Court Held That Will Contestant Expressly Waived Right To Appeal From Bench Trial

Winstead PC

In Estate of Crawford, after the first day of a will contest, the parties’ attorneys announced on the record that they agreed that neither party would assert a claim for attorney’s fees via a good-faith finding and that they would not appeal the trial court’s judgment. No. 14-17-00703-CV, 2017 Tex. App. LEXIS 10554 (Tex. App.—Houston 14th Dist.] November 9, 2017, no pet. history). Later, the trial court signed a judgment, found the will submitted was valid and enforceable, and denied the contest. The judgment noted that:

Pursuant to the agreement of the parties read into the Court record on May 22, 2017, Defendant/Will Contestant Jimmy Crawford is prohibited from appealing this Judgment regarding the Court’s finding of an enforceable Will and is further prohibited from asserting any claims or actions against Judy Taylor, Lauren Crawford, Adam Crawford and/or Heath Crawford that arise or might arise from the filing and probating of the Will by the Executrix, Judy Taylor.

Id. Notwithstanding this statement, the contestant filed a notice of appeal and argued that the agreement to not appeal was not enforceable because it was not in writing and he fired his attorney. The court of appeals disagreed with the contestant/appellant and dismissed the appeal, stating:

An attorney may execute an enforceable agreement on behalf of the attorney’s client. An attorney’s authority to do so flows from the agency relationship that exists between the attorney and the client; the attorney’s acts and omissions within the scope of the attorney’s employment are regarded as the client’s acts. It is presumed that the attorney has actual authority conferred by the client to act on the client’s behalf, and that the attorney is acting in accordance with the client’s wishes. This presumption may be rebutted by affirmative proof that the client did not authorize the attorney to enter into an agreement, such as an affidavit from the client to that effect. “Every reasonable presumption is to be indulged in favor of a settlement made by an attorney duly employed, and especially so after a court has recognized such an agreement and entered a solemn judgment on it.” Appellant contends that because he fired his attorney the day after the agreement was announced in open court, the agreement is unenforceable. The record does not contain affirmative proof that appellant did not authorize his attorney to enter into the agreement. We conclude that these circumstances do not overcome the presumption that appellant’s attorney acted with actual authority in making the agreement read into the record in open court on appellant’s behalf. By the terms of the agreement, appellant agreed not to appeal the court’s judgment. The right to appellate review may be waived by agreement. Because appellant expressly agreed not to appeal from the judgment in this appeal, we will enforce the terms of his agreement.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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