
NO. 07-04-0525-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JULY 12, 2006
______________________________

FLOYD TUTSON, et al., 

									Appellants

v.

TOM UPCHURCH, JR., TOM UPCHURCH, JR. & ASSOCIATES,
AND WAYNE BARFIELD, 

									Appellees
_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 79,998-A; HON. JOHN T. FORBIS, PRESIDING
_______________________________

Opinion
______________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J. (1)
	Floyd Tutson, Stacie Lynn Reeves, Donna Gordy, Paula Burns, Al Brady Burns,
Naomi Cornelison, Gertrude Davenport, Becky Hobson, Gwendolyn Smith Williams and her
son, Doug Pyle, Catherine Patricia Anthony, Carolyn Hood (Cowan), JoJean Hobson, Jose
G. Romo, and Collin Fowler (collectively referred to as the Clients) appeal from a "Final
Summary Judgment" denying them recovery against Tom Upchurch, Jr., Tom Upchurch,
Jr. & Associates, and Wayne Barfield (collectively referred to as the Attorneys).  Four
issues appear before us.  Under the first, the Clients assert that the summary judgment is
not final.  Next, they contend that a summary judgment cannot be entered by agreement. 
And, in their third and fourth issues, they aver that the trial court erred in granting summary
judgment.  We reverse the judgment.
 Issue One - Finality of the Judgment
	The Clients initially assert that we lack jurisdiction over the appeal since the "Final
Summary Judgment" signed by the trial court actually was not final.  Furthermore, the
decree was not final because 1) the grounds for summary judgment alleged in the various
motions (and evidence supporting them) did not encompass all claims and all parties and
2) not all the plaintiffs were specifically named in the decree.  We overrule the issue.
	Regarding the first proposition, that the trial court enters summary judgment upon
claims outside the scope of the summary judgment motion does not render the summary
judgment interlocutory.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)
(stating that if a defendant moves for a summary judgment on one of four causes of action
"but the trial court renders judgment that the plaintiff take nothing on all claims asserted,
the judgment is final - erroneous, but final").  As for the second allegation, to be final, a
judgment need not be in any particular form.  Id. at 195.  Instead, it need only dispose of
all pending parties and claims.  Id.  Here, each claimant and claim was not expressly
named or itemized in the judgment.  Nonetheless, the trial court "ORDERED that plaintiffs
take nothing against defendants, that all claims asserted by plaintiff are denied, and that
all costs of court be taxed against plaintiffs." (2)  (Emphasis added).  So too did it state that
"[a]ll relief requested in this case and not expressly granted is denied" and "[t]his judgment
finally disposes of all parties and claims and is appealable."  (Emphasis added).  Given the
trial court's use of each word or phrase italicized, we cannot but hold that the trial court
intended to render an appealable judgment and actually disposed of all claims and parties. 
Thus, the "Final Summary Judgment" indeed was final.  
 Issue Two - Render an Agreed Summary Judgment
	Next, the Clients allege that a summary judgment cannot be rendered by agreement
if the terms of Rule 11 are unsatisfied.  And, because those terms were not met at bar, the
trial court erred in purporting to render the judgment upon the agreement of the parties. 
We sustain the issue.
	Rule 11 of the Texas Rules of Civil Procedure states that "[u]nless otherwise
provided in these rules, no agreement between attorneys or parties touching any suit
pending will be enforced unless it be in writing, signed and filed with the papers as part of
the record, or unless it be made in open court and entered of record."  Tex. R. Civ. P. 11. 
Moreover, until all the terms of a judgment have been definitely agreed upon by all the
parties and those terms are either reduced to writing, signed, and made a part of the record
or made in open court and entered of record, the trial court is not authorized to render a
judgment by agreement.  Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 873 (1939); 
McIntyre v. McFarland, 529 S.W.2d 857, 859 (Tex. Civ. App.-Tyler 1975, no writ).  The
purpose of these rules is to remove from "the fallibility of human recollection" agreements
of counsel which affect the interests of their clients.  Matthews v. Looney, 123 S.W.2d at
873, quoting, Wyss v. Bookman, 235 S.W. 567 (Tex. Comm'n App. 1921) (judgm't
adopted).  And, that purpose is no less applicable here.
	The record before us illustrates that the trial court granted the Attorneys' motion for
summary judgment not due to its merit but because counsel for the Clients allegedly
agreed, at the hearing on said motion, that summary judgment was proper. (3)  Furthermore,
the agreement was neither written nor entered of record.  Instead, the trial court was left
to reconstruct it based upon his memory.  So, given the absence of any written record of
the accord and its propensity to touch the suit, the trial court lacked authority to act upon
it.  And, because that unrecorded agreement formed the basis of its decision to grant
summary judgment, entry of the judgment was impermissible under Rule 11, Matthews,
and McIntyre.
	Our disposition of issue two relieves us from having to consider the remaining issues
raised by the Clients.  Accordingly, we reverse the final summary judgment and remand the
cause to the trial court.

							Brian Quinn
						          Chief Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2006). 
2. We note that in referring to the claims being denied, the decree simply stated "plaintiff" in the singular. 
However, we view this as a typographical error given the trial court's reference to "plaintiffs" plural when
ordering  that they "take nothing" and in levying court costs.  It, no doubt, intended to use the plural "plaintiffs"
throughout the judgment.     
3. During the hearing, the trial judge candidly admitted that he did not peruse the summary judgment
motion in depth.  Rather, he relied upon the alleged agreement between counsel to enter summary judgment. 


him additional injuries and involved a different set of clipper blades and different
personnel.  We agree with the Texarkana court that the "transactional" analysis used in
determinations of the "same claim" element of res judicata can be helpful in reviewing
findings under Section 14.003(b)(4).  See Vacca, 85 S.W.3d at 440.  Under that analysis the
determination is to be made pragmatically, with such considerations as the relationships
among the facts and the effect on trial of the case.  See Barr v. Resolution Trust Corp., 837
S.W.2d 627, 630-631 (Tex. 1992).  Here, Starks sought in the two causes to establish the
Department's liability (5) for injuries he suffered on two occasions from the prison's use of
defective and contaminated clipper blades and the chemicals used on the blades.  From the
information in the Section 14.004 affidavit Starks submitted with the petition filed in cause
number 90,931-C, the trial court would have learned that the petition restated the claims
accrued in October asserted in the earlier petitions, as well as his claims arising from the
December occurrence. (6)  The injuries alleged are described in similar terms as "injury caused
to the skin of his face and head," "injuries to the head and chemical burns" and "damages
. . . to the skin of his face."  Although the injuries occurred something over two months apart
and in different locales in the prison involving different personnel, those factors are not
significant with respect to the Department's liability.  The trial court did not abuse its
discretion in finding the claims against the Department arising in December 2002 arose from
the same operative facts as those also asserted in cause number 90,654-B. Starks's first
issue is overruled. 
	In his second issue, Starks argues that because Chapter 14 applies only to inmates,
it denies "equality under the law" based on inmate status, which he attempts to equate to
a separate "race" under the Equal Rights Amendment to the Texas Constitution.  See Texas
Constitution art. I, § 3a.  
	The contention presented in this second issue was not made to the trial court, either
in Starks's pleadings or in his timely-filed "motion to reinstate" following the order of
dismissal.  It therefore has not been preserved for appellate review.  Tex. R. App. P. 33.1. 
See In re Vega, 10 S.W.3d 720, 722 (Tex.App.-Amarillo 1999, no pet.); Miller Paper Co. v.
Roberts Paper Co., 901 S.W.2d 593, 600 (Tex.App.-Amarillo 1995, no writ) (both cases
applying requirement to constitutional claims).  
	Further, we note the Equal Rights Amendment proscribes denials of equality under
the law based on a person's membership in a protected class of sex, race, color, creed, or
national origin.  See Bell v. Low Income Women of Texas, 95 S.W.3d 253, 257 (Tex. 2002). 
Just as criminal defendants in general have not been recognized as a suspect class for
purposes of the Equal Protection Clause of the Fourteenth Amendment to the U. S.
Constitution, see Dinkins v. State, 894 S.W.2d 330, 342 (Tex. Crim. App. 1995), we find that
inmates are not a race for purposes of our state's Equal Rights Amendment.  Starks cites
us to no authority holding to the contrary.  Starks's second issue is overruled. 
	 The judgment of the trial court is affirmed.  Starks's pending motion for concurrent
submission of this appeal with appellate docket number 07-03-0278-CV was rendered moot
by our dismissal of that appeal for want of jurisdiction, and is therefore overruled.	

							James T. Campbell
							        Justice


 

1.        -       
 -          
 
2.            
     
3.           
    "   "      
            
        
4. '     -   
             
           - 
              
-     
5. No individuals were named as defendants in either cause.
6.         - "
        "   
 '              
    -          
          

