Opinion
No. 05-10-01098-CV
Opinion Filed October 31, 2011.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-03225-2008.
Before Justices MORRIS, O'NEILL, and FILLMORE.
MEMORANDUM OPINION
This appeal involves appellant Susan Payberah, M.D.'s challenge to a final judgment entered as a result of a settlement agreement. In three issues, she argues (1) the final judgment does not dispose of all issues and causes of action; (2) the terms of the final judgment do not match the terms agreed upon by the parties; and (3) the judgment should be overturned because evidence introduced at trial is in direct conflict with the verdict. We limit recitation of the facts because these matters are well-known to the parties. We issue this memorandum opinion because the law to be applied in the case is well-settled. See Tex. R. App. P. 47.4. We affirm the trial court's judgment.
Appellant and appellees formed a professional association for the practice of medicine. Appellees filed a civil suit alleging breach of contract against appellant, and appellant filed several counterclaims. The parties eventually entered into a settlement agreement, which the court accepted and entered as a final judgment.
Appellant asserts the final judgment should be overturned because it does not dispose of all the issues and causes of action raised in the original petition and counterclaim. We construe appellant's argument as a challenge to this Court's jurisdiction.
In general, we have jurisdiction to review final and definite judgments. Cooke v. Cooke, 65 S.W.3d 785, 787 (Tex. App.-Dallas 2001, no pet.). A final judgment fully disposes of all issues and all parties. Id.
During the March 10, 2010 settlement hearing, appellant's attorney stated, "The first point, Judge, is the Court will take a dismissal of the current case as to all claims by all parties and will dismiss the case with prejudice." Appellees' attorney agreed. The final judgment incorporates the parties' agreement by stating that "all claims by Plaintiffs against Defendant, and Defendant against Plaintiffs, which either were or which could have been asserted, dismissed with prejudice." Appellant requested the court to dismiss all claims against appellees, and the trial court incorporated the agreement into the final judgment. Accordingly, the judgment disposes of all issues and is a final, appealable judgment. We overrule appellant's first issue.
In her second and third issues, appellant assets the terms in the final judgment do not match the terms agreed upon by the parties, and the evidence introduced during the hearing is in direct conflict with the verdict. We conclude appellant has waived these remaining issues.
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with that right. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); Lang v. Lee, 777 S.W.2d 158, 164 (Tex. App.-Dallas 1989, no writ). Waiver can be established by an express renunciation of a known right. Jernigan, 111 S.W.3d at 156. In determining if waiver has in fact occurred, the court must examine the acts, words, or conduct of the parties and it must be "equivocally manifested" that it is the intent of the party to no longer assert the right. Robinson v. Robinson, 961 S.W.32d 292, 299 (Tex. App.-Houston [1st Dist.] 1997, no writ).
At the conclusion of the settlement hearing, the court asked appellant, "And you are agreeing that you understand that you are not-no longer going to prosecute the appeal that you currently have and will not appeal or attempt to appeal any other orders of this court that will be issued as a result of this settlement agreement?" Appellant agreed and said she understood. We conclude appellant unequivocally manifested her intent to waive her right to appeal the issues she now raises on appeal. Cf. Recognition Commc'ns, Inc. v. Am. Auto Ass'n, Inc., 154 S.W.3d 878, 885 (Tex. App.-Dallas 2005, pet. denied) (holding statement by attorney established party's intent to waive right to appeal a specific jury finding but did not waive party's right to appeal as to the entire case). Accordingly, appellant's second and third issues are overruled.
Lastly, we acknowledge appellant raised several new arguments in her reply brief, including the district court violating her due process rights. However, a reply brief may not be used to raise new issues. See Dallas Cnty v. Gonzales, 183 S.W.3d 94, 103 (Tex. App.-Dallas 2006, pet. denied). Thus, we need not address these arguments.
Having overruled appellant's issues, we affirm the trial court's judgment.