Johnson v. Evans (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Hedges)
(
suit for partition of land involves two-stage proceeding with two final judgments, effect of nonsuit)
(
amount of ad litem fee affirmed, ad litem attorney for defendants served by publication)   
AFFIRMED: Opinion by
Chief Justice Adele Hedges  
Before Chief Justice Hedges, Justices Seymore and Sullivan    
14-08-00610-CV   Gerald K. Johnson v. Christine Evans and Frederick M. Evans    
Appeal from 3rd District Court of Anderson County
Trial Court Judge: Bascom W. Bentley  

M E M O R A N D U M    O P I N I O N

The crux of this appeal concerns the effect of a partial nonsuit filed by appellees, Christine Evans and
Frederick M. Evans (collectively “the Evanses”).  The Evanses, co-owners of two tracts of land in Anderson
County, filed a partition action seeking division of the property according to their respective interests in the
land.  

Appellant, Gerald K. Johnson, also claimed an interest in both tracts of land and, accordingly, filed an
answer in the lawsuit.  The trial court later determined the parties’ respective interests and appointed
commissioners to partition both tracts of land.  Thereafter, the Evanses moved to nonsuit their claim with
respect to the first tract of land, effectively petitioning that only the second tract be physically divided.  The
trial court granted the nonsuit and later signed a judgment partitioning only the second tract of land.  
Johnson now appeals from the partition judgment, claiming that the nonsuit and partition judgment were
improper.  

We affirm.

I.  BACKGROUND

The Evanses were joint owners of two tracts of land located in Anderson County.  Tract 1 consisted of
approximately 45.59 acres, and Tract 2 consisted of approximately 45.78 acres.  Prior to the filing of the
underlying lawsuit, the Evanses occupied 7/8 of Tract 1.  While occupying that portion of Tract 1, the
Evanses made valuable improvements on the land.  With respect to Tract 2, the Evanses occupied
approximately 1/2 of the tract and also made valuable improvements on that portion of the property.  The
other half of Tract 2 was occupied by Johnson.

A.  Partition Action

On March 10, 2005, the Evanses filed a partition action, originally seeking to establish their rights and title
to Tracts 1 and 2 and to partition both tracts of land.  In their original petition for partition, the Evanses
claimed a 7/8 interest in Tract 1 and a 1/2 interest in Tract 2.  The Evanses named Eldredge Jasper and
his heirs (collectively “Jasper heirs”) as defendants and the owners of the other 1/8 interest in Tract 1 and
the remaining 1/2 interest in Tract 2.  The Evanses requested that the tracts be partitioned according to
the parties’ respective interests.  The Evanses further alleged that they had made valuable improvements
on both tracts of land and requested title to and possession of the portion of the land containing their
improvements.

Johnson filed a general answer, claiming the remaining 1/2 interest in Tract 2 by virtue of adverse
possession and a recorded deed in the name of Martha Barnett and her heirs.  Johnson also claimed right
and title to the remaining 1/8 interest in Tract 1 as an heir of Eldredge Jasper.  In his answer, Johnson
requested title to and possession of the southeasterly half of Tract 2, the portion he occupied, and that the
Evanses be awarded the remaining 1/2 located on the northwesterly portion of the tract.

B.  First Judgment: Ownership Rights

On July 7, 2005, the trial court conducted a hearing to determine the parties’ interests in the two tracts of
land.  At the conclusion of the hearing, the trial court determined that the Evanses owned an undivided 7/8
interest in Tract 1 and the Jasper heirs owned the remaining undivided 1/8 interest.  As to Tract 2, the trial
court determined that the Evanses owned an undivided 1/2 interest and the Jasper heirs and Johnson
owned the other 1/2 interest.  The trial court further determined that both tracts were susceptible to
partition and ordered the tracts to be partitioned according to the parties’ respective interests.  
Accordingly, the trial court appointed commissioners to make a report recommending partition
parameters.  The trial court also signed a decree declaring the parties’ interests and ordering said
partition.  No appeal was taken from this judgment.

Thereafter, the commissioners made their initial partition proposal, recommending an equal division of
Tract 2.  As to Tract 1, the commissioners proposed that the 1/8 interest shared between the Jasper heirs
and Johnson be partitioned in the form of an easement to allow access to Tract 2.  Johnson filed
objections to the report, contending that the partitioned 1/8 on Tract 1 contained large ravines making it
impossible to improve his portion of Tract 1.  He further argued that the size of the easement
recommended by the commissioners was unnecessary and unfair.  Nevertheless, the trial court
disregarded Johnson’s objections.

C.  Nonsuit and Revised Commissioners’ Report

On August 22, 2006, the Evanses filed an amended petition, removing Tract 1 from the suit.[1]   The
cause then proceeded to partition only Tract 2.  Johnson made oral and written objections to the nonsuit,
requesting that both tracts be partitioned.   Because Johnson had not filed a counterclaim requesting
partition of Tract 1, the trial court encouraged Johnson to file a counteraction to keep Tract 1 in the
lawsuit.  After Johnson failed to file a counterclaim seeking relief regarding Tract 1, the trial court denied
Johnson’s objections and granted the nonsuit.  Thereafter, the commissioners made a revised proposal,
partitioning only Tract 2.  Similar to the initial proposal, the commissioners proposed that the Evanses, on
one side, and the Jasper heirs and Johnson, on the other side, each be awarded equal-sized parcels of
22.89 acres.

Johnson objected to the revised commissioners’ report, contending that the report improperly omitted
Tract 1 from partition and that the revised report was inconsistent with the trial court’s previous decree
determining ownership and ordering partition of both tracts of land.  Johnson also requested that the funds
deposited with the court for survey be released to him, not to the court-appointed surveyor Lynn Smith.  
Johnson contended that the funds deposited for survey should not have been paid to Smith because he
had failed to perform his “surveyor duties” in a timely manner.  The trial court denied Johnson’s request
and released the funds to Smith.  Johnson also objected to any award of attorney ad litem fees,
contending that the ad litem had failed to prove his costs by sworn affidavit.  The trial court also denied
Johnson’s objection to the award of ad litem fees.

D.  Final Partition Judgment

On January 10, 2008, the trial court signed a final judgment partitioning Tract 2 in accordance with the
commissioners’ revised report—dividing Tract 2 into two equal-sized parcels of 22.89 acres.  In its final
partition judgment, the trial court also ordered that the Evanses and Johnson split the fees awarded to the
commissioners, the surveyor, and the ad litem.

Johnson now challenges the trial court’s final partition judgment.  In eight issues consolidated and taken
out of order, Johnson contends that:  (1) the trial court erred by granting the Evanses’ nonsuit; (2) the trial
court erred by approving the commissioners’ revised report and signing the final partition judgment in
conformity with the revised report; (3) the trial court’s findings of fact and conclusions of law were
erroneous; (4) the trial court erred by awarding surveying costs to Lynn Smith; and (5) the trial court erred
by awarding ad litem fees.

II.  APPLICABLE LAW

Unlike most other proceedings, a partition cause involves two final appealable judgments.  Griffin v. Wolfe,
610 S.W.2d 466, 466–67 (Tex. 1980) (per curiam); Ellis v. First City Nat’l Bank, 864 S.W.2d 555, 557 (Tex.
App.—Tyler 1993, no writ).  In the first judgment, the trial court:  (1) determines the interests of each of the
joint owners or claimants in the real estate sought to be divided and decides all questions of law and equity
affecting the title to such land; (2) determines whether the property is susceptible to partition or the subject
of a sale; and (3) appoints commissioners to partition the property in accordance with the respective
shares or interests of each of such parties entitled thereto.  Ellis, 864 S.W.2d at 557; see also Tex. R. Civ.
P. 760, 761.  Although the first judgment has been characterized as preliminary, it is final for purposes of
appeal.  Ellis, 864 S.W.2d at 557.  Matters decided in the first decree cannot be reviewed in an appeal
from the second judgment.  Id.

In the second judgment, the court approves the commissioners’ report and partitions the property in kind
or by sale.  Campbell v. Tufts, 3 S.W.3d 256, 259 (Tex. App.—Waco 1999, no pet.).  If, however, the trial
court finds the report “to be erroneous in any material respect, or unequal and unjust,” the trial court
rejects the report and appoints other commissioners to partition the land.  Id. (citing Martin v. Dosohs I,
Ltd., 951 S.W.2d 821, 824 (Tex. App.—San Antonio 1997, no writ)); see also Tex. R. Civ. P. 771.  A party
objecting to the commissioners’ report has the burden of proving that the report is materially erroneous or
that it unequally and unjustly partitions the property.  Ellis, 864 S.W.2d at 557; Roberts v. Philpot, 435 S.W.
2d 614, 615 (Tex. Civ. App.—Tyler 1968, no writ).

III.  DISCUSSION

In issues two through five and seven, Johnson contends that the trial court erred by granting the Evanses’
nonsuit and that the final partition judgment should be reversed because it did not partition Tract 1.

A.  Nonsuit

In Texas, a plaintiff generally has a right to take a nonsuit at any time until he introduces all evidence other
than rebuttal evidence.  Tex. R. Civ. P. 162.  Such a nonsuit may have the effect of vitiating earlier
interlocutory orders.  Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854–55 (Tex. 1995) (per curiam);
Le v. Kilpatrick, 112 S.W.3d 631, 634 (Tex. App.—Tyler 2003, no pet.).  Although a nonsuit may have the
effect of vitiating a trial court’s earlier interlocutory orders, a nonsuit does not vitiate a trial court’s
previously made decision on the merits that is final for purposes of appeal.  Kilpatrick, 112 S.W.3d at 634.  
Furthermore, any dismissal pursuant to rule 162 shall not prejudice the right of an adverse party to be
heard on a pending claim for affirmative relief.  Tex. R. Civ. P. 162.  Thus, a plaintiff has an absolute right
to a nonsuit as long as the defendant has not made a claim for affirmative relief.  Cook v. Nacogdoches
Anesthesia Group, L.L.P., 167 S.W.3d 476, 482 (Tex. App.—Tyler 2005, no pet.).  If the defendant has a
pending claim for affirmative relief, the plaintiff’s nonsuit is effective for its own claims, but not for those of
the defendant.  See Tex. R. Civ. P. 96, 162.  A defendant does not seek affirmative relief by claims that
merely resist the plaintiff’s right to recover.  Kilpatrick, 112 S.W.3d at 634.  The primary issue in this case
is whether civil procedure rule 162 allows a plaintiff, in a partition action, to use the procedural vehicle of
nonsuit to remove its request to physically partition land subject of the suit after the trial court has
determined ownership.

The instant partition suit involves two judgments, both independent of one another.  See Griffin, 610 S.W.
2d at 466.  The issues litigated in the first judgment—ownership and susceptibility to partition—were
distinct from the issue to be adjudicated in the second judgment—physical partition.  Correspondingly, in
the proceedings below, the trial court adjudicated ownership in the first judgment:  the Evanses owned an
undivided 7/8 interest in Tract 1 and the Jasper heirs owned the remaining undivided 1/8 interest; the
Evanses owned an undivided 1/2 interest in Tract 2 and the Jasper heirs and Johnson owned the other 1/2
interest.  After the trial court adjudicated ownership in the first judgment, it then proceeded to adjudicate
the second claim—physical partition of both tracts.  However, before the Evanses’ physical-partition claims
were adjudicated, the Evanses moved to nonsuit their claim to partition Tract 1.  See Cook, 167 S.W.3d at
482 (recognizing that a party may choose to take a nonsuit as to some claims without nonsuiting the rest of
the pending claims).  Because ownership had been adjudicated at the time of nonsuit, the nonsuit could
not, and did not, alter ownership.  See Alvarado, 892 S.W.2d at 855 (“Once a judge announces a decision
that adjudicates a claim, that claim is no longer subject to the plaintiff’s right to nonsuit.”).  For that reason,
the Jasper heirs’ 1/8 interest in Tract 1 was untouched and unaffected by the Evanses’ nonsuit.

Procedurally, the issue of ownership was not pending at the time of nonsuit; the only claim pending at the
time of nonsuit was the claim to physically divide both tracts of land.  As a pending claim, yet to be litigated,
physical partition of Tract 1 was amenable to nonsuit.  See Kilpatrick, 112 S.W.3d at 634 (“[A] nonsuit
vitiates any . . . claims that are pending as to a defendant against whom a nonsuit is taken.”).  
Furthermore, the first judgment did not establish Johnson’s right to Tract 1.  The first judgment determined
that only the Evanses and the Jasper heirs had ownership rights to Tract 1.  While Johnson claimed an
interest in Tract 1 as an heir of Eldredge Jasper, Johnson did not file a counterclaim or otherwise seek
affirmative relief to prove his heirship.  Moreover, Johnson did not file a counterclaim or otherwise make a
request for affirmative relief to partition Tract 1.  See Kilpatrick, 112 S.W.3d at 634.  For these reasons, we
conclude that the trial court did not err in granting the Evanses’ nonsuit.[2]

B.  Commissioners’ Report and Final Partition Judgment

Johnson further contends that the commissioners’ revised report and the trial court’s final partition
judgment, adopting the revised report, were improper because neither document proposed or ordered
partition of Tract 1.  Specifically, Johnson contends that the commissioners, in their revised report, and the
trial court, in its final partition judgment, should have partitioned Tract 1 because:  (1) the nonsuit was
improper and (2) the trial court found both tracts to be susceptible to partition and ordered both tracts to
be partitioned.  Johnson further contends that by failing to address partition of Tract 1, the final partition
judgment was inconsistent with the first judgment.

As discussed above, the nonsuit did not affect the first judgment.  Similarly, the commissioners’ revised
report and the final partition judgment did not relitigate the issue of ownership.  At the time the
commissioners revised their report and at the time the trial court rendered its second judgment, ownership
was conclusive and not subject to amendment.  The only pending claim at the time the commissioners
revised their report and at the time the trial court rendered its second judgment was partition of Tract 2.  
Therefore, the commissioners and the trial court did not err in addressing only the Evanses’ partition claim
on Tract 2.  Furthermore, the fact that Tract 1 was not partitioned in the second judgment did not render
that judgment inconsistent with the first judgment.  The partition claim on Tract 1 was no longer before the
trial court at the time it rendered the second judgment.

We also reject Johnson’s claim that the trial court was without jurisdiction to:  (1) consider the nonsuit; (2)
allow the Evanses to file their amended petition; and (3) authorize the commissioners to revise their
report.  A partition proceeding is conducted in successive stages, and the trial court retains jurisdiction at
each stage.  See Pfeffer v. Meissner, 286 S.W.2d 241, 248 (Tex. Civ. App.—Fort Worth 1955, writ ref’d n.r.
e.).  Rendition of the first judgment does not divest the trial court of jurisdiction to carry out partition in the
second stage.  See id.  Accordingly, after rendering the first judgment, the trial court retained jurisdiction
over the cause to partition the land.[3]

We conclude that the trial court did not err in granting the nonsuit, accepting the commissioners’ revised
report, and partitioning only Tract 2 in the final partition judgment.  Accordingly, we overrule Johnson’s
second, third, fourth, fifth, and seventh issues.

C.  Findings of Fact

In his first issue, Johnson claims that the trial court erred in its findings of fact and conclusions of law.  
Johnson also acknowledges in his brief that he requested additional findings and conclusions.  In the trial
court, Johnson filed a request for findings of fact and conclusions of law.  In turn, the trial court made the
following findings and conclusions:

Findings of Fact

1.  The Commissioners in Partition previously appointed by the Court to partition the property at issue filed
their Report of Commissioners on November 7, 2007.

2.  Although Defendant, Gerald K. Johnson, filed a Response and Objection to Report of Commissioners
on December 7, 2007, he made no specific written or oral legal objections as to the reports being
materially erroneous or unequal or unjust in any respect.

3.         The Report of Commissioners is not unequal, unjust, or erroneous in any material respect.

Conclusions of Law

1.         The partition made by the Commissioners as reflected in their Report of Partition is fair
and lawful in all respects.

Ten days after the trial court filed the above findings and conclusions, Johnson requested that the trial
court amend its findings by recognizing that the following had been filed with the district clerk’s office:  (1)
Decree Ordering Partition and Appointing Commissioners; (2) Preliminary Commissioners’ Report; (3)
Objections to Preliminary Commissioners’ Report; (4) Judgment and Announcement of Nonsuit; (5)
Continuance on Motion to Dismiss Nonsuit and Order Granting Nonsuit; (6) Motion to Vacate Nonsuit
Order and Enforce Decree Ordering Partition; (7) Order Overruling Motion to Vacate Nonsuit Order and
Enforce Decree Ordering Partition; and (8) Report of the Commissioners.  Each of these pleadings and
orders are part of the clerk’s record before us.  Furthermore, in his appellate brief, Johnson does not
direct this Court to any case law, rule, or statute indicating that the trial court was obligated to enter
findings of fact or conclusions of law more detailed or comprehensive than those which were originally
issued.  See Tex. R. App. 38.1(i) (“The [appellant’s] brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record.”).  Accordingly, we
overrule Johnson’s first issue.

D.  Award of Survey Costs

In his sixth issue, Johnson contends that the trial court erred by awarding surveying costs to Lynn Smith.   
Johnson’s objection on appeal does not comport with the objection made in the trial court.  See Phippen v.
Deere & Co., 965 S.W.2d 713, 716 (Tex. App.—Texarkana 1998, no pet.); see also Tex. R. App. P. 33.1(a)
(1).  In the trial court, Johnson argued that the Eldredge heirs should have also contributed to the survey
costs according to their adjudicated share in the land.  Johnson further argued that Smith was not entitled
to any fees because he had delayed the survey.   In contrast, on appeal, Johnson argues that Smith was
erroneously awarded fees based upon the surveying of both tracts of land, when in fact Smith surveyed
only Tract 2.  Johnson now contends that the award was erroneous because Smith was awarded excessive
fees to the extent that he was awarded fees for surveying land that was no longer subject to partition.  
Because Johnson’s complaint in the trial court does not comport with his appellate complaint, he has
waived error.[4]   See Tex. R. App. P. 33.1(a)(1).

E.  Award of Ad Litem Fees

In his eighth issue, Johnson claims that the trial court erroneously awarded attorney ad litem fees.  
Specifically, Johnson argues that the ad litem, Martin Lawrence, was not entitled to recover attorney ad
litem fees because he did not execute a sworn affidavit reflecting the amount of hours spent on the suit,
the description of services performed, his billable rate, the fees incurred, and the reasonableness of such
fees.  In this case, the trial court was required to appoint an ad litem, determine a reasonable fee for the
ad litem’s services, and assess such costs against the parties.  See Tex. R. Civ. P. 244, 759 (mandating
that the trial court appoint an attorney ad litem to defend the defendants cited by publication); Tex. R. Civ.
P. 759, 778 (requiring that the trial court fix the ad litem’s fees and assess such fee against the parties).

The amount of compensation awarded to an ad litem lies within the sound discretion of the trial court, and
a reviewing court will not overturn a fee award absent evidence showing a clear abuse of discretion.  See
Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 794 (Tex. 1987); In re Guardianship of Glasser, 297
S.W.3d 369, 377 (Tex. App.—San Antonio 2009, no pet.).  A trial court abuses its discretion when it acts
arbitrarily, unreasonably, or without reference to any guiding rules and principles of law.  Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).  In making a fee award, a trial court
may consider: (1) the time and labor involved; (2) the nature and complexity of the case; (3) the amount of
money or value of the property or interest involved; (4) the extent of the responsibilities assumed by the
attorney; (5) whether the attorney lost other employment because of the undertaking; (6) the benefits
resulting to the client from the services; (7) the contingency or certainty of compensation; and (8) whether
employment is casual or for an established or constant client.  Alford v. Whaley, 794 S.W.2d 920, 925
(Tex. App.—Houston [1st Dist.] 1990, no writ).

Johnson does not argue that the trial court’s award of attorney’s fees was not just or was excessive.  
Rather, Johnson contends that the award was improper in the absence of a sworn affidavit of the
reasonableness of the ad litem’s fees.  However, Johnson cites to no authority supporting the proposition
that an affidavit is a condition precedent to an award of ad litem fees.  See Tex. R. App. P. 38.1(i);
compare Alford, 794 S.W.2d at 925 (“There is no requirement that there be evidence in the record to
support a court’s award of attorney’s fees to a[n] . . . ad litem.”).  While there are no time records reflecting
the precise amount of time spent handling the case, the record reflects some evidence of the actual legal
services rendered by the ad litem and evidence that the fee awarded was reasonable.

The ad litem was appointed to represent a number of unknown heirs and filed pleadings on their behalf.  
Lawrence attended and participated in hearings relating to the partitioning of the property.  Moreover, the
underlying proceeding continued for two and a half years, and the ad litem successfully protected his
clients’ ownership interests in Tracts 1 and 2.  At the conclusion of the proceeding, the trial court
determined in its final partition judgment that “in light of the difficulty and complexity of making the
partition,” $3,000.00 was a reasonable fee for Lawrence’s ad litem services.  See Alford, 794 S.W.2d at
925 (reasoning that in determining the reasonableness of ad litem fees, the appellate court may look at
the record and draw on the common knowledge of the court justices and their experience as lawyers and
judges to view the matter in light of the testimony, the record, the complexity of the case, and the amount
in controversy).  We find that the trial court did not act arbitrarily, unreasonably, or without reference to
any guiding rules and principles of law in awarding the ad litem $3,000.00 for services rendered in the
underlying suit.  Accordingly, we overrule Johnson’s eighth issue.

     Having overruled all of Johnson’s appellate issues, we affirm the trial court’s judgment.

                                                                 /s/        
Adele Hedges

                                                                             Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.


[1] Prior to filing their amended petition, the Evanses orally moved for nonsuit during a hearing.  Although the record is
unclear as to the exact date of this particular hearing in which the Evanses first moved to nonsuit, the record does reveal
that during the September 1, 2005 hearing, the Evanses referred to their having previously moved for nonsuit and orally
reurged their nonsuit on Tract 1.

[2] Johnson also contends that the nonsuit was improper under the doctrines of res judicata and collateral estoppel.  
Because ownership was not affected by the nonsuit and because the partition claim was still pending at the time of nonsuit,
res judicata and collateral estoppel are not implicated.  See Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 597
(Tex. App.—Texarkana 1994, writ denied) (affirming that the rule of “[r]es judicata precludes relitigation of claims that have
been finally adjudicated,” while “collateral estoppel prevents the relitigation of particular issues already resolved in a prior
suit”).

[3] Without authority, Johnson also argues that the trial court had a “duty of sua sponte and stare decisis” to deny the
nonsuit.  Johnson cites to no authority to support this argument, and prevailing case law, as explained above, gave the
Evanses a right to nonsuit.  Accordingly, we reject this argument. Johnson additionally claims, in an isolated sentence,
Judge Parsons should have recused himself.  Because no objection was made in the trial court, this issue is waived.  See
Tex. R. App. P. 33.1(a).

[4] Even if Johnson had preserved error, there is no evidence in the record that the survey costs awarded to Smith were
based upon the partitioning of two tracts of land.  The first commissioners’ report recommending a partition of Tracts 1 and
2 made no mention or reference to the survey costs.  The record reflects that the survey costs were not assessed until after
Tract 2, and only Tract 2, was surveyed.  Additionally, the trial court found that these fees were reasonable and necessary in
its final partition judgment.