dissenting to denial of en bane consideration of appellant’s motion for rehearing.1
[Filed August 19, 1994]
I respectfully dissent from the full court’s decision not to rehear this case en banc pursuant to Justice Reeves’ request. I think that Steak and Ale timely withdrew its consent to a settlement and that therefore the $2.2 million consent judgment cannot stand. I also conclude that the settlement was induced by fraud, which makes the majority’s holding especially erroneous.
This appeal justifies en banc review for two reasons: (1) The panel opinion has refused to let a litigant withdraw consent to a settlement while there was still time to withdraw. After defendant Steak and Ale agreed to settle with plaintiff Leal, it learned about her open and public physical activities, which contradicted the salient part of her case at trial — her contention that she was wheelchair-bound for life and could walk only with assistance. The issue here is not simply whether a sum of money changes hands. Nor is the issue whether litigants may change their minds and back out of settlements with impunity. At stake, because of the circumstances detailed below, is the credibility of our civil justice system and its ability to do justice and to correct injustice.
(2) The panel opinion muddles the law of consent judgments and rendition, and how they are reviewed on appeal, so badly that the full court should correct it. The opinion makes the extraordinary holding that a trial judge can look back and make a fact finding that he rendered judgment, and this court will then review that finding to see if the “evidence” is factually and legally sufficient to support it. In my view, an appellate court simply looks at the rule 11 record — in this case, the court reporter’s statement of facts — and determines from that record whether the court rendered judgment when the parties still agreed on the terms. Our own opinion in Grosso v. Ellis, 608 S.W.2d 347 (Tex.Civ.App. — San Antonio 1980, no *238■writ), is closely in point. We should follow it, try to distinguish it, or overrule it en banc, not ignore it as the panel majority has done.
The record establishes the following facts, and the panel majority does not dispute them. Annie Leal sued Steak and Ale for injuries she sustained on its premises when a waiter dropped a tray on her head. At trial her evidence showed a serious injury that confined her to a wheelchair and prevented her from driving or doing ordinary chores. In voir dire and opening statement, her lawyers described her as “permanently crippled,” “confined to a wheelchair,” and able to walk only with assistance. From the witness stand, she described herself as unable to walk without personal assistance or a walker, unable to walk unaided to another person in the courtroom, and ambulatory only in her home (where she could hold onto walls and furniture for support). Steak and Ale’s brief (supported by four affidavits presented in support of the motion for new trial) asserts that at trial Leal was helped onto and off the witness stand; Leal’s briefs do not dispute this statement, and we may therefore accept it as correct. See Tex.R.App.P. 74(f). Her settlement video describes her as a “crippled person,” a “partial paraplegic,” “ambulatory with a walker”; it says she “has difficulty on some types of pavements and sidewalks” and that some days she is “a prisoner in her own bed.” This was the case Leal presented. The litigants settled the case mid-trial for $2.2 million before Leal’s testimony was finished.
Before the money changed hands, one of the defense team’s legal assistants happened to see Leal in “very high heels, approximately three inches high” at a restaurant. The legal assistant watched Leal walk out of the restaurant and down the street to her ear with no visible difficulty, talking to her date and reaching into her purse as she walked. Thus alerted, Steak and Ale performed surveillance on Leal and videotaped her off and on for five days. The videotapes show Leal driving two different automobiles, walking, climbing a stairway from the first floor to the second, shopping for clothes at a store (seen through a plate glass window) and walking away with a package in her hand, carrying a basket of laundry to her car, and generally going about her daily business without the kind of physical disabilities she alleged at trial. During five days of surveillance, she never uses a cane, walker, or wheelchair. Occasionally she limps, but most of the time she walks without difficulty. One sequence shows her moving quickly and nimbly across a street to her car during a lull in the traffic. Perhaps a dozen times she is seen getting into and out of her car with not the slightest difficulty.
Perhaps Steak and Ale should have insisted on an independent medical examination, as the panel suggests.2 Perhaps Steak and Ale should have been more suspicious. But the issue here is not whether Steak and Ale should have discovered the fraud sooner. After all, her lawyers and doctors did not discover it. The issue is whether Steak and Ale withdrew its consent before the trial court rendered judgment.
I recognize that there has been no hearing devoted to the fraud issue and that is what will happen on remand. I have said Steak and Ale was defrauded because I conclude that the record shows fraud as a matter of law.
In this court, Leal has not challenged the accuracy of the videotapes, nor has she denied that she is the person depicted in them. Instead, she defends by confession and avoid- • anee.
She first argues that Steak and Ale was caught unprepared at trial with no independent medical evaluation and with several witnesses stricken, that its unpreparedness prompted it to settle during trial, and that it sought to set aside the judgment to erase its mistakes. To accomplish this, she argues, Steak and Ale caught her walking and filmed it surreptitiously on videotape.
In addition, Leal’s briefs say she never contended that she could not walk, but that *239she was in pain. I have concluded that the record does not bear out that contention.
During voir dire; Leal’s lawyer told the jury panel: she has “no hope of diverting from the permanency that I have told you about, permanent brain damage, permanently crippled, permanently in pain”; Mends “have been taking care of this girl, grocery shopping, cooking, helping her dress, that kind of thing”; “Annie came out of the operating room a paraplegic. She has now progressed somewhat. She’s able to walk_ She walks with help. For instance, if one of us helped her she would walk a bit. So, therefore she’s not really any longer a paraplegic, but she will have other adjectives to describe her paraplegia.”
During opening statement, her lawyer said: “What we are going to show in this case is that Annie Leal is now a 24-year-old young lady confined to a wheel chair.” “Annie is now what’s known as a household ambulator ... she can walk 10 feet or 15 feet if she holds onto a wall. She can walk with some assistance.” “She has a lifetime not only of pain, repeated operations, but she’s going to be confined to a wheelchair.” “She will probably never work again.”
Annie Leal testified on direct examination: “Q: Now Annie, the jury has seen you in a wheelchair. Can you walk? A: Not unless I have assistants helping me or the use of a walker. And at this particular time I was instructed not to use a walker because it was more painful for me to lift a walker. Q: Well, say on your own, could you walk from here to Timothy? A: No, Sir, I couldn’t, not without someone walking me up over there.” And later: “I’m still not able to do my own house cleaning or laundry.”
Leal’s settlement videotape made the following points about her physical condition. She is a “crippled person,” a “partial paraplegic,” “ambulatory with a walker”; she will have physical therapy for the rest of her life; she still requires the use of a walker; she “has difficulty on some types of pavements and sidewalks.” It is “too early to tell whether she will be a normally functioning being”; some days she wakes up “a prisoner in her own bed.”
Under this record, I conclude there is fraud as a matter of law. But even if there was no fraud, Steak and Ale was entitled to withdraw its consent for any reason, if the court had not rendered judgment.
Here Steak and Ale discovered Leal’s post-settlement activities in time to withdraw its consent to the settlement. Any litigant can withdraw its consent to a settlement before the court renders an agreed judgment. To state the rule differently, a court cannot render a consent judgment if either party has withdrawn its consent before rendition. See Quintero v. Jim Waiter Homes, Inc., 654 S.W.2d 442, 444 (Tex.1983); Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex.1982); Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291-92 (1951). The court may render judgment orally or in writing. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976); Comet, Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970). But the settlement terms and rendition must comply with rule 11 (written, signed, and filed with the court, or on the record in open court). Kennedy v. Hyde, 682 S.W.2d 525 (Tex.1984).
In my view, the settlement-rendition rule makes sense and is workable. There is something to be said for a symbolic pronouncement that converts an agreement of the parties into the judgment of the court. Wedding ceremonies, for example, usually conclude with a declaration that the groom and bride are now husband and wife.
The settlement-rendition rule does not burden courts or litigants in the slightest because compliance is utterly simple. When a case is settled during trial and there is no time to prepare a typewritten judgment, the parties and the court need to do only this: (1) state all the terms, (2) in compliance with rule 11, (3) as a precaution, ensure that the litigants understand the terms and the finality of the proposed settlement, and (4) ensure that the court makes the agreement of the parties the judgment of the court by rendering judgment. Words such as, “The agreement is approved; judgment is rendered,” will suffice. If the trial court approves the agreement but neglects to render judgment, the lawyers should politely ask, “Is judgment rendered, Your Honor,” or “Did the court *240render judgment?” and insist on a judicial response in the same way they insist on other rulings when a court will not rule.
Under these longstanding rules, if the court rendered judgment on May 14, Steak & Ale had no right to back out on June 19. But if the court did not render judgment on May 14, Steak & Ale had an absolute right to back out and the court had no right to sign the judgment when it did. This is the clear meaning of Quintero, Samples, and Burnaman.
The issue, then, is whether the court rendered judgment on May 14. The mere approval of a settlement is not a rendition of judgment; the court must convert the agreement of the parties into the judgment of the court. Formby’s KOA v. BHP Water Supply Corp., 730 S.W.2d 428 (Tex.App.—Dabas 1987, no writ); Buffalo Bag Co. v. Joachim, 704 S.W.2d 482 (Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.); Grasso v. Ellis, 608 S.W.2d 347 (Tex.Civ.App.—San Antonio 1980, no writ). As we said in Grasso, a trial court does not “approve” judgments; it “renders” them. Id. at 348. No magic words are required, but the court must say something to indicate its present intention to convert the parties’ agreement into the court’s judgment. I am not aware of any case that says “settlement approved” automatically equals “judgment is rendered.”
The supreme court in Samples implicitly acknowledged that mere approval does not suffice for rendition. There the trial court said:
It appearing to the Court that all of you did agree in open court to this settlement, the Court [1] approves the settlement made in open court and [2] 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.
When one litigant tried to withdraw consent, the trial court denied permission to withdraw and signed a written judgment. The supreme court upheld the consent judgment because the court had ordered papers signed, not because the trial court’s approval of the settlement constituted rendition of judgment. 640 S.W.2d at 875. If settlement approval per se constituted rendition, the supreme court would have rested its decision on that ground. Samples means that rendition requires something more than mere approval of the settlement.
This area of the law requires a line of some kind. If approval of the settlement is by itself a rendition, we will soon have to decide whether silent approval or acquiescence without express words of approval is sufficient. In my view the supreme court has drawn, the line at rendition, and even though the trial court does not have to use that particular word, the record must show when the court made the agreement the court’s judgment. If consent is lacking at that time, the court cannot sign a judgment based on consent, which has been timely withdrawn.
As I read the May 14 statement of facts, the court merely approved the agreement and did not render judgment. The court said in effect that the settlement would be final when it signed a written judgment. The court said to Mrs. Leal:
“You realize that once this judgment is signed and I approve it, everything else, it’s full, final and complete? ... And you want me to approve the settlement and sign the judgment ? ... I’ll approve the settlement.”
Because of the language emphasized in this quotation, I think there was not a present rendition of judgment on May 14. The written judgment was not signed until June 19.
Buffalo Bag and Grasso are directly in point, and I am dismayed by the panel majority’s failure to confront them. In Buffalo Bag the court summarized the settlement proceeding as follows:
Counsel for appellees specified the terms of the agreement, which were dictated into the record, after which the trial court carefully questioned both sides as to their understanding of the terms and willingness to enter into the settlement agreement. Satisfied that both sides understood and consented to the agreement, the trial court approved the settlement and noted on the docket sheet “Judgment to be entered accordingly.”
*241704 S.W.2d at 483 (emphasis added). This is precisely what happened in the present ease, except that here the trial judge said on the record that he would be signing a written judgment and the matter would be final at that time; in Buffalo Bag the court wrote on the docket sheet that a written judgment would be signed reflecting the agreement.3
The concurring opinion relies on Giles v. Missouri-Kansas-Texas R.R. Co., 712 F.Supp. 542 (E.D.Tex.1989). Giles itself does not discuss Grasso, and it distinguishes Buffalo Bag, in which the trial court used the words, “Judgment to be entered accordingly.” Here the trial court used similar language, emphasized above. Thus Giles may be consistent with Texas law. But to the extent that the Giles court, sitting as an Erie court and applying state law, deviated from Texas law as declared in Buffalo Bag and Grasso, this court should not follow it.
I have no doubt that in our case Judge Curry meant to render judgment, and when everyone had left the courtroom he thought he had done so. But our inquiry is: what does the rule 11 record show? The trial court’s subjective intent is immaterial, said the Buffalo Bag court: “[E]ven though it is certain that the trial court meant to render judgment at the time the agreement was presented and approved, we hold that the docket language by itself does not constitute a rendition of judgment.” Id. at 484. “Judgment is rendered” would have sufficed; “Judgment to be rendered” was not a present rendition. Id. at 483-84.
Grasso held that “settlement approved” does not mean “judgment rendered.” 608 S.W.2d at 347. An informal instrument entitled “Agreed jmt against Gerald R. Grasso for $20,000” was signed by the trial judge with the notation “Approved Aug. 15, 1979.” This appellate court reversed because settlement approval did not constitute rendition, and because appellant withdrew consent before judgment was rendered later:
In his brief, plaintiff refers to the handwritten agreement dated August 15, 1979, as a “Judgment” which “wás approved by Judge Preston H. Dial Jr.” A trial judge does not “approve a judgment. The judge renders a judgment. The record does not disclose that Judge Dial rendered any judgment whatever on August 15, 1979.”
Id. at 348. The court also held that the parties’ belief that a judgment had been rendered is of no importance. Id.
It is true that the Grasso agreement was not filed with the court papers, but the court did not rely on that fact. It rested its decision (that a litigant could withdraw consent) on the holding that approval of the agreement (which called itself an agreed judgment) was not a rendition of judgment.
Leal relies on Skidmore v. Glenn, 781 S.W.2d 672 (Tex.App.—Dallas 1989, no writ). There the trial court first made sure that the parties understood and agreed on all terms. The court then said, “I’ll enter an Order approving the agreement.” The appellate court held that this was a present rendition, not a mere intention to render in the future. Accordingly the appellant could not later withdraw consent. The key words are “enter an Order,” words suggesting rendition. I agree that the trial court’s statement in Skid-more meant “I am entering an Order approving the agreement” not “I will enter an order in the future approving the agreement.” This use of “I’ll” resembles statements judges often make during trial, such as, “I’ll overrule the objection,” which means “I am overruling the objection,” not “I am going to overrule the objection sometime in the future.” Skidmore thus stands for the correct rule: if the record shows present rendition, neither litigant can withdraw consent later, but if the record shows simply the intention to render judgment in the future, either litigant can withdraw consent until there is actual rendition.
The panel utterly fails to come to grips with these authorities. Instead it cites Esco-*242bar v. Escobar, 711 S.W.2d 230 (Tex.1986), for the notion that whether a judgment was rendered is a fact question. Escobar dealt with a nunc pro tune judgment in which there was no statement of facts. It has no relevance to consent judgments. Where consent judgments are at issue, I think courts decide when there was rendition as a question of law by looking at the rule 11 settlement record. Escobar certainly has no relevance when the court reporter made a record, which we can interpret in accordance with settled principles.
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In some quarters, it is fashionable to believe that appellate courts first determine the result they desire and then they come up with the reasoning to support it. Here the panel has produced neither a right result nor persuasive reasoning. Why would an appellate court go through mental gymnastics to prevent a litigant from withdrawing its consent to a settlement under the circumstances shown by this record? I do not know, and I dissent because that is what the panel has done. And it has unsettled the law of consent judgments in the process.
The. supreme court has said that fraud vitiates everything it touches. Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex.1979). Concerning settlement agreements, we are told that “an agreement in compliance with [rule 11] is subject to attack on the grounds of fraud or mistake.” Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex.1984). And we have been given this bold assurance: “Our system of justice is capable of ascertaining the existence of fraud and collusion.” Price v. Price, 732 S.W.2d 316, 318 (Tex.1987). I think Steak and Ale withdrew its consent before rendition and that the new-trial hearing on remand is not necessary.
I would grant en banc review, reverse the judgment, and remand the cause for a new trial.
. Justice Tom Rickhoff not participating in decision on Appellant’s Motion for En Banc Consideration of Motion for Rehearing.
. I think it degrades the legal profession and the civil litigation process for a court to encourage litigants to suspect fraud and to engage in relentless discovery. Instead of criticizing lawyers who did not uncover apparent fraud during discovery, courts should correct fraud when it is proven in time to correct it within settled legal rules.
. The appellant in Buffalo Bag withdrew consent because the written judgment changed the agreed terms, but the court rested its reversal of the judgment squarely on its holding that the appellant withdrew consent before the court had rendered judgment. The court noted that the appellants were abusing the judicial process. Id. at 484. The same is not true in this case because of the apparent fraud.