The opinion
GREEN, Justice,
dissenting.
The majority holds that an attorney’s un-sworn but unobjected to testimony is “no evidence,” a holding that is in direct conflict *796 with a previous opinion of this court. 1 On the basis of this erroneous holding, the majority then reverses the trial court’s judgment enforcing a pre-suit settlement agreement. The majority also reverses on the basis of error not raised by the appellant, an action plainly prohibited by the supreme court. For these reasons, I respectfully dissent.
Fact Summary
By letter, the plaintiffs (“Garcia”) made a pre-suit policy limits settlement demand, giving the defendants (“Banda”) fifteen (15) days in which to make remittance. At the hearing below, Banda’s attorney-of-record, Shirley Hale Mathis, testified that she accepted the offer by phone within the time limit specified by Garcia, but, since a minor was involved, she wanted an ad litem appointed for the child and wanted the settlement agreement approved by the court. She further testified that this was agreed to by Garcia’s attorney, B. Mills Latham. Latham later repudiated the settlement and filed this lawsuit. In response, Banda filed the motion to enforce.the settlement agreement, which was granted. This appeal resulted.
Attorney’s Unsworn Testimony
The majority maintains that since Mathis was not formally sworn as a witness, her testimony was incompetent and was legally insufficient to support the existence of a valid oral settlement agreement between the parties. The law is not so hyperteehnical and rigid, however, that in order for a witness’s testimony to be competent he or she must solemnly raise their right hand, affirm the formal incantation to tell the truth, and take the witness chair. Shirley Mathis is an officer of the court who, in order to receive her license to practice law in this State, took an oath to “honestly demean [herself] in the practice of law,” Tex.Gov’t Code Ann. § 82.037(a)(2) (Vernon 1988), and subjected herself to professional discipline in the event she was not truthful. Tex.DisciplinaRY R.PROF.Conduct 3.03 (1989), reprinted in Tex.Gov’t Code Ann., tit. 2, subtit. G. app. (Vernon Supp.1994) (State Bae Rules art. X, § 9). If the purpose of an oath is to “awaken [a witness’s] conscience and impress his mind with his duty [to testify truthfully]”, Tex. R.Civ.Evid. 603, a lawyer surely needs no further admonishment to be cognizant of his or her legal and ethical duties.
But that is not the main reason Mathis’s testimony was properly considered as evidence in this case. During the hearing below, and before repeating her testimony on the salient facts, Mathis made the following statement to the court in the presence of opposing counsel:
MS. MATHIS: Your Honor, as an officer of the Court I can just state under oath what — what I am telling the Court and what my representations were by Mr. La-tham and the understanding I had. 2
It is evident that Mathis considered herself under oath and gave her testimony subject to the penalties the law provides. Garcia made no objection to her testimony and did not require her to be formally sworn.
The swearing of a witness is a procedural requirement that may be waived. See Fullenwider v. American Guarantee & Liability Ins. Co., 821 S.W.2d 658, 662 (Tex.App.—San Antonio 1991, writ denied) (attorney for plaintiff allowed defendant’s attorney to testify without objection, thus waiving administration of the oath). But the majority holds there was no waiver in this case, relying on Bloom v. Bloom, 767 S.W.2d 463, 471 (Tex.App.—San Antonio 1989, writ denied). 3 *797 Bloom , is a default judgment case where the court properly disregarded the plaintiff attorney’s unsworn testimony because the defaulting defendant was not present to be able to waive the swearing of the attorney. Bloom’s holding makes sense, but it is also quite obvious that it has nothing to do with this case — Garcia’s attorney was in the courtroom when Mathis offered her testimony. If Mathis should have been sworn as a witness, Garcia waived the requirement. The majority’s holding is in direct conflict with Fullen-wider.
The majority further asserts that because Mathis’s testimony did not distinguish between “testimony” and “argument,” Garcia somehow did not know when to require her to be placed under oath, and consequently he should now be excused from his failure to object. But these circumstances are no different than most any other situation where a lawyer is required to distinguish between objectionable and non-objectionable testimony. Having been placed on notice that Mathis was preparing to offer evidence by her statement that she was “stat[ing] under oath” her testimony, Garcia was obligated to object if he wished to preserve his right to complain in this court. Because he did not do so, his point of error should be overruled. Instead, the majority abandons traditional error preservation principles and creates a new rule — if you do not know you have to object, your failure to do so will not be deemed a waiver. The majority tells future appellants that they can, indeed, “lay behind the log” and successfully raise error for the first time on appeal. That is a strategy this court has traditionally disallowed, but is inexplicably permitting here.
Disposition on Unassigned Error
The majority additionally relies on S & A Restaurant Corp. v. Leal, 892 S.W.2d 855 (Tex.1995), in concluding that this case should be reversed because Garcia’s consent to the settlement had been withdrawn prior to the rendition of the judgment, thus voiding the judgment based on the agreement. But this was not an issue raised and argued by Garcia in a point of error; instead, the issue came into the case for the first time through a question from the court at oral argument.
We are authorized to reverse a case only on the basis of properly assigned error. Tex. R.App.P. 81(b)(1) (“No judgment shall be reversed on appeal ... unless the appellate court shall be of the opinion that the error complained of ... cause[d] the rendition of an improper judgment_”) (emphasis added). Thus, other than for the purpose of determining our jurisdiction, we exceed our proper role as a court when we raise and address unassigned and unbriefed issues in cases before us. The reason for this is clear: when we take on issues not raised by the parties, we become advocates and abandon our responsibility to act as independent and fair arbiters of the law for the resolution of disputes.
The parties and their lawyers are uniquely qualified to exercise discretion and professional judgment in deciding what issues are best presented to the court in their appeal, and we properly consider and decide only those issues. We cannot substitute our professional judgment for that of the lawyers by suggesting, and then deciding the case on, alternate dispositive legal theories. Whether or not the new issues are briefed by the parties at the court’s invitation, it is reversible error for a court of appeals to decide a case on the basis of unassigned error. Samples Exterminators v. Samples, 640 S.W.2d 873, 875 (Tex.1982) (per curiam) (judgment of the court of appeals reversed because decision based on unassigned error).
But apart from the majority’s error in addressing an issue not raised on appeal by appellant, this is not a case controlled by Leal . While I agree that the broad language of Leal quoted in the majority appears on the surface to require the conclusion that the judgment is void, the facts do not support such a result. This is not a case, as in Leal , where one of the parties has withdrawn his *798 consent to a settlement agreement and the court nonetheless proceeds to enter judgment in accordance with the repudiated agreement. Instead, the judgment in this case is based on proof of Banda’s affirmative defense to Garcia’s lawsuit.
Garcia repudiated his settlement agreement and then filed suit for personal injuries. Banda answered the lawsuit with pleadings alleging compromise and settlement as a defense to Garcia’s claims. Banda was thus entitled to prove up the settlement agreement and substitute his obligations under that agreement for any damages that Garcia would otherwise have been able to prove in a trial on his personal injury claim.
Banda successfully proved the settlement agreement. In a hearing on his Motion to Enforce Settlement and Set Friendly Suit, attended by Garcia’s counsel, Banda established the terms of the agreement. The judgment thereupon rendered by the trial court was not based on the previous consent that was withdrawn, but was instead based on the pleadings and evidence supporting Banda’s affirmative defense.
The supreme court has recognized that settlement agreements are enforceable in the face of repudiation. In Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442 (Tex.1983), the only matter before the court was whether consent had been withdrawn before the judgment on the settlement was rendered. Lacking consent, the judgment was void. Quinte-ro, 654 S.W.2d at 444 . But, significantly, the court indicated that where the issue has been pled and the facts and circumstances establish the existence of an enforceable agreement, a judgment may be rendered on that agreement.
[T]he only question before the trial court was whether all parties consented to the judgment at the time it was rendered. Therefore, our reversal of the judgment of dismissal is without prejudice to the rights off] Jim Walter Homes in its attempt to plead and prove an enforceable settlement agreement....
Quintero, 654 S.W.2d at 444 (emphasis added).
The difference between this ease and Leal , then, is that the judgment here is based on evidence of the facts and circumstances establishing the existence of an enforceable settlement agreement and is not based on any consent to judgment. Banda established his affirmative defense to Garcia’s claim, entitling him to judgment in accordance with the terms of the settlement agreement.
It can certainly be argued that the procedure utilized by Banda was unconventional— a summary judgment proceeding would probably have been more appropriate. But Garcia did not object to either the procedure used or to the quality of the evidence presented. None of those present at the hearing could have been mistaken that the issue being presented was whether there was an enforceable settlement agreement that served as a defense to Garcia’s lawsuit. The trial court found that there was such an agreement and entered judgment accordingly. The Leal holding thus does not apply.
Conclusion
The majority refuses to follow clear precedent from this court in setting aside the trial court’s finding of a settlement agreement based on an attorney’s unsworn testimony. Settlement of disputes is strongly favored by the courts and we do harm to that policy with this result. And contrary to the majority’s assertion, we do not deny Garcia’s right to litigate his claims before a trier of fact if we enforce the settlement agreement. As clearly expressed by its terminology, a settlement agreement is voluntarily entered into by the parties. If there was a desire to litigate the claims before a jury, no agreement would have been made. But once made, the agreement is enforceable as any contract.
The unchallenged testimony of attorney Mathis established the existence of the oral agreement and the trial court was authorized to make its finding. The evidence being legally and factually sufficient to support the trial court’s finding, under well-established standards of appellate review, we cannot set aside its decision. But in reaching its result, the majority departs from those standards.
Moreover, I believe the majority has strayed much too far from any reasonable *799 interpretation of the points of error raised by Garcia. Reversing this case on the basis of the unassigned error, particularly when the error in doing so is compounded by what I believe to be a misapplication of the law, is not authorized by the rules or the supreme court.
I respectfully dissent.
. Fullenwider v. American Guarantee & Liability Ins. Co., 821 S.W.2d 658, 662 (Tex.App.—San Antonio 1991, writ denied).
. It is perhaps worthy of noting that the other party to the alleged oral settlement agreement, attorney Mills Latham, chose not to attend the hearing which was set specifically for the purpose of proving and enforcing the settlement agreement. We can only speculate as to his motives in not attending, but it is reasonable to conclude that had he been there to testily La-tham might have been forced to confirm Mathis’s testimony.
.The majority says that "[wjhere a party is justifiably unaware of the need to object, his failure to object should not be deemed waiver.” 935 S.W.2d at 793 (Chapa, C.J.) But in Union City Body Co. v. Ramirez, 911 S.W.2d 196, 201 (Tex.App.—San Antonio 1995, no writ) (Chapa, C.J.) this court held that the appellant waived error *797 when its objection to a surprise severance order wasn't made until the morning following the trial court’s order, even though the effect of the severance was still not apparent by the time of oral argument in the case; that is to say, even though the appellant was “justifiably unaware of the need to object.”