Opinion
14-24-00032-CV
12-17-2024
MATT SLOVACEK AND NIKI SLOVACEK, Appellants v. CHRISTOPHER FRIEMEL, Appellee
On Appeal from the 155th District Court Fayette County, Texas Trial Court Cause No. 2021V-313
Panel consists of Justices Spain, Poissant, and Wilson.
MEMORANDUM OPINION
PER CURIAM
This is an attempted appeal of a partition-by-sale order in a proceeding for the partition of real property. However, partition proceedings are multi-step proceedings with at least two final, appealable orders. Because appellants Matt Slovacek and Niki Slovacek did not timely appeal from the partition order, which is a final order in a partition proceeding, we dismiss the appeal for want of jurisdiction.
I. Background
At issue in this case is the partition of a 13.78-acre tract in Fayette County.The Slovaceks purchased an undivided one-half interest in the property in 2020.
The Supreme Court of Texas ordered the Court of Appeals for the Third District of Texas to transfer this appeal (No. 03-24-00003-CV) to this court. Misc. Docket No. 23-9109 (Tex. Dec. 21, 2023); see Tex. Gov't Code Ann. §§ 73.001, .002. Because of the transfer, we decide the case in accordance with the precedent of the transferor court under principles of stare decisis if our decision otherwise would have been inconsistent with the transferor court's precedent. See Tex. R. App. P. 41.3.
In 2021, Christopher Friemel filed suit to partition the property as the owner of the other undivided one-half interest in the property. He also argued that the property was not susceptible to partition in kind and sought a partition by sale.
The trial court held an evidentiary hearing on the issue of whether the property was susceptible to partition in kind and signed an order finding that the property was not susceptible to partition in kind. More than a month later, the trial court signed an order appointing a receiver to sell the property. The Slovaceks appealed from the order appointing a receiver. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(1).
The Slovaceks initially contested Friemel's ownership of the property, and Friemel filed a motion for partial summary judgment based on the deed records. The record reflects that the trial court granted this motion, and the Slovaceks do not challenge Friemel's ownership of the property in this appeal.
II. Analysis
We begin by considering our jurisdiction as Friemel argues that this appeal was not timely filed. Friemel asserts that the Slovaceks should have appealed the partition order, in which the trial court found the property was not susceptible to partition in kind. Therefore, Friemel argues this court does not have jurisdiction over the Slovaceks' appeal.
A notice of appeal must be filed within 30 days after a final order is signed unless certain postjudgment motions are filed that extend the timeline to 90 days. Tex.R.App.P. 26.1(a)(1). The record, here, does not reflect that any postjudgment motions were filed. To determine our jurisdiction, we consider whether the partition order was a final order.
Unlike most other proceedings, a partition case involves two or more final appealable orders. Estate Land Co. v. Wiese, 546 S.W.3d 322, 325-26 (Tex. App.-Houston [14th Dist.] 2017, pet. denied); Fry Sons Ranch, Inc. v. Fry, No. 03-19-00684-CV, 2020 WL 6685772, at *2 (Tex. App.-Austin Nov. 13, 2020, pet. denied) (mem. op.); see generally Griffin v. Wolfe, 610 S.W.2d 466, 466-67 (Tex. 1980) (per curiam) (partition proceedings have "two final judgments and the first one is appealable as a final judgment"). "[A] partition proceeding is- at least-a two-step process." Long v. Spencer, 137 S.W.3d 923, 925 (Tex. App.- Dallas 2004, no pet.) (citing Carr v. Langford, 144 S.W.2d 612, 613 (Tex. Civ. App.-Dallas 1940), aff'd. 159 S.W.2d 107, 108 (Tex. 1942)); see Tex. R. Civ. P. 760 (court shall determine share or interest of each claimant and all questions affecting title to property); Tex.R.Civ.P. 761 (court shall determine whether property is subject to partition in kind); Tex.R.Civ.P. 770 (if property not subject to equitable division, court shall order sale or property and partition proceeds). An appeal at each step "provides a practical way to review controlling, intermediate decisions before the consequences of any error do irreparable injury." Long, 137 S.W.3d at 926.
A partition order that disposes of all issues in a discrete phase of the proceeding must be appealed immediately under the usual time periods governing appeals; issues determined by the order cannot be attacked collaterally after a later order or judgment is signed. See Wiese, 546 S.W.3d at 325-26; Long, 137 S.W.3d at 925-26; see also Tex. R. App. P. 26.1 (prescribing deadlines for notice of appeal). Therefore, the Slovaceks were required to assert any challenge to the partition determination before the receiver was appointed, the property was listed for sale, and expenses were incurred. Consequently, the trial court's order directing that the property be partitioned is a final, appealable order. See Long, 137 S.W.3d at 925.
Here, in a single point of error, the Slovaceks allege the trial court erred by appointing a receiver because Friemel "failed to prove the property was not incapable of division." However, the Slovaceks do not argue there was any error in appointing the receiver nor do they challenge the receiver's qualifications. Instead, the Slovaceks argue the trial court erred by determining the property was not susceptible of partition in kind. This is a direct challenge to the partition-by-sale order. The order appointing a receiver was simply the next step in effectuating the trial court's earlier decision. Although the Slovaceks state in their appellate brief that the partition order was not a final order, they offer no analysis or argument supporting this contention or addressing the unique nature of partition proceedings.
The deadline for the Slovaceks to file a notice of appeal from the trial court's October 2023 partition order was November 27, 2023. See Tex. R. App. P. 26.1(a). Because the Slovaceks did not file this appeal until December 29, 2023, the appeal of the October 2023 partition order is untimely, and we lack jurisdiction to consider the Slovaceks' sole issue on appeal. See Fry Sons Ranch, 2020 WL 6685772, at *2; Freeman v. Freeman, No. 14-08-00800-CV, 2009 WL 1795366, at *1 (Tex. App.-Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (declining to address argument on appeal that plaintiff lacked standing to bring suit for partition of property because appeal was untimely).
We therefore do not have subject-matter jurisdiction to address the Slovaceks' challenge to the partition order and accordingly dismiss this appeal. See Long, 137 S.W.3d at 926-27 (dismissing portions of appeal relating to appellant's issues asserting matters in partition proceeding, including challenge to agreed order that subject property be sold, that "clearly were resolved by the earlier appealable orders, which appellant did not timely appeal"); Seals v. Seals, No. 03-22-00310-CV, 2023 WL 6449098, at *3 (Tex. App.-Austin Oct. 4, 2023, pet. dism'd w.o.j.) (appeal not timely perfected of order in partition proceeding).
III. Conclusion
We dismiss the appeal for want of jurisdiction.