in Re Tammy Fountain

Dissent issued November 7, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00704-CV
———————————
IN RE TAMMY FOUNTAIN, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

MEMORANDUM DISSENT FROM ORDER DATED NOVEMBER 7, 2013

This is an original habeas corpus proceeding arising out of an underlying

proceeding to enforce a child custody agreement pending in the trial court.

Relator, Tammy Fountain, challenged the trial court’s order of July 31,

2012, revoking its earlier suspension of her sentence for contempt for violating the
court’s temporary orders and committing her to jail.1 On December 28, 2012, this

Court issued an opinion affirming the trial court’s revocation order over my

dissent. Unknown to this Court, the parties had filed a Rule 11 Agreement in the

trial court on December 12, 2012. One of the provisions of the Rule 11 Agreement

was the agreement of real party in interest, Kathy Katcher, to drop the enforcement

proceeding once the trial court approved the settlement agreement. The trial

court’s approval was contingent on the parties’ performing under the agreement for

six months.

On January 2, 2013, Fountain filed a motion for rehearing, in which she

requested withdrawal of this Court’s December 28, 2012 opinion. At Katcher’s

request, this Court abated proceedings on Fountain’s motion so that the parties

could finalize their settlement agreement with regard to the enforcement

proceeding as set out in their Rule 11 Agreement. The trial court has repeatedly

moved back the date for a status conference, scheduled in the Rule 11 Agreement

for June 2013 and referenced in the Rule 11 Agreement as a condition precedent to

finalization of the Agreement. Therefore, the Agreement has not been finalized.

Nor has it been withdrawn.

1
The underlying case is Kathy Katcher v. Tammy Fountain, No. 2010-31997, in the
309th District Court of Harris County, Texas, the Honorable Sheri Y. Dean,
presiding.
2
 Despite the still-pending settlement agreement, on September 24, 2013, this

Court, sua sponte, lifted its abatement of the habeas corpus proceeding and advised

the parties that it intended to deny Fountain’s motion for rehearing.

The parties responded by filing an agreement pursuant to Texas Rule of

Appellate Procedure 6.6, asking this Court to “treat Fountain’s motion for

rehearing as withdrawn and take no further action in this habeas proceeding,” not

to enter an order remanding Fountain to custody, and to release a bond that this

Court had required pending resolution of the habeas corpus proceedings.

This Court issued an order on October 15, 2013, that dismissed the motion

for rehearing but that did not address the parties’ other requests.

On October 17, 2013, Fountain filed a “request to modify, correct or reform

this Court’s October 15, 2013 order dismissing the motion for rehearing filed by

relator, Tammy Fountain pursuant to the parties’ Rule 6.6 Agreement.”

The panel majority now issues an advisory opinion in the form of an Order

advising the trial court that, “[i]n light of the parties’ agreement, the trial court

may, in its discretion, vacate its July 31, 2012 order, and it may order that the bond

be released.” The order itself does not release the bond.

Because I believe that the panel majority lacks the power to advise the trial

court regarding the exercise of the trial court’s powers and that the majority has

failed to honor the terms of the parties’ Rule 11 and Rule 6.6 Agreements, has

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overstepped its own jurisdiction in issuing an advisory opinion to the trial court,

and has failed to dispose of all issues before it that are necessary to the final

resolution of this dispute—namely, by failing to order release of the bond that this

Court had previously required—I dissent.

I would have honored the terms of the parties’ Rule 11 and Rule 6.6

Agreements and the provisions of Texas Rule of Appellate Procedure

42.1(a)(2)(C), governing voluntary dismissal of civil cases by agreement of the

parties, pursuant to which we abated the habeas proceedings in this Court. I would

not have lifted our order of abatement, and I would not now issue an order advising

the trial court of its options. Because the abatement was nevertheless lifted and the

motion for rehearing of this Court’s December 28, 2012 opinion was dismissed

pursuant to the parties’ Rule 6.6 Agreement, I would treat the motion for rehearing

as withdrawn and I would release the bond. I note that this Court’s October 15,

2013 order dismissing the motion for rehearing contains no order remanding

Fountain to custody.

Background

Fountain filed this original habeas corpus proceeding to challenge the trial

court’s July 31, 2012 order revoking its earlier suspension of a contempt sentence

it had imposed on her in the underlying enforcement proceeding for violation of

temporary orders entered in a child custody dispute.

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 On August 3, 2012, in response to Fountain’s request, this Court issued a

memorandum order ordering the Sheriff of Harris County to discharge Fountain

from custody upon execution and filing of a $500 bond with the Sheriff.

On December 28, 2012, the majority issued an opinion upholding the trial

court’s revocation of its order suspending commitment. I dissented. I agreed with

Fountain that the commitment order was void and that her commitment to jail

violated her constitutional right to due process of law. I would have granted the

habeas corpus petition, and I would have ordered Fountain discharged.

On January 2, 2013, five days after issuance of this Court’s opinions in the

underlying habeas proceeding, Fountain filed a motion for rehearing that, inter alia,

informed the Court that “the parties agreed by Rule 11 to the requested relief prior

to the issuance of this Court’s opinion.” Fountain stated that, specifically, the

parties agreed to dismiss the underlying enforcement proceeding and Katcher

agreed to notify this Court that she does not oppose the habeas proceeding. The

motion also stated, “The temporary orders that are the subject of the December 12,

2012 Rule 11 Agreement are set for entry on January 3, 2013 in the trial court.”

Fountain asked that this Court “grant this motion for rehearing, withdraw its

opinion, and issue a writ of habeas corpus as unopposed on the basis of the

expressed dissent.”

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 On January 15, 2013, Katcher responded to Fountain’s motion for rehearing.

A copy of the signed agreement, file stamped December 12, 2012, by the district

clerk, was attached. Katcher stated, “On December 12, 2012, trial counsel for the

parties met and negotiated a preliminary settlement agreement of their underlying

enforcement dispute.” She further stated, “The intent of the parties as reflected in

the agreement was that they would perform under the agreement for a 6-month

period—until June 2013—at which time they would attend a status conference in

the trial court to obtain a final order.” Katcher stated that she agreed to drop the

enforcement proceeding, but that the “expressed intent” of the agreement in

paragraph 14 “was that the enforcement agreement would not be dismissed until

June 2013, and that her duty to inform this Court of the preliminary agreement did

not arise until after June 2013—after a status conference and after the agreement

became final.”

Katcher requested that this Court abate the habeas proceeding until July 1,

2013. She explained,

The abatement will permit the parties to perform under the agreement,
and will allow the trial court to conduct a status conference in June
2013 and enter a final order if the parties have performed under the
agreement. Then, if the agreement is performed, [Katcher] will
dismiss the underlying enforcement proceeding and—per paragraph
14 of the agreement—notify the Court that the habeas proceeding has
been rendered moot.

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In a “Supplement to Motion for Rehearing,” filed January 4, 2013, Fountain

conceded that “a reading of the Rule 11 Agreement may also support the position

that such a duty to inform this Court of the agreement will not arise until after June

2013.”

This Court issued an order abating proceedings on Fountain’s motion for

rehearing until July 1, 2013. The order required that the parties “timely notify this

court of all events affecting the status of this case, including when the trial court

has entered a final order” and that they “file either a status report or a motion to

dismiss by July 1, 2013.”

On July 1, 2013, Katcher filed a status report informing this Court that the

trial court had set the status conference required by the Rule 11 Agreement, which

had been requested for June, for July 2, 2013, and, therefore, there was no final

order of the trial court in the underlying enforcement proceeding.

The next day, July 2, the authoring judge of the December 28, 2012 opinion,

acting individually, issued an order requiring the parties to “file an updated status

report or a motion to dismiss within 3 days of any further status conference held in

the trial court.” The order also required the parties to satisfy a number of other

conditions. It required the parties to “inform this court no later than August 9,

2013” whether the trial court had been requested to enter a final order and “if not,

why not.” It required that this Court be told whether Katcher had dismissed her

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enforcement petition with prejudice; “[w]hether this original proceeding has

become moot for any reason”; and “[w]hether there is any reason why this original

proceeding should not be reinstated on the court’s active docket.” The order also

stated, “To the extent this original proceeding is not moot, Katcher is requested to

provide the court of appeals with any revised or supplemental response to the

motion for rehearing no later than August 9, 2013.”

On August 9, 2013, Katcher filed a status report in response to the July 2,

2013 order. She reported that a status conference had been held on July 2, 2013,

and that the trial judge ordered temporary custody of the minor child to Katcher

and ordered a psychological evaluation of Fountain. The report stated that no

further action would be taken in the trial court until there was “at least a

preliminary report” from the physician performing the psychological evaluation.

The status report further stated that the preliminary report was to have been

performed by August 14, but that the physician had stated he could not meet that

deadline, so the status conference in the trial court, which had been recessed until

August 14, 2013, was likely to be recessed again.

On August 21, 2013, Fountain likewise filed a status report. She reported

that the parties were “to confer with the trial court regarding disposition of the

underlying enforcement action,” but that “[t]his event has not been formally set.”

She stated, “This case should not be reinstated on the court’s active docket as the

8
agreement has not been entered, perfected, or set aside. The parties are awaiting

the pleasure of the [trial] Court, who is addressing the best interests of the child’s

issues at this point.”

On September 24, 2013, this Court lifted the abatement and directed that the

parties file any further submissions relating to Fountain’s motion for rehearing by

October 1, 2013.

On September 27, 2013, in response to this Court’s September 24, 2013

order, the parties submitted an agreement pursuant to Rule 6.6 together with a

“Motion to Enforce Parties’ Rule 6.6 Agreement.” See TEX. R. APP. P. 6.6

(providing that parties or their counsel may file enforceable agreement in appellate

court if agreement is in writing and signed by parties or their counsel). The Rule

6.6 Agreement provided:

 Fountain agrees to withdraw and hereby withdraws her motion
for rehearing; and

 Katcher agrees not to seek enforcement of the trial court’s
contempt order of May 24, 2012, or the revocation order of July
31, 2012.

The parties further agreed, that, as a consequence of their having filed the Rule 6.6

Agreement in the trial court, the agreement also “constitutes an enforceable

agreement under TEX. R. CIV. P. 11.” The parties asked that this “Court treat

Fountain’s motion for rehearing as withdrawn and take no further action in this

9
habeas proceeding, but specifically including that this Court not enter an order

remanding Relator to custody, but release the bond.”

On October 15, 2013, this Court issued an order that granted Katcher’s

“Motion to Enforce Parties’ Rule 6.6 Agreement” and dismissed Fountain’s motion

for rehearing “pursuant to the parties’ Rule 6.6 agreement.” The Court did not

remand Fountain to custody and it did not release the bond.

On October 17, 2013, Fountain filed a “request to modify, correct or reform

this Court’s October 15, 2013 order dismissing the motion for rehearing filed by

relator, Tammy Fountain pursuant to the parties’ Rule 6.6 Agreement.” Fountain

reminded the Court that the motion to enforce the Rule 6.6 Agreement “included

the following [prayer]: ‘Therefore the parties ask that the Court treat Fountain’s

motion for rehearing as withdrawn and take no further action in this habeas

proceeding, but specifically including that this Court not enter an order remanding

Relator to custody, but release the bond.’” Fountain pointed out, “This Court’s

October 15, 2013 order does not address the agreement that the Relator not be

remanded to custody and that the bond be released.” Fountain requested that this

Court “correct, modify, or reform its October 15, 2013 Order to address these

issues.”

In response to Fountain’s motion to correct, modify, or reform the October

15, 2013 order, the majority issues an advisory opinion in the form of an order. It

10
advises the trial court, “In light of the parties’ agreement, the trial court may, in its

discretion, vacate its July 31, 2012 order, and it may order that the bond be

released.” The majority incorrectly informs the trial court that it has the discretion

to release a bond that had been ordered by this Court and fails to honor the parties’

Rule 6.6 Agreement and their Rule 11 Agreement.

I believe this Court—which granted abatement pursuant to the parties’

request that we abate the proceedings until their Rule 11 Agreement dismissing the

underlying enforcement action could be finalized in the trial court—erred in

reinstating the habeas proceeding sua sponte. I believe the Court’s actions have

interfered with the parties’ finalization of their settlement agreement—then, as

now, pending in the trial court—and have violated Rule 42.1, governing voluntary

dismissal of appeals in civil cases and providing for abatement to permit the trial

court to effectuate a settlement agreement. I believe we have further erred in only

partially granting the parties’ Rule 6.6 Agreement, leaving the rest pending, and

that we have compounded the error by issuing an advisory order to the trial court

advising it as to the actions it may take while the parties’ Rule 11 Agreement

remains pending in that court and by refusing to release the bond that had been

imposed by this Court—not by the trial court.

For the foregoing reasons, I dissent. I would not have lifted our abatement

of the habeas corpus proceedings while the parties were still attempting to finalize

11
their Rule 11 Agreement in the trial court. And once the parties asked that we

honor their Rule 6.6 Agreement, treat the motion for rehearing as withdrawn, and

release the bond, I would have done so.

Analysis

Rule 42.1(a) allows an appellate court to dispose of a proceeding by

voluntary dismissal in civil cases as follows:

(1) On Motion of Appellant. In accordance with a motion of
appellant, the court may dismiss the appeal or affirm the appealed
judgment or order unless disposition would prevent a party from
seeking relief to which it would otherwise be entitled.
(2) By Agreement. In accordance with an agreement signed by the
parties or their attorneys and filed with the clerk, the court may:
(A) render judgment effectuating the parties’ agreements;
(B) set aside the trial court’s judgment without regard to the merits
and remand the case to the trial court for rendition of judgment
in accordance with the agreements; or
(C) abate the appeal and permit proceedings in the trial court to
effectuate the agreement.

TEX. R. APP. P. 42.1(a).

Rule 42.1 further provides:

(c) Effect on Court’s Opinion. In dismissing a proceeding, the
appellate court will determine whether to withdraw any opinion it has
already issued. An agreement or motion of dismissal cannot be
conditioned on withdrawal of the opinion.

TEX. R. APP. P. 42.1(c).

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 Texas Rule of Civil Procedure 11 provides, in relevant part, that, unless

otherwise provided for in the 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.” TEX. R. CIV. P. 11. Rule 11 agreements are

effectively contracts relating to litigation. Golden Spread Elec. Coop., Inc. v.

Denver City Energy Assocs., Inc., 269 S.W.3d 183, 190 (Tex. App.—Amarillo

2008, pet. denied). Thus, they are interpreted in the same manner as contracts. Id.

When a settlement agreement satisfies the requirements of Rule 11—i.e., when it is

written, signed, and filed in the records of the court, or is made in open court, and

it has sufficiently definite terms to allow a court to determine the obligations of the

parties—it is enforceable. See Berg v. Wilson, 353 S.W.3d 166, 172 n.9 (Tex.

App.—Texarkana 2011, pet. denied). A settlement agreement must comply with

Rule 11 to be enforceable. Green v. Midland Mortg. Co., 342 S.W.3d 686, 690

(Tex. App.—Houston [14th Dist.] 2011, no pet.).

A trial court has a duty to enforce the terms of a Rule 11 agreement. Fortis

Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); see In re F.C. Holdings, Inc.,

349 S.W.3d 811, 815 (Tex. App.—Tyler 2011, orig. proceeding); Scott-Richter v.

Taffarello, 186 S.W.3d 182, 189 (Tex. App.—Fort Worth 2006, pet. denied) (“A

trial court has a ministerial duty to enforce a valid Rule 11 agreement.”).

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 A Rule 11 settlement agreement “touching upon” a suit in the Texas courts

may be made at any time before execution of judgment. See Coale v. Scott, 331

S.W.3d 829, 831 (Tex. App.—Amarillo 2011, no pet). The trial court may enforce

a Rule 11 agreement even if it was made even after the cause was tried and finally

resolved via judgment if the agreement is in writing, signed and filed with the

papers as part of the record, or made in open court and entered of record, as a trial

court has continuing power to enforce its judgments after they become final. See

id. at 831–32. This is the case because the agreement becomes a contract when it

is executed, not when the trial court attempts to enforce it. Id. at 832. “[T]he trial

court’s order is simply a judgment enforcing a binding contract.” Id.

Public policy favors settlement agreements. Elbaor v. Smith, 845 S.W.2d

240, 250 (Tex. 1992); Caballero v. Heart of Texas Pizza, L.L.C., 70 S.W.3d 180,

181 (Tex. App.—San Antonio 2001, no pet.) (per curiam). Hence, Rule 42.1(a) is

designed to facilitate the appellate courts’ power to dispose of cases that settle on

appeal in accordance with the intent of the parties. See Caballero, 70 S.W.3d at

181.

Here, the proceeding the parties had sought in their Rule 11 Agreement to be

dismissed was an original appellate proceeding seeking review of an incidental

order in a pending underlying suit seeking enforcement of temporary child-custody

orders. This Court had jurisdiction over the original proceeding, but the trial court

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had, and still has, jurisdiction over the underlying enforcement proceeding, which

the parties represent that they have settled, conditioned only upon (1) the

performance of the terms of the agreement during the period between execution of

the Rule 11 agreement on December 12, 2012, and June 2013, and (2) a status

conference to have been held in the trial court in June 2013 to determine whether

the parties had satisfactorily performed terms of the Rule 11 Agreement during the

period prior to that time. This Court, therefore, properly abated the habeas

proceeding upon request of the parties to permit the trial court to conduct

proceedings to effectuate the terms of the settlement agreement. See TEX. R. APP.

P. 42.1(a)(2)(C).

There is no question that the settlement agreement was entered into to

resolve an ongoing custody dispute in the trial court in which no final order had

been issued. Thus, there is no question that the parties had the right to settle their

dispute and that both the trial court—and this Court—had then and have now a

ministerial duty to enforce the intent of the parties to that agreement. See Fortis

Benefits, 234 S.W.3d at 651. A Rule 11 settlement agreement “touching upon” a

suit in the Texas courts may be made at any time before execution of judgment.

See Coale, 331 S.W.3d at 831. Here, in December 2012, while the habeas

proceeding was pending in this Court, the parties settled the enforcement

proceeding subject to the parties’ performance under the terms of the agreement

15
until June 2013, and the parties so advised this Court. This Court was then plainly

required by Rule 42.1 to abate the habeas proceeding in this Court upon request of

the parties to permit proceedings in the trial court to effectuate the terms of their

settlement agreement. See TEX. R. APP. P. 42.1(a)(2)(C). And it initially did so.

One of the provisions in the parties’ Rule 11 Agreement was the agreement

to dismiss the habeas proceeding then pending in this Court. However, the parties

also agreed to comply with specified provisions of the agreement as a condition

precedent to the issuance of a final order by the trial court. The agreement,

therefore, provided that the trial court would hold a status conference in June 2013

to determine whether the parties had performed under the Rule 11 Agreement, and,

if they had, the agreement contemplated that the trial court would issue a final

order. The parties agreed that when the final order issued, they would move to

dismiss the habeas corpus proceeding in this Court as moot. The entry of a final

order by the trial court upon performance of the terms of the Rule 11 Agreement

prior to July 1 and the dismissal of the habeas corpus proceeding upon issuance of

the trial court’s final order were both made specific provisions of the Rule 11

Agreement. Dismissal of the habeas proceeding was clearly a material part of the

consideration for that agreement.

Under Rule 11, the trial court had, and it still has, a duty to enforce the

parties’ settlement agreement, and it has a ministerial duty to sign a final order

16
respecting the parties’ intentions as expressed in the agreement. See Fortis

Benefits, 234 S.W.3d at 651. The trial court’s final order is simply a judgment

enforcing a binding contract. See Coale, 331 S.W.3d at 832. Likewise, this Court

had a duty under Rule 42.1(a)(2)(C) to abate the habeas proceeding to permit the

trial court to effectuate the settlement agreement. See TEX. R. APP. P.

42.1(a)(2)(C); Caballero, 70 S.W.3d at 181.

No party complained to this Court that the trial court had failed to enforce

the Rule 11 Agreement according to its terms or to perform its ministerial duty of

executing a final order in accordance with those terms; and no party represented to

this Court that the Rule 11 Agreement had been set aside, so that its terms no

longer applied. To the contrary, Fountain represented to this Court that trial court

had not yet been asked to enter the final order referenced in paragraph 13 of the

Rule 11 Agreement and that this matter “is awaiting a judge/attorney conference.”

Fountain further represented, “This case should not be reinstated on the court’s

active docket as the agreement has not been entered, perfected, or set aside.”

Therefore, in my view, this Court’s decision to lift the abatement was without legal

justification.

In my view, this Court has failed to honor the requests of the parties that we

abate the proceedings pending settlement of their dispute; we have not honored the

terms of the parties’ Rule 11 and Rule 6.6 Agreements by treating the motion for

17
rehearing as withdrawn and releasing the bond; and we have issued an advisory

opinion regarding the trial court’s options. I would have continued to follow Rule

42.1(a)(2)(C), and I would have kept the abatement in place to permit proceedings

in the trial court to effectuate the parties’ Rule 11 Agreement. I would not have

lifted the order of abatement, and I would not now issue an order advising the trial

court of its options. The motion for rehearing having been dismissed, in

accordance with the parties’ Rule 6.6 Agreement entered after the abatement was

lifted and the habeas proceeding reinstated on our docket, I would amend the order

dismissing the motion for rehearing to accord with the parties’ Rule 6.6

Agreement, as requested by Fountain. I note that this Court’s October 15, 2013

order dismissing the motion for rehearing contains no order remanding Fountain to

custody, and I would not issue such an order.

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 Conclusion

I would treat Fountain’s motion for rehearing as withdrawn, and I would

release the bond.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Justice Keyes, dissenting.

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