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Reule v. Sherwood Valley I Council of Co-Owners, Inc.

Court of Appeals of Texas, First District

September 5, 2019


          On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2016-37895

          Panel consists of Chief Justice Radack and Justices Keyes and Higley.


          PER CURIAM

         Appellant, Christine E. Reule, proceeding pro se, attempts to appeal from an agreed final judgment in a foreclosure case. Appellees moved to dismiss for want of jurisdiction. We agree with appellees, grant the motion, and dismiss the appeal.

         On the first day of a jury trial with pre-trial matters, including voir dire, appellant appeared with her counsel, G.P. Matherne, and appellees, Sherwood Valley I Council of Co-Owners, Inc., George Henry Ramsey, III, Terry A. Frazee, appeared with their counsel. The next day, appellees appeared with counsel ready for trial and Matherne appeared, but he orally requested a continuance because appellant had informed him that she was ill and would not be attending trial. After the trial court denied the continuance, appellant's counsel and appellees' counsel requested time to discuss a settlement. Matherne was permitted to call appellant from a conference room and, after negotiating for about an hour, he reported that appellant had accepted appellees' settlement terms.

         Outside the presence of the jury, Matherne announced on the record that they had reached a settlement and that appellees' counsel would dictate the terms. The pertinent parts of the settlement were that the appellees had agreed to pay appellant $11, 400.00 to settle all claims in this case and that appellant agreed to release any potential claim she had with respect to the property and might have against appellees. Matherne agreed that "[t]hat should do it," the appellees' counsel stated that he would prepare the formal settlement documents, and the court confirmed that the parties wanted to dismiss the jury, which they did.

         The parties later submitted an Agreed Final Judgment signed by Matherne and appellee's counsel, under the words "AGREED AND ENTRY REQUESTED:" which the trial court signed. The Agreed Final Judgment provided, in pertinent part, that appellees agreed to pay appellant $11, 400.00 "in exchange for a full and final release against them," that appellant "agrees to release, acquit, and forever discharge" appellees "from any and all actions, causes of action, claims and demands, damages or costs in any way" related to the property, and the parties agreed that the "Judgment [wa]s intended to be a final judgment as to all claims and causes of action asserted by the parties herein." Appellees paid the amount of $11, 400.00 by check to appellant, who later admitted that she had cashed the check.

         Appellant then filed a pro se motion for new trial, claiming that she did not authorize Matherne to accept the settlement offer to cover all of her claims. After the trial court granted Matherne's request to withdraw and received briefing, it denied appellant's pro se motion for new trial. Appellant timely filed a notice of appeal from the Agreed Final Judgment. See Tex. R. App. P. 26.1(a).

         Appellees then filed this motion to dismiss this appeal for want of jurisdiction claiming that appellant was barred from appealing the Agreed Final Judgment. See Tex. R. App. P. 42.3(b). Appellant responded contending, among other things, that the Agreed Final Judgment was not valid because she was not present in court when the Agreed Final Judgment was read into the record, was not aware that it had been signed, and she believed that she was accepting the $11, 400.00 check to settle only one of her claims, her homeowner's association account, not to settle all of her claims. Appellant's response does not demonstrate that appellees' motion to dismiss lacks merit.

         A judgment entered upon the agreement of the parties cures all non-jurisdictional defects. One 2000 Int'l Truck Tractor v. State, No. 01-11-00072-CV, 2012 WL 5458421, at *1 (Tex. App.-Houston [1st Dist.] Nov. 8, 2012, no pet.) (mem. op.) (citing Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.-Houston [1st Dist.] 2003, no pet.)). A party may revoke its consent to a settlement agreement at any time before an agreed judgment is rendered on the agreement. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); see also In the Matter of Marriage of Long, 946 S.W.2d 97, 99 (Tex. App.- Texarkana 1997, no pet.). But a party may not challenge such a judgment or defects in the proceedings in the case absent an allegation of fraud, collusion, or misrepresentation. See Authorlee v. Tuboscope Vetco Int'l, Inc., 274 S.W.3d 111, 119 (Tex. App.-Houston [1st Dist.] 2008, pet. denied); see also Mailhot, 124 S.W.3d at 777 (holding party who asks trial court to accept settlement agreement and enter judgment accordingly may not later attack that judgment). To preserve error for appeal, a party who signs a judgment must specify that his agreement with the judgment is as to form, but not as to substance and outcome. See First Nat'l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); see also Mailhot, 124 S.W.3d at 777.

         Here, as noted above, on behalf of appellant, Matherne signed the Agreed Final Judgment under the words, "AGREED AND ENTRY REQUESTED" and there was no language limiting his consent as to form, but not as to substance. Thus, appellant did not preserve error to complain about the Agreed Final Judgment, and she has waived the right to complain about it after asking the trial court to accept the agreement. See Fotjik, 775 S.W.2d at 633; see also Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.-Houston [1st Dist.] 1995, writ denied).

         Appellant also contends that because she was not present at court when the Agreed Final Judgment was announced in open court by Matherne, the signed agreement is unenforceable. However, an attorney may execute an enforceable agreement on behalf of the attorney's client. See Estate of Crawford, No. 14-17-00703-CV, 2017 WL 5196309, at *2 (Tex. App.-Houston [14th Dist.] 2011, no pet.) (per curiam) (mem. op.) (citing Green v. Midland Mortg. Co., 342 S.W.3d 686, 691 (Tex. App.-Houston [14th Dist.] 2011, no pet.)). An attorney's authority to do so flows from the agency relationship that exists between the attorney and the client; the attorney's acts and omissions within the scope of the attorney's employment are regarded as the client's acts. Green, 342 S.W.3d at 691. It is presumed that the attorney has actual authority conferred by the client to act on the client's behalf, and that the attorney is acting in accordance with the client's wishes. Id. This presumption may be rebutted by affirmative proof that the client did not authorize the attorney to enter into an agreement, such as an affidavit from the client to that effect. See id. (citing City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 629 (Tex. App.-Fort Worth 2003, pet. denied)). "Every reasonable presumption is to be indulged in favor of a settlement made by an attorney duly employed, and especially so after a court has recognized such an agreement and entered a solemn judgment on it." Williams v. Nolan, 58 Tex. 708, 714 (1883); see also Green, 342 S.W.3d at 691.

         Here, the record does not contain affirmative proof that appellant did not authorize her attorney to enter into the Agreed Final Judgment at that time it was read into open court. And appellant did not revoke her consent to the settlement agreement at any time before the Agreed Final Judgment was signed. See Leal, 892 S.W.2d at 857. Moreover, appellant admitted that she cashed the settlement check. We conclude that these circumstances do not overcome the presumption that appellant's attorney acted with actual ...

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