James Bennett Individually and d/b/a Bennett & Associates v. John F. Lacy d/b/a Abacus Research & Technology--Appeal from County Court at Law of Washington County

Affirmed and Memorandum Opinion filed December 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00530-CV

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JAMES M. BENNETT, Individually, and d/b/a BENNETT & ASSOCIATES, Appellants

V.

JOHN F. LACY d/b/a ABACUS RESEARCH & TECHNOLOGY, Appellee

On Appeal from the County Court at Law

Washington  County, Texas

Trial Court Cause No. 02-21

M E M O R A N D U M O P I N I O N

Appellants, James M. Bennett, Individually and d/b/a Bennett Associates, appeal the trial court=s judgment in favor of appellee, John F. Lacy d/b/a Abacus Research & Technology. We affirm.

A review of the clerk=s record reflects the following. On March 6, 2002, Lacy sued Bennett. In his original petition, Lacy alleged he was a professional engineer employed by Abacus. In 1997, Bennett, an attorney, retained him as an expert witness in Jennie Drain, Individually, and as Administratrix of the Estate of Joe D. Drain v. Galveston County, No. G-97-316, in the United States District Court for the Southern District of Texas, Galveston Division, involving the fatal shooting of Joe Drain by a Galveston County Constable. Bennett retained Lacy to perform an analysis of the shooting, including bullet trajectory and ballistic analysis. Lacy prepared a report dated January 28, 1998, on which he spent over 100 hours, incurring expenses in investigation, analysis, and preparation. Lacy alleged that Bennet had partially paid him, but a balance of $16,440.80 remained, which Bennett refused to pay. Accordingly, Lacy brought suit on a sworn account and asserted a claim for breach of contract.

Bennett filed a motion for change of venue, contingent answer, counterclaim for fraud, and request for disclosure. Bennett alleged that Lacy advertised his services as an expert in a legal publication. Bennett spoke to Lacy about an excessive force case involving a man who shot his wife and then when he attempted to surrender, A[a] constable then shot him dead.@ Lacy assured Bennett that he was a highly qualified expert in the area of police shootings. After deposing Lacy, Galveston County moved to disqualify him. The federal magistrate ruled that Lacy was not qualified to testify on the topic of police shootings or any other type of shooting. The magistrate=s ruling occurred after the deadline to designate experts had passed, leaving Bennett without a shooting expert in the excessive force action. Bennett lost the case. Bennett alleged that Lacy=s misrepresentation of his qualifications was intentional and he would not have retained Lacy had he known that Lacy was not qualified to testify as an expert on police shootings. Bennett sought $400,000Cthe amount to compensate him for the loss of a fee in a case he claims he would have won if Lacy had not lied to him, plus punitive damages.

On December 9, 2002, the trial court ordered the parties to mediation. According to the trial court=s order on the mediation fee signed March 21, 2003, the case was mediated on March 20, 2003. On April 3, 2003, an AAgreed Final Judgment@ was signed by the trial court, ordering that Lacy recover from Bennett $23,100 and that Bennett take nothing on his counterclaim against Lacy.

In his first issue, Bennett argues the trial court erred in entering the Agreed Judgment because it was not agreed to by the parties. Bennett claims he (1) never saw the Agreed Judgment until after the trial court had signed it; (2) never agreed to its terms; and (3) did not give Lacy=s counsel permission to sign it on his behalf.[1] Bennett also claims a number of terms of the settlement agreement were to be incorporated into the judgment, but were not and, therefore, the Agreed Judgment does not accurately reflect the agreement between the parties.[2]

A party cannot appeal from or attack a judgment to which he has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation. Henke v. Peoples State Bank of Halletsville, 6 S.W.3d 717, 720 (Tex. App.CCorpus Christi 1999, pet dism=d w.o.j.); Gillum v. Republic Health Corp., 778 S.W.2d 558, 562 (Tex. App.CDallas 1989, no writ); Urbanczyk v. Urbanczyk, 634 S.W.2d 34, 36 (Tex. App.CTyler 1982, no writ). Bennett did not file any post-trial motions such as a motion for new trial attacking the Agreed Judgment on the basis that he did not agree to the Agreed Judgment or that Lacy=s attorney, Robert Dees, did not have his permission to sign the Agreed Judgment on his behalf. See Tex. R. Civ. P. 324(b)(1) (providing that motion for new trial is required as prerequisite to appeal for complaint on which evidence must be heard).

Moreover, a recitation in the judgment is presumed to be true; however, that presumption is rebutted when a conflict exists between the recitals in the judgment and the record. Alcantar v. Oklahoma Nat=l Bank, 47 S.W.3d 815, 823 (Tex. App.CFort Worth 2001, no pet.); Aldine Indep. Sch. Dist. v. Baty, 946 S.W.2d 851, 852B53 (Tex. App.CHouston [14th Dist.] 1997, no writ); MJR Fin., Inc. v. Marshall, 840 S.W.2d 5, 9 (Tex. App.BDallas 1992, no writ). Without a motion for new trial raising any complaints Bennett had with the judgment, no record was developed demonstrating any conflict between the record and the recitals in the judgment, which are presumed to be true. Thus, because Bennett did not file a motion for new trial, he has waived any such complaints on appeal. Bennett=s first issue is overruled.

Bennett asserts in a separate issue that he mailed all documents relevant to this appeal to Lacy=s appellate counsel. On June 30, 2003, Lacy filed Appellees Emergency Motion for Court to Order Appellants to Serve Appellee with Filings, complaining that Bennett had not served him with his notice of appeal, his motion for extension of time to file his brief, or his reply to this court=s order dated June 3, 2003, in violation of Texas Rules of Appellate Procedure 9.5 and 25.1(e). Tex. R. App. P. 9.5, 25.1(e). On July 31, 2003, we denied Lacy=s motion, but stated ARule 9.5 requires service on opposing counsel; courts [sic] will entertain motion for relief if appellant does not comply with Rule 9.5.@ We addressed this issue in our July 31, 2003 order. Therefore, appellant=s second issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed December 16, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

[1] The last page of the judgment states, AAGREED AND APPROVED AS TO FORM AND SUBSTANCE.@ It is first signed by ARobert G. Dees@ as attorney for Lacy. Below that, it is signed AJames M. Bennett, RGD*,@ with the asterisk indicating below that Dees signed for Bennett Aby permission.@

[2] Bennett has attached a copy of the Mediated Settlement Agreement to his brief. Because the Mediated Settlement Agreement was not before the trial court at the time it signed the Agreed Judgment, we cannot consider it. Crossleyv. Staley, 988 S.W.2d 791, 794 (Tex. App.CAmarillo 1999, no pet.); Farmer v. Ben E. Keith Co., 919 S.W.2d 171, 176 (Tex. App.CFort Worth 1996, no writ); Waddyv. City of Houston, 834 S.W.2d 97, 101 (Tex. App.CHouston [1st Dist.] 1992, writ denied); Marek v. Tomoco Equip. Co., 738 S.W.2d 710, 712 (Tex. App.CHouston [14th Dist.] 1987, no writ).