AFFIRM; Opinion Filed July 21, 2014.




                                              In The
                                 Crnwt of Appeals
                         iLftl! District of exas at Dallas
                                       No. 05-13-00642-CV

                    GARY BEN STEPHENS, STEPHENS GROUP, L.P.,
                      AND STEPHENS GROUP II, L.P., Appellants
                                                 V.
                           UNION VALLEY RANCH, LP, Appellee

                      On Appeal from the 193rd judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DC-12-03894-C

                              MEMORANDUM OPINION
                           Before Justices Bridges, O’Neill. and Brown
                                    Opinion by Justice Brown

        In this property dispute, appellants Gary Ben Stephens, Stephens Group, L.P., and

Stephens Group II, L.P. appeal the trial court’s order granting summary judgment to appellee

Union Valley Ranch, L.P. on its claim for declaratory relief. In two issues, appellants argue (1)

appellee’s claim was a suit to try to title and therefore had to be brought as a trespass to try title

action and (2) the award of attorney’s fees was improper. We affirm.

        This is the second lawsuit involving these same parties and (lie same property. Briefly,

 Kourosh Hemyari purchased three tracts of property at a foreclosure sale and ultimately sold one
of the tracts to appellee.’                In the first lawsuit, the Stephens appellants sued to set aside the

foreclosure deed.            The lawsuit resulted in a judgment in which the trial court ordered that

Hemyari and appellee owned their respective parcels of the property “in fee simple title, free and

clear of any encumbrance, lien, or any other interest of Gary Ben Stephens, Stephens Group,

L.P., and Stephens Group 11, L.P., individually orcollectively[.1” The trial court’sjudgment was

ultimately affirmed by the Texas Supreme Court. See                                   Keinyciri     v. Stephens. 355 S.W.3d 623,

628 (Tex. 201         1).2   After the supreme court’s decision, appellee asked appellants to withdraw a

purported deed conveyed by appellants during the pendency of the lawsuit or execute a quit

claim deed and to cancel several notices of lis pendens placed on the property. When appellants

refused, appellee filed this lawsuit, seeking a declaration that the disputed deed was not valid

because appellants had no title to the property to convey pursuant to the final judgment rendered

in the earlier lawsuit and seeking cancellation of the notices of lis pendens.

           Appellee filed a motion for summary judgment, asserting the parties previously litigated

title to the subject property, and the litigation resulted in a judgment that appellee owned the

property in fee simple, free and clear of any interest of appellants. Appellee attached several

documents as evidence, including certified copies o the petition in the prior lawsuit, the final

judgment, and the supreme court’s mandate.                               In response, appellants asserted appellee owned

only the surface fee estate and they owned the mineral rights. After considering the summary-

judgment evidence, the trial court granted appellee’s motion. In its amended order, the trial court

declared that appellants “have no continuing interest of any kind whatsoever, whether surface,

 mineral or otherwise,” in the property in dispute. The trial court also ordered that all notices of


       A lilore extensive explan;tlion of the history of the pwpeny’s ownership ;,nd the origins of the dispute hetsseen the panics can he found in
his Court’s prior opinions in thL earlier lawsuit. See Su’;’Ite’ts t IIr,,ivizri. 216 s.W3d 526, 527-28 (TeL App.— Dallas 2007, pet. denied);
Sre,’hens’. Heo,vari.355 SW. 0,11—12 (Tet App—Dallas 2011)). reVS. 355 s.W.3d623 TeL 2011).

      —  This Court recerced the trial court’s judgntent and rendered •judgneni in a’ or of the stephens appellants. See Step/tens. 355 SW.3d   tI   IS.
 Ilte supreme court revened this Court. ac,d, in its ,,,andate. reinstated the Iriul court’s judgittent.


                                                                       —7—
us pendens canceled or expunged. Finally, the trial court awarded appeilee its attorney’s fees.

This appeal ensued.

       We review a summary judgment de novo to determine whether a party’s right to

judgment was established as a matter of law. Dickey       i.   Club Corp. of Am., 12 S.W.3d 172, 175

(Tex. App.—Dallas 2000, pet. denied).            When a plaintiff moves for traditional summary

judgment it has the burden to conclusively establish all elements of its claim as a matter of law.

See TEX. R. Civ. P. 166a(c); MMP, Ltd.    i.   Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam). If

the plaintiff satisfies its burden, the burden shifts to the defendant to preclude summary judgment

by presenting evidence that raises a genuine issue of material fact. Westland Oil Dcv. Corp. v.

Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982).

        In their first issue, appellants assert the trial court improperly determined title to property

in a declaratory judgment action when such an action must be brought as trespass to try title.

Appellants did not make this argument in their response to appellee’s motion for summary

judgment; they argued fact issues existed as to whether they owned the mineral estate.

Generally, issues not expressly presented to the trial court by written motion, answer, or response

shall not be considered on appeal as grounds for reversal. TEx. R. Civ. P. 166a(c). But assuming

this issue is properly before us, we agree with appellee that the trial court did not adjudicate title

to the property; rather, title was adjudicated in the prior judgment in the first lawsuit. In this

case, the trial court determined the effect of the prior judgment and declared appellants had no

continuing interest of any kind in the property and ordered the notices of lis pendens cancelled or

expunged.     Appellants make no other argument regarding the propriety of the summary

judgment. We therefore overrule their first issue.

        In their second issue, appellants argue the trial court erred in awarding attorney’s fees to

appellee “without the production of time slips and allocation as between the declaratory


                                                   —3—
judgment action and the cause of action to cancel a us pendens.” Within the body, appellants

argue appellees brought a trespass to try title suit disguised as a declaratory judgment action, and

attorney’s fees are not recoverable for trespass to try title.      We have previously concluded

appellee’s suit was not to try title. To the extent appellants assert appellee did not segregate fees,

appellants did not raise the segregation issue below and have therefore waived error, if any. See

Green int’l, Inc. v. Soils, 951 S.W.2d 384, 389 (Tex. 1997) (“[l]f no one objects to the fact that

the attorney’s fees are not segregated as to specific claims, the objection is waived.”).         We

overrule appellants’ second issue.

        We affirm the trial court’s judgment.




                                                       /Ada Brown!
                                                       ADA BROWN
                                                       JUSTICE



I 30642F.P05




                                                 -4-
                                 Qtnuti of i\ppcals
                         Fiftl3 Distrirt of Urxas at Dallas
                                       JUDGMENT

GARY BEN STEPHENS, STEPHENS                           On Appeal from the 193rd Judicial District
GROUP, L.P., AND STEPHENS GROUP                       Court, Dallas County, Texas
II, L.P., Appellants                                  Trial Court Cause No. DC-12-03894-C.
                                                      Opinion delivered by Justice Brown.
No. 05-1 3-00642-CV        V.                         Justices Bridges and O’Neill participating.

UNION VALLEY RANCH, LP, Appellee

       In accordance with this Court’s opinion of this date, the trial court’s Amended Order
Granting Plaintiff’s Motion for Summary Judgment is AFFIRMED.

       It is ORDERED that appellee Union Valley Ranch, LP recover its costs of this appeal
from appellants Gary Ben Stephens, Stephens Group, L.P., and Stephens Group II, L.P.

Judgment entered this 21st day of July, 2014.




                                                —5—
