Error Preservation in Texas Civil Cases, September 14, 2019

Dear Folks:

The volume of decisions has followed its annual abatement trend since the end of the fiscal year on August 31. Both the justices and the staff attorneys had their respective annual meetings the first full week of September, and the Advanced Civil Appellate Seminar took place that same week. But the justices and staff attorneys have gotten back into the saddle, and we should expect the pace of decisions to pick up.

Table of Contents 


The Blurbs

Exercise extreme caution when drafting or signing an agreed judgment, in terms of differentiating whether all parties agree only as to form, or also as to substance:


Judgment: “A judgment entered upon the agreement of the parties cures all non-jurisdictional defects. One 2000 Int’l Truck Tractor v. State, No. 01-11-00072-CV, 2012 Tex. App. LEXIS 9247, 2012 WL 5458421, at *1 (Tex. App.—Houston [1st Dist.] Nov. 8, 2012, no pet.) (mem. op.) (citing Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). A party may revoke its consent to a settlement agreement at any time before an agreed judgment is rendered on the agreement. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); see also In the Matter of Marriage of Long, 946 S.W.2d 97, 99 (Tex. App.—Texarkana 1997, no pet.). But a party may not challenge such a judgment or defects in the proceedings in the case absent an allegation of fraud, collusion, or misrepresentation. See Authorlee v. Tuboscope Vetco Int’l, Inc., 274 S.W.3d 111, 119 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also Mailhot, 124 S.W.3d at 777 (holding party who asks trial court to accept settlement agreement and enter judgment accordingly may not later attack that judgment). To preserve error for appeal, a party who signs a judgment must specify that his agreement with the judgment is as to form, but not as to substance and outcome. See First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); see also Mailhot, 124 S.W.3d at 777. Here, as noted above, on behalf of appellant, Matherne signed the Agreed Final Judgment under the words, “AGREED AND ENTRY REQUESTED” and there was no language limiting his consent as to form, but not as to substance. Thus, appellant did not preserve error to complain about the Agreed Final Judgment, and she has waived the right to complain about it after asking the trial court to accept the agreement. See Fojtik, 775 S.W.2d at 633; see also Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex. App.—Houston [1st Dist.] 1995, writ denied).” Reule v. Sherwood Valley I Council of Co-Owners, Inc., No. 01-17-00593-CV, 2019 Tex. App. LEXIS 8130, at *4 (Tex. App.—Houston [1st Dist.] Sep. 5, 2019)

Judgment: “The judgment is titled “Agreed Final Judgment,” and Reedom signed the judgment as “Agreed to,” not just “agreed as to form.” This language is not necessarily sufficient to establish that the judgment is agreed, however, and appellate courts are not unanimous on the issue of whether a judgment can be challenged on appeal when it appears to be agreed but, like the Agreed Final Judgment, “has no recitation of the agreement in the body of the order itself.” Estate of Nielsen, 2018 Tex. App. LEXIS 7915, 2018 WL 4625531, at *4. However, here the Agreed Final Judgment further recited that “[t]he parties announced an agreement” and that the court was rendering judgment after hearing that agreement. Thus, the judgment reflects that an agreement existed and also that the county court had evidence of both its existence and its substance. Contra Bexar Cty. Crim. Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ) (stating that the word “Approved,” in the judgment signed by the appellant, with nothing more, did not indicate a consent judgment when “[n]othing in the body of the judgment suggests that the case had been settled or that judgment was rendered by consent” and that “[t]here are no other indications of agreement in the record”).

Nothing in the record indicates that Reedom signed [*4] the Agreed Final Judgment under protest or in any way indicated to the county court that it did not reflect the parties’ agreement. Contra Baw, 949 S.W.2d at 767 (holding that despite signing the divorce decree as “approved and consented to as to both form and substance,” the appellant, “by his objections to the trial court’s characterization of the [profit-sharing-retirement-trust] plan, did not explicitly and unmistakably give his consent to that portion of the divorce decree and did not waive his right of appeal”). He does not argue that the judgment erroneously states the existence of an agreement when none existed or that he did not agree to the terms of the judgment. In fact, he makes no argument at all about whether the Agreed Final Judgment was an agreed judgment. Nor does he argue that the county court did not have jurisdiction to render the Agreed Final Judgment. See Pillitteri, 165 S.W.3d at 718. Instead, he appears to complain about the dismissal of a federal lawsuit he filed against Woodstock and whether the dismissal was proper under federal rules of civil procedure. Accordingly, he has waived his issues on appeal.” Reedom v. 5950 Boca Raton LP, No. 02-18-00269-CV, 2019 Tex. App. LEXIS 7664, at *3-4 (Tex. App.—Fort Worth Aug. 26, 2019)

You must present your complaint in a timely fashion:


Notice: “Etienne argues in the alternative that the trial court abused its discretion in granting State Farm’s motion because the insurance policy required State Farm to give her ten days’ written notice before moving for appointment of an umpire, and she contends that State Farm failed to do so. But, Etienne neither responded to State Farm’s motion for appointment of an umpire nor appeared at the hearing on the motion. Having failed [*7] to timely raise this complaint, it is waived. See Tex. R. App. P. 33.1(a)(1). Moreover, and as State Farm points out, the trial court’s local rules provide that “[f]ailure to file a response may be considered a representation of no opposition.” Harris Cty. (Tex.) Co. Ct. At Law Loc. R. 3.3.3. Given Etienne’s failure to respond to State Farm’s motion or to appear at the hearing, the trial court did not abuse its discretion in granting the motion.” Etienne v. State Farm Lloyds, No. 14-18-00665-CV, 2019 Tex. App. LEXIS 8195, at *6-7 (Tex. App.—Houston [14th Dist.] Sep. 10, 2019)

A few cases dealt with situations in which the parties failed to raise their complaint in the trial court.

I hope this helps.  Have a great rest of the weekend.

Yours, Steve Hayes


Law Office of Steven K. Hayes

777 Main Street, Suite 600
Fort Worth, Texas   76102
Phone: 817/371-8759
Fax:     817/394-4436

Meetings with Mr. Hayes will be by appointment only.

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