Kem Thompson Frost, Chief Justice
In this case we consider as a threshold issue whether the parties entered into an enforceable agreement under Texas Rule of Civil Procedure 11 to waive the right to appeal. Concluding that they agreed to waive the right to appeal the trial courts judgment as to any issue regarding interest or attorneys fees and that the agreement is enforceable, we dismiss the appeal to the extent the appellant asserts such issues. As to the remaining issues, we conclude that the appellant has not shown that the trial court erred. We affirm the trial courts judgment and its sealing order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Amber Raquel Emerson and appellee Thomas Chad Emerson divorced in 2009. In the divorce decree the trial court awarded the marital home to Thomas and awarded $31,055 to be paid to Amber within sixty days following the date of the divorce decree. In 2015, Amber filed a motion to enforce the divorce decree and, alternatively, asked the court to clarify the decree. In the motion for enforcement, Amber requested an owelty lien against the marital home for $31,055 at the maximum lawful interest rate. Amber also moved for attorneys fees under Texas Family Code section 9.014. In response, Thomas alleged as an affirmative defense that Amber did not perform the actions required under the decree that were necessary for him to refinance the marital home. Thomas also asserted a statute-of-limitations defense.
A. Rule 11 Agreement on the Record
On the date set for trial in the enforcement proceeding, the parties agreed to a settlement, and the trial judge then recited the judges understanding of the settlement agreement on the record, which led to the following colloquy:
[Trial judge]: This case was scheduled for trial today. I think there has been an agreed settlement reached in this case, and Ill recite what I understand the settlement to be. If theres any objections or any disagreement with that, someone needs to say.
It is going to be agreed that Mr. Emerson refinance the property in question here, that any lis pendens that has been filed on that property are [sic] going to be removed by [Ambers counsel]. Once that closing occurs, whatever that check is, if its under $50,000, for example, is going to be turned over to the Court.
The Court is going to take under review [Ambers counsels] attorneys fees, take up consideration with regard to any postjudgment interest, if any; and once the transaction has occurred with regard to your refinancing and the money has been delivered to the Court, each of you will come into the Court. I will make a ruling on a final judgment, or maybe I could have a conference call and make a ruling on a final judgment and one of the lawyers can bring it up here to save yall a trip up here....
And the Court is going to look at the - as he has told counsel - going to look at the reasonableness and necessariness [sic] of the attorneys fees. The respondent in the enforcement action, I guess well call it, [Thomass counsel], is - I suppose, is going to make a global objection to the attorneys fees and leave it up to the Court to find whats reasonable and necessary?
[Thomass counsel]: Yes, Judge.
[Trial judge]: Okay. And I take it - I take it that the petitioner in this case, or plaintiff, however you want to word that, is going to accept the Courts rulings with regard to reasonableness of the attorneys fees; correct?
[Ambers counsel]: Yes, Well - the Court - we will honor the Courts ruling.
[Trial judge]: Okay. And, so, I dont anticipate further litigation from this lawsuit. It will be final. Okay? And hopefully whatever that is outside of the $31,055 will, in fact, be fair and just for you guys, okay, since you have an interest in it that way.
Is that everybodys agreement?
[Thomass counsel]: Yes, Judge. I - just for clarification, weve been - somebody has mentioned mandamusing this Court and waiving - going to appeal to the Supreme Court and other things. So, I want to make sure on the record we dont have any of that. When were saying - [Ambers counsel] says he accepts the ruling of this Court, does that mean hes waiving his right to appeal?
[Trial judge]: Well, I understand what youre saying and I kind of meant it that way, but Im not going to - I mean, for example, what if I said zero attorneys fees? I think he would have a right to maybe question that, but I think [Ambers counsel] is going into this open-eyed and understands where the Court is going to be with this.
Would that be correct, [Ambers counsel]?
[Ambers counsel]: Yes, sir. We would -
[Trial judge]: You might be disappointed in my ruling with regard to judgment interest. You might be disappointed in the amount of attorneys fees, but youre at least telling me right now this is the way you want to proceed to get that final judgment.
And the Court is ordering - actually, what this is, to me, is kind of a Rule 11 and/or a settlement agreement thats being dictated to the Court. The only thing that has to be decided, frankly, is the attorneys fees, basically, and whether Im going to give any postjudgment interest , in which Ive already mentioned Im kind of (indicating) on that one because I do - I do think of this - and, you know, we are on the record.
I think that in order to do the right thing, Mr. Emerson is giving up that Motion for the statute of limitations; and thats - thats how I view it. I think hes trying to do the right thing because I think that might be a closer issue than you think, [Ambers counsel]; but thats not something Im going to have to rule on if theyre agreeing to pay $31,055, which is what the decree said.
[Ambers counsel]: Right.
[Trial judge]: So, I just want to be sure that everybody - however we talk about this is [sic] your agreed settlement - is this your agreed settlement at this time?
[Ambers counsel]: Did I hear the Court say that appellate rights are not being waived?
[Trial judge]: Well, I said that. But I said [sic] this now: Agreed settlement, pretty much youre going to agree with whatever the judgment of the Court is.
[Ambers counsel]: So, the Court is asking me - asking my client to waive any appellate rights ?
[Trial judge]: Im asking you if this is your agreed settlement?
[Ambers counsel]: And is part of that settlement waiving appellate rights ?
[Trial judge]: I would think it would be, [Ambers counsel].
[Ambers counsel]: May I consult with my client on that point, Your Honor?
[Trial judge]: Yeah. Because I will say this: You know, the only thing thats going to be appealable is the judgment part, interest, and -
[Ambers counsel]: Attorneys fees.
[Trial judge]: Attorneys fees are appealable; but I think that if you read all the case law on that, that they give wide discretion to the Court.
[Ambers counsel]: I understand that, but waiving appellate rights is a big waiver.
[Ambers counsel]: So, before I agree on the record to waive my clients appellate rights , may I confirm - confer with my client?
[Trial judge]: You can certainly do that....
[Ambers counsel]: Your Honor, as long as its reciprocal, my client does waive appellate rights to the decision on the interest and the attorneys fees.
[Trial judge]: Yeah. And I think if its an agreed settlement, as were dictating - or I - or I sort of dictated into the record and ask if yall agreed, would you agree, [Thomass counsel]?
[Thomass counsel]: Yes, Judge.
[Trial judge]: - that that is final and not appealable?
[Thomass counsel]: Yes, Judge.
[Trial judge]: Would you agree with that, Mr. Fuller?
[Mr. Fuller]: Yes, Your Honor. Its my understanding its an agreed settlement.
[Trial judge]: Yeah.
[Ambers counsel]: Yes, sir.
[Trial judge]: The Court will notify the attorneys of what the ruling is going to be, and one or the other - I guess you - will prepare a judgment for the Court. It will be filed. Once the judgment is filed, the Court will release the appropriate funds to the appropriate parties from the Registry of the Court.
And that - [Ambers counsel] has promised, and [Thomass counsel] has promised - and Mr. Fuller is only here for a designated purpose - that this fully settles this case; correct?
[Thomass counsel]: Thats my understanding, yes, Judge.
[Trial judge]: Okay. Correct?
[Ambers counsel]: Yes, sir.
[Trial judge]: Correct?
[Amber]: Yes, sir.
[Trial judge]: Correct?
[Thomas]: Yes, sir.
B. The Trial Courts Final Judgment
A few weeks after the hearing, the trial court ordered Amber to execute a Release of Lis Pendens and have that instrument recorded. The trial court also ordered the title company to deposit $31,051 from Thomass refinancing of the marital home into the court registry. The court signed another order allowing Thomas to deposit an additional $597.67 from the title company into the court registry.
A few days later, the trial court signed a final judgment in which the court referred to the parties agreed settlement. The trial court ordered that $31,055 of the registry funds be tendered to Amber and that the remaining funds be tendered to Thomas. The trial court denied Ambers request for attorneys fees and denied Ambers request for interest on the $31,055.
C. Ambers Motion for New Trial
Amber filed a motion for new trial. The motion states:
Movant revokes her agreement stated on the record as it appear [sic] Respondent failed to comply with his agreement. Specifically, the agreement required Respondent to pay into the registry of the court all proceeds from the refinancing of the home in issue.
Amber also asserted that the trial court abused its discretion in failing to award interest and in failing to award any attorneys fees. The trial court denied Ambers motion for new trial. Amber timely perfected an appeal from the trial courts final judgment.
Amber now presents a half-dozen issues on appeal, challenging these and other trial court rulings. Thomas asserts that this court should dismiss the appeal based on the Rule 11 agreement, in which Thomas claims Amber waived her right to appeal all of the rulings Amber challenges on appeal.
II. ANALYSIS
We address the waiver-of-appeal issue first because if the parties have waived their right to appeal all of the rulings Amber challenges on appeal, then binding precedent calls us to dismiss Ambers appeal without reaching the merits of any other issues presented on appeal.
In response to Thomass argument that we should dismiss this appeal, Amber asserts that (1) the trial courts attempt to extract an agreement to waive appeal violated public policy because the court promised to be fair only if Amber waived her right to appeal the trial courts ruling; (2) Amber did not consent to the trial court waiving her property right to interest on the $31,055; (3) the trial court dictated the terms of the agreement; and (4) Thomas waived his right to request that this court enforce the Rule 11 agreement because Thomas did not cross-appeal and amend his pleadings to allege Amber breached the settlement agreement by appealing the judgment. Our threshold task is to determine if the parties have an enforceable Rule 11 agreement to waive the right to appeal.
A. Is there a Rule 11 agreement to waive the right to appeal?
Under Rule 11, Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. Tex. R. Civ. P. 11. The parties Rule 11 settlement agreement was not in writing, signed, and filed with the trial court; instead, the agreement was made in open court and entered of record. See id. ; Ronin v. Lerner , 7 S.W.3d 883, 888 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (holding that transcript of agreement to terms dictated into record proved Rule 11 agreement).
In a lengthy colloquy, the trial court, Ambers counsel, and Thomass counsel discussed the terms of the parties settlement agreement that obviated the need for trial in the enforcement proceeding that day. The trial court described the following terms of the settlement:
(1) Thomas would refinance the property in question to generate money to pay the $31,055 he owed to Amber under the divorce decree;
(2) Amber would release the lis pendens she filed on the property;
(3) the funds from the closing of the refinancing would be deposited in the courts registry;
(4) the trial court then would render a final judgment, ruling on Ambers requests for attorneys fees and for interest on the $31,055, and divide the registry funds between Thomas and Amber; and
(5) Thomas and Amber were waiving their appellate rights.
Ambers counsel at first stated that Amber would honor the trial courts ruling on her requests for attorneys fees and postjudgment interest. Thomass counsel then asked for clarification that Amber was waiving her right to appeal. After initially indicating that perhaps Amber was not waiving all of her rights to appeal, the trial court clarified that, under the proposed settlement, the parties were agreeing with whatever the judgment of the Court is and that they were waiving their appellate rights. Ambers counsel then conferred with Amber to confirm that Amber would agree to waiver of the appellate rights. The trial court indicated that the only issues that would be appealable absent a waiver would be the requests for attorneys fees and interest on the $31,055. Ambers counsel stated that as long as its reciprocal, my client does waive appellate rights to the decision on the interest and the attorneys fees.
Amber asserts that the trial court dictated the terms of the agreement and she did not consent. The trial judge indicated that he was dictating the terms of the parties agreement into the record as he understood them; the trial judge did not dictate that the parties must reach a particular agreement. Amber, through her attorney, expressly agreed on the record that she would waive her appellate rights as to the trial courts rulings on Ambers requests for attorneys fees and interest, provided that the waiver was reciprocal. See Estate of Crawford , No. 14-17-00703-CV, 2017 WL 5196309, at *1-2 (Tex. App.-Houston [14th Dist.] Nov. 9, 2017, pet. denied) (mem. op., per curiam) (holding that the right to appellate review may be waived by express agreement). Thomas, through his attorney, agreed to a reciprocal waiver of his appellate rights. By the terms of the agreement, Amber and Thomas agreed that each of them would waive appellate rights as to the trial courts rulings on Ambers requests for attorneys fees and interest. See id.
Before consenting to the waiver, Amber recognized and acknowledged the gravity of the decision to waive appellate rights. She took time out to confer with her counsel and to consider her options. Then, at the end of the process, in open court she plainly waived appellate rights as to the trial courts rulings on her requests for attorneys fees and interest. Though Ambers choice may not have led to the outcome she wanted, because she expressed her intent to waive these appellate rights, we must hold her to her agreement. See id.
B. Is the agreement void due to duress?
Amber asserts that her waiver of appellate rights is void due to duress. She says that the trial judge pressured her into making the Rule 11 agreement. A claim of duress requires proof that (1) a party made a threat or took action without legal justification; (2) the threat or action was of such a character as to destroy the other partys free agency; (3) the threat or action overcame the opposing partys free will and caused the party to do that which the party otherwise would not have done and was not legally bound to do; (4) the restraint was imminent; and (5) the opposing party had no present means of protection. McMahan v. Greenwood , 108 S.W.3d 467, 482 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). Amber does not specify the nature of the alleged threat or even allege that the trial judge made any particular threat or took any particular action without legal justification that overcame Ambers free will. The trial judge stated that he thought Thomass statute-of-limitations defense might be stronger than Ambers counsel thought, but Ambers counsel, as an attorney, was able to evaluate the trial judges statement and help Amber make an informed decision. Ambers counsel recognized and acknowledged the significance of waiving appellate rights and when he asked to consult with Amber on that point, the trial judge allowed Ambers counsel to take a break and confer with Amber before making a decision and consenting to the agreement in open court. Nothing in the record raises a genuine fact issue as to whether Amber was under duress when she made the Rule 11 agreement. See id.
C. Does the Rule 11 agreement violate public policy?
Amber asserts that the Rule 11 agreement violates public policy because the trial court promised to be fair only if Amber agreed to waive her appellate rights. The record does not indicate that the trial judge agreed to be fair only if Amber waived her appellate rights. The trial judge stood ready to go to trial on the enforcement action if the parties had not agreed to settle. The record does not indicate the trial judge resented going to trial or would hold Ambers decision not to settle against Amber in determining the merits of Ambers motion for enforcement or for clarification. Nothing in the record suggests that the trial judge would not treat Amber fairly unless Amber entered a Rule 11 agreement with Thomas. See Zimmerman v. Zimmerman , No. 04-04-00347-CV, 2005 WL 1812613, at *2-*3 (Tex. App.-San Antonio Aug. 3, 2005, pet. denied) ; Hollaway v. Hollaway , 792 S.W.2d 168, 170 (Tex. App.-Houston [1st Dist.] 1990, writ denied). The record contains no factual support for Ambers contention that the Rule 11 agreement violates public policy because the trial judge agreed to be fair only if Amber waived her right to appeal. See Zimmerman , 2005 WL 1812613, at *2-*3 ; Hollaway , 792 S.W.2d at 170.
D. Should this court enforce the Rule 11 agreement even though Thomas did not plead a breach-of-contract claim and file a cross-appeal?
Amber asserts that Thomas waived his right to enforce the Rule 11 agreement because Thomas did not amend his pleadings to assert that Amber breached the settlement agreement by appealing from the trial court judgment and because Thomas failed to file a cross-appeal. The trial courts judgment does not adjudicate whether Amber breached the settlement agreement by appealing from the trial courts judgment. Applicable precedent shows that Thomas did not have to amend his pleading in the trial court or file a cross-appeal to seek dismissal of the appeal based on Ambers waiver of her right to appeal in the settlement agreement. See Estate of Crawford , 2017 WL 5196309, at *1-2 ; In re Long , 946 S.W.2d 97, 98-99 (Tex. App.-Texarkana 1997, no writ). Thus, Thomas has not waived his right to enforce the Rule 11 agreement and Ambers waiver of her appellate rights.
Because Amber expressly agreed to waive her rights to appeal the trial courts rulings on her requests for attorneys fees and interest and because Amber has not shown that the agreement is unenforceable, we must enforce the parties agreement and dismiss Ambers appeal as to these issues. See Estate of Crawford , 2017 WL 5196309, at *1-2 ; In re Long , 946 S.W.2d at 98-99.
In her first and second issues and her assertions thereunder, Amber does not assign error as to any ruling other than the trial courts rulings on her requests for attorneys fees and interest, nor does Amber brief any argument under these three issues challenging any ruling other than the trial courts rulings on her requests for attorneys fees and interest. In her fourth issue and her assertions thereunder, Amber challenges the trial courts ruling on her requests for attorneys fees. In her third issue and the argument under it, Amber asserts the divorce decree is an owelty purchase money lien securing the $31,055.00 indebtedness in favor of [Amber] until the money judgment is satisfied or otherwise discharged. Neither in Ambers third issue nor in her argument does she tie this alleged owelty lien to any purported error by the trial court. In her prayer, Amber asks this court to clarify that the money judgment in the divorce decree accrues five-percent postjudgment interest, and she asks this court to render judgment enforcing the divorce decree by imposing an owelty purchase-money lien on the former marital homestead. Ambers third issue relates to her request for interest, and she has not assigned error in this issue or her argument under it as to any alleged error of the trial court other than the trial courts denial of her request for interest. See Kennedy Con., Inc. v. Forman , 316 S.W.3d 129, 138 n.10 (Tex. App.-Houston [14th Dist.] 2010, no pet.).
Because Amber waived her right to appeal the trial courts rulings on her requests for attorneys fees and interest, we enforce her agreement by dismissing her first three issues and the part of her fourth issue in which she challenges the trial courts ruling on her requests for attorneys fees. See Estate of Crawford , 2017 WL 5196309, at *1-2 ; In re Long , 946 S.W.2d at 98-99. We do not dismiss the remainder of Ambers appellate issues.
E. Has Amber sufficiently briefed her sixth issue and the part of the fourth issue in which she challenges the trial courts failure to award her court costs and mediation fees?
In the part of her fourth issue that we have not dismissed, Amber asserts that the trial court erred in failing to award her court costs and mediation fees. In her sixth issue, Amber asserts that the trial court erred in denying her motion for new trial. Amber states that the trial court erred in denying her motion for new trial because Thomas did not comply with the parties agreement that he would deposit all funds he received in the refinancing transaction into the trial courts registry. In her opening brief, Amber has not provided argument or analysis in support of either her proposition that the trial court erred in failing to award her court costs or mediation fees or her proposition that the trial court erred in denying her motion for new trial. Even construing Ambers opening brief liberally, we cannot conclude that Amber adequately briefed an argument that the trial court erred in failing to award her court costs or mediation fees or that the trial court erred in denying her motion for new trial. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.-Houston [14th Dist.] 2005, no pet.) ; Fox v. Alberto , 455 S.W.3d 659, 663, n.1 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). We find briefing waiver as to these points. See San Saba Energy, L.P. , 171 S.W.3d at 337 ; Fox , 455 S.W.3d at 663, n.1. Thus, we overrule the sixth issue and the part of the fourth issue that we have not dismissed.
F. Did the trial court err during the hearing on the new-trial motion by sealing certain records without complying with Texas Rule of Civil Procedure 76a ?
In her fifth issue, Amber asserts that the trial court erred in ordering certain records sealed at the hearing on her new-trial motion because the trial court failed to comply with Texas Rule of Civil Procedure 76a. See Tex. R. Civ. P. 76a. Rule 76a provides that no court order or opinion issued in the adjudication of a case may be sealed and that other court records, as defined in the rule, are presumed to be open to the general public and may be sealed only upon the showing specified in Rule 76a(1). See id. For the purposes of Rule 76a, court records means "all documents of any nature filed in connection with any matter before any civil court, except ... documents filed in an action originally arising under the Family Code. Tex. R. Civ. P. 76a(2). Ambers action seeking to modify or enforce the trial courts divorce decree under Chapter 9 of the Family Code is an action originally arising under the Family Code. See In re S.M.B. , No. 05-14-00745-CV, 2015 WL 3988034, at *2 (Tex. App.-Dallas Jul. 1, 2015, no pet.) (mem. op.). Under Rule 76(a)s clear text, the rule did not apply to the trial courts order sealing documents at the hearing on the new-trial motion, and the trial court did not err in failing to comply with Rule76a. See Tex. R. Civ. P. 76a ; In re R.C.K. , No. 09-16-00132-CV, 2016 WL 3197585, at *3, n.2 (Tex. App.-Beaumont June 9, 2016, no pet.) (mem. op.); In re S.M.B. , 2015 WL 3988034, at *2 ; In re Bain , 144 S.W.3d 236, 241 (Tex. App.-Tyler 2004, orig. proceeding) ; Monsanto Co. v. Davis , No. 10-02-00208-CV, 2004 WL 859159, at *1 (Tex. App.-Waco Apr. 21, 2004, no pet.) (mem. op.). Finding no merit in Ambers fifth issue, we overrule it.
G. Should this court impose sanctions on Amber under Texas Rule of Appellate Procedure 45 ?
In his appellate brief, Thomas asks this court to impose sanctions on Amber under Texas Rule of Appellate Procedure 45 on the basis that Amber filed a frivolous appeal. If, after considering everything in our file, we make an objective determination that an appeal is frivolous, we are authorized to award damages under Rule 45. Glassman v. Goodfriend , 347 S.W.3d 772, 782 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) (en banc). See Tex. R. App. P. 45. To determine whether an appeal is objectively frivolous, we review the record from the advocates viewpoint and decide whether the advocate had reasonable grounds to believe the case could be reversed. Glassman , 347 S.W.3d at 782. But, Rule 45 does not mandate that this court award damages in every case in which an appeal is frivolous. Id. The decision to award such damages falls within this courts discretion, which we exercise with prudence and caution after careful deliberation. Id. We conclude that damages under Rule 45 are not warranted in this case. Therefore, we deny Thomass request.
III. CONCLUSION
Amber and Thomas entered into a Rule 11 agreement in which they expressly waived their respective rights to appeal the trial courts rulings on Ambers requests for attorneys fees and interest. We reject the arguments Amber has raised to challenge the validity and enforceability of the waiver. Because Amber expressly agreed to the waiver, we enforce that agreement by dismissing her first three issues and the part of her fourth issue in which she challenges the trial courts ruling on her requests for attorneys fees. As to the remaining issues, we conclude that appellant has not shown that the trial court erred. Thus, we dismiss some of Ambers appellate issues and overrule the remaining issues. We affirm the trial courts judgment and sealing order.
In this opinion we refer to Thomas Chad Emerson and Amber Raquel Emerson by their first names because they have the same last name.
Emphasis added.
In her appellants brief, Amber lists the following issues presented: (1) Does the final divorce decree award Amber a money judgment in the amount of $31,055 accruing postjudgment interest as mandated by Texas Finance Code section 304.001, even though the post judgment interest rate is not stated on the decrees face? (2) Did the trial court err in failing to clarify the decree to include postjudgment interest on the $31,055 from the date of the decree? (3) Is the final divorce decree itself an owelty purchase money lien securing the $31,055.00 indebtedness in Ambers favor until the money judgment is satisfied or otherwise discharged? (4) Did the trial court err in failing to award any attorneys fees, court costs, and mediation fees? (5) Did the trial court err in sealing records on January 12, 2017 without following the procedure under Rule 76a of the Texas Rules of Civil Procedure ? And (6) Did the trial court err in denying Ambers motion for new trial?
We do not address the merits of any of the dismissed issues.
Even if we had not found briefing waiver as to these points, we still would overrule the sixth issue and the part of the fourth issue that we have not dismissed.
Amber has not briefed any other challenge to the trial courts sealing order.