Yturria v. Kimbro

• Decision Date: 29 February 1996
• Docket Number: No. 13-94-177-CV,13-94-177-CV
• Citation: 921 S.W.2d 338
• Parties: Frank D. YTURRIA, Appellant, v. Marion Yturria KIMBRO, Kimbro Family Properties, Ltd., and Fausto Yturria, Jr., Appellees.
• Court: Texas Court of Appeals

Page 338

921 S.W.2d 338

Frank D. YTURRIA, Appellant, v. Marion Yturria KIMBRO, Kimbro Family Properties, Ltd., and Fausto Yturria, Jr., Appellees.

No. 13-94-177-CV.

Court of Appeals of Texas,

Corpus Christi.

Feb. 29, 1996.

Darrell Barger, Barger & Moss, Corpus Christi, Craig Zobel, Canales & Simonson, Corpus Christi, Rollins M. Koppel, Koppel, Ezell, Powers & Kimball, Harlingen, Shirley Selz, Gary, Thomasson, Hall & Marks, Corpus Christi, Moses M. Salas, Jr., Harlingen, for Appellant.

Jerry L. Stapleton, Stapleton, Whittington, Curtis & Boswell, Harlingen, Lance K. Bruun, Corpus Christi, Jack Paul Leon, San Antonio, Kathryn F. Green, Kleberg & Head, Corpus Christi, for Appellees.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

SEERDEN, Chief Justice.

Frank D. Yturria appeals from a judgment ordering the partition of real property and appointing commissioners to make the partition of property jointly owned by him and appellees, Marion Yturria Kimbro and Fausto Yturria, Jr. Appellant raises fourteen points of error complaining generally that he was denied his right to a jury trial and to present evidence when the trial court summarily ordered partition after a pre-trial hearing. We reverse and remand.

In January of 1992, Marion Yturria filed the present lawsuit for the partition of three separate tracts of land (referred to as "Share One," "Share Three" (which includes a subtract known as the "Retama Farm"), and the "Guadalupe Farm") between herself and her two brothers, Frank D. Yturria and Fausto Yturria, Jr., the three surviving children of Fausto Yturria, Sr. The land had been held in a trust that terminated in 1993, at which time each of the three children were entitled to an equal share of the properties, for which Marion requested partition in kind. Fausto generally joined Marion in asking for partition of the property in kind. In addition, Marion and Fausto together alleged that they made substantial improvements to a certain portion of Share One known as the "Tres Esquinas headquarters," which should be given to them or reimbursement paid in the amount of not less that $100,000.

However, appellant though he admitted that each of the three children had an equal interest in the property which should be partitioned in kind, raised certain equitable considerations in connection with the manner of partitioning the property. Specifically, appellant alleged that the three tracts have separate characteristics that should be considered in connection with the partition. ¹ In particular, appellant asked that the trial court take into consideration his participation in ranching activities on the tracts to be partitioned, that he has made substantial improvements to the various tracts that should be considered in the partition, and that he should be awarded that portion of the Retama Farm which is adjacent to his other Farm.

In addition, appellant asked for a jury trial on the partitionability in kind of each of the various tracts. Although he agrees that the tracts are generally partitionable in kind, he requests a jury determination that each of the four subdivisions of the property (Share One, the Retama Farm, the remainder of Share Three, and the Guadalupe Farm) should be separately partitioned into thirds rather than having the conglomerate partitioned as a whole between the parties.

The trial court held an initial pretrial hearing at which it determined that no fact issues existed for trial. Accordingly, the trial court signed the present decree appointing commissioners and ordering partition of the property. The trial court instructed the commissioners, among other things, to consider which party made various improvements in making the partition, and that the parties are entitled to an equal share of the whole, but not necessarily an equal share of each separate parcel.

Appellant brings fourteen points of error, all complaining generally that he was denied a jury trial on key issues which should have been determined before the property in question was referred to the commissioners for partition.

By his first four points, appellant complains generally that he was improperly denied his right to a jury trial concerning the manner of partition and the various equitable considerations. By his sixth, seventh and ninth points of error, he complains specifically that the trial court erred in refusing to allow him to present evidence suggesting that he should have been awarded the eastern portion of the Retama Farm and concerning the enhancement value of improvements made on the property and any off-setting considerations.

The Texas Rules of Civil Procedure provide a two-step procedure for partition of real estate. See Tex.R.Civ.P. 756 et seq. Texas Rule of Civil Procedure 760 provides that, "[u]pon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise." Rule 761 then provides, in pertinent part, that "[t]he court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of partition." If the property is not partitionable in kind, the trial court orders partition by sale. See Tex.R.Civ.P. 770. However, if the court determines the land to be partitionable in kind, it then appoints commissioners to make the partition and instructs them in its decree concerning the share or interest of each party. Tex.R.Civ.P. 761.

Texas Rule of Civil Procedure 766 provides that "[t]he commissioners, or a majority of them, 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." Rules 764 and 767 provide that the court, or the commissioners on their own authority, may appoint a surveyor and cause the property in question to be surveyed. Rule 768 then instructs the commissioners as follows:

The commissioners shall divide the real estate to be partitioned into as many shares as there are persons entitled thereto, as determined by the court, each share to contain one or more tracts or parcels, as the commissioners may think proper, having due regard in the division to the situation, quantity and advantages of each share, so that the shares may be equal in value, as nearly as may be, in proportion to the respective interests of the parties entitled. The commissioners shall then proceed by lot to set apart to each of the parties entitled one of said shares, as determined by the decrees of the court.

Rule 769 provides for a report of the division by the commissioners, and Rule 771 for objection to the report and appointment of new commissioners to re-partition the property if upon trial of the matter the original report is found to be "erroneous in any material respect, or unequal and unjust." Otherwise, the trial court shall enter a second judgment confirming the partition made by the commissioners.

Accordingly, unlike other proceedings, a partition case has two final judgments, both of which are appealable. Griffin v. Wolfe, 610 S.W.2d 466 (Tex.1980); Thomas v. McNair, 882 S.W.2d 870, 876 (Tex.App.--Corpus Christi 1994, no writ). The trial court's initial decree determining partitionability and appointing commissioners, although often referred to as an interlocutory decree, is a final and appealable order which is conclusive of all matters decreed within it. Azios v. Slot, 653 S.W.2d 111, 114 (Tex.App.--Austin 1983, no writ); Rayson v. Johns, 524 S.W.2d 380, 382 (Tex.Civ.App.--Texarkana 1975, writ ref'd n.r.e.)

In addition to determining the basic issues of partitionability in kind and the fractional interests of the parties, the trial court also has the power during the initial stage of the partition proceeding to adjust all equities between the parties. See Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769 (1942); Becker v. Becker, 639 S.W.2d 23, 25 (Tex.App.--Houston [1st Dist.] 1982, orig. proceeding). The trial court thus applies the rules of equity in determining the broad question of how property is to be partitioned. See Moseley v. Hearrell, 141 Tex. 280, 171 S.W.2d 337, 338-39 (1943); Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472, 476 (Tex.Comm'n App.1943, opinion adopted); Thomas, 882 S.W.2d at 879.

Moreover, disputed issues of fact at this stage of the partition proceeding must be tried by a jury when one has been properly demanded. Azios, 653 S.W.2d at 113-14; Rayson, 524 S.W.2d at 382; Redden v. Hickey, 308 S.W.2d 225 (Tex.Civ.App.--Waco 1957, writ ref'd n.r.e.).

Thus, proof is made to the factfinder at trial of the existence and value of improvements to the property at the time of partition and of other equitable considerations which may warrant awarding a particular portion of the property to one of the parties. See Burton v. Williams, 195 S.W.2d 245, 247-48 (Tex.Civ.App.--Waco 1946, writ ref'd n.r.e.). Based on the findings of the judge or jury, the trial court then appoints commissioners to make the actual division of the property and instructs them to take these matters into account in making the partition. See Bouquet v. Belk, 376 S.W.2d 361, 362-63 (Tex.Civ.App.--San Antonio 1964, no writ); Burton, 195 S.W.2d at 247-48; see also Reid v. Howard, 71 Tex. 204, 9 S.W. 109 (1888). Accordingly,...