Stewart v. Mathes

• Decision Date: 25 September 1975
• Docket Number: No. 7721,7721
• Citation: 528 S.W.2d 116
• Court: Texas Court of Appeals
• Parties: Elaine Mathes STEWART, Appellant, v. Lena MATHES, Appellee.

Page 116

528 S.W.2d 116

Elaine Mathes STEWART, Appellant, v. Lena MATHES, Appellee.

No. 7721.

Court of Civil Appeals of Texas,

Beaumont.

Sept. 25, 1975.

Leon Pettis, Beaumont, Leonard Stolaroff, Houston, for appellant.

Ernest Browne, Sr., Gilbert I. Low, Beaumont, for appellee.

STEPHENSON, Justice.

The opinion of this Court handed down on August 28, 1975, is withdrawn and the following substituted in its place.

This is an appeal from a judgment of the County Court of Jefferson County that plaintiff take nothing. Trial was before the court, sitting in probate, and the parties will be referred to here by name.

James Carroll Mathes died intestate in Jefferson County, and administration was taken out on his estate. Elaine Mathes Stewart filed a petition in that estate asking that she be declared a daughter of the deceased. Later pleadings filed showed her claim was based upon the theory of 'adoption by estoppel'.

An agreement was made to settle her claim against the estate for the sum of $22,500. This settlement was composed of communications between the attorneys of the respective parties. Before actual payment of the money was made, Elaine Mathes Stewart informed her attorneys that she did not desire to go through with the settlement.

Lena Mathes, administratrix of this estate, filed a motion for summary judgment based upon the compromise agreement which was denied by the court. The court then set a hearing upon the issue of the compromise agreement. Evidence was heard and judgment was then rendered upholding the validity of such settlement.

The material facts of this case are undisputed. The parties did agree to a settlement of this case, but Elaine Mathes Stewart changed her mind and the trial court was informed that she no longer consented to the agreement. The issue of heirship was not litigated in the trial court. The only evidence heard was upon the question as to whether or not the parties had agreed at an earlier time to a settlement of this case. Stewart at no point has asserted that her attorney did not have authority to enter into any settlement agreement. The record indicates that Stewart's attorney had such authority, and her attorney admitted such upon oral argument.

We are thus presented with the issue of whether a party to a settlement agreement can withdraw her consent prior to the time that a judgment is rendered upon that agreement.

While conceding not only that there was authority to enter into a compromise agreement but also that a valid agreement was previously made, it is Stewart's contention that such an agreement cannot, under the law of this state, furnish the basis for a judgment because consent was withdrawn before the judgment was entered and that the trial court knew this fact. Mathes basically asserts that the parties reached a valid settlement agreement and that it was enforceable as such on the basis of contract law between the parties.

In support of her position, Stewart relies primarily on Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). At 291, the Supreme Court held that:

'A valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. It is not sufficient to support the judgment that a party's consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.'

We have no dispute with that particular rule of law and other cases have supported that proposition. W. L. Moody & Company, Bankers v. Yarbrough, 510 S.W.2d 396, 399 (Tex.Civ.App.--Houston (1st Dist.) 1974, writ ref'd n.r.e.); Farr v. McKinzie, 477 S.W.2d 672, 676 (Tex.Civ.App.--Houston (14th Dist.) 1972, writ ref'd n.r.e.). But we do not believe that Burnaman is dispositive of the issue before us. An examination of that opinion demonstrates that the Court there was holding the consent judgment invalid and Not the settlement agreement. At 292, the Court further made the following statement which is pertinent to our situation:

'It follows that the reversal of the judgment should be Without prejudice to the right of defendants to plead the agreement in bar of plaintiff's suit and without prejudice also to plaintiff's right to avoid the agreement by pleading that her attorney was without authority to make it.' (Emphasis supplied.)

The import of Burnaman is that while a party can enter into a Valid and binding settlement agreement pending disposition of the case, a trial court cannot enter into a Consent judgment which incorporates the terms of that agreement if one of the parties thereto withdraws consent prior to entry of the judgment. This does Not render the settlement agreement or its enforceability invalid--only a judgment entered in the above manner. See Beckham v. Reed, Kapt. H. Krohn, G.M.B.H., 217 F.Supp. 749, 750 (S.D.Tex.1963) which also questions the application of Burnaman in the manner urged by Stewart.

Mathes in the court below did not request entry of a consent judgment. She sought enforcement of the settlement agreement and the rendition of a judgment based upon that 'contract.' The trial court did not hear evidence and determine that Elaine Mathes Stewart was not an heir. It heard evidence and...