Gregory v. White, 16482
| Decision Date | 25 July 1980 |
| Docket Number | No. 16482,16482 |
| Citation | 604 S.W.2d 402 |
| Parties | Christopher GREGORY, Appellant, v. Mark WHITE, Attorney General of the State of Texas et al., Appellees. |
| Court | Texas Court of Appeals |
This is an appeal by Christopher Gregory, also known as Brother Leo, from a judgment entered by the 79th Judicial District Court of Jim Wells County, Texas. The judgment in this cause determined who was entitled to serve as members and directors of the John G. and Marie Stella Kenedy Memorial Foundation, which was established by Sarita K. East prior to her death on February 11, 1961. This appeal represents the latest installment in the East will litigation, which began in the early 1960's. 1 The present suit was instituted in 1961 and was settled by agreement in 1963. The settlement agreement, reduced to writing and signed by all of the parties, was incorporated in a judgment on September 1, 1964. The judgment was expressly made interlocutory pending the outcome of two suits in which claims against the East estate were being adjudicated. Approximately eighteen months after the interlocutory judgment was rendered the appellant filed a petition in the nature of a bill of review to set it aside. The trial court dismissed the petition reasoning that the order was not a final judgment and was therefore not properly the subject of a suit in the nature of a bill of review. On appeal this court affirmed the trial court's action dismissing the appellant's petition. See Gregory v. Lytton, 422 S.W.2d 586, 591 (Tex.Civ.App.-San Antonio 1967, writ ref'd n.r.e.). 2
On July 24, 1979, the appellees filed a motion for the entry of final judgment arguing that the supreme court's decision in Trevino v. Turcotte, 564 S.W.2d 682 (Tex. 1978), removed the last obstacle to making the September 1, 1964, judgment final. Subsequently, on September 14, 1979, the appellant filed a first amended motion to set aside the interlocutory judgment contending that the settlement agreement upon which the judgment was based is void for the following reasons: lack of authority, duress, failure of condition precedent, and because he no longer consented to the agreement. 3
After a hearing the trial court granted the appellees' motion for the entry of final judgment. It is from this judgment that the appellant has perfected an appeal.
By several points of error the appellant contends that the trial court erred in entering a final judgment because (1) he notified the court prior to the entry of final judgment that he had withdrawn his consent to the settlement agreement; and (2) his consent to the settlement agreement was conditional and the condition has not been met.
A valid consent judgment cannot be rendered if, at the time the court undertakes to make the agreement the judgment of the court, the trial judge has knowledge that one of the parties to the suit has withdrawn his consent. Moreover, an agreed judgment should not be entered if the trial judge possesses information that would reasonable prompt further inquiry, and this inquiry, if pursued, would disclose a lack of consent. See Burnaman v. Heaton, 150 Tex. 333, 339, 240 S.W.2d 288, 291-92 (1951).
Once a settlement contract, agreed to by all of the parties to the suit, is incorporated in a judgment of the court, however, a party is precluded from attacking the validity of the judgment in the absence of an allegation and proof of fraud or collusion. This rule is simply an application of the general principle that one cannot complain of that to which he has agreed. See De Lee v. Allied Finance Co., 408 S.W.2d 245, 247 (Tex.Civ.App.-Dallas 1966, no writ). In the instant case the evidence conclusively establishes that the appellant signed the settlement agreement and that the judge had no reason to know of any dissatisfaction that the appellant might have had with the agreement at the time the interlocutory judgment was rendered.
There is no justification either in law or logic for applying a different rule to agreed interlocutory judgments than to agreed final judgments. An agreed interlocutory judgment would be of little value if its terms could be avoided by the withdrawal of consent of one of the parties. Accordingly, we hold that the above-stated principles governing agreed judgments apply to all consent judgments whether interlocutory or final.
In support of his assertion that he never consented unconditionally to the settlement agreement the appellant...
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