Howard Topham, Sr. v. Charles E. Patterson, Karen Patterson, and Marvin Stewart Lumber and Hardware, Inc.

IN THE TENTH COURT OF APPEALS No. 10-06-00101-CV Howard Topham, Sr., Appellant v. Charles E. Patterson, Karen Patterson, and Marvin Stewart Lumber and Hardware, Inc., Appellees From the 40th District Court Ellis County, Texas Trial Court No. 67,854 MEMORANDUM Opinion Howard Topham, Sr. appeals the trial court rendering an agreed judgment on the basis of a settlement agreement mediated between the parties. In two issues, he complains that the trial court: 1) erred in rendering an agreed judgment without his consent; and 2) improperly denied his motion for new trial. We will reverse and remand. We consider first whether the agreed judgment was appropriately rendered. Topham originally brought an action against Charles Patterson, Karen Patterson, and Marvin Stewart Lumber and Hardware, Inc. (collectively the Pattersons) to quiet title to certain land. The court referred the case to mediation. The result was a settlement agreement signed by all parties. When the Pattersons moved for an agreed judgment based on that settlement, Topham withdrew his consent. It is well settled law in Texas that a party may withdraw his consent to a settlement agreement at any time before the court renders judgment on that agreement. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995); Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983); Blake v. Mineral Properties, Inc., No. 10-04-00150-CV, 2006 Tex. App. LEXIS 2522, at *2 (Tex. App.—Waco March 29, 2006, no pet.) (mem. op.). The fact that the settlement resulted from court-ordered mediation does not impact a party’s ability to withdraw consent. Clopton v. Mountain Peak Water Supply Corp., 911 S.W.2d 525, 527 (Tex. App.—Waco 1995, no pet.). An agreed judgment rendered without the consent of all parties is void. Quintero, 654 S.W.2d at 444. Nonetheless, the consenting party can still enforce the settlement as a contract. Clopton, 911 S.W.2d at 527. The Pattersons contend that because the settlement agreement contains a provision calling for an agreed judgment based on the settlement, such judgment could be rendered without Topham’s consent. They further contend that the erroneous consent judgment was harmless error because Topham had the opportunity to litigate his claims of duress and fraud at the hearing on his motion for new trial. These arguments confuse the consent judgment with an action to enforce the settlement agreement by contract law. See Blake, 2006 Tex. App. LEXIS 2522, at *2. An action to enforce the 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); Clopton, 911 S.W.2d at 527. The only pleading is the Pattersons’ motion for a consent judgment which is not a proper pleading to enforce a settlement agreement lacking consent. See Padilla, 907 S.W.2d at 462; Quintero 654 S.W.2d at 444; Clopton, 911 S.W.2d at 526. The judgment was rendered after Topham withdrew his consent. The trial court erred in rendering that judgment. We sustain Topham’s first issue. We do not determine whether Topham has a valid defense to the settlement agreement. Id. Having sustained issue one, we do not reach the remaining issues. We reverse and remand this case for further proceedings consistent with this opinion. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Reverse and remand Opinion delivered and filed July 18, 2007 [CV06]