Thursday, February 11, 2010

2-Step in Suit to Partition Land Explained

Not only are appeals from partition-of-land suits rare; they are also procedurally weird, as a panel of the Fourteenth Court of Appeals had occasion to explain in a case decided this week, in which the effect of a partial non-suit was at issue. Among other oddities, suits to partition real estate yield two separate final judgments, each of which triggers its own appellate time-table.

Johnson v. Evans (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Hedges) (suit for partition of land, two-stage proceedings with two final judgments, effect of nonsuit) (amount of ad litem fee affirmed, ad litem attorney for defendants served by publication)


Unlike most other proceedings, a partition cause involves two final appealable judgments. Griffin v. Wolfe, 610 S.W.2d 466, 466–67 (Tex. 1980) (per curiam); Ellis v. First City Nat’l Bank, 864 S.W.2d 555, 557 (Tex. App.—Tyler 1993, no writ). In the first judgment, the trial court: (1) determines the interests of each of the joint owners or claimants in the real estate sought to be divided and decides all questions of law and equity affecting the title to such land; (2) determines whether the property is susceptible to partition or the subject of a sale; and (3) appoints commissioners to partition the property in accordance with the respective shares or interests of each of such parties entitled thereto. Ellis, 864 S.W.2d at 557; see also Tex. R. Civ. P. 760, 761. Although the first judgment has been characterized as preliminary, it is final for purposes of appeal. Ellis, 864 S.W.2d at 557. Matters decided in the first decree cannot be reviewed in an appeal from the second judgment. Id.

In the second judgment, the court approves the commissioners’ report and partitions the property in kind or by sale. Campbell v. Tufts, 3 S.W.3d 256, 259 (Tex. App.—Waco 1999, no pet.). If, however, the trial court finds the report “to be erroneous in any material respect, or unequal and unjust,” the trial court rejects the report and appoints other commissioners to partition the land. Id. (citing Martin v. Dosohs I, Ltd., 951 S.W.2d 821, 824 (Tex. App.—San Antonio 1997, no writ)); see also Tex. R. Civ. P. 771. A party objecting to the commissioners’ report has the burden of proving that the report is materially erroneous or that it unequally and unjustly partitions the property. Ellis, 864 S.W.2d at 557; Roberts v. Philpot, 435 S.W.2d 614, 615 (Tex. Civ. App.—Tyler 1968, no writ).


The instant partition suit involves two judgments, both independent of one another. See Griffin, 610 S.W.2d at 466. The issues litigated in the first judgment—ownership and susceptibility to partition—were distinct from the issue to be adjudicated in the second judgment—physical partition. Correspondingly, in the proceedings below, the trial court adjudicated ownership in the first judgment: the Evanses owned an undivided 7/8 interest in Tract 1 and the Jasper heirs owned the remaining undivided 1/8 interest; the Evanses owned an undivided 1/2 interest in Tract 2 and the Jasper heirs and Johnson owned the other 1/2 interest. After the trial court adjudicated ownership in the first judgment, it then proceeded to adjudicate the second claim—physical partition of both tracts. However, before the Evanses’ physical-partition claims were adjudicated, the Evanses moved to nonsuit their claim to partition Tract 1. See Cook, 167 S.W.3d at 482 (recognizing that a party may choose to take a nonsuit as to some claims without nonsuiting the rest of the pending claims). Because ownership had been adjudicated at the time of nonsuit, the nonsuit could not, and did not, alter ownership. See Alvarado, 892 S.W.2d at 855 (“Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiff’s right to nonsuit.”). For that reason, the Jasper heirs’ 1/8 interest in Tract 1 was untouched and unaffected by the Evanses’ nonsuit.

Procedurally, the issue of ownership was not pending at the time of nonsuit; the only claim pending at the time of nonsuit was the claim to physically divide both tracts of land. As a pending claim, yet to be litigated, physical partition of Tract 1 was amenable to nonsuit. See Kilpatrick, 112 S.W.3d at 634 (“[A] nonsuit vitiates any . . . claims that are pending as to a defendant against whom a nonsuit is taken.”). Furthermore, the first judgment did not establish Johnson’s right to Tract 1. The first judgment determined that only the Evanses and the Jasper heirs had ownership rights to Tract 1. While Johnson claimed an interest in Tract 1 as an heir of Eldredge Jasper, Johnson did not file a counterclaim or otherwise seek affirmative relief to prove his heirship. Moreover, Johnson did not file a counterclaim or otherwise make a request for affirmative relief to partition Tract 1. See Kilpatrick, 112 S.W.3d at 634. For these reasons, we conclude that the trial court did not err in granting the Evanses’ nonsuit.

AFFIRMED: Opinion by Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00610-CV Gerald K. Johnson v. Christine Evans and Frederick M. Evans
Appeal from 3rd District Court of Anderson County
Trial Court Judge: Bascom W. Bentley

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