Texas Judiciary Online - HTML Opinion

In its motion, the = only basis=20 upon which the Association asserted that it holds record title to = the park=20 property is a deed recorded on June 19, 1969 (hereinafter = A1969 Deed@). The = Association claims=20 its alleged predecessor received title to the park property from = William=20 H. Williams in the 1969 Deed. The Association, however, did = not=20 prove as a matter of law that Williams held title to the park = property=20 when he executed the 1969 Deed. Therefore, the=20 Association=3Ds motion and = summary-judgment=20 evidence do not facially establish its right to judgment as a = matter of=20 law. In addition, even considering all of the = summary-judgment=20 evidence under the applicable standard of review, this evidence = does not=20 prove as a matter of law that the Association is the legal and = lawful=20 record title owner of Claiborne Park.^{^[8]} =20 Therefore, the trial court erred in granting summary judgment = making this=20 declaration as a matter of law.^{^[9]} =20 This court should reverse this part of the trial court=3Ds judgment and remand = for=20 further proceedings.

/s/ Kem=20 Thompson Frost

Justice

Judgment rendered and Plurality and = Concurring and=20 Dissenting Opinions filed December 20, 2007.

Panel consists of Justices Fowler, = Frost, and=20 Edelman.^* = (Edelman, J.,=20 plurality) (Fowler, J., concurring without = opinion).

^{^[1]} The trial court ruled = on=20 various motions for summary judgment and made a number of = declarations as=20 a matter of law. These rulings did not yield a final = judgment;=20 however, the trial court severed its summary-judgment rulings as = to two=20 specific issues into the case below to create a final judgment = that is the=20 subject of this appeal and cross-appeal.

^{^[2]} = See Bland=20 Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) = (holding=20 that court may not delve into merits of the case in deciding = whether a=20 party has standing). In addition, even if the Committee = lacked=20 standing, as the plurality concludes, it would be inappropriate to = affirm. Rather, the proper judgment would be either to = dismiss that=20 part of the appeal (if there were standing in the trial court but = not on=20 appeal) or to vacate the part of the trial court=3Ds judgment as to which there were no = standing and=20 dismiss that part of the appeal. See Gantt v. Gantt, = 208=20 S.W.3d 27, 31 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) = (vacating=20 trial court judgment and dismissing appeal based on lack of = subject matter=20 jurisdiction in the trial court and on appeal); Harper v. = Welchem,=20 Inc., 799 S.W.2d 492, 496 (Tex. App.CHouston [14 Dist.] 1990, no writ) = (stating that=20 the correct disposition upon concluding that a party lacks = standing is to=20 dismiss).

^{^[3]} Therefore, the claims sought = affect the=20 inquiry into whether a party has standing to assert the claims; = however, a=20 party=3Ds position on the merits should not = affect the=20 determination of whether the party has an interest in the=20 controversy. Under the plurality=3Ds analysis, the Committee would have = standing to=20 seek a declaratory judgment on the issue of whether the = Association has=20 title if it sought a declaration that the Association holds title = to=20 Claiborne Park, but the Committee lacks standing as to that same = issue=20 because it argues that the Association does not have title. = The=20 existence of the Committee=3Ds interest in the resolution of this = title=20 question should not depend on how the question gets = answered. =20

^{^[4]} The plurality relies = on a false=20 premise that the Committee members must assert that the = Association owns=20 the property before they can be aggrieved and have standing. = See=20 ante at p.9 & n.9. This proposition is not supported = by the=20 case law. See Austin Nursing Ctr., Inc., 171 = S.W.3d at=20 848B49; Nootsie, Ltd., 925 S.W.2d at=20 661B62; Marburger, 957 S.W.2d at = 89. =20 Based on the false premise, the plurality concludes that for = the=20 Committee to have standing this court would have to find that the=20 Committee is asserting that the Association has title, which the = plurality=20 correctly notes is contrary to the Committee=3Ds legal position. The = plurality=3Ds reasoning is flawed because it rests = on a false=20 premise. Because the Committee can assert, and under its = pleadings=20 and the record, is asserting an interest in the controversy as to=20 whether the Association has title and because the Committee = asserts=20 that its members are aggrieved in the six respects listed above, = there is=20 no requirement that the Committee members assert that the = Association have=20 title before they can show an interest in the controversy and=20 aggrievement. Performing the legal analysis under the Texas = Supreme=20 Court=3Ds standard, it is clear that the = Committee members=20 have standing regarding the title issue.

^{^[5]} The other case cited = by the=20 plurality also does not support the proposition that a party must = have=20 been a past or present owner of land to have standing to challenge = the=20 transfer of title to the land. See Hollar v. Jowers, = 310=20 S.W.2d 721, 724 (Tex. Civ. App.CEastland 1958, writ ref=3Dd n.r.e.) (stating that appellees needed = to show=20 an interest in land to bring suit to cancel deed regarding = the land=20 but that interest could be mere status as heir of deceased = grantor=20 rather than ownership in the land, and reversing and remanding = based on=20 failure to join all indispensable parties rather than vacating = based on a=20 lack of standing).

^{^[6]} Because the severance order = limited=20 this issue to the declaration that the Association is the legal = and lawful=20 record title owner of Claiborne Park, there is no issue in this = appeal=20 regarding adverse possession.

^{^[7]} The parties in = this case=20 sought declaratory relief but did not assert any = trespass-to-try-title=20 claim. This court need not address whether the trial court = was=20 barred from awarding declaratory relief regarding record title to = the park=20 property based on the Texas Supreme Court=3Ds decision in Martin v. Amermann, = 133=20 S.W.3d 262, 266B68 (Tex. 2004). Even if the trial = court were=20 so barred, that would be a statutory, nonjurisdictional argument = that the=20 parties waived by not asserting it. See Dubai Petroleum = Co. v.=20 Kazi, 12 S.W.3d 71, 75B76 (Tex. 2000).

^{^[8]} The statement by Dale L. = Hardy, in=20 his affidavit, that the 1969 Deed is an Ainstrument conveying the >Park Property=3D from William H. Williams to Clear Creek = Village=20 Civic Club@ is a legal conclusion, and therefore no = evidence.

^{^[9]} In the = Committee=3Ds opening brief on cross-appeal, the = Committee (1)=20 did not mention that it filed a motion seeking a declaratory = judgment=20 that, as a matter of law, the Association does not hold record = title to=20 the park property, (2) did not cite the text of this motion, = although it=20 cited two exhibits to this motion, (3) did not ask this court to = reverse=20 the trial court=3Ds denial of this motion and render = judgment=20 granting this motion, and (4) did not provide this court with = argument,=20 analysis, or authorities explaining why the trial court = purportedly erred=20 in denying this motion. See Tex. R. App. P. = 38.1(h). =20 Because of this briefing waiver, the court need not address = whether the=20 trial court erred in denying this motion. Even were the = court to=20 consider this issue, under the applicable standard of review, the = court=20 would have to conclude that the summary-judgment evidence does not = prove=20 this proposition as a matter of law.

^* Senior Justice Richard H. Edelman = sitting=20 by = assignment.