NO. 05-11-00791-CV ACCEPTED 225EFJ016728843 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 15 P3:06 Lisa Matz CLERK IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS BRENDA D. TIME, Appellant, v. MICHAEL A. BURSTEIN, Appellee On Appeal from the 303 rd District Court, Ballas County Trial Court No. 06-07726 Honorable Denise Garcia, Presiding Judge APPELLEE S BRIEF Respectfully submitted by, GEORGANNA L. SIMPSON SBN 18400965 GEORGANNA L. SIMPSON, P.C. 1349 Empire Central Woodview Tower, Ste. 600 Dallas, Texas 75247 Phone: 214-905-3739 Fax: 214-905-3799 REQUEST FOR ORAL ARGUMENT AT COURT S DISCRETION ATTORNEY FOR APPELLEE MICHAEL A. BURSTEIN
TABLE OF CONTENTS Statement Regarding Oral Argument... iii Index of Authorities... iv Abbreviations and Record References... vi Statement of the Case... vi Reply Issues Presented for Review... vii APPELLEE S BRIEF 1. STATEMENT OF FACTS... 1 II. SUMMARY OF THE ARGUMENT... 5 III. ARGUMENT... 5 A. STANDARD OF REVIEW ABUSE OF DISCRETION... 5 1. Judgments on mediated settlement agreements are reviewed for an abuse of discretion... 5 2. Although the parties stipulated to certain facts in open court, this is not an agreed case pursuant to Rule of Civil Procedure 263... 5 B. REPLY ISSUE ONE... 7 The trial court did not err when it held that the parties had entered into a valid and enforceable MSA as of 9:30 a.m. on October 13, 2010, when Burstein s attorney signed the MSA. 1. If a mediated settlement agreement meets the requirements of the Texas Family Code, a party is entitled to judgment on the mediated settlement agreement... 7 APPELLEE S BRIEF Page i
2. Because the parties complied with the Section 153.0071(d) s requirements, Time could not withdraw her consent from the agreement once Burstein s attorney signed the agreement and communicated to Time Burstein s acceptance of the terms... 8 3. Burstein communicated his acceptance of the MSA before Time revoked her consent to the MSA... 9 PRAYER... 14 Certificate of Service... 15 APPELLEE S BRIEF Page ii
STATEMENT REGARDING ORAL ARGUMENT Appellee has only requested oral argument because Appellant has requested same. Appellee, however, does not believe that oral argument is necessary in this matter as the law in this area is well settled and would not aid the Court in making its determination. Oral argument will significantly add to the cost of this appeal and will further delay its resolution. APPELLEE S BRIEF Page iii
INDEX OF AUTHORITIES Case Law: 1. Advantage Physical Therapy, Inc. v. Cruse... 10, 11 165 S.W.3d 21 (Tex. App. Houston [14th Dist.] 2005, no pet.). 2. Alvarez v. Reiser, 958 S.W.2d 232 (Tex. App. Eastland 1997, pet. denied)... 8 3. Amer. Nat l Ins. Co. v. Warnock, 114 S.W.2d 1161 (Tex. 1938)... 12 4. Angelou v. African Overseas Union... 10 33 S.W.3d 269 (Tex. App. Houston [14th Dist.] 2000, no pet.). 5. Boyd v. Boyd, 67 S.W.3d 398 (Tex. App. Fort Worth 2002, no pet.)... 8, 9, 11 6. Chubb Lloyds Ins. Co. of Texas v. Andrew s Restoration, Inc.... 10 323 S.W.3d 564 (Tex. App. Dallas 2010, pet. granted). 7. Cayan v. Cayan... 9 38 S.W.3d 161 (Tex. App. Houston [14th Dist.] 2000, pet. denied) 8. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985)... 5 9. Effel v. McGarry, 339 S.W.3d 789 (Tex. App. Dallas 2011, pet. denied)... 10 10. Haase v. Glazner, 62 S.W.3d 795 (Tex. 2001)... 12, 14 11. Hill v. Rich, 522 S.W.2d 597 (Tex. Civ. App. Austin 1975, writ ref d n.r.e.)... 12 12. In re Circone, 122 S.W.3d 403 (Tex. App. Texarkana 2003, no pet.)... 8 13. In re Kasschau... 8 11 S.W.3d 305 (Tex. App. Houston [14th Dist.] 1999, no pet.). 14. In re Robison, 335 S.W.3d 776 (Tex. App. Amarillo 2011, no pet.)... 12 APPELLEE S BRIEF Page iv
15. Lucas v. Coomer... 12 No. 02-09-00152-CV, 2010 WL 5118023 (Tex. App Fort Worth, Dec. 16, 2010) (mem. op.). 16. Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995)... 12, 13, 14 17. Peacock v. Harrison... 10 189 S.W.2d 500 (Tex. Civ. App. Austin 1945, writ dism d). 18. Perry v. Aetna Life Ins. Co. of Conn.... 6 380 S.W.2d 868 (Tex. Civ. App. Tyler 1964, writ ref d n.r.e.). 19. R.H. v. Smith, 339 S.W.3d 756 (Tex. App. Dallas 2011, no pet.)... 5 20. Roman Catholic Diocese of Dallas v. County of Dallas Tax Collector... 6 228 S.W.3d 475 (Tex. App. Dallas 2007, no pet.). 21. Trevino & Gonzalez Co. v. R. F. Muller Co.... 6 949 S.W.2d 39 (Tex. App. San Antonio 1997, no writ). 22. Wiley v. Bertelsen, 770 S.W.2d 878 (Tex. App. Texarkana 1989, no writ)... 10 Statutes: 1. Tex. Civ. Prac. & Rem. Code Ann. 154.071... 8 2. Tex. Fam. Code Ann. 153.0071... 7, 8, 9, 11, 12, 14 Rules: 1. Tex. R. Civ. P. 11... 12 2. Tex. R. Civ. P. 263... 5-6 APPELLEE S BRIEF Page v
ABBREVIATIONS AND RECORD REFERENCES Abbreviations: 1. Appellant Brenda D. Time shall be referred to as Time or Appellant. 2. Appellee Michael A. Burstein shall be referred to as Burstein or Appellee. 3. Time and Bursteing shall be referred to collectively as the Parties. Record References: 1. The one-volume Clerk s Record will be referred to as CR and will be cited by page(s) CR. 2. The one-volume Reporter s Records will be referred to as RR and will be cited by page(s) RR. STATEMENT OF THE CASE Nature of the Case: Proceedings in Trial Court: Trial Court Disposition: The underlying case involves a modification of child support in a suit affecting a parent-child relationship. CR 61-62 The parties attended mediation during which all matters were resolved but because Appellee had to leave the mediation early, his counsel waited to sign the MSA until the following morning. Appellant contends that she withdrew her consent prior to Appellee s counsel signing the MSA. CR 79-80, RR 5-8, 14-17. The trial court found that the parties had entered into a valid and enforceable MSA and signed a judgment that comported with that MSA. RR10, 27; CR 136-50 APPELLEE S BRIEF Page vi
ISSUES PRESENTED FOR REVIEW REPLY ISSUE ONE Whether the trial court erred when it held that the parties had entered into a valid and enforceable MSA as of 9:30 a.m. on October 13, 2010, when Appellee s attorney signed the MSA. APPELLEE S BRIEF Page vii
APPELLEE S BRIEF TO THE HONORABLE JUSTICES OF THE FIFTH COURT OF APPEALS: Appellee, Michael A. Burstein ( Burstein ), submits his brief in response to Appellant Brenda D. Time s ( Time ) Brief. I. STATEMENT OF FACTS A. On October 12, 2007, the trial court signed a Final Decree of Divorce ( the Decree ), which appointed Time as the sole managing conservator with the exclusive right to designate the primary residence of the parties three children and appointed Burstein as the children s possessory conservator and ordered Burstein to pay Time $7,000 per month in child support. CR 7-59. The Decree also contained a mediation provision requiring the parties to mediate any issue related to child support before initiating a modification or enforcement action. CR 41-42. B. On August 5, 2010, Burstein filed a Petition to Modify the Parent-Child Relationship in which he requested a reduction in his child support obligation. CR 61-62. C. On September 10, 2010, Time filed her original answer in which she requested the trial court to abate the action and to order the parties to mediation pursuant to the Decree s mediation provision. CR 69-70. D. On October 12, 2010, the parties attended mediation. RR 5. Because he had to catch a plane, Burstein left the mediation early, but Burstein s counsel remained at the mediation and negotiated the remaining details of the pending settlement on Burstein s APPELLEE S BRIEF Page 1 of 15
behalf. RR 5. Before Burstein left the mediation, however, he signed the pending Mediated Settlement Agreement (MSA). CR 79; RR 5-6, 14. Burstein also made himself available by telephone to answer questions and to offer his opinion on settlement issues. CR 107. Upon completion of mediation and in the presence of Burstein s counsel, both Time and Time s counsel signed the MSA. CR 79, 107; RR 6, 14. Burstein s counsel withheld her signature from the MSA pending Burstein s approval of a final change. 1 CR 6-7. E. On the morning of October 13, 2010, the following events occurred sequentially: After receiving Burstein s approval, Burstein s counsel signed her name to a signature page to be attached to the MSA and placed the signature page in her out basket to be faxed to the mediator. RR 8, 14-15; CR 80. At approximately 9:30 a.m., Time s counsel telephoned Burstein s counsel during this conversation, Burstein s counsel informed Time s counsel that Burstein had approved the MSA and that the parties had a done deal. RR 6-7; 14-15. At approximately 12:00 noon, despite Burstein s counsel s earlier communication to Time s counsel that Burstein had agreed to the MSA, Time s counsel telephoned Burstein s counsel and informed Burstein s counsel that Time had withdrawn consent to the MSA. RR 6-7, 15. 1 Later that evening, Burstein sent his counsel a text that he approved the final version of the MSA. RR 10. APPELLEE S BRIEF Page 2 of 15
Following this exchange, Burstein s counsel immediately telephoned Time s counsel back to reiterate that Burstein had already accepted the terms of the MSA and that she had already signed the MSA i.e. before Time or Time s counsel had communicated to Burstein s counsel that Time withdrew her consent to the MSA. RR 7. 2 At approximately 1:42 pm, Burstein s counsel faxed to the mediator the signature page containing her signature. RR 17. F. On January 5, 2011, Burstein filed a Motion to Sign Order attached to which was a proposed modification order based on the MSA. CR 87-104. G. On February 7, 2011, Time filed a response and a supplemental response in opposition to the proposed modification order contending among other things that she had never approved the MSA, that she and her attorney signed the MSA only as an accommodation, and that she otherwise withdrew her consent to the MSA before it became binding. CR 105-06; 107-09. H. On March 21, 2011, Burstein filed an Amended Motion to Sign Order containing a revised proposed modification order based on the MSA. CR 110-129. I. On March 29, 2011, Time filed a second supplemental response in opposition to Burstein s revised proposed order. CR 130-31. Despite the fact that Burstein s attorney signed the MSA and communicated Burstein s approval to Time s counsel before 2 At 12:50 p.m., Time s counsel asserted he sent an email to the mediator allegedly revoking Time s consent. RR 8-9, 15. However, Time s counsel stipulated that this communication was not forwarded to Burstein or Burstein s counsel. RR 15. This alleged email communication with the mediator was not entered into evidence at the subsequent hearing. APPELLEE S BRIEF Page 3 of 15
Time withdrew her consent to the MSA, Time argued that the MSA was void essentially because the time stamps on Burstein s counsel s faxed signature page did not clearly indicated when Burstein s counsel signed the MSA. CR 130-31. J. On March 30, 2011, the trial court heard Burstein s motion to enter at which Time reasserted her objections to the revised proposed order based on the MSA. RR 1-28. The parties stipulated to the sequence of events and communications that took place between the parties and counsel beginning at the October 12, 2010 mediation through the telephone conversations between the parties counsel on October 13, 2010. RR 14-16. The parties counsel, however, disputed whether Burstein s counsel signed the MSA before or after Time s counsel advised Burstein s counsel of Time s request to make changes to the MSA. RR 7-8, 16-17. After hearing each parties position, the trial court determined Burstein s counsel signed the MSA and communicated to Time s counsel that the parties had a deal by 9:30 a.m. on October 13, 2010 before Time withdrew her consent to the MSA. RR 10. Accordingly, the trial court determined the MSA was valid and signed an order ( Order ) based on the MSA. RR 10, 27; CR 136-50. K. On April 29, 2011, Time filed a motion for new trial. CR 152-58. L. On June 8, 2011, the trial court filed its findings of fact and conclusions of law in which it specifically found the MSA was valid and enforceable. CR 162-63. M. On June 24, 2011, Time timely perfected her notice of appeal. CR 164-65. APPELLEE S BRIEF Page 4 of 15
II. SUMMARY OF THE ARGUMENT Burstein is entitled to judgment on the MSA because the parties strictly complied with Family Code Section 153.0071(d). Therefore, Time could not withdraw her consent from to the MSA. The record shows that Burstein communicated his acceptance of the MSA before Time withdrew her consent. II. ARGUMENT A. STANDARD OF REVIEW ABUSE OF DISCRETION. 1. Judgments on mediated settlement agreements are reviewed for an abuse of discretion. A trial court s judgment on a mediated settlement agreement is reviewed for an abuse of discretion. R.H. v. Smith, 339 S.W.3d 756, 765 (Tex. App. Dallas 2011, no pet.). The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). 2. Although the parties stipulated to certain facts in open court, this is not an agreed case pursuant to Rule of Civil Procedure 263. Based upon the parties stipulation to certain facts at the hearing on Burstein s motion to sign the Order, Time contends that this Court s review should be de novo. See Appellant s Brief at 5. However, Time confuses ordinary stipulated facts with an agreed case pursuant to Rule of Civil Procedure 263. Under Texas Rule of Civil Procedure 263, parties to a lawsuit may submit matters in controversy to the court upon an agreed statement of facts. APPELLEE S BRIEF Page 5 of 15
Tex. R. Civ. P. 263. In such a case, no evidence is admitted or considered by the trial court, and the trial court s decision is based upon the papers on file and the arguments of counsel. Trevino & Gonzalez Co. v. R. F. Muller Co., 949 S.W.2d 39, 41 (Tex. App. San Antonio 1997, no writ). The standard of review in a case tried on agreed stipulated facts is de novo. Roman Catholic Diocese of Dallas v. County of Dallas Tax Collector, 228 S.W.3d 475, 478 (Tex. App. Dallas 2007, no pet.). Here, this case was not submitted to the trial court upon an agreed statement of facts filed with the Clerk under Rule 263. Rather, the parties counsel stipulated to certain facts in open court. Ordinary stipulations and an agreed case differ from each other in the findings that can be made outside of the facts contained in the agreed statement. Perry v. Aetna Life Ins. Co. of Conn., 380 S.W.2d 868, 874 (Tex. Civ. App. Tyler 1964, writ ref d n.r.e.). An agreed case requires agreement on all the ultimate facts essential for determination of the particular litigation, leaving to the court only the function of deciding questions of law, and, except where there is a particular stipulation to that effect, not allowing the court to draw inferences of fact from the agreed upon facts. Id. A mere stipulation, however, does not place the ultimate facts essential to determination of the case beyond issue or beyond need for adjudication. Id. It is merely an agreement on certain particular facts, thus avoiding the need to present evidence regarding them but not eliminating the court s function of drawing inferences from the stipulated facts and others shown by evidence. Id. Here, the parties only stipulated to certain particular facts to avoid the need to present evidence on the contractual formation of the MSA and did not submit the entire case to the APPELLEE S BRIEF Page 6 of 15
trial court on an agreed statement of facts under Rule of Civil Procedure 263. Accordingly, the proper standard of review is for an abuse of discretion, not de novo as Time contends. B. REPLY ISSUE ONE. The trial court did not err when it held that the parties had entered into a valid and enforceable MSA as of 9:30 a.m. on October 13, 2010, when Burstein s attorney signed the MSA. 1. If a mediated settlement agreement meets the requirements of the Texas Family Code, a party is entitled to judgment on the mediated settlement agreement. Family Code Section 153.0071(d)-(e-1) provides the exclusive requirements for a party to obtain judgment on a mediated settlement agreement in a suit affecting the parent-child relationship. See Tex. Fam. Code Ann. 153.0071(d)-(e-1). A mediated settlement agreement is binding on the parties if the agreement: (1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party s attorney, if any, who is present at the time the agreement is signed. Tex. Fam. Code Ann. 153.0071(d). If a mediated settlement agreement meets these three requirements, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, of the Texas Rules of Civil Procedure, or another rule of law. Tex. Fam. Code Ann. 153.0071(e). Although Section 153.0071(d) requires the parties and their attorneys to sign the MSA, the statute does not specify at which time point in the mediation the APPELLEE S BRIEF Page 7 of 15
parties must sign the agreement nor does it specify in which order the parties and/or the attorney s must sign the agreement. See Tex. Fam. Code Ann. 153.0071(d)(2)-(3). Once the parties meet the statutory requirements, a trial court may not refuse to render judgment on the mediated settlement agreement unless it is illegal in nature or was procured by fraud, duress, coercion, or other dishonest means. Boyd v. Boyd, 67 S.W.3d 398, 403 (Tex. App. Fort Worth 2002, no pet.); see also In re Kasschau, 11 S.W.3d 305, 314 (Tex. App. Houston [14th Dist.] 1999, no pet.). 2. Because the parties complied with the Section 153.0071(d) s requirements, Time could not withdraw her consent from the agreement once Burstein s attorney signed the agreement and communicated to Time Burstein s acceptance of the terms. Ordinarily, settlement agreements arising from mediation are not binding where one party withdraws consent to the agreement, unless the other party successfully sues to enforce the settlement agreement as a contract that complies with rule 11 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. 154.071(a); Boyd, 67 S.W.3d at 402. However, mediated settlement agreements complying with Family Code Section 153.0071(d) become immediately binding once the requirements are met. In re Circone, 122 S.W.3d 403, 406 07 (Tex. App. Texarkana 2003, no pet.); Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App. Eastland 1997, pet. denied). Therefore, unilateral withdrawal of consent does not negate the enforceability of a mediated settlement agreement meeting the statutory requirements, and a separate suit for enforcement of a contract is not necessary. Boyd, 67 S.W.3d at 402; Alvarez, 958 S.W.2d at 234. Rather, Section 153.0071(d) creates a procedural shortcut for the enforcement of mediated settlement agreements in suits affecting the parent-child re- APPELLEE S BRIEF Page 8 of 15
lationship. See Boyd, 67 S.W.3d at 402; Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App. Houston [14th Dist.] 2000, pet. denied). Here, the record reflects that Burstein signed the MSA prior to the end of mediation on October 12, 2010. See Tex. Fam. Code 153.0071(d)(2); CR 79; RR 5-6, 14. Further, the record reflects that Time and her attorney signed the MSA in the presence of Burstein s attorney on October 12, 2010 at the end of mediation. See Tex. Fam. Code 153.0071(d)(2)- (3); CR 79, 107; RR 6, 14. The only requirement remaining on the evening of October 12, 2010 to render the MSA binding and irrevocable was for Burstein s attorney to sign the MSA. CR 6-7. Burstein s attorney chose not to sign the MSA because as Burstein s agent, she needed Burstein s final approval to the agreement. Thus, once Time, Time s attorney, and Burstein s attorney recessed from mediation on the evening of October 12, 2010, the putative MSA constituted Time s offer of a mediated settlement pending Burstein s acceptance of its terms. Once she obtained Burstein s approval to the agreement the following morning, Burstein s attorney signed the MSA shortly before 9:30 a.m. RR 8, 14-15; CR 80. Thus, by approximately 9:30 a.m. on October 13, 2010, the parties had strictly complied with Section 153.0071(d) s requirements. However, because the parties had recessed from mediation the prior night, Burstein or his attorney needed to communicate his acceptance to Time or Time s attorney in order for the MSA to become irrevocable. Accordingly, this case turns on the timing of Burstein s communication of his acceptance of the MSA an issue governed by standard contract formation principles. APPELLEE S BRIEF Page 9 of 15
3. Burstein communicated his acceptance of the MSA before Time revoked her consent to the MSA. A binding contract must have an offer, an acceptance, and mutual assent to the terms of the offer. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 25 (Tex. App. Houston [14th Dist.] 2005, no pet.); Effel v. McGarry, 339 S.W.3d 789, 792 (Tex. App. Dallas 2011, pet. denied). The determination of mutual assent, and thus offer and acceptance, is based on the objective standard of what the parties said and did, not on their subjective state of mind. Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App. Houston [14th Dist.] 2000, no pet.); Chubb Lloyds Ins. Co. of Texas v. Andrew s Restoration, Inc., 323 S.W.3d 564, 575 (Tex. App. Dallas 2010, pet. granted). In determining whether mutual assent is present, the court looks to the communications between the parties and to the acts and circumstances surrounding these communications. See Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex. App. Texarkana 1989, no writ). The offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer. See Angelou, 33 S.W.3d at 278. Although the offeror may revoke an offer, the offeror must communicate revocation before the offeree accepts the offer. Peacock v. Harrison, 189 S.W.2d 500, 503 (Tex. Civ. App. Austin 1945, writ dism d). Likewise, the offeree must accept such offer and communicate such acceptance to the offeror prior to the offeror s revocation. Cruse, 165 S.W.3d at 25-26. Here, on the evening of October 12, 2010, Time made a written offer to Burstein to settle their dispute by way of the MSA. CR 79, 107; RR 6, 14. Because Burstein was not present when the parties recessed from mediation, no acceptance and therefore no mutual assent APPELLEE S BRIEF Page 10 of 15
to the terms of the MSA occurred that evening. However, the next morning, Burstein informed his attorney that he agreed to the terms of Time s offer as set forth in the MSA. RR 6-7. Then, during a 9:30 a.m. telephone conversation, Burstein s attorney communicated to Time s attorney that Burstein had assented to the terms of the MSA and that the parties had a deal. RR 6-7; 14-15. Appellant stipulated to this fact. CR 14-15. At that moment, there existed an offer, an acceptance to the terms of the offer, and mutual assent thus the parties had a binding contract. See Cruse, 165 S.W.3d at 25. Moreover, because the parties had strictly complied with Section 153.0071(d) s requirements, the contract was enforceable as an irrevocable mediated settlement agreement i.e. Time s power to revoke was extinguished. See Tex. Fam. Code 153.0071(d)-(e); Cruse, 165 S.W.3d at 25. It was over two hours later that Time s attorney communicated to Burstein s attorney for the first time that Time had withdrawn her consent from the MSA. RR 6-7, 15. 3 However, Time had no power to withdraw her consent to the MSA after Burstein communicated his assent to the agreement. See Boyd, 67 S.W.3d at 402. Time argues that because Burstein orally communicated his assent to the MSA, rather than by delivery of his attorney s signature, that the parties never reached mutual assent before Time withdrew her consent to the MSA. See Appellant s brief at 12-13. The facts to which Time stipulated and the conduct of the parties clearly indicates the parties had mutual assented to the MSA at 9:30 a.m. prior to the time Time withdrew her consent at 12 noon. 3 At 12:50 p.m., Time s counsel asserted he sent an email to the mediator allegedly revoking Time s consent. RR 8-9, 15. However, Time s counsel stipulated that this communication was not forwarded to Burstein or Burstein s counsel. RR 15. This alleged email communication with the mediator was not entered into evidence at the March 30, 2011 hearing. APPELLEE S BRIEF Page 11 of 15
In some circumstances an acceptance in writing may be required to form a binding contract. See Hill v. Rich, 522 S.W.2d 597, 601 (Tex. Civ. App. Austin 1975, writ ref d n.r.e.) (To satisfy the Statute of Frauds, an acceptance of an offer to buy or sell land must be in writing) (citing Amer. Nat l Ins. Co. v. Warnock, 114 S.W.2d 1161, 1164 (Tex. 1938)); In re Robison, 335 S.W.3d 776, 782 (Tex. App. Amarillo 2011, no pet.) (holding that Rule 11 settlement offers and acceptances must be in writing to be enforceable). However, even if an acceptance is statutorily required to be in writing, a different method of acceptance may be effectual where the original offeror thereafter manifests his assent to the other party. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); Lucas v. Coomer, No. 02-09-00152-CV, 2010 WL 5118023 at *4 (Tex. App Fort Worth, Dec. 16, 2010) (mem. op.). The Texas Supreme Court has compared Rule 11 s writing requirement to the Statute of Frauds. 4 Padilla, 907 S.W.2d at 460. The Statute of Frauds requires certain agreements, such as the sale of real property, to be in writing and signed by the person against whom enforcement is sought. Tex. Bus. & Com. Code Ann. 26.01. The purpose of the Statute of Frauds is to prevent fraud and perjury in certain types of transactions. Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001). Even if Burstein s acceptance of Time s offer under the MSA was required to be in writing, the stipulated facts indicate Time, through her attorney, assented to Burstein s oral 4 Like Rule 11 of the Texas Rules of Civil Procedure, which requires settlement agreements to be in writing, Family Code Section 153.0071(c) requires mediated settlement agreements to be in writing. Compare Tex. Rule Civ. P. 11 with Tex. Fam. Code 153.0071(c). APPELLEE S BRIEF Page 12 of 15
acceptance of the terms of the MSA at 9:30 a.m. on October 13, 2010. See Padilla, 907 S.W.2d at 460. At the hearing on Burstein s motion to enter judgment, the parties stipulated to several facts as follows: [Time s Counsel] [Burstein s Counsel] [Time s Counsel] [Trial Court] [Time s Counsel] [Trial Court]... [Trial Court] [Time s Counsel] If [Burstein s counsel] will stipulate to those facts, that s fine. I ll stipulate. I just need a record to be able to take up on appeal. This is the way I understand it: October 12, three people signed it, the two clients and [Time s counsel]. [Burstein s counsel] was present at the mediation, she did not sign at the mediation. Uh-huh. [Burstein s counsel] says she told you at 9:30 in the morning that y all had a deal. And then [Time s counsel], you called around noon, the lunch hour, and told her that you had some changes to make. I told her that my client did not had concerns over the agreement that is signed and that she wasn t going to go forward with it... RR 14-15. Notably, Time s counsel stipulated to the fact that at approximately 9:30 a.m. on October 13, 2010, before Time withdrew her consent to the MSA at 12 noon, Burstein s counsel told Time s counsel that the parties had a deal. Time s counsel did not dispute the fact that that the parties had reached mutual assent to the terms of the MSA. Thus, Time s APPELLEE S BRIEF Page 13 of 15
attorney assented to the oral acceptance of the terms of the MSA in lieu of a written acceptance if such acceptance was required. See Padilla, 907 S.W.2d at 460. Furthermore, Time s attorney s stipulation to the fact that the parties had reached a deal satisfies Section 153.0071 s purpose of preventing fraud and perjury with respect to settlement agreements. See Padilla, 907 S.W.2d at 460; Haase, 62 S.W.3d at 799; Tex. Fam. Code 153.0071(c). Finally, Time is the person against whom Burstein seeks enforcement of the MSA. Time s signature, along with her attorney s signature, is clearly present on the MSA. CR 79. In sum, the record clearly reflects that Burstein accepted Time s offer of a mediated settlement before Time communicated that she had withdrawn her consent to the MSA. As such, Burstein was entitled to judgment on the MSA and the trial court did not abuse its discretion in entering such judgment. PRAYER WHEREFORE, PREMISES CONSIDERED, for all of the foregoing reasons alleged and briefed herein, Appellee prays that this Court affirm the trial court s March 30, 2011 Judgment. Appellee, Michael A. Burstein, further requests that this Court grant him such other relief, both general and special, at law or in equity, to which he may show himself to be justly entitled. APPELLEE S BRIEF Page 14 of 15
Respectfully submitted, GEORGANNA L. SIMPSON, P.C. 1349 Empire Central Drive Woodview Tower, Ste. 600 Dallas, Texas 75247 Phone: 214-905-3739 Fax: 214-905-3799 /s/ Georganna L. Simpson GEORGANNA L. SIMPSON Texas Bar Number 18400965 Attorney for Appellee, Michael D. Burstein CERTIFICATE OF SERVICE This is to certify that, pursuant to rule 6.3 of the Texas Rules of Appellate Procedure, a true and correct copy of the foregoing Appellee s Brief has been forwarded to: Thad Spalding The Law Offices of Marc H. Richman 304 South Record Street Dallas, Texas 75202-4738 Attorney for Appellant Brenda D. Time Via Email and Hand Delivery /s/ Georganna L. Simpson Georganna L. Simpson APPELLEE S BRIEF Page 15 of 15