Farr v. McKinzie

Decision Date01 March 1972
Docket NumberNo. 587,587
Citation477 S.W.2d 672
PartiesJack A. FARR et ux., Appellants, v. J. Alex McKINZIE et al., Appellees. (14th Dist.)
CourtTexas Court of Appeals

Bennett B. Patterson, Patterson & McDaniel, Louis M. Moore, Moore, Morris & Payne, Houston, for appellants.

Emory T. Carl, Carl, Lee & Fisher, Joe H. Reynolds, Reynolds, White, Allen & Cook, Fred Much, Houston, for appellees.

BARRON, Justice.

This case involves the power and the right of a trial court to enter an agreed judgment and the extent and nature of the judgment so entered.

On May 12, 1960, Jack A. Farr and wife, Ura E. Farr, filed suit in District Court of Harris County for the benefit of themselves, Trail Drive-In, Inc. and each and all of its stockholders, and against J. Alex McKinzie, George Heck, J. W. Hill, Herbert C. Graham, Trial Drive-In, Inc. Southwestern Theatre and Equipment Company, and Jefferson Amusement Company. The suit remained on the docket of the court without trial for about eleven years. However, there was a venue appeal (see Farr v. Jefferson Amusement Company, 396 S.W.2d 343 (Tex.Civ.App.--Texarkana 1965, writ dism'd)), a condemnation proceeding involving some of the land in litigation, and various other actions by the trial court during such eleven-year period. On February 16, 1970, Jack A. Farr, omitting his wife as a party, amended his pleadings by the filing of his second amended original petition. In such petition Lone Heck Menasco was sued individually and as independent executrix of the estate of George Heck, deceased, joined by her husband. The amended pleadings omitted Trail Drive-In, Inc. (hereinafter called Trail) and its stockholders as plaintiffs, and omitted Southwestern Theatre and Equipment Company and Jefferson Amusement Company as defendants. In his final amended pleading above, Farr reasserted his claim against the defendants, sought specific performance of an alleged oral option contract to purchase all business and properties of Trail for a cash price of $450,000.00, sought damages in a sum equal to all dividends and benefits of every kind received by defendants, jointly and severally, from the operation of Trail and Theatre Sales Company, during the period from January 22, 1960, to date of judgment, alleged to be about $497,896.00, plus interest; sought damages from Trail for an alleged breach of contract, and alternatively, for specific performance of the alleged option contract aforementioned to purchase the capital stock of Trail, and for other relief. All defendants answered, and all parties were represented by counsel.

Trial of the above cause began with a jury empaneled on May 17, 1971. On May 26, 1971, after eight days of trial, the jury was given a recess by the trial court to permit the attorneys and parties to reach a possible settlement of all issues then being tried. All parties did within a short time agree to a complete settlement as evidenced by a hand-written memorandum of settlement which was placed in the possession of the trial court in chambers about 1:45 p.m. on May 26, 1971, initialed by all counsel and all parties. After some discussion with the trial court, all counsel and all parties personally approved the settlement agreement as written, and the court orally announced to all parties and counsel that an appropriate judgment based upon what had been recited in the agreement would be entered in the case. This statement was made more than once on that date, but the record does not reflect whether the trial court was in chambers when the statement announcing his decision was orally made or whether he was in open court or both. In any event, there was some dispute and objection as to the form of judgment the court was to sign and the trial court named several attorneys representing the parties to prepare a judgment in accord with the settlement agreement, a release to be attached to the judgment and a contract as stipulated in the memorandum was to be attached, all at the direction of the court. At the request of counsel, and on motions for signed and formal judgment filed, the trial court set June 17, 1971, as the date for a hearing prior to his 'signing, rendering and entering' of the judgment.

The trial court's docket sheet shows as follows: 'May 26, 71. Jury given recess--at 2:00 p.m. settlement reached among parties & dictated into record (court reporter notes). 2:30 p.m. jury discharged. (WH).'

At the June 17, 1971 hearing, attorneys for Farr seriously protested the entry of the proposed judgment as prepared and made various objections thereto. While there was no objection to entering the judgment as strictly an agreed judgment in the form and words of the settlement memorandum, protests and objections were made that the proposed judgment was not in accord with the agreement, that the proposed release to be given by Farr was erroneous and was never agreed to, that the attempt in the form of judgment of the trial court to absolve one of defendants from any error or wrongdoing was not agreed to, that the proposed agreement for the sale of real estate altered Farr's rights and was erroneously drawn, that there was no agreement regarding two motions in limine which the court included in the judgment, and that no tender of $5,000.00 was made as allegedly provided by the agreement. Various points of objection and alleged misconstruction by the trial court of the actual memorandum of agreement of the parties were made by Farr's attorneys. The settlement memorandum was attached to the judgment as Exhibit 'A' and made a part thereof, and the sales agreement form was attached as Exhibit 'C'. At this time Farr and his counsel refused to sign the judgment for approval and gave notice of appeal in open court. The trial court signed the judgment on June 17, 1971, and had it entered, including the written agreement of the parties, as the judgment of the court.

There was a conceptual difference between counsel for Farr and the trial court, the court taking the position that after the agreement was made it was his duty and prerogative to interpret the agreement; that the judgment was then not necessarily an agreed judgment but the 'court's judgment'; that the court 'had to be the final arbiter as to what agreement was based upon the instrument, which is, of course, subject to review.' Counsel for Farr at all times took the position that the court's duty was nothing more than a ministerial act of recording the agreement of the parties, 'because an agreed judgment is nothing more than a contract.' So far as the formal entry of judgment is concerned, the trial court was correct, but so far as his interpretation of his duties and prerogatives pertaining to the substance of an agreed judgment is concerned, the tolerant trial court was in error as demonstrated below.

However, from the signing of the memorandum of settlement on May 26, 1971, at least until the perfection of this appeal by Farr, neither Farr nor his counsel had ever repudiated the signed agreement, which was a part of the judgment of the trial court. Appellant, through counsel, has repeatedly stated that he had no objection to the entry of judgment in accordance with the memorandum of agreement for judgment with nothing further. Counsel so stated repeatedly during the hearing on June 17, 1971, on the signing and entry of formal judgment. In a letter to the court dated June 9, 1971, counsel for appellant reiterated his position and merely pointed out the objections as noted above. On appellant's motion for judgment and alternate motion for mistrial filed June 4, 1971, the again urged the trial court to enter judgment based solely upon the written memorandum. In his motion for new trial dated and filed June 25, 1971, appellant steadfastly remained convinced that the judgment of the court should include the written memorandum and nothing else, and that the final judgment should be 'a reformed judgment in accordance with the agreement of parties, . . .'. Appellants' prayer in his motion for new trial was as follows:

'WHEREFORE, PREMISES CONSIDERED, the plaintiffs, Jack A. Farr, and wife, Ura E. Farr, pray that this Motion shall be granted, and pray that the Court will enter Judgment in accordance with the obvious real and apparent intention of the parties as reflected in and contained in Exhibit 'A' which is attached to the Judgment, And the said Jack A. Farr and Ura E. Farr do announce to this Court, and to any Appellate or Reviewing Court, that they are willing to stand by and abide by their agreements made as set out in Exhibit 'A', attached to the Judgment of the Court dated June 17, 1971, Provided that there are no embellishments, additions, interpretation, or augmentation of the agreements so made by them as set forth in Exhibit 'A', and that they have always been willing to do so.' (Emphasis added).

The motion was signed by counsel for Farr.

It was not until appellant filed...

To continue reading

Request your trial
19 cases
  • Jones v. Hubbard
    • United States
    • Maryland Court of Appeals
    • November 16, 1999
    ...for adjudication, and oral pronouncement by the court of its decision is sufficient for `rendition of judgment'. Farr v. McKinzie, Tex. Civ.App., 477 S.W.2d 672, 676 [(1972)]. "The rendition of judgment is the pronouncement of the court of its conclusions and decision upon the matter submit......
  • Baylor College of Medicine v. Camberg
    • United States
    • Texas Court of Appeals
    • January 29, 2008
    ...at 336-37; Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex.App.-Corpus Christi 1995, no writ); Farr v. McKinzie, 477 S.W.2d 672, 677-78 (Tex. Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). A withdrawal of consent must be effectively communicated to the trial court. See First Heights B......
  • State ex rel. Karr v. Shorey
    • United States
    • Oregon Court of Appeals
    • July 18, 1977
    ...Donselaar, 249 Iowa 504, 87 N.W.2d 311 (1958). Accord : Bohlman v. Big River Oil Company, 124 N.W.2d 835 (N.D.1963); Farr v. McKinzie, 477 S.W.2d 672 (Tex.Civ.App.1972). In this state, under ORS 109.165, the court is given the express power to "set aside, alter or modify" a filiation suppor......
  • Sun Life Assur. Co. of Canada v. Clyce
    • United States
    • U.S. District Court — Northern District of Texas
    • July 25, 1980
    ...court in Texas is bound to enter a judgment falling strictly within the agreement of the parties. Farr v. McKinzie, 477 S.W.2d 672 (Tex.Civ.App. — Houston 14th Dist. 1972, writ ref'd n.r.e.); Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786 (1941). Where, however, as here, there is no writt......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT