Motion Granted; Appeal Dismissed and Memorandum Opinion filed March 31, 2011.
In The
Fourteenth Court of Appeals
NO. 14-10-00113-CV
Charles Heard & The Charles Heard Law Firm, PC, Appellants
V.
Patricia Medjkoune & Skin RecoverY Center, Inc., Appellees
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2007-09933A
MEMORANDUM OPINION
Appellants Charles Heard and the Charles Heard Law Firm appeal the trial court’s judgment in their favor. Because appellants accepted payment of the judgment from appellees and released the judgment, we dismiss the appeal.
Background
Appellees Patricia Medjkoune and the Skin Recovery Center engaged appellants, a lawyer and law firm, to represent them in a suit against third parties in which appellees alleged fraud, violation of the Texas Deceptive Trade Practices Act, and breach of a lease. Appellants subsequently sued appellees alleging breach of contract. A jury determined that appellees breached the contract with appellants and awarded damages of $4171.87 for each appellee. Additionally, the jury awarded the Charles Heard Law Firm attorney’s fees in the amount of $1.00 for preparation and trial, $1.00 in the event of a successful appeal to the court of appeals, and $1.00 in the event of a successful appeal to the supreme court. The trial court signed a judgment based on the jury’s award. Appellants appeal that judgment
Appellees’ Motion to Dismiss
On November 18, 2010, appellees filed a motion to dismiss this appeal based on appellants’ acceptance of the benefits of the judgment. Appellees represented that they paid $9,660.48 in satisfaction of the judgment and that appellants accepted payment and signed a release of judgment. Attached to appellees’ motion is an email from Charles Heard dated June 4, 2010, in which he stated:
Please convey this offer to Mrs. Medjkoune.
At this juncture, I have a confirmed judgment against her and her company for $9283.20 as of Dec. 30, 2009. It has earned interest, and is now $9,517.71.
In addition, my collection efforts to date amount to another $2,000.00 in round terms, which I would get if I need to. BTW, my abstract should be of record in the real property records of Harris County.
I am out approximately $1,000.00 in out-of-pocket expenses in the appeal, not counting my time.
In a successful appeal, I am, of course, seeking an additional $20,300.00 in my fees for the breach litigation, and roughly $2,300.00 more in contract damages (plus interest). I would also ask the appeals court to remand the question of fees for appeal to the trial court, where I am sure I can show my fees. So, best case, the total for a “win” (for me) would be about $27,600.00 MORE than we have on the meter now.
So, all that considered, here is my offer—
$9,517.71 due and owing on the judgment
1,500.00 collections (25% discount of actual)
1,000.00 appeal expenses (discounting my time totally)
5,000.00 to settle the appeal (discounting the appeal over 80%)
So, $17,017.71 to settle everything. By the end of next week. This is a firm, fair offer, not an invitation to bicker. Mrs. Medjkoune can turn off the collection expenses by accepting this offer, and avoid having to answer my discovery, as well (and I’ll be getting a depo soon). I’d even accept her payment of $11,017.71, avoiding further collection, while going on with the appeal (I’ve done most of the work, so it is worth rolling the dice to me).
I will accept a structured payment plan with at least 50% down, and 5% interest, with both defendants on the note.
In their motion to dismiss, appellees assert appellants accepted $9,660.48 in satisfaction of the judgment. In their motion, appellees represent that appellants accepted payment of the judgment and signed a release of judgment. Appellees, however, did not attach the release. In response to appellees’ motion, appellants do not dispute that they accepted this payment in satisfaction of the judgment. Appellants appear to allege that despite having accepted payment of the judgment, they wish to pursue an appeal of the jury’s award of appellate attorney’s fees.
In their response, appellants state:
It was understood that the Appellee was paying the JUDGMENT from the court below to avoid the burden of the collection process, including post-judgment discovery and costs, and the embarrassment of having the execution on the judgment made at her place of business.
The Appellee knows that the payment she tendered never settled all CLAIMS by the Appellant, only the judgment she already . . . and unquestionably . . . owed. She offered a discounted settlement of the judgment, which the Appellant accepted. That amount would be applied as an off-set to the claims now before the Court. (emphasis in original)
Analysis
“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 v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). There are narrow exceptions to the “acceptance of benefits” rule: (1) when acceptance of the benefits is not voluntary because of financial duress or other economic circumstances; and (2) when reversal of the judgment on the grounds appealed cannot possibly affect an appellant’s right to the benefits accepted under the judgment. See Waite v. Waite, 150 S.W.3d 797, 803-04 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). The second exception has also been characterized as applying to situations in which the appellees would be compelled to concede upon another trial that appellants have the right to retain those benefits regardless of the outcome of the litigation.” Carle, 234 S.W.2d at 1004.
Appellants do not dispute that they have accepted the benefits of the judgment. Appellants invoke the second exception claiming they are entitled to more than the jury awarded. In their brief, appellants argue the jury’s findings on attorney’s fees for preparation for trial and for a potential appeal are not supported by the evidence. By their own admission, however, appellants have accepted appellees’ discounted settlement of the judgment.
In addition, the record does not reflect that appellants reserved within the release of judgment the right to appeal any portion of the judgment. A judgment debtor may pay the judgment while still preserving appellate rights. Miga v. Jensen, 96 S.W.3d 207, 211–12 (Tex. 2002). The safe practice, under these circumstances, would be to explicitly reserve the right to appeal when the judgment is paid. Id.; Rapp v. Mandell & Wright, P.C., 123 S.W.3d 431, 435 (Tex. App.—Houston [14th Dist.] pet. denied). Appellants did not file the release with this court, nor do they claim that they explicitly reserved a right to appeal in the release of judgment.
Having accepted appellees’ payment in satisfaction of the judgment, appellants are estopped by the acceptance of benefits rule from maintaining this appeal. See Carle, 234 S.W.2d at 1004-05. Having released the judgment with no indication of any simultaneous communication to appellees of an intent by appellants to continue their appeal from the judgment, this appeal is moot. See Rapp, 123 S.W.3d at 434-36. Accordingly, we grant appellees’ motion to dismiss and dismiss this appeal.
PER CURIAM
Panel consists of Justices Frost, Jamison, and McCally.