Anne Johnson James and Lois Johnson Warren v. Jonathan Thornberry ( 2024 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00266-CV
ANNE JOHNSON JAMES AND
LOIS JOHNSON WARREN,
Appellants
v.
JONATHAN THORNBERRY,
Appellee
From the 278th District Court
Walker County, Texas
Trial Court No. 2130015
MEMORANDUM OPINION
Anne Johnson James and Lois Johnson Warren appeal the trial court’s Order
Determining Partition in Kind in which the trial court granted Jonathan Thornberry’s
motion to partition 59.79 acres located in Walker County (the property), determined
James and Warren each owned a 15% undivided interest in the property and Thornberry
owned a 70% undivided interest, and appointed commissioners to partition the property
and a surveyor to be used as the commissioners deemed necessary. Because a party with
an interest in the property was not joined in the suit to partition the property, we reverse
the trial court’s order and remand the case for further proceedings.
BACKGROUND
Thornberry sued James and Warren for a partition by sale of the property.
Thornberry alleged that he obtained his interest in the property as a result of deeds
executed by Charles L. Mack, Helen Louise Burns Singleton, and Marlon Diundre Reece
Spriggs to him. Thornberry also alleged that James and Warren obtained their interest in
the property through their father, Henry Johnson, and “Henry Johnson's siblings: Annie
Johnson, Susie Johnson, and Mary Johnson.” However, according to Thornberry’s brief,
when preparing his petition, Thornberry forgot that Charles Mack reserved a 50%
mineral interest, and thus, he did not name Charles Mack as a defendant in the partition
suit.
INTERESTED PARTY
In James’s and Warren’s third issue, they complain about Thornberry’s failure to
include “purported heirs” in the partition suit.
The purpose of partition is to segregate ownership and to allow to each owner the
free use, control, and possession of the interest set apart to that owner to the exclusion of
all other former joint owners. Chaffin v. Hall, 210 S.W.2d 191, 193-94 (Tex. Civ. App.—
Eastland 1948, writ ref'd n.r.e.) (op. on reh'g). A partition suit must seek a division of the
whole of a common property. Gilbreath v. Douglas, 388 S.W.2d 279, 281 (Tex. Civ. App.—
Amarillo 1965, writ ref'd n.r.e.).
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The general rule is that, before property can be partitioned, all of the joint owners
must be made parties so that the trial court may determine the interest each party has
and make a proper distribution of the property. See Holloway v. McIlhenny Co., 14 S.W.
240, 240 (Tex. 1890); Ward v. Hinkle, 8 S.W.2d 641, 645 (Tex. 1928) (no valid partition in
absence of heirs to land); Long v. Miken Oil, Inc., No. 12-14-00250-CV, 2016 Tex. App.
LEXIS 2715, at *4 (Tex. App.—Tyler Mar. 16, 2016, no pet.) (mem. op.). Implicit in this
rule is that the owners who must be joined are the owners of the property sought to be
partitioned. See TEX. R. CIV. P. 756(a); Tex. Oil & Gas Corp. v. Ostrom, 638 S.W.2d 231, 233
(Tex. App.—Tyler 1982, writ ref'd n.r.e.); Gilbreath, 388 S.W.2d at 281.
Rule 39 requires the presence of all persons who have an interest in the litigation
so that any relief awarded will effectively and completely adjudicate the dispute. TEX.
R. CIV. P. 39(a); Brooks v. Northglen Ass'n, 141 S.W.3d 158, 162 (Tex. 2004); Long, 2016 Tex.
App. LEXIS 2715, at *4. Thus, it is absolutely necessary to have all owners of real property
before the court when the property is partitioned. Carper v. Halamicek, 610 S.W.2d 556,
558 (Tex. Civ. App.—Tyler 1980, writ ref'd n.r.e.). If any owner is not joined in the case,
the trial court's judgment will be reversed, even if no objection was made, because the
judgment is not only unenforceable against that owner, it is unenforceable as to all other
owners as well. Partin v. Holden, 663 S.W.2d 883, 885 (Tex. App.—Austin 1983, no writ);
Long, 2016 Tex. App. LEXIS 2715, at *5.
Thornberry agrees that Mack, as an owner of a mineral interest, was required to
be joined as a defendant in the partition case but was not. Accordingly, James’s and
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Warren’s third issue is sustained only to the extent it contends Mack is a necessary party
that was not included in the partition suit.1
CONCLUSION
The trial court’s Order Determining Partition in Kind is reversed, and this case is
remanded for a new trial so that Charles Mack may be joined and other questions
presented to this Court may be considered and disposed by the trial court. See Smith v.
Peeler, 29 S.W.2d 975, 977 (Tex. 1930) (quoting King v. Commissioners' Court of Throckmorton
Cty., 30 S.W. 257, 258 (Tex. Civ. App.—Ft. Worth 1895, no writ)) (“We believe, however,
it is the practice, even of appellate courts, to take notice of the absence of indispensable
parties, and to remand the cause, in order that they may be joined.”).
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Reversed and remanded
Opinion delivered and filed July 25, 2024
[CV06]
1 Even though Thornberry concedes Mack was required to be joined as a defendant and thus, the partition
judgment must be reversed and the proceeding remanded to the trial court, there are many other issues
that James and Warren have raised in the appeal in their briefs, at oral argument, and in requested post-
submission briefing. The Court has determined that without all the necessary parties present, it would be
inappropriate to discuss any of those issues because they could not be fully resolved by this Court’s
judgment.
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