Date: 07-21-2014

Case Style: Gary Ben Stephens, et al v. Union Valley Ranch, LP

Case Number: 05-13-00642-CV

Judge: Ada Brown

Court: Texas Court of Appeals, Fifth District on appeal from the 193rd Judicial District Court of Dallas County

Plaintiff's Attorney: Chad A. Johnson and Richard Illmer for Union Valley Ranch, LP

Defendant's Attorney: Theodore C. Anderson and W. D. Masterson for Gary Ben Stephens, et al.

Description: In this property dispute, appellants Gary Ben Stephens, Stephens Group, L.P., and
Stephens Group II, L.P. appeal the trial court’s order granting summary judgment to appellee
Union Valley Ranch, L.P. on its claim for declaratory relief. In two issues, appellants argue (1)
appellee’s claim was a suit to try to title and therefore had to be brought as a trespass to try title
action and (2) the award of attorney’s fees was improper. We affirm.
This is the second lawsuit involving these same parties and (lie same property. Briefly,
Kourosh Hemyari purchased three tracts of property at a foreclosure sale and ultimately sold one
of the tracts to appellee.’ In the first lawsuit, the Stephens appellants sued to set aside the
foreclosure deed. The lawsuit resulted in a judgment in which the trial court ordered that
Hemyari and appellee owned their respective parcels of the property “in fee simple title, free and
clear of any encumbrance, lien, or any other interest of Gary Ben Stephens, Stephens Group,
L.P., and Stephens Group 11, L.P., individually orcollectively[.1” The trial court’sjudgment was
ultimately affirmed by the Texas Supreme Court. See Keinyciri v. Stephens. 355 S.W.3d 623,
628 (Tex. 201 1).2 After the supreme court’s decision, appellee asked appellants to withdraw a
purported deed conveyed by appellants during the pendency of the lawsuit or execute a quit
claim deed and to cancel several notices of lis pendens placed on the property. When appellants
refused, appellee filed this lawsuit, seeking a declaration that the disputed deed was not valid
because appellants had no title to the property to convey pursuant to the final judgment rendered
in the earlier lawsuit and seeking cancellation of the notices of lis pendens.
Appellee filed a motion for summary judgment, asserting the parties previously litigated
title to the subject property, and the litigation resulted in a judgment that appellee owned the
property in fee simple, free and clear of any interest of appellants. Appellee attached several
documents as evidence, including certified copies o the petition in the prior lawsuit, the final
judgment, and the supreme court’s mandate. In response, appellants asserted appellee owned
only the surface fee estate and they owned the mineral rights. After considering the summaryjudgment
evidence, the trial court granted appellee’s motion. In its amended order, the trial court
declared that appellants “have no continuing interest of any kind whatsoever, whether surface,
mineral or otherwise,” in the property in dispute. The trial court also ordered that all notices of
A lilore extensive explan;tlion of the history of the pwpeny’s ownership ;,nd the origins of the dispute hetsseen the panics can he found in
his Court’s prior opinions in thL earlier lawsuit. See Su’;’Ite’ts t IIr,,ivizri. 216 s.W3d 526, 527-28 (TeL App.— Dallas 2007, pet. denied);
Sre,’hens’. Heo,vari.355 SW. 0,11—12 (Tet App—Dallas 2011)). reVS. 355 s.W.3d623 TeL 2011).
— This Court recerced the trial court’s judgntent and rendered •judgneni in a’ or of the stephens appellants. See Step/tens. 355 SW.3d tI IS.
Ilte supreme court revened this Court. ac,d, in its ,,,andate. reinstated the Iriul court’s judgittent.
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us pendens canceled or expunged. Finally, the trial court awarded appeilee its attorney’s fees.
This appeal ensued.
We review a summary judgment de novo to determine whether a party’s right to
judgment was established as a matter of law. Dickey i. Club Corp. of Am., 12 S.W.3d 172, 175
(Tex. App.—Dallas 2000, pet. denied). When a plaintiff moves for traditional summary
judgment it has the burden to conclusively establish all elements of its claim as a matter of law.
See TEX. R. Civ. P. 166a(c); MMP, Ltd. i. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam). If
the plaintiff satisfies its burden, the burden shifts to the defendant to preclude summary judgment
by presenting evidence that raises a genuine issue of material fact. Westland Oil Dcv. Corp. v.
Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982).
In their first issue, appellants assert the trial court improperly determined title to property
in a declaratory judgment action when such an action must be brought as trespass to try title.
Appellants did not make this argument in their response to appellee’s motion for summary
judgment; they argued fact issues existed as to whether they owned the mineral estate.
Generally, issues not expressly presented to the trial court by written motion, answer, or response
shall not be considered on appeal as grounds for reversal. TEx. R. Civ. P. 166a(c). But assuming
this issue is properly before us, we agree with appellee that the trial court did not adjudicate title
to the property; rather, title was adjudicated in the prior judgment in the first lawsuit. In this
case, the trial court determined the effect of the prior judgment and declared appellants had no
continuing interest of any kind in the property and ordered the notices of lis pendens cancelled or
expunged. Appellants make no other argument regarding the propriety of the summary
judgment. We therefore overrule their first issue.
In their second issue, appellants argue the trial court erred in awarding attorney’s fees to
appellee “without the production of time slips and allocation as between the declaratory
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judgment action and the cause of action to cancel a us pendens.” Within the body, appellants
argue appellees brought a trespass to try title suit disguised as a declaratory judgment action, and
attorney’s fees are not recoverable for trespass to try title. We have previously concluded
appellee’s suit was not to try title. To the extent appellants assert appellee did not segregate fees,
appellants did not raise the segregation issue below and have therefore waived error, if any. See
Green int’l, Inc. v. Soils, 951 S.W.2d 384, 389 (Tex. 1997) (“[l]f no one objects to the fact that
the attorney’s fees are not segregated as to specific claims, the objection is waived.”). We
overrule appellants’ second issue.

Outcome: We affirm the trial court’s judgment.

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