### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00133- CV

Lisa Kastlem an, App ellant

v. Bryan Kastle m an, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -F M- 09- 0025 98, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

L isa Kastleman a

ppeals fr om a cor

rec ted final de cre e of divorc e g rante d to her a nd Br y an Kastleman. I n four issues, L isa contends that the trial court err ed in ( 1) denying her motion
to set aside the parties’ informal settlement ag ree ment, (2) rende ring a decr ee that contains terms not ag ree d to by the parties, (3) awa rding attorney ’s fee s to Br y an in its order deny

ing L isa’s motion for new trial, and (4) awa

rding additional attorney ’s fees as sanctions agai n s t L isa for filing a motion
to set aside the informal settlement ag ree ment. Br y an has filed a motion to dismiss L isa’s appea l on the g round that she has acc epted the benef its of the judgme nt she is appea ling. For the rea sons that follow, we g rant the motion and dismiss the appea l.

F ACTUAL AND P ROCEDURAL BACK GR OUND L isa filed for divorce on May 15, 2009. The parties at t en ded mediation on Aug ust 1 2 , 2 0 1 1 , but rea ched no ag ree ment. They continued to neg otiate informally and onAug us t 1 5 , 2011, rea ched an ag ree ment conce rning their child. Fur ther informal settlement discussions resulted in a proper ty settlement ag ree ment on Aug ust 18, 2011, that included rele ases of all cla ims by

all parties. The settlement ag ree ment provided in la rg e, bold print that it was not 1 subject to revoc ation and wa s binding on a ll parties. The settlement ag ree ment also provided that Br y an would appe ar in c ourt at t he first available time to prese nt evidence and sec ure r endition of judgme nt in accor dance with the settlement agree ment, which he did on August 19, 2011.

On J uly 12, 2012, following approva l of t he settl ement agr eeme nt and rendition of judgme nt but prior to the trial court’ s signing a divorc e dec ree , L isa filed a motion to set aside the informal settlement ag ree ment alleg ing that Br y an had committed fra

ud by failing to disclose assets and forg ing her name on documents. Br y an filed a motion for sanctions ag ainst L isa contending that all of the issues raise d i n L isa’s motion wer e known to her at the time she signe d the settlement
agr eeme nt and seeking attorney ’s fee s under Rule 13 and Chapter 10 of the Civil Practi ce an d Remedies Code. See Tex. R. Civ. P. 13; Tex. Civ. Prac. & Rem. Code §§ 10.001.–.006. On October 8 , 2 0 1 2 , t h e trial court denied L isa’s motion to set aside the informal settlement ag ree ment and
g rante d Br

y an’s motion for sanctions, awa rding attorney ’s fee s as reque sted for the work perf ormed

on behalf of Br

y an and his two companies in the amount of $32,215.85. On October 11, 2012, the 2

L isa also sued Bry an’s father and four of Bry an’s separate propert y co m p an i es, alleging 1 actua l and constructive fra ud, brea ch of fiduciar

y duty , forg ery , and conspirac y . She subsequently dismiss ed her claims ag ainst Br y an’s fathe r and two of the companies. The rema ining two companies wer e parties to the s et t l em en t ag ree ment. In addition, J o Sumrall intervene d in the divorce proce eding asser

ting a justiciable interest in the rea l proper ties by virtue of her employ ment ag ree ment with Br

y an. She was also a party to t he settlement ag ree ment and expressly did not rele ase her claims ag ainst Br y an and his companies. Sumrall is not a party to this appea l, and her claims ag ainst Br

y an ar e not bef

ore us. Sumrall was also awa

rded attorney ’s fee s as sanctions, but L isa does not appea l that awa rd. 2 2trial court hear d Br y an’s Motion to Sign Dec ree of Divorce

. After ruling on the parties’ reque sts for various clar ifications and modifications to the s et tlement ag ree ment, the trial court signe d the divorce decr ee. L isa reque sted, and the trial court e ntere d, finding s of fa ct and conclusions of law in support of the divorce decr ee, the denial of L isa’s motion to set aside the settlement ag ree ment, the possession order , and the sanctions order

. L isa subsequently filed motions to set as i de the sanctions order and the divorce decr ee; a motion for new trial; and a motion to modify , corr ect, and ref orm the j udg ment. After

hear ing the motions, t he trial c ourt signe d a correc ted di vorce decr ee, denied the motions to set aside the decr ee and for new trial, and signe d an amende d order g ranting sanctions in the same amount as previously order ed. At L isa’s reque st, the trial court enter ed revised finding s of fac t and conclusions of law to include finding s and conclusions in support of the

corr ecte d divorce decr ee and amend ed s an ct ions order

. In Dec ember 2012, L isa filed a second motion for new tria l, which the trial c ourt denied. This a ppeal f ollowed.

MOTION TO DIS MISS I n his motion to dismiss , Br y an contends th at this appea l should be dismiss ed beca use L isa has acc epted the benef its awa rded in the decr ee. Gene rally , a party that acc epts benef its under

a judgment is estopped from challeng ing the judgme nt on appea l. Texas State Bank v. Amaro , 87 S.W .3d 538, 544 (Tex. 2002); Carle v

. Carle , 234 S.W .2d 1002, 1004 (Tex. 1950)

. “A litigant
cannot tre at a judg ment as both rig ht and wrong , and if he has voluntarily acc epted the benef

its of

a judgme nt, he cannot afte rwa rd prosec ute an appea l there from.” Carle , 234 S.W .2d at 1004. “This doctrine arises often in divorce case s when one spouse acc epts cer tain benef its of the judgme nt and then tries to appea l the rema inder of the judgme nt.” W aite v. W aite , 150 S.W .3d 797, 803 (Tex.
3App.—Houston [14t h Dist.] 2004, pet. denied)

. The burden is on the m o v an t / appellee to

demonstrate the application of the acc eptanc e of benef its doctrine. Leedy v. Leedy , 399 S.W .3d 335, 339 (Tex. App.—Houston [14t h Dist.] 2013, no pet.); W aite , 1 5 0 S.W .3d at 803. This burden is satisfied if the rele vant fac ts showing voluntary acc eptanc e of benef its of the judgme nt are ref lected in the rec ord or develope d throug h aff idavits supporting the motion to dismiss

. Demle r v. Demle r , 836 S.W .2d 696, 697–98 (Tex. App.—Dallas 1992, no writ), disapproved on other grounds , Dallas Mkt. Ct r. Dev

. Co. v. L iedek er , 958 S.W .2d 382, 386 (Tex. 1997) (per curiam); Rogers v. Rogers , 806 S.W .2d 886, 889 (Tex. App.—Corpus Christi 1991, no writ).

Once an appellee establishes an acc eptanc e of benef it s , t he burden shifts to the appellant to show either that the doctrine does not apply or that an exception to the doctrine applies. Leedy , 399 S.W .3d at 339; Gathe v. Gathe , 376 S.W .3d 308, 313 (Tex. App.—Houston [14t h Dist.] 2012, no pet.). The doctrine doe s not apply when the a

ppellant’s acc eptanc e of the benef its is due
to economi c nece ssity or when the appellant’ s rig ht to the benef it acc epted could not possibly be aff ecte d by reve rsal of the judgme nt. Gathe , 376 S

. W

. 3 d at 313; W aite , 150 S.W .3d at 803–04. Acc eptanc e of cash benef its is an exception to the d o ct ri n e. Demle r , 836 S.W .2d at 698 (“A cce ptance of ca s h b en ef i t s has been held as an exception to the g ener al rule announce d in Carle .”). Gene rally , this exception applies if the benef it acc epted was cash, the use of which would

n o t prejudice the appellee

. See Sprague v. Sprague , 363 S.W .3d 788, 793 (Tex. App.—Houst o n [14t h Dist.] 2012, pet. denied) ; Demle r , 836 S.W .2d at 698; Haggard v. Haggard , 550 S.W .2d 374, 377 (Tex. Civ. App.—Dallas 1977, no writ). When the doctrine applies and no exception is shown,

an appea l is rende red moot. F.M.G.W

. v. D.S.W

. , 402 S.W .3d 329, 332 (Tex. App.—El Paso 2013,

4no pet.). I f a case become s moot, the partie s l o s e st anding to maintain their claims, depriving the

appellate court of subject matter jurisdiction, and dismiss al is appropr iate. Id. ; Harlow Land C o . v. City of Melissa , 314 S.W .3d 713, 716 (Tex. App.—Dallas 2010, no pe t.).

Her e, Br y an argues that L isa acc epted the benef its of the decr ee by acc epting renta l
proce eds and by asking the court to en fo rc e her rights to cer tain persona l proper

ty awa rded to her in the settlement ag ree ment and decr ee. Br y an has not cited any evidenc e in the rec ord or prese nted 3
any additional evidenc e with his motion that L isa actua lly obtained or acc epted the persona l proper ty
at issue and there fore has not met his burden to establish acc eptanc e of benef its with reg ard to that proper ty
. See Leedy , 3 9 9 S

. W.3d at 339; W aite , 150 S.W .3d at 803; Demle r , 836 S.W .2d at 698 (dec lining to addre ss alleg ed basis for acc eptanc e of benef its wher e appellee d i d n o t p resent and

rec ord did not contain any evidenc e of a lleg ed basis). We tur n, then, to B ry an’s argument that L isa ac cepte d renta l proce eds. Br y an cites L isa’s testimony that she voluntarily acc epted approximately $20,000 per month in renta l proce eds from proper

ties in Midland/Odessa awa rded to her in the settlement ag ree ment and decr ee. L isa does
not dispute her acc eptanc e of renta l proce eds but ar g ues that it falls under the cash benef its exception. She contends that Br y an has not established the total amount she acc epted, but assuming she acc epted $ 20,000 from J uly 2012 to October 2013, it would amount to $320,000, or

L isa appea

rs to construe Br

y an’s motion as asser

ting three additional way s in w hich L isa 3 acc epted the benef

its of the decr ee. We do not so construe Br y an’s motion. R at her, we rea d the motion as asser

ting those additional arguments in support of Br y an’s contention that economic nece ssity does not prec lude application of the ac cepta nce of the bene fits doctrine in this case

. 5approximately one-te nth of the value of the community estate. L isa further cites her testimony that 4 she would be able to ma

ke any funds she acc epted available to be divided by the court in the event of a r emand. The cash benef its exception applies when only ca s h b enefits are acc epted. In the Interest of

L.T. , No. 05-12-01560- CV, 2014 Tex. App. L EXI S 6025, at *13 n.4 (Tex. App.—Dallas J une 3, 2014, no pet.) (mem. op.) (r ec o gnizi ng exception to acc eptanc e of benef its doctrine when appellant has rec eived only cash pay ments , t h e u s e of which would not prejudice appellee ); see Demle r , 836 S.W .2d at 698 (applying exception wher e only benef i t ac ce p t ed was cash) ; Trevino

v. Trevino , 555 S.W .2d 792, 795–96 (Tex. Civ. App.—Corpus Christi 1977, no writ) (apply ing cash benef its exceptio n an d emphasizing that only cash benef its wer e acc epted) ; Argovitz v. Argovitz , No. 14-04-00885- CV, 2005 T ex . App. L EXI S 8795, at *9 (Tex. App.—Houston [14t h Dist.] Oct. 25, 2005, no pet.) (mem. op.) (citing Trevino and declining to apply cash benef its exception wh er e re al p roper

ty and other assets wer e also acc epted) ; see also Leedy , 399 S.W .3d at 342 (appe llee who contende d cash benef its exception applied beca use only benef

it acc epted was cash but offe red no support for contention did not meet bu rd en t o demonstrate exception applied). L isa testified that she acc epted renta l pay ments from the Midland/Odessa proper ties awa rded to her in the settlement ag ree ment a

n d d e cre e and also ref

inance d the proper

ties in acc ordanc e with the settlement
ag ree ment and decr ee. Her testimony nece s s ar i l y est ablishes that she acc epted rea l proper ty in

I t is unclea

r why L isa posits this period of time for calc ulation of the amount of renta l funds 4 she has a cce pted, but resolution of this question is not necessar y to our dispositi on. 6addition to cash pay ments. Fur

ther, the rec ord contains the trial cour t ’s fi ndings of fac t and 5 conclusions of l aw , wh i ch include a finding that L isa has acce pted s ubstantial assets and funds i n

excess of $1,000,000. L isa does not challeng e this finding , and it is binding on this Court unless the
contra ry is established as a matter of law or there is no evidenc e to support the finding

. McG alliard

v. Kuhlmann , 722 S.W .2d 694, 696 (Tex. 1986). L isa’s testimony is some evidenc e that L isa

acc epted rea l proper

ty and other assets so that the trial court’s finding i s b i n d i n g. S ee id. L isa’s
argument do es not addre ss the fac t that she did not acc ept only cash benef its but also acc epted

rea l proper

ty and other unsp ec i fi ed assets as stated in the court’s unchalleng ed finding

. We ther ef o re conclude that L isa has not met her burden of establishing that the cash benef its exception applies. See Leedy , 399 S

. W

. 3 d at 339, 342–43; Gathe , 376 S.W .3d at 313; Argovitz , 2005 Tex. App. L EXI S 8795, at *9.

To the exten t L i s a attempts to argue that her acc eptanc e of benef its was due to economic ne cessity , see Gathe , 376 S.W .3d at 313; W aite , 150 S.W .3d at 803–04, she ha s waived that argument. Although L isa asser ts g ener ally that “any other actions on [her] part wer e the result of nece ssity or duress,” she offe rs no analy sis as to how this principle applies to the fac ts of this case ,
no citations to the rec ord or other evidenc e, and no leg al authority

. A contention not proper ly briefe d

L isa’s testimony that she ref inance d the proper

ties and that Br

y an’s “name is off” so that 5 he is no longe r liable on the notes also indicates that she obtained full leg al title to the proper ty
. A party accep t s t h e benef

its of a judgme nt when she seeks and obtains leg al title to rea l proper ty awa rded in the judg ment. Dorai v. Dorai , No. 01-12-00308- CV, 2013 Tex. App. L EXI S 4812, at *5 (Tex. App.—Houston [1st Dist.] Apr. 18, 2 0 1 3 , no pet.) (mem. op.); see W aite v. W aite , 150 S.W .3d 79 7 , 8 0 4 ( T e x. App.—Houston [14t h Dist.] 2004, pet. denied) (appe llant who demande d wife execute war

ranty deed transfe rring her owner ship in family residenc e to him a f f ir ma ti v e ly relied on validity

of judg ment to assert his rig hts ag ainst wife a nd was e stopped to challeng e it). 7is wai v ed

. See Tex. R. App. P. 38.1(i); Leedy , 399 S.W .3d at 342 (appe llant who failed to

explain how cash benef

its exception applied to case waived argument); see also Brow n v. Gree n , 302 S.W .3d 1, 14–15 (Tex. App.—Houston [14t h Dist.] 2009, no pet.) (dec lining to construe party ’s conclusory statements as revie wable appellate arguments). Even if she had not waived this
argument, t h e re co rd shows that she was awa rded substantial assets in addition to the Midland/Odessa renta l proper ty , which g ener ated more than $20,000 per month in funds, and there is no evidenc e of economic nece ssity

. See F.M.G.W

. , 402 S.W .3d at 333–34 (conc lusory asser tions d i d not establish economic nece ssity ); Richards v. Richards , 371 S.W .3d 412, 416 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (sa me); W aite , 150 S.W .3d at 804–06 (same ). 6
I n s h o rt, the rec ord ref

lects that L isa acc epted benef its under the decr ee, includin g

rea l proper

ty to which the cash benef its exception does not ap p l y . S ee In the Interest of L.T. , 2014 Tex. App. L EXI S 6025, at *13 n.4; see also Demle r , 836 S.W .2d at 698; Trevino , 555 S.W .2d
at 79 5

– 9 6 ; Argovitz , 2005 Tex. App. L EXI S 8795, at *9. The evidenc e does not support the

L i s a al s o does not contend that the acc eptanc e of the benef its doctrine does not apply 6 beca use her rig ht to the benef

its acc epted could not possibly be aff ecte d by reve rsal of the judgme nt. See Gathe v. Gathe , 376 S.W .3d 308, 313 (Tex. App.—Houston [14t h Dist.] 2012, no pet.); W aite , 150 S.W .3d at 804. Had she asser ted that argument, we would not find it persua sive on this rec ord. L isa has requested a reve rsal and rema nd for new t rial; were we t o reve rse and rema nd, the entire marital estate would b e s u b j ec t t o a new just and rig ht division. See Tex. Fam. Code § 7.001 (mandating a “just and rig ht” division of marital proper ty in divorce decr ee) ; Ca r l e v. Carle , 234 S.W .2d 1002, 1004 (Tex. 1950) (on re m an d t ri al court would have mandatory duty to divide marital estate) ; W

aite , 150 S.W .3d at 8 0 8 ; Argovitz v. Argovitz , No. 14-04-00885- CV, 2005 Tex. App. L EXI S 8795, at *9–10 (Tex. A pp.—Houston [14t h Dist.] Oct. 25, 2005, no pet.) (mem. op.). Thus, it is entirely

possible that in the re-division of prope rty , the trial cour t could awa

rd to Br y an the Midland/O d essa proper ties or other assets L isa has acc epted acc ording to the trial court’s unchalleng ed fi n d i n g. See W aite , 150 S.W .3d at 808; Argovitz , 2005 Tex. App. L EXI S 8795, at *9–10. 8application of the economic nece ssity exception or that a reve rsal of the judgme nt could not possibly

aff ect her rig hts to the proper ty acc epted. See Gathe , 376 S.W .3d at 3 1 3 ; W a i t e , 150 S.W .3d at 803–04. L isa did not superse de the judgme nt. See Sprague , 363 S.W .3d at 793 (citing Raymond v Raymond , 190 S.W .3d 77, 80 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (whe n appea ling party posts superse deas bond to suspend judg ment, there is no acc eptanc e of benef its)); see also Tomsu

v. Tomsu , 381 S.W .3d 715, 717 (Tex. App.—B eaumont 2012, no pet.) (citing appellant’ s failure to superse de judgme nt in holding him estopped from challeng ing proper ty division). We hold that L isa is estopped from c halleng ing the corr ecte d final dec ree of di vorce . See Leedy , 399 S.W .3d at 343 (appe llant’s failure to establish that acc eptanc e of benef its doctrine did not apply or that an exception applied preve nted challeng e to judgme nt on appea l); Tomsu , 3 8 1 S

. W

. 3d at 717 (citing Smith

v. Texas Commerce Bank–Corpus Christ i, N.A. , 822 S.W .2d 812, 814 (Tex. App.—Corpus Christi 1992, writ denied) ) (same)

. Acc ording ly , we dismis s as m o o t L isa’s four issues on appea l. See F.M.G.W

. , 402 S.W .3d at 332; Leedy , 399 S.W .3d at 343; Tomsu , 381 S.W .3d at 717.

CONCLUSION For these re asons, we g rant B ry an’s motion and dismiss the appea l as moot.

9__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Rose, and Goodwin Dismissed as Moot Filed: Jul y

30, 2014

10