File: 061109F - From documents transmitted: 12/11/2007
DISMISSED; Opinion Filed December 11, 2007.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-06-01109-CV
On Appeal from the Probate Court
Collin County, Texas
Trial Court Cause No. PB-001-736-04
Before Justices Whittington, Bridges, and Francis
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


File Date[12/11/2007]
File Name[061109F]
File Locator[12/11/2007-061109F]