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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.