Formby's KOA v. BHP Water Supply Corp.

• Decision Date: 30 April 1987
• Docket Number: No. 05-86-00304-CV,05-86-00304-CV
• Citation: 730 S.W.2d 428
• Parties: FORMBY'S KOA, Appellant, v. BHP WATER SUPPLY CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 428

730 S.W.2d 428

FORMBY'S KOA, Appellant, v.BHP WATER SUPPLY CORPORATION, Appellee.

No. 05-86-00304-CV.

Court of Appeals of Texas Dallas.

April 30, 1987.

Jeffrey L. Wood, Ramona R. Stephens, Dallas, for appellant.

Smith E. Gilley, Greenville, Jack K. Smith, R. Lynn Fielder, Dallas, for appellee.

Before STEPHENS, HECHT and BAKER, JJ.

HECHT, Justice.

Our decision in this case turns on whether appellant Formby's KOA withdrew its consent to an agreement announced by the parties on the record in open court and noted on the docket sheet, before judgment was rendered on the agreement.We hold that it did, and consequently, reverse the judgment and remand the case to the district court.

After this case was called for trial, appelleeBHP Water Supply Corporation's attorney announced to the court:

Your Honor, the BHP Water Supply Company, through its attorney, announces that we believe that a tentative agreement has been reached, whereby, the matter would be settled, then the instruments would be drawn to set out in particular those aspects that need maybe some refinement.

Attorneys for both parties then recited on the record in open court the somewhat involuted terms of a settlement of the entire dispute, which the trial judge noted in detail on his docket sheet.Representatives of both parties present in the courtroom formally assented to the agreement and asked the court to approve it.The following colloquy between the court and counsel concluded the proceeding:

THE COURT: All right.Fine.It is my understanding--how quickly will an order be prepared before we dispose of the case?As soon as the instruments--

[BHP'S ATTORNEY]: Your Honor, it will probably be the later part of next week.

[FORMBY'S ATTORNEY]: We would--

THE COURT: This will dispose of the case?

[BHP'S ATTORNEY]: Yes.

THE COURT: All right.Fine....

On his docket sheet the trial judge wrote, over his signature:

Parties present w attnys.M/Cont heard & denied.Recess for settlement effort.Agreement announced & read into record.Approved.Instruments to be drawn....(This is final disposition of case)

[Terms of agreement omitted.]

Three months later BHP moved for judgment on the agreement recited in open court.Formby's filed a response stating that it had withdrawn its consent to rendition of an agreed judgment.The trial court heard and granted BHP's motion without notice to and in the absence of Formby's.

Formby's and BHP agree on two governing principles.First, the general rule, applicable in this case, is that an agreement for judgment, like other agreements in a pending lawsuit, will ordinarily not 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;Kennedy v. Hyde, 682 S.W.2d 525, 529(Tex.1984).Second, a judgment cannot be rendered on an agreement, even if it complies with Rule 11, after any party bound by the judgment has withdrawn consent to the agreement.Id. at 528-529;Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291(1951).See alsoQuintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444(Tex.1983).

Formby's and BHP disagree as to when judgment was rendered in this case.Formby's argues that judgment was not rendered until the judge signed the written instrument, after Formby's had withdrawn its consent to the settlement agreement.BHP argues that judgment was rendered the day the settlement agreement was stated on the record, confirmed by the parties, approved by the trial court, and noted on the docket sheet, long before Formby's withdrew its consent.

"The judgment of a court is what the court pronounces.Its rendition is the judicial act by which the court settles and declares the decision of the law upon the matters at issue."Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041(1912).

"[T]he rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication" which "may be oral as well as written"....[A] judgment is " 'rendered' when the decision is officially announced either orally in open court or by memorandum filed with the clerk."... "A judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk, in his official capacity and for his official guidance--whether orally or by written memorandum--the sentence of the law pronounced by him in any cause."

Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292(1953)(emphasis and citations omitted);Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59(Tex.1970).

The judge's intention to render judgment in the future cannot be a present rendition of judgment.The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made.The opportunities for error and confusion may be minimized if judgments will be rendered only in writing and signed by the trial judge after careful examination.Oral rendition is proper under the present rules, but orderly administration requires that form of rendition to be in and by spoken words, not in mere cognition, and to have effect only insofar as those words state the pronouncement to be a present rendition of judgment.

Reese v. Piperi, 534 S.W.2d 329, 330(Tex.1976).

When these principles are applied to the case at hand, the ineluctable conclusion is that the trial judge did not render judgment orally at the hearing at which the settlement agreement was announced.He did not say in so many words that judgment was rendered.He did not order the parties to sign and follow the agreement announced and approved by them in open court.SeeSamples Exterminators v. Samples, 640 S.W.2d 873(Tex.1982).On the contrary, he indicated his understanding that instruments effectuating the settlement and an order would be prepared and presented before the case could be disposed of.This understanding was consistent with BHP's attorney's statement that the agreement was "tentative" and that "instruments would be drawn to set out in particular those aspects that need maybe some refinement."The judicial pronouncement was of future, not present, judgment.

Furthermore, the trial judge did not render judgment by his docket sheet notation."As a rule a mere docket entry is not sufficient to constitute a judgment or decree of the court."Loper v. Hosier, 148 S.W.2d 889, 891(Tex.Civ.App.--Dallas 1941, writ dism'd judgmt cor.).¹The rule is applicable here where there is...