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Morris v. Hudson

Court of Appeals of Texas, Twelfth District, Tyler

June 21, 2017

DONNA MORRIS, APPELLANT
v.
MIKE HUDSON, APPELLEE

         APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS (TR.CT.NO. 06-155-C)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice.

         Donna 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.

         Background

         Morris 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.

         In 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.

         On 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.[1] 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.

         Preservation of Error

         We first address Hudson's contention that Morris has waived her complaints by failing to present them to the trial court.

         To 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).

         Additionally, 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.

         In her 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.

         In her 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 ...


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