Agreed as to Form and Substance: An Appellate Kiss of Death?

kissThe judge grants your opponent’s summary judgment in what you estimate amounts to a gross miscarriage of justice. The judge asks counsel to agree to an order. You are presented with an order that grants the summary judgment, and you sign the line that says, innocuously enough, “agreed as to form and substance.” You then file your notice of appeal, knowing that the world will be made right once the court of appeals reviews your case. A docketing statement is filed, records are requested, briefing begins . . . and then you receive a plea to the jurisdiction. What happens next depends on where you filed your appeal.

Kiss Your Appeal Goodbye: Texarkana, Dallas, El Paso, and San Antonio

Four Texas Courts of Appeal (above) hold that approving a judgment as to form and substance creates a “consent judgment” that cannot be appealed. This view is best summed up by the El Paso Court:

Approval as to form is a matter of professional courtesy not necessary to a valid judgment. Such approval (as to form) does not waive any error in the proceedings or incident to the judgment itself. But approval as to substance is something else. Approval of the substance of a judgment is tantamount to an agreement by the signatory that the judgment meets all of its essential requirements. By Appellant’s approval of the substance of the judgment, we hold that Appellant has waived any error in the judgment . . . .

Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990).

The Appeal Lives On: Houston 14th, Houston 1st, Corpus Christi, Austin, and Fort Worth

Five Texas Courts of Appeal (above) hold that a counsel’s agreement as to form and substance, standing alone, is insufficient to constitute an unappealable consent judgment. This view is best expressed by the Corpus Christi Court:

We cannot agree that the phrase “approved as to form and substance,” standing alone, shows a “consent judgment” and a voluntary relinquishment of the right to appeal. Nothing in the body of the judgment suggested that the case had been settled or that the judgment was rendered by consent. No other indications of agreement exist in the record. In order to have a consent judgment, a party must explicitly and unmistakably give consent. The notation “approved as to form and substance,” standing alone, is too indefinite to justify declaring as a matter of law that this judgment was a consent judgment.

First Am. Title Ins. Co. v. Adams, 829 S.W.2d 356, 364 (Tex. App.—Corpus Christi 1992).

Resolving the Split

A consent judgment requires explicit and unmistakable consent.  Hill v. Bellville Gen. Hosp., 735 S.W.2d 675, 678 (Tex. App.—Houston [1st Dist.] 1987, no writ). An agreement “as to form and substance” seems to leave at least some ambiguity as to whether the agreement to “substance” is the substance of the order (the trial court did in fact grant my opponent’s summary judgment) or the substance of the party’s allegations (I agree they are entitled to the relief sought). That alone lends credence to the view that an agreement to “form and substance” does not amount to a consent judgment.

And besides, counsel in Texas know how to inform the court that the judgment is agreed—we put “AGREED JUDGMENT” right in title. Hopefully the Texas Supreme Court will weigh in and resolve the split and avoid further draconian results founded on ambiguous language. But in the meantime, stop agreeing “as to form and substance”—you don’t want the appeal resolving this dispute to be one you handled!

For further reference

The cases adopting the “consent judgment rule”: Claxton v. (Upper) Lake Fork Water Control and Imp. Dist. No. 1, 220 S.W.3d 537, 544 (Tex. App.—Texarkana 2006, pet. denied); Office of Attorney General of Texas v. Wilson, 24 S.W.3d 902, 906 (Tex. App.—Dallas 2000, no pet.); Cisneros v. Cisneros, 787 S.W.2d 550, 552 (Tex. App.—El Paso 1990, no writ); Bexar County Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d 642, 644 (Tex. App.—San Antonio 1989, no writ).

The cases rejecting the “consent judgment rule”: Andrew Shebay & Co., PLLC v. Bishop, 429 S.W.3d 644, 646–47 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Chang v. Nguyen, 81 S.W.3d 314, 316, 319 n.1 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Bonner v. Texas Children’s Hosp., No. 13-03-228-CV, 2006 WL 349510, at *2 & n.5 (Tex. App.—Corpus Christi Feb. 16, 2006, no pet.); Cash v. Cash, No. 03-04-00563-CV, 2005 WL 1787552, at *3 & n.7 (Tex. App.—Austin July 27, 2005, no pet.); Leeper v. Woodrick, No. 2-04-371-CV, 2005 WL 1475614, at *2 (Tex. App.—Fort Worth June 23, 2005, no pet.).

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