                                                                                         ACCEPTED
                                                                                    06-14-00079-CV
                                                                          SIXTH COURT OF APPEALS
                                                                               TEXARKANA, TEXAS
                                                                              2/11/2015 11:54:38 AM
                                                                                    DEBBIE AUTREY
                                                                                             CLERK

                 DOCKET NO. 06-14-00079-CV

                             IN THE
                                                                   FILED IN
                                                            6th COURT OF APPEALS
                 SIXTH COURT OF APPEALS                       TEXARKANA, TEXAS
                                                            2/11/2015 11:54:38 AM
                           at Texarkana                          DEBBIE AUTREY
                                                                     Clerk
                            -------------

                     MONDE STRACENER

                            Appellant

                                 V.

DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER

                            Appellees

                            -------------

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

                            -------------



                     APPELLANT’S BRIEF

                                            Robert M. Minton
                                            Texas Bar No. 14195000
                                            Minton & Brown, PLLC
                                            P. O. Box 1688
                                            Henderson, Texas 75653
                                            Telephone: (903) 657-3543
                                            Facsimile: (903) 657-3545

                                            ATTORNEY FOR APPELLANT


          APPELLANT REQUEST ORAL ARGUMENT
                         IDENTITY OF PARTIES & COUNSEL


Appellant:

      Monde Stracener

Counsel for Appellant:

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

Appellees:

      Doug Stracener, Bernice Stracener, and Joey Stracener

Counsel for Appellees:

      Trial and Appellate Counsel:
      David B. Griffith
      Griffith Law Firm PC
      P. O. Box 864
      Gilmer, Texas 75644-0864
      Telephone: (903) 843-5005
      Facsimile: (903) 843-5392
      E-Mail: davidg@griffithlawfirm.com

Presiding Judge:

      The Honorable Richard D. Davis
                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………………………..…….…i

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

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

STATEMENT OF THE CASE…………………………………………………………………...v

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

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

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

SUMMARY OF ARGUMENT…………………………………………………………………...3

ARGUMENT & AUTHORITIES…………………………………………………………….…..5

     A.     Combined Issues…………………………………………………………….…….5

CONCLUSION…………………………………………………………………………….…..….9

PRAYER……………………………………………………………………………………...…...9

CERTIFICATE OF SERVICE…………………………………………………………………..10

APPENDIX:

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




                                         ii
                                INDEX OF AUTHORITIES

CASES                                                                 PAGE(S)

Becker v. Becker, 639 S.W. 2d 23 (1982-Civ. App.)

Bonquet v. Belk, 404 S.W. 2d 862 (1996-Civ. App.)

Benson v. Fox, 589 S.W. 2d 823 (1979-Tex. Civ. App.)

Burkitt v. Broyles 340 S.W. 2d 822 (1960-Tex. Civ. App.)

Burton v. Williams 195 S.W. 2d 245 (1946-Tex. Civ. App.)

Campbell v. Tuffs, 3 S.W. 3d 256 (1999-Tex. App.)

Christensen v. Harkins, 740 S.W. 2d 69, 74 (1987- Tex. App.)

City of Keller v. Wilson, 168 S.W. 3d 802 (2005-Tex.)

Ellis v. First City National Bank, 864 S.W. 2d 555 (1993-Tex. App.)

Griffin v. Wolf, 610 S.W. 2d 466 (1980-Tex.)

Kelley v. Harsch, 161 S.W. 2d 563 (1942-Tex. Civ. App.)

Marmion v. Wells, 246 S.W. 2d 704 (1952-Tex. Civ. App.)

Martin v. Desohs I. Limited, 951 S.W. 2d 821 (1997-Tex. App.)

Estate of Mitchell, 20 S.W. 3d 160 (2000-Tex.App.)

Estate of Querner, 974 S.W. 2d 159 (1998-Tex. App.)

Price v. Price, 394 S.W. 2d 855 (1965- Civ. App.)

Snow v. Donelson, 242 S.W. 3d 570 (2007-Civ. App.)

Taub v. Kalin, et vir, 646 S.W. 2d 570 (1982-Civ. App.)

Voth v. Felderhoff, 768 S.W. 2d 403 (1989-Tex. App.)

Woodland v. Wisdom, 975 S.W. 2d 712 (1998- Civ. App.)

Youngs v. Choice, 868 S.W. 2d 850, 852 (1993-Tex. App.)

                                               iii
Yturria v. Kimbro, 921 S.W. 2d 338 (1996-Tex. App.)



RULES

TX Rules of Civil Procedure, Rule 760

TX Rules of Civil Procedure, Rule 761

TX Rules of Civil Procedure, Rule 766

TX Rules of Civil Procedure, Rule 769




                                            iv
                                STATEMENT OF THE CASE

       This is an appeal from the Final Decree of Partition, (CR-80) rendered in Cause 135-06,

styled Mondee Stracener v. Doug Stracener, Bernice Stracener, and Joey Stracener, in the 115th

District Court of Upshur County, Texas. The suit was over the partition of a tract of 54.883 acres

of land, owned jointly by Plaintiff and Defendants, this proportionate ownership was unequal.

       A report of commissioners was filed, to which objections were filed by two different

council for Plaintiff, Mondee Stracener. Upon the hearing of such objection, the Court required

the Report of Commissars to be amended to place values on the whole, the individual shares

partitioned, and the value of what has been referred to as certain improvements, being a paved

runway, and a house.

       The Court entered its Final Decree of Partition, (CR-80) approving the Amended Report

of Commissioners, (CR-65) and attaching a copy of such amended report to the final order, on

July 11, 2014, filed of record on July 15, 2014.



                       ORDER FROM WHICH RELIEF IS SOUGHT

       The Final Decree of Partition, (CR-80) signed July 11, 2014, filed of record on July 15,

2014, approving Amended Report of Commissioners, (CR-65).




                                                   v
                             ISSUES PRESENTED FOR REVIEW

       1.      The Court erred in advising Special Commissioners to consider the value of the

house, in partitioning out to Mondee Stracener his portion of the 54.883 acre tract, the subject of

the partition suit in the trial court, in contravention of the Amended Decree Ordering Partition

and Appointing Commissioners First Order, (CR-17).

       2.      The Court erred in failing to instruct Commissioners to exclude the value of the

house from consideration in amending the Report of Commissioners, (CR-25) resulting in an

unjust and inequitable partition of the property.

       3.      The Court erred in its Final Decree of Partition (CR-80) (Second Order) by

approving an unjust and inequitable partition, in contravention of the Amended Decree Ordering

Partition and Appointing Commissioners, (CR-17) which became final and unappealable on

December 9, 2011.




                                                    vi
                              DOCKET NO. 06-14-00079-CV

                                          IN THE

                               SIXTH COURT OF APPEALS

                                        at Texarkana

                                         -------------

                                  MONDE STRACENER

                                         Appellant

                                              V.

         DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER

                                         Appellees

                                         -------------

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

                                         -------------



                                  APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS:

MONDE STRACENER, Appellant, appeal from the trial courts Final Decree of Partition, (CR-
80) entered the 11th day of July, 2014. The Decree should be reversed on the following bases:




                                              1
                                   STATEMENT OF FACTS

       As previously stated, Mondee Stracener filed this partition suit in the 115th District Court

of Upshur County, Texas. He sued Doug Stracener, Bernice Stracener, and Joey Stracener for

partition of a 54.883 acre of land, situated in Upshur County, Texas. The three Special

Commissioners appointed by Amended Decree of Ordering Partition and Appointing

Commissioners, (CR-17) filed a Commissioners Report, (CR-25) on August 9, 2013, partitioning

the 54.883 acres of land into three separate portions, such report failing to assess value to the

whole of the land to be partitioned, or to any of the shares.

       Objections, two, (CR-36 and CR-40) on behalf of Plaintiff, to Report of Commissioners

were filed and hearing was set.

       At hearing on November 18, 2013, Milton Wiley, one of the Special Commissioners, was

called to testify concerning the partitioning of the property by Special Commissioners, (RR-8).

Mr. Wiley testified that the commissioners considered the value of the house in deciding the

partition of the share to Mr. Stracener, and claims they considered the value of the house as

improvements, in evaluating the whole of the property, (RR-12 and RR-13). Mr. Wiley testified

that he did not go upon the land, (RR-27) . He also testified that he understood that the house

belonged to Mondee Stracener, Plaintiff, (RR-40).

       Mr. Darrell Ray, one of the Special Commissioners, was called to testify, (RR-40) and he

testified that the house was considered and its value in determining the value of the whole, and

the share set aside to Plaintiff, Mondee Stracener, (RR-63).

       Mondee Stracener, was called to testify, (RR-67) and he placed the value of the property

based upon his opinion at the total value of $164,039.00, (RR-75). Beginning on (RR-75), Mr.

Stracener evaluated the portion of property set aside to Defendants Doug Stracener and Bernice

                                                  2
Stracener, and testified as to the evaluation on the 68.75% portion of the surface set aside to him.

Mr. Dwight Brannon, one of the Special Commissioners, was called to testify, (RR-100). Mr.

Brannon testified that he was an Attorney as well as a Special Commissioner, and that he was

cognizant of the contents of the first decree, known as the Amended Decree Ordering Partition

and Appointing Special Commissioners, (CR-17). Mr. Brannon testified that the value of the

house was included in evaluating the whole, (RR-106 and RR-114). Mr. Brannon testified to the

house value as being $30,000.00 to $40,000.00, (RR-107). Mr. Brannon testified that he was

only familiar with whatever could be seen from the highway, as to the property to be partitioned,

(RR-110 and RR-112). Mr. Brannon testified that he did not go upon the land, but went to the

driveway, and that he did not go back into the land. He further testified that neither Mr. Ray nor

Mr. Wiley went back onto the property, (RR-112).

       The Court ordered the Special Commissioners to amend their report of commissioners to

place values on the whole and values of each share partitioned to each party, and to establish a

value for the house and the runway, as improvements, (RR-119).

       On November 25, 2013, the Amended Report of Commissioners (CR-65) was filed of

record and on July 11, 2014, The Court entered the Final Decree of Partition, same being filed on

July 15, 2014, in the 115th Judicial Court, (CR-80).

       Notice of Appeal was taken by Mondee Stracener, Plaintiff in the underlying cause, (CR-

96).



                                 SUMMARY OF ARGUMENT

       This case comes on the contents and effect of the Order Decreeing Partition and

Appointing Commissioners, which became final after being appealed to the 112th Court of



                                                 3
Appeals in Tyler, Texas. It ordered the single family dwelling, and 1 acre to Mondee Stracener

as his sole property, in his own right (not jointly owned), and that partition be made that he “to

have set aside as part of his 68.75% interest that portion of the property upon which the home is

situated”. (CR-20) Further, the Courts orders “that the above described single family dwelling

and 1 acre on which the house rest is awarded to Mondee Stracener, Plaintiff, and that, in

addition, his share of the real property is set aside to include such improvements,” (CR-20). It is

the position of Plaintiff that the single family dwelling, which was reconstructed from the

remnants of a fire to the property with his own money, was decreed to be his separate property,

and that the portion that would be set aside to him was to include the house, but that the value of

the house was not to be considered in determining the value of the 68.75% set aside to Mondee

Stracener.

       It is a contention of the Plaintiff that this amended order referred to established the title to

the house in Mondee Stracener, separate and apart from the jointly owned property, and that the

commissioners and the court have ignored the directions and instructions conveying in such

order “to make such partition and accordance with such decree and the law”, as required by

Texas Rule of Civil Procedure 761. Such Amended Decree may not be altered, corrected, or

changed in any manner, but that such order is a final order, and is binding.




                                                  4
                             ARGUMENTS AND AUTHORITIES

       The issues presented for review can all be covered by argument and authorities at one

time, avoiding the multiplicity and duplication of authorities, which pertain to the same subject.

The issues restated are as follows:

       A.      The Court erred in advising Special Commissioners to consider the value of the

               house, in partitioning out to Mondee Stracener his portion of the 54.883 acre tract,

               the subject of the partition suit in the trial court, in contravention of the Decree

               Ordering Partition and Appointing Commissioners First Order.

       B.      The Court erred in failing to instruct Commissioners to exclude the value of the

               house from consideration in amending the Report of Commissioners, resulting in

               an unjust and inequitable partition of the property.

       C.      The Court erred in its Final Decree of Partition (Second Order) by approving an

               unjust and in equable partition, in contravention of the Decree Ordering Partition

               and Appointing Commissioners, which became final and unappealable on

               December 9, 2011.

                                                     I.

       Under Texas Rule of Civil Procedure 760, upon the initial hearing, the Court is to

determine the proportionate ownership of the joint owners or claimants in the real estate ought to

be divided and all questions of law and equity affecting the title to such land which may arise.

Since the word “land” involves real estate, any improvements permanently attached to the

premises would be considered. Upon hearing had, the Court, in accordance with the authority of

Tex. R. Civ. App. 761, shall enter an order directing partition in kind, or by sale, and appoint

Special Commissioners. “a Partition case, unlike other proceedings, has to final judgments and



                                                 5
the first one is appealable as a final judgment. Griffin v. Wolf, 610 S.W. 2d 466, (Tex. 1980). As

stated in Ellis v. First City National Bank 864 S.W. 2d 555 (Tex. App. Tyler 1993, Writ Denied),

all questions of law and equity affecting the title are determined in such first decree. In the case

at hand, this was done on June 21, 2010, and filed on June 22, 2010, in the 115th Judicial District

Court of Upshur County, Texas. This authority to adjust the equities is further supported by

Yturria v. Kimbro, 921 S.W. 2d 338 (Tex. App.-Corpus Christi 1996, no writ). Also taking this

position is the case of Snow v. Donelson, 242 S.W. 3d 570 (Tex. App.-Waco 2007, no pet.)

       At the initial hearing, proof can be made to the finder of fact as to the existence, value,

and ownership of improvements to the property at the time of partition, as well as other equitable

considerations. In our situation, the Amended Decree Ordering Partition and Appointing

Commissioners, dated July 19, 2010, (CR-17) made an equitable finding in Paragraph No. 7,

“that the single-family dwelling and 1 acre is ordered Mondee Stracener’s sole property in his

own right and that upon partition, 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.” This statement does not state that

the single-family dwelling and 1 acre is to be considered a part of his 68.75% interest of the

property partitioned, but that the partition is to be done in such a way that the single-family

dwelling and 1 acre, can be placed upon it. Further, the finding of sole property, is contrary to a

finding of jointly owned property, and vests sole title in him, rather than jointly owned property

subject to partition. In furtherance of that equitable finding, the Court then orders “it is,

therefore, ordered that the forgoing property is partitioned between the above named parties such

that the value of the parcels allotted to each party reflects the parties interest as recited above,

and that the above described single-family dwelling and 1 acre on which the house rest is

awarded to Mondee Stracener, Plaintiff, and that, in addition (which means also, added to, not



                                                 6
part of the subject matter) his share of the property is set aside to include such improvements.”

This position was supported by the case of Price v. Price, 394 S.W. 2d 855 (Tex. Civ. App.-Tyler

1965, ref’d n.r.e.). In the previous appeal of the first decree, referred to in the mandate (CR-22),

the Court in Tyler found “the trial court also found that a residence and 1 acre of land was

Mondee’s sole property and ordered that, upon partition, the residence and land be set aside as

part of his interest.” The matter of his residence and 1 acre was not decided as to title or

equitable consideration by the Tyler Court in Mondee Stracener Appellant vs. Doug Stracener

etal, No. 12-10-00270-CV, Memorandum of Opinion, published on July 13, 2011, a rehearing

overruled August 30, 2011. It has been inferred that the Tyler Court has already passed on this

issue of the house and 1 acre, but such entrance is incorrect. In entering its Decree Ordering

Partition (first decree) which was final before the filing of the Report of Commissioners or

Amended Report of Commissioners, issues involved in that time cannot be collaterally attached,

Estate of Mitchell, 20 S.W. 3d 160 (Tex. App.-Texarkana 2000, no Pet.); Kelley v. Harsch, 161

S.W. 2d 563 (Tex. Civ. App.-Austin 1942, no writ).

       The placing of improvements on property set aside to one of undivided interest owners is

this discussed at length in the case Bonquet v. Belk, 404 S.W. 2d 862 (Tex. Civ. App. 1966) that

case discussed the placing of improvements on the portion set aside to the “sole owner” of the

improvements, as long as such did not seriously damage or destroy their value or the value of

any of the other shares of other parties to the partition. Other cases that follow this line of

reasoning is Campbell v. Tuffs, 3 S.W. 3d 256 (Tex. Civ. App.-Waco 1999) holding that the

Court, in the event that the report is erroneous “in any material aspect or unequal and unjust” the

Court should reject the report and appoint other commissioners to partition the land. The report

in our case is unequal and unjust, and does vary with the terms and provisions of the first decree,



                                                 7
which has become final. The commissioners, and the Court in entering its amended decree of

partition, totally ignored the finding of the Court in the first order, that the house and 1 acre was

the sole property of Mondee Stracener. See Yturria v. Kimbro, ante, and Martin v. Desohs I.

Limited, 951 S.W. 2d 821 (Tex. App.-San Antonio 1997, no pet.) further see Burton v. Williams

195 S.W. 2d 245 (Tex. Civ. App.-Waco 1946, ref’d, n.r.e.) the same Waco Court has said in the

case of Burkitt v. Broyles 340 S.W. 2d 822 (Tex. Civ. App.-Waco 1960, ref’d, n.r.e.) stated “by

the preliminary decree (first decree) the merits of the case are certainly determined and the rights

of the parties concluded; nor should such decree be controlled or revised unless upon appeal or

writ of error (this has not occurred in this case) the only question that could properly arise on the

Report of the Commissioners would be as to the conformity of the division with the rules settled

by the decree and as such would arise upon the acts of Commissioners” the errors alleged in this

appeal were committed by the Commissioners and by the Court, by the Commissioners entering

a Report of Commissioners and an Amended Report of Commissioners that did not take into

consideration the vesting of the sole title in Mondee Stracener of the house and 1 acre in the

amended order directing partition and the appointment of Commissioners (CR-17), and the Court

committed the same error by approving the Report of Commissioners, effectively attempting to

alter the terms and provisions of a final judgment, being the first decree entered in the trial court.

       The trial court cannot relitigate to issues that were to be determined in the first decree,

and in the case at hand, in the Amended Order Directing Partition and Appointing of

Commissioners. See Campbell v. Tuffs, ante; Marmion v. Wells, 246 S.W. 2d 704 (Tex. Civ.

App.-San Antonio 1952); Benson v. Fox, 589 S.W. 2d 823 (Tex. Civ. App.-Tyler 1979); and

Voth v. Felderhoff, 768 S.W. 2d 403 (Tex. Civ. App.-Fort Worth 198) the Amended Final

Decree of Partition rendered by the trial court in the case at hand, by ignoring the directions of



                                                  8
the Amended Decree Directing Partition and Appointed Commissioners, which had become

final, has approved a Report of Commissioners which is materially erroneous, and it is certainly

unequal and unjust, in that it includes solely owned property, the value of which has been

utilized in determining the value of the whole, as evidenced by the Amended Decree Ordering

Partition filed herein, (CR-17). The position for this appellate court to take because of such error

of the trial court is addressed in the case of Ellis v. First City National Bank, 864 S.W. 2d 555

(Tex. Civ. App.-Tyler 1993) and Yturria v. Kimbro, ante.

                                         CONCLUSION

       Due to the fact that the Amended Decree Ordering Partition and Appointing

Commissioners, (CR-17) finding, and ordered, that the house and 1 acre was the sole property of

Mondee Stracener, the Partition of his 68.75% should have been valued out of the value of the

whole, without considering the value of the house and the 1 acre in deciding the total value of the

whole, and therefore, would not have been a part of the calculations of 68.75% of such total

value. By including the house and the 1 acre, a value already owned by Mondee Stracener was

credited against him in determining how much acreage of the property under partition should be

set aside to equal 68.75% of the whole. In other words, Mondee Stracener was awarded as part of

his division, property that he already owned, and had been so determined by the Court in its first

decree, which became final, being the Amended Decree Ordering Partition and Appointing

Commissioners, (CR-17).

                                             PRAYER

       For the reason stated in this Brief, the Appellant, Mondee Stracener, asks the Court to

reverse the trial court’s Final Decree of Partition dated July 11, 2014, and file on July 15, 2014,




                                                 9
issued directions to the Court to enter such an order dismissing the Commissioners, and

appointing new commissioners to make a fair and equitable and just partition of the properties.

                                                    Respectfully submitted,

                                                    MINTON & BROWN, PLLC
                                                    Attorneys at Law
                                                    134 N. Marshall Street
                                                    P. O. Box 1688
                                                    Henderson, Texas 75653-1688
                                                    (903) 657-3543
                                                    (903) 657-3545 Fax
                                                    Email: mintonbrown@suddenlinkmail.com

                                                    BY:     /s/ Robert M. Minton
                                                            ROBERT M. MINTON
                                                            Attorney for Appellant
                                                            Bar Card #14195000



                                CERTIFICATE OF SERVICE

       I certify that on February 11, 2015, a true and correct copy of Appellant's Motion to
Extend Time to File Appellant's Brief was served on David B. Griffith electronically at
davidg@griffithlawfirm.com and the electronic transmission was reported as complete.


                                             /s/ Robert M. Minton
                                             ROBERT M. MINTON
                                             E-mail:mintonbrown@suddenlinkmail.com




                                               10
