Sadler v. Duvall

• Decision Date: 16 July 1991
• Docket Number: No. 6-90-075-CV,6-90-075-CV
• Citation: 815 S.W.2d 285
• Parties: Cletys C. SADLER, et ux., Jeannette Williams Sadler and Philip M. Sadler, et ux., Jacquelyn Sadler, Appellants, v. Suzanne Mann DUVALL, Appellee.
• Court: Texas Court of Appeals

Page 285

815 S.W.2d 285

Cletys C. SADLER, et ux., Jeannette Williams Sadler and Philip M. Sadler, et ux., Jacquelyn Sadler, Appellants, v. Suzanne Mann DUVALL, Appellee.

No. 6-90-075-CV.

Court of Appeals of Texas Texarkana.

July 16, 1991.

Gregory D. Smith, Ramey, Flock, Jeffus, Crawford, Harper, Tyler, Earl Roberts, Jr., Roberts, Hill & Calk, Longview, for appellants.

H. Wayne Meachum, Dallas, John W. Alexander, Winnsboro, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Cletys Sadler, Jeannette Williams Sadler, Philip M. Sadler, and Jacquelyn Sadler appeal from a judgment awarding damages to Suzanne Duvall for damages caused by ouster and the concomitant conversion of timber located on the real estate in which she claimed ownership.

The Sadlers contend that the trial court erred in awarding damages because there were no findings made on any tort claim that could support the liability award. They also contend that the court used an improper measure of damages and erroneously awarded attorney's fees and prejudgment interest.

This suit began as an action by Duvall to remove a cloud from the title of realty, but later changed into an action to recover profits from the sale of timber on the property and associated damage to the land. The Sadlers came into possession of the entire tract of land, consisting of 755 acres, under a special warranty deed from Bankers Life and Casualty Company dated May 6, 1976. The Sadlers intervened in the pending lawsuit and adopted the position of their predecessor-in-title claiming ownership of the entire tract of land and denying any ownership interest by Duvall. Afterward, the Sadlers sold timber from the property for $86,243.03.

The title problem was severed from this action and was resolved in 1982 with a judicial determination that Duvall owned a one-fourth interest in the property. The damage claims were tried to the court in 1984. An appeal followed, which resulted in reversal and remand for a new trial. Duvall v. Sadler, 711 S.W.2d 369 (Tex.App.--Texarkana 1986, writ ref'd n.r.e.) (opinion by Chadick, J.).

Upon retrial, the jury found in Duvall's favor on some issues, and the court rendered a judgment that partitioned the property in kind and awarded damages to Duvall consisting of the manufactured value of the cut timber, the diminution in value of the land resulting from the logging, the cost of restoring a log cabin, and attorney's fees for clearing the cloud on title. Prejudgment interest was awarded on all recoveries.

The Sadlers contend in their first ten points of error that damages were improperly awarded because there were no jury findings about the underlying torts that allegedly caused the damages. The judgment states that:

(3) The Defendants committed ouster against Plaintiff as a matter of law between May 6, 1976 and October 5, 1982; that Plaintiff is entitled to damages and judgment therefor against Defendants in the amount of $13,275.65, the same being twenty-five percent (25%) of the rental value of the subject farm land during the period of ouster; that Plaintiff is entitled to prejudgment interest thereon; that the full amount of said damages for ouster and interest thereon has been paid and satisfied by Defendants and that Plaintiff is entitled to no addition (sic) award therefor; ....

(Emphasis added.)

When a judgment debtor voluntarily pays a judgment rendered against him, he waives his right to appeal on the underlying basis of liability. Elkins v. Vincik, 437 S.W.2d 49 (Tex.Civ.App.--Austin 1969, no writ). According to the above provision of the judgment, the Sadlers voluntarily paid the award based upon their ouster of Duvall. Thus, they cannot now complain about any matters predicated on ouster. The trial court did not err by basing its judgment in the present case upon ouster.

Ouster is defined as a wrongful dispossession or exclusion of a party from real property. It is a notorious and unequivocal act by which one cotenant deprives another of right to common and equal possession and enjoyment of property. Alexander v. Kennedy, 19 Tex. 488, 493 (1857); BLACK'S LAW DICTIONARY 1101 (6th ed. 1990). When a party procures title that purports to convey the entire title to the land upon which a cotenancy exists, such a conveyance constitutes ouster and amounts to disseizin of the nonparticipating cotenant. Beets v. Hickok, 701 S.W.2d 281, 284 (Tex.App.--Tyler 1985, no writ).

The term conversion was not mentioned in the judgment. Conversion is defined as any unauthorized act which deprives an owner of his property permanently or for an indefinite time. BLACK'S LAW DICTIONARY 332 (6th ed. 1990). The Sadlers argue that conversion should have been submitted to the jury, but since it was not, no such finding can be deemed or otherwise made. Where the evidence is clear and undisputed, there are no contested facts for the jury to resolve, and no submission is necessary. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); TEX.R.CIV.P. 277, 279.

The stipulations showed that Duvall owned one-fourth of the property and that the Sadlers knew of, but denied her claim, and that the Sadlers sold all of the merchantable timber off the land in 1976 and 1977 without accounting for the proceeds to Duvall.

Although the trial court has the power to modify or set aside a stipulation, if it is not set aside, it is conclusive as to the facts stipulated and all matters necessarily included therein. A stipulation will be observed and the reviewing court is bound thereby. State Bar of Texas v. Grossenbacher, 781 S.W.2d 736 (Tex.App.--San Antonio 1989, no writ); Geo-Western Petroleum Development v. Mitchell, 717 S.W.2d 734 (Tex.App.--Waco 1986, no writ); Amoco Production Co. v. Texas Electric Service Co., 614 S.W.2d 194 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ); Handelman v. Handelman, 608 S.W.2d 298 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). In the present case, conversion of the proceeds from the timber is unquestionably shown by the stipulations. Thus, the trial court did not err by rendering judgment based upon this theory.

The Sadlers next argue that the measure of damages on the timber was improper. They first contend that the trial judge erred by ordering an accounting because Duvall did not pray for such relief in her seventh amended petition. However, Duvall did plead for partition, and an accounting is an incident of a partition suit. Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 771-72 (1942).

The Sadlers also argue that there was no basis to obtain an accounting because Duvall failed to secure a jury finding about the amount of timber harvested. They suggest that her one-fourth interest might actually have been left in place, because the evidence showed that some trees were still on the property. However, Stipulation 10 and the referenced contract state that all marketable timber was sold. The stipulation is conclusive. Duvall was entitled to one-fourth of the marketable timber, and the sale by the Sadlers and their failure to account for the proceeds deprived Duvall of this property.

The Sadlers also argue under this point that the court applied an improper measure of damages when it applied the manufactured value of the lumber ($50,000, based on jury's finding) instead of the stumpage value ($21,560.75, based on jury's finding). The rule to be employed when deciding what measure of damage should be utilized is set out in Kirby Lumber Co. v. Temple Lumber Co., 125 Tex. 284, 83 S.W.2d 638 (1935):

The doctrine of manufactured value is based upon the rule of law that a party whose property has been tortiously taken is entitled to it or its enhanced value until it has been so changed as to alter the title. Under such a rule it is held that the owner of timber may reclaim it when manufactured into lumber, cross-ties, shingles, etc.... Notwithstanding the above rule, manufactured value will not be applied in regard to timber cut and appropriated where the trespass is the result of inadvertence or mistake, or where the person committing the wrong acted in good faith, and without any intention of committing a wrongful act. Of course the act must not be in reckless disregard of the rights of the owner, but the act must be willful and the wrong intentional, or committed under such circumstances that the law will impute malice.

(Emphasis added.) Other cases in which the court addresses the proper measure of damages for timber cut are Green v. Crawford, 662 S.W.2d 123 (Tex.App.--Tyler 1983, writ ref'd n.r.e.); Louisiana Pacific Corp. v. Smith, 553 S.W.2d 771 (Tex.Civ.App.--Tyler 1977, no writ); DeWitz v. Saner-Whiteman Lumber Co., 155 S.W. 980 (Tex.Civ.App.--Galveston 1913, no writ). In the absence of such circumstances, where the cotenant merely cuts and appropriates more than his share of the standing timber, only the stumpage value should be utilized. Texas courts draw a distinction between an intentional, willful or malicious act and good faith inadvertence. In several cases, the reason for the improper logging was a simple error on the part of a logger or owner in pointing out boundary lines. In Kirby, the jury was asked to find that the defendant acted in reckless disregard of the plaintiff's rights. In the present case, no issues or instructions concerning malice, recklessness, or bad faith were requested by counsel or submitted to the jury. When an issue is conclusively established as a matter of law, or when it can be answered as a matter of legal deduction from undisputed facts, the trial court need not submit a question on it to the jury. Sullivan v. Barnett, 471 S.W.2d at 44; Transit Enterprises v. Addicks Tire & Auto Supply, 725 S.W.2d 459 (Tex.App.--Houston [1st Dist.] 1987, no writ); TEX.R.CIV.P. 277. In order to establish that manufactured value was the proper measure of damage, Duvall had to prove so conclusively that the court could determine as a matter of law that...