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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-15-00304-CV

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LAKE LIVINGSTON PROPERTIES, INC. AND 

LYNNE PATRICIA HEDDINS, Appellants

V.

STEPHENS HILLS PROPERTY OWNER’S ASSOCIATION, INC., Appellee 

__________________________________________________________________

On Appeal from the 258th District Court

San Jacinto County, Texas

Trial Cause No. CV 12530

__________________________________________________________________

MEMORANDUM OPINION

In this appeal, we must decide whether Lake Livingston Properties, Inc. and 

Lynne Patricia Heddins1 preserved their right to complain that the trial court tried a 

case as a declaratory judgment action under the provisions of the Uniform 

Declaratory Judgments Act rather than as a trespass-to-try title case under the 

Texas Property Code. Because the Appellants failed to point out their complaints 

 1 Lake Livingston Properties, Inc. and Lynne Patricia Heddins filed a joint 

brief. Throughout the opinion, we refer to them collectively as Appellants. 
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in a timely manner in the trial court, we conclude they failed to preserve their 

complaint regarding the trial court’s error for their appeal. We affirm.

Background

In 1977, Lake Livingston Properties, Inc. executed a general warranty deed 

that conveyed the tract of property at issue to Stephens Hills. The general warranty 

deed, with respect to the tract at issue, recites that the tract was being conveyed “to 

be used for the ultimate purpose as a site for public sewage facilities.” In 2007,

Lake Livingston filed a reversion deed, dated as having been executed in 1980. 

However, the reversion deed was not signed by anyone on behalf of Stephens

Hills. The reversion deed recites that the tract at issue reverted to Lake Livingston

because it had not been used as a sewage facility. The evidence in the record 

established that the tract at issue was never used as a sewage facility, and instead, 

at all times had remained vacant. Additionally, the reversion deed recites that the 

tract at issue was being conveyed to Heddins. 

In 2009, Stephens Hills filed suit, asking that the trial court declare the 

general warranty deed through which it had acquired the tract valid as against the 

reversion deed through which Heddins claimed that she owned the tract, to declare 

the reversion deed which Lake Livingston attempted to convey the tract to Heddins 

invalid, and to award Stephens Hills the attorney’s fees that it had incurred in 

resolving whether it owned the tract. All of Stephens Hills’ claims were based on 
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the Uniform Declaratory Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. § 

37.001-.011 (West 2015). In response to Stephens Hills’ suit, the Appellants filed a 

general denial and a counterclaim. In their counterclaim, the Appellants asked the 

trial court to issue a declaratory judgment declaring that Heddins’ reversion deed 

was valid, that the tract conveyed by the reversion deed was owned by Heddins, 

and that the Appellants were entitled to recover their attorney’s fees. None of the 

parties’ pleadings cited to any of the provisions in the Texas Property Code.

Subsequently, Stephens Hills filed a traditional motion for partial summary 

judgment. After conducting a hearing on the motion, the trial court granted the 

partial summary judgment. The partial summary judgment declares that the 

reversion deed is void and that Stephens Hills owns the tract at issue, as described 

in the general warranty deed executed by Stephens Hills, free and clear of any 

restrictions. 

Approximately six months later, the trial court rendered a final judgment, 

and it incorporated its findings from its partial summary judgment. In the final 

judgment, the trial court also found that Stephens Hills could recover the attorney’s 

fees that it had incurred based on section 37.009 of the Declaratory Judgments Act. 

Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Costs). The final judgment awards 

Stephens Hills fees in the amount of $12,602.50. 
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Within thirty days of the date the trial court rendered its final judgment, the 

Appellants filed a motion for new trial. In their motion for new trial, the Appellants

argued that Stephens Hills had failed to produce sufficient summary judgment 

evidence to establish its entitlement to recover by summary judgment. See Tex. R. 

Civ. P. 329b(a). However, in their motion, the Appellants did not suggest or argue 

that the trial court erred in allowing the parties to try the dispute over who owned 

the tract as a declaratory judgment action. See Tex. Civ. Prac. & Rem. Code Ann. §

37.004. Although the Appellants filed an amended motion for summary judgment, 

their amended motion was not timely, as the amended motion was filed more than 

thirty days after the trial court rendered judgment. In their amended motion, the 

Appellants argued that the trial court did not have jurisdiction to consider Stephens 

Hills’ declaratory judgment claims because the case should have been filed as a 

trespass-to-try title under the Property Code. See Tex. Prop. Code Ann. § 22.001 

(West 2014). We note that the Appellants did not obtain the trial court’s 

permission to file an untimely amended motion seeking a new trial. See Tex. R. 

Civ. P. 329b(b) (implying that an untimely motion for new trial may be filed with 

leave of court).

Waiver

In one issue, the Appellants argue that the trial court did not have 

jurisdiction to issue a declaratory judgment deciding whether Stephens Hills holds
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superior title based on its deed to the disputed tract. However, because the trial 

court did have subject-matter jurisdiction over the dispute, we are not persuaded by 

the Appellants’ suggestion that the trial court’s final judgment is void because the 

trial court did not have jurisdiction over the dispute.

In our opinion, the Appellants characterize the trial court’s error as

jurisdictional in an effort to avoid the error-preservation requirements found in 

Rule 33.1(a) of the Texas Rules of Appellate Procedure. By characterizing their 

argument as jurisdictional, they seek to take advantage of the rule that issues 

raising subject-matter jurisdiction can be raised (and reached by a court) at any 

time. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 

1993). According to the Appellants, Stephens Hills’ suit for declaratory relief was 

improper because their suit raised title issues that courts should address only as

trespass-to-try title actions. See Tex. Prop. Code Ann. § 22.001. And, we agree that 

the issues raised by Stephens Hills should not have been addressed as Declaratory 

Judgments Act claims, and instead, the issues should have been resolved as a 

trespass-to-try title action under the Property Code. See id; see also Martin v. 

Amerman, 133 S.W.3d 262 (Tex. 2004). Nonetheless, the trial court’s error, for the 

reasons we explain below, was a procedural error, not a jurisdictional one. 

Generally, Texas district courts possess jurisdiction to consider declaratory 

judgment claims. Tex. Civ. Prac. & Rem. Code Ann. § 37.003. In this case, the 
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pleadings of both parties invoked the Declaratory Judgments Act, so the trial court 

had jurisdiction of the claims that the parties pleaded. Id. Moreover, the 258th 

District Court is a court of general jurisdiction. See Tex. Gov’t Code Ann. § 24.435 

(West 2004). As a district court, the 258th District Court derives its jurisdiction 

from the Texas Constitution and the Texas Government Code. Tex. Const. art. V, § 

8 (granting District Courts “exclusive, appellate, and original jurisdiction of all 

actions, proceedings, and remedies,” except in cases where the Constitution or 

statute conferred jurisdiction on some other court, tribunal, or body); Tex. Gov’t 

Code Ann. § 24.007 (West Supp. 2016). Because the 258th District Court is a court 

of general jurisdiction, it possesses subject-matter jurisdiction over trespass-to-try 

title claims, as described in Chapter 22 of the Texas Property Code. Id.; Tex. Prop. 

Code Ann. §§ 22.001-.004 (West 2014). No provisions of the Texas Constitution 

or the Property Code confer jurisdiction in trespass-to-try title actions on some 

other court. See Tex. Const. art V, § 8; Tex. Prop. Code Ann. § 22.001-.004.

Any complaints concerning the fact that the parties improperly relied on the 

Declaratory Judgments Act to resolve the question of title to the disputed tract 

concerns a matter the trial court could have corrected had either of the parties 

timely advised the trial court of an objection to not resolving the dispute under the 

Property Code. See Tex. R. App. P. 33.1(a). Here, both parties invited the error by 

invoking the Declaratory Judgments Act, and the Appellants first raised their 
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complaint that the dispute should have been resolved under the Property Code in 

their untimely amended motion for new trial. See Tex. R. Civ. P. 329b(b). In 

Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003), the Texas Supreme Court 

considered whether an untimely amended motion for new trial preserved error. In 

Moritz, Preiss failed to properly preserve a complaint about a juror’s misconduct 

by complaining for the first time in an untimely amended motion for new trial. Id. 

at 720-21. The Court held: “[A]n untimely amended motion for new trial does not 

preserve issues for appellate review, even if the trial court considers and denies the 

untimely motion within its plenary power period.” Id. at 721.

In a summary judgment case, errors must be presented to the trial court in a 

timely manner before they can be considered in reversing the trial court’s ruling on 

appeal. Under Rule 166a(c) of the Texas Rules of Civil Procedure, “[i]ssues not 

expressly presented to the trial court by written motion, answer or other response 

shall not be considered on appeal as grounds for reversal.” Tex. R. Civ. P. 166a(c); 

see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) 

(citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 

1979)). The Appellants did not except to the petition, or lodge any timely-filed

objections pointing out to the trial court that the Property Code is the exclusive 

manner used to resolve cases that involve disputes over title to real property. See

Tex. R. Civ. P. 91, 329b; see also Tex. Prop. Code Ann. § 22.001.
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We conclude the trial court possessed subject-matter jurisdiction over the 

dispute. By voluntarily allowing the matter to be resolved as a declaratory 

judgment action, the Appellants waived their right to complain that the trial court 

relied on the wrong statute when it resolved the dispute. See Tex. R. App. P. 

33.1(a). We overrule the Appellants’ sole issue, and we affirm the trial court’s 

judgment.

AFFIRMED.

 ______________________________

HOLLIS HORTON

Justice

Submitted on March 24, 2016

Opinion Delivered December 8, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.