In The

Crnwt of Appeals

iLftl! District of exas at Dallas

No. 05-13-00642-CV

GARY BEN STEPHENS, STEPHENS GROUP, L.P.,

AND STEPHENS GROUP II, L.P., Appellants

V.

UNION VALLEY RANCH, LP, Appellee

On Appeal from the 193rd judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-12-03894-C

MEMORANDUM OPINION

Before Justices Bridges, O’Neill. and Brown

Opinion by Justice Brown

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
L.P., and Stephens Group 11, L.P., individually orcollectively[.1” The trial court’sjudgment wasultimately 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 quitclaim 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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(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 judgmentby 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 assumingthis 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 nocontinuing 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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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.

We affirm the trial court’s judgment.

/Ada Brown!

ADA BROWNJUSTICE

I 30642F.P05

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Fiftl3 Distrirt of Urxas at Dallas

JUDGMENT

GARY BEN STEPHENS, STEPHENS

GROUP, L.P., AND STEPHENS GROUP

II, L.P., Appellants

On Appeal from the 193rd Judicial DistrictCourt, Dallas County, Texas

Trial Court Cause No. DC-12-03894-C.

Opinion delivered by Justice Brown.

No. 05-1 3-00642-CV V. Justices Bridges and O’Neill participating.

UNION VALLEY RANCH, LP, Appellee

In accordance with this Court’s opinion of this date, the trial court’s Amended Order

Granting Plaintiff’s Motion for Summary Judgment is AFFIRMED.

It is ORDERED that appellee Union Valley Ranch, LP recover its costs of this appeal

from appellants Gary Ben Stephens, Stephens Group, L.P., and Stephens Group II, L.P.

Judgment entered this 21st day of July, 2014.

Q

\pp

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