Niki K. Dickehut v. Kenny Ozee
This text of Niki K. Dickehut v. Kenny Ozee (Niki K. Dickehut v. Kenny Ozee) is published on Counsel Stack Legal Research, covering Texas Court of Appeals, 2nd District (Fort Worth) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00583-CV ___________________________
NIKI K. DICKEHUT, Appellant
V.
KENNY OZEE, Appellee
On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CV25-0252
Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
On October 31, 2025, Appellant Niki K. Dickehut appealed the trial court’s
October 20, 2025 turnover order. She and Appellee Kenny Ozee have now filed a
“Joint Agreed Motion for Judgment Pursuant to Settlement Agreement” asking “that
the [c]ourt render judgment in accordance with their agreement.” As we will explain,
we construe the joint motion as a request to set aside the turnover order without
regard to the merits and to remand the case to the trial court for rendition of
judgment in accordance with the parties’ agreement, and we will grant that relief. See
Tex. R. App. P. 42.1(a)(2)(B).
On June 12, 2025, Ozee obtained a default judgment against Dickehut in Cause
No. CV25-0252 in the 43rd Judicial District Court of Parker County, Texas, and he
then obtained the challenged turnover order in that cause. Dickehut did not appeal
the default judgment.
But eight days after the trial court signed the turnover order, Dickehut attacked
the default judgment through a bill-of-review proceeding in Cause No. CV25-1732 in
the 43rd Judicial District Court, which remains pending. Three days later, Dickehut
made a deposit with the trial court to suspend enforcement of the turnover order in
Cause No. CV25-0252,1 appealed that turnover order, and filed an emergency motion
1 See Tex. R. App. P. 24.1(a), (c), 24.2(a)(1).
2 with this court to stay “all post-judgment enforcement” during the appeal’s pendency.
We stayed the turnover order’s deadlines and ordered a response to the motion.
By the response deadline, the parties informed us that they were working on a
settlement agreement and indicated that they expected to file a “motion to dismiss by
agreement under Texas Rule of Appellate Procedure 42.1.” Since then, the parties
have filed a “Joint Agreed Motion for Judgment Pursuant to Settlement Agreement”
notifying us that they have agreed to settle:
Exhibit A – Rule 42.1 Agreement
The parties have agreed to settle this matter for good and valuable consideration and entered into a Rule 11 Agreement in Cause No. CV-25-1732, which is related to the case on appeal from the 43rd District Court in Cause No. CV25-0252. In the agreement, Appellant agreed to pay Appellee a sum of money in exchange for transfer of title to an RV that was subject of the dispute, and the parties agreed to release one another and to file agreed motions to cause the underlying default judgment and turnover order to be vacated and set aside through the bill of review proceeding in Cause No. CV-25-1732 and in this appeal. To effectuate that agreement, the attorneys for the parties in this appeal in case number 02-25-00583-CV, pending in the Second Court of Appeals, hereby memorialize the agreement to settle and jointly request the Court to render judgment to vacate the default judgment and the turnover order.[2]
In the joint motion, the parties ask us to dispose of their appeal by rendering
judgment setting aside and vacating (1) the June 12, 2025 default judgment, which
The parties have not filed their entire settlement agreement, so we do not 2
know its complete terms, including what the parties have decided concerning Dickehut’s deposit made in lieu of bond.
3 Dickehut did not appeal; and (2) the October 20, 2025 turnover over, which she did.
The parties also state in a proposed order that they “will bear their own costs.”
“Texas law encourages parties to resolve their disputes by agreement.” Transcor
Astra Grp. S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 473 (Tex. 2022). To this end, the
appellate rules enable us, by “an agreement signed by the parties or their attorneys and
filed with the clerk,” to
(A) render judgment effectuating the parties’ agreement;
(B) set aside the trial court’s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance with the agreement; or
(C) abate the appeal and permit proceedings in the trial court to effectuate the agreement.
Tex. R. App. P. 42.1(a)(2).
But we must have jurisdiction to grant the requested relief, and here, Dickehut
did not appeal the default judgment but instead filed a bill-of-review proceeding. See
Carmona v. Stahely, No. 14-07-00448-CV, 2008 WL 450369, at *1 (Tex. App.—
Houston [14th Dist.] Feb. 21, 2008, no pet.) (per curiam) (mem. op.) (explaining that
appellate court lacked jurisdiction in a turnover-order appeal to also review an
untimely appealed default judgment (citing In re K.A.F., 160 S.W.3d 923, 927 (Tex.
2005))); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926–27 (Tex. 1999) (“A bill
of review is an independent action to set aside a judgment that is no longer appealable or
subject to challenge by a motion for new trial.” (emphasis added)).
4 And although the parties request that we render judgment vacating the default
judgment in accordance with their agreement, parties cannot confer jurisdiction on us
by agreement. See Hahn v. Sw. Double D Ranch, LP, No. 05-16-00111-CV,
2017 WL 1832505, at *2 n.1 (Tex. App.—Dallas May 8, 2017, no pet.) (mem. op.);
Jack M. Sanders Fam. Ltd. P’ship v. Roger T. Fridholm Revocable, Living Tr., 434 S.W.3d
236, 240 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Accordingly, we lack
jurisdiction in this appeal to disturb the default judgment. See Carmona,
2008 WL 450369, at *1.
The parties have stated that they “have settled and have fully compromised and
resolved all claims at issue in this appeal,” have acknowledged reaching a separate
Rule 11 agreement in the pending bill-of-review proceeding, have not explained to us
the complete terms of their settlement agreement, and have requested that we render
judgment vacating both the turnover order and the default judgment—the latter over
which we lack jurisdiction. In this situation, we conclude that the parties’ joint motion
should be granted in part and denied in part. See Tex. R. App. P. 42.1(a)(2), 43.2(d);
Billy Thomas & Paisano Ready Mix, Inc. v. Reese, No. 02-18-00338-CV, 2019 WL 984174,
at *1 (Tex. App.—Fort Worth Feb. 28, 2019, no pet.) (mem. op.); see also Cunningham
v. Cunningham, No. 2-08-362-CV, 2008 WL 5479677, at *1 & n.2 (Tex. App.—Fort
Worth Oct. 30, 2008, no pet.) (per curiam) (mem. op.) (stating that Rule 42.1(a)(2)’s
disjunctive use of or did not permit the court to grant the parties’ request to
5 “‘effectuate [their] agreement’ by ‘vacating and setting aside [the challenged order]’”;
“[W]e cannot do both.”).
Accordingly, without regard to the merits, we set aside the trial court’s turnover
order in Cause No. CV25-0252 and remand the case to the trial court for rendition of
judgment in accordance with the parties’ settlement agreement.3 See Tex. R. App. P.
42.1(a)(2)(b), 43.2(d); Innovative Off. Sys., Inc. v. Johnson, 911 S.W.2d 387, 388 (Tex.
1995).
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