


IN THE MATTER OF MARRIAGE OF ELLSWORTH



NO. 07-01-0072-CV

IN THE COURT OF APPEALS


FOR THE SEVENTH DISTRICT OF TEXAS


AT AMARILLO


PANEL A


SEPTEMBER 28, 2001


______________________________



IN THE MATTER OF THE MARRIAGE OF MELINDA MORRIS

ELLSWORTH AND JOHN ROBERT ELLSWORTH AND IN

THE INTEREST OF A MINOR CHILD

 

_________________________________


FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;


NO. 99-507,510; HONORABLE WILLIAM R. SHAVER, JUDGE


_______________________________


Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
	In this appeal, appellant Melinda Morris Ellsworth challenges the validity of a
settlement agreement dividing the community property of the parties at the time the
marriage was dissolved.  In mounting her challenge, and in two issues, appellant argues
the trial judge abused his discretion when he denied her motion for new trial because 1)
she withdrew her consent to the agreement before final judgment was entered; and 2) she
was induced to enter into the settlement agreement by misrepresentations on the part of
her spouse as to the value of the divided property.  Those misrepresentations amounted
to extrinsic fraud entitling her to a new hearing on property division.  For reasons we later
recount, we affirm the judgment of the trial court.
	The initial issue before us is whether the statements made by the trial court
immediately after the settlement agreement had been dictated constituted a rendition of
judgment.  If it did, the revocation of consent to the agreed judgment came too late.  If it
did not, the revocation of consent before the court signed its written judgment negated that
judgment. 
	The record reveals that on November 20, 2000, the trial of the divorce suit between
the parties had begun.  After the noon recess, the trial judge made an initial announcement
that he had been notified that the parties had arrived at an agreement and "want the
agreement set out here fully here for me to approve on the record.  So let's take your time
and set it out."  The judge then noted that appellant was not present and stated he would
not proceed until she was, because "I am going to ask both parties if they agree to this
agreement."  Appellant then appeared, and appellee was put on the stand to establish the
jurisdictional requisites for a divorce.  After that was done, appellee was interrogated
extensively about the details of the property settlement in the course of which, he opined,
that it was a just and fair division of the property.  Appellant then took the stand and, in
answer to questions propounded by her counsel, acknowledged that she had heard the
agreed provisions of the settlement, that they were correct, and that it was a fair and just
division.  She also acknowledged that she was satisfied with her attorney's representation.
	The trial judge then announced that he "will grant the divorce," and that he "will
approve" the settlement.  Because of its materiality, we will set out the court's response
to appellee's counsel's request that the judge "announce the granting of the divorce."  It
is as follows:
	The Court:  Well, the court has granted the divorce.  And will order -- which
one of you can have this judgment prepared by 9:30 in the morning?

	Appellant's Counsel:  I believe Mr. Fouts [appellee's lawyer] can do that.

	The Court:  All right. I want both attorneys here at 9:30.  Now, when I say I
want the judgment here in the morning, that doesn't mean that I am giving it
to you to go ahead and negotiate again.  In other words, I want this judgment
here in the morning.  The divorce has been granted.  I have approved the
property settlement agreement.  I want it reduced to writing and presented
to the Court at 9:30 in the morning.  Both lawyers be here.  All right.

	Appellee's Counsel:  And we will have the parties to approve it.

	The Court:  Well, I want to make this plain, too.  In other words, I have
granted the divorce.  I have approved the settlement.  I really don't care
whether the parties approve it or not.  I have gone ahead - if you can go
ahead and get them to sign it, sign it.  If they don't, this is the judgment I
have granted.  This is the one I am going to enter in the morning.  Do both
of you understand?

	Appellant's Counsel:  Yes, sir.

	Appellee's Counsel:  Yes, sir.

	The Court:  All right.  That's the order of the Court. Be back here in the
morning.

	At the hearing on the motion for new trial, appellant testified that her son (1) did not
want her to have the divorce hearing on November 20, which was his birthday.  According
to her, he had been having nightmares and had been wetting the bed.  On the Saturday
just prior to the Monday hearing, the boy told her at her father's place that he did not want
to live anymore and just wanted to die.  Her son had been having visitation with his natural
father and after the most recent visits, his personality changed and he began having
trouble at school.  In the three-week period before the trial, appellant had been having
conferences with school administrators, teachers and counselors about her son's behavior. 
Appellant averred that she had asked her trial attorney to get a continuance because she
did not think she was emotionally able to go through the hearing.  However, her attorney
advised her that she did not think her son's problems would be enough to get a
continuance because he was not appellee's son.  Appellant  also averred that her attorney
told her that if she settled, she had 30 days "to come back."
	Appellant further testified that her father had been taking her son's suicide threats
seriously.  Indeed, that threat had affected him physically because he recently had a
double bypass heart operation.  The day of the trial, he had awakened with heart pains. 
Her father was supposed to be a witness for her but, she said, he would not have been
able to do so because of that condition.  However, she testified, he was allowed to be
present at the hearing because "if he came to the courthouse, at least if he had a heart
attack, we could watch him."  Even so, when asked by her attorney if she was not
competent to make the decision to settle the case, she denied that she was incompetent.
	Under the settlement agreement, she was to receive a Corsica automobile which,
she said, appellant had represented to her was in good condition.  However, when she
picked it up after the divorce hearing, she testified that it was leaking oil and smoking and
the inside smelled like urine.  She also said that appellee represented to her that the
Corsica was worth $7,000, but when she took it to a car dealership, they told her they
would allow her $2,000 on a trade-in, but that it was not worth $1,000 on the street and 
was not in good running order.
	Because of this, appellant said, when she arrived at the courthouse on November
21, the morning after the hearing, she told her attorney and appellee's attorney that she
was not going to sign the papers and that she had changed her mind.  Her trial attorney
told her, "[t]oo bad.  You settled, and there is no going back."
	Appellant's father testified at the new trial hearing that on November 20, after the
divorce hearing, he took appellant to pick up the Corsica.  She drove the car a block,
stopped it and told her father "[t]hat this don't have no brakes on it" and that she had to
pump the brakes "to get brakes on it."  He also said that the car was smoking, but "I don't
know if it was just flooded down or burning oil."  In her brief, appellant also points out that,
in appellee's original inventory and appraisement, he failed to mention the Corsica but,
subsequent to the judgment, appellee filed an amended inventory showing the value of the
Corsica at $5,225.
	Appellee testified at the new trial hearing that he bought the car for $4,250 and
when he called "the bank," he was told the value of a Corsica with a four cylinder engine
was $6,300.  Because the Corsica with which we are concerned had a six cylinder engine,
he said he told appellant "it may be even more valuable than $6,300; it could be worth
$7,000, but I didn't know because I didn't have a book.  That's what I said."  He admitted 
he told appellant the car was in good working order and averred he had it inspected to
make sure it was in good working order. 
	A party may revoke his consent to settle a case anytime before judgment is
rendered.  Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex. 1982).
Judgment is rendered when a court makes an official announcement either in writing or
orally in open court clearly stating its decision upon a matter submitted for adjudication. 
James v. Hubbard, 21 S.W.3d 558, 561 (Tex.App.-San Antonio 2000, no pet.).  Thus,
once a judgment is orally pronounced, the entry of a written judgment is purely a ministerial
act.  Id.; Dunn v. Dunn, 439 S.W.2d 830, 832-33 (Tex. 1969).  Even so, in order to be the
official judgment, the language of the trial judge during the oral pronouncement must
indicate an intent to render a full, final, and complete judgment disposing of all the issues
present for adjudication at that point in time.  S & A Restaurant Corporation v. Leal, 892
S.W.2d 855, 858 (Tex. 1995); James, 21 S.W.3d at 561; Kelley v. Pirtle, 826 S.W.2d 653,
654-55 (Tex.App.-Texarkana 1992, writ denied).
	Our review of the record convinces us that the trial judge could hardly have been
more definite that he was rendering a full, final, and complete judgment disposing of the
issues before him at the time he made his pronouncement.  Accordingly, the entry of the
written judgment was merely a ministerial act, and appellant's refusal to sign that
memorialization did not affect its validity.  Appellant's first issue does not reveal reversible
error and is overruled.
	The disposition which we have made of appellant's first issue requires us to
consider her second issue.  As we have noted, in that issue, she posits that she was
induced to enter into the settlement agreement because of appellee's misrepresentations
about the value of divided property which, she asserts, amounted to extrinsic fraud and
requires that "a trier of fact should determine the falsity of the statements, [and] this case
should be remanded for a new trial."  Specifically, she says appellee misrepresented the
value of the Corsica.
	The elements of common-law fraud are that:  1) a material representation was
made; 2) the representation was false; 3) when the representation was made, the person
making the representation knew it was false or made it recklessly without any knowledge
of the truth and as a positive assertion; 4) the representation was made with the intention
that it be acted upon by the other party; 5) the party acted in reliance upon the
representation; and 6) the party suffered injury.  Johnson & Higgins of Tx., Inc. v. Kenneco
Energy Inc., 962 S.W.2d 507, 524 (Tex. 1998).  
	In Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984), the court had occasion
to define in some detail the differences between extrinsic and intrinsic fraud.  In doing so,
it explicated that:
	. . . [e]xtrinsic fraud is that fraud which denies a losing litigant the opportunity
to fully litigate his rights or defenses upon trial.  Extrinsic fraud is "collateral"
fraud in the sense that it must be collateral to the matter actually tried and
not something which was actually or potentially in issue in the trial.  Extrinsic
fraud is conduct that prevents a real trial upon the issues involved.  Intrinsic
fraud, on the other hand, is inherent in the matter considered and
determined in the trial "where the fraudulent acts pertain to an issue involved
in the original action, or where the acts constituting the fraud were, or could
have been litigated therein."

Id. at 312-13.

	In contending that she is entitled to a new trial on the question of whether appellee
committed extrinsic fraud, appellant places primary reliance upon McFarland v. Reynolds,
513 S.W.2d 620 (Tex.Civ.App.-Corpus Christi 1974, no writ).  That reliance deserves a
discussion of that case.  In that cause, the husband had induced his wife to consent to a
divorce and property settlement upon the representation that the only way the parties
could reconcile would be for the wife to permit a judgment to be entered that would grant
her the divorce but would give him the custody of the minor children and award him all of
the community property.  Id. at 624.  He further represented to her that he would remarry
her within two weeks, that "it would be the same as they had agreed upon before," that she
would not have to move from their home and, as a result of their remarriage, she would
continue to own the same interest in their community property as she did before and that
she did not have any interest in the community property then owned by them because the
debts exceeded the assets.  Id. at 624.  A divided court determined that these
representations, including those as to the nature and extent of the community estate, "must
be treated as a species of extrinsic fraud."  Id. at 625.
	A refusal to grant a new trial is tested by the abuse of discretion standard, and an
appellate court should only reverse a trial court for abuse of discretion when a search of
the record makes it clear that the trial court's decision was arbitrary and unreasonable. 
Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987); Jackson v.
Van Winkle, 660 S.W.2d 807, 808-09 (Tex. 1983); Wright v. Wright, 867 S.W.2d 807, 810
(Tex.App.-El Paso 1993, writ denied).
	The misrepresentations made by the husband in the McFarland case were of a far
different nature from those alleged in this case.  After considering the record as a whole,
we cannot say that the trial court, who had the opportunity to see and observe the
witnesses' demeanor on the witness stand, abused its discretion in determining that the
testimony produced was not sufficient to show that appellee made misrepresentations of
a nature sufficient to deny appellant the opportunity to litigate her rights at the trial of this
case.  Appellant's second issue is overruled.
 

	In sum, both of appellant's issues are overruled, and the judgment of the trial court
is affirmed. 

							John T. Boyd
							 Chief Justice

Do not publish.
1. This was not the son born to appellant and appellee. 

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NO.
 07-10-0114-CR
                                                             
                                                   IN
THE COURT OF APPEALS
 
                                       FOR THE
SEVENTH DISTRICT OF TEXAS
 
                                                                 AT
AMARILLO
 
                                                                      PANEL
B
 
                                                            OCTOBER
12, 2010
 
                                            ______________________________
 
 
                                                          WILLIE GENE MILES,
 
                                                                                                            Appellant
 
                                                                             v.
 
                                                        THE STATE OF TEXAS,
 
                                                                                                            Appellee
                                              _____________________________
 
                 FROM THE
COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY;
 
                    NO. C-1-CR-09-211566; HON.
CARLOS BARRERA, PRESIDING
                                            ______________________________
 
Dismissal
______________________________
 
Before
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
            Appellant, Willie Gene Miles,
appeals his conviction for driving while intoxicated.  After abating the cause, this court received
a supplemental clerks record wherein a motion to dismiss the appeal signed by
both appellant and counsel had been filed in Travis County on October 1,
2010.  Therefore, the conditions precedent to the voluntary
dismissal of an appeal, see Tex. R. App. P. 42.2(a), have been
satisfied. 
Accordingly,
we reinstate the appeal, grant the motion, and dismiss the appeal.  And, having dismissed same on appellant's own
motion, no rehearing will be entertained, and the mandate shall issue
forthwith.
 
Per Curiam
 
Do not publish.

