Mallia v. Mallia (Tex.App.- Houston [14th Dist.] Apr. 7, 2009)(Yates)
(judgment on mediated settlement agreement MSA, revocation of consent, rescission, rescinding
agreement prior to judgment)
AFFIRMED: Opinion by Justice Brock Yates
14-07-00695-CV Sharon Fountain Mallia and Charles Christopher Mallia v. Sharon Biering Mallia
Before Justices Brock Yates, Seymore and Boyce
Trial Court Judge: Russell P. Austin
Sharon Fountain Mallia and her son, Charles Christopher Mallia, appeal the trial court’s
judgment, signed July 26, 2007. Appellants raise three issues, challenging the trial court’s
rulings or failure to rule on certain motions, the transfer of a district court case to probate court,
reducing to judgment a mediated settlement agreement, and the denial of appellants’ due
process rights. We affirm.
Appellant, Sharon Fountain Mallia, is the former wife of Charles Benjamin Mallia, Jr., now
deceased. Appellant, Charles Christopher Mallia, is the only son of the decedent. Appellee,
Sharon Biering Mallia, was the second wife of the decedent. After the death of Charles
Benjamin Mallia, appellants filed suit against appellee in district court for tortious interference
with expectancy and intentional infliction of emotional distress. Thereafter, appellee submitted
the decedent’s will to probate. On March 30, 2007, appellee and Anna Charae Mallia filed a
motion to transfer the district court case to the probate court pursuant to section 5B of the Texas
Probate Code. Appellants objected, but the trial court granted the motion on April 19, 2007, after
holding a hearing. Appellants filed a no-evidence motion for summary judgment in May 2007,
which the trial court denied. The parties went to mediation in June 2007, and thereafter signed a
handwritten settlement agreement.
Appellee subsequently filed a motion to render judgment on the mediated settlement agreement.
Appellants filed an objection and the trial court held a hearing. The trial court granted appellee’s
motion and signed the judgment.
Before turning to appellants’ issues, we address appellee’s Areply point” that appellants may not
complain about the judgment because appellants agreed to the settlement agreement and
accepted benefits under the judgment in the form of $4000. Appellants respond that there is no
factual or legal support for this assertion.
A party that accepts benefits of a judgment is estopped from challenging the judgment by
appeal. See Texas State Bank v. Amaro, 87 S.W.3d 538, 543 (Tex. 2002). The burden is on
appellee to prove that appellants are estopped by the acceptance of benefits doctrine. See
Gonzalez v. Gonzalez, 614 S.W.2d 203, 204 (Tex. App.- Eastland 1981, writ dism’d). Appellee
has not met her burden of proving that appellants accepted benefits. Nothing in the record
shows that appellants have accepted benefits under the judgment. Accordingly, we find no merit
in appellee’s claim.
Before turning to appellants’ issues, however, we must determine whether appellants are
estopped to raise these issues on another basis. The record reveals that the parties in this case
signed a handwritten settlement agreement. When appellee filed a motion to render judgment,
appellants filed an objection. In this objection, appellants claimed paragraphs 2-5 the proposed
judgment did not accurately reflect the mediated settlement agreement and included a release to
which the parties had not agreed. On appeal, appellant claims the handwritten settlement
agreement was merely a "skeleton” agreement that appellee had unilaterally modified and which
contained an ambiguous waiver. However, a judgment entered on the agreement of the parties
cures all non-jurisdictional defects. Mailhot v. Mailhot, 124 S.W.3d 775, 777 (Tex. App.- Houston
[1st Dist.] 2003, no pet.). Accordingly, we find that neither of these objections constitutes a
revocation of consent to the settlement agreement.
A settlement agreement may be revoked at any time before the court renders an agreed
judgment by filing a revocation of consent. Samples Exterminators v. Samples, 640 S.W.2d 873,
874B75 (Tex. 1982); Stein v. Stein, 868 S.W.2d 902, 903 (Tex. App.- Houston [14th Dist.] 1994,
no writ). Although appellants raised objections to the judgment, appellants never stated they
were revoking their consent to the settlement agreement. Furthermore, appellants have not
shown that consent was effectively revoked by showing that the judgment does not comport with
the parties’ agreement.
A review of the paragraphs of the judgment appellants challenged in their objection to the entry of
judgment shows that these paragraphs are almost exact duplicates of the terms of the
handwritten settlement agreement. Paragraph 2 in the judgment states that the parties shall
enter a joint motion for nonsuit regarding all claims advanced in this lawsuit. Paragraph 2 of the
settlement agreement states that plaintiffs (appellants) agree to dismiss with prejudice their
cause of action contesting the last will and testament of Charles B. Mallia, Jr. Paragraph 3 of
judgment states that the plaintiffs are prohibited from contesting or interfering with the
appointment of defendant (appellee) as Independent Executrix and Administrator of the Estate of
Charles Benjamin Mallia, Jr. Paragraph 2 of the settlement agreement also states "Plaintiffs will
not contest the appointment of Sharon Biering Mallia as Independent Executrix and Administrator
in this Estate.” Paragraph 4 of the judgment states that, after appointment of defendant as
Independent Executrix and Administrator of the Estate of Charles B. Mallia, Jr., defendant shall
transfer by general warranty deed a 13% interest in the real property located at 11430 Riverview
Drive, Houston, Texas 77077, to Charles Christopher Mallia. Paragraph 1 of the settlement
agreement states in part: "In addition, the aforementioned Defendant agrees to transfer by a
General Warranty Deed, subject to the following provision of this Agreement a 13% interest in
the real property located at 11430 Riverview Drive, Houston, Texas 77077.”
Appellants also complained that the judgment contained an ambiguous waiver that did not reflect
the parties’ agreement. However, appellants admit that they agreed to the Paragraph 3 waiver.
In the objection, appellants complained that, despite their agreement to this section, they now
find it to be ambiguous. They further claim Paragraph 5 of the judgment does not reflect the
parties’ agreement. Paragraph 5 of the judgment states: "The Plaintiffs are prohibited from
raising any claims, causes of action or lawsuits they may potentially have as a result of their
relationship to Charles Benjamin Mallia, Jr.” The corresponding paragraph in the settlement
agreement provides that appellants agreed to "waive and/or give up any claims, causes of action
or lawsuits they may potentially have as a result of their relationship to Charles B. Mallia, Jr.”
Notably, appellants do not state they are revoking their consent to this provision of the settlement
agreement. Instead, they claim they did not agree to such a global waiver. The settlement
agreement belies that argument.
Because appellants did not revoke consent to the settlement agreement before the trial court
rendered judgment, and appellants’ objections do not indicate a revocation of consent, we find
that appellants are estopped to raise complaints about the judgment on any alleged non-
jurisdictional defects. Appellants have not raised any jurisdictional complaints. Accordingly, we
hold that appellants are estopped from raising the issues set forth in their brief.
Accordingly, we affirm the judgment of the trial court.
/s/ Leslie Brock Yates
Panel consists of Justices Yates, Seymore, and Boyce.
 Appellants do not assert they have not accepted benefits from the judgment. However, we may not
rely on this omission because it is appellee’s burden to prove they have accepted benefits. See
Gonzalez v. Gonzalez, 614 S.W.2d 203, 204 (Tex. Civ. App.- Eastland 1981, writ dism’d).