### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00017
- CV

5653.041 Acre Ranch, L.P. and John McCall , Appellant s

v. Lewis -Watkins- Farmer Agency d/b/a Watkins Insurance Group , Appellee

FROM THE 33RD DISTRICT COURT OF BURNET COUNTY NO. 48524A, THE HONORABLE J. ALLAN GARRETT , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
5653.041 Acre Ranch, L.P. and John McCall (collectively “ the Ranch Group” )

a re defendants in a suit brought by Republic Lloyds (“Republic”) . Acting as third

- part y p laintiff
pur suant to Rule 38(a) of the Texas Rules of Civil Procedure, the Ranch Group impleaded Lewis

- Watkins

- Farmer Agency d/b/a Watkins Insurance Group ( “ the Watkins Agency ” ) as third

- party defendant. The Watkins Agency moved to dismiss the third -pa rty action pursuant to Rule 91a of the Rules of Civil Procedure. The trial court granted the Watkins Agency ’ s motion, dismissed the Ranch Group’ s third -party action , and awarded attorney ’ s fees to the Watkins Agency . In this appeal, the Ranch Group asserts that the trial court erred in dismissing its third -party action , in considerin g evidence outside its third

- party petition, and in awarding the Watkin s Agen cy attorney ’ s fees . Concluding that the Ranch Group ’ s thi rd

- party action wa s2 not ripe, w e will va cat e the trial court ’ s order and dismiss the cause for l ack of subject
matter jur isdiction.
Factual and Procedural Background The following facts are reflected by the parties ’ pleadings and are und isputed: The Ranch Group owns real property in Uvalde, T e xas. In 2016 the Ranch Group employed the Watkins Agency to obtain insurance to cover the various improvements and structures on the property. The Watkins Agency obtained an insurance policy from Republic. In July 2016 a fire caused extensive damage to one of the structures on the property , referred to as the “Hangar.” The Ranch Group submit ted a claim to Republic for the damages, and Republic subsequently paid the Ranch Group $740,000 to cover the loss

. Ten months later, however, Republic asserted th at th e policy did not cover certain improvement s to the Hangar and that, as a result, it ha d mistakenly overpaid the Ranch Group by approximately $500,000. Republic later sued the Ranch Group to recover that amount. In th e suit by Republi c, the Ranch Group has taken the position that the insurance policy does in fact cover all the losses caused by the fire and therefore there was no overp ayment by Republic

. The Ranch Group impleaded the Watkins Agency, however, alleging that if it is later determin ed th at Repu blic did make an overpayment, the Watkins A gency is liable to the Ranch Group for the amount of any such overpayment due to its negligence and Texas Insurance Code violations in failing to obtain adequate insurance coverage. P ursuant to Rule 91 a o f t he Texas Rule s of Civil Procedure , which provides for dismissal of a suit that has “ no basis in law or fact ,” t he Watkins Agency filed a motion to dismiss the Ranch Group’ s third

- party action

. See Tex. R. Civ. P. 91a. 1. The trial court granted3 th e mot ion and d ismissed the Ranch Group’ s third -party claim

. In conjunction with the dismissal, t he court awarded the Watkins Agency attorney ’ s fees pursuant to Rule 91a.7. See Tex. R. Civ. P. 91a.7

. The court then severed the Ranch Group’ s third -p arty c laim aga inst t he Watkins Agency from the remainder of the ca se , thereby making the dismissal of the third -party action a final judgment. The Ranch Group has perfected this appeal from the dis missa l.

Discussion Rule 91a provides as fo llows in pertinent part:
[A ] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not e ntitle the claimant t o t he relief sought. Tex. R. Civ. P. 91a.1. In its Rule 91a motion, the Watkins Agency argued that the Ranch Group’ s third

- party action ha s no basis in law because any injury to the Ranch Group i s contingent on Republic ’s prevailing in its suit against t he Ranc h Grou p and therefore the Ranch Group has not yet suffered any injury or damages. If a plaintiff ha s not yet suffered any legal injury from the defendant ’ s alleged conduct, the suit is not ripe. See Eagle Oil & Gas Co. v. TRO

- X, L.P. , 619 S.W.3d 69 9, 706 (Tex. 2021) (“ Under the ripeness doctrine, we consider whether, at the time a lawsuit is filed, th e facts are sufficiently developed so that an injury has occurred or is likely to occur, rather than being contingent or remote. ” (quoting Waco Indep. Sch . Dist. v. Gibson , 22 S.W.3d 849, 851

– 52 (Tex. 2000) ). A lawsuit in which the plaintiff ’s alleged injury is contingent or remote does not present a justiciable controver sy :4 Under the ripeness doctrine, we consider whether, at the time a lawsuit is file d, the facts are sufficien tly developed “ so that an injury has occurred or is likely to occ ur, rather than being contingent o r remote. ” Thus the ripeness analysis focuses on whether the case involves “ uncertain or contingent future events that may not occ ur as anticip ated or may not occur at all. ” By focusing on whether the plaintiff has a concr ete injury, the ripeness doctrin e allows courts to avoid premature adjudication, and serves the constitutional interests in prohibiting advisory opinions. A case is not ripe w hen determ ining whether the plaintiff has a concrete injury depends on contingent or hypothetical facts, or upon events that have not yet come to pass. Waco Indep. Sch. Dist. v. Gibson , 22 S.W.3d 849, 851

– 52 (Tex. 2000) (footnotes om itted) (q uot ing Patters on v. Planned Parenthood of Hous ton & S e. Tex., Inc. , 971 S.W.2d 439, 442 (Tex. 1998) ) ; accord S outhwest El ec. Power Co. v. Lynch , 595 S.W.3d 678, 683 (Tex. 2020)

. The Ranch Group ’ s Rule 91 a motion did not specifically assert an absence of ju ris di ction. N onetheless, w hen an appellate court perceives a jurisdictional issue in a case, it is obligated to raise it on the court ’ s own motion : “ ‘ Subject matter jurisd iction is an issue that may be raised for the first time on appeal[,] it may not be wa i v ed by the parties ’ , and it may

— indeed,
must

— be raised by an appellate court on its own. ” Am erican K

- 9 Detection Servs., LLC

v. Freeman , 556 S.W.3d 246, 260 (Tex. 2018) (foot note omitted) (quoting Tex as As s ’ n of Bus.

v. Tex as Air Control Bd. , 852 S.W.2 d 4 4 0, 445

- 46 (Tex. 1993) ). Accordingly, we review t he ripeness of the Ranch Group ’ s third

- party claim

. In opposition to the W atkins Agency ’ s Rule 91a motion, the Ranch Group argued that it had suffered or might suffer two types of legal injur y : ( 1) it m ig h t have to pay back $500,000 to Republic i f Rep ublic prevail s in its suit, and (2) it ha d expended and was continuing to expend atto rney ’ s fees in defending against Republic ’ s suit , for which the Watkins Agency might be liable if Republic prevail s in its s u i t.5 The fi rst of these “ injuries ” is mone y the Ranch Group might have to re pay Republic if Republic prevail s in its s uit

. Citing Rule 38(a) of the Texas Rules of Civil Procedure, the Ranch Group ’ s third

- party petition alleged that , “ In the unlikely ev en t that Third

Party Plaintiffs are found liable to Republic, Watkins is or may be l iable to Third

- Party Plaintiffs for a ll or part of such liability

. ” This alleged injury is obviously cont ingent on a future event that
may never occur : Republic ’ s prevailin g in its sui t

. The second “ injury ” asserted by the Ranch Group is its past and present expenditure of attorney ’ s fees to defend against Republic ’ s lawsuit. But any possib ility that the Watkins Agency could be liabl e for the amount of the Ranch Group ’ s a t t o rn ey ’ s fees in the Republic suit is likewise contingent upon Rep ublic ’ s prevailing in its sui t against the Ranch Group

. If the Ranch Group prevails in Rep ublic ’ s suit, any attorn e y ’ s fees that it expe nded in defending that suit could not be attribut abl e to any prior action by the Watkins Ag ency. Accordingly , this alleged “ injur y ” is also contingent and remote. See United Fire Lloyds v. Tippin ex rel. Tippi n , 396 S.W.3d 733, 73 5

- 3 6 (Tex. App.

— Houston [14th Dist.] 2013 , no pet. )

. Thus , t he “ injuries ” al l e ged by the R an ch Group in its third

- party action are not the kind of concrete injuries that are necessary to est ablish a justi ciable controvers y. If a case is not ripe, the trial court lacks subject matter jurisdiction

. S outhwest Elec. Power Co. , 595 S

. W .3d
at 683

. Acc ord ingly , the trial court here lacked jurisdiction over the Ranch Group ’ s third

- party action and accord ingly lacked jurisdiction to rule on t he merits of the Watkins Agency ’ s Rule 91a motio n. See Good Shepherd Med. Ctr., Inc. v. Sta te , 3 0 6 S.W.3d 825, 838 (Tex. A pp.

— Austin 2010 , no pet. )

. Although the trial court ’ s order stated generally that the Ranch Group ’ s thi rd

- party action was “ dismisse d, ” the fact that the court awarded attorney ’ s fees to the Watkins Agency shows that the cou rt wa s not ruling o n the b asis of a lack of subject matter jurisdiction6 but on the merits of the Rule 91a motion. Cf. Lexington v. Treece , No. 01 -17-00228- CV, 2021 WL 2931354, at *19 (Tex. App. —Houston [1st Dist.] July 13, 2 021, pet. filed ) (mem. op.) ; Dallas Cn ty. Republican Party v. Dallas C n ty. Democratic Party , No. 05 -18-00916- CV, 2019 WL 4010776, at *5 (Tex. App.— Dallas Aug. 26, 2019, pet. denied) (mem. op.). To the extent the Ranch Group argues that Rule 38 (a) creates an exception to the jurisdictional do ct r ine of ripeness, we reject this argument. Procedural rules cannot grant jurisdiction when it is otherwise lacking. See Tex. R. Civ. P. 816 (“These rules shall not be construed to extend or limit the jurisdiction of the courts of the State of Texas.”).

Con clu sion “I f the trial court lacks subject matter jurisdiction, the appellate court can make no order other than reversing the judgment of the court below and dismissing the cause. ” Diocese of Lubbock v. Guerrero , 624 S.W.3d 563, 564 (Tex. 2021) (quot in g City of Gar land v. Louton , 691 S.W.2d 603, 605 (Tex. 1985) ), cert. denied , 142 S. Ct. 434, 211 L. Ed. 2d 255 (2021)

. Having determined that the trial court lacked subject matter jurisdiction over the R anch Group’ s third

- party action, we vacate the cou rt ’ s order and dismiss the third

- party action (now severed into a stand- alone cas e) , without prejudice, for lack of jurisdiction. 1

1 A dismiss al based on lack of ripeness is no t a ru li ng on the merits of the claim and therefore should be without prejudice to the case being refiled if a nd w hen the inj ury becomes sufficiently concrete

. See Andress v. Parker C ty. Ba il Bon d B d. , No. 07 -14-00069- CV, 2015 WL 1119714, at *3 (Tex. App.— Amarillo Mar. 11, 2015, pet. denied) (mem. op.).7 __________________________________________ J. Woodfin Jones, Justice Before Justices Triana, Ke lly , and Jo nes* Vacated and Dismissed for Want of Jurisdiction File d: May 11, 2022

* Before J. Woo dfin Jones, Chief Justic e (Retired), Third Court of Appea ls, si tting by assignm ent. See Tex . G ov ’ t Co de § 74. 003(b).