in Re: Myrtis Dightman, Sr., Myrtis Dightman, Jr. and John B. Dightman ( 2007 )

MARY'S OPINION HEADING

                                                NO. 12-06-00301-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: MYRTIS DIGHTMAN, SR.,            §                     

MYRTIS DIGHTMAN, JR., AND   §                      ORIGINAL PROCEEDING

JOHN B. DIGHTMAN         §                     

MEMORANDUM OPINION

            Relators Myrtis Dightman, Sr., Myrtis Dightman, Jr., and John B. Dightman petition for a writ of mandamus directing the trial court to set for trial their adverse possession claim to all the subject land and proceeds from the sale of timber in the underlying partition suit.¹  We deny the petition.

Background

            The underlying proceeding was a suit by C&B Logging, Inc. to enjoin Sunny C. Smith from cutting timber on property in Houston County.  Smith counterclaimed for damages and sought partition of the land on which the timber grew.  Relators answered the suit.

            After a bench trial, Respondent, the Honorable James N. Parsons, III, Judge of the 349th Judicial District Court, Houston County, Texas, signed an order on February 20, 2003, declaring the names and respective interests of the co-owners, finding that the timber was not susceptible to fair and equitable partition in kind, and ordering a receiver to sell the timber.  The order recited that the counterclaim for damages, the costs of receivership, and attorney ad litem fees remained before the court to be decided. On June 13, 2003, Respondent signed an order directing the receiver to sell the timber to Georgia Pacific and setting the receiver’s fee.  On June 13, 2003, Respondent considered the remaining issues.  He denied Smith’s counterclaim for damages, set the fee for the attorney ad litem appointed to represent the unknown heirs and other individuals, and apportioned court costs.  In this order, Respondent appointed commissioners to divide the surface of the subject property and a surveyor to assist them.

            A year later, Relators filed their Third Amended Original Answer and Cross Claim for Adverse Possession and Temporary Injunction asserting ownership of the entire tract by adverse possession, and seeking to enjoin the cutting of the timber by Georgia Pacific.  On May 18, 2005, we denied as moot the Dightmans’ petition for writ of mandamus directing the trial court to hear their application for an injunction to enjoin the cutting of the timber on the subject property.

Availability of Mandamus

            Mandamus is appropriate if the trial court has abused its discretion and the relator has no adequate remedy by appeal.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or, stated another way, when it acts in an arbitrary and unreasonable manner.  City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003).  An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).

            Two final judgments are rendered in a partition suit.  Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980).  Both are appealable as final judgments.  Id.  In the first decree, the trial court determines the interest of each of the joint owners or claimants and all questions affecting the title; it appoints commissioners and gives them appropriate instructions.  Ellis v. First City Nat’l Bank, 864 S.W.2d 555, 557 (Tex. App.–Tyler 1993, no writ) (citing Marmion v. Wells, 246 S.W.2d 704, 705 (Tex. Civ. App.–San Antonio 1952, writ ref’d)).  In the second decree, the trial court approves the report of the commissioners and sets aside to parties their separate share. Id.  Matters decided in the first decree cannot be reviewed in an appeal from the second.  Id.

            A judgment that finally disposes of all remaining parties and claims, based on the record in the case is final, regardless of its language.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).  It is not necessary that all parties and issues be disposed of in a single document.  Fisher v. Yates, 953 S.W.2d 370, 375 (Tex. App.–Texarkana 1997), pet. denied per curiam, 988 S.W.2d 730 (Tex. 1998); see also Lehmann, 39 S.W.3d at 204.  Thus, where the trial court has rendered a decree disposing of some, but not all, of the parties and issues, a subsequent decree disposing of the remaining parties and claims is final and appealable.  Fisher, 953 S.W.2d at 375.

            Respondent’s order of February 20, 2003 declared the names and respective interests of the co-owners of the tract, and ordered the timber sold because the timber could not otherwise be fairly divided.  In the order, the court also announced its intention to appoint commissioners to divide the surface.  In his July 11, 2003 decree, Respondent appointed commissioners to divide the property and a surveyor to assist.  The decree denied Sunny Smith’s counterclaim and determined all the other issues then before the court.  In our view, the order of February 20, 2003 and the decree of July 11, 2003, taken together, constitute a final judgment from which no appeal was taken. Relators, who were parties to the suit at the time the order and decree were entered, did not raise their adverse possession claim to the entire tract for almost a year after Respondent’s determination of the owners and their interests had become final.  Therefore, Relators’ adverse possession claim is barred by the doctrine of res judicata.  See State and County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001) (Res judicata prevents relitigation of a finally adjudicated claim and related matters that should have been litigated in a prior suit.).  Because Relators’ adverse possession claim is barred by res judicata, Respondent did not abuse his discretion when he refused to set the claim for trial.

Conclusion

            Relators have failed to show that Respondent abused his discretion in refusing to set their adverse possession claim for trial. Because Relators have not satisfied the first prerequisite to mandamus, we need not determine whether they have satisfied the second.  The petition for writ of mandamus is denied.

                                                                                                    BILL BASS   

                                                                                                            Justice

Opinion delivered March 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(PUBLISH)

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¹ The real parties in interest are C&B Logging, Inc.; Sunny C. Smith; Jack N. Barbee; Georgia Pacific Shared Services Corporation; Gary Burns; Burns Forestry; Fay Dean Wooten; and Lynn E. Markham, Attorney Ad Litem for Eugene Dightman, Jan Dightman Golden, David Anthony Whitmore, Linda Mae Jordan, James Gatlin, Jr., Mrs. Deotis Dightman, and the Unknown Heirs of Deotis Dightman, John B. Dightman, Henry Dightman, and Georgia Dightman.