Opinion
NO. 14-11-00911-CV
02-28-2012
KENDREN LEEDY, Appellant v. BRAD LEEDY, Appellee
Motion Granted; Appeal Dismissed and Memorandum Opinion filed February 28, 2012.
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2010-35091
MEMORANDUM OPINION
Kendren Leedy appeals from a property division awarded her in a divorce judgment. In response, her ex-husband, Brad Leedy, filed a motion to dismiss the appeal because she accepted benefits awarded to her in the divorce decree. We dismiss the appeal.
Background
Kendren filed for divorce on June 7, 2010 and Brad countersued shortly thereafter. Through the course of the proceedings, a dispute arose as to the division of the parties' business, Texcalibur, L.P. Initially, the associate judge ordered Texcalibur to be partitioned in kind, fifty percent to each party. Brad filed a motion for reconsideration of the in-kind partition, alleging that an amicable working relationship with regard to the business was unlikely. Kendren filed a motion for appraisal of Texcalibur; in the motion, she also requested a cash payment for her half of the business from Brad.
The company is alternately referred to in the record as "Texacalibur Armor, LLC" and "Texcalibur, L.P." For consistency, we will refer to the company as "Texcalibur, L.P.," which is the name the parties used in the Rule 11 Agreement.
On June 3, 2011, the parties entered into a Rule 11 Agreement in which Brad agreed to pay Kendren $125,000 for her half of the business. The agreement required payment on or before 5:00 p.m. on June 10, 2011. The associate judge approved and accepted the agreement. On June 7, 2011, Brad wrote a check for $125,000 payable to Kendren Leedy. On June 10, 2011, Kendren filed a motion seeking to withdraw her consent from the Rule 11 Agreement. The trial court denied Kendren's motion and signed a divorce decree incorporating the Rule 11 Agreement on July 21, 2011. This appeal followed.
Acceptance of Benefits Doctrine
According to bank records attached to Brad's motion to dismiss, Kendren presented the $125,000 check for payment on September 13, 2011. On December 19, 2011, Kendren filed a brief in this court alleging in her sole issue on appeal, that she "was entitled to withdraw her consent to a Rule 11 Agreement that converted a proposed in-kind partition of a company pursuant to an earlier Master's Report into a cash settlement prior to the agreement becoming part of any judgment."
Because Kendren cashed Brad's check and accepted the benefits of the Rule 11 Agreement, Brad filed a motion to dismiss the appeal under the acceptance of benefits doctrine. Kendren argues that the acceptance of benefits doctrine does not apply because if she is permitted to withdraw her consent to the Rule 11 Agreement, she will still be entitled to the $125,000 on remand.
A party who accepts the benefits of a judgment is estopped to challenge the judgment on appeal. See Texas State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002); Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950); Waite v. Waite, 150 S.W.3d 797, 803 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). As the Texas Supreme Court explained in Carle, also a divorce case: "A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom." Carle, 234 S.W.2d at 1004. This doctrine arises often in divorce cases when one spouse accepts certain benefits of the judgment and then tries to appeal the remainder of the judgment. See, e.g., Blaylock v. Blaylock, 603 S.W.2d 254, 255 (Tex. Civ. App.—Houston [14th Dist.] 1980, no writ); Nixon v. Nixon, 348 S.W.2d 438, 440-41 (Tex. Civ. App.—Houston [1st Dist.] 1961, writ dism'd). The burden is on the appellee to prove that the appellant is estopped by the acceptance of benefits doctrine. Aaron v. Aaron, No. 14-10-00765-CV; 2012 WL 273766 at *3 (Tex. App.—Houston [14th Dist.] Jan. 31, 2012, no pet. hist.) (mem. op.).
There are, however, exceptions to the acceptance of benefits doctrine. For example, one exception is based on economic necessity, and it applies when the acceptance of benefits is not voluntary because of financial duress or other economic circumstances. See McAlister v. McAlister, 75 S.W.3d 481, 483 (Tex. App.—San Antonio 2002, pet. denied); Cooper v. Bushong, 10 S.W.3d 20, 23 (Tex. App.—Austin 1999, pet. denied). Another exception applies when a reversal of the judgment could not possibly affect an appellant's right to the benefit accepted. See Amaro, 87 S.W.3d at 544; Carle, 234 S.W.2d at 1004.
Brad alleges that Kendren accepted the benefits of the Rule 11 Agreement by cashing the check for $125,000. The evidence attached to Brad's motion and sworn to in Brad's affidavit confirms that Kendren cashed the check. Therefore, unless Kendren satisfies an exception to the acceptance of benefits doctrine or otherwise shows that it does not apply, we must grant Brad's motion.
Kendren argues that the "entitlement" exception applies because she is entitled to the $125,000 even if the court's judgment is reversed. She contends that she will be awarded at least the full amount of the value assigned to the asset. To determine whether the exception applies in this case, we must determine whether a successful outcome on appeal would affect Kendren's right to the $125,000, and whether Brad would be compelled to concede on remand that Kendren has the right to retain those benefits.
The record reflects that the parties agreed that Brad would buy Kendren's portion of Texcalibur, and that her portion was worth $125,000. On appeal, Kendren asserts her right to withdraw consent to the agreement. In her motion to withdraw consent from the agreement, Kendren argued the division of the business was inequitable because it is worth more than originally considered. Kendren has not shown, however, that if she were permitted to withdraw her consent to the Rule 11 Agreement, Brad would be compelled to concede that Kendren had a right to retain the $125,000. The record does not contain evidence of the value of the business. If we were to find Kendren was entitled to withdraw consent to the agreement, the trial court would have to determine the value of the business, and would re-divide the community property. If we were to reverse based on Kendren's withdrawal of her consent to the agreement, the trial court would almost certainly have to re-divide the community property. Kendren has not shown that a new division would include a cash payment of $125,000 for her portion of the business.
Conclusion
We grant Brad's motion to dismiss the appeal on the basis of the acceptance of benefits doctrine because Kendren accepted substantial benefits of the judgment she now seeks to attack. Further, the record does not reflect Kendren satisfied an exception to the acceptance of benefits doctrine. We dismiss the appeal.
PER CURIAM
Panel consists of Justices Seymore, Boyce, and Christopher.