Opinion
No. 10-06-00371-CV
Opinion delivered and filed December 12, 2007.
Appeal from the County Court at Law No. 1, Brazos County, Texas Trial Court No. 06-000873-CV-CCL1.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
This is a suit involving the partition of real property. Margaret M.W. Taplin's father owned certain property in Brazos County, Texas. After his death, each of his eight children inherited an undivided interest in the property. Peach Creek Partners, Ltd. purchased all but Taplin's interest. After failed attempts to purchase Taplin's interest, Peach Creek filed a partition suit alleging that the property cannot be fairly and equitably divided because division into parcels would "cause the value of the Property to be substantially less than its value when whole." After a bench trial, the trial court ordered a partition by sale. Taplin appeals. We affirm.
PARTITION
In her pro se brief, Taplin requests return of the property. Peach Creek responds that (1) Taplin has not presented "any specific occurrence or ruling which was properly preserved and shown to be erroneous;" (2) a separate condemnation action is ongoing between Taplin, Peach Creek, and the State of Texas; (3) Taplin and Peach Creek were unable to reach an agreement regarding the purchase of Taplin's interest; and (4) Taplin may bid on the property at public sale. We construe Taplin's brief as a challenge to the trial court's judgment ordering partition by sale.
The property originally consisted of approximately 62.56 acres, but a condemnation suit reduced the property to approximately 57.81 acres. The portion of the property subject to the condemnation suit is not at issue in this case.
Applicable Law
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." TEX. PROP. CODE. ANN. § 23.001 (Vernon 2000). When a party seeks partition, 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." TEX. R. CIV. P. 760. 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. "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.
"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.). 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.
If the property can be divided in kind without materially impairing its value, a sale will not be ordered, but when dividing the land into parcels causes its value to be substantially less than its value when whole, the rights of the owners are substantially prejudiced. Substantial economic loss is one of the significant factors that would warrant a sale in lieu of a partition in kind.
Id. at 855. Whether property "can fairly be partitioned in kind is a question of fact for the court or jury to decide." Id. at 853.
Analysis
At trial, Peach Creek introduced certified copies of deeds establishing its ownership of an 87.5 percent interest in the property and Taplin's ownership of a 12.5 percent interest. Peach Creek also presented tax records and checks indicating that it had paid taxes on the property, as well as delinquent taxes owed on Taplin's interest. John McFarlane, president of Peach Creek's general partner, testified that Peach Creek attempted to purchase Taplin's interest, but no agreement could be reached. Peach Creek has not developed the property.
Certified real estate appraiser James Michael Duncum analyzed the tract to determine "how it could be equitably partitioned so that both landowners would not end up on the short end of the stick or that the remainder, if you cut out one-eighth of the tract, how would the remaining seven-eighths be affected." He identified four factors affecting partition of the property: (1) a hundred-year floodplain is located along a portion of the property; (2) an oil well pad site exists on the property; (3) the highway department has limited the access to a portion of the property; and (4) a gas pipeline exists on the property. In Duncum's opinion, these four factors prevented him from finding an equitable way to partition the property:
The tract is going to have values generally ranging from the highest value along the frontage to the least amount of value towards the back. In this case, one-eighth interest is about 7.23 acres; and to find a 7.23-acre tract out of the 5 — out of the 57.81 acres that would either maintain a value similar to the remainder on a unit price is — in my opinion, cannot be done on that tract.
Duncum testified that "the one-eighth would more than likely be very skinny and deep with limited development potential; or if it were moved around, it would affect the access and exposure of the remaining seven-eighth of the tract." He believed that cutting out a one-eighth portion from the whole tract would "cause a substantial economic loss" and partition would not be fair to either party because one portion would be damaged, whereas the remaining portion would not.
The trial court found that: (1) Peach Creek and Taplin are the sole owners of the property; (2) Peach Creek owns an undivided 87.5 percent interest in the property; (3) Taplin owns an undivided 12.5 percent interest in the property; and (4) the property is "not susceptible to fair and equitable partition in kind." The trial court ordered that a receiver be appointed to sell the property at a public sale and that the proceeds of the sale be distributed to Peach Creek and Taplin according to their respective interests.
We cannot say that the trial court's findings are in error. In light of Duncum's uncontroverted testimony, Peach Creek established that dividing the property into parcels would cause "its value to be substantially less than its value when whole" and result in a "substantial economic loss." Cecola, 12 S.W.3d at 855. In doing so, Peach Creek established that a partition in kind would be inequitable and unfair. See id. at 853-54, 856. We overrule Taplin's request for return of the property.
As the trial court noted, Taplin may be able to obtain return of the property by seeking to purchase the property herself at the public sale.
MOTION FOR DAMAGES FOR FRIVOLOUS APPEAL
Peach Creek has filed a "Motion for Damages for Frivolous Appeal," alleging that Taplin failed to raise reasonable grounds for reversal, "specific occurrence[s] or ruling[s]" that were "properly preserved" and erroneous, or "well-researched, arguable issues" supported by record references or citations to legal authority.
An appellate court may award damages for frivolous appeals. See TEX. R. APP. P. 45. Imposition of damages is a matter within our discretion, "which we exercise with prudence and caution, and only after careful deliberation." Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex.App.-Houston [14th Dist.] 2000, no pet.). "[W]e carefully consider the record from the appellant's point of view at the time the appeal was filed." Chapman v. Hootman, 999 S.W.2d 118, 124 (Tex.App.-Houston [14th Dist.] 1999, no pet.). "Where an appellant's argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed, good-faith challenge to the trial court's judgment, sanctions are not appropriate." Id.
Taplin is a "pro se litigant apparently unfamiliar with the intricacies of appellate advocacy." Yazdchi v. Chesney, No. 14-05-00817-CV, 2007 Tex. App. Lexis 615, at *7 (Tex.App.-Houston [14th Dist.] Jan. 30, 2007, no pet.) (mem. op.). "While this status does not necessarily excuse improper briefing, it does suggest that it was not the product of bad faith." Id. Accordingly, we decline to award sanctions under these circumstances. See id. Peach Creek's motion for damages is denied.
"[B]ad faith" is not required, but "may be relevant in determining the amount of damages." Compass Exploration, Inc. v. B-E Drilling Co., 60 S.W.3d 273, 279 (Tex.App.-Waco 2001, no pet.).
The trial court's judgment is affirmed.