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
-------------
MONDE STRACENER
Appellant
V.
DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER
Appellees
-------------
Appealed from the 115th Judicial District Court
Of Upshur County, Texas
-------------
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
i
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
-------------
MONDE STRACENER
Appellant
V.
DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER
Appellees
-------------
Appealed from the 115th Judicial District Court
Of Upshur County, Texas
-------------
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.
2
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.
To further support that the single-family dwelling and adjoining 1 acre was determined to
be the sole and separate property of Mondee Stracener, the Court “further ordered that the parties
contribution claims for taxes, utilities, expenses, and maintenance for the single-family dwelling
and adjoining 1 acre and the remaining property at issue, (not including the runway) are denied.”
(CR-20) Any contribution by Appellees’ to taxes, utilities, expenses, and maintenance of the
single-family dwelling and adjoining 1 acre were denied by the Court. The only conclusive
3
reason that the Court would have entered such an order is that this was the ownership of Mondee
Stracener and therefore, such taxes, utilities, expenses, and maintenance, were his responsibility.
CONCLUSION
Because the Court has failed to follow the First Order/Judgment, which had become final,
in this proceedings, the Final Decree of Partition (CR-80) filed in this proceedings, contains
fundamental error in failing to follow a prior final judgment, and should not be affirmed, but
should be reversed, and the proper remedy directed for further actions in the trial court.
PRAYER
Wherefore premises considered, Appellant respectfully moves the Court to reverse the
Trial Courts Final Decree of Partition dated July 11, 2014 (CR-80), require the dismissal and
termination of the Commissioners appointed, deny compensation to such Commissioners, and
direct the appointment of new Commissioners to make a fair and equitable partition, and to
adjudge all cost against the Appellees’ and for such and other and further relief to which the
Appellant may show himself justly entitled.
Respectfully submitted,
MINTON & BROWN, PLLC
Attorneys at Law
134 N. Marshall Street
P. O. Box 1688
Henderson, Texas 75653-1688
(903) 657-3543
(903) 657-3545 Fax
Email: mintonbrown@suddenlinkmail.com
BY: /s/ Robert M. Minton
ROBERT M. MINTON
Attorney for Appellant
Bar Card #14195000
4
CERTIFICATE OF COMPLIANCE
The undersigned certifies that the Appellant’s Response to Appellees’ Brief, except for
the caption, identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix, as set out in Tex. R. App. P.9.4(i)(1), hereby contains the total of
734 words.
Respectfully submitted,
MINTON & BROWN, PLLC
Attorneys at Law
134 N. Marshall Street
P. O. Box 1688
Henderson, Texas 75653-1688
(903) 657-3543
(903) 657-3545 Fax
Email: mintonbrown@suddenlinkmail.com
BY: /s/ Robert M. Minton
ROBERT M. MINTON
Attorney for Appellant
Bar Card #14195000
CERTIFICATE OF SERVICE
I certify that on April 30, 2015, a true and correct copy of Appellant’s Response to
Appellees’ Brief was served on David B. Griffith electronically at
davidg@griffithlawfirm.com and the electronic transmission was reported as complete.
/s/ Robert M. Minton
ROBERT M. MINTON
E-mail:mintonbrown@suddenlinkmail.com
5