Sand Point Ranch, Ltd. v. H. Carlos Smith and Wife, Doris J. Smith, Michael Allen Smith, Phillip Andrew Smith, Timothy Patrick Smith, W. H. Bauer Jr.

NUMBER 13-10-00499-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SAND POINT RANCH, LTD., Appellant,
v.
H. CARLOS SMITH AND WIFE, DORIS J.
SMITH, MICHAEL ALLEN SMITH, PHILLIP
ANDREW SMITH, TIMOTHY PATRICK
SMITH, W.H. BAUER JR., JEANIE LOU
BAUER KIRKLAND, BOYD BAUER, BLAN
BAUER WILLOUGHBY, SHIELDS ANTHONY
HOLLADAY JR., WILLIAM BAUER HOLLADAY,
AND MICHAEL DENNIS HOLLADAY, Appellees.
On appeal from the County Court at Law No. 1
of Calhoun County, Texas.
OPINION
Before Justices Rodriguez, Vela, and Perkes
Opinion by Justice Rodriguez
This is an appeal from a jury trial on the commissioners' report in a partition of land
suit. See TEX. R. CIV. P. 761, 769, 771. The land sought to be partitioned is owned by
the Smith family. Some of the Smith family (hereinafter, the H. Carlos Smith family)1
wished to sell the land and sought partition against the remaining members of the family
(who formed the appellant Sand Point Ranch, Ltd. entity) who wished to keep the land.
The final parties to the partition were members of the Bauer family, appellees, who owned
a partial interest in a road on the land in dispute. 2 On appeal, Sand Point Ranch
challenges: the participation of the Bauers at the trial on the commissioners' report
because the Bauers did not timely file objections to the report, see TEX. R. CIV. P. 771;
and the submission of jury questions on the report that did not differentiate between the
H. Carlos Smith family's and the Bauers' objections. Sand Point Ranch asks the Court to
render judgment upholding the commissioners' report, as opposed to remanding for a
new trial, on the grounds that the questions submitted to the jury were immaterial, as
opposed to merely defective. We reverse and remand.
I. Background
The H. Carlos Smith family filed suit against Sand Point Ranch and the Bauers to
partition six tracts of land in Calhoun County, Texas. 3 In their petition, the H. Carlos
1
The H. Carlos Smith family include appellees H. Carlos Smith and wife, Doris J. Smith, Michael
Allen Smith, Phillip Andrew Smith, and Timothy Patrick Smith.
2
The Bauer family appellees are W.H. Bauer Jr., Jeanie Lou Bauer Kirkland, Boyd Bauer, Blan
Bauer Willoughby, Shields Anthony Holladay Jr., William Bauer Holladay, and Michael Dennis Holladay.
3
The petition alleged the following interests of the parties in the six tracts:
Tract No. 1 (2950.26 acres): H. Carlos Smith family, 41.67%; Sand Point Ranch, 58.33%.
Tract No. 2 (109.4 acres): H. Carlos Smith family, 20.83%; Sand Point Ranch, 29.17%;
Bauer family, 50%.
2
Smith family asked only for partition of the surface rights; the mineral and royalty interests
were to be left undivided. Sand Point Ranch answered and likewise requested partition
of the land. Sand Point Ranch agreed to the partition of the surface rights only and, by
the allegations in its answer, appeared to agree to the percentage ownership of each tract
alleged by the H. Carlos Smith family in its petition.4
Pursuant to rule 761, the trial court then entered a decree ordering partition and
appointing commissioners. See TEX. R. CIV. P. 761. In the decree, the trial court found
that the land was susceptible to partition and that the partition should be made in
accordance with the percentage ownership alleged by the parties. The trial court
appointed three commissioners to make the partition and ordered that the commissioners
report in writing to the court once the partition was completed.
After a hearing at which all parties participated, the commissioners filed their
report, partitioning the land between the parties as ordered by the trial court. The H.
Carlos Smith family was awarded certain parcels of land with a total value of $5,264,418;
Sand Point Ranch was awarded certain parcels of land with a total value of $7,318,961;
and the Bauers were awarded a parcel of land worth $3,800.5 The H. Carlos Smith family
timely objected to the commissioners' report, arguing that the commissioners' valuation of
certain land was materially erroneous and caused an unequal and unjust division of the
Tract No. 3 (130.61 acres): H. Carlos Smith family, 41.67%; Sand Point Ranch, 58.33%.
Tract No. 4 (16.5 acres): H. Carlos Smith family, 41.67%; Sand Point Ranch, 58.33%.
Tract No. 5 (80 acres): H. Carlos Smith family, 42.99%; Sand Point Ranch, 57.02%.
Tract No. 6 (4-acre road): H. Carlos Smith family, 20.83%; Sand Point Ranch, 29.17%,
Bauer family, 50%.
4
The Bauers answered by general denial. See TEX. R. CIV. P. 92.
5
The exact nature of the property division is not at issue in this appeal.
3
property.6 See TEX. R. CIV. P. 771. It is undisputed that the Bauers filed no timely
objection to the commissioners' report.7 Sand Point Ranch moved to strike or dismiss
the Bauers from the case, arguing that because they filed no objection, they had waived
all complaints to the commissioners' report and had no standing to further participate in
the partition proceedings. The trial court denied that motion.
The propriety of the commissioners' report was then tried to a jury. Over Sand
Point Ranch's objection, the Bauers were allowed to participate at trial. The Bauers
were allowed to make an opening statement, to cross-examine witnesses, and to make a
closing statement, all of which put before the jury the Bauers' objections to the
commissioners' report.8 Over Sand Point Ranch's objection,9 the jury was questioned as
follows: (1) "Is the report filed by the commissioners erroneous in any material
respect?"; and (2) "Is the report filed by the commissioners unequal and unjust?" The
6
Specifically, the H. Carlos Smith family complained that the commissioners "failed to take into
consideration that once the parcels were divided up and no longer had bay frontage that the value of the
acreage would decrease." They complained that three particular tracts of land awarded to them were
valued at the rate given to property with bay frontage even though the three tracts, once divided from the
larger parcels, no longer had bay frontage. They asserted that this erroneous valuation resulted in a
$650,000 error in the division of the property in favor of Sand Point Ranch.
7
The Bauers filed a motion for leave to file late objections, but the trial court denied the Bauers'
motion. We note that whether to grant a motion for leave to file late objections is within the discretion of the
trial court, and late objections are allowable should the movant show good cause. See Woods v. Woods,
193 S.W.3d 720, 723 (Tex. App.—Beaumont 2006, pet. denied); see also TEX. R. CIV. P. 5(b) ("When by
these rules . . . an act is required or allowed to be done at or within a specified time, the court for cause
shown may, at any time in its discretion . . . upon motion permit the act to be done after the expiration of the
specified period where good cause is shown for the failure to act." (emphasis added)); Harrington v.
Magellan Pipeline Co., LP, No. 10-07-00372-CV, 2009 WL 1163410, at *3 (Tex. App.—Waco Apr. 29, 2009,
no pet.) (mem. op.) ("[W]hen objections are untimely filed, Rule 5(b) authorizes the trial court upon motion to
permit the late filing, if the movant shows good cause for the failure to act.") (citations and internal
quotations omitted).
8
The Bauers' objections to the report concerned the land they were awarded by the commissioners
and were separate and distinct from those objections raised by the H. Carlos Smith family in their rule 771
objection.
9
Sand Point Ranch objected to the broad-form question submitted to the jury that did not
differentiate between the H Carlos Smith family's and the Bauer's complaints regarding the commissioners'
report.
4
jury answered "yes" to both questions. The trial court entered judgment on the jury's
verdict, finding that the report must be rejected under rule 771. See id. Pursuant to rule
771, the trial court then ordered the appointment of three new commissioners. See id.
Sand Point Ranch filed a motion for new trial, which was overruled by operation of law.
See TEX. R. CIV. P. 329b(c). This appeal followed.
II. The Bauers' Participation at Trial
By its first issue, Sand Point Ranch argues that the trial court erred in allowing the
Bauers to participate in the jury trial on the commissioners' report.10 In support of its
10
The H. Carlos Smith family urges that Sand Point Ranch failed to preserve this issue for our
review. We disagree. Before the jury trial, Sand Point Ranch filed a motion to strike the Bauers from the
case, contending that they had no standing to participate at trial absent a timely rule 771 objection. The
trial court denied the motion to strike. Next, immediately prior to voir dire, Sand Point Ranch again
objected to the Bauers' participation at trial. In particular, the following exchange occurred:
[Sand Point Ranch]: . . . I just wanted to make [an objection] for purposes of the record
and that at this point there are no pleadings by Mr. Bauer in this
case on behalf of his family objecting to the award.
[The Court]: Okay.
[Sand Point Ranch]: And if the Court, as you said, is denying that, my motion to
reconsider [the motion to strike], for purposes of the record, would
object to the presence of Mr. [Bauer] and his clients – the Bauer
family in participating in this lawsuit from the very –
....
[The Court]: [Counsel for Sand Point Ranch], I said earlier that I was going to
cut you off.
....
[Sand Point Ranch]: I just – Your Honor, I’m not going to delay. So, I don't need to
stand up and object every time Mr. [Bauer] participates in this
lawsuit, I just wanted to make the objections from the beginning –
[The Court]: Right.
To preserve a complaint for appellate review, "the record must show . . . a complaint was made to
the trial court by a timely request, objection, or motion that . . . stated the grounds for the [sought] ruling . . .
with sufficient specificity to make the trial court aware of the complaint" and the trial court ruled on the
objection. TEX. R. APP. P. 33.1(a). Here, Sand Point Ranch twice objected to the Bauers' participation at
trial—first, in its motion to strike, and second, immediately prior to trial. The substance of Sand Point
Ranch's complaint was made known to the trial court, and the trial court twice denied the objection.
Moreover, the trial court confirmed that Sand Point Ranch was not required to object at every instance
5
argument, Sand Point Ranch cites rule 771 and a line of cases holding that any complaint
not made by a party in its rule 771 objection is waived on appeal. See TEX. R. CIV. P.
771; Snow v. Donelson, 242 S.W.3d 570, 573 (Tex. App.—Waco 2007, no pet.);
Bierschwale v. Bode, 755 S.W.2d 562, 564-65 (Tex. App.—San Antonio 1988, no writ);
Grimes v. Hall, 211 S.W.2d 956, 958 (Tex. Civ. App.—Eastland 1948, no writ); see also
Carpenter v. Carpenter, No. 04-99-00784-CV, 2000 WL 1258373, at *2 (Tex. App.—San
Antonio Sept. 6, 2000, pet. denied) (mem. op.). Sand Point Ranch argues that this
principle should also operate to bar those complaints not raised in a timely rule 771
objection from being tried. We agree.
Here, it is undisputed that the Bauers failed to timely file objections to the
commissioners' report. The trial court denied their motion for leave to file late objections.
The Bauers were then allowed not only to participate at the trial on the commissioners'
report but also to litigate their own complaints regarding the report that were never raised
in an objection. Rule 771 provides that "[e]ither party to the [partition] suit may file
objections to any report of the commissioners . . . within thirty days of the date the report
is filed, and in such a case a trial of the issues thereon shall be had as in other cases."
TEX. R. CIV. P. 771 (emphasis added). By allowing the Bauers to present issues to the
jury that were never raised in a timely objection, the trial court violated rule 771, which
plainly provides for a trial only on those issues raised by objection. See id.; see also
Redden v. Hickey, 308 S.W.2d 225, 229 (Tex. Civ. App.—Waco 1958, writ ref'd n.r.e.)
("This court is of the view that the effect of [rule 771] is to give any party at interest in a
during trial that the Bauers' participated. In short, Sand Point Ranch clearly preserved this issue for our
review. We are not persuaded by the H. Carlos Smith family's assertions to the contrary.
6
partition suit, who is dissatisfied with the report of the commissioners appointed to divide
the property, the right to file such objections and to demand a jury trial on the objections
made." (Emphasis added)).
The H. Carlos Smith family contends that the Bauers were mandatory participants
at the trial on the commissioner's report because of the well-established law that all
owners must be made parties to a partition suit. See Ward v. Hinkle, 8 S.W.2d 641, 645
(Tex. 1928). We first note that the Bauers were made parties to the partition suit when
they were named in the original petition. See TEX. R. CIV. P. 79. They submitted to the
trial court's jurisdiction when they answered by general denial and then fully participated
in the proceedings before the commissioners. We disagree with the H. Carlos Smith
family's apparent position that disallowing the Bauers' participation at the trial on their
issues related to the commissioners' report would have somehow stripped them of their
party status.
The H. Carlos Smith family urges the Court to conclude that the Bauers were
allowed to participate without limit. But were we to take this position, under the waiver
principle in Snow, Bierschwale, Grimes and similar cases, the Bauers could litigate issues
at trial that they did not raise in an objection but would then not have any recourse in an
appeal of any unfavorable verdict on those issues. See Snow, 242 S.W.3d at 573
(holding that any complaint not made by a party in its rule 771 objection is waived on
appeal); Bierschwale, 755 S.W.2d at 564-65 (same); Grimes, 211 S.W.2d at 958 (same).
This is non-sensical. Moreover, concluding that the Bauers should be allowed to inject
issues into the trial that they did not raise by timely objection would fly in the face of the
7
pleading rules, which operate to define the issues for trial and prevent trial by ambush.
See TEX. R. CIV. P. 45; Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 494
(Tex. 1988) (holding that the rules of civil procedure "require that pleadings give fair
notice of the claim asserted" and "to provide the opposing party with sufficient information
to enable him to prepare a defense"). Here, Sand Point Ranch had no notice of the
issues the Bauers intended to present to the jury.
However, we do agree with the general tenor of the H. Carlos Smith family's
argument that, as owners, the Bauers could not be wholly barred from participating in the
trial as no valid partition order could have been entered absent the joinder of all
necessary parties. See Ward, 8 S.W.2d at 645; see also TEX. R. CIV. P. 757; Carper v.
Halamicek, 610 S.W.2d 556, 557 (Tex. Civ. App.—Tyler 1980, writ ref'd n.r.e.) ("[T]he
joinder of all owners is mandatory and no valid, binding decree of partition can be made in
their absence."). And to the extent Sand Point Ranch argues that the Bauers should
have been completely barred from participating, we are not persuaded.
Completely barring the Bauers from participating in a trial related to the partition of
land that they partially owned would contravene the well-established principle that all
owners must be made parties to partition suits. But allowing the Bauers to litigate issues
at trial that they did not timely raise in a rule 771 objection would render meaningless both
rule 771 and the cases holding that failure to object to an issue waives it on appeal. In
sum, we conclude that the trial court erred in allowing the Bauers to participate at trial to
the extent they raised issues not raised in a timely rule 771 objection. Sand Point
Ranch's first issue is sustained in so far as it complains of the the trial court allowing the
8
Bauers' to try issues not raised in a rule 771 objection. We overrule Sand Point Ranch's
first issue to the extent it argues that the Bauers should have been completely barred from
participating at trial.
III. Jury Charge
By its second issue, Sand Point Ranch argues that the trial court erred in
submitting broad-form questions to the jury that did not differentiate between the H.
Carlos Smith family's and the Bauers' objections to the commissioners' report.
Specifically, Sand Point Ranch argues that the broad-form questions allowed the jury to
render its verdict on an impermissible basis, i.e., on the Bauers' complaints regarding the
commissioners' report that were not timely raised in a rule 771 objection. Sand Point
Ranch argues that this error is reversible because there is no way for this Court to
determine with certainty whether the jury based its verdict on a proper or improper theory
of recovery.11 Again, we agree.
11
The H. Carlos Smith family again asserts that Sand Point Ranch failed to preserve this jury
charge issue for our review. And again, we believe the issue was clearly preserved. Sand Point Ranch
lodged the following objection to the broad-form jury questions at the charge conference:
The second thing, your Honor, is that we have been complaining of the Bauer
defendants from the very beginning. They don't have pleadings to support their challenge
to the commissioners' report; therefore, I think in order to preserve error we should have a
question for each one of them: The Smith plaintiffs and then the Bauer – quote unquote –
"defendants" in order to preserve our error because if we get an answer "no" to these two
and "yes" to the Bauers, and the court of appeals says, "No, they have not preserved their
right to challenge the commissioners' report," then we are done here. We don't have to
come back and retry it.
If we have only one question as to both parties, and then the court of appeals
comes and says, no, the Bauers were not proper parties because they didn't properly
preserve their challenge to the commissioners' report, we're going to have to come back
and redo it; so we would ask that there be a question for each the [H. Carlos] Smiths and
the Bauers.
After conversing about a different concern raised by the H. Carlos Smith family, the trial court then ruled on
the jury charge, stating that it was "going to submit the jury charge that's been presented by [the H. Carlos
Smith family]."
9
In Crown Life Insurance Company v. Casteel, the Texas Supreme Court
determined that it was error for the trial court to submit four Deceptive Trade Practices Act
liability theories to the jury that the evidence showed to be invalid. 22 S.W.3d 378, 388
(Tex. 2000); see also Harris County v. Smith, 96 S.W.3d 230, 232 (Tex. 2002) (holding
that it was error in personal injury case to submit a broad-form question on damages
asking jury to consider loss of earning capacity and physical impairment in addition to
other elements where neither loss of earning capacity nor physical impairment was
supported by the evidence). Similarly, the trial court here submitted questions that
included an invalid basis for rejecting the commissioners' report. We have already
concluded that it was error for the trial court to allow the Bauers to try their complaints
regarding the commissioners' report to the jury. By submitting questions that did not
differentiate between the H. Carlos Smith family's and the Bauers' complaints, the trial
court allowed the jury to enter a verdict on the basis of the Bauers' barred complaints,
which basis was improper and not supported by the law. Submitting this broad-form
question was error.
Our only remaining inquiry is whether the erroneous charge was harmful.
"[W]hen a trial court submits a single broad-form liability question incorporating multiple
theories of liability, the error is harmful and a new trial is required when the appellate court
Objecting to the submission of a question "shall suffice . . . if the question is one relied upon by the
opposing party." TEX. R. CIV. P. 278; Borden, Inc. v. Rios, 850 S.W.2d 821, 826 (Tex. App.—Corpus
Christi 1993, writ granted w.r.m.). Here, the questions at issue were those relied upon by H. Carlos Smith
and the Bauers in the presentation of their complaints to the jury. Thus, Sand Point Ranch's objection
alone—even without the submission of a substantially-correct question—sufficed. See TEX. R. CIV. P. 278.
And although Sand Point Ranch did not use the magic words "object" or "objection" and the trial court did
not use the magic words "rule" or "ruling," Sand Point Ranch made the subject of its complaint known to the
trial court, and the trial court implicitly ruled on the objection when it submitted the charge favored by the H.
Carlos Smith family over Sand Point Ranch's objections. See TEX. R. APP. P. 33.1(a). This issue has
been preserved for our review.
10
cannot determine whether the jury based its verdict on an improperly submitted invalid
theory." Casteel, 22 S.W.3d at 388 (citing TEX. R. APP. P. 61.1, 44.1(a)). In other
words, so long as the appellant's objection is timely and specific, a single broad-form
liability question that erroneously commingles valid and invalid liability theories is harmful
when it cannot be determined whether the improperly submitted theories formed the sole
basis for the jury's finding. Id. at 389. Such is plainly the case here.
The trial court submitted two broad-form questions to the jury: first, was "the
report filed by the commissioners erroneous in any material respect?", and second, was
"the report filed by the commissioners unequal and unjust?" Sand Point Ranch timely
and specifically objected to the questions. By not differentiating between the H. Carlos
Smith family's and the Bauers' complaints, we conclude that each question submitted to
the jury commingled valid and invalid bases for rejecting the commissioners' report. And
because the jury was required to give a single answer to liability in each question, this
Court cannot determine whether the improperly submitted theories formed the sole bases
for the jury's verdict. In other words, the wording of the broad-form questions in this case
allowed for a verdict based solely on the Bauers' complaints, and it is impossible for us to
eliminate that possibility. Thus, both erroneous jury questions were harmful. Sand
Point Ranch's second issue is sustained.
IV. Disposition
Sand Point Ranch argues that the jury's findings were immaterial, not merely
defective, and for that reason, the proper disposition for this appeal is for the Court to
render judgment affirming the commissioners' report. We disagree.
11
A jury's finding is immaterial if the question should not have been submitted.
Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex. 1997). In the case of an immaterial jury
finding, a rendered judgment is sometimes appropriate. See Torrington Co. v.
Stutzman, 46 S.W.3d 829, 839 (Tex. 2000).
Here, it is true that the broad-form questions effectively submitted to the jury invalid
bases for rejecting the commissioners' report—the Bauers' unpreserved complaints.
Sand Point Ranch is correct that this aspect of the questions was not properly before the
jury as the Bauers' complaints were barred by law, as discussed above. However, the
broad-form questions also submitted valid bases for rejecting the commissioners'
report—the H. Carlos Smith family's properly preserved objections. Arguably, the
broad-form questions included both material and immaterial aspects. But for essentially
the same reason we concluded that the jury questions were harmful under Casteel, we
likewise conclude under the facts of this case that the questions are not immaterial, but
merely defective. Because the wording of the questions prevents us from determining
with certainty on which basis the jury entered its verdict, we also cannot determine with
certainty whether the jury based its verdict on the immaterial or material aspects of the
questions. Rendering judgment in this situation would be inappropriate as it is possible
that the jury's verdict that the commissioners' report was erroneous, unequal, and unjust
was based on the properly-submitted, material theory of recovery. Moreover, even
assuming that rendition would be appropriate here, the rules allow us to remand when
"the interests of justice require . . . another trial." TEX. R. APP. P. 43.3(b). Because the
legal precedent governing the facts of this case is relatively sparse and this opinion will
12
clarify this particular issue in partition cases, we believe the interests of justice require
remand.
V. Conclusion
We reverse the judgment of the trial court and remand for further proceedings
consistent with this opinion.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 19th
day of January, 2012.
13