G. Cameron Duncan, Jr., F.B. Duncan Land Partners, Ltd., May Shellmire Duncan, Genevieve Lykes Duncan, Mary Belle Rogers, in Her Capacities as and Trustee of the Estate of Susan Hershey Helm, and Olive Hershey Spitzmiller v. J. Michael Hershey and Jeffrey M. Hershey

NUMBER 13-06-00370-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

G. CAMERON DUNCAN, JR., F.B. DUNCAN LAND
PARTNERS, LTD., MAY SHELLMIRE DUNCAN,
GENEVIEVE LYKES DUNCAN, MARY BELLE
ROGERS, IN HER CAPACITIES AS EXECUTOR
AND TRUSTEE OF THE ESTATE OF SUSAN
HERSHEY HELM, DECEASED, AND OLIVE
HERSHEY SPITZMILLER, Appellants,

v.

J. MICHAEL HERSHEY AND JEFFREY M. HERSHEY, Appellees.

On appeal from the 329th District Court
of Wharton County, Texas.

MEMORANDUM OPINION
 Before Justices Rodriguez, Garza, and Wittig1
Memorandum Opinion by Justice Wittig

This is a real estate partition case involving ranch land owned by appellants, G.

Cameron Duncan, Jr., F. B. Duncan Land Partners, Ltd., May Shellmire Duncan,

Genevieve Lykes Duncan, Mary Belle Rogers, in her capacities as Executor and Trustee

of the Estate of Susan Hershey Helm, Deceased, and Olive Hershey Spitzmiller, and

appellees, J. Michael Hershey, Jeffrey M. Hershey, (and Matthew R. Helm, Bowie Helm,

and Reagan C. Helm), as tenants in common.2 The case has been the subject of three

prior appeals and had been ruled upon by three commissioners appointed by the trial court

to divide the property between its owners. The commissioners made three reports, which

were greeted by various objections. On the day the case was set for trial, February 6,

2006, the parties announced the case was settled and read a settlement agreement into

the record which was “accepted” by the trial judge.3

Appellants raise two issues. In their first issue, appellants assert the judgment does

not conform to their agreement and in their second issue they assert the judgment is

inconsistent with their agreement. Because the parties are familiar with the complex

undertaking necessary for the partition of the land, we do not include other non-essential

background. See TEX . R. APP. P. 47.1 We reverse and remand.

1
Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by the Chief Justice
of the Suprem e Court of Texas pursuant to the governm ent code. T EX . G O V 'T C OD E A N N . § 74.003 (Vernon
2005).

2
The appeal of Matthew R. Helm , Bowie Helm , and Reagan C. Helm was dism issed by this court
March 29, 2007 under cause num ber 13-07-00169-CV. According to the Hershey appellees, the Helm s are
thus appellees in this appeal. The objections and defenses we address in this opinion are only those of the
two Hershey appellees.

3
W e note the trial judge did not “render” judgm ent. See Comel Aluminiun Co. v. Dibrell, 450 S.W .2d
56, 59 (Tex. 1970); Cf. T EX . R. C IV . P. 11.

2
 1. The Settlement Agreement

According to appellants, on the day of trial, the parties reached an agreement

“intending to resolve all outstanding issues.” A rule 11 agreement was dictated into the

record. The settlement divided various tracts of land to the respective parties. The record

reflects that counsel for the appellees queried: “In addition to that, the Ranch Road, we will

create a permanent easement whereby you have access to your land and for future

generations through the Ranch Road, correct?” Michael Hershey answered: “Yes.”

Notwithstanding the enunciated language of the agreement, the judgment awarded

appellees multiple additional easements through other parties’ properties and did not

mention the Ranch Road. Nor did the judgment burden appellees’ land with easements to

be owned by various appellants according to the Commissioners’ Report.

The judgment also contradicts provisions in the settlement regarding the “Home

Place.” The settlement awarded interests in the Home Place to the “Helm interests,” the

Estate of Susan Helm, Olive Spitzmiller, and “Cam Duncan.” The judgment however

awarded the same property to G. Cameron Duncan, Sr., Olive Spitzmiller, Bowie Helm, and

Matthew Helm. The Estate of Susan Helm received no interest.4 Furthermore, Cam

Duncan, who is G. Cameron Duncan, Jr., received no interest as stipulated in the

settlement agreement.5

4
As appellees point out in their brief, this particular Helm division m ay be harm less error if the two
Helm brothers were no longer m inors and their beneficial interest could be awarded to them as adults. See
T EX . R. A PP . P. 44.1(a)(1). However, neither party furnishes a record citation that would enable us to
determ ine that the Helm brothers were the only beneficiaries intended to receive this apparent bequest, nor
is the record clear that both brothers were old enough that their interests had vested under the term s of the
granting instrum ent(s).

5
Appellees suggest that, upon inform ation and belief, G. Cam eron Duncan, Sr. is deceased.

3
 The judgment further contradicts the settlement’s allocation of costs and

reimbursement of expenses. It provides in part for joint and several liability, when that

was not the agreement. Appellees concede this point, and in lieu of remand request that

we reform the judgment.

The judgment further contains multiple items not agreed to via the settlement of

record. For example, the judgment awarded tracts within the Duncan Brothers Ranch to

Olive Spitzmiller and the Duncan group though the settlement does not address such an

award. Similarly, Tract 33 is only partially divided to Spitzmiller, but it is divided otherwise

by the judgment. This tract is covered by the Commissioners’ Report, but the judgment

does not faithfully implement even those terms because the judgment does not specify

whether the owners are to hold undivided interests as tenants in common or provide the

manner in which the parties shall hold their varying interests in Tract 33.

2. Appellees Claim Estoppel

One appellee filed a mandamus the same day as the announced settlement,

February 6, 2006. Appellants filed a Preliminary Response, indicating in part, that a

settlement resolving all issues in controversy had been reached, and that there was no

existing controversy involving the relator, the judge, or the real parties in interest.

Thereafter, the mandamus petition was dismissed by this Court. Thus, appellees contend

appellants are judicially estopped, waived, or committed invited error to now contend there

was no settlement. They cite In the In re C.Z.B., 151 S.W.3d 627, 633 (Tex. App.–San

Antonio 2004, no pet.) (judicial estoppel is a common law principle which precludes a party

from asserting a position in a legal proceeding inconsistent with a position taken by that

party in the same or a prior litigation). “The doctrine is designed to protect the integrity of

4
the judicial process by preventing a party from ‘playing fast and loose’ with the courts to

suit its own purposes.” Id. (citing In re Phillips, 124 B.R. 712, 720 (Bankr. W.D.Tex.

1991)). Judicial estoppel most clearly applies where a party attempts to contradict its own

sworn statements made in prior litigation. Id. Appellees also cite Webb v. City of Dallas,

211 S.W.3d 808, 820 (Tex. App.–Dallas 2006, pet. denied) (doctrine of judicial estoppel

is most commonly applied to the sworn statements of witnesses; however it also applies

to the statements of attorneys explaining their clients' position in the litigation). Estoppel

is an affirmative defense. TEX . R. CIV. P. 94. Appellees do not point out where this

argument, or a corresponding objection and pleading was presented to the trial court. By

failing to raise this issue to the trial court, it is waived. In the Interest of C.Z.B., 151 S.W.3d

at 633. Even if we were to assume some type of estoppel, appellees’ argument begs the

question and does not address the gravamen of appellants’ appeal. The gravamen of

appellants’ argument is that the trial court varied the terms of the settlement agreement

and added terms not mentioned in the settlement. Furthermore, there was a lack of

required consent at the time the judgment was rendered. See Chisholm v. Chisholm, 209

S.W.3d 96, 98 (Tex. 2006).

Appellees next argue waiver. Waiver is an intentional relinquishment of a known

right or intentional conduct inconsistent with claiming that right. Barrand, Inc. v.

Whataburger, Inc., 214 S.W.3d 122, 144 (Tex. App.–Corpus Christi 2006, pet. dism’d)

(citing Avary v. Bank of Am., N.A., 72 S.W.3d 779, 788 (Tex. App.–Dallas 2002, pet.

denied)). A waivable right may spring from law or from a contract. Id. (citing Tenneco Inc.

v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996)). Appellees contend that

although waiver is ordinarily a question of fact, when the facts and circumstances are

5
admitted or clearly established, the question becomes one of law. Whataburger, Inc., 214

S.W.3d at 144.

We agree that a party's express renunciation of a known right can establish waiver.

Tenneco Inc., 925 S.W.2d at 643. Silence or inaction, for so long a period as to show an

intention to yield the known right, is also enough to prove waiver. Id. Waiver is also an

affirmative defense. Id. Again, appellees do not point to any pleading of waiver or

objection ruled on by the trial court on this issue. Thus, this issue is waived. TEX . R. APP.

P. 33.1(a)(1)(A). In any event, appellants neither renounced nor sat silently when the trial

court entered a judgment contrary to the express terms of the announced settlement

agreement. Nor do we read appellants’ complaints to be that there was no settlement,

rather that it was incomplete with the trial judge entering a judgment not based upon the

agreement made.

Appellees next argue “invited error.” A litigant cannot ask something of a court and

then complain that the court committed error in giving it to him. Northeast Texas Motor

Lines, Inc. v. Hodges, 138 Tex. 280, 282, 158 S.W.2d 487, 488-89 (Tex. 1942) (because

party presented two issues together, it cannot be heard to complain that court chose the

issue the more onerous to it). Error in requesting an action cannot be urged by a party who

requested the same action. Corpus Christi Nat'l Bank v. Gerdes, 551 S.W.2d 521, 525

(Tex. Civ. App.–Corpus Christi 1977, writ ref’d n.r.e.). We agree in principle. However,

appellants attempt to have an agreed judgment entered by the trial court based on the rule

11 agreement, did not include a request that the judgment terms differ from the announced

settlement terms. Appellants did not request the court to vary the terms of the settlement.

6
 Appellants respond that the main outline of the settlement had been agreed to

although some “blanks still needed to be filled in.” This is supported by the record of the

settlement hearing. Further, in appellants’ preliminary response to appellee’s mandamus

action, the pleading itself stated: “The final disposition of this case will involve significant

further efforts. . . .” It went on to state that a final judgment was not practicable at that time,

given the need to accomplish further elements described in the agreement. Appellants

also contend that appellees’ new appellate defense bars only upon part of appellees’

argument that the settlement agreement did not resolve all issues. Appellees’ defenses

do not countermand appellees’ arguments that: (1) the judgment contradicts the terms of

the settlement; and (2) the judgment contains matters not agreed to in the settlement

agreement. When appellees filed their preliminary response to the mandamus on

February 17, 2006, almost a month before appellees submitted their proposed judgment,

there was “no way of knowing” the proposed judgment would contradict the settlement

agreement. We agree. Appellees arguments of estoppel, waiver, and invited error are

overruled.

3. Standard of Review

A judgment by consent is contractual in its nature and should be so construed, but

it is more than a mere contract between the parties. Wagner v. Warnasch, 156 Tex. 334,

339, 295 S.W .2d 890, 893 (Tex. 1956). "The fact that a judgment is rendered by consent

gives it neither less nor greater force or effect than it would have had it been rendered after

protracted litigation, except to the extent that the consent excuses error and operates to

end all controversy between the parties." Id. A consent judgment is mandatory, and

imposes upon the parties obligations just as certainly as if that obligation had been

7
imposed by the court after trial on the merits. Id. “The powers of the judge, exercised by

virtue of agreement of the parties, extend, we think, to entering only such judgment as was

a literal compliance with the agreement.” Wyss v. Bookman, 235 S.W. 567, 569 (Tex.

Comm'n App. 1921). When a consent judgment is rendered without consent or is not in

strict compliance with the terms of the agreement, the judgment must be set aside.

Chisholm, 209 S.W.3d at 98.

The power to render an agreed judgment depends upon the “substance of the

consent” at the time judgment is rendered. Quintero v. Jim Walter Homes, Inc., 654

S.W.2d 442, 444 (Tex. 1983). A party has the right to revoke his consent at any time

before the rendition of judgment. Id. (citing Samples Exterminators v. Samples, 640

S.W.2d 873, 874 (Tex. 1982)). When a trial court has knowledge that one of the parties

to a suit does not consent to a judgment, the trial court should refuse to sanction the

agreement by making it the judgment of the court. Burnaman v. Heaton, 240 S.W.2d 288,

291 (Tex. 1951).

A better statement of the general rule is that Rule 11 is a minimum
requirement for enforcement of all agreements concerning pending suits,
including, but not limited to, agreed judgments. Burnaman stands for the
proposition that, notwithstanding a valid Rule 11 agreement, consent must
exist at the time an agreed judgment is rendered.

Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex. 1984); see McDonald, Texas Civil Practice

in District and County Courts § 17.22 (1971); see Matthews v. Looney, 132 Tex. 313, 123

S.W.2d 871 (1939) (holding that an agreement that fails to comply with the rule will not

support a consent judgment). As a general rule, compliance with rule 11 is necessary but

not sufficient for an agreed judgment. Kennedy, 682 S.W.2d at 529. When parties submit

conflicting motions for judgment, the trial court is put on notice that mutual consent of the

8
parties is lacking. Milstead v. Milstead, 633 S.W.2d 347, 348 (Tex. App.–Corpus Christi

1982, no writ). At that point, rather than granting one party's motion and denying the other,

the court should deny both motions on the ground that mutual consent is lacking. Id.

To preserve a complaint for appellate review, the record must show that the

complaint was presented to the trial court by timely request, objection, or motion stating the

specific grounds for the desired ruling if such grounds are not apparent from the context

and the trial court ruled on the request. TEX . R. APP. P. 33.1; Ricks v. Ricks, 169 S.W.3d

523, 528 (Tex. App.–Dallas 2005, no pet.)

4. Hershey Easements

Appellees drafted the proposed judgment in contradiction of the agreement that

provided that Kevin Beiter was given the responsibility of drafting the judgment. According

to the Duncans, the proposed form of judgment was to have been circulated and approved

in advance by all the parties. This was not accomplished. After some delay, appellees

proceeded on their own and submitted their preferred form of judgment to the court.

Numerous objections were sounded by the various appellants. Now, appellees seek to

contest the sufficiency of discreet objections as to each of appellants’ argued

discrepancies. We have already noted that the settlement agreement granted appellees

only an easement accessing their land “through the Ranch Road.” The judgment

submitted by appellees granted easements “for use of all ranch roads now existing.” The

Duncan parties and Rogers objected to this language. Likewise Spitzmiller objected and

also pointed out the settlement agreement only gave access to ranch roads that give

access to appellees property. Appellees contend that the final language cured the

objections because the easement was for use of all ranch roads now existing that access

9
“Back of the Front (East Half), Cook and Shoestring.” Appellees argue there is no error

because the judgment does not read as appellants claim. In effect, appellees’ argument

creates a disputed fact issue concerning the location of various easements.

Appellants point out that even if Spitzmiller’s objection was met, the Duncan

objections were not. According to the Duncan objections, the parties were to document:

“[a] a permanent easement granting Plaintiffs’ (appellees’) access to their land via the

Ranch Road.” The Duncans also aptly pointed out to the trial judge: “The proposed

decree unilaterally presented by the Plaintiff’s has not been and is not agreed to by all of

the parties hereto.” (emphasis in the original). We hold that appellants sufficiently made

the trial court aware of their complaints. TEX . R. APP. P. 33.1(a)(1)(A); see Ford Motor Co.

v. Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (preservation of error generally depends on

"whether the party made the trial court aware of the complaint, timely and plainly, and

obtained a ruling."). We reject appellees’ arguments.

5. The Home Place

The settlement agreement awards an undivided interest in the Home Place property

to the Helm interests, the Estate of Susan Helm, Olive Spitzmiller and Cam Duncan. The

judgment awards the property to the Helm Brothers, Spitzmiller, and G. Cameron Duncan,

Sr. According to appellants, Cam Duncan is G. Cameron Duncan, Jr., not senior.

Appellees argue that the Duncan objections that the judgment should be based upon the

terms of the settlement and agreement is lacking because they do not discuss the Home

Place. Appellees also argue an insufficient objection on behalf of Rogers because she

had no stake in the Home place. This is incorrect because Rogers was both the trustee

10
and executor of the Susan Helm Estate.6 Rogers specifically objected to the allocation of

the Home Place found in paragraph 6 because it was not contemplated by the parties

settlement.

Appellees also boldly assert “no variance between it [judgment] and the Settlement

Agreement. . . .” We disagree. Appellees cite E. C. v. Graydon, 28 S.W.3d 825, 828

(Tex. App.–Corpus Christi 2000, no pet.) (one party preserved the complaint for review;

appellant did not); see also TEX . R. APP. P. 33.1. Appellees also cite Dal-Chrome Co. v.

Brenntag Southwest, Inc., 183 S.W.3d 133, 144 (Tex. App.–Dallas 2006, no pet.) (“To

preserve a complaint of error in a judgment, a party must inform the trial court of its

objection by a motion to amend or correct the judgment, a motion for new trial, or some

other similar method.”) Appellees contend that if there was error concerning the award of

the Home Place, appellants should also have complained after the judgment was signed.

In their joint motion for new trial, appellants complained that the court made

alterations and amendments to the final judgment. The judgment was entered without a

trial, and the entry was not agreed to by all the parties. Further, the entry was contrary to

the agreement announced on the record and is unsupported by the record (the rule 11

agreement.) The intent of the parties was to draft and present an agreed form of decree

of partition that would accurately describe each of the partition tracts, clearly delineate the

easements to be granted, and provide for delineation of certain remainder interests.

Appellants, in their motion for new trial, also argued alternatively that there was a rule 11

6
The Helm brothers were presum ably heirs of their m other’s estate and/or trust. Although Bowie
Helm m ay have reached his m ajority, based upon the settlem ent record, his interest apparently would not
have vested until he reached the age of twenty-five. The status of Reagan Helm as an heir, vel non, is not
apparent from the record.

11
agreement, that it was not waived by the parties, and the agreement was not amended.

We find that appellants once again appropriately apprised the trial court of its error and

preserved their complaints for appeal. See id.; see also Royce Homes, L.P. v. Humphrey,

244 S.W.3d 570, 582 (Tex. App.–Beaumont 2008, pet. denied) (error preserved on

complaint by including it in the motion for new trial).

6. Appellants’ Easements; Tract 33

Appellees also argue that appellants seek additional easements for their own benefit

that are not part of the rule 11 agreement. Appellees rely on authority also cited by

appellants, Farr v. McKinzie, 477 S.W.2d 672, 677 (Tex. Civ. App.–Houston [14th Dist.]

1972, writ ref’d n.r.e.) (court below had no power to alter the agreement or to supply the

additional terms as it did; court had only the power to put the agreement into recordable

judgment form). We agree. However, the same situation is also presented in the

disagreement over Tract 33.

Tract 33 is only partially mentioned in the settlement agreement, yet the trial court

awarded non-specific portions of the tract to Spitzmiller, the Duncan group, and the Helm

group. For example, Spitzmiller is awarded the property described in Exhibit 1.F of the

judgment constituting a portion of Tract 33. Exhibit 1.F simply reiterates “A portion of the

tract sometimes known as Tract 33 or the River Tract Awarded to Olive Hershey

Spitzmiller.” The only language in the settlement agreement awards “the bottom of Tract

33 and northwest corner.” There are no divisions to the Helm or Duncan groups in the

settlement agreement, yet they are recited in the judgement. Appellees suggest that

appellants should re-petition the court to clarify and enforce the judgment “if these awards

12
are not sufficiently clear to the Appellants. . . .” We reject this argument because the trial

court was without power to supply additional terms to the judgment. Id.

7. Lone Tree Tract

According to appellants, the settlement agreement provided that the Estate of

Susan Helm was to receive a small tract contiguous to the “Long Tree” (Lone Tree Tract).

Contrary to those terms, the Helm group was awarded the Lone Tree Tract itself in the

judgment. Furthermore, the judgment provided that Bowie, Matthew, and Reagan Helm

receive an undivided interest. Yet, according to appellants, Reagan Helm had no interest

in the Lone Tree Tract, at least based upon the Commissioners’ Report. Again, easements

were not provided to this tract. Appellees again complain that appellants did not properly

object to obvious discrepancies between the settlement agreement and the judgment. Yet

Rogers notified the court through her objections to the proposed judgment that the

judgment failed to properly identify the owners or allocation of the Lone Tree Tract and the

River Tract. Rogers, as executor and trustee of the Estate of Susan Helm, Deceased, was

to receive 94.896% with fractional shares going to Bowie, Matthew, and Reagan Helm.

Her objections state in detail that the tract owners are not properly identified. She also

draws the courts attention to the total lack of a proper legal description of the Lone Tree

Tract and the River Tract. In addition, the Motion for New Trial by all appellants pointed

out to the trial court: (1) the judgment was not agreed to by all the parties; (2) the entry

was contrary to the agreement announced on the record; and (3) the judgment was

unsupported by the record. We hold that appellants sufficiently apprised the trial court of

its error. TEX . R. APP. P. 33.1; Humphrey, 244 S.W.3d at 582; cf. TEX . R. CIV. P. 324(a).

13
 8. Conclusion

In Chisholm, the supreme court discussed a similar factual situation to the one

presented here for our review. See Chisholm, 209 S.W.3d at 98. One of the parties,

Chisholm, apparently consented to the custody arrangements and the sale of the marital

residence. Id. However, nothing in the record showed that she consented to the property

division. Id. A court "cannot render a valid agreed judgment absent consent at the time

it is rendered." Id. (citing Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex.

1996) (per curiam); Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995)). In

Chisholm, the judgment was not "in strict or literal compliance" with the terms recited into

the record and the judgment improperly removed and added material terms. Id. When a

consent judgment is rendered without consent, or is not in strict compliance with the terms

of the agreement, the judgment must be set aside. Id. (citing Burnaman, 240 S.W.2d at

291-92).

As discussed above, there are material differences between the settlement

agreement and the judgment concerning the Hershey easements, the Home Place, the

Lone Tree Tract, allocation of expenses, reimbursements, and court costs. The trial court

did not enter judgment in strict or literal compliance with the record terms. Furthermore,

the settlement agreement did not reflect additional easements claimed by appellants. Nor

did the settlement agreement provide for a full disposition of Tract 33, as recited in the

judgment. Because there was no agreement as to some essentials of the judgment, either

in writing or made in open court and entered of record, the divisions are not enforceable

14
as a matter of law. Knapp Med. Ctr. v. De La Garza, 238 S.W.3d 767, 768-69 (Tex.

2007).7

While we agree with appellees in general terms that we could perhaps modify the

judgment as to non-substantive matters such as court costs where the record clearly

reflects the agreement of the parties, we decline to do so given the breath of discrepancies

between the settlement agreement and the judgment in addition to the fact that the

judgment is not being “affirmed as modified.” See TEX . R. APP. P. 43.2(b).

We reverse and remand for a new trial with instructions that an agreed judgment

may only be entered with strict or literal compliance to any settlement agreement and only

with consent of all parties at the time the judgment is entered.

DON WITTIG
Justice

Memorandum Opinion delivered and
filed this 23rd day of April, 2009.

7
W e agree with appellees that the Dobson Life Estate lands were not part of the property subject to
the partition suit, and thus, would not be necessarily included within the judgm ent. Nevertheless, if included,
the judgm ent m ust be agreed upon by all parties as to the particulars at the tim e it is rendered.

15