                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00030-CV


KATHLEEN J. DICKERSON                                              APPELLANT

                                       V.

LARRY E. DICKERSON                                                   APPELLEE


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          FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 360-479099-10

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                        MEMORANDUM OPINION 1

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      This is an appeal from a divorce that was initiated in 2010. In two issues,

Appellant Kathleen J. Dickerson (Wife) complains that the trial court erred by

denying her a jury trial, amending the divorce decree outside its plenary power,

and failing to follow the mediated settlement agreement (MSA) that she entered

into with Appellee Larry E. Dickerson (Husband). Husband did not file a brief.

      1
      See Tex. R. App. P. 47.4.
Because we hold that Wife expressly waived a jury trial, that her motion for new

trial extended the trial court’s plenary power beyond the date the trial judge

signed the amended decree, and that she is judicially estopped from now

contending that the MSA should be enforced, we affirm the trial court’s judgment.

        Wife expressly waived a jury trial on the record at a hearing in this cause.

Soon thereafter, the trial court signed an order stating that both parties waived

the right to a jury trial. Nevertheless, Wife later requested a jury trial on multiple

occasions, and the trial court denied her requests.

        During the lengthy proceedings below, a special master was appointed.

The trial court subsequently broadened the powers of the special master and

changed his title to receiver (Receiver). The trial court gave Receiver control

over an airplane hangar, the ownership of which was disputed by Wife and

Husband.     Husband filed a motion requesting that Receiver sell the hangar

property, and the trial court granted the motion and ordered that the property be

sold.

        On December 8, 2012, Husband and Wife entered into an MSA that

extinguished temporary orders but also specifically excluded the topic of

attorney’s fees and claims of intervenors, who were several attorneys who had

represented Wife in succession and who had intervened in the lawsuit to obtain

their claimed fees. On December 12 and December 13, the trial court conducted

a bench trial regarding attorney’s fees and intervenors’ claims for attorney’s fees.




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      On January 10, 2013, the trial court signed a final decree of divorce

incorporating terms that Husband and Wife had agreed to in mediation. The

decree awarded Wife the hangar property and an airplane from the community

estate, and it ordered each party to pay his or her own attorney’s fees except for

$3,660 awarded to Husband’s trial counsel from Wife.          The decree did not

expressly terminate or continue the duties of Receiver. On January 18, 2013, the

trial court signed a judgment in favor of one of Wife’s former attorney’s and

against Wife.

      Wife filed a motion for new trial on January 23, 2013, challenging, among

other things, the MSA, and on that day and on days to follow, the trial court

signed more individual judgments against Wife and in favor of her former

attorneys for attorney’s fees.

      While the trial court’s period of plenary power as extended by the filing of

Wife’s motion for new trial remained open, Receiver filed a motion to reconfirm

the court’s previous order that he sell the airplane and hangar. The trial court

granted the motion. On April 18, 2013, the trial court signed an amended decree

of divorce. This amended decree ordered that Receiver would continue in that

role until further order of the court and would continue to have full authority over

the property previously ordered into his care.

      In her first issue, Wife contends that the trial court erred by denying her a

jury trial. On November 29, 2011, in a hearing on Husband’s motion to release

funds, new counsel appeared on Wife’s behalf. Wife waived a jury trial on the


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record after the trial judge indicated that he would likely deny a motion for

continuance of a jury trial setting but would grant a motion for continuance of a

bench trial setting, explaining that a one-day bench trial would be easier to reset

sooner than a four-day jury trial. The trial judge signed an order commemorating

this waiver on December 14, 2011. Wife’s newer trial counsel, not the “new” trial

counsel who appeared only at the November 29, 2011 hearing, did not sign the

order. Wife relies on GMC v. Gayle to neutralize her express waiver, but that

case does not address express waivers of jury trial. 2 Because Wife expressly

waived a jury trial on the record, we overrule her first issue. 3

      In her second issue, Wife initially contends that the trial court erred by

amending the divorce decree after the trial court’s plenary power expired. The

trial court signed the original decree on January 10, 2013. Wife filed a timely

motion for new trial on January 23, 2013. 4          That motion for new trial was

overruled by operation of law on March 26, 2013, seventy-five days after the

signing of the original decree. 5 The trial court’s plenary power extended thirty

days thereafter, or until April 25, 2013. 6 Consequently, the trial court amended


      2
       951 S.W.2d 469 (Tex. 1997) (orig. proceeding).
      3
      See Norton v. Deer Creek Prop. Owners Ass’n, No. 03-09-00422-CV,
2010 WL 2867375, at *6 (Tex. App.—Austin July 22, 2010, no pet.) (mem. op.).
      4
       See Tex. R. Civ. P. 329b(a).
      5
       See Tex. R. Civ. P. 329b(c).
      6
       See Tex. R. Civ. P. 329b(e).


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the final judgment well within its plenary power. We overrule this part of Wife’s

second issue.

      In the remainder of her second issue, Wife contends that the trial court

failed to give effect to the MSA. But Wife filed a motion for new trial contending

that the MSA is not enforceable. She is therefore estopped from contending that

the MSA should be enforced. 7

      Nevertheless, we point out that the MSA expressly excluded Wife’s

attorney’s fees and the claims of the intervenors, all former attorneys of hers in

this matter. In fact, the appendix to the MSA specifically provides,

      Attorney’s Fees in This Case

      12.1 Attorney’s fees, including intervenors’ claims, are subject to a
           trial scheduled December 12, 2012.

      Further, the record before us contains another indication that the trial court

severed the attorney’s fee/intervenors’ issues from the MSA. Husband’s trial

counsel stated on December 12, 2014, the date of the trial on attorney’s fees,

             The mediated settlement agreement is also on file with the
      court. We did not send that to the intervenors, because at the last
      setting, you severed.

            ....

            The only thing that is outstanding in our—in our mind is
      attorney’s fees. And we did reserve that in the mediated settlement
      agreement, and said that it was available to be decided today at final


      7
       See Brooks v. Brooks, 257 S.W.3d 418, 423 (Tex. App.—Fort Worth
2008, pet. denied).


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         trial. And that was just any award of attorney’s fees and also the
         intervenors’ claims.

         Finally, even if Wife were not estopped from now contending that the trial

court should have enforced the MSA, we are not prepared to hold that the trial

court abused its discretion by continuing the appointment of or reappointing

Receiver to enforce the trial court’s post-MSA judgments against Wife and in

favor of the intervenors. Receiver filed a motion on March 7, 2013, while Wife’s

motion for new trial challenging the MSA and original decree was pending, to

reconfirm his authority to sell the property originally ordered to be sold on

October 30, 2012. The trial court granted the motion on March 28, 2013. The

trial court had statutory authority to appoint Receiver during the pendency of

proceedings 8 and inherent authority to appoint Receiver to enforce its judgments,

including those for the intervenors and against Wife. 9 We overrule Wife’s second

issue.

Conclusion

         Having overruled Wife’s two issues, we affirm the trial court’s judgment.




         8
       See Tex. Fam. Code Ann. § 6.502 (West 2006); In re C.F.M., 360 S.W.3d
654, 658 (Tex. App.—Dallas 2012, no pet.).
         9
        See Young v. Young, 765 S.W.2d 440, 444 (Tex. App—Dallas 1988, no
writ); Elliott v. Elliott, 422 S.W.2d 757, 758 (Tex. Civ. App.—Fort Worth 1967, writ
dism’d); see also Wells Fargo Home Mortgage, Inc. v. Alford, No. 02-08-00355-
CV, 2010 WL 144397, at *1 (Tex. App.—Fort Worth Jan. 14, 2010, no pet.)
(mem. op.).


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                                          PER CURIAM

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: November 26, 2014




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