      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00243-CV



                                  Robert M. Garst, Jr., Appellant

                                                   v.

    Larry J. Reagan, Amy L. Reagan, Jerry A. Phipps, and Mickie A. Phipps, Appellees


     FROM THE DISTRICT COURT OF LLANO COUNTY, 424TH JUDICIAL DISTRICT
           NO. 15649, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Robert M. Garst, Jr., appeals the district court’s order granting summary judgment

in favor of Larry J. Reagan, Amy L. Reagan, Jerry A. Phipps, and Mickie A. Phipps on Garst’s

claims against Amy Reagan for negligence, breach of fiduciary duty, and fraud by nondisclosure, as

well as his claims against all four appellees for cloud on title. Garst also challenges the trial court’s

denial of his request for declaratory relief and the award of costs to appellees. The parties are

familiar with the facts, procedural history, and applicable standards of review. Accordingly we will

not recite them here except as necessary to advise the parties of the Court’s decision and the basic

reasons for it. See Tex. R. App. P. 47.4. We will affirm the district court’s judgment.

                In his first three issues, Garst asserts that the trial court erred in granting appellees’

motion for summary judgment. His arguments on these issues reduce to a contention that the trial

court lacked the authority to vacate the partial summary judgment contemporaneously with its
granting appellees’ motion for summary judgment and that appellees were “estopped” from filing

a motion for summary judgment once the trial court had granted his motion for partial summary

judgment. In its December 26, 2012 order granting appellees’ motion for summary judgment, the

court recited that it was vacating its October 15, 2009 interlocutory order, which had granted Garst’s

motion for partial summary judgment,1 as well as its June 10, 2010 order denying appellees’ motion

for rehearing and ordering the parties to mediation. There is no dispute that the October 15, 2009

partial summary judgment order was interlocutory. Therefore, the trial court continued to have

plenary power over all facets of the case and was free to vacate, modify, correct, or reform any

previous order or judgment. See, e.g., Wal-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.—Amarillo 1998, pet. denied). Garst argues that until the partial summary judgment was

vacated, appellees’ liability was “fixed” and the issue could not be further litigated without violating

“the principle of finality of the summary judgment rule.” Garst contends essentially that the trial

court could not even consider the appellees’ motion for summary judgment before it had vacated the

partial summary judgment in his favor. We disagree.

                A partial summary judgment is a decision on the merits unless set aside by the trial

court, and that decision becomes final upon disposition of the other issues in the case. See Hyundai

Motor Co. v. Alvarado, 892 S.W.2d 853, 855 (Tex. 1995). While we agree that issues decided in

a partial summary judgment may become final unless they are set aside by the trial court or reversed


       1
          The October 15, 2009 order granted partial summary judgment in Garst’s favor for liability
on his causes of action for negligence, breach of fiduciary duty, fraud by nondisclosure, and cloud
on title but did not address damages or Garst’s request for attorneys’ fees.

                                                   2
on appeal, see, e.g., Linder v. Valero Transmission Co., 736 S.W.2d 807, 810 (Tex. App.—Corpus

Christi 1987, writ ref’d n.r.e.), there is no authority for Garst’s contention that the court may not

vacate or set aside its decision on those issues at the same time it renders a final summary judgment

order. A trial court may properly grant summary judgment after having previously denied summary

judgment, as long as the court retains jurisdiction over the case. Hunte v. Hinkley, 731 S.W.2d 570,

571 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.). There is no need for a formalistic and

essentially useless requirement that this be accomplished in two separate steps.

               We also reject Garst’s contentions that the summary judgment order was erroneous

because (1) he reasonably relied to his detriment on the trial court’s previous ruling in his favor and

therefore did not again provide his entire summary judgment evidence, and (2) appellees were

“estopped” from filing their motion for summary judgment. We observe that in his response to

appellees’ motion for summary judgment, Garst asked the court to take judicial notice of the

evidence attached to his previously filed summary-judgment motions. Moreover, it was not

reasonable for Garst to believe that the trial court did not have the authority to vacate its earlier

interlocutory order. See id. Garst’s assertion that appellees were “estopped” to file a motion for

summary judgment essentially asking the trial court to reconsider its previous interlocutory order and

rule in their favor is without merit. As mentioned above, a trial court has authority to reconsider its

own rulings as long as it retains jurisdiction. This includes authority to reconsider and grant

previously overruled motions for summary judgment. Bennett v. State Nat’l Bank, 623 S.W.2d 719,

721 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ). We overrule Garst’s first three

appellate issues.



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               In his fourth issue, Garst asserts that the trial court erred in granting appellees’ no-

evidence motion for summary judgment on his negligence claim because he raised fact issues

regarding the elements of duty and breach.2 When the trial court granted summary judgment, Garst’s

negligence claim was only against Amy Reagan and arose from her alleged actions taken as a

director of the Lakewood Forest III Property Owners Association.3 In his brief, Garst contends that

Reagan’s duty to him is a statutory duty arising under the Texas Non-Profit Corporations Act. See

Tex. Bus. Orgs. Code §§ 22.001, .221(b). According to this provision, a director of an entity

governed by the Act is not liable unless the person seeking to establish liability proves that the

director did not act in good faith, with ordinary care, and in a manner the director reasonably

believed to be in the best interest of the corporation. Id. § 22.221(b). The Act, however, applies

only to nonprofit “corporations,” which are defined as “a domestic nonprofit corporation.” See id.

§ 22.001(3). It is undisputed that the Lakewood Forest III Property Owners Association is an

unincorporated nonprofit association, not a nonprofit corporation. Accordingly, it is not governed

by chapter 22. Garst identifies no other source of Reagan’s duty to him and therefore has failed to

demonstrate that the trial court erred in concluding that he adduced no evidence of that element of

his negligence claim. The trial court properly granted appellees’ no-evidence motion for summary

judgment on the negligence claim. See Tex. R. App. P. 166a(i) (no-evidence summary judgment is

       2
          Garst addresses the causation and damages elements of each of his causes of action together
in his seventh issue.
       3
          Garst originally brought claims for negligence, breach of fiduciary duty, and fraud by
nondisclosure against the Lakewood Forest III Property Owners Association and all of its board
members, including Reagan. Garst later nonsuited the Association and all the members of the board
except for Reagan. At the time summary judgment was granted, Garst’s claims for negligence,
breach of fiduciary duty, and fraud were asserted only against Reagan.

                                                  4
properly granted if movant asserts there is no evidence of one or more essential elements of claim

on which nonmovant has burden of proof at trial and if nonmovant fails to bring forth more than

scintilla of probative evidence to raise genuine issue of material fact as to each challenged element).

We overrule Garst’s fourth issue.

               In his fifth issue, Garst contends that the trial court erred by granting appellees’

motion for summary judgment on his claim that Reagan breached a fiduciary duty to him. Garst

contends on appeal, citing no authority, that Reagan had a fiduciary duty to him arising out of the

Association’s articles, by-laws, amendment to articles, and addendum to covenants and conditions.

As with his negligence claim, Garst also asserts that Reagan has a statutory duty to him arising out

of the Texas Non-Profit Corporations Act. Garst does not cite, nor have we located, any authority

for the proposition that a director of an unincorporated property owner’s association owes a formal

fiduciary duty to property owners. Nor has Garst adduced evidence that would create a fact issue

regarding the existence of an informal duty between him and Reagan. See Stephanz v. Laird,

846 S.W.2d 895, 902 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (absent formal fiduciary

relationship, evidence must show that dealings between parties continued for period of time that

justified one party’s reliance on other to act in his best interest). And we have already explained why

the Texas Non-Profit Corporations Act does not impose a statutory duty in this case. The trial court

did not err in granting appellees’ no-evidence motion for summary judgment on Garst’s claim for

breach of fiduciary duty. We overrule Garst’s fifth issue.

               In his sixth issue, Garst asserts that the trial court erred by granting appellees’ no-

evidence motion for summary judgment on his claim of fraud by nondisclosure. Fraud by



                                                   5
nondisclosure requires that Garst establish that Reagan concealed or failed to disclose to him

material facts within her knowledge and that Reagan had a duty to disclose the facts to him. See

Bradford v. Vento, 48 S.W.3d 749, 754-55 (Tex. 2001). Garst again relies on the Texas Non-Profit

Corporations Act as the source of Reagan’s duty to disclose. As previously stated, this statute does

not impose a statutory duty in this case. Moreover, Garst’s brief fails to identify more than a scintilla

of probative evidence that Reagan intended to induce him to take some particular action by

concealing or failing to disclose any facts or that he acted in any particular manner as a result of

relying on her failure to disclose any facts. He has not, therefore, demonstrated that the trial court

erred in granting appellees’ no-evidence motion for summary judgment on his claim of fraud by

nondisclosure. We overrule Garst’s sixth issue.

                In his seventh issue, Garst contends that he raised fact issues with regard to the

elements of causation and damages on his claims for negligence, breach of fiduciary duty, and fraud.

Because of our disposition of issues four, five, and six, we need not address this issue. See Tex. R.

App. P. 166a(i) (no-evidence summary judgment proper when party with burden of proof fails to

raise fact issue on at least one challenged element of cause of action).

                In his eighth issue, Garst argues that the trial court erred in granting appellees’ motion

for summary judgment on his claim that appellees caused a cloud on his title to an undivided interest

in certain lots. Garst contends that docks constructed by the Reagans and the Phippses created a

cloud on his title to those lots. In his brief, Garst expressly disavows that he has attempted to bring

a trespass-to-try-title claim and insists that he has alleged that appellees created a cloud on his title.

A suit to quiet title or remove a cloud on title, however, can be maintained only by a person owning



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

1980, writ ref’d n.r.e.). In his brief, Garst contends that, because he owns property in the Lakewood

Forest III Subdivision, he also has a right to the use and enjoyment of certain small waterfront lots.

But he does not explain how his alleged right to use and enjoy the small lots constitutes an

ownership interest in them or a right to them superior to any other property owner in the subdivision.

Garst has failed to raise a genuine issue of material fact regarding whether he has an ownership

interest such that he would have standing to bring a suit to quiet title. The trial court properly

granted appellees’ no-evidence motion for summary judgment on this claim. We overrule Garst’s

eighth issue.

                In his ninth issue, Garst challenges the trial court’s denial of his request for

declaratory relief. In his brief, Garst describes his declaratory judgment action as seeking a “judicial

declaration that appellees acted outside the scope and authority of the governing documents in

granting permission to build docks that excluded the other property owners.” Garst contends that

the trial court erroneously denied the requested relief along with his request for attorneys’ fees

pursuant to the Texas Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011.

Garst’s petition, however, requested only a declaration that the Lakewood Forest III Property Owners

Association is “invalid.” The trial court did not err in failing to grant declaratory relief that Garst

never requested. Even if Garst had requested this relief in his petition, it would not have been

available. The issue of whether the Association’s actions were authorized was already before the

court through Garst’s claims against Reagan for negligence, breach of a fiduciary duty, and fraud by

nondisclosure. Declaratory judgment is not available to settle disputes already pending before the



                                                   7
court. See BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990). We overrule Garth’s

ninth issue.

               In his tenth issue, Garst contends that the trial court erred by awarding appellees their

costs. Garst states in his brief that “[t]he award should be reversed contemporaneously with the

reversal of the final judgment.” Because we are affirming the trial court’s judgment, the basis for

the relief Garst requests in this issue does not exist. The tenth issue is overruled.

               Having overruled all of Garst’s appellate issues, we affirm the trial court’s judgment.



                                               _____________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: March 6, 2014




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