Opinion
NO. 14-19-00991-CV
11-02-2021
DHI HOLDINGS, LP, Appellant v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE3, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE3; Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE3; and Specialized Loan Servicing, LLC, Appellees
Nathan Joseph Milliron, Jennifer McCammon, Damian William Abreo, Houston, for Appellee. Jeffrey C. Jackson, Houston, for Appellant.
Nathan Joseph Milliron, Jennifer McCammon, Damian William Abreo, Houston, for Appellee.
Jeffrey C. Jackson, Houston, for Appellant.
Panel consists of Justices Bourliot, Zimmerer, and Spain
Charles A. Spain, Justice
Can a party ask a trial court to render judgment, yet nonetheless reserve the right to appeal a portion of that judgment, in effect asking the appellate court to determine an issue that was not contested at trial? Put another way, may a party ask the trial court for a particular ruling, and then appeal that very ruling to this court? Because appellate courts do not reverse unless the trial court erred, we answer, "No."
In three issues, appellant DHI Holdings, LP, attempts to appeal a final summary judgment. We conclude DHI has waived any error and affirm.
I. BACKGROUND
DHI filed suit to prevent foreclosure on real property by the appellees: (1) the Deutsche parties that own and hold the deed of trust on the property and (2) the mortgage servicer for the Deutsche parties. DHI obtained a temporary restraining order enjoining a foreclosure sale and moved for partial summary judgment arguing that the deed of trust lien was void because appellees had not foreclosed on the property within the four-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.035(a). The parties disputed the effect on limitations of appellees’ attempted acceleration of the note, and appellees moved for a traditional summary judgment that they abandoned or waived acceleration, restarting the limitations period.
The appellee Deutsche parties are (1) Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006–HE3, Mortgage Pass-Through Certificates, Series 2006-HE3 and (2) Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE3.
The appellee mortgage servicer is Specialized Loan Servicing, LLC.
All parties signed and filed a Texas Rule of Civil Procedure 11 agreement providing, in part:
Dear Judge Sandhill:
Jeffrey Jackson, attorney for Plaintiff, DHI, and Jennifer McCammon, an attorney for Defendants, Deutsche Bank and Specialized Loan Servicing, submit this stipulation and agreement on the Motions for Summary Judgment heard in the above-styled case.
On April 25, 2019, the Court heard cross motions for summary judgment in the above-styled case.
After some discussion, the Court asked the parties to discuss whether they preferred a 1-2 day trial on the issue of waiver of acceleration or if the parties wanted to agree to enter summary judgment in favor of Deutsche Bank and Specialized Loan Servicing so that the issue could be considered de novo on appeal.
The parties have discussed the options with our clients and the parties agree as follows:
1. DHI will [dismiss] without prejudice WMC Mortgage Corp. and Mortgage Electronic Registration Services, Inc.;
2. DHI will [dismiss] without prejudice all claims other than its limitations defense to foreclosure against Deutsche Bank and Specialized Loan Servicing;
3. A final summary judgment is to be entered in favor of Deutsche Bank and Specialized Loan Servicing on the cross motions for summary judgment in a form agreed to by the parties that is consistent with this Rule 11 Agreement;
4. By entering into this stipulation and agreement, DHI does not waive any right to appeal the judgment or the right to make any argument any argument on appeal that the trial court
erred in granting summary judgment to Deutsche Bank and Specialized Loan Servicing.
See Tex. R. Civ. P. 11. The parties then filed a joint motion for an agreed judgment:
On April 25, 2019, the Court heard cross motions for summary judgment. After some discussion, the Court asked the parties to discuss whether the parties preferred a 1-2 day trial on the issue of waiver of acceleration or if the parties wanted to agree to enter summary judgment in favor of Deutsche Bank and Specialized Loan Servicing so that the issue could be considered de novo on appeal.
The parties have reached an agreement filed contemporaneously herewith that calls for entry of an agreed final judgment in favor of Defendants on the cross motions.
....
The Parties agree that the Court should enter the proposed agreed summary judgment filed with this motion.
The trial court signed the "AGREED FINAL JUDGMENT," which states in part:
After considering the pleadings, motions, responses and replies, evidence on file, and arguments of counsel, the Court grants Deutsche Bank and [Specialized Loan Servicing's] motion and denies DHI's motion.
The trial court finds the following:
....
2. DHI has preserved its right to challenge this judgment on appeal.
Therefore, by agreement of the Parties, the Court orders that DHI take nothing by its suit against Deutsche Bank and [Specialized Loan Servicing].
....
The Court further orders that all of DHI's claims against Deutsche Bank and [Specialized Loan Servicing] other than claims on the statute of limitations to foreclose are dismissed without prejudice.
The Court further orders that each party is to bear their own costs and fees.
This Judgment is final, disposes of all claims and all parties, and is appealable.
The Court orders execution to issue on this judgment.
There is no question that this is a final and appealable judgment, disposing of all parties and all claims. Although the judgment initially seems to be interlocutory by not dismissing "claims on the statute of limitations to foreclose," the judgment ultimately disposes of them. See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 192 (Tex. 2001). However, we must address whether DHI has preserved any complaint for appellate review. Though not raised by the parties, it is a prerequisite to presenting a complaint on appeal that a party must present to the trial court a timely request, objection, or motion that states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context, and obtain a ruling. Tex. R. App. P. 33.1(a).
DHI's appellate brief does not refer to the final judgment by its caption, "AGREED FINAL JUDGMENT," but the brief does state, "On November 14, 2019, the 127th district court signed a final judgment agreed to by all remaining parties."
II. ANALYSIS
In Texas, settlement is encouraged and favored. See Transport Ins. Co. v. Faircloth , 898 S.W.2d 269, 280 (Tex. 1995) ("Settlements are favored because they avoid the uncertainties regarding the outcome of litigation, and the often exorbitant amounts of time and money to prosecute or defend claims at trial."); Bocanegra v. Aetna Life Ins. Co. , 605 S.W.2d 848, 855 (Tex. 1980) (Campbell, J., concurring) ("Settlement agreements are highly favored in the law because they are a means of amicably resolving doubts and preventing lawsuits."). Here, the parties agreed to settle DHI's claims, and as part of that agreement the parties agreed to the rendition of judgment in favor of appellees, including the trial court denying DHI's motion for summary judgment. The settlement agreement was contingent on the trial court's signing the agreed judgment.
Though settlement is favored, it is problematic when the parties do not agree with everything in the four corners of the judgment they request. The parties cannot agree to allow an appellate complaint unless a specific ground is presented to the trial court and the trial court makes an adverse ruling. This is important not only so parties do not conceal complaints of reversible error from the trial court, but also for purposes of error preservation. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP , 578 S.W.3d 469, 480 (Tex. 2019) ("Affording trial courts an opportunity to correct errors conserves judicial resources and prevents an appeal by ambush or otherwise having to order a new trial."); ETC Mktg., Ltd. v. Harris Cty. Appraisal Dist. , 528 S.W. 3d 70, 74 (Tex. 2017) (preservation of error is driven by "the principle that the trial court should have the chance to rule on issues that become the subject of the appeal").
This principle was summarized three decades ago by Judge Campbell on the court of criminal appeals:
There are many rationales for this raise-or-waive rule: that it is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to the trial court; that fairness to all parties requires a litigant to advance his complaints at a time when there is an opportunity to respond to them or cure them; that reversing for error not raised in the trial court permits the losing party to second-guess its tactical decisions after they do not produce the desired result; and that there is something unseemly about telling a trial court it erred when it was never presented with the opportunity to be right. The princip[a]l rationale for the rule, however, is judicial economy. If the losing side can obtain a reversal on a point not argued in the trial court, the parties and the public are put to the expense of a retrial that could have been avoided by better lawyering. Furthermore, if the issue had been timely raised in the trial court, it could have been resolved there, and the parties and the public would have been spared the expense of an appeal.
Young v. State , 826 S.W.2d 141, 149 (Tex. Crim. App. 1991) (Campbell, J., dissenting) (commenting on former Tex. R. App. P. 52(a), now Tex. R. App. P. 33.1(a) ), cited with approval by Loredo v. State , 159 S.W.3d 920, 923 (Tex. Crim. App. 2004). We agree. The trial court must be made aware, before it signs a final judgment or appealable order, of any complaint of reversible error. See generally USAA Tex. Lloyds Co. v. Menchaca , 545 S.W.3d 479, 510 (Tex. 2018) (preservation of error requirement "furthers ‘the goal of accuracy in judicial decision-making’ by allowing the parties to ‘develop and refine their arguments’ and allowing the trial court to ‘analyze the questions at issue’ ") (quoting In re B.L.D. , 113 S.W.3d 340, 350 (Tex. 2003) ). In short, an appellant must comply with Texas Rule of Appellate Procedure 33.1(a) so the trial court is aware of the specific ground that will be appealed, such that the trial court's signing of the "agreed" judgment or appealable order constitutes an adverse ruling on that specific ground.
The settlement agreement between DHI and appellees also raises the question of whether DHI invited error. A party cannot complain on appeal that the trial court took specific action that the complaining party requested. Tittizer v. Union Gas Corp. , 171 S.W.3d 857, 862 (Tex. 2005) (citing Northeast Tex. Motor Lines v. Hodges , 138 Tex. 280, 158 S.W.2d 487, 488 (Tex. [Comm'n App.] 1942) ).
The right to complain about a judgment on appeal is preserved when a movant states "in its motion to enter judgment that it agrees only with the form of the judgment," and notes "its disagreement with the content and result of the judgment." First Nat'l Bank of Beeville v. Fojtik , 775 S.W.2d 632, 633 (Tex. 1989) (no waiver when plaintiffs’ motion for entry of judgment referenced plaintiffs’ motion for new trial, stated that plaintiffs agreed only with form of judgment, and specified plaintiffs’ disagreement with content and result of judgment). "[M]erely provid[ing] a draft judgment to conform to what the court had announced would be its judgment" does not result in waiver of the appeal. John Masek Corp. v. Davis , 848 S.W.2d 170, 174–75 (Tex. App.—Houston [1st Dist.] 1992, writ denied) ; cf. Chang v. Linh Nguyen , 81 S.W.3d 314, 316 n.1 (Tex. App.—Houston [14th Dist.] 2001), opinion supplemented on overruling of reh'g , 76 S.W.3d 635 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ("In this case, the parties’ attorneys approved the take nothing judgment as to ‘form and substance’ but there is nothing more in the record to show that they settled or entered the judgment by consent or the like.").
This case does not present the same fact situation as in Fojtik . In this case there is no record that the trial court orally rendered a ruling on the two summary-judgment motions, making it clear that the motion for summary judgment of the mortgage servicer and the Deutsche parties was granted on the merits and the motion for summary judgment of DHI was denied on the merits. Had the trial court so ruled, then a judgment memorializing that and approved as to form would not waive an appellate complaint on the trial court's denial of DHI's motion for summary judgment. There is nothing in the record indicating that the trial court made an adverse ruling on the merits against DHI before signing the "agreed" judgment that all parties asked the trial court to sign. To the extent that the factual recitations in the Rule 11 agreement and motion for entry of judgment can be relied on at all, what those documents in the clerk's record indicate is that the trial court offered a "trial on the issue of waiver of acceleration," implicitly suggesting the trial court would not grant DHI's motion for summary judgment.
A party's consent to the trial court's entry of judgment waives any error, except for fundamental error, contained in the judgment, and that party has nothing to properly present for appellate review. See Gillum v. Republic Health Corp. , 778 S.W.2d 558, 562 (Tex. App.—Dallas 1989, no writ) ; see also Wagner v. Warnasch , 156 Tex. 334, 295 S.W.2d 890, 893 (1956) ; Dunman v. Hartwell , 9 Tex. 495, 496 (1853) ("[T]he appellants are at once confronted with the general principle that consent takes away error, and that a judgment by agreement or compromise cannot be impeached, unless for fraud, collusion, or like causes, none of which appear in this record or are alleged or assigned.") (Hemphill, C.J.). And it has long been the law that parties cannot consent to vest the appellate court with jurisdiction. E.g., Phillips v. Hill , 3 Tex. 397, 399–400 (1848) (Wheeler, J.).
The dissent argues that the trial court was not blind-sided because the parties "came to this agreement upon the request of the trial court" and that error was preserved because the agreed judgment recited that it "grants Deutsche Bank and SLS's motion and denies DHI's motion." In essence, the dissent concludes that, because the parties conspired with the trial court to place the issues in this case before us without the trial court having first substantively addressed the merits of those issues, the issues have been properly preserved and presented to this court. This conclusion upends the traditional purpose of error preservation, which at its core is meant to ensure that the trial court addresses and rules on the merits of an issue before this court may review it. Moreover, the position taken by the dissent not only misreads the record, but also ignores that two fundamental requirements for error preservation are both missing: (1) a complaint or objection made with sufficient specificity to make the trial court aware of such complaint and (2) an adverse ruling. Tex. R. App. P. 33.1(a)(1), (2).
As discussed above, there is no reporter's record and the only evidence of knowledge on the part of the trial court comes from the parties. Simply attributing a statement to the trial court in a Rule 11 agreement does not satisfy a party's obligation to preserve error. The dissent's reliance on and citation to a Rule 11 agreement filed by the parties is misplaced.
The agreed judgment itself does not preserve error. Although the judgment contains a statement that it grants Deutsche Bank and SLS's summary-judgment motion and denies DHI's cross-motion for summary judgment, those rulings are in an agreed judgment requested by the parties. DHI never objected to the ruling it asked the trial court to render or made clear its disagreement with the content and result of the judgment, either in the motion for entry of an agreed judgment or in the judgment itself. Though the dissent does not address the case, the holding of the supreme court in Fojtik controls here. 775 S.W.2d at 633. While there is a process by which a party who desires to start the appellate process may ask the court to render judgment, DHI did not make clear to the trial court that it disagreed with the content and result of the judgment. Id.
There is also a finding in the agreed judgment that DHI "preserved its right to challenge this judgment on appeal." However, this finding does not satisfy DHI's duty to comply with the requirements of Rule 33.1, because it does not establish that the trial court both (1) was aware of the specific ground of DHI's complaint of reversible error and (2) made an adverse ruling. See Tex. R. App. P. 33.1(a) ; see also Rohrmoos Venture , 578 S.W.3d at 479–80 ; Burbage v. Burbage , 447 S.W.3d 249, 258 (Tex. 2014) ("Preservation of error reflects important prudential considerations recognizing that the judicial process benefits greatly when trial courts have the opportunity to first consider and rule on error.").
Even if we were to subjectively accept that the trial court understood the intention of the parties, DHI still has not shown it received an adverse ruling from the trial court. With the exception of fundamental error, the parties and the trial court cannot agree for the appellate court to address an issue that (1) was not brought to the attention of the trial court and (2) on which the trial court did not make a ruling adverse to the appellant, i.e., the parties cannot agree to create appellate jurisdiction. See Jack M. Sanders Family Ltd. P'ship v. Roger T. Fridholm Revocable, Living Trust , 434 S.W.3d 236, 240 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ("[T]he question whether appellate jurisdiction exists cannot be waived or settled by agreement of the parties."); Anglo-Dutch Energy, LLC v. Crawford Hughes Operating. Co. , No. 14-16-00635-CV, 2017 WL 4440530, at *4 (Tex. App.—Houston [14th Dist.] Oct. 5, 2017, pet. denied) (mem. op.) ("[T]he parties’ stipulation cannot create appellate jurisdiction where none exists."); Consol. Cas. Ins. Co. v. Wade , 373 S.W.2d 841, 843 (Tex. App.—Corpus Christi 1963, writ dism'd) ("It has always been the law in the State of Texas that appellate jurisdiction may not be created by agreement."); see also In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003) (describing error preservation as "threshold to appellate review"); Hartwell , 9 Tex. at 496 (appeal cannot be sustained when appellants agreed and consented to judgment). Similarly, a trial court cannot agree to create appellate jurisdiction by consent. See Anglo-Dutch Energy, LLC , 2017 WL 4440530, at *4 (quoting Texaco, Inc. v. Shouse , 877 S.W.2d 8, 11 (Tex. App.—El Paso 1994, no writ) ); Welder v. Fritz , 750 S.W.2d 930, 932 (Tex. App.—Corpus Christi 1988, no writ) ("It is well settled ... that appellate jurisdiction cannot be created by consent, stipulation of the parties, or waiver, either by the court or by the litigants."). Other than the ruling the parties asked the trial court to render, the record reveals no adverse ruling.
Aptly described by the supreme court, the procedural rule requiring preservation of error in the trial court is "technical, but not trivial." Menchaca , 545 S.W.3d at 518 (quoting Burbage , 447 S.W.3d at 258 ). Concluding that DHI did not comply with Rule 33.1(a) and invited the trial court to sign the agreed judgment against DHI's interest without objecting to the content or the result, DHI has not preserved a complaint for appellate review.
III. CONCLUSION
We overrule DHI's three issues and affirm the judgment of the trial court as challenged on appeal. See Tex. R. App. P. 43.2(a).
( Zimmerer, J., dissenting).
DISSENTING OPINION
Jerry Zimmerer, Justice
The majority holds that DHI failed to preserve its complaints for appeal because: (1) the issues were not raised and ruled on by the trial court; and (2) DHI agreed to the judgment. Because this holding conflicts with binding authority from this court, I respectfully dissent. See Wells v. Wells , 621 S.W.3d 362, 366–68 (Tex. App.—Houston [14th Dist.] 2021, no pet.).
On appeal, DHI raises three issues:
1. Did the Trial Court err in denying DHI's Motion for Summary Judgment arguing the four-year statute of limitations barred foreclosure?
2. Did the Trial Court err in granting the Lenders’ Motion for Summary Judgment because the Lenders failed to prove abandonment of acceleration as a matter of law?
3. Did the Trial Court err in granting the Lenders’ Motion for Summary Judgment because there is a genuine issue of material fact on abandonment of acceleration?
The majority holds these issues were not preserved because the trial court was not made aware of its error. In coming to this conclusion, the majority holds that by agreeing to the judgment as to both form and substance, DHI waived any non-jurisdictional error because it essentially asked the court to engage in the error of which it now complains.
The record and binding authority from this court do not support the majority's conclusion. The record contains a Rule 11 agreement, which reflects that the parties agreed to a final summary judgment and to permit the appeal of the issue of "waiver of acceleration." The parties came to this agreement upon request of the trial court. Pursuant to the agreement the parties filed a joint motion requesting an agreed judgment in favor of the defendants on the parties’ cross motions for summary judgment. The agreed judgment recited that it "grants Deutsche Bank and SLS's motion and denies DHI's motion." The record reflects that the alleged error was raised in the trial court—in DHI's motion for summary judgment—and the trial court issued a ruling. Thus, error was preserved in the trial court. See Tex. R. App. P. 33.1. The trial court has not been blind-sided on appeal with error on which it did not have an opportunity to rule.
As to DHI's approval of the agreed judgment as to substance, ordinarily, such approval would not preserve any non-jurisdictional error for review. See, e.g., Reule v. Sherwood Valley I Council of Co-Owners, Inc. , No. 01-17-00593-CV, 2019 WL 4196898, at *2 (Tex. App.—Houston [1st Dist.] Sept. 5, 2019, no pet.) (mem. op.) (per curiam) ("To preserve error for appeal, a party who signs a judgment must specify that his agreement with the judgment is as to form, but not as to substance and outcome."); Mailhot v. Mailhot , 124 S.W.3d 775, 777 (Tex. App.—Houston [1st Dist.] 2003, no pet.) ("It is well-settled that a judgment entered on the agreement of the parties cures all non-jurisdictional defects."); Gillum v. Republic Health Corp. , 778 S.W.2d 558, 562 (Tex. App.—Dallas 1989, no writ) ("[A] party will not be allowed to complain on appeal of an action or ruling which he invited or induced.").
In this case, however, the agreed judgment provided that, "DHI has preserved its right to challenge this judgment on appeal." Because the parties agreed that DHI had the right to appeal the issue of waiver of acceleration, DHI did not waive its right of appeal by agreeing to the judgment as to form and substance. See Nelson v. Egyptian Magic Skin Cream, LLC , 05-20-00106-CV, 2021 WL 2470329, at *1 n.1 (Tex. App.—Dallas June 17, 2021, pet. filed) (mem. op.) (addressing merits of appeal when "agreed judgment provided that ‘Nelson does not waive his right to appeal the dismissal of his 2012–2015 bonus claims.’ ").
Our court recently addressed the merits in an appeal of an agreed judgment under similar circumstances. See Wells , 621 S.W.3d at 366–68. In Wells , the appellant consented to rendition of an Agreed Final Judgment, and his counsel signed the judgment below the statement, "AGREED TO FORM, APPROVED AND ENTRY REQUESTED." Id. at 366. We recognized that ordinarily the appellant would have waived all non-jurisdictional error by agreeing to the judgment in such terms. Id. In concluding that our court would consider the merits of the appeal, we noted that "[w]aiver is ‘an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.’ " Id. (quoting Sun Exploration & Prod. Co. v. Benton , 728 S.W.2d 35, 37 (Tex. 1987) ). We concluded that the appellant had not waived all bases of appeal and, if the parties intended such, they could have included such language in their agreement. Id. at 367.
In this case, not only have the parties not included waiver in their agreement, they specifically agreed to permit DHI to appeal the issue of waiver of acceleration. Following the precedent of Wells and Nelson , I do not agree that DHI waived error in the trial court or waived its right to appeal by agreeing to the judgment. I would therefore address the merits of DHI's appeal. Because the majority does not do so, I respectfully dissent.
OPINION ON REHEARING
Charles A. Spain, Justice
Appellant DHI Holdings, LP filed a motion for rehearing contending this court erred in determining that DHI failed to preserve error when it requested the trial court render a final summary judgment against its interest without appropriately making the trial court aware of its disagreement with the judgment. DHI raises four issues on rehearing: (1) there was no settlement of any of DHI's claims; (2) DHI made the trial court aware of its disagreement with the judgment; (3) DHI did not invite error by asking for the judgment to be rendered; and (4) the record shows the trial court held its ruling in abeyance after inviting the parties to reach agreement on the disposition of DHI's claims. We grant DHI's motion to address these contentions.
DHI agreed to dismiss without prejudice all of its claims against the Deutsche parties except for its claim that the deed of trust lien is void because the Deutsche parties did not foreclose within the four-year limitations period and did not waive or abandon acceleration. In its rehearing issue 1, DHI argues that the majority opinion rests on the incorrect assumption that it settled this claim. Though settlement broadly includes the "amicable settlement of controversies," Transport Ins. Co. v. Faircloth , 898 S.W.2d 269, 280 (Tex. 1995), we need not define "settlement" for purposes of this opinion. Whether we refer to a settlement agreement or a Rule 11 agreement, DHI agreed to the resolution of its claims against the Deutsche parties through the rendition of judgment against its interest, before any ruling by the trial court. Though DHI argues it received no consideration, DHI did receive a benefit. It avoided a trial and saved significant time and expense by settling.
In effect, DHI sought a permissive appeal, a procedure by which a trial court may permit an appeal from an interlocutory order that is not otherwise appealable. Tex. R. Civ. P. 168. This type of appeal is allowed by statute if (1) the order being appealed involved a controlling question of law as to which there is a substantial ground for difference of opinion, and (2) an immediate appeal from the order may materially advance the ultimate termination of the litigation. See id. ; Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d). However, the parties chose not to request permission to appeal under Texas Rule of Civil Procedure 168, and instead agreed to rendition of judgment. See Tex. R. Civ. P. 168.
In rehearing issues 2 and 3, DHI argues that it did not invite error and the trial court was aware of its disagreement with the judgment. DHI argues that the majority opinion, relying on First National Bank of Beeville v. Fojtik , mechanically applied a presumption that the only way to preserve error was specifying disagreement with the substance of the judgment in the agreed motion or the judgment itself. 775 S.W.2d 632, 633 (Tex. 1989). While we agree that Fojtik does not require a party to specify its disagreement in a motion, we are not persuaded by DHI's assertion that the trial court should review the entire record to determine the intent of the party seeking rendition of judgment. See id. Trial courts manage busy dockets. When parties settle or resolve their claims, a trial court is almost always required to sign a judgment or dismissal. The trial court has no affirmative duty to review the "record as a whole" to determine the underlying intent and position of the parties. See Tex. R. App. P. 33.1 (requiring preservation of complaints for appellate review to be made with sufficient specificity to make trial court aware of complaint unless specific grounds were apparent from context). To the extent that preservation of the specific ground was apparent from context, that context must relate to the present, not the past.
DHI also refers to the agreed judgment to which DHI agreed only as to form. However, the fact the final judgment states that DHI agreed "only as to form" tells this court, and the trial court, nothing about whether DHI made known its disagreement with the substantive relief it asked the trial court to render.
DHI repeatedly cites to its Rule 11 agreement with the Deutsche parties to demonstrate that it made the trial court aware of its disagreement with the judgment and preserved error. However, an agreement between parties "is not a plea, pleading, or motion" and "while filing a Rule 11 Agreement with the trial court is a requirement for enforcement, it is not in and of itself a request for enforcement or any other affirmative action by the trial court." Exito Elecs. Co., Ltd. v. Trejo , 142 S.W.3d 302, 305, 306 (Tex. 2004). The Rule 11 agreement was not included as part of the agreed motion for entry of judgment, nor does the record reflect that the terms of the Rule 11 agreement were brought to the attention of the trial court as part of its consideration of the agreed motion. See Tex. R. App. P. 33.1 ; Fojtik , 775 S.W.2d at 633 ; see also Hart v. Berko, Inc. 881 S.W.2d 502, 512 (Tex. App.—El Paso 1994, writ denied).
DHI also cites to the finding in the judgment which states DHI preserved its right to appeal. We address that contention and finding in the majority opinion.
DHI argues in rehearing issue 4 that the record reflects the trial court made a ruling on the merits before signing the agreed final judgment. Citing again to the Rule 11 agreement, DHI argues this court should infer that the trial court ruled against its motion for summary judgment and held that ruling in abeyance, suggesting the Rule 11 agreement was also a trial court order. We are aware of no authority to support the elevation of a Rule 11 agreement to the level of a court order.
Having granted the motion for rehearing and considered and overruled appellant's issues, we deny appellant's requested relief. The court's opinion and judgment remain unchanged.
SUPPLEMENTAL DISSENTING OPINION ON REHEARING
Jerry Zimmerer, Justice
For the reasons stated in my dissent on original submission, I would grant the relief requested in appellant's motion for rehearing. See DHI Holdings, LP v. Deutsche Bank Nat'l Tr. Co. as Tr. for Morgan Stanley ABS Capital I Inc. Tr. 2006-HE3, Mortgage Pass-Through Certificates, Series 2006-HE3 , No. 14-19-00991-CV, 2021 WL 5071472, at *5 (Tex. App.—Houston [14th Dist.] Nov. 2, 2021, no pet. h.) (Zimmerer, J., dissenting).