Jennifer McGough Russell, as Trustee of the Jennifer McGough Russell Trust and as Co-Trustee of the Bobby Frank McGough Trust v. John Michael McGough, as Trustee of the John Michael McGough Trust and as Co-Trustee of the Bobby Frank McGough Trust ( 2021 )

Opinion filed August 12, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00270-CV
__________
JENNIFER MCGOUGH RUSSELL, AS TRUSTEE OF THE
JENNIFER MCGOUGH RUSSELL TRUST AND AS CO-
TRUSTEE OF THE BOBBY FRANK MCGOUGH TRUST,
Appellant
V.
JOHN MICHAEL MCGOUGH, AS TRUSTEE OF THE JOHN
MICHAEL MCGOUGH TRUST AND AS CO-TRUSTEE OF THE
BOBBY FRANK MCGOUGH TRUST, Appellee
On Appeal from the 39th District Court
Stonewall County, Texas
Trial Court Cause No. 4676
MEMORANDUM OPINION
This is an appeal from an order by which the trial court partitioned twelve
tracts of real property (the tracts) that were jointly owned by siblings Jennifer
McGough Russell (Appellant) and John Michael McGough (Appellee). After
Appellee filed the partition suit, the trial court entered an agreed preliminary decree
in which it (1) listed the tracts, (2) acknowledged that the parties owned each tract
as joint tenants, (3) found the tracts to be susceptible to partition in kind, and
(4) appointed three commissioners to make the partition in accordance with the trial
court’s decree. Neither party appeals the trial court’s preliminary decree.
After the commissioners submitted their report to the trial court, Appellant
filed objections and requested a hearing. After the hearing, the trial court issued an
order in which it denied Appellant’s objections and confirmed the commissioners’
report.1
On appeal, Appellant complains that the trial court erred when it denied
Appellant’s objections and confirmed the commissioners’ report because the
commissioners’ findings in their report (1) were materially erroneous and (2) were
unfair and unjust in their partition of the tracts. We affirm.
I. Factual Background
An independent appraiser had previously evaluated the market value of the
tracts and reported his findings in an appraisal report (the appraisal). The
commissioners repeatedly referenced the appraisal throughout their report and
attached the appraisal to the report when they submitted it to the trial court. The
1
Notably, the commissioners’ report is not included in the appellate record for our review. As
Appellee has pointed out, the reporter’s record contains a “Defendant’s Exhibit One,” which is described
as the “Commissioners Report,” but this exhibit is in fact the appraisal report which was heavily referenced
throughout the commissioners’ report and attached to their report when it was submitted to the trial court.
The Texas Rules of Appellate Procedure no longer place the burden to designate items to be included in the
clerk’s record on any party, but instead permit any party, the trial court, or the appellate court to do so. See
TEX. R. APP. P. 34.5(a), (b)(2), (c)(1); In re Estate of Nunu, 542 S.W.3d 67, 74 (Tex. App.—Houston [14th
Dist.] 2017, pet. denied) (citing In re K.M.L., 443 S.W.3d 101, 119 (Tex. 2014)). Neither party has
requested to supplement the clerk’s record to include the commissioners’ report. Nevertheless, the
procedural disposition of this case, the applicable standards of review, and the issues presented permit us
to resolve this appeal. See TEX. R. APP. P. 34.5(c)(1).
2
commissioners’ report was unverified when initially submitted, and in it, the
commissioners erroneously referenced “Section 231” in the property description of
one property when the proper reference should have been “Survey No. 231.” The
commissioners, in their findings, also failed to allocate two of the twelve tracts that
were identified in the preliminary decree—Tract One and Tract Seven—to either
party.
In her objections to the commissioners’ report, Appellant argued that the
findings in the report were materially erroneous because the report (1) was not
verified or otherwise made under oath when it was submitted to the trial court,
(2) wholly failed to partition Tract One and Tract Seven, and (3) failed to particularly
describe the tracts that were partitioned. Appellant also objected that the findings in
the report were unequal and unjust because the report referred only to the market
values of the tracts and wholly disregarded the Conservation Reserve Program
(CRP) credits attributable to each tract. Additionally, Appellant requested that the
trial court hold a hearing on her objections, reject the commissioners’ report, and
appoint a new panel of commissioners to partition the tracts.
At the trial,2 Appellant did not present any witnesses. Rather, the only
evidence offered by Appellant was the appraisal (which the trial court admitted)
upon which the commissioners’ had relied. Further, Appellee offered to relinquish
his claims to the unpartitioned tracts and proposed that the trial court assign them to
Appellant.
2
We interpret the hearing on Appellant’s objections to have been a bench trial on the merits.
Rule 771 of the Texas Rules of Civil Procedure requires “a trial of the issues” on a party’s filed objections
to the commissioners’ report. TEX. R. CIV. P. 771. During the hearing, Appellant’s trial counsel explained
to the trial court that, “as I read the rule, we are having a bench trial right now” and that an order by the
trial court confirming the commissioners’ report would constitute an appealable judgment.
3
After the trial was concluded, the trial court instructed the commissioners to
verify their report, and they did so. The trial court then signed an order in which it
denied Appellant’s objections, confirmed the commissioners’ report, and assigned
the two unpartitioned tracts to Appellant. The trial court’s order also included the
correct property description (“Survey No. 231”) for the portion of Tract Two that
was partitioned to Appellant.
Upon Appellant’s request, the trial court issued Findings of Fact and
Conclusions of Law in which it specifically concluded that the findings in the
commissioners’ report (1) were not materially erroneous because the commissioners
had failed to partition Tract One and Tract Seven and (2) were neither unequal nor
unjust in the partition of the tracts. The trial court also found that the value of the
property allocated to Appellant was $1,782,000 and that the value of the property
allocated to Appellee was $1,759,000.
II. Analysis
On appeal, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s judgment.3
A. Applicable Law
A partition case consists of two decrees that are both final and appealable.
Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980); Bowman v. Stephens, 569
S.W.3d 210, 221 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Ellis v. First City
Nat’l Bank, 864 S.W.2d 555, 557 (Tex. App.—Tyler 1993, no writ). In the first
decree, the trial court determines the following: the share or interest of each owner
in the property that the owners seek to divide, all questions of law or equity that may
affect title, and whether the property in dispute is subject to partition or sale. TEX. R.
3
Appellant does not specifically designate her sufficiency challenge as legal or factual. Because
her issues involve challenges both to the trial court’s findings of fact and conclusions of law, we address
both the legal and factual sufficiency of the evidence.
4
CIV. P. 760, 761, 770; Ellis, 864 S.W.2d at 557. Further, the trial court is required
to appoint three or more disinterested persons as commissioners who shall partition
the property in dispute pursuant to the trial court’s decree; the trial court may also
provide directions to the commissioners as may be necessary and appropriate. See
TEX. R. CIV. P. 760, 761.
With respect to the second decree, the commissioners “shall proceed to
partition the real estate described in the decree of the court, in accordance with the
directions contained in such decree and with the provisions of law and these rules.”
TEX. R. CIV. P. 766. After the partition is completed, the commissioners must
submit, under oath, a written report to the trial court. TEX. R. CIV. P. 769. Within
thirty days after the commissioners file the report, any party to the partition suit may
file objections with the trial court. TEX. R. CIV. P. 771. The party who objects to
the report bears the burden of proving that the report is materially erroneous or that
the partition is unequal and unjust. Bowman, 569 S.W.3d at 222; Ellis, 864 S.W.2d
at 557. If the trial court overrules the filed objections, it may then confirm the report
in a second judgment. Bowman, 569 S.W.3d at 222; Ellis, 864 S.W.2d at 557.
However, the trial court must reject the report and appoint a new panel of
commissioners if it finds that the report is (1) materially erroneous in any respect or
(2) unequal and unjust. TEX. R. CIV. P. 771; see Bowman, 569 S.W.3d at 222; Ellis,
864 S.W.2d at 557.
B. Standards of Review
A trial court’s factual determinations in a partition suit are not conclusive and
are subject to a legal and factual sufficiency review. Bowman, 569 S.W.3d at 223;
Carson v. Hagaman, 884 S.W.2d 194, 198 (Tex. App.—Eastland 1994, no writ). In
reviewing the trial court’s findings for evidentiary sufficiency, we apply the same
standards that we use when we review the evidence in support of a jury’s findings.
5
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); see Roberts v. Philpot, 435
S.W.2d 614, 615–16 (Tex. App.—Tyler 1968, no writ).
“When a party attacks the legal sufficiency of an adverse finding on an issue
on which she has the burden of proof, she must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); accord Sterner v. Marathon
Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). In reviewing a “matter of law” challenge,
we first examine the record for evidence that supports the finding, and we ignore all
evidence to the contrary. Francis, 46 S.W.3d at 241 (citing Sterner, 767 S.W.2d at
690); see City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). If no evidence
supports the finding, we then examine the entire record to determine if Appellant’s
contrary position is established as a matter of law. Francis, 46 S.W.3d at 241. When
we apply this standard in a partition case, we may not reverse the trial court’s
judgment unless the evidence of material error or an unequal and unjust partition is
conclusively established. See id. (citing Croucher v. Croucher, 660 S.W.2d 55, 58
(Tex. 1983)); Grimes v. Collie, 733 S.W.2d 338, 341 (Tex. App.—El Paso 1987, no
writ) (citing Grimes v. Hall, 211 S.W.2d 956, 958 (Tex. App.—Eastland 1948, no
writ)).
In reviewing a trial court’s conclusions of law from a bench trial, we apply a
de novo standard. Bowman, 569 S.W.3d at 224 (citing City of Keller, 168 S.W.3d
at 822). We will uphold the trial court’s conclusions of law if the judgment can be
sustained on any legal theory that is supported by the evidence. Id. Further, if we
determine that a conclusion of law is erroneous but that the trial court nevertheless
rendered a proper judgment, such error will not require reversal. Id. (citing BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)).
6
“When a party attacks the factual sufficiency of an adverse finding on an issue
on which she has the burden of proof, she must demonstrate on appeal that the
adverse finding is against the great weight and preponderance of the evidence.”
Francis, 46 S.W.3d at 242 (citing Croucher, 660 S.W.2d at 58). In reviewing a
factual sufficiency challenge, we must examine the entire record, including the
evidence in favor of, and contrary to, the challenged finding. Id. We may reverse
the trial court’s judgment only if the evidence is so weak or the finding is so against
the great weight and preponderance of the evidence that the verdict is clearly wrong
and unjust. Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986));
Carson, 884 S.W.2d at 196. “In doing so, we must ‘detail the evidence relevant to
the issue’ and ‘state in what regard the contrary evidence greatly outweighs the
evidence in support of the verdict.’” Francis, 46 S.W.3d at 242 (quoting Pool, 715
S.W.2d at 635).
C. Issue One: Materially Erroneous
In support of her first issue, Appellant contends that the findings in the
commissioners’ report were materially erroneous because (1) the report was not
verified or otherwise submitted under oath by the commissioners before it was
submitted to the trial court, (2) the commissioners failed to allocate two of the twelve
tracts listed in the trial court’s preliminary decree, and (3) the commissioners
erroneously referenced “Section 231” in the property description for the parcel of
Tract Two that was partitioned to Appellant, and thus they failed to particularly
describe the allocated property.
1. Verification of the Commissioners’ Report
Rule 769 of the Texas Rules of Civil Procedure requires that, “[w]hen the
commissioners have completed the partition, they shall report the same in writing
and under oath to the court.” TEX. R. CIV. P. 769. However, Rule 769 does not
7
provide a specific temporal deadline for the verification of the report. See id. At
trial, and in response to Appellant’s objection that the commissioners had not
properly verified the report, the trial court noted that it had not included in the
preliminary decree a direction to the commissioners to verify their report but,
instead, that it would instruct the commissioners to do so after the trial was
concluded. The trial court also indicated in its Findings of Fact and Conclusions of
Law that it had permitted the commissioners to resubmit their report with the proper
verification and that the commissioners’ resubmission had been properly verified.
At least one of our sister courts of appeals has previously upheld a trial court’s
finding that a lack of verification in a commissioners’ report did not constitute
material error. See Snow v. Donelson, 242 S.W.3d 570, 573 (Tex. App.—Waco
2007, no pet.) (noting that the objecting party also failed to timely file its objections).
We agree with the Waco Court of Appeals’ holding in Snow. Further, the mandatory
language of Rule 771 is contingent upon a finding of material error, which the trial
court did not find in this case. See TEX. R. CIV. P. 771. Therefore, in the absence of
a finding of material error, we hold that it was not reversible error for the trial court
to refer the original report to the commissioners so that they could comply with the
necessary verification requirements. See Snow, 242 S.W.3d at 573; see also Taub v.
Kahn, 646 S.W.2d 570, 572 (Tex. App.—Houston [1st Dist.] 1982, no writ) (holding
that the trial court’s referral of the report back to the original commissioners with
additional directions not contained in the preliminary decree in order to properly
effect a partition was not reversible error).
2. Failure to Partition Two Tracts Listed in the Preliminary Decree
The trial court found in its Findings of Fact and Conclusions of Law that the
commissioners, in their report, failed to partition Tract One and Tract Seven in
accordance with the trial court’s preliminary decree. Although Appellant asserts that
8
this omission rendered the report materially erroneous, the trial court explicitly
concluded that it did not.
To prevail on her legal sufficiency challenge, Appellant must show that, as a
matter of law, the commissioners’ failure to partition these two tracts rendered their
report materially erroneous. See Francis, 46 S.W.3d at 241; Sterner, 767 S.W.2d at
690. At the trial on her objections, Appellant bore the burden to offer evidence that
the commissioners’ report was materially erroneous. Bowman, 569 S.W.3d at 222;
Ellis, 864 S.W.2d at 557. However, the only evidence that she submitted was the
appraisal, which the commissioners heavily referenced throughout their report and
which the commissioners attached to their report when it was initially submitted to
the trial court. Despite Appellant’s claim that the commissioners’ failure to partition
Tract One and Tract Seven rendered their report materially erroneous, she points to
no evidence in the record, and we have found none, or any authoritative precedent
to support her position. 4
As we have said, we may not reverse the trial court’s judgment unless the
evidence of material error is conclusively established. See Francis, 46 S.W.3d at
241; Sterner, 767 S.W.2d at 690; see also Ellis, 864 S.W.2d at 557; Grimes, 733
S.W.2d at 341 (citing Grimes, 211 S.W.2d 956, 958). Standing alone, the appraisal
is not conclusive evidence that the findings in the commissioners’ report are
materially erroneous. See, e.g., Carter v. Harvey, 525 S.W.3d 420, 433 (Tex.
App.—Fort Worth 2017, no pet.); City of Keller, 168 S.W.3d at 810, 822. Here, in
4
In support of her assertion, Appellant cites to this court’s decision in Grimes v. Hall. See 211
S.W.2d 956 (Tex. App.—Eastland 1948, no writ). However, Grimes is inapposite. In Grimes, this court
affirmed the trial court’s judgment confirming the commissioners’ report, despite the defendant’s
complaints that, inter alia, the partition was not made by lot as directed by the preliminary decree and as
required by the rules of civil procedure in effect at that time. Id. at 958. Not only did this court overrule
the issues presented in Grimes those issues are dissimilar to the issues presented here. Further, Appellant
has failed to explain in her brief why we should read Grimes to support her position.
9
the absence of other evidence, which is not in the record before us, Appellant has
failed to establish that the commissioners’ failure to partition Tract One and Tract
Seven rendered their report materially erroneous as a matter of law.
3. Erroneous Property Description
Finally, Appellant asserts that, because the findings in the commissioners’
report mistakenly referenced “Section 231” in the property description for the parcel
of Tract Two that was allocated to Appellant, the commissioners failed to
particularly describe the allotted property in accordance with the requirements of
Rule 769; therefore, the report is materially erroneous. See TEX. R. CIV. P. 769. On
this point, we also hold that Appellant’s sufficiency challenge fails.
In support of her contention, Appellant cites to our decision in Carson v.
Hagaman; however, that case is also distinguishable. See 884 S.W.2d at 196–97. In
Carson, the commissioners’ report partitioned the property in such a way as to leave
the defendants without access to their land. Id. Some of the commissioners testified
that it was their intent that the partition would grant the defendants access to their
land. Id. Despite this and other evidence that third parties were willing to offer an
easement across their property to grant access to the defendants, this court held that
we were required to “review the judgment as it is and not as it could have been,” and
further noted that we lacked the authority to reform the property description that was
contained in the report. Id. at 198 (citing former Rule of Appellate Procedure 80(b)).
Based on those reasons, we held in Grimes that the lack of access was material error.
Id.
Appellant also asserts that an error in the description of the partitioned
property is considered material if it would prevent a surveyor from identifying the
partitioned property. See Toledano v. Holman, No. 02-15-00283-CV, 2017 WL
117316, *3 (Tex. App.—Fort Worth, Jan. 12, 2017, no pet.) (mem. op.). Appellant
10
contends that because the term “Section” is common in land surveys and because
the commissioners did not attach maps or field notes to make the property
description more intelligible, it is unclear from the face of the report what amount of
acreage the commissioners intended to allocate to Appellant.
Although Appellant asserts that we must reject a correction that is meant to
effect “the Commissioners’ intent,” as we did in Carson, what is at issue here is a
typographical error in the commissioners’ report, not the intended effect of the
commissioners’ partition. When we consider and compare the use and reference of
“Section 231” in the commissioners’ report to the property description of “Survey
No. 231” as noted in the appraisal and recited in the trial court’s judgment, there is
no question as to the intended effect of the commissioners’ partition.
Appellant bore the burden at trial to prove that the findings in the
commissioners’ report were materially erroneous. Not only was the erroneous
property reference relied on by Appellant nothing more than a typographical error,
rather than a reference to a different property, Appellant failed to offer any evidence
that is contrary to the trial court’s finding that the findings in the report were not
materially erroneous. Both parties agree that “Survey No. 231” was the correct
property description. At trial, Appellant’s trial counsel informed the trial court that
the correct reference to the disputed tract was “Survey 231,” not “Section 231.”
Appellant’s trial counsel further stated that no “Section 231” existed in reference to
the tracts that were to be partitioned. Here, it is undisputed that the appraisal was
the only evidence offered by Appellant at trial to show that this typographical error
was material. However, and importantly, the appraisal correctly described and
referred to this parcel of Tract Two as “Survey No. 231.” Therefore, the evidence
offered by Appellant on this point supports the inference that this was a simple, and
correctable, typographical error in the text of the commissioners’ report. We
11
conclude that it is not evidence that would conclusively prove Appellant’s
contention.
Moreover, in the order in which it denied Appellant’s objections and
confirmed the commissioners’ report, the trial court correctly referred to “Survey
No. 231” when it described the disputed parcel of Tract Two and partitioned the
property. This recitation further implies that Appellant failed to carry her burden as
to the typographical error in the report. Further, the same order also contained the
trial court’s general finding that the findings in the commissioners’ report were not
materially erroneous and did not divide the property in an unequal and unjust
manner. Therefore, when read together, the trial court, in its order and its Findings
of Fact and Conclusions of Law, clearly addresses each of Appellant’s presented
issues, including the typographical error. See Bowman, 569 S.W.3d at 229–30
(“While the judgment did not specifically contain such a finding, its terms, in
combination with the court’s other findings of fact and conclusions of law
unambiguously [did make such a finding].”); Rivers v. Page, No. 09-19-00312-CV,
2021 WL 2006322, at *7 (Tex. App.—Beaumont May 20, 2021, no pet. h.) (mem.
op.) (“[B]y overruling the objections and confirming the Commissioners’ Report,
the trial court implicitly found that Rivers failed to meet her burden to show that the
Commissioners’ Report was materially erroneous, or unequal and unjust.”).
To prevail on her legal sufficiency challenge, Appellant must show as a matter
of law that the findings in the commissioners’ report were materially erroneous. We
have searched the record for evidence that would support this finding and have
ignored all evidence to the contrary and can find no evidence in the record to support
Appellant’s contention. Further, we conclude that the appraisal report supports the
trial court’s implied finding concerning the typographical error in the report. Unlike
in Toledano, where the defendant at least offered testimony that the commissioners’
12
report was confusing, here Appellant offered no evidence for the trial court, or this
court, to consider other than the appraisal report. See Toledano, 2017 WL 117316,
at *3. Because we conclude that the evidence in the record before us supports the
trial court’s finding, our analysis ends here. See Francis, 46 S.W.3d at 241 (citing
Sterner, 767 S.W.2d at 690)); see also City of Keller, 168 S.W.3d at 822.
In the case now before us, Appellant has not shown, as a matter of law, that
the typographical error in the commissioners’ report rendered the findings in their
report materially erroneous. Nor has she shown that the trial court’s ruling was
against the great weight or preponderance of the evidence, as the only evidence in
this case—the appraisal—contained the correct property description and was heavily
referenced by the commissioners in their report and, thus, supports the assertion that
this was a harmless, correctable, typographical error in the text of the
commissioners’ report.
Having reviewed the record before us in accordance with the applicable
standards of review, we conclude that Appellant has neither established as a matter
of law that the findings in the commissioners’ report were materially erroneous nor
shown that the trial court’s finding on that basis was against the great weight and
preponderance of the evidence. Therefore, we reject Appellant’s contention that the
findings in the commissioners’ report were materially erroneous on both legal and
factual sufficiency grounds. Accordingly, we overrule Appellant’s first issue.
D. Issue Two: Unequal and Unjust
In her second issue, Appellant contends that the trial court erred when it
confirmed the commissioners’ report because the findings in their report are unequal
and unjust. Specifically, Appellant asserts that the findings in the commissioners’
report are unequal and unjust because the findings referred only to the market values
13
of the tracts and wholly disregarded the income-producing value of CRP credits
attributable to certain tracts.
Because Appellant objected to the valuations identified in the commissioners’
report, she bore the burden to show that the valuation of the tracts was unequal and
unjust. See TEX. R. CIV. P. 771; Sterner, 767 S.W.2d at 690; Ellis, 864 S.W.2d at
557. Again, Appellant presented no evidence at trial except the appraisal. Appellant
had ample opportunity at the hearing on her objections to develop her case and to
present other appraisal evidence or any witness testimony. Again, the only evidence
in the record for us to review is the appraisal.
In the appraisal, the appraiser stated that he had utilized the “sales comparison
approach” to determine the market value of the tracts and had expressly omitted the
“income approach” to determine the value of the tracts. The appraisal also contained
a statement that: “Typically, in the estimation of value for a given property, it is
necessary for an appraiser to review and consider all available valuation techniques,
applicable to a given property type.” In his report, the appraiser explained that three
traditional appraisal approaches—cost, comparable sales, and income approaches—
are typically utilized to determine the value of property. In this instance, the
appraiser only determined the value of the tracts in reference to their market value,
and without reference to their income-producing value. However, the appraiser
explained that although all three approaches, whenever possible, should be applied
when estimating the value of property, one approach will often be given greater
consideration than the others: “The greatest consideration is normally given to the
approach most typically used by buyers and sellers . . . in the local market, which in
this case is the Sales Comparison Approach.” Thus, in his report, the appraiser
clearly explained the reason for the omission of the income approach, and it supports
14
the trial court’s finding that the commissioners’ findings in their report are not
unequal and unjust. Here, there is no evidence in the record to the contrary.
Because the trial court overruled Appellant’s objections to the findings in the
commissioners’ report, to prevail on a legal sufficiency challenge on appeal,
Appellant must establish that the findings in the report were unequal and unjust as a
matter of law. To prevail on a factual sufficiency challenge, Appellant must show
that the trial court’s findings were against the great weight and preponderance of the
evidence. On the record before us, Appellant can do neither. Accordingly, we
overrule Appellant’s second issue.
III. This Court’s Ruling
We affirm the order of the trial court.
W. STACY TROTTER
JUSTICE
August 12, 2021
Panel consists of: Trotter, J.,
Williams, J., and Wright, S.C.J.5
Bailey, C.J., not participating.
5
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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