Wilmer Forrest Trimble, Jr., A/K/A Wilmer Forrest Tremble, Jr., Sharon Trimble Donaldson, Selia Trimble Shawkey, and Billie J. Murphy Tremble v. Luminant Mining Company LLC ( 2015 )

ACCEPTED
06-15-00004-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
11/13/2015 11:37:43 AM
DEBBIE AUTREY
CLERK
No. 06-15-00004-CV
IN THE FILED IN
6th COURT OF APPEALS
COURT OF APPEALS TEXARKANA, TEXAS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA,
11/13/2015 TEXAS
11:37:43 AM
____________________ DEBBIE AUTREY
Clerk
BILLIE MURPHY TREMBLE, SHARON TREMBLE DONALDSON,
SELIA TREMBLE SHAWKEY, WILMER FORREST TREMBLE, JR.,
AND THE ESTATE OF WILMER FORREST TREMBLE, SR., Appellants,
V.
LUMINANT MINING COMPANY LLC, ENERGY FUTURE HOLDINGS
CORPORATION, AND SUBSIDIARIES, Appellees.
On Appeal from the 4th District Court
Rusk County, Texas
Trial Court No. 2013-390
BRIEF OF APPELLEES
Jackson, Sjoberg, McCarthy & Townsend, LLP
David E. Jackson
State Bar No. 10458500
djackson@jacksonsjoberg.com
Marc O. Knisely
State Bar No. 11614500
mknisely@jacksonsjoberg.com
711 W. 7th Street
Austin, Texas 78701
(512) 472-7600
(512) 225-5565 FAX
ATTORNEYS FOR APPELLEES
November 13, 2015
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
INDEX OF AUTHORITIES .................................................................................... iii
STATEMENT OF THE CASE..................................................................................vi
STATEMENT REGARDING ORAL ARGUMENT .............................................. vii
ISSUES PRESENTED........................................................................................... viii
STATEMENT OF FACTS ......................................................................................... 1
SUMMARY OF THE ARGUMENT ....................................................................... 10
ARGUMENT .......................................................................................................... 11
I. The Tremble Descendants lack standing to
bring this appeal .................................................................................. 11
II. Mrs. Tremble fails to assert reversible error ....................................... 13
III. Several entities are not proper parties
on appeal.............................................................................................. 21
CONCLUSION AND PRAYER ............................................................................. 22
CERTIFICATE OF SERVICE ................................................................................ 24
CERTIFICATE OF COMPLIANCE........................................................................ 24
APPENDIX A October 8, 2014 Final Judgment (first-phase judgment)
APPENDIX B December 16, 2014 Final Judgment (second-phase judgment)
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IDENTITY OF PARTIES AND COUNSEL
Defendants/Appellants:
Billie Murphy Tremble, Sharon Tremble Donaldson, Selia Tremble Shawkey, and
Wilmer Forrest Tremble, Jr., were Defendants in the trial court and are Appellants.
CR 6. The foregoing Appellants also named the Estate of Wilmer Forrest Tremble,
Sr., as an Appellant in their Notice of Appeal, CR 184, but the Estate was not a
Defendant in the trial court.
Counsel for Defendants/Appellants:
The Appellants who were Defendants appeared pro se in the trial court, and
Appellants are pro se in this court.
Plaintiff/Appellees:
Luminant Mining Company LLC was the Plaintiff in the trial court and is Appellee
in this Court. CR 6. Appellants also named Energy Future Holdings Corporation
and "Subsidiaries" as Appellees in their Notice of Appeal, CR 184, but neither
Energy Future Holdings Corporation nor Subsidiaries were Plaintiffs in the trial
court.
Counsel for Plaintiff/Appellees:
David E. Jackson
Marc O. Knisely
Jackson, Sjoberg, McCarthy & Townsend, LLP
711 W. 7th Street
Austin, Texas 78701
(512) 472-7600
(512) 225-5565 FAX
djackson@jacksonsjoberg.com
mknisely@jacksonsjoberg.com
- ii -
INDEX OF AUTHORITIES
Texas Cases
Barstow v. State,
742 S.W.2d 495 (Tex. App. – Austin 1987, writ denied) .................................... 6
Bilbo Freight Lines, Inc. v. State of Texas,
645 S.W.2d 925 (Tex. App. – Austin 1983, writ dism'd w.o.j.) ................... 13, 21
Browning v. Prostok,
165 S.W.3d 336 (Tex. 2005) ..............................................................................15
Burbage v. Burbage,
447 S.W.3d 249 (Tex. 2014) ..............................................................................16
Burkitt v. Broyles,
340 S.W.2d 822 (Tex. Civ. App. – Waco 1960, writ ref'd n.r.e.) .......................17
Cannon v. Hemphill,
7 Tex. 184 (Tex. 1851) .......................................................................................17
Champion v. Robinson,
392 S.W.3d 118 (Tex. App. – Texarkana 2012, pet. denied) ....................... 3, 19
Drake v. Chase Bank,
No. 02-13-00340-CV, 2014 Tex. App. LEXIS 12572, at *3 (Tex.
App. – Fort Worth Nov. 20, 2014, no pet.) ........................................................20
Gardner v. Union Bank & Trust Co. of Fort Worth,
176 S.W.2d 789 (Tex. Civ. App. – Fort Worth 1943, no writ) ..........................19
Goldberg v. Zinn,
No. 14-11-01091-CV, 2013 Tex. App. LEXIS 6867, *18
(Tex. App. – Houston [14th Dist.] 2013, no pet.) ................................................15
Griffin v. Wolfe,
610 S.W.2d 466 (Tex. 1980) ........................................................................... 3, 8
Gunn v. Cavanaugh,
391 S.W.2d 723 (Tex. 1965) ..............................................................................12
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Heller v. Heller,
269 S.W. 771 (1925) ............................................................................................6
Henson v. Estate of Bruce L. Crow,
734 S.W.2d 648 (Tex. 1987) ..............................................................................21
Hershey v. Duncan,
No. 13-01-688-CV, 2004 Tex. App. LEXIS 9784, at *8
(Tex. App. – Corpus Christi 2004, pet. denied) .................................................. 3
Homeowners' Loan Corp. v. Cilley,
125 S.W.2d 313 (Tex. Civ. App. – Amarillo 1939, writ ref'd) .............................5
In re B.L.D.,
113 S.W.3d 340 (Tex. 2003) ..............................................................................16
In re Estate of Velvin,
No. 06-13-00028-CV, 2013 Tex. App. LEXIS 12267, *16
(Tex. App. – Texarkana 2013, no pet.) ...............................................................13
In re Lumbermens Mutual Casualty Company,
184 S.W.3d 718 (Tex. 2006, orig. proceeding) .......................................... 12, 21
Lake v. Reid,
252 S.W.2d 978 (Tex. Civ. App. – Texarkana 1952, no writ) ..............................6
Malone v. Malone,
No. 06-10-00083-CV, 2011 Tex. App. LEXIS 98, *10, n. 5
(Tex. App. – Texarkana 2011, no pet.) ........................................................ 12, 16
Marmion v. Wells,
46 S.W.2d 704 (Tex. Civ. App. – San Antonio 1952, writ ref'd) .......... 11, 14, 16
Mart. v. Dosohs I, Ltd.,
951 S.W.2d 821 (Tex. App. – San Antonio 1997, no pet.) .............................. 16
Miesch v. Anderson,
90 S.W.2d 314 (Tex. Civ. App. – Texarkana 1936, no writ) . .............................. 3
Pain Control Institute, Inc. v. Geico General Insurance Company,
447 S.W.3d 893 (Tex. App. – Dallas 2014, no pet.) ..........................................20
- iv -
Peterson v. Fowler,
11 S.W. 534 (Tex. 1889) ..................................................................................... 6
Pfeffer v. Pfeffer,
269 S.W.2d 436 (Tex. Civ. App. – Galveston 1954, writ ref’d n.r.e.) .............. 12
Snow v. Donelson,
242 S.W.3d 570 (Tex. App. – Waco 2007, no pet.) ...........................................14
Thomas v. Southwestern Settlement & Development Company,
123 S.W.2d 290 (Tex. 1939) ............................................................................... 5
Torrington Company v. Stutzman,
46 S.W.3d 829 (Tex. 2000) ............................................................................... 12
White v. Mitchell,
60 Tex. 164 (Tex. 1883) .................................................................................... 11
Woodhead v. Good,
27 S.W.2d 374 (Tex. Civ. App. – Eastland 1930, no writ) ................................ 15
Rules
TEX. R. APP. P. 42.3(a) ........................................................................................... 22
Tex. R. Civ. P. 760 .................................................................................................... 3
Tex. R. Civ. P. 761 .................................................................................................... 3
Tex. R. Civ. P. 770 .................................................................................................... 3
Other
3 William V. Dorsaneo, III, Texas Litigation Guide § 43.30[3] (2015) ..................18
-v-
STATEMENT OF THE CASE
Nature of the case: Plaintiff/Appellee Luminant Mining Company LLC
("Luminant") brought this suit for partition by sale of a
tract of about 25.326 acres of land ("the Property"). CR
6, 8. Appellants Billie Murphy Tremble, Sharon
Tremble Donaldson, Selia Tremble Shawkey, and
Wilmer Forrest Tremble, Jr., were defendants in the
trial court. CR 6.
Trial Court: The Honorable J. Clay Gossett, Judge Presiding, in the
4th District Court, Rusk County, Texas
Course of Proceedings: In accordance with standard procedure in partition
suits, the District Court rendered two final judgments.
Luminant moved for summary judgment on the first-
phase partition issues, and on October 8, 2014, the
District Court signed the first judgment. CR 111, 190;
see copy of judgment attached as Appendix A. On
December 16, 2014, following a hearing, the District
Court signed the second judgment. CR 239; see copy
of judgment attached as Appendix B.
Trial Court Disposition: In the first judgment, the court (i) decided that
Appellants Sharon Tremble Donaldson, Selia Tremble
Shawkey, and Wilmer Forrest Tremble, Jr. did not own
any interest in the Property; (ii) determined the interests
or shares owned by other parties, including Luminant
and Appellant Billie Murphy Tremble; (iii) concluded
that the Property could not be fairly and equitably
partitioned in kind and thus should be sold; and (iv)
appointed a receiver to conduct a sale of the Property.
CR 190. No party appealed that judgment. In the
second final judgment, the District Court confirmed
and approved the sale of the Property to Luminant,
which was the highest bidder at above market price.
CR 239, 201-202, 206-207.
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STATEMENT REGARDING ORAL ARGUMENT
Appellants did not request oral argument, and Appellees concur that oral
argument will not aid this Court's decisional process in this appeal from the District
Court's second-phase partition judgment. The record is restricted to a clerk's
record of about 250 pages, including an unappealed first-phase final judgment and
undisputed summary judgment evidence. The legal issues are straightforward and
readily resolvable under long-settled principles and authorities: The first-phase
judgment is final in all respects, and it bars three of the four Appellants' attempts to
appeal and most of the fourth Appellant's apparent appellate complaints; and, to the
extent the fourth Appellant, Mrs. Tremble, complains about the second-phase
judgment, she failed to preserve the complaints and the judgment is patently error-
free. Finally, submission on the briefs will spare the Court and the parties time and
costs.
- vii -
ISSUES PRESENTED
This appeal is from the second of two sequential final judgments in a
partition suit in which Luminant Mining Company LLC ("Luminant"), Appellee
here, was Plaintiff, Appellants Billie Murphy Tremble, Sharon Tremble Donaldson,
Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr., were Defendants, and
Luminant sought partition by sale of a 25.326-acre tract of land ("the Property").
CR 6, 8. In the first-phase final judgment, the District Court: (i) decided that
Appellants Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer
Forrest Tremble, Jr. did not own any interest in the Property; (ii) determined the
interests or shares owned by Luminant, Appellant Billie Murphy Tremble, and
other parties; (iii) concluded that the Property could not be fairly and equitably
partitioned in kind and thus should be sold; and (iv) appointed a receiver to
conduct a sale of the Property. CR 190; Appendix A. No party appealed that
judgment. In the second-phase final judgment, the District Court approved the sale
of the Property to Luminant at above market value. CR 239; Appendix B.
The issues in this appeal are:
(1) Whether Appellants Sharon Tremble Donaldson, Selia Tremble
Shawkey, and Wilmer Forrest Tremble, Jr. lack standing to bring this appeal from
the second-phase judgment because they own no interest in the Property, as
determined in the unappealed first-phase final judgment;
- viii -
(2) Whether Appellant Billie Murphy Tremble has failed to preserve or
establish any reversible error in the second-phase judgment, and more specifically
(a) Whether claimed errors are at least largely barred by the
unappealed first-phase final judgment and are otherwise entirely barred by
Mrs. Tremble’s failure to preserve them in the trial court; but even if further
considered;
(b) Whether a claim of error cannot be asserted under the Uniform
Partition of Heirs Property Act because Texas has not enacted a version of
that Act; and
(c) Whether the District Court did not commit reversible error by
confirming and approving the sale of the Property; and
(3) Whether the Estate of Wilmer Forrest Tremble, Sr. cannot be named
as an Appellant and Energy Future Holdings Corporation and "Subsidiaries" cannot
be named as Appellees because they were not parties in the trial court.
- ix -
STATEMENT OF FACTS
This appeal arises from the second of two final judgments in a partition suit
brought by Plaintiff/Appellee Luminant Mining Company LLC ("Luminant") and
against Defendants/Appellants Billie Murphy Tremble, Sharon Tremble
Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. ("the Tremble
Family").1 Billie Murphy Tremble ("Mrs. Tremble") is the mother of Sharon
Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. ("the
Tremble Descendants"). CR 137-38. The property at issue is the surface estate
(including all coal, lignite, and other near surface minerals, but excluding the oil,
gas, and all other liquid and gaseous hydrocarbons produced with the oil and gas)
in a tract of land in Rusk County containing 25.326 acres ("the Property"). CR 8-9.
For some time before 2013, Luminant and a number of people owned
undivided interests as cotenants in the Property. Before Luminant filed the
partition suit in November 2013, Luminant had purchased a significant majority of
the undivided ownership interest in the Property – about 84 percent. CR 9. The
remaining approximately 16 percent was attributable to the Tremble Family
interest (about 1.56 percent), discussed further below, and to interests of varying
percentages owned by nine other people. Id.
1
Title instruments and other documents in the Clerk's Record contain different spellings of
"Tremble" – sometimes with an "e" and sometimes "Trimble." This brief adopts the spelling
used by the Tremble Family in the District Court and in this Court.
-1-
Among the undivided interests in the Property acquired by Luminant was
that owned by Emma Jean Tremble Smith. CR 152, 161, 178-83. Ms. Smith
deeded her undivided interest in the Property to Luminant on December 29, 2010.
CR 161, 179. Emma Jean Tremble Smith is the sister of Wilmer F. Tremble, Sr.,
deceased, who in turn was the husband of Mrs. Tremble and the father of the
Tremble Descendants. CR 137-38, 151.
Luminant filed this suit in District Court on November 26, 2013. CR 6.
Partition of real property in Texas can be either in-kind or, under certain
circumstances, by sale. Luminant pleaded circumstances supporting partition by
sale and requested that relief. CR 8-11.
When Luminant filed suit, the title information available to Luminant
indicated that Wilmer F. Tremble, Sr., husband of Mrs. Tremble and father of the
Tremble Descendants, previously had owned an undivided interest in the Property
(about 1.56 percent), but that he was deceased. CR 8-9, 113-14, 137-38, 154-55,
159-60. The available title information further indicated that Wilmer F. Tremble,
Sr. had died intestate and that his undivided interest in the Property thus was then-
currently owned in equal shares by the Tremble Descendants, with a one-third life
estate interest in his wife, Mrs. Tremble. Id.
Accordingly, Luminant named as Defendants all four members of the
Tremble Family, and credited the interest formerly owned by Wilmer F. Tremble,
-2-
Sr. to each of them, respectively, as just stated. CR 8-9. The Tremble Family
members each filed answers in which they all claimed to own interests in the
Property, without specifying the nature or percentage of their claimed interests, and
in which they disputed the percentage interest owned by Luminant. CR 43-46.
A partition proceeding is a two-step process, with two final orders or
judgments. Griffin v. Wolfe, 610 S.W.2d 466 (Tex. 1980) ("A partition case, unlike
other proceedings, has two final judgments and the first one is appealable as a final
judgment."); Champion v. Robinson, 392 S.W.3d 118, 127 (Tex. App. – Texarkana
2012, pet. denied). "In the first step, the trial court determines (1) the share or
interests of each of the owners; (2) all questions of law or equity affecting the title
to the land; and (3) whether the property is susceptible to partition or is the subject
of a sale." Hershey v. Duncan, No. 13-01-688-CV, 2004 Tex. App. LEXIS 9784, at
*8 (Tex. App. – Corpus Christi 2004, pet. denied); Champion, 392 S.W.3d at 127;
Tex. R. Civ. P. 760, 761, 770. If partition by sale is ordered, as Luminant
requested, the second step is for the court to decide whether to confirm the sale and
to order distribution of the sale proceeds. Miesch v. Anderson, 90 S.W.2d 314,
316-17 (Tex. Civ. App. – Texarkana 1936, no writ).
Luminant moved for summary judgment on the first-phase partition issues
on July 23, 2014. CR 111-29. Luminant sought summary judgment on all of the
first-phase partition issues, including the share or interest of each of the owners, all
-3-
questions of law or equity affecting title to the Property, and a determination that
the Property should be partitioned by sale. Id.
The Tremble Family filed a response to Luminant's motion for summary
judgment on the first-phase issues on August 26, 2014. CR 133-36. The response
raised two issues, one explicitly and the other implicitly. First, the Tremble Family
contended that the December 2010 deed from Emma Jean Tremble Smith (sister of
Wilmer F. Tremble, Sr.) to Luminant was fraudulent. Id. Second, the Tremble
Family attached to their response a will by Wilmer F. Tremble, Sr. that was
unknown to Luminant and that thus altered the status of undivided ownership
among the members of the Tremble Family from that previously understood by
Luminant – although the Tremble Family's response was silent about the effect of
the will. CR 134, 142-44.
Luminant replied as to both issues raised by the Tremble Family's summary
judgment response. CR 150-83. First, Luminant conclusively refuted both the
factual and legal bases for the Tremble Family's contention that the December
2010 Smith to Luminant deed was fraudulent. The Tremble Family argued that the
deed was fraudulent because it conveyed or purported to convey to Luminant not
only Ms. Smith's interest in the Property, but also 100 percent of the Tremble
Family's interest, and because the deed was "concealed from" and made "without
knowledge or consent" of the Tremble Family. CR 133-36, 151.
-4-
The fraud claim was curious in that Luminant never contended that the deed
from Emma Jean Tremble Smith conveyed the Tremble Family’s interest in the
Property, in addition to Ms. Smith’s interest. Luminant’s partition petition
acknowledged the Tremble Family’s interest, distributed among Mrs. Tremble and
the Tremble Descendants in accordance with Luminant’s then-existing
understanding of their respective shares, and Luminant’s motion for summary
judgment sought judgment crediting the Tremble Family with those respective
shares. CR 8-9, 113-14.
Nonetheless, Luminant pointed out that, even if Emma Jean Tremble Smith
had attempted to convey an interest in the Property beyond what she owned, the
Tremble Family would not have been "defrauded" by the deed, because the deed
could legally convey "such interest, and only such interest, in the land as the maker
of the deed possesses." Thomas v. Southwestern Settlement & Development Co.,
123 S.W.2d 290, 297 (Tex. 1939); see also Homeowners' Loan Corp. v. Cilley, 125
S.W.2d 313, 316 (Tex. Civ. App. – Amarillo 1939, writ ref'd) ("[T]he general rule
is that one tenant in common cannot by his sole act sell or encumber more than his
portion of the common property."). Furthermore, Ms. Smith in fact conveyed only,
in the deed's words, "all of my undivided interest" in the Property. CR 152-54,
178. She did not convey or purport to convey any interest in the Property greater
than that which she owned.
-5-
The Tremble Family also was mistaken in arguing that the deed somehow
was rendered "fraudulent," as to them or their interest, by virtue of the fact that Ms.
Smith did not notify them about her conveyance or obtain their consent to or
joinder in the deed. For well over a century, Texas courts have held that a cotenant
may convey her interest in real property without the consent or knowledge of her
cotenants. Peterson v. Fowler, 11 S.W. 534, 535 (Tex. 1889); Heller v. Heller, 269
S.W. 771, 776 (Tex. 1925) ("As a tenant in common, Mrs. Heller had the right to
sell off any particular part of the entire community estate, just so long as her deed
did not injure the rights of the other children to secure their part of the estate.");
Lake v. Reid, 252 S.W.2d 978, 982 (Tex. Civ. App. – Texarkana 1952, no writ)
("The rule is well known that each cotenant may freely assign or convey his
interest in the common property, 'and his assignee or vendee at once becomes the
owner of the interest conveyed, and as such, as a matter of law, a cotenant with the
former cotenants of his vendor, and entitled to all the rights of any cotenant,
including the rights of possession and re-sale.'"); Barstow v. State, 742 S.W.2d 495,
508 (Tex. App. – Austin 1987, writ denied) ("One cotenant may freely convey his
interest in the common property as long as he does not prejudice the rights of his
cotenants in the premises," citing Peterson v. Fowler and Lake v. Reid). CR 153-
54.
-6-
Finally, neither Luminant nor Emma Jean Tremble Smith "concealed" the
deed. Instead, they recorded the deed in public records shortly after its execution.
CR 154, 161, 183.
As to the second issue raised implicitly by the Tremble Family's summary
judgment response – the title implications of Wilmer F. Tremble, Sr.'s will –
Luminant first learned of the will's existence when it received the response. CR
154-55, 159-60. The will had been probated in Harrison County, but had not been
filed in the deed records in Rusk County, where the Property is located. CR 142-
44, 159-60. Furthermore, an affidavit of heirship that had been filed in the deed
records in Rusk County, and that Luminant had relied on, stated that Wilmer F.
Tremble, Sr. had died intestate. CR 137, 154-55, 159-60.
In his will, however, Wilmer F. Tremble, Sr. bequeathed all of his property,
real and personal, to his wife, Mrs. Tremble. CR 142. The Tremble Family's
summary judgment response therefore established that Mrs. Tremble, alone, owned
the entire undivided interest in the Property previously owned by her husband, and
that the Tremble Descendants did not own any interest in the Property. CR 142,
154-55, 160-61.
Consequently, Luminant filed a certified copy of the will in the Rusk County
Deed Records and requested that the judgment rendered by the District Court on
the first-phase issues conform to the title evidence provided in the Tremble
-7-
Family's summary judgment response. CR 155-56, 160-61, 165-76. The Tremble
Family never questioned or challenged this request or the effect of Mr. Tremble,
Sr.’s will on their title, or lack of title, to the Property.
The District Court rendered judgment adjudicating the first-phase partition
issues on October 8, 2014. CR 190; see copy of judgment attached to this brief as
Appendix A. The court adjudged and decreed that the Tremble Descendants did
not own any interest in the Property and thus were not cotenants. CR 191. In
accordance with the evidence established by the Tremble Family's summary
judgment response, the District Court credited Mrs. Tremble with the entire
undivided interest previously owned by her husband, Wilmer F. Tremble, Sr. Id.
The District Court also determined that the Property was not susceptible to
partition in kind and should be sold, and appointed a receiver to conduct the sale.
CR 190-92.
As was stated above, each of the two judgments in a partition suit is a final
judgment. Griffin, 610 S.W.2d at 466. The October 2014 judgment thus was final
for appeal purposes when it was signed. The Tremble Family did not seek any
post-judgment trial court relief from the October 2014 judgment, nor did they
appeal the judgment.
The receiver thereafter advertised the sale of the Property, solicited offers,
and received bids, as directed by the District Court in the first judgment. CR 192,
-8-
206. Luminant was one of two bidders, and its offer was substantially higher than
both the other offer and the fair market value established by an unchallenged and
undisputed appraisal. CR 128-29, 201-202, 206-207. The receiver recommended
that the District Court confirm and approve the sale of the Property to Luminant in
accordance with Luminant's offer and contract. CR 207.
On December 4, 2014, Luminant moved for judgment confirming the sale of
the Property, ordering payment of the sale proceeds to the parties in accordance
with their ownership interests in the Property determined by the first-phase
judgment, and granting related relief finalizing the second-phase partition issues.
CR 200-203. The Tremble Family did not respond to Luminant's motion or object
in any way to the relief requested in the motion.
The District Court held a hearing on Luminant’s unopposed motion for
judgment, then rendered judgment finally disposing of all second-phase partition
issues, including confirmation of the receiver's sale of the Property, on December
16, 2014. CR 199, 239-41; see copy of judgment attached to this brief as
Appendix B. The Tremble Family did not appear at the hearing in opposition to
the motion, file any post-judgment motion, or object in any way to the judgment,
but they filed a notice of appeal from the judgment on January 16, 2015. CR 184.
In their notice of appeal, the Tremble Family named the Estate of Wilmer
Forrest Tremble, Sr. as an Appellant, id.; neither the Estate nor a representative of
-9-
the Estate was a party in district court. The Tremble Family also named Energy
Future Holdings Corporation and "Subsidiaries" as Appellees, in addition to
Luminant, id; neither Energy Future Holdings Corporation nor any subsidiary was
a party in district court.
SUMMARY OF THE ARGUMENT
The Tremble Family's arguments in this appeal are so succinct and skeletal
that they are difficult to ascertain precisely. In accordance with Luminant's
understanding of those arguments, and the issues they pose, Luminant responds as
follows:
(1) The District Court's first-phase judgment determined that the Tremble
Descendants – Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer
Forrest Tremble, Jr. – did not own any interest in the Property. These parties did
not appeal that judgment, and the judgment became final for all purposes. The
Tremble Descendants therefore do not have standing to bring this appeal, which
can properly challenge only the second-phase judgment.
(2) Billie Murphy Tremble does have standing to appeal. Her complaints,
however, appear to be directed largely to the first-phase judgment and the issues
decided by that judgment. Because that judgment became final in all respects,
complaints about it are barred. In addition, Mrs. Tremble never preserved any
- 10 -
complaint about the second-phase judgment. For these and other reasons, Mrs.
Tremble's complaints do not present any reversible error.
(3) The Estate of Wilmer Forrest Tremble, Sr. was not a defendant in the
trial court, and Energy Future Holdings Corporation and "Subsidiaries" were not
plaintiffs. The Estate therefore is not a proper appellant, and the corporation and
its subsidiaries are not proper appellees.
ARGUMENT
I.
The Tremble Descendants lack standing to bring this appeal.
In the first-phase judgment, the District Court determined that the Tremble
Descendants do not own any interest in the Property. CR 190-91; Appendix A.
This determination was based on the evidence presented by the Tremble Family –
the will of Wilmer Forrest Tremble, Sr. – which established that Mrs. Tremble
owned all of the interest in the Property that previously had been owned by her
husband. CR 133-34, 142.
No one appealed the first-phase judgment, and, because partition suits
produce two final judgments, the earlier judgment thus became final for all
purposes. For that reason, too, the first-phase judgment cannot be challenged in an
appeal from the second-phase judgment, and the former judgment "must be held
conclusive of the rights of the parties." White v. Mitchell, 60 Tex. 164, 165 (Tex.
1883); Marmion v. Wells, 246 S.W.2d 704, 705 (Tex. Civ. App. – San Antonio
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1952, writ ref'd) ("It is well settled that upon an appeal from the second or final
decree matters determined by the first or interlocutory decree cannot be
reviewed…."); Pfeffer v. Pfeffer, 269 S.W.2d 436, 438 (Tex. Civ. App. – Galveston
1954, writ ref’d n.r.e.) (unappealed first-phase judgment determining interests and
ordering sale “was conclusive against the claims of appellants to any interest in
the” property, in appeal from second judgment approving sale); Malone v. Malone,
No. 06-10-00083-CV, 2011 Tex. App. LEXIS 98, *10, n. 5 (Tex. App. – Texarkana
2011, no pet.).
As to the second-phase judgment, the Tremble Descendants essentially have
the same status as a non-party, and, generally, a non-party cannot exercise the right
to appeal. In re Lumbermens Mutual Casualty Co., 184 S.W.3d 718, 723 (Tex.
2006, orig. proceeding) ("Generally, only parties of record may appeal a trial
court's judgment."); Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex. 1965) ("The
general rule is that the remedy by appeal in the usual form, or by writ of error, is
available only to parties of record…."). Furthermore, even if the Tremble
Descendants technically remained as parties to the suit after the first-phase
judgment became final and unappealable, they have no standing to complain about
the second-phase judgment, which does not affect any of their rights or interests.
Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000) ("Texas courts have
long held that an appealing party may not complain of errors that do not injuriously
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affect it or that merely affect the rights of others."); In re Estate of Velvin, No. 06-
13-00028-CV, 2013 Tex. App. LEXIS 12267, *16 (Tex. App. – Texarkana 2013, no
pet.) ("Demond is not a party to this appeal, lacks a general justiciable interest, and
cannot complain about errors which do not injuriously affect him," and, with
limited exceptions, he "lacks standing to bring an appeal.").
Because the Tremble Descendants do not have standing to appeal, their
appeal should be dismissed. Bilbo Freight Lines, Inc. v. State of Texas, 645 S.W.2d
925, 927-28 (Tex. App. – Austin 1983, writ dism'd w.o.j.).
II.
Mrs. Tremble fails to assert reversible error.
Mrs. Tremble's issues include: whether she was denied rights under the
Uniform Partition of Heirs Property Act ("the Uniform Act") (Issue I); whether the
District Court erred by signing the "Final Judgment without an open hearing to
consider the evidence" and by "omit[ting]" her "from any of the decision making
processes" (Issues II and III); and whether there was "error in the auctioning of [the
Property]" (Issue IV). Appellants' Brief, p. 3; for information about the Uniform
Act, see www.uniformlaws.org (listed under “Acts” on home page). Mrs. Tremble
next makes reference to the Uniform Act, to information about the Property that
"was not known to" her, and to "a closed civil trial," and the latter reference
appears to be directed at both the first-phase and second-phase judgments. Id. at p.
4.
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Mrs. Tremble's statement of facts and argument focus exclusively on
allegations about Ms. Smith’s deed – the same allegations that the Tremble Family
made in their response to Luminant's motion for summary judgment on the first-
phase issues. Id. at pp. 4-5. Mrs. Tremble states that Luminant filed suit claiming
that it "has 100% ownership claim in [the Tremble Family's] undivided, inherited,
heir property," by virtue of the deed from Emma Jean Tremble Smith to Luminant.
Id. at p. 5. Mrs. Tremble continues, "Ms. Smith is not nor has she ever been the
Executor of the Estate [of Wilmer Forrest Tremble, Sr.], Administrator, nor
Trustee." Id. Finally, Mrs. Tremble argues that she and the Tremble Descendants
"by law were not privy to pertinent information from" Luminant. Id. at p. 6.
For several reasons, Mrs. Tremble's complaints fall short. First, the
complaints discussed in Mrs. Tremble’s statement of facts and argument are barred
because they relate solely to the first-phase issues and judgment. The Tremble
Family explicitly argued about the deed from Emma Jean Tremble Smith to
Luminant in the first-phase proceedings, and the District Court rejected those
arguments in its judgment. "It is well settled that upon an appeal from the second
or final decree matters determined by the first or interlocutory decree cannot be
reviewed…." Marmion, 246 S.W.2d at 705; Snow v. Donelson, 242 S.W.3d 570,
572-73 (Tex. App. – Waco 2007, no pet.) (holding that the first judgment
determining “the merits of the case” and “the rights of the parties” cannot be
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revised “unless upon appeal” from that judgment, and that, "[b]ecause [Snow’s]
complaints challenge matters decided in the first hearing from which Snow did not
appeal, we have no jurisdiction to address them now."); Goldberg v. Zinn, No. 14-
11-01091-CV, 2013 Tex. App. LEXIS 6867, *18 (Tex. App. – Houston [14th Dist.]
2013, no pet.) ("To grant that relief [from the first judgment], in an appeal from
another and different judgment, would, in effect, be to permit the first judgment to
be collaterally attacked," quoting Woodhead v. Good, 27 S.W.2d 374, 376 (Tex.
Civ. App. – Eastland 1930, no writ)); see Browning v. Prostok, 165 S.W.3d 336,
346 (Tex. 2005) (“A collateral attack is an attempt to avoid the binding force of a
judgment in a proceeding not instituted for the purpose of correcting, modifying, or
vacating the judgment, but in order to obtain some specific relief which the
judgment currently stands as a bar against.”).
Second, to the extent Mrs. Tremble's issues and arguments can be deemed to
attack the second-phase judgment, those arguments were not preserved by any
request, objection, or motion in the district court. The Supreme Court of Texas
has described the threshold for preservation as follows:
As a general rule, preservation requires (1) a timely objection "stating
the grounds for the ruling that the complaining party sought from the
trial court with sufficient specificity to make the trial court aware of
the complaint, unless the specific grounds were apparent from the
context," and (2) a ruling. See TEX. R. APP. P. 33.1. Stated differently,
the test ultimately asks "whether the party made the trial court aware
of the complaint, timely and plainly, and obtained a ruling." State
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Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241
(Tex. 1992).
Burbage v. Burbage, 447 S.W.3d 249, 257 (Tex. 2014); In re B.L.D., 113 S.W.3d
340, 349-50 (Tex. 2003) (listing cases and explaining reasons for the requirement
that complaints of error must be preserved in the trial court). Here, Mrs. Tremble
did not file any response to Luminant's motion for judgment on the second-phase
issues, did not file or make any objection or motion during the second-phase
proceedings, and did not file any post-judgment motion. She thus waived any
complaint about the judgment from which she has appealed. Malone, 2011 Tex.
App. LEXIS 98, at *12-13.
Third, the District Court did not commit any error in rendering the second-
phase judgment. As a corollary to the principle that matters decided in the first
judgment cannot be reviewed in an appeal from the second, actions taken in the
second-phase proceedings that merely follow the directives and decisions in the
first judgment may not be challenged in an appeal from the second. Marmion, 246
S.W.2d at 706 ("[I]f the judgment now appealed from merely followed that [first]
decree, then the error, if error it be, would be in the former, and not in the latter,
ruling."); Martin v. Dosohs I, Ltd., 951 S.W.2d 821, 824 (Tex. App. – San Antonio
1997, no pet.) (quoting Marmion). The only remaining question in this appeal,
therefore, is whether the first judgment's directives and decisions were not
correctly followed in the second-phase proceedings, causing consequent error in
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the second judgment. Burkitt v. Broyles, 340 S.W.2d 822, 823 (Tex. Civ. App. –
Waco 1960, writ ref'd n.r.e.) (the only question that could properly arise in the
second phase would be conformity to the rules settled by the first decree, citing
Cannon v. Hemphill, 7 Tex. 184, 197 (1851)).
In the first-phase judgment, the District Court appointed a receiver to
conduct a sale of the Property, CR 191, then ordered:
It is further ORDERED, ADJUDGED, and DECREED that the
receiver shall advertise the sale of the Property, obtain offers for
purchase of the Property, enter into a contract for the sale of the
Property with the party making the highest offer, which contract shall
be subject to the Court's approval, and report the proposed sale to the
Court.
CR 192; Appendix A.
Mrs. Tremble urges an issue about whether the District Court committed
"error in the auctioning of undivided inherited heir property," Appellants' Brief, p.
3 (Issue IV), but does not elaborate on this issue. The record, however, contains no
evidence to support any claim of error and, to the contrary, affirmatively
establishes that the sale of the Property was performed precisely as the District
Court directed in the first-phase judgment and that Mrs. Tremble was awarded
more than the fair market value of her undivided interest in the Property.
In her sworn Receiver's Report to Court, the receiver, Cecilia Koch, attested
as follows:
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In accordance with this Court's October 8, 2014 Judgment, I
advertised the sale of the Property. On October 22, 2014, I listed the
Property with the Longview and Tyler area Multiple Listing Services,
the Century 21 website, as well as numerous other internet sites and
The Henderson Daily News. The listings described the property,
solicited offers to be submitted before November 22, 2014, and listed
the price at $71,500, which is above the estimated fair market value.
By the end of the day on November 22, 2014, I received two offers for
purchase of the Property, true and correct copies of which are attached
to this Report and labeled "Offer #1" and “Offer #2.” Offer #1 is the
offer and contract for purchase of the Property by Luminant Mining
Company LLC ("Luminant"), and is the highest and best offer.
Luminant has offered to purchase the Property for $78,750, plus my
fee and costs, the broker's fee, all closing costs, and the costs of court.
Offer #2 is for a proposed purchase price of $25,326, and is
substantially lower than Offer #1.
I recommend that the Court approve and confirm the sale of the
Property to Luminant in accordance with Luminant's offer and
contract for purchase of the Property, as evidenced by Offer #1.
CR 206-207. Luminant's offer and contract to purchase the Property for the sum of
$78,750, plus the receiver's fee and costs and the costs of court, far exceeded the
fair market value of the Property established by an uncontested appraisal, which
was $68,000. CR 128-29, 201-202, 206-207.
The District Court properly exercised its discretion by approving and
confirming the sale of the Property in its second-phase judgment. CR 239-241;
Appendix B. 3 William V. Dorsaneo, III, Texas Litigation Guide § 43.30[3] (2015)
(describing procedure for receiver's sale and stating that "[o]n appellate review of a
court-ordered sale, inadequacy of the price is not generally a sufficient ground for
setting the sale aside, in the absence of facts or circumstances showing fraud or
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irregularity"); Gardner v. Union Bank & Trust Co. of Fort Worth, 176 S.W.2d 789,
793 (Tex. Civ. App. – Fort Worth 1943, no writ) (the determination of whether to
confirm a receiver's sale is a matter within the sound discretion of the court, and
"[i]t is the settled rule in this state that a receiver's sale will not be set aside for
inadequacy of price alone, in the absence of facts and circumstances showing fraud
or irregularities; especially is this true unless the inadequacy is so great as to shock
the conscience of the court").
Mrs. Tremble also lists issues complaining that the District Court erred "in
the signing of [the] Final Judgment without an open hearing to consider the
evidence" and by "omit[ting]" her "from any of the decision making processes,"
Appellants' Brief, p. 3 (Issues II and III), but again does not elaborate on these
issues. As with the issue just discussed, the record contains no evidence supporting
these complaints. Luminant moved for judgment confirming the sale of the
Property, and served the motion on Mrs. Tremble. CR 201-205. On December 3,
2014, the District Court signed an order setting the hearing for December 16, 13
days later, then held the hearing on that date. CR 199. The hearing was open, and
Mrs. Tremble was not excluded from the hearing, but she did not attend and did not
otherwise oppose or object to Luminant's motion for judgment, the Receiver's
Report to Court, or the District Court's approval and confirmation of the sale of the
Property. Champion v. Robinson, 392 S.W.3d 118, 122, n. 6, 127 (Tex. App. –
- 19 -
Texarkana 2012, pet. denied) ("The record does not support Champion's [pro se]
claim that he received inadequate notice [of the hearing on the first-phase partition
issues].").
Finally, Mrs. Tremble asserts that she was denied rights under the Uniform
Act. Appellants' Brief, pp. 3 (Issue I), 4. But Mrs. Tremble does not articulate
how she allegedly was denied rights under the Uniform Act with respect to the
receiver's actions in the second-phase proceedings or the District Court's rendition
of the second-phase judgment. More significantly, the Texas Legislature has not
adopted any form of the Uniform Act, nor has the Uniform Act been otherwise
incorporated in or deemed a part of Texas law. Accordingly, Mrs. Tremble has no
ability or authority to claim error under the Uniform Act. See Pain Control
Institute, Inc. v. Geico General Insurance Co., 447 S.W.3d 893, 896-98 (Tex. App.
– Dallas 2014, no pet.) (affirming summary judgment on ground that plaintiff
alleged no recognized cause of action); Drake v. Chase Bank, No. 02-13-00340-
CV, 2014 Tex. App. LEXIS 12572, at *3 (Tex. App. – Fort Worth Nov. 20, 2014,
no pet.) (affirming district court’s judgment on ground that plaintiff alleged claim
not recognized under Texas law).
In short, the District Court's December 2014 judgment, confirming the sale
of the property, should be affirmed.
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III.
Several entities are not proper parties on appeal.
The Estate of Wilmer Forrest Tremble, Sr. was not a defendant in the trial
court, nor was a representative of the Estate. See Henson v. Estate of Bruce L.
Crow, 734 S.W.2d 648, 649 (Tex. 1987) (a decedent’s estate is “not a legal entity”
and cannot sue or be sued as such). The Tremble Family designated the Estate as
an Appellant in their notice of appeal, CR 184, and in their filings in this Court, but
there is no legal basis for that designation. "Generally, only parties of record may
appeal a trial court's judgment." In re Lumbermens, 184 S.W.3d at 723. The
doctrine of virtual representation creates an exception that allows a non-party to
intervene on appeal in certain circumstances, but none of those circumstances exist
here. Id. at 722-29.
Energy Future Holdings Corporation and "Subsidiaries" were not plaintiffs
in the trial court, but the Tremble Family designated them as Appellees in their
notice of appeal. CR 184. Because Energy Future Holdings Corporation and its
subsidiaries were not parties in the trial court and there is no other legal basis for
adding them in this appeal, they are not proper Appellees. In re Lumbermens, 184
S.W.3d at 723-24. Since Energy Future Holdings Corporation and its subsidiaries
are not proper Appellees, this Court has no jurisdiction over them in this case.
In sum, the Estate’s appeal should be dismissed for lack of standing, Bilbo,
645 S.W.2d at 927-28, and Mrs. Tremble's appeal against Energy Future Holdings
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and its subsidiaries should be dismissed for want of jurisdiction. TEX. R. APP. P.
42.3(a).
CONCLUSION AND PRAYER
The District Court carefully followed proper partition procedure. The
District Court's first-phase judgment is conclusive of the parties' rights thereby
determined, and the Tremble Descendants, who were found to own no interest in
the Property, therefore lack standing to bring this appeal. In addition, Mrs.
Tremble's complaints are barred by the first-phase judgment or are foreclosed by
her failure to preserve them.
Appellee Luminant Mining Company LLC prays that this Court: dismiss
the appeal by Sharon Tremble Donaldson, Selia Tremble Shawkey, Wilmer Forrest
Tremble, Jr., and the Estate of Wilmer Forrest Tremble, Sr. for lack of standing;
dismiss the appeal against Energy Future Holdings Corporation and Subsidiaries
for lack of jurisdiction; and, with respect to the appeal by Billie Murphy Tremble,
affirm the District Court's judgment. Appellee asks for such other and further
relief to which it is entitled.
Respectfully submitted,
Jackson, Sjoberg, McCarthy & Townsend, LLP
David E. Jackson
State Bar No. 10458500
djackson@jacksonsjoberg.com
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Marc O. Knisely
State Bar No. 11614500
mknisely@jacksonsjoberg.com
711 W. 7th Street
Austin, Texas 78701
(512) 472-7600
(512) 225-5565 FAX
By: /s/ David E. Jackson
David E. Jackson
State Bar No. 10458500
ATTORNEYS FOR APPELLEES
LUMINANT MINING COMPANY LLC
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CERTIFICATE OF SERVICE
I hereby certify that a true and complete copy of the above and foregoing
Brief of Appellees was sent via the following method, to the following parties on
this the 13th day of November, 2015.
Billie J. Murphy Tremble Sharon Tremble Donaldson
P. O. Box 541 2010 Wineberry Dr.
Marshall, TX 75671 Katy, TX 77450
Via regular mail and Via regular mail and
Certified Mail, RRR Certified Mail, RRR
7015 0640 0003 1869 5922 7015 0640 0003 1869 5946
Selia Tremble Shawkey Wilmer Forrest Tremble, Jr.
712 South 37th Street P. O. Box 841865
San Diego, CA 92113 Pearland, TX 77584
Via regular mail and Via regular mail and
Certified Mail, RRR Certified Mail, RRR
7015 0640 0003 1869 5939 7015 0640 0003 1869 5953
/s/ David E. Jackson
David E. Jackson
CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.4 (i)(3), I certify that
this brief contains 5267 words, excluding the parts of the brief exempted by Rule
9.4 (i)(1).
/s/ David E. Jackson
David E. Jackson
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