                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-17-00464-CV
                               __________________

                       VEL HOLDINGS, LLC, Appellant

                                         V.

             MILHORN DEVELOPMENT, LLC, Appellee
__________________________________________________________________

                On Appeal from the 356th District Court
                       Hardin County, Texas
                       Trial Cause No. 58156
__________________________________________________________________

                          MEMORANDUM OPINION

      Appellant VEL Holdings, LLC (VEL) appeals the trial court’s order granting

summary judgment on Milhorn Development, LLC’s (Milhorn) declaratory

judgment action. See generally Tex. Civ. Prac. & Rem. Code Ann. § 37.001–.011

(West 2015). In two issues, VEL asks (1) whether Milhorn had standing to bring its

cause of action in the trial court, and (2) whether the trial court erred “in granting

Milhorn’s Motion for Summary Judgment and Declaratory Judgment when it ruled


                                          1
that Claire Oil and Gas, Inc. did not own any oil and gas leases covering all or a

portion of the described lands in the July 2, 2014 Deed of Trust[.]” We affirm the

trial court’s judgment.

                                   I. Background

      On March 1, 2006, WFMMS, Inc. assigned oil and gas leases of Lots fourteen

through thirty-one as described in an Agreement between S.R. Buchanan and B.G.

Dowell, et al., dated December 8, 1927, to Claire. On March 15, 2011, Claire and

Vanguard Energy Corporation (Vanguard) entered into a farmout letter agreement

whereby Vanguard would “conduct further operations for the exploration and

development of said land for the mutual benefit of [Claire] and [Vanguard.]” The

farmout letter agreement described the property as “100 acres, more or less, out of

the Josephine Milhorn Survey, A-387, Hardin County, Texas, sometimes referred to

as the Tomlinson Unit, and being Lots 14 through 31 described in an instrument

dated March 29, 2006, from WFMMS, Inc. to Claire[.]” The farmout letter

agreement between Claire and Vanguard outlined the terms for percentages earned,

drilling test wells, number of wells to be drilled, operations, extensions and renewals,

plugging and abandoning wells, and termination of the agreement, among other

things. Thereafter, on April 18, 2011, Claire and Vanguard executed a memorandum

of farmout agreement containing the same property description which referenced the

                                           2
farmout letter agreement between the parties. The parties recorded the memorandum

of farmout agreement in the real property records of Hardin County on April 20,

2011.

        On June 26, 2012, Claire executed a Quitclaim Deed conveying its interests

in the leased property to Wendy Southerland. This conveyance expressly provided

that it was subject to the March 15, 2011 farmout agreement between Claire and

Vanguard. On December 20, 2012, Southerland and Vanguard agreed in writing to

extend the March 15, 2011 farmout agreement previously made between Claire and

Vanguard. This extension provided that Southerland waived any requirement

regarding the number of wells to be drilled through the date of the letter. Further, the

extension additionally reduced the number of wells Vanguard had to drill from six

wells to three. With the exception of those amendments, the prior farmout agreement

remained “in force and effect in accordance with its terms.”

        On June 13, 2014, Vast Exploration (Vast), a successor in interest to

Vanguard, executed a deed of trust for a $6.9 million promissory note held by VEL.

As security for the note, Vast used its “interest” in five of the oil and gas leases at

issue, in addition to interests it held in other unrelated leases. Specifically, the

description indicated the security interest attached to



                                           3
      [a]ll those oil and gas leases owned by Dr. Michael C. Holmes,
      WFMMS, Inc., and/or Claire Oil and Gas, Inc. covering all or a portion
      of the following described lands:

      100 acres, more or less, out of the Josephine Milhorn Survey, A-387,
      Hardin County, Texas, sometimes referred to as the Tomlinson Unit,
      and being Lots 14 through 31 described in an instrument dated March
      29, 2006, from WFMMS, Inc. to Claire[.]

VEL ultimately foreclosed on the note. The substitute trustee executed a deed,

assignment, conveyance, and bill of sale on April 4, 2017, each using the same

property description as the original deed of trust. Vast was the grantor, and VEL was

the grantee, with the stated consideration of a $2 million credit on the deed of trust.

      Prior to the foreclosure and Vast’s conveyance to VEL, Southerland entered

into a separate farmout agreement with Milhorn covering the same property interests

and expressed that the prior agreement between Southerland and Vanguard “expired

and/or terminated in accordance with their terms prior to Milhorn’s acquisition of

any rights in such agreement(s).” Following the foreclosure, VEL advised Sunoco

of the title dispute. Upon learning of the dispute, Sunoco withheld further revenue

payments to Milhorn until the parties resolved the dispute.

      Milhorn filed suit for declaratory judgment and to quiet title. 1 VEL’s answer

contained a general denial. Milhorn later moved for summary judgment on its


      1
      VEL did not file special exceptions in the trial court, did not complain in its
summary judgment response, and does not raise an issue on appeal regarding
                                       4
declaratory judgment claim and sought “summary judgment that Milhorn is the

rightful owner of the mineral interests subject to the Farmout Agreement.” In the

trial court, in its response to the summary judgment motion, VEL argued that

Vanguard’s interest in the mineral leases continued despite Claire’s conveyance (by

Quitclaim Deed) to Southerland. VEL argued that the Vanguard farmout agreement

predated the conveyance from Claire to Southerland, and Southerland purchased her

interests from Claire subject to the farmout agreement; however, VEL did not



Milhorn’s use of a declaratory judgment action in the underlying litigation. See Tex.
R. Civ. P. 91, 329b; see also Tex. Prop. Code Ann. § 22.001 (West 2014). While we
have previously held a trespass to try title action is the proper vehicle to resolve such
issues, a complaint about the failure to use a trespass to try title action instead of a
declaratory judgment action can be waived if not raised in the trial court. See M &
M Res., Inc. v. DSTJ, LLP, 564 S.W.3d 446, 456 (holding that determination of
superior title to the mineral estates must be pursued as a trespass to try title action in
a case where a party specially excepted to claims being pursued as a declaratory
judgment action); Lackey v. Templeton, No. 09-17-00183-CV, 2018 WL 3384570,
at *6 (Tex. App.—Beaumont July 12, 2018, pet. denied) (mem. op.) (concluding that
plaintiffs seeking adjudication of title to mineral estates were required to plead and
prove a trespass to try title action when defendants specially excepted to use of a
declaratory judgment action); Lake Livingston Props., Inc. v. Stephens Hills Prop.
Owner’s Assoc., Inc., No. 09-15-00304-CV, 2016 WL 7177698, at *3 (Tex. App.—
Beaumont Dec. 8, 2016, no pet.) (mem. op.) (noting that “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”). Because VEL contests a single declaration in the trial court’s summary
judgment order, we limit our inquiry to the issue raised, specifically, the trial court’s
declaration that “Claire Oil and Gas, Inc. did not own any of the oil and gas leases
covering all [or] a portion of the described lands in the July 2, 2014 Deed of Trust.”
See Tex. R. App. P. 47.1.
                                              5
challenge the validity of the Claire Quitclaim Deed to Southerland in its summary

judgment response. The trial court granted Milhorn’s motion for summary judgment.

The summary judgment order contained the following declarations:

      1. VEL Holding’s Deed of Trust would have only attached, if at all, to
      leases owned by Dr. Michael C. Holmes, WFMMS, Inc., and/or Claire
      Oil and Gas, Inc. on July 2, 2014.
      2. Dr. Michael C. Holmes, WFMMS, Inc., and/or Claire Oil and Gas,
      Inc. did not own any oil and gas leases covering all [or] a portion of the
      described lands in the July 2, 2014 Deed of Trust.
      3. Defendant VEL Holdings has no property or lien interest in any oil
      and gas leases owned by Wendy Southerland.
      4. Milhorn Development, LLC’s interest in the oil and gas leases owned
      by Wendy Southerland is and was unaffected by the foreclosure sale
      conducted by VEL Holdings.

The trial court also awarded Milhorn $15,000.00 in attorney’s fees. On appeal, VEL

challenges Milhorn’s standing to sue and only the trial court’s summary judgment

declaration that “Claire Oil and Gas, Inc. did not own any oil and gas leases covering

all [or] a portion of the described lands in the July 2, 2014 Deed of Trust.”2

                              II. Standard of Review

      “In reviewing a declaratory judgment, we refer to the procedure for resolution

of the issue at trial to determine the applicable standard of review on appeal.”

Farmers Ins. Exch. v. Rodriguez, 366 S.W.3d 216, 222 (Tex. App.—Houston [14th



      2
      VEL does not challenge any other declaration contained in the trial court’s
summary judgment order.
                                     6
Dist.] 2012, no pet.) (citations omitted); see also Tex. Civ. Prac. & Rem. Code Ann.

§ 37.010. Because the trial court determined the underlying declaratory judgment

action via summary judgment, we apply the applicable summary judgment standard

of review. See Farmers, 366 S.W.3d at 222 (citing English v. B.G.P. Int’l, Inc., 174

S.W.3d 366, 370 (Tex. App.—Houston [14th Dist.] 2005, no pet.)). We review the

trial court’s ruling on a summary judgment de novo. See SeaBright Ins. Co. v. Lopez,

465 S.W.3d 637, 641 (Tex. 2015) (citation omitted). The moving party must prove

no genuine issue of material fact exists, and it is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289 S.W.3d 844, 848 (Tex. 2009). We review the evidence in the light most

favorable to the party against whom the summary judgment was rendered, crediting

evidence favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not. See Mann Frankfort, 289 S.W.3d at 848

(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer

& Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)). When a movant provides

evidence establishing its entitlement to summary judgment, the burden shifts to the

nonmovant to present evidence raising a genuine issue of material fact. Walker v.

Harris, 924 S.W.2d 375, 377 (Tex. 1996).



                                          7
                                     III. Analysis

A. Milhorn’s Standing

      In its second issue, VEL asserts that Milhorn lacked standing to bring a cause

of action. Since the question of standing implicates jurisdiction, we address this issue

first. See Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012 (citation

omitted) (explaining that “[a] court has no jurisdiction over a claim” if the plaintiff

“lacks standing to assert it”). Standing is a constitutional prerequisite to maintaining

a lawsuit. See Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001) (citing Texas Ass’n

of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)). Generally, unless

conferred by statute, to have standing, a plaintiff must show it possesses an interest

in a conflict distinct from that of the general public, “such that the defendant’s

actions have caused the plaintiff some particular injury.” Id. at 178–79 (citing Hunt

v. Bass, 664 S.W.2d 323, 324 (Tex. 1984)). “[U]nder Texas law, standing limits

subject matter jurisdiction to cases involving a distinct injury to the plaintiff and ‘a

real controversy between the parties, which . . . will be actually determined by the

judicial declaration sought.’” Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001)

(quoting Tex. Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 517–18

(Tex. 1995)); see also Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176

S.W.3d 746, 774 (Tex. 2005).

                                           8
      VEL foreclosed on a deed of trust which purported to create a security interest

in the mineral leases at issue. Milhorn’s original petition claimed that “[b]ecause of

Defendant’s interference with Plaintiff’s proper ownership, Plaintiff has suffered

actual damages.” In its motion for summary judgment, Milhorn asserted that by

proceeding with the foreclosure sale and notifying Milhorn’s first purchaser it was

the valid owner of the property, VEL interfered with its rights. Milhorn asserted in

its summary judgment motion that VEL’s conduct caused it to suffer a suspension

of revenue payments until the title dispute was resolved. As part of its summary

judgment evidence, Milhorn submitted the affidavit of its president which described

the suspension of its revenue payments caused by the dispute.

      Because Milhorn claimed a distinct injury due to VEL’s conduct in the form

of interrupted revenue payments and sought judicial resolution of the dispute over

ownership interest in the leases, it had standing to maintain a suit against VEL. See

Neeley, 176 S.W.3d at 774; Williams, 52 S.W.3d at 178; Brown, 53 S.W.3d at 305.

We overrule VEL’s second issue.

B. Trial Court’s Summary Judgment and Declaration as to Claire’s Interest

      We now turn to VEL’s remaining issue. The only declaration VEL challenges

on appeal from the trial court’s summary judgment order is that “Claire Oil and Gas,

Inc. did not own any oil and gas leases covering all or a portion of the described

                                          9
lands in the July 2, 2014 Deed of Trust[.]” Accordingly, we confine our review to

this issue. See Tex. R. App. P. 47.1; Tex. R. Civ. P. 166a(c) (stating that appellate

courts cannot reverse a summary judgment on grounds “not expressly presented to

the trial court by written motion, answer or other response”); Sonat Expl. Co. v. Cudd

Pressure Control, Inc., 271 S.W.3d 228, 236 (Tex. 2008) (citations omitted) (noting

that an appellate court cannot reverse on a ground an appellant has never raised). In

support of its issue, VEL argues that Milhorn based its summary judgment motion

on the assumption that the Claire-Southerland Quitclaim Deed was valid. VEL did

not challenge the validity of the Quitclaim Deed in response to Milhorn’s motion for

summary judgment but, VEL asserts for the first time on appeal, the Claire-

Southerland Quitclaim Deed is void because it fails to satisfy the statute of frauds or

statute of conveyances.

      VEL is not a party to the instrument. Even if we assume without deciding that

VEL had standing to challenge the conveyance, the statute of frauds and statute of

conveyances are affirmative defenses that must be pleaded. See Tex. R. Civ. P. 94;

Kanan v. Plantation Homeowner’s Ass’n Inc., 407 S.W.3d 320, 333 (Tex. App.—

Corpus Christi 2013, no pet.) (citations omitted) (noting that Rule 94 “requires the

pleading of the statute of frauds and ‘any other matter constituting an avoidance or

affirmative defense,’ such as the statute of conveyances”). “Such matters must be

                                          10
pleaded or they are waived.” Id. (citations omitted). In the trial court, VEL neither

raised these affirmative defenses in its answer nor challenged the Claire-Southerland

Quitclaim Deed’s validity in its response to Milhorn’s motion for summary

judgment. We are precluded from reviewing the merits of this argument because

VEL failed to raise the issue first in the trial court. See Tex. R. Civ. P. 94, 166a(c);

MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136–37 (Tex. 2014)

(concluding an affirmative defense cannot be raised for the first time on appeal);

Garcia v. Garza, 311 S.W.3d 28, 44 (Tex. App.—San Antonio 2010, pet. denied)

(citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.

1979) (“A party cannot raise new reasons why a summary judgment should have

been denied for the first time on appeal.”); see also Tex. R. App. P. 33.1.

                                   IV. Conclusion

      We conclude Milhorn had standing to bring its lawsuit against VEL, and

because VEL failed to preserve the issue of the Claire-Southerland Quitclaim Deed’s

validity by raising it in the trial court, we are precluded from reaching its merits. See

Tex. R. Civ. P. 94, 166a(c); Tex. R. App. P. 33.1; MAN Engines & Components,

Inc., 434 S.W.3d at 136–37; Garcia, 311 S.W.3d at 44. Accordingly, we affirm the

trial court’s judgment.



                                           11
      AFFIRMED.



                                                  _________________________
                                                       CHARLES KREGER
                                                            Justice

Submitted on January 2, 2019
Opinion Delivered July 11, 2019

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




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