Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen Chief Justice.
Morris appeals from an order in a partition action, in which
the trial court awarded equitable adjustments and
attorney's fees in favor of Mike Hudson. She presents
three issues on appeal. We reverse a portion of the judgment,
modify, and affirm the judgment as modified.
and Hudson each owned an undivided one-half interest in a
piece of property in Smith County, Texas. In January 2006,
Hudson filed suit to partition the property. In May, the
trial court determined that the property could not be
partitioned in kind and ordered the property be sold. The
court further ordered that the partition proceeds be used to
pay the closing expenses, realtor's fees, attorney's
fees in the amount of $2, 500, and reimbursement equities of
$22, 534.90. The remaining proceeds were to be divided evenly
between Morris and Hudson.
February 2015, Hudson received an offer for the property.
After Morris failed to respond to his requests to sign the
contract documents, Hudson asked the court to appoint a
receiver to sign the documents for Morris. In May, the trial
court granted Hudson's request and appointed a receiver.
The sale was completed in July. In accordance with the
court's 2006 partition order, the net proceeds were paid
into the registry of the court for distribution.
January 18, 2016, Hudson filed an application for
distribution of funds and discharge of receiver. In his
application, Hudson alleged that he spent $2, 731.95 in 2012,
2013, and 2014 preparing the property for sale and an
additional $8, 735.38 maintaining and improving the property.
Hudson sought reimbursement for these expenses, and $5,
021.02 in attorney's fees. Following a hearing, the trial
court granted Hudson's application, including his request
for reimbursement and attorney's fees, and ordered Morris
to pay Hudson's attorney's fees. The trial
court's order was signed and entered on March 15. On
March 18, Morris filed an objection to Hudson's
application. This appeal followed.
first address Hudson's contention that Morris has waived
her complaints by failing to present them to the trial court.
preserve a complaint for appellate review, a party must
present the complaint to the trial court by a timely request,
objection, or motion that states the grounds for the ruling
that the complaining party seeks, with sufficient specificity
to make the trial court aware of the complaint. Tex.R.App.P.
33.1. This rule ensures that the trial court has had the
opportunity to rule on matters for which parties later seek
appellate review. In re E. Tex. Med. Ctr. Athens,
154 S.W.3d 933, 936 (Tex. App.-Tyler 2005, orig. proceeding).
Further, the trial court must have ruled on the request,
objection, or motion, either expressly or implicitly, or
refused to rule on the request, objection, or motion, and the
complaining party objected to the refusal. Tex.R.App.P.
33.1(a)(2). However, complaints about the sufficiency of the
evidence in a bench trial may be brought for the first time
on appeal. Tex.R.App.P. 33.1(d).
two judgments are rendered in a partition suit. Griffin
v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980) (per curiam).
The first judgment, sometimes referred to as an interlocutory
decree, determines the interest of each of the joint owners
and whether the property is susceptible to partition.
Tex.R.Civ.P. 760, 761; see also Snow v. Donelson,
242 S.W.3d 570, 572 (Tex. App.-Waco 2007, no pet.);
Carson v. Hagaman, 884 S.W.2d 194, 195 n.1 (Tex.
App.-Eastland 1994, no writ). If the property cannot be
partitioned, the court will order the property to be sold.
Tex.R.Civ.P. 770. During this first phase, the court should
appoint a receiver to sell the property, after which the
proceeds of the sale are delivered to the registry of the
court to be partitioned among the prior owners. Id.
In the second order, the trial court confirms the
receiver's actions and distributes the funds. Ellis
v. First City Nat'l Bank, 864 S.W.2d 555, 557 (Tex.
App.-Tyler 1993, no writ). Matters decided in the first order
cannot be reviewed in an appeal from the second. Id.
first issue, Morris urges that the trial court exceeded its
authority when it granted equitable adjustments in the second
partition order. However, Morris filed her objection to
Hudson's application for distribution three days after
the trial court signed and entered its March 15 order. Thus,
she did not present the trial court with a timely request,
objection, or motion. See Tex. R. App. P. 33.1.
Further, Morris's objection did not challenge the trial
court's authority to grant equitable adjustments in the
second partition order. As a result, the trial court did not
have an opportunity to address Morris's argument, which
she asserts for the first time on appeal, that it exceeded
its authority by granting the equitable adjustments in its
second partition order. See In re E. Tex. Med. Ctr.
Athens, 154 S.W.3d at 936. Accordingly, Morris failed to
preserve her first issue for appellate review. See
Tex. R. App. P. 33.1.
second issue, Morris contends the evidence is factually
insufficient to support the equitable adjustments awarded by
the trial court. And in her third issue, Morris argues the
evidence is legally insufficient to support the award of
attorney's fees. Because challenges to the sufficiency of
the evidence in nonjury cases may be brought for the first
time on appeal, Morris has not waived these issues for
appellate review. See Tex. R. App. P. 33.1(d);
EXCO Oper. Co. v. McGee, 12-15-00087-CV, 2016 WL
4379484, at *1 (Tex. App.-Tyler Aug. 17, 2016, no pet.) (mem.
op.); Watts v. Oliver, 396 S.W.3d 124, 132 (Tex.
App.-Houston [14th ...