Background
In Estate of Crawford, 14-17-00703-CV, (Tex. App. – Houston [14] November 9, 2017) the court of appeals ruled that you can waive your right to appeal in a suit contesting a will.
A will was filed for probate by the executor named in the will. Someone else decided to contest the will. The opinion does not set out the relationship between all the parties but they are all named Crawford so one can assume that they are related in some way. On the second day of the trial contesting the will, the attorneys dictated an agreement into the record. The agreement was:
[Appellee’s counsel]: We have agreed that both parties will relinquish any claim for good-faith finding and that would enable them to recover attorney’s fees. In consideration, the will contestant has agreed not to appeal this decision —
[Appellant’s counsel]: Yes.
[Appellee’s counsel]: — and has agreed to relinquish any other claim he might have against any parties, the executor or anyone else for any kind of a bad-faith finding.
After losing the will contest, the contestant appealed the decision. He claimed that the agreement was not in writing and that he had fired his attorney that had made the agreement in open court.
Ruling
An attorney’s authority to (execute an agreement for the client) 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.
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 the appellant did not present “affirmative proof” that he did not authorize the agreement, the agreement stands. If he had presented affirmative proof in the form of his affidavit, the ruling may have been different.
