Rule 11 agreements are often used in family law and cases. I have had clients and potential clients ask me about what a Rule 11 agreement is and what they are used for. Many lawyers use Rule 11 agreements to settle an issue or a whole case. Attorneys often use the term “Rule 11 Agreement” as if it were a specific type of agreement.
What is a Rule 11 Agreement?
However, Rule 11 is a rule of procedure and does not do much to define the form or substance of settlement agreements.
A rule 11 agreement refers to Rule 11 of the Texas Rules of Civil Procedures which provides that an agreement between lawyers in a case is enforceable if the agreement:
- Is in writing and
- filed in the papers of the court or unless it be made in open court and entered of record.
Uses of Rule 11 Agreements
Rule 11 Agreements or stipulations are useful tools that can be used for:
- To narrow complex issues
- Alleviate the need to call witnesses and
- Resolve the entire lawsuit.
Rule 11 agreements are revocable before judgment is rendered
However, rule 11 agreements are revocable at any time until judgment is rendered. A settlement agreement upon which an eventual judgment will be based when entered into the record is subject to withdrawal by either party until judgment is rendered by the court. In other words, a party may revoke consent to a settlement agreement at any time before judgment is rendered. San Antonio Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995).
Adding the phrase “THIS AGREEMENT IS NOT SUBJECT TO REVOCATION” to a Rule 11 Agreement does not necessarily make it irrevocable.
The Prerequisites of an Enforceable Rule 11 Agreement
Parties can enter into an enforceable Rule 11 agreement if it is made in open court and entered of record. To be enforceable a rule 11 agreement must:
- An Agreement to Settle a Pending Lawsuit
- Clear and Unambiguous
- In writing and
- Filed with the court of record
An Agreement to Settle a Pending Lawsuit
A Rule 11 agreement is only valid if it is entered in a pending lawsuit. A compromise and settlement of a claim prior to the filing of a suit does not fall within Rule 11.
Clear and Unambiguous
An agreement or stipulation must be clear enough so that enforcement of the agreed terms can be accurately reflected in a judgment. Further, an agreement or stipulation that is ambiguous or unclear should be disregarded by the court.
The Rule requires that agreements, stipulating to certain facts, "between attorneys or parties concerning a pending suit to be in writing, signed and filed in the record of the cause to be enforceable.”
File with the court of record
When made in open court, the Rule is satisfied if the terms of the agreement are dictated before a certified reporter, and the record reflects who was present, the settlement terms, and the parties' acknowledgment of the settlement.
Enforcing Rule 11 Agreements
A trial court is not authorized and cannot render a judgment on a Rule 11 stipulation if it is repudiated before rendition of judgment. Davis v. Wickham, 917 S.W.2d 414, 416 (Tex. App.-Houston [1st Dist.] 1996, no writ).
The remedy for a failed stipulated agreement is a suit for breach of contract.
Although a court cannot render a valid agreed judgment absent consent at the time it is rendered, this does not preclude the court, after proper notice and hearing, from enforcing a settlement agreement complying with Rule 11 even though one side no longer consents to the settlement. The judgment in the latter case is not an agreed judgment, but rather is a judgment enforcing a binding contract.
In that situation, not only is the suit in regard to family matters not resolved, but a whole new suit must be initiated to enforce the attempted agreement.
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