Bowman v. Stephens
| Decision Date | 20 November 2018 |
| Docket Number | NO. 01-17-00522-CV,01-17-00522-CV |
| Citation | 569 S.W.3d 210 |
| Parties | Robert Hardie Tibaut BOWMAN and Powers L. Bowman, Appellants v. Molly Bowman STEPHENS, Appellee |
| Court | Texas Court of Appeals |
B. Russell Horton, George Brothers Kincaid & Horton, L.L.P., 114 West 7th St. Ste 1100, Austin, TX 78701, Robert J. Myers, Myers * Law, 2525 Ridgmar Blvd., Ste. 150, Fort Worth, TX 76116, for Appellants.
Don H. Mage, Julian Lockwood, April Lucas, McGinnis, Lochridge & Kilgore, LLP, 600 Congress Ave., Ste. 2100, Austin, TX 78701, for Appellee.
Panel consists of Justices Higley, Brown, and Caughey.
Three siblings are co-owners of a multi-million dollar, 117-acre, lakefront property along Lake Austin in central Texas. The two brothers want to sell the property and divide the proceeds among the three siblings, but their sister wants to continue to keep the property in the family and enjoy its many features, including a boat dock she added recently. The brothers sued their sister, seeking a partition by sale. The trial court found the property was susceptible to partition in kind and appointed commissioners to allot portions of the property to each sibling to keep or sell at their discretion.
In three issues, the brothers appeal the judgment. They contend, first, the trial court erred by finding the property could be partitioned in kind without materially impairing its value; second, the trial court exceeded its authority by entering certain findings of fact and conclusions of law that went beyond the statutorily prescribed issues to be determined during the first phrase of a partition suit; and, third, the trial court’s findings are not supported by legally and factually sufficient evidence.
We affirm.
The parties to this suit are three adult siblings: Robert Hardie Tibaut Bowman, Powers L. Bowman, and Molly Bowman Stephens. They co-own a 117-acre lakefront property on Lake Austin they refer to as "Bowman Lake Place" or "Lake Place." It is comprised of two parcels of land that were purchased in separate transactions by their grandmother in the 1950s. One tract is roughly 35 acres and has 900 feet of frontage along Lake Austin.
The land gently slopes upward from the river. The property includes a modest house, boat dock, and gazebo. The other tract is roughly 85 acres and has steep slopes, heavy vegetation, and other topographical features that make it difficult to access. The upper tract is undeveloped. It is near but not in the Balcones Canyonland Conservation Plan’s Preserve, which was created about 20 years ago to protect the natural habitat of local endangered species. These 85 acres are designated for future inclusion in the Preserve. The designation requires a landowner to go through a federal permitting process when developing the land.
There is no direct access to Lake Place from any public roads. The property owner next to Lake Place historically has allowed the siblings to use his property for access. From Pearce Lane, the siblings can enter the neighbor’s property through his private gate, drive down the neighbor’s private drive, and access a dirt road that leads to their property. Tibaut and Powers assert that the siblings have access rights "recognized in" their neighbor’s Special Warranty Deed, which notes an "unrecorded right of access along a gravel road across" the property. Molly disputes her brothers' contention that there is a legally recognized right to access Lake Place through their neighbor’s land; instead, in her view, there is only a neighborly agreement that can be revoked by the neighbor at any time, which would result in Lake Place being landlocked without public access.
A few years ago, Tibaut and Powers approached Molly about selling Lake Place and splitting the sale proceeds. Molly did not want to sell. If her brothers demanded they convert their interest into cash, she preferred the property be partitioned in kind and she be allotted the portion that included the home she has always enjoyed during family gatherings and the boat dock she installed at her own expense. The brothers sued their sister, seeking a judgment that would require the sale of Lake Place and the division of sale proceeds among the siblings.
The first phase of the partition trial—in which the trial court, among other things, determines whether the property is susceptible to partition in kind—occurred in December 2017. Powers testified that he and his siblings jointly own and enjoy Lake Place as well as a 600-acre ranch in Kerr County. He acknowledged that access to Lake Place "has been a concern" because there are no public roads that reach its borders. Instead, they must rely on their western neighbor, who always has allowed access through his property. Powers testified that "the only purchaser in the world that would not have a problem with access to the Lake Place" would be that neighbor.
Powers testified that he and Tibaut once raised with Molly the possibility of selling just the back 85 acres. He said he had been told it was worth $500,000 to $2.5 million, though he did not identify who provided that valuation. He and Tibaut wanted to use the money to finance additional development of the 600-acre ranch the siblings jointly own. Powers acknowledged a sale in that price range would not have provided adequate funds to fully finance their development plans.
Eric Moreland, a real estate broker, testified about two offers that had been made to purchase Lake Place. First, the neighbor who allows access offered to buy Lake Place for $8 million. Second, after Tibaut approached Moreland and requested that Moreland find a potential buyer, Moreland secured a second offer of $12.7 million for the property. One of the brothers' experts, George Ezell, testified that, to his knowledge, the $12.7 and $8 million offers were the only offers that have been made to purchase the full 117-acre tract.
Charles Dunn of Hutson Land Planner was hired by Molly to analyze the highest and best use of Lake Place. He testified that the upper and lower parcels have different highest and best uses. The upper 85 acres is within an endangered species area and is subject to development limitations and potential federal oversight; therefore, its highest and best use is recreational. The lower 35 acres has river access, making it more valuable on a per-acre basis. According to Dunn, its highest and best use is as a lakefront residential development. Dunn testified that the property’s value is negatively impacted by the lack of street frontage.
Dunn testified that a partition in kind would meet the brothers' needs and Molly’s needs and, in his view, would allow them to "make the same amount of money they would have made" if the property were sold as a single unit. Dunn considered several hypothetical divisions, including one that would create three lakefront properties with shared access to the 85-acre back parcel to be enjoyed by all three landowners under a conservation easement. He said his hypothetical divisions were only tentative because the parties were still in the partition trial’s first stage, which is limited to addressing the issue of whether the property could be divided, not specifically how it should be divided. Dunn stated he was not offering an opinion that the property should be divided in any particular way, as that was outside the scope of his involvement and the proceeding’s current stage.
Powers and Tibaut’s expert, George Ezell, is a land appraiser. He performed a valuation of Lake Place that relied, in part, on information he obtained from an attorney, Terry Irions. Irions had told Ezell that Lake Place has access to public roads through a prescriptive easement on the neighboring property. Based on this information from Irions, Ezell included an "extraordinary assumption"2 in his valuation that public access to Lake Place through a neighbor’s land is granted through a "prescriptive easement."3 Ezell testified that his valuation "absolutely" could change if his prescriptive-easement assumption proved incorrect.
Irion testified similarly, stating that the "only access to this property is from the prescriptive easement." On further questioning, he stated that there is an "inference" that an easement exists in the neighbor’s deed. He did not otherwise analyze whether a prescriptive easement exists across the neighbor’s property.
Tibaut, who is a lawyer, also opined that Lake Place currently enjoys a prescriptive easement across the neighbor’s land, meaning there is a legal right to access the property through that land.
The testimony that a prescriptive easement exists to grant access to Lake Place was tempered by other evidence. In a letter sent to his siblings prelitigation, Tibaut discussed how they might obtain a deeded easement from their neighbor by offering to help pay the cost of paving the neighbor’s private drive. Tibaut’s letter stated that the siblings "NEED a deeded easement" for access and "may be able to get it in the paving process."
Using his extraordinary assumption that a prescriptive easement exists, Ezell testified Lake Place’s value, as a single 117-acre parcel, considering the property’s characteristics and highest and best use, as well as comparable sales in the area, is $27.3 million—more than double the highest documented offer to date.
Ezell performed a second valuation after dividing the property into three hypothetical parcels with roughly equal values. He relied on a hypothetical division discussed by Molly’s expert, Dunn. According to Ezell, if the 117 acres were dividing into these three parcels, their combined value would be $17.4 million. In other words, according to Ezell, the property has more value as a single tract of land ($27.3 million) than if partitioned into three parcels ($17.4 million).
Molly’s real estate appraiser, David Bolton, testified that he considered the...
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