                                 NO. 12-07-00091-CV

                        IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS
RAY C. HILL AND BOBBIE L. HILL,                   §            APPEAL FROM THE 241ST
APPELLANTS

V.
                                                  §            JUDICIAL DISTRICT COURT
JO ELLEN JARVIS, NEWELL S. JARVIS,
JOHN R. JARVIS AND
SARA ANN JARVIS THOMPSON,
APPELLEES                                         §            SMITH COUNTY, TEXAS


                                   MEMORANDUM OPINION
       This is an action for conversion and unauthorized harvesting of standing timber. The jury
found Appellants Ray C. Hill and Bobbie L. Hill had converted timber owned by Appellees Jo Ellen
Jarvis, Newell S. Jarvis, John R. Jarvis, and Sara Ann Jarvis Thompson Jarvis and that Appellants
had acted in bad faith or in reckless disregard of or with conscious indifference to the rights of the
Jarvis family. The jury found damages in the amount of $14,175 for the market price of the timber
taken, and $11,970 for the cost of replanting. Based on these findings, the trial judge rendered
judgment for three times the market price pursuant to Texas Natural Resources Code section
151.051, the cost to replant, prejudgment interest, and court costs, less the stipulated credit for the
Jarvis family’s share of taxes paid by Hill. Appellants present four issues on appeal. We reverse
and render in part, and affirm in part.

                                           BACKGROUND
       The Jarvis family and the Hills owned undivided interests in a fifty acre wooded tract. In
2002, the Jarvis family filed suit to partition the tract. On July 22, 2002, the trial court conducted
the trial of the partition action. The court found that all parties sought to have the property
partitioned in kind and that the Jarvis family owned a 63% interest in the property and the Hills a
37% interest. On April 11, 2003, the trial court signed the “Judgment Directing Partition” setting
forth the exact interests of the parties, appointing commissioners to partition the property and a
surveyor to assist them, finding the estimated fees and expenses of the commissioners and surveyor
to be $5,800, and ordering the parties to deposit their pro rata share of that amount into the registry
of the court.
        The Jarvises deposited their share of the estimated partition costs in the registry of the court.
The Hills, however, never deposited their share. As a result, the commissioners and the surveyor
never completed the partition.
        Ray Hill did not agree with the partition decree, but the Hills did not appeal the partition
judgment. Without consulting the Jarvis family, Ray Hill sold all the merchantable timber on the
property for $22,500. Ray Hill did not inform the Jarvis family or any of its members of the sale.
John Jarvis learned from a third party that Ray Hill had sold the timber to a logging company that
clear cut the timber.
        In December 2003, the Jarvis family sued the Hills alleging the Hills had no right to sell and
remove their 63% of the timber, because the trial court had ordered the tract partitioned in kind. The
Jarvises sought damages for the conversion of their timber and treble damages under Texas Natural
Resources Code section 151.051 for unauthorized harvesting of standing timber. At the close of the
trial, the jury found, as follows:


        (1)     Ray Hill caused another person to harvest standing timber owned by the Jarvis
                family without their permission;

        (2)     Ray Hill converted timber owned by the Jarvis family;

        (3)     In converting such timber, Ray Hill acted in bad faith or in reckless disregard or
                with conscious indifference to the rights of the Jarvis family; and

        (4)     Damages of $14,175 for the market price of the Jarvis family’s timber and $11,970
                for the cost to replant their timber would reasonably compensate the Jarvis family.



Based on these findings, the trial court rendered judgment pursuant to Texas Natural Resources Code
section 151.051 awarding the Jarvis family damages for three times the market price, the cost to
replant, prejudgment interest, and court costs less the stipulated credit for the Jarvis family’s share
of taxes paid by the Hills after 2002.


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                            EXCLUSION OF EVIDENCE OF UNPAID TAXES
        In their first issue, the Hills contend the trial court erred by excluding evidence that the Jarvis
family had failed and refused to pay real estate taxes in proportion to their ownership for seventeen
years. In their second issue, the Hills argue that the trial court erred by ruling that the Jarvis family’s
failure to pay property taxes was res judicata based on the 2003 “Judgment Directing Partition.”
Applicable Law
        A cotenant who incurs expense necessary to protect the common property is entitled to be
reimbursed by the other cotenants. Wooley v. West, 391 S.W.2d 157, 160 (Tex. Civ. App.–Tyler
1965, writ ref’d n.r.e.). On partition, a cotenant who expends funds necessary to protect or preserve
the common property is entitled to have those expenditures charged to the tenants in common
according to their pro rata ownership. Gonzalez v. Gonzalez, 552 S.W.2d 175, 181 (Tex. Civ.
App.–Corpus Christi 1977, writ ref’d n.r.e.). Expenditures necessary to preserve the common
property include those for taxes, insurance, and repairs. See Duke v. Squibb, 392 S.W.2d 885, 888
(Tex. Civ. App.–Texarkana 1965, no writ).
        “A partition case, unlike other proceedings, has two final judgments, and the first one is
appealable as a final judgment.” Griffin v. Wolfe, 610 S.W.2d 466, 466-67 (Tex. 1980). In the first
trial, “the 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 title to such land which
may arise.” See TEX . R. CIV . P. 760. At the first trial, a cotenant “may have an account from another
for rents and profits received, waste committed, moneys fraudulently obtained, betterments made,
and taxes, etc., paid . . . ,” and “the court has a right to adjust all such equities. . . .” Sayers v. Pylan,
139 Tex. 57, 61, 161 S.W.2d 769, 771-72 (1942). The first judgment or preliminary decree
determines “the merits of the case,” concludes “the rights of the parties,” and must be challenged by
a direct appeal. Burkitt v. Broyles, 340 S.W.2d 822, 823 (Tex. Civ. App.–Waco 1960, writ ref’d
n.r.e.) (quoting Cannon v. Hemphill, 7 Tex. 184, 1[96-]97 (1851)). The second decree adopts the
report of the commissioners. See TEX . R. CIV . P. 769, 771. Matters decided in the preliminary or
first decree cannot be challenged in an appeal from the trial court’s order adopting the
commissioners’ report. White v. Mitchell, 60 Tex. 164, 165 (1883); Burkitt, 340 S.W.2d at 823-24.
        Res judicata, or claim preclusion, prevents the relitigation of a claim or cause of action that
has been finally adjudicated, as well as related matters that, with the use of diligence, should have
been litigated in the prior suit. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.

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1984).
Discussion
         The Hills contend the trial court erred in excluding evidence that they paid taxes on the
property and that the Jarvis family refused to pay their proportionate share of the taxes “for
seventeen plus years or at least three of the last five years.”
         The trial court ruled that Ray Hill could explain that he cut the timber to pay the taxes, but
that if he testified to taxes paid before July 22, 2002, the date of the first decree in the partition suit,
the trial court would instruct the jury “that Ray Hill did not have the legal right to sell any timber
from the jointly owned land in order to recover his claim for any taxes paid before July 2002.”
Without mentioning dates or amounts, Ray Hill asserted several times during his testimony that he
sold the timber to pay the taxes. At the close of evidence, the parties stipulated the amount of taxes
paid by the Hills since 2002 was $1,758.61 and that the Jarvises were responsible for 63% of those
taxes.
         The partition judgment determined the rights of the parties with respect to any adjustment
of equities, including any claim for reimbursement the Hills might have had for the taxes they paid
before the 2002 judgment. The Hills did not appeal the partition judgment. The trial court correctly
concluded that, under the doctrine of res judicata, the 2002 partition judgment barred the Hills’ claim
for reimbursement for taxes paid before the judgment. Therefore, the trial court did not err in ruling
that if the Hills offered evidence of their payment of taxes before 2002, it would instruct the jury that
the partition judgment barred the Hills’ recovery for taxes they paid before 2002. The Hills’ first
and second issues are overruled.

                  DAMAGES FOR THE UNAUTHORIZED HARVESTING OF TIMBER
         In their third issue, the Hills contend the trial court erred in awarding the Jarvis family
damages for the unauthorized harvesting of timber without allowing the Hills reimbursement for the
Jarvis family’s proportionate share of the taxes.
Applicable Law
         Although “any co-tenant may sell and convey timber standing and growing on commonly
held properties and pass good title thereto,” “such rule is not without limitation. . . . [B]oth the
selling co-tenant and his vendee [are] liable to the non-selling co-tenants for their proportionate part
of the timber cut and removed where the timber cut was more than the selling co-tenant’s
proportionate part.” Green v. Crawford, 662 S.W.2d 123, 127 (Tex. App.–Tyler 1983, writ ref’d


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n.r.e.). A cotenant may maintain a conversion suit against another cotenant who has appropriated
the entire commonly owned property for his own use and benefit. Cass v. Stephens, 156 S.W.3d
38, 61 (Tex. App.–El Paso 2004, pet. denied). If possession is initially lawful, demand and refusal
to return the property may be required for the cause of action to accrue. Id. Demand and refusal are
not necessary, however, when the possessor’s acts manifest a clear repudiation of the plaintiff’s
rights. Id.
        Texas Natural Resources Code section 151.051, entitled “Damages for Unauthorized
Harvesting” provides, in pertinent part, as follows:

        (a)     A person who harvests standing timber with knowledge that the harvesting is
                without the permission of the owner of the standing timber and a person who
                causes another person to harvest standing timber without the permission of the
                owner of the standing timber are jointly and severally liable to the owner for
                damages in an amount equal to three times the market price of the timber harvested
                without permission.




TEX . NAT ’L RES. CODE ANN . § 151.051(a) (Vernon Supp. 2007).
        Although the term “waste” does not include ordinary depreciation due to age or use, the
failure of a cotenant in possession to properly protect the common property amounts to an act of
waste. Sadler v. Duvall, 815 S.W.2d 285, 292-93 (Tex. App.–Texarkana 1991, writ denied); see
also Guffey v. Stroud, 16 S.W.2d 527, 529 (Tex. Comm’n App. 1929, opinion adopted). The cutting
of timber resulting in permanent injury is waste unless there is specific permission to cut the trees.
Anderson v. Anderson, 97 S.W.2d 513, 515 (Tex. Civ. App.–Fort Worth 1936, no writ).
Discussion
        The Hills first complain that the issue inquiring “Did Ray Hill cause another person to
harvest standing timber owned by the Jarvis family, without the permission of the Jarvis family?”
was improper, because the question “presumes separate ownership contrary to Texas law on
cotenancy.” The Hills did not object to the questions at trial; therefore, their complaint is waived.
See TEX . R. CIV . P. 272.
        Secondly, the Hills contend that “there was no theft and treble damages are unauthorized by
case law or [Texas Natural Resources Code] Section 151.051.” Even assuming that when Ray Hill
sold the timber, a cotenancy still existed despite the prior entry of the first decree in the partition suit,
nothing in the statute excuses Ray Hill’s unauthorized sale. The statute does not exclude cotenants
from its imposition of treble damages.

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       The Hills next contend that a cotenant has no duty to restore common property to its original
condition. Although they were not liable for depreciation to the property because of age or use, the
Hills had a duty not to commit waste and were liable to the cotenants for breach of that duty.
       Finally, the Hills reiterate their complaint that they were not allowed reimbursement for their
payment of the Jarvis family’s proportionate share of the taxes. The court allowed reimbursement
for those taxes paid since the first partition judgment in the amount stipulated by the parties. As we
have previously explained, the decree partitioning the property is conclusively presumed to have
adjusted the equities among the joint owners as they existed when the decree was entered. See Reed
v. Robertson, 106 Tex. 56, 59, 156 S.W. 196, 197 (1913). The Hill’s third issue is overruled.

                               DAMAGES AGAINST BOBBIE L. HILL
       In their fourth issue, the Hills contend the trial court erred in awarding damages against Ray
Hill’s spouse, “Bobby L. Hill,” absent proof of acts committed by her. They argue there was no
evidence presented of her participation in the sale or removal of the timber and the court submitted
no issues regarding her involvement.
Applicable Law
       A person is liable for the acts of her spouse only if the spouse acts as her agent, or the spouse
incurs a debt for necessaries. TEX . FAM . CODE ANN . § 3.201(c) (Vernon 2006). A spouse does not
act as an agent of the other solely because of the marriage relationship. TEX . FAM . CODE ANN .
§ 3.201(c) (Vernon 2006). Nor is the fact of their marriage evidence of the apparent authority of one
spouse to act as agent for the other. Patel v. Kuciemba, 82 S.W.3d 589, 595 (Tex. App.–Corpus
Christi 2002, pet. denied). Neither spouse is individually liable for the torts of the other spouse,
unless liability is imposed under a doctrine such as agency, respondeat superior, or joint enterprise.
Lawrence v. Hardy, 583 S.W.2d 795, 799 (Tex. Civ. App.–San Antonio 1978, writ ref’d n.r.e.). All
community property is subject to the tortious liability of either spouse incurred during marriage.
TEX . FAM . CODE ANN . § 3.202(d) (Vernon 2006).
       The Jarvis family points to Ray Hill’s deposit of the $22,500 in the Hills’ joint bank account
as evidence of Bobbie Hill’s participation in the conversion of the Jarvis family’s share of the timber.
They argue that by her acceptance of the benefits of Ray Hill’s unauthorized sale of the timber, she
ratified and became responsible for his actions. “Ratification may occur when a principal, though
[s]he had no knowledge originally of the unauthorized act of [her] agent, retains the benefits of the
transaction after acquiring full knowledge.” Land Title of Dallas v. F.M. Stigler, Inc., 609 S.W.2d

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754, 756 (Tex. 1980). The knowledge to support ratification may be shown by evidence either of
knowledge or of facts from which such knowledge may reasonably be imputed to the principal.
Wyatt v. McGregor, 855 S.W.3d 5, 13 (Tex. App.–Corpus Christi 1993, writ denied).
         There is, however, no evidence in this record sufficient to show that Bobbie Hill was aware
of her husband’s actions or of his deposit of money in their joint checking account. The evidence
clearly falls short of demonstrating the “full awareness” that is predicate to ratification. The Hills’
fourth issue is sustained.


                                                   DISPOSITION
         The trial court’s judgment against Bobbie L. Hill, individually, is reversed and judgment
rendered that the Jarvis family take nothing against Bobbie L. Hill, individually. In all other
respects, the judgment is affirmed.

                                                                             BILL BASS
                                                                                Justice


Opinion delivered June 30, 2008.
Panel consisted of Worthen, C.J., G riffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by
assignment.




                                                    (PUBLISH)




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