Castell Properties, LLC v. 148 S. Castell, LLC N. Castell, LLC And FFH Real Estate, LLC

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00142-CV

CASTELL PROPERTIES, LLC, APPELLANT

V.

148 S. CASTELL, LLC, N. CASTELL, LLC, AND FFH REAL ESTATE, LLC, APPELLEES

On Appeal from the 22nd District Court
Comal County, Texas
Trial Court No. C2022-2171A, Honorable James Morgan, Presiding

August 15, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Texas law relies on the principle that partitions in-kind cannot occur unless there

is a common ownership or claim in the property. TEX. PROP. CODE ANN. § 23.001;

Henderson v. Chesley, 273 S.W. 299, 304 (Tex. Civ. App.—1925) aff’d per curiam, 116

Tex. 355, 292 S.W. 156 (1927). The present appeal arises from the trial court’s attempt

to partition two tracts of land despite disparate ownership and possession rights in the

property. For the following reasons, we sustain Appellant, Castell Properties, LLC’s, first

issue, reverse the trial court’s order, and remand the case for further proceedings.
Background

Long-time friends Ron Snider and Frank Hampel purchased two investment

properties in New Braunfels, Texas, which were leased to operate restaurants. The first,

known as the “Myron’s Property,” was acquired by Ron; in 2001 it was conveyed 50% to

Ron and 50% to the Hampel Family Limited Partnership (HFLP), an entity controlled by

Frank. Because Ron was married to Carol Snider, his interest in Myron’s constituted

community property. HFLP subsequently conveyed its interest in the property to

Appellant, Castell Properties, LLC. Upon Ron’s death in April 2021, his ownership

interest in Myron’s was first transferred into a family trust,1 and eventually conveyed to N.

Castell, LLC.

In 2004, Ron and HFLP jointly purchased the “Krause’s Property.” Again, Ron’s

interest in Krause’s was community property with his spouse, Carol. HFLP apparently

transferred its interest in Krause’s to Castell Properties, LLC. Upon Ron’s death, his

interest in Krause’s was transferred to the family trust, and then conveyed to FFH Real

Estate, LLC.

Following Ron’s death, disputes arose over property management, rent

adjustments, and other payments. In an amended pleading filed in December 2023,

Appellees, as plaintiffs, requested the partition of the Myron’s and Krause’s properties,

proposing that Myron’s be allocated to the Appellant and Krause’s to the Appellees, with

1 Chris Snyder, Ron’s son, testified that half of Ron’s interest was transferred to Carol and the other

half went into the Ronald B. Snider Family Trust.

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any excess value in the Krause property adjusted to Appellant via an award of owelty.

Appellees also sought declaratory and temporary and permanent injunctive relief.

The application for partition was tried to the bench. In an order signed February

22, 2024, the trial court made findings of fact and conclusions of law,2 including in relevant

part:

• the Myron’s Property was owned jointly by N. Castell, LLC and Castell
Properties, LLC;

• the Krause’s Property was owned jointly by FFH Real Estate, LLC and
Castell Properties, LLC;

• FFH Real Estate, LLC and N. Castell, LLC were owned and controlled by
the same persons or entities; and

• “[t]he whole of the above-described property is susceptible to fair and
equitable partition in kind between the parties so as to reflect their
respective interests subject to owelty to be assessed to equitably account
for any difference in value between the partitioned properties.”

The trial court ordered the Krause’s Property and Myron’s Property to be “partitioned,”

with Castell Properties’ interest in the Krause’s Property “being allotted” to FFH, and N.

Castell’s interest in the Myron’s Property “be[ing] allotted” to Castell Properties. The court

also appointed three commissioners, instructed them to determine the values of the two

properties, and to ascertain whether any amount should be paid or charged for owelty.

This appeal followed.3

2 See Bruce v. Bruce, No. 03-16-00581-CV, 2017 Tex. App. LEXIS 4834, at *5 (Tex. App.—Austin

May 26, 2017, no pet.) (mem. op.) (“When, as in this case, the trial court includes findings in its judgment
but does not issue any separate findings of fact and conclusions of law, the findings in the judgment have
probative value on appeal.”).
3 This appeal was originally filed in the Third Court of Appeals and was transferred to this Court by

a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. In the
event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.

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Analysis

In Texas, a joint owner of land generally has the right to possess the entirety of the

property unless there is an agreement to the contrary or evidence of hostile possession

against other co-owners. Roberts v. Roberts, 136 Tex. 255, 256, 150 S.W.2d 236, 237

(1941); Hall v. Tex. State Bank, 298 S.W.2d 188, 190 (Tex. App.—Austin 1957, writ ref’d

n.r.e.). For example, if Abe, Barbara, and Carl become 40%, 50%, and 10% owners of

Blackacre, respectively, each may possess and use 100% of the land without paying rent.

See Roberts, 136 Tex. at 256; Neil v. Shackelford, 45 Tex. 119, 132 (1876); Schluter v.

Sell, 194 S.W.2d 125, 132 (Tex. App.—Austin 1946, no writ).

Under Texas law, “[a] joint owner or claimant of real property or an interest in real

property . . . may compel a partition of the interest or the property among the joint owners

or claimants . . . .” TEX. PROP. CODE. ANN. § 23.001. Partition in-kind divides jointly-owned

property into individually-owned interests;4 it does not alter ownership title, but merely

determines which portions of the property each co-owner can possess. Chace v. Gregg,

88 Tex. 552, 558, 32 S.W. 520, 522 (1895) (“A partition between joint owners . . . leave[s]

the title as it was before, except to locate such rights as the parties may have,

respectively, in the distinct parts of the premises, and to extinguish such rights in all other

portions of that property.”); Lane v. Hughes, 228 S.W.2d 986, 988–89 (Tex. App.—

Amarillo 1950, no writ) (holding that partition “creates no new title but merely severs the

previous unity of possession and dissolves the only unity existing between the joint

4 Partition, BLACK’S LAW DICTIONARY (12th ed. 2024). See also Hudgins v. Sansom, 72 Tex. 229,

231–32, 10 S.W. 104, 105 (1888) (defining “partition” as “the act or proceeding through which two or more
co-owners cause the thing to be partitioned to be divided into as many shares as there are owners, and
which vests in each of such persons a specific part, with the right to possess it freed from a like right in
other persons who, before partition, had an equal right to possess.”).

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owners or tenants in common.”). Thus, a proper partition-in kind would not affect

Barbara’s 50% title ownership in property but would designate the specific portion of

Blackacre she is entitled to possess. See id.

Because this appeal follows submission of evidence to the bench, we review the

trial court’s findings of fact for legal and factual sufficiency under the same standards used

to review a jury verdict. Tex. Outfitters Ltd. v. Nicholson, 572 S.W.3d 647, 653 (Tex.

2019); HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex.

App.—Houston [1st Dist.] 2005, no pet.); Bruce, 2017 Tex. App. LEXIS 4834, at *6. If

there is a complete reporter’s record, findings of fact are not conclusive and are binding

only if supported by the evidence. HTS Servs, 190 S.W.3d at 111.

Appellant contends the Krause’s Property and Myron’s Property could not be

partitioned as a combined whole due to a lack of common ownership. We agree for two

reasons. First, the trial court’s order expressly finds diverse ownership: the Myron’s

Property is owned jointly by N. Castell, LLC and Castell Properties, LLC, while the

Krause’s Property is owned jointly by FFH Real Estate, LLC and Castell Properties, LLC.

As a matter of law, these disparate ownership interests prevent partitioning the properties

as a combined whole. See TEX. PROP. CODE. ANN. § 23.001. Rather than using partition

to determine possession rights of existing owners, the trial court’s order divests Appellant

of its ownership interests in the Krause’s Property (awarding 100% to FFH), and divests

N. Castell, LLC of its ownership interests in the Myron’s Property (awarding 100% to

Castell Properties). This contravenes longstanding partition law and is in error. Id.;

Chace, 88 Tex. at 558; Lane, 228 S.W.2d at 988–89.

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Second, because Ron’s acquisitions occurred during his marriage, the conclusive

evidence shows that Ron’s spouse, Carol Snider, acquired half of his interest (initially as

community property), which became her separate property at Ron’s death. Carol was

omitted as a party to the partition suit. An “attempted partition of the whole of a tract of

land, where all the owners are not joined as parties, is not binding even on those who are

parties.” Mustang Drilling v. Cobb, 815 S.W.2d 774, 777 (Tex. App.—Texarkana 1991,

writ denied) (citations omitted). See also Partin v. Holden, 663 S.W.2d 883, 885 (Tex.

App.—Austin 1983, no writ) (“It is well settled that all the owners of undivided ownership

interests in land should be made parties to a suit for its partition, either as plaintiffs or

defendants, for unless all are joined in the suit, a decree of partition is not sustainable

even as to those who are parties.” (emphasis in original)).

Appellees argue that the ownership interests in the two properties were

conclusively established because Appellant judicially admitted, “Both of the parties own

an undivided one-half interest in the real estate in dispute.” However, there are at least

three parties with affected ownership interests; Appellant’s answer does not specify who

“both” refers to, nor is the identity clear from the context.5 Additionally, Appellant’s general

denial further complicates the claimed admission. See Major v. Loy, 155 S.W.2d 617,

619 (Tex. Civ. App.—Eastland 1941, no writ); 58 TEX JUR.3D: PLEADING § 23 (“where the

defendant has answered by general denial, followed by one or more special pleas

containing some admission, the plaintiff is not absolved from proving the plaintiff’s case,

5 See Green v. Flournoy, No. 03-10-00299-CV, 2011 Tex. App. LEXIS 6116, at *12 (Tex. App.—

Austin Aug. 5, 2011, no pet.) (A judicial admission must be “a clear, deliberate, and unequivocal statement
. . . [that] occurs when an assertion of fact is conclusively established in live pleadings.”) (citing
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000)).

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the admission being regarded as contingent on that proof.”). Finally, Carol Snider, a non-

party, is not bound by the alleged admissions made by others during litigation. See

Rogers v. Coslett, 646 S.W.3d 1, 11 n.11 (Tex. App.—Texarkana 2022, no pet.) (“The

facts alleged or admitted in the live pleadings of a party are accepted as true by the court

and jury and are binding on the pleader.” (emphasis added)). The Third Court of Appeals

emphasized this point at least forty years ago: “Where it appears on appeal that not all

owners were before the trial court, the judgment of partition will be reversed although no

objection was made below in that regard, for it is impossible to make a binding decree of

partition in the absence of one or more owners of undivided interests.” Partin, 663 S.W.2d

at 885.

We conclude that the identity of all joint owners of the two properties was not

supported by legally sufficient evidence. Appellant’s first issue is sustained. Review of

the remaining issues is unnecessary for the disposition of this appeal. See TEX. R. APP.

P. 47.1.

Conclusion

We reverse the trial court’s order of February 22, 2024, and remand the case for

further proceedings. See TEX. R. APP. P. 43.2(d); 43.3(a).

Lawrence M. Doss
Justice

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