DOCKET NO. 06-14-00079-CV 

IN THE 

SIXTH COURT OF APPEALS 

at Texarkana 

MONDEE STRACENER 

Appellant 

vs 

DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER 

Appellees 

Appealed from the 115th Judicial District Court 

of Upshur County, Texas 

APPELLEES' BRIEF 

David B. Griffith 

Texas Bar No. 08479300 

Griffith & Griffith Law Firm, P.C. 

404 N. Titus Street 

P. 0 . Box 864 

Gilmer, Texas 75644 

Telephone: (903) 843-5005 

Facsimile: (903) 843-5392 

ATTORNEY FOR APPELLEES 

APPELLEES REQUEST ORAL ARGUMENT 

ACCEPTED

06-14-00079-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

4/10/2015 3:08:26 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 4/10/2015 3:08:26 PM DEBBIE AUTREY Clerk
IDENTITY OF PARTIES & COUNSEL 

Appellees: 

Doug Stracener, Bernice Stracener, and Joey Stracener 

Counsel for Appellees: 

Trial and Appellee Counsel: 

David B. Griffith 

Texas Bar No. 08479300 

Griffith & Griffith Law Firm, P.C. 

404 N. Titus Street 

P. 0. Box 864 

Gilmer, Texas 75644 

Telephone: (903) 843-5005 

Facsimile: (903) 843-5392 

Email: davidg@griffithlawfirm.com 

Appellant: 

Mondee Stracener 

Counsel for Appellant: 

Trial and Appellate Counsel: 

Robert M. Minton 

State Bar No. 14195000 

Minton & Brown, PLLC 

P. 0. Box 1688 

Henderson, Texas 75653 

Telephone: (903) 657-3543 

Facsimile: (903) 657-3545 

Email: mintonbrown@suddenlinkmail.com 

Presiding Judge: 

The Honorable Richard D. Davis 
TABLE OF CONTENTS 

IDENTITY OF PARTIES AND COUNSEL .. . ........... . . ..... . .. . 

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii 

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii 

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV 

ORDER FROM WHICH RELIEF IS SOUGHT .. .......... . . .. ... .. v 

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi 

STATEMENT OF FACTS . .......... . ..... .. .. . .... . . . . ....... 2 

ARGUMENT & AUTHORITIES .... ...... ...... . ............... 7 

STANDARD OF REVIEW ARGUMENT . ... .. ............. .. .... 11 

CONCLUSION ...... .. ........................ . .. . .... .... 15 

PRAYER ... . ... . . ... . ... ... . ............... . ..... ..... .. 15 

CERTIFICATE OF COMPLIANCE ... .. . .... .. . . .. .... . ... . . .. . 16 

CERTIFICATE OF SERVICE ... . ........ . ...... . . ... . ........ 17 

APPENDIX: 

1. Amended Decree Ordering Partition and Appointing 

Commissioners 

2. Amended Report of Commissioners 

3. Final Decree of Partition 

ii 
INDEX OF AUTHORITIES 

Case Page 

Canal Insurance Company v. Hopkins, 238 S. W. 3d 549, 557 

(Tex. Civ. App.- Tyler 2007,pet denied) 12, 15 

City of Keller v. Wilson, 168 S. W. 3d 802, 819-20 (Texas 2005) 12, 15 

Edwards v. Mid-Continent Office Distributors, LP, 

252 S. W. 3d 833 at 836 (Tex. Civ. App. - Dallas 2008, pet denied) 11 

Pharro v. Chambers Co. , 922 S. W. 2d 945 at 948 (Texas 1996) 12 

In Re: W.E.R. 669 S. W. 2d 716, 717 (Texas 1984) 12 

iii 
STATEMENT OF THE CASE 

This is an appeal from the Final Decree of Partition (CR-80) rendered 

in Cause No. 135-06, styled Mondee Stracener v. Doug Stracener, Bernice 

Stracener, and Joey Stracener in the 115th Judicial District Court of Upshur 

County, Texas. The suit partitioned a tract of 54.883 acres of land, which 

partition was disproportionately owned by the parties. Separate tracts of land 

were set aside specifically to Joey Stracener, and that part of the order is not 

challenged. 

A Report of Commissioners was filed, and upon consideration of 

Plaintiff's objections, the Court required the Report of Commissioners to be 

amended to place values on the whole and the individual shares partitioned 

as well as the value of certain improvements. 

The Court thereafter entered its Final Decree of Partition approving the 

Amended Report of Commissioners (CR-65) and attached a copy of such 

Amended Report to the Final Decree entered on July 11, 2014, and filed July 

15, 2014. 

iv 
ORDER FROM WHICH RELIEF IS SOUGHT 

Appellant appeals the Final Decree of Partition (CR-80) signed July 11 , 

2014, and filed of record on July 15, 2014, approving the Amended Report of 

Commissioners (CR-65). 

v 
ISSUES PRESENTED FOR REVIEW 

1. Appellant complains that the Court erred in advising the Special 

Commissioners to consider the value of a house which was specifically set 

aside to Mondee Stracener. Appellees believe the Court properly rendered 

its order based on the proof and stipulations by the parties in earlier 

proceedings. 

2. Appellant further complains that the Court erred in failing to 

instruct the Commissioners to exclude the value of the house from 

consideration in amending the Report of Commissioners. Appellees believe 

that the Court's order was proper in that the property was set aside to 

Mondee Stracener by agreement but was part of the division of the entire 

property. 

3. The Appellant complains that the Court erred in its Final Decree 

of Partition in approving the partition. Appellees believe that the overall 

partition was fair and equitable and resulted in a partition complying with the 

requirement that the property be equitably partitioned according to value 

between the parties. 

vi 
DOCKET NO. 06-14-00079-CV 

IN THE 

SIXTH COURT OF APPEALS 

at Texarkana 

MONDEE STRACENER 

Appellant 

vs 

DOUG STRACENER, BERNICE STRACENER, AND JOEY STRACENER 

Appellees 

Appealed from the 115th Judicial District Court 

of Upshur County, Texas 

APPELLEES' BRIEF 

TO THE HONORABLE COURT OF APPEALS: 

Comes now, Doug Stracener, Bernice Stracener and Joey Stracener, 

Appellees and Defendants in the Trial Court below, and make and file this 

Appellees' Brief in response to Appellant's Brief. 

Appellant's Brief requests an improper modification and reversal of the 

Trial Court's partition judgment, in that the Appellant is requesting the Court 

1 
of Appeals to substitute its judgment for that of the trier of fact. Appellees 

request that this Appellate Court deny Appellant's requested relief because 

such relief is not proper based upon a fair and equitable partition of the 

property nor is it proper under the law. 

STATEMENT OF THE FACTS 

This is a suit to partition a tract of land fronting Highway 271 in Upshur 

County, Texas. Mondee Stracener filed suit February 21, 2006, seeking to 

partition land between himself, Doug Stracener, Bernice Stracener and Joey 

Stracener. At trial, which was held May 17, 2010, the parties reached several 

agreements which were approved by the trial court as set out in the Amended 

Decree Ordering Partition and Appointing Commissioners dated July 26, 

2010, and the Findings of Fact and Conclusions of Law submitted to the 

Appellate Court, as follows, to wit: 

"1. The parties stipulated and agreed and the Court finds that 

Mondee Stracener, Douglas Stracener and Bernice L. Stracener are the 

sole owners of the parcels of land described as: [Extensive property 

description redacted]. 

"2. The parties stipulated and agreed and the Court finds that 

Mondee Stracener, Douglas Stracener and Bernice L. Stracener each 

2 
own an undivided interest in the above described property in fee simple, 

which is not subject to any mortgages, liens, or other encumbrances, as 

follows: 

A. Mondee Stracener- 68.75% 

B. Douglas Stracener -15.625% 

C. Bernice Stracener- 15.625%. 

"3. The parties stipulated and agreed and the Court finds that the 

single-family dwelling and 1 acre is to be 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. 

"4. The parties stipulated and agreed and the Court finds that Joey 

Stracener owns a 100% undivided interest in the following parcel of land 

and fee simple, which is not subject to any mortgages, liens, or other 

encumbrances, and further, the parties convey the below described 

property and waive any interest in same: 

All that certain one (1) acre of land lying in the Wm. King HR 

survey, Abs. No. 265, Upshur County, Texas and being out of the 

SE part of the original 70-acre tract owned by Mrs. G. I. 

Stracener, and better described in Warranty Deed dated 

September 6, 1990 between Grantor: Douglas Stracener and 

wife, Mary Ann Stracener and Grantee: Joey Keith Stracener, a 

3 
single man recorded in the Deed of Records of Upshur County 

Vol. 67 Pg. 931 . 

"5. The parties stipulated and agreed and the Court finds that the 

minerals in the land at issue in this case described in paragraphs one 

(1) and three (3) above, remain undivided at this time. 

"6. The parties stipulated and agreed and the Court finds that 

Mondee Stracener owns 20 acres of land adjacent to the southwest 

corner of the property being partitioned that can be accessed by the 

runway on the property being partitioned. 

"7. The parties stipulated and agreed and the Court finds that the 

whole of the above described property is susceptible to fair and 

equitable partitioning in kind between the parties so as to reflect their 

respective interest and equities, and the land will not be partitioned by 

lot." 

The parties did not reach agreement on other issues, including but not 

limited to, the runway issue which was the subject of a prior appeal. The 

parties presented such disputed issues to the Trial Court at a hearing in the 

form of testimony and evidence. The trial court made findings of fact and 

conclusions of law regarding the disputed issues presented at hearing, as set 

out in the Amended Decree Ordering Partition and Appointing Commissioners 

4 
dated July 26, 2010, and the Findings of Fact and Conclusions of Law 

submitted to the appellate court, were as follows, to wit: 

"1. The foregoing property should be partitioned between the above 

named parties such that the value of the parcels allotted to each party 

reflects that party's interest as recited above, and that the above 

described single family dwelling and one (1) acre on which the dwelling 

rests is awarded to Mondee Stracener, Plaintiff, and that, in addition, his 

share of the real property is set aside to include such improvements. 

"2. Any contributions claims for taxes, utilities, expenses and 

maintenance for the single family dwelling and adjoining one (1) acre 

tract and remaining property at issue (not including the runway) are 

denied. 

"3. Mondee Stracener is entitled to $19,937.50 from the insurance 

proceeds as a result of the house located on the property at issue in 

this case. 

"4. Bernice L. Stracener and Doug Stracener are entitled to the 

remaining funds in the Ida May Stracener estate bank account at Gilmer 

First National Bank, account number 160025306, after payment of 

$19,937.50 to Mondee Stracener. 

5 
"5. Bernice L. Stracener and Doug Stracener are entitled to the 

remaining assets listed in the Inventory, Appraisement and List of 

Claims dated March 19, 2004. 

"6. Mondee Stracener is not entitled to have the runway located on 

the property to be partitioned declared his sole property in his own right 

as part of his 68.75% interest in that portion of the property, unless such 

award is made as part of subsequent partition proceedings. 

"7. Mondee Stracener is not entitled to a unity of use with the twenty 

(20) acres he owns adjacent to the property at issue in this case, unless 

such award is made as part of subsequent partition proceedings. 

"8. Mondee Stracener is not entitled to $25,000.00 as the value of the 

runway improvement and that such will not be considered by the 

commissioners as a portion of the value of the above described 

property." 

Thereafter, that order by the Trial Court was appealed to the Twelfth 

Court of Appeals in Tyler in Cause No. 12-1 0-00270-CV, styled Mondee 

Stracener v. Doug Stracener, Bernice L. Stracener and Joey Keith Stracener. 

That Court affirmed the Trial Court's Order on the g th day of November, 2011 , 

and remanded the case for further proceedings. 

6 
,, . 

Thereafter, the Trial Court proceeded to appoint three special 

commissioners, appointed by Amended Decree Ordering Partition and 

Appointing Commissioners (CR-17) who filed a Commissioners' Report (CR25) on August 9, 2013, partitioning the 54.883 acres into three separate 

portions, and which report was deficient in that it failed to assess the value 

to the whole of the land. 

Objections to the Report were filed, and a hearing was set. 

The Court ordered the Special Commissioners to amend their Report 

of Commissioners to place value on the whole and values of each share 

partitioned to each party and to establish a value for the house and runway 

as improvements (Reporter's Record -119). 

On October 25, 2013, the Amended Report of Commissioners (CR-65) 

was filed of record. On January 11, 2014, the Court entered the Final Decree 

of Partition, same being filed on July 15, 2014, in the 115th Judicial District 

Court (CR-80). 

ARGUMENT AND AUTHORITIES 

Appellees agree that the issues presented for review are intertwined 

and will respond to the argument and authority section as stated by the 

Appellant. 

7 
A. The Court properly advised the Special Commissioners to 

consider the value of the house, in conformity with the Decree 

Ordering Partition and Appointing Commissioners. 

B. The Court properly instructed the commissioners to include the 

value of the home in amending the report because of the prior 

order of the court and the stipulation of the parties. 

C. The Commissioners properly followed the Court's instructions in 

the Decree Ordering Partition and Appointing Special 

Commissioners, and the Court was proper in entering its Final 

Decree of Partition based upon the Report of Commissioners. 

This case has had a long and tortuous road in arriving at the point 

where we find ourselves today. The original case was heard by Judge 

Richard Davis; and on the 21 st day of June, 2010, Judge Davis entered a 

Decree Ordering Partition and Appointing Commissioners. Thereafter, Judge 

Davis entered an order on the 191

h day of July, 2010, which was an Amended 

Decree Ordering Partition and Appointing Commissioners. 

In the Amended Decree (Clerk's Record, Page 17 in paragraph 2), the 

Court stated, "that the following parties each own an undivided interest in the 

8 
., 

above-described property in fee simple" and thereafter set out the percentage 

amounts. 

It is undisputed that the home and one acre set aside to Mondee 

Stracener were included in the 68.75% awarded to Mondee Stracener. 

Thereafter, on page 4, paragraph 7 ,of the Amended Decree (Clerk's 

Record, page 20) the Court states, "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." 

The Court goes on to state (Clerk's Record, page 20), "IT IS, 

THEREFORE, ORDERED that the foregoing property is partitioned between 

the above-named parties such that the value of the parcels allotted to each 

party reflects that party's interest as recited above, and that the abovedescribed single family dwelling and 1 acre on which the house rests is 

awarded to Mondee Stracener, Plaintiff, and that in addition his share of the 

real property is set aside to include such improvements." 

Appellant wants to take the position that the home as set aside to 

Mondee Stracener was to be set aside as his sole and separate property, 

9 
separate and apart from the partition. Appellees contend the house was 

never intended to be excluded from the partition of the property as a whole. 

The position of the Appellant is contrary to the stipulation and the intent of the 

parties as found by the Trial Court. It is obvious that the parties intended to 

divide monies and award Mondee Stracener specific property. However, to 

assume this would include a gift of the house to Mondee Stracener is 

ridiculous. Appellant in his argument states that the single family dwelling 

was not to be considered, but this argument conflicts with the above-stated 

paragraph wherein the Court expressly orders that the "foregoing property is 

partitioned between the above- named parties." The Court does not 

segregate the separate tracts to be partitioned from the single family dwelling 

and 1 acre but merely awards the ownership of that single family dwelling and 

1 acre to Mondee Stracener as a part of the 68.75% interest that he owns, 

pursuant to the stipulation. 

The partition of the property was a part and parcel of a settlement of all 

of the interests in the Estate of Ida Mae Stracener, and the original partition 

included a division of monies between the parties to equalize the Estate. 

As set out in the stipulation at the hearing held on May 17, 2010, 

(Respondent's Exhibit 4 located at the end of Volume 3 Reporter's Record of 

10 
the hearing held November 18, 2013), the stipulation was that "Mondee 

Stracener will take title in fee simple absolute to the house and that, out of 

the percentage of property that Mr. Stracener owns, he will allocated 

[sic] one acre which will go along with the house. That out of the 

acreage, Mondee Stracener will be allocated sixty-eight-point-seventyfive percent which includes the house and one acre." 

The language "out of the percentage of property that Mr. Stracener 

owns" was not objected to or clarified and sets out that Mondee Stracener's 

percentage would include the 1 acre and house (and the value). 

The May 17, 2010 hearing thereafter proceeded with the Court hearing 

evidence as to setting aside specific property, such as the runway in dispute, 

to Mondee Stracener which was denied by the Court (Amended Decree 

Ordering Partition and Approving Commissioner's Report, Clerk's Record, 

pages 17-21 ). 

STANDARD OF REVIEW ARGUMENT 

A trial court exercises broad discretion in balancing the equities in a 

case seeking equitable relief. Edwards v. Mid-Continent Office Distributors, 

LP, 252 S. W. 3d 833 at 836 (Tex. Civ. App. - Dallas 2008, pet denied). 

11 
. ' 

In a non-jury trial, when a court makes no separate findings of fact or 

conclusions of law, the appellate court must assume that the trial court made 

all findings in support of its judgment. Pharro v. Chambers Co., 922 S. W. 

2d 945 at 948 (Texas 1996). The trial court's judgment must be affirmed if it 

can be upheld on any legal theory that finds support in the evidence. In Re: 

W.E.R. 669 S. W. 2d 716, 717 (Texas 1984). 

The trial court as the finder of fact is the sole judge of the credibility of 

the witnesses and the weight to be assigned to their testimony. Canal 

Insurance Company v. Hopkins, 238 S. W. 3d 549, 557 (Tex. Civ. App. - Tyler 

2007,pet denied). A reviewing court may not impose its own opinion for that 

of the finder of fact, and a reviewing court must assume that the finder of fact 

decided all credibility issues in favor of the findings if a reasonable person 

could do so. The appellate court must assume that the finder of fact chose 

what testimony to believe or disregard based upon the evidence that the 

finder of fact heard, were reasonable . City of Keller v. Wilson, 168 S. W. 3d 

802, 819-20 (Texas 2005). Therefore, an appellate court must assume that 

the finder of fact made all inferences in favor of the findings if a reasonable 

person could do so. Canal Insurance Company v. Hopkins, 238 S. W. 3d 549 

at 557 (Tex. Civ. App. -Tyler 2007,pet denied). 

12 
' . . 

In the instant case, the Court heard all of the evidence and thereafter 

rendered an original order determining the interests of the joint owners and 

claimants, and appointed the commissioners giving them appropriate 

directions. 

Judge Davis specifically addressed the issue that Appellant complains 

about. In the hearing on Motion Objecting to Commissioners Report held 

November 18, 2013, the Court, at pages 117-118 of the hearing transcript 

(RR -117 -118), received evidence concerning the previous agreements ofthe 

parties concerning the home (Exhibit 4 of transcript of previous hearing). 

Thereafter, on page 119 of the hearing transcript on Motion Objecting 

to Commissioners Report (RR- 119), the Court directed the Commissioners 

to prepare an amended report reflecting the values as required by statute. 

On page 119, at line 21 of the Reporters Record of the November 18, 

2013 hearing (RR- 19), counsel for Appellees asked specifically whether "we 

are to consider the value of the house and will consider the partition?" The 

Court responded, "Correct," and thereafter, on page 120 (RR - 120), 

continued to discuss the value of the runway and house and whether or not 

their values affect the value of the land and directed that the value of the 

house and runway "are to be taken into consideration if it's appropriate" (RR13 
120). This specific statement negates Mondee Stracener's position that the 

house was awarded to him free and clear of the balance of the partition. 

Therefore, the Trial Court, which had heard this case from the 

beginning, specifically ordered that the value of the house be considered in 

the overall partition by the Commissioners, which the Commissioners did. 

Once the Commissioners returned their Amended Report, the Court acted 

upon Defendants' Motion to Enter Judgment. 

In the hearing held on Defendant's Motion to Enter Judgment on the 181

h 

day of June, 2014, page 16, beginning line on 17 of the Record (RR 

06/18/2014- page 16), the Court found that "that stipulation does not reflect 

that the value of the house would not be considered. Therefore, the Court 

finds that the value of the house is to be considered by the Commissioners 

in making their division. Therefore, it is the order of the Court that the 

amended partition order is approved by the Court." This once again confirms 

the Court's finding and determination based upon the evidence he heard. 

It is clear that the Trial Court carefully heard and considered all of the 

evidence in making its final decision. It is obvious that the Court determined 

the questions of fact in favor of the judgment rendered and thereafter entered 

an order properly based upon the Commissioners' findings. This Court should 

14 
not be asked to and should not substitute its judgment for that of the Trial 

Court Ibid. (City of Keller and Canal Insurance Company). 

CONCLUSION 

Because the Court entered a specific order partitioning the property in 

question and awarded a specific percentage to the parties, the 

commissioners had a specific task to perform according to the law. The 

subsequent Decree was confirmed by the Tyler Court of Appeals, and 

thereafter the Court considered the report of the Commissioners as 

amended. It is obvious that the Court based its Final Decree of Partition upon 

the evidence and arguments heard, and resolved all questions offact and law 

in favor of the judgment. Therefore, the judgment should be affirmed by this 

Court which should not attempt to substitute its judgment for those found by 

the trier of fact. 

PRAYER 

WHEREFORE PREMISES CONSIDERED, Appellees respectfully move 

the Court to affirm the trial court's final decree of partition dated July 11, 2014, 

and filed July 15, 2014, in all ways, and overrule Appellant's appeal and 

adjudge all costs against Appellant and for such other and further relief to 

which Appellees may show themselves justly entitled. 

15 
·, . 

Respectfully submitted: 

GRIFFITH & GRIFFITH LAW FIRM, P.C. 

404 North Titus 

P.O. Box 864 

Gilmer, Texas 75644-0864 

Tel: (903) 843-5005 

Fax: (903) 843-5392 

E-Mail: davidg@griffithlawfirm.com 

BY: /s/ David B. Griffith 

David B. Griffith 

State Bar No. 084 79300 

Attorney for Appellees 

CERTIFICATE OF COMPLIANCE 

I certify that this document was prepared with WordPerfect X5. The 

body text is in 14 point font, and the footnote text is in 12 point font. Relying 

on the word count function in the word processing software used to produce 

this document, I certify that the number of words in this reply (excluding any 

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) is 3,180. 

Is/ David B. Griffith 

David B. Griffith 

16 
CERTIFICATE OF SERVICE 

I certify that on April 10, 2015, a true and correct copy of Appellee's 

Brief was served on Mondee Stracener's attorney of record, Robert M. 

Minton, electronically at mintonbrown@suddenlinkmail.com and the electronic 

transmission was reported as complete. 

lsi David B. Griffith 

David B. Griffith 

Email: davidg@griffithlawfirm.com 

17