                                                                                 ACCEPTED
                                                                            06-14-00079-CV
                                                                  SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       4/10/2015 3:08:26 PM
                                                                            DEBBIE AUTREY
                                                                                     CLERK
                DOCKET NO. 06-14-00079-CV

                            IN THE
                                                           FILED IN
                                                    6th COURT OF APPEALS
                 SIXTH COURT OF APPEALS               TEXARKANA, TEXAS
                                                    4/10/2015 3:08:26 PM
                         at Texarkana                   DEBBIE AUTREY
                                                            Clerk



                    MONDEE STRACENER

                           Appellant

                              vs
DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER

                           Appellees


         Appealed from the 115th Judicial District Court
                   of Upshur County, Texas


                     APPELLEES' BRIEF

                                   David B. Griffith
                                   Texas Bar No. 08479300
                                   Griffith & Griffith Law Firm, P.C.
                                   404 N. Titus Street
                                   P. 0 . Box 864
                                   Gilmer, Texas 75644
                                   Telephone: (903) 843-5005
                                   Facsimile: (903) 843-5392

                                   ATTORNEY FOR APPELLEES

          APPELLEES REQUEST ORAL ARGUMENT
                    IDENTITY OF PARTIES & COUNSEL

Appellees:

              Doug Stracener, Bernice Stracener, and Joey Stracener

Counsel for Appellees:

     Trial and Appellee Counsel:
     David B. Griffith
     Texas Bar No. 08479300
     Griffith & Griffith Law Firm, P.C.
     404 N. Titus Street
     P. 0. Box 864
     Gilmer, Texas 75644
     Telephone: (903) 843-5005
     Facsimile: (903) 843-5392
     Email: davidg@griffithlawfirm.com

Appell ant:

              Mondee Stracener

Counsel for Appellant:

     Trial and Appellate Counsel:
     Robert M. Minton
     State Bar No. 14195000
     Minton & Brown, PLLC
     P. 0. Box 1688
     Henderson, Texas 75653
     Telephone: (903) 657-3543
     Facsimile: (903) 657-3545
     Email : mintonbrown@suddenlinkmail .com

Presiding Judge:

     The Honorable Richard D. Davis
                                TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .. . ........... . . ..... . .. .

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       IV


ORDER FROM WHICH RELIEF IS SOUGHT .. .......... . . .. ... .. v

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF FACTS . .......... . ..... .. .. . .... . . . . ....... 2

ARGUMENT & AUTHORITIES                    .... ...... ...... . ............... 7

STANDARD OF REVIEW ARGUMENT . ... .. ............. .. .... 11

CONCLUSION ...... .. ........................ . .. . .... .... 15

PRAYER        ... . ... . . ... . ... ... . ............... . ..... ..... .. 15

CERTIFICATE OF COMPLIANCE ... .. . .... .. . . .. .... . ... . . .. . 16

CERTIFICATE OF SERVICE ... . ........ . ...... . . ... . ........ 17

APPENDIX:

       1.     Amended Decree Ordering       Partition                     and     Appointing
              Commissioners
       2.     Amended Report of Commissioners
       3.     Final Decree of Partition




                                               ii
                        INDEX OF AUTHORITIES

Case                                                                 Page

Canal Insurance Company v. Hopkins, 238 S. W. 3d 549, 557
(Tex. Civ. App.- Tyler 2007,pet denied)                              12, 15

City of Keller v. Wilson, 168 S. W. 3d 802, 819-20 (Texas 2005)      12, 15

Edwards v. Mid-Continent Office Distributors, LP,
252 S. W. 3d 833 at 836 (Tex. Civ. App. - Dallas 2008, pet denied)      11

Pharro v. Chambers Co. , 922 S. W. 2d 945 at 948 (Texas 1996)           12

In Re: W.E.R. 669 S. W . 2d 716, 717 (Texas 1984)                       12




                                     iii
                        STATEMENT OF THE CASE

      This is an appeal from the Final Decree of Partition (CR-80) rendered

in Cause No. 135-06, styled Mondee Stracener v. Doug Stracener, Bernice

Stracener, and Joey Stracener in the 115th Judicial District Court of Upshur

County, Texas. The suit partitioned a tract of 54.883 acres of land, which

partition was disproportionately owned by the parties. Separate tracts of land

were set aside specifically to Joey Stracener, and that part of the order is not

challenged.

      A Report of Commissioners was filed, and upon consideration of

Plaintiff's objections, the Court required the Report of Commissioners to be

amended to place values on the whole and the individual shares partitioned

as well as the value of certain improvements.

      The Court thereafter entered its Final Decree of Partition approving the

Amended Report of Commissioners (CR-65) and attached a copy of such

Amended Report to the Final Decree entered on July 11, 2014, and filed July

15, 2014.




                                       iv
               ORDER FROM WHICH RELIEF IS SOUGHT

     Appellant appeals the Final Decree of Partition (CR-80) signed July 11 ,

2014, and filed of record on July 15, 2014 , approving the Amended Report of

Commissioners (CR-65).




                                     v
                   ISSUES PRESENTED FOR REVIEW

     1.     Appellant complains that the Court erred in advising the Special

Commissioners to consider the value of a house which was specifically set

aside to Mondee Stracener. Appellees believe the Court properly rendered

its order based on the proof and stipulations by the parties in earlier

proceedings.

     2.     Appellant further complains that the Court erred in failing to

instruct the Commissioners to exclude the value of the house from

consideration in amending the Report of Commissioners. Appellees believe

that the Court's order was proper in that the property was set aside to

Mondee Stracener by agreement but was part of the division of the entire

property.

      3.    The Appellant complains that the Court erred in its Final Decree

of Partition in approving the partition.   Appellees believe that the overall

partition was fair and equitable and resulted in a partition complying with the

requirement that the property be equitably partitioned according to value

between the parties.




                                      vi
                      DOCKET NO. 06-14-00079-CV

                                   IN THE

                       SIXTH COURT OF APPEALS

                                at Texarkana


                          MONDEE STRACENER

                                  Appellant

                                     vs
DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER

                                  Appellees


               Appealed from the 115th Judicial District Court
                         of Upshur County, Texas


                            APPELLEES' BRIEF


      TO THE HONORABLE COURT OF APPEALS :

      Comes now, Doug Stracener, Bernice Stracener and Joey Stracener,

Appellees and Defendants in the Trial Court below, and make and file this

Appellees' Brief in response to Appellant's Brief.

      Appellant's Brief requests an improper modification and reversal of the

Trial Court's partition judgment, in that the Appellant is requesting the Court

                                       1
of Appeals to substitute its judgment for that of the trier of fact. Appellees

request that this Appellate Court deny Appellant's requested relief because

such relief is not proper based upon a fair and equitable partition of the

property nor is it proper under the law.

                       STATEMENT OF THE FACTS

      This is a suit to partition a tract of land fronting Highway 271 in Upshur

County, Texas . Mondee Stracener filed suit February 21, 2006, seeking to

partition land between himself, Doug Stracener, Bernice Stracener and Joey

Stracener. At trial , which was held May 17, 2010, the parties reached several

agreements which were approved by the trial court as set out in the Amended

Decree Ordering Partition and Appointing Commissioners dated July 26,

2010, and the Findings of Fact and Conclusions of Law submitted to the

Appellate Court, as follows, to wit:

      "1.   The parties stipulated and agreed and the Court finds that

      Mondee Stracener, Douglas Stracener and Bernice L. Stracener are the

      sole owners of the parcels of land described as: [Extensive property

      description redacted].

      "2.   The parties stipulated and agreed and the Court finds that

      Mondee Stracener, Douglas Stracener and Bernice L. Stracener each


                                       2
own an undivided interest in the above described property in fee simple,

which is not subject to any mortgages, liens, or other encumbrances, as

follows :

      A.    Mondee Stracener- 68.75%

       B.   Douglas Stracener -15 .625%

       C.   Bernice Stracener- 15.625%.

"3.   The parties stipulated and agreed and the Court finds that the

single-family dwelling and 1 acre is to be Mondee Stracener's sole

property in his own right and that upon partition of the property he is

entitled to have set aside as part of his 68.75% interest that portion of

the property upon which the home is situated.

"4.    The parties stipulated and agreed and the Court finds that Joey

Stracener owns a 100% undivided interest in the following parcel of land

and fee simple, which is not subject to any mortgages, liens, or other

encumbrances, and further, the parties convey the below described

property and waive any interest in same:

       All that certain one (1) acre of land lying in the Wm . King HR
       survey, Abs. No. 265, Upshur County, Texas and being out of the
       SE part of the original 70-acre tract owned by Mrs. G. I.
       Stracener, and better described in Warranty Deed dated
       September 6, 1990 between Grantor: Douglas Stracener and
       wife, Mary Ann Stracener and Grantee: Joey Keith Stracener, a

                                 3
             single man recorded in the Deed of Records of Upshur County
             Vol. 67 Pg . 931 .

     "5.     The parties stipulated and agreed and the Court finds that the

     minerals in the land at issue in this case described in paragraphs one

     (1) and three (3) above, remain undivided at this time.

     "6 .    The parties stipulated and agreed and the Court finds that

     Mondee Stracener owns 20 acres of land adjacent to the southwest

     corner of the property being partitioned that can be accessed by the

     runway on the property being partitioned .

     "7 .    The parties stipulated and agreed and the Court finds that the

     whole of the above described property is susceptible to fair and

     equitable partitioning in kind between the parties so as to reflect their

     respective interest and equities , and the land will not be partitioned by

     lot."

     The parties did not reach agreement on other issues, including but not

limited to, the runway issue which was the subject of a prior appeal. The

parties presented such disputed issues to the Trial Court at a hearing in the

form of testimony and evidence . The trial court made findings of fact and

conclusions of law regarding the disputed issues presented at hearing, as set

out in the Amended Decree Ordering Partition and Appointing Commissioners

                                      4
dated July 26, 2010, and the Findings of Fact and Conclusions of Law

submitted to the appellate court, were as follows , to wit:

      "1.   The foregoing property should be partitioned between the above

      named parties such that the value of the parcels allotted to each party

      reflects that party's interest as recited above, and that the above

      described single family dwelling and one (1) acre on which the dwelling

      rests is awarded to Mondee Stracener, Plaintiff, and that, in addition, his

      share of the real property is set aside to include such improvements.

      "2.   Any contributions claims for taxes, utilities, expenses and

      maintenance for the single family dwelling and adjoining one (1) acre

      tract and remaining property at issue (not including the runway) are

      denied .

      "3.   Mondee Stracener is entitled to $19,937.50 from the insurance

      proceeds as a result of the house located on the property at issue in

      this case .

      "4.   Bernice L. Stracener and Doug Stracener are entitled to the

      remaining funds in the Ida May Stracener estate bank account at Gilmer

      First National Bank, account number 160025306, after payment of

      $19,937.50 to Mondee Stracener.


                                        5
     "5.   Bernice L. Stracener and Doug Stracener are entitled to the

     remaining assets listed in the Inventory, Appraisement and List of

     Claims dated March 19, 2004.

     "6.   Mondee Stracener is not entitled to have the runway located on

     the property to be partitioned declared his sole property in his own right

     as part of his 68.75% interest in that portion of the property, unless such

     award is made as part of subsequent partition proceedings.

     "7.   Mondee Stracener is not entitled to a unity of use with the twenty

     (20) acres he owns adjacent to the property at issue in this case , unless

     such award is made as part of subsequent partition proceedings.

     "8.    Mondee Stracener is not entitled to $25,000.00 as the value of the

      runway improvement and that such will not be considered by the

     commissioners as a portion of the value of the above described

      property."

     Thereafter, that order by the Trial Court was appealed to the Twelfth

Court of Appeals in Tyler in Cause No. 12-1 0-00270-CV, styled Mondee

Stracener v. Doug Stracener, Bernice L. Stracener and Joey Keith Stracener.

That Court affirmed the Trial Court's Order on the g th day of November, 2011 ,

and remanded the case for further proceedings.


                                       6
,,   .


              Thereafter, the Trial Court proceeded to appoint three special

     commissioners , appointed by Amended Decree Ordering Partition and

     Appointing Commissioners (CR-17) who filed a Commissioners' Report (CR-

         25) on August 9, 2013, partitioning the 54.883 acres into three separate

         portions, and which report was deficient in that it failed to assess the value

         to the whole of the land.

               Objections to the Report were filed, and a hearing was set.

               The Court ordered the Special Commissioners to amend their Report

         of Commissioners to place value on the whole and values of each share

         partitioned to each party and to establish a value for the house and runway

         as improvements (Reporter's Record -119).

               On October 25, 2013, the Amended Report of Commissioners (CR-65)

         was filed of record. On January 11, 2014, the Court entered the Final Decree

         of Partition, same being filed on July 15, 2014, in the 115th Judicial District

         Court (CR-80).

                              ARGUMENT AND AUTHORITIES

               Appellees agree that the issues presented for review are intertwined

         and will respond to the argument and authority section as stated by the

         Appellant.


                                                7
     A.    The Court properly advised the Special Commissioners to

            consider the value of the house, in conformity with the Decree

            Ordering Partition and Appointing Commissioners.

      B.    The Court properly instructed the commissioners to include the

            value of the home in amending the report because of the prior

            order of the court and the stipulation of the parties.

      C.    The Commissioners properly followed the Court's instructions in

            the   Decree    Ordering    Partition   and   Appointing    Special

            Commissioners , and the Court was proper in entering its Final

            Decree of Partition based upon the Report of Commissioners.

      This case has had a long and tortuous road in arriving at the point

where we find ourselves today. The original case was heard by Judge

Richard Davis; and on the 21 st day of June, 2010, Judge Davis entered a

Decree Ordering Partition and Appointing Commissioners. Thereafter, Judge

Davis entered an order on the 191h day of July, 2010, which was an Amended

Decree Ordering Partition and Appointing Commissioners.

      In the Amended Decree (Clerk's Record, Page 17 in paragraph 2), the

Court stated , "that the following parties each own an undivided interest in the




                                       8
.,


     above-described property in fee simple" and thereafter set out the percentage

     amounts.

           It is undisputed that the home and one acre set aside to Mondee

     Stracener were included in the 68.75% awarded to Mondee Stracener.

           Thereafter, on page 4, paragraph 7 ,of the Amended Decree (Clerk's

     Record, page 20) the Court states, "That the single family dwelling and 1 acre

     is ORDERED Mondee Stracener's sole property in his own right, and that

     upon partition of the property he is entitled to have set aside as part of his

     68.75% interest that portion of the property upon which the home is situated ."

           The Court goes on to state (Clerk's Record, page 20), "IT IS,

     THEREFORE, ORDERED that the foregoing property is partitioned between

     the above-named parties such that the value of the parcels allotted to each

     party reflects that party's interest as recited above, and that the above-

     described single family dwelling and 1 acre on which the house rests is

     awarded to Mondee Stracener, Plaintiff, and that in addition his share of the

     real property is set aside to include such improvements."

           Appellant wants to take the position that the home as set aside to

     Mondee Stracener was to be set aside as his sole and separate property,




                                            9
separate and apart from the partition. Appellees contend the house was

never intended to be excluded from the partition of the property as a whole .

The position of the Appellant is contrary to the stipulation and the intent of the

parties as found by the Trial Court. It is obvious that the parties intended to

divide monies and award Mondee Stracener specific property. However, to

assume this would include a gift of the house to Mondee Stracener is

ridiculous . Appellant in his argument states that the single family dwelling

was not to be considered, but this argument conflicts with the above-stated

paragraph wherein the Court expressly orders that the "foregoing property is

partitioned between the above- named           parties."   The Court does not

segregate the separate tracts to be partitioned from the single family dwelling

and 1 acre but merely awards the ownership of that single family dwelling and

1 acre to Mondee Stracener as a part of the 68.75% interest that he owns,

pursuant to the stipulation.

      The partition of the property was a part and parcel of a settlement of all

of the interests in the Estate of Ida Mae Stracener, and the original partition

included a division of monies between the parties to equalize the Estate.

      As set out in the stipulation at the hearing held on May 17, 2010,

(Respondent's Exhibit 4 located at the end of Volume 3 Reporter's Record of


                                        10
the hearing held November 18, 2013), the stipulation was that "Mondee

Stracener will take title in fee simple absolute to the house and that, out of

the percentage of property that Mr. Stracener owns, he will allocated

[sic] one acre which will go along with the house. That out of the

acreage, Mondee Stracener will be allocated sixty-eight-point-seventy-

five percent which includes the house and one acre."

      The language "out of the percentage of property that Mr. Stracener

owns" was not objected to or clarified and sets out that Mondee Stracener's

percentage would include the 1 acre and house (and the value).

      The May 17, 2010 hearing thereafter proceeded with the Court hearing

evidence as to setting aside specific property, such as the runway in dispute,

to Mondee Stracener which was denied by the Court (Amended Decree

Ordering Partition and Approving Commissioner's Report, Clerk's Record,

pages 17-21 ).

                  STANDARD OF REVIEW ARGUMENT

      A trial court exercises broad discretion in balancing the equities in a

case seeking equitable relief. Edwards v. Mid-Continent Office Distributors,

LP, 252 S. W. 3d 833 at 836 (Tex. Civ. App. - Dallas 2008, pet denied).




                                      11
.'

          In a non-jury trial, when a court makes no separate findings of fact or

     conclusions of law, the appellate court must assume that the trial court made

     all findings in support of its judgment. Pharro v. Chambers Co., 922 S. W.

     2d 945 at 948 (Texas 1996). The trial court's judgment must be affirmed if it

     can be upheld on any legal theory that finds support in the evidence. In Re:

     W.E.R. 669 S. W. 2d 716 , 717 (Texas 1984).

           The trial court as the finder of fact is the sole judge of the credibility of

     the witnesses and the weight to be assigned to their testimony. Canal

     Insurance Company v. Hopkins, 238 S. W. 3d 549, 557 (Tex. Civ. App . - Tyler

     2007,pet denied). A reviewing court may not impose its own opinion for that

     of the finder of fact, and a reviewing court must assume that the finder of fact

     decided all credibility issues in favor of the findings if a reasonable person

     could do so. The appellate court must assume that the finder of fact chose

     what testimony to believe or disregard based upon the evidence that the

     finder of fact heard, were reasonable . City of Keller v. Wilson, 168 S. W . 3d

     802, 819-20 (Texas 2005). Therefore, an appellate court must assume that

     the finder of fact made all inferences in favor of the findings if a reasonable

     person could do so. Canal Insurance Company v. Hopkins, 238 S. W. 3d 549

     at 557 (Tex. Civ. App. -Tyler 2007,pet denied).


                                             12
'. .


             In the instant case , the Court heard all of the evidence and thereafter

       rendered an original order determining the interests of the joint owners and

       claimants, and appointed the commissioners giving them appropriate

       directions.

             Judge Davis specifically addressed the issue that Appellant complains

       about. In the hearing on Motion Objecting to Commissioners Report held

       November 18, 2013, the Court, at pages 117-118 of the hearing transcript

       (RR -117 -118), received evidence concerning the previous agreements ofthe

       parties concerning the home (Exhibit 4 of transcript of previous hearing).

             Thereafter, on page 119 of the hearing transcript on Motion Objecting

       to Commissioners Report (RR- 119), the Court directed the Commissioners

       to prepare an amended report reflecting the values as required by statute.

             On page 119, at line 21 of the Reporters Record of the November 18,

       2013 hearing (RR- 19), counsel for Appellees asked specifically whether "we

       are to consider the value of the house and will consider the partition?" The

       Court responded, "Correct," and thereafter, on page 120 (RR - 120),

       continued to discuss the value of the runway and house and whether or not

       their values affect the value of the land and directed that the value of the

       house and runway "are to be taken into consideration if it's appropriate" (RR-


                                             13
120). This specific statement negates Mondee Stracener's position that the

house was awarded to him free and clear of the balance of the partition.

     Therefore, the Trial Court, which had heard this case from the

beginning , specifically ordered that the value of the house be considered in

the overall partition by the Commissioners , which the Commissioners did.

Once the Commissioners returned their Amended Report, the Court acted

upon Defendants' Motion to Enter Judgment.

      In the hearing held on Defendant's Motion to Enter Judgment on the 181h

day of June, 2014, page 16, beginning line on 17 of the Record (RR

06/18/2014- page 16), the Court found that "that stipulation does not reflect

that the value of the house would not be considered . Therefore, the Court

finds that the value of the house is to be considered by the Commissioners

in making their division.   Therefore, it is the order of the Court that the

amended partition order is approved by the Court. " This once again confirms

the Court's finding and determination based upon the evidence he heard.

      It is clear that the Trial Court carefully heard and considered all of the

evidence in making its final decision. It is obvious that the Court determined

the questions of fact in favor of the judgment rendered and thereafter entered

an order properly based upon the Commissioners' find ings. This Court should


                                      14
not be asked to and should not substitute its judgment fo r that of the Trial

Court Ibid . (City of Keller and Canal Insurance Company).

                                 CONCLUSION

      Because the Court entered a specific order partition ing the property in

question and awarded          a specific      percentage to the parties , the

commissioners had a specific task to perform according to the law. The

subsequent Decree was confirmed by the Tyler Court of Appeals, and

thereafter the Court      considered the report of the Commissioners as

amended. It is obvious that the Court based its Final Decree of Partition upon

the evidence and arguments heard, and resolved all questions offact and law

in favor of the judgment. Therefore, the judgment should be affirmed by this

Court which should not attempt to substitute its judgment for those found by

the trier of fact.

                                    PRAYER

       WHEREFORE PREMISES CONSIDERED, Appellees respectfully move

the Court to affirm the trial court's final decree of partition dated July 11, 2014,

and filed July 15, 2014, in all ways , and overrule Appellant's appeal and

adjudge all costs against Appellant and for such other and further relief to

which Appellees may show themselves justly entitled.


                                        15
·,   .

                                       Respectfully submitted:

                                       GRIFFITH & GRIFFITH LAW FIRM, P.C.
                                       404 North Titus
                                       P.O. Box 864
                                       Gilmer, Texas 75644-0864
                                       Tel: (903) 843-5005
                                       Fax: (903) 843-5392
                                       E-Mail: davidg@griffithlawfirm.com

                                       BY: /s/ David B. Griffith
                                            David B. Griffith
                                            State Bar No. 08479300
                                            Attorney for Appellees



                              CERTIFICATE OF COMPLIANCE

               I certify that this document was prepared with WordPerfect X5. The
         body text is in 14 point font, and the footnote text is in 12 point font. Relying
         on the word count function in the word processing software used to produce
         this document, I certify that the number of words in this reply (excluding any
         caption, identity of parties and counsel, statement regarding oral argument,
         table of contents, index of authorities, statement of the case, statement of
         issues presented, statement of jurisdiction, statement of procedural history,
         signature, proof of service, certification, certificate of compliance, and
         appendix) is 3,180.

                                        Is/ David B. Griffith
                                        David B. Griffith




                                                16
                       CERTIFICATE OF SERVICE

      I certify that on April 10, 2015, a true and correct copy of Appellee's
Brief was served on Mondee Stracener's attorney of record, Robert M.
Minton , electronically at mintonbrown@suddenlinkmail.com and the electronic
transmission was reported as complete.

                             lsi David B. Griffith
                             David B. Griffith
                             Email: davidg@griffithlawfirm.com




                                     17
