Davie Carter Westmoreland v. AIA Holdings Inc., International Fidelity Insurance Company, and Allegheny Casualty Company ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00208-CV
DAVIE CARTER WESTMORELAND,
Appellant
v.
AIA HOLDINGS INC., INTERNATIONAL FIDELITY INSURANCE
COMPANY, AND ALLEGHENY CASUALTY COMPANY,
Appellees
From the 85th District Court
Brazos County, Texas
Trial Court No. 15-001757-CV-85
MEMORANDUM OPINION
Davie Westmoreland appeals from a purportedly agreed final judgment that
awarded AIA Holdings, Inc., International Fidelity Insurance Co., and Allegheny
Casualty Company a judgment against her for $350,000. Westmoreland complains that
the agreed judgment should not have been signed by the trial court when he did because
she did not consent to it and there were no pleadings on file to enforce the purportedly
agreed settlement agreement. Because we find no reversible error, we affirm the
judgment of the trial court.
In September of 2016, during the pendency of this litigation, the parties attended
a mediation which resulted in a "Memorandum of Agreement." Based on the mediation,
the attorneys for AIA Holdings, International Fidelity, Allegheny Casualty, and
Westmoreland entered into an agreement entitled "IRREVOCABLE STIPULATION AND
RULE 11 SETTLEMENT AGREEMENT" in October of 2016. In the agreement, the parties
"stipulate and irrevocably agree" that Westmoreland would pay $350,000 to the insurance
companies on or before March 15, 2018 and if the amount was not paid by that date, an
attached agreed judgment would be presented to and rendered by the trial court for that
amount. That document was signed by Westmoreland's trial counsel on her behalf. The
trial court approved the parties' agreement to delay further proceedings until March of
2018.
Westmoreland did not comply with the agreement. On April 12, 2018, the
attorneys for the insurance companies submitted the agreed final judgment to the trial
court and the trial court signed the final judgment on April 18, 2018. The agreed final
judgment had been signed by Westmoreland's attorney on her behalf as well. Thirty days
later, Westmoreland filed a motion for new trial, alleging for the first time that she had
not consented to the order and asked that the final judgment be set aside. Although
Westmoreland requested a hearing on her motion for new trial, it was not set for hearing
Westmoreland v. AIA Holdings Inc., Int'l Fidelity Ins. Co., & Allegheny Cas. Co. Page 2
and was denied by operation of law.1
Westmoreland complains that the trial court erred by denying her motion for new
trial because she did not consent to the judgment at the time it was signed as evidenced
in part by the lack of her signature on the Rule 11 agreement and the agreed judgment.
The insurance companies contend that her attorney's signature on the judgment was
sufficient to evidence her agreement and Westmoreland did not notify the trial court that
she had withdrawn her consent to the judgment prior to the trial court signing the
judgment.
"Generally, a court will indulge every reasonable presumption to support a
settlement agreement made by a duly employed attorney." Ebner v. First State Bank of
Smithville, 27 S.W.3d 287, 300 (Tex. App.—Austin 2000, pet. denied); see also Breceda v.
Whi, 187 S.W.3d 148, 152 (Tex. App.—El Paso 2006, no pet.) ("Generally, within these
roles, every reasonable presumption is to be indulged in favor of the attorney duly
employed."); Behzadpour v. Bonton, No. 14-09-01014-CV, 2011 Tex. App. LEXIS 565, 2011
WL 304079, at *3 n.2 (Tex. App.—Houston [14th Dist.] Jan. 27, 2011, no pet.) (mem. op.)
("An attorney retained for litigation is presumed to possess actual authority to enter into
a settlement on behalf of a client."). However, this presumption may be rebutted by
"affirmative proof that the client did not authorize his attorney to enter into the
1
Westmoreland contends that the trial court refused to set the motion for new trial for a hearing; however,
the record does not support that contention and Westmoreland does not challenge the failure to conduct a
hearing so that she could present evidence regarding her consent or lack thereof to the trial court.
Westmoreland v. AIA Holdings Inc., Int'l Fidelity Ins. Co., & Allegheny Cas. Co. Page 3
settlement." City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 629 (Tex. App.—Fort
Worth 2003, pet. denied).
Additionally, it is well settled that an agreed judgment cannot be rendered when
one party does not consent at the time judgment actually is rendered even if that party
previously may have consented to the agreement. See, e.g., Chisholm v. Chisholm, 209
S.W.3d 96, 98 (Tex. 2006); Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (Tex.
1951). A party may revoke his consent to settle a case any time before the judgment is
rendered. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983). However,
a party's revocation of consent must, in some way, be made known to the trial court.
Miller v. Miller, 721 S.W.2d 842, 844 (Tex. 1986).
The record before us, including the motion for new trial, establishes that the trial
court was not informed of the alleged withdrawal of Westmoreland's consent to the
settlement or the agreed judgment prior to the signing of the agreed judgment. Because
the trial court did not have notice that Westmoreland's attorney was not authorized to
agree to the settlement on Westmoreland's behalf or that Westmoreland had withdrawn
her consent to the judgment at the time it was signed by the trial court in 2018, the trial
court did not err when it signed the judgment in this proceeding.2 We overrule
2
This statement should not be construed to mean that there is anything in the record, or that this Court is
of the opinion, that Westmoreland's attorney did not in fact have the authorization to consent to the
settlement agreement and judgment on her behalf or that the attorney knew or had reason to know that
Westmoreland's consent had been withdrawn at any time before the trial court signed the agreed judgment.
Westmoreland v. AIA Holdings Inc., Int'l Fidelity Ins. Co., & Allegheny Cas. Co. Page 4
Westmoreland's sole issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
[CV06]
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