                                NO. 07-06-0290-CV

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                     PANEL A

                                  MAY 2, 2007
                        ______________________________

                  HUGO XAVIER DE LOS SANTOS, APPELLANT

                                         V.

               COMMISSION FOR LAWYER DISCIPLINE, APPELLEE
                   _________________________________

             FROM THE 166TH DISTRICT COURT OF BEXAR COUNTY;

         NO. 2004-CI-02937; HONORABLE J. MANUEL BANALES, JUDGE
                      _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                             MEMORANDUM OPINION


      Appellant, Hugo Xavier de los Santos, appeals the entry of a Judgment of Public

Reprimand. We reverse the judgment and remand to the trial court.


                                    Background


      Appellee, Commission for Lawyer Discipline (Commission), filed a suit against de

los Santos contending that de los Santos had violated Texas Disciplinary Rules of

Professional Conduct in connection with his handling of two unrelated cases.      The
Commission alleged that in one of these cases, the Travis complaint, de los Santos

violated Rules 3.01 and 3.04(b) of the Texas Rules of Professional Conduct by bringing

a lawsuit upon which de los Santos had no reasonable belief was not frivolous and that he

counseled false testimony from his client. See TEX . GOV’T CODE ANN . tit. 2, subt. G, app.

A, art. 10, § 9, 3.01, 3.04(b) (Vernon 2005).1 In the other case, the Potts complaint, the

Commission alleged that de los Santos violated Rule 1.03(b) by failing to reasonably

explain the scope of his representation to a client sufficient to permit the client to make

informed decisions regarding the representation.


       De los Santos filed special exceptions and an answer denying the Commission’s

allegations. De los Santos also filed a motion to sever the Travis complaint from the Potts

complaint. The trial court denied the severance motion. De los Santos then filed a motion

for no-evidence summary judgment and a motion for traditional summary judgment. After

the Commission responded to these motions, de los Santos filed objections to the

Commission’s summary judgment evidence and a motion to strike the Commission’s

response. The trial court denied de los Santos’s objections, motion to strike, and motions

for summary judgment and the suit proceeded to trial.


       On the day that the trial was scheduled to commence, January 17, 2006, the

Commission non-suited its claims based on the Travis complaint. Prior to the empaneling

of the jury, the parties announced that they had reached a settlement agreement. The

terms of this settlement agreement were stated on the record and in open court. De los


       1
        Further reference to Texas Rules of Professional Conduct will be by reference to
“Rule __.”

                                            2
Santos expressly accepted the agreement. After some discussion regarding the drafting

of the judgment, the trial court stated, “And for the record, the Court approves the

settlement and renders judgment accordingly.”


       Two days later, the court held a hearing for entry of judgment based on the prior

agreed settlement. Both parties submitted proposed judgments at this hearing. De los

Santos objected to the Commission’s proposed judgment contending that he had not

agreed to a finding that he had violated a Rule of Professional Conduct, but that he would

accept the Commission’s proposed judgment if the trial court would allow the inclusion of

an additional statement indicating that de los Santos did not agree or admit to the finding

that he had violated a Rule. As a result of this dispute regarding the terms of the judgment,

the trial court asked de los Santos if he would rather go to trial or have the court sign the

Commission’s proposed judgment. De los Santos insisted that he did not agree to the

terms in the Commission’s proposed judgment and wanted to go to trial. The trial court

accepted de los Santos’s request and notified the parties that the trial would be set for

March 20. Further, the trial court stated, “Everything goes back to the way it was before

the announcements on Tuesday [the settlement announcements]” and that “There’s

nothing final yet.”


       On February 6, the trial court entered an Order Granting Entry of Judgment and

entered a Judgment of Public Reprimand. The Judgment recites that, on January 17, the

parties agreed that judgment should be entered “as set forth in this Agreed Judgment of

Public Reprimand.” This judgment decrees, inter alia, that de los Santos committed

professional misconduct by violating Rule 1.03(b) and requires that the $3,000 restitution

                                             3
and $2,000 attorney fee payments be made by certified check, money order or other

method of guaranteed payment. De los Santos appealed this judgment.


       De los Santos presents nine issues on appeal. Issues one through four and nine

challenge the judgment entered by the trial court on February 6. Issue five contends that

the trial court erred in denying de los Santos’s motion for summary judgment. Issues six

through eight challenge the trial court’s denial of de los Santos’s motion to sever the Potts

and Travis complaints.


                           Issues 1-4, 9: The Agreed Judgment


       De los Santos challenges the trial court’s entry of the February 6 Judgment of Public

Reprimand because 1) de los Santos had withdrawn his consent prior to the entry of

judgment, 2) the judgment was not supported by evidence or consent, 3) the judgment did

not comport with the agreement of the parties, 4) the trial court’s sua sponte entry of

judgment was a denial of de los Santos’s due process rights and a denial of his open

courts right, and 5) the trial court abused its discretion by denying de los Santos’s

objections to the entry of judgment. Holding that the trial court was without authority to

enter the February 6 judgment and that it added an additional term not agreed to by the

parties, we reverse.


       On January 17, the parties announced, in open court and of record, that they had

reached a settlement agreement. The trial court asked that the terms of the settlement be

read into the record. Those terms were, “A public reprimand, and $2,000 attorney’s fees

to be paid to the State Bar, and $3,000 restitution which will be paid through the State Bar,

                                             4
and the monetary payments are due in 90 days or less.” The court asked de los Santos

if that was his agreement and he responded, “That’s the agreement I made today, yes, sir.”

After some discussion regarding drafting the judgment, the trial court set a hearing on the

entry of the judgment for January 19 and stated, “And for the record, the court approves

the settlement and renders judgment accordingly.”


       As a general rule, judgment is rendered when the trial court announces its decision

in open court or by written memorandum filed with the clerk. S & A Rest. Corp. v. Leal, 892

S.W.2d 855, 857 (Tex. 1995). However, a trial court’s approval of a settlement agreement

does not necessarily constitute rendition of judgment. Id. Rather, the words used by the

trial court must clearly indicate the intent to render judgment at the time that the words are

expressed. Id. at 858. The entry of judgment after rendition is a purely ministerial act by

which the judgment is made of record and preserved. See Keim v. Anderson, 943 S.W.2d

938, 942 (Tex.App.–El Paso 1997, no writ). A final judgment which is founded upon a

settlement agreement reached by the parties must be in strict and literal compliance with

that agreement. Vickery v. Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976). A

court has no power to supply terms, provisions, or conditions not previously agreed to by

the parties. Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (1939).


       Reviewing the words used by the trial court on January 17, we conclude that they

clearly indicate the trial court’s intent to render judgment at the time they were stated.

Thus, the trial court intended to render judgment in accordance with the parties’ settlement

agreement on January 17 and needed only perform the ministerial act of entering judgment

on January 19.

                                              5
       However, to constitute an enforceable agreement for judgment, no necessary term

should be allowed for adjustment between the parties. Wyss v. Bookman, 235 S.W. 567,

569 (Tex. 1921); Reppert v. Beasley, 943 S.W.2d 172, 174 (Tex.App.–San Antonio 1997,

no writ). “Until all the terms of a final judgment have been definitely agreed upon by all

parties and those terms either reduced to writing or placed of record, . . . we think the court

was without power to render a judgment by agreement.” Wyss, 235 S.W. at 569. When

an agreement fails to include all necessary terms, the negotiations of the parties “never

reached that final stage of meeting of minds upon all matters which is essentially

necessary to an agreed judgment.” Id.


       While the trial court in the present case intended to render judgment according to

the settlement agreement of the parties on January 17, that agreement left a necessary

element undecided, specifically whether the judgment would include a finding that de los

Santos had violated a Rule of Professional Conduct. That this omission was essential may

be seen by the fact that neither party was willing to agree to the other’s proposed

judgment. See Reppert, 943 S.W.2d at 174. Further, the Commission, by its appellate

brief, appears to indicate that a finding of a Rule violation was necessary for the entry of

judgment in this case.2 Thus, the settlement agreement that was stated into the record on

January 17 was incapable of supporting an agreed judgment because it omitted an

essential term, namely that de los Santos had violated a Rule of Professional Conduct.



       2
         The Commission states that, “. . . while no reference was made specifically to
[Rule] 1.03(b) [in the settlement agreement], there was no other misconduct at issue. . .
. Consequently, the judgment properly included the finding of misconduct and the specific
rule violation.”

                                              6
As a result, we conclude that the trial court was without authority to enter the February 6

Judgment of Public Reprimand.


       However, even if the trial court had the authority to enter the February 6 judgment,

it must still have done so “in strict and literal compliance with that agreement.” Vickery,

532 S.W.2d at 292. The settlement terms that were stated into the record on January 17

do not include any agreement regarding the finding of a Rule violation. Accordingly, the

trial court’s February 6 judgment supplies “terms, provisions, or conditions not previously

agreed to by the parties,” Matthews, 123 S.W.2d at 872, and is void. See Reppert, 943

S.W.2d at 175.


       When the trial court does not have the authority to render an agreed judgment or,

having that power, goes beyond the terms of the parties’ agreement, it is appropriate to

reverse the judgment and remand the case to the trial court. Vickery, 532 S.W.2d at 293;

Reppert, 943 S.W.2d at 175.


                      Issue 5: de los Santos’s Summary Judgment


       De los Santos contends that the trial court abused its discretion in denying his

motion for summary judgment. Generally, appellate courts do not have jurisdiction to hear

denied motions for summary judgment. See Ackerman v. Vordenbaum, 403 S.W.2d 362,

365 (Tex. 1966); Hines v. Comm’n for Lawyer Discipline, 28 S.W.3d 697, 700

(Tex.App.–Corpus Christi 2000, no pet.). De los Santos has failed to identify an exception

to this general rule applicable to the present case nor can we find one. Thus, we conclude



                                            7
that we have no jurisdiction to review de los Santos’s issue regarding the trial court’s denial

of his motion for summary judgment.


                                   Issues 6-8: Severance


       Finally, de los Santos contends that the trial court abused its discretion in denying

his motion to sever the Travis and Potts complaints. However, the record reflects that, at

the January 17 hearing, the Commission asked the trial court to allow it to “abandon” the

Travis complaints, which the trial court accepted. De los Santos correctly indicates that,

unless otherwise specified by the requesting party or the court, a non-suit is without

prejudice. See Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex. 1962). Neither

party has brought forth an issue regarding the trial court’s acceptance of the Commission’s

non-suit of the Travis complaints. Consequently, the trial court’s denial of the severance

was rendered moot by the subsequent non-suit of the Travis complaints. We cannot and

will not speculate as to whether the Commission will attempt to reassert claims in the

present lawsuit which have been previously dismissed. As the present appeal does not

include the Travis complaints, any comment upon these matters by this court would

constitute an advisory opinion, which is precluded by the Texas Constitution. See TEX .

CONST . art. II, § 1; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.

1993). Thus, we overrule de los Santos’s issues relating to the trial court’s denial of his

severance motion.




                                              8
                                      Conclusion


      We reverse the trial court’s February 6, 2006 Judgment of Pubic Reprimand and

remand for further proceedings consistent with this opinion.




                                         Mackey K. Hancock
                                             Justice




                                           9
