      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                               ON MOTION FOR REHEARING



                                      NO. 03-10-00221-CV



                               William Cody Wheeler, Appellant

                                                 v.

    Howard L. Phillips (as Independent Executor of the Estate of Freddie Lee Phillips,
   Deceased); Michael Ball (as Independent Executor of the Estate of James Robert Ball,
    Deceased); Floyd Brown; Constantine Shah; Theodore Alverson; James Alverson;
     Ebony Harris; and the Unknown Heirs of Ben Jones, Sr., Francis Wallace Jones,
     Jordan Jones, Ruby Houston, Rusty Meeks and Josie Matthews Jones, Appellees


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
    NO. 24,642, HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw our opinion and judgment dated July 28, 2011, and substitute the

following in their place. We overrule appellant’s motion for rehearing.

               This suit involves the partition of 82.201 acres of real property located in Bastrop

County (the “Property”). See Tex. Prop. Code Ann. § 23.001 (West 2000); Tex. R. Civ. P. 756-771.1


       1
          Section 23.001 of the property code provides that “[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 under this chapter and the Texas Rules of Civil Procedure.”
Tex. Prop. Code Ann. § 23.001 (West 2000).
After several hearings, the trial court found that the Property was not susceptible to fair and equitable

partition in kind and signed a decree of partition by sale. See Tex. R. Civ. P. 770. In the decree, the

trial court identified the joint owners of the Property and their respective proportionate interests;

awarded money judgments for attorney’s fees and property taxes paid; awarded postjudgment

interest; created equitable liens against the Property; and appointed a receiver to conduct the sale of

the Property.

                On appeal, William Cody Wheeler, the joint owner of the Property with the largest

proportionate interest, challenges the trial court’s characterization of the Property as community

property and its corollary findings identifying the joint owners and their proportionate interests.

Wheeler also challenges the trial court’s finding that the Property is not susceptible to fair and

equitable partition in kind, its awards of money judgments and postjudgment interest, and its creation

of equitable liens against the Property. For the reasons that follow, we affirm the decree.


                                          BACKGROUND

                The Property consists of three undeveloped tracts in Bastrop County. The tracts are

separated by roads, one of which is Highway 71. Each of the parties claims an undivided interest

in the Property. Appellees claim their interests in the Property through inheritance from descendants

of Ben and Francis Jones. Ben and Francis Jones were married in 1877, and Ben Jones acquired the

Property by two separate warranty deeds in 1895 and 1896. Francis Jones died intestate in 1911, and

Ben Jones died in 1934. Ben and Francis Jones had 11 children, 22 known grandchildren, and

17 known great grandchildren.




                                                   2
               Ben Jones executed a will in 1931. In his will, Ben Jones made a specific bequest

of the Property to four of his children, Ida Jones Houston, Mattie Jones, Willie Jones, and

Eula Jones.2 Mattie Jones offered her father’s will for probate in 1934, and, as part of the

proceeding, the probate court approved an inventory of his estate. The inventory lists the Property

as his separate property. Mattie Jones was the last surviving child of Ben and Francis Jones, and she

was responsible for the Property, including paying taxes, until her death in 1990.

               Wheeler claims his interest through purchases. He began purchasing interests in the

Property in 1998 and continued during the pendency of this suit. Wheeler purchased interests from

heirs of Ida Jones Houston, Mattie Jones, and Willie Jones, the three children who received the

bequest of the Property in Ben Jones’s will. Although none of the deeds by which Wheeler acquired

title specified the percentage ownership conveyed, appellees do not dispute that Wheeler has at least

a 77.947% undivided interest in the Property.

               In 2003, Freddie Lee Phillips and James Robert Ball filed a petition to declare

interests, for restitution, and for partition of the Property against Wheeler and known and unknown

heirs of decedents of Ben and Francis Jones.3 They alleged that the identity of the joint owners and

their respective proportionate interests in the Property remained unknown. They sought restitution

for costs and expenses incurred for the common benefit of the joint owners, including attorney’s



       2
         Because Eula Jones predeceased her father, her interest in the Property passed to the three
other named children pursuant to the terms of her father’s will.
       3
         Both James Robert Ball and Freddie Lee Phillips died during the pendency of this suit.
James Robert Ball was survived by his son, appellee Michael Ball, who is the independent
administrator of his father’s estate. Freddie Lee Phillips was survived by her heir at law appellee
Howard L. Phillips who is the independent administrator of her estate.

                                                 3
fees for the prosecution of the action and payments to protect the Property from being sold for

unpaid taxes.

                The trial court held evidentiary hearings in June and December 2009 and

January 2010. The trial court’s threshold issue was who were the joint owners of the Property. See

Tex. R. Civ. P. 760 (“Upon the hearing of the cause, 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.”). The determination

of this issue depended on whether the Property was part of the community estate of Ben and

Francis Jones or the separate property of Ben Jones. See Tex. Const. art. XVI, § 15 (separate and

community property defined).

                The primary issue at the June hearing then was whether the Property was community

or separate property. Evidence admitted included the warranty deeds from 1895 and 1896, the

marriage license of Ben and Francis Jones, and recorded documents concerning the probate of

Ben Jones’s will and the appointment of Ben Jones as the temporary administrator of his wife’s

estate. An affidavit of heirship of Francis Jones, recorded in 1978, and executrix’s deeds, recorded

in 1996, also were admitted into evidence. The affiants averred that the Property was the community

property of Ben and Francis Jones. The Executrix’s deeds were recorded in connection with

the administration of the estate of Ella B. Jones, the wife of Ira James Jones, a grandchild of Ben

and Francis Jones. The deeds conveyed Ella B. Jones’s undivided interest in the property to

Freddie Lee Phillips and James Robert Ball. At the conclusion of the June hearing, the trial court

found that the Property was part of the community estate of Ben and Francis Jones.



                                                 4
               At the December 2009 hearing, the trial court received evidence as to who were the

current joint owners and their proportionate interests. The evidence admitted included the deposition

transcript of James Robert Ball, death certificates of heirs of Ben and Francis Jones, a family tree,

and a spreadsheet detailing and summarizing the proportionate interests of the heirs of Ben Jones.

The parties also presented evidence concerning their claims for reimbursement of fees and expenses

incurred for the benefit of the joint owners. Notices of delinquent taxes on the Property were

admitted as exhibits, and the attorneys representing Jones family members also advised the court

concerning the legal services that they had provided and the costs of those services.4

               The primary issue at the January 2010 hearing was whether the Property should be

partitioned by sale or in kind. The only witness to testify was Wheeler. He testified that the Property

was “easily divisible” and that he did not want the Property partitioned by sale. He also testified

concerning his various purchases of interests in the Property. He continued to purchase interests in

the Property during the pendency of this suit. A survey obtained by Wheeler also was admitted as

evidence. The survey shows that the three tracts are separated by roads, one of which is Highway

71, and that portions of the Property are within a flood plain and subject to easements.

               The trial court found that the Property was not susceptible to fair and equitable

partition in kind and signed a decree of partition by sale. In the decree, the trial court appointed a




       4
           Wheeler and a lessee of the Property also testified at the December hearing. The lessee
testified that he had been keeping cattle on the Property for “almost twenty years” and continued to
do so but that he had not made lease payments. The lessee initially was a named defendant in this
suit because of a mechanic’s and materialmen’s lien that he had filed against the Property. The trial
court found that the mechanic’s and materialmen’s lien was not valid, and the lessee is not a party
on appeal.

                                                  5
receiver to sell the Property and awarded money judgments against each of the joint owners based

upon their respective proportionate interests. The judgments were for legal services rendered by the

parties’ attorneys and for costs incurred by joint owners, including the survey cost and tax payments,

plus postjudgment interest. The trial court created equitable liens to enforce the payment of

the money judgments. The trial court also made findings of fact and conclusions of law. This

appeal followed.


                                            ANALYSIS

               Wheeler raises three issues on appeal. Wheeler contends that the trial court erred in

its finding that the Property was part of the community estate of Ben and Francis Jones and,

therefore, in its related findings concerning the joint owners and their proportionate interests. He

further contends that partition in kind by a panel of commissioners is required and that the awards

of attorney’s fees, reimbursement for tax payments, liens, and postjudgment interest are not

appropriate in this case.


Standard of Review

               Wheeler’s issues challenge the trial court’s findings of fact and conclusions of law.

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). 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. We review a trial court’s findings of fact for



                                                  6
legal and factual sufficiency of the evidence by the same standards applied to a jury verdict. Ortiz

v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

               A legal sufficiency challenge may be sustained when the record discloses one of the

following situations: (i) a complete absence of evidence of a vital fact; (ii) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact;

(iii) the evidence offered to prove a vital fact is no more than a mere scintilla; or (iv) the evidence

establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810

(Tex. 2005). In determining whether a finding is supported by legally sufficient evidence, we view

the evidence in the light most favorable to the finding, crediting favorable evidence if a reasonable

factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not. Id. at

807. We indulge every reasonable inference that would support the finding. Id. at 822. When

considering a factual sufficiency challenge, the reviewing court considers all of the evidence and

“should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as

to be clearly wrong and unjust.” See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).


Did the trial court err in determining that the Property was community property?

               In his first issue, Wheeler challenges the trial court’s finding that the Property was

part of the community estate of Ben and Francis Jones, and, therefore, its findings determining the

identity and proportionate interests of the joint owners. The issue arises because, if the Property was

part of the community estate, the law at the time of Francis Jones’s death provided that her one-half

interest in the Property passed to her eleven children. See William W. Gibson, Jr., Inheritance of

Property in Texas—A Need for Reform, 47 Tex. L. Rev. 359, 361-62 (1969). If, however,

                                                  7
the Property was Ben Jones’s separate property as Wheeler contends, only Ida Jones Houston,

Mattie Jones, and Willie Jones inherited the Property under the terms of his will. Based upon his

purchases from heirs of these three children, Wheeler contends that his proportionate interest in the

Property is 89.731%, not 77.947% as found by the trial court.

               Wheeler specifically challenges the sufficiency of the evidence to support the

following findings of fact and conclusions of law relevant to the trial court’s determination that the

Property was community property:


       •       That no evidence was produced to show that the Property was purchased with
               the separate property of Ben Jones, Sr.

       •       That there was a presumption under Texas law, when the property was
               acquired, that any property acquired during marriage is community property
               of that marriage.

       •       That no evidence was presented to rebut the community property
               presumption.

       •       That the Property was part of the community estate of Ben Jones, Sr., and
               Francis Wallace Jones.

       •       As of January 8, 1911, the date Francis Wallace died intestate, the Property
               was presumed to be the community property of Ben Jones, Sr. and Francis
               Wallace Jones. The Court has not received sufficient evidence to rebut such
               presumption and, therefore, as a matter of law, upon the death of Francis
               Wallace Jones, the Property was the community property of Ben Jones, Sr.
               and Francis Wallace Jones.


He also challenges the trial court’s related findings identifying the joint owners and their

proportionate interests.




                                                  8
               “The characterization of property as either community or separate property is

determined by the inception of title to the property.” Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex.

App.—Fort Worth 2004, no pet.). Property owned or claimed by a spouse before marriage and

property acquired during marriage by gift, devise, or descent is the separate property of that spouse.

Tex. Const. art. XVI, § 15. “Community property consists of the property, other than separate

property, acquired by either spouse during marriage.” Tex. Fam. Code Ann. § 3.002 (West 2006);

see Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

Property possessed by either spouse during or on the dissolution of marriage is presumed

to be community property. See Tex. Fam. Code Ann.§ 3.003(a) (West 2006); Irvin v. Parker,

139 S.W.3d 703, 708 (Tex. App.—Fort Worth 2004, no pet.). “This presumption applies not only

to dissolution by divorce, but also by death.” Irvin, 139 S.W.3d at 708; see Smith v. Lanier,

998 S.W.2d 324, 331 (Tex. App.—Austin 1999, pet. denied).

               To overcome the community property presumption, a party claiming property as

separate property must establish by clear and convincing evidence the separate character of that

property through tracing. Tex. Fam. Code Ann. § 3.003(b); Irvin, 139 S.W.3d at 708. “Tracing

involves establishing the separate origin of the property through evidence showing the time and

means by which the spouse originally obtained possession of the property.” Boyd, 131 S.W.3d at

612 (citing Ganesan v. Vallabhaneni, 96 S.W.3d 345, 354 (Tex. App.—Austin 2002, pet. denied)).

“Whether the presumption as to the community character of marital property is overcome is a

question for [the factfinder].” Lanier, 998 S.W.2d at 332 (citation omitted). “We resolve any doubt

as to the character of property in favor of the community estate.” Irvin, 139 S.W.3d at 708.



                                                  9
                Further, because the burden of proof at trial is clear and convincing evidence, we

apply higher standards of legal and factual sufficiency review. The clear and convincing standard

is “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be established.” In re C.H., 89 S.W.3d 17,

23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)). “In reviewing the

evidence for legal sufficiency, we must determine ‘whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction’ that the separate property characterization was

proven.” See Irvin, 139 S.W.3d at 709 (quoting In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002)).

We must review all the evidence in the light most favorable to the finding and judgment. Id. (citing

J.F.C., 96 S.W.3d at 266). In reviewing the factual sufficiency of the evidence to support that a

finding was proven by clear and convincing evidence, a court “must give due consideration to

evidence that the factfinder could reasonably have found to be clear and convincing.” J.F.C.,

96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d at 25). In light of the entire record, evidence is

factually insufficient if a reasonable factfinder could not have resolved the disputed evidence in favor

of its finding and if that disputed evidence is so significant that the factfinder could not reasonably

have formed a firm belief or conviction. Id.

                Wheeler does not challenge the trial court’s findings that Ben and Francis Jones were

married in 1877 and that Ben Jones acquired the Property by two separate warranty deeds

approximately 18 years after the Joneses married. The deeds recite that the Property was paid, in

part, by promissory note, and the Joneses did not dispose of the Property prior to their deaths. There

also was no tracing evidence to support that Ben Jones used separate property, such as an



                                                  10
inheritance, to purchase the Property. See Boyd, 131 S.W.3d at 612. Further, the affidavit of

heirship of Francis Jones, recorded in 1978, and the executrix’s deeds, recorded in 1996, were

consistent with the conclusion that the Property was the community property of Ben and Francis

Jones. This evidence supports the trial court’s findings concerning its characterization of the

Property as community property.

               Wheeler urges that appellees are procedurally barred from challenging the probated

will of Ben Jones and that “finality of judgments” and “ancient documents” prove that the property

was his separate property. See Tex. R. Evid. 803(16) (“[s]tatements in a document in existence

twenty years or more the authenticity of which is established” are not excluded by the hearsay rule).

Wheeler focuses on documents recorded in Bastrop County in connection with the estates of Ben and

Francis Jones. In his request to be appointed temporary administrator of his wife’s estate, Ben Jones

stated that his wife “left a personal estate of the value of $500.00,” and he did not list any real

property. In his probated will, he made a specific bequest of the Property. Ben Jones’s will was not

contested, the probate court approved the inventory listing the Property as separate property, and

appellees do not challenge his will or bring a constructive trust claim. See Frost Nat’l Bank

v. Fernandez, 315 S.W.3d 494, 497 (Tex. 2010) (bill of review action to set aside judgments and

reopen estates to declare heir barred by limitations); Tarver v. Tarver, 394 S.W.2d 780, 784 (Tex.

1965) (constructive trust claims discussed).

               Wheeler, however, did not plead res judicata or limitations as affirmative defenses

and, therefore, has waived these defenses. See Tex. R. Civ. P. 94; G.R.A.V.I.T.Y. Enters. v. Reece

Supply Co., 177 S.W.3d 537, 544 (Tex. App.—Dallas 2005, no pet.) (affirmative defense of



                                                 11
limitations waived if not pleaded); Garner v. Long, 106 S.W.3d 260, 264 (Tex. App.—Fort Worth

2003, no pet.) (affirmative defense of res judicata waived if not pleaded).

                Further, even if he had not waived these defenses, the fact that appellees do not

contest or seek to set aside Ben Jones’s will or seek a constructive trust is not dispositive. An

inventory filed in probate court is not conclusive proof of the title therein listed, and an order of the

probate court approving an inventory and appraisement does not adjudicate title. See McKinley

v. McKinley, 496 S.W.2d 540, 542-44 (Tex. 1973) (despite contrary probate order approving

inventory as separate property, community property finding by trial court affirmed; petitioner made

no attempt to trace source of funds and, therefore, did not overcome community property

presumption); see also Tex. Prob. Code Ann. § 261 (West 2003) (approved inventory not

“conclusive for or against” representative of estate); Tex. Prop. Code Ann. § 5.001 (West 2003) (“An

estate in land that is conveyed or devised is a fee simple unless the estate is limited by express words

or unless a lesser estate is conveyed or devised by construction or operation of law.”); Adams

v. Sadler, 696 S.W.2d 690, 692 (Tex. App.—Austin 1985, writ ref’d n.r.e.) (probate court lacks

jurisdiction to determine title); cf. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (collateral attack

not available to challenge division of property in final divorce decree based upon incorrect

characterization of community property).

                Moreover, without tracing evidence, “mere testimony” concerning the character of

property as separate property generally is insufficient to overcome the community property

presumption. Irvin, 139 S.W.3d at 710; Zagorski, 116 S.W.3d at 316. Given that there was no




                                                   12
tracing evidence concerning inception of title, we conclude that the trial court did not err in finding

that Wheeler failed to defeat the community property presumption.

               As part of this issue, Wheeler also argues that, even if the Property was community

property, Francis Jones’s interest passed to her husband based upon the retroactive application of

amendments to section 45 of the probate code. Section 45 was amended in 1993 to provide that

community property passes to the surviving spouse, not to the spouses’ children. See Act of

May 28, 1993, 73rd Leg., R.S., ch. 846, § 33, 1993 Tex. Gen. Laws 3337, 3351 (current version at

Tex. Prob. Code Ann. § 45 (West 2003)). If section 45 as amended applies, the Property would pass

under Ben Jones’s will whether or not the Property was community property. Sections 35 and

36 of the 1993 act, however, expressly provide that the “Act takes effect September 1, 1993,” and

that the “estate of a person who dies before the effective date of this Act is covered by the law in

effect when the person died, and the former law is continued in effect for that purpose.” See id.

§§ 35, 36, 1993 Tex. Gen. Laws at 3352; see Tex. Gov’t Code Ann. § 311.022 (West 2005) (“A

statute is presumed to be prospective in its operation unless expressly made retrospective.”); Frost

Nat’l Bank, 315 S.W.3d at 507 (citing Dickson v. Simpson, 807 S.W.2d 726, 727 (Tex. 1991)) (only

statutes in effect at time of death govern disposition of an estate). Given that Francis Jones died

more than eighty years before section 45 was amended in 1993, we conclude that its amendment

does not govern the disposition of her estate. We overrule Wheeler’s first issue.5


       5
          To the extent Wheeler argues that he holds record title to an 89.731% undivided interest
of the Property and that his record title should prevail over appellees’ claims, the evidence supports
a finding that he was not a good faith purchaser. See Longoria v. Lasater, 292 S.W.3d 156, 165
(Tex. App.—San Antonio 2009, pet. denied) (“‘[R]ecord title’ means title as it appears in the public
records after the deed is properly recorded.”); Richards v. Suckle, 871 S.W.2d 239, 242 (Tex.

                                                  13
Did the trial court err by ordering partition by sale?

                In his second issue, Wheeler contends that the trial court erred by ordering partition

by sale and that partition in kind by a panel of commissioners is required in this case. See Tex. R.

Civ. P. 761. As the majority interest owner, Wheeler urges that the Property is unique and that the

trial court’s ruling is unfair because the practical effect of the ruling is that he will be forced to

purchase the minority interests in order to maintain his interest in the Property.

                Wheeler specifically challenges the legal and factual sufficiency of the evidence to

support the following findings of fact and conclusions of law concerning the partition of

the property:


       •        The Court takes judicial notice that land which contains highway frontage is
                significantly more valuable than land that does not contain highway frontage.

       •        The Court takes judicial notice that land within a flood plain is less valuable
                than land that is not within a flood plain.

       •        The Court takes judicial notice that land which contains curb cuts affording
                access to a public road is more valuable than land without such curb cuts.



App.—Houston [14th Dist.] 1994, no pet.) (“A good faith purchaser for value will prevail over the
holder of prior equitable title.”). A party is a good faith purchaser for value if the purchase was made
in good faith, for valuable consideration, and without actual or constructive notice of any outstanding
claims by third parties. See Suckle, 871 S.W.2d at 242.
                 The evidence showed that Wheeler purchased his interests in the Property with deeds
that do not specify the proportionate interest conveyed, and there was evidence to support a finding
that, at a minimum, he was on constructive notice of appellees’ claim that the Property was part of
the community estate of Ben and Francis Jones when he began purchasing interests in the Property.
See Tex. Prop. Code Ann. § 13.002 (West 2004) (instrument properly recorded is “notice to all
persons of the existence of the instrument”). The affidavit of heirship of Francis Jones was recorded
in 1978, the executrix’s deeds were recorded in 1996, and Wheeler did not begin purchasing interests
in the Property until 1998. Wheeler also continued to purchase interests in the Property during the
pendency of this suit.

                                                  14
        •       The Court takes judicial notice that Property encumbered by easements is less
                valuable than a land free of easements.

        •       Based upon the evidence presented to the Court, including, without
                limitation, the survey, the Property is not susceptible to fair and equitable
                partition in kind.

        •       Pursuant to Texas Rules of Civil Procedure Rule 770, if the Court is of the
                opinion that the Property is not susceptible to fair and equitable partition in
                kind, the Court must appoint a receiver to conduct a partition by sale.


Wheeler contends that the trial court improperly took judicial notice of the impact of geographical

features on the value of real property. See Tex. R. Evid. 201.6 Wheeler, however, does not challenge

the trial court’s related findings that the survey shows that “US Highway 71, a four-lane divided

highway, runs through the Property,” “the Property does not contain any curb cuts affording access

to US Highway 71,” “portions of the Property are encumbered by a number of different easements,”

“portions of the Property contain significant highway frontage on US Highway 71,” and that

“portions of the Property are within a flood plain.”

                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. “The law favors partition in kind

over partition by sale.” Cecola v. Ruley, 12 S.W.3d 848, 853 (Tex. App.—Texarkana 2000, no pet.).




        6
           Texas Rule of Evidence 201 governs judicial notice of adjudicative facts. The rule
provides that a trial court may take judicial notice of an adjudicative fact, whether requested or not
by a party, if the fact is “not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.” Tex. R. Evid. 201(b), (c).



                                                   15
Whether property “can fairly be partitioned in kind is a question of fact.” Id. The party opposing

partition in kind and seeking partition by sale bears the burden of proving “an in-kind partition would

not be fair.” Id. at 853-54. The party need not show that partition in kind is physically impossible,

but that partition would be impractical or unfair. Id. at 855. “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.

               In addition to Wheeler’s interest, the trial court found that there are multiple joint

owners as well as unknown joint owners with interests ranging from 3.611% to 0.700%. The record

shows that the parties tried but failed to agree to a division of the Property between Wheeler and

appellees. The trial court admitted the survey obtained by Wheeler, and he has not challenged the

trial court’s findings of what the survey shows. Further, to the extent that Wheeler challenges the

trial court’s judicial notice of the impact of geographical features on the value of portions of the

Property, Wheeler’s attorney at the hearing agreed that frontage property is more valuable and that

real property encumbered by an easement or located within a flood plain has less value. The

evidence also showed that the value of the Property was uncertain. Wheeler testified that the

Property was valued at $2.4 million by the Bastrop County Appraisal District, that there was a lack

of comparable sales, and that he “might go as much as” $10,000 per acre. This evidence is some

evidence to support the trial court’s finding that the property was not susceptible to an equitable

partition in kind. See City of Keller, 168 S.W.3d at 810; see also Taplin v. Peach Creek Partners,

Ltd., No. 10-06-00371-CV, 2007 Tex. App. LEXIS 9757, at *5-6 (Tex. App.—Waco Dec. 12, 2007,

pet. dism’d) (mem. op.) (partition by sale affirmed); Fite v. Wilson, No. 06-05-00131-CV,



                                                  16
2006 Tex. App. LEXIS 5812, at *8-10 (Tex. App.—Texarkana July 6, 2006, no pet.)

(mem. op.) (same).

               Moreover, although Wheeler testified that the Property was “easily divisible” and that

he did not want to sell the Property, we cannot conclude that the trial court’s finding is “so contrary

to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain, 709 S.W.2d

at 176. We conclude then that the evidence is legally and factually sufficient to support the trial

court’s finding that the Property was not susceptible to an equitable partition in kind and, therefore,

that the trial court did not err in ordering the Property partitioned by sale. See Tex. R. Civ. P. 770;

Cecola, 12 S.W.3d at 855. We overrule Wheeler’s second issue.


Did the trial court err by awarding money judgments against the joint owners, creating liens
against the Property, and awarding postjudgment interest?

               In his third issue, Wheeler urges that the trial court erred by awarding attorney’s fees

and expenses, reimbursement of tax payments, and postjudgment interest and by creating liens

against the Property. He again challenges the sufficiency of the evidence to support the trial court’s

findings of fact and conclusions of law concerning the money judgments and the equitable liens.7

               The trial court found that James Robert Ball paid $7,608.48 and Freddie Lee Phillips

paid $7,608.48 in real property taxes for the tax years 1998 through 2007 and that these payments

were for the “common benefit of the Joint Owners.” The trial court also found that the parties’

attorneys had rendered legal services for the “common benefit of the Joint Owners,” that the fees

were “reasonable and necessary,” and that it was “equitable and just that their attorney’s fees be paid

       7
         Wheeler does not challenge the trial court’s award of a money judgment and creation of
an equitable lien in his favor for the survey costs.

                                                  17
by the Joint Owners in accordance with their respective Proportionate Interests in the Property.” The

trial court rendered judgments against the joint owners in proportion to their percentage of ownership

and created equitable liens against the Property for the amounts of the tax payments and the

attorney’s fees. The trial court awarded $7,608.48 in favor of Michael Ball, $7,608.48 in favor of

Howard S. Phillips, $10,000 in favor of the attorney representing Phillips and Ball, $10,000 in favor

of the attorney representing the other appellees, $10,000 in favor of the attorney representing

Wheeler before the trial court, and $5,000 in favor of the attorney ad litem for the unknown heirs.

The trial court further awarded postjudgment interest on these amounts.

               A party generally may not recover its attorney’s fees in a partition suit. See Cecola,

12 S.W.3d at 856. The trial court, however, found that “[t]his case is a proceeding under Chapter

37 of the Texas Civil Practice and Remedies Code” and that, pursuant to section 37.009, “the Court

may award reasonable and necessary attorney’s fees as are equitable and just.” See Tex. Civ. Prac.

& Rem. Code Ann. §§ 37.001-.011 (West 2008).8 We review attorney’s fees awarded pursuant to


       8
          Appellees also contend and the trial court found that the incurred attorney’s fees were
recoverable under the equitable common fund doctrine. See Knebel v. Capital Nat’l Bank,
518 S.W.2d 795, 799 (Tex. 1974); see also Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307,
310 (Tex. 1985) (applicability of common fund doctrine discussed); Martin-Simon v. Womack,
68 S.W.3d 793, 797-98 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“The Texas Supreme
Court has adopted a ‘common fund’ equitable exception to the general rule prohibiting recovery of
attorney’s fees absent contractual agreement or statute.”); Libhart v. Copeland, 949 S.W.2d 783,
803-04 (Tex. App.—Waco 1997, no writ) (judgment requiring property sold and percentage of
proceeds paid to parties’ attorney upheld under common fund doctrine; “The doctrine usually has
application where a plaintiff’s successful litigation confers ‘a substantial benefit on the members of
an ascertainable class . . . .’” (quoting Hall v. Cole, 412 U.S. 1, 5 (1973)). This doctrine “rests in
equity” and allows a complainant who at his own expense has maintained a successful proceeding
for the preservation, protection, or increase of a common fund or property to recover an equitable
award of his proportionate expenses, including attorney’s fees and costs, against joint owners.
Knebel, 685 S.W.2d at 798-99. “The equitable objective is that of distributing the burden of such

                                                 18
the UDJA under an abuse of discretion standard. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.

1998). A trial court abuses its discretion when it acts unreasonably or without reference to

any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985).

                In addition to seeking a partition of the property, appellees sought declaratory relief.

See EOG Res., Inc. v. Killam Oil Co., 239 S.W.3d 293, 304 (Tex. App.—San Antonio 2007, pet.

denied) (party seeking declaratory relief that is separate from a land title dispute may recover

attorney’s fees under the UDJA).9 The record shows that appellees were “interested as or through”

heirs in the estates of Ben and Francis Jones and sought a judicial determination as to the heirs of

the estates and construction of Ben Jones’s will and “other writings.” See Tex. Civ. Prac. & Rem.

Code Ann. § 37.005. They also sought declarations as “persons interested” under certain deeds and

Ben Jones’s will and “whose rights, status, or other legal relations” were “affected by a statute.” See

id. § 37.004(a) (subject matter for declaratory relief).

                As part of his challenge to the trial court’s award of attorney’s fees, Wheeler

challenges the trial court’s finding that appellees’ attorney’s fees benefited the joint owners. But the

record shows that a primary objective of this suit was to restore marketable title to the Property by



expenses among those who share in an accomplished benefit.” Id. at 799. Because we uphold the
awards under the UDJA, we do not reach this alternative ground. See Tex. R. App. P. 47.1.
       9
          We note that Wheeler did not urge at the trial court level that appellees’ claim for
declaratory relief was in essence an action for trespass to try title. See Krabbe v. Anadarko
Petroleum Corp., 46 S.W.3d 308, 320-21 (Tex. App.—Amarillo 2001, pet. denied) (any error in
permitting trespass-to-try-title claim under UDJA may be waived absent objection to that procedure);
see also Archaeological Conservancy v. Wilson Land & Cattle Co., No. 03-08-00061-CV,
2010 Tex. App. LEXIS 2385, at *16 n.5 (Tex. App.—Austin Mar. 30, 2010, no pet.) (mem. op.).

                                                  19
identifying the Property’s joint owners. To reach this objective, the threshold issue was who were

the heirs of Ben and Francis Jones, requiring research and analysis of records spanning over 60 years.

The record shows that only Ben Jones, his grandson Ira Jones, and his grandson’s wife, Ella Jones,

devised their interests in the Property. The remaining descendants of Ben and Francis Jones passed

their interest in the Property by intestate succession, requiring the trial court to make a determination

of heirship for the deceased heirs. Appellees’ attorneys researched, analyzed, and then prepared a

detailed summary of the heirs of Ben and Francis Jones and their proportionate interests in the

Property. The trial court utilized this information to determine the joint owners and their

proportionate interests.10

                To the extent Wheeler challenges the amount of the attorney’s fees awarded, at the

December 2009 hearing, the attorney representing Phillips and Ball advised the court that her clients

had incurred attorney’s fees “in the neighborhood of $10,032.” The attorney representing the other

appellees stated that his fees over the course of the six years that the case was pending were

$39,000 based upon 206.50 hours plus fees of $1,400. The attorney ad litem for the unknown heirs

had no objection to the other appellees’ attorney’s fee requests, stating that “all parties have

benefitted from clearing up the title to a very valuable piece of property out on the highway that has

been rendered just stale and useless for a very long time” and that it was “a complicated problem.”

On this record, we cannot conclude that the trial court abused its discretion by awarding money




        10
         This case was filed in 2003. Wheeler represented himself and appeared pro se at the June
2009 hearing. He was not represented by counsel in this suit until later in 2009.

                                                   20
judgments against the joint owners in their proportionate shares for attorney’s fees or in the amount

of the awards.

                 As to the money judgments for reimbursement of tax payments, Wheeler contends

that it is inequitable for the current joint owners to be liable for reimbursement of taxes that were

paid by previous alleged co-tenants.11 Wheeler states that he purchased most of his interests in the

Property in 2007, and the trial court found that the tax payments were for the tax years 1998 to 2007.

Wheeler fails to cite authority to support this contention and, therefore, has waived it. See Tex. R.

App. P. 38.1(i); Save Our Springs Alliance, Inc. v. City of Dripping Springs, 304 S.W.3d 871, 885

(Tex. App.—Austin 2010, pet. denied); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338

(Tex. App.—Houston [14th Dist.] 2005, no pet.).

                 Further, even if he did not waive this contention, James Robert Ball, Freddie Lee

Phillips, and Wheeler were co-tenants of the Property. “A co-tenant who incurs expense for

the necessary preservation of property is entitled to reimbursement from her co-tenant.” See

Bailey-Mason v. Mason, 334 S.W.3d 39, 45 (Tex. App.—Dallas 2008, pet. denied). The record

shows that James Robert Ball and Freddie Lee Phillips began making the tax payments only after

receiving notices of delinquent taxes, that Wheeler had an interest in the Property beginning in 1998,

and that he was aware of the payments of the property taxes prior to and during the pendency of this

case. In his deposition, James Robert Ball testified that he attempted to obtain assistance on the tax




       11
          Wheeler also contends that, if appellees Ball and Phillips are adjudged not to have interests
in the Property, they are not entitled to reimbursement because they were volunteers. See Burkhardt
v. Lieberman, 159 S.W.2d 847, 853 (Tex. 1942). Given our conclusion that they had interests in the
Property, we do not address this argument.

                                                  21
payments from other heirs and that the decision to pay the delinquent taxes was to avoid a “sheriff

sale” of the Property. Some of the joint owners of the Property remained unknown, their

proportionate interests remained uncertain during the pendency of this case, and the record shows

that the Property’s value far exceeds the tax payments. Preserving ownership of the Property by

paying the taxes benefited the current joint owners. On this record, we cannot conclude that the trial

court erred in awarding money judgments against the current joint owners for their proportionate

share of the tax payments.

                As to Wheeler’s remaining challenges to the equitable liens and postjudgment interest

awards, Wheeler has failed to cite authority to support his contentions and, therefore, has waived

them. See Tex. R. App. P. 38.1(i); Save Our Springs Alliance, Inc., 304 S.W.3d at 885. Further,

even if he had not waived these contentions, we cannot conclude that the trial court erred in creating

equitable liens or in awarding postjudment interest. See Tex. Fin. Code Ann. § 304.005 (West 2006)

(generally “postjudgment interest on a money judgment . . . accrues during the period beginning on

the date the judgment is rendered and ending on the date the judgment is satisfied”); Chorman

v. McCormick, 172 S.W.3d 22, 24 (Tex. App.—Amarillo 2005, no pet.) (“Courts of equity will apply

the relations of the parties and the circumstances of their dealings in establishing a lien based on

right and justice.”); Richards v. Suckle, 871 S.W.2d 239, 241 (Tex. App.—Houston [14th Dist.]

1994, no pet.) (“An equitable lien . . . is one in which a court of equity implies a[n] agreement arising

out of the relationship of the parties and the circumstances of their dealings.”).

                We conclude that the evidence was sufficient to support the trial court’s findings

concerning the award of attorney’s fees and property taxes and, therefore, that the trial court did not



                                                   22
err in awarding money judgments in those amounts against the joint owners in proportion to their

percentage of ownership. We also conclude that the trial court did not err by creating equitable liens

or granting postjudgment interest. We overrule Wheeler’s third issue.


                                          CONCLUSION

               For these reasons, we affirm the trial court’s decree.




                                               __________________________________________

                                               Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed on Motion for Rehearing

Filed: September 7, 2011




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