IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40803
Summary Calendar
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A & A WRECKER SERVICE INCORPORATED,
doing business as A & A Wrecker
Service, a Texas Corporation; ET AL.,
Plaintiffs,
A & A WRECKER SERVICE INCORPORATED,
doing business as A & A Wrecker
Service, a Texas Corporation;
DEL & PAUL INCORPORATED, doing
business as D & P Wrecker Service,
a Texas Corporation; NOEL ANDERWALD,
JR., an individual; SYLVIA ANDERWALD,
Individually and as Next Friend of
Makilynn Elizabeth Anderwald, a Minor,
Plaintiffs-Appellants,
versus
CITY OF GALVESTON, TEXAS; ET AL.,
Defendants,
CITY OF GALVESTON, TEXAS; JOHN DOES, 1-10,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(G-95-CV-111)
_________________________________________________________________
May 19, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
There are two issues on appeal in this case. The first is
whether the magistrate judge erred when he determined that the
plaintiffs were competent at the time they executed a settlement
agreement with the defendants. The second issue is whether the
magistrate judge erred under Texas law in granting the defendants
attorneys’ fees for the amounts incurred in enforcing the
settlement agreement. Finding no reversible error with respect to
the first issue and that we lack jurisdiction over the second, we
affirm the magistrate judge’s determination of mental capacity and
dismiss the remainder of the appeal.
I
The plaintiffs in this action--two Galveston, Texas automotive
towing businesses, their principals, and the minor child of one of
the business owners--sued the defendant City of Galveston, Texas,
and others for various alleged unlawful acts that deprived the
plaintiffs of certain rights and privileges under state and federal
law. The parties consented to trial before the magistrate judge
and the case continued through the discovery and dispositive motion
phase. On May 17, 1996, two of the plaintiffs, Noel Sr. and Arlene
Anderwald, suffered severe injuries when they were involved in a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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head-on automobile accident. Three months later, the parties
participated in voluntary mediation and executed a written
settlement agreement disposing of the plaintiffs’ claims.
Days after the mediation, Arlene Anderwald made several
extrajudicial statements to the court and the defendants to the
effect that both she and her husband, Noel Sr., were physically and
mentally incapacitated when they executed the settlement agreement
and that the agreement was the product of coercion and duress.
Furthermore, when the defendants tendered a release, a proposed
final judgment, and settlement funds to the plaintiffs, all of the
plaintiffs refused to sign the release or accept the settlement
funds. The defendants thus filed with the court a “Motion to
Enforce Settlement Agreement” to resolve the matter.
After conducting an evidentiary hearing, the magistrate judge
determined that the plaintiffs were competent when they executed
the agreement. The judge thus granted the defendants’ motion and
entered a final judgment on June 5, 1997, disposing of all of the
issues in the case except for the defendants’ pending motion for
attorneys’ fees and expenses. On June 30, 1997, the magistrate
judge awarded the defendants attorneys’ fees in the amount of
$9,926.50 and expenses in the amount of $1,909.49. The plaintiffs
timely appealed.
II
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The plaintiffs first contend that Noel Sr. and Arlene
Anderwald were incompetent when they executed the settlement
agreement with the defendants and that the magistrate judge
committed reversible error when he determined otherwise. We review
factual findings for clear error and conclusions of law de novo.
Bolding v. Commissioner of Internal Revenue, 117 F.3d 270, 273 (5th
Cir. 1997). The question presented here--whether the plaintiffs
were competent when they executed the settlement agreement--is a
finding of fact. Bach v. Hudson, 596 S.W.2d 673, 677 (Tex. Ct.
App. 1980); Judd v. Aiken, 497 S.W.2d 632, 633 (Tex. Ct. App.
1973); see also Flugence v. Butler, 848 F.2d 77, 79 (5th Cir. 1988)
(noting in other context that competency is factual finding);
Streetman v. Lynaugh, 835 F.2d 1521, 1527 (5th Cir. 1988) (stating
that determination of competency presents an “essentially factual
question”). “A finding of fact is clearly erroneous when, even
though there may be evidence to support the finding, the reviewing
court upon examination of the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
Bolding, 117 F.3d at 273. Texas’s legal standard for whether a
person has the requisite mental capacity to execute a contract is
whether the person “appreciated the effect of what he was doing and
understood the nature and consequences of his acts and the business
he was transacting.” Bach, 596 S.W.2d at 675-76. Furthermore,
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under Texas law, a party is presumed competent to enter into a
contract. Estate of Galland v. Rosenberg, 630 S.W.2d 294, 297
(Tex. Ct. App. 1981).
The plaintiffs presented evidence that Mrs. Anderwald suffered
multiple fractures of her hip, back, shoulder and arm, and endured
seventeen hours of surgery after the car wreck. Mr. Anderwald
suffered a collapsed lung, a fractured left foot, and a right foot
so severely crushed that it required amputation. At the mediation,
which took place three months after the accident, both senior
Anderwalds were still in a great deal of physical pain. Arlene was
wheelchair-bound and had been prescribed various medications for
pain, which she refused to take the day of the mediation so that
she might have a “clear head.” Her pain on the day of the
mediation was thus even more intense because of her refusal to
self-medicate. Noel Sr. still had 190 stitches in his stump and
was learning to maneuver with a pair of crutches. He also had been
prescribed various pain relief medications which, unlike his wife,
he took during the course of the mediation. He testified at the
hearing that he was not thinking clearly at the mediation because
of the medication and that he still suffered pain.
In addition to their extreme physical discomfort, the
Anderwalds testified to their deep anxiety over their financial
situation. Medical expenses were continuing to mount and Noel Sr.
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required a $12,000 prosthesis for his leg. Furthermore, one of
their attorneys informed the Anderwalds that if they refused to
agree to a settlement, they would have to immediately extinguish
their outstanding bill of $16,000 with her law firm if the attorney
were to continue to represent them. This news came as a complete
(and unwelcome) surprise and generated a heated argument wherein
Arlene eventually threatened the attorney with physical violence.
The mediation process degenerated into hysterical chaos with
the Anderwalds yelling at their attorney and at each other. Arlene
attempted to leave the room and informed her husband that his
acceptance of the settlement terms would likely end their
twenty-nine years of marriage. Both Anderwalds cried and
threatened each other with physical violence. Those present later
described the situation as “bizarre,” an “aggressive, hostile
environment,” “chaos,” and a “madhouse.” The mediation lasted ten
hours with Noel Sr. begging Arlene to sign the agreement joining
the rest of the plaintiffs, and Arlene eventually doing so.
The magistrate judge, however, also heard testimony and
reviewed evidence indicating that the Anderwalds possessed the
requisite legal capacity to execute the settlement agreement.
Arlene was quite vocally involved at the mediation in discussions
concerning the agreement and she was not pleased with its terms,
but she eventually consented to sign because of her husband. Noel
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Sr. testified that he believed his mental state on the day of
mediation was “all right.” Although ambivalent, angry, and
hysterical at the front end of the mediation, the plaintiffs had
calmed down substantially by the time they actually executed the
agreement. Counsel was also present throughout the event.
Further, the mediator and the Anderwalds’ attorney both testified
that they believed the plaintiffs competent to execute the
settlement agreement.
The magistrate judge had before him conflicting evidence and
we may only reverse his determination of sufficient legal mental
capacity1 if, after a review of all the evidence, we are left with
the indelible impression that a mistake has been made. On the
record before us, we cannot hold that the magistrate judge clearly
erred when he concluded that the plaintiffs “appreciated the effect
of what [they] w[ere] doing and understood the nature and
consequences of [their] acts and the business [they] w[ere]
transacting.” The plaintiffs “offered no prior history of
psychiatric treatment or medical opinion testimony that [their]
behavior was evidentiary of incompetency. Claims of anger and
erratic behavior, without elaboration, certainly do not give rise
to an issue of mental incompetency.” Rosenberg, 630 S.W.2d at 297-
1
The plaintiffs abandoned their claims of coercion and duress
at the hearing, leaving only the issue of their mental capacity.
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98. We accordingly affirm the magistrate judge’s determination
that the plaintiffs possessed the legal capacity necessary to
execute the settlement agreement and, therefore, we affirm the
judge’s subsequent final judgment enforcing its terms.
III
The plaintiffs also contest the magistrate judge’s order
awarding the defendants attorneys’ fees and expenses in the amount
of $11,835.99--the amount the magistrate judge found the defendants
had reasonably incurred in their efforts to enforce the settlement
agreement. The plaintiffs submit that Texas law, on which the
magistrate judge relied in his order, does not provide for such an
award in this instance. In response, the defendants initially
argue that we lack jurisdiction over this issue because the
plaintiffs’ notice of appeal is fatally insufficient as to it.
Alternatively, they maintain that their efforts to enforce the
settlement agreement constitute attempts to enforce a contract and
that Texas law provides a specific remedy for such actions. We
need not reach the merits of the award of attorneys’ fees because
we agree that we lack jurisdiction to do so.
The magistrate judge entered “final” judgment in this case on
June 5, 1997. Budinich v. Becton Dickinson & Co., 486 U.S. 196,
202-03, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988) (promulgating
“uniform rule that an unresolved issue of attorney’s fees for the
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litigation in question does not prevent judgment on the merits from
being final.”). The defendants’ motion for attorneys’ fees and
expenses was still pending at that time, and the court later
entered the order granting that motion on June 30, 1997. The
plaintiffs filed a notice of appeal on July 7, 1997, stating their
intention to appeal “from the Final Judgment entered in this action
on June 3,2 1997.” The defendants essentially argue that because
the plaintiffs specifically stated that they were appealing only
from the June 3 order, the notice of appeal is insufficient to vest
this court with jurisdiction over the June 30 order awarding
attorneys’ fees and costs. The plaintiffs contend that the June 3
order contemplated the June 30 order awarding attorneys’ fees and
expenses and that the notice of appeal is thus sufficient.
Rule 3(c) of the Federal Rules of Appellate Procedure provides
in pertinent part that a notice of appeal must “designate the
judgment, order, or part thereof appealed from.” Fed.R.App.P.
3(c). Although we are liberally to construe the filings under this
rule, we “‘may not waive the jurisdictional requirements of Rules
3 and 4, even for ‘good cause shown’ under Rule 2, if [we] find[]
that they have not been met.’” Pope v. MCI Telecommunications
Corp., 937 F.2d 258, 266 (5th Cir. 1991) (quoting Torres v. Oakland
2
The magistrate judge signed the final judgment on June 3,
1997, but the order was not actually “entered” until June 5, 1997.
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Scavenger Co., 108 S.Ct. 2405, 2409 (1988)). Further, “[w]here the
appellant notices the appeal of a specified judgment only or a part
thereof, . . . this court has no jurisdiction to review other
judgments or issues which are not expressly referred to and which
are not impliedly intended for appeal.” Id. (quoting C.A. May
Marine Supply Co. V. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.
1981)).
The plaintiffs in this instance specifically noticed for
appeal the final judgment “entered in this action on June 3, 1997.”
That order merely enforced the provisions set out in the settlement
agreement. The court did not rule at that time upon the
defendants’ motion for the attorneys’ fees that they had incurred
as a result of their efforts to enforce the agreement. The final
judgment did mention the pending order, however:
It is further ORDERED, ADJUDGED and DECREED that each
party shall bear its own costs of Court, subject to the
Court’s consideration of the pending Motion of Defendants
regarding the additional costs incurred by Defendants in
securing the enforcement of the Mediated Settlement
Agreement.
The plaintiffs contend that, since the order from which they
specifically appealed mentions the defendants’ motion for costs,
the notice of appeal is sufficient to vest this court with
jurisdiction over the later order awarding costs.
The plaintiffs are mistaken. “Those cases that do construe
notices of appeal liberally to find jurisdiction do so where it is
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clear, from the face of the notice, that the appeal intends to
raise all issues or other parties.” Pope, 937 F.2d at 266-67; NCNB
Texas Nat’l Bank v. Johnson, 11 F.3d 1260, 1269 (5th Cir. 1994)
(noting “the intent to appeal must be clear”). There is nothing
from the face of the notice that indicates that the plaintiffs
intended to appeal the order awarding fees. Final judgment was
entered on June 5, 1997; the order awarding attorneys’ fees and
expenses was entered on June 30, 1997. The plaintiffs filed their
notice of appeal on July 7, 1997--after both orders had been
entered--but the notice specifically referred only to the order of
final judgment. The plaintiffs had before them both orders, but
they specifically limited their notice to that of “June 3, 1997.”
From these facts we indeed only can conclude that the plaintiffs
intended not to appeal the June 30 order. Thus, as they designated
only the court’s June 5 order, that is the only judgment we may
review. Capital Parks, Inc. v. Southeastern Advertising & Sales
Sys., Inc., 30 F.3d 627, 630 (5th Cir. 1994); see Johnson, 11 F.3d
at 1269-70; Pope, 937 F.2d at 266-67 (disavowing jurisdiction even
though final judgment recited award of costs); Quave v. Progress
Marine, 912 F.2d 798, 801 (5th Cir. 1990). “In this situation,
because the intent to appeal is not apparent, prejudice to the
adverse party is likely to result if review is granted.”
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Brunswick, 649 F.2d at 1056. We are thus without jurisdiction to
review the award of attorneys’ fees and expenses.
IV
For the foregoing reasons, we AFFIRM in part and DISMISS in
part.
AFFIRMED in part and DISMISSED in part.
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