Danny Burkett v. Jessie Favors and Deana Miller

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-18-00046-CV
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DANNY BURKETT, Appellant
V.
JESSIE FAVORS AND DEANA MILLER, Appellees
__________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV1611135
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MEMORANDUM OPINION
Danny Burkett appeals the trial court’s order granting permanent injunctive
relief to appellees, Jessie Favors and Deana Miller.1 In two appellate issues, Burkett
challenges the legal and factual sufficiency of the “pleadings and evidence”
supporting permanent injunctive relief and declaratory relief. We affirm the trial
court’s judgment.
1
Favors and Miller are married.
1
BACKGROUND
Appellees filed an application and affidavit for temporary restraining order
and temporary injunction against Burkett. Appellees asserted that the case involves
an easement on real property in Liberty County. Appellees pleaded that Burkett had
trespassed on their property, allowed his dogs to run free and chase appellees’
livestock, blocked access to their property to prevent them from cutting and bailing
their hay, and threatened to kill them. According to appellees, they lacked an
adequate remedy at law, and they would suffer immediate and irreparable injury,
loss, or damage unless Burkett was enjoined from interfering with their use of their
property. Appellees sought a temporary restraining order and, after a hearing, a
temporary injunction enjoining Burkett from threatening appellees with physical
injury, trespassing on their property, blocking their access, and allowing his dogs to
“chase and harass” their livestock. Appellees’ application mentioned declaratory
relief only in the section regarding attorney’s fees, in which appellees pleaded that
Burkett’s action had “made it necessary for [appellees] to employ the undersigned
attorney to file suit for a declaratory judgment to declare rights under the easement.”
Appellees’ pleading did not request a specific declaration from the trial court. The
trial judge signed a temporary restraining order, scheduled a hearing, and then set
the case for a final hearing.
2
At the hearing, which the court reporter entitled a hearing on the motion for
permanent injunction and declaratory judgment, counsel for Burkett stated, “I think
we have an agreement on the principal issue before the Court. I believe there are
some permanent injunctions that [appellees’ counsel] wants to proceed with that
we’re not in agreement on.” Appellees’ counsel stated that appellees wanted a
permanent injunction against Burkett to prevent him from threatening them, cursing,
and “attempting to incite them to do things.” The trial judge stated, “the threatening
I can see, but cursing is free speech[.]”
When appellees’ counsel stated that appellees sought an injunction to keep
Burkett’s dogs off their property, the trial court noted that the request was “a little
problematic.” Appellees’ counsel stated that appellees had also asked for a
declaratory judgment, but counsel did not say what declaration appellees desired.
Appellees’ counsel stated, “I believe we’ve been talking for the last couple of hours
and I believe that we have an understanding from the ruling of the Court that [the
easement is] not exclusive and that these folks have a right to go across it as well,
and they’re going to install their gates and furnish him with a lock and a key.”
When the trial judge stated that it “[s]ounds like we’ve got an
understanding[,]” Burkett’s counsel responded, “Yes, Your Honor.” Both Favors
and Miller stated on the record that (1) they purchased the property subject to a
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twenty-foot non-exclusive ingress/egress easement to Burkett’s two-acre tract; (2)
they agreed that they would install gates, furnish Burkett with a key to the lock on
the gate, and will not lock the gate going into Burkett’s property; (3) they agreed to
ask the trial court to require Burkett to open and close the gates and not to destroy
the gates; (4) they agreed to ask the trial court to enjoin Burkett from blocking their
access to the easement. Burkett stated on the record that he agrees that the
ingress/egress easement is non-exclusive, and that he understood that Favors and
Miller have a right to use the road. Appellees offered several documents that were
admitted into evidence, including a letter from their counsel to Burkett, survey maps,
warranty deeds regarding the property, two surveyor’s invoices, surveys, and an
aerial photograph.
The trial court signed a final judgment, in which it found that appellees were
“entitled to a permanent injunction for a non-exclusive easement . . .[,]” found that
the twenty-foot easement was non-exclusive, and enjoined Burkett from impeding
access to the easement or blocking the use of the easement “to anyone else.” In
addition, the trial court ordered “that gates shall be placed on each end of the non-
exclusive easement and . . . the gates will be closed each time after Danny Burkett
enters or leaves the easement.” Burkett filed a motion for new trial, which was
apparently overruled by operation of law, and he then filed this appeal.
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BURKETT’S ISSUES
In his first issue, Burkett challenges the legal and factual sufficiency of the
evidence supporting the trial court’s judgment granting permanent injunctive relief.
In his second issue, Burkett challenges the legal and factual sufficiency of the
evidence supporting the trial court’s judgment granting declaratory relief. We
address Burkett’s issues together.
The record reflects that although some exhibits were introduced into evidence,
the proceeding was not a trial on the merits; rather, it was a hearing at which the
parties’ agreement was memorialized on the record. 2 The parties were free to agree,
as the record indicates they did,3 to matters beyond the scope of the relief requested
by appellees in their pleadings. When parties settle a lawsuit, they are resolving the
dispute according to the terms of a private contract. See Montanaro v. Montanaro,
946 S.W.2d 428, 431 (Tex. App.—Corpus Christi 1997, no writ). Accordingly,
settlement agreements are governed by the law of contracts. Schlumberger Tech. v.
Swanson, 959 S.W.2d 171, 178 (Tex. 1997). To be enforceable, a settlement
agreement must comply with Rule 11 of the Texas Rules of Civil Procedure. Padilla
2
The trial court’s docket sheet noted that the parties agreement was “[e]ntered
on the [r]ecord[.]”
3
As noted above, appellees’ live pleadings at the time of the hearing did not
request permanent injunctive relief or specific declaratory relief.
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v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). Rule 11 requires that agreements
regarding any pending lawsuit will not be enforced unless such agreements are in
writing and filed as part of the record or “made in open court and entered of record.”
Tex. R. Civ. P. 11.
When the parties have reached a settlement agreement, the trial court may
render a judgment based on the agreement if no party has withdrawn consent.
Padilla, 907 S.W.2d at 461. A consent judgment is subject to the law of contracts.
Stewart v. Mathes, 528 S.W.2d 116, 118 (Tex. Civ. App.—Beaumont 1975, no writ).
A party cannot appeal from a judgment to which it has consented or agreed absent
an allegation and proof of fraud, collusion, or misrepresentation. In the Interest of
T.G., No. 09-16-00250-CV, 2016 WL 7157242, at *4 (Tex. App.—Beaumont Dec.
8, 2016, no pet.) (mem. op.). A party who consents to a trial court’s entry of
judgment waives any error in the judgment except jurisdictional error. Id. “A party
who consents to an agreed judgment and fails to convey any withdrawal of consent
thereby stipulates to the fact-findings contained in the agreed judgment and waives
[his] ability to challenge those findings for legal and factual sufficiency.” Id.
We conclude that the record indicates that the parties came to an agreement,
which the trial court memorialized in its judgment, and nothing in the record
demonstrates that Burkett withdrew his consent before the trial court signed the
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judgment. See id. We therefore conclude that Burkett has waived the arguments he
seeks to raise on appeal. See id. Accordingly, we overrule issues one and two and
affirm the trial court’s judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on September 4, 2018
Opinion Delivered November 15, 2018
Before McKeithen, C.J., Kreger and Johnson, JJ.
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