Marsha Lewis Blake and Travis Hedemann, Trustee v. Mineral Properties, Inc. and Dan Miller, II

IN THE TENTH COURT OF APPEALS No. 10-04-00150-CV Marsha Lewis Blake and Travis Hedemann, Trustee, Appellants v. Mineral Properties, Inc. and Dan Miller, II, Appellees From the 82nd District Court Robertson County, Texas Trial Court No. 02-12-16612-CV MEMORANDUM Opinion Marsha Lewis Blake and Travis Hedemann, Trustee, appeal the trial court’s dismissal, with prejudice, of their lawsuit against Mineral Properties, Inc. and Dan Miller, II which involved the assignment of two oil and gas leases. Mineral Properties and Miller allege that the parties’ attorneys entered into a settlement agreement which is binding on the parties. But Blake and Hedemann revoked their consent to the settlement agreement prior to rendition of the judgment. In one issue, Blake and Hedemann complain “the trial court erred in rendering judgment based on a settlement agreement that did not meet the requirements of Rule 11 of the Texas Rules of Civil Procedure and had not been authorized by the Plaintiffs.” Blake and Hedemann essentially argue three sub-issues under this one issue: 1) the settlement agreement did not comply with Rule 11 and, thus is unenforceable; 2) Blake’s and Hedemann’s attorney had no authority to enter into the settlement agreement, and thus, the agreement is unenforceable; and 3) the trial court knew Blake and Hedemann did not consent to the agreement, and thus, the trial court erred in rendering a consent judgment. Because the third sub-issue is dispositive, we will discuss that argument first. The law in this State since at least 1951 has been that a judgment based upon an agreement of the parties or their attorneys cannot be rendered by a court when consent of one of the parties thereto is lacking. See Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996); Padilla v. La France, 907 S.W.2d 454, 461 (Tex. 1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983); Burnaman v. Heaton, 240 S.W.2d 248, 291 (Tex. 1951). Consent must exist at the very moment the court undertakes to make the agreement the judgment of the court. Burnaman, 240 S.W.2d at 291. When a trial court has knowledge that one of the parties to a suit does not consent to a judgment, the trial court should refuse to sanction the agreement by making it the judgment of the court. Quintero, 654 S.W.2d at 444. A judgment rendered after one of the parties revokes his consent is void. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995). Like numerous other litigants have argued, Mineral Properties and Miller argue that the dismissal was not a consent judgment but was a judgment properly enforcing the settlement agreement. They are incorrect. An action to enforce a settlement agreement where consent is withdrawn must be based on proper pleading and proof. Padilla v. LaFrance, 907 S.W.2d 454, 462 (Tex. 1995). The only “pleading” for enforcement of the agreement in this record is a motion to dismiss filed by Mineral Properties and Miller. A motion to dismiss is not a proper pleading from which the trial court can enforce the settlement agreement. See Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983); Clopton v. Mountain Peak Water Supply Corp., 911 S.W.2d 525, 526 (Tex. App.—Waco 1995, no pet.). The trial court rendered a judgment based on an agreement to dismiss the lawsuit reached by the parties’ attorneys. The court was aware prior to its judgment that Blake and Hedemann no longer, if ever, agreed to the settlement which included an agreement to a judgment dismissing their lawsuit. But the suit was dismissed anyway. Because Blake and Hedemann revoked their consent to the agreed dismissal before the judgment was rendered, the judgment is void. Blake’s and Hedemann’s third sub-issue is sustained, and this case is reversed and remanded to the trial court. We do not determine at this point whether the settlement agreement was valid under Rule 11 or whether Blake’s and Hedemann’s attorney had the authority to enter into the agreement. We simply remand this case to the trial court where Mineral Properties and Miller may, upon proper pleading and proof, pursue the enforcement of the settlement agreement and where Blake and Hedemann may plead and prove any defenses they may have. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Reversed and remanded Opinion delivered and filed March 29, 2006 [CV06]