Opinion
No. 05-04-00001-CV
Opinion Filed January 14, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 44th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 00-04122-B.
Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
MEMORANDUM OPINION
Jacqueline and Antonio Francisco appeal the trial court's enforcement of a rule 11 agreement with appellees, their former legal counsel. Specifically, the Franciscos contend the settlement offer had expired when appellees accepted. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Franciscos brought a legal malpractice action against appellees, Robin and Randall Foret and their firm, following their representation of the Franciscos in a medical malpractice suit. Charles McGarry, who subsequently acted as counsel for the Franciscos, sent a settlement offer to the Forets in a letter dated July 11, 2003. The letter contained the following language relevant to this appeal:
I am leaving on vacation Tuesday. I think this is your best window of opportunity, and would ask that you get an answer back to me by the end of the day so we can get releases done on Monday before I leave. I am not sure I would be able to reach [Franciscos] if you counter.
On August 21, 2003, Robin Foret sent a facsimile of the July 11, 2003 settlement offer back to Carl David Adams, the Franciscos' attorney who succeeded McGarry. This facsimile sent by Foret included a hand-written notation "I accept" with Foret's signature set out beneath and to the left of the original signature of McGarry. Adams wrote Foret stating that her acceptance was untimely because it was not received by the end of the day July 11, 2003.
The Forets filed a motion to enforce the terms of the July 11, 2003 letter as a settlement agreement pursuant to rule 11. The trial court found that this letter constituted an open offer that was not revoked by the Franciscos and that Foret's response was a valid acceptance of that offer. Accordingly, the court found that the parties entered into a valid and enforceable rule 11 agreement to settle all remaining issues in the underlying lawsuit.
On appeal, the Franciscos' sole contention is that the trial court erred in enforcing the July 11, 2003 letter under rule 11 as a settlement agreement because the letter did not include an open offer. They contend that Foret's failure to reply by the "end of the day" rendered the settlement offer null and void. We disagree.
APPLICABLE LAW
A time demand offer is one which, by its very terms, expires "at a certain time and can no longer be accepted after the expiration of such time." Lacquement v. Handy, 876 S.W.2d 932, 935 (Tex.App.-Fort Worth, 1994, reh'g denied). When it is difficult to determine whether the offer contains a fixed time limit, we must view the offer in light of all the surrounding circumstances. Id. Furthermore, since the offeror has chosen the words used in the offer, in cases of doubt we will adopt the meaning that is more favorable to the offeree. Id.; see also Republic Nat'l Bank of Dallas v. Northwest Nat'l Bank of Fort Worth, 578 S.W.2d. 109, 115 (Tex. 1978).
The Forets cite Handy as an example of a letter that is unclear as to whether it is a true time demand letter. In Handy, the settment offer read as follows:
You must respond to this offer within ten (10) days of the date of the receipt of this letter. If no response is made, this offer to compromise and settle the claim will be withdrawn and no further settlement will be offered or tendered. (Emphasis in original.)
In construing the above language, the Handy court concluded that the settlement offer was unclear as to whether it was true time demand letter. Handy, 876 S.W.2d at 936. Therefore, the court adopted the meaning more favorable to the non-drafting party. Id. The court found that the language did not clearly indicate that the offer would expire automatically, without any further action required, if not accepted before the expiration of a certain time limit. Id. ("the letter does not clearly indicate, by its own terms, that if not `accepted' within ten days, it automatically expires, or should be considered to be automatically withdrawn.").
ANALYSIS
We conclude the settlement offer language in the case before us is even less specific as to its expiration than the language construed by the Fort Worth Court of Appeals in Handy. The Franciscos' letter did not clearly indicate that the offer would automatically expire at the "end of the day." Rather, the language said they "would ask that [Foret] get an answer back" by the end of the day. Furthermore, the letter gave no indication as to the consequences of failing to respond by the end of the day. The reference to McGarry's vacation plans and a desire to have the releases completed and signed before he left for vacation on Monday appears to be only a matter of convenience. Simply put, such language is not an unequivocal statement that the offer would expire if not accepted within a certain time. See Id.
The Franciscos suggest that we should rely on Denton Milling v. Green, 204 S.W.2d. 362, 363 (Tex.Civ.App. 1918, no writ). However, Green is distinguishable because other circumstances present in that case, most notably a fluctuating market price, necessitated a finding of a time demand letter. Id. at 363 (letter offering flour at a certain price based on existing market value, hoping for acceptance before another advance, was not an unconditional offer and was only good until there was another advance.).
That is not the case here. Accordingly, on this record, we conclude the Franciscos' July 11, 2003 letter did not contain a time certain for expiration, and Foret's undisputed acceptance of that letter was sufficient to comply with rule 11's requirements for an enforceable settlement agreement. See Padilla v. Lafrance, 907 S.W.2d 454, 460 (Tex. 1995).
CONCLUSION
The Franciscos' July 11, 2003 letter did not clearly indicate a time certain for expiration. This offer was neither rejected by the Forets nor revoked by the Franciscos. Accordingly, Foret's facsimile of August 21, 2003 was a valid acceptance of that offer, which formed a binding rule 11 agreement between the parties. We decide against the appellants on their issue. The trial court's judgment is affirmed.