Affirmed and Memorandum Opinion filed January 18, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-16-00523-CV

LYNDON MAYBERRY, Appellant 

V.

KINDER MORGAN CRUDE & CONDENSATE, LLC, Appellee 

On Appeal from the 412th District Court 

Brazoria County, Texas 

Trial Court Cause No. 71532 

M E M O R A N D U M O P I N I O N 

In this condemnation proceeding, appellant Lyndon Mayberry challenges the 

trial court’s judgment condemning certain Brazoria County property in favor of 

appellee Kinder Morgan Crude & Condensate, LLC (“KMCC”). In four issues, 

Mayberry asserts that: (1) he has constitutional standing; (2) there is legally 

sufficient evidence that he has standing; (3) the trial court’s judgment is void for 

lack of jurisdiction; and (4) certain statutory provisions concerning notice in a 

condemnation proceeding are unconstitutional. 
2

Because we conclude that Mayberry lacks an ownership interest in the 

condemned property, we affirm the trial court’s judgment. 

Background 

KMCC filed a petition for condemnation, seeking to acquire a permanent 

easement for construction of a common-carrier pipeline through property in Brazoria 

County. KMCC identified a 98-acre tract of land across which it sought rights for a 

50-foot easement.1 After reviewing the Brazoria County real property records, 

KMCC could not identify all owners of record of the 98-acre tract. Thus, KMCC 

named several known and unknown parties as defendants, including Mayberry, the 

unknown heirs of T. L. Smith, W. P. Womack, and the estate of Alice Grovey2—all 

of whom KMCC alleged may own, possess, or claim some interest in the 98-acre 

tract. KMCC asserted that it provided the requisite paperwork to the defendants and 

that the defendants rejected its bona fide offer to purchase an interest in the property.3

KMCC sought appointment of special commissioners to schedule a hearing 

and assess damages occasioned by condemning the property.4

 The trial court 

appointed three special commissioners, who notified Mayberry and the other 

defendants, including the unknown defendants via publication, of the hearing to 

 

1 This condemnation proceeding concerns only the 50-foot easement in the 98-acre tract 

identified by KMCC in its condemnation petition. See Tex. Prop. Code § 21.012(b)(1) (stating 

that a condemnation petition must describe the property to be condemned). KMCC attached a 

metes and bounds survey description of the location of the easement to its condemnation petition.

2 The petition identifies “Maurice Grovey” as the agent for the estate of Alice Grovey. 

3

See Tex. Prop. Code § 21.012(a) (“If an entity with eminent domain authority wants to 

acquire real property for public use but is unable to agree with the owner of the property on the 

amount of damages, the entity may begin a condemnation proceeding by filing a petition in the 

proper court.”); id. § 21.012(b) (providing requisites of petition for condemnation).

4

See id. §§ 21.014-.015
3

assess damages.5 Mayberry appeared at the special commissioners’ hearing. After 

hearing evidence and argument, the special commissioners signed an award 

assessing damages of $13,043 for condemnation of the easement over the 98-acre 

tract. In June 2013, KMCC deposited $13,043 into the court’s registry.6 

Subsequently, on June 7, 2013, Mayberry filed an objection and answer in 

which he denied KMCC’s condemnation claims and objected to the special 

commissioners’ award.7

 Tex. Prop. Code § 21.018. Mayberry alleged that the 

condemnation award was inadequate to compensate him for his interest in the 

property and that the special commissioners “failed to apply the correct measure of 

damages in determining the adequate compensation” to which he was entitled. 

The court set the matter for trial in early 2016. Mayberry filed an amended 

answer against KMCC on the day of trial.8

 Mayberry alleged that KMCC’s pipeline 

 

5

See id. § 21.016(d) (stating authorized methods of serving notice, including by 

publication if the property owner is unknown).

6 KMCC also filed a $5,000 bond for any additional costs that could be awarded to 

condemnees.

7 Maurice Grovey III, who was served with KMCC’s petition, filed special exceptions, a 

general denial, and verified denials. Grovey claimed he had been misidentified as having an 

interest in the 98-acre tract and averred in an attached affidavit that he did not own or claim any

interest in the property described in KMCC’s petition. Further, at the hearing on March 7, 2016, 

described infra, Grovey’s attorney disclaimed on behalf of Grovey any interest in the property on 

the record.

8 Our record does not reflect whether Mayberry obtained leave of court to file his amended 

pleading. See Tex. R. Civ. P. 63 (providing that amended pleadings filed within seven days of the 

date of trial “shall be filed only after leave of the judge is obtained,” but that “leave shall be granted 

by the judge unless there is a showing that such filing will operate as a surprise to the opposing 

party”). In his amended pleading, Mayberry asserted several counterclaims against KMCC, but 

he presented no evidence relevant to these claims at trial and he later non-suited them. Although 

it appears Mayberry attempted to withdraw his non-suit, he has not raised any issues related to the 

counterclaims or the non-suit on appeal. Further, the trial court’s judgment states that “all relief 

sought by any party at the time of the trial of this cause on March 7, 2016 not expressly granted in 

this judgment is denied.” 
4

“extend[ed] far beyond just the . . . 98 acre tract.” Importantly, Mayberry expressly 

stated he had no interest in the 98-acre tract. 

Mayberry also filed a trial brief in support of a motion to dismiss, although 

the motion to dismiss is not contained in our record. In his brief, Mayberry again 

clearly disclaimed any interest in the 98-acre tract at issue by stating “[t]he only 

persons with an interest in the Subject property are the Heirs of TL Smith. 

[Mayberry] is neither an Heir of TL Smith nor did he own any of their property 

interest at the time of the filing of this action.” 

KMCC filed a bench memorandum “concerning proof of standing as a 

predicate to offering evidence.” KMCC asserted that Mayberry had “failed to 

provide any evidence of a vested interest in the [98-acre tract] through discovery or 

otherwise, be it by deed, mortgage note, county record, or other property ownership 

document.” KMCC argued that because Mayberry had not established “an 

identifiable, personal stake in the Property, or in this litigation,” he lacked standing 

to seek any affirmative relief or recover any portion of the commissioners’ award. 

At the beginning of the bench trial on March 7, 2016, the trial court inquired 

whether Mayberry had any interest in the 98-acre tract KMCC sought to condemn: 

“Let me ask you this. Is [Mayberry] claiming any ownership interest in the 98 acres 

that are the subject matter of this condemnation?” Mayberry’s trial counsel 

explained that Mayberry had an interest in a larger, 600-acre tract, known as the 

Morris Tract, in which this 98-acre tract allegedly was contained, but stated that 

Mayberry had “no interest” in the land described in KMCC’s petition. 

After these discussions, the trial court called the condemnation proceedings 

to trial, and Mayberry testified in pertinent part as follows: 

This property that’s being described in this petition is the fractional 

interest of T. L. Smith heirs and I own none of their fractional interest. 
5

I am not an heir of T. L. Smith. At the time of the taking I owned none 

of their fractional interest. 

*** 

The [property listed in KMCC’s petition] is describing the fractional 

interest of T. L. Smith heirs and I don’t own any of their fractional 

interest. 

When asked if KMCC’s condemnation petition described Mayberry’s property, he 

stated, “No.” The trial court admitted numerous deeds granting property contained 

in the Morris Tract to Mayberry, but none of these transfers matched the property 

described in KMCC’s condemnation petition. 

In various trial court filings, Mayberry asserted that the court lacked 

jurisdiction to hear this case because he was the “wrong defendant.” During the trial, 

Mayberry also urged that the court lacked jurisdiction because the property was 

“improperly described” in KMCC’s condemnation petition, in that Mayberry had no 

interest in the 98-acre tract identified in that petition; instead, according to Mayberry, 

Mayberry had an interest in the larger Morris Tract, and KMCC’s petition did not 

properly describe Mayberry’s interest in the larger tract. 

After hearing the evidence and arguments of counsel, the trial court signed a 

final judgment on June 13, 2016. In the judgment, the trial court found, among other 

things:

At the trial of this cause, upon objection to any standing of 

Lyndon Mayberry to present evidence and prosecute a claim for 

personal damages, the Court provided him an opportunity to present 

evidence of his ownership interest in the Property in whole or in part. 

After hearing such evidence and all other arguments properly before 

the Court on this issue, the Court found that Lyndon Mayberry failed to 

meet his burden to prove that he had an ownership interest in the 

Property. 
6

The court decreed that KMCC was entitled to condemn the 50-foot pipeline rightof-way in the 98-acre tract of land and, given KMCC’s deposit of $13,043 in the 

registry of the court on June 3, 2013, KMCC was “released and discharged of its 

constitutional obligation to pay adequate compensation” to all defendants. The 

judgment stated that the $13,043 in condemnation damages would remain in the 

court’s registry and paid to “those persons who can demonstrate . . . that they are the 

heirs of T.L. Smith whose identity was not known as of March 7, 2016.” As to any 

other relief sought by all parties at the time of trial, the judgment denied relief. 

This appeal timely followed. 

Governing Law 

Texas Property Code Chapter 21 governs eminent-domain proceedings. “The 

Texas eminent-domain scheme is a two-part process that begins with an 

administrative proceeding followed, if necessary, by a judicial one.” City of Tyler 

v. Beck, 196 S.W.3d 784, 786 (Tex. 2006) (per curiam). An entity with eminentdomain authority, such as condemnor KMCC, that cannot reach an agreement with 

the property owner(s), initiates the administrative phase of condemnation 

proceedings by filing a petition in the proper court. Tex. Prop. Code § 21.012(a), 

(b); see Beck, 196 S.W.3d at 786. The court appoints three special commissioners 

to hold a hearing and determine the appropriate amount of compensation to the 

property owners. Tex. Prop. Code § 21.014-.015; Beck, 196 S.W.3d at 786. If the 

condemnor is satisfied with the award, it must pay the amount of the award to the 

condemnee(s), deposit that amount in the court’s registry, or post a sufficient bond.

See Tex. Prop. Code § 21.021(a); Beck, 196 S.W.3d at 786.

Either a condemnor or condemnee may challenge the special commissioners’

award by filing “a written statement of the objections and their grounds” in the trial 

court. Tex. Prop. Code § 21.018(a); see Beck, 196 S.W.3d at 786. “Upon the filing 
7

of objections, the award is vacated and the administrative proceeding converts into 

a judicial proceeding.” Beck, 196 S.W.3d at 786 (citing Denton Cty. v. Brammer, 

361 S.W.2d 198, 200 (Tex. 1962)). In such a judicial proceeding, “the burden of 

proof regarding the right to condemn and certain other matters is generally on the 

condemnor, [but] the ‘burden as to value is on the condemnee.’” Religious of Sacred 

Heart of Tex. v. City of Houston, 836 S.W.2d 606, 613 (Tex. 1992) (quoting Miers 

v. Hous. Auth. of City of Dallas, 266 S.W.2d 842, 845 (Tex. 1954)); State v. Moore 

Outdoor Props., L.P., 416 S.W.3d 237, 247 (Tex. App.—El Paso 2013, pet. denied) 

(“In a condemnation proceeding, the burden to establish the value of the condemned 

property is on the condemnee.”).

Analysis 

Believing Mayberry had no justiciable interest in the property, KMCC 

challenged Mayberry’s standing to assert affirmative claims or recover any portion 

of the award. The trial court determined that Mayberry lacked standing because he 

failed to demonstrate any ownership interest in the condemned property. In his first 

two appellate issues, Mayberry challenges the trial court’s ruling regarding his 

standing. As we discuss below, we conclude that Mayberry’s lack of a justiciable 

interest in the subject property disposes of this appeal. See Country Cmty.

Timberlake Vill., L.P. v. HMW Special Util. Dist. of Harris & Montgomery Counties, 

438 S.W.3d 661, 666-67, 672 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) 

(concluding that defendants, developers and homeowners, who neither held deed 

restrictions nor other property interests, lacked standing to recover condemnation 

damages). 

“[F]or any person to maintain a suit it is necessary that he have standing to 

litigate the matters at issue.” Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). We 

review the legal question of whether a party has standing to maintain a suit de novo. 
8

See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004). 

Standing pertains to an individual’s justiciable interest in a lawsuit, and a person has 

standing when an alleged wrong affects him personally. See Nootsie, Ltd. v. 

Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Standing 

generally requires a real controversy between the parties, which will be actually 

determined by the relief sought. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 

845, 849 (Tex. 2005). 

The only parties entitled to a condemnation award are the owners of the 

condemned property at the time of the taking. City of Austin v. Capitol Livestock 

Auction Co., Inc., 453 S.W.2d 461, 463 (Tex. 1970); Beutel v. Dall. Cty. Flood 

Control Dist., No. 1, 916 S.W.2d 685, 692 (Tex. App.—Waco 1996, writ denied);

see also Tex. Prop. Code § 21.042(a), (c), (d). A party “must have a compensable 

interest in the property at issue” to recover compensation for a taking. Cf. Brownlow 

v. State, 251 S.W.3d 756, 760 (Tex. App.—Houston [14th Dist.] 2008), affirmed by 

State v. Brownlow, 319 S.W.3d 649 (Tex. 2010); cf. also Cont’l Food, Inc. v. State, 

No. 05-09-01249-CV, 2011 WL 258999, at *2-4 (Tex. App.—Dallas Jan. 27, 2011, 

no pet.) (mem. op.) (“[A] party is required to show it has a compensable interest in 

the property at issue.”). 

Mayberry did not establish an ownership or other compensable interest in the 

property at the relevant time, the date of the taking. A taking occurs on the date 

when the condemnor lawfully takes either actual possession by physically entering 

the land or constructive possession by the deposit of the commissioners’ award. City 

of Fort Worth v. Corbin, 504 S.W.2d 828, 830 (Tex. 1974); see also Hooks v. Fourth 

Court of Appeals, 808 S.W.2d 56, 60-61 (Tex. 1991) (orig. proceeding). Here, 

KMCC deposited the award into the court’s registry on June 7, 2013. Although 

Mayberry introduced numerous deeds proving an ownership interest in the Morris 
9

Tract, none of the deeds established any interest in the 98-acre tract as of June 7, 

2013. During his trial testimony, Mayberry agreed he had no ownership interest (or 

knew of none) in the 98-acre tract, and our review of the record confirms his 

acknowledgment. Instead, Mayberry stated repeatedly that he has a fractional 

interest in the larger Morris Tract. Yet, Mayberry does not identify or explain, and 

the record does not reveal, how his ownership interest in the Morris Tract impacts 

or creates any ownership interest—which he expressly disclaimed—in the relevant 

98-acre tract. 

As in his trial testimony, in his pleadings Mayberry conceded a lack of any 

compensable interest in the property. In both his amended answer and in his trial 

brief, Mayberry expressly disavowed any ownership interest in the 98-acre tract. 

Further, despite his characterization of the issues on appeal, Mayberry’s brief clearly 

states that he had no ownership interest in subject property, but only had an interest 

in the Morris Tract. 

In short, Mayberry did not establish that he had any compensable interest in 

the property at issue. Cf. Cont’l Food, Inc., 2011 WL 258999, at *2-4; Brownlow, 

251 S.W.3d at 760; see also In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San 

Antonio 2010, pet. dism’d) (“The burden of proof on the issue of standing is on the 

party asserting standing.”). Accordingly, Mayberry does not have a justiciable 

interest in this suit, and the trial court did not err in so holding. See Beutel, 916 

S.W.2d at 692. We overrule Mayberry’s first two issues. As Mayberry is not a 

proper party to the condemnation suit, we will not consider his remaining arguments 

on appeal. Id.; see Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 

752 (Tex. 1999) (“Texas courts have long held that appealing parties may not 

complain of errors that do not injuriously affect them or that merely affect the rights 

of others.”); see also Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 104 (Tex. App.—
10

Houston [14th Dist.] 2013, pet. denied); cf. Country Cmty. Timberlake Vill., 438 

S.W.3d at 671-72.9

Conclusion 

Mayberry’s lack of standing related to the condemnation proceeding is 

dispositive of this appeal. We overrule Mayberry’s issues challenging the trial 

court’s conclusion that he lacked standing and affirm the trial court’s judgment 

without reaching his remaining issues.

 

 /s/ Kevin Jewell

 Justice 

Panel consists of Chief Justice Frost and Justices Boyce and Jewell. 

 

9

In portions of his brief, Mayberry appears to argue on behalf of the unknown property 

owners or other non-parties. Mayberry may not enforce the rights of any unserved, potential 

owners. See Metropolitan Transit Auth. of Harris Cty. v. Graham, 105 S.W.3d 754, 759-60 (Tex. 

App.—Houston [14th Dist.] 2003, pet. denied) (citing Union Fraternal Latino Americana v. City 

of San Antonio, 315 S.W.2d 68, 70 (Tex. Civ. App.—San Antonio 1958, no writ)). Similarly, 

Mayberry has no standing to argue the interests of non-parties. See Beutel, 916 S.W.2d at 693 

(holding appellant had no standing to assert argument on behalf of party who disclaimed all interest 

in condemnation suit).