## In the Court of Ap peals Second Appellate District of Texas at F ort Worth

__ _________________________ No. 02

- 23

- 00274

- CV

___________________________

On Appeal from the 153rd District Court Tarrant County, Texas Trial Court No. 153

- 327827

- 21
Before Birdwell, Bassel, and Walker, JJ. Memor andum Opinion by Justice Bassel 

### R OBERT 

### W ILLIAM 

### S COTT 

### B AUER 

### , Appellant

V



### . J AMIE 

### L YN 

### B AUER 

### , Appellee2 MEMORANDUM OPINION
I. Intro duction Appellant Ro be rt William Scot t Bauer (Scott) appeals the trial court ’ s final judgment that was rendered upon a motion for entry of judgment by his ex

- wife Appellee Jamie Lyn Bauer

. In tw o i ssues, Scott argues that the trial court abused its
discretion b y rendering a fi nal judgment (1) that was allegedly not in “ strict and li t er al compliance ” with the parties ’ Rule 11 settlement agreement and (2) that was rendered despite the trial court ’ s po ssess in g information that should have reasonably cau sed the
tria l court to inquire furthe r about whether Scott had in fact agreed to the proposed agreed judgment that became the final judgment

. Beca use Scott ’ s a ttorney alerted the
tria l court , prior to the sig ning of the final ju dgment , that he was out of the country
and needed additional time to review the proposed ju dgment , the trial court was in possession of information that was reasonably calcu lated to p romp t the trial court to mak e further inquiry in to the party ’ s consent th ereto
. Acco rdingly, we hold that the
trial court abused its discretion by rendering the final judgment, and we reverse the
trial court ’ s judgm ent and remand the case to the trial court f or proceedings
consisten t with this opini on . II. Background The parties divorce d in 20 12. A number of agreem ents were re ached at the conclusion of the divorce, including that Scott would pay spousal maintenance and support, ch ild support, and othe r amounts to effectuate a fair and equitable div ision3 of the marital estate. To effectuate those agreements, Scott execut ed a promissory
note, a guaranty , and a security pledge agreement. 1 Scott failed t o pay the amounts due and owing under the note at maturity. Jamie demanded p ayment und er th e note, but Scott failed to pay all amounts due and owi ng. 2 In addition, Jamie discovered that Scott had br eached the security pledge agreement in numerous resp ects, including but not li mited to failing to deli ver and ma in tain the collateral with the escrow agen t to hold in trust, failing to kee p the

c ollateral fr ee from lien s and encu mbrances, and failing to n otif y Jamie of material changes in and to the collateral and changes related to the collateral that aff ect ed the security interest. Jamie pleaded that Sco tt had transfer red over $1 million o ut of
Braxto n Acquisitions and into other entities controlle d by Scott without informing her and had utilized Braxton Acquisitions ’ asset s to pay numerous person al expenses.

1 Accor ding to J a mie ’ s petition, pursuant t o the security pledge agreement, Scott pledged his ownership interest in Braxton Acquisitions , LLC as collateral fo r the n ote and agreed to (a) deliver and main tain t he collateral with an e scrow agent t o hol d in tr ust ; (b) pay th e deb t reflected in the not e ; (c) “ keep the collateral free from liens ” ; and (d ) not “ sell, transfer , or further enc umber any of the coll atera l. ” Scott also agreed to noti fy Jamie of any mater ial change in the collateral an d any c hange that migh t aff ect the security inter est. The security pledge agreement further pro vided,
amon g other thi ngs, that upon the occurrence and durin g the c ontinuan ce of a default by Scott, his rights in and to Braxto n Acquisitions w ou ld imm ediat el y cea se and be
v este d in Jamie and that his r ight to dividend payments from Braxton would cease and be vested in Jamie

.

2 He made two payments: one i n the a mount of $30 0,000 , and the other in the amount of $204,478. 24.4 Jamie filed an original petition , asserting causes of action for suit on the note , sui t on the gua ranty, breach of the security pledge agreement, and fraudulent transfer. Scott answered with a gen eral denial and pleaded various affirmative defenses. The parties proceeded to trial and reached a res olution during the se cond day
of the trial. Jamie ’ s attorney re ad the agreeme nt into the record , and e ach of the parties stated tha t h e or she had agreed t o t he terms that wer e listed in the bullet points that were read on the record. Thirty days later , Ja mie filed a motion for entry of judgment that att ac hed a proposed judgme nt
. In the motion, Jam ie ’ s counsel noted that the parties had agr eed in the Rule 11 agreement that the judgment would be entered within thirty days of the
settlement. J amie ’ s couns el further noted that she had a ttempted to obtain feedback
from Scott ’ s counsel on the proposed judgment but that he had not provided any comments or revisions and had informed Jamie ’ s counsel that he would not be able to review the documents b ecause he wa s leaving for Mexico the next day. The following morning , Scott ’s attorney re sponded by sending a let ter to the
trial court

. In the letter, Scott ’ s attorney acknowledged that the thirty

- day time frame
had passed but noted that “ time was not made of the e ssence. ” He requested th at the trial court defer consideration of the proposed judgment “until next week ” becau se he
was out of the co untry and would review and respond to Jam ie ’s attorney upon his

retur n. He furth er stated, “ I anticipate the parties wil l submit jointly approved documents on Monday of next week

. ” Ra ther than wait as Scott ’ s attorney had5 requested , th e trial court signed the final judgment that Jamie had submitted that same
da y . 3
Scott thereafter filed a motion to m odify judgme nt or for new trial. The motion was overruled by operation of l aw , and this appeal foll o wed.
III. The Trial Court Possess ed Information Necessitating Further Inquiry Before Signing the Judgment
In his second issue, Scott ar gues t hat th e trial court abused its di scretion by rendering the final judgment becaus e the record demo nst rate s that Scott did not

conse nt to the final judgme nt
. Jamie responds that the trial court did not err by enforcing the parties ’ Rule 1 1 agreement and rendering a final judgment “ even if S cott did not consen t. ” 4 Ja m ie ’s response effectively concedes that Scott did not consent to the final judgment

. Accordingly , we hold that the trial court abused its discretion by
rend ering the final judgment without Sc ott ’ s consent. The Dallas Court of A ppe als has set forth the la w a pplicable to the situation
before us:

3 The final jud gment do es not state t hat it is “ Agreed as to Form and Subst ance ” or have the attorneys ’ signature s.

4 Alth ough Jamie attem pts to refra me t he u nderlying proceeding as an
en forcement proceeding, she did not follow the required steps to do so by p u r s u ing a separate clai m for breach o f contract , nor did the trial court allow the parties to have full, fair discovery and to have th eir cases decide d on the merits

. See generally Ford Motor Co. v. Castillo , 279 S.W.3d 656, 663 (Tex. 2009). Further , Jami e admits that she did not fil e a mot i on for summary judgment to enforce the parties ’ Rule 1 1 agreem ent , a nd her effo rts conten ding t hat her motion for entry of judgmen t can be construed as a summary

- judgment motion fail because , as n oted i n Scott ’ s reply b rief, she did not pl ead and prove a breach of the Rule 11 agreement.6 A party has the right to revoke his consent at any time before the court renders judgment. Sohocki [ v. Sohocki ] , 897 S.W.2d [422,] 424 [(Tex. Ap p.

— Corpus Christi

– Edinburg 1995, no writ) ] (ci ting Samples Exterminato rs v. Samples , 640 S.W.2d 873, 874 (Tex. 1982) (per curiam)). “A judgment based on an agreement cannot be rendered, even if the requirements of Rule 11 are met, if the cons ent of one of the parties has either been withdrawn or i s l acking at the time the a g re ed judgment is rendered; such judgment is void.” Id. ( [first] citing Kennedy [ v. Hyd e ] , 682 S.W.2d [ 525,] 528 –[ 29 (Tex. 1984) ] ; [and then citing] Samples , 640 S.W.2d at 875). When a trial court has knowledge that a party to a s uit does not consent to a judgmen t, it should refuse to sanction the agreement by making it the judgment of the court. Id. (citing Burnaman v. Heaton , 240 S.W.2d 288, 291 (Tex. 1951 )). The proper inquiry is whether the information in the trial court ’s po ssession is clearly suff i cient and of such a nature as to put the court on notice that a party ’ s consent is lacking and to require the court to make further inquiry before rendering judgment. Id. An agreed judgment will be set aside if rendered “when the court is in possession o f informatio n [that] is reas onably calculated to prompt the court to make further inquiry into the party ’ s consent thereto, which inquiry, if reasonably pursu ed, would discl ose the want of consent.” Burnaman , 240 S.W.2d at 291 –92[.] Cooper v. Cooper , No. 0 5- 20

- 00507 -C V, 2021 WL 17478 56, at *3 (Tex. App.

— Dallas May 4, 2021, no pet.) (mem. op.). Here, both Jamie ’ s motion to enter judgment and Scott ’ s attorney ’ s l etter put the t rial court on notice that Scott had not reviewed , mu ch less consented to, the
propo s ed final judgment that Jam i e had submitted to the trial court. This information

was clearly sufficient and of such a nature as to put the trial court on notice that
Scott ’ s consent wa s lacking and to require the trial court t o mak e further inquiry
before rendering judgment. See id

. ; Le Jeune v. Robbins , No. 10

- 16

- 00360

- CV, 2021 WL 824991, at *2

– 3 (Tex. A p p.

— Waco Mar. 3, 2021, no pet.) (mem. op.); Cantu v. Me rcy Health Ctr. , N o . 04

- 06

- 00010

- CV, 200 6 WL 3085703, at * 3–4 (Te x. Ap p. —S an7 Anton io Nov. 1, 2006, no pe t.) ( mem. op.). T he record does not reflect that the trial

cou rt held a hearing or made any inquiries ; instead, the record reflects that the trial cour t signe d the pr oposed judgment submitted by Jam ie several hours aft er Scot t ’ s attorney ’ s letter wa s filed

. Based on t he record before us, 5 we sustain Scott ’ s second issue

. 6
IV. Conclusion Having sustained Scott ’ s second issue, which is dispositive of thi s appea l, we

re verse the trial court ’ s final judgment and remand th e case to the trial co u rt “ with
inst ructions to enter an agreed judgment in strict or literal compliance with [the] parties ’ Rule 11 [s]ettlement [a]greement and only with c onsent of all p arties at the time the judgment is entered. ” 7 /s/ Dabney Bassel Dabn e y Bassel Justice
D elive red: F ebruary 8, 2024

5 Our holdi ng is limited to the specifi c facts presented here and sho uld not b e read to excuse counsel f rom reviewing documents in a t imely manner , nor shou ld i t be extrap olated to requir e trial court s to inquire any time that counsel asserts that he or she has not r eviewed t he docu ments without providing further explanation for such failure.

6 Because this issue is dispositive of S cott ’ s appeal, we need not a ddress his fir s t issue challeng ing terms that wer e added to or omi tted from th e final judgment

. See Tex. R. Ap p. P. 47.1. Fur thermore, although S cott asks that we take judicial notice of (1) the clerk ’ s file for the parties ’ f amily

- law case and (2 ) the c ontents of the Tarrant County C lerk ’ s property re cords , w e declin e to do so as judicial not ice of such reco rds
was not necessary t o dispose of th is appeal.

7 This is the relie f that Scott prayed for on appeal , and we therefore limit the
r e mand to t he r e lief that he specifically requested

.