Opinion
No. 10-05-00092-CV
Opinion delivered and filed March 8, 2006.
Appeal fromthe 82nd District Court, Robertson County, Texas, Trial Court No. 03-12-16821-CV.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
Caroline Taylor Edwards appeals from an order approving a commissioners' partition report and dividing a 7.12-acre tract among Appellees and herself. Edwards contends in three issues that: (1) the court erred by refusing to abate the commissioners' hearing pending disposition of her motion for new trial following the court's initial partition order; (2) the court erred by overruling her objection to the commissioners' report; and (3) the court erred by failing to order the commissioners to partition the property by lot. We will affirm.
Background
On September 27, 2004, the court signed the initial partition order decreeing that Edwards owned an undivided one-half interest in the property and that Appellees owned an undivided one-half interest. Edwards filed a motion for new trial on October 21, contending that the court abused its discretion by sustaining Appellees' objection to the admission of ad valorem tax receipts and erred by failing to award her any reimbursement for ad valorem taxes paid on the property.
The commissioners scheduled a hearing for October 29. That morning, Edwards filed a motion to abate the commissioners' hearing pending disposition of her motion for new trial. Nevertheless, the commissioners proceeded with the hearing and partitioned the property, awarding the southeasterly 1.78 acres of the triangular-shaped tract to MACRU, the northeasterly 1.78 acres to Oaks Diamonds, and the westerly 3.56 acres to Edwards.
The commissioners signed and filed their report on November 5. Edwards filed a motion objecting to the report the same day, contending that the report is improper because the commissioners partitioned the property before the motion for new trial was ruled on and because she did not participate in the commissioners' hearing.
Three days later, the court signed its "Final Judgment" approving the commissioners' report and dividing the property among the parties. The court also signed orders denying Edwards's motion for new trial and her motion to abate the commissioners' hearing. Thereafter, Edwards timely perfected this appeal from the "Final Judgment."
Issues Presented
Edwards contends in her first issue that the court erred by refusing to abate the commissioners' hearing pending disposition of her motion for new trial. She argues that this was error because her claim for reimbursement of ad valorem taxes had not yet been resolved. However, this reimbursement claim is one which should have been resolved by an appeal from the initial partition order. See Spigener v. Wallis, 80 S.W.3d 174, 178-79 (Tex.App.-Waco 2002, no pet.). Thus, it cannot be determined in this appeal. Id. Accordingly, we dismiss Edwards's first issue for want of jurisdiction. See Cozby v. City of Waco, 110 S.W.3d 32, 35-36 (Tex.App.-Waco 2002, no pet.).
Edwards contends in her second issue that the court erred by overruling her objection to the commissioners' report which objection was premised on her failure to participate in the commissioners' hearing. However, as Edwards states in her brief, her attorney appeared at the commissioners' hearing "to announce his client's election not to participate in the proceedings." (emphasis added). Because Edwards chose to not participate in the commissioners' hearing, she is estopped to complain that the commissioners' report is erroneous because of her absence from the hearing. See Kelly v. Demoss Owners Ass'n, 71 S.W.3d 419, 424 (Tex.App.-Amarillo 2002, no pet.). Accordingly, we overrule Edwards's second issue.
Edwards contends in her third issue that the court erred by failing to order the commissioners to partition the property by lot. However, Edwards did not present this complaint to the trial court. Thus, it has not been preserved for appellate review. See Tex.R.App.P. 33.1(a)(1); Grimes v. Hall, 211 S.W.2d 956, 958 (Tex.Civ.App.-Eastland 1948, no writ). Accordingly, we overrule Edwards's third issue.
We affirm the judgment.