A San Antonio law firm protesting summary judgment in a wrongful-death settlement enforcement case failed to sway an appeals court into reversing a ruling that substantially shorted its clients.
Instead of $500,000, its clients must stick to an agreement for $100,000, because of a misunderstanding about the insurance policy limit.
The Tessmer Law Firm represented Rosalinda Villagomez and Jose Guadalupe Guel, the parents of Geanesse Guel, who was killed in a traffic accident in a car driven by Isaiah Carrillo.
Isaiah Carrillo is the son of Johnny and Suzette Carrillo, the insured parties in a claim brought by Guel’s parents.
As explained in the opinion of the Fifth District Court of Appeals in Dallas, Tessmer Law attorney Katherine Cabello-Flores made a settlement offer using the law firm’s letterhead on correspondence with Lola Shoemake, the adjuster for the Carrillo’s insurer, Home State County Mutual Insurance Co.
The case summation in the opinion stated attorney Cabello-Flores was allegedly given the impression that the policy limit was $100,000. The attorney therefore informed Home State that Gomez and Guel would drop all claims for the policy limit of $100,000, according to the opinion. Responding for the insurance company, Shoemake accepted that proposal.
However, attorney Cabello-Flores wrote to adjuster Shoemake a week later that the settlement offer was being rescinded because “we have not received requested information from your office necessary to evaluate this case for settlement purposes.”
At issue was a missing declarations page of the insurance policy that would confirm the actual policy limit.
The insurance company continued to state its “acceptance” of the initial settlement offer and when Tessmer Law stalled and instead filed suit in Bexar County seeking damages for wrongful death, according to the summary in the opinion.
However, the Carrillos filed a separate lawsuit in Collin County and moved for summary judgment to enforce the settlement.
Tessmer Law, arguing against summary judgment, said Home State ignored their request for a copy of the policy’s declarations page. The law firm also claimed the settlement demand “was sent in error” and was not approved by lead attorney Heather Clement Tessmer.
Tessmer also claimed she was not aware the settlement demand was not in accordance with the policy limits and no one at the law firm saw the policy’s declarations page until it was attached to the summary judgment motion.
It was only then that the law firm realized the policy limit was $500,000, not $100,000 as they were allegedly first led to believe, or $250,000 as Shoemake allegedly said orally in conversation with Cabello-Flores, Tessmer Law claimed.
Collin County 429th District Court Judge Jill Renfro Willis granted summary judgment, causing Tessmer Law and their clients to appeal.
Tessmer Law argued three elements in its brief on appeal: (1) there was no “tender” of the $100,000 settlement by the required date, therefore, there was no acceptance of the offer; (2) the demand was limited to Villagomez’s claims against Johnny Carrillo and Home State made a counteroffer, not an acceptance, by adding parties to the demand; (3) the Carrillos presented no evidence proving Tessmer Law had authority to enter into the purported settlement agreement.
Justice Maricela Breedlove wrote the Fifth District’s memorandum opinion.
On the tender of payment issue, Breedlove said strict rules of tender are not applicable to a conditional offer to perform a concurrent condition.
“The rule of tender … is inapplicable because Shoemake’s email demonstrated Home State’s ability and willingness to make a tender of the amount demanded,” Breedlove wrote.
On the acceptance of offer, Breedlove followed the Carrillo’s argument and concluded the appellants’ argument was not made in their summary judgment response in the trial court.
On the authority to settle question, Breedlove noted the history of correspondence, starting March 31, 2021 and going as late as Nov. 11, 2021, where Tessmer Law continued to claim it represented Villagomez and Guel, and promising a proposal “to fully release your insured for all claims and liens” in exchange for “tender of $100,000.”
A rebuttable presumption exists that an attorney retained for litigation possesses the authority to enter into a settlement agreement on behalf of a client,” Breedlove said.
All three issued being overruled, the appeals court affirmed the judgment.
Andrew L. Johnson of Thompson, Coe, Cousins & Irons represented the Tessmer Law Firm on appeal. Johnson and Heather Tessmer did not respond to requests for comment.
Jose Treviño Jr. and Joseph Cuellar of the Valdez & Treviño firm in San Antonio represented the Carrillos.
“We are pleased that the court of appeals affirmed the trial court and enforced the peaceable, presuit resolution of the tort claims against our clients that was negotiated by their insurance carrier,” Cuellar said.
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