i i i i i i



### MEMORANDUM OPI NIO N No. 04-09-00476- CV J ose I
. LOPEZ , Appellant
v. Luis A. MORALES , Appellee Fr om the 150th Judicial District Court, Be x ar County , Texas

Trial Court No. 2008-CI -03613 Honora ble David A. B erc helmann, Jr., J udg e Presiding Opinion by : Kar en Ang elini, Justice Sitt ing: Catherine Stone, Chief Justice

Kar en Ang elini, Justice Rebec ca Simmons, J ustice Deliver ed and F iled: August 25, 2010 REVERSED AND REMANDED Appellant, J ose I
. L opez ( “L opez”), appea ls f rom a judgme nt se tting aside a deed based on
a claim for fra

ud and failure of consideration. The claim was filed by the appellee , Luis A. Morales (“Mor ales” ). L opez bring s seven issues on appea l. In his second issue, L opez argues the trial court’s judgme nt must be reve rsed beca use Morales, who was not a party to the deed, lacke d standing to set aside the deed for fra

ud and failure of consideration. We reve rse the judgme nt of the trial court and,0 4
- 0 9
- 0 0 4 7 6
- C V

beca use Morales’ s petition included an alt ernative claim, rema nd the cause to the trial court for further proce eding s. B A C K G R O U N D This case involves a trac t of land near Elmendorf, Texas. On September 17, 1968, Santiag o Morales J r. signe d a war ranty deed conve yi n g the trac t to his nine children. One of the children named in the deed was J ose C. Morales, here inafter “J.C .” Another child nam ed i n t h e d eed was Santiag o Morales I I I
. Over the year s, J .C. collecte d money from his siblings to pay the proper ty taxes on the land. As time passed and some of J .C.’s siblings died, it be came more difficult for J .C. to collect money to pay the proper

ty taxes on the land. Eventually , t h e p ro p erty taxes wer e not paid and beca me delinquent. After t he tax ing authorities filed a del i n qu en t t ax suit, L opez contac ted J .C. about the land. On J uly 12, 2003, J .C. signe d an amende d specia l war ranty deed convey

ing the land to L opez. The deed, which purports to convey the entire trac t t o L o p ez , was rec orded in the county deed
rec ords. In 2005, Morales, who is the now-de cea sed Santiag o Moral es I I I ’s grandson, first lear ned about the land and his interest in the land. About a year later, Morales lear ned ab o u t th e J uly 12, 2003, deed in which J .C. purported to convey the entire trac t to L opez. On Marc h 5, 2008, Morales filed the unde rlying suit ag ainst L opez in the district court. In the suit, Mora les asked that the J uly 12, 2003, deed f

rom J .C. to L opez be set aside for fra ud and failure of consideration. J .C. was not a par ty to the suit.

- 2
-0 4
- 0 9
- 0 0 4 7 6
- C V

In his first amende d petition, Morales alleg ed he was one of the owner s of the land beca use he is an heir of Santiag o Morales I I I
. The petition further alleg ed L opez had an undivided one-ninth interest in the land based on a deed dated J uly 12, 2003. The petition asked the trial court to restra in and enjoin L opez from making any further improvements on the land. T h e p et i t ion also soug ht a decla ration that the J uly 12, 2003, deed from J .C. to L opez w as “null and void a nd of no forc e and eff ect beca use it was obtained through a fra udulent and coer cive course of action by J ose I
. L opez.” Alternatively , the petition sought a partition of the land. At trial, J .C. and his wife, Henrietta, testified on Morales’ s behalf
. They testified that in J uly 2003 L opez came to J .C.’s house, and J .C. showed L opez the land. They further testified that L opez and J .C. met only once, and that J .C. signe d the J uly 12, 2003, deed at this meeting ; howeve r, J .C., who was una

ble to rea d and write in Eng lish, did not know he was signinga dee d. Henrietta, who
was able to rea d and write in Eng lish and normally h andled the couple’ s business matters, came home during this meeting and noticed a closed folder o n h er k i t chen table with documents in it. When Henrietta asked to see what her husband had signe d, L opez ref used to let her do so. Acc ording to the testimony provided by J .C. and Henrietta, L opez paid no consideration for the deed. Instead, L opez ga ve J.C . a $100.00 bill and told him to “take his wife f or supper .” L opez, who was the sole defe nse witness at trial, offe red a differ ent perspe ctive on th e circ umstances surrounding the convey ance . Acc ording t o L o p ez’s testimony , he and J .C. met a couple of times to discuss the land. They rea ched an agr eeme nt for L opez to buy J .C.’s interest in the l and, which was he avily burdene d by

delinquent taxes, and L opez paid J .C. $300.00 for J .C.’s interest in the land.

- 3
-0 4
- 0 9
- 0 0 4 7 6
- C V

After hearing a ll the evidence , the trial cour t set aside the J uly 12, 2003, deed from J .C. to L opez, finding f

raud a nd failure of consider ation in the conveyance . 1 L opez then filed this appea l. RE Q U E S T T O D I S M I S S A P P E A L F O R L A C K O F J U R I S D I C T I O N As a preliminary matter, Morales contends this appea l should be dismiss ed beca use L opez’s notice of a

ppeal wa s untimely . We disagree . The judgme nt appea led from was signe d on May 5, 2009. Be cause L opez fi l ed a timely motion for new trial, his notice of appea l was due on August 3, 2009, which was a Monday and not
a holiday
. See T E X . R. A P P . P. 26.1(a) (1) (providing the notice of appea l must be filed within ninety day s afte r the judgme nt is signe d if any party timely files a motion for new trial). Neve rtheless, L opez filed hi s notice of appea l on August 4, 2009, one day late. A separ ate moti on for ex tension of time to file a late notice of appea l w as not f iled with L opez’s notice of appea l. See T E X . R. A P P . P. 26.3 (providing the appellate court may extend the time to file the notice of appea l when the notice of appea l and motion for extension of time are filed within fiftee n day s afte r the deadline for filing the notice of appea l). Howeve r, in acc ordanc e with well-e stablished prec edent, this court considere d t h e n o t i ce o f appea l as an implied motion for ex tension of t ime to file a late noti ce of appea l, and order ed L opez to provide this court, in writing , a rea sonable explanation for his late notice of appea l. See Hone v. Hanafin , 104 S.W .3d 884 , 8 86 (Tex. 2003) (re cognizi ng that beca use the notice of appea l was filed within the time the appellants could have moved to extend the filing deadline under Texas Rule of Appellate Procedur e 26.3, the court of appeals could have considere d t h e n o tice of

1 ... M o r a l e s ’ s a l t e r n a t i v e c l a i m f o r p a r t i t i o n w a s n o t t r i e d
.

- 4
-0 4
- 0 9
- 0 0 4 7 6
- C V

appea l as an implied motion for an extension of time to file the notice of appea l); see also Verburgt
v. Dorner , 959 S.W .2d 615, 617 (Tex. 1997) (implying a motion for extension of time under former appellate rules). L opez then provided this court a written ex planation for his late notice of appea l, and we found his explanation—a miscalculation of the deadline to f ile the notice of appea l—to be
rea sonable. See Dimotsis v. Lloyds , 966 S.W .2d 657, 658 (Tex. App.—San Antonio 1998, no pet.) (holding explanation for late notice of appea l was rea sonable when counsel erroneously calc ulated the perf ection deadline due to a misunderstanding of the law). Thus, this court has jurisdiction over t his appeal. We, there fore , deny Morales’ s reque st for a dismiss al of this appea l fo r l ac k o f jurisdiction. S T A N D I N G In his se cond issue, L opez arg ues that the trial court lacke d subject matter jurisdiction over Morales’ s claim to set aside the deed beca use Morales had no standing to bring a claim for fra ud and failure of consider ation. We agree , and ther efor e, sustain L opez’s second issue. The issue of standing focuse s on whether a party has a sufficie nt rela tionship with the lawsuit
so as t o have a j usticiable i ntere st in it s outcome. Austin Nurs ing Ctr., Inc. v. Lovato , 171 S.W .3d 8 4 5 , 8 48 (Tex. 2005). In Texas, the standing doctrine require s that there be a rea l controve rsy betwee n the parties that will be actua lly deter mined by the judicial decla ration sought. Nootsie, Ltd.
v. W illiamson County Ap

p r aisal Dist. , 925 S.W .2d 659, 662 (Tex.1996). The deter mination of whether a plaintiff possesses standing to asser t a particula

r claim depends on the fac ts pleade d and the cause of action asser

ted. Eve rett v. TK-Tai to, L.L.C

. , 1 7 8 S
. W
. 3 d 844, 853 (Tex. App.—For t Worth 2005, no pet.) (citing M.D. Anderson Cancer Ctr. v. Novak, 52 S.W .3d 704, 707-08

- 5
-0 4
- 0 9
- 0 0 4 7 6
- C V

(Tex.20 0 1 ))
. W ithout the brea ch of a leg al right belong ing to the plaintiff, no cause of action can
acc rue to his benef

it. Nobles v. Marcus , 533 S.W .2d 923, 927 (T ex. 1976); Mye r v. Cuevas , 119 S.W .3d 830, 834 (Tex. App.—San Antonio 2003, no pet.). Be cause standing is a component of subject matter jurisdiction, it cannot be waived and can be raised for the first time on appea l. Nootsie , 925 S.W .2d at 662; City of Laredo v. R. Vela Exx on, Inc. , 966 S.W .2d 673, 679 (Tex. App.—San Ant onio 1998, pet. denied)
. When a Texas appellate court revie ws the standing of a party for the first time on appea l, it must construe the petition in favor of the party , and if nece ssary , revie w the enti re re co rd to deter mine if any evidenc e supports standing
. City of L aredo , 966 S.W .2d at 679. A deed obtained by fra

ud is not absolutely void. Nobles , 533 S.W .2d at 927; Deaton v. Rush , 252 S.W . 1025, 1031 (1923). It is voidable and must be set aside in a judicia l proce eding
. Nobles , 53 3 S
. W
. 2d at 927; Deaton , 252 S.W
. at 1031. Thus, a deed is valid and repr esents prima fac ie evidenc e of owner ship until there has been a successful sui t to set it aside. Nobles , 533 S.W .2d at 926-27. In addition, an action for fra ud is persona l in nature . In other words, a suit to set aside a deed obtained by fra

ud can only be maintained by the defr auded party . Id
. at 927; Meine rs v. Texas Osage Coop. Royalty Pool, Inc. , 309 S.W .2d 898, 902 (Tex. Civ. App.—El Paso 1958, writ ref ’d n.r.e.)
. M o re o v er , a mere lack of consideration is g enerally not enough to void a deed. W atson v. Tipton , 274 S.W .3d 791, 8 0 1 (Tex. App.—For t Worth 2009, pet. denied) ; Uriarte v. Prieto , 606 S.W .2d 22, 24 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref ’d n.r.e.)
. In addition to a lack of consideration, there must be fra ud or undue influence in obtaining the deed. Uriarte , 606 S.W .2d at 24.

- 6
-0 4
- 0 9
- 0 0 4 7 6
- C V

Her e, the pleading s, viewed most favor ably to Morales, do not al l ege that Morales was defr auded. Additionally , the evidenc e does not show that Morales was defr auded. To the contra ry , the evidenc e shows the fra ud, if any , was perpe trated on J .C., who was not a party to the underlying suit. Morales brought this suit in his individual capa city , not as J .C.’s nex t friend. Thus, Morales is not in a position to set aside the deed based on any fra ud perpe trated ag ainst J .C. See Nobles , 533 S.W .2d at 927 (holding the plaintiffs lacke d standing to set aside a deed for fra ud when under their pleading s they wer e not the defr auded parties)
. “A party who was not defr auded by the conveyance has not suffe red an invasion of a leg al right and there fore does not have standing to bring suit based
on that fra

ud.” Id
. Be cause the pleading s and the evidenc e do not show Morales was defr auded, we hold he lacks standingto set aside the de ed for fra ud and fa ilure of c onsideration. Morales, never

theless, argues he has standing to object to the deed from J .C. to L opez beca use the deed purports to co n v ey t h e enti re trac t, rathe r than mere ly J .C.’s one-ninth interest. Morale s argues that beca use he is a tenant in common, he can maintain an action to rec over the whol e o f t h e land from someone having no title. He cites two case s to support his argument. See Taylor v. GulfOil Corp. , 303 S.W .2d 541, 542 (Tex. Civ. App.—B eaumont 1957, no writ); Turnbow
v. Richardson , 149 S.W .2d 616, 616 (T ex. Civ. App.—For t Worth 1941, writ dism’d). But these
case s are not applicable here
. The cotena nts in the cited case s did not seek to set aside conveyance s to which they wer e not parties based on fra ud and failure of consideration ; ra t h er , the cotena nts brought trespass to try title actions to defe nd their owner ship interest in the land. Taylor , 303 S.W .2d at 542; Turnbow , 149 S.W .2d at 616. Her e, by contra st, Morales sought to set aside a deed based on
a claim that could only have been brought by the grantor, J .C. See Berger v. Berger , 578 S.W .2d 547,

- 7
-0 4
- 0 9
- 0 0 4 7 6
- C V

5 49 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (holding grantor who was al i v e an d competent was the only person who could bring an action to set aside a convey ance for fra

ud, undue influence , or fa ilure of c onsideration). In addition, when J .C. executed the deed for the entire trac t, it was only eff ective to convey h i s o n e- ninth interest in the land. See Home Owners’ Loan Corp. v. Cill ey , 125 S.W .2d 313, 3 1 6 (Tex. Civ. App.—Amarillo 1939, writ ref ’d) (“the g ener al rule is that one tenant in common cannot by his sole act sell or encumbe r more than his portion of the common proper ty .”). In fac t, Morales’ s pleading s alleg e that base d on the dee d dated July 12, 2003, L opez owned onlyan undivided oneninth interest in the land. Be cause Morales l acked standing to bring the underly ing claim for fra

ud and failure of consideration, the trial court had no subject matter jurisdiction o v e r this claim. We, there fore , reve rse the trial court’s judgme nt. Be cause Morales’ s petition included an alternative claim for partition that was not tried, we rema

nd to the trial court f

or fur ther proc eeding s. D I S T R I C T C O U R T ’ S J U R I S D I C T I O N O V E R P A R T I T I O N C L A I M In his third issue, L opez argues the statutory probate court has exclusive jurisdiction over Morales’ s partition claim, and there fore , the trial court lacks jurisdiction over this claim. The rec ord befor e us indicates this issue has not been prese nted to the trial court. Be cause we are rema nding this
cause for further proce eding s, the parties will have the opportunity to raise this issue in the trial court. Thus, this issue is not yet ripe for appellate revie w. See Dominguez v. Gilbert , 48 S.W .3d 789, 795 (Tex. App.—Austin 2001, no pet.) (conc luding the issue of costs and fee s was not ripe for

- 8
-0 4
- 0 9
- 0 0 4 7 6
- C V

revie w i n light of a

ppellate c ourt’s disposition rema nding for further procee dings)
. We, there fore , do not addre ss L opez’s third issue. RE M A I N I N G I S S U E S In his rema ining five issues, L opez contends the judgme nt must be reve rsed beca use: (1) he was denied his right to a jury trial; (2) the fra

ud claim was barr ed by the s tatute of limit ations; (3) Morales lacke d capa city ; (4) the evidenc e was leg ally insufficient; and (5) the evidenc e was fac tually insufficient. W e need notaddre ss these issues, howeve r, bec ause the y are unnece ssary to the final dispositi on of this appea l. See T E X . R. A P P . P. 47.1 (re quiring appellate court opinions to be as brief as possible but to address e very issue nece ssary

to the final disposition of the appea l). C O N C L U S I O N We reve rse the judgme nt of the trial court, and rema nd the cause to the trial court for further proce eding s. Kar en Ang elini, J ustice

- 9
-