S & A Restaurant Corp. v. Leal

Decision Date14 March 1994
Docket NumberNo. 04-91-00551-CV,04-91-00551-CV
Citation883 S.W.2d 221
PartiesS & A RESTAURANT CORPORATION d/b/a Steak & Ale Restaurant, Appellant, v. Annie Marie LEAL, Appellee.
CourtTexas Court of Appeals
Dissenting Opinion of Justice Reeves March 25, 1994.

Rehearing Denied July 5, 1994.

Opinions on Denial of En Banc

Consideration of Rehearing

Aug. 19, 1994.

Penelope E. Nicholson, Marie R. Yeates, Jason J. Kuller, Stephanie K. Crain, Vinson & Elkins, L.L.P., Houston, Lewin Plunkett, Kerby Johnson, Plunkett, Gibson & Allen, Inc., San Antonio, for appellant.

Sean F. O'Neill, O'Neill & Balega, P.C., Pat Maloney, Sr., Law Offices of Pat Maloney, P.C., Mike Maloney, Maloney & Maloney, P.C., Charles A. Nicholson, Law Offices of Pat Maloney, P.C., San Antonio, Christa Brown, Austin, for appellee.

Before CHAPA, C.J., and GARCIA and BLAIR REEVES, 1 JJ.


[Filed March 14, 1994]

CHAPA, Chief Justice.

Appellant's motion for rehearing is granted. Our opinion dated January 12, 1994 is withdrawn and the following is substituted.

This is a personal injury lawsuit. Annie Marie Leal, appellee, filed suit against S & A Restaurant Corporation d/b/a Steak and Ale Restaurant (Steak & Ale), appellant, claiming serious injuries from an accident at Steak & Ale. After two days of a jury trial, the parties reached a settlement agreement and entered it of record in an out of court hearing. 2 The dispositive issues before this court are:

2 One month later, before the judgment was entered by the trial judge, appellant attempted to withdraw its consent to the agreement. Claiming newly found evidence, appellant filed a motion for new trial after the judgment was entered.

1) whether the trial judge rendered judgment at the time of the out of court settlement hearing on May 14, 1992; and,

2) whether the trial court committed error in failing to hear the alleged newly discovered evidence at appellant's motion for new trial hearing. TEX.R.APP.P. 90.

This suit arose as a result of an alleged accident that occurred in the appellant restaurant and left appellee seriously injured. Apparently satisfied with appellee's deposition, appellant never requested a medical examination of appellee. 3 According to the record, discovery abuses resulted in sanctions eliminating six of appellant's fact witnesses and its only expert witness. 4 Under these circumstances, both parties announced ready for trial, a jury was picked, opening statements were made, and testimony was taken. After appellant was rigorously and extensively examined by attorneys for both sides, both parties announced to the court that a settlement had been reached and an out of court hearing was requested. The out of court hearing took place on May 14, 1992 and the following took place prior to the court approving the settlement:

[PLAINTIFF ATTORNEY]: Judge, I think it's in her best interests. May I go ahead and dictate it?

THE COURT: Yes. We need to go on the record.

[PLAINTIFF ATTORNEY]: And I would say to you, just listen to this. So that we have now asked the Court to approve a settlement in the total sum of $2 million.

Before doing that, however, and we need to know that you understand it, that you want it settled, that you approve of it, and that you understand that forever concludes your claim against Steak and Ale.

Do you understand all of that?

MS. LEAL: Yes, sir.

[PLAINTIFF ATTORNEY]: And do you ask the Judge and want the Judge to approve the conclusion and settlement? [emphasis added].

MS. LEAL: Yes, sir.

THE COURT: You realize that once this Judgment is signed and I approve it, everything else, it's full, final and complete? You can't come back later and say, "Well, I made a mistake," or "We should have gone for more"?

Whatever? Do you understand?

MS. LEAL: Yes, I do.

THE COURT: Are the court costs going to be paid by Defendants?


[DEFENSE ATTORNEY]: Normally we pay for the court costs. Yes, we'll agree to pay the costs.

THE COURT: You realize now, and you are sufficiently aware of the facts now, and there isn't any question about your understanding the total settlement is $2 million? Do you understand that?

MS. LEAL: Yes, sir. I understand that. Mike and I--

THE COURT: And you want me to approve the settlement and sign the Judgment?

MS. LEAL: Yes, sir.

[PLAINTIFF ATTORNEY]: And you understand that once you settle the claim you THE COURT: And the attorneys' fees come out of that. Do you understand?

will be responsible for paying all of your medical bills?

MS. LEAL: Yes, sir.

THE COURT: I'll approve the settlement.

The jury was apparently dismissed thereafter.

A month later and prior to the entering of the written judgment, appellant attempted to withdraw its consent to the settlement based on alleged newly discovered evidence in the form of a videotape allegedly depicting appellee wearing high heels and walking without apparent problems.

At a hearing to enter judgment on June 19, 1992, the trial court entered judgment over objections from the appellant. Appellant argued for a continuance contending that judgment had not yet been rendered and that it was entitled to further time to prepare. On the other hand, appellee argued that the judgment had been rendered on May 14, 1992 and that the ministerial act of entering the judgment therefore could take place at any time without any particularly set notice. See Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292 (1953), overruled in part on other grounds, Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184, 191 (1955); State v. Macias, 791 S.W.2d 325, 328-29 (Tex.App.--San Antonio 1990, pet. ref'd). Apparently agreeing with the appellee, the trial court entered judgment making the implied finding that he had rendered the judgment on May 14, 1992 and was now merely entering the judgment, stating, "What is there to respond to, my signing of a Final Judgment?"

At the motion for new trial hearing on July 25, 1992, the trial court refused to hear the alleged newly discovered evidence, stating, "Well, I approved the settlement. I also rendered Judgment," in reference to the May 14, 1992 settlement hearing (emphasis added). Thus, the trial judge also made a specific finding that judgment was in fact rendered on May 14, 1992.

Therefore, the critical issue before this court is whether the trial court rendered judgment on May 14, 1992 by applying the appropriate standard of review if the point was properly preserved and assigned.

In Comet Aluminum Co. v. Dibrell, the Texas Supreme Court defined "rendition" by stating:

In Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, at 1041 (1912), we stated that a judgment's "rendition is the judicial act which the court settles and declares the decision of the law upon the matters at issue. " [Footnote omitted.] And in Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, at 292 (1953), we quoted Freeman on Judgments as stating that a judgment is " 'rendered' when the decision is officially announced either orally in open court or by memorandum filed with the clerk. " [Footnote omitted.] We then quoted with approval from Appeal of Bulkeley, 76 Conn. 454, 57 A. 112, 113, (1904) as follows:

"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."

Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 (Tex.1970).

In Escobar v. Escobar, after disapproving this appellate court substituting its judgment for that of the trial court, the Texas Supreme Court clearly established the standard for appellate review when dealing with the issue of rendition:

The court of appeals correctly states that the decision whether an error in a judgment is judicial or clerical is a question of law. Finlay v. Jones, 435 S.W.2d 136 (Tex.1968). However, whether the court pronounced judgment orally and the terms of the pronouncement are questions of fact. Wood v. Paulus, 524 S.W.2d 749, 755 (Tex.App.--Corpus Christi 1975, writ ref'd n.r.e.); Reavley and Orr, Trial Court's Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 203 (1973). The judicial or clerical question becomes a question of law only after the trial court factually determines whether it previously Appellate courts may only review for no evidence and factual insufficiency of the evidence the trial court's factual determinations on whether a judgment has been rendered. The court of appeals erred by substituting its judgment for the trial court's determination that on December 21, 1978, the trial court rendered judgment on tract 38 at 265.42 acres. [Emphasis added.] 5

rendered judgment and the judgment's contents.

Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex.1986). Therefore the only standards of review this court can apply regarding the issue of rendition are factual and legal sufficiency of the evidence, if points of error are properly preserved and assigned with respect to these issues.

It has long been the law that if no findings of fact and conclusions of law are filed or requested in a nonjury trial, it is presumed that the trial court made all necessary findings to support the judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). Unless the trial court's findings are challenged by a point of error on appeal, they are binding upon the appellate court. Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.) (citing Zelios v. City of Dallas, 568 S.W.2d 173 (Tex.Civ.App.--Dallas 1978, writ ref'd n.r.e.)).

"The trial judge, as the trier of fact, may draw reasonable inferences from the evidence, and his findings of fact may not be disregarded on appeal if the record contains some evidence of probative value from which these inferences may be drawn, or unless the findings are...

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