## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 20

- 00018

- CV

DON K . MCCLENDON , Appellant

V. JON L. MCCLENDON , Appellee

On Appeal from the County Court at Law No. 2

Gregg County, Texas Trial Court No. 2017

- 1415

- CCL2

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens2 

### MEMORNADUM OPINION This dispute involves the partition of two adjacent tracts of land in Gregg County, which

are co - owned equally and occupied by broth ers Don K. McCl endon and Jon L. McCle ndon

. After some disputes over certain structures on the property , Jon sued Don seeking a judicial partition of the property. Following a bench trial over the equitable issues in the case, the County Court at Law Num ber 2 of Gregg C ounty appointed commissione rs to partition the property. After the commissioners issued their decision on the partition, Don objected to the commissioners’ report. The trial court then conducted a second bench trial, at which time it

a dd ressed Don’s obje ctions. Following the seco nd bench trial, the trial court denied Don’s objections to the commissioners’ report, approved the commissioners’ report, and entered findings of fact and conclusions of law. On appeal, Don contends that the e vi dence is legally and factually insufficient to support the trial court’s findings that (1) the commissioners’ followed the trial court’s instruction to increase the value of the tract awarded to Don by $10,000 .00 and (2) the partition as a whole was jus t and fair. Because there was legally and fac tually sufficient evidence that (1) Don’s allocated portion of River Tract was worth $10,000 .00 more than Jon’s allocated portion and (2) the partition as a whole was just and fair, we affirm the trial court’s j udgment.
I. Partiti on Proceedings
The Texas “ Ru les of Civil Procedure set forth a two

- stage process for the partition of real
estate , ” and each stage leads to a final, appealable judgment. Bowman v. Stephens , 569 S.W.3d 210, 221 (Tex. App.

— Houst on [1 st Dist.] 2018, no pet.) ; s ee T EX
. R. C IV
. P. 7 56

– 7 71

. In t he3

first stage, the trial court’s judgment determines whether the property is susceptible to partition in kind, decides the fractional interest of each joint owner, resolves all questions of law o r equity affecting title , and determines the va lue of improvements to provide for the adjustment of equities between the parties. See T EX
. R. C IV
. P

. 761; Yturria v. Kimbro , 921 S.W.2d 338, 342

– 44 (Tex. App.

— Corpus Christi 1996, no writ). As a resul t, ar guments about the existe nce and value of imp rov ements or equitable claims that a particular party should receive a particular tract are resolved in the first stage of the proceedings. Yturria , 921 S.W.2d at 342

– 44

. If the trial court determines that the property is susceptible to partition in kind, t hen it may a ppoint commissioners to divide the property in accordance with the trial court’s equitable and legal
determinations. Id. at 342

. “In the second stage, the commissioners consider th e propert y’s c haracteristics and evalu ate objective considera tions for dividing the property to retain the partitioned tracts ’ highest value. ” Bowman , 569 S.W.3d at 222. The commissioners determine the “exact manner of valuing the real property” and the appropria te me thod of “dividing that p roperty into shares

amo ng the parties.” Yturria , 921 S.W.2d at 342. Because the commissioners lack judicial powers, they must rely on the trial court’s instructions, and legal and equitable determinations
from the fi rst stage , in making their decisions. Id. Once the commis sioners have made their decisions, they submit a report, under oath, to the trial court, stating their recommendations for the actual property partition. T EX
. R. C IV
. P. 766, 769. Any party obj ecting to the commissioners’ report mu st file their objection s within thirty days, and the trial court shall hold a trial on the objections. T EX
. R. C IV
. P. 771. The party4

objecting to the report has the burden of proving that it is materially erroneous or that i t is an unequal or unjust div ision of the property. Ellis v. First City Nat ’l Bank , 864 S.W.2d 555, 557 (Tex. App.

— Tyler 1993, no writ ). If the trial court overrules the objections to the commissioners’ report, if any, and the report is otherwi se materia lly c orrect, the trial court may approve the report in a second judgment. See Bowman , 569 S.W.3d at 222. That said, the trial court’s judgment must reject the report and appoint new commissioners if the trial court sustains an objection to it, finding it to b e “erroneous in any mate rial respect, or unequa l or unjust.” T EX
. R. C IV
. P. 771.
II. Factual and Procedural Background
Jon and his twin brother, Don , each owned an undivided one

- half interest in two tracts of real prop erty in Gr egg C ounty, Texas. One tract, the “River Tract ,” co nsisting of 23.67 acres, overlooks the Sabine River. The other tract, the “Farm Tract,” consisting of 20.61 acres, is
located on Bar M Road. The brothers are the sole owners of the two tracts and have a comm on source of title. In July 2017, Jon sued in the County Court at Law Number 2 of Gregg County , seeking, in part, to have the tracts partitioned in kind and divided by court

- appointed commissioners. Jon’s petition alleged that Don had torn down ha lf of a barn located on the Farm Tract, which
Jon had to pay to repair. Jon also alleged that Don had threatened to remove his half of other structures located on the properties. The parties eventually stipulated that the properties could be partitione d in kin d, and when the trial court agreed, it enter ed an orde r of partition and appointed5

commissioners. Even so, Jon filed a motion for new trial, and the trial court granted the motion and set aside its previous judgment. In June 2019, the trial cour t held a bench trial to address the parties’ equitable argumen ts about the division of the properties and the instructions to be given to the appointed commissioners. Jon and Don were the only witnesses to testify at the trial. Jon testified that he and Do n each built their respective residences on the Rive r Tract, that they also individually built separate houses on the Farm Tract, and that there were various other jointly

- built

- and

- paid

- for structures on the two tracts, including a large, $30,000 .00 shed o n the Farm Tract that was built in the 1980 s. Jon also testif ied that Don had built a new boat ramp and “a big shed” near his
home on the River Tract and that Don had built and paid for those structures on his own. Although Jon and Don built the “old” boat ramp together and split the $2,050 .00 cost of
t he concrete, Jon claimed that he alone paid $1,800 .00 for the six loads of asphalt and $441 .00 for the support rods used to build the ramp. Because the boat ramp is next to his driveway, Jon testified t hat he had con flicts with his brother because Don all owed other people to us e the ramp. According to Jon, these other people created ruts in his driveway, damaged his grass and yard, behaved inappropriately, and parked in front of his house. Don confirm ed that he and Jon built the old boat ramp together a nd the pipe fence

surro unding the ramp road, but he could not remember who paid for the construction materials. He testified that the old boat ramp area is prone to flooding and getting muddy. Don owns the land next to the portion of the River Tract wher e his house and the new boat ramp are located, and Jon owns a small tract of land that shares a border with the Farm Tract. Don claimed that6

the new boat ramp was on his separate property, but he admitt ed that he had never had the area surveyed. Don testi fied that the “big sh ed , ” or workshop, he built near his home was sixty

- five feet by forty feet and included a small living quarter. He built the $50,000 .00 structure due to Jon’s complaints about his use of the large shed on the Farm Tra ct. Don explaine d that , because of Jon’s issues with his use o f a water well on the property, he had another well drilled at a cost of alm ost $10,000.00. Don also pointe d out that a portion of the Farm Tract still had “oilf ield junk” on it, including “con crete, open pres sure pads, tank pads, [and] pits.”
In summar y, Jon argued that the trial court should instruct the commissioners to divide the property in a way that (1 ) Jon and Don would each retain their respective resid ences and houses on both tracts, (2) Jon would r eceive the old boat ramp next to his home, (3) Jon would receive credit for the separate costs he paid for the construction of the boat ramp, and (4) Jon would receive credit for the cost of rebuilding the ba rn that Don partially destroyed. Don agreed tha t he and Jon should each receive their houses on each tract and that Jon should be given the damaged and rebuilt barn to compensate him for the rebuilding cost. Don also argued that he should receive credit for the funds and labor he put i nto building the old boat ramp and that the commissioners sho uld consider the value of the hay crop existing on the property as well as the improvements he had made at h is sole cost. In July 2019, the trial court entered a n order of partition and appoint ed commissioners. The trial court found that the properties w ere susceptible to partition in kind. The trial court then instructed the commissioners as follows :7

The Com missioners shall partition this property into two part s, each share to contain one or more tracts or pa rcels, as the Commissioners may think proper, having due regard in the division of the situation, quantity, and advantages of each share, so that the sha res may be equal in value, as nearly as may be. The C ommissioners shall further make those Equitable A djustments as set forth in Exhibit “B” attach ed hereto and incorporated herein. In Exhibit B, the trial court instructed the commissioners to divide th e River Tract and the Farm Tract between the brothers with each of them receiving thei r separate reside nce as well as a share of each tract with “du e regard in the division to the situation, quantity and advantages of each share so that the shares may be e qual in value, as nearly as may be.” The trial court also instructed the commissioner s, in pertinent p art: 4. With regard to the home of JON MCCLEN DON, you are instructed to include the boat ramp within the home tract of JON MCCLENDON, due to the proximit y of the boat ramp to his residence. You are to increa se the value of the tract awarde d to DON MCCLEND ON by $10,000.00.
5. With regard to the FARM TRACT, you are instructed to include the barn with the tracts awarded to JON MCCLENDON.
6. You are instru cted to take note of the existence of an old oil & gas plant site with concrete sub

- sur face contaminati ons, old concrete pads and oilfield debris on the FARM TRACT, and make corresponding adjustments, as necessary, to the benefit of the party being awarded said portion of the FARM TRACT.

. . . . 10. In cases such as this, where there are m ultiple tracts, each party is not entitled to an equal share o f each tract, but each party is entitled to an equal share of the entire commonly owned property.
In Octo ber 2019, the commissioners issued their Special Commis sioners Partition Division repor t, specifying th at:8 1. RIVER TRACT The partition line shou ld be located 20 feet southwest of the centerline of the drainage ditch that traverses in a southeasterly direction where it would intercept the existing driveway of Jon McClendon ’ s residence. The line would th en follow the southwest side of the driveway in a straight line to where it would intersect with Phillips Road.

8.350 Acres to Don McClendon
15. 277 Acres to Jon McClendon See Exhibit A.
2. FARM T RACT The partition will be fro m Bar M Ranch Road to the existing signal road, past the horse barn to a drive going south and the partition would go from the gravel drive westward past the well to the edge of the property. Both parties will have access o ff Bar M Ranch Road to their pro perties by way of existing roads.

13. 9 Acres to Don McClen don 6. 9 Acres to Jon McClendon See Exhibit B. Under the commissioners’ division, the brothers rece ived roughly the same amount of overall property; Don rece ived 22.177 acres and Jon receiv ed 22.25 acres.
Do n timely objected to the partition report , arguing that the division was “erroneous, unequal, unfair or otherwise unjust.” First, although the co mmissioners awarded the old boat ramp to Jon , per the t rial court’s instructions, Don claimed that the commi ss ioners failed to “increase the value of the tract awarded to [Don] by $10,000 .00 .” Secondly, Don argued that , even though they were awarded r oughly equal amounts of total acreage, “t he value of the sh are awarded to him [was] grossly less in value than t he share awarded [ to ] Jon” b ecause the9

commissioners failed to follow the trial court’s instructions to consider the “quantity and advantages of each share.” Don contended that the com missioners disrega rded the “existence of the pipeline easements,” the e xi stence of the old oil and gas plant site, and the “existence of the cleared portions” of the properties awarded.
The trial court conducted a bench trial on Don’s objections. Don te stified that , even though it was “hard to determine” from the maps admi tt ed at trial, he believed th at the portion of the Farm Tract containing the remnants of the oil and gas plant, including a benzene

- tainted
wate r well, were awarded to him in the partiti on. From his exa mination of the property division, the commissioners fa iled to give him a $10,000 .00 credit for the old boat ramp and failed to compensate him for the liabilities of the oil and gas equipment. Tha t said, Don admitted that his awarded portion of the Farm T ract included the workshop, one shallow water well, a nd two deep water wells along wi th the benzene

- tainted well. His awarded portion of the River Tract also included a shop , even though neither o f the tracts awarded to Jon include d a shop. Jon testifie d that Don’s house on the bluff of the River Tract h as a “million

- dollar view ” and that it barely ever floods. Yet , the portion of the River Tract awarded to him was prone to serious and frequen t flooding. Although their respective portions of th e River Trac t were about equally burdened with pipeline eas em e nts, Jon testified that his awarded p ortion also contained a “heavy duty highline” and utility easement that isolated part of his property. Jon also explained that , while his awarded portion of the Farm Tr act was burdened with 100 to 1 50 yards of pipel in e easement, Don’s awarded portion included “may be 5 feet of the pipeline that’s

-- that’s active.”10

Jon called Daryl Atkinson, one of the trial court’s appointed commissioners, to testify during t he trial on Don’s objections. A tkinson testified that he and the other two appointed commissioners used the property valuation information submitted to them by the trial court and counsel for both parties. The commissioners then divided the property in a ccordance w ith the trial court’s instructions. Afterwa rd s , they prepared and submitted the partiti on report in this case. Atkinson also testified that the commissioners increased the share awarded to Don by $10,000 .00 . He explained that , in dividing the pro perty, the commissioners considered the equipment a nd remains from the oil and gas plant site, whic h portions of the properties had been cleared of timber, and the existence of pipeline easement s. Atkinson believed that the commissioners’ chosen division of the property was as financially equal as possibl e u nder the parameters set by the trial court. Blair Abney, a state

- certified real estate appraiser listed in the case as Jon’s expert
witne ss, testified that he had reviewed the partition report. Abne y confi rmed the total acreage awarded to each broth er , as well as the acreage from each tract award ed to Jon and Don, respectively. Abney also testified that , while he had appraised the Farm Tr act and the River Tract, he had never appraised the partitioned porti ons awarded to each brother. He confirmed
t ha t Jon received the old boat ramp and that it a ppeared that Jon received more river

- front acreage on the River Tract than Don. Abney also ex plained that the portion of the Farm Tract that Don received in cluded the pads, pits , and equipment from the forme r o il and gas plant and that the equipment and a bandoned wells could devalue the property “depending on their influence.”11

Abney testified t hat , in his experience, proper partitioning should balance a prop erty ’s positive attributes against its negative at tr i butes. He speculated that , to balance out a po sitive award, such as the boat ramp, “the commissioners considered the power line easements on the [R]iver [T]ract, and the flood zone areas [awarded to Jon] , a s well as the bluff view [from Don’s house]; t hi n gs like that that make differences in land valu ations.” When asked whether, in his opinion, “there would be a difference of as much as $1 0,000 to the benefit of Don” between the partitioned portions of R ive r Tract, Abney responded in the affirmative, s ay i ng that it would be “pretty close” because five of the River Tract acres awarded to Jon were “not usable for a rural residential

- type use” because of the “power line” easement, and “the bluff with the exp ans ive view” was worth more than the “closed view t h at’s subject to flooding.” Based on his review of the partition report and the tracts awarded, he did not believe that the commissioners committed a “material error,” he found no “insufficiencies,” and h e c oncluded the commissioners did “their job.”
O n February 18, 2020, the trial court denied Don’ s objections, which led to the acceptance of the commissioners’ partition report. Don appe aled from the trial court’s order. At Don’s request, the trial co urt entered findings of fact and conclusions of l aw . III. Standard of Review On appeal, Don argu es that the value of the property awarded to him was not increased by $10,000 .00 and that t he division, as a whole, was unequal because the commissioners disreg arded the equipment and remnants of the oil an d g as plant. Don’s argument specifically challenges the legal and factual sufficiency of the evidence to support the trial court’s findings12

(1) that the “Commissioners increased the value of the tract awarded to [Don] by $10,000.00 in compensation for awa rd i ng the boat ramp to Jon ” and (2) that the “Commissione rs report partitioned the subject real property in shares which are equal in value, as nearly as may be with regard to the interests of each party

. . . wit h due regard in the division of the real pr op e rty to the situation, quantity and advantages of each share. ” A trial court’s findings of fact are not conclusive and, like a ju ry’s verdict on questions,
may be challenged for legal and factual sufficiency o f the evidence. BMC Software Belgium,
N.V

. v . Marchand , 83 S.W.3d 789, 795 (Tex. 2002) ; Anderson v . City of Seven Points , 806 S.W.2d 791, 794 (Tex. 1991) . “[A]n appellant cha llenging the sufficiency of the evidence offered in a nonjury trial must challe n ge specific findings of fact. ” Boucher v. T h acker , No. 06

- 19

- 00055

- CV, 2020 WL 5163602, at *8 (Tex . App.

— Texarkana, Sept

. 1, 2020 , no pet. h. ) (alteration in original) (quotin g Green v. Alford , 274 S.W.3d 5, 17 (Tex. App.

— Houston [14 th Dist.] 200 8 , pet. d enied). We review the sufficiency of the ev i dence supporting a trial court’s challenged findings o f fact by applying the same standards we use in reviewing the sufficiency of the evidence supporting jury findings. Catalina v. Blasdel , 881 S.W.2d 295, 29 7 (Tex. 1994)

. The test for legal sufficie nc y is “whether the evidence at trial would enable reason able and fair

minded people to reach the verdict under review.” City of Kell er v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005) . In making this determination, t h e reviewing court credits favorable eviden ce if a reasonable fact

- finder could, and disregards contr ary evidence unless a reasonable fact

- finder could not. Id . If the evidenc e falls within the zone of reasonable disagreement, then the reviewing court ma y not substitute its judgment for that of t he fact

- finder. Id . at 822.13

In reviewing factual suffic iency, we consider and weigh all the evidence supporting and contradicting t he challenged finding and set aside the finding only if the evidence is so weak a s to make the finding clearly wrong and m an i festly unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) (per curiam) ; Boucher , 2020 WL 5163602, at *8. A reviewing court may review the legal conclusions “ drawn from the facts to determine their correctn es s. ” BMC Software Belgium,
N.V. , 83 S.W.3 d a t 794

. A reviewing court applies a de novo standard to review a trial court’s conclusions of law
in a bench trial “ and will uphold them if the judgment can be sustained on any legal theory supported by the evid en ce . ” In re Moers , 104 S.W.3d 609, 611 (T ex . App.

— Houston [1st Dist.] 2003, no pet.) ; see City of K eller , 168 S.W.3d at 822 . If the reviewing court determines a conclusion of law is erroneous, but the trial court nevertheless rendered the proper judgmen t, t he error does not require reversal. BM C S oftware , 83 S.W.3d at 794; Boucher , 2020 WL 5163602,
at *8. IV. There I s Sufficient Evidence that the Commissioners Followed the T rial Court’s Instruction to Adjust the Value of the Property Awarded to Don
I n his first point of error, Don contends tha t t he evidence is legally and factually insufficient to su pport the trial court’s finding that the Commissioners adjusted the value o f the property awarded to him by $10,000. 00. We disagree. Based on the testim ony that Jon was given 15.277 acres of the R iv e r Tract , that Don received 8.35 0 acres of the River Tract, a nd that the River Tract was worth about $5,000 .00 per acre, Don ar gues that the value of his portion was about $41,750 .00 , while the value of Jon’s port ion was $76,38 5 .00

. Don , therefore , cont en d s that the commissioners could not have14

increased the value of his porti on by $10,000 .00 as instructed by the trial court. Bu t the evidence does not support Don’s conclusion.
Atkinson testified that he and the ot her commissioners i ncreased Don’s awar de d share of the property by $10,000 .00 . Moreover, although Abney testified that an average acre of the River Tract was worth ab out $5,000 .00 , he gave uncontested testimony that the acreage awarded to Don was “pret ty close” to being worth $10 ,000 .00 more th a n the acreage awarded to Jon because five acres of Jon’s property was “not usable fo r rural residential

- type use” because of a utility easement. Abney also explained that Jon’s property lacked a view and was pro ne to flooding, while the acrea ge awarded t o Don included “the bluff with the expansive view.” Abney concluded that Don’s award ed property was worth more per acre than t he property awarded to Jon. As a result, we find that the evidence presented fall s wi thi n the zone of reasonable dis agreement an d is not so weak as to make the finding clearly wrong or unjust. See City of Keller , 168 S.W.3d at 822, 827; Cain , 709 S.W.2d at 176. We also find that the evidence is legally and factually sufficient to support th e trial court’s finding that the commi ss i oners increased the value of Don’s award by $10,000. 00. For these reasons, we overrule Don’s first point of error. V. There I s Sufficient Evidence that the Partition as a Whole W as Fair and Equitable
In his final p oint of error, Don contends t hat the p a rtition as a whole was unequal and unjust because the evidence was legally and factuall y insufficient to show that the commi ssioners considered “the oil and gas plant site [on the Farm Tract] in making equal divisi on of t he property.” Whether the commi ss i oners partitioned the tracts of real property15

equally according to value or whether the commissioners disregarded the old oil and gas plant are questions of fact to be decided by the trial court as the finde r of fa ct. See Price v. Price , 394 S.W.2d 855 , 8 59 (Tex. App.

— Tyler 1965, writ ref’d n.r.e.). In the partition of the Farm Tract, Do n received 13.9 acres and Jon rec eived 6.9 acres. Even though Don received almost twice as much of the Farm Tract acreage as Jon, it was undisputed that most of the con cr e te , pads, equipment , and pits from the brothers’ old oil and gas plant was located on the property awarded to Don. D on argues that , because he received the remnants of the oil and gas plant, “the fact that [he] re ceived more acres of the Farm T ract tha n J on is cancelled out or even still puts [him] at a disadvantage.” He also contends tha t , besides the commissioners fa iling to increase the value of his allotted share of the River Tract by $10,000 .00 , as arg ued in his first point of error, the entir e pa rt i tion was unjust and unfair because the commissioners also failed to consider the loss of v alue caused by the oil and gas materials. We disagree. Generally, the commissioners’ report will not be set aside absent a showing that the commissioners ar e bi as e d , or the allotted shares are unequal in market value. See Roberts. v. Philpot , 435 S.W.2 d 614, 615 (Tex. App.

— Tyler 1968, no writ). Don produced no financial evidence that his allotted tracts were worth l ess tha n the tracts allocated to Jon. Atk inso n
t estified that , in dividing the two tracts, he and the commissioners considered the equipmen t and remains from the oil and gas plant site, as well as which properties had been cleared of timber and which were burden ed by easements

. Don admitted that his s h are of the Farm Tract was twice as large as Jon’s and that it included a large work shop, o ne shallow water well, and two16

deep water wells, even though neither of the tracts awarded to Jon included a worksho p. Jon ’s allocated portion of the Farm Tra ct wa s burdened with 100 to 150 yards of pipeline easement, but Don’s portion included only “may be 5 feet of the pipelin e that’s

-- that’s active.” Atkinson testified that the division was as fair as they could ma ke it whil e adhering to the trial court’s
in st r uctions. Abney agreed, testifying that, based on his review of the partition report and the
trac ts awarded, he did not believe that the commissioners committed a “material error,” he found no “insufficiencies,” and he concluded the commissioners did “t he i r job.” As explained above , the evidence is legally and factually sufficient to support the tr ial court’s findin g that the commissioners increased Don’s allotted share of the River Tract by $10,000 .00 . Here, the tri al court was free to believe the t es t imo ny of Atkinson and Abney, who explained that the disadvantages of Don’s allocated portion of the Farm T ract wer e reasonably offset by receiving twice as much acreage as Jon did. Additionally, Don’s portion w as larg ely free of pipeline easements. Fo r t hos e reasons, we find that a reasonable fact

- finder could have determined that the commissioners fol lowed the tria l court’s instruction to take the oil and gas remnants into account, that the commissioners parti tioned the property in equal shares with “ du e

re gard in the division to the situation, quantity and advantages of each share , ” and that such a
fi nding is not a gainst the great weight and preponderance of the evidence. See City of Keller , 168 S.W.3d at 822 , 827; Cain , 709 S.W.2d at 176. As a resu lt , we overrule Don’s second point
of error.17

VI. Conclusion For the reasons stated, we affirm the tr ial court’s ju dgment.

Scott E. Stevens Justice Date Submitted: September 4, 2020 Date Dec ided: November 18 , 2020