Voth v. Felderhoff, 2-87-047-CV

• Decision Date: 16 March 1989
• Docket Number: No. 2-87-047-CV,2-87-047-CV
• Parties: Della Rose Felderhoff VOTH, Individually, Henry Voth, Jr., Individually, Della Rose Felderhoff and Henry Voth, Jr., Trustees, Mary Ann Voth Friddell, Sharon Rose Voth, Ernest Voth, Glen Joseph Voth, Marie Felderhoff, Marie Felderhoff Spaeth, Henry Spaeth, David Henry Spaeth, Lou Ann Spaeth, Patricia Ann Spaeth Henry, Eddy Henry, Louise Felderhoff Knauf, Edward W. Knauf, James Donald Knauf, Robert John Knauf, Michele Knauf, Mary J. Knauf Wilkes, and William E. Wilkes, Appellants, v. Norbert J. FELDERHOFF, August J. Felderhoff, and Thomas H. Felderhoff, Appellees.
• Court: Texas Court of Appeals

Page 403

768 S.W.2d 403

Della Rose Felderhoff VOTH, Individually, Henry Voth, Jr.,

Individually, Della Rose Felderhoff and Henry Voth, Jr.,

Trustees, Mary Ann Voth Friddell, Sharon Rose Voth, Ernest

Voth, Glen Joseph Voth, Marie Felderhoff, Marie Felderhoff

Spaeth, Henry Spaeth, David Henry Spaeth, Lou Ann Spaeth,

Patricia Ann Spaeth Henry, Eddy Henry, Louise Felderhoff

Knauf, Edward W. Knauf, James Donald Knauf, Robert John

Knauf, Michele Knauf, Mary J. Knauf Wilkes, and William E.

Wilkes, Appellants, v. Norbert J. FELDERHOFF, August J. Felderhoff, and Thomas H.

Felderhoff, Appellees.

No. 2-87-047-CV.

Court of Appeals of Texas,

Fort Worth.

March 16, 1989.

Rehearing Denied May 10, 1989.

R. Jack Ayres, Jr., Law Offices of R. Jack Ayres, Jr., Dallas, for appellants.

Richard H. Kelsey, Denton, for appellees.

Before FARRIS, KELTNER and MEYERS, JJ.

OPINION

KELTNER, Justice.

This is a declaratory judgment action wherein all parties assert ownership interests in, and seek partition of, three tracts of rural real property.

We reverse the trial court's judgment and render judgment that appellees take nothing by their counterclaim.

On August 25, 1980, the first eight appellants listed above filed suit, either individually or in their capacities as trustees, against: the other appellants; numerous other parties; ¹ and the three appellees. Plaintiffs sought a declaration of the parties' proportionate ownership interests in, and division of, nine tracts of real estate, and alleged that because said properties cannot equitably be partitioned in kind, the property should be sold and the proceeds divided between the parties according to their proportionate shares. ²

On June 19, 1981, after a hearing pursuant to TEX.R.CIV.P. 760, the court signed a "Preliminary Decree of Partition and Appointment of Commissioners." In this document, the trial court found that the parties "are the co-owners of, and are by law entitled to partition and division" of all nine tracts of real property which the original plaintiffs sought to partition. In this preliminary decree, the court specified the fractional share owned by each party in each of these nine tracts of land, and held that all of the properties "are susceptible of being partitioned in kind." Additionally, the trial court appointed three commissioners to make a fair, equal, just, and impartial partition of the lands according to the ownership interests set out in the preliminary decree. See TEX.R.CIV.P. 761. When such partition was completed, the commissioners were ordered to report same in writing to the trial court on August 25, 1981. See TEX.R.CIV.P. 769. The appellate record is unclear as to whether a written report was filed by the commissioners.

Plaintiffs filed their first amended original petition on September 6, 1983. They sought a determination of ownership interests and partition of the same nine tracts of land specified in their original pleadings, and of seven additional tracts of real estate claimed to be owned in part by them.

On September 12, 1983, another hearing was held and the court entered a "Second Preliminary Decree of Partition and Appointment of Commissioners." In this document, the trial court found that in addition to the parties being co-owners of the nine properties listed in the June 19, 1981 preliminary decree, they are co-owners of the seven tracts listed in plaintiffs' first amended original petition. The court specified the fractional share each party owned in the seven additional tracts, and held the parties are entitled to partition and division of the seven tracts. Commissioners were again appointed to partition these tracts, and were ordered to report to the court on October 15, 1983.

Neither preliminary decree was limited to a division of merely the surface or the mineral rights in any of the sixteen tracts.

Over two years later, on September 23, 1985, plaintiffs filed their third amended original petition. The only change between this and the first amended petition (the second amended petition is not in the appellate record) appears to be the inclusion of a statement that plaintiffs seek a determination of the parties' ownership interests in, and the partition of, the surface estate. The next activity in the case occurred on April 2, 1986 when appellees filed a "counterclaim" against all of the plaintiffs, and many of their co-defendants. This counterclaim concerned the three tracts of land the subject of this appeal: those commonly known as "Rivoire Ranch," "Biffle Place," and "Holland Place" (also known as "Jones Place" and the "Place Where Louise Lives"). The issue of the parties' ownership interests in the "Rivoire Ranch" and "Biffle Place" tracts had previously been addressed in the trial court's June 19, 1981 preliminary decree of partition. The court's second preliminary decree of partition, dated September 12, 1983, addressed the parties' ownership interests in the "Holland Place" tract.

In their counterclaim, appellees sought a declaration that a purchase money resulting trust existed in their favor with regard to a one-half undivided interest in the three tracts in question. ³ Specifically, appellees contended that they or their father, Hubert Felderhoff, had used appellees' funds to purchase a one-half undivided interest in the tracts, and that title was taken in their father's name merely as a matter of convenience. (Hubert died in 1981. It was stipulated at trial that the three deeds whereby Hubert Felderhoff acquired title to the three disputed tracts were the common sources of title for all of the litigants in this case.) Accordingly, appellees asserted Hubert held fifty percent of each of the three tracts in resulting trusts for appellees. Appellees also claimed that a de facto partition had already been effected on the Holland Place property. Alternatively, appellees: asserted a trespass to try title action pertaining to all three tracts, claiming ownership by adverse possession pursuant to the five-year, ten-year, and twenty-five-year statutes of limitations; alleged the existence of a constructive trust over their one-half interest in all three tracts; and maintained that they had acquired an equitable interest in the three tracts because their father had orally conveyed to them their interests in the land.

A jury trial on appellees' counterclaim was held in October of 1986. ⁴ The jury answered thirty-five special issues, ⁵ and in summary found in appellees' favor as follows: appellees intended to and did use their own funds to purchase a fifty percent share of all three tracts (thereby creating purchase money resulting trusts); the deeds to these tracts were given to Hubert with whom appellees shared a position of mutual trust and confidence regarding such transactions, and Hubert, acting in fairness, equity, and good conscience should have conveyed a fifty percent share of each of these tracts to the appellees pursuant to their relationship, but he failed to execute any such deeds (thereby establishing appellees' entitlement to constructive trusts). Additionally, the jury found that Hubert made a valid verbal conveyance to appellees of an undivided one-half interest in all three tracts. The jury's answers to the special issues also established that a de facto partition had already been effected regarding the Holland Place property.

The jury further found that appellants, through their acts, representations, or concealment, are barred from asserting the statute of limitations' defense against appellees' claims regarding the three tracts of property. The jury also found against appellants on their theories of: repudiation by Hubert of the purchase money resulting trusts; release or relinquishment by appellees of their right to assert a counterclaim against appellants; waiver by appellees of a right to claim an ownership interest in any of the three tracts; and laches and estoppel. Lastly, the jury awarded attorney's fees to appellees, but not to appellants.

On November 17, 1986, the same trial judge entered judgment declaring that a purchase money resulting trust and a constructive trust exist in favor of appellees so that fee simple title to an undivided one-half interest in each of the three tracts, Rivoire Ranch, Biffle Place, and Holland Place, is vested in appellees. After awarding attorney's fees to appellees, the judgment provided:

This judgment shall remain interlocutory until a final judgment of partition is rendered. All other prior orders regarding the preliminary decrees and determinations of ownership of the Rivoire Ranch, Holland Place, and Biffle Place are set aside.

Soon thereafter, the court signed an order severing the November 17, 1986 judgment regarding the Rivoire Ranch, Biffle Place, and Holland Place properties "from the other disputes in this cause," and ordering that the November 17, 1986 judgment shall be regarded as final for purposes of perfecting appeal and issuing execution.

Appellants raise sixteen points of error on appeal.

TRIAL COURT'S AUTHORITY TO ENTER JUDGMENT

In their first point of error, appellants contend the trial court erred in refusing to vacate the November 17, 1986 judgment because this judgment is void as a matter of law for the reason that the trial court was without jurisdiction to enter the judgment. Appellants' second point of error asserts error by the trial court in denying appellants' motion for leave to file a supplemental motion for new trial which informed the trial court it did not have jurisdiction to relitigate the property ownership interests, and that the judgment was void. Appellees respond that the trial court's final judgment was proper, and, in any event, appellants have waived their right to challenge its validity.

Before continuing further with this discussion, it is necessary to set out the chronology of the post-judgment events which transpired in this case. Appellants timely filed their motion for new trial; a hearing on...