                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                                NO. 2-08-387-CV


GRAY LAW, L.L.P.                                                  APPELLANT
                                        V.

T & H PARTNERS, LTD.                                                APPELLEE


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           FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In six issues, Appellant Gray Law, L.L.P. appeals the trial court’s order

granting summary judgment and a motion to dismiss in favor of Appellee T &

H Partners, Ltd. Because we conclude that the underlying issues are moot, we

dismiss this appeal for lack of jurisdiction.

                        II. Factual and Procedural History


      1
          … See Tex. R. App. P. 47.4.
      In 2002, Katheryn Gray and Jay Gray filed for divorce. In March 2005,

Jay, a partner in Gray Law entered into a rule 11 agreement with Katheryn

authorizing the sale of Gray Law’s lot and building and asking the divorce court

to appoint James Handy as receiver to accomplish the sale. In June 2005,

Handy executed a contract for sale of the property and filed a receiver’s motion

for confirmation of contract.

      During a hearing on the motion, Jay argued that Gray Law was not

subject to his and Katheryn’s rule 11 agreement, that the property was not part

of the community estate, and that Gray Law had not appeared before the

divorce court at the time Jay and Katheryn entered into the rule 11 agreement.

The divorce court noted, however, that Jay had agreed to the sale and that the

only other partner in Gray Law, John R. Howie, Jr., had also agreed to the sale.

At the conclusion of the hearing, the divorce court granted the motion for

confirmation of the contract and ordered that the net proceeds from the sale of

the property be deposited into the court registry.

      In July 2005, Gray Law filed a petition for writ of mandamus in this court

requesting emergency relief, contending that the divorce court’s order

appointing a receiver over partnership property and approving the receiver’s sale

of the property was void because the partnership’s property was not subject to

the community estate and was sold without notice or hearing to the

                                       2
partnership. In August 2005, this court issued a memorandum opinion denying

Gray Law’s requested relief. In re Gray Law, L.L.P., No. 02-05-00271-CV,

2005 WL 1838967, at *1 (Tex. App.—Fort Worth Aug. 3, 2005, no pet.)

(mem. op.). In September 2005, Handy conveyed the subject property to 121

Properties, L.P. and filed a motion to approve the final sale report.

      During a hearing on the motion, Gray Law reiterated the same objections

to the receiver selling the property that it had made during the previous hearing.

At the conclusion of the hearing, the divorce court approved the order

submitted by Handy and ordered that the monies from the sale be placed in the

court registry for Gray Law. In November 2005, Gray Law filed a petition for

writ of mandamus in this court arguing that the proceeds of the sale should be

paid to Gray Law. In April 2006, this court issued a memorandum opinion in

which we concluded that the monies from the sale of the subject property

belonged to the partnership and therefore should be paid to Gray Law. In re

Gray Law, L.L.P., No. 02-05-00379-CV, 2006 WL 1030206, at *4 (Tex.

App.—Fort Worth Apr. 20, 2006, no pet.) (mem. op.).           In May 2006, the

divorce court signed an order paying the monies to Gray Law.

      In December 2006, the divorce court entered a final judgment in Jay and

Katheryn’s divorce proceedings that dismissed all of Gray Law’s claims against

Katheryn.   In March 2007, Gray Law and Jay, individually, gave notice of

                                        3
appeal from the December 2006 final judgment. Gray Law argued that the

divorce court lacked jurisdiction over it at the time the divorce court approved

the sale of Gray Law’s property and therefore the sale was void. In November

2007, this court expressed its concern that, because the proceeds from the sale

of the subject property had been disbursed to Gray Law, the appeal was moot

and would be so adjudicated absent a showing of grounds for continuation of

the appeal.   Jay and Gray Law responded in writing that they had “no

objection” to the appeal being dismissed as moot.       In response, this court

issued a memorandum opinion and judgment that dismissed the appeal as moot.

Gray v. Gray, No. 02-07-00099-CV, 2008 WL 110450, *1 (Tex. App.— Fort

Worth Jan. 10, 2008, no pet.) (mem. op.).

      In February 2007, Gray Law filed a trespass to try title action against T

& H—the current owner of the subject property—asserting that, because the

trial court lacked subject matter jurisdiction over Gray Law in the prior

proceedings, the divorce court’s orders appointing a receiver and approving the

sale of Gray Law’s property were void. In response, T & H filed both a motion

to dismiss as moot and a no-evidence motion for summary judgment. In August

2008, the trial court granted both motions in favor of T & H.      This appeal

followed.

                       III. Acceptance of the Benefits

                                       4
      On appeal, Gray Law challenges the divorce court’s orders appointing a

receiver over, and approving the sale of, Gray Law’s property. Specifically,

Gray Law argues that because the divorce court, in the prior proceedings,

lacked jurisdiction to enter the orders, the orders were void and therefore a

controversy exists, in the current proceedings, as to the property’s chain of

title. T & H, however, asserts that Gray Law’s acceptance of the sale proceeds

in the prior proceedings renders this appeal moot and thereby deprives this

court of jurisdiction.2 Thus, as a threshold matter, we must determine whether

we have jurisdiction over this appeal.

      Under the acceptance of benefits doctrine, a party who has voluntarily

accepted the benefits of a judgment may not thereafter prosecute an appeal

from it. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). There

are two exceptions to this doctrine. First, a party who has voluntarily accepted

benefits of a judgment may prosecute an appeal if it would still be entitled to

those benefits upon reversal of a judgment and retrial of the case. Id. Second,

a party may prosecute an appeal if it must accept the benefits of the judgment




      2
        … In oral arguments before this court, Gray Law claimed that T & H had
failed to raise the acceptance of benefits doctrine in its motion for summary
judgment and therefore had waived this issue on appeal. However, the record
reflects that T & H raised the acceptance of benefits doctrine in its motion to
dismiss as moot.

                                         5
because of financial duress. Haggard v. Haggard, 550 S.W.2d 374, 376 (Tex.

Civ. App.—Dallas 1977, no writ). In the latter situation, the party is said not

to have “voluntarily” accepted the benefits of the judgment. See id. If the

doctrine applies, the appeal is rendered moot and the proper disposition is

dismissal. Bloom v. Bloom, 935 S.W.2d 942, 945 (Tex. App.—San Antonio

1996, no writ); City of Mesquite v. Rawlins, 399 S.W.2d 162, 169 (Tex. Civ.

App.—Tyler 1966, writ ref’d n.r.e.).

      Here, Gray Law concedes that it accepted the proceeds from the sale of

its property. Therefore, we must determine whether one of the exceptions

applies.

      A. Entitlement to the Proceeds

      The evidence does not support, and Gray Law does not argue, that it

would be entitled to the sale proceeds upon reversal of the judgment and retrial

of the case. See Carle, 234 S.W.2d at 1004. On the contrary, Gray Law,

during oral arguments, stated that it would be willing to return the proceeds

upon reversal of the judgment. Therefore, we hold the first exception—that is,

entitlement to the proceeds upon reversal of the judgment—does not apply.




                                       6
      B. Economic Duress

      As to the second exception, economic duress, Gray Law argues that it

only accepted the proceeds because it “was left no alternative.” In support of

its argument, Gray Law directs our attention to the petition for writ of

mandamus that it filed in this court, in which Gray Law, in essence, asked this

court to stop the sale of its property and we denied relief.     However, the

economic duress exception may be claimed only when the party against whom

it is claimed was responsible for the claimant’s financial distress. Deer Creek

Ltd. v. North Am. Mortgage Co., 792 S.W.2d 198, 203 (Tex. App.—Dallas

1990, no writ); Gaspard v. Logix Commc’ns Corp., No. 14-00-00688-CV, 2001

WL 1590080, at *2 (Tex. App.—Houston [14th Dist.] Dec. 13, 2001, no pet.)

(not designated for publication). Here, Gray Law does not claim, nor does it

produce evidence indicating, that T & H was responsible for its financial

distress.3 Therefore, because T & H is not the party responsible for Gray Law’s



      3
        … Gray Law had the opportunity to overcome the acceptance of benefits
doctrine when it appealed the divorce court’s final judgment and this court sent
a letter to Gray Law stating that the appeal would be dismissed as moot unless
a showing of grounds for continuation was provided. See Smith v. Smith, 143
S.W.3d 206, 212 (Tex. App.—Waco 2004, no pet.) (holding that, because of
the economic circumstances created by the court’s property division, wife’s
acceptance of the benefit was not voluntary and therefore husband’s argument
as to the acceptance of benefits doctrine did not apply). At that time, however,
Gray Law responded that it had no objection to the appeal being dismissed as
moot. See Gray, 2008 WL 110450, at *1.

                                       7
financial distress, we hold the second exception to the acceptance of benefits

doctrine does not apply.

                                IV. Conclusion

      For the reasons stated above, we conclude the acceptance of benefits

doctrine applies and therefore renders this appeal moot.     See Bloom, 935

S.W.2d at 945; see also City of Mesquite, 399 S.W.2d at 164. Accordingly,

we dismiss this appeal for lack of jurisdiction.




                                            BOB MCCOY
                                            JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: August 6, 2009




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