
No. 04-98-00636-CV

Joe Mike EGAN, Jr. and Wife, Shari Ann Egan,
Appellants

v.

Byron Flanary EGAN and Wife, Nancy Dean Egan,
Appellees

From the 198th Judicial District Court of Kerr County, Texas
Trial Court No. 95-556-B
Honorable V. Murray Jordan, Judge Presiding

Opinion by:	Tom Rickhoff, Justice 


Sitting:	Tom Rickhoff, Justice

		Sarah B. Duncan, Justice

		Karen Angelini, Justice 


Delivered and Filed:	June 23, 1999


AFFIRMED

	Joe Mike Egan sought partition of a ranch he shared with his brother, Byron Flanary Egan.
 See  Tex. R. Civ. P. 756-771.  The trial court entered judgment on a jury verdict which found that
the ranch was not partitionable and ordered the ranch sold.  Tex. R. Civ. P. 770.  In five points of
error Joe Mike Egan complains of the jury charge,  inadmissible expert testimony and of Byron
Egan's conduct during the trial.  We will affirm.

Facts and Procedural History 
	Brothers (and lawyers) Joe Mike and Byron Egan owned an undivided half-interest in a
986.387-acre ranch along the Gillespie-Kerr County line. The two also had an informal partnership
agreement in which they shared the expenses and profits from cattle and hunting operations.  Joe
Mike Egan surreptitiously engaged appraisers, drew up a partition plan, filed a rural homestead
declaration on a portion of the property and, in 1995, filed suit seeking partition.  A jury determined
that the ranch was not capable of partition such that the two parts of the ranch were substantially
equal in value and such that the two parts put together were substantially equal to the value of the
undivided ranch.  The jury also determined that the brothers intended to contribute use of the ranch
to their partnership.  The trial court entered judgment that the ranch was not capable of partition,
ordered a sale and distribution of the proceeds, and dissolved the partnership.  Tex. R. Civ. P. 770.
Jury Question
	In his first issue Joe Mike Egan complains the trial judge erred in entering judgment on a jury
verdict which was based on surplusage.  The question complained of asked: "Do you find from a
preponderance of the evidence that the ranch is not susceptible to a fair and equitable partition
between the parties?"  (emphasis supplied.)

	Joe Mike Egan complains that the last three words led to the jury's answer, and the trial court
erroneously allowed evidence of their strained relationship before the jury.   In support, he sought
to introduce affidavits from four of the ten jurors who said they recognized the history of difficult
relationships between the brothers in answering this question in the negative.  The trial court
permitted the jurors' affidavits, as well as live testimony from three of them, only on a bill of
exception.  He then denied Joe Mike Egan's motion for new trial.

	We find Joe Mike Egan did not properly preserve his objection to this jury question.  All
objections to the court's charge not presented in writing prior to the court's reading of the charge to
the jury are deemed waived.  Tex. R. Civ. P. 272; Tex. R. Civ. P. 274; see Castleberry v. Branscum,
721 S.W.2d 270, 276 (Tex. 1986); Baptist Mem'l Hospital Sys. v. Smith, 822 S.W.2d 67, 74 (Tex.
App.--San Antonio 1991, writ denied).  Objections to the court's charge are not preserved when
presented at a motion for new trial hearing.  Kirkpatrick v. Memorial Hosp. of Garland, 862 S.W.2d
762, 770 (Tex. App.--Dallas 1993, writ denied); Champion v. Wright, 740 S.W.2d 848, 856-857
(Tex. App.--San Antonio 1987, writ denied).

	Joe Mike Egan seeks to avoid this problem by arguing that no one could have foreseen that
jurors would have seized on the language and in effect find, not that the ranch was physically
incapable of partition, but that these brothers could not live as neighbors if the ranch were divided
between them.   We disagree.

	Joe Mike Egan's original partition proposal would have granted Byron Egan an easement by
permission to access his half of the land.  Whether the jury should consider the relationship between
the brothers was litigated in pretrial proceedings.  The trial court granted Joe Mike Egan's requested
motion in limine --  which sought to keep the relationship between the parties away from the jury
-- and vigorously policed this throughout the trial.(1)  We therefore do not see this as a case that
requires a special exception to the general rule.

	Because the substance of Joe Mike Egan's quarrel under these points of error lies with an
allegedly defective jury question, which he admits he failed to object to, we find he has waived his
complaint.  We therefore need not consider the applicability of Tex. R. Evid. 606(b) and Tex. R. Civ.
P. 327(b) outside the context of a jury misconduct inquiry, or the constitutionality of those provisions
in that context.  We therefore overrule his first and second points of error.

Sanctions
	In his fourth point of error Joe Mike contends the trial court reversibly erred by failing to hold
a hearing on his motion for sanctions against Byron Egan and his attorney.  More specifically, Joe
Mike Egan contends the trial court erred by not granting a continuance and compelling Byron's
attendance to answer Joe Mike Egan's questions relating to his motion for sanctions.

	Egan sought sanctions based on his brother's status as an expert in partnership law.  Byron
argued in pleadings and at trial that the beneficial use of the ranch had been contributed to the
partnership.  Under this theory, Joe Mike Egan as managing partner would owe Byron a fiduciary
duty as to his dealing with partnership assets.  Hence Joe Mike Egan's designation of a rural
homestead would have conflicted with his fiduciary duties toward the partnership.  The jury found
that the brothers intended to contribute beneficial use of the land toward the partnership.

	Joe Mike Egan's motion for sanctions argued that Byron's theory was without merit, that
Byron knew it, and that Byron's superior knowledge of partnership law constituted an unfair
manipulation of the trial process which produced an unfair result.   At a hearing on the motion to
enter judgment and for sanctions, the trial court found that both Byron and Joe Mike Egan had
testified, that the credibility of Byron Egan concerning this issue was resolved by the jury, and denied
the motion for sanctions.

	Sanctions under Rule 13 require, at a minimum, a finding by the trial court that the party
complained of filed a groundless pleading.  New York Underwriters Ins. Co. v. State Farm Mutual
Auto. Ins. Co., 856 S.W.2d 194, 205 (Tex. App.--Dallas 1993, no writ).  Our view of this record is
that  the trial court determined he did not need Byron Egan's testimony to find that the complained-of
pleading was in fact not groundless.  On the facts of this case, we find the trial court did not abuse
its discretion in this finding.  Joe Mike Egan's fourth point of error is overruled.

Expert Witness Qualification
	In his fifth point of error Joe Mike Egan argues the trial court erred in admitting plaintiff's
witness as an expert.  We disagree.

	If "scientific, technical or other specialized knowledge" will assist a jury in determining a fact
in issue, a witness "qualified as an expert by knowledge, skill, experience, training or education" may
testify thereto.  Tex. R. Evid. 702.  The proponent of such testimony must show the trial court that
such testimony is both relevant and reliable.  E. I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 558 (Tex. 1995).  Expert testimony which is not scientific in nature does not have to
meet criteria appropriate only for scientific theory in order to be admissible.  Wal-Mart Stores, Inc.
v. Garza, 974 S.W.2d 83, 86-87 (Tex. App.--San Antonio 1998, no pet. h.).  However, even when
an expert is testifying in such an area, the proponent of the expert's testimony must still demonstrate
the qualifications of the expert and the reliability of such testimony.  Gammill v. Jack Williams
Chevrolet Inc., 972 S.W.2d 713, 726-727 (Tex. 1998).  Review of the trial court's decision to admit
an expert is reviewed under the abuse of discretion standard.  United Blood Services v. Longoria, 938
S.W.2d 29, 31 (Tex. 1997).

	We find ample evidence supports the trial court's view that Byron's appraisal expert, Carl
Meek Jr., was qualified to offer his expert opinion that the ranch could not be partitioned.  Meek
testified he had been a real estate agent engaged in the business of buying and selling ranches in the
Kerr County area for more than twenty years; that his company had listed more than 300 ranches in
that time; that he had worked with about two thousand ranches on which he did not have listings; that
he had assisted in the partition of at least five ranches; and that he had been involved in the sale of
ranches in five states.  We decline to find that the trial court abused its discretion in permitting Meek
to testify as an expert.  We therefore overrule Joe Mike Egan's fifth point of error.

Inherent Powers
	In his third point of error Joe Mike Egan contends that his brother "knowingly formulated
plan [sic] and design to force appellant . . . to sell his undivided ½ interest in the Egan Ranch against
his will by use of improper and irrelevant evidence of bad personal relations . . . and then
implemented said plan and design during the trial . . . " He seeks to persuade this court to use its
inherent judicial power to correct this "unjust result."  We will respectfully decline his invitation,
if for no other reason than the fact that his original petition, by seeking to grant only an easement by
permission for Byron Egan to access his half of the ranch, invited the error of which he complains.(2)
We therefore overrule this point of error and affirm the judgment of the trial court.


							Tom Rickhoff, Justice 

Do Not Publish
1.   The trial court also sought to keep this issue away from the jury by instructing them, in effect, that the ranch
was not susceptible to partition if the only access to one-half of the partitioned ranch was by way of an easement by
permission.
2.  The knotty family problems generated by intense devotion to Hill Country ranches have vexed this court before.
See In the Estate of Querner, 974 S.W.2d 159 (Tex. App.--San Antonio 1998, no writ).  In that case, as here, the parties
may find solace in literature.  See E. M. Forster, My Wood, and William Ryan, Mine, All Mine, in Life Studies -- A
Thematic Reader (David Cavitch ed. 1983)

