understanding
them to be an agreement, and leave other terms to be made later. Id. at 744.
Although Austin maintains that she never authorized any form of an Adoption
Agreement other than Blue Angel’s Standard Adoption Agreement, her
correspondence in no way indicates that that term is non-negotiable. There is
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 10 no language indicating that the January 17 Settlement Agreement was merely
intended as a preliminary, non-binding agreement. See MKM Eng’rs, 476
S.W.3d at 779. The January 17 Settlement Agreement was not rendered
unenforceable because the parties were to agree on the language of the
executed Adoption Agreement at a later time. See Stergiou, 438 S.W.3d at 744.
Blue Angel also maintains that the January 17 Settlement Agreement
did not satisfy the statute of frauds, citing Padilla as authority. 907 S.W.2d at
460. Padilla stated that Rule 11 Agreements must be in writing and, in
determining what was necessary to satisfy the “in writing” requirement, the
Court analogized to the statute of frauds requirement for writings. Id. The
Court noted that to satisfy the statute of frauds, “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)). As previously stated, courts have often “enforced settlement
agreements that contemplate additional documentation or leave open certain
terms for future negotiation.” Stergiou, 438 S.W.3d at 747–48. Therefore, we
do not agree that the January 17 Settlement Agreement fails to satisfy the
statute of frauds.
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 11 Blue Angel also argues that the January 17 Settlement Agreement is not
enforceable because there was no “meeting of the minds.” “‘Meeting of the
minds’ describes the mutual understanding and assent to the agreement
regarding the subject matter and the essential terms of the contract.”
Potcinske v. McDonald Prop. Invs., Ltd., 245 S.W.3d 526, 530 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). As previously stated, there was an
agreement regarding the material and essential terms of the contract for the
transfer of ownership of Oliver to Ayars and Tillman—an executed Adoption
Agreement, the payment to Blue Angel, and the release of claims. Therefore,
there was a “meeting of the minds.”
Blue Angel finally argues that the January 17 Settlement Agreement
should be set aside based upon unilateral mistake. Blue Angel contends that
Couch, their original trial counsel, made a mistake in communicating the
settlement offer. Austin maintains that she never authorized any Adoption
Agreement other that Blue Angel’s Standard Adoption Agreement and that she
would never have agreed to any modifications of the essential provisions of that
standard agreement. According to Austin, she was not aware that Couch had
altered the terms of her initial offer to include an executed Adoption
Agreement rather than the Blue Angel Standard Adoption Agreement until
after the trial court ruled on Ayars’s and Tillman’s motion to enforce the
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 12 agreement. Blue Angel insists that it is entitled to equitable relief because of
the mistake in communicating the offer.
Equitable relief will be granted against a unilateral mistake when the
conditions of remediable mistake are present. James T. Taylor & Son, Inc. v.
Arlington Indep. Sch. Dist., 160 Tex. 617, 620, 335 S.W.2d 371, 373 (1960).
These conditions generally are:
(1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable;
(2) the mistake relates to a material feature of the contract;
(3) the mistake must have been made regardless of the exercise of ordinary care; and
(4) the parties can be placed in status quo in the equity sense, i.e., rescission must not result in prejudice to the other party except for the loss of his bargain.
Id.
The attorney-client relationship is an agency relationship. Gavenda v.
Strata Energy, Inc., 705 S.W.2d 690, 693 (Tex. 1986). The attorney’s acts and
omissions within the scope of his or her employment are regarded as the
client’s acts; the attorney’s negligence is attributed to the client. Id. Turner,
as Blue Angel’s corporate counsel, communicated its settlement offer to Couch.
Couch, as retained attorney for Blue Angel, had authority to enter into a
settlement agreement with Ayars and Tillman. Because Couch was an agent
for Blue Angel, her actions were attributable to Blue Angel. See id. Turner
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 13 was copied on Couch’s settlement offer to Ayars and Tillman that required only
an executed Adoption Agreement rather than Blue Angel’s Standard Adoption
Agreement. Turner should have been aware of Couch’s offer for an executed
Adoption Agreement. There is nothing in the record to suggest that Austin or
Turner made clear to Couch that Blue Angel would only agree to Blue Angel’s
Standard Adoption Agreement. Therefore, we cannot conclude that Blue Angel
is entitled to equitable relief based upon unilateral mistake.
We hold that the January 17 Settlement Agreement was a valid and
enforceable Rule 11 Agreement. Thus, the trial court did not err by granting
Ayars’s and Tillman’s motion to enforce the agreement and motion for
summary judgment. We overrule the first and second issues.
Issue Three
In the third issue, Blue Angel argues that the trial court erred by
awarding appellate attorney’s fees that were not contingent on a successful
appeal. In both the Order granting Ayars’s and Tillman’s motion for summary
judgment and the Order granting the motion for enforcement of the Rule 11
Agreement, the trial court awarded Ayars and Tillman a specific sum of
attorney’s fees should (1) any party appeal this ruling to the Court of Appeals,
(2) either party file a Petition for Review to the Texas Supreme Court, (3) the
Texas Supreme Court request full briefing, and (4) the Texas Supreme Court
grant oral arguments. None of the awards were conditioned on Ayars’s and
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 14 Tillman’s success on appeal. Ayars and Tillman concede that the trial court’s
award of appellate attorney’s fees should be contingent on success on appeal.
Appellate attorney’s fees must be predicated on success in the appellate
process because a party may not be penalized for successfully appealing.
Spiller v. Spiller, 901 S.W.2d 553, 560 (Tex. App.—San Antonio 1995, writ
denied) (citing King Optical v. Automatic Data Processing of Dallas, Inc., 542
S.W.2d 213, 218 (Tex. Civ. App.—Waco 1976, writ ref'd n.r.e.)). Therefore, it
is implicit in a court’s judgment that the award of appellate attorney’s fees is
conditioned on a successful appeal. Id. Although the trial court’s award of
attorney’s fees before us does not condition the award of attorney’s fees on
appeal, we conclude that the award implicitly requires success in order to
recover the attorney’s fees. See id. We find no error in the trial court’s award
of appellate attorney’s fees and overrule Blue Angel’s third issue.
Conclusion
We affirm the trial court’s order.
MATT JOHNSON Chief Justice
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 15 OPINION DELIVERED and FILED: May 1, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06
Blue Angel Weimaraner Rescue, Inc. v. Ayars Page 16