law-stipulation | Rule 11 Agreement | Tex. R. Civ. P. 11
A stipulation, is "an agreement, admission, or concession made in a judicial proceeding by the parties or their
attorneys respecting some matter incident thereto." Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.
W.3d 899, 904 (Tex.App.-Dallas 2005, pet.denied) (quoting Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex.
1998)); Ortega-Carter v. American Int'l Adjustment Co., 834 S.W.2d 439, 441-42 (Tex.App.-Dallas 1992, writ
denied). To be enforceable, the stipulation must be in writing, signed, and filed as part of the record, or made
in open court and entered of record. Tex. R. Civ. P. 11. Stipulations are binding upon the parties, the trial
court, and the reviewing court. Id. (citing Jim Sowell Const. Co., Inc. v. Dallas Cent. Appraisal Dist., 900 S.W.
2d 82, 84 (Tex.App.-Dallas 1995, writ denied)); M.J.R.'s Fare of Dallas, Inc. v. Permit & License Appeal Bd.,
823 S.W.2d 327, 330-31 (Tex.App.-Dallas 1991, writ denied).
08-0728
ELIZABETH W. BUFKIN v. EDWARD O. BUFKIN, JR.; from Dallas County; 5th district (05-06-01719-CV, 259
SW3d 343, 07-01-08) 2 petitions, pet. denied Nov. 2008)(prejudgment interest, admissibility of expert
testimony, harm analysis of evidentiary ruling by trial court, divorce fault grounds, prenup, stipulation
agreement)
Elizabeth's argument fails for two reasons. First, a stipulation must be an express agreement and cannot
arise by implication from a post-verdict statement in one party's motion to disregard a jury finding. Tex. R.
Civ. P. 11(“...no agreement between attorneys or parties touching any suit pending will be enforced unless it
be in writing, signed and filed with the papers as part of the record...”). Second, even if there was an
agreement after trial on the ranch's value, that agreement would not be construed as an admission of a fact
that was controverted at trial. Austin v. Austin, 603 S.W.2d 204, 207 (Tex. 1980) (stipulation will not be
construed as an admission of a fact intended to be controverted); Hansen v. Acad. Corp., 961 S.W.2d 329,
335 (Tex.App.-Houston[1st Dist.] 1997, pet. denied).
Edward's third issue argues the trial court was wrong to exclude evidence of fault. Edward and Elizabeth both
stipulated to the validity and enforceability of the Agreement. The El Paso court held that once Edward made
this stipulation, he could not then argue it was invalid. Bufkin, 2005 2272522 at *4. Section XI of the
Agreement expressly provides for the division of property in the event of divorce. Specifically, “each party will
take, in full settlement of his or her property and all other rights due upon divorce, only his or her separate
property estate and his or her one-half (½) share of the community property estate of the parties.” The
Texas Family Code authorizes such written agreements. Tex. Fam. Code Ann. §§ 4.001-4.009 (Vernon 2006).
Since Edward and Elizabeth have contracted how the community estate was to be divided in the event of
divorce, provisions of the Texas Family Code allowing evidence of fault See Footnote 4 in divisions do not
apply. The Agreement's terms dictated an even division of the community estate. Accordingly, evidence of
fault is not relevant and the trial judge did not abuse her discretion when she excluded it. We resolve
Edward's third issue against him.