Garcia v. Banda

• Decision Date: 18 September 1996
• Docket Number: No. 04-95-00382-CV,04-95-00382-CV
• Citation: 935 S.W.2d 790
• Parties: Adolfo GARCIA, as Next Friend of Javier Garcia; Adolfo Garcia, as Next Friend of Jessica N. Garcia and Yvonne Ibarra Garcia, Appellants, v. Daniel Sanchez BANDA and Alberto Sanchez, Appellees.
• Court: Texas Court of Appeals

Page 790

935 S.W.2d 790

Adolfo GARCIA, as Next Friend of Javier Garcia; Adolfo

Garcia, as Next Friend of Jessica N. Garcia and Yvonne Ibarra Garcia, Appellants, v. Daniel Sanchez BANDA and Alberto Sanchez, Appellees.

No. 04-95-00382-CV.

Court of Appeals of Texas,

San Antonio.

Sept. 18, 1996.

Rehearing Overruled Dec. 12, 1996.

B. Mills Latham, Law Offices of B. Mills Latham, Corpus Christi, for Appellants.

David Cano, Law Office of David Cano, Corpus Christi, Shirley Hale Mathis, Mann, Trevino, Hale & Gallego, Baldemar Garcia, Jr., Donato D. Ramos, Person, Whitworth, Ramos, Borchers & Morales, Emilio Alva, Law Office of Emilio Alva, Belinda Mendez, Law Office of Belinda Mendez, Laredo, for Appellees.

Before CHAPA, C.J., and HARDBERGER and GREEN, JJ.

CHAPA, Chief Justice.

This is an appeal from an order granting appellees' Motion to Enforce Settlement and Set Friendly Suit. On five points of error, appellants contend that the trial court erred in granting the motion. We reverse and remand.

BACKGROUND

On December 7, 1991, Javier Garcia was involved in an automobile accident which rendered him brain damaged and incapacitated. On February 25, 1993, prior to any lawsuit being filed, appellants' attorney, B. Mills Latham, offered to settle the Garcias' claims against appellees for $60,000. In making this offer of settlement, Latham indicated that if the checks and releases were not received by March 12, 1993, the offer would be withdrawn. According to appellees' attorney, Shirley Hale Mathis, she contacted appellants' attorney and accepted the offer, but indicated her concerns regarding the necessity of a friendly suit. She believed a friendly suit was appropriate in order to appoint attorneys ad litem to represent the interests of Javier's infant daughter, Jessica, and the incapacitated Javier in the settlement. According to Mathis, she and Latham agreed to postpone the issuance of settlement checks until a friendly suit could be filed and heard.

On March 24, 1993, Latham notified Mathis that he planned to file suit on behalf of appellants as the March 12, 1993, settlement deadline had passed. Shortly thereafter, appellants filed an adverse suit. Appellees filed a Motion to Enforce Settlement and Set Friendly Suit ("motion to enforce"), alleging that appellants had reneged on their agreement to extend the settlement deadline. Appellants denied that any such agreement existed. Following a hearing in which both parties were represented by counsel and Javier and Jessica were represented by court-appointed attorneys ad litem, the court granted the motion to enforce. Appellees then agreed to dismiss their third party action against Javier's parents and proceed with a friendly suit.

ARGUMENTS ON APPEAL

In their first point of error, appellants urge that the trial court erred in granting appellees' motion to enforce because the evidence was legally insufficient to support a finding that a settlement agreement existed. It is undisputed that a settlement offer of $60,000 was made in this case. The controlling issue is whether the attorneys for appellants and appellees entered into an oral agreement that operated to extend the settlement deadline pending the filing of a friendly suit.

We review whether the trial court erred in determining that there was evidence to support the existence of an enforceable settlement agreement under a "no evidence" standard. Accordingly, we must review only evidence and reasonable inferences that tend to support the trial court's finding and disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). If there is any evidence of probative force that tends to support the finding, the finding must be upheld. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). In other words, if there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford, 726 S.W.2d at 16.

At the hearing on appellees' motion to enforce, appellants' attorney denied that Latham entered into an oral agreement whereby the settlement deadline was extended. Appellees' attorney, Mathis, argued that the agreement at issue did in fact exist and that appellants' counsel had reneged on it. The only evidence Mathis introduced in support of her position was a letter she had written in response to Latham's notification of his intention to file suit. The letter references the alleged agreement and indicates that it was Mathis' understanding that the case had been settled pending the filing of a friendly suit.

Appellants contend, first, that Mathis' assertions regarding the alleged agreement were unsworn and, therefore, not proper evidence before the court. Appellants also contend that Mathis' letter, as the only remaining evidence before the trial court, is insufficient to support the court's finding of an enforceable settlement agreement. We agree.

Mathis argued her motion before the court as appellees' attorney and was never placed under oath. If her statements were to be considered evidence, they were required to be made under oath, absent a waiver of the oath by appellants. See Fullenwider v. American Guarantee & Liability Ins. Co., 821 S.W.2d 658, 662 (Tex.App.--San Antonio 1991, writ denied); Bloom v. Bloom, 767 S.W.2d 463, 471 (Tex.App.--San Antonio 1989, writ denied). However, such waiver is required and could have taken place only when appellants' attorney knew or should have known that an objection was necessary. See Beck v. State, 719 S.W.2d 205, 213 (Tex.Crim.App.1986); Bloom, 767 S.W.2d at 471.

In Bloom, the court held that the unsworn statements of the plaintiff's attorney could not be considered as evidence where the defaulting defendant "could not and did not waive the 'swearing in' of the attorney." Bloom, 767 S.W.2d at 471 (emphasis added). Appellees attempt to distinguish Bloom, arguing that the holding therein applies only in a default setting where a party is not present to waive the formality of an oath. We, however, conclude that the reasoning in Bloom is applicable to the circumstances of the present case. Where a party is justifiably unaware of the need to object, his failure to object should not be deemed waiver, particularly where the result is a denial of his right to trial.

There is no indication in this record that Mathis' statements were considered anything other than argument by opposing counsel. Towards the end of Mathis' argument to the court, she stated "[y]our honor, as an officer of the court I can just state under oath what--what I am telling the court and what my representations were by Latham and the understanding I had." However, this assertion took place only after she had argued the issue completely and it merely reflects what she perceived to be her agreement. Following this assertion, Mathis concluded her argument with no change in delivery or form.

At no time was Mathis placed under oath, nor did she take the stand or submit to examination from either the court or opposing counsel. Further, the trial court gave no indication that it was accepting Mathis' argument as testimonial evidence. Neither, does the record distinguish between Mathis' alleged testimony and her argument to the court. Accordingly, we find nothing in this record to indicate that appellants' counsel knew or should have known that an objection was necessary during argument to prevent waiver. ¹ If we were to accept appellees' contention and find that appellants' attorney waived the administration of the oath by failing to object to Mathis' argument, attorneys would feel compelled to interrupt argument of opposing counsel and demand that counsel be placed under oath in order to ensure preservation of error should one attorney later claim that his argument was considered by the court as testimony. In order for an attorney's statements to be considered as evidence by the court, there must be something in the record which clearly indicates that all concerned were aware that the statements were meant to be testimony. Otherwise, neither the trial court nor the opposing party is on notice that counsel's statements are intended to be considered as testimony. This is particularly true in proceedings resulting in the denial of a party's right to litigate his claims before a trier of fact. In such situations, particular effort should be made to protect the interests of both parties.

It is in this respect that we find this case factually distinguishable from Fullenwider. The dissent contends that our holding is in conflict with our holding in Fullenwider. However, in Fullenwider, the issue before the court was whether the testimony of certain witnesses should have been excluded as the defendant failed to supplement its answers to plaintiff's interrogatories requesting disclosure of those witnesses. The central question, therefore, was whether the defense counsel, having the responsibility to supplement, could show good cause for the failure. The sole showing of good cause for the lack of supplementation was the unsworn statements of the defendant's attorney.

As the burden for showing good cause was clearly on defendant's attorney, this was the only evidence that those involved anticipated. Therefore, since the record clearly showed that all concerned were aware that the statements of defense counsel were intended to be testimony, we held that the statements could be considered as evidence because the attorney for the plaintiff allowed the defendant's attorney to testify without objection. Fullenwider, 821 S.W.2d at 662.

There is a clear distinction between the facts of this case, and the facts in Fullenwider. Fullenwider involved an evidentiary question affecting the trial on the merits. The court's decision did not deprive either party of their day in court. The purpose of the hearing in the present case was not to resolve a pretrial matter with a showing of good cause. Rather, the hearing had the effect...