Opinion
No. 05-01-01783-CV.
Opinion filed February 28, 2003.
Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 00-00538-H.
DISMISSED AS MOOT.
MEMORANDUM OPINION
In five issues, Robert Lansink, Lisa Lansink, and Lansink Consulting, Inc. (the Lansinks) appeal the trial court's final judgment that incorporated the terms of a settlement agreement and provided for attorney's fees. Because we conclude that the Lansinks accepted the benefits of the judgment they attack on appeal, we dismiss this appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
U.S. Excelco, Inc. sued the Lansinks over the terms of an asset purchase agreement. The Lansinks then counter-sued U.S. Excelco, Inc. and added John Paine and Staff Leasing of Texas II, L.P. (collectively, appellees). Subsequently, the parties signed a written settlement agreement that provided that appellees would pay the Lansinks $200,000 in consideration for the settlement and also provided for attorney's fees. Appellees filed a motion to enforce the settlement agreement, amended their pleadings to allege breach of the settlement agreement, and filed a motion for summary judgment seeking to enforce the settlement agreement and obtain attorney's fees and costs incurred in enforcing the settlement agreement.
The trial court signed a judgment granting appellees' motion for summary judgment, incorporating the terms of the settlement agreement, and ordering appellees to pay into the court's registry an undetermined amount, which was the $200,000 agreed upon to settle the matter less an undetermined amount of attorney's fees. Appellees then filed counsels' affidavits regarding attorney's fees. The trial court's final judgment provided that appellees must pay $175,000 and awarded $25,000 in attorney's fees.
Pursuant to the final judgment, appellees deposited $175,000 in the trial court's registry. Subsequently, the Lansinks filed a motion to disburse funds, seeking disbursement of $175,000 less administrative fees to the Lansinks. After a hearing, the court ordered $75,000 less administrative fees disbursed to the Lansinks. Subsequently, the Lansinks' former attorney, as intervenor, sought and obtained a disbursement of $65,000 less administrative fees. The Lansinks then filed a motion to disburse the remaining $34,900 to the Lansinks.
ACCEPTANCE OF THE BENEFITS
In their reply point to all issues on appeal, appellees contend that the Lansinks have accepted substantial benefits of the final judgment, and, therefore, this appeal is moot and should be dismissed.
Applicable Law
In general, a party may not voluntarily accept the benefits of a judgment and attack it on appeal at the same time. Carle v. Carle, 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950); Aycock v. Pannill, 853 S.W.2d 161, 163 (Tex.App.-Eastland 1993, writ denied). The general rule is based on estoppel, but it is not without exception. Carle, 149 Tex. at 472, 234 S.W.2d at 1004; Aycock, 853 S.W.2d at 164. If the reversal of the judgment on appeal cannot possibly affect the appellant's right to the benefit accepted, then the appellant may proceed with the appeal. Carle, 149 Tex. at 472, 234 S.W.2d at 1004; Aycock, 853 S.W.2d at 164. We apply a two-part test to determine whether the exception is applicable: (1) could a reversal of the judgment possibly affect the appellant's right to the benefits accepted; and (2) would the appellee be compelled to concede upon another trial that the appellant has the right to retain those benefits regardless of the outcome of the litigation. Carle, 149 Tex. at 472, 234 S.W.2d at 1004; Donzis v. McLaughlin, 981 S.W.2d 58, 61 (Tex.App.-San Antonio 1998, no pet.). It is the appellee's burden to prove that the appellant is estopped by the acceptance-of-benefits doctrine. L.P.D. v. R.C., 959 S.W.2d 728, 731 (Tex.App.-Austin 1998, pet. denied). 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.).
Discussion
On appeal, the Lansinks challenge the summary judgment relating to the settlement agreement, requesting a reversal and remand, and they challenge the award of the attorney's fees offset from the payment owed to the Lansinks, requesting that the judgment at least be modified to delete the award of fees and expenses. The judgment incorporated the terms of the settlement agreement. However, the Lansinks voluntarily sought disbursement of the entire $175,000 that was paid under the judgment. Thus, the Lansinks have accepted the benefits of the judgment they are challenging on appeal. If the judgment were reversed and remanded, the trial court would have to determine the issues of the enforceability of the settlement agreement and whether appellees would be entitled to attorney's fees and the amount. Thus, reversal could possibly affect the Lansinks' right to the benefits they accepted under the judgment. And appellees would not be compelled to concede on a reversal and remand that the Lansinks have the right to retain the amounts paid under the judgment, regardless of the outcome of subsequent proceedings, because the parties dispute the contract issues incorporated in the judgment. Because the Lansinks voluntarily accepted benefits from the judgment and challenge the judgment that awarded them those benefits, we conclude that the acceptance-of-benefits doctrine applies here. See Carle, 149 Tex. at 472, 234 S.W.2d at 1004. Therefore, we sustain appellees' issue replying to all the Lansinks' issues.
CONCLUSION
Because the Lansinks cannot succeed on any issue, their appeal is moot and is dismissed.