Johnson v. Rancho Guadalupe, Inc. , 789 S.W.2d 596 ( 1990 )

GRANT, Justice.

Fletcher Jesse Johnson, Charles Johnson, Raymond Johnson, Lynwood Robert Johnson, Jessie Mae Walker, Lola Johnson Pul-lum, Frederick Henry, Isaac D. Johnson, Obie Lee Johnson, Zillary Johnson, Helen L. Palmer, James Monroe Johnson, Ray-ford Lewis Johnson, Gladys Johnson Jenkins, and Gloria Johnson Kennard (referred to collectively as the Johnsons) appeal from a judgment awarding Rancho Guadalupe, Inc. ownership in approximately ninety acres of land on the basis of adverse possession. The Johnsons claim ownership of an undivided interest in this tract of land.

The Johnsons contend that the trial court abused its discretion in refusing to order a new trial, that there is no evidence to support the judgment and that the proof does not fix the location or the boundaries of the actual possession by Rancho Guadalupe.

Rancho Guadalupe brought a trespass to try title suit against a large number of defendants, including the Johnsons, in an effort to obtain title to an approximate ninety-acre tract of land which lies within the boundaries of a much larger tract of land to which Rancho Guadalupe claims ownership. The Johnsons’ attorney filed a plea of not guilty and further pled that a claim of adverse possession would not run against the Johnsons’ interests as remain-dermen because the life tenant was still alive. Rancho Guadalupe presented evidence in a brief trial before the court. Some of the defendants, other than the Johnsons, did not file answers, and an attorney ad litem appeared for those defendants who were served by publication and did not answer. Another attorney filed an answer and appeared on behalf of another group of defendants. Thus, evidence was required at the trial.

The appellants’ brief contains a statement of the case which describes the judgment as being “an agreed judgment.” The appellee does not dispute in its brief that the Johnsons’ attorney entered into an agreed judgment, but rather the appellee cites cases involving settlement and contends that appellants’ attorney had apparent authority to approve the judgment.^* Rule 74(f) of the Texas Rules of Appellate Procedure states that “[a]ny statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party.”

At the oral argument, counsel for Ran-cho Guadalupe conceded that as to the parties on appeal, the judgment was an agreed judgment. Rancho Guadalupe agrees that the Johnsons’ attorney had approved the proposed judgment as to form and substance prior to the trial. The record reflects that he did not appear at the trial. The trial judge signed the judgment presented to him by appellee’s attorney. The judgment appears to be a compromise in that it awards title to all of the surface of the disputed tract to Rancho Guadalupe and awards the Johnsons an interest in the minerals under the tract, an award which is inconsistent with the evidence and the parties’ position in their pleadings.

The Johnsons contend that the trial court abused its discretion in refusing to order a new trial because their attorney was not authorized to enter into a settlement of the case. At the hearing on the motion for new trial, the Johnsons presented undisputed evidence that they had not authorized their attorney to settle or to enter into a compromise agreement and that he signed and approved the judgment without their knowledge. The testimony further shows that the attorney told one of the party witnesses that he had signed and approved the judgment on behalf of his clients.

The dissent relies on the case of Lohse v. Cheatham, 705 S.W.2d 721 (Tex.App.-San Antonio 1986, writ dism’d), for the proposition that the signatures of the parties and their attorney on the judgment evinces only the approval of the documents as reflecting the trial court’s actions. The case is silent as to what language was used for the approval, but the court cites State v. Reagan County Purchasing Co., 186 S.W.2d 128 (Tex.Civ.App.-El Paso 1944, writ ref’d w.o.m.). In the cited ease, the court states that the signature of counsel indicating approval of the proposed form of the pronounced judgment does not show that counsel agrees to the judgment. If counsel in the present case had signed the judgment approving the form only, this would not evince that there was an agreed judgment. But there is a difference between form and substance, and we must recognize that the judgment in the present case was also approved as to substance. Furthermore, the cited language in the Lohse case was not part of the ratio decidendi because the ruling of the court dealt with whether there was ambiguity in the judgment.

An attorney is a special agent and is presumed to have authority to act for, and institute legal proceedings in behalf of any person whom he professes to represent. Slattery v. Adams, 279 S.W.2d 445 (Tex.Civ.App.-Beaumont 1954), affirmed, 156 Tex. 433, 295 S.W.2d 859 (1956). However, there is no implied authority for an attorney to release the very right in interest he has been employed to secure and protect. Cetti v. Dunman, 26 Tex.Civ.App. 433, 64 S.W. 787 (1901, writ ref’d). By virtue of his employment, an attorney does not have an implied power to compromise an action which he has been engaged to defend. Early v. Burns, 142 S.W.2d 260 (Tex.Civ.App.-Beaumont 1940, writ ref’d). A compromise by an attorney without his client’s knowledge or consent, which has the effect of depriving the client of his day in court, is an unauthorized act. Pierce v. Terra Mar Consultants, Inc., 566 S.W.2d 49 (Tex.Civ.App.-Texarkana 1978, writ dism’d). Where a substantial right has been violated by the attorney’s entering into an unauthorized compromise agreement, a judgment based thereon will be set aside. McMillan v. McMillan, 72 S.W.2d 611 (Tex.Civ.App.-Dallas 1934, no writ).

A motion for new trial is addressed to the discretion of the trial court and is not to be disturbed absent an abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37 (Tex.1984). Because the undisputed evidence at the motion for new trial shows that the Johnsons’ attorney entered into a compromise settlement without the consent of the Johnsons and without their knowledge, the trial court abused its discretion in not granting the Johnsons a new trial. Because our ruling on this point of error is dispositive of the case, we do not address the Johnsons’ remaining point of error.

There were numerous defendants in this case who did not appeal. We reverse only that portion of the judgment which was granted against the appellants who are specifically enumerated in the first paragraph of this opinion, and we remand that portion to the trial court for a new trial.

* The main thrust of the dissent is that there was not an agreed judgment. This is not a point made on appeal either by brief or oral argument. In order to find something to support this position, the dissenter resorted to an argument offered by appellee’s counsel in the trial court at a hearing on the motion for new trial.