Thomas Lovett and Teresa Lovett v. Blake Grant and Thea Grant--Appeal from 28th District Court of Nueces County

 NUMBER 13-05-008-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THOMAS LOVETT AND TERESA LOVETT, Appellants,

v.

BLAKE GRANT AND THEA GRANT, Appellees.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Chief Justice Valdez

Appellants, Thomas Lovett and Teresa Lovett, are plaintiffs and cross-defendants in the underlying lawsuit. They appeal the district court=s entry of a settlement agreement as a final judgment. The other parties in the underlying lawsuit include defendants and cross-plaintiffs, Blake Grant and Thea Grant, as well as numerous third-party defendants. No response to the appeal was filed. Because the judgment entered by the trial court is not final, we will dismiss the appeal for want of jurisdiction.

A. Background

In the spring of 2002, an altercation allegedly took place between Teresa Lovett and Blake Grant. Shortly thereafter, Blake publicly stated that Teresa kicked him in the groin, drew a firearm on him, and accused him of threatening to kill her. The Lovetts filed suit against the Grants, alleging several tortious acts, including defamation for Blake=s public recollection of his encounter with Teresa. The Grants answered the Lovetts= petition with a general denial, an affirmative defense regarding the defamation claim, and cross-claims sounding in tort.[1]

At a pre-trial conference, the trial court referred the parties to mediation. The parties attended mediation on September 28, 2004, where they signed (1) a fill-in-the-blank document that is titled Asettlement agreement@ which refers to an AExhibit A,@ and (2) a handwritten document, which is presumably Exhibit A.[2] Both documents contain interlineations. The handwritten document reads as follows:

Parties agree in principal [sic] to explore settlement through to mutual injunctions and agreements, enforceable by contempt of fines and penalties for the purpose of preventing the parties from demeaning each other in the future. No admission of liability. (Interlineations underlined).

The fill-in-the-blank document contains several paragraphs, the first two read as follows:

1. The parties hereto to attempt to settle settle pursuant to T.R.C.P. Rule 11 and Tex.Civ.Prac.&Rem. Code 154.071.

2. The consideration for this proposed settlement is as follows: (several blank paragraphs followed). (Interlineations underlined).

Sometime after the mediation, a draft of the proposed judgment was circulated to all counsel. On October 1, 2004, appellants= counsel informed the other parties that his clients did not intend to be bound by the mutual injunctions outlined in the agreement.

On October 4, 2004, a hearing was held in which all counsel, except appellants= counsel, offered the settlement agreement and asked the trial court to enter the agreement as the judgment. Appellants=counsel objected to entry of the agreement as a judgment. However, the trial court signed an order that reads in part, AThe Court is of the opinion that the Settlement Agreement shall be entered as a Final Judgment in this case and said agreement is enforceable as stated in the signed agreement.@

Appellants ostensibly raise two points of error. The first point of error is that the trial court neither (a) filed the agreement with the papers of the court nor (b) authenticated it. In a second point of error appellants contend that trial court should not have entered the agreement as a final judgment because they had withdrawn their consent to the agreement.

B. Analysis

1. Finality of order

Before we reach the appellants points of error, we must first determine whether we have jurisdiction and whether the order constitutes a final judgment.

Unless otherwise authorized, an appeal may only be taken from a final judgment or order. Tex. Civ. Prac. & Rem. Code Ann. '' 51.012, 51.014 (Vernon 1997 & Supp. 2005). The Texas Supreme Court has held that a judgment without a conventional trial is final for purposes of appeal if, and only if, either (1) it actually disposes of all claims and parties then before the court, regardless of its language, or (2) it states with unmistakable clarity that it is a final judgment as to all claims and all parties. Lehmann v. Har-Con, 39 S.W.3d 191, 192-93 (Tex. 2001). The Lehmann Court goes on to opine that finality Amust be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties.@ Id. at 203 (quoting 5 Ray W. McDonald, Texas Civil Practice ' 24.4[a], at 7 (John S. Covell, ed., 1992 ed.)).

We begin our analysis with an examination of the trial court=s order. It is simply titled, AOrder.@ The order uses the phrase Afinal judgment,@ but the phrase alone is not dispositive of the finality issue because the order does not state with unmistakable clarity that it is final as to all claims and all parties. See Id. Instead, the order refers to a settlement agreement, which we must analyze next.

The handwritten agreement in the underlying order leads us to believe that the order is not final because the agreement necessarily contemplates a future final judgment. The handwritten agreement states that the Aparties agree in principal [sic] to explore settlement,@ instead suggesting that the parties did not agree on a final resolution, but agreed to further settlement negotiations. Those further settlement negotiations would base a resolution of the claims on Amutual injunctions and agreements, enforceable by contempt of fines and penalties.@ The agreement not only called for future negotiations and a possible settlement based on those negotiations, but also foresaw the need for future court orders in the form of injunctions and contempt decrees. The final phrase of the agreement reads Ano admission of liability.@ That phrase cannot be read as a non-suit or dismissal because it does not specify the parties or actions that are being absolved.

One might argue that a judgment may be final even though future proceedings may be necessary to carry the judgment into full effect, if those proceedings are merely incidental to the proper execution of the judgment. Cf. Ferguson v. Ferguson, 338 S.W.2d 945, 947-48 (Tex.1960) (A trial court=s order that an accounting be given to a former spouse was final because no other rights or equities were remaining to be determined by the court). However, here the order signed by the trial court needs more than incidental proceedings to bring about a final resolution. The agreement entered by the trial court contemplates another instrument B a true final judgment. Therefore, because the order is not final, the appeal should be dismissed for want of jurisdiction.

C. Conclusion

Without reaching the appellants= points of error, we dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(b)

ROGELIO VALDEZ

Chief Justice

Dissenting Memorandum Opinion

by Justice Errlinda Castillo.

Memorandum Opinion delivered and

filed this the 20th day of July, 2006.

[1] The other cross-claims include assault, battery, conspiracy, and harassment.

[2] Two third-party defendants did not attend mediation but signed the tendered agreement at the October 4, 2004, hearing.