Banda v. Garcia
| Decision Date | 30 October 1997 |
| Docket Number | No. 97-0066,97-0066 |
| Parties | 41 Tex. Sup. Ct. J. 79 Daniel Sanchez BANDA and Alberto Sanchez, Petitioners, v. Adolfo GARCIA, as next friend of Javier Garcia, Adolfo Garcia, as next friend of Jessica N. Garcia and Yvonne Ibarra Garcia, Respondents. |
| Court | Texas Supreme Court |
Donato D. Ramos, Baldemar Garcia, Jr., Laredo, for Petitioners.
Pruett Moore, III, Corpus Christi, Shirley Hale Mathis, Laredo, Rose R. Vela, Corpus Christi, Emilio Alva, Belinda Mendez, Laredo, David Cano, B. Mills Latham, Corpus Christi, for Respondents.
The issue in this cause is whether an attorney's unsworn testimony constitutes some evidence of a pre-suit settlement agreement. The court of appeals held that because the trial court had not placed Banda's attorney under oath, the attorney's statements at a pretrial hearing were not evidence of a pre-suit settlement agreement. 935 S.W.2d 790, 794. We disagree.
Javier Garcia was in an automobile accident with Daniel Banda that rendered Garcia brain-damaged and incapacitated. Before filing suit, Garcia's attorney, B. Mills Latham, sent a letter dated February 23, 1993 to Banda's attorney, Shirley Mathis, offering to settle the case for $60,000. In the letter, Latham said that if he did not receive the checks and releases by March 12, 1993, the offer would be withdrawn. According to Mathis, she called Latham before the deadline and accepted the offer but told Latham that the parties would need extra time to file a friendly suit so that the court could appoint attorneys ad litem to represent the incapacitated Garcia and his infant daughter. Latham allegedly agreed.
On March 24th, however, Latham notified Mathis that the settlement deadline had passed and that Garcia was filing suit against Banda. After Garcia sued, Banda filed a motion to enforce the settlement, alleging that Garcia had reneged on his agreement to extend the settlement deadline.
Latham did not attend the hearing on the motion to enforce, instead sending an associate, Pruett Moore, to represent Garcia. At the hearing, Mathis asserted that an oral agreement to extend the settlement deadline existed and that Latham had reneged on it. Moore denied that any oral agreement did in fact exist. The court of appeals held that Mathis's unsworn statements at the hearing were not enough to support the trial court's finding of an enforceable settlement agreement. 935 S.W.2d at 794.
Normally, an attorney's statements must be under oath to be considered evidence. See United States Gov't v. Marks, 949 S.W.2d 320, 326 (Tex.1997); Fullenwider v. American Guar. & Liab. Ins. Co., 821 S.W.2d 658, 662 (Tex.App.--San Antonio 1991, writ denied). As the court of appeals acknowledged, however, the opponent of the testimony can waive the oath requirement by failing to object when the opponent knows or should know that an objection is necessary. See 935 S.W.2d at 793 (); see also Beck v. State, 719 S.W.2d 205, 213 (Tex.Crim.App.1986).
Banda's attorney, Mathis, did not take an oath before discussing the existence and terms of the oral settlement agreement. Nevertheless, Moore should have known to object to Mathis's unsworn statements. The record shows that Mathis was clearly attempting to prove the existence and terms of the settlement agreement, including the agreement to extend the deadline, at the hearing. In fact, Mathis stated at the...
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