Robert A. Rakowski and Clear Creek Civic Association, Inc. v. Committee to Proctect Clear Creek Village Homeowners' Rights and Preserve Our Park

Appellants= Motion for Rehearing Overruled; Affirmed; Plurality and Concurring and Dissenting Opinions of December 20, 2007 Withdrawn, and Substitute Plurality and Concurring and Dissenting Opinions filed April 3, 2008

Appellants= Motion for Rehearing Overruled; Affirmed; Plurality and Concurring and Dissenting Opinions of December 20, 2007 Withdrawn, and Substitute Plurality and Concurring and Dissenting Opinions filed April 3, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-05-01143-CV

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ROBERT A. RAKOWSKI, Appellant, and CLEAR CREEK VILLAGE CIVIC ASSOCIATION, INC. Appellant/Cross-Appellee

V.

COMMITTEE TO PROTECT CLEAR CREEK VILLAGE HOMEOWNERS= RIGHTS AND PRESERVE OUR PARK, Appellee/Cross-Appellant

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 04CV1407A

S U B S T I T U T E   C O N C U R R I N G  A N D  D I S S E N T I N G 

O P I N I O N^[1]

There is no merit in the appellate challenges asserted by appellants Robert A. Rakowski and Clear Creek Village Civic Association, Inc. (the AAssociation@) against the trial court=s summary judgment declaring that the Clear Creek Village Subdivision restrictive covenants limit the use of the Claiborne Park property to recreational purposes for the exclusive use and enjoyment of subdivision homeowners.  Accordingly, I concur in that portion of the court=s judgment.  However, the plurality erroneously concludes that appellee Committee to Protect Clear Creek Village Homeowners= Rights and Preserve Our Park (hereinafter the ACommittee@) lacks standing to contest any issues regarding ownership of the park.  Instead of finding a lack of standing, this court should reverse and remand because the trial court erred in granting the Association=s motion for summary judgment in which the Association sought a declaration that it is the legal and lawful record title owner of Claiborne Park.  To the extent the court does not, I respectfully dissent.^[2]

The Committee does not lack standing to contest any issues concerning the park=s ownership based on the Committee=s position as to who owns the park.         

The plurality affirms the trial court=s declaratory judgment regarding title to Claiborne Park on the stated ground that the Committee lacks standing based on its position on the merits of this title issue.  However, the plurality errs in basing its standing analysis on the Committee=s position on the merits.^[3]

The plurality does not discuss the general legal standard for determining standing.  A party has standing when it is personally aggrieved.  See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848B49 (Tex. 2005).  The general test for standing in Texas requires a real controversy between the parties that actually will be determined by the judicial declaration sought.^[4] See id.; Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661B62 (Tex. 1996).  The Committee has organizational standing if (1) its members otherwise would have standing to sue in their own right;  (2) the interests the Committee seeks to protect are germane to its purpose;  and (3) neither the claims asserted nor the relief requested requires the participation of individual members in the lawsuit.  See Texas Ass=n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993). Because no party sought to dismiss any of the Committee=s claims in the trial court for lack of standing, this court must construe the Committee=s petition in its favor and, if necessary, review the entire record to determine if any evidence supports standing.  See id. at 446. 

In its live pleading, the Committee objected to the sale of Claiborne Park and sought to enjoin the closing of the proposed sale.  The Committee made the following allegations:

(1)       The sale would violate the restrictions, covenants, and conditions imposed by a document recorded in February 1964;

(2)       The sale would deny the residents of Clear Creek Village (which would include all of the Committee=s members) a recreational area and access to a recreational area;

(3)       The sale would lower the residents= property values;

(4)       The sale would substantially interfere with their use and enjoyment of their property;

(5)       The sale would infringe on their privacy; and

(6)       The sale would adversely impact the flood control and drainage plan of the surrounding property. 

Although the Association asserts that the Committee lacks standing because the Committee did not seek a declaration that it or its members own Claiborne Park, a request for such relief is not necessary if the legal standard is satisfied by another interest that would be aggrieved by the sale of the park property.  See Nootsie, Ltd., 925 S.W.2d at 662 (rejecting argument that county appraisal district lacked standing to assert that statute was unconstitutional, even though appraisal district did not possess any constitutional rights that statute could violate, because district had interest in not enforcing unconstitutional statute that gave rise to standing to determine statute=s constitutionality).  The Committee sufficiently alleged that, if the Association has title and the ability to transfer the park property to Rakowski, then the members of the Committee would be personally aggrieved, giving rise to a real controversy between the parties that actually would be determined by the judicial declaration sought. Therefore,  the members of the Committee otherwise would have standing to sue in their own right.  See id.  The plurality and the Association do not take issue with the second and third prongs of organizational standing; and the record reflects that these elements are satisfied.  Thus, the Committee has standing, and this court has jurisdiction over the cross-appeal.

The plurality cites Marburger v. Seminole Pipeline Co. for the proposition that a party must have been a past or present owner of land to have standing to challenge the transfer of title to the land.  See ante at p. 7, n.9 (citing Marburger v. Seminole Pipeline Co., 957 S.W.2d 82, 89B90 (Tex. App.CHouston [14th Dist.] 1997, pet. denied) for this proposition).  However, this court in Marburger stated that a party can establish standing by showing, among other things, that (1) he has sustained, or is in immediate danger of sustaining, some direct injury as a result of the wrongful act of which he complains; or (2) he has a direct relationship between the alleged injury and the claim sought to be adjudicated; or (3) he has a personal stake in the controversy.  See Marburger, 957 S.W.2d at 89.  The Marburger court did not state that a party must be a landowner before it could have standing.^[5] See id.  The Marburger court did not address whether a party had standing to challenge the transfer of title to the land.  See id. Rather, the Marburger court addressed whether certain parties had standing to assert claims that a pipeline company defrauded them into selling the company an easement across certain land.   See id. at 84B90.  The Marburger court concluded that the trial court did not err in finding that certain plaintiffs lacked standing because there had been no showing that they had any interest in the land over which the easements were granted, and because they did not show that they had any interest in the fraud claims.  See id. at 89B90.  The opinion in Marburger supports the proposition that the Committee has standing in this case.^[6]

The trial court erred in granting the Association=s motion for summary judgment in which the Association sought a declaration that it is the legal and lawful record title owner of the park.

As to the merits, the issue is whether the trial court correctly granted summary judgment that, as a matter of law, the Association is the legal and lawful record title owner of Claiborne Park.^[7]  In a traditional motion for summary judgment, if the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court=s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.^[8] Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

In its motion, the only basis upon which the Association asserted that it holds record title to the park property is a deed recorded on June 19, 1969 (hereinafter A1969 Deed@).  The Association claims its alleged predecessor received title to the park property from William H. Williams in the 1969 Deed.  The Association, however, did not prove as a matter of law that Williams held title to the park property when he executed the 1969 Deed.  Therefore, the Association=s motion and summary-judgment evidence do not facially establish its right to judgment as a matter of law. In addition, even considering all of the summary-judgment evidence under the applicable standard of review, this evidence does not prove as a matter of law that the Association is the legal and lawful record title owner of Claiborne Park.^[9]  Therefore, the trial court erred in granting summary judgment making this declaration as a matter of law.^[10]  This court should reverse this part of the trial court=s judgment and remand for further proceedings.     

/s/        Kem Thompson Frost

Justice

Appellants= Motion for Rehearing Overruled; Judgment rendered; Plurality and Concurring and Dissenting Opinions of December 20, 2007 Withdrawn, and Substitute Plurality and Concurring and Dissenting Opinions filed April 3, 2008.

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

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^[1]           The concurring and dissenting opinion of December 20, 2007 is withdrawn, and the following substitute concurring and dissenting opinion is issued in its place.

^[2]    The trial court ruled on various motions for summary judgment and made a number of declarations as a matter of law.  These rulings did not yield a final judgment; however, the trial court severed its summary-judgment rulings as to two specific issues into the case below to create a final judgment that is the subject of this appeal and cross-appeal.

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

^[4]  Therefore, the claims sought affect the inquiry into whether a party has standing to assert the claims; however, a party=s position on the merits should not affect the determination of whether the party has an interest in the controversy.  Under the plurality=s analysis, the Committee would have standing to seek a declaratory judgment on the issue of whether the Association has title if it sought a declaration that the Association holds title to Claiborne Park, but the Committee lacks standing as to that same issue because it argues that the Association does not have title.  The existence of the Committee=s interest in the resolution of this title question should not depend on how the question gets answered. 

^[5]    The plurality=s reasoning is flawed because it rests on the false premise that the Committee members must assert that the Association owns the property before they can be aggrieved and have standing.  See ante at p. 8 & n.11.  This proposition is not supported by the case law.  See Austin Nursing Ctr., Inc., 171 S.W.3d at 848B49; Nootsie, Ltd., 925 S.W.2d at 661B62; Marburger, 957 S.W.2d at 89.  Based on this false premise, the plurality concludes that, for the Committee to have standing, this court would have to find that the Committee is asserting that the Association has title, which the plurality correctly notes is contrary to the Committee=s legal position. Because the Committee can assert, and under its pleadings and the record, is asserting an interest in the controversy as to whether the Association has title, and because the Committee asserts that its members are aggrieved in the six respects listed above, there is no requirement that the Committee members assert that the Association have title before they can show an interest in the controversy and aggrievement. Performing the legal analysis under the Texas Supreme Court=s standard, it is clear that the Committee members have standing regarding the title issue. 

^[6]    The other case cited by the plurality also does not support the proposition that a party must have been a past or present owner of land to have standing to challenge the transfer of title to the land.  See Hollar v. Jowers, 310 S.W.2d 721, 724 (Tex. Civ. App.CEastland 1958, writ ref=d n.r.e.) (stating that appellees needed to show an interest in land to bring suit to cancel deed regarding the land but that interest could be mere status as heir of deceased grantor rather than ownership in the land, and reversing and remanding based on failure to join all indispensable parties rather than vacating based on a lack of standing).

^[7]   Because the severance order limited this issue to the declaration that the Association is the legal and lawful record title owner of Claiborne Park, there is no issue in this appeal regarding adverse possession.

^[8]     The parties in this case sought declaratory relief but did not assert any trespass-to-try-title claim.  This court need not address whether the trial court was barred from awarding declaratory relief regarding record title to the park property based on the Texas Supreme Court=s decision in Martin v. Amermann, 133 S.W.3d 262, 266B68 (Tex. 2004).  Even if the trial court were so barred, that would be a statutory, nonjurisdictional argument that the parties waived by not asserting it in the court below.  See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75B76 (Tex. 2000).

^[9]   The statement by Dale L. Hardy, in his affidavit, that the 1969 Deed is an Ainstrument conveying the >Park Property= from William H. Williams to Clear Creek Village Civic Club@ is a legal conclusion, and therefore no evidence. 

^[10]   In the Committee=s opening brief on cross-appeal, the Committee (1) did not mention that it filed a motion seeking a declaratory judgment that, as a matter of law, the Association does not hold record title to the park property, (2) did not cite the text of this motion, although it cited two exhibits to this motion, (3) did not ask this court to reverse the trial court=s denial of this motion and render judgment granting this motion, and (4) did not provide this court with argument, analysis, or authorities explaining why the trial court purportedly erred in denying this motion.  See Tex. R. App. P. 38.1(h).  Because of this briefing waiver, the court need not address whether the trial court erred in denying this motion.  Even were the court to consider this issue, under the applicable standard of review, the court would have to conclude that the summary-judgment evidence does not prove this proposition as a matter of law.

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