dissenting.
Although I stand by my original dissent, I am troubled by certain conclusions reached by the majority on reconsideration of this case. First, there is no evidence of record that the omission of the five additional paragraphs by the Keefes was inadvertent. This is pure speculation by the majority. Second, execution of the settlement package negotiated and agreed to by the Keefes on February 21, 1996, was required by them, and, when they failed to comply, Northside Hospital had the right to terminate the settlement, which it did. Third, it cannot be said that the Keefes, who wilfully refused to sign the settlement they agreed upon, lived up to their end of the bargain. Finally, the majority acknowledges that a purpose of the settlement in this case was to prevent Northside Hospital from incurring any additional legal fees and that, as a result of the Keefes’ failure to sign the original agreement, such fees were incurred. Despite this acknowledgment, the majority continues to uphold the settlement, contending that Northside Hospital cost itself these fees which were actually caused by the Keefes’ breach.
Northside Hospital simply tried to enforce the settlement that both parties in this case freely agreed upon, and, when the Keefes breached, it validly terminated the agreement. The Keefes destroyed the bargain in this case. They should not be allowed to spontaneously resurrect it.
I am authorized to state that Presiding Judge Pope joins in this dissent on motion for reconsideration.