Opinion issued December 20, 2012.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                          ————————————
                              NO. 01-11-00611-CV
                           ———————————
                       STACY J. WILLIAMS, Appellant
                                        V.
                          T. NICHOLE MAI, Appellee


                   On Appeal from the 506th District Court
                            Waller County, Texas
                      Trial Court Case No. 08-05-19379



                         MEMORANDUM OPINION

      Stacy J. Williams appeals from the trial court’s rendition of judgment in a

suit brought by T. Nichole Mai for partition of 54 acres of real property. Mai also

claimed damages from being ousted from the property. Williams counterclaimed
for damages for Mai’s failure to contribute towards the necessary expenditures to

preserve the property after Mai left the property in 2006. After a bench trial, the

trial court partitioned the property and determined that Mai’s claim for damages

due to her ouster from the property completely offset Williams’s claim for

contribution for expenditures made towards the property after Mai’s ouster. It

awarded 72 percent of the tract, including all improvements, to Williams, and the

remaining 28 percent to Mai. On appeal, Williams contends that (1) the trial court

erred by admitting irrelevant evidence, (2) insufficient evidence supports the trial

court’s determination that the claims for ouster and contribution offset one another,

and (3) insufficient evidence supports the 72%-to-28% partition of the property.

We affirm.

                                   Background

      Williams and Mai had a relationship from February 1995 through January

2006. In June 1999, they purchased a 54.635 acre tract of land in Waller County,

near Hempstead. Williams signed the loan and closing documents both for herself

and for Mai, pursuant to a power of attorney executed by Mai. Williams paid for a

residence to be built on the property, and Williams and Mai began living there in

early 2000. In January 2006, Mai moved off the property. In 2008, Mai sued

Williams for partition. The case eventually involved additional claims: Mai sought

damages for Williams’s alleged ouster of Mai from the property and Williams

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sought reimbursement for Mai’s unpaid share of the mortgage, taxes, and insurance

on the property following the ouster. Mai also made a claim in quantum meruit to

recover the value of services she claimed to have performed for Williams’s horse

business, but the trial court granted a take-nothing summary judgment for Williams

on that claim before trial.

      The evidence at trial was conflicting in many respects. Williams testified

that she made all mortgage, tax, and insurance payments and paid for all

improvements to the property. She maintained that the intent was always that she

was to be the sole owner of the property. In addition to using the property as a

residence, Williams wanted to use the property for an expansion of her horse-

breeding business. According to Williams, Mai was a co-signer on the note only

because Williams did not have sufficient income history to qualify for a loan at the

time she bought the property. Williams further testified that once she was able to

qualify for a refinancing loan, the plan was for her to refinance and transfer the

property and note to her name only.

      Mai testified that, from the outset, the intent was always that she and

Williams would be co-owners. Contrary to Williams’s claims, Mai testified that

she did contribute towards the mortgage and other expenditures related to the

property, especially early on, but that, at some point, she and Williams agreed that

Williams alone would make payments on the property and Mai would pay for

                                         3
household expenses as her contribution towards the property. Additionally, Mai

testified she and Williams agreed that the value of Mai’s work in caring for

Williams’s horses would also count towards Mai’s contribution towards her

ownership interest in the property. Williams flatly denied that either of these

agreements existed and also testified that Mai provided no significant labor or

services caring for the horses.

      One undisputed fact is that Mai moved off the property in January 2006.

She testified that, very shortly after she moved, Williams changed the locks to the

residence and out-buildings and changed the gate code, denying Mai access to the

property. Williams denied that she ever excluded Mai from the property, claiming

she allowed Mai to come to the property whenever she needed. After Mai left,

Brandolyn Dreith lived in the residence for nearly three years. Williams and

Dreith testified that Williams allowed Dreith to stay as a favor while Dreith was

experiencing financial hardships, and they both denied that there was any rental

arrangement. The evidence did show, however, that Dreith helped care for the

horses and maintain the property, and, at one time, did so for a five-month period

during which Williams was working out of state.

      Williams presented evidence that her expenditures for the property totaled

over $600,000. This included the mortgage, taxes, and insurance, as well as the

improvements, equipment to care for the horses and property, repairs, and

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maintenance.    Williams acknowledged that if the trial court awarded her the

improvements in a partition, she would not seek contribution from Mai for the

improvements. Williams’s evidence showed that she paid over $87,000 on taxes,

mortgage, and insurance from the time Mai moved off the property until trial.

      Mai presented evidence that she had made some payments towards the

mortgage of approximately $16,000. She also presented evidence that her total

expenditures towards the property, improvements, and the parties’ household

expenses were at least $134,000. Mai also created a log estimating the amount of

work she performed caring for Williams’s horses.          She presented an equine

services expert, who testified that using Mai’s estimates a “low to medium” figure

for the value of the services Mai provided from June 1999 to January 2006 was

$260,000.    Finally, to support her claim for ouster damages, Mai presented

testimony from a realtor that the rental value of the property was $3500 monthly if

all the property were rented for a horse business and $750 monthly if just the

residence were rented.

      The trial court’s judgment ordered that commissioners be appointed to

partition the property. The trial court specified that Williams receive 72 percent of

the property, including the residence and all improvements. Mai was to receive

unimproved land equal to 28 percent of the property. The trial court’s findings of

fact and conclusions of law state that Williams committed an ouster after Mai

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moved off the property, but that Mai ceased making financial or “in kind”

contributions to the property after she moved. The trial court found that the ouster

damages and contribution damages each completely offset the other.

    Evidence of Mai’s Services Performed in Caring for Williams’s Horses

       In her third issue, Williams contends the trial court erred by admitting

evidence of the services Mai claimed to have provided in caring for Williams’s

horses. Williams argues the evidence was not relevant because Mai’s quantum

meruit claim had been disposed of in a prior summary judgment, and pertinent case

law establishes that personal services are not considered in adjusting the equities in

a partition suit.

       A timely and specific objection to evidence is required to preserve error for

appellate review. TEX. R. APP. P. 33.1(a); see also TEX. R. EVID. 103(a)(1). And

the general rule is error in the admission of testimony is not preserved “if the

objecting party subsequently permits the same or similar evidence to be introduced

without objection.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907

(Tex. 2004). When a party objects to testimony but allows an exhibit containing

the same or similar evidence to be admitted, error is not preserved. Austin v.

Weems, 337 S.W.3d 415, 424 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see

also Marin v. IESI TX Corp., 317 S.W.3d 314, 324 (Tex. App.—Houston [1st




                                          6
Dist.] 2010, pet. denied) (holding error in admitting exhibit not preserved when

witness testified to contents of exhibit without objection).

      Mai testified orally about her work caring for Williams’s horses and the

value of that work. She also introduced Plaintiff’s Exhibit 27, a log summarizing

the work she claimed to have performed in caring for the horses. And Mai’s

equine services expert testified about the value of Mai’s work. Williams objected

to the relevance of a portion of Mai’s oral testimony because it concerned work

done before the parties or the horses had moved onto the Hempstead property. The

objection concerned only the services Mai performed during this time period, and,

after the objection was overruled, Mai testified about the rest of her services

without objection. And Plaintiff’s Exhibit 27 had already been admitted when Mai

testified. Finally, Williams did not object to Mai’s expert’s testimony. The same

or similar evidence that Williams complains of on appeal was admitted elsewhere

in the trial without a relevance objection. Accordingly, we hold that Williams’s

complaint of the relevancy of the evidence is not preserved for review. See Austin,

337 S.W.3d at 424; Marin, 317 S.W.3de at 324.

      We overrule Williams’s third issue.

                       Ouster, Contribution, and Partition

      In her first issue, Williams contends that the evidence is legally insufficient

to support the trial court’s findings and conclusions concerning the partition of the

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property in the ratio of 72% to Williams and 28% to Mai. In her second issue,

Williams contends that insufficient evidence supports the trial court’s findings of

fact and conclusions of law that Mai’s ouster damages completely offset

Williams’s contribution claim.

A.    The Trial Court did not Abuse its Discretion in Partitioning Property

      1.     Law Pertaining to Partition and Standard of Review

      “A joint owner or claimant of real property or an interest in real property . . .

may compel a partition of the interest or the property among the joint owners or

claimants . . . .” TEX. PROP. CODE. ANN. § 23.001 (West 2000). When a party

seeks partition, the trial 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.” TEX. R. CIV.

P. 760. The trial court shall order partition if it “determines that the whole, or any

part of such property is susceptible of partition.” TEX. R. CIV. P. 761. “Should the

court be of the opinion that a fair and equitable division of the real estate, or any

part thereof, cannot be made, it shall order a sale of so much as is incapable of

partition.” TEX. R. CIV. P. 770. Williams does not contend that the real property

was not subject to partition.     Rather, she argues that the trial court erred in

determining her and Mai’s respective shares of ownership.




                                          8
      The rules of equity govern the trial court’s partition of property. McGehee v.

Campbell, No. 01-08-1023-CV, 2010 WL 1241300, at *3 (Tex. App.—Houston

[1st Dist.] Mar. 25, 2010, no pet.) (citing Thomas v. Sw. Settlement & Dev. Co.,

123 S.W.2d 290, 296 (Tex. 1939); Yturria v. Kimbro, 921 S.W.2d 338, 342 (Tex.

App.—Corpus Christi 1996, no writ)). “In matters of equity, we review the court’s

decision for an abuse of discretion.” Wagner & Brown., Ltd. v. Sheppard, 282

S.W.3d 419, 428–29 (Tex. 2008). Generally, a trial court abuses its discretion if it

acts arbitrarily, unreasonably, or without regard to guiding legal principles. Id. In

matters involving factual disputes, however, a trial court does not abuse its

discretion “if it bases its decision on conflicting evidence and some evidence

supports its decision.” See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97

(Tex. 2009) (citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)). If the trial

court’s decision “is contrary to the only permissible view of probative, properly-

admitted evidence,” then it amounts to an abuse of discretion. Id.

      2.     Trial Court’s Findings of Fact and Conclusions of Law

      The trial court’s findings and conclusions concerning the partition state:

      [Finding of Fact number 5:] From the date of purchase until January,
      2006, Mai provided both financial and in-kind contributions to the
      mortgage payments, property taxes, insurance on the property, upkeep
      and maintenance on the Subject Property, and otherwise provided
      value to Williams for the preservation of the Subject Property.

      ....

                                         9
      [Conclusion of Law number 8:] After considering the equities and
      offsets due to each party, the financial contributions of the parties, the
      actual payments made by each co-tenant, and the providing of value
      by Mai to Williams for the preservation of the Subject Property, the
      parties are each entitled to a portion of the Subject Property as
      follows:

      a.    Williams shall be entitled to seventy-two percent (72%) of the
            total acreage of the Subject Property, with such percentage to
            include all of the residential structure, the barn, the equipment
            shed, the loafing shed, the paddocks and the appurtenances
            associated with all said property. In addition, as part of the
            equitable offset, Williams shall be obligated to assume and pay
            the remaining indebtedness on the Subject Property.

      b.    Mai shall be entitled to twenty-eight percent (28%) of the total
            acreage of the Subject Property, with such percentage to include
            the Entrance #2 as described in Plaintiff’s Exhibit 30.

      3.    Analysis

      As discussed above, the parties presented conflicting evidence concerning

their respective contributions to the property. They disputed whether Mai and

Williams agreed that Mai would contribute to the property “in kind”—by paying

for household expenses and caring for Williams’s horses. And they disputed the

value of Mai’s contributions. Mai testified that she contributed $16,000 towards

the property and that, if her contributions towards groceries and other household

expenses were counted, she contributed approximately $134,000. Additionally,

Mai, through her own estimates of amount of time worked caring for Williams’s

horses and her expert’s valuation testimony, presented evidence that she

contributed approximately $260,000 through her services.
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      But Williams claimed Mai made no financial or in-kind contributions

towards the property. Williams also testified that Mai did not contribute any

significant amount of labor towards caring for the horses and that part of the labor

Mai included in her estimates was for the period of time before the horses were

located on the Hempstead property and before the parties resided on the property.

With respect to her own contributions, Williams’s evidence showed that she spent

over $600,000 on the property for mortgage payments, insurance, taxes,

improvements, equipment, repairs, and maintenance. She acknowledged, however,

that if the trial court were to award her the improvements, she would not seek

contribution for those from Mai.

      In short, the trial court was presented with a wide range of conflicting

testimony concerning each party’s contribution to the property. A trial court does

not abuse its discretion when its decision is based on conflicting evidence. See

Unifund CCR Partners, 299 S.W.3d at 97. Accordingly, we conclude that the trial

court did not abuse its discretion when it ordered an equitable partition of the

property of 72% (including all improvements) for Williams and 28% (consisting of

unimproved land) for Mai. See id.; see also Tenery v. Tenery, 932 S.W.2d 29, 30

(Tex. 1996) (holding trial court did not abuse discretion in awarding

disproportionate amount of community estate to wife when record contained some

evidence supporting unequal division).

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      We overrule Williams’s first issue.

B.    Sufficient Evidence Supports the Offset

      1.     Standard of Review

      Although Williams states she is challenging the legal sufficiency of the

evidence, she limits the relief requested in this appeal to a remand for a new trial.

Generally, we render judgment if legally insufficient evidence supports the trial

court’s judgment after a trial on the merits. Dolgencorp of Tex., Inc. v. Lerma, 288

S.W.3d 922, 929 (Tex. 2009); Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex.

2007).     We remand when the evidence is legally sufficient but factually

insufficient. See Wright Way Spraying Serv. v. Butler, 690 S.W.2d 897, 898 (Tex.

1985). Because Williams expressly asks for a remand and does not present any

argument or analysis for rendering a judgment in her favor, or state what the

judgment should be, we will address the factual sufficiency of the evidence.

      In an appeal of a judgment rendered after a bench trial, the trial court’s

findings of fact have the same weight as a jury’s verdict, and we review the factual

sufficiency of the evidence used to support them just as we would review a jury’s

findings. See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d

660, 663 n.3 (Tex. 2009). When a party challenges the factual sufficiency of a

finding on an issue on which the party did not have the burden of proof, we

consider and weigh all of the evidence and set aside the verdict only if the evidence

                                         12
that supports the finding is so weak as to make the finding clearly wrong and

manifestly unjust. Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 312 (Tex.

App.—Houston [1st Dist.] 2011, no pet.) (citing Cain v. Bain, 709 S.W.2d 175,

176 (Tex. 1986)). The trial court, as finder of fact, is the sole judge of the

credibility of the witnesses and the weight to be given their testimony. Salomon v.

Lesay, 369 S.W.3d 540, 549 (Tex. App.—Houston [1st Dist.] 2012, no pet.). The

fact finder may believe or disbelieve the testimony of a witness, in whole or in

part, and it may resolve any inconsistencies in a witness’s testimony. Id.

      We review a trial court’s conclusions of law de novo, and we will uphold the

conclusions if the judgment can be sustained on any legal theory supported by the

evidence. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.

2002). Although a trial court’s conclusions of law may not be challenged for

factual sufficiency, we may review the legal conclusions drawn from the facts to

determine whether the conclusions are correct.        Id.   If we determine that a

conclusion of law is erroneous, but that the trial court nevertheless rendered the

proper judgment, the error does not require reversal. Id.

      2.     Law Pertaining to Partition and Claims between Cotenants

      “On partition, a cotenant who expends funds necessary to protect or preserve

the common property is entitled to have those expenditures charged to the tenants

in common according to their pro rata ownership.” McGehee, 2010 WL 1241300,

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at *3 (citing Gonzalez v. Gonzalez, 552 S.W.2d 175, 181 (Tex. Civ. App.—Corpus

Christi 1977, writ ref’d n.r.e.); Wooley v. West, 391 S.W.2d 157, 160 (Tex. Civ.

App.—Tyler 1965, writ ref’d n.r.e.)). “Expenditures necessary to preserve the

common property include those for taxes, insurance, and repairs.” Id. (citing Duke

v. Squibb, 392 S.W.2d 885, 888 (Tex. Civ. App.—Texarkana 1965, no writ)).

However, a co-tenant must also share any income or rents from the use of the

property. I-10 Colony, Inc. v. Chao Kuan Lee, No. 14-10-01051-CV, 2012 WL

4355534, at *7 (Tex. App.—Houston [14th Dist.] Sept. 25, 2012, no. pet. h.)

(citing McGehee, 2010 WL 1241300, at *5). Claims for incomes or rents and

claims for expenditures may offset one another. Id.

      Any co-tenant who owns an interest in property has the right to possession

of the property. Wright v. Jammer, No. 01-88-00526-CV, 1989 WL 32008, at *3

(Tex. App.—Houston [1st Dist.] Apr. 6, 1989, no writ) (not designated for

publication) (citing Todd v. Bruner, 365 S.W.2d 155, 160 (Tex. 1963)). “A co-

tenant who occupies joint property is not required to account for the value of its

use unless there is an ouster or denial of use to other co-tenants.” Id. (citing Potka

v. Potka, 205 S.W.2d 51, 55 (Tex. Civ. App.—Waco 1947, writ ref’d n.r.e.)); see

also McGehee, 2010 WL 1241300, at *4 (citing Burns v. Wood, 427 S.W.2d 353

(Tex. Civ. App.—Tyler 1968, writ ref'd n.r.e.)) (“A cotenant in possession who

excludes another cotenant is liable to the excluded cotenant for the rental value of

                                         14
his or her possession.”); Trevino v. Trevino, 64 S.W.3d 166, 174 (Tex. App.—San

Antonio 2001, no pet.) (holding that cotenants are required to share income

generated from property held in common).

      3.       Trial Court’s Findings of Fact and Conclusions of Law

      The trial court found Mai’s claim for ouster damages was offset by

Williams’s claim for contribution. The relevant findings of fact and conclusions of

law provide:

      [Finding of fact number 8:] After Mai’s ouster, Williams retained all
      benefits and consideration received from the Subject Property,
      including using it as a place for her horse business, retaining or
      accepting hay produced on the property, exercising income tax
      deductions pertaining to the property, living on the property and
      enjoying all other uses and benefits pertaining to the property.

      [Finding of fact number 9:] After Mai’s ouster, Mai did not pay any
      amount of money nor did she provide any in-kind contribution to the
      mortgage payments, property taxes, insurance on the property, upkeep
      and maintenance on the Subject Property, and did not otherwise
      provide anything of value to Williams for the preservation of the
      Subject Property.

      ....

      [Conclusion of Law number 4:] Williams was damaged by Mai’s
      failure to contribute to the payment for the property, including the
      mortgage payments, property taxes, insurance, upkeep and
      maintenance of the Subject Property after Mai’s ouster from the
      Subject Property.

      [Conclusion of Law number 4:] The damages incurred by Mai as a
      result of the ouster by Williams are offset by Mai’s failure to pay any
      amount or provide any in-kind contributions to the mortgage
      payments, property taxes, insurance on the Subject Property, upkeep
                                        15
      and maintenance on the property after Mai’s ouster from the Subject
      Property.

      [Conclusion of Law number 6:] The damages incurred by Williams
      as a result of Mai’s failure to pay any amount or provide in-kind
      contributions to the mortgage payments, property taxes, insurance on
      the property, upkeep and maintenance on the property after Mai’s
      ouster, is offset by the benefits received by Williams in exercising
      exclusive dominion and control over the Subject Property and
      obtaining the tax and business benefits associated therewith.

      4.     Analysis

      The trial court found that Williams ousted Mai from the property after Mai

voluntarily left in January 2006, and Williams does not challenge this finding on

appeal. Because the trial court found an ouster, Williams could be required to

account for the value of the use of the property after Mai was excluded. See

McGehee, 2010 WL 1241300, at *4; Wright, 1989 WL 32008, at *3.                 Mai

presented testimony from a realtor that the rental value of all the property,

including the facilities for horses, was $3,500 monthly. The realtor also testified

that the rental value for the residence only was $750 monthly. Applying these

amounts to the sixty-month period from the ouster until trial (January 2006 to

February 2011) yields a rental value between $45,000 and $210,000.           Mai’s

interest in the rental value during that period, assuming a 50/50 co-tenancy, which

the trial court also found, is half that amount.

      The undisputed evidence shows that Williams paid the mortgage, insurance,

and taxes from February 2006 until the January 2011 trial. These are expenditures
                                           16
for which a claim for contribution may be made. McGehee, 2010 WL 1241300, at

*3. The mortgage payments for those sixty months were $1,167.24 monthly, or

$70,034.40 total.     Additionally, during that same period, Williams spent

$12,922.53 on taxes and $4,751.24 on insurance. Williams’s total expenditures for

those sixty months were $87,708.17. Mai’s contribution as fifty percent owner

was half that, or $43,854.085.

      We conclude that the evidence is factually sufficient to support the trial

court’s determination that Williams’s and Mai’s damages completely offset each

other. The trial court, as the fact finder, may award damages within the range of

evidence presented at trial, if there is a rational basis for that award. Hertz Equip.

Rental Corp. v. Barousse, 365 S.W.3d 46, 57 (Tex. App.—Houston [1st Dist.]

2011, pet. denied); see also Moore v. Moore, No. 05-10-00498-CV, 2012 WL

2553565, at *8 (Tex. App.—Dallas July 3, 2012, no pet.) (stating that trial court

may assign value to property that is within range of evidence presented at trial

when determining the just and right division of community property). Here, the

trial court was presented with evidence establishing a range of values for the rental

value of the property during the time period between ouster and trial. The value of

Williams’s contribution was within that range. The trial court, as the fact finder,

could rationally have determined that Mai’s damages from being ousted from the

property were offset completely by Williams’s damages from Mai’s failure to

                                         17
contribute after leaving the property. See Hertz Equip. Rental Corp., 365 S.W.3d

at 57.

         We overrule Williams’s second issue.

                                      Conclusion

         We affirm the trial court’s judgment.




                                                 Rebeca Huddle
                                                 Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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