Gates v. McDonald

• Docket Number: 11-22-00054-CV
• Decision Date: 03 August 2023
• Citation: 674 S.W.3d 420
• Parties: Jacy GATES, Appellant v. Denise MCDONALD and Diana Dobbins, Appellees
• Court: Texas Court of Appeals

674 S.W.3d 420

Jacy GATES, Appellant

v.Denise MCDONALD and Diana Dobbins, Appellees

No. 11-22-00054-CV

Court of Appeals of Texas, Eastland.

Opinion filed August 3, 2023

Matthew Choate, Choate Law Firm, PLLC, P.O. Box 206, Abilene, TX 79604, for appellant.

Jessica L. Haile, McMahon Surovik Suttle, P.C., 400 Pine Street, Suite 800, Abilene, TX 79601, for appellee.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

JOHN M. BAILEY, CHIEF JUSTICE

This appeal arises from the second phase of the parties’ partition proceedings.¹Appellant, Jacy Gates, filed objections to the report of the commissioners.Appellees, Denise McDonald and Diana Dobbins, filed a response to Appellant's objections wherein they asserted that his objections were untimely.The trial court entered a final judgment and partition decree wherein it found that Appellant's objections were untimely.

Appellant brings two issues on appeal.In his first issue, he contends that the trial court erred by proceeding and entering the final judgment and second partition decree given the timely filing of his objections and jury demand.In his second issue, Appellant contends that the trial court erred by not granting his motion for new trial.We reverse and remand.

Background Facts

Our opinion in CauseNo. 11-21-00190-CV, released today, thoroughly recites the facts that concern the parties’ underlying partition dispute.Therefore, this opinion only recites the facts that are pertinent to the issues that we must address in this appeal.

Appellees filed suit to partition in kind certain real property located in Coleman County that is jointly owned by them and Appellant.The trial court entered a decree of partition (the first partition decree) which (1) determined that the property was susceptible to partition in kind, (2) set out each party's interest in the property, and (3) appointed commissioners to partition the property pursuant to the trial court's decree.

Although Appellant appealed and challenged the first partition decree, the second phase of the partition case continued.Ultimately, the commissioners submitted a report recommending how the property should be partitioned.The primary issue in this case is whether Appellant's objections to the commissioners’ report were timely filed.

Appellees’ attorney electronically submitted the commissioners’ report to the district clerk on the afternoon of September 22, 2021.However, the district clerk did not affix a file mark on the commissioners’ report showing that it was filed on September 22.Instead, the clerk affixed a file mark that indicated that the commissioners’ report was filed on September 23:

CV20-01034

Filed 9/23/2021 8:20 AM Darlene Huddle-Boyd, District Clerk Coleman County, Texas Sandy Mayes

August 30, 2021

RE: CauseNo. CV20-01034 Decree of Partition

To Whom it May Concern:

As ordered by the presiding judge in the partition case between plaintiffsDenise McDonald and Diana Dobbins and defendantJacy Gates, we as appointed commissioners, Michael Taylor, Josh Hale, and Bill Henning, have partitioned the subject property as follows:

Denise McDonald(37.5%)

21.60 ac out of B.B.B.&C. R.R. Co Survey 23, Abstract 72, Block 2 Subdivision of S.J.&C.D. Lewis Pasture (See attached survey)

Diana Dobbins(37.5%)

16.6 ac out of B.B.B.&C. R.R. Co Survey 23, Abstract 72, Block 2 Subdivision of S.J.&C.D. Lewis Pasture (See attached survey)

Jacy Gates(25%)

13.84 ac out of B. B.B.&C. R.R. Co Survey 23, Abstract 72, Block 2 Subdivision of S.J.&C.D. Lewis Pasture (See attached survey)

If any other information or documentation is needed, please contact one of the commissioners.

The file date of September 23 remained undisturbed for the next several days, including through October 23, which was the thirtieth day after September 23, and through October 25, the date on which Appellant filed his objections to the report.²

Appellant asserted in his objections that (1) the commissioners’ report was materially erroneous and/or unequally and unjustly partitioned the property and, alternatively, (2) the commissioners’ report was untimely because he had filed an appeal (CauseNo. 11-21-00190-CV referenced above) to challenge the first partition decree and was awaiting a ruling from our court in that appeal.Appellant sought a jury trial on his objections.

On November 3, 2021, Appellees filed their response to Appellant's objections, asserting that the commissioners’ report was actually filed on September 22, because that is the date that Appellees’ attorney electronically submitted the commissioners’ report.Appellees requested the entry of a final decree of partition based upon their contention that Appellant's objections to the commissioners’ report were untimely.

A hearing on Appellants’ response was set for November 23, 2021.However, Appellant's attorney did not appear for the hearing.On November 23, the trial court entered its final judgment and partition decree wherein it determined that Appellant's objections were untimely.The trial court affirmed and adopted the commissioners’ report and ordered that the property be partitioned consistent with the recommendations set forth in the report.

On December 23, 2021, Appellant filed a motion for new trial and, alternatively, a motion to set aside and motion to reconsider.

Appellant's motion was ultimately overruled by operation of law.SeeTEX. R. CIV. P. 329b(c).This appeal followed.

Analysis

A partition case consists of two decrees that are both final and appealable.Griffin v. Wolfe , 610 S.W.2d 466, 466(Tex.1980).In the first decree, the trial court determines the following: (1) the share or interest of each owner in the property that the owners seek to divide, (2) all questions of law or equity that may affect title, and (3) whether the property in dispute is subject to partition or sale.TEX. R. CIV. P. 760, 761, 770;Ellis v. First City Nat'l Bank , 864 S.W.2d 555, 557(Tex. App.—Tyler 1993, no writ.).Further, the trial court is required to appoint three or more disinterested persons as commissioners who shall partition the property in dispute pursuant to the trial court's decree; the trial court may also provide directions to the commissioners as may be necessary and appropriate.SeeTEX. R. CIV. P. 760, 761.

With respect to the second decree, which is the focus of Appellant's challenge in this appeal, the commissioners "shall proceed to partition the real estate described in the decree of the court, in accordance with the directions contained in such decree and with the provisions of law and these rules."TEX. R. CIV. P. 766.After the partition is completed, the commissioners must submit, under oath, a written report to the trial court.³TEX. R. CIV. P. 769.Within thirty days after the commissioners file their report, any party to the partition suit may file objections with the trial court.TEX. R. CIV. P. 771.

Appellant asserts in his first issue that the trial court erred by overruling his objections to the commissioners’ report without conducting a jury trial on his objections.The resolution of this issue turns on the timeliness of his objections.In this regard, Appellant's failure to appear for the hearing on Appellees’ response to his objections is of no consequence because the timeliness question turns on the documents in the clerk's record.

" Texas Rule of Civil Procedure 771 sets forth the procedures and timelines for objections and states that a trial on any objections is mandatory[.]"Williams v. Mai , 471 S.W.3d 16, 19(Tex. App.—Houston[1st Dist.]2015, no pet.);seeGreen v. Marek , No. 03-01-00502-CV, 2002 WL 722164, at *1(Tex. App.—Austin Apr. 25, 2002, no pet.)(not designated for publication)(" Rule 771 contemplates a ‘trial on the issues’ when a party to a partition action has objections to the commissioners’ report.").Thus, a trial is mandatory if objections are timely filed to the commissioners’ report.SeeWilliams , 471 S.W.3d at 19;Redden v. Hickey , 308 S.W.2d 225, 229(Tex. App.—Waco1957, writ ref'd n.r.e.).The right to a trial on timely-filed objections includes the right to a jury trial if requested.Redden , 308 S.W.2d at 229.

Rule 769 of the Texas Rules of Civil Procedure sets out the requirements for the substance of the commissioners’ report.Williams , 471 S.W.3d at 18;seeTEX. R. CIV. P. 769.It also sets out the procedures by which the commissioners and the clerk must abide.Williams , 471 S.W.3d at 18.With respect to the clerk's responsibilities, the rule requires that "[t]he clerk shall immediately mail written notice of the filing of the [commissioners’] report to all parties."TEX. R. CIV. P. 769.Here, the clerk did not send written notice of the filing of the commissioners’ report to the parties.However, Appellant does not complain of the omission of the clerk sending notice of the filing of the commissioners’ report.⁴

Even though the clerk did not mail notice of the filing of the commissioners’ report, the clerk affixed a file mark on the commissioners’ report indicating that the report was filed on September 23.The file mark is the memorandum of the clerk of the date of a document's filing.Pruitt v. State , 92 Tex. 434, 49 S.W. 366, 366(1899).Until corrected, the date of the file mark is conclusive evidence of the date of filing.Id.As summarized by a legal treatise, "[t]he memorandum of the date of filing, affixed by the clerk or judge, is not conclusive where its error is shown by evidence received on that issue, but it does control unless it is amended, if erroneous, pursuant to a formal order of court."2 ROY W. MCDONALD & ELAINE A.GRAFTON CARLSON , TEXAS CIVIL PRACTICE § 7:29 (2d. ed. 2022)(footnote omitted).

The September 23 date of filing, as reflected by the clerk's file mark, remained unchanged for the thirty-day period following the filing of the commissioners’ report, and it extended through the date Appellant filed his objections to the commissioners’ report.On November 3, Appellees...