Mondee Stracener v. Doug Stracener, Bernice L. Stracener and Joey Keith Stracener
Opinion
ACCEPTED
06-14-00079-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/30/2015 4:11:33 PM
DEBBIE AUTREY
CLERK
DOCKET NO. 06-14-00079-CV
IN THE
FILED IN
6th COURT OF APPEALS
SIXTH COURT OF APPEALS TEXARKANA, TEXAS 4/30/2015 4:11:33 PM
at Texarkana DEBBIE AUTREY Clerk
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MONDE STRACENER
Appellant
V.
DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER Appellees
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Appealed from the 115th Judicial District Court Of Upshur County, Texas
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APPELLANT’S RESPONSE TO APPELLEES’ BRIEF
Robert M. Minton
Texas Bar No. 14195000
Minton & Brown, PLLC
P. O. Box 1688
Henderson, Texas 75653
Telephone: (903) 657-3543 Facsimile: (903) 657-3545
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES & COUNSEL
Appellant:
Monde Stracener Counsel for Appellant:
Trial and Appellate Counsel:
Robert M. Minton Texas Bar No. 14195000 Minton & Brown, PLLC P. O. Box 1688 Henderson, Texas 75653 Telephone: (903) 657-3543 Facsimile: (903) 657-3545 E-Mail: mintonbrown@suddenlinkmail.com
Appellees:
Doug Stracener, Bernice Stracener, and Joey Stracener Counsel for Appellees:
Trial and Appellate Counsel:
David B. Griffith Griffith Law Firm PC P. O. Box 864 Gilmer, Texas 75644-0864 Telephone: (903) 843-5005 Facsimile: (903) 843-5392 E-Mail: davidg@griffithlawfirm.com
Presiding Judge:
The Honorable Richard D. Davis
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………………………..…….…i TABLE OF CONTENTS…………………………………………………………………..……..ii INDEX OF AUTHORITIES…………………………………………………………………..…iii STATEMENT OF THE CASE…………………………………………………………………...iv ORDER FROM WHICH RELIEF IS SOUGHT…………………………………………………iv ISSUES PRESENTED………………………………………………………………………..…..v STATEMENT OF FACTS…………………………………………………………………….….2 ARGUMENT & AUTHORITIES…………………………………………………………….…..2 CONCLUSION…………………………………………………………………………….…..….4 PRAYER……………………………………………………………………………………...…...4 CERTIFICATE OF COMPLIANCE……………………………………………………………...5 CERTIFICATE OF SERVICE……………………………………………………………………5
ii
INDEX OF AUTHORITIES
CASES PAGE(S) Black’s Law Dictionary, Revised Fourth Edition (1968) ……………………………….….3
iii
STATEMENT OF THE CASE
This is an appeal from the Final Decree of Partition, (CR-80) rendered in Cause 135-06, styled Mondee Stracener v. Doug Stracener, Bernice Stracener, and Joey Stracener, in the 115 th District Court of Upshur County, Texas. The suit was over the partition of a tract of 54.883 acres of land, owned jointly by Plaintiff and Defendants, this proportionate ownership was unequal.
A report of commissioners was filed, to which objections were filed by two different council for Plaintiff, Mondee Stracener. Upon the hearing of such objection, the Court required the Report of Commissars to be amended to place values on the whole, the individual shares partitioned, and the value of what has been referred to as certain improvements, being a paved runway, and a house.
The Court entered its Final Decree of Partition, (CR-80) approving the Amended Report of Commissioners, (CR-65) and attaching a copy of such amended report to the final order, on July 11, 2014, filed of record on July 15, 2014.
ORDER FROM WHICH RELIEF IS SOUGHT The Final Decree of Partition, (CR-80) signed July 11, 2014, filed of record on July 15, 2014, approving Amended Report of Commissioners, (CR-65).
iv
ISSUES PRESENTED FOR REVIEW 1. The Court erred in advising Special Commissioners to consider the value of the house, in partitioning out to Mondee Stracener his portion of the 54.883 acre tract, the subject of the partition suit in the trial court, in contravention of the Amended Decree Ordering Partition and Appointing Commissioners First Order, (CR-17).
2. The Court erred in failing to instruct Commissioners to exclude the value of the house from consideration in amending the Report of Commissioners, (CR-25) resulting in an unjust and inequitable partition of the property.
3. The Court erred in its Final Decree of Partition (CR-80) (Second Order) by approving an unjust and inequitable partition, in contravention of the Amended Decree Ordering Partition and Appointing Commissioners, (CR-17) which became final and unappealable on December 9, 2011.
v
DOCKET NO. 06-14-00079-CV IN THE
SIXTH COURT OF APPEALS
at Texarkana
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MONDE STRACENER
Appellant
V.
DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER Appellees
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Appealed from the 115th Judicial District Court Of Upshur County, Texas
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APPELLANT’S RESPONSE TO APPELLEES’ BRIEF
TO THE HONORABLE COURT OF APPEALS:
Comes now MONDEE STRACENER, Appellant and Defendant in the Trial Court below and makes and files this Appellant’s Response to Appellees’ Brief.
STATEMENT OF FACTS
This appeal begins with the date of the Amended Decree Ordering Partition and Appointing Commissioners, said date being July 26, 2010, and not before.
All the evidence and stipulations of the parties, and arguments before the Trial Court, prior to the date of July 26, 2010, are not a part of this appeal and cannot be considered by the Court of Appeals in rendering opinion on this appeal.
The value of the house was included in valuation of the whole, and Appellant’s portion, in contravention of First Judgment.
ARGUMENTS AND AUTHORITIES Appellant’s agree that the Amended Decree Ordering Partition and Appointing Commissioners, (CR-17), is a Final Decree and Order, not subject to appeal and review. Appellees’ do not seem to understand that such Order/Judgment of the Trial Court is non- appealable, and that it’s terms, after appeal to the 12th Court of Appeals in Tyler, Texas, was and is final. It is the position of the Appellant that the Trial Court, in the basis of this appeal, did not follow such order, and in fact, has acted in contravention of the findings of his own order, supported both by findings within such order, and the rulings thereon, set out as follows: (CR- 20)
7. “That the single-family dwelling and 1 acre is ordered Mondee Stracener’s sole property in his own right, and that upon partition of the property he is entitled to have set aside as part of his 68.75% interest that portion of the property upon which the home is situated.
IT IS, THEREFORE, ORDERED that the foregoing property is partitioned between the above-named parties such that the value of the partials allotted to each party reflects the parties interest as recited above, and that the above described single-family dwelling and 1 acre on which the house rest is awarded to Mondee Stracener, Plaintiff, and that, in addition, his share of the real property is set aside to include such improvements.”
The Court, by the above finding and order, found that the house and 1 acre is the “sole property in his own right” of Mondee Stracener. “Sole” as defined by Black’s Law Dictionary, Revised Fourth Edition, 1968, defines the word as “single; individual; separate; the opposite of joint;”. In this proceedings, the Court had jurisdiction only over jointly owned property—not separately owned property, as found by the Court.
As to the part of the order that directs the property set aside to Mondee Stracener, there would have been no need for the wording (CR-20) “and that, in addition, his share of the real property be set aside to include such improvements.”, if the Court had intended for the value of the house to be a part of the total percentage of real property, as defined by our Courts, but only if the Court intended same to be segregated to the benefit of Mondee Stracener, and located upon his lands.
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Mondee Stracener v. Doug Stracener, Bernice L. Stracener and Joey Keith Stracener (Mondee Stracener v. Doug Stracener, Bernice L. Stracener and Joey Keith Stracener) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.