Paul v. Paul , 1994 Tex. App. LEXIS 396 ( 1994 )

870 S.W.2d 349 (1994)

Tommie PAUL, Appellant,
v.
Carolyn PAUL, et al., Appellees.

No. 10-93-162-CV.

Court of Appeals of Texas, Waco.

February 16, 1994.

W.V. Dunnam, Jr., Dunnam & Dunnam, Waco, for appellant.

Ron Butler, Marlin, for appellees.

Before THOMAS, C.J., and CUMMINGS and VANCE, JJ.

ORDER

PER CURIAM.

Herman Paul, who established the Paul Funeral Home in 1932, died in 1956. One of Herman Paul's eleven children, Eddie Paul, operated the funeral home from 1954 until his death in 1987. In 1989 Tommie Paul, the widow of Eddie Paul, filed this suit seeking partition of the funeral home business and a.327-acre tract of real estate improved with funeral home facilities and a house. Prior to trial the parties stipulated that the eleven children (or their heirs) each owned a 1/11th undivided interest in the funeral home business.^[1] The parties also stipulated that the real estate was owned by Herman Paul's six children by his first marriage (with Tommie Paul taking Eddie Paul's 1/7th interest) and the husband of one of those children.^[2] After reviewing the entire appellate record, this court determines that the dispute in this case is appropriate for resolution by an alternative dispute resolution procedure.^[3]

The parties are hereby notified that the pending dispute is appropriate for referral.^[4] Any party may, within ten days after receiving the notice of this determination, file a written objection to the referral.^[5] Unless a written objection is timely filed and this court finds that there is a reasonable basis for such an objection, the cause will be referred for resolution by an alternative dispute resolution procedure under section 154.021 of the Texas Civil Practice and Remedies Code.^[6]

The parties may file, within the time for filing objections to the referral, a written proposal suggesting the most appropriate alternative dispute resolution procedure.^[7] If no such proposal is timely filed by any party, this court shall refer the case to mediation under section 154.023,^[8] and appoint an impartial third party to mediate the dispute.^[9] The court may appoint a third party who is agreed on by the parties if the person qualifies for appointment under section 154.052.^[10] Again, the parties should notify the court of such an agreement within the time for filing objections to the referral. Unless the parties agree to a method of payment, a reasonable fee for the services of an impartial third party appointed by the court shall be taxed as costs.^[11]

Accordingly, the appeal is abated prior to submission.

NOTES

[1] One of the parties, Gloria Sparks, did not participate either in person or by her attorney in the trial of the case. We note that John Hand, who filed the original partition suit on behalf of Tommie Paul, later purported to represent Gloria Sparks by filing an answer. However, the record does not indicate that he appeared at trial on her behalf. The final judgment omits her stipulated 1/11th interest in the funeral home and orders the proceeds from the sale of the business to be divided among the ten remaining parties. See Carper v. Halamicek, 610 S.W.2d 556, 559 (Tex. Civ.App.—Tyler 1980, writ ref'd n.r.e.); see also Tex. Disciplinary R. of Prof. Conduct 1.06 (1993).

[2] Although the final judgment seeks to partition R.J. Mathis' 1/7th interest in the real estate, the record does not reflect that he was ever served or otherwise made a party to the suit. An attempted partition of the whole tract of land, where all owners are not joined as parties, is not binding even on those who are parties. See Ward v. Hinkle, 117 Tex. 566, 8 S.W.2d 641, 645 (1928).

[3] See TEX.CIV.PRAC. & REM.CODE ANN. 154.021(a) (Vernon Supp.1994).

[4] See id. § 154.022(a).

[5] See id. § 154.022(b).

[6] See id. § 154.021(a).

[7] See id. § 154.021(b).

[8] See id. § 154.023.

[9] See id. § 154.051.

[10] See id. §§ 154.051(b), 154.052.

[11] See id. § 154.054.