Preview
FILED
4/9/2024 1:13 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Lafonda Sims DEPUTY
CAUSE NO, DC-21-17253
BRANDON RAY, INDIVIDUALLY, AND IN THE DISTRICT COURT
AS REPRESENTATIVE OF THE ESTATE
OF KIMBERLY RAY, DECEASED AND
AS NEXT FRIEND OF B.R., A MINOR;
MICHAEL WOODWORTH,
INDIVIDUALLY, AND DELORES COOK,
INDIVIDUALLY,
Plaintiffs,
Vv DALLAS COUNTY, TEXAS
JOSEPH SCOTT HOUGHTON, APRN-
CRNA; MANSFIELD PAIN SERVICES,
LLC; TEXAS PARTNERS HEALTHCARE
GROUP, PA; INTEGRITY WELLNESS
CENTER, LLC; VENKATESWARA RAO
MANDAVA, M.D.; MAURO ALBERTO
MOLINA, APRN-CRNA; SLEEPYTIME
ANESTHESIA, PLLC; BABER YOUNAS,
M.D.; NORTHEAST ANESTHESIA
ASSOCIATES, PLLC; AND NORTHWEST
ANESTHESIA ASSOCIATES, PLLC;
DEFENDANTS. 19187 JUDICIAL DISTRICT
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND
REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Plaintiffs and file this Motion to Enforce settlement agreement, and request
for damages and attorneys’ fees for breach of contract, and in support would show the Court as
follows:
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 1 OF 10
I
BACKGROUND FACTS
1 Plaintiffs engaged in extensive settlement discussions with both past and present
counsel for the Defendant. Prior counsel, Ken Patterson, proposed submitting the dispute between
the parties to an arbitration. He also proposed entering into a high low agreement prior to the
arbitration. The plaintiffs agreed to this proposal with Mr. Patterson. (See attached emails from
Mr, Patterson, Exhibit “A’’.)
2 Defendant Mandava abruptly terminated Mr. Patterson’s representation and current
counsel filed an appearance on April 1, 2024.
3 Plaintiffs’ counsel re-engaged the new counsel and educated them about the prior
agreement to submit the case to arbitration. Defendant’s new counsel requested Plaintiffs to
forward the proposed agreement created by Mr, Patterson for their review. New defense counsel
indicated that they had discussed the agreement with the defendant and requested plaintiff to
forward a new written proposal. Plaintiffs forwarded that proposal on April 8, 2024 shortly before
the eclipse blotted out the sun in Dallas. Defense counsel called Plaintiffs’ counsel after receiving
the proposal and indicated he would respond shortly.
4 At approximately 1:35 p.m., as the moon began moving away from the sun and
light returned to Dallas, defense counsel sent the following email:
Mike,
To counter after having spoken with Dr. Mandava. (Emphasis added.)
1. Enter a high low agreement between the parties. The low is $175,000 and
taxable court costs not to exceed $24,999. This amount would be paid by
TMLT. THE HIGH IS $200,000 to be paid by Dr. Mandava.
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 2 OF 10
2. Submit the case to Dan Marley to arbitrate. It is my understanding that
Mr. Marley will immediately find no causation as Dr. Mandava and invoke
the “low” portion of the high low agreement.
3. This will trigger an immediate dismissal of all claims against Dr.
Mandava involved in this case, It would also cancel the upcoming trial.
4. Plaintiffs agree to accept the “low” payment and make no appeal of the
arbitration finding or other issues in the case.
This agreement would resolve all issues against Dr. Mandava.
Regards,
Kalvin B, Wiar, Esq.
Partner - Shaw & Associates
(See attached Exhibit “B”)
5 At 1:47 p.m. Plaintiffs’ counsel sent Defense counsel an email in response to the
proposal stating: “I will agree.” (Emphasis added.)
6 Defense counsel later stated a formal document outlining the agreement was being
crafted. Despite indicating that it would be forwarded on April 8, 2024, no such document was
transmitted,
7
With pending deadlines for the April 16, 2024 trial approaching that afternoon,
Plaintiffs’ counsel repeatedly asked for the document settling the case. Defense counsel responded
with offers to extend the deadlines: “Just pushed to noon tomorrow. Don’t expect to get there as
the language should be hammered out shortly.” (Text message from defense counsel April 8, 2024
at 3:55 p.m. Exhibit “C”.) This was reiterated in an email sent a few minutes later:
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 3 OF 10
Michael,
This correspondence is to confirm that, due to the impending resolution of
this matter, Parties agree to push the deadlines set for end of business today
until tomorrow at noon.
Regards,
Kalvin B. Wiar, Esq.
Partner - Shaw & Associates
(Email from defense counsel Exhibit “D”).
8 Rather than produce the document, Defense counsel has continued to file motions
with the court and witness and exhibit lists that are untimely.
9) On April 9, 2024, Plaintiffs sent a presentment letter to Defendant seeking to
enforce the settlement. No response was made.
IL.
ARGUMENT AND AUTHORITIES
- A valid contract exists between the parties
10. Plaintiffs unconditionally accepted Defendant’s settlement offer. The Defendant’s
email setting out the terms and conditions of the settlement and Plainitffs’ unconditional
acceptance constitutes a valid and enforceable contract.
ll, The existence of a contractual agreement is generally a legal determination.
See Henry C. Beck Co. v. Arcrete, Inc., 515 S.W.2d 712, 716 (Tex. App—Dallas 1974, writ
dism'd)); Power Reps, Inc. v. Cates, No. 01-13-00856-CV, 2015 WL 4747215, at *5 (Tex. App.—
Houston [Ist Dist.] Aug. 11, 2015, no pet.) (mem. op.) (“Determination of whether a written
instrument constitutes a contract or not requires a construction of the instrument, and is therefore
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 4 OF 10
addressed to the court and not the jury.” (quoting Success Motivation Inst., Inc. v. Jamieson Film
Co., 473 S.W.2d 275, 280 (Tex. App—Waco 1971, no writ))). A valid contract requires: (1) an
offer; (2) acceptance of the offer in strict compliance with its terms; (3) a meeting ofthe minds as
to both the contract’s subject matter and its essential and material terms; (4) each party's consent
to the contract’s terms; (5) intent that the contract be mutual and binding; and (6)
consideration. Grisham v, Bird, No. 05-19-00400-CV, 2020 WL 1502774, at *4 (Tex. App.—
Dallas Mar. 30, 2020, no pet.) (mem. op.). An enforceable contract must address its material terms
with enough detail to allow a court to both determine the rights and responsibilities of the parties
and confirm both sides intended to be contractually bound.
12. Here, Mr. Wiar’s email and Mr. Sawicki’s unconditional acceptance demonstrate a
contract was formed. First, Mr. Wiar represented the settlement offer was made after a discussion
with Dr. Mandava. (“To counter after having spoken to Dr. Mandarva.”) This shows Dr. Mandava
was making an offer to the Plaintiffs to settle the claims involved in the case. Second, Mr.
Sawicki’s response “I will agree,” constitutes an unconditional acceptance of that offer by the
Plaintiffs. Third, the two emails demonstrate a meeting of the minds as to the contract’s subject
matter and its essential and material terms. Fourth, Mr. Wiar’s statement “To counter after having
spoken to Dr. Mandava” and Mr. Sawicki’s email “I will agree,” demonstrate each of the parties
consented to the contract terms. Fifth, the language indicating Defendant would make a settlement
payment and Plaintiffs’ agreement to drop all claims and not appeal, demonstrate the contract was
mutual and binding. Finally, Mr. Wiar’s offer of $175,000 and $24,999 in taxable court costs and
Plaintiffs’ offer to drop all claims and not appeal, demonstrate consideration by both sides.
13; All elements necessary to create a binding contract are present. The Plaintiffs’
motion should be granted.
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 5 OF 10
- Enforceable as Rule 11 agreement
14, The Court could also find the email agreement between counsel constitutes a valid
and enforceable Rule 11 agreement. Texas Courts have enforced Rule 11 agreements like they
were contracts.
Rule 1 states:
“Unless otherwise provided in these rules, 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, or unless it be made in open court
and entered of record.”
15. “The purpose of Rule 11 is to ensure that agreements of counsel affecting the
interests of their clients are not left to the fallibility of human recollection and that the agreements
themselves do not become sources of controversy.” See ExxonMobil Corp. yv. Valence Operating,
Co. 1 74 §.W.3d 303, 309 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). The Court has a
ministerial duty to enforce a valid Rule 11 agreement. See EZ Pawn Corp.v. Mancias, 934 S.W.2d
87,91 (Tex. 1996); Fed. Lanes, Inc. v. City of Houston, 905 8.W.2d 686, 690 (Tex. App.--Houston
1 Dist.] 1995, writ denied), Once a valid settlement agreement has been made, the party wishing
to enforce the settlement agreement need only file the agreement with the court. /d.
16, The Texas Supreme Court has held a Rule 11 settlement agreement is enforceable
as a contract regardless of the fact that one party has withdrawn consent. See Padilla v, LaFrance,
907 S.W. 2d 454 (Tex. 1995), see also CherCo Properties, Inc. v. Law. Snakard & Gambill, P.C.,
985 S.W.2d 262, 265-66 (Tex. App.--Fort Worth 1999, no pet.). In Padilla, the parties entered into
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE6 OF 10
a settlement agreement through a Rule 11 on a motor vehicle claim. The Defendant forwarded the
Plaintiffs settlement checks but the Plaintiffs refused to accept them claiming there was no
enforceable agreement because the settlement was not timely accepted. The Supreme Court
disagreed and enforced the settlement agreement noting that the written agreement was sufficient.
U7, In Padilla, the Supreme Court held a party cannot withdraw their consent to a Rule
11 settlement agreement. Jd. at 456-457. The only effect of a party’s withdrawal of consent to a
Rule 11 settlement agreement is that the judgment sought becomes one of enforcing a binding
contract rather than the basis of an agreed judgment. /d. at 457. If a party seeking to enforce the
agreement presents proper pleadings and proof that the agreement was in compliance with the
requirements of Rule, 11, a Court can enforce such an agreement. Jd. at 457.
18. In this case, Defendant’s email containing his counter proposal to Plaintiffs’ initial
settlement offer is 1) in writing, 2) signed by the defendant’s counsel and 3) constitutes an
agreement regarding the pending suit.! The April 8, 2024 email is a binding settlement agreement
under Rule 11. Plaintiffs made a presentment demand to enforce the contract on April 9, 2024.
II.
DAMAGES DUE TO BREACH OF CONTRACT
~ Consequential Damages
19, In addition to enforcing the underlying agreement, Plaintiffs are entitled to seek
other damages as a result of Defendant’s breach of contract. These damages may include both
direct and consequential damages. See Dallas/Fort Worth Int'l Airport Bd. v. Vizant Techs., LLC,
1 NOTE: Defense counsel may try to argue that his email, sent on his firm’s address, containing his firm’s logo, his
full name and “Esq.” does not constitute a “signed” document. Such an argument would be specious and incorrect.
if counsel does not stand by statements made in his emails, none of his words should be trusted.
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 7 OF 10
576 S.W.3d 362, 373 (Tex. 2019), Direct damages include restoration of “the benefit of a plaintiff's
bargain.” Quigley v. Bennett, 227 S.W.3d 51, 56 (Tex. 2007) (Brister, J., concurring).
20. Consequential damages compensate the plaintiff for foreseeable losses that were
caused by the breach but were not a necessary consequence of it. Stuart v. Bayless ', 964 S.W.2d
920, 921 (Tex. 1998). To recover consequential damages, it must be foreseeable that they would
result from the breach of contract. Consequential damages must also be “proved with reasonable
certainty.” Phillips v. Carlton Energy Grp., LLC, 475 S.W.3d 265, 278 (Tex. 2015). “Proof need
not be exact, but neither can it be speculative.” /c/. The losses must be “susceptible of being
established by proof to that degree of certainty which the law demands.” Sw. Battery Corp. v.
Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (1938).
21, In the present case, Defendant’s breach has caused Plaintiffs to incur additional
litigation expenses and spend time preparing for the April 15, 2024 trial date. These expenses
include employee time spent complying with Court-ordered pre-trial deadlines, obtaining
subpoenas for trial witnesses and time preparing experts and other witnesses for their testimony.
None of these expenses would have been incurred if Defendant had simply followed through on
his settlement agreement. Plaintiffs are still incurring these expenses as the time before the trial
date fast approaches.
- Attorney’s Fee.
22. In additional to consequential damages, Plaintiffs are entitled to seek attorneys’ fees
for enforcing the contract. Tex. Civ. Prac. & Rem. Section 38.001 allows attorneys’ fees to be
recovered in cases involving written contracts.
23. To recover fees under statute providing that a party in a breach of contract action
may recover reasonable attorney fees, a party must (1) prevail on a cause of action for which fees
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 8 OF 10
are recoverable, and (2) recover damages. Restrepo v. Alliance Riggers & Constructors, Lid. (App.
8 Dist. 2017) 538 S.W.3d 724. In a breach of contract case, attorney fees may only be assessed
against a natural person or an actual corporation. First Cash, Lid. v. JO-Parkdale, LLC (App. 13
Dist. 2018) 538 S.W.3d 189. Attorney’s fees, authorized by statute in successful suit for breach of
contract, are in nature of penalty or punishment for failure to pay just debt. Wheelways Ins. Co. v.
Hodges (App. 6 Dist. 1994) 872 S.W.2d 776,
24, In the present case, Plaintiffs have made a presentment of the debt owed under the
settlement contract. (See attached Exhibit E). Defendant has refused to comply with the agreement.
25. Plaintiffs have been forced to spend attorney time seeking to enforce the agreement,
researching and drafting the present motion and preparing for a hearing on the matter. The
Plaintiffs’ attorney is primarily a contingency fee based lawyer but has performed hourly services
in other matters at a rate of $400 an hour. The Plaintiffs lawyers have spent more than four hours
associated with efforts to enforce the settlement agreement. (See attached Exhibit “F”, Affidavit
of Michael Sawicki.)
IV.
CONCLUSION AND PRAYER
26. Plaintiffs’ Motion to Enforce the Settlement Agreement should be granted. The
April 8, 2024 email from Defense counsel Kalvin Wiar constitutes a binding Rule 11 agreement.
The Texas Supreme Court has held that Courts can enforce Rule 11 agreements as an action
sounding in contract law. The Plaintiffs have incurred damages as a foreseeable consequence of
Defendant’s breach. They have been forced to incur additional litigation costs, and spend employee
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 9 OF 10
time preparing for the upcoming trial date. They have also incurred attorneys’ fees associated with
researching and writing this motion.
27. Plaintiffs request the Court enforce the settlement agreement and award reasonable
damages associated with the Defendant’s breach.
Respectfully submitted,
Wie)
Ss. WICKI
\\ Bes
MICHAEL G. SAWICKI
State Bar No. 17692500
msawicki@sawickilawtirm.com
ANDREW A. JONES
State Bar No. 24077910
ajones@sawickilawfirm.com
6116 N. Central Expressway, Ste. 1400
Dallas, Texas 75206
(214) 468-8844
(214) 468-8845 (Fax)
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing has been delivered
via electronic service through EFM, U.S. Postal Service, email, eservice, certified mail/ return
receipt requested, hand delivery and/or facsimile to all counsel onthis-9th-day-ef
April, 2024.
As
MICHAEL G. SAWICKI
PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT
AGREEMENT AND REQUEST FOR DAMAGES
AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 10 OF 10
EXHIBIT “A”
Mike Sa
From: Kenneth Patterson
)
Sent: Tuesday, March 26, 2024 5:51 PM
To: Mike Sawicki
Subject: Ray High/Low Agt CONFIDENTIAL
Attachments: HIGH.LOW AGT.docx; Rule 11 - Dismissal, Settlmt & Arb..docx
Micheal,
This rough and only a proposal to be polished.
TMLT is in the process of vetting the idea we are discussing.
This is what a proposed confidential Contractual HIGH/LOW Agreement might look like.
There would also be a Rule 11 agreement executed, but not filed.
A copy of such a letter which would be tailored to this case is also attached.
Ken
MAYER
M. Kenneth Patterson
Partner
MAYER LLP
750 N. Saint Paul Street
Suite 900
Dallas, TX 75201
Office: 214.379.6900
Direct: 214.379.6277
Mobile: 210.240.7779
Email kpatterson@mayerllp.com* mayerllp.com
Soper anys
Stunner ebtet =o Pemeie
: rv
a ABOTA
wt .
Bari
m 2 of Ve Dotense Bar
1M. Kenanth Patterson,
CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential; intended only for use by the person (s)
named above. This e-mail (including any attached files), may contain confidential information which is protected by the attorney-client
privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure,
copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission
in error, please immediately notify us by telephone, 972-701-7000 or e-mail: and delete the original message
and any attached documents/files.
:
Mike Sawicki
—
From: Mike Sawicki
Sent: Wednesday, March 27, 2024 10:37 AM
To: Kenneth Patterson
Subject: Re: Ray High/Low Agt CONFIDENTIAL
Ok on this side. Have you heard from TMLT?
SAWICK! LAW
Michael Sawicki | Allorney
Board Certified Personal Injuty
Texas Board of Legal Specialization
214.468.8844
214.468.8845 (f)
6116 N. Central Expressway
Suite 1400
Dallas, Texas 75206
www. wfirm. jm
ee = _
From: Kenneth Patterson
Sent: Wednesday, March 27, 2024 7:22 AM
To: Mike Sawicki
Subject: RE: Ray High/Low Agt CONFIDENTIAL
E
Mike,
This amount will be corrected to be equalto $200,000 minus the amount of the documented taxable court cost to
be reimbursed to you.
The agreement to reimburse the taxable Court costs will be made as part of a letter agreement and not directly
mentioned in the H/L document.
Ken
MAYER
M. Kenneth (Ken) Patterson
Partner
MAYER LLP
750 N. St. Paul Street
Suite 700
Dallas, Texas
:
Office: (214) 379 6900
Dire (214) 379 6277
Mobile: (210) 240 7779
Email kpatterson@mayerllp.com* mayerllp.com
Siper Lawpess
Marindale Hubbell
dri.
1 ent mans
aia Ranh sectes 14122008
mN
IM Kenneth Paterson ABOTA Thee Rosters The Voice of the Defense Bar
NOTICE: The information contained herein is personal and confidential; intended only for use by the person (s)
CONFIDENTIALITY
named above. This e-mail (including any attached files), may contain confidential information which is protected by the attorney-client
privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure,
copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission
message
in error, please immediately notify us by telephone, 972-701-7000 or e-mail: contact@mayerllp.com and delete the original
and any attached documents/files.
From: Mike Sawicki
Sent: Tuesday, March 26, 2024 5:59 PM
To: Kenneth Patterson
Subject: Re: Ray High/Low Agt CONFIDENTIAL
Ken, the low needs to net us $200,000. Otherwise | could agree to this.
=~ SAWICKI LAW
Michael Sawicki | Attorney
Board Certified Personal Injury
Texas Board of Legal Specialization
214.468.8844
214.468.8845 (f)
6116 N. Central Expressway
Suite 1400
Dallas, exas 75206
www.sal lawfirm.com
a =
From: Kenneth Patterson
Sent: Tuesday, March 26, 2024 5:51 PM
To: Mike Sawicki < icki sawickilawfirm.com>
Subject: Ray High/Low Agt CONFIDENTIAL
Micheal,
This rough and only a proposal to be polished.
TMLT is in the process of vetting the idea we are discussing.
This is what a proposed confidential Contractual HIGH/LOW Agreement might look like.
There would also be a Rule 11 agreement executed, but not filed.
2
=
A copy of such a letter which would be tailored to this case is also attached.
Ken
MAYER
M. Kenneth Patterson
Partner
MAYER LLP
750 N. Saint Paul Street
Suite 900
Dallas, TX 75201
Office: 214.379.6900
Direct: 214.379.6277
Mobile: 210.240.7779
Email kpatterson@mayerllp.come mayerllp.com
Super Lawyers
Aunadile tate ere Pete ae
ABOTA
— meet
ao
Gar
@ af tHe Dotense Bar
'M, Kenneth Patterson
(s)
CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential; intended only for use by the person
any attached files), may contain confidential information which is protected by the attorney-client
named above. This e-mail (including
privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure,
copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission
in error, please immediately notify us by telephone, 972-701-7000 or e-mail: and delete the original message
and any attached documents/files.
you are not an intended recipient of this message, please notify the sender at (214) 217-8357. Unauthorized use,
dissemination, distribution or reproduction of this message is strictly prohibited and may be unlawful.
From: Mike Sawicki
Sent: Monday, April 8, 2024 1:15 PM
To: Kalvin Wiar
Subject: Re: Ray High/Low Agt CONFIDENTIAL
Kalvin,
This is my agreement.
4. Enter a high low agreement between the parties. The low is $175,000 and taxable court costs not to
exceed $25,000. This amount would be paid by TMLT. THE HIGH IS $500,000 to be paid by Dr. Mandava.
2. Submit the case to Dan Marley to arbitrate. It is my understanding that Mr. Marley will immediatley find
no causation as Dr. Mandava and invoke the “low” portion of the high low agreement.
3. This will trigger an immediate dismissal of all claims against Dr. Mandava involved in this case. It
would also cancel the upcoming trial.
4. Plaintiffs agree to accept the “low” payment and make no appeal of the arbitration finding or other
issues in the case.
This agreement would resolve all issues against Dr. Mandava.
Let me know if you have any questions,
Mike
Sent from my iPad
On Apr 8, 2024, at 9:03 AM, Kalvin Wiar wrote:
Good morning Mike,
Nothing is in stone until signed. However, we are close and are hammering out the wording on the
consent language. Should know more around noon, Dr. Mandava is looking over the most recent
draft.
Regards,
Kalvin B. Wiar, Esq.
Partner - Shaw & Associates
=
10670 N Central Expressway, Suite 245
Dallas, Texas 75231
(214)217-8357
kwiar@dkshaw.com
The preceding e-mail message and any attachments contain information that is confidential and
may be protected by the attorney-client communications privilege and/or other applicable
privileges and/or exemptions and may constitute non-public information. It is intended to be
conveyed only to the designated recipient(s), If you are not an intended recipient of this message,
please notify the sender at (214) 217-8357. Unauthorized use, dissemination, distribution or
reproduction of this message is strictly prohibited and may be unlawful.
From: Mike Sawicki
Sent: Monday, April 8, 2024 8:41 AM
To: Kalvin Wiar
Subject: Re: Ray High/Low Agt CONFIDENTIAL
Kalvin,
| received a call from Marley over the weekend that there was likely an agreement with Dr
Mandava to do the arbitration and high low. |s that correct?
Mike
=
Sent from my iPhone
On Apr 5, 2024, at 1:38 PM, Kalvin Wiar wrote:
Mr. Sawicki,
In orderto expedite things, and in a matter of professional courtesy considering the
: Court’s statements, can you please identify those who you knowat this point will be
appearing live.
At minimum, please confirm that each of your Plaintiffs and your experts.
Naturally, Dr. Mandava and our expert will be testifying live - there may be
more coming but you can forego any work on those two depositions specifically.
Regards,
Kalvin B. Wiar, Esq.
Partner - Shaw & Associates
10670 N Central Expressway, Suite 245
Dallas, Texas 75231
(214)217-8357
kwiar@dkshaw.com
The preceding e-mail message and any attachments contain information that is
confidential and may be protected by the attorney-client communications
privilege and/or other applicable privileges and/or exemptions and may constitute
non-public information. It is intended to be conveyed only to the designated
recipient(s). If you are not an intended recipient of this message, please notify the
sender at (214) 217-8357. Unauthorized use, dissemination, distribution or
reproduction of this message is strictly prohibited and may be unlawful.
From: Mike Sawicki
Sent: Friday, April 5, 2024 11:12 AM
To: Diane Shaw ; Kalvin Wiar
Ce: Brandi Concienne
Subject: Fw: Ray High/Low Agt CONFIDENTIAL
= This is one of the emails from Ken we discussed.
Michael Sawicki | Attorney
Board Certified Personal Injury
Texas Board of Legal Specialization
214.468.8844
214.468.8845 (f)
6116 N. Central Expressway
Suite 1400
Dallas, Texas 75206
msawicki@sawickilawfirm.com
www.sawickilawfirm.com
From: Kenneth Patterson
Sent: Wednesday, March 27, 2024 7:22 AM
To: Mike Sawicki
Subject: RE: Ray High/Low Agt CONFIDENTIAL
Mike,
This amount will be corrected to be equal to $200,000 minus the amount of the
documented taxable court cost to be reimbursed to you.
The agreement to reimburse the taxable Court costs will be made as part of a letter
agreement and not directly mentioned in the H/L document.
Ken
M. Kenneth (Ken) Patterson
Partner
= MAYER LLP
750 N. St. Paul Street
Suite 700
Dallas, Texas
Office: (214) 379 6900
Direct: (214) 379 6277
Mobile: (210) 240 7779
Email kpatterson@mayerllp.coms mayerllp.com
=
CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential;
intended only for use by the person (s) named above. This e-mail (including any attached files),
may contain confidential information which is protected by the attorney-client privilege. If you are
not the intended recipient, you are hereby instructed not to read this information and notified that
any disclosure, copying, distribution or taking of action in reliance on the contents hereof is strictly
prohibited. If you have received this transmission in error, please immediately notify us by
telephone, 972-701-7000 or e-mail: and delete the original message and
any attached documents/files.
From: Mike Sawicki
Sent: Tuesday, March 26, 2024 5:59 PM
To: Kenneth Patterson
Subject: Re: Ray High/Low Agt CONFIDENTIAL
Ken, the low needs to net us $200,000. Otherwise | could agree to this.
Michael Sawicki | Attorney
Board Certified Personal Injury
Texas Board of Legal Specialization
214.468.8844
214.468.8845 (f)
6116 N. Central Expressway
Suite 1400
Dallas, Texas 75206
msawicki@sawickilawfirm.com
www.sawickilawfirm.c
From: Kenneth Patterson
Sent: Tuesday, March 26, 2024 5:51 PM
To: Mike Sawicki
Subject: Ray High/Low Agt CONFIDENTIAL
Micheal,
This rough and only a proposal to be polished.
TMLT is in the process of vetting the idea we are discussing.
This is what a proposed confidential Contractual HIGH/LOW Agreement might look like.
There would also be a Rule 11 agreement executed, but not filed.
A copy of such a letter which would be tailored to this case is also attached.
Ken
M. Kenneth Patterson
Partner
MAYER LLP
750 N. Saint Paul Street
Suite 900
Dallas, TX 75201
Office: 214.379.6900
Direct: 214.379.6277
Mobile: 210.240.7779
Email kpatterson@mayerllp.come mayerllp.com
CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential;
intended only for use by the person (s) named above. This e-mail (including any attached files),
may contain confidential information which is protected by the attorney-client privilege. If you are
not the intended recipient, you are hereby instructed not to read this information and notified that
any disclosure, copying, distribution or taking of action in reliance on the contents hereof is strictly
prohibited. If you have received this transmission in error, please immediately notify us by
telephone, 972-701-7000 or e-mail: contact@mayerllp.com and delete the original message and
any attached documents/files.
E
EXHIBIT “B”
Mike Sawicki
From: Kalvin Wiar
Sent: Monday, April 8, 2024 1:35 PM
To: Mike Sawicki
Subject: RE: Ray High/Low Agt CONFIDENTIAL
Mike,
To counter after having spoken with Dr. Mandava.
1. Enter a high low agreement between the parties. The low is $175,000 and taxable court costs not to
exceed $24,999. This amount would be paid by TMLT. THE HIGH IS $200,000 to be paid by Dr. Mandava.
2. Submit the case to Dan Marley to arbitrate. It is my understanding that Mr. Marley will immediatley find
no causation as Dr. Mandava and invoke the “low” portion of the high low agreement.
3. This will trigger an immediate dismissal of alt claims against Dr. Mandava involved in this case. It
would also cancel the upcoming trial.
4, Plaintiffs agree to accept the “low” payment and make no appeal of the arbitration finding or other
issues in the case.
This agreement would resolve allissues against Dr. Mandava.
Regards,
Kalvin B. Wiar, Esq.
Partner - Shaw & Associates
S Shaw &Associates
10670 N Central Expressway, Suite 245
Dallas, Texas 75231
(214)217-8357
kwiar@dkshaw.com
The preceding e-mail message and any attachments contain information that is confidential and may be
protected by the attorney-client communications privilege and/or other applicable privileges and/or exemptions
and may constitute non-public information. It is intended to be conveyed only to the designated recipient(s). If
1
Mike Sawicki
a =
From: Mike Sawicki
Sent: Monday, April 8, 2024 1:47 PM
To: Kalvin Wiar
Subject: Re: Ray High/Low Agt CONFIDENTIAL
| willagree. Please confirm this is settled.
Sent from my iPhone
On Apr 8, 2024, at 1:35 PM, Kalvin Wiar wrote:
Mike,
To counter after having spoken with Dr. Mandava.
1. Enter a high low agreement between the parties. The low is $175,000 and taxable court
costs not to exceed $24,999. This amount would be paid by TMLT. THE HIGH IS $200,000 to
be paid by Dr. Mandava.
2. Submit the case to Dan Marley to arbitrate. It is my understanding that Mr. Marley will
immediatley find no causation as Dr. Mandava and invoke the “tow” portion of the high low
agreement.
3. This will trigger an immediate dismissal of all claims against Dr. Mandava involved in this
case. It would also cancel the upcoming trial.
4. Plaintiffs agree to accept the “low” payment and make no appeal of the arbitration
finding or other issues in the case.
This agreement would resolve all issues against Dr. Mandava.
Regards,
Kalvin B. Wiar, Esq.
Partner - Shaw & Associates
10670 N Central Expressway, Suite 245
Dallas, Texas 75231
EXHIBIT “C”
12:01 atl 5G+ as)
Sent: Monday, April 8, 2024 3:59 PM
To: Mike Sawicki
Subject: Rule 11 - Pretrial Deadlines
Micheal,
This correspondence is to confirm that, due to the impending resolution of this matter, Parties agree to push the
deadlines set for end of business today until tomorrow at noon.
Regards,
Kalvin B. Wiar, Esq.
Partner - Shaw & Associates
Sh aw & Asso ciates
oe anay A
10670 N Central Expressway, Suite 245
Dallas, Texas 75231
(214)217-8357
kwiar@dkshaw.com
The preceding e-mail message and any attachments contain information that is confidential and may be
protected by the attorney-client communications privilege and/or other applicable privileges and/or exemptions
and may constitute non-public information. It is intended to be conveyed only to the designated recipient(s). If
you are not an intended recipient of this message, please notify the sender at (214) 217-8357. Unauthorized use,
dissemination, distribution or reproduction of this message is strictly prohibited and may be unlawful.
EXHIBIT “F”
CAUSE NO. DC-21-17253
BRANDON RAY, INDIVIDUALLY, AND IN THE DISTRICT COURT
AS REPRESENTATIVE OF THE ESTATE
OF KIMBERLY RAY, DECEASED AND
AS NEXT FRIEND OF B.R., A MINOR;
MICHAEL WOODWORTH,
INDIVIDUALLY, AND DELORES COOK,
INDIVIDUALLY,
Plaintiffs,
Vv DALLAS COUNTY, TEXAS
JOSEPH SCOTT HOUGHTON, APRN-
CRNA; MANSFIELD PAIN SERVICES,
LLC; TEXAS PARTNERS HEALTHCARE
GROUP, PA; INTEGRITY WELLNESS
CENTER, LLC; VENKATESWARA RAO
MANDAVA, M.D.; MAURO ALBERTO
MOLINA, APRN-CRNA; SLEEPYTIME
ANESTHESIA, PLLC; BABER YOUNAS,
M.D.; NORTHEAST ANESTHESIA
ASSOCIATES, PLLC; AND NORTHWEST
ANESTHESIA ASSOCIATES, PLLC;
DEFENDANTS. 19187 JUDICIAL DISTRICT
AFFIDAVIT OF MICHAEL SAWICKI
STATE OF VE "4S §
§
county or be tas §
1 1 am an attorney for the Plaintiffs in the case against Dr. Rao Mandava. | have
personally been involved in the settlement discussions regarding his case with at least three
different sets of defense attorneys.
2, In March, David Criss withdrew as counsel for Defendant. I received a call from
Ken Patterson a few days after Mr. Criss’ withdrawal. He told me he represented the Defendant
and offered a settlement proposal. Mr. Patterson proposed that the parties enter into a “high-low”
AFFIDAVIT OF MICHAEL SAWICKI PAGE 1 OF7
agreement and submit the dispute between the parties to an arbitration before Dan Marley. Mr.
Patterson sent me emails outlining the process and the agreements. I agreed to his proposal via
emails on March 26-27, 2024. The emails are attached below:
From: Kenneth Patterson
Sent: Tuesday, March 26, 2024 5:51 PM
To: Mike Sawicki
Subject: Ray High/Low Agt CONFIDENTIAL
Michael,
This rough and only a proposal to be polished.
TMLT is in the process of vetting the idea we are discussing.
This is what a proposed confidential Contractual HIGH/LOW Agreement might look like.
There would also be a Rule 11 agreement executed, but not filed.
A copy of such a letter which would be tailored to this case is also attached.
Ken
MAYER |
M. Kenneth Patterson
Partner
MAYER LLP
750 N. Saint Paul Street
Suite 900
Dallas, TX 75201
Office: 214.379.6900
Direct: 214.379.6277
Mobile: 210.240.7779
Email kpatterson@mayerllp.come mayerllp.com
arte
Mi. Kenneth Patterson,
Sa
ABOTA
Super Lawyers
dr6 Os 6
From: Mike Sawicki
Sent: Tuesday, March 26, 2024 5:51 PM
AFFIDAVIT OF MICHAEL SAWICKT PAGE 2 OF7
To: Kenneth Patterson
Subject: Re: Ray High/Low Agt CONFIDENTIAL
Ken, the low needs to net us $200,000. Otherwise I could agree to this.
J SAWICKI LAW
Michael Sawicki | Afforney
Board Certified Personal Injury
Texas Board of Legal Specialization
214.468.8844
214.468.8845 (f)
6116 N. Central Expressway
Suite 1400
Dallas. 8 75206
msawic wickilawlirm.com
Wwww.sawi il awtirm.com
—
From: Kenneth Patterson
Micheal,
This rough and only a proposal to be polished.
TMLLT is in the process of vetting the idea we are discussing.
This is what a proposed confidential Contractual HIGH/LOW Agreement might look like.
There would also be a Rule 11 agreement executed, but not filed.
A copy of such a letter which would be tailored to this case is also attached.
Ken
[ waver |
M. Kenneth Patterson
Partner
AFFIDAVIT OF MICHAEL SAWICKI PAGE 3 OF7
MAYER LLP
750 N. Saint Paul Street
Suite 900
Dallas, TX 75201
Office: 214.379.6900
Direct: 214.379.6277
Mobile: 210.240.7779
Email kpatterson(@mayerll .come mayerllp.com
Ok on this side. Have you heard from TMLT?
J SAWICKI LAW
Michael Sawicki | Afforney
Board Certified Personal Injury
Texus Board of Legal Specialization
214.468.8844
214.468.8845 (1)
6116 .N, Central Expressway
Suite 1400
Dallas. s 75206
msawick wickilawfirm.com
Www. saws awfirm.com
Subject: RE: Ray High/Low Agt CONFIDENTIAL
Mike,
This amount will be corrected to be equal to $200,000 minus the amount of the documented
taxable court cost to be reimbursed to you.
The agreement to reimburse the taxable Court costs will be made as part of a letter agreement
and not directly mentioned in the H/L document.
Ken
AFFIDAVIT OF MICHAEL SAWICKI PAGE 4 OF7
MAYER |
M. Kenneth (Ken) Patterson
Partner
MAYER LLP
750 N. St. Paul Street
Suite 700
Dallas, Texas
Office: (214) 379 6900
Direct: (214) 379 6277
Mobile: (210) 240 7779
Email kpatterson@mayerllp.come mayerllp.com
Matin ub
fl
Bsea
ABOTA
Super Lawyers
th
adr
.
The Voice of the Dotense Bar
'M. Kenneth Patterson
From: Mike Sawicki
Sent: Wednesday, March 27, 2024 1 37 AM
To: Kenneth Patterson
Subject: Re: Ray High/Low Agt CONFIDENTIAL
Ken
Ok on this side.
&
mJ SAWICKI LAW
Michael Sawicki | dorney
Board Certified Personal Injury
Texas Board of Legal Specialization
AFFIDAVIT OF MICHAEL SAWICKI PAGE 5 OF7
214.468.8844
214.468.8845 (f)
6116 N, Central Exp way
Suite 1400
Dallas, Texas 75206
msawich ckilawtirm.com
1 irm ”
3 I believed the agreement to be in place until April 2, 2024. I awoke to find yet
another set of lawyers had entered their appearance for the Defendant. | spoke with Diane Shaw
and Kalvin Wiar, some of the lawyers who had now entered the case, and asked about the
agreement I had with Mr. Patterson. Mr. Wiar informed me he was not familiar with this
agreement and asked if ] would forward the prior discussions with Mr. Patterson to him. On April
5, 2024, I forwarded Mr. Wiar the prior email stream containing the agreement with Mr. Patterson.
Mr. Wiar told me he was meeting with the Defendant over the weekend and that an agreement
could be reached.
4. On April 8, 2024, I had still not received confirmation of the agreement so I called
Mr. Wiar. He requested that I send a formal proposal consistent with the prior agreement with Mr.
Patterson for him to review with the Defendant. I promptly did this and received a call from Mr.
Wiar asking if we would agree to reduce the “high” portion of the proposal. I verbally agreed to
this request. Mr, Wiar told me this would resolve the case.
2 A few minutes after that call, I received an email containing Mr. Wiar’s counter-
proposal reflecting the reduced “high” portion of the “high-low” agreement. I immediately
accepted the proposal.
6 With mounting trial and pre-trial deadlines, I asked Mr. Wiar when we could expect
to receive the settlement funds and other settlement documents to finalize the case. I was then told
that the Defendant had refused to honor the settlement agreement and objected to unspecified
wording.
1
I discussed impending trial deadlines with Mr. Wiar and he repeatedly indicated
that we did not need to continue litigation efforts as the settlement was completed. He sent me a
Rule 11 agreement extending deadlines to produce trial exhibit, witness lists and deposition
excerpts. His text stated:
“Don’t worry about the deadlines for today. I know they are quickly approaching.”
I replied “ Send me a Rule | labout the deadlines asap.”
Mr. Wiar replied “Sent. Just pushed to noon tomorrow, Don’t expect to get there as the
language should be hammered out shortly.”
AFFIDAVIT OF MICHAEL SAWICKI PAGE 6 OF7
OO) Q)
8 Despite th
Preview
FILED 4/9/2024 1:13 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Lafonda Sims DEPUTY CAUSE NO, DC-21-17253 BRANDON RAY, INDIVIDUALLY, AND IN THE DISTRICT COURT AS REPRESENTATIVE OF THE ESTATE OF KIMBERLY RAY, DECEASED AND AS NEXT FRIEND OF B.R., A MINOR; MICHAEL WOODWORTH, INDIVIDUALLY, AND DELORES COOK, INDIVIDUALLY, Plaintiffs, Vv DALLAS COUNTY, TEXAS JOSEPH SCOTT HOUGHTON, APRN- CRNA; MANSFIELD PAIN SERVICES, LLC; TEXAS PARTNERS HEALTHCARE GROUP, PA; INTEGRITY WELLNESS CENTER, LLC; VENKATESWARA RAO MANDAVA, M.D.; MAURO ALBERTO MOLINA, APRN-CRNA; SLEEPYTIME ANESTHESIA, PLLC; BABER YOUNAS, M.D.; NORTHEAST ANESTHESIA ASSOCIATES, PLLC; AND NORTHWEST ANESTHESIA ASSOCIATES, PLLC; DEFENDANTS. 19187 JUDICIAL DISTRICT PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Plaintiffs and file this Motion to Enforce settlement agreement, and request for damages and attorneys’ fees for breach of contract, and in support would show the Court as follows: PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 1 OF 10 I BACKGROUND FACTS 1 Plaintiffs engaged in extensive settlement discussions with both past and present counsel for the Defendant. Prior counsel, Ken Patterson, proposed submitting the dispute between the parties to an arbitration. He also proposed entering into a high low agreement prior to the arbitration. The plaintiffs agreed to this proposal with Mr. Patterson. (See attached emails from Mr, Patterson, Exhibit “A’’.) 2 Defendant Mandava abruptly terminated Mr. Patterson’s representation and current counsel filed an appearance on April 1, 2024. 3 Plaintiffs’ counsel re-engaged the new counsel and educated them about the prior agreement to submit the case to arbitration. Defendant’s new counsel requested Plaintiffs to forward the proposed agreement created by Mr, Patterson for their review. New defense counsel indicated that they had discussed the agreement with the defendant and requested plaintiff to forward a new written proposal. Plaintiffs forwarded that proposal on April 8, 2024 shortly before the eclipse blotted out the sun in Dallas. Defense counsel called Plaintiffs’ counsel after receiving the proposal and indicated he would respond shortly. 4 At approximately 1:35 p.m., as the moon began moving away from the sun and light returned to Dallas, defense counsel sent the following email: Mike, To counter after having spoken with Dr. Mandava. (Emphasis added.) 1. Enter a high low agreement between the parties. The low is $175,000 and taxable court costs not to exceed $24,999. This amount would be paid by TMLT. THE HIGH IS $200,000 to be paid by Dr. Mandava. PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 2 OF 10 2. Submit the case to Dan Marley to arbitrate. It is my understanding that Mr. Marley will immediately find no causation as Dr. Mandava and invoke the “low” portion of the high low agreement. 3. This will trigger an immediate dismissal of all claims against Dr. Mandava involved in this case, It would also cancel the upcoming trial. 4. Plaintiffs agree to accept the “low” payment and make no appeal of the arbitration finding or other issues in the case. This agreement would resolve all issues against Dr. Mandava. Regards, Kalvin B, Wiar, Esq. Partner - Shaw & Associates (See attached Exhibit “B”) 5 At 1:47 p.m. Plaintiffs’ counsel sent Defense counsel an email in response to the proposal stating: “I will agree.” (Emphasis added.) 6 Defense counsel later stated a formal document outlining the agreement was being crafted. Despite indicating that it would be forwarded on April 8, 2024, no such document was transmitted, 7 With pending deadlines for the April 16, 2024 trial approaching that afternoon, Plaintiffs’ counsel repeatedly asked for the document settling the case. Defense counsel responded with offers to extend the deadlines: “Just pushed to noon tomorrow. Don’t expect to get there as the language should be hammered out shortly.” (Text message from defense counsel April 8, 2024 at 3:55 p.m. Exhibit “C”.) This was reiterated in an email sent a few minutes later: PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 3 OF 10 Michael, This correspondence is to confirm that, due to the impending resolution of this matter, Parties agree to push the deadlines set for end of business today until tomorrow at noon. Regards, Kalvin B. Wiar, Esq. Partner - Shaw & Associates (Email from defense counsel Exhibit “D”). 8 Rather than produce the document, Defense counsel has continued to file motions with the court and witness and exhibit lists that are untimely. 9) On April 9, 2024, Plaintiffs sent a presentment letter to Defendant seeking to enforce the settlement. No response was made. IL. ARGUMENT AND AUTHORITIES - A valid contract exists between the parties 10. Plaintiffs unconditionally accepted Defendant’s settlement offer. The Defendant’s email setting out the terms and conditions of the settlement and Plainitffs’ unconditional acceptance constitutes a valid and enforceable contract. ll, The existence of a contractual agreement is generally a legal determination. See Henry C. Beck Co. v. Arcrete, Inc., 515 S.W.2d 712, 716 (Tex. App—Dallas 1974, writ dism'd)); Power Reps, Inc. v. Cates, No. 01-13-00856-CV, 2015 WL 4747215, at *5 (Tex. App.— Houston [Ist Dist.] Aug. 11, 2015, no pet.) (mem. op.) (“Determination of whether a written instrument constitutes a contract or not requires a construction of the instrument, and is therefore PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 4 OF 10 addressed to the court and not the jury.” (quoting Success Motivation Inst., Inc. v. Jamieson Film Co., 473 S.W.2d 275, 280 (Tex. App—Waco 1971, no writ))). A valid contract requires: (1) an offer; (2) acceptance of the offer in strict compliance with its terms; (3) a meeting ofthe minds as to both the contract’s subject matter and its essential and material terms; (4) each party's consent to the contract’s terms; (5) intent that the contract be mutual and binding; and (6) consideration. Grisham v, Bird, No. 05-19-00400-CV, 2020 WL 1502774, at *4 (Tex. App.— Dallas Mar. 30, 2020, no pet.) (mem. op.). An enforceable contract must address its material terms with enough detail to allow a court to both determine the rights and responsibilities of the parties and confirm both sides intended to be contractually bound. 12. Here, Mr. Wiar’s email and Mr. Sawicki’s unconditional acceptance demonstrate a contract was formed. First, Mr. Wiar represented the settlement offer was made after a discussion with Dr. Mandava. (“To counter after having spoken to Dr. Mandarva.”) This shows Dr. Mandava was making an offer to the Plaintiffs to settle the claims involved in the case. Second, Mr. Sawicki’s response “I will agree,” constitutes an unconditional acceptance of that offer by the Plaintiffs. Third, the two emails demonstrate a meeting of the minds as to the contract’s subject matter and its essential and material terms. Fourth, Mr. Wiar’s statement “To counter after having spoken to Dr. Mandava” and Mr. Sawicki’s email “I will agree,” demonstrate each of the parties consented to the contract terms. Fifth, the language indicating Defendant would make a settlement payment and Plaintiffs’ agreement to drop all claims and not appeal, demonstrate the contract was mutual and binding. Finally, Mr. Wiar’s offer of $175,000 and $24,999 in taxable court costs and Plaintiffs’ offer to drop all claims and not appeal, demonstrate consideration by both sides. 13; All elements necessary to create a binding contract are present. The Plaintiffs’ motion should be granted. PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 5 OF 10 - Enforceable as Rule 11 agreement 14, The Court could also find the email agreement between counsel constitutes a valid and enforceable Rule 11 agreement. Texas Courts have enforced Rule 11 agreements like they were contracts. Rule 1 states: “Unless otherwise provided in these rules, 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, or unless it be made in open court and entered of record.” 15. “The purpose of Rule 11 is to ensure that agreements of counsel affecting the interests of their clients are not left to the fallibility of human recollection and that the agreements themselves do not become sources of controversy.” See ExxonMobil Corp. yv. Valence Operating, Co. 1 74 §.W.3d 303, 309 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). The Court has a ministerial duty to enforce a valid Rule 11 agreement. See EZ Pawn Corp.v. Mancias, 934 S.W.2d 87,91 (Tex. 1996); Fed. Lanes, Inc. v. City of Houston, 905 8.W.2d 686, 690 (Tex. App.--Houston 1 Dist.] 1995, writ denied), Once a valid settlement agreement has been made, the party wishing to enforce the settlement agreement need only file the agreement with the court. /d. 16, The Texas Supreme Court has held a Rule 11 settlement agreement is enforceable as a contract regardless of the fact that one party has withdrawn consent. See Padilla v, LaFrance, 907 S.W. 2d 454 (Tex. 1995), see also CherCo Properties, Inc. v. Law. Snakard & Gambill, P.C., 985 S.W.2d 262, 265-66 (Tex. App.--Fort Worth 1999, no pet.). In Padilla, the parties entered into PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE6 OF 10 a settlement agreement through a Rule 11 on a motor vehicle claim. The Defendant forwarded the Plaintiffs settlement checks but the Plaintiffs refused to accept them claiming there was no enforceable agreement because the settlement was not timely accepted. The Supreme Court disagreed and enforced the settlement agreement noting that the written agreement was sufficient. U7, In Padilla, the Supreme Court held a party cannot withdraw their consent to a Rule 11 settlement agreement. Jd. at 456-457. The only effect of a party’s withdrawal of consent to a Rule 11 settlement agreement is that the judgment sought becomes one of enforcing a binding contract rather than the basis of an agreed judgment. /d. at 457. If a party seeking to enforce the agreement presents proper pleadings and proof that the agreement was in compliance with the requirements of Rule, 11, a Court can enforce such an agreement. Jd. at 457. 18. In this case, Defendant’s email containing his counter proposal to Plaintiffs’ initial settlement offer is 1) in writing, 2) signed by the defendant’s counsel and 3) constitutes an agreement regarding the pending suit.! The April 8, 2024 email is a binding settlement agreement under Rule 11. Plaintiffs made a presentment demand to enforce the contract on April 9, 2024. II. DAMAGES DUE TO BREACH OF CONTRACT ~ Consequential Damages 19, In addition to enforcing the underlying agreement, Plaintiffs are entitled to seek other damages as a result of Defendant’s breach of contract. These damages may include both direct and consequential damages. See Dallas/Fort Worth Int'l Airport Bd. v. Vizant Techs., LLC, 1 NOTE: Defense counsel may try to argue that his email, sent on his firm’s address, containing his firm’s logo, his full name and “Esq.” does not constitute a “signed” document. Such an argument would be specious and incorrect. if counsel does not stand by statements made in his emails, none of his words should be trusted. PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 7 OF 10 576 S.W.3d 362, 373 (Tex. 2019), Direct damages include restoration of “the benefit of a plaintiff's bargain.” Quigley v. Bennett, 227 S.W.3d 51, 56 (Tex. 2007) (Brister, J., concurring). 20. Consequential damages compensate the plaintiff for foreseeable losses that were caused by the breach but were not a necessary consequence of it. Stuart v. Bayless ', 964 S.W.2d 920, 921 (Tex. 1998). To recover consequential damages, it must be foreseeable that they would result from the breach of contract. Consequential damages must also be “proved with reasonable certainty.” Phillips v. Carlton Energy Grp., LLC, 475 S.W.3d 265, 278 (Tex. 2015). “Proof need not be exact, but neither can it be speculative.” /c/. The losses must be “susceptible of being established by proof to that degree of certainty which the law demands.” Sw. Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1099 (1938). 21, In the present case, Defendant’s breach has caused Plaintiffs to incur additional litigation expenses and spend time preparing for the April 15, 2024 trial date. These expenses include employee time spent complying with Court-ordered pre-trial deadlines, obtaining subpoenas for trial witnesses and time preparing experts and other witnesses for their testimony. None of these expenses would have been incurred if Defendant had simply followed through on his settlement agreement. Plaintiffs are still incurring these expenses as the time before the trial date fast approaches. - Attorney’s Fee. 22. In additional to consequential damages, Plaintiffs are entitled to seek attorneys’ fees for enforcing the contract. Tex. Civ. Prac. & Rem. Section 38.001 allows attorneys’ fees to be recovered in cases involving written contracts. 23. To recover fees under statute providing that a party in a breach of contract action may recover reasonable attorney fees, a party must (1) prevail on a cause of action for which fees PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 8 OF 10 are recoverable, and (2) recover damages. Restrepo v. Alliance Riggers & Constructors, Lid. (App. 8 Dist. 2017) 538 S.W.3d 724. In a breach of contract case, attorney fees may only be assessed against a natural person or an actual corporation. First Cash, Lid. v. JO-Parkdale, LLC (App. 13 Dist. 2018) 538 S.W.3d 189. Attorney’s fees, authorized by statute in successful suit for breach of contract, are in nature of penalty or punishment for failure to pay just debt. Wheelways Ins. Co. v. Hodges (App. 6 Dist. 1994) 872 S.W.2d 776, 24, In the present case, Plaintiffs have made a presentment of the debt owed under the settlement contract. (See attached Exhibit E). Defendant has refused to comply with the agreement. 25. Plaintiffs have been forced to spend attorney time seeking to enforce the agreement, researching and drafting the present motion and preparing for a hearing on the matter. The Plaintiffs’ attorney is primarily a contingency fee based lawyer but has performed hourly services in other matters at a rate of $400 an hour. The Plaintiffs lawyers have spent more than four hours associated with efforts to enforce the settlement agreement. (See attached Exhibit “F”, Affidavit of Michael Sawicki.) IV. CONCLUSION AND PRAYER 26. Plaintiffs’ Motion to Enforce the Settlement Agreement should be granted. The April 8, 2024 email from Defense counsel Kalvin Wiar constitutes a binding Rule 11 agreement. The Texas Supreme Court has held that Courts can enforce Rule 11 agreements as an action sounding in contract law. The Plaintiffs have incurred damages as a foreseeable consequence of Defendant’s breach. They have been forced to incur additional litigation costs, and spend employee PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 9 OF 10 time preparing for the upcoming trial date. They have also incurred attorneys’ fees associated with researching and writing this motion. 27. Plaintiffs request the Court enforce the settlement agreement and award reasonable damages associated with the Defendant’s breach. Respectfully submitted, Wie) Ss. WICKI \\ Bes MICHAEL G. SAWICKI State Bar No. 17692500 msawicki@sawickilawtirm.com ANDREW A. JONES State Bar No. 24077910 ajones@sawickilawfirm.com 6116 N. Central Expressway, Ste. 1400 Dallas, Texas 75206 (214) 468-8844 (214) 468-8845 (Fax) ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing has been delivered via electronic service through EFM, U.S. Postal Service, email, eservice, certified mail/ return receipt requested, hand delivery and/or facsimile to all counsel onthis-9th-day-ef April, 2024. As MICHAEL G. SAWICKI PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND REQUEST FOR DAMAGES AND ATTORNEY’S FEES FOR BREACH OF CONTRACT PAGE 10 OF 10 EXHIBIT “A” Mike Sa From: Kenneth Patterson ) Sent: Tuesday, March 26, 2024 5:51 PM To: Mike Sawicki Subject: Ray High/Low Agt CONFIDENTIAL Attachments: HIGH.LOW AGT.docx; Rule 11 - Dismissal, Settlmt & Arb..docx Micheal, This rough and only a proposal to be polished. TMLT is in the process of vetting the idea we are discussing. This is what a proposed confidential Contractual HIGH/LOW Agreement might look like. There would also be a Rule 11 agreement executed, but not filed. A copy of such a letter which would be tailored to this case is also attached. Ken MAYER M. Kenneth Patterson Partner MAYER LLP 750 N. Saint Paul Street Suite 900 Dallas, TX 75201 Office: 214.379.6900 Direct: 214.379.6277 Mobile: 210.240.7779 Email kpatterson@mayerllp.com* mayerllp.com Soper anys Stunner ebtet =o Pemeie : rv a ABOTA wt . Bari m 2 of Ve Dotense Bar 1M. Kenanth Patterson, CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential; intended only for use by the person (s) named above. This e-mail (including any attached files), may contain confidential information which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure, copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission in error, please immediately notify us by telephone, 972-701-7000 or e-mail: and delete the original message and any attached documents/files. : Mike Sawicki — From: Mike Sawicki Sent: Wednesday, March 27, 2024 10:37 AM To: Kenneth Patterson Subject: Re: Ray High/Low Agt CONFIDENTIAL Ok on this side. Have you heard from TMLT? SAWICK! LAW Michael Sawicki | Allorney Board Certified Personal Injuty Texas Board of Legal Specialization 214.468.8844 214.468.8845 (f) 6116 N. Central Expressway Suite 1400 Dallas, Texas 75206 www. wfirm. jm ee = _ From: Kenneth Patterson Sent: Wednesday, March 27, 2024 7:22 AM To: Mike Sawicki Subject: RE: Ray High/Low Agt CONFIDENTIAL E Mike, This amount will be corrected to be equalto $200,000 minus the amount of the documented taxable court cost to be reimbursed to you. The agreement to reimburse the taxable Court costs will be made as part of a letter agreement and not directly mentioned in the H/L document. Ken MAYER M. Kenneth (Ken) Patterson Partner MAYER LLP 750 N. St. Paul Street Suite 700 Dallas, Texas : Office: (214) 379 6900 Dire (214) 379 6277 Mobile: (210) 240 7779 Email kpatterson@mayerllp.com* mayerllp.com Siper Lawpess Marindale Hubbell dri. 1 ent mans aia Ranh sectes 14122008 mN IM Kenneth Paterson ABOTA Thee Rosters The Voice of the Defense Bar NOTICE: The information contained herein is personal and confidential; intended only for use by the person (s) CONFIDENTIALITY named above. This e-mail (including any attached files), may contain confidential information which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure, copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission message in error, please immediately notify us by telephone, 972-701-7000 or e-mail: contact@mayerllp.com and delete the original and any attached documents/files. From: Mike Sawicki Sent: Tuesday, March 26, 2024 5:59 PM To: Kenneth Patterson Subject: Re: Ray High/Low Agt CONFIDENTIAL Ken, the low needs to net us $200,000. Otherwise | could agree to this. =~ SAWICKI LAW Michael Sawicki | Attorney Board Certified Personal Injury Texas Board of Legal Specialization 214.468.8844 214.468.8845 (f) 6116 N. Central Expressway Suite 1400 Dallas, exas 75206 www.sal lawfirm.com a = From: Kenneth Patterson Sent: Tuesday, March 26, 2024 5:51 PM To: Mike Sawicki < icki sawickilawfirm.com> Subject: Ray High/Low Agt CONFIDENTIAL Micheal, This rough and only a proposal to be polished. TMLT is in the process of vetting the idea we are discussing. This is what a proposed confidential Contractual HIGH/LOW Agreement might look like. There would also be a Rule 11 agreement executed, but not filed. 2 = A copy of such a letter which would be tailored to this case is also attached. Ken MAYER M. Kenneth Patterson Partner MAYER LLP 750 N. Saint Paul Street Suite 900 Dallas, TX 75201 Office: 214.379.6900 Direct: 214.379.6277 Mobile: 210.240.7779 Email kpatterson@mayerllp.come mayerllp.com Super Lawyers Aunadile tate ere Pete ae ABOTA — meet ao Gar @ af tHe Dotense Bar 'M, Kenneth Patterson (s) CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential; intended only for use by the person any attached files), may contain confidential information which is protected by the attorney-client named above. This e-mail (including privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure, copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission in error, please immediately notify us by telephone, 972-701-7000 or e-mail: and delete the original message and any attached documents/files. you are not an intended recipient of this message, please notify the sender at (214) 217-8357. Unauthorized use, dissemination, distribution or reproduction of this message is strictly prohibited and may be unlawful. From: Mike Sawicki Sent: Monday, April 8, 2024 1:15 PM To: Kalvin Wiar Subject: Re: Ray High/Low Agt CONFIDENTIAL Kalvin, This is my agreement. 4. Enter a high low agreement between the parties. The low is $175,000 and taxable court costs not to exceed $25,000. This amount would be paid by TMLT. THE HIGH IS $500,000 to be paid by Dr. Mandava. 2. Submit the case to Dan Marley to arbitrate. It is my understanding that Mr. Marley will immediatley find no causation as Dr. Mandava and invoke the “low” portion of the high low agreement. 3. This will trigger an immediate dismissal of all claims against Dr. Mandava involved in this case. It would also cancel the upcoming trial. 4. Plaintiffs agree to accept the “low” payment and make no appeal of the arbitration finding or other issues in the case. This agreement would resolve all issues against Dr. Mandava. Let me know if you have any questions, Mike Sent from my iPad On Apr 8, 2024, at 9:03 AM, Kalvin Wiar wrote: Good morning Mike, Nothing is in stone until signed. However, we are close and are hammering out the wording on the consent language. Should know more around noon, Dr. Mandava is looking over the most recent draft. Regards, Kalvin B. Wiar, Esq. Partner - Shaw & Associates = 10670 N Central Expressway, Suite 245 Dallas, Texas 75231 (214)217-8357 kwiar@dkshaw.com The preceding e-mail message and any attachments contain information that is confidential and may be protected by the attorney-client communications privilege and/or other applicable privileges and/or exemptions and may constitute non-public information. It is intended to be conveyed only to the designated recipient(s), If you are not an intended recipient of this message, please notify the sender at (214) 217-8357. Unauthorized use, dissemination, distribution or reproduction of this message is strictly prohibited and may be unlawful. From: Mike Sawicki Sent: Monday, April 8, 2024 8:41 AM To: Kalvin Wiar Subject: Re: Ray High/Low Agt CONFIDENTIAL Kalvin, | received a call from Marley over the weekend that there was likely an agreement with Dr Mandava to do the arbitration and high low. |s that correct? Mike = Sent from my iPhone On Apr 5, 2024, at 1:38 PM, Kalvin Wiar wrote: Mr. Sawicki, In orderto expedite things, and in a matter of professional courtesy considering the : Court’s statements, can you please identify those who you knowat this point will be appearing live. At minimum, please confirm that each of your Plaintiffs and your experts. Naturally, Dr. Mandava and our expert will be testifying live - there may be more coming but you can forego any work on those two depositions specifically. Regards, Kalvin B. Wiar, Esq. Partner - Shaw & Associates 10670 N Central Expressway, Suite 245 Dallas, Texas 75231 (214)217-8357 kwiar@dkshaw.com The preceding e-mail message and any attachments contain information that is confidential and may be protected by the attorney-client communications privilege and/or other applicable privileges and/or exemptions and may constitute non-public information. It is intended to be conveyed only to the designated recipient(s). If you are not an intended recipient of this message, please notify the sender at (214) 217-8357. Unauthorized use, dissemination, distribution or reproduction of this message is strictly prohibited and may be unlawful. From: Mike Sawicki Sent: Friday, April 5, 2024 11:12 AM To: Diane Shaw ; Kalvin Wiar Ce: Brandi Concienne Subject: Fw: Ray High/Low Agt CONFIDENTIAL = This is one of the emails from Ken we discussed. Michael Sawicki | Attorney Board Certified Personal Injury Texas Board of Legal Specialization 214.468.8844 214.468.8845 (f) 6116 N. Central Expressway Suite 1400 Dallas, Texas 75206 msawicki@sawickilawfirm.com www.sawickilawfirm.com From: Kenneth Patterson Sent: Wednesday, March 27, 2024 7:22 AM To: Mike Sawicki Subject: RE: Ray High/Low Agt CONFIDENTIAL Mike, This amount will be corrected to be equal to $200,000 minus the amount of the documented taxable court cost to be reimbursed to you. The agreement to reimburse the taxable Court costs will be made as part of a letter agreement and not directly mentioned in the H/L document. Ken M. Kenneth (Ken) Patterson Partner = MAYER LLP 750 N. St. Paul Street Suite 700 Dallas, Texas Office: (214) 379 6900 Direct: (214) 379 6277 Mobile: (210) 240 7779 Email kpatterson@mayerllp.coms mayerllp.com = CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential; intended only for use by the person (s) named above. This e-mail (including any attached files), may contain confidential information which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure, copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission in error, please immediately notify us by telephone, 972-701-7000 or e-mail: and delete the original message and any attached documents/files. From: Mike Sawicki Sent: Tuesday, March 26, 2024 5:59 PM To: Kenneth Patterson Subject: Re: Ray High/Low Agt CONFIDENTIAL Ken, the low needs to net us $200,000. Otherwise | could agree to this. Michael Sawicki | Attorney Board Certified Personal Injury Texas Board of Legal Specialization 214.468.8844 214.468.8845 (f) 6116 N. Central Expressway Suite 1400 Dallas, Texas 75206 msawicki@sawickilawfirm.com www.sawickilawfirm.c From: Kenneth Patterson Sent: Tuesday, March 26, 2024 5:51 PM To: Mike Sawicki Subject: Ray High/Low Agt CONFIDENTIAL Micheal, This rough and only a proposal to be polished. TMLT is in the process of vetting the idea we are discussing. This is what a proposed confidential Contractual HIGH/LOW Agreement might look like. There would also be a Rule 11 agreement executed, but not filed. A copy of such a letter which would be tailored to this case is also attached. Ken M. Kenneth Patterson Partner MAYER LLP 750 N. Saint Paul Street Suite 900 Dallas, TX 75201 Office: 214.379.6900 Direct: 214.379.6277 Mobile: 210.240.7779 Email kpatterson@mayerllp.come mayerllp.com CONFIDENTIALITY NOTICE: The information contained herein is personal and confidential; intended only for use by the person (s) named above. This e-mail (including any attached files), may contain confidential information which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby instructed not to read this information and notified that any disclosure, copying, distribution or taking of action in reliance on the contents hereof is strictly prohibited. If you have received this transmission in error, please immediately notify us by telephone, 972-701-7000 or e-mail: contact@mayerllp.com and delete the original message and any attached documents/files. E EXHIBIT “B” Mike Sawicki From: Kalvin Wiar Sent: Monday, April 8, 2024 1:35 PM To: Mike Sawicki Subject: RE: Ray High/Low Agt CONFIDENTIAL Mike, To counter after having spoken with Dr. Mandava. 1. Enter a high low agreement between the parties. The low is $175,000 and taxable court costs not to exceed $24,999. This amount would be paid by TMLT. THE HIGH IS $200,000 to be paid by Dr. Mandava. 2. Submit the case to Dan Marley to arbitrate. It is my understanding that Mr. Marley will immediatley find no causation as Dr. Mandava and invoke the “low” portion of the high low agreement. 3. This will trigger an immediate dismissal of alt claims against Dr. Mandava involved in this case. It would also cancel the upcoming trial. 4, Plaintiffs agree to accept the “low” payment and make no appeal of the arbitration finding or other issues in the case. This agreement would resolve allissues against Dr. Mandava. Regards, Kalvin B. Wiar, Esq. Partner - Shaw & Associates S Shaw &Associates 10670 N Central Expressway, Suite 245 Dallas, Texas 75231 (214)217-8357 kwiar@dkshaw.com The preceding e-mail message and any attachments contain information that is confidential and may be protected by the attorney-client communications privilege and/or other applicable privileges and/or exemptions and may constitute non-public information. It is intended to be conveyed only to the designated recipient(s). If 1 Mike Sawicki a = From: Mike Sawicki Sent: Monday, April 8, 2024 1:47 PM To: Kalvin Wiar Subject: Re: Ray High/Low Agt CONFIDENTIAL | willagree. Please confirm this is settled. Sent from my iPhone On Apr 8, 2024, at 1:35 PM, Kalvin Wiar wrote: Mike, To counter after having spoken with Dr. Mandava. 1. Enter a high low agreement between the parties. The low is $175,000 and taxable court costs not to exceed $24,999. This amount would be paid by TMLT. THE HIGH IS $200,000 to be paid by Dr. Mandava. 2. Submit the case to Dan Marley to arbitrate. It is my understanding that Mr. Marley will immediatley find no causation as Dr. Mandava and invoke the “tow” portion of the high low agreement. 3. This will trigger an immediate dismissal of all claims against Dr. Mandava involved in this case. It would also cancel the upcoming trial. 4. Plaintiffs agree to accept the “low” payment and make no appeal of the arbitration finding or other issues in the case. This agreement would resolve all issues against Dr. Mandava. Regards, Kalvin B. Wiar, Esq. Partner - Shaw & Associates 10670 N Central Expressway, Suite 245 Dallas, Texas 75231 EXHIBIT “C” 12:01 atl 5G+ as) Sent: Monday, April 8, 2024 3:59 PM To: Mike Sawicki Subject: Rule 11 - Pretrial Deadlines Micheal, This correspondence is to confirm that, due to the impending resolution of this matter, Parties agree to push the deadlines set for end of business today until tomorrow at noon. Regards, Kalvin B. Wiar, Esq. Partner - Shaw & Associates Sh aw & Asso ciates oe anay A 10670 N Central Expressway, Suite 245 Dallas, Texas 75231 (214)217-8357 kwiar@dkshaw.com The preceding e-mail message and any attachments contain information that is confidential and may be protected by the attorney-client communications privilege and/or other applicable privileges and/or exemptions and may constitute non-public information. It is intended to be conveyed only to the designated recipient(s). If you are not an intended recipient of this message, please notify the sender at (214) 217-8357. Unauthorized use, dissemination, distribution or reproduction of this message is strictly prohibited and may be unlawful. EXHIBIT “F” CAUSE NO. DC-21-17253 BRANDON RAY, INDIVIDUALLY, AND IN THE DISTRICT COURT AS REPRESENTATIVE OF THE ESTATE OF KIMBERLY RAY, DECEASED AND AS NEXT FRIEND OF B.R., A MINOR; MICHAEL WOODWORTH, INDIVIDUALLY, AND DELORES COOK, INDIVIDUALLY, Plaintiffs, Vv DALLAS COUNTY, TEXAS JOSEPH SCOTT HOUGHTON, APRN- CRNA; MANSFIELD PAIN SERVICES, LLC; TEXAS PARTNERS HEALTHCARE GROUP, PA; INTEGRITY WELLNESS CENTER, LLC; VENKATESWARA RAO MANDAVA, M.D.; MAURO ALBERTO MOLINA, APRN-CRNA; SLEEPYTIME ANESTHESIA, PLLC; BABER YOUNAS, M.D.; NORTHEAST ANESTHESIA ASSOCIATES, PLLC; AND NORTHWEST ANESTHESIA ASSOCIATES, PLLC; DEFENDANTS. 19187 JUDICIAL DISTRICT AFFIDAVIT OF MICHAEL SAWICKI STATE OF VE "4S § § county or be tas § 1 1 am an attorney for the Plaintiffs in the case against Dr. Rao Mandava. | have personally been involved in the settlement discussions regarding his case with at least three different sets of defense attorneys. 2, In March, David Criss withdrew as counsel for Defendant. I received a call from Ken Patterson a few days after Mr. Criss’ withdrawal. He told me he represented the Defendant and offered a settlement proposal. Mr. Patterson proposed that the parties enter into a “high-low” AFFIDAVIT OF MICHAEL SAWICKI PAGE 1 OF7 agreement and submit the dispute between the parties to an arbitration before Dan Marley. Mr. Patterson sent me emails outlining the process and the agreements. I agreed to his proposal via emails on March 26-27, 2024. The emails are attached below: From: Kenneth Patterson Sent: Tuesday, March 26, 2024 5:51 PM To: Mike Sawicki Subject: Ray High/Low Agt CONFIDENTIAL Michael, This rough and only a proposal to be polished. TMLT is in the process of vetting the idea we are discussing. This is what a proposed confidential Contractual HIGH/LOW Agreement might look like. There would also be a Rule 11 agreement executed, but not filed. A copy of such a letter which would be tailored to this case is also attached. Ken MAYER | M. Kenneth Patterson Partner MAYER LLP 750 N. Saint Paul Street Suite 900 Dallas, TX 75201 Office: 214.379.6900 Direct: 214.379.6277 Mobile: 210.240.7779 Email kpatterson@mayerllp.come mayerllp.com arte Mi. Kenneth Patterson, Sa ABOTA Super Lawyers dr6 Os 6 From: Mike Sawicki Sent: Tuesday, March 26, 2024 5:51 PM AFFIDAVIT OF MICHAEL SAWICKT PAGE 2 OF7 To: Kenneth Patterson Subject: Re: Ray High/Low Agt CONFIDENTIAL Ken, the low needs to net us $200,000. Otherwise I could agree to this. J SAWICKI LAW Michael Sawicki | Afforney Board Certified Personal Injury Texas Board of Legal Specialization 214.468.8844 214.468.8845 (f) 6116 N. Central Expressway Suite 1400 Dallas. 8 75206 msawic wickilawlirm.com Wwww.sawi il awtirm.com — From: Kenneth Patterson Micheal, This rough and only a proposal to be polished. TMLLT is in the process of vetting the idea we are discussing. This is what a proposed confidential Contractual HIGH/LOW Agreement might look like. There would also be a Rule 11 agreement executed, but not filed. A copy of such a letter which would be tailored to this case is also attached. Ken [ waver | M. Kenneth Patterson Partner AFFIDAVIT OF MICHAEL SAWICKI PAGE 3 OF7 MAYER LLP 750 N. Saint Paul Street Suite 900 Dallas, TX 75201 Office: 214.379.6900 Direct: 214.379.6277 Mobile: 210.240.7779 Email kpatterson(@mayerll .come mayerllp.com Ok on this side. Have you heard from TMLT? J SAWICKI LAW Michael Sawicki | Afforney Board Certified Personal Injury Texus Board of Legal Specialization 214.468.8844 214.468.8845 (1) 6116 .N, Central Expressway Suite 1400 Dallas. s 75206 msawick wickilawfirm.com Www. saws awfirm.com Subject: RE: Ray High/Low Agt CONFIDENTIAL Mike, This amount will be corrected to be equal to $200,000 minus the amount of the documented taxable court cost to be reimbursed to you. The agreement to reimburse the taxable Court costs will be made as part of a letter agreement and not directly mentioned in the H/L document. Ken AFFIDAVIT OF MICHAEL SAWICKI PAGE 4 OF7 MAYER | M. Kenneth (Ken) Patterson Partner MAYER LLP 750 N. St. Paul Street Suite 700 Dallas, Texas Office: (214) 379 6900 Direct: (214) 379 6277 Mobile: (210) 240 7779 Email kpatterson@mayerllp.come mayerllp.com Matin ub fl Bsea ABOTA Super Lawyers th adr . The Voice of the Dotense Bar 'M. Kenneth Patterson From: Mike Sawicki Sent: Wednesday, March 27, 2024 1 37 AM To: Kenneth Patterson Subject: Re: Ray High/Low Agt CONFIDENTIAL Ken Ok on this side. & mJ SAWICKI LAW Michael Sawicki | dorney Board Certified Personal Injury Texas Board of Legal Specialization AFFIDAVIT OF MICHAEL SAWICKI PAGE 5 OF7 214.468.8844 214.468.8845 (f) 6116 N, Central Exp way Suite 1400 Dallas, Texas 75206 msawich ckilawtirm.com 1 irm ” 3 I believed the agreement to be in place until April 2, 2024. I awoke to find yet another set of lawyers had entered their appearance for the Defendant. | spoke with Diane Shaw and Kalvin Wiar, some of the lawyers who had now entered the case, and asked about the agreement I had with Mr. Patterson. Mr. Wiar informed me he was not familiar with this agreement and asked if ] would forward the prior discussions with Mr. Patterson to him. On April 5, 2024, I forwarded Mr. Wiar the prior email stream containing the agreement with Mr. Patterson. Mr. Wiar told me he was meeting with the Defendant over the weekend and that an agreement could be reached. 4. On April 8, 2024, I had still not received confirmation of the agreement so I called Mr. Wiar. He requested that I send a formal proposal consistent with the prior agreement with Mr. Patterson for him to review with the Defendant. I promptly did this and received a call from Mr. Wiar asking if we would agree to reduce the “high” portion of the proposal. I verbally agreed to this request. Mr, Wiar told me this would resolve the case. 2 A few minutes after that call, I received an email containing Mr. Wiar’s counter- proposal reflecting the reduced “high” portion of the “high-low” agreement. I immediately accepted the proposal. 6 With mounting trial and pre-trial deadlines, I asked Mr. Wiar when we could expect to receive the settlement funds and other settlement documents to finalize the case. I was then told that the Defendant had refused to honor the settlement agreement and objected to unspecified wording. 1 I discussed impending trial deadlines with Mr. Wiar and he repeatedly indicated that we did not need to continue litigation efforts as the settlement was completed. He sent me a Rule 11 agreement extending deadlines to produce trial exhibit, witness lists and deposition excerpts. His text stated: “Don’t worry about the deadlines for today. I know they are quickly approaching.” I replied “ Send me a Rule | labout the deadlines asap.” Mr. Wiar replied “Sent. Just pushed to noon tomorrow, Don’t expect to get there as the language should be hammered out shortly.” AFFIDAVIT OF MICHAEL SAWICKI PAGE 6 OF7 OO) Q) 8 Despite th