      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00388-CV



                    Jimmie Luecke Children Partnership, Ltd., Appellant

                                                  v.

                 Elaine Pruncutz, John Pruncutz and Amy Peters, Appellees




        FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
            NO. 11,936, HONORABLE DON B. MORGAN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellees Elaine Pruncutz, her husband John Pruncutz, and her daughter Amy Peters

(collectively, “Pruncutz”) filed suit seeking to have a 525.39-acre tract of land partitioned in kind

between their interests and the interest owned by appellant, the Jimmie Luecke Children Partnership,

Ltd. (“the Partnership”). After Pruncutz moved for a no-evidence summary judgment, the trial court

granted summary judgment determining the ownership interests of the parties, finding that the

property was susceptible to partition in kind, and ordering that Elaine Pruncutz’s share of the

property should include the house located on the property, in which she had lived since 1980 and

which she and her husband claimed as their homestead. The Partnership appeals, arguing that it

presented evidence raising a fact issue as to whether the property is susceptible to partition in kind
and that the issue of partitionability should be determined by a jury. We affirm the trial court’s

judgment.


                                            Background

               The parties agree on the facts underlying this dispute. Elaine Pruncutz and her late

husband Bernard Peters bought the property in 1973. Improvements on the property include a house

in which Elaine has lived since 1980, stock pens, and corrals. In 1983, Elaine and Bernard conveyed

a 50% interest in the property to Jimmie Luecke, who later conveyed that interest to the Partnership.

In 1988, Elaine and Bernard conveyed a 12.5% interest to their son, Timothy Peters, who in turn

conveyed his interest to his sister, Amy Peters. After Bernard died in 1995, ownership of the

property passed to Elaine. Elaine later married John Pruncutz. Her 37.5% interest in the property

is her separate property, but she and John Pruncutz live in the house and have made it their

homestead. The Partnership uses the property for a cattle operation, and the parties receive income

from roadway agreements with oil and gas companies that have operations on the property. The

parties agree that the Partnership owns a 50% interest, Elaine Pruncutz owns a 37.5% interest, and

Amy Peters owns a 12.5% interest. The only dispute is whether the property is susceptible to

partition in kind, as argued by Pruncutz, or must be partitioned by sale, as argued by the Partnership.

               In July 2001, Pruncutz filed a petition to partition the property in kind. After

discovery was conducted, Pruncutz moved for summary judgment asserting the right to partition and

contending that there was no evidence that the land was not susceptible to partition in kind. Pruncutz

argued that the Partnership, which opposed in-kind partition and would have the burden of proof at



                                                  2
trial to show that the property is not susceptible to partition in kind, failed to produce evidence on

the issue. The trial court granted summary judgment in favor of Pruncutz, finding that the

Partnership owns a 50% undivided interest in the property and that the appellees together own an

undivided 50% interest consisting of a 37.5% interest owned by Elaine Pruncutz and a 12.5% interest

owned by Amy Peters. The court further found that Elaine’s homestead includes the house and

ordered that Elaine’s share of the property should include the house. The court found that the

property is susceptible to partition in kind and appointed three commissioners to partition the

property in accordance with the percentage interest owned by each party. On appeal, the Partnership

does not dispute the ownership interests of the parties or the homestead claim of Elaine Pruncutz.

Its sole issue is that the trial court erred in finding the property susceptible to partition in kind.


                                         Standard of Review

                A “no-evidence” summary judgment is essentially a pretrial directed verdict. King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). The movant for a no-evidence summary

judgment need not prove her right to judgment as a matter of law on a claim or defense, but instead

simply asserts that there is no evidence of one or more essential elements of a claim or defense on

which the opposing party will have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Holmstrom

v. Lee, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.). We review a trial court’s grant of

summary judgment by considering the evidence in the light most favorable to the non-movant,

disregarding all contrary evidence and inferences. King Ranch, 118 S.W.3d at 751. A no-evidence

summary judgment is properly granted if the non-movant does not produce more than a scintilla of



                                                    3
probative evidence raising an issue of material fact as to an essential element of a claim on which

the non-movant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); King Ranch, 118

S.W.3d at 751. More than a scintilla of evidence exists when the evidence supporting a finding

would enable reasonable and fair-minded people to differ in their conclusions. King Ranch, 118

S.W.3d at 751. Conversely, less than a scintilla of evidence exists when the evidence does no more

than create a surmise or suspicion of a fact, and the legal effect is that there is no evidence. Id. The

non-movant need not “marshal its proof,” but it must point to evidence raising a genuine issue of

material fact. Tex. R. Civ. P. 166a(i) cmt.

               The property code allows a joint owner or claimant of an interest in a piece of real

property to “compel a partition of the interest or the property among the joint owners or claimants,”

Tex. Prop. Code Ann. § 23.001 (West 2000), and that right to partition is absolute. Moseley v.

Hearrell, 171 S.W.2d 337, 338 (Tex. 1943); Dierschke v. Central Nat’l Branch of First Nat’l Bank,

876 S.W.2d 377, 380 (Tex. App.—Austin 1994, no writ). When the right to partition is invoked,

the trial court must determine the interest owned by each owner, any questions of law or equity, and

whether the property is susceptible to partition. Tex. R. Civ. P. 760, 761. If the court finds that a

fair and equitable partition can be made, the court should order the partition, specifying each party’s

interest, and appoint disinterested commissioners to divide the property in accordance with those

interests. Tex. R. Civ. P. 761. If partition in kind would be unfair or inequitable, the property shall

be sold and the proceeds divided according to the parties’ respective shares. Tex. R. Civ. P. 770.

               The law favors partition in kind over partition by sale. Cecola v. Ruley, 12 S.W.3d

848, 853 (Tex. App.—Texarkana 2000, no pet.). However, a party opposing partition need not show

                                                   4
that land is physically incapable of partition. See id. at 855. Rather, the presumption in favor of

partition in kind may be overcome by evidence that the opposing party would incur substantial

economic loss because the value of its divided share would be materially less than its share of the

undivided whole. Id.


                                              Discussion

                Partition in kind is favored over partition by sale, and the party opposing in-kind

partition has the burden of proof on this issue at trial. Id. at 853-54. Therefore, to defeat Pruncutz’s

no-evidence motion for summary judgment, the Partnership was required to produce enough

evidence to allow reasonable minds to differ on whether a fair and equitable division of the property

could be made.

                The Partnership offered as evidence two of its responses to Pruncutz’s discovery

requests and the affidavit of Jimmie Luecke. Pruncutz correctly notes that the Partnership’s answers

to a request for disclosure and to interrogatories may not serve as summary judgment evidence. See

Tex. R. Civ. P. 197.3 (answers to interrogatories may only be used against responding party); Yates

v. Fisher, 988 S.W.2d 730, 731 (Tex. 1999) (same); Jeffrey v. Larry Plotnick Co., 532 S.W.2d 99,

102 (Tex. Civ. App.—Dallas 1975, no writ) (answers to requests for admissions and interrogatories

can be used only against responding party). Therefore, only Luecke’s affidavit remains as possible

evidence defeating Pruncutz’s motion for summary judgment.

                In his affidavit, Luecke asserts five arguments against partition in kind: (1) limited

access to one of the halves would result in a diminution in the value of the inaccessible tract; (2) the



                                                   5
roadway agreements with oil and gas companies would result in an inequitable division of the two

tracts; (3) investments made by Pruncutz to the house and investments made by the Partnership in

the form of cattle pens and corrals would make partition in kind “impractical” and “would result in

a diminution in the value of the two tracts”; (4) the highest and best use of the property would be to

maintain it as one large tract; and (5) oil and gas production wells located on various parts of the land

make the fair division of the surface estate “together with the minerals . . . an impossibility.”

However, as summary judgment evidence, Luecke’s affidavit is defective because it presents his

subjective beliefs and conclusions without providing supporting facts. See Texas Div.-Tranter, Inc.

v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (“Carrozza’s subjective beliefs are no more than

conclusions and are not competent summary judgment evidence.”); Rizkallah v. Conner, 952 S.W.2d

580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (“A conclusory statement is one that does

not provide the underlying facts that support the conclusion. Conclusory statements in affidavits are

not proper as summary judgment proof if there are no facts to support the conclusions.”).

                For each of his points, Luecke fails to provide facts supporting his conclusions.

Luecke asserts that because of limited access to the property, “partition into two tracts would result

in diminution in value to one of the tracts,” but does not point to any evidence that the land cannot

be divided in such a way that both parties retain access.1 The same defect applies to the issues

related to the roadway agreements and oil and gas wells and to Luecke’s assertion that because of


        1
         The Texas Property Code provides that commissioners shall grant a nonexclusive access
easement to allow for ingress and egress among partitioned tracts, which suggests that access issues
have been resolved by statute and do not, without more, impair the ability to partition in kind. See
Tex. Prop. Code Ann. § 23.006(a) (West Supp. 2004-05).

                                                   6
the “size and location” of the property, the “highest and best use” of the land would be to maintain

it as one large tract. The affidavit claims that “any partition which attempted to divide the acreage

would result in a disproportionate compensation to the acreage which received the roadways” but

presents no facts to support this conclusion. The affidavit does not describe the location of the

roadways or the wells2 or indicate why these characteristics necessarily prevent the 525-acre property

from being divided equitably. In Cecola, the party opposing in-kind partition offered an expert’s

report to explain how limited access and the small size and limited usefulness of the property

supported his conclusion that in-kind partition was impracticable and that the “highest and best use”

of the property was to maintain it as one undivided tract.3 See 12 S.W.3d at 854-56. In this case,

however, Luecke’s affidavit merely asserts that partition in kind would result in limited access that

would materially affect the value of the divided property and invites only surmise as to why the “size

and location” of the property leads to the conclusion that its highest and best use is to remain as one




        2
           Further, we note that the mineral rights are not at issue in this suit. In making its ruling,
the trial court stated that the property affected by the judgment is the surface estate only.
       3
           The parties in Cecola each owned an undivided 50% interest in a .257-acre strip of land
40 feet wide by 280 feet long. Cecola v. Ruley, 12 S.W.3d 848, 851 (Tex. App.—Texarkana 2000,
no pet.). A surveyor testified that because of the property’s narrow dimensions, it was incapable of
yielding two economically viable units. Id. at 855. The surveyor testified that the highest and best
use was to sell it to the adjoining, landlocked property owner. Id. at 854. The expert further testified
that the value of the undivided property was worth $1,250 to $2,500, whereas the divided tracts
would have no value. Id. at 856. Following Cecola, this Court recently upheld a trial court’s ruling
that a 100-acre property was not subject to partition in kind among 31 heirs, some with shares as
small as 1/728th of the whole. Taylor v. Hill, No. 03-03-00540-CV, 2004 Tex. App. LEXIS 5747,
at *1 (Austin July 1, 2004, no pet.) (memo. op.). As in Cecola, partition in kind was shown under
the facts to be materially unfair, and requiring a partition in kind would deprive the smallest interest
holders of any value in their inheritance. Id. at *9.

                                                   7
525-acre unit. Because Luecke fails to provide any specifics to support his assertions, the affidavit,

the Partnership’s sole piece of evidence, is not competent summary judgment evidence.4

               Even if we were to consider the affidavit as competent summary judgment evidence,

the Partnership has not met its burden of raising a genuine issue of fact on the issue of

partitionability. Luecke’s affidavit leads not to a conclusion or even a surmise that the property is

not susceptible to being partitioned in kind but instead leads merely to a conclusion that a fair

partition would need to take certain matters of equity into account (e.g., the value of the roadway

agreements and the relative values of the Pruncutz homestead and the cattle pens and corrals).5

Luecke claims in his affidavit that “[a] division of property which attempted to permit [Pruncutz]

to retain her interest in the claimed homestead and one-half of the property would be a materially

unfair division of property.” Luecke and the Partnership suggest that the partition into two fifty-

percent shares would require the court to divide the acreage in half, which, considering the value

of the homestead and other improvements, might result in the Partnership’s portion being

substantially diminished in value. However, the procedure for partitioning property in kind allows



        4
          The Partnership correctly notes that as non-movant, it is not required to “marshal” its proof,
but it must “point out” evidence raising a fact issue to defeat a no-evidence motion. Tex. R. Civ. P.
166a(i) cmt.; see Perez v. Blue Cross Blue Shield of Tex., Inc., 127 S.W.3d 826, 832 (Tex.
App.—Austin 2003, pet. denied).
       5
          The Partnership, citing Rayson v. Johns, notes that the issue of whether land can be fairly
partitioned is a question to be determined by a finder of fact after a full evidentiary hearing. 524
S.W.2d 380, 382 (Tex. Civ. App.—Texarkana 1975, writ ref’d n.r.e.). However, the right to have
a jury determine that question presupposes that the evidence “is conflicting or admits of more than
one inference.” Id. In Rayson, the party opposing partition in kind offered evidence that the tract
was not susceptible to a fair division in kind, thus raising a fact issue. Id. at 383. Here, the
Partnership has not offered any evidence raising an issue as to the equity of partition in kind.

                                                   8
a court and commissioners to take all issues of value and equity into consideration when dividing

land among parties. See Tex. R. Civ. P. 760, 768 (commissioners shall divide property into

appropriate number of shares, “having due regard in the division to the situation, quantity and

advantages of each share, so that the shares may be equal in value, as nearly as may be to the

respective interests of the parties entitled”).

                The district court instructed the commissioners to divide the property according to

the shares of the parties, not by lot. Following the instructions of the court, the commissioners have

the authority to determine how to partition a property so as to equalize the value of the parties’

shares. See Yturria v. Kimbro, 921 S.W.2d 338, 343 (Tex. App.—Corpus Christi 1996, no writ)

(“Matters of valuation concerning the property itself and objective considerations concerning the best

manner of dividing the property in accordance with the instructions given [by the court] while

retaining the highest value for the partitioned tracts, are entrusted to the commissioners and not the

judge or jury.”). If, after the commissioners make a determination, the Partnership feels aggrieved

by the manner in which the property has been partitioned, it may appeal the commissioners’ report.

Tex. R. Civ. P. 771; Yturria, 921 S.W.2d at 344. Thus, the Partnership’s concerns seem premature.

Rather than providing a scintilla of evidence to show the property cannot be fairly and equitably

divided, the Partnership through Luecke’s affidavit merely lists factors, unsupported by facts, that

should be considered by the commissioners in assessing and equalizing the value of the two tracts.

The Partnership could raise these issues in objections to the commissioners’ recommendations, but

at this time, it has not offered probative evidence that partition in kind would result in a substantial

diminution in the value of the property.

                                                   9
                                           Conclusion

               The Partnership failed to provide more than a scintilla of evidence that partitioning

the property in kind would result in substantial economic loss or materially impair the value of the

land. Therefore, we overrule its issue and affirm the trial court’s summary judgment.




                                              __________________________________________

                                              David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: April 21, 2005




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