Charlotte B. Lytz v. Susan Whaley, Frank Harrell, Paul Harrell, and Dennis Stautz ( 2008 )

NUMBER 13-07-00039-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLOTTE B. LYTZ, Appellant,
v.
SUSAN WHALEY, FRANK HARRELL,
PAUL HARRELL, AND DENNIS STAUTZ, Appellees.
On appeal from the 411th District Court
of San Jacinto County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez
This is a partition case. Appellant, Charlotte B. Lytz, appeals from a November 30,
2006 order that granted a motion to conclude the sale of property filed by appellees, Susan
Whaley, Frank Harrell, Paul Harrell, and Dennis Stautz. By two issues, appellant
challenges, however, matters raised by the trial court's earlier October 19, 2006 partition
order that granted appellees' motion for sale of the property incapable of division.
Appellant contends that (1) the trial court abused its discretion by impliedly denying her
motions for continuance of the October hearing on appellees' motion for sale, and (2) the
evidence is insufficient to establish that the property was incapable of partition. We
dismiss for want of jurisdiction.1
I. Background
Appellant and appellees are co-owners of a tract of real property (the property)
consisting of 88.016 acres, more or less, out of the "Old Bass Homestead" of 567 acres
in the Jose de la Garza Survey, San Jacinto County, Texas. Appellant and appellees each
inherited an undivided 1/9th interest in the property following the death of a relative who
owned the property.2 On February 7, 2006, appellees filed their original petition seeking
a partition and an order of sale of the property with the proceeds being divided among the
nine joint owners.
A. October Order
On June 13, 2006, appellees filed a motion for sale of the property and, following
an unsuccessful sale of the property, renewed the motion on August 29, 2006. See Lytz
v. Whaley, No. 09-07-371 CV, 2008 Tex. App. LEXIS 5684 (Tex. App.–Beaumont July 31,
2008, no pet. h.) (mem. op.). On October 16, 2006, appellant filed a motion for
continuance and on October 18, 2006, filed a combined motion for continuance and motion
to order mediation. On October 19, 2006, without ruling on appellant's motions, the trial
court conducted a hearing on appellees' motion for sale of the property and entered an
1
This appeal was transferred to this Court from the Ninth Court of Appeals by order of the Texas
Suprem e Court. See T EX . G O V 'T C OD E A N N . § 22.220 (Vernon 2004) (delineating the jurisdiction of appellate
courts); id. § 73.001 (Vernon 2005) (granting the suprem e court the authority to transfer cases from one court
of appeals to another at any tim e that there is "good cause" for the transfer). In addition, we note that the
Beaum ont Court of Appeals recently issued an opinion in a breach of contract case involving the sam e parties
and property; however, the issues are distinct from those presented in this transfer case. See Lytz v. W haley,
No. 09-07-371 CV, 2008 Tex. App. LEXIS 5684 (Tex. App.–Beaum ont July 31, 2008, no pet. h.) (m em . op.).
2
The other co-owners of the property, Ruth Brogdon, Claudia Taylor, Carole Yeager, and Connie
Lam bert, did not file answers in the original lawsuit and are not parties to this appeal.
2
order (1) determining that the property was not susceptible to fair and equitable partition
in kind and appointing a receiver to sell the property, (2) allocating a 1/9th undivided
interest in the property to each of the joint owners, and (3) ordering a sale of the property
with the proceeds to be returned to the registry of the court for division among the joint
owners. See TEX . R. CIV. P. 760, 761, 770. It is undisputed that appellant did not file a
notice of appeal from the October 19 order.
B. November Order
On November 3, 2006, appellees filed a motion to conclude the sale, and a hearing
on the motion was set for November 16, 2006. After appellant filed an amended motion
to continue the hearing, the trial court reset the case for submission on November 30,
2006. Appellant filed a response to the motion for sale of the property on November 29,
2006. On November 30, 2006, the trial court signed an order granting appellees' motion
for sale of the property. On December 12, 2006, appellant filed a notice of appeal seeking
"to alter the trial court's judgment or other appealable order . . . signed on November 30,
2006 . . . as it relates to the division of the subject property."
II. Analysis
This appeal is taken from the trial court's November 30, 2006 order granting
appellees' motion for sale of the property. However, the issues brought by appellant in this
appeal complain only of the October 19, 2006 order granting appellees' motion for the sale
of the property incapable of division.3
A. Applicable Law
3
On appeal, appellant argues, in her first issue, that the trial court abused its discretion in im pliedly
denying her m otions for continuance filed prior to the entry of the October order. Appellant also com plains
briefly, in this sam e issue, that she filed a m otion for continuance on Novem ber 13, 2006, which was granted
and signed without her appearance or that of her counsel. However, the trial court did continue the hearing
after her m otion was filed and did not rule on the m otion until after appellant's response had been filed.
W ithout m ore, these argum ents are not persuasive.
3
Partition cases involve more than one final, appealable order. Long v. Spencer, 137
S.W.3d 923, 925 (Tex. App.–Dallas 2004, no pet.). This occurs because a partition
proceeding is a two-step process. Yturria v. Kimbro, 921 S.W.2d 338, 341 (Tex.
App.–Corpus Christi 1996, no writ); see TEX . R. CIV . P. 760 (providing that the trial court
shall determine share or interest of each claimant and all questions affecting title to
property), 761 (setting out that the court shall determine whether property is subject to
partition in kind), 770 (explaining that if the property is not subject to equitable division, the
court shall order sale of property and partition the proceeds); see also Hershey v. Duncan,
Nos. 13-01-688-CV & 13-02-673-CV, 2004 Tex. App. LEXIS 9784, at *10 (Tex.
App.–Corpus Christi Nov. 4, 2004, pet. denied) (providing that the first decree "is a final
and appealable order which is conclusive of all matters decreed within it").
In the first step, the trial court determines whether the property is susceptible to
partition or is the subject of a sale, the share or interests of each of the owners, all
questions of law or equity affecting the title to the land, and appoints commissioners and
instructs them as necessary. See TEX . R. CIV. P. 760, 761, 770; Thomas v. McNair, 882
S.W.2d 870, 876 (Tex. App.–Corpus Christi 1994, no writ); see also Hershey, 2004 Tex.
App. LEXIS 9784, at **10-11. Issues determined by the partition order must be challenged
following its entry and cannot be attacked collaterally after the entry of a later order or
judgment. Long, 137 S.W.3d at 925-26; see Ellis v. First City Nat'l Bank, 864 S.W.2d 555,
557 (Tex. App.–Tyler 1993, no writ) (providing that matters decided in the first order cannot
be reviewed in an appeal from the second order); see also Hershey, 2004 Tex. App. LEXIS
9784, at *10. The same rule applies for an order approving the terms of the proposed sale
of real property in a partition suit: the terms of that order must be appealed after its entry,
before the property is sold. Long, 137 S.W.3d at 925-26.
4
In the second step of a partition suit, the court enters an order either approving the
commissioners' report and giving the parties their share or rejecting the report and
appointing other commissioners to partition the land. Ellis, 864 S.W.2d at 557. If the court
approves the sale, this second order is a separate and distinct, yet final judgment. See id.
B. Issues Related to October First-Step Order
In this case, while we have jurisdiction based on appellant's appeal from the second-
step November order to conclude the sale, the scope of our review of her appeal is limited
to issues pertaining to the November order. See id. Because appellant did not appeal
from the earlier first-step October order, the issues related to that order are not properly
before us. See Long, 137 S.W.3d at 925-26. We conclude, therefore, that this Court is
without jurisdiction to address appellant's two issues—the sole issues brought for our
review.4 See id.
III. Conclusion
Accordingly, we dismiss the appeal for want of jurisdiction.
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 21st day of August, 2008.
4
All m otions pending in this Court are dism issed as m oot.
5