COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-065-CV
TERRY HENRY, CLARENCE M. APPELLANTS
HENRY, AND ONETA HENRY
V.
CITY OF FORT WORTH, TEXAS, APPELLEES
FW SPORTS AUTHORITY, INC.,
AND TEXAS MOTOR SPEEDWAY, INC.
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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In various issues that they have briefed together, appellants Terry Henry,
Clarence M. Henry, and Oneta Henry appeal the trial court’s “Final Judgment
and Permanent Injunction.” 2 We affirm.
1
See Tex. R. App. P. 47.4.
2
Appellants initially list thirteen “Issues Presented,” but the remainder
of their brief does not segregate its discussion of those issues; instead, the
majority of appellants’ brief combines a discussion of several contentions about
alleged errors in the entry and substance of the trial court’s judgment. We will
Background Facts
Appellee FW Sports Authority, Inc. (FWSA) owns a tract of land that it
leases to appellee Texas Motor Speedway, Inc. (TMS). Appellants own three
tracts of land near FWSA’s tract. Appellants filed a lawsuit against appellees
because of appellees’ alleged attempts and threats, through various asserted
acts, to interfere with appellants’ rights to use their property and an easement
in the manner that they wanted to. TMS filed a counterclaim against
appellants, asking for a declaratory judgment stating that appellants did not
have a right to place signs on FWSA’s land and did not have a right to use the
land other than for ingress and egress. Later, TMS and appellee City of Fort
Worth, Texas (the City) requested a temporary injunction against appellants
concerning the same subjects.
In September 2006, appellants voluntarily dismissed all of their claims
against appellees. However, TMS and the City continued to seek further
injunctive remedies against appellants, alleging in April 2008 that appellants
were trespassing on FWSA’s property and violating the City’s sign ordinance.
Later that same month, the trial court allowed appellants’ counsel to withdraw,
address appellants’ assertions that appear in the argument portion of their brief
rather than particularly addressing the thirteen “Issues Presented.”
2
ordered that appellants could not amend their pleadings to add new claims or
defenses, and set July 14, 2008 as the trial date.
On the day of trial, appellees’ counsel and Terry (acting pro se) appeared,
but Terry’s parents, Clarence and Oneta, did not appear. Appellees’ counsel
told the court that the parties had reached a settlement. He presented the
terms of the settlement to the court by filing an unsigned document entitled
“COMPROMISE AND SETTLEMENT AGREEMENT.” That document, among
other things, required appellants to execute a quitclaim deed, a restrictive
covenant, and an agreed permanent injunction. The proposed deed, covenant,
and injunction were attached to the unsigned settlement agreement.
In November 2008, TMS filed a motion to enter judgment based on what
had occurred on July 14. In response, appellants, who were represented by
new counsel, filed a motion to reopen the case as an active case on the court’s
docket and filed a response to TMS’s motion to enter judgment. Appellants’
motion to reopen asked the court to find that the “purported oral and unsigned
written settlement agreement” was ineffective because, among other reasons,
the agreement did not comply with the rules of civil procedure. Appellants’
response to TMS’s motion alleged that appellants had withdrawn their consent
to the settlement and that the trial court could not therefore render a judgment
related to it.
3
In February 2009, the trial court signed a final judgment that recited that
the parties had validly completed a settlement agreement or that, alternatively,
Clarence and Oneta failed to appear at trial and a default judgment was
appropriate. 3 The written judgment recited that the trial court rendered
judgment on July 14, 2008, and it attached documents related to the property
at issue. Appellants filed their notice of appeal.
The Parties’ Settlement Agreement
Appellants first contend that the trial court erroneously signed its written
judgment against them because they are not bound to the agreement
announced by Terry and appellees’ counsel during the July 2008 hearing.
They argue that (1) Terry did not have authority to bind Clarence and Oneta to
the agreement because he is not a lawyer and because the record does not
establish that he is their agent; (2) the “COMPROMISE AND SETTLEMENT
AGREEMENT,” although filed, was not signed by anyone and therefore does not
comply with the rules of civil procedure; and (3) the trial court did not render
3
Some of the parties’ briefing concerns whether appellees met the
requirements for a default judgment, but we will not address that issue because
we conclude that the parties’ settlement agreement supports the trial court’s
judgment. See Tex. R. App. P. 47.1; Hawkins v. Walker, 233 S.W.3d 380,
395 n.47 (Tex. App.—Fort Worth 2007, pet. denied).
4
judgment during the July 2008 hearing, and appellants therefore effectively
withdrew their consent to the settlement agreement.
Terry’s authority to bind Clarence and Oneta
Terry testified during the July 2008 hearing that he had spoken to his
parents about the settlement agreement’s specific terms and that he had the
authority to enter the agreement and execute documents related to the
agreement on their behalf. In the trial court, appellants never objected to nor
argued at any time—through any formal pleading, verified response, or
otherwise— that Terry did not have the authority to bind Clarence and Oneta
to the settlement agreement. See, e.g., Tex. R. Civ. P. 93, 94. When we
questioned appellants’ counsel during oral argument about whether he was
challenging Terry’s authority to bind Clarence and Oneta for the first time on
appeal, he stated, “That’s what the record reflects.”
To preserve a complaint for appellate review, a party must have presented
to the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling, if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a). If a party fails to do
this, error is not preserved, and the complaint is waived. See Bushell v. Dean,
803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). The objecting party must
get an express or implied ruling from the trial court. Tex. R. App. P. 33.1(a)(2),
5
(b); Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet.
denied). Courts have applied the preservation requirement of rule 33.1(a) to
matters of capacity, agency, and settlement authority. See HCRA of Tex., Inc.
v. Johnston, 178 S.W.3d 861, 866 (Tex. App.—Fort Worth 2005, no pet.);
see also In re Credit Suisse First Boston Mortgage Capital, L.L.C., 257 S.W.3d
486, 493 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding [mand.
denied]); P & S Corp. v. Park, No. 14-05-00115-CV, 2006 WL 1168804, at *4
(Tex. App.—Houston [14th Dist.] May 4, 2006, no pet.) (mem. op.).
Because appellants did not contend in the trial court that Terry lacked
authority—as a nonlawyer or otherwise—to bind Clarence and Oneta to the
settlement agreement, we hold that they have not preserved that argument for
appeal, and we overrule that portion of their argument. 4
The parties’ compliance with the rules of civil procedure
Appellants also assert that because the filed settlement document in this
case is unsigned, the parties’ settlement is unenforceable for failing to comply
with the rules of civil procedure. Rule 11 provides, “Unless otherwise provided
in these rules, no agreement between attorneys or parties touching any suit
4
We decide this issue on a procedural preservation basis only; we do
not express any substantive opinion on whether a pro se party may bind other
pro se parties to a settlement agreement through an oral representation of
settlement authority.
6
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.”
Tex. R. Civ. P. 11 (emphasis added); see Scott-Richter v. Taffarello, 186
S.W.3d 182, 189 (Tex. App.—Fort Worth 2006, pet. denied); City of Roanoke
v. Town of Westlake, 111 S.W.3d 617, 626 (Tex. App.—Fort Worth 2003,
pet. denied) (“The supreme court has superimposed the requirements of Rule
11 on all settlement agreements in pending suits.”). The rationale of rule 11 is
that
[a]greements of counsel, respecting the disposition of causes,
which are merely verbal, are very liable to be misconstrued or
forgotten, and to beget misunderstandings and controversies; and
hence there is great propriety in the rule which requires that all
agreements of counsel respecting their causes shall be in writing,
and if not, the court will not enforce them. They will then speak
for themselves, and the court can judge of their import, and
proceed to act upon them with safety.
Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995) (quoting Birdwell v.
Cox, 18 Tex. 535, 537 (1857)). In other words, the rule attempts to avoid
“disputes over the terms of oral settlement agreements.” Id. at 461.
Appellants principally rely on the Texarkana Court of Appeals’s opinion
in Songer v. Archer to argue that the parties’ agreement in this case did not
comply with rule 11. 23 S.W.3d 139 (Tex. App.—Texarkana 2000, no pet.).
7
In Songer, the Texarkana court held that an unsigned written agreement that
had been sent between the parties’ attorneys and “mentioned in court” was not
enforceable under rule 11 and that the only part of the parties’ agreement that
was enforceable comprised the parties’ verbal representations in open court.
Id. at 141.
In this case, the following exchange occurred between one of appellees’
attorneys and Terry:
Q Mr. Henry, on page three here, during earlier negotiations, we
struck through a portion of [the unsigned settlement agreement
regarding payment]. But as part of settling this case today, you
have agreed to pay $6,000 . . .; correct?
A Yes.
Q And you are here also to make that obligation jointly and
severally on behalf of [Clarence and Oneta]?
A Yes.
Q In regards to entering into the compromise settlement
agreement and other exhibits attached to exhibit one, do you have
the authority on behalf of your parents to enter into this
agreement?
A Yes, I do.
Q You have spoken to them specifically about the document
and the obligations that they create; correct?
A Yes.
8
Q And you have agreed and are here with authority on their
behalf to agree to execute all of the documents included in [the
unsigned settlement agreement] within two weeks of today’s date;
correct?
A Yes. [Emphasis added.]
After this exchange occurred, Terry affirmed his understanding of specific
portions of the unsigned agreement, and the trial court designated the unsigned
agreement to be filed with the district clerk and said that it would consider the
unsigned agreement “as evidence of the settlement.”
Thus, this case differs from Songer because the unsigned document here
was not merely “mentioned in court”; it was filed and validated on the record
by the parties as part of the settlement. Our case is more akin to Stein v.
American Residential Management, Inc., in which the Houston [Fourteenth]
Court of Appeals held that an unsigned written agreement complied with rule
11 because it was admitted as evidence without objection at trial and, as the
trial court stated, “[T]he existence of the agreement was well known and was
fully and openly discussed.” 781 S.W.2d 385, 386–87 (Tex. App.—Houston
[14th Dist.] 1989), writ denied, 793 S.W.2d 1 (1990)); see also Rich v. Rich,
No. 01-03-00078-CV, 2003 WL 21027940, at *2 (Tex. App.—Houston [1st
Dist.] May 8, 2003, no pet.) (mem. op.) (holding that a divorce decree qualified
9
as a contract under rule 11 even though neither party signed it because the
decree was transcribed in open court by a court reporter).
Like the court in Stein, we hold that the parties’ written agreement here,
although unsigned, serves as the basis for a valid settlement agreement under
rule 11 because it was nonetheless “made in open court and entered of record.”
See Tex. R. Civ. P. 11; Stein, 781 S.W.2d at 387 (relying on the open court
provision of rule 11 to hold that the unsigned agreement satisfied the rule).
We note that in the context of this case, appellants’ argument—that the
settlement agreement should be restricted “solely [to] the testimony in open
court” and should not include the detailed, written provisions that the parties
recognized and understood in open court—would frustrate the purpose of rule
11 to restrict disputes over the terms of oral settlement agreements. See
Padilla, 907 S.W.2d at 461. For these reasons, we overrule the part of
appellants’ argument that focuses on the settlement agreement’s alleged
noncompliance with rule 11.
Appellants’ attempt to revoke consent to the settlement agreement
Next, appellants contend that they timely revoked their consent to the
settlement agreement and that the trial court’s judgment based on the
agreement was therefore improper. They argue that although Terry agreed to
the settlement’s terms, he did not expressly agree to a judgment’s entry during
10
the July 2008 hearing and that appellees were therefore required to file an
independent breach of contract claim to enforce the agreement.
A rule 11 settlement agreement may not serve as the basis for an agreed
judgment if a party withdraws its consent before the trial court has rendered
judgment. Padilla, 907 S.W.2d at 461–62; see Mantas v. Fifth Court of
Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (orig. proceeding) (explaining that
when a party revokes its consent to a rule 11 agreement before rendition
occurs, the party seeking enforcement of the agreement must “pursue a
separate breach-of-contract claim, which is subject to the normal rules of
pleading and proof”); Kennedy v. Hyde, 682 S.W.2d 525, 528 (Tex. 1984)
(stating that “consent must exist at the time an agreed judgment is rendered”).
However, once the trial court renders judgment based on a rule 11 settlement
agreement, the parties cannot revoke their consent to the agreement. Alcantar
v. Okla. Nat’l Bank, 47 S.W.3d 815, 821 (Tex. App.—Fort Worth 2001, no
pet.); see St. Raphael Med. Clinic, Inc. v. Mint Med. Physician Staffing, LP, 244
S.W.3d 436, 441 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Woods v.
Woods, 167 S.W.3d 932, 933 (Tex. App.—Amarillo 2005, no pet.).
Judgment is “rendered” when the trial court officially announces its
decision on the matter submitted to it in open court or by written memorandum
11
filed with the clerk. 5 S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.
1995) (noting that “approval of a settlement does not necessarily constitute
rendition of judgment”); Cook v. Cook, 243 S.W.3d 800, 801 (Tex. App.—Fort
Worth 2007, no pet.); Alcantar, 47 S.W.3d at 821. As the Amarillo Court of
Appeals has explained,
The rendition of the trial court’s decision, whether in open court or
by official document of the court, is the critical moment when the
judgment becomes effective. The subsequent reduction of the
rendered judgment to writing is typically carried out by the party
favored by the judgment. The signature of the trial court upon the
writing is merely a ministerial act of the court . . . .
Henry v. Cullum Cos., 891 S.W.2d 789, 792 (Tex. App.—Amarillo 1995, writ
denied); see also In re K.N.M., No. 02-08-00308-CV, 2009 WL 2196125, at
*5–6 (Tex. App.—Fort Worth July 23, 2009, no pet.) (mem. op.) (quoting
Henry). To qualify for rendition, the words spoken or written by the trial court
must evince a present act that effectively decides the issues before the court.
S & A Rest. Corp., 892 S.W.2d at 858; Cook, 243 S.W.3d at 801. In other
words, the trial court’s words must “clearly indicate the intent to render
judgment at the time the words are expressed.” S & A Rest. Corp., 892
5
A judgment routinely goes through three stages: rendition, signing,
and entry. Wittau v. Storie, 145 S.W.3d 732, 735 (Tex. App.—Fort Worth
2004, no pet.).
12
S.W.2d at 858. But what the trial court believes to be the legal effect of its act
is not dispositive. Id.
Here, on the date set for trial, appellees told the court that the parties had
reached a settlement and indicated that certain terms of the settlement would
be performed in the future. 6 Terry expressed his understanding that the
agreement released all claims asserted by all parties against each other; the
record does not reflect any claims that were left open for resolution. Near the
end of the hearing concerning the settlement, the trial court set a deadline for
the entry of the judgment and for “everything . . . to be finalized . . . [and]
signed off.” The trial court said, “If those things don’t happen, we are going
to show back up here on [August] 21st to enter that agreement as the
judgment.” Then, the trial court concluded the hearing by stating, “All right.
I appreciate everybody’s hard work on this, and I will approve the agreement
and render it as an order of the court this day.” [Emphasis added.]
We hold that the trial court’s specific words of rendition show its present
intent to orally render judgment on the parties’ agreement and that its
statements about future acts show only its intent to sign the written
6
Terry and his parents were to execute documents attached to the
unsigned written settlement agreement within two weeks, and they were to
pay TMS $6,000 within thirty days.
13
memorialization of its rendition and to allow performance of the judgment at a
later date. 7 Cf. Samples Exterminators v. Samples, 640 S.W.2d 873, 874
(Tex. 1982) (holding that the trial court rendered judgment when it said, “[T]he
Court approves the settlement made in open court and orders all parties to sign
any and all papers necessary to carry out this agreement and to carry out the
agreement that was made and dictated into the record”); Patel v. Eagle Pass
Pediatric Health Clinic, Inc., 985 S.W.2d 249, 252 (Tex. App.—Corpus Christi
1999, no pet.) (holding that the trial court rendered judgment when it said,
“Settlement is approved and ordered. Mr. Rhodes, . . . you draft the order,
circulate it, and let’s have it within five working days”); Galerie D’Tile, Inc. v.
Shinn, 792 S.W.2d 792, 794 (Tex. App.—Houston [14th Dist.] 1990, no writ)
(explaining that when the trial court intends to render, it is “preferable for the
trial judge to use the specific word ‘render’”); see also K.N.M., 2009 WL
2196125, at *6 (holding that the trial court rendered judgment when it said,
“[T]he court will approve the agreements as they have been stated for the
record, and I will make it the written order of the court when it is submitted”).
7
We also note that the trial court’s docket notes from the date of the
settlement hearing relate, “Settlement proved up on record—approved by the
court and rendered. Entry on or before 8-21-08.” [Emphasis added.]
14
Because we hold that the trial court rendered judgment at the end of the
parties’ settlement announcement, we also hold that appellants could not later
revoke their consent to the settlement agreement and that the trial court did not
err by signing the judgment that was based on the agreement’s terms.
See Alcantar, 47 S.W.3d at 821; Henry, 891 S.W.2d at 792. We overrule this
portion of appellants’ argument. 8
The Particular Terms of the Judgment
The language of the injunction and restrictive covenant and the award of
attorney’s fees
Appellants further contend that the trial court’s final judgment that
contains a permanent injunction and a restrictive covenant is too broad because
it prohibits them from using the disputed land in certain ways and from applying
for permits under city ordinances to do so. They also challenge the trial court’s
award of attorney’s fees to TMS.
The portion of the trial court’s judgment that concerns the permanent
injunction states,
8
Appellants also contend in their brief, “The Reporter’s Record does not
show that Terry Henry agreed to any injunction.” But Terry agreed to execute
all documents included in the unsigned settlement agreement, and an “Agreed
Final Judgment Granting Permanent Injunction” was one of those documents.
Appellees’ counsel also questioned Terry specifically about the terms of the
injunction, and Terry agreed that he understood it.
15
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED that
[appellants] . . . are hereby, immediately restrained from:
1) Placing any sign, banner, or other advertisement, whether
temporary, permanent or hand held, on the Property owned by FW
Sports Authority, Inc. and leased by TMS . . .[,] and
2) Making any use of the Property . . . other than ingress and
egress to and from [appellants’] property . . . .
These provisions substantially reflect the terms of the permanent injunction that
the parties agreed to during the settlement hearing. Terry indicated that he
understood that the injunction was included as part of the agreement.
The restrictive covenant that is contained in the judgment, which concerns
appellants’ prohibition from using their land for sexually oriented businesses,
exactly matches the restrictive covenant that was part of the parties’
settlement agreement. 9 Likewise, although appellants challenge the trial court’s
award of $6,000 in attorney’s fees to TMS, 10 Terry specifically agreed during
the settlement hearing that he and his parents would pay $6,000 to TMS at its
attorney’s office within thirty days of the hearing.
Because these specifically challenged provisions are based on the parties’
settlement agreement that the trial court orally rendered as its judgment, we
9
Terry specifically agreed to be bound by the restrictive covenant when
he testified.
10
Appellants do not challenge the judgment’s inclusion of postjudgment
interest or court costs.
16
hold that the trial court did not err by including them in its written judgment.
See Samples, 640 S.W.2d at 874–75 (affirming the trial court’s grant of
injunctive relief based on a settlement agreement because a party’s attempted
revocation of the agreement occurred after the trial court rendered judgment);
Alcantar, 47 S.W.3d at 821 (stating that once the trial court renders judgment
based on the parties’ settlement agreement, the parties cannot revoke their
consent to the agreement); see also Ysasaga v. Nationwide Mut. Ins. Co., 279
S.W.3d 858, 864 (Tex. App.—Dallas 2009, pet. denied) (holding that a party
waived the right to complain about an order that it agreed to); Boufaissal v.
Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas 2008, no pet.) (stating
that “a party will not be allowed to complain on appeal of an action or ruling
which she invited or induced”). Thus, we also overrule this part of appellants’
argument.
The documents attached to the final judgment
Finally, in one page of appellants’ brief, they appear to complain (without
citing relevant legal authority) about the final judgment’s attachment of
documents describing the property at issue because the documents were not
attached to (although they were referenced in) the unsigned settlement
17
agreement. 11 But appellants did not assert error in the trial court related to the
judgment’s attachment of descriptive property documents that were not
attached to the unsigned settlement agreement. Appellants have also not
contended at trial or on appeal that the judgment’s attached documents
incorrectly reflect the property that is subject to the parties’ settlement.
Thus, we hold that appellants have waived any error concerning the attachment
of documents to the judgment that were not attached to the unsigned
settlement agreement. See Tex. R. App. P. 33.1(a); Dal-Chrome Co. v.
Brenntag Sw., Inc., 183 S.W.3d 133, 144 (Tex. App.—Dallas 2006, no pet.)
(explaining that 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”); see also
Murphy v. Leveille, No. 02-08-00130-CV, 2009 WL 2619857, at *1–2 (Tex.
11
For example, appellants complain about the judgment’s attachment
of a metes and bounds description of a 6.374-acre tract and a warranty deed
containing a metes and bounds description of the land subject to appellants’
restrictive covenant. In their brief, appellants acknowledge that the “6.374
acre tract is the [FWSA] tract,” and they also acknowledge that the warranty
deed that is attached to the judgment is “[t]he Terry Henry deed.” We will
accept these facts as stated. See Tex. R. App. P. 38.1(g). Appellants attached
one of these documents as an exhibit to one of their motions at trial and have
attached the same document to their brief. Also, Terry expressed his general
understanding of the property involved in the quitclaim deed, restrictive
covenant, and permanent injunction during the July 2008 hearing.
18
App.—Fort Worth Aug. 26, 2009, no pet.) (mem. op.) (holding that the
appellant waived issues concerning the differences between a judgment and a
settlement agreement because the appellant did not assert the differences in
the trial court). We overrule this final portion of appellants’ argument.
Conclusion
Having overruled all of appellants’ contentions, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON and WALKER, JJ.
DELIVERED: February 18, 2010
19
Terry Henry, Clarence M. Henry, and Oneta Henry v. City of Fort Worth, Texas, FW Sports Authority, Inc., and Texas Motor Speedway, Inc.
Combined Opinion