Linda Stark Barras v. William Stark III, Independent of the Estate of Ida Dickens Stark ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00499-CV
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LINDA STARK BARRAS, Appellant
V.
WILLIAM STARK III, INDEPENDENT EXECUTOR OF
THE ESTATE OF IDA DICKENS STARK, Appellee
_______________________________________________________ ______________
On Appeal from the County Court at Law
Orange County, Texas
Trial Cause No. P15033
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MEMORANDUM OPINION
The will of Ida Dickens Stark was probated in 2008. William Stark III was
appointed executor of her estate. Linda Stark Barras, Randall Stark, and William
Stark III were beneficiaries under the will. In 2010, Linda and Randall sued
William, individually and as executor of the estate, for breach of fiduciary duty,
negligence, and gross negligence. The suit also sought a declaratory judgment and
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removal of William as executor. Following a settlement agreement, the trial court
dismissed the case. Linda filed this appeal.
Linda argues that she revoked consent to the Rule 11 settlement agreement
before the rendition of judgment, and the trial court should have refused “to
sanction the agreement by making it the judgment of the court.” She also claims
that the trial court’s judgment does not comport with the settlement agreement.
And she argues that the trial court erred in dismissing the case without affording
her a right to a trial on the merits.
The judgment of dismissal references settlement of the parties’ “issues and
causes of action . . . as set forth in their pleadings” and the settlement documents.
William argues that Linda’s issues are moot because she ratified the judgment by
accepting its benefits. Having voluntarily accepted the benefits of a judgment, an
appellant is estopped from challenging the judgment on appeal. See Tex. State
Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002) (citing Carle v. Carle, 234
S.W.2d 1002, 1004 (Tex. 1950)) (A party cannot treat a judgment as both right and
wrong, and if she has voluntarily accepted the benefits of a judgment, she cannot
afterward prosecute an appeal from it.); Leedy v. Leedy, No. 14-11-00911-CV,
2013 WL 1197775, at **2-3 (Tex. App.—Houston [14th Dist.] Mar. 26, 2013, no
pet.); Mueller v. Banks, 332 S.W.2d 783, 786 (Tex. Civ. App.—San Antonio 1960,
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no writ) (One who “accepts and retains the benefits and fruits of a judgment is
thereafter estopped to assert its invalidity,” and “a party may lose his right to attack
a void judgment by such conduct as to work an equitable estoppel.”).
Linda does not dispute that she accepted benefits. Linda argues that she falls
under an exception to the acceptance-of-benefits doctrine, because she claims
entitlement under the will to at least the amount she accepted, and her attack on the
judgment involves the right to further recovery.
A narrow exception exists when the appellee concedes the benefit is due
appellant, and the issue is whether an additional amount is also due. In re Marriage
of Christodolou, 383 S.W.3d 718, 722 (Tex. App.—Amarillo 2012, no pet.). As
long as an appellant “‘accepts only that which appellee concedes, or is bound to
concede, to be due him under the judgment he is not estopped to prosecute an
appeal which involves only his right to a further recovery.’” Amaro, 87 S.W.3d at
544 (quoting Carle, 234 S.W.2d at 1004). But appellant has not established that her
right to the funds was conceded by appellee to be due her without the settlement
and the judgment. She has not shown that, if the judgment dismissing her causes of
action is reversed on the issues she has raised on appeal, she would have an
undisputed right to the funds she accepted. Her rights to the benefits she accepted
would be affected by a reversal of the judgment.
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Linda also argues that what she describes as the court’s judgment does not
comport with the actual settlement agreement that was dictated into the record and
agreed to by all attorneys and parties in open court. She did not timely raise these
alleged differences in the trial court before the judgment was signed or in her
motion for new trial. She first raised the issue in response to appellee’s response to
her motion for new trial. In her response she simply stated that the written
document conflicted with the settlement agreement dictated into the record “in
numerous respects.” She did not identify with specificity the alleged conflicts for
the trial court. See Tex. R. App. P. 33.1. Moreover, she had already accepted the
benefits of the judgment. The dismissal order, with prejudice, constitutes the
court’s judgment. She cannot contest that judgment after she accepts her benefits.
The judgment is affirmed.
AFFIRMED.
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DAVID GAULTNEY
Justice
Submitted on June 4, 2013
Opinion Delivered July 11, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.
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