Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 11/13/2015 11:37:43 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00004-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 11/13/2015 11:37:43 AM DEBBIE AUTREY CLERK
No. 06-15-00004-CV
IN THE
COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA, TEXAS __ __________________
BILLIE MURPHY TREMBLE, SHARON TREMBLE DONALDSON, SELIA TREMBLE SHAWKEY, WILMER FORREST TREMBLE, JR.,
AND THE ESTATE OF WILMER FORREST TREMBLE, SR., Appellants,
V. LUMINANT MINING COMPANY LLC, ENERGY FUTURE HOLDINGS CORPORATION, AND SUBSIDIARIES, Appellees.
On Appeal from the 4 th District Court Rusk County, Texas
Trial Court No. 2013-390 BRIEF OF APPELLEES
Jackson, Sjoberg, McCarthy & Townsend, LLP David E. Jackson
State Bar No. 10458500 djackson@jacksonsjoberg.com Marc O. Knisely
State Bar No. 11614500 mknisely@jacksonsjoberg.com 711 W. 7 th Street
Austin, Texas 78701
(512) 472-7600
(512) 225-5565 FAX
ATTORNEYS FOR APPELLEES November 13, 2015 *2
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
INDEX OF AUTHORITIES .................................................................................... iii
STATEMENT OF THE CASE .................................................................................. vi
STATEMENT REGARDING ORAL ARGUMENT .............................................. vii
ISSUES PRESENTED ........................................................................................... viii
STATEMENT OF FACTS ......................................................................................... 1
SUMMARY OF THE ARGUMENT ....................................................................... 10
ARGUMENT .......................................................................................................... 11
I. The Tremble Descendants lack standing to
bring this appeal .................................................................................. 11 II. Mrs. Tremble fails to assert reversible error ....................................... 13 III. Several entities are not proper parties
on appeal .............................................................................................. 21 CONCLUSION AND PRAYER ............................................................................. 22
CERTIFICATE OF SERVICE ................................................................................ 24
CERTIFICATE OF COMPLIANCE........................................................................ 24
APPENDIX A October 8, 2014 Final Judgment (first-phase judgment)
APPENDIX B December 16, 2014 Final Judgment (second-phase judgment)
- i - *3 IDENTITY OF PARTIES AND COUNSEL Defendants/Appellants:
Billie Murphy Tremble, Sharon Tremble Donaldson, Selia Tremble Shawkey, and
Wilmer Forrest Tremble, Jr., were Defendants in the trial court and are Appellants.
CR 6. The foregoing Appellants also named the Estate of Wilmer Forrest Tremble,
Sr., as an Appellant in their Notice of Appeal, CR 184, but the Estate was not a
Defendant in the trial court.
Counsel for Defendants/Appellants:
The Appellants who were Defendants appeared pro se in the trial court, and
Appellants are pro se in this court.
Plaintiff/Appellees:
Luminant Mining Company LLC was the Plaintiff in the trial court and is Appellee
in this Court. CR 6. Appellants also named Energy Future Holdings Corporation
and "Subsidiaries" as Appellees in their Notice of Appeal, CR 184, but neither
Energy Future Holdings Corporation nor Subsidiaries were Plaintiffs in the trial
court.
Counsel for Plaintiff/Appellees:
David E. Jackson
Marc O. Knisely
Jackson, Sjoberg, McCarthy & Townsend, LLP
711 W. 7 th Street
Austin, Texas 78701
(512) 472-7600
(512) 225-5565 FAX
djackson@jacksonsjoberg.com
mknisely@jacksonsjoberg.com
- ii -
INDEX OF AUTHORITIES Texas Cases
Barstow v. State ,
742 S.W.2d 495 (Tex. App. – Austin 1987, writ denied) .................................... 6 Bilbo Freight Lines, Inc. v. State of Texas ,
645 S.W.2d 925 (Tex. App. – Austin 1983, writ dism'd w.o.j.) ................... 13, 21 Browning v. Prostok,
165 S.W.3d 336 (Tex. 2005) .............................................................................. 15 Burbage v. Burbage ,
447 S.W.3d 249 (Tex. 2014) .............................................................................. 16 Burkitt v. Broyles ,
340 S.W.2d 822 (Tex. Civ. App. – Waco 1960, writ ref'd n.r.e.) ....................... 17 Cannon v. Hemphill ,
7 Tex. 184 (Tex. 1851) ....................................................................................... 17 Champion v. Robinson,
392 S.W.3d 118 (Tex. App. – Texarkana 2012, pet. denied) ....................... 3, 19 Drake v. Chase Bank ,
No. 02-13-00340-CV, 2014 Tex. App. LEXIS 12572, at *3 (Tex.
App. – Fort Worth Nov. 20, 2014, no pet.) ........................................................ 20 Gardner v. Union Bank & Trust Co. of Fort Worth ,
176 S.W.2d 789 (Tex. Civ. App. – Fort Worth 1943, no writ) .......................... 19 Goldberg v. Zinn ,
No. 14-11-01091-CV, 2013 Tex. App. LEXIS 6867, *18 (Tex. App. – Houston [14 th Dist.] 2013, no pet.) ................................................ 15 Griffin v. Wolfe ,
610 S.W.2d 466 (Tex. 1980) ........................................................................... 3, 8 Gunn v. Cavanaugh ,
391 S.W.2d 723 (Tex. 1965) .............................................................................. 12 - iii -
Heller v. Heller ,
269 S.W. 771 (1925) ............................................................................................ 6 Henson v. Estate of Bruce L. Crow,
734 S.W.2d 648 (Tex. 1987) .............................................................................. 21 Hershey v. Duncan ,
No. 13-01-688-CV, 2004 Tex. App. LEXIS 9784, at *8 (Tex. App. – Corpus Christi 2004, pet. denied) .................................................. 3 Homeowners' Loan Corp. v. Cilley ,
125 S.W.2d 313 (Tex. Civ. App. – Amarillo 1939, writ ref'd) ............................. 5 In re B.L.D. ,
113 S.W.3d 340 (Tex. 2003) .............................................................................. 16 In re Estate of Velvin ,
No. 06-13-00028-CV, 2013 Tex. App. LEXIS 12267, *16 (Tex. App. – Texarkana 2013, no pet.) ............................................................... 13 In re Lumbermens Mutual Casualty Company ,
184 S.W.3d 718 (Tex. 2006, orig. proceeding) .......................................... 12, 21 Lake v. Reid ,
252 S.W.2d 978 (Tex. Civ. App. – Texarkana 1952, no writ) .............................. 6 Malone v. Malone ,
No. 06-10-00083-CV, 2011 Tex. App. LEXIS 98, *10, n. 5 (Tex. App. – Texarkana 2011, no pet.) ........................................................ 12, 16 Marmion v. Wells ,
46 S.W.2d 704 (Tex. Civ. App. – San Antonio 1952, writ ref'd) .......... 11, 14, 16 Martin v. Dosohs I, Ltd. ,
951 S.W.2d 821 (Tex. App. – San Antonio 1997, no pet.) .............................. 16 Miesch v. Anderson ,
90 S.W.2d 314 (Tex. Civ. App. – Texarkana 1936, no writ) . .............................. 3 Pain Control Institute, Inc. v. Geico General Insurance Company ,
447 S.W.3d 893 (Tex. App. – Dallas 2014, no pet.) .......................................... 20 - iv -
Peterson v. Fowler ,
11 S.W. 534 (Tex. 1889) ..................................................................................... 6 Pfeffer v. Pfeffer,
269 S.W.2d 436 (Tex. Civ. App. – Galveston 1954, writ ref’d n.r.e.) .............. 12 Snow v. Donelson ,
242 S.W.3d 570 (Tex. App. – Waco 2007, no pet.) ........................................... 14 Thomas v. Southwestern Settlement & Development Company ,
123 S.W.2d 290 (Tex. 1939) ............................................................................... 5 Torrington Company v. Stutzman ,
46 S.W.3d 829 (Tex. 2000) ............................................................................... 12 White v. Mitchell ,
60 Tex. 164 (Tex. 1883) .................................................................................... 11 Woodhead v. Good ,
27 S.W.2d 374 (Tex. Civ. App. – Eastland 1930, no writ) ................................ 15 Rules
T EX . R. A PP . P. 42.3(a) ........................................................................................... 22
Tex. R. Civ. P. 760 .................................................................................................... 3
Tex. R. Civ. P. 761 .................................................................................................... 3
Tex. R. Civ. P. 770 .................................................................................................... 3
Other
3 William V. Dorsaneo, III, Texas Litigation Guide § 43.30[3] (2015) .................. 18
- v - *7 STATEMENT OF THE CASE Nature of the case: Plaintiff/Appellee Luminant Mining Company LLC
("Luminant") brought this suit for partition by sale of a tract of about 25.326 acres of land ("the Property"). CR 6, 8. Appellants Billie Murphy Tremble, Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr., were defendants in the trial court. CR 6. The Honorable J. Clay Gossett, Judge Presiding, in the
Trial Court:
4 th District Court, Rusk County, Texas Course of Proceedings: In accordance with standard procedure in partition
suits, the District Court rendered two final judgments. Luminant moved for summary judgment on the first- phase partition issues, and on October 8, 2014, the District Court signed the first judgment. CR 111, 190; see copy of judgment attached as Appendix A. On December 16, 2014, following a hearing, the District Court signed the second judgment. CR 239; see copy of judgment attached as Appendix B.
Trial Court Disposition: In the first judgment, the court (i) decided that
Appellants Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. did not own any interest in the Property; (ii) determined the interests or shares owned by other parties, including Luminant and Appellant Billie Murphy Tremble; (iii) concluded that the Property could not be fairly and equitably partitioned in kind and thus should be sold; and (iv) appointed a receiver to conduct a sale of the Property. CR 190. No party appealed that judgment. In the second final judgment, the District Court confirmed and approved the sale of the Property to Luminant, which was the highest bidder at above market price. CR 239, 201-202, 206-207.
- vi - *8 STATEMENT REGARDING ORAL ARGUMENT Appellants did not request oral argument, and Appellees concur that oral argument will not aid this Court's decisional process in this appeal from the District
Court's second-phase partition judgment. The record is restricted to a clerk's
record of about 250 pages, including an unappealed first-phase final judgment and
undisputed summary judgment evidence. The legal issues are straightforward and
readily resolvable under long-settled principles and authorities: The first-phase
judgment is final in all respects, and it bars three of the four Appellants' attempts to
appeal and most of the fourth Appellant's apparent appellate complaints; and, to the
extent the fourth Appellant, Mrs. Tremble, complains about the second-phase
judgment, she failed to preserve the complaints and the judgment is patently error-
free. Finally, submission on the briefs will spare the Court and the parties time and
costs.
- vii -
ISSUES PRESENTED
This appeal is from the second of two sequential final judgments in a partition suit in which Luminant Mining Company LLC ("Luminant"), Appellee
here, was Plaintiff, Appellants Billie Murphy Tremble, Sharon Tremble Donaldson,
Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr., were Defendants, and
Luminant sought partition by sale of a 25.326-acre tract of land ("the Property").
CR 6, 8. In the first-phase final judgment, the District Court: (i) decided that
Appellants Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer
Forrest Tremble, Jr. did not own any interest in the Property; (ii) determined the
interests or shares owned by Luminant, Appellant Billie Murphy Tremble, and
other parties; (iii) concluded that the Property could not be fairly and equitably
partitioned in kind and thus should be sold; and (iv) appointed a receiver to
conduct a sale of the Property. CR 190; Appendix A. No party appealed that
judgment. In the second-phase final judgment, the District Court approved the sale
of the Property to Luminant at above market value. CR 239; Appendix B.
The issues in this appeal are:
(1) Whether Appellants Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. lack standing to bring this appeal from
the second-phase judgment because they own no interest in the Property, as
determined in the unappealed first-phase final judgment;
- viii - *10 (2) Whether Appellant Billie Murphy Tremble has failed to preserve or establish any reversible error in the second-phase judgment, and more specifically
(a) Whether claimed errors are at least largely barred by the unappealed first-phase final judgment and are otherwise entirely barred by Mrs. Tremble’s failure to preserve them in the trial court; but even if further considered;
(b) Whether a claim of error cannot be asserted under the Uniform Partition of Heirs Property Act because Texas has not enacted a version of that Act; and
(c) Whether the District Court did not commit reversible error by confirming and approving the sale of the Property; and (3) Whether the Estate of Wilmer Forrest Tremble, Sr. cannot be named as an Appellant and Energy Future Holdings Corporation and "Subsidiaries" cannot
be named as Appellees because they were not parties in the trial court.
- ix -
STATEMENT OF FACTS
This appeal arises from the second of two final judgments in a partition suit brought by Plaintiff/Appellee Luminant Mining Company LLC ("Luminant") and
against Defendants/Appellants Billie Murphy Tremble, Sharon Tremble
Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. ("the Tremble
Family"). [1] Billie Murphy Tremble ("Mrs. Tremble") is the mother of Sharon
Tremble Donaldson, Selia Tremble Shawkey, and Wilmer Forrest Tremble, Jr. ("the
Tremble Descendants"). CR 137-38. The property at issue is the surface estate
(including all coal, lignite, and other near surface minerals, but excluding the oil,
gas, and all other liquid and gaseous hydrocarbons produced with the oil and gas)
in a tract of land in Rusk County containing 25.326 acres ("the Property"). CR 8-9.
For some time before 2013, Luminant and a number of people owned undivided interests as cotenants in the Property. Before Luminant filed the
partition suit in November 2013, Luminant had purchased a significant majority of
the undivided ownership interest in the Property – about 84 percent. CR 9. The
remaining approximately 16 percent was attributable to the Tremble Family
interest (about 1.56 percent), discussed further below, and to interests of varying
percentages owned by nine other people. Id.
*12 Among the undivided interests in the Property acquired by Luminant was that owned by Emma Jean Tremble Smith. CR 152, 161, 178-83. Ms. Smith
deeded her undivided interest in the Property to Luminant on December 29, 2010.
CR 161, 179. Emma Jean Tremble Smith is the sister of Wilmer F. Tremble, Sr.,
deceased, who in turn was the husband of Mrs. Tremble and the father of the
Tremble Descendants. CR 137-38, 151.
Luminant filed this suit in District Court on November 26, 2013. CR 6.
Partition of real property in Texas can be either in-kind or, under certain
circumstances, by sale. Luminant pleaded circumstances supporting partition by
sale and requested that relief. CR 8-11.
When Luminant filed suit, the title information available to Luminant indicated that Wilmer F. Tremble, Sr., husband of Mrs. Tremble and father of the
Tremble Descendants, previously had owned an undivided interest in the Property
(about 1.56 percent), but that he was deceased. CR 8-9, 113-14, 137-38, 154-55,
159-60. The available title information further indicated that Wilmer F. Tremble,
Sr. had died intestate and that his undivided interest in the Property thus was then-
currently owned in equal shares by the Tremble Descendants, with a one-third life
estate interest in his wife, Mrs. Tremble. Id .
Accordingly, Luminant named as Defendants all four members of the Tremble Family, and credited the interest formerly owned by Wilmer F. Tremble,
Sr. to each of them, respectively, as just stated. CR 8-9. The Tremble Family
members each filed answers in which they all claimed to own interests in the
Property, without specifying the nature or percentage of their claimed interests, and
in which they disputed the percentage interest owned by Luminant. CR 43-46.
A partition proceeding is a two-step process, with two final orders or judgments. Griffin v. Wolfe , 610 S.W.2d 466 (Tex. 1980) ("A partition case, unlike
other proceedings, has two final judgments and the first one is appealable as a final
judgment."); Champion v. Robinson , 392 S.W.3d 118, 127 (Tex. App. – Texarkana
2012, pet. denied). "In the first step, the trial court determines (1) the share or
interests of each of the owners; (2) all questions of law or equity affecting the title
to the land; and (3) whether the property is susceptible to partition or is the subject
of a sale." Hershey v. Duncan , No. 13-01-688-CV, 2004 Tex. App. LEXIS 9784, at
*8 (Tex. App. – Corpus Christi 2004, pet. denied); Champion , 392 S.W.3d at 127;
Tex. R. Civ. P. 760, 761, 770. If partition by sale is ordered, as Luminant
requested, the second step is for the court to decide whether to confirm the sale and
to order distribution of the sale proceeds. Miesch v. Anderson , 90 S.W.2d 314,
316-17 (Tex. Civ. App. – Texarkana 1936, no writ).
Luminant moved for summary judgment on the first-phase partition issues on July 23, 2014. CR 111-29. Luminant sought summary judgment on all of the
first-phase partition issues, including the share or interest of each of the owners, all
questions of law or equity affecting title to the Property, and a determination that
the Property should be partitioned by sale. Id .
The Tremble Family filed a response to Luminant's motion for summary judgment on the first-phase issues on August 26, 2014. CR 133-36. The response
raised two issues, one explicitly and the other implicitly. First, the Tremble Family
contended that the December 2010 deed from Emma Jean Tremble Smith (sister of
Wilmer F. Tremble, Sr.) to Luminant was fraudulent. Id . Second, the Tremble
Family attached to their response a will by Wilmer F. Tremble, Sr. that was
unknown to Luminant and that thus altered the status of undivided ownership
among the members of the Tremble Family from that previously understood by
Luminant – although the Tremble Family's response was silent about the effect of
the will. CR 134, 142-44.
Luminant replied as to both issues raised by the Tremble Family's summary judgment response. CR 150-83. First, Luminant conclusively refuted both the
factual and legal bases for the Tremble Family's contention that the December
2010 Smith to Luminant deed was fraudulent. The Tremble Family argued that the
deed was fraudulent because it conveyed or purported to convey to Luminant not
only Ms. Smith's interest in the Property, but also 100 percent of the Tremble
Family's interest, and because the deed was "concealed from" and made "without
knowledge or consent" of the Tremble Family. CR 133-36, 151.
The fraud claim was curious in that Luminant never contended that the deed from Emma Jean Tremble Smith conveyed the Tremble Family’s interest in the
Property, in addition to Ms. Smith’s interest. Luminant’s partition petition
acknowledged the Tremble Family’s interest, distributed among Mrs. Tremble and
the Tremble Descendants in accordance with Luminant’s then-existing
understanding of their respective shares, and Luminant’s motion for summary
judgment sought judgment crediting the Tremble Family with those respective
shares. CR 8-9, 113-14.
Nonetheless, Luminant pointed out that, even if Emma Jean Tremble Smith had attempted to convey an interest in the Property beyond what she owned, the
Tremble Family would not have been "defrauded" by the deed, because the deed
could legally convey "such interest, and only such interest, in the land as the maker
of the deed possesses." Thomas v. Southwestern Settlement & Development Co. ,
123 S.W.2d 290, 297 (Tex. 1939); see also Homeowners' Loan Corp. v. Cilley , 125
S.W.2d 313, 316 (Tex. Civ. App. – Amarillo 1939, writ ref'd) ("[T]he general rule
is that one tenant in common cannot by his sole act sell or encumber more than his
portion of the common property."). Furthermore, Ms. Smith in fact conveyed only,
in the deed's words, "all of my undivided interest" in the Property. CR 152-54,
178. She did not convey or purport to convey any interest in the Property greater
than that which she owned.
The Tremble Family also was mistaken in arguing that the deed somehow was rendered "fraudulent," as to them or their interest, by virtue of the fact that Ms.
Smith did not notify them about her conveyance or obtain their consent to or
joinder in the deed. For well over a century, Texas courts have held that a cotenant
may convey her interest in real property without the consent or knowledge of her
cotenants. Peterson v. Fowler , 11 S.W. 534, 535 (Tex. 1889); Heller v. Heller , 269
S.W. 771, 776 (Tex. 1925) ("As a tenant in common, Mrs. Heller had the right to
sell off any particular part of the entire community estate, just so long as her deed
did not injure the rights of the other children to secure their part of the estate.");
Lake v. Reid , 252 S.W.2d 978, 982 (Tex. Civ. App. – Texarkana 1952, no writ)
("The rule is well known that each cotenant may freely assign or convey his
interest in the common property, 'and his assignee or vendee at once becomes the
owner of the interest conveyed, and as such, as a matter of law, a cotenant with the
former cotenants of his vendor, and entitled to all the rights of any cotenant,
including the rights of possession and re-sale.'"); Barstow v. State , 742 S.W.2d 495,
508 (Tex. App. – Austin 1987, writ denied) ("One cotenant may freely convey his
interest in the common property as long as he does not prejudice the rights of his
cotenants in the premises," citing Peterson v. Fowler and Lake v. Reid ). CR 153-
54.
Finally, neither Luminant nor Emma Jean Tremble Smith "concealed" the deed. Instead, they recorded the deed in public records shortly after its execution.
CR 154, 161, 183.
As to the second issue raised implicitly by the Tremble Family's summary judgment response – the title implications of Wilmer F. Tremble, Sr.'s will –
Luminant first learned of the will's existence when it received the response. CR
154-55, 159-60. The will had been probated in Harrison County, but had not been
filed in the deed records in Rusk County, where the Property is located. CR 142-
44, 159-60. Furthermore, an affidavit of heirship that had been filed in the deed
records in Rusk County, and that Luminant had relied on, stated that Wilmer F.
Tremble, Sr. had died intestate. CR 137, 154-55, 159-60.
In his will, however, Wilmer F. Tremble, Sr. bequeathed all of his property, real and personal, to his wife, Mrs. Tremble. CR 142. The Tremble Family's
summary judgment response therefore established that Mrs. Tremble, alone, owned
the entire undivided interest in the Property previously owned by her husband, and
that the Tremble Descendants did not own any interest in the Property. CR 142,
154-55, 160-61.
Consequently, Luminant filed a certified copy of the will in the Rusk County Deed Records and requested that the judgment rendered by the District Court on
the first-phase issues conform to the title evidence provided in the Tremble
Family's summary judgment response. CR 155-56, 160-61, 165-76. The Tremble
Family never questioned or challenged this request or the effect of Mr. Tremble,
Sr.’s will on their title, or lack of title, to the Property.
The District Court rendered judgment adjudicating the first-phase partition issues on October 8, 2014. CR 190; see copy of judgment attached to this brief as
Appendix A. The court adjudged and decreed that the Tremble Descendants did
not own any interest in the Property and thus were not cotenants. CR 191. In
accordance with the evidence established by the Tremble Family's summary
judgment response, the District Court credited Mrs. Tremble with the entire
undivided interest previously owned by her husband, Wilmer F. Tremble, Sr. Id .
The District Court also determined that the Property was not susceptible to
partition in kind and should be sold, and appointed a receiver to conduct the sale.
CR 190-92.
As was stated above, each of the two judgments in a partition suit is a final judgment. Griffin , 610 S.W.2d at 466. The October 2014 judgment thus was final
for appeal purposes when it was signed. The Tremble Family did not seek any
post-judgment trial court relief from the October 2014 judgment, nor did they
appeal the judgment.
The receiver thereafter advertised the sale of the Property, solicited offers, and received bids, as directed by the District Court in the first judgment. CR 192,
206. Luminant was one of two bidders, and its offer was substantially higher than
both the other offer and the fair market value established by an unchallenged and
undisputed appraisal. CR 128-29, 201-202, 206-207. The receiver recommended
that the District Court confirm and approve the sale of the Property to Luminant in
accordance with Luminant's offer and contract. CR 207.
On December 4, 2014, Luminant moved for judgment confirming the sale of the Property, ordering payment of the sale proceeds to the parties in accordance
with their ownership interests in the Property determined by the first-phase
judgment, and granting related relief finalizing the second-phase partition issues.
CR 200-203. The Tremble Family did not respond to Luminant's motion or object
in any way to the relief requested in the motion.
The District Court held a hearing on Luminant’s unopposed motion for judgment, then rendered judgment finally disposing of all second-phase partition
issues, including confirmation of the receiver's sale of the Property, on December
16, 2014. CR 199, 239-41; see copy of judgment attached to this brief as
Appendix B. The Tremble Family did not appear at the hearing in opposition to
the motion, file any post-judgment motion, or object in any way to the judgment,
but they filed a notice of appeal from the judgment on January 16, 2015. CR 184.
In their notice of appeal, the Tremble Family named the Estate of Wilmer Forrest Tremble, Sr. as an Appellant, id. ; neither the Estate nor a representative of
the Estate was a party in district court. The Tremble Family also named Energy
Future Holdings Corporation and "Subsidiaries" as Appellees, in addition to
Luminant, id ; neither Energy Future Holdings Corporation nor any subsidiary was
a party in district court.
SUMMARY OF THE ARGUMENT The Tremble Family's arguments in this appeal are so succinct and skeletal that they are difficult to ascertain precisely. In accordance with Luminant's
understanding of those arguments, and the issues they pose, Luminant responds as
follows:
(1) The District Court's first-phase judgment determined that the Tremble Descendants – Sharon Tremble Donaldson, Selia Tremble Shawkey, and Wilmer
Forrest Tremble, Jr. – did not own any interest in the Property. These parties did
not appeal that judgment, and the judgment became final for all purposes. The
Tremble Descendants therefore do not have standing to bring this appeal, which
can properly challenge only the second-phase judgment.
(2) Billie Murphy Tremble does have standing to appeal. Her complaints, however, appear to be directed largely to the first-phase judgment and the issues
decided by that judgment. Because that judgment became final in all respects,
complaints about it are barred. In addition, Mrs. Tremble never preserved any
complaint about the second-phase judgment. For these and other reasons, Mrs.
Tremble's complaints do not present any reversible error.
(3) The Estate of Wilmer Forrest Tremble, Sr. was not a defendant in the trial court, and Energy Future Holdings Corporation and "Subsidiaries" were not
plaintiffs. The Estate therefore is not a proper appellant, and the corporation and
its subsidiaries are not proper appellees.
ARGUMENT
I.
The Tremble Descendants lack standing to bring this appeal. In the first-phase judgment, the District Court determined that the Tremble Descendants do not own any interest in the Property. CR 190-91; Appendix A.
This determination was based on the evidence presented by the Tremble Family –
the will of Wilmer Forrest Tremble, Sr. – which established that Mrs. Tremble
owned all of the interest in the Property that previously had been owned by her
husband. CR 133-34, 142.
No one appealed the first-phase judgment, and, because partition suits produce two final judgments, the earlier judgment thus became final for all
purposes. For that reason, too, the first-phase judgment cannot be challenged in an
appeal from the second-phase judgment, and the former judgment "must be held
conclusive of the rights of the parties." White v. Mitchell , 60 Tex. 164, 165 (Tex.
1883); Marmion v. Wells , 246 S.W.2d 704, 705 (Tex. Civ. App. – San Antonio
1952, writ ref'd) ("It is well settled that upon an appeal from the second or final
decree matters determined by the first or interlocutory decree cannot be
reviewed…."); Pfeffer v. Pfeffer, 269 S.W.2d 436, 438 (Tex. Civ. App. – Galveston
1954, writ ref’d n.r.e.) (unappealed first-phase judgment determining interests and
ordering sale “was conclusive against the claims of appellants to any interest in
the” property, in appeal from second judgment approving sale); Malone v. Malone ,
No. 06-10-00083-CV, 2011 Tex. App. LEXIS 98, *10, n. 5 (Tex. App. – Texarkana
2011, no pet.).
As to the second-phase judgment, the Tremble Descendants essentially have the same status as a non-party, and, generally, a non-party cannot exercise the right
to appeal. In re Lumbermens Mutual Casualty Co. , 184 S.W.3d 718, 723 (Tex.
2006, orig. proceeding) ("Generally, only parties of record may appeal a trial
court's judgment."); Gunn v. Cavanaugh , 391 S.W.2d 723, 724 (Tex. 1965) ("The
general rule is that the remedy by appeal in the usual form, or by writ of error, is
available only to parties of record…."). Furthermore, even if the Tremble
Descendants technically remained as parties to the suit after the first-phase
judgment became final and unappealable, they have no standing to complain about
the second-phase judgment, which does not affect any of their rights or interests.
Torrington Co. v. Stutzman , 46 S.W.3d 829, 843 (Tex. 2000) ("Texas courts have
long held that an appealing party may not complain of errors that do not injuriously
affect it or that merely affect the rights of others."); In re Estate of Velvin , No. 06-
13-00028-CV, 2013 Tex. App. LEXIS 12267, *16 (Tex. App. – Texarkana 2013, no
pet.) ("Demond is not a party to this appeal, lacks a general justiciable interest, and
cannot complain about errors which do not injuriously affect him," and, with
limited exceptions, he "lacks standing to bring an appeal.").
Because the Tremble Descendants do not have standing to appeal, their appeal should be dismissed. Bilbo Freight Lines, Inc. v. State of Texas , 645 S.W.2d
925, 927-28 (Tex. App. – Austin 1983, writ dism'd w.o.j.).
II.
Mrs. Tremble fails to assert reversible error. Mrs. Tremble's issues include: whether she was denied rights under the Uniform Partition of Heirs Property Act ("the Uniform Act") (Issue I); whether the
District Court erred by signing the "Final Judgment without an open hearing to
consider the evidence" and by "omit[ting] " her "from any of the decision making
processes" (Issues II and III); and whether there was "error in the auctioning of [the
Property]" (Issue IV). Appellants' Brief, p. 3; for information about the Uniform
Act, see www.uniformlaws.org (listed under “Acts” on home page). Mrs. Tremble
next makes reference to the Uniform Act, to information about the Property that
"was not known to" her, and to "a closed civil trial," and the latter reference
appears to be directed at both the first-phase and second-phase judgments. Id . at p.
4.
Mrs. Tremble's statement of facts and argument focus exclusively on allegations about Ms. Smith’s deed – the same allegations that the Tremble Family
made in their response to Luminant's motion for summary judgment on the first-
phase issues. Id . at pp. 4-5. Mrs. Tremble states that Luminant filed suit claiming
that it "has 100% ownership claim in [the Tremble Family's] undivided, inherited,
heir property," by virtue of the deed from Emma Jean Tremble Smith to Luminant.
Id . at p. 5. Mrs. Tremble continues, "Ms. Smith is not nor has she ever been the
Executor of the Estate [of Wilmer Forrest Tremble, Sr.], Administrator, nor
Trustee." Id . Finally, Mrs. Tremble argues that she and the Tremble Descendants
"by law were not privy to pertinent information from" Luminant. Id . at p. 6.
For several reasons, Mrs. Tremble's complaints fall short. First, the complaints discussed in Mrs. Tremble’s statement of facts and argument are barred
because they relate solely to the first-phase issues and judgment. The Tremble
Family explicitly argued about the deed from Emma Jean Tremble Smith to
Luminant in the first-phase proceedings, and the District Court rejected those
arguments in its judgment. "It is well settled that upon an appeal from the second
or final decree matters determined by the first or interlocutory decree cannot be
reviewed…." Marmion , 246 S.W.2d at 705; Snow v. Donelson , 242 S.W.3d 570,
572-73 (Tex. App. – Waco 2007, no pet.) (holding that the first judgment
determining “the merits of the case” and “the rights of the parties” cannot be
revised “unless upon appeal” from that judgment, and that, "[b]ecause [Snow’s]
complaints challenge matters decided in the first hearing from which Snow did not
appeal, we have no jurisdiction to address them now."); Goldberg v. Zinn , No. 14-
11-01091-CV, 2013 Tex. App. LEXIS 6867, *18 (Tex. App. – Houston [14 th Dist.]
2013, no pet.) ("To grant that relief [from the first judgment], in an appeal from
another and different judgment, would, in effect, be to permit the first judgment to
be collaterally attacked," quoting Woodhead v. Good , 27 S.W.2d 374, 376 (Tex.
Civ. App. – Eastland 1930, no writ)); see Browning v. Prostok, 165 S.W.3d 336,
346 (Tex. 2005) (“A collateral attack is an attempt to avoid the binding force of a
judgment in a proceeding not instituted for the purpose of correcting, modifying, or
vacating the judgment, but in order to obtain some specific relief which the
judgment currently stands as a bar against.”).
Second, to the extent Mrs. Tremble's issues and arguments can be deemed to attack the second-phase judgment, those arguments were not preserved by any
request, objection, or motion in the district court. The Supreme Court of Texas
has described the threshold for preservation as follows:
As a general rule, preservation requires (1) a timely objection "stating the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context," and (2) a ruling. See T EX . R. A PP . P. 33.1. Stated differently, the test ultimately asks "whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling." State *26 Dep't of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992).
Burbage v. Burbage , 447 S.W.3d 249, 257 (Tex. 2014); In re B.L.D. , 113 S.W.3d
340, 349-50 (Tex. 2003) (listing cases and explaining reasons for the requirement
that complaints of error must be preserved in the trial court). Here, Mrs. Tremble
did not file any response to Luminant's motion for judgment on the second-phase
issues, did not file or make any objection or motion during the second-phase
proceedings, and did not file any post-judgment motion. She thus waived any
complaint about the judgment from which she has appealed. Malone , 2011 Tex.
App. LEXIS 98, at *12-13.
Third, the District Court did not commit any error in rendering the second- phase judgment. As a corollary to the principle that matters decided in the first
judgment cannot be reviewed in an appeal from the second, actions taken in the
second-phase proceedings that merely follow the directives and decisions in the
first judgment may not be challenged in an appeal from the second. Marmion , 246
S.W.2d at 706 ("[I]f the judgment now appealed from merely followed that [first]
decree, then the error, if error it be, would be in the former, and not in the latter,
ruling."); Martin v. Dosohs I, Ltd. , 951 S.W.2d 821, 824 (Tex. App. – San Antonio
1997, no pet.) (quoting Marmion ). The only remaining question in this appeal,
therefore, is whether the first judgment's directives and decisions were not
correctly followed in the second-phase proceedings, causing consequent error in
the second judgment. Burkitt v. Broyles , 340 S.W.2d 822, 823 (Tex. Civ. App. –
Waco 1960, writ ref'd n.r.e.) (the only question that could properly arise in the
second phase would be conformity to the rules settled by the first decree, citing
Cannon v. Hemphill , 7 Tex. 184, 197 (1851)).
In the first-phase judgment, the District Court appointed a receiver to conduct a sale of the Property, CR 191, then ordered:
It is further ORDERED, ADJUDGED, and DECREED that the receiver shall advertise the sale of the Property, obtain offers for purchase of the Property, enter into a contract for the sale of the Property with the party making the highest offer, which contract shall be subject to the Court's approval, and report the proposed sale to the Court.
CR 192; Appendix A.
Mrs. Tremble urges an issue about whether the District Court committed "error in the auctioning of undivided inherited heir property," Appellants' Brief, p.
3 (Issue IV), but does not elaborate on this issue. The record, however, contains no
evidence to support any claim of error and, to the contrary, affirmatively
establishes that the sale of the Property was performed precisely as the District
Court directed in the first-phase judgment and that Mrs. Tremble was awarded
more than the fair market value of her undivided interest in the Property.
In her sworn Receiver's Report to Court, the receiver, Cecilia Koch, attested as follows:
In accordance with this Court's October 8, 2014 Judgment, I advertised the sale of the Property. On October 22, 2014, I listed the Property with the Longview and Tyler area Multiple Listing Services, the Century 21 website, as well as numerous other internet sites and The Henderson Daily News . The listings described the property, solicited offers to be submitted before November 22, 2014, and listed the price at $71,500, which is above the estimated fair market value. By the end of the day on November 22, 2014, I received two offers for purchase of the Property, true and correct copies of which are attached to this Report and labeled "Offer #1" and “Offer #2.” Offer #1 is the offer and contract for purchase of the Property by Luminant Mining Company LLC ("Luminant"), and is the highest and best offer. Luminant has offered to purchase the Property for $78,750, plus my fee and costs, the broker's fee, all closing costs, and the costs of court. Offer #2 is for a proposed purchase price of $25,326, and is substantially lower than Offer #1.
I recommend that the Court approve and confirm the sale of the Property to Luminant in accordance with Luminant's offer and contract for purchase of the Property, as evidenced by Offer #1.
CR 206-207. Luminant's offer and contract to purchase the Property for the sum of
$78,750, plus the receiver's fee and costs and the costs of court, far exceeded the
fair market value of the Property established by an uncontested appraisal, which
was $68,000. CR 128-29, 201-202, 206-207.
The District Court properly exercised its discretion by approving and confirming the sale of the Property in its second-phase judgment. CR 239-241;
Appendix B. 3 William V. Dorsaneo, III, Texas Litigation Guide § 43.30[3] (2015)
(describing procedure for receiver's sale and stating that "[o]n appellate review of a
court-ordered sale, inadequacy of the price is not generally a sufficient ground for
setting the sale aside, in the absence of facts or circumstances showing fraud or
irregularity"); Gardner v. Union Bank & Trust Co. of Fort Worth , 176 S.W.2d 789,
793 (Tex. Civ. App. – Fort Worth 1943, no writ) (the determination of whether to
confirm a receiver's sale is a matter within the sound discretion of the court, and
"[i]t is the settled rule in this state that a receiver's sale will not be set aside for
inadequacy of price alone, in the absence of facts and circumstances showing fraud
or irregularities; especially is this true unless the inadequacy is so great as to shock
the conscience of the court").
Mrs. Tremble also lists issues complaining that the District Court erred "in the signing of [the] Final Judgment without an open hearing to consider the
evidence" and by "omit[ting]" her "from any of the decision making processes,"
Appellants' Brief, p. 3 (Issues II and III), but again does not elaborate on these
issues. As with the issue just discussed, the record contains no evidence supporting
these complaints. Luminant moved for judgment confirming the sale of the
Property, and served the motion on Mrs. Tremble. CR 201-205. On December 3,
2014, the District Court signed an order setting the hearing for December 16, 13
days later, then held the hearing on that date. CR 199. The hearing was open, and
Mrs. Tremble was not excluded from the hearing, but she did not attend and did not
otherwise oppose or object to Luminant's motion for judgment, the Receiver's
Report to Court, or the District Court's approval and confirmation of the sale of the
Property. Champion v. Robinson , 392 S.W.3d 118, 122, n. 6, 127 (Tex. App. –
Texarkana 2012, pet. denied) ("The record does not support Champion's [pro se]
claim that he received inadequate notice [of the hearing on the first-phase partition
issues].").
Finally, Mrs. Tremble asserts that she was denied rights under the Uniform Act. Appellants' Brief, pp. 3 (Issue I), 4. But Mrs. Tremble does not articulate
how she allegedly was denied rights under the Uniform Act with respect to the
receiver's actions in the second-phase proceedings or the District Court's rendition
of the second-phase judgment. More significantly, the Texas Legislature has not
adopted any form of the Uniform Act, nor has the Uniform Act been otherwise
incorporated in or deemed a part of Texas law. Accordingly, Mrs. Tremble has no
ability or authority to claim error under the Uniform Act. See Pain Control
Institute, Inc. v. Geico General Insurance Co. , 447 S.W.3d 893, 896-98 (Tex. App.
– Dallas 2014, no pet.) (affirming summary judgment on ground that plaintiff
alleged no recognized cause of action); Drake v. Chase Bank , No. 02-13-00340-
CV, 2014 Tex. App. LEXIS 12572, at *3 (Tex. App. – Fort Worth Nov. 20, 2014,
no pet.) (affirming district court’s judgment on ground that plaintiff alleged claim
not recognized under Texas law).
In short, the District Court's December 2014 judgment, confirming the sale of the property, should be affirmed.
III.
Several entities are not proper parties on appeal. The Estate of Wilmer Forrest Tremble, Sr. was not a defendant in the trial court, nor was a representative of the Estate. See Henson v. Estate of Bruce L.
Crow, 734 S.W.2d 648, 649 (Tex. 1987) (a decedent’s estate is “not a legal entity”
and cannot sue or be sued as such). The Tremble Family designated the Estate as
an Appellant in their notice of appeal, CR 184, and in their filings in this Court, but
there is no legal basis for that designation. "Generally, only parties of record may
appeal a trial court's judgment." In re Lumbermens , 184 S.W.3d at 723. The
doctrine of virtual representation creates an exception that allows a non-party to
intervene on appeal in certain circumstances, but none of those circumstances exist
here. Id . at 722-29.
Energy Future Holdings Corporation and "Subsidiaries" were not plaintiffs in the trial court, but the Tremble Family designated them as Appellees in their
notice of appeal. CR 184. Because Energy Future Holdings Corporation and its
subsidiaries were not parties in the trial court and there is no other legal basis for
adding them in this appeal, they are not proper Appellees. In re Lumbermens, 184
S.W.3d at 723-24. Since Energy Future Holdings Corporation and its subsidiaries
are not proper Appellees, this Court has no jurisdiction over them in this case.
In sum, the Estate’s appeal should be dismissed for lack of standing, Bilbo , 645 S.W.2d at 927-28, and Mrs. Tremble's appeal against Energy Future Holdings
and its subsidiaries should be dismissed for want of jurisdiction. T EX . R. A PP . P.
42.3(a).
CONCLUSION AND PRAYER The District Court carefully followed proper partition procedure. The District Court's first-phase judgment is conclusive of the parties' rights thereby
determined, and the Tremble Descendants, who were found to own no interest in
the Property, therefore lack standing to bring this appeal. In addition, Mrs.
Tremble's complaints are barred by the first-phase judgment or are foreclosed by
her failure to preserve them.
Appellee Luminant Mining Company LLC prays that this Court: dismiss the appeal by Sharon Tremble Donaldson, Selia Tremble Shawkey, Wilmer Forrest
Tremble, Jr., and the Estate of Wilmer Forrest Tremble, Sr. for lack of standing;
dismiss the appeal against Energy Future Holdings Corporation and Subsidiaries
for lack of jurisdiction; and, with respect to the appeal by Billie Murphy Tremble,
affirm the District Court's judgment. Appellee asks for such other and further
relief to which it is entitled.
Respectfully submitted, Jackson, Sjoberg, McCarthy & Townsend, LLP David E. Jackson
State Bar No. 10458500 djackson@jacksonsjoberg.com *33 Marc O. Knisely
State Bar No. 11614500 mknisely@jacksonsjoberg.com 711 W. 7 th Street
Austin, Texas 78701
(512) 472-7600
(512) 225-5565 FAX
By: /s/ David E. Jackson David E. Jackson State Bar No. 10458500 ATTORNEYS FOR APPELLEES LUMINANT MINING COMPANY LLC *34 CERTIFICATE OF SERVICE I hereby certify that a true and complete copy of the above and foregoing Brief of Appellees was sent via the following method, to the following parties on
this the 13 th day of November, 2015.
Billie J. Murphy Tremble Sharon Tremble Donaldson P. O. Box 541 2010 Wineberry Dr.
Marshall, TX 75671 Katy, TX 77450 Via regular mail and Via regular mail and Certified Mail, RRR Certified Mail, RRR 7015 0640 0003 1869 5922 7015 0640 0003 1869 5946 Selia Tremble Shawkey Wilmer Forrest Tremble, Jr. 712 South 37th Street P. O. Box 841865 San Diego, CA 92113 Pearland, TX 77584 Via regular mail and Via regular mail and Certified Mail, RRR Certified Mail, RRR 7015 0640 0003 1869 5939 7015 0640 0003 1869 5953 /s/ David E. Jackson David E. Jackson CERTIFICATE OF COMPLIANCE As required by Texas Rule of Appellate Procedure 9.4 (i)(3), I certify that this brief contains 5267 words, excluding the parts of the brief exempted by Rule
9.4 (i)(1).
/s/ David E. Jackson David E. Jackson
[1] Title instruments and other documents in the Clerk's Record contain different spellings of "Tremble" – sometimes with an "e" and sometimes "Trimble." This brief adopts the spelling used by the Tremble Family in the District Court and in this Court.