Opinion By Justice Francis
In this will contest
case, Beverly Hatcher Christensen appeals the trial court's order admitting the will of her sister, Hazel Delores
Hatcher, to probate subject to the family settlement agreement. Because we
conclude Christensen has voluntarily accepted benefits of the order she attacks
on appeal, we dismiss the appeal as moot.
Hatcher died on November
3, 2004 in Dallas County. Hatcher's life partner, Felicia Yvette Miller, filed an application to probate the will and for
issuance of letters testamentary. Except for some property in Big Sandy, Texas,
Hatcher left Miller everything she owned. Hatcher's siblings, Christensen and
Jesse L. Hatcher Jr., contested the will. During a hearing on the contest, the
parties reached a settlement agreement. According to the agreement as dictated
on the record by the probate judge, the will was to be admitted to probate and
the settlement agreement modified the will in specific respects. Later, when the
agreement was reduced to writing, Christensen would not sign it.
Jessie
Hatcher and Miller then filed a joint motion for judgment. At the conclusion of the hearing on that motion, the probate judge
signed the Order Admitting Will to Probate Subject to Family Settlement
Agreement. The order set out the terms agreed to by the parties at the first
hearing. In relevant part, the order (1) appointed Christensen as independent
executor of Hatcher's estate; (2) ordered the insurance company to pay into the
court's registry the life insurance proceeds; (3) ordered the clerk to
distribute $2,250 of those proceeds to Christensen; (4) awarded Christensen
tangible property in Miller's possession that belonged to Hildred Turner, the
mother of Hatcher and Christensen; (5) gave Christensen a 1998 Lincoln Navigator
that belonged to Hatcher; and (6) directed Christensen to take the steps
necessary to transfer title in a Toyota Rav 4, also owned by Hatcher at her
death, to Monica Kelsaw. Christensen filed a motion for new trial, challenging
the order. When the trial court denied the motion, Christensen filed this
appeal. In three issues, she contends the trial court erred by (1) enforcing the
family settlement agreement, (2) denying her motion for continuance, and (3)
appointing her as independent executor of Hatcher's estate.
In their
response to Christensen's brief, appellees Jesse Hatcher and Miller contend that Christensen is estopped from challenging the
order because she has accepted its benefits. A party cannot treat a judgment as
both right and wrong. 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 (Tex.
1950). There are two exceptions to this doctrine. First, a party who has
voluntarily accepted benefits of a judgment may prosecute an appeal if she would
still be entitled to those benefits upon reversal of a judgment and retrial of
the case. See id. Stated differently, if the appellee is bound to concede
that the appellant is entitled to those benefits he has secured under the
judgment, an appellant may prosecute an appeal involving only his right to
obtain further relief. See id. Second, a party may prosecute an appeal if
he must accept the benefits of the judgment because of financial duress. See
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, 164 (Tex. Civ. App.-Tyler
1966, writ ref'd n.r.e.).
The record here shows
that, at the least, Christensen has possession of the Lincoln Navigator, which is registered in her name in California; has
collected the tangible property in Miller's possession and signed a written
receipt to that effect; and has transferred the title of the Toyota Rav 4 to
Kelsaw. Additionally, when questioned at oral argument, Christensen's counsel
acknowledged that a check from the insurance proceeds had been distributed to
Christensen, although counsel was unclear as to whether Christensen had actually
cashed the check. All of this property would have gone to Miller under the will.
We conclude Christensen has not only accepted benefits of the trial court's
order but, in compliance with the order, has distributed estate property to a
third party. Further, there is no evidence to show that either exception
applies. Christensen was not entitled to receive any benefits under Hatcher's
will, the validity of which she swore to under oath and does not challenge on
appeal; thus, appellees would not be compelled to concede on a reversal and
remand that Christensen has a right to retain the property she has obtained
pursuant to the order. Additionally, there is no evidence to suggest that
Christensen accepted these benefits because of financial duress.
Because the
record establishes that Christensen has accepted benefits under the order she now attacks, she is precluded from maintaining
her appeal. We dismiss the appeal as moot.
MOLLY
FRANCIS
JUSTICE
061109f.p05
File Date[12/11/2007]
File Name[061109F]
File
Locator[12/11/2007-061109F]