1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO
. 09
- 1 2
- 00 499
- C V



### ____________________ LINDA STARK BARRAS , Appellant
V.
WILLIAM STARK III , INDEPENDENT EXECUTOR OF THE ESTATE OF IDA DICKENS STARK, Appellee

_______________________________________________________ ______________ On A ppeal 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 , neg ligence , and gross negligence. T he suit also sought a declaratory judgment and2 removal of William as executor. Following a settlement agreement, the trial court
dismissed the cas e
. 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

. A nd she argues that the trial court erred in dismissing the case without a ffording
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 accep ted the benefits of a judgment, an appellant is estopped f r om 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 s he has v oluntarily accepted the benefits of a judgment, s he cannot
afterward prosecute an appeal from it.) ; Leedy v. Leedy , No. 14

- 11

- 00911

- CV, 2013 WL 1197775, at **2

- 3 (Tex. App.

— Houston [14 th Dist .] Mar. 26, 2013, no pet.); Mueller v. Banks , 332 S.W.2d 783, 786 (Tex. Civ. App.

— San Antonio 1960,3 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 except ion to the acceptance

- of

- benefits doctrine , because she claims
entitle ment 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 a ppellant has not establish ed that her right to the funds w as conceded by appellee to be due her without the settlement
and the judgment. She has not shown that, i f 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 affecte d by a reversal of the judgment.4 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 i n the trial court before the judgment was signed or in her
motion for new trial. S he first raised the issue in response to appellee’s response to
her motion for new trial

. I n her response she simply state d that the written document conflicted with the settlement agreement dictated into th e 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 accep ted the benefits of the judgment. T he dismissal order, with prejudice, constitutes the court’s judgment. S he cannot contest that judgment after she accept s her benefits. The judgment is affirmed.
A FFIRMED.

________________________________ DAVID GAULTNEY Justice
Submitted on June 4 , 201 3 Opinion Delivered July 11, 2013
Before McKeithen, C.J., Gaultney and Horton , JJ.