AFFIRM; and Opinion Filed November 16, 2015.




                                              Court of Appeals
                                                               S     In The


                                       Fifth District of Texas at Dallas
                                                           No. 05-14-01047-CV

                           MARK SHERBET AND D'NELLA SHERBET, Appellants
                                               V.
                                   RAFAELLA BENDER, Appellee

                                   On Appeal from the 162nd Judicial District Court
                                                Dallas County, Texas
                                        Trial Court Cause No. DC-12-12935-I

                                             MEMORANDUM OPINION
                                       Before Justices Bridges, Stoddart, and O’Neill 1
                                                Opinion by Justice O’Neill
               Appellants Mark and D’Nella Sherbet appeal from the trial court’s judgment in favor of

appellee Rafaella Bender in this suit for partition of certain real property jointly owned by the

Sherbets and Bender. In one issue, the Sherbets contend the trial court erred in ordering a

partition by sale because Bender was estopped from filing her partition suit without first offering

the Sherbets the right to purchase Bender’s ownership interest in the jointly-owned property.

Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.




1
    The Honorable Michael J. O’Neill, Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment.
                                         BACKGROUND

       In November 2003, the Sherbets and Bender purchased a house located at 9329 Creel

Creek Drive, in Dallas, Texas. The Sherbets (husband and wife) owned a 50% interest in the

property, and Bender owned a 50% interest in the property. The Sherbets and Bender lived in

the house until July 2008, when Bender moved out. On September 13, 2008, Mark Sherbet sent

Bender an e-mail stating that he thought it would be best to put their agreement regarding the

house into writing. He attached a document to his e-mail setting out the terms of his proposed

agreement. According to his proposal, the Sherbets would continue to live in the house and

would pay all utility expenses. The Sherbets and Bender would each continue to pay 50% of the

mortgage payment, taxes, and insurance. Any unusual expenses necessary to maintain the value

and resale potential of the property would be shared equally by the Sherbets and Bender. He also

proposed that both parties be given a first right of refusal to purchase the other party’s interest in

the property.

       Bender responded to Mark Sherbet’s e-mail the same day, stating that she was willing to

put agreements about the house into writing. In her e-mail, she made several suggestions

regarding reimbursement for past expenditures, payment for expensive repairs in the future, and

the Sherbets’ responsibility for routine repairs and maintenance. Notwithstanding the e-mail

exchange, no agreement was ever signed by the parties.

       For the next five years, the Sherbets continued to live in the house, and Bender continued

to pay 50% of the mortgage payments, taxes, and insurance. In November 2012, Bender filed

suit seeking a partition by sale of the jointly-owned property. In response, the Sherbets generally

denied the allegations in Bender’s petition and asserted affirmative defenses of homestead,

waiver, and estoppel. Following a bench trial, the trial court signed a final judgment, finding that

the property was not capable of a division in kind and that Bender was entitled to an order of

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partition by sale. The trial court ordered that the property be sold, a receiver be appointed to

determine the market value of the property and to oversee its sale, a credit be given to the

Sherbets for certain expenses incurred, and the net proceeds be divided equally between the

parties. The trial court also entered findings of fact and conclusions of law. This appeal

followed.

                                           PARTITION

STANDARD OF REVIEW

       A trial court’s findings of fact after a bench trial have the same force and effect as a jury

verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Naik v. Naik, 438

S.W.3d 166, 172 (Tex. App.—Dallas 2014, no pet.). We review a trial court’s findings of fact

under the same legal and factual sufficiency of the evidence standards used when determining if

sufficient evidence exists to support an answer to a jury question. Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994); Compass Bank v. Goodman, 416 S.W.3d 715, 718 (Tex. App.—

Dallas 2013, pet. denied). In a bench trial, the trial court judges the credibility of the witnesses,

determines the weight of testimony, and resolves conflicts and inconsistencies in the testimony.

See Sw. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992,

writ denied). As long as the evidence falls “within the zone of reasonable disagreement,” we

will not substitute our judgment for that of the fact-finder. See City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005). We review a trial court’s conclusions of law de novo and will

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

evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Altus

Brands II, LLC v. Alexander, 435 S.W.3d 432, 441 (Tex. App.—Dallas 2014, no pet.).




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APPLICABLE LAW

       To prevail in a suit for partition, “a plaintiff need only establish that he owns an interest

in the property and has a right to possession of a portion thereof.” Treviño v. Treviño, 64 S.W.3d

166, 171 (Tex. App.—San Antonio 2001, no pet.). The absolute right of a co-tenant to compel a

partition may be modified or limited by an express or implied agreement. Thomas v. McNair,

882 S.W.2d 870, 878 (Tex. App.—Corpus Christi 1994, no writ); Lichtenstein v. Lichtenstein

Bldg. Corp., 442 S.W.2d 765, 769 (Tex. Civ. App.—Corpus Christi 1969, no writ). If the parties

so agreed, the party who sought a partition would be estopped from asserting such a right.

Lichtenstein, 442 S.W.2d at 769 (citing Odstrcil v. McGlaun, 230 S.W.2d 353, 354–55 (Tex.

Civ. App.—Eastland 1950, no writ)). The relinquishment of that right has been characterized as

an estoppel or waiver. See Davis v. Davis, 44 S.W.2d 447, 450 (Tex. Civ. App.—Texarkana

1931, no writ) (holding that an agreement not to partition acts as an estoppel against the right to

partition or as a waiver of such right).

DISCUSSION

       During oral argument, appellants’ counsel informed this Court that the Sherbets do not

challenge the trial court’s findings of fact and conclusions of law. And even though appellants’

brief appears to question whether Bender waived her right to file a partition suit without first

offering the Sherbets the right to buy her ownership interest in the property, appellants’ counsel

clarified during oral argument that the Sherbets do not raise a waiver issue on appeal. Instead,

the Sherbets’ sole issue on appeal is whether Bender was estopped from filing a partition suit

without first offering the Sherbets the right to buy her ownership interest in the property.

       The Sherbets contend that the trial court failed to address their affirmative defense of

estoppel in its findings of fact and conclusions of law, and ask this Court to reverse and remand

to allow the trial court to consider their estoppel defense. We agree that the trial court’s findings

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do not specifically reference estoppel. “If the trial court’s original findings do not include any

findings on a ground of recovery or defense, then the party relying on the ground of recovery or

the defense must request additional findings of fact in proper form or the ground is waived.”

Levine v. Maverick Cty. Water Control & Improvement Dist. No. 1, 884 S.W.2d 790, 796 (Tex.

App.—San Antonio 1994, writ denied) (citing Sears, Roebuck & Co. v. Nichols, 819 S.W.2d

900, 907–08 (Tex. App.—Houston [14th Dist.] 1991, writ denied)); see also Briggs Equip. Trust

v. Harris Cty. Appraisal Dist., 294 S.W.3d 667, 674 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied).   There is nothing in the record indicating the Sherbets asked the trial court to

supplement its findings of fact and conclusions of law to address their estoppel defense. We

conclude the Sherbets failed to preserve this issue for our review.

       We also conclude the Sherbets’ estoppel arguments fail on the merits. The trial court

made findings of fact and conclusions of law regarding the Sherbets’ claim that there was an

agreement between the parties not to partition the property. As a co-tenant, Bender had the

absolute right to compel a partition; however, her right could be modified or limited by an

express or implied agreement. See Thomas, 882 S.W.2d at 878; Lichtenstein, 442 S.W.2d at 769.

If the parties agreed not to partition the property, then Bender would be estopped from asserting

her right to partition. Lichtenstein, 442 S.W.2d at 769. In finding of fact number four, the trial

court found “[t]here is no enforceable agreement between the parties not to seek a partition of the

Property.” In conclusion of law number four, the trial court concluded, “[t]here is no enforceable

agreement between the Parties not to partition the Property.” In conclusion of law number five,

the trial court further concluded, “[p]laintiff did not expressly nor impliedly waive her right to

partition the Property.” Because the Sherbets’ estoppel defense depends on a threshold finding

with respect to an agreement between the parties not to partition the property, the trial court’s




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findings and conclusions – which the Sherbets do not challenge – negate an estoppel defense

under Lichtenstein. See id.

          Nevertheless, the Sherbets rely on a theory of quasi-estoppel and contend they had a “de

facto agreement” with Bender. Quasi-estoppel is a long-standing doctrine applied to preclude

contradictory positions. See Forney 921 Lot Development Partners I, L.P. v. Paul Taylor

Homes, Ltd., 349 S.W.3d 258, 268 (Tex. App.—Dallas 2011, pet. denied). It precludes a party

from asserting, to another’s disadvantage, a right inconsistent with a position previously taken.

See Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). The doctrine

applies when it would be unconscionable to allow a person to maintain a position inconsistent

with one in which he acquiesced, or from which he accepted a benefit. Id.; Forney, 349 S.W.3d

at 268.     “Unlike equitable estoppel, quasi-estoppel does not require a showing of a false

representation or detrimental reliance.” Forney, 349 S.W.3d at 268 (citing Steubner Realty 19,

Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 164 (Tex. App.—Houston [14th Dist.] 1991, no

writ)).

          The Sherbets claim that Bender’s conduct in filing suit for partition was “fundamentally

inconsistent with her previous position” and created a “wholly unconscionable” result. The

Sherbets urge that Bender’s previous position was based upon a “de facto agreement” created by

the e-mail exchange between the parties: the Sherbets could live in the house indefinitely and

Bender would continue paying 50% of the mortgage, insurance, and taxes. And because Bender

continued to pay 50% of the mortgage, taxes, and insurance for five years after moving out of the

house, the Sherbets contend this was Bender’s “previous position” or at least a position in which

Bender acquiesced.

          We disagree with the Sherbets’ reasoning. Based on our review of the evidence, there

were e-mail discussions about a possible agreement, but there was no evidence of an agreement

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with specific terms that was agreed upon by both parties. The fact that Bender continued paying

50% of the mortgage, taxes, and insurance for five years after moving out of the house could be

consistent with the actions of a joint-owner of property who wanted to maintain her investment

and her credit rating. There is no evidence that Bender’s conduct in filing suit for partition was

“fundamentally inconsistent with her previous position.”

       We also conclude there is no evidence that Bender’s partition suit caused an

unconscionable result. The Sherbets complain that it is unconscionable that Bender could force

the sale of their house; however, Bender has a 50% ownership interest in the house. The

Sherbets complain that it is unconscionable that a third party might purchase the property and

they might be forced to move out of the house in which they had planned to live for the rest of

their lives. And they complain that it is unconscionable that they have had to incur unnecessary

litigation expenses and attorney’s fees.    However, it was the Sherbets’ decision to jointly

purchase the property with Bender. Both co-owners had a statutory right of partition. The

Sherbets have not provided us with any authority to support the idea that a co-owner has a

reasonable expectation of a right of first refusal. And there is no evidence in the record that the

Sherbets tried to buy Bender’s ownership interest in the property. Having their investment

converted into cash is not unconscionable. Following the statutory procedures for partition with

a trial, judgment, and sale is not unconscionable. Receiving their share of the sale proceeds as

ordered in the trial court’s judgment is not unconscionable. Although this may not be the result

the Sherbets wanted, it is not an unconscionable result.

       We conclude the Sherbets did not prove their affirmative defense of quasi-estoppel and

Bender was not estopped from filing her suit for partition of the property. The Sherbets’ sole

issue is overruled.




                                               –7–
                                       CONCLUSION

      Having overruled the Sherbets’ sole issue, we affirm the judgment of the trial court.




                                                   /Michael J. O'Neill/
                                                   MICHAEL J. O’NEILL
                                                   JUSTICE, ASSIGNED

141047F.P05




                                             –8–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

MARK SHERBET AND D’NELLA                             On Appeal from the 162nd Judicial District
SHERBET, Appellants                                  Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-12-12935-I.
No. 05-14-01047-CV         V.                        Opinion delivered by Justice O’Neill.
                                                     Justices Bridges and Stoddart participating.
RAFAELLA BENDER, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee RAFAELLA BENDER recover her costs of this appeal
from appellants MARK SHERBET AND D’NELLA SHERBET.


Judgment entered this 16th day of November, 2015.




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