1 John T. Boyd, Chief Justi ce (Ret .) , Sevent h Court of Appeal s, si tt ing by assi gnm ent. T EX
. G OV ’ T C ODE A NN . §75 .002 (a)(1) (V erno n S upp . 200 6). NO. 07-04-0525-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E JULY 12, 2006

______________________________ FLOYD TU TSON, et a l., Appella nts

v. TOM UPCHURCH, JR., TOM UPCHURCH, JR. & ASSOCIATES,

AND WAY NE BARF IELD, Appellees

_________________________________ FROM THE 47 TH DISTRICT COURT OF POTTER COUNTY; NO. 79,998-A; HON. JOHN T. FORBIS, PRESIDING

_______________________________

Opinion

______________________________ Before QUINN, C.J., HANCOCK, J., and BOYD, S.J. 1 Floyd Tutson, Stacie Lynn Reeves, Donna Gordy, Paula Burns, Al Brady Burns, Naomi Corneli son, Gertrude Davenpo rt, Becky Hobson, Gwendolyn Smith Williams and her son, Doug Pyle, Catherine Patricia Anthony, Carolyn Hood (Cowan), JoJean Hobson, Jose G. Rom o, and Coll in Fowler (collectively referred to as the Clients) app eal from a “Final2

Summary

Judgment” denying them recovery against Tom Upchurch, Jr., Tom Upchurch, J r. & Ass ociates, and Wayne Barfield (collectively referred to as the A ttorneys). Four issues appear b efore us. Under the first, the Clients assert that the summary judgment is notfinal. Next, they

contend that a sum mary judgm ent canno t be ente red by ag reement. And, in their third and fourth issues, they aver that the trial co urt erred in granti ng summary judgment. We revers e the judg ment. Issue One – Finality of the Judgment The Clients initially

assert that we lack

jurisdiction over the appeal since the “Final Summary

Judgment” signed by the trial court actually was no t final. Furthermore, the decree was not final because 1) the grounds for summary judgment alleged in the various motions (and evidence supporting them) did not encompass al l claims and all parties and 2) not all the plaintiffs were specifically named in the decree. We overrule the issue. Regarding the first pro position , that thetrial co urt enters summary judgment upon claims outside the scope of the summary judgment motion does not render th e summary judgmentinterloc utory. Lehmann v. Har- Con Corp. , 39 S.W.3d 191, 200 (Tex. 2001) (stating that if

a defendant moves for a summary judgment on one of four causes of action “bu tthe trial court renders judgment that the plaintiff take nothing on a ll claims as serted , th e judgment is final – errone ous, but f inal”). A s for the s econd al legation , to be final , a judgmentneed not be in any particul ar form. Id. at195. Instead, it need only dispose of all pending parties a nd claim s. Id. Here, each claimant and claim was not expressly named or itemiz ed in thejudgment. Nonethe less, thetrial co urt “ORDE RED that plainti ffs take nothing against

defenda nts, that all claims a ssert ed by plaintiff are denied, and that2 We note t hat in referrin g to the claim s being denied , the decre e sim ply stated “plain tiff” in the singu lar.

How ever, we view this as a t ypographica l err or gi ven the tr ial court ’s r efer ence to “pl aint if fs” plur al when order ing that

they “t ake noth ing” and in levy ing cou rt costs . I t, no doubt , i ntended t o use th e plural “plai ntif fs” throu gho ut the judg me nt. 3 all costs of

court be taxed ag ainst pl aintiffs. ” 2 (Emphasis added). So too did it state that “[ a ] ll relief requested in this case and not expressl ygranted is denied” and “[t]his judgment finallydisposes of all

parties and claims and is appealable .” (Emphasis added). Given the trial court’s use o f each wor d or phra se itali cized, we cannot but hold that the trial cou rt intended to render an appealable judgment and actually disposed of all claims and parties. Thus, the“Final S ummary Jud gment” in deed was final. Issue Two – Render an Agreed Sum mary Judgment Next, the Cli ents all ege that a summary judgment cannotbe rendered by agreement if the terms of Rule 11 are unsatisfied. And, because those terms were not met at bar, the trial court erred in purporting to render the jud gmen t upon the agreement of the parties. We sustain the issue. Rule 11 of the Texas Rules of C ivil Procedure states that “[u]nless otherwise provided in these rules, no agreement be tween a ttorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with thepapers as part of the record, o r unless it be mad e in ope n court an d entered of record .” T EX
. R. C IV
. P. 11. Moreover, until all the terms of a judgment have been defin itely agreed upon by all the parties and those terms are either reduced to writing, signed, and made a part of the recor

d
or made in open court and entered of record, the trial court is n ot author ized to r ender a judgmentby agree ment. Matthews v. Looney , 132 Tex. 313, 123 S.W.2d 871, 873 (193 9); McIntyre v. McFarla nd , 529 S.W.2d 857, 859 (Tex. Civ. App.–Tyler 1975, no writ). The3 During the hear ing, the tr ial judge candidl y admitted t hat he did notperuse the summary j udgment

motion in dep th. Ra ther, h e relied upo n the allege d ag reem ent b etw een cou nse l to ente r sum ma ry judg me nt. 4 purpose of these rules is to remove from “the fallibility of human recollection” agreemen ts of counsel which a ffect the i nterests of their cl ients. Matthews v. Looney , 123 S.W.2d at 873, quoting, Wyss v. Bookman , 235 S.W. 567 (Tex. Comm’n App. 1921) (judgm’t adopted). And, that purpose is no less applica ble here. The record before us illustrates that the trial co urtgranted the Attorneys’ motion for summary

judgment not due to its merit but because counsel for the C lient s alleged ly agreed, atthe hearing on said motion, t hat summar y judgmen t was pro per. 3 Furthermore, the agreemen t was nei ther written nor en tered of r ecord. In stead, the

tr ial c ourt was left to reconstruct it based upon his memory. So, given theabsence of any written record of the accord and its propensity to touch the suit, the trial court lacked authority to act upon it. And, be cause tha t unrecord ed agree ment fo rmed the b asis of its decision to grant summary

judgment, en try o f the judg ment was impermiss ible und er Rule 1 1, Matthews, and McIntyre

. Our disposition of issue two relieves usfrom having to consider the remaining issues raised by the Clients . Accordi ngly, wereverse t he final summary judgment and remand the cause to the trial court.

Brian Quinn Chief Justice