Luz Chavez, Individually, as Representative of the Estates of Rudolph Chavez, Sr. (Deceased) and Rudolph Chavez, Jr. (Deceased), and as Next Friend of J. C., a Minor, Darlene Chavez, Allen Chavez, Francisco Chavez, and Celia Chavez, Petitioners,
Kansas City Southern Railway Company and Jose Juarez, Respondents
PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTH
DISTRICT OF TEXAS
trial, a presumption operates to establish a fact until
rebutted, Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71,
80-81 (Tex. 2000), but not in summary judgment proceedings,
Missouri-Kansas-Texas R.R. Co. v. City of Dallas,
623 S.W.2d 296, 297-98 (Tex. 1981). Because the court of
appeals misapplied this rule, S.W.3d (Tex. App.-San Antonio
2015), we reverse its judgment and remand the case to the
trial court for further proceedings.
Luz Chavez sued respondents, Kansas City Southern Railway and
its engineer (collectively, "the Railway"), for the
wrongful death of her husband and son, killed when their
vehicle was struck by a train at a railroad crossing. Chavez
sued on her own behalf, on behalf of the decedents'
estates, and as next friend for her surviving minor son.
Several family members joined the action. All the plaintiffs
(collectively, "Chavez") were represented by the
same law firm.
case was tried to a defense verdict, but the trial court
granted Chavez's motion for new trial, and counsel for
both sides began settlement negotiations. They reached a
letter agreement, signed by counsel. But at a hearing to
approve the agreement, Chavez appeared and stated that she
"wish[ed] not to go forward" and requested "at
least three months to find . . . another law firm"
because she "[did] not feel comfortable with" the
firm that had been representing her. The trial court reset
the hearing, and the Railway moved to enforce the settlement
agreement. Chavez did not appear at the reset hearing. The
court indicated it would grant the motion but, apparently in
response to a letter from Chavez, it set the Railway's
motion to enforce the agreement for rehearing. Chavez again
did not appear, but one of the lawyers who had been
representing her confirmed to the court that, while she no
longer represented Chavez, Chavez had consented to the
settlement agreement. The trial court granted the
Railway's motion and rendered judgment on the settlement
agreement, awarding Chavez $531, 000, of which $325, 000 went
to her law firm for expenses.
appealed. The court of appeals reversed and remanded because
the settlement agreement had not been filed of record.
Chavez v. Kansas City S. Ry. Co., No.
04-11-00697-CV, 2013 WL 520100 (Tex. App.-San Antonio Feb.
13, 2013, pet. denied) (mem. op.). On remand, the Railway
filed the settlement agreement, sued for breach, and moved
for summary judgment. The Railway's evidence established
that Chavez was represented during settlement negotiations by
the same law firm that had represented her at trial,
including the lawyer who signed the settlement agreement on
her behalf. But the Railway's motion and evidence did not
otherwise address Chavez's law firm's authority to
agree to the settlement. Chavez responded, testifying by
affidavit, that she had not consented to the settlement. The
trial court granted summary judgment for the
again appealed, arguing that her counsel did not have
authority to bind her to the settlement agreement. The court
of appeals disagreed because the summary judgment record
established that the settlement agreement was signed by one
of her lawyers. S.W.3d, (Tex. App.-San Antonio 2015). The
court stated that it would "indulge every reasonable
presumption to support a settlement agreement made by an
attorney hired by a client, " citing Ebner v. First
Bank of Smithville, 27 S.W.3d 287, 300 (Tex. App.-Austin
2000, pet. denied). "Accordingly, " the court
concluded, the Railway "proved as a matter of law that
[the lawyer] possessed actual authority to bind Chavez to the
settlement agreement . . . ." Id. at . The
court affirmed the trial court's judgment. Id.
obtain summary judgment, the "movant must establish that
there is no genuine issue of material fact so that the movant
is entitled to judgment as a matter of law." Katy
Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160,
163 (Tex. 2015). If the movant meets this burden, "the
burden then shifts to the non-movant to disprove or raise an
issue of fact as to at least one of those elements."
Amedisys, Inc. v. Kingwood Home Health Care, LLC,
437 S.W.3d 507, 511 (Tex. 2014). However, if the movant does
not meet this burden, "the burden does not shift and the
non-movant need not respond or present any evidence."
without deciding that an attorney retained for litigation is
presumed to possess express authority to enter into a
settlement agreement on behalf of the client, the presumption
may be rebutted with evidence to the contrary. But a summary
judgment movant may not use a presumption to shift to the
non-movant the burden of raising a fact issue of rebuttal. In
Missouri-Kansas-Texas Railroad Co. v. City of
Dallas, we held that a presumption cannot shift the
burden to a non-movant in a summary judgment proceeding. 623
S.W.2d at 298. "The presumptions and burden of proof for
an ordinary or conventional trial, " we said, "are
immaterial to the burden that a movant for summary judgment
must bear." Id. Thus, in this case, the Railway
was required to establish affirmatively that there was no
genuine issue of material fact that Chavez's law firm was
authorized to execute the settlement agreement-that is, that
Chavez could not produce evidence to rebut a presumption of
authority. The Railway did not meet this burden. It only
produced evidence that Chavez hired counsel to represent her
in this litigation and that those lawyers agreed to the
settlement. Although this is some evidence to satisfy its
burden, the Railway was required to provide evidence that
Chavez actually authorized her counsel to enter into a
settlement agreement on her behalf. Because the Railway
failed to conclusively establish each element of its claim,
the summary judgment must be reversed.
grant Chavez's petition for review and, without hearing
oral argument, Tex.R.App.P. 59.1, reverse the judgment of the
court of appeals and remand the case to the trial court for
 The judgment awarded Chavez $541, 000,
with $325, 000 going to her law firm for expenses, correcting
an error in ...