Robert Ortiz v. Andrew Collins, Tim Welsh and Jerel S. Twyman

Opinion

Motion for Rehearing Overruled; Majority and Concurring Opinions of March 9, 2006 Withdrawn and Affirmed in Part, Reversed and Remanded in Part, Substituted Majority and Concurring Opinions filed July 6, 2006

Motion for Rehearing Overruled; Majority and Concurring Opinions of March 9, 2006 Withdrawn and Affirmed in Part, Reversed and Remanded in Part, Substituted Majority and Concurring Opinions filed July 6, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01156-CV

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ROBERT ORTIZ, Appellant

V.

ANDREW COLLINS, TIM WELSH, AND JEREL S. TWYMAN, Appellees

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 02-64562

S U B S T I T U T E D   C O N C U R R I N G   O P I N I O N

I respectfully concur in the result only.

I particularly note the different path I would take to the result reached under Section III B of the majority opinion, dealing with the alleged misrepresentations during the negotiation process.

This case involves a common situation.  The parties to the litigation entered into settlement negotiations.  The parties did not reduce their negotiated agreement, if any, to writing.  Thus, the agreement, if any, was not enforceable and could not reasonably have been relied on by either side.  See Padilla v. LaFrance, 907 S.W.2d 454, 459‑61 (Tex. 1995), and its progeny.^[1]

/s/      Margaret Garner Mirabal

Senior Justice

Judgment rendered and Substituted Majority and Concurring Opinions filed July 6, 2006.

Panel consists of Justices Yates and Anderson and Senior Justice Mirabal* (Yates, J. majority).

*Senior Justice Margaret Garner Mirabal sitting by assignment.

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^[1]  I respectfully disagree with the majority opinion=s reliance on the three cases: Coastal Bank; McCamish, Martin, Brown & Loeffler; and Chapman Children=s Trust.  All three cases involved evaluative types of misrepresentations, such as: statement that the bank's history was Avery satisfactory@ (Coastal Bank, 135 S.W.3d at 842‑43); an opinion that the Trusts were guilty of tortiously interfering with the settlement agreement (Chapman, 32 S.W.3d at 443); statement about past Board actions in the process of giving guidance (McCamish, 991 S.W.2d at 789‑90).  None of these cases dealt with an alleged agreement by a party or attorney to affirmatively act, or refrain from acting, in the future, as in the present case.  If the alleged agreements in the present case had been reduced to writing, it appears the majority would still hold that reliance on the agreements would not have been justifiable because the representations of agreement took place in an adversarial context (as the representations in McCamish were in writing, 991 S.W.2d at 789).  To the contrary, I conclude these three cases are distinguishable from, and inapplicable to, the present case.