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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-18-00046-CV

____________________

DANNY BURKETT, Appellant

V.

JESSIE FAVORS AND DEANA MILLER, Appellees

__________________________________________________________________

On Appeal from the 253rd District Court

Liberty County, Texas

Trial Cause No. CV1611135 

__________________________________________________________________

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. 
2

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.
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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 nonexclusive 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.

______________________________

 STEVE McKEITHEN

 Chief Justice

 

Submitted on September 4, 2018

Opinion Delivered November 15, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.