### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00243- CV

Robert M. G arst, Jr ., Appellan t

v. Larry J. Re agan, Am y L. Reagan, Jerr y A. P hip ps, an d Mickie A. P hip ps, App ellees

F ROM TH E DISTRI CT COURT O F LLANO COUNTY , 424 TH JUDICI AL DISTRICT NO. 156 49, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

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

Robert M

. Gar st, J r., appeals t he dis trict court’s order gr anting summary judgme nt in favor of L arr

y J

. Reag an, Amy L

. Reag an, J err y A. Phipps, and Mickie A. Phipps on Gar st’s claims ag ainst Amy Reag an for neg lige nce, brea ch of fiduciar y duty , and fra

ud by nondisclosure, as well as his claims ag ainst all four appellee s for cloud on title. Gar st also challeng es the trial court’s denial of his reque st for decla ratory relief and the awa rd of costs to ap p el l ee s . The parties are familiar with the fac ts, proce dural history , and applicable standards of revie w. Acc ording ly we will
not rec ite them here except as nec essar y to advise the pa

rties of the Court’s de cision and the ba sic

rea sons for it. See Tex. R. App. P . 47.4. We will affirm the district cour t’s judgme nt. I n his first three issues, Ga rst asser ts tha t the trial court err ed in g ranting appellee s’ motion for

summary judgme nt. His arg uments on these issues reduc e to a contention that the trial
court lacke d the authority to vaca te th e p artial summary judgme nt contempora neously with itsg ranting appellee s’ motion for summary judgme nt and that appellee s wer e “estopped” from filing

a motio n for summary judgme nt once the trial court had g rante d his motion for partial summary judgme nt. I n its Dece mber 26, 2012 orde r g ranting appellee s’ motion for summary judgme nt, the
court rec ited that it was vaca ting its October 15, 2009 interlocutory order , which had g rante d Gar st’s motion for partial summary judgme nt, as well as its J une 10, 2010 order deny ing appellee s’ motion 1 for r ehea ring and orde ring the par

ties to mediation. There is no dispute that the Octobe r 15, 2009 partial sum m ary judgme nt order was interlocutory

. There fore , the trial court continued to have plenar y power over all fac et s o f the case and was fre e to vaca te, modify , corr ect, or ref orm any previous order or judgme nt. See, e.g. , W al-Mart Stores Tex., L.P. v. Crosby , 295 S.W .3d 346, 356 (Tex. App.—Dallas 2009, pet. denied) ; Ho v. University of Tex. at Arlington , 984 S.W .2d 672, 680 (Tex. App.—Amar illo 1998, pet. denied)

. Gar st arg ues that until the partial summary judgme nt was

vacated, appellee s’ liability was “fixed” and the issue could not be further litigated without violating “the principle of finality of the summary judgme nt rule.” Gar st contends esse n t i al ly that the trial
court could not even consider the appellee s’ motion for summary judgme nt befor e it had vacated the partial summary

judgme nt in his favor. We disag ree . A par tial summary

judgme nt is a decision on the merits unless set aside by the trial court, and that decision become s final upon dispositi on of the other issues in the case . See Hyundai Motor Co. v. Alvarado , 892 S.W .2d 853, 855 (Tex. 1995). Whil e we ag ree that issues decide d in

a partial summary judgme nt may become final unless they are set aside by the trial court or reve rsed

The October 15, 2009 order g rante d partial summary judgme nt in Gar st’s favor for liability 1 on his c auses of action for neg lige nce, brea ch of fiducia ry duty , fra ud by nondisclosure, a

nd cloud on title but did not addre ss damag es or Ga rst’s re quest for a ttorney s’ fe es. 2on appea l, see, e.g. , Linder v. Valero Transmissi on Co. , 736 S.W .2d 807, 810 (Tex. App.—Corpus

Christi 1987, writ ref

’d n.r.e.) , there is no authority for Gar st’s contention that the court may not

vacate or set aside its decision on those issues at the same time it rende rs a final summary judgme nt order

. A trial court may proper ly g rant summary judgme nt afte r having previously denied summary judgme nt, as long as the court reta ins jurisdiction over the case . Hunte v. Hinkley , 731 S.W .2d 570, 571 (Tex. App.—Houston [14t h Dist.] 1987, writ ref ’d n.r.e.)

. There is no need for a formalistic and essentially

useless re quirement that this be ac complished in two separ ate steps. We also reje ct Gar st’s contentions that the summary judgme nt order was err oneous beca use (1) he rea sonably relied to his detriment on the trial court’s previous ruling in his favor and there fore did not ag ain provide his entire summary judgme nt evidenc e, and (2 ) appellee s wer e “estoppe d” from filing their motion for summary judgme nt. We observe that in his resp o n s e to appellee s’ motion for summary judgme nt, Gar st asked the court to take judicial notice of the eviden ce attache d to his previously filed summary -judg ment motions. Moreove r, it was not

rea sonable for Gar st to believe that the trial court did not have the au t h ority to vacate its ear lier interlocutory order

. See id. Gar st’s asser tion t h at ap pellees wer e “estoppe d” to file a motion for
summary judgme nt essentially asking the trial court to rec onsider its previous interlocut o r y o r d er and rule in their favor is without merit. As mentioned above, a trial court has authority to rec onsider its

own ruling s as long as it reta ins jurisdiction. This includes authority to rec on s i d er an d g rant previously overr

uled motions for summary judgme nt. Benne tt v. State Nat’l Bank , 623 S.W .2d 719, 721 (Tex. Civ. App.—Houston [1st Di s t.] 1981, no writ). We overr ule Gar st’s first three appellate issues.

3I n his fourth issue, Gar st asser ts that the t rial court err ed in g ranting appellee s’ noevidenc e motion for summary judgme nt on his neg lige nce claim b eca use he raised fac t issues
reg arding the elements of duty and brea ch. When the trial court g rante d summary judgme nt, Gar st’s 2

n egl i gence claim was only ag ainst Amy Reag an and arose from her alleg ed actions take n as a direc tor of the L akew ood For est I I I Property Owner s Association. I n his brief, Gar st contends that 3 Reag an’s duty to him is a statutory duty arising under the Texas Non-Profit Corporations Act. See Tex. Bus. Org s. Code §§ 22.001, .221(b). Acc ording to this provision, a direc tor of an entity
g overne d by the Act is not liable unless the person seeking t o establish liability proves that the direc tor d i d n o t ac t in g ood faith, with ordinary car e, and in a manner the direc tor rea sonably believed to be in the best interest of the corpor ation. Id. § 22.221 (b ). T h e Act, howeve r, applies only to nonprofit “cor

porations,” which are define d as “a domestic nonprofit corpor ation.” See id. § 22.001(3). I t is undisputed that the L ak ew o o d Fo re st I I I Property Owner s Association is an unincorporated nonprofit association, not a nonprofit corpor ation. Acc ording ly , it is not g overne d by chapte r 22. Gar st ide ntifies no other source of Reag an’s duty to him and there fore has failed to demonstrate that the trial court err ed in c oncluding that he adduc ed no evide nce of that element of his neg lige nce claim. The trial court proper ly g rante d appellee s’ no-evide nce motion for summary judgme nt on the neg lige nce claim. See Tex. R. App. P. 166a(i) (no-e vidence summary judgme nt is

Gar st addre sses the causa tion and damag es elements of eac h of his cause s of action toge ther 2 in his seventh issue. Gar st orig inally broug ht claims for neg lige nce, brea ch of fi d u ci ar y duty , and fra ud by 3 nondisclosure ag ainst the L akew ood For est I I I Property Owner s Association and all o f i t s board members, including Reag an. Gar st later nonsuited the Association and all the members of the board except for Reag an. At the time summary judgme nt was g rante d, Gar st’s claims fo r n egli g ence , brea ch of f

iduciary duty , and fr aud we re a sserted only ag ainst Reag an. 4proper ly

g rante d if movant asser

ts there is no evidence of one or more e ssential elements of c laim

on which nonmovant has burden of proof at trial and if nonmovant fa ils to bring forth more than scintilla of probative evidenc e to raise g enuine issue of materia l fac t as to eac h challeng ed element)

. We overrule Gar st’s fourth issue.

I n his fifth issue, Gar st contends th at t he trial court err ed by g ranting appellee s’ motion for summary ju d gm en t o n his claim that Reag an brea ched a fiduciar y duty to him. Gar st contends on appea l, citing no authority , that Reag an had a fiduciary duty to him arising o ut of t he Association’s article s, by -laws, amendment to article s, and addendum to covena nts and conditions. As with his neg lige nce claim, Gar st also asser ts that Reag an has a statutory duty to him arising out of the Texas N on-Profit Corporations Act. Gar st doe s not c ite, nor have we located, any authority for the proposition that a direc tor of an unincorporated proper ty owner ’s association owes a formal fiduciar y duty to proper

ty owner s. Nor has Gar st adduce d evidenc e t h at would cre ate a fac t issue

re garding the exis tence of an informal duty betwee n him and Reag an. See Stephanz v. Laird , 846 S.W .2d 895, 902 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (abse nt formal fiduciar y rela tionship, evidenc e must show that dealings b et we en parties continued for period of time that justified one party ’s relianc e on other to act in his best interest). And we have alre ady explained why the Texas Non-Profit Corporations Act does not impose a statutory duty in this case . The trial court did not err in g ranting appellee s’ no-evidence motion for summary judgme nt on Gar st’s claim for brea ch of f

iduciary duty . We overrule Gar st’s fifth issue.
I n his six th issue, Gar st asser ts that the trial court err ed by g ranting appellee s’ noevidenc e motion for summary judgme nt on his claim of fra ud b y nondisclosure. Fr aud by

5nondisclosure require s that Gar st es t ab l i s h t hat Reag an conce aled or failed to disclose to him

materia l fac ts within her knowled ge an d t h at R ea g an had a duty to disclose the fac ts to him. See Bradford v. Vento , 48 S.W .3d 749, 754-55 (Tex. 2001). Gar st ag ain relies on the Texas Non-Profit Corporations Act as the source of Reag an’s duty to disclose. As previously stated, this statute does
not impose a statutory duty in this case . Moreove r, Gar st’s brief fails to identify more than a scintilla of probative evidenc e that Reag an intended to induce him to take some particula r action by

conce aling or failing to disclose any fac ts or that he acte d i n an y particula r manner as a result of relying on he r failure to disc lose any fac ts. He ha s not, theref ore, de monstrated that the tria l court

err ed in g ranting appellee s’ no-evide nce motion for summary judgme nt on his claim of fra ud by nondisclosure. We over

rule Ga rst’s six th issue.
I n his seventh issue, Gar st conten d s t h at he raised fac t issues with reg ard to the elements of causa tion and damag es on his claims for neg lige nce, brea ch of fiduciar y duty , and fra

ud. Be cause of our dispositi on of issues four, five, and six , we need not addre ss this issue. See Tex. R. App. P. 166a(i) (no-e vidence summary judgme nt prop er wh en party with burden of proof fails to raise f act issue on a t least one c halleng ed ele ment of ca use of a ction).
I n his eig hth issue, Gar st arg ues that the trial court err ed in g ranting appellee s’ motion for summary judgme nt on his claim that appellee s cause d a cloud on his title to an undivided interest in cer tain lots. Gar st co n t en d s t hat docks constructe d by the Reag ans and the Phippses cre ated a cloud on his title to those lots. I n his brief, Gar st expressly disavows that he has attempted to bring

a trespass- to-try -title claim and insists that he has alleg ed that appellee s cre ated a cloud on his title. A suit to quiet title or remove a cloud on title, howeve r, can be maintained only by a person owning

6an interest in the proper ty involved. See Bell v. Ott , 606 S.W .2d 942, 953 (Tex. Civ. App.—Waco 1980, writ ref

’d n.r.e.)

. I n his brief, Gar st contends that, beca use he owns proper

ty in the L akew ood For est I I I Subdivis ion, he also has a rig ht to the use and enjoy ment of cer

tain small water front lots. But he does not explain how his alleged ri gh t t o u s e and enjoy the small lots constitutes an

owner ship interest in them or a rig ht to them superior to any other proper ty owner in the subdivision. Gar st has failed to raise a g enuin e i s sue of materia l fac t reg arding whether he has an owner ship i n t er es t such that he would have standing to bring a suit to quiet title. The trial court p ro p er l y g rante d appellee s’ no-eviden ce motion for summ ary judgme nt on this claim. W e overrule Garst’s eig hth issue.
I n his ninth issue, Gar st challeng es the trial cou rt ’s denial of his reque st for decla ratory relief

. I n his brief, Gar st descr ibes his decla ratory judgme nt action as seeking a “judicial d ec l ar at i o n that appellee s acte d outside the scope and authority of the g overning documents i n g ranting permission to build docks that excluded t he other proper ty owner s.” Gar st contends that the t ri al co u rt err oneously denied the reque sted relief along with his reque st for attorney s’ fee s pursuant to the Texas Dec lara tory J udg ments A c t. See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011. Gar st’s petition, howeve r, reque sted only a decla ration that the L akew ood For est I I I Pr o p e r ty O w ners Association i s “invalid.” The trial court did not err in failing to g rant declaratory relief that Gar st

never reque sted. Even if Ga rs t h ad reque sted this relief in his petition, it would not have been available

. The iss ue of whether the Association’s actions were aut h o ri z ed was already befor e the
court throug h Gar st’s claims ag ainst Reag an for neg lige nce, brea ch of a fiduciar y duty , and fra

ud by nondisclosure. De clar atory judgme nt is not a vailable to se ttle disputes alre ady pending befor e the

7court. See BHP Petroleum Co. v. Millard , 800 S.W .2d 838, 841 (Tex. 1990). We overr ule Gar th’s ninth issue.
I n his tenth issue, Gar st contends that the trial court err ed by awa rding appellee s their
costs. Gar st states in his brief that “[t] he awa rd should be reve rsed contempora neously with the

reve rsal of the final judg ment.” Be cause we are affirming the t rial cour t’s judgme nt, the basis for the re lief Ga

rst reque sts in thi s issue does not exis t. The tenth issue is overr uled. Having overr

uled all of Gar st’s appellate issues, we aff irm the trial court’s judgme nt.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: Mar ch 6, 2014

8