From Casetext: Smarter Legal Research

Banda v. Garcia

Supreme Court of Texas
Oct 30, 1997
955 S.W.2d 270 (Tex. 1997)

Summary

holding attorney's unsworn statements tendered as evidence were sufficient absent objection

Summary of this case from Mathis v. Lockwood

Opinion

No. 97-0066.

October 30, 1997.

Appeal from 111th District Court, Webb County, Antonio A. Zardenetta, J.

Donato D. Ramos, Baldemar Garcia, Jr., Laredo, for Petitioners.

Pruett Moore, III, Corpus Christi, Shirley Hale Mathis, Laredo, Rose R. Vela, Corpus Christi, Emilio Alva, Belinda Mendez, Laredo, David Cano, B. Mills Latham, Corpus Christi, for Respondents.


The issue in this cause is whether an attorney's unsworn testimony constitutes some evidence of a pre-suit settlement agreement. The court of appeals held that because the trial court had not placed Banda's attorney under oath, the attorney's statements at a pretrial hearing were not evidence of a pre-suit settlement agreement. 935 S.W.2d 790, 794. We disagree.

Javier Garcia was in an automobile accident with Daniel Banda that rendered Garcia brain-damaged and incapacitated. Before filing suit, Garcia's attorney, B. Mills Latham, sent a letter dated February 23, 1993 to Banda's attorney, Shirley Mathis, offering to settle the case for $60,000. In the letter, Latham said that if he did not receive the checks and releases by March 12, 1993, the offer would be withdrawn. According to Mathis, she called Latham before the deadline and accepted the offer but told Latham that the parties would need extra time to file a friendly suit so that the court could appoint attorneys ad litem to represent the incapacitated Garcia and his infant daughter. Latham allegedly agreed.

On March 24th, however, Latham notified Mathis that the settlement deadline had passed and that Garcia was filing suit against Banda. After Garcia sued, Banda filed a motion to enforce the settlement, alleging that Garcia had reneged on his agreement to extend the settlement deadline.

Latham did not attend the hearing on the motion to enforce, instead sending an associate, Pruett Moore, to represent Garcia. At the hearing, Mathis asserted that an oral agreement to extend the settlement deadline existed and that Latham had reneged on it. Moore denied that any oral agreement did in fact exist. The court of appeals held that Mathis's unsworn statements at the hearing were not enough to support the trial court's finding of an enforceable settlement agreement. 935 S.W.2d at 794.

Normally, an attorney's statements must be under oath to be considered evidence. See United States Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997); Fullenwider v. American Guar. Liab. Ins. Co., 821 S.W.2d 658, 662 (Tex.App. — San Antonio 1991, writ denied). As the court of appeals acknowledged, however, the opponent of the testimony can waive the oath requirement by failing to object when the opponent knows or should know that an objection is necessary. See 935 S.W.2d at 793 (citing Fullenwider, 821 S.W.2d at 662, and Bloom v. Bloom, 767 S.W.2d 463, 471 (Tex.App. — San Antonio 1989, writ denied)); see also Beck v. State, 719 S.W.2d 205, 213 (Tex.Crim.App. 1986).

Banda's attorney, Mathis, did not take an oath before discussing the existence and terms of the oral settlement agreement. Nevertheless, Moore should have known to object to Mathis's unsworn statements. The record shows that Mathis was clearly attempting to prove the existence and terms of the settlement agreement, including the agreement to extend the deadline, at the hearing. In fact, Mathis stated at the conclusion of her presentation that "as an officer of the court I can just state under oath what — what I am telling the court and what my representations were by [sic] Latham and the understanding I had." She also said that "this agreement that I'm testifying to today before the court as an officer of the court, if Mr. Latham felt so strongly about it, he is not present." (emphasis added). Moreover, Mathis's testimony was the only available evidence of the oral agreement to extend the deadline. Mathis therefore clearly placed Garcia's attorney on notice that she was attempting to prove the existence and terms of the oral agreement.

Nevertheless, Moore still did not, at any time, object to the trial court's failure to administer the oath. Therefore, Garcia waived any objection he had and Mathis's statements to the court are some evidence of the settlement agreement. Accordingly, the court of appeals should have affirmed the trial court's judgment enforcing the agreement. See Burrhus v. M S Supply, Inc., 933 S.W.2d 635, 641 n. 4 (Tex.App. — San Antonio 1996, writ denied) (holding that the trial court can consider attorney's unsworn testimony as evidence if opponent does not object to lack of oath).

The court of appeals incorrectly relied on S A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995), for the alternative holding that any agreement was unenforceable because Garcia withdrew his consent before judgment was rendered. Because Banda did not make this argument in the trial court or in his brief to the court of appeals, the court of appeals could not reverse on this point. TEX.R.APP. P. 33; San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex. 1990).

Accordingly, under Rule 59.1 of the Texas Rules of Appellate Procedure, the Court grants Banda's application for writ of error and, without hearing oral argument, reverses the court of appeals and reinstates the trial court's judgment.


Summaries of

Banda v. Garcia

Supreme Court of Texas
Oct 30, 1997
955 S.W.2d 270 (Tex. 1997)

holding attorney's unsworn statements tendered as evidence were sufficient absent objection

Summary of this case from Mathis v. Lockwood

holding that unsworn statements of attorneys are not normally evidence

Summary of this case from In re Doe 3

holding statements an attorney made to the trial court about a settlement agreement were some evidence of the agreement when the opposing party did not object

Summary of this case from In re Estate of Campos

holding attorney's unsworn statements to the court constitute evidence if no objection is made to the trial court's failure to administer oath

Summary of this case from Mansfield v. Mansfield

holding attorney's unsworn statements to the court constitute evidence if no objection is made to the trial court's failure to administer oath

Summary of this case from Mansfield v. Mansfield

holding attorney's unsworn statements tendered as evidence were sufficient absent objection

Summary of this case from Anderson v. Safeway Tom Thumb

holding attorney's unsworn statements tendered as evidence were sufficient absent objection

Summary of this case from Approximately 26.8 Grams of Methamphetamine v. State

holding unsworn attorney statements generally do not constitute evidence

Summary of this case from Russell v. State

holding that attorney's unsworn statements clearly offered to prove existence and terms of oral agreement were evidence where opposing party failed to object to trial court's failure to administer oath

Summary of this case from Lewis v. Hous. Auth.

holding attorney's unsworn factual statements constitute evidence if opposing counsel does not object to absence of oath

Summary of this case from In re D.M.C.

holding that oath requirement for attorney was waived by failure to object because opponent knew or should have known attorney's statements were attempt to prove existence and terms of settlement agreement

Summary of this case from In re Innovation Res. Solution, LLC

holding that a party can waive the oath requirement by failing to object when the opponent knows or should have known that an objection was necessary

Summary of this case from Henderson v. Lewis

holding attorney's statements regarding existence of an agreement constituted evidence of agreement absent objection to trial court's failure to administer oath

Summary of this case from Bd. of Adjustment for San Antonio v. E. Cent. Indep. Sch. Dist.

holding unsworn attorney statements generally do not constitute evidence

Summary of this case from Lee v. State

holding unsworn attorney statements generally do not constitute evidence

Summary of this case from Ex parte K.R.K.

holding unsworn factual statements made by attorney constitute evidence where opponent of testimony fails to object to attorney not being under oath

Summary of this case from In re Estate of Aguilar

holding unsworn factual statements made by attorney constitute evidence where opponent of testimony fails to object to attorney not being under oath

Summary of this case from In re Estate of Aguilar

holding attorney's unsworn statements tendered as evidence were sufficient absent objection

Summary of this case from Polinard v. Medina

holding that complaint on appeal must be the same as that presented in the trial court

Summary of this case from Licea v. State

holding that the complaint on appeal must be the same as the complaint presented to the trial court

Summary of this case from Morrison v. Christie

holding attorney's statements may be considered as evidence if no objection is made to absence of oath

Summary of this case from In Interest of E.A.R.

holding evidentiary statements by attorney constituted some evidence where no objection was made to statements

Summary of this case from Gabehart v. Bexar Co Sheriff's

holding that opponent's failure to object to unsworn statement of attorney constituted waiver of objection, causing statement to be considered as evidence

Summary of this case from Garcia v. City of Laredo

holding that normally an attorney's statements must be under oath to be considered evidence

Summary of this case from Pikul v. Kroger Co. 536

holding statements by attorneys constitute evidence if party fails to object

Summary of this case from IN RE ESTATE OF GOST
Case details for

Banda v. Garcia

Case Details

Full title:Daniel Sanchez BANDA and Alberto Sanchez, Petitioners, v. Adolfo GARCIA…

Court:Supreme Court of Texas

Date published: Oct 30, 1997

Citations

955 S.W.2d 270 (Tex. 1997)

Citing Cases

Roberts v. Roberts Pub. Co.

Statements of counsel do not generally constitute evidence unless made under oath. Banda v. Garcia, 955…

JPMorgan Chase Bank, N.A. v. Prof'l Pharmacy II

Additionally, the complaint on appeal must be the same as that presented in the trial court. SeeBanda v.…