                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00499-CV
                          ____________________

                     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
________________________________________________________          _____________

                         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.


                                              ________________________________
                                                       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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