Opinion
03-22-00739-CV
05-24-2024
James Andy Fry, Individually, as Director of Fry Sons Ranch, Inc. and as Trustee of the Press Fry Family Trust, Appellants v. Dianna Lynn Fry, as Independent Administrator of the Estate of Joseph Nathan Fry; Press Allen Fry; and Edward Heath Fry, Individually and in their Derivative Capacity on behalf of Fry Sons Ranch Inc., and as Majority Shareholders of Fry Sons Ranch Inc. and as Beneficiaries of the Press Fry Family Trust, Appellees
FROM THE 33RD DISTRICT COURT OF BURNET COUNTY NO. 45181-D, THE HONORABLE BURT CARNES, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Kelly and Theofanis
MEMORANDUM OPINION
Chari L. Kelly, Justice
Fry Sons Ranch, Inc. is a closely held corporation in which four brothers are shareholders. In the lawsuit underlying this appeal, three of the brothers-Joseph Nathan Fry, Press Allen Fry, and Edward Heath Fry (collectively, the Three Brothers)-sued their fourth brother, James Andy Fry, along with Fry Sons Ranch (collectively, the Ranch Defendants), in connection with James's duties as the corporation's president. The Three Brothers sought, in part, a judicial partition of a 1,033-acre ranch property owned by Fry Sons Ranch. In this appeal, the Ranch Defendants challenge the trial court's order granting summary judgment in favor of the Three Brothers on their partition claim. We will affirm.
Following Joseph Nathan Fry's death, Dianna Lynn Fry was substituted in the suit, in her capacity as the independent administrator of his estate.
BACKGROUND LAW AND PROCEDURAL HISTORY
This Court has previously explained the process of obtaining a partition of real property:
Unlike other proceedings, a partition suit is a two-step process resulting in two orders, each of which is considered final for purposes of appeal. In the first order, sometimes referred to as the "interlocutory" partition order, the trial court determines (1) the interests of all joint owners or claimants, (2) all questions of law affecting title, and (3) if the property is susceptible to partition. If the trial court determines the property is susceptible to partition, it will appoint commissioners and give them appropriate instructions for determining how to divide the property. Issues determined by the partition order must be challenged following its entry; they cannot be attacked collaterally after the entry of a later order or judgment.
After completing their work, the commissioners submit a report to the trial court describing their proposed division of the property. In the second order, sometimes referred to as the "final decree," the trial court approves the commissioners' report and sets aside to the parties their respective shares.Fry Sons Ranch, Inc. v. Fry ("Fry II"), No. 03-21-00289-CV, 2021 Tex.App. LEXIS 6859, at *2 (Tex. App.-Austin Aug. 20, 2021, pet. denied) (mem. op.) (internal citations omitted); see Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980) ("A partition case, unlike other proceedings, has two final judgments and the first one is appealable as a final judgment."); Jimmie Luecke Children P'ship, Ltd. v. Pruncutz, No. 03-10-00840-CV, 2013 Tex.App. LEXIS 10362, at *6 (Tex. App.-Austin Aug. 16, 2013, no pet.) (mem. op.) (summarizing partition process).
In accordance with these procedures, the trial court in this case signed partition orders disposing of the Three Brothers' partition claim. On March 6, 2019, the trial court signed an "interlocutory" partition order, directing that the ranch property be partitioned in kind and appointing commissioners to determine how the property should be divided. After the commissioners filed their report with the trial court, the Ranch Defendants objected to the commissioners' report; conversely, the Three Brothers moved for a partial summary judgment, requesting a final partition of the property in conformance with the commissioners' report. On June 8, 2021, the trial court signed a "final" partition order (1) overruling objections made by the Ranch Defendants to the commissioners' report, (2) denying the Ranch Defendants' plea to the jurisdiction, and (3) granting summary judgment in favor of the Three Brothers on their request for a final partition. On October 17, 2022, the trial court signed an order severing the "the action for partition" from the other claims in the case and assigning the partition claim to a new trial-court cause number. This appeal followed. See Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex. 1994) (noting that "appellate timetable runs from the signing date of the order that made the judgment severed 'final' and appealable").
DISCUSSION
The Ranch Defendants have twice attempted to appeal the trial court's partition orders. In their first attempt, the Ranch Defendants filed a notice of appeal from the March 2019 partition order. See Fry Sons Ranch, Inc. v. Fry ("Fry I"), No. 03-19-00684-CV, 2020 Tex.App. LEXIS 8932, at *1 (Tex. App.-Austin Nov. 13, 2020, pet. denied) (mem. op.). In response, the Three Brothers filed a motion to dismiss, asserting that the notice of appeal was untimely and thus failed to invoke this Court's appellate jurisdiction. Id. at *2. In granting the motion to dismiss, we explained:
Unlike most other proceedings, a partition case involves two or more final appealable orders. This is because a partition proceeding is a multi-step process, and at each step decisions are made upon which other decisions will be based. An appeal at each step "provides a practical way to review controlling intermediate decisions before the consequences of any error do irreparable harm." Consequently, a trial court's order directing that property be partitioned is a final appealable order.Id. at *4 (internal citations omitted). Because the March 2019 partition order was a final and appealable order, the deadline for the Ranch Defendants to file their notice of appeal was June 4, 2019. Id. at *4-5 (citing Tex.R.App.P. 26.1(a) (when party timely files certain post-judgment motions, notice of appeal is due within 90 days after judgment is signed)). Because their notice of appeal was not filed until September 27, 2019, we dismissed the appeal for want of jurisdiction. Id. at *5.
In their second attempt, the Ranch Defendants filed a petition for permissive appeal. See also Tex. Civ. Prac. & Rem. Code § 51.014(d) (providing that trial court in civil action may "permit an appeal from an order that is not otherwise appealable if" certain requirements are satisfied). Specifically, the Ranch Defendants sought permission to appeal the trial court's June 2021 order. See Fry II, 2021 Tex.App. LEXIS 6859, at *1. In support of their petition in this Court, the Ranch Defendants argued that the Three Brothers, as shareholders, lacked standing to force a partition of the ranch property because only an owner or claimant of real property may compel a partition, and that as a result, the trial court lacked jurisdiction to partition the ranch, which was corporate-owned property. Id. In rejecting this argument, this Court concluded that "although framed as an issue of standing," the Ranch Defendants' argument was properly characterized as a challenge to the capacity of the Three Brothers to bring a suit for partition and, consequently, did not implicate the trial court's jurisdiction to decide the dispute. Id. at *4-5 (citing Freeman v. Formosa Mgmt., LLC, No. 01-15-00907-CV, 2016 Tex.App. LEXIS 12365, at *14 (Tex. App.-Houston [1st Dist.] Nov. 17, 2016, pet. denied) (mem. op.)). In addition, the issue of the Three Brothers' interest in the ranch property was an element of their partition claim and had been decided by the trial court in its March 2019 partition order. Id. at *5. Thus, to the extent the Ranch Defendants sought permission to challenge the June 2021 order on the ground that the Three Brothers lack ownership interests in the ranch property, we concluded that the ground "constitute[d] an impermissible collateral attack on the [March 2019] partition order." Id. at *5-6. Consequently, we denied the petition for permissive appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(g) (providing that if court of appeals does not accept permissive appeal, "the court shall state in its decision the specific reason that the appeal is not warranted").
Now, in three appellate issues, the Ranch Defendants again challenge the trial court's June 2021 partition order. In their first issue, the Ranch Defendants challenge the "standing" of the Three Brothers, as individual shareholders, to maintain their partition suit over corporate-owned real property. This "standing" argument is identical to that made by the Ranch Defendants in their prior attempt to appeal. See Fry II, 2021 Tex.App. LEXIS 6859, at *4. As discussed in our prior opinion, this argument is properly characterized as an issue of capacity to bring suit, not standing, see id. at *4-5, and the issue of whether the Three Brothers have a sufficient interest in the ranch property was an element of their partition claim, which was decided by the trial court in its March 2019 partition order, id. at *5; Freeman, 2016 Tex.App. LEXIS 12365, at *14 (concluding that claimant's "interest in the property is an element of his partition cause of action, but not a jurisdictional prerequisite").
In their second appellate issue, the Ranch Defendants argue that the trial court "lacks subject matter jurisdiction to order the partition and sale of real property under Texas Property Code [Section] 23.001 without a trespass to try title action being asserted, where the nature and extent of the ownership interests in the real property are disputed." See Tex. Prop. Code § 23.001 (providing 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"); see also id. § 22.001 (providing that "[a] trespass to try title action is the method of determining title to lands, tenements, or other real property"). Like their first argument, this argument goes to the issue of whether the Three Brothers established that they have an interest in the property sufficient to support a claim for partition and not to the trial court's jurisdiction to decide the claim. See Fry II, 2021 Tex.App. LEXIS 6859, at *4-5.
Because the issue of the Three Brothers' interests in the ranch property was decided by the trial court in issuing its March 2019 partition order, the Ranch Defendants' challenges to the June 2021 partition order on grounds that the Three Brothers lack "standing" as individual shareholders and that they failed to establish their ownership interest through a trespass-to-try-title claim constitute impermissible collateral attacks on the March 2019 partition order. See id. at *2; Jimmie Luecke Children P'ship, 2013 Tex.App. LEXIS 10362, at *6 (explaining that "[t]wo judgments are rendered in a partition suit" and "[m]atters decided in the interlocutory decree [on partition] cannot be reviewed in an appeal from the final decree"). Accordingly, the first and second issues on appeal are overruled.
Finally, in their third issue, the Ranch Defendants contend that the "trial court abused its discretion by determining the property interest of the intestate heirs of Joseph Nathan Fry, dividing the property interests of those intestate heirs . . . without Due Process." The Ranch Defendants do not cite any portion of the record or any legal authority to support this argument. In addition, the June 2021 order, adopting the commissioners' report, states that "Parcel 1 is allotted to James Andy Fry and Parcel 2 is allotted to Joseph Nathan Fry, Press Allen Fry, and Edward Heath Fry in undivided equal shares," and the "Suggestion of Death" later filed by the Ranch Defendants states that Joseph Nathan Fry died on December 3, 2021. The Ranch Defendants fail to explain, and we fail to see, how the trial court "determined the property interest of the intestate heirs" of Joseph Nathan Fry in its June 2021 partition order, more than five months before his death. The third issue on appeal is overruled.
CONCLUSION
Having overruled all of appellants' issues, we affirm the trial court's judgment.
Affirmed.