Discussion
Although both parties presented summary judgment evidence on the issue
whether UTS made the stipulation, the real point of contention between them was whether by
making the stipulation in the third hearing, UTS waived its appeal of the first hearing. Carter
urges the stipulation is final and binding for all purposes. She relies on Shepard v. Ledford, 962
S.W.2d 28, 33 (Tex. 1998) (stipulation is “an agreement, admission, or concession made in a
judicial proceeding by the parties or their attorneys respecting some matter incident thereto”).
The supreme court in Shepard relied on its opinion in Hennigan v. I.P. Petroleum Co., Inc.,
858 S.W.2d 371, 372 (Tex. 1993), stating that a “true judicial admission is a formal waiver of
proof usually found in . . . the stipulations of the parties.” Shepard, 962 S.W.2d at 33.
Waiver, however, requires intent. See In re General Elec. Capital Corp.,
203 S.W.3d 314, 316 (Tex. 2006) (waiver requires intent, either intentional relinquishment of
known right or intentional conduct inconsistent with claiming that right). We have held “a court
should not construe any action of a party to waive a right not plainly agreed to be relinquished.”
In re Sheets, 971 S.W.2d 745, 747 (Tex. App.-Dallas 1998, no pet.) (by agreeing to one
order referring discovery dispute to special master, party did not agree to refer all pretrial
matters to special master). In Sheets, we relied on our opinion in U.S. Fire Ins. Co. v. Carter,
468 S.W.2d 151 (Tex. Civ. App. - Dallas), writ ref'd n.r.e. per curiam, 473 S.W.2d 2 (Tex.
1971). See Sheets, 971 S.W.2d at 747. In discussing the law regarding stipulations, the U.S.
Fire Insurance Co. court noted, “[b]eing a contract the stipulation must truly express the
intentions of the parties making the same.” U.S. Fire Ins. Co., 468 S.W.2d at 154. We
continued, “[a] court will not construe a stipulation so as to effect an admission of something
intended to be controverted or so as to waive a right not plainly agreed to be relinquished.”
U.S. Fire Ins. Co., 468 S.W.2d at 154; see also Austin v. Austin, 603 S.W.2d 204, 207
(Tex. 1980) (recognizing “rule that the agreement between the parties will not be given greater
effect than intended,” and noting “[a] stipulation will not be construed as an admission of a fact
intended to be controverted”).
Carter offered some evidence, in the form of the hearing officer's order from
the third hearing, that the stipulation was made, without reservation. UTS offered some
evidence, through its adjuster's affidavit, that it disputed Carter's injury at all stages of the
administrative process. While both parties' evidence may be relevant to UTS's intent to waive its
appeal, the evidence does not establish Carter's right to judgment as a matter of law. See
Cunningham, 161 S.W.3d at 295 (party moving for traditional summary judgment must show it
is entitled to judgment as matter of law). As attachments to their briefs on appeal, in support of
and in opposition to Carter's rule 45 motion (in part based upon UTS's failure to file a complete
record), both parties have submitted evidence that was not presented to the trial judge, including
the transcript of the hearing of the third agency proceeding and an affidavit from the attorney
who represented UTS at the hearing. Because this evidence is not in our record on appeal, we
cannot consider it for purposes of UTS's appeal of the summary judgment. See Cantu v.
Horany, 195 S.W.3d 867, 870 (Tex. App.-Dallas 2006, no pet.) (appellate court cannot
consider documents cited in party's brief and attached as appendices if they are not formally
included in record on appeal). The trial judge should have the opportunity to consider all of the
relevant evidence in determining whether UTS waived its appeal. Because it was not presented
to him, and because Carter did not establish her right to judgment as a matter of law, we reverse
the summary judgment and remand the issue to the trial court.
Carter also requests that this Court impose damages against UTS and its
counsel for filing a frivolous appeal, citing rule 45 of the Texas Rules of Appellate Procedure.
Under rule 45, we may award “just damages” to a prevailing party in an appeal if we
determine it is frivolous after considering the record, briefs, or other papers filed. See Solares v.
Solares, 232 S.W.3d 873, 883 (Tex. App.-Dallas 2007, no pet.). Recovery is authorized if an
appeal is objectively frivolous and injures an appellee. Solares, 232 S.W.3d at 883. An appeal
is frivolous if when it is brought there were no reasonable grounds to believe the judgment
would be reversed or when it is pursued in bad faith. Solares, 232 S.W.3d at 883. We impose
sanctions only under those circumstances we find truly egregious. See Baker Hughes Oilfield
Operations, Inc. v. Hennig Production Co., Inc., 164 S.W.3d 438, 448 (Tex. App.-Houston
[14th Dist.] 2005, no pet.) (where motion alleged appellant presented incomplete record on
appeal, raised critical issues for first time on appeal, and filed inadequate brief misstating record
and making unsupported accusations, record did not evidence such egregious circumstances as
to warrant sanctions). On review of the record and briefs, and in light of our disposition of UTS's
issue on appeal, we decline to find UTS's appeal frivolous. See also In re A.W.P., 200 S.W.3d
242, 246 (Tex. App.-Dallas 2006, no pet.) (failure to present complete record on appeal itself
does not render appeal frivolous, and we could not conclude appeal was otherwise frivolous).
We deny Carter's motion and reverse the judgment of the trial court.
MARK WHITTINGTON
JUSTICE
070592F.P05
File Date[02/25/2008]
File Name[070592F]
File Locator[02/25/2008-070592F]