I filed Motion For Return of Deposit and afterward, made a written agreement w/my former landlord (by email) to settle out of court. We agreed to a specific amount if I dismiss the case.
I agreed to (and did) sign Order of Dismissal and we not go to court. Because of the agreement and Order of Dismissal, I did NOT show for hearing, thinking the case and hearing would be dismissed. Only later to get letter of judgment, favor of defendant who actually showed for hearing because the hearing was not dismissed because of clerical error w/case numbers. Judge's letter says plaintiff "take nothing". Am I still able to enforce the written agreement between landlord and I? Can I file another petition for judge to hear the case if former landlord doesn't obligate our written agreement?
Your question does not specify some important facts, including whether you are still within the time for post-judgment motions, whether the hearing held was on the merits or was a dismissal for want of prosecution because you did not appear, and whether you have talked with the former landlord since the hearing and what his/her response was. The parties agreed to a settlement, which included two basic obligations: the landlord was to pay if you dismissed the case. The case was not dismissed (due to a clerical error), but you have an argument that you did take action to do so. The defendant may argue that you breached the settlement agreement by not dismissing the case and that the defendant is therefore excused from performance under the agreement. If you following the right process for dismissal of your case and served the defendant with an entered copy of the Order of Dismissal before the hearing, this would support your argument that the failure to dismiss was due to a clerical error, rather than a lapse of your performance under the settlement agreement. In any event, you cannot simply file another petition for the judge to hear the same case if the landlord does not obligation the agreement. You might file a motion to enforce the settlement agreement and/or a post-judgment motion to vacate that order on grounds that it should not have been entered because you had filed an Order of Dismissal prior to the hearing date that was not effectuated due to a clerical error (assuming you have not missed the time for doing so). Of course, all of this assumes that you properly filed and served the Order of Dismissal (despite the clerical error) prior to the hearing date.
Bonnie Joan JacksonLitigation LawyerWinter Park, FL ·
There are rules of civil procedure adopted by all Texas courts. In those rules, which can be found on-line, you will find those circumstances which justify filing post-judgment motions to set aside a final judgment. If the opposing party committed a fraud upon the court, then you should act swiftly to notify the court of the pre-existing agreement and signed stipulation for dismissal. Whatever the outcome, use this as a learning experience. You should never fail to appear for a hearing. Your adversary does not represent your interests. Only you can do that. Best of luck.
