Burnaman v. Heaton
| Decision Date | 30 May 1951 |
| Docket Number | No. A-2872,A-2872 |
| Citation | 240 S.W.2d 288,150 Tex. 333 |
| Parties | BURNAMAN v. HEATON et al. |
| Court | Texas Supreme Court |
Kelley, Looney, McLean & Littleton, Edinburg, George W. Eddy, Houston, for petitioner.
Taylor, Cox, Wagner & Adams, Harlingen, Gordon Gibson, Laredo, Dan Moody, Austin, for respondents.
This suit was instituted by Mrs. Frances Burnaman against Mrs. Jan Higdon Peabody Heaton and her husband, W. P. Heaton, for damages for personal injuries suffered by plaintiff as the result of a collision between an automobile driven by Mrs. Burnaman and an automobile driven by Mrs. Heaton.
A trial court judgment in favor of respondents was affirmed by the Court of Civil Appeals, 231 S.W.2d 1006.
For convenience, the parties shall hereafter be referred to as plaintiff and defendants. The original attorneys for the respective parties shall be referred to as attorneys for plaintiff and attorneys for defendants.
The collision and resulting injuries to plaintiff occurred on August 17, 1948, and on August 26, 1948, plaintiff, by written contract, employed her attorneys to file and prosecute to its final disposition a suit against the defendants to recover damages. The written contract of employment contained the following provision: 'any compromise must be approved by me.'
The suit was called for trial on Monday, March 21, 1949, whereupon the attorneys for plaintiff and defendants appeared and announced to the court that the parties had agreed to settle the suit, the plaintiff to receive $10,000, and the defendants to pay all costs. The trial court, while in the clerk's office that morning, or early afternoon, entered on the docket a notation reflecting such settlement. The attorney for the plaintiff was present at the time the entry was made and requested the court to wait until he could get a confirmation of the notation from the attorney for the defendants. Within a few minutes the attorney for plaintiff returned and stated that the attorney for defendants desired to have that portion of the notation erased which stated the amount of the settlement. The court complied with the request.
On March 22, 1949, one of the clerks informed the court that the plaintiff was 'trying to back out on the settlement.' The trial judge testified to these facts at a hearing later held on June 13, 1949, and further testified that the Clerk had received this information from one of the attorneys for defendant.
On March 23, 1949, the attorneys for the parties again appeared and in open court announced 'that the plaintiff have judgment, ten thousand dollars and costs against the defendant.' The court accordingly made the following notation on the docket: 'Plaintiff and defendant announce in open court that plaintiff do have and recover of and from the defendant the sum of ten thousand dollars and costs as per decree to be entered.'
On March 31, 1949, the trial court received a letter from the plaintiff advising the court that she did not authorize the settlement. The court, on his own motion, set the matter for hearing on April 4, 1949. The hearing was later set for June 13, 1949, at the request of the plaintiff. The plaintiff was cited to show cause why judgment, as announced, should not be entered. The defendant filed a motion to enter judgment.
The hearing on the defendant's motion to enter judgment was had on the last mentioned date, but final judgment was not entered until December 12, 1949. The plaintiff employed her present attorneys to represent her at the hearing. Plaintiff at all times was in the Herman Hospital in Houston and was not present in court on any of the dates mentioned herein. She testified by deposition on June 13, 1949.
On March 20, 1949, the attorney for plaintiff talked to her by long distance telephone, and he testified that, after a lengthy conversation costing $10.20 she agreed to settle for $10,000.
On March 21, 1949, he sent a telegram to the plaintiff's niece stating, in effect, that settlement had been made in accordance with her authorization. This telegram was to plaintiff and on March 23, 1949, at 11:00 P.M. she sent a telegram to her attorney stating that she was amazed and that she had not authorized him to settle the case.
Under the circumstances, we are of the opinion that the trial court should not have accepted the announced settlement on March 23, 1949. The docket entry made upon that date is the only one on which defendants can rely. The announcement of settlement and docket entry were made after the court had received information that the plaintiff was dissatisfied. While there is undoubtedly a dispute as to whether she authorized her attorney to make the settlement, the record reveals that she was opposed to the settlement and is still insisting upon her right to be heard upon the merits of her claim.
We believe that the attorney for plaintiff was acting in good faith when he insisted that plaintiff make the settlement. His evidence introduced at the hearing shows that it was with great reluctance that she gave her authority. This did not relieve the court of the duty to make inquiry as to all the facts and circumstances surrounding the authority of the attorneys to make the compromise on the morning of March 23, 1949, before the docket entry was made and later recorded in the minutes. This is especially true when the parties are not before the court in person and the judge has notice that the settlement might not be satisfactory to one of the parties.
It is the contention of the defendants that the trial court was authorized to enter the judgment on December 12, 1949, based on the announcement made on March 23, 1949, in open court by the attorneys for plaintiff and defendant, of the settlement agreement, and the further fact that the agreement was noted on the docket and such notation was later entered in the Minutes of said court. They further contend that by virtue of this procedure the settlement agreement became valid and enforceable and complied with Rule 11 of the Texas Rules of Civil Procedure, which rule reads as follows: 'No agreement between attorneys or parties touching any suit 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.'
The plaintiff is here seeking relief so that she may have the right to try her suit before a jury. As barring that right she is faced not only with an agreement made in compliance with Rule 11, T.R.C.P.-which she contends she did not authorize her attorney to make-but is faced as well with a judgment of the court rendered on March 23rd which, if allowed to stand, is an absolute bar to her right to proceed with her suit. The fact that the agreement was made in open court and was entered of record would not be an absolute bar to her right to a trial of her suit. The judgment would. If in the face of the agreement she sought to proceed and the defendants set up the agreement of settlement as a bar to her right to do so, she could then assert that the agreement was made by her attorney without her consent or authority and she would be entitled to have a jury...
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S & A Restaurant Corp. v. Leal
...is worth a great deal. In fact that is the whole point in having trial courts render consent judgments. See, e.g., Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). The parties desire the finality of a judgment. Traditionally, consent judgments have been judicially favored. See, e.g.......
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In re Blessen H., 71, September Term, 2005.
...certain expression of the parties' lack of understanding as to what was intended by the offer." Id. Similarly, in Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951), the parties announced in court that they had settled their case. Id. at 335, 240 S.W.2d at 289. Later that same day, the......
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...parties must consent to the agreement at the time the trial court renders judgment. Kennedy, 682 S.W.2d at 528;see Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (1951). The trial court cannot render an agreed judgment after a party has withdrawn its consent to a settlement agreement......