Raymel Mathis, Maye Mathis, Louise Mathis, Patsy Mathis, Betty Mathis-Stagg, James Mathis, Jr., Ruby Mathis-Torme, Claudean Mathis, Robert Mathis, Sharon Mathis, Marcus Mathis, Anthony Mathis, Dwight Mathis, Sandra Mathis, Marjorie Mathis and Joyce Mathis v. James Coker and Daniel Rutherford

IN THE TENTH COURT OF APPEALS No. 10-05-00437-CV Raymel Mathis, Maye Mathis, Louise Mathis, Patsy Mathis, Betty Mathis-Stagg, James Mathis, Jr., Ruby Mathis-Torme, Claudean Mathis, Robert Mathis, Sharon Mathis, Marcus Mathis, Anthony Mathis, Dwight Mathis, Sandra Mathis, Marjorie Mathis, and Joyce Mathis, Appellants v. James Coker and daniel rutherford Appellees From the 87th District Court Leon County, Texas Trial Court No. 0-05-146 MEMORANDUM Opinion This is an appeal from a judgment of partition in which Appellants, sixteen brothers and sisters (the “Mathises”), challenge the trial court’s award of an undivided 4/5 property interest to James Coker and Daniel Rutherford. The Mathises present six issues: (1) the court erred by finding that Coker and Rutherford own a 4/5 property interest; (2) the evidence is legally and factually insufficient to support a finding that Coker and Rutherford own a 4/5 property interest; (3) Coker and Rutherford are not bona fide purchasers; (4) the evidence is legally and factually insufficient to support a finding that Coker and Rutherford are bona fide purchasers; (5) the judgment contains incorrect recitations; and (6) the trial court’s partition order and findings are in error because the amount of interests awarded is erroneous. We affirm. LEGAL AND FACTUAL SUFFICIENCY A legal sufficiency challenge requires consideration of “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We “must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. This standard also applies to a court’s findings made in a bench trial. See Bank of Am. v. Hubler, 211 S.W.3d 859, 862 (Tex. App—Waco 2006, pet. granted, judgm’t vacated w.r.m.); see also Ludwig v. Encore Med., L.P., 191 S.W.3d 285, 294 (Tex. App.—Austin 2006, pet. denied); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). A factual sufficiency challenge to issues on which the appellant did not bear the burden of proof requires us to “consider and weigh all of the evidence.” Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied). We will reverse the “verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.” Id. On issues where the appellant “bears the burden of proof,” we will reverse only if, “considering all the evidence, the finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust.” Id. Interests in the Property In their first and second issues, the Mathises contend that the evidence is legally and factually insufficient to support a finding that Coker and Rutherford own a 4/5 interest in the property. “A joint owner or claimant of real property or an interest in real property or a joint owner of personal property may compel a partition of the interest or the property among the joint owners or claimant.” Tex. Prop. Code Ann. § 23.001 (Vernon 2000). The plaintiff is not required to trace title back to a common source. See Trevino v. Trevino, 64 S.W.3d 166, 171 (Tex. App.—San Antonio 2001, no pet.). Rather, “a plaintiff need only establish that he owns an interest in the property and has a right to possession of a portion thereof.” Id. Pearl Mathis owned approximately 41.21 acres of land in Leon County. Pearl’s five children, Ella, Janie, Howard, Lucille, and James, each inherited a 1/5 interest in the property. Coker and Rutherford subsequently purchased Howard, Ella, Janie, and Lucille’s interests. Only the conveyances of Janie, Lucille, and Howard’s interests are in dispute.[1] The Mathises first challenge the sufficiency of the evidence supporting the court’s finding that Coker and Rutherford acquired Janie and Lucille’s interests. Janie and Lucille are deceased; thus, their children signed the warranty deed to Coker and Rutherford. The Mathises question the children’s ownership interest in the property, arguing that Janie and/or Lucille may have: (1) disposed of the property by will; or (2) died intestate, leaving a life estate to their surviving spouses, if any, and a mere remainder interest to their children. The record is silent as to either issue. “Under general property law principles, a deed is prima facie evidence of the grantee’s ownership.” In re Murray, 15 S.W.3d 202, 205 (Tex. App.—Texarkana 2000, no pet.) (citing Zieben v. Krakower, 346 S.W.2d 401, 405 (Tex. Civ. App.—Houston [1st Dist.] 1961, writ ref’d n.r.e.)). By presenting a deed conveying Janie and Lucille’s individual 1/5 interests, Coker and Rutherford provided evidence establishing their ownership in 2/5 of the property. See id.; see also Trevino, 64 S.W.3d at 171. Coker testified that he and Rutherford purchased property from four of Pearl’s five children and that the only interest they did not purchase was James’s 1/5 interest. The Mathises did not object to this evidence or present any evidence contesting Coker and Rutherford’s proof of ownership. Neither did the Mathises object when the court clarified with Rutherford that a 4/5 interest had been purchased. Accordingly, the record contains evidence which would enable the court to reasonably conclude that Coker and Rutherford acquired Janie and Lucille’s interests. The Mathises next challenge the sufficiency of the evidence supporting the court’s finding that Coker and Rutherford obtained Howard’s property interest. The record contains title documents from the sale to Coker and Rutherford that list the amount of proceeds distributed to Ella, Janie, and Lucille, but not to Howard. Coker could not explain this omission. Neither does the record contain a deed from Howard to Coker and/or Rutherford. Arguing that the deed was inadvertently omitted from the record, Coker and Rutherford have provided us with a certified copy of a warranty deed from Howard to Coker and urge us to take judicial notice of this deed. We may take judicial notice of facts “not subject to reasonable dispute,” such as those: (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Tex. R. Evid. 201(b). Because the sale of Howard’s interest is in dispute, we cannot say that the deed’s contents are “not subject to reasonable dispute” in satisfaction of Rule 201. Id. Therefore, we decline to take judicial notice of this deed. Coker and Rutherford also contend that the Mathises’ attorney judicially admitted that a 4/5 interest had been purchased: MR. MINGER: Yes, ma’am. Our position is, basically, this four-fifths interest that -- that was purchased by Mr. Coker and Mr. Rutherford should not have been purchased -- been able to be purchased by them at all, primarily because the defense -- I guess, as you know, Your Honor, of a judicial partition, if there was an agreement amongst the family members in the family not to partition the land, then that -- that is a defense that speaks directly to a judicial partition. To qualify as a judicial admission, a statement must be “deliberate, clear, and unequivocal.” Byrd v. Estate of Nelms, 154 S.W.3d 149, 166 (Tex. App.—Waco 2004, pet. denied) (citing Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001)). This includes “statements made by a party’s attorney.” Charles Brown, L.L.P. v. Lanier Worldwide, Inc., 124 S.W.3d 883, 900 (Tex. App—Houston [14th Dist.] 2004, no pet.) (citing DeWoody v. Rippley, 951 S.W.2d 935, 946 (Tex. App.—Fort Worth 1997, writ dism’d by agr.)). Mr. Minger’s statement could reasonably be interpreted as merely stating that Coker and Rutherford claim a 4/5 interest in the property and explaining why the Mathises dispute this claim. We cannot say that this statement is sufficiently “deliberate, clear, and unequivocal” to constitute a judicial admission. Byrd, 154 S.W.3d at 166. The record contains one document mentioning Howard: a letter from Schwab Realty instructing Howard to provide information to Rutherford for the “Heirship form in the legal document” so that Rutherford could obtain signatures for the “finished document.” The record does not indicate to what “document” the letter was referring. Coker testified that he discovered the property through Howard’s realtor, but never met or communicated with Howard. He also testified that he and Rutherford paid taxes on the property and that they purchased all but James’s 1/5 interest in the property. James Mathis’s daughter, Sharon Mathis, testified that suing Howard was “an option.” The Mathises pointed out the absence of a warranty deed or an accounting for Howard, but presented no testimony, documents, or other evidence contrary to Coker’s testimony that Howard’s interest was purchased. In light of Coker’s uncontroverted testimony, the record contains evidence which would enable the court to reasonably conclude that Coker and Rutherford established ownership in Howard’s 1/5 interest in the property. In summary, the court could reasonably conclude from the evidence that Coker and Rutherford possess a 4/5 interest in the disputed property. See City of Keller, 168 S.W.3d at 827. This finding is not “so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.” Checker Bag, 27 S.W.3d at 633. Therefore, we overrule the Mathises’ first and second issues. Bona Fide Purchasers for Value The Mathises’ third and fourth issues challenge the legal and factual sufficiency of the evidence to support a conclusion that Coker and Rutherford are bona fide purchasers. A bona fide purchaser is one who “acquire[s] property in good faith, for value, and without notice of any third-party claim or interest.” Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001). “Notice may be constructive or actual.” Id. A purchaser with “personal information or knowledge” possesses actual notice. Id. “Constructive notice is notice the law imputes to a person not having personal information or knowledge.” Id. The Mathises argue that the evidence is factually and legally insufficient to support lack of notice. According to Sharon Mathis, the Mathis family verbally agreed “to keep that land within the family” and “anybody in the family had the first right of refusal.” This agreement was purportedly made sometime in the 1950s. Sharon testified that her brother Dwight expressed his desire to exercise this right of first refusal. At no time was this agreement reduced to writing. In fact, Sharon testified that no one had discussed recording the agreement to place others on notice of the agreement. Based on this “agreement,” the Mathises pleaded a “prior contractual obligation” as an affirmative defense. Coker and Rutherford did not amend their petition to assert bona fide purchaser status or statute of frauds. The court made no findings as to either issue. However, the Mathises’ attorney elicited testimony from Coker, without objection, regarding his knowledge of the agreement. Rutherford, acting as counsel for both himself and Coker, elicited testimony from Sharon, without objection, regarding whether anyone thought to record the agreement. Under these circumstances, the issues were tried by consent. See Tex. R. Civ. P. 67; see also De La Morena v. Ingenieria E Maquinaria De Guadalupe, S.A., 56 S.W.3d 652, 659 (Tex. App.—Waco 2001, no pet.); Pine Trail Shores Owners’ Ass’n v. Aiken, 160 S.W.3d 139, 146 (Tex. App.—Tyler 2005, no pet.). Coker testified that he had no knowledge of any prior agreements. Rutherford did not testify; the record is silent as to whether he possessed any knowledge or had any notice of the agreement that may be imputed to Coker. The Mathises contend that they could not call Rutherford, an attorney, as a witness. However, an attorney may be called as a witness when he is a party to the action and is acting pro se or he receives the consent of his client. See Tex. R. Prof’l Conduct 3.08(a)(4), (b) reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar. R. art. X, § 9); see also In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004). Under these provisions, the Mathises could have called Rutherford as a witness. The record contains no evidence indicating that Coker and Rutherford possessed knowledge of the agreement and were not bona fide purchasers. Furthermore, an unrecorded property interest is not binding on a subsequent purchaser who lacks notice of the interest. See Tex. Prop. Code Ann. § 13.001 (Vernon 2004). Under the statute of frauds, “certain promises and agreements are unenforceable unless they are in writing and signed by the person sought to be charged.” Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 777 (Tex. App.—Dallas 2005, pet. denied); see Tex. Bus. & Com. Code Ann. § 26.01(a) (Vernon Supp. 2006). This includes agreements regarding the sale of land and agreements not performable within one year. See Tex. Bus. & Com. Code Ann. § 26.01(b)(4), (6). The verbal Mathis family agreement falls within both these categories and is unenforceable. See Tex. Bus. & Com. Code Ann. § 26.01(a). Absent evidence indicating Coker and Rutherford’s knowledge of the agreement, and in light of the fact that the agreement is unenforceable under the statute of frauds, the court could reasonably conclude from the evidence that Coker and Rutherford own a 4/5 interest in the property. See City of Keller, 168 S.W.3d at 827. This finding is not “so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.” Checker Bag, 27 S.W.3d at 633. We overrule the Mathises’ third and fourth issues. Because the evidence is legally and factually sufficient to support the trial court’s finding that Coker and Rutherford own a 4/5 interest in the property, we do not find it necessary to address the Mathises’ sixth issue. See Tex. R. App. P. 47.1. Recitations in the Judgment In their fifth issue, the Mathises argue that the trial court’s judgment is “of no effect” because it contains the following erroneous recitations: Defendants although duly served with citation by publication, wholly failed to appear and made default… John Mallard, the Court appointed attorney for the Defendants named in the citation by publication, appeared and announced to the Court that he had examined the papers on file herein and had determined that all Defendants were properly served with citation by publication. The Mathises argue that these recitals are erroneous because no default judgment occurred and because Mallard did not appear and announce on their behalf.[2] Coker and Rutherford argue that these recitals do not prevail over the “decretal language or paragraph” in the judgment. We agree. “The factual recitations or reasons preceding the decretal portion of a judgment form no part of the judgment itself.” Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 823 (Tex. App.—Fort Worth 2001, no pet.). If “there appears to be a discrepancy between the judgment’s recital and decretal paragraphs, a trial court’s recitals, which precede the decretal portions of the judgment, do not determine the rights and interests of the parties.” Id. “Rather, the decretal provisions in the judgment control.” Id. Thus, the incorrect recitals contained in the judgment are not controlling and do not render the judgment “of no effect.” We overrule the Mathises’ fifth issue. Having overruled each of the Mathises’ issues, we affirm the trial court’s judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the judgment without a separate opinion) Affirmed Opinion delivered and filed May 9, 2007 [CV06] [1] The record contains a warranty deed from Ella and her two children conveying Ella’s 1/5 interest in the property to Rutherford. [2] Sharon Mathis testified that she first heard about the suit from a newspaper clipping and that she was not personally served, but was served by publication. The record contains the publication printed in the Centerville newspaper.