Opinion
NO. 03-15-00399-CVNO. 03-15-00400-CV
02-18-2016
Brian Dierschke and Marvin Dierschke, Appellants v. Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke, Appellees
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT
NO. C120427C, HONORABLE R. L. BLANN, JUDGE PRESIDINGMEMORANDUM OPINION
This appeal arises out of a petition filed by appellees Cheryl Lynn Dierschke, Dana Joy Dierschke Nezwek, and Grant Steven Dierschke against pro se appellants Marvin Dierschke, their father, and Brian Dierschke, their brother. We affirm the trial court's decree ordering partition and appointing commissioners.
Marvin's other daughter, Christy Ann Dierschke, and Marvin's wife, Janis Dierschke, were also named as defendants in the underlying lawsuit, but they are not parties to this appeal.
Factual Background
Marvin married Carmelita Schwertner in 1962, and they had five children together. Carmelita developed paranoid schizophrenia, and a guardianship proceeding was initiated on her behalf. In 1979, Marvin and Carmelita signed a trust agreement naming Marvin as trustee and providing that she owned certain tracts of land, either in full or in part. The property was held in trust for the benefit of Carmelita and, upon her death, was to be distributed to her and Marvin's surviving children in equal shares once they reached adulthood. In June 1980, Marvin and Carmelita, acting through her guardian, were divorced. Marvin and Carmelita, through her guardian, signed an Agreement Incident to Divorce and Concerning Conservatorship, which incorporated the 1979 trust agreement and provided that all of the property owned by Marvin as trustee belonged to Carmelita and that Marvin agreed to convey that property to Carmelita's guardian; that agreement was incorporated into the divorce decree signed by the trial court. After Marvin ceased acting as trustee for Carmelita's trust, Wells Fargo Bank became successor trustee. In 2009, Carmelita died, and Wells Fargo provided a Deed Without Warranty conveying to each child an undivided one-fifth interest in three pieces of property designated in the deed as Tracts A, B, and D and an undivided one-fifth interest in 35.5 percent of the parcel designated as Tract C.
Central National Bank, Wells Fargo's predecessor, was named by the trust agreement as successor trustee, and Central National's duties eventually passed to Wells Fargo.
Tract A is a 92-acre tract, Tract B is a 20-acre tract, Tract C is a 225-acre tract on which Marvin and Janis have their homestead, and Tract D is a 127-acre tract.
In December 2012, appellees filed their petition for partition and accounting, seeking the partition of the four tracts and asking that appellants be required to provide an accounting of the income they had received from the properties and pay appellees their share of that income. After appellants violated several court orders requiring them to respond to appellees' discovery requests, the trial court struck their pleadings and granted default judgment against them on all of appellees' claims. The trial court then signed an order finding that Marvin's five children each owned an undivided one-fifth interest in Tracts A, B, and D, and an undivided one-fifth interest in 35.5 percent of Tract C—the two acres on which Marvin and Janis had their homestead were excepted and set aside from consideration. The court appointed three commissioners to conduct the partition and found that appellees should recover from appellants $264,724 on their claim for an accounting.
Discussion
On appeal, appellants argue that the trial court erred in allowing "forgery, perjury and false documents into the trial," attacking certain documents introduced into evidence by appellees. Appellants assert: that Carmelita was never adjudged incapacitated and that therefore her guardian could not properly sign documents on her behalf; that the attorney who probated Marvin's father's estate committed fraud when he "talked Marvin into putting a portion of [a 283-acre tract owned by Marvin's parents] into a trust on March 16, 1979 so it would be buried and not found"; and that appellants showed that other parties had superior title to at least some of the tracts in question at the time they were transferred into Carmelita's trust estate. However, appellants did not object when those documents were introduced into evidence; indeed, they did not participate in the trial at all. Thus, any objections to the documents introduced by appellees have been waived. See Tex. R. App. P. 33.1(a) (record must show timely complaint was made to and ruled on by trial court); Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) ("Error is waived if the complaining party allows the evidence to be introduced without objection."). Further, the trial court struck all of appellants' pleadings and filings, and the documents on which appellants rely for their assertions were not considered by the court and cannot be considered by this Court on appeal. See Perry v. Del Rio, 66 S.W.3d 239, 259 (Tex. 2001) ("appellate court's review is confined to the record in the trial court when the trial court acted"); Hendee v. Dewhurst, 228 S.W.3d 354, 376 (Tex. App.—Austin 2007, pet. denied) ("When reviewing a summary judgment, an appellate court cannot consider independent grounds—much less summary judgment evidence—not presented to the trial court.").
Conclusion
Based on the record before the trial court, we cannot find that the trial court erred in determining that appellees each owned one-fifth of Tracts A, B, and D and one-fifth of Carmelita's 35.5 percent interest in Tract C, less the two acres containing Marvin and Janis's homestead; that the properties should be partitioned between appellees and their father, stepmother, and remaining two siblings; or that appellants owe to appellees $264,724. We affirm the trial court's decree.
A trial court's determinations in a partition suit may be attacked for legal and factual sufficiency, but when, as here, the court is not asked to enter findings of fact and conclusions of law, we will assume that the trial court made all factual findings necessary to support its decree. Jimmie Luecke Children P'ship, Ltd. v. Pruncutz, No. 03-10-00840-CV, 2013 WL 4487541, at *3 (Tex. App.—Austin Aug. 16, 2013, no pet.) (mem. op.); see generally Tex. R. Civ. P. 756-771 (rules governing partition of real estate). --------
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: February 18, 2016