J. Michael Hershey and Jeffrey M. Hershey v. G. Cameron Duncan, Sr. ( 2004 )

    NUMBERS 13-01-688-CV & 13-02-673-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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J. MICHAEL HERSHEY AND

JEFFREY M. HERSHEY,                                                             Appellants,

v.

G. CAMERON DUNCAN, SR., ET AL.,                                       Appellees.

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  On appeal from the 329th District Court

of Wharton County, Texas.  

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    DISSENTING MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Castillo  

             Dissenting Memorandum Opinion by Justice Castillo

         The majority holds we do not have jurisdiction because the August 13, 2001 Supplemental Order of Partition and the September 18, 2002 Order to Pay Expenses are not final judgments. I respectfully dissent.

I. THE SUPPLEMENTAL ORDER OF PARTITION

A. Judicial Partition

         The Texas Rules of Civil Procedure provide a two-step procedure for the partition of real estate. See Tex. R. Civ. P. 756, et seq. In the first step, the trial court determines: (1) the share or interests of each owner; (2) all questions of law or equity affecting the title to the land; and (3) whether the property is susceptible to partition or is the subject of a sale. Tex. R. Civ. P. 760, 761, and 770. Rule 760 provides that, "[u]pon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise." Rule 761 then provides, in pertinent part, that "[t]he court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of partition." If the property is not partitionable in kind, the trial court orders partition by sale. See Tex. R. Civ. P. 770. However, if the court determines the land is partitionable in kind, it appoints three commissioners to make the partition and instructs them concerning the share or interest of each party. Tex. R. Civ. P. 761, 764, and 766.

         Thus, unlike other proceedings, as the majority acknowledges, a judicial partition case has two final decrees. Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980) (per curiam); Yturria v. Kimbro, 921 S.W.2d 338, 342 (Tex. App.–Corpus Christi 1996, no writ). The first decree determines each owner's share and appoints the commissioners. Thomas v. McNair, 882 S.W.2d 870, 876 (Tex. App.–Corpus Christi 1994, no writ). It is in this first decree, determining each owner's share and appointing the commissioners, that the trial court issues instructions about what matters the commissioners are to take into account in making the actual partition. See Campbell v. Tufts, 3 S.W.3d 256, 259 (Tex. App.–Waco 1999, no pet.). Before rendering the first decree, the court has the authority "to adjust all equities between the parties." Tufts, 3 S.W.3d at 259 (quoting Yturria, 921 S.W.2d at 342). The court "applies the rules of equity in determining the broad question of how property is to be partitioned." Tufts, 3 S.W.3d at 259 (quoting Yturria, 921 S.W.2d at 342). Also as the majority notes, this first decree is appealable. Wolfe, 610 S.W.2d at 466.

         In the second step, after the property is partitioned by the commissioners or through sale, the trial court enters an order of disbursement dividing either the partitioned property or the proceeds of the sale. McNair, 882 S.W.2d at 877 (citing Pfeffer v. Meissner, 286 S.W.2d 241, 246 (Tex. Civ. App.–Galveston 1955, writ ref'd n.r.e.)). In the case of a partition, it is this second decree that approves the commissioners' report. McNair, 882 S.W.2d at 876. It, too, is appealable. Yturria, 921 S.W.2d at 342. Matters decided by the first decree appointing commissioners and instructing them about what matters to take into account in making the actual partition cannot be challenged in an appeal from the trial court's second decree adopting the commissioners' report and partitioning the property. See Tufts, 3 S.W.3d at 259. In fact, once appeal on the second decree has been perfected, matters determined by the first decree cannot be reviewed. Marmion v. Wells, 246 S.W.2d 704, 705 (Tex. Civ. App.–San Antonio 1952, writ ref'd).

B. Procedural Background

         J. Michael Hershey objected to the commissioners' report as noncompliant with the applicable rules of civil procedure. Rule 771 addresses the procedure for objecting to the commissioners' report:

Either party to the suit may file objections to any report of the commissioners in partition within thirty days of the date the report is filed, and in such case a trial of the issues thereon shall be had as in other cases. If the report be found to be erroneous in any material respect, or unequal and unjust, the same shall be rejected, and other commissioners shall be appointed by the Court, and the same proceedings had as in the first instance.

Tex. R. Civ. P. 771. After considering the parties' competing summary-judgment motions, the trial court granted appellees' motion. Later, in response to appellees' motion for an order to the commissioners to revise their report, the trial court issued its Supplemental Order of Partition, which remanded the case to the commissioners with instructions to: (1) set aside to J. Michael Hershey and Jeffrey Hershey individual shares of land based on their respective interests as partitioned to them jointly by the June 14, 2000 Decree of Partition; and (2) tax to J. Michael Hershey the costs of the reallocation of the Hersheys' individual interests.  

         I conclude that the Supplemental Order of Partition is a hybrid of the two types of appealable partition decrees contemplated by the judicial partition rules of procedure and described by McNair, not an interlocutory order. The chronology of the trial court's orders makes this clear. The June 14, 2000 decree appointed commissioners and instructed them how to partition the parties' respective interests. This is the first type of appealable decree described by McNair. See McNair, 882 S.W.2d at 876. While the parties agree that the June 14, 2000 decree was appealable, as the majority notes, no one did. Next, the Supplemental Order of Partition accomplished three purposes. First, it adopted the commissioners' report with respect to partition of the appellees' shares. This is the second type of appealable decree contemplated by McNair. See id. Second, however, the Supplemental Order of Partition also amended the trial court's instructions to the commissioners about how to partition the Hersheys' respective interests as between the two of them. This is the first type of appealable decree described by McNair. See id. Third, the Supplemental Order of Partition adjusted the "equities between the parties" by instructing the commissioners to report the costs associated with the reallocation of the Hersheys' individual interests separately and tax them against J. Michael Hershey. See Tufts, 3 S.W.3d at 259; see also Yturria, 921 S.W.2d at 342. This, too, is the first type of appealable decree described by McNair. See McNair, 882 S.W.2d at 876.

         As I interpret rule 760, the trial court has the power and duty to determine the equities and to adjust them according to the circumstances of the case. See Taub v. Kahn, 646 S.W.2d 570, 572 (Tex. App.–Houston [1st Dist.] 1982, no writ). Here, the trial court returned a matter to the commissioners with specific instructions that would "effect a partition by disposing of items on which the parties had been unable to agree." See id. "A trial court has continuing jurisdiction to enter new orders as the necessity arises in partition suits." See id. I conclude that the trial court had the continuing jurisdiction to enter these new orders as the necessity arose. See McNair, 882 S.W.2d at 876-77. Far from being interlocutory, the Supplemental Order of Partition, while a hybrid of both types of appealable decrees, invokes our jurisdiction whichever way it is read. I would hold we have jurisdiction to reach the merits of the appeal.

II. The September 18, 2002 Order to Pay Expenses

          Rule 778 provides that the court shall adjudge the costs in a partition suit in proportion to the value of each share. Tex. R. Civ. P. 778; Ellis v. First City Nat'l Bank, 864 S.W.2d 555, 557 (Tex. App.–Tyler 1993, no writ). I conclude that the Order to Pay Expenses is merely a new order, the necessity for which arose in this partition suit by the reallocation of the Hersheys' individual interests as between them, followed by the non-payment of the costs associated with that reallocation. See id.; see also McNair, 882 S.W.2d at 876-77. A final judgment is one that is "sufficiently definite and certain to define and protect the rights of all litigants, or it must provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment to execution." Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (quoting Steed v. State, 183 S.W.2d 458, 460 (Tex. 1944)). The Order to Pay Expenses is definite and capable of execution. I would hold that it is final and appealable. See Ellis, 864 S.W.2d at 556 (reversing portion of judgment assessing costs in partition suit and remanding for redetermination pursuant to rule 778).

                                                                ERRLINDA CASTILLO

                                                                Justice

Dissenting Memorandum Opinion delivered and filed

this 4th day of November, 2004.