in the Interest of M.A.A., a Child ( 2020 )

AFFIRMED; Opinion Filed March 27, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00163-CV
No. 05-18-00164-CV
IN THE INTEREST OF M.A.A., A CHILD
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause Nos. 1-09-843, 1-15-76
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Evans
Opinion by Justice Nowell
Sherry Rhodes, appearing pro se,1 filed a single notice of appeal in two cause
numbers. The notice of appeal recites three orders are being challenged: (1) the
January 29, 2018 order in trial court cause number 1-09-843 (appellate cause number
05-18-00163-CV); (2) the “open-court permitted interlocutory ruling [of] January
24, 2018” in trial court cause number 1-15-76 (appellate cause number 05-18-00164-
1
Rhodes also seeks to appear on behalf of her daughter, Brenna Rhodes. As we previously explained
in our order dated April 18, 2018, Rhodes, as a layperson, cannot represent other people. We ordered the
appeals proceed with Rhodes as the sole appellant.
CV); and (3) the “order dated January 24, 2018” in trial court cause number 1-15-76
(appellate cause number 05-18-00164-CV).2
In the trial court, Rhodes filed a motion to revoke both a mediated settlement
agreement and the trial court’s January 24, 2010 final order based on “breach of
contract/agreement” and “failure to perform, extortion and fraud upon the court.”
The trial court’s January 29, 2018 order dismissed all claims in that motion as well
as all claims raised in a second motion filed by Rhodes seeking to set aside the
mediated settlement agreement and final order “based on fraud, conspiracy, undue
influence, coercion and crime upon the court.”
Trial court cause number 1-15-76 is a bill of review proceeding. The record
contains the transcript of a hearing held on January 24, 2018, where the trial court
considered numerous motions, including a no-evidence motion for summary
judgment in cause number 1-15-76. At the end of the hearing, the trial court judge
announced his ruling on the motions; the court granted the no-evidence motion for
summary judgment. The record does not reflect a separate “order dated January
24[th]” in that cause, but contains an order signed January 29, 2018 dismissing the
bill of review proceeding in its entirety.
After the trial court entered these orders, the court held another hearing on
February 21, 2018. The transcript from the February 21, 2018, shows Rhodes and
2
We previously provided factual background underlying the parties’ dispute in In Interest of M.A.A.,
No. 05-14-01180-CV, 2016 WL 4442839, at *1 (Tex. App.—Dallas Aug. 23, 2016, no pet.) (mem. op.).
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counsel for the other parties were present. The record includes the following
dialogue:
MR. SMITH: 3 Your Honor, I have spoken with Ms. Rhodes and with
Mr. White. . . All the parties are here. We have agreed to something,
and we want to state an agreement on the record pursuant to Texas
Rules [sic] of Civil Procedure 11.
THE COURT: All right.
[Counsel]: And that agreement is that the parties are going to agree to
dismiss all competing claims against each other. In other words, Ms.
Rhodes is going to dismiss her complaints against the defendants in
both cases. That would be in Cause Number [sic] 1-09-843 and 1-15-
76. In addition to that - - in addition to Ms. Rhodes’ dismissal of claims
in those two cases, Susan Wright, my client, is dismissing all
affirmative claims that she seeks against Ms. Rhodes, any other claims
that she seeks against Ms. Rhodes with prejudice, as is [sic] Mr. White’s
clients, Michael Goodman and David Rohlf. They are dismissing all of
their claims, affirmative claims against Ms. Rhodes with prejudice, and
any other competing claims will be resolved by dismissal with
prejudice to the refiling of the same.
So all claims, whether by the plaintiff in both cause numbers, that being
the plaintiff, Ms. Rhodes, and to the extent that there has been a claim
suggested to be in effect by Ms. Rhodes on behalf of Breena Rhodes,
all those affirmative claims are dismissed with prejudice as are the
responding or independent claims against Ms. Rhodes asserted by all
other parties in the case. Those are dismissed with prejudice. So agreed
by defendant Susan C. Wright.
Ms. Rhodes, is that your agreement?
MS. RHODES: I agree.
MR. SMITH: And Mr. White?
MR. WHITE: We would agree if all parties are going to dismiss all
claims of causes of action with prejudice, as well as waive any right to
3
David Smith and Todd White represent other parties to the litigation.
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appeal. Notices of appeal have been filed, and we will not reach this
agreement without that.
MR. SMITH: That’s a valid point.
MS. RHODES: I agree, Your Honor.
MR. SMITH: This would be dismissal of everything. And, Ms.
Rhodes, that would be your withdrawal of the notices of appeal you
gave in both cases.
MS. RHODES: I’m not sure how to do that, but I will figure it out.
MR. SMITH: Well, you can do it just by agreeing on the record.
MS. RHODES: Okay.
MR. SMITH: . . . Do you agree to withdraw your notices of appeal in
both cases?
MS. RHODES: Yes, I do.
MR. SMITH: As part of this agreement?
MS. RHODES: Yes.
Following the hearing, on February 21, 2018, the trial court issued an order of
dismissal with prejudice. The order recites:
The Parties announced to the court an agreement to dismiss all pending
claims arising from or in connection with the claims asserted by Sherry
Rhodes individually . . . The court finds the agreement to be freely and
voluntarily made as between the Parties and that the same should be
granted. The court finds that Sherry Rhodes individually and to the
extent that she appears on behalf of Breena Rhodes has agreed to waive
her notice of appeal in this cause.
It is therefore ordered, adjudged and decreed that the claims of
Sherry Rhodes and Breen Rhodes asserted or that could have been
asserted in this cause against David Rohlf, Michael Goodman, Suzan
Wright, Gary Arey, Shawn Richards, Anne Marie Jordan, Carese
Burack, Andy Aikens, and Nancy Aikens be and hereby are dismissed
with prejudice to the refiling of the same.
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It is further ordered that any and all claims for relief asserted
against Sherry Rhodes and/or Breena Rhodes by Respondents David
Rholf [sic], Michael Goodman, Susan Wright or any other party to the
Motion be and hereby are dismissed with prejudice to the refiling of the
same.
It is further ordered, pursuant to the agreement of the parties, that
the Notice of Appeal filed by Sherry Rhodes, individually and to the
extent she has proceeded on behalf of Breena Rhodes, be and hereby is
withdrawn.
Pursuant to the parties’ Rule 11 agreement, all parties, including Rhodes,
agreed to dismiss all claims with prejudice. See TEX. R. CIV. P. 11 (“. . . no
agreement between attorneys or parties touching any suit pending will be enforced .
. . unless it be made in open court and entered of record.”). The trial court then
issued its order of dismissal consistent with the parties’ Rule 11 agreement. All
complaints Rhodes raises in this appeal relate to the claims and complaints she has
raised in these cases; however, she agreed to dismiss these claims with prejudice,
and the trial court memorialized that agreement in its February 21, 2018 order.
Rhodes also did not file a motion for new trial or take any other action to
preserve any error in the trial court. See TEX. R. APP. P. 33.1 (preservation of error).
On appeal, Rhodes does not argue the February 21, 2018 Rule 11 agreement
announced on the record in open court or the trial court’s order of dismissal is
unenforceable for any reason. The record shows the parties agreed to dismiss all
pending claims with prejudice, the trial court then ordered all claims dismissed with
prejudice, and Rhodes made no effort to preserve any error in the trial court. We
conclude Rhodes presents nothing for our review.
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We affirm the trial court’s order of dismissal.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
180163F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.A.A., A On Appeal from the 382nd Judicial
CHILD District Court, Rockwall County,
Texas
No. 05-18-00163-CV Trial Court Cause No. 1-09-843.
Opinion delivered by Justice Nowell.
Justices Partida-Kipness and Evans
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 27th day of March, 2020.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.A.A., A On Appeal from the 382nd Judicial
CHILD, Appellant District Court, Rockwall County,
Texas
No. 05-18-00164-CV Trial Court Cause No. 1-15-76.
Opinion delivered by Justice Nowell.
Justices Partida-Kipness and Evans
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 27th day of March, 2020.
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