                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-189-CV


TONNA BROOKS                                                   APPELLANT

                                             V.

BANK OF NEW YORK TRUST                                         APPELLEE
COMPANY, N.A. AS SUCCESSOR
TO JPMORGAN CHASE BANK,
AS TRUSTEE

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      FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

     Appellant Tonna Brooks seeks a restricted appeal from an agreed

judgment granting Appellee Bank of New York Trust Company (Bank of New

York) possession of Tonna’s home premises and the right to obtain a writ of


     1
         … See T EX. R. A PP. P. 47.4.
possession.    In her first two issues, Tonna contends that because of her

absence at the hearing, the agreed judgment is interlocutory and cannot support

the issuance of a writ of possession. In her third issue, Tonna contends that

the agreed judgment is not a default judgment because no evidence was offered

or received by the trial court.   Because the trial court rendered judgment

without Tonna’s participation and consent, we reverse the judgment as void

and remand the case for a new trial.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Bank of New York filed its original petition for forcible detainer against

Tonna and “all other occupants” on February 27, 2007, in the justice of the

peace court.   On March 9, 2007, the justice of the peace court rendered

judgment in favor of Bank of New York. On that same day, Tonna perfected

her and her husband, Gordon’s, appeal by filing an appeal bond with the justice

of the peace court. On March 28, 2007, Tonna and Gordon filed a “Written

Statement” with the county court, stating that they were appealing the case

because they were not given proper notice of the foreclosure and that they

were seeking counsel. Bank of New York filed an amended petition, and the

county court set trial for April 25, 2007.

      On the date of trial, Bank of New York appeared through its attorney and

Gordon appeared in person.     Nothing in the record shows that Tonna ever

                                       2
appeared before the county court on April 25, 2007. Before trial began, Bank

of New York’s attorney told the county court that “we just came to an

agreement.” Accordingly, the county court, Gordon, and Bank of New York

signed an agreed judgment, which gave Bank of New York the right to possess

the premises at issue and the right to obtain a writ of possession if the

occupants failed to vacate by May 11, 2007. On May 25, 2007, the county

court issued the writ of possession, which eventually was returned as

“unserved,” and Tonna then filed this restricted appeal. 2

                             III. R ESTRICTED A PPEAL

      To be entitled to a restricted appeal, an appellant must show that she (1)

filed a notice of restricted appeal within six months after the trial court signed

the judgment or order; (2) is a party to the suit; (3) did not participate in the

hearing that resulted in the judgment complained of; and (4) did not timely file

any postjudgment motion, request for findings of fact and conclusions of law,

or a notice of appeal within the time permitted by rule 26.1(a). T EX. R. A PP. P.

26.1(a), (c), 30; Aviation Composite Techs., Inc. v. CLB Corp., 131 S.W.3d

181, 184 (Tex. App.—Fort Worth 2004, no pet.). These requirements are


      2
        … The initial notice of appeal filed on June 4, 2007, stated that “TONNA
BROOKS and ALL OCCUPANTS” desired to appeal the case. On August, 8,
2007, Tonna amended the notice of appeal and took out “ALL OCCUPANTS”
to reflect that she was the only person appealing the agreed judgment.

                                        3
jurisdictional and will cut off a party’s right to seek relief by way of a restricted

appeal if they are not met. Id. Once an appellant establishes that she has met

these requirements, she must then establish error apparent from the face of the

record before she will be entitled to relief from the adverse judgment. Id.

      Tonna is a party to the suit and properly filed her notice of restricted

appeal within six months from the date the trial court signed the agreed

judgment. Tonna also did not file a postjudgment motion, request for findings

of fact and conclusions of law, or a notice of appeal within the time permitted

by rule 26.1(a). Bank of New York, however, asserts that we do not have

jurisdiction over this restricted appeal because Tonna participated in the trial

that resulted in the agreed judgment. Thus, our analysis is limited to whether

Tonna participated in the trial that resulted in the agreed judgment and, if she

did not, whether there is error apparent on the face of the record.

      A.     Participation

      In determining whether the nonparticipation requirement of rule 30 is met,

the question is whether the appellant participated in the “decision-making

event” that resulted in the order adjudicating the appellant’s rights. Id. at 185.

The extent of participation in the actual trial of the case which would preclude

a party from obtaining appellate review by writ of error, now known as

restricted appeal, is one of degree. Tramco Enters., Inc. v. Indep. Am. Sav.

                                         4
Ass’n, 739 S.W.2d 944, 946 (Tex. App.—Fort Worth 1987, no writ)

(interpreting former Texas Rule of Appellate Procedure 45, governing writ of

errors).

         The decision-making event in this case is the signing of the agreed

judgment by the county court, Gordon, and Bank of New York on the date of

trial.   Bank of New York cites Clopton v. Pak for the proposition that an

appellant can still participate in the decision-making event even though she did

not physically attend the hearing that resulted in the adverse judgment. See 66

S.W.3d 513, 516 (Tex. App.—Fort Worth 2001, pet. denied). In Clopton, we

held that attendance at a dismissal hearing was unnecessary when the

attorneys for the appellants and appellees agreed on, signed, and filed a joint

motion to sever and dismiss the case. Id. We stated that “neither appellants’

nor their attorney’s attendance at the hearing was necessary once the joint

motion was filed.” Id.

         Bank of New York attempts to analogize Clopton to the facts of this case

by stating that like Clopton, “prior to a trial, the parties agreed to a judgment

that disposed of all parties and issues.” Bank of New York goes on further to

state that “[t]he evidence in the record demonstrates that the judgment was

agreed to by all the parties prior to the case being called to trial, at which point,

the attendees were addressed by the [c]ourt.” Ultimately, Bank of New York

                                         5
argues that the language of the agreed judgment and the signature by Gordon,

Tonna’s husband and fellow occupant, demonstrate that Tonna participated in

the decision-making event.

      Even though the facts here are similar, we decline to extend our holding

in Clopton to the facts in this case. Important to the decision in Clopton was

the fact that the appellants participated through their attorney.      See id. at

516–17. The attorney had the authority to act on their behalf, and the motion

signed by their attorney was proof on the record of the appellants’ participation.

See id. at 517.   Here, there is no evidence that Tonna agreed to anything

through an attorney; in fact, the record shows that neither Tonna nor Gordon

ever retained counsel prior to filing this appeal. We further note that nothing

on the record supports the proposition that Gordon had the authority to sign on

behalf of Tonna. See Wilkinson v. Stevison, 514 S.W.2d 895, 898 (Tex. 1974)

(stating that the marital relationship does not in itself make one spouse the

agent of the other). But see Taylor v. Gilbert Gertner Enters., 466 S.W.2d 337,

339 (Tex. Civ. App.—Houston [1st Dist.] 1971, writ ref’d n.r.e.) (“A husband

may be shown to be the agent of his wife. Facts and circumstances might be

produced which would require a finding that the wife is bound by the

agreement of her husband.”); Mercer v. McCasland, No. 01-95-01232-CV,

1996 WL 532061, at *1–2 (Tex. App.—Houston [1st Dist.] Sept. 19, 1996,

                                        6
no writ) (not designated for publication) (holding that the record demonstrated

that the wife consented to the agreed order even though she did not appear at

the hearing because the husband “specifically stated” that he had the authority

to act on his wife’s behalf). Likewise, we disagree with Bank of New York’s

assertion that because the record does not evidence a “lack of authority” for

Gordon to enter into the agreed judgment for both himself and Tonna that

Tonna “cannot now attempt to deny the validity of the agreed judgment.” Bank

of New York has not established that Gordon had the authority to enter into the

agreement for Tonna, and so the absence of evidence showing a “lack of

authority” is irrelevant.

      We hold that even though Tonna filed a written statement in the county

court, she did not participate in the decision-making event because she was not

present at the trial and did not sign the agreed judgment.          See Ramirez v.

Lyford Consol. Indep. Sch. Dist., 900 S.W.2d 902, 906 (Tex. App.—Corpus

Christi 1995, no writ) (holding that the appellant, who filed a petition and

participated in pretrial discovery, did not participate in the “actual trial” because

he did not participate in the proceedings leading up to the rendition of the

judgment).




                                         7
      B.    Error Apparent on the Face of the Record

      Because Tonna satisfied the requirements of rule 30, she must now show

error apparent on the face of the record. Tonna argues first that it was error

for the county court to issue the writ of possession on an interlocutory

judgment that did not dispose of her as a party. She states, in the alternative,

that because the county court did not receive any evidence at the hearing when

it entered the agreed judgment that we should vacate and set aside the agreed

judgment.

      Although Tonna does not use the word “consent,” she repeatedly states

that she did not take part in the decision making process leading up to the

agreed judgment. She states that “[t]he record . . . shows that Mrs. Brooks

had no part in the [a]greed [j]udgment.” She also asserts that Gordon was not

authorized to “commit her” to an agreed judgment merely because he lived with

her. We liberally construe Tonna’s argument as including a claim that she did

not participate in or consent to the agreed judgment.        See T EX . R. A PP. P.

38.1(e), 38.9; Sheikh v. Sheikh, 248 S.W.3d 381, 392 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (stating that even though the appellant argued that

the trial court lacked subject-matter jurisdiction to enter an order, “at the heart”

of the issue was a complaint that the trial court erred in drafting an overly broad

order).

                                         8
      In Texas, a valid consent judgment cannot be rendered by a court when

consent of one of the parties is wanting. Quintero v. Jim Walter Homes, Inc.,

654 S.W.2d 442, 444 (Tex. 1983); Williams v. Hollingsworth, 568 S.W.2d

130, 131 (Tex. 1978); Burnaman v. Heaton, 240 S.W.2d 288, 291 (Tex.

1951). Consent must exist at the very moment the court undertakes to make

the agreement the judgment of the court. Burnaman, 240 S.W.2d at 291.

When consent has either been withdrawn or is lacking at the time the agreed

judgment is rendered, the judgment is void. Sohocki v. Sohocki, 897 S.W.2d

422, 424 (Tex. App.—Corpus Christi 1995, no writ); see also Samples

Exterminators v. Samples, 640 S.W.2d 873, 874–75 (Tex. 1982).

      The supreme court has held that absent a rule 11 agreement, a court

cannot render an agreed judgment when a party to the suit did not attend and

was not represented at the hearing where the judgment was rendered.

Williams, 568 S.W.2d at 131–32. In Williams, the appellant was involved in

a will contest in which the contestants sought, among other things, a portion

of the residuary estate, to which the appellant was entitled to one-half as one

of the decedent’s sons. Id. at 131. On the day of trial, the will contestants

and the independent executor appeared and announced to the trial court that

they had settled the controversy. Id. Each contestant would receive $8,000

from the residuary estate, and the will would otherwise stand as probated. Id.

                                      9
Because neither the appellant nor his attorney was present at the trial, the

Court stated that the appellant had not consented to the agreed judgment and

that the judgment was thus properly set aside for lack of consent.        Id. at

131–32.

      The agreed judgment in this case grants possession of the premises at

issue to Bank of New York. It also orders that if “defendants fail to vacate by

May 11, 2007, then [Bank of New York] shall be entitled to obtain a writ of

possession ordering any Constable to remove defendants . . . .” Thus, like in

Williams, the judgment attempts to adjudicate Tonna’s rights even though she

did not participate in or agree to the judgment.

      Tonna did not sign the agreed judgment, and in fact, her name was

crossed out of the introductory paragraph of the judgment; in its place,

someone handwrote “Gordon.” 3          Bank of New York contends that “the

judgment was agreed to by all the parties,” but there is nothing in the record

to suggest that Tonna ever agreed to the judgment.        The transcript of the

trial—in its entirety—is as follows:

      THE COURT:         Bank of New York versus Brooks. What’s up?




      3
        … This portion of the judgment reads, “Plaintiff appeared by and through
its designated representative or counsel of record. Defendant(s), Tonna Gordon
Brooks appeared in person.”

                                        10
      [BANK]:           Morning, Your Honor, we just came to an agreement.

      THE COURT:        Okay.

      THE COURT:        You’re Mr. Brooks?

      MR. BROOKS:       I’m Mr. Brooks.

      THE COURT:        You live there with Tonna, your wife?

      MR. BROOKS:       Yes, sir.

      As shown by the transcript, neither party discussed with the trial court

the issue of Tonna’s consent to the judgment. Moreover, Bank of New York’s

attorney stated that “we just came to an agreement,” indicating that the

agreement was between only those parties present at the trial. [Emphasis

added.] Because nothing on the record suggests that Tonna appeared before

the court, we conclude that the agreement was between Bank of New York and

Gordon.   See Williams, 568 S.W.2d at 131–32.        Accordingly, we sustain

Tonna’s first issue to the extent that we construe it as arguing that the court

improperly rendered judgment absent her participation and consent. Because

the county court signed the agreed judgment absent Tonna’s consent, the

judgment is void. See Sohocki, 897 S.W.2d at 424; see also Williams, 568

S.W.2d at 132 (holding that because the court rendered a judgment absent the

consent of one of the parties, the judgment was properly set aside); Cook v.

Cook, 243 S.W .3d 800, 801, 803 (Tex. App.—Fort Worth 2007, no pet.)

                                      11
(holding that the trial court’s judgment on an “agreed divorce decree” was void

when one party withdrew his consent to the agreement before the trial court

granted the divorce and rendered judgment).

                               IV. C ONCLUSION

      Having sustained Tonna’s first issue as construed above, we reverse and

remand the cause to the trial court for further proceedings. 4 See Cook, 243

S.W.3d at 803; Sohocki, 897 S.W.2d at 424.




                                           PER CURIAM

PANEL B: HOLMAN, DAUPHINOT, and WALKER, JJ.

DELIVERED: July 3, 2008




      4
      … Because we have held that the judgment is void, we need not address
Tonna’s argument regarding the issuance of the writ of possession or the
argument concerning default judgment.

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