Banda v. Garcia
In Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997), the trial court held a hearing on a defendant's motion to enforce a settlement agreement and rendered judgment for the defendant. Id. at 271.
The defendant's timely acceptance of the settlement offer was proved at the hearing solely by unsworn statements at the hearing by the defendant's counsel. Id. at 271-72.
The trial court enforced the settlement, but the court of appeals reversed, holding that the unsworn statements were not sufficient to establish a binding settlement agreement.
The supreme court reversed the court of appeals, holding that the nonmovants waived the oath requirement by failing to object to the unsworn statements by the defendant's counsel. Id. at 272.
According to Banda, a lawyer's unsworn statements can be treated as evidence if the lawyer makes the statements under circumstances in which the opposing party knows or should know that an objection is necessary. Id.
The Supreme Court held that an attorney's unsworn statements regarding the existence and terms of an oral settlement agreement constituted evidence because the opponent did not object.
The court found it significant that the attorney referred to her statements as testimony in her capacity as an officer of the court and she clearly placed opposing counsel on notice that she was attempting to prove the existence and terms of the oral agreement. Id.
The court found that the opposing party waived any objection to the unsworn testimony such that it constituted some evidence of the settlement agreement. Id.
In Banda v. Garcia, the sole issue was whether the parties had orally agreed to extend a settlement deadline. Id.
When the plaintiff's attorney did not appear at a hearing on the defendant's motion to enforce the settlement (but sent his associate in his place), defense counsel's unsworn statements at the hearing were "the only available evidence of the oral agreement to extend the deadline." Id.
Because opposing counsel failed to object to the unsworn statements of fact, the Supreme Court concluded that they were some evidence of the settlement agreement. Id.