Full opinion text
ON APPELLANT’S MOTION FOR REHEARING [Filed March 14, 1994] CHAPA, Chief Justice. Appellant’s motion for rehearing is granted. Our opinion dated January 12, 1994 is withdrawn and the following is substituted. This is a personal injury lawsuit. Amie Marie Leal, appellee, filed suit against S & A Restaurant Corporation d/b/a Steak and Ale Restaurant (Steak & Ale), appellant, claiming serious injuries from an accident at Steak & Ale. After two days of a jury trial, the parties reached a settlement agreement and entered it of record in an out of court hearing. One month later, before the judgment was entered by the trial judge, appellant attempted to withdraw its consent to the agreement. Claiming newly found evidence, appellant filed a motion for new trial after the judgment was entered. The dispositive issues before this court are: 1) whether the trial judge rendered judgment at the time of the out of court settlement hearing on May 14, 1992; and, 2) whether the trial court committed error in failing to hear the alleged newly discovered evidence at appellant’s motion for new trial hearing. Tex.R.App.P. 90. This suit arose as a result of an alleged accident that occurred in the appellant restaurant and left appellee seriously injured. Apparently satisfied with appellee’s deposition, appellant never requested a medical examination of appellee. According to the record, discovery abuses resulted in sanctions eliminating six of appellant’s fact witnesses and its only expert witness. Under these circumstances, both parties announced ready for trial, a jury was picked, opening statements were made, and testimony was taken. After appellant was rigorously and extensively examined by attorneys for both sides, both parties announced to the court that a settlement had been reached and an out of court hearing was requested. The out of court hearing took place on May 14, 1992 and the following took place prior to the court approving the settlement: [PLAINTIFF ATTORNEY]:' Judge, I think it’s in her best interests. May I go ahead and dictate it? THE COURT: Yes. We need to go on the record. [PLAINTIFF ATTORNEY]: And I would say to you, just listen to this.. So that we have now asked the Court to approve a settlement in the total sum of $2 million. Before doing that, however, and we need to know that you understand it, that you want it settled, that you approve of it, and that you understand that forever concludes your claim against Steak and Ale. Do you understand all of that? MS. LEAL: Yes, sir. [PLAINTIFF ATTORNEY]: And do you ask the Judge and want the Judge to approve the conclusion and settlement? [emphasis added]. MS. LEAL: Yes, sir. THE COURT: You realize that once this Judgment is signed and I approve it, everything else, it’s full, final and complete? You can’t come back later and say, “Well, I made a mistake,” or “We should have gone for more”? Whatever? Do you understand? MS. LEAL: Yes, I do. THE COURT: Are the court costs going to be paid by Defendants? [PLAINTIFF ATTORNEY]: Yes. [DEFENSE ATTORNEY]: Normally we pay for the court costs. Yes, we’ll agree to pay the costs. THE COURT: You realize now, and you are sufficiently aware of the facts now, and there isn’t any question about your understanding the total settlement is $2 million? Do you understand that? MS. LEAL: Yes, sir. I understand that. Mike and I— THE COURT: And you want me to approve the settlement and sign the Judgment? MS. LEAL: Yes, sir. [PLAINTIFF ATTORNEY]: And you understand that once you settle the claim you will be responsible for paying all of your medical bills? THE COURT: And the attorneys’ fees come out of that. Do you understand? MS. LEAL: Yes, sir. THE COURT: I’ll approve the settlement. The jury was apparently dismissed thereafter. A month later and prior to the entering of the written judgment, appellant attempted to withdraw its consent to the settlement based on alleged newly discovered evidence in the form of a videotape allegedly depicting appel-lee wearing high heels and walking without apparent problems. At a hearing to enter judgment on June 19, 1992, the trial court entered judgment over objections from the appellant. Appellant argued for a continuance contending that judgment had not yet been rendered and that it was entitled to further time to prepare. On the other hand, appellee argued that the judgment had been rendered on May 14, 1992 and that the ministerial act of entering the judgment therefore could take place at any time without any particularly set notice. See Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292 (1953), overruled in part on other grounds, Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184, 191 (1955); State v. Macias, 791 S.W.2d 325, 328-29 (Tex.App.—San Antonio 1990, pet. ref'd). Apparently agreeing with the appellee, the trial court entered judgment making the implied finding that he had rendered the judgment on May 14, 1992 and was now merely entering the judgment, stating, “What is there to respond to, my signing of a Final Judgment?” At the motion for new trial hearing on July 25, 1992, the trial court refused to hear the alleged newly discovered evidence, stating, “Well, I approved the settlement. I also rendered Judgment,” in reference to the May 14, 1992 settlement hearing (emphasis added). Thus, the trial judge also made a specific finding that judgment was in fact rendered on May 14, 1992. Therefore, the critical issue before this court is whether the trial court rendered judgment on May 14, 1992 by applying the appropriate standard of review if the point was properly preserved and assigned. In Comet Aluminum Co. v. Dibrell, the Texas Supreme Court defined “rendition” by stating: In Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, at 1041 (1912), we stated that a judgment’s “rendition is the judicial act which the court settles and declares the decision of the law upon the matters at issue. ” [Footnote omitted.] And in Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, at 292 (1953), we quoted Freeman on Judgments as stating that a judgment is “ 'rendered’ when the decision is officially announced either orally in open court or by memorandum filed with the clerk. ” [Footnote omitted.] We then quoted with approval from Appeal of Bulkeley, 76 Conn. 454, 57 A. 112, 113, (1904) as follows: “A judgment is in fact rendered whenever the trial judge officially announces his decision in open court, or out of court signifies to the clerk, in his official capacity and for his official guidance— whether orally or by written memorandum — the sentence of the law pronounced by him in any cause.” Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58-59 (Tex.1970). In Escobar v. Escobar, after disapproving this appellate court substituting its judgment for that of the trial court, the Texas Supreme Court clearly established the standard for appellate review when dealing with the issue of rendition: The court of appeals correctly states that the decision whether an error in a judgment is judicial or clerical is a question of law. Finlay v. Jones, 435 S.W.2d 136 (Tex.1968). However, whether the court' pronounced judgment orally and the terms of the pronouncement are questions of fact. Wood v. Paulus, 524 S.W.2d 749, 755 (Tex.App. — Corpus Christi 1975, writ refd n.r.e.); Reavley and Orr, Trial Court’s Power to Amend Its Judgments, 25 Baylor L.Rev. 191, 203 (1973). The judicial or clerical question becomes a question of law only after the trial court factually determines whether it previously rendered, judgment and the judgment’s contents. Appellate courts may only review for no evidence and factual insufficiency of the evidence the trial court’s factual determinations on whether a judgment has been rendered. The court of appeals erred by substituting its judgment for the trial court’s determination that on December 21,1978, the trial court rendered judgment on tract 38 at 265.42 acres. [Emphasis added.] Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex.1986). Therefore the only standards of review this court can apply regarding the issue of rendition are factual and legal sufficiency of the evidence, if points of error are properly preserved and assigned with respect to these issues. It has long been the law that if no findings of fact and conclusions of law are filed or requested in a nonjury trial, it is presumed that the trial court made all necessary findings to support the judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). Unless the trial court’s findings are challenged by a point of error on appeal, they are binding upon the appellate court. Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.Civ.App.—Beaumont 1980, writ ref'd n.r.e.) (citing Zelios v. City of Dallas, 568 S.W.2d 173 (Tex.Civ.App.—Dallas 1978, writ ref'd n.r.e.)). “The trial judge, as the trier of fact, may draw reasonable inferences from the evidence, and his findings of fact may not be disregarded on appeal if the record contains some evidence of probative value from which these inferences may be drawn, or unless the findings are so contrary to the overwhelming weight of the evidence as to be manifestly wrong.” IFG Leasing Co. v. Ellis, 748 S.W.2d 564, 565-566 (Tex.App.—Houston [1st Dist.] 1988, no writ) (citing Nicholas v. Crocker, 687 S.W.2d 365, 367 (Tex.App.—Tyler 1984, writ ref'd n.r.e.)); Valencia v. Garza, 765 S.W.2d 893, 896 (Tex.App.—San Antonio 1989, no writ) (citing Corporate Personnel Consultants v. Wynn Oil Co., 543 S.W.2d 746, 748 (Tex.Civ.App.—Texarkana 1976, no writ)). Unchallenged findings occupy the same position and are entitled to the same weight as the verdict of a jury. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex.1986). The Texas Supreme Court has also held that: In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it. Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.1963). Since no findings of fact or conclusions of law were requested or filed in the case before us, it must be presumed that the trial court made all necessary findings to support the judgment. Roberson, 768 S.W.2d at 281. This record further indicated that the trial judge made an expressed finding on July 25, 1992 that he had rendered judgment on May 14, 1992. Since the appellant has not challenged any of the implied or expressed findings on appeal, they should be binding on this court and must be construed in harmony with and support of the judgment. Brown, 369 S.W.2d at 301; Wade, 602 S.W.2d at 349. “A point of error is an indispensable part of a brief and a mere abstraction or conclusion stated in lieu of a point of error in briefing is not acceptable when no alleged error of the trial court is shown therein.” Blackburn v. Manning, 307 S.W.2d 347, 351 (Tex.Civ.App.—Amarillo 1957, writ dism’d w.o.j.); see also Smith v. Valdez, 764 S.W.2d 26, 27 (Tex.App.—San Antonio 1989, writ denied). An appellant must also “present in his brief a discussion of facts or authorities relied upon to maintain his so-called points of error.” Smith, 764 S.W.2d at 27. Moreover, an appellate court is not authorized to reverse the judgment of the trial court in the absence of a properly assigned point of error. Prudential Ins. Co. of America v. J.R. Franclen, Inc., 710 S.W.2d 568, 569 (Tex.1986); Gulf Consolidated Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex.1983). It should be further noted that an issue may not be raised for the first time on appeal that was not previously made known to the trial court below. Guzman v. Solis, 748 S.W.2d 108, 111 (Tex.App.—San Antonio 1988, writ denied). The record here reflects that appellant failed to present either the factual or legal sufficiency argument in any motion before the trial court, including its motion for new trial. See Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822-23 (Tex.1985); Tex.R.Civ.P. 324(b)(2). Appellant’s brief further fails to present a clear point of error on either legal or factual sufficiency and fails to present a “discussion of the' facts and the authorities relied” upon to maintain such points. Tex.R.App.P. 74(f); Smith, 764 S.W.2d at 27. In fact, nowhere in appellant’s briefs are the time-honored, repeatedly cited definitions of legal or factual sufficiency standards of review found. Consequently, nowhere in appellee’s reply briefs is there a response to either a legal or factual sufficiency argument. On appeal, aside from constitutional challenges regarding the motion for new trial hearing, appellants presented points of error contending that the court erred as a matter of law in rendering the judgment at the June 19, 1992 hearing to enter judgment after consent was withdrawn; that the rendered judgment materially differed from the settlement agreement in that “On May 14 Steak & Ale Understood That It Was Agreeing to Pay $2 Million in Exchange for a Take-Nothing Judgment”; that mere approval of a settlement agreement at the May 14, 1992 hearing does not constitute rendition of a judgment; and that appellee should not be permitted to hide her misrepresentations behind a claim of ambiguity in her condition. Texas Rule of Appellate Procedure 74(d) provides in relevant part: A point [or error] is sufficient if it directs the attention of the appellate court to the error about which complaint is made. In civil cases, complaints that the evidence is legally or factually insufficient to support a particular issue or finding, and challenges directed against any conclusion of law of the trial court based upon such issues or findings, may be combined under a single point of error raising both contentions if the record references and the argument under the point sufficiently direct the court’s attention to the nature of the complaint made regarding each such issue or finding or legal conclusion based thereon. [Emphasis added.] Appellant nevertheless suggests that his brief should be liberally construed to raise the legal and factual sufficiency points and erroneously relies on Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), as authority. In its point of error, appellant here complains “The so-called ‘Agreed Judgment’ is void and must be vacated because it contradicts the parties’ settlement agreement and was rendered without Steak & Ale’s consent.” In Pool, the point of error in question stated: The trial court erred in entering judgment for the plaintiffs, because the jury’s finding, in answer to Special Issue No. 6, that Ronnie Pool was not at all negligent in speeding, having a medically tested blood-alcohol level of .119, and failing to wear his seatbelt while driving under those conditions after midnight is so against the great weight and preponderance of the evidence as to be manifestly unjust. [Emphasis added]. Pool, 715 S.W.2d at 632. The supreme court then concluded that: It is obvious from the discussion under point of error 11, as well as the wording of the point, that Ford Motor Company intended it to be a complaint of factual insufficiency. Thus, we remand to the court of appeals for it to determine, pursuant to the correct standard, whether the jury’s negative answers as to Pool’s alleged speed and intoxication were against the great weight and preponderance of the evidence. [Emphasis added]. Id. at 633. The distinctions between the point of error before this court and that in Pool are clearly obvious. Where the appellant in Pool clearly notified the appellee that he was complaining about factual sufficiency using the factual sufficiency language “against the great weight and preponderance of the evidence,” the appellant before this court made no such attempt. The whole purpose for a point of error is obviously to notify not only the court, but the appellee of what the appellant is specifically complaining of in order to give the appellee a fair opportunity to respond and notify the court of what appellate standards to apply. Thus, where the appel-lee and the court are not given a fair notice, it is improper to reverse on such an obscure basis. See Prudential Ins. Co., 710 S.W.2d at 569; Gulf Consolidated Int'l, Inc., 658 S.W.2d at 566. In a recent opinion, this court stated that an appellant complaining “that the trial court erred in rendering judgment against him because there was no breach of contract between him and [the appellee]” was a “no evidence” point. Box v. Flynn, 870 S.W.2d 585, slip op. at 15 (Tex.App.—San Antonio 1993, n.w.h.). Therefore, even if the foregoing discussion on proper appeal of findings of fact and properly assigned points of error is disregarded, all the members of the panel, including the dissent, agree that only a legal sufficiency argument can be considered under the circumstances of this appeal upon the most liberal construction possible of appellant’s brief. Pool, 715 S.W.2d at 632. In considering a “no evidence” or legal sufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965). Relief to the appellant is still inappropriate under the facts of this case, upon a proper application of the legal sufficiency standard of review. In Escobar, the critical issue was whether judgment was rendered by one judge who noted on December 21, 1978 that “tract 34 and 38 [were] awarded as per the Trimble map” on the docket sheet or by a subsequent written judgment which specifically set out that lot 38 contained 315.42 acres of land. According to the record, one presiding judge on December 21, 1978 entered the following on the docket: “tracts 34 and 38 awarded as per the Trimble Map” when the Trimble Map showed that lot 38 contained 265.42 acres of land. A final written judgment was entered at a later date showing lot 38 containing 315.42 acres of land. A different trial judge later granted a nunc pro tunc judgment correcting the acreage, concluding thereby that rendition as to lot 38 had taken place on December 21, 1978 by merely looking at the docket entry. Without following any particular standard of review, this court erroneously substituted its judgment for that of the trial judge, holding that rendition had not taken place on December 21,1978 but rather on the later date when the written judgment was entered. Escobar v. Escobar, 699 S.W.2d 256, 258 (Tex.App.—San Antonio 1985). The Texas Supreme Court reversed stating that this court had no authority to substitute its judgment for that of the trial court, that the issue of when a judgment was rendered and the terms thereof was a fact issue to be resolved by the trial judge, and that this court could only review the issue on legal and factual sufficiency points of error. Escobar, 711 S.W.2d at 232. The court also concluded that the docket entry alone was some evidence of rendition, stating: We find some evidence to support the trial court’s finding. The judge viewed the docket entry of December 21, 1978 which stated: “tracts 34 and 38 awarded as per Trimble map.” Docket entries aré some evidence of a rendered judgment and its contents. Port Huron Engine & Thrasher Co. v. McGregor, 108 Tex. 529, 131 S.W. 398 (1910). Escobar, 711 S.W.2d at 232. In Samples Exterminators v. Samples, 640 S.W.2d 873 (Tex.1982), the Texas Supreme Court held that judgment was rendered after a settlement agreement similar to the one before this court was dictated into the record and wherein the trial court stated: It appearing to the Court that all of you did agree in open court to this settlement, the Court approves the settlement made in open court and orders all parties to sign any and all papers necessary to carry out this agreement that was made and dictated into the record. Id. at 874. In Galerie D’Tile, Inc. v. Shinn, 792 S.W.2d 792 (Tex.App.—Houston [14th Dist.] 1990, no writ), the court held that when the trial judge intends to render judgment is critical to the determination of when rendition actually takes place. Id. at 794; see also Comet Aluminum Co. v. Dibrell, 450 S.W.2d at 58-59; Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040, 1041 (1912). The court also concluded that even though the trial judge never approved the dictated settlement agreement, rendition nevertheless had taken place when the trial court stated the following at the end of an agreed settlement hearing similar to the one before this court: “Signed and entered this, the 19th day of October, 1987.” Galerie D’Tile, Inc., 792 S.W.2d at 794. In the ease before us the trial judge made it clear that his intent was to render judgment on May 14, 1992, making unchallenged implied and express findings of rendition on that date. The settlement agreement hearing took place only after the parties had announced ready for trial, had picked a jury, had made opening statements, and had presented testimony including the vigorous examination of the claimant by both parties. The settlement hearing on May 14, 1992 clearly established that the settlement was for the amount of $2,000,000; that appellee, and consequently everyone at the hearing, clearly understood that the case was all over (“full, final, and complete’’) and that thereafter appellee could not come back seeking further recovery; that the medical bills and attorney fees would be paid out of the settlement amount; that appellee was asking “the Judge and want[ed] the Judge to approve the conclusion and settlement" (emphasis added); that appellant agreed to pay all the costs of court; and that the trial judge approved the settlement. Moreover, the jury was dismissed after the out of court settlement agreement hearing. Once a jury is selected and evidence is taken, a jury is dismissed upon 1) a motion for directed verdict under Texas Rule of Civil Procedure 268; 2) a motion for non-suit under Texas Rule of Civil Procedure 162; 3) a motion for mistrial; 4) a motion under Texas Rule of Civil Procedure 289 for juror-illness, accident or calamity, or a hung jury; and 5) disposition of the case. Here, clearly the jury was dismissed only because the case was disposed of. We note that on appeal, appellant concedes that “On May 14 Steak & Ale Understood That It Was Agreeing to Pay $2 Million in Exchange for a Take-Nothing Judgment.” Thus, the record indicates that on May 14,1992, in addition to the trial judge, the appellee, and counsel for both sides, appellant also intended final disposition of the case by way of the settlement agreement. When we consider that the Texas Supreme Court concluded in Escobar that a judge merely looking at a docket entry of another judge was some evidence of a rendition, this court cannot correctly hold that all the foregoing is no evidence of a rendition on May 14, 1992. Escobar, 711 S.W.2d at 232. To hold otherwise under these circumstances would not only bring havoc upon the finality and sanctity of judgments, but would send a disturbing message to plaintiffs and defendants alike who find themselves unprepared, weakened by sanctions, or faced with a selected jury not to their liking. The extent of the havoc is more evident when considered in the reverse. Assuming that appellee, under these identical circumstances, would have been in the position of the appellant demanding that this court find no evidence of rendition on May 14, 1992. This court would be forced to readily conclude as it does now, that there is evidence of rendition on that date, when faced with all the circumstances of this case and a statement of facts wherein she was specifically told in no uncertain terms that it was all over as far as she was concerned, with language such as: [W]e need to know that you understand it, that you want it settled, that you approve of it, and that you understand that forever concludes your claim against Steak and Ale. Do you understand all of that? And do you ask the Judge and want the Judge to approve the conclusion and settlement ? You can’t come back later and say, ‘Well, I made a mistake,” or We should have gone for more”? Whatever? Do you understand? You realize now, and you are sufficiently aware of the facts now, and there isn’t any question about your understanding the total settlement is $2 million ? Do you understand that? And you want me to approve the settlement and sign the judgment? And you understand that once you settle the claim you will be responsible for paying all of their medical bills ? And the attorneys’ fees come out of that. Do you understand? Certainly, no reasonable, prudent, or serious argument could be made that there can be rendition as to one party but not as to the other. This obviously unjust contradiction did not escape the trial judge who noted during the hearing to enter judgment while addressing counsel for appellant, “[W]hat if the lady had gotten worse? Would you have paid more?” The appellant misplaces reliance upon cases that are distinguishable. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976) (holding that there was no rendition since the trial judge clearly stated he was taking the motion under advisement to dispose of it in the future); Formby’s KOA v. BHP Water Supply Corp., 730 S.W.2d 428, 430 (Tex.App.—Dallas 1987, no writ) (holding that there was no rendition where the record clearly reflected that the agreement was “tentative” and that the instruments would be later drawn to set out in particular those aspects that need “maybe some refinement”); Intercostal Warehouse Corp. v. Clear Lake Nat’l Bank, 795 S.W.2d 294, 295-96 (Tex.App.—Houston [14th Dist.] 1990, writ dism’d w.o.j.) (holding that there was no rendition where the record reflected that the judgment and other document were to be prepared and presented to the court “within 30 days” which would include what the judge described as “various pending things out there”); Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970) (holding that rendition as to damages and attorneys fees occurred when the court made an oral pronouncement only as to damages and attorney fees and that rendition as to pre-judgment interest occurred when the court later made a written pronouncement for the first time as to pre-judgment interest). Thus, even ignoring whether appellant has properly challenged the trial court’s findings of fact and properly preserved and assigned a legal sufficiency point as to rendition, the point is nevertheless rejected upon considering only the evidence favorable to the decision of the trier of fact and disregarding all evidence and inferences to the contrary. Davis, 752 S.W.2d at 522; Garza, 395 S.W.2d at 824. Appellant also complains that the trial court erred in refusing to hear fact evidence at the motion for new trial hearing. This allegation is supported by the record. The Texas Supreme Court has repeatedly held that the trial court must at least hear the newly discovered evidence on which the trial court’s decision must ultimately be based. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983); Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex.1979). In Hensley, the supreme court stated, Necessarily, when a motion presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence when the Motion for New Trial alleges facts, which if true, would entitle the movant to a new trial and when a hearing for such purpose is properly requested. Id. at 618. Besides establishing that the trial court is “obligated” to hear the new evidence before ruling on the motion for new trial, the supreme court in 1979 said, In passing on a motion for new trial on the ground of newly discovered evidence, the court will take into consideration the weight and the importance of the new evidence and its bearing in connection with the evidence received at trial. Jackson, 660 S.W.2d at 809. It is clear that the standard for the reviewing the granting or denial of a motion for new trial allows the trial court broad discretion. Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988). The trial court, however, must at least hear the new evidence. Jackson, 660 S.W.2d at 809; Hensley, 583 S.W.2d at 618; Cecil v. Smith, 804 S.W.2d 509, 511 n. 5 (Tex.1991) (trial court obligated to hear evidence after filing requirements of Tex.R.Civ.P. 329b were met). Because appellant was not allowed the first step of having the trial judge hear the newly discovered evidence, appellant was not afforded the opportunity to address the next step, the standards required for the granting of a new trial. Fish v. Bannister, 759 S.W.2d 714, 722 (Tex.App.—San Antonio 1988, no writ). In Fish, we said to obtain a new trial based on newly discovered evidence, the movant must establish the following: 1.Admissible, competent- evidence must be introduced on the hearing of the motion for new trial showing the existence of the newly discovered evidence relied upon; 2. Moving party must show that neither the party nor attorney had any notice of the existence of such evidence prior to the time of trial; 3. Moving party must show that due diligence had been used to procure the evidence prior to trial; 4. Moving party must show that the evidence is not merely cumulative to that already given and does not end only to impeach the testimony of the adversaries; 5. Moving party must show that the evidence would probably produce a different result if a new trial were granted. Bannister, 759 S.W.2d at 722. Appellee contends upon rehearing that the trial judge was not required to hear the alleged newly discover evidence because the record supports an implied finding by the trial court of lack of due diligence on the part of the appellant. However, we hold that under the holdings set out above, the determinations of fact to be made by the trial judge under Bannister cannot take place until the trial judge has heard the alleged newly discovered evidence. Further, this court must always remain cognizant that it is not authorized to substitute its judgment for that of the trial court. Escobar, 711 S.W.2d at 232. Therefore, since the trial judge refused to hear the newly discovered evidence, we sustain appellant’s point of error “and remand the case to the trial court with instructions to conduct a hearing on [appellant’s] Motion for New Trial.” Hensley, 583 S.W.2d at 619. Having concluded that judgment was rendered on May 14, 1992 and that the cause must be abated for a hearing on appellant’s motion for new trial, we see no necessity in addressing the remaining issues. [Filed March 25, 1994] Before CHAPA, C.J., and GARCIA and BLAIR REEVES, JJ. .RULE 11. AGREEMENTS TO BE IN WRITING Unless 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. . Since there is no point of error before this court in this regard, it must be assumed that appellant intentionally failed to request an examination for its own reasons. . There is no point of error before this court pertaining to the sanction imposed by the court, and we must therefore presume that the court did not err in imposing the sanctions. . Implicit in the supreme court opinion is that the legal and factual sufficiency points of error were properly preserved and properly assigned. . Implicit in the supreme court’s opinion is that the legal and factual sufficiency points of error were properly preserved and properly assigned. . However, this record reflects that 1) appellant failed to notify the trial court at the hearing on May 14 that the settlement agreement included a take nothing judgment, and 2) at no time has appellant offered to pay the $2,000,000 and move the trial judge to modify the judgment to reflect a take nothing judgment. Moreover, a take nothing judgment in favor of appellant and against appellee with nothing in return would most certainly not be in compliance with the settlement agreement that even appellant concedes it agreed to. . Justice Orlando Garcia not participating in dissenting opinion.
BLAIR REEVES, Justice, dissenting. I agree with the majority that the trial court should have considered the evidence Steak & Ale tendered at the motion for new trial. I would hold the agreed judgment void as a matter of law, however, because Steak & Ale revoked the settlement agreement before judgment was rendered. Additionally, the judgment should not be enforced because it does not comply strictly with the agreement. FACTS During the trial on the merits, Annie Marie Leal sat in a wheelchair and acted' as if she was in constant and intense pain. Leal testified that as a result of her alleged injuries caused by the negligent acts of a Steak & Ale employee: (1) she cannot get out of her wheelchair without assistance; (2) she suffers constant, • excruciating pain; (3) she cannot walk without the use of a walker or personal assistance; (4) she cannot do her cooking, house cleaning, and other household chores; and (5) her dressing, bathing, and bathroom needs require her to use special equipment such as a raiser on the commode seat and tub bench for bathing. Ms. Leal’s doctor, Dr. Stephen Early, testified that at “this point in time” (a week before trial) she was a partial paraplegic and, in his opinion, would not improve, with her condition deteriorating with time. Dr. Early estimated her future medical care would cost $2.2 million. Dr. Apex Willingham, Medical Director at Warm Springs Rehabilitation Center, testified that Ms. Leal suffers from chronic pain that would require an ongoing rehabilitation program and, in time, would require attendant care. The doctor testified that Leal could not dress herself except while lying down or using adaptive equipment. Dr. Will-ingham further testified that Ms. Leal needed a wheelchair when she came for treatment, and that her condition had deteriorated since her release from Warm Springs Rehabilitation Center. The testimony of Ms. Leal and her medical witnesses convinced Steak and Ale to settle. One month later, a member of the legal staff of the firm representing Steak & Ale happened to see Ms. Leal walking normally, without apparent difficulty, in three-inch high heels. Steak & Ale hired a private investigator and videotaped Ms. Leal’s activities. These tapes show Ms. Leal walking normally without apparent difficulty, driving an unmodified automobile, shopping, and carrying a wash basket full of clothes. Not once during the five-day surveillance did any of the private investigators see Ms. Leal walk with the assistance of a cane, walker, or wheelchair. In fact, the only time Ms. Leal was observed limping was when she entered or left the Warm Springs Rehabilitation Center. The following dialogue occurred at the settlement hearing on May 14, 1991: Mr. MALONEY: And I would say to you, just listen to this. So that we have now asked the Court to approve a settlement in the total sum of $2. million_ THE COURT: You realize that once this judgment is signed and I approve it, everything else, it’s full, final and complete? ... I’ll approve the settlement. MR. PLUNKETT: There is a confidentiality agreement among the parties, the attorneys. None of us will disclose it. THE COURT: And I am not going to disclose it. MR. MALONEY: And I think there should be. And confidentiality means we don’t discuss the sums that are terminated, and I think that’s in your best welfare, for a lot of reasons. And I really recommend that you keep it that way. In effect, what that means, the judge is saying, “Don’t discuss the terms of it.” THE COURT: Okay. (Emphasis Added). On June 18, 1991, Steak & Ale contacted the attorneys for Ms. Leal and advised them Steak & Ale was revoking its consent to the settlement agreement. Less than 24 hours later the trial court entered a purported agreed judgment in favor of Leal for $2 million. Steak & Ale objected to the judgment on the basis that it had revoked the agreement, that it was not given reasonable notice of the judgment hearing, and that it wanted to present evidence of fraud perpetrated by Ms. Leal. JUDGMENT A party may revoke its consent to settle a case anytime before judgment is rendered. Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex.1982). Consequently, if the trial judge did not render judgment on May 14, Steak & Ale had the unequivocal right to withdraw from the settlement agreement. Ms. Leal asserts that judgment was rendered on May 14th and, in support thereof, cites the trial judge’s statement at the June 19th hearing whereby the judge recalled that he had rendered judgment on May 14th. The trial judge may have intended to render judgment on May 14th but he certainly did not announce a rendition. See Intercoastal Warehouse Corp. v. Clear Lake Nat’l Bank, 795 S.W.2d 294, 296 (Tex.App.—Houston [14th] Dist.1990, writ dism’d w.o.j.). The judge merely announced his approval of the settlement. When asked to approve the settlement for $2 million, the court admonished Ms. Leal that “once this judgment is signed and I approve it, everything else, it’s full, final and complete.” The court asked Ms. Leal, “And you want me to approve the settlement and sign the Judgment ?” The trial judge concluded, “I’ll approve the settlement. ” It is apparent to me that the judge was only approving the settlement while postponing rendition of judgment for a later date. His intention to render at some future time is no rendition. See Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976). Moreover, the judgment entered June 19th did not follow the conditions of the settlement agreement. A final judgment which is founded upon a settlement agreement reached by the parties must be in strict or literal compliance with that agreement. Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex.1976); Liberty Mut. Ins. Co. v. Auyon, 709 S.W.2d 698, 700 (Tex.App.—San Antonio 1986, no writ). The court has no power to supply terms, provisions, or essential details not previously agreed to by the parties. Delta Drilling Co. v. Cruz, 707 S.W.2d 660, 669 (Tex.App.—Corpus Christi 1986, writ refd n.r.e.). Where the judgment fails to conform' to the settlement agreement, the judgment will not be enforced. Delta Drilling Co., 707 S.W.2d at 669. The parties’ settlement agreement neither stipulated that a judgment would be entered against Steak & Ale nor did the agreement stipulate Steak & Ale’s liability. It is obvious from the testimony that the parties contemplated either a take nothing judgment in favor of Steak & Ale or a dismissal. A monetary judgment could not be rendered under this settlement agreement. Additionally, the agreement required that the amount of the award could not be divulged. Consequently, the judgment could not disclose the amount of the settlement, but it did. Because the final judgment was not in strict or literal compliance with the agreement, it should not be enforced. Upon revocation of the agreement before entry of judgment, the trial court was left with no other option than to set aside the agreed judgement. Ms. Leal’s recourse is governed by the law of contracts which must be determined in a separate suit. See Stewart v. Mathes, 528 S.W.2d 116, 118 (Tex.Civ.App.—Beaumont 1975, no writ). I am of the opinion that as a matter of law Steak & Ale revoked the settlement agreement prior to the rendition of the agreed judgment. Consequently, the judgment is void. For these, reasons, I dissent. . Assigned to this case by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1988).
HARDBERGER, Justice, joined by CHAPA, Chief Justice, and LOPEZ and STONE, Justices, concurring in denial of en banc consideration of appellant’s motion for rehearing. [Filed August 19, 1994] I concur in this court’s decision not to rehear this case en banc. This opinion respectfully responds to the ably written dissent on our en banc decision. While I agree with some of the dissent there are a few, but important, differences. The summary of my concurrence, joined in by the other undersigned justices, is as follows: 1. The trial court rendered judgment at the May 14, 1991 hearing. The word “render” was not used, but it did not have to be. There is no “magic” word. 2. The effect of the rendered judgment was to make the settlement final, under ordinary circumstances. 3. There is sound public policy, and much written law, that promotes finality of settlements, under ordinary circumstances. 4. Steak and Ale requested and was entitled to, a hearing on their motion of newly discovered evidence which they say, and have some evidence to support, takes this settlement out of the “ordinary circumstance.” We have ordered that hearing. 5. If Steak and Ale can prove at the hearing that a fraud was committed, the settlement and the judgment should be set aside and a new trial granted. 6. If they cannot show this, the settlement stands and the judgment should be enforced. 7. This court is not the appropriate court to hold a fact finding hearing about whether a fraud was committed. That is the job of the trial court. 8. I recognize, as the dissent points out, that there is already “some evidence” of fraud in the record. But “some evidence” does not necessarily mean it happened. A cornerstone of the law is that due process demands a hearing before a conviction. Certitude is worth a little delay. 9. An en banc hearing, which is very rare, is inappropriate in this case at this time when there hasn’t even been a hearing in the trial court. 10.Steak and Ale wanted a hearing on their newly discovered evidence to support their motion for new trial. They were correct and they shall have that hearing. All of the above points will be discussed in the following pages, with the appropriate legal authority. Settlements and Consent Judgments There are important public policies which support settlements in general and consent judgments in particular. Those policies include discouraging costly litigation, promoting peace and harmony in society, easing the burden on our courts, avoiding the uncertainty of submitting a dispute to a jury, and finally in buying peace. See, e.g., Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 4 (Tex.1986); Olivas v. State Farm Mut. Auto Ins. Co., 850 S.W.2d 564, 567 (Tex.App.—El Paso 1993, writ denied); Hernandez v. Telles, 663 S.W.2d 91, 93 (Tex.App.—El Paso 1983, no writ); Alvarez v. Employers Fire Ins. Co., 531 S.W.2d 218, 221 (Tex.Civ.App.—Amarillo 1975, no writ); 12 Tex.Jut.3d Compromise and Settlement § 3 (1993). Many defendants find that bringing eases to an end, i.e. buying some peace, is worth a great deal. In fact that is the whole point in having trial courts render consent judgments. See, e.g., Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). The parties desire the finality of a judgment. Traditionally, consent judgments have been judicially favored. See, e.g., Irwin v. Huey, 23 S.W. 324, 325 (Tex.Civ.App.1893, no writ). Private parties may settle lawsuits without court approval. Ibarra v. Texas Employment Comm., 823 F.2d 873, 878 (5th Cir.1987). The law only requires that the parties reduce their settlements to writing or that they be made in open court. Tex.R.Civ.P. 11; Kennedy v. Hyde, 682 S.W.2d 525 (Tex.1984). The purpose for conducting the hearing in this ease was to have the court render a consent judgment in order to put an end to the litigation. That is exactly what the court did. Steak & Ale now claims that the court did not render a consent judgment. However, no matter which party is trying to escape the effect of a consent judgment the rules regarding the finality of settlements and consent judgments benefit all parties. Consent judgments favor everyone. Neither plaintiff nor defendant are well served by walking away from settlements not knowing if they are going to be revoked the next day. This is a case where the defendant feels that it was treated unfairly and wants to withdraw from the settlement. But it is equally commonplace for plaintiffs to settle their case one day and after consulting with well-meaning friends and relatives decide the next day that they were underpaid and want to withdraw their consent to settlement. The general rule is that once a judgment is rendered on a settlement, it is final. This is not to say, and the majority does not say, that the consent judgment may never be overturned. It can be. Fraud will overturn it. Where a party to a contract perpetrates a fraud, there is no meeting of the minds. It is an agreement built on deliberately false premises and once proved the law will show it no mercy. Judgment Was Rendered at May 14 Hearing Under Texas law, a litigant may revoke his consent to settle a case at any time before judgment is rendered. Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex.1982). Judgment is rendered whenever the judge officially announces his decision in open court, or files a memorandum with the clerk. Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 59 (Tex.1970). Entry of judgment is a ministerial act which memorializes the judicial act of rendition. Flores v. Onion, 693 S.W.2d 756, 758 (Tex.App.—San Antonio 1985, no writ). At issue is whether the trial judge rendered judgment at the time the settlement agreement was dictated into the record. The dissent is essentially contending that, because the trial judge never said “I render,” no rendition occurred. However, Texas law does not require such magic words. Giles v. Missouri-Kansas-Texas R.R. Co., 712 F.Supp. 542 (E.D.Tex.1989); Samples, 640 S.W.2d at 875. The trend of the law is away from the use of “magic words.” When deciding whether a consent judgment was rendered a reviewing court looks to the entire record of the hearing and the judge’s words are interpreted in the context of the hearing. See, e.g., Kelley v. Pirtle, 826 S.W.2d 653, 654 (Tex.App.—Texarkana 1992, writ denied); Giles, 712 F.Supp. at 545. The dissent dismisses the Giles ease. It is clearly on point, and remarkably similar to this case. Giles was also a personal injury suit. The ease was pending before the 336th District Court in Grayson County, Texas when on March 28, 1988, lawyers for both sides announced that they had settled the case. The settlement was dictated into the record whereupon the following exchange took place: MR. WOLFE [counsel for defendant]: Judge, if I could just ask one or two questions. THE COURT: Please go ahead, sir. MR. WOLFE: Mr. Giles, as we normally ask in these situations: You don’t have any questions, do you, sir, in regard to the terms of this settlement? Is there anything about it that is unclear to you, as far as the terms of the settlement? MR. GILES: I understand. MR. WOLFE: And, of course, you understand this is in the nature of a final settlement, regardless of what may happen in the future in regard to yourself. That is, if your condition should not improve or anything else should happen after this date, it would then be too late to come back in and reopen the matter and have any further action taken on it. Do you understand that? MR. GILES: Yes, sir. THE COURT: And are you asking the Court to approve the settlement the way that it is entered into here? MR. GILES: Yes, sir. MR. WOLFE: I believe that’s all I have. THE COURT: All right. The Court will approve the settlement then. Giles, 712 F.Supp. at 544 (emphasis added). Subsequently, Mr. Giles spoke to some Mends who expressed the opinion that he had not received a fair' settlement. Giles decided to withdraw from the settlement. Giles nonsuited the state court action and refiled the suit in federal court. The defendant filed a summary judgment motion asserting that the state district court had rendered judgment at the hearing on the settlement. The federal court agreed, and after reciting the above quoted exchange and reviewing the identical cases cited by the dissent stated that: “Texas cases leave little doubt that the court in Grayson County rendered judgment in this case on March 28, 1988.” Id. In reaching its conclusion that judgment was rendered the Giles court made the following observations which are particularly relevant to the present case: There is no material difference between the words “I render judgment based on the agreements” and “the Court will approve the settlement.” Texas law does not require specific words of rendition, but merely states that “rendition of judgment is the pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication....” Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, 292 (1953), overruled on other grounds, Jackson v. Hernandez, 155 Tex. 249, 285 S.W.2d 184, 191 (1955). Nor is any uncertainty raised by the use of the word “approve.” Texas procedural rules require formal “approval” of settlements only in a small number of instances, notably class actions and cases involving minors. See Tex.R.Civ.P. 42(e), 44(2). The entire proceeding in chambers would therefore become meaningless if the word “approve” were construed to effect anything other than a rendition. It is additionally clear that the parties, as well as the court, recognized the nature of the proceeding in chambers; as part of the settlement Giles “hereby tenders his resignation,” and understood that he could not reopen the matter “after this date.” Giles, 712 F.Supp. at 545. In the instant case, as in Giles, the same words were used, and the only thing left to do was for the parties to draw up the paperwork and the court to sign it. The great majority of settlement hearings in this state are ended by the words “The court will approve the settlement,” or “The Court approves the settlement.” The dissent may be technically correct in saying that it is more proper to say “I render judgment.” Render is a word more written than spoken though. It usually appears for the first time in the written document that memorializes the approved settlement. Whatever words are used though the question is one of finality. Substance over form. “Magic words” have been in a long retreat for several years. The record in this case is clear that the trial court did in fact render judgment at the May 14, 1991 hearing. Although, the incantation “I render judgment” is absent, the trial court’s statement when read in the context of the record as a whole demonstrates that the trial court intended and in fact did render judgment. In the context of this case, there is no material difference between the words “I render judgment” and “I’ll approve the settlement.” The trial judge had the whole matter before him when the settlement was dictated into the record. There were no matters left hanging. There was nothing more left to decide and the case was concluded. Rendition occurred. The dissent seems to imply that this court does not like the rule of law that if a party withdraws its consent prior to entry of judgment then a court cannot render a consent judgment. See Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex.1983); Samples Exterminators v. Samples, 640 S.W.2d 873, 874-75 (Tex.1985). There is no question that we are bound to follow the law as set forth in the preceding cases. But the. converse of the foregoing rule is also true. Once a consent judgment has been rendered a party cannot withdraw its consent to that judgment. Whether we like this rule of law or not, the Supreme Court has announced this rule also, and we have to follow it. See Quintero, 654 S.W.2d at 444; Samples, 640 S.W.2d at 874-75; Burnaman, 240 S.W.2d at 291; Ayala v. Minniti, 714 S.W.2d 452, 457 (Tex.App.—Houston [1st Dist.] 1986, no writ). Fraud I disagree with the dissent for another fundamental reason. The dissent assumes fraud despite the fact that there has been no evidentiary hearing and no judicial determination of fraud. In fact the entire dissent is premised on the notion that fraud has been established. Appellee, Annie Leal,’ denies the fraud. Appellant, Steak and Ale, says there is fraud. So the matter is in dispute. There has been no evidentiary hearing on the issue of fraud. I refuse to ignore traditional judicial process and make factual findings in the absence of an evidentiary hearing at the trial court level. See Hensley v. Salinas, 583 S.W.2d 617 (Tex.1979). The people of Texas through their constitution and legislature have determined that the trial court is the proper initial forum for resolving factual disputes. Tex. Const. art. 5 §§ 6, 8; Tex.Gov’t Code Ann. §§ 22.220, 24.007-24.008 (Vernon 1988). That is why this case should be remanded to the trial court for an evidentiary hearing on Steak and Ale’s Motion for New Trial. Steak and Ale asked for a hearing on their newly discovered evidence at the trial court and asked for the hearing again at this court. The majority opinion gives them the relief they asked for — a full blown evidentiary hearing on the issue of fraud. What is the harm in having a hearing? There should be a hearing before there’s a hanging if there’s going to be a hanging. I understand the dissent’s position that there is already some evidence in the record to support a finding of fraud. But there has been no hearing before the ordinary trier of fact. There have been no live witnesses, no opportunity for cross-examination, no opportunity for either side to properly develop a record. The majority of this court feels that the ordinary process of justice should be followed. The trial court in this ease is highly experienced and the trial forum infinitely better suited to ferret out the truth than this court. If the facts are as the dissent says they are — fraud in all particulars — then the only criticism is that a hearing delays the final result. If it is fraud today then it will still be fraud tomorrow. If it is not fraud then an injustice would have been done to set aside the judgment. Our difference is not in principle. It is in the procedure of determining whether there has been fraud. Certitude is worth a small delay. If a man is found with a smoking gun in his hand and there is a body nearby who has been shot there is some evidence of murder — but a trial is required before punishment can be imposed. More than two million dollars is at stake here. Not to mention a few reputations. Isn’t that worth a hearing? There is no disputing that fraud vitiates everything it touches. Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex.1979). Clearly, if fraud is found by the trial court then the consent judgment is vitiated and must be set aside. See, e.g., Gregory v. White, 604 S.W.2d 402, 403 (Tex.Civ.App.—San Antonio 1980, writ refd n.r.e.); Peddicord v. Peddicord, 522 S.W.2d 266, 268-270 (Tex.Civ.App.—Beaumont 1975, writ ref'd n.r.e.) (Keith, J., concurring). If the trial court determines that there has been no fraud then the judgment is binding. The majority is not willing to prejudge the issue of fraud based on television and newspaper reports or the allegations of one party to a controversy. “Our system of justice is capable of ascertaining the existence of fraud and collusion.” Price v. Price, 732 S.W.2d 316, 318 (Tex.1987). The dissent disregards the system of justice and declares that Steak and Ale discovered fraud. Maybe they did and maybe they didn’t. We should let our system of justice make that determination. Finally, it should be noted that the dissent is from this court’s decision not to conduct an en banc rehearing. Texas Rule of Appellate Procedure 79(e) provides that “[a] hearing or rehearing en banc is not favored and should not be ordered unless consideration by the full court is necessary to secure or maintain uniformity of its decisions or in extraordinary circumstances_” (emphasis added). This appeal does not meet that exacting standard. In fact the records of the clerk reveal that in the past ten years there have only been two en banc rehearings submitted orally to this court. See, e.g., Texas Workers’ Compensation Comm’n v. Garcia, 862 S.W.2d 61 (Tex.App.—San Antonio 1993, writ granted) (constitutionality of new workers’ compensation act) and Horner v. Reed, 756 S.W.2d 34 (Tex.App.—San Antonio 1988, orig. proc.) (mandamus concerning judge’s order that Mayor of Shavano Park resign from office). There have been approximately twenty-three en banc hearings since 1981 without oral argument, but obviously this is rare also. This is an appeal concerning a settlement agreement. It is important to the parties but will hardly meet the above requirements. An en banc reconsideration would not be a good use of judicial resources, especially in light of the fact that there has never been an evidentiary hearing at the trial court level. The proper disposition is a remand to the trial court for an evidentiary hearing on Steak and Ale’s Motion for New Trial. . Justice Tom Rickhoff not participating in decision on Appellant's Motion for En Banc Consideration of Motion for Rehearing. . It is interesting to note that Giles also claimed that the settlement had been procured by fraud on the part of the railroad company. Giles, 712 F.Supp. at 547. . I recognize that “mere approval” of a settlement does not necessarily equal rendition. ' Clearly, sometimes approval does equal rendition and sometimes it does not. In deciding whether rendition occurred courts are looking at something more than "mere approval.” The appellate courts are looking at context. An approval does constitute rendition when, in context, it reveals itself to be an official present-sense judicial determination of the matter before the court. See, e.g., Samples Exterminators v. Samples, 640 S.W.2d 873 (Tex.1982); Skidmore v. Glenn, 781 S.W.2d 672 (Tex.App.—Dallas 1989, no writ); Giles v. Missouri-Kansas-Texas Railroad Co., 712 F.Supp. 542 (E.D.Tex.1989). An approval does not constitute rendition when, in context, it is apparent that some future action was indicated or when the "approval” lacked official status. E.g., Buffalo Bag Co. v. Joachim, 704 S.W.2d 482 (Tex.App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.); Grosso v. Ellis, 608 S.W.2d 347 (Tex.Civ.App.—San Antonio 1980, no writ).
PEEPLES, Justice, joined by BUTTS and REEVES, Justices, dissenting to denial of en bane consideration of appellant’s motion for rehearing. [Filed August 19, 1994] I respectfully dissent from the full court’s decision not to rehear this case en banc pursuant to Justice Reeves’ request. I think that Steak and Ale timely withdrew its consent to a settlement and that therefore the $2.2 million consent judgment cannot stand. I also conclude that the settlement was induced by fraud, which makes the majority’s holding especially erroneous. This appeal justifies en banc review for two reasons: (1) The panel opinion has refused to let a litigant withdraw consent to a settlement while there was still time to withdraw. After defendant Steak and Ale agreed to settle with plaintiff Leal, it learned about her open and public physical activities, which contradicted the salient part of her case at trial — her contention that she was wheelchair-bound for life and could walk only with assistance. The issue here is not simply whether a sum of money changes hands. Nor is the issue whether litigants may change their minds and back out of settlements with impunity. At stake, because of the circumstances detailed below, is the credibility of our civil justice system and its ability to do justice and to correct injustice. (2) The panel opinion muddles the law of consent judgments and renditio