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067-282274-15 FILED
TARRANT COUNlY
1/7/20161:23:22 PM
THOMAS A. WILDER
CAUSE NO. 067-282274-15 DISTRICT CLERK
TANIA COLE, FfK/A TANIA § IN THE DISTRICT COURT
RODRIGUEZ §
Plaintiff, § 0
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NAPOLEON RODRIGUEZ § ~~ ~ :::;,
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PLAINTIFF'S RESPONSE TO DEFENDANT'S PLEA TO THE JURISDfC:TI01ol
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff, Tania Cole, hereinafter called Plaintiff, asking the Court to
deny Defendant NAPOLEON RODRIGUEZ'S Plea to the Jurisdiction and would show unto the
Court the following:
I. INTRODUCTION
Plaintiff is Tania Cole, f/k/a Tania Rodriguez; Defendant is Napoleon Rodriguez. This
action is one for Partition under Chapter 23 of the Texas Property Code, and Rules 756 et seq., of
the Texas Rules of Civil Procedure. Plaintiff and Defendant are co-tenants who jointly own as
tenants the real property located in TARRANT County, Texas, and described as follows: 3024
Roberts Cut Off, Fort Worth, Texas.
Defendant has filed a general denial, asserts some affirmative defenses, and asserts a Plea
to the Jurisdiction based upon §§9.001(a) and 9.002 of the Texas Family Code.
II. ARGUMENTS AND AUTHORITIES
Defendant's Plea to the Jurisdiction should be denied. Defendant's reliance upon
§§9.001(a) and 9.002 of the Texas Family Code is misplaced and not applicable.
§9.002 of the Texas Family Code merely grants the disposing court the power to "enforce
the property division." See §9.002 of the Texas Family Code, and See Defendant's Original
RESPONSE TO PLEA TO THE JURISDICTION PAGE 1 OF4
067-282274-15
Answer, page 2, filed 11/19/2015. Defendant asserts in his own pleading that "It is clear that
[the] 325'h District Court disposed of the property house." See Defendant's Original Answer,
page 3, filed 11/19/2015 (emphasis added).
Plaintiff does not seek to "change, alter, amend, modify, or alter the decree." Plaintiff
does not seek to reopen her divorce case, but rather Plaintiff seeks partition of undivided
community property. Chapter 23 of the Texas Property Code addresses Partition.
§23.001 of the Texas Property Code states:
PARTITION. 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 claimants under this chapter and the Texas Rules of
Civil Procedure.
See Texas Property Code §23.001. The proper statutory authority for jurisdiction- and which
grants jurisdiction to this court in this particular matter - lies in §23.002 of the Texas Property
Code which states:
"VENUE AND JURISDICTION. (a) A joint owner or a claimant
of real property or· an interest in real property may bring an action
to partition the property or interest in a district court of a county in
which any part of the property is located."
See Texas Property Code §23.002.
The case now before the Court is the same as the situation addressed by
the Appellate Court In Mayes v. Stewart. In Mayes, the Court writes:
We note Mrs. Stewart is not attempting to reopen her divorce case. The long-standing law
in Texas is community property not divided upon divorce is held by the former spouses
as tenants in common. See Harrell v. Harrell, 692 S.W.2d 876 (Tex. 1985) (per curiam);
Busby v. Busby, 457 S.W.2d 551,554-55 (Tex. 1970). Partition is an appropriate remedy
to effectuate post-divorce division. See Harrell, 692 S.W.2d at 876. Division of undivided
community property may be sought pursuant to TEX. PROP. CODE ANN.§ 23.001. See
Phillips v. Phillips, 951 S.W.2d 955,957 (Tex. App.-Waco 1997, no pet.); Burgess v.
Easley, 893 S.W.2d 87, 90 (Tex. App.-Dallas 1994, no writ). Nothing in§ 23.001
requires that the suit to partition be filed in the same court in which the divorce action
was heard, only that "(a] joint owner of personal property must bring an action to
RESPO!'iSE TO PLEA TO THE JURISDICfiON PAGE20F4
067-282274-15
partition the property in a court that has jurisdiction over the value of the property." TEX.
PROP CODE ANN. § 23.002(b) (Vernon 1984).
See Mayes v. Stewart, II S.W.3d 440, 448 (Tex. App. --Houston [14th Dist.) 2000, no pet.)
(emphasis added).
III. CONCLUSION AND PRAYER
This Court has jurisdiction in this matter pursuant to §23.001 and §23.002 in Chapter 23
of the Texas Property Code. Plaintiff does not seek to reopen her divorce case and partition is an
appropriate "post-divorce" remedy to effectuate division. "Nothing in § 23.00 I requires that the
suit to partition be filed in the same court in which the divorce action was heard." See Mayes.
Defendant's reliance upon the Texas Family Code is misplaced and not applicable.
WHEREFORE, Plaintiff asks the Court to deny Defendant's Plea to the Jurisdiction and
find that jurisdiction is proper in this Court.
Respectfully submitted,
BAILEY & GAL YEN
1300 Summit Avenue, Suite 650
Fort Worth, TX 76102
(817) 276-6000 - Office
(817) 276-6010- Facsimile
By:
Scott Wert
Texas State Bar No.: 00794835
ATTORNEY FOR PLAINTIFF
RESPO!IISE TO PLEA TO TilE JURISDICfiO!II PAGE30F4
067-282274-15
CERTIFICATE OF SERVICE
I hereby certify that on this 7'h day of January, 2016 the above and foregoing instrument
has been forwarded to counsel of record, in accordance with the TEXAS RULES OF CIVIL
PROCEDURE.
Scott Wert
RESPOJIISE TO PLEA TO THE JURISDICTIOS PAGE40F4
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067-282274-15 FILED TARRANT COUNlY 1/7/20161:23:22 PM THOMAS A. WILDER CAUSE NO. 067-282274-15 DISTRICT CLERK TANIA COLE, FfK/A TANIA § IN THE DISTRICT COURT RODRIGUEZ § Plaintiff, § 0 § ::::>-- v. § 67TII JuDiciAL DisTRict-:;:: § ~r..r- 2:ll NAPOLEON RODRIGUEZ § ~~ ~ :::;, Defendant. § TARRANT COUNTY, TexAS """ oG T} 3: 00 ~,: co c C) PLAINTIFF'S RESPONSE TO DEFENDANT'S PLEA TO THE JURISDfC:TI01ol TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Plaintiff, Tania Cole, hereinafter called Plaintiff, asking the Court to deny Defendant NAPOLEON RODRIGUEZ'S Plea to the Jurisdiction and would show unto the Court the following: I. INTRODUCTION Plaintiff is Tania Cole, f/k/a Tania Rodriguez; Defendant is Napoleon Rodriguez. This action is one for Partition under Chapter 23 of the Texas Property Code, and Rules 756 et seq., of the Texas Rules of Civil Procedure. Plaintiff and Defendant are co-tenants who jointly own as tenants the real property located in TARRANT County, Texas, and described as follows: 3024 Roberts Cut Off, Fort Worth, Texas. Defendant has filed a general denial, asserts some affirmative defenses, and asserts a Plea to the Jurisdiction based upon §§9.001(a) and 9.002 of the Texas Family Code. II. ARGUMENTS AND AUTHORITIES Defendant's Plea to the Jurisdiction should be denied. Defendant's reliance upon §§9.001(a) and 9.002 of the Texas Family Code is misplaced and not applicable. §9.002 of the Texas Family Code merely grants the disposing court the power to "enforce the property division." See §9.002 of the Texas Family Code, and See Defendant's Original RESPONSE TO PLEA TO THE JURISDICTION PAGE 1 OF4 067-282274-15 Answer, page 2, filed 11/19/2015. Defendant asserts in his own pleading that "It is clear that [the] 325'h District Court disposed of the property house." See Defendant's Original Answer, page 3, filed 11/19/2015 (emphasis added). Plaintiff does not seek to "change, alter, amend, modify, or alter the decree." Plaintiff does not seek to reopen her divorce case, but rather Plaintiff seeks partition of undivided community property. Chapter 23 of the Texas Property Code addresses Partition. §23.001 of the Texas Property Code states: PARTITION. 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 claimants under this chapter and the Texas Rules of Civil Procedure. See Texas Property Code §23.001. The proper statutory authority for jurisdiction- and which grants jurisdiction to this court in this particular matter - lies in §23.002 of the Texas Property Code which states: "VENUE AND JURISDICTION. (a) A joint owner or a claimant of real property or· an interest in real property may bring an action to partition the property or interest in a district court of a county in which any part of the property is located." See Texas Property Code §23.002. The case now before the Court is the same as the situation addressed by the Appellate Court In Mayes v. Stewart. In Mayes, the Court writes: We note Mrs. Stewart is not attempting to reopen her divorce case. The long-standing law in Texas is community property not divided upon divorce is held by the former spouses as tenants in common. See Harrell v. Harrell, 692 S.W.2d 876 (Tex. 1985) (per curiam); Busby v. Busby, 457 S.W.2d 551,554-55 (Tex. 1970). Partition is an appropriate remedy to effectuate post-divorce division. See Harrell, 692 S.W.2d at 876. Division of undivided community property may be sought pursuant to TEX. PROP. CODE ANN.§ 23.001. See Phillips v. Phillips, 951 S.W.2d 955,957 (Tex. App.-Waco 1997, no pet.); Burgess v. Easley, 893 S.W.2d 87, 90 (Tex. App.-Dallas 1994, no writ). Nothing in§ 23.001 requires that the suit to partition be filed in the same court in which the divorce action was heard, only that "(a] joint owner of personal property must bring an action to RESPO!'iSE TO PLEA TO THE JURISDICfiON PAGE20F4 067-282274-15 partition the property in a court that has jurisdiction over the value of the property." TEX. PROP CODE ANN. § 23.002(b) (Vernon 1984). See Mayes v. Stewart, II S.W.3d 440, 448 (Tex. App. --Houston [14th Dist.) 2000, no pet.) (emphasis added). III. CONCLUSION AND PRAYER This Court has jurisdiction in this matter pursuant to §23.001 and §23.002 in Chapter 23 of the Texas Property Code. Plaintiff does not seek to reopen her divorce case and partition is an appropriate "post-divorce" remedy to effectuate division. "Nothing in § 23.00 I requires that the suit to partition be filed in the same court in which the divorce action was heard." See Mayes. Defendant's reliance upon the Texas Family Code is misplaced and not applicable. WHEREFORE, Plaintiff asks the Court to deny Defendant's Plea to the Jurisdiction and find that jurisdiction is proper in this Court. Respectfully submitted, BAILEY & GAL YEN 1300 Summit Avenue, Suite 650 Fort Worth, TX 76102 (817) 276-6000 - Office (817) 276-6010- Facsimile By: Scott Wert Texas State Bar No.: 00794835 ATTORNEY FOR PLAINTIFF RESPO!IISE TO PLEA TO TilE JURISDICfiO!II PAGE30F4 067-282274-15 CERTIFICATE OF SERVICE I hereby certify that on this 7'h day of January, 2016 the above and foregoing instrument has been forwarded to counsel of record, in accordance with the TEXAS RULES OF CIVIL PROCEDURE. Scott Wert RESPOJIISE TO PLEA TO THE JURISDICTIOS PAGE40F4