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                                 MEMORANDUM OPINION

                                         No. 04-09-00476-CV

                                            Jose I. LOPEZ,
                                               Appellant

                                                   v.

                                         Luis A. MORALES,
                                               Appellee

                      From the 150th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CI-03613
                        Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 25, 2010

REVERSED AND REMANDED

           Appellant, Jose I. Lopez (“Lopez”), appeals from a judgment setting aside a deed based on

a claim for fraud and failure of consideration. The claim was filed by the appellee, Luis A. Morales

(“Morales”). Lopez brings seven issues on appeal. In his second issue, Lopez argues the trial court’s

judgment must be reversed because Morales, who was not a party to the deed, lacked standing to set

aside the deed for fraud and failure of consideration. We reverse the judgment of the trial court and,
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because Morales’s petition included an alternative claim, remand the cause to the trial court for

further proceedings.

                                           BACKGROUND

        This case involves a tract of land near Elmendorf, Texas. On September 17, 1968, Santiago

Morales Jr. signed a warranty deed conveying the tract to his nine children. One of the children

named in the deed was Jose C. Morales, hereinafter “J.C.” Another child named in the deed was

Santiago Morales III.

        Over the years, J.C. collected money from his siblings to pay the property taxes on the land.

As time passed and some of J.C.’s siblings died, it became more difficult for J.C. to collect money

to pay the property taxes on the land. Eventually, the property taxes were not paid and became

delinquent. After the taxing authorities filed a delinquent tax suit, Lopez contacted J.C. about the

land. On July 12, 2003, J.C. signed an amended special warranty deed conveying the land to Lopez.

The deed, which purports to convey the entire tract to Lopez, was recorded in the county deed

records.

        In 2005, Morales, who is the now-deceased Santiago Morales III’s grandson, first learned

about the land and his interest in the land. About a year later, Morales learned about the July 12,

2003, deed in which J.C. purported to convey the entire tract to Lopez. On March 5, 2008, Morales

filed the underlying suit against Lopez in the district court. In the suit, Morales asked that the July

12, 2003, deed from J.C. to Lopez be set aside for fraud and failure of consideration. J.C. was not

a party to the suit.




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        In his first amended petition, Morales alleged he was one of the owners of the land because

he is an heir of Santiago Morales III. The petition further alleged Lopez had an undivided one-ninth

interest in the land based on a deed dated July 12, 2003. The petition asked the trial court to restrain

and enjoin Lopez from making any further improvements on the land. The petition also sought a

declaration that the July 12, 2003, deed from J.C. to Lopez was “null and void and of no force and

effect because it was obtained through a fraudulent and coercive course of action by Jose I. Lopez.”

Alternatively, the petition sought a partition of the land.

        At trial, J.C. and his wife, Henrietta, testified on Morales’s behalf. They testified that in July

2003 Lopez came to J.C.’s house, and J.C. showed Lopez the land. They further testified that Lopez

and J.C. met only once, and that J.C. signed the July 12, 2003, deed at this meeting; however, J.C.,

who was unable to read and write in English, did not know he was signing a deed. Henrietta, who

was able to read and write in English and normally handled the couple’s business matters, came

home during this meeting and noticed a closed folder on her kitchen table with documents in it.

When Henrietta asked to see what her husband had signed, Lopez refused to let her do so. According

to the testimony provided by J.C. and Henrietta, Lopez paid no consideration for the deed. Instead,

Lopez gave J.C. a $100.00 bill and told him to “take his wife for supper.”

        Lopez, who was the sole defense witness at trial, offered a different perspective on the

circumstances surrounding the conveyance. According to Lopez’s testimony, he and J.C. met a

couple of times to discuss the land. They reached an agreement for Lopez to buy J.C.’s interest in

the land, which was heavily burdened by delinquent taxes, and Lopez paid J.C. $300.00 for J.C.’s

interest in the land.

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        After hearing all the evidence, the trial court set aside the July 12, 2003, deed from J.C. to

Lopez, finding fraud and failure of consideration in the conveyance.1 Lopez then filed this appeal.

                       REQUEST TO DISMISS APPEAL FOR LACK OF JURISDICTION

        As a preliminary matter, Morales contends this appeal should be dismissed because Lopez’s

notice of appeal was untimely. We disagree.

        The judgment appealed from was signed on May 5, 2009. Because Lopez filed a timely

motion for new trial, his notice of appeal was due on August 3, 2009, which was a Monday and not

a holiday. See TEX . R. APP . P. 26.1(a)(1) (providing the notice of appeal must be filed within ninety

days after the judgment is signed if any party timely files a motion for new trial). Nevertheless,

Lopez filed his notice of appeal on August 4, 2009, one day late. A separate motion for extension

of time to file a late notice of appeal was not filed with Lopez’s notice of appeal. See TEX . R. APP .

P. 26.3 (providing the appellate court may extend the time to file the notice of appeal when the notice

of appeal and motion for extension of time are filed within fifteen days after the deadline for filing

the notice of appeal). However, in accordance with well-established precedent, this court considered

the notice of appeal as an implied motion for extension of time to file a late notice of appeal, and

ordered Lopez to provide this court, in writing, a reasonable explanation for his late notice of appeal.

See Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (recognizing that because the notice of

appeal was filed within the time the appellants could have moved to extend the filing deadline under

Texas Rule of Appellate Procedure 26.3, the court of appeals could have considered the notice of



        1
            … Morales’s alternative claim for partition was not tried.

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appeal as an implied motion for an extension of time to file the notice of appeal); see also Verburgt

v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (implying a motion for extension of time under former

appellate rules). Lopez then provided this court a written explanation for his late notice of appeal,

and we found his explanation—a miscalculation of the deadline to file the notice of appeal—to be

reasonable. See Dimotsis v. Lloyds, 966 S.W.2d 657, 658 (Tex. App.—San Antonio 1998, no pet.)

(holding explanation for late notice of appeal was reasonable when counsel erroneously calculated

the perfection deadline due to a misunderstanding of the law). Thus, this court has jurisdiction over

this appeal. We, therefore, deny Morales’s request for a dismissal of this appeal for lack of

jurisdiction.

                                             STANDING

        In his second issue, Lopez argues that the trial court lacked subject matter jurisdiction over

Morales’s claim to set aside the deed because Morales had no standing to bring a claim for fraud and

failure of consideration. We agree, and therefore, sustain Lopez’s second issue.

        The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit

so as to have a justiciable interest in its outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d

845, 848 (Tex. 2005). In Texas, the standing doctrine requires that there be a real controversy

between the parties that will be actually determined by the judicial declaration sought. Nootsie, Ltd.

v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996). The determination of

whether a plaintiff possesses standing to assert a particular claim depends on the facts pleaded and

the cause of action asserted. Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 853 (Tex. App.—Fort

Worth 2005, no pet.) (citing M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 707-08

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(Tex.2001)). Without the breach of a legal right belonging to the plaintiff, no cause of action can

accrue to his benefit. Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976); Myer v. Cuevas, 119

S.W.3d 830, 834 (Tex. App.—San Antonio 2003, no pet.).

        Because standing is a component of subject matter jurisdiction, it cannot be waived and can

be raised for the first time on appeal. Nootsie, 925 S.W.2d at 662; City of Laredo v. R. Vela Exxon,

Inc., 966 S.W.2d 673, 679 (Tex. App.—San Antonio 1998, pet. denied). When a Texas appellate

court reviews the standing of a party for the first time on appeal, it must construe the petition in favor

of the party, and if necessary, review the entire record to determine if any evidence supports

standing. City of Laredo, 966 S.W.2d at 679.

        A deed obtained by fraud is not absolutely void. Nobles, 533 S.W.2d at 927; Deaton v. Rush,

252 S.W. 1025, 1031 (1923). It is voidable and must be set aside in a judicial proceeding. Nobles,

533 S.W.2d at 927; Deaton, 252 S.W. at 1031. Thus, a deed is valid and represents prima facie

evidence of ownership until there has been a successful suit to set it aside. Nobles, 533 S.W.2d at

926-27. In addition, an action for fraud is personal in nature. In other words, a suit to set aside a deed

obtained by fraud can only be maintained by the defrauded party. Id. at 927; Meiners v. Texas Osage

Coop. Royalty Pool, Inc., 309 S.W.2d 898, 902 (Tex. Civ. App.—El Paso 1958, writ ref’d n.r.e.).

        Moreover, a mere lack of consideration is generally not enough to void a deed. Watson v.

Tipton, 274 S.W.3d 791, 801 (Tex. App.—Fort Worth 2009, pet. denied); Uriarte v. Prieto, 606

S.W.2d 22, 24 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). In addition to a lack of

consideration, there must be fraud or undue influence in obtaining the deed. Uriarte, 606 S.W.2d at

24.

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        Here, the pleadings, viewed most favorably to Morales, do not allege that Morales was

defrauded. Additionally, the evidence does not show that Morales was defrauded. To the contrary,

the evidence shows the fraud, if any, was perpetrated on J.C., who was not a party to the underlying

suit. Morales brought this suit in his individual capacity, not as J.C.’s next friend. Thus, Morales

is not in a position to set aside the deed based on any fraud perpetrated against J.C. See Nobles, 533

S.W.2d at 927 (holding the plaintiffs lacked standing to set aside a deed for fraud when under their

pleadings they were not the defrauded parties). “A party who was not defrauded by the conveyance

has not suffered an invasion of a legal right and therefore does not have standing to bring suit based

on that fraud.” Id. Because the pleadings and the evidence do not show Morales was defrauded, we

hold he lacks standing to set aside the deed for fraud and failure of consideration.

        Morales, nevertheless, argues he has standing to object to the deed from J.C. to Lopez

because the deed purports to convey the entire tract, rather than merely J.C.’s one-ninth interest.

Morales argues that because he is a tenant in common, he can maintain an action to recover the

whole of the land from someone having no title. He cites two cases to support his argument. See

Taylor v. Gulf Oil Corp., 303 S.W.2d 541, 542 (Tex. Civ. App.—Beaumont 1957, no writ); Turnbow

v. Richardson, 149 S.W.2d 616, 616 (Tex. Civ. App.—Fort Worth 1941, writ dism’d). But these

cases are not applicable here. The cotenants in the cited cases did not seek to set aside conveyances

to which they were not parties based on fraud and failure of consideration; rather, the cotenants

brought trespass to try title actions to defend their ownership interest in the land. Taylor, 303 S.W.2d

at 542; Turnbow, 149 S.W.2d at 616. Here, by contrast, Morales sought to set aside a deed based on

a claim that could only have been brought by the grantor, J.C. See Berger v. Berger, 578 S.W.2d 547,

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549 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (holding grantor who was alive and

competent was the only person who could bring an action to set aside a conveyance for fraud, undue

influence, or failure of consideration).

        In addition, when J.C. executed the deed for the entire tract, it was only effective to convey

his one-ninth interest in the land. See Home Owners’ Loan Corp. v. Cilley, 125 S.W.2d 313, 316

(Tex. Civ. App.—Amarillo 1939, writ ref’d) (“the general rule is that one tenant in common cannot

by his sole act sell or encumber more than his portion of the common property.”). In fact, Morales’s

pleadings allege that based on the deed dated July 12, 2003, Lopez owned only an undivided one-

ninth interest in the land.

        Because Morales lacked standing to bring the underlying claim for fraud and failure of

consideration, the trial court had no subject matter jurisdiction over this claim. We, therefore, reverse

the trial court’s judgment. Because Morales’s petition included an alternative claim for partition that

was not tried, we remand to the trial court for further proceedings.

                   DISTRICT COURT’S JURISDICTION OVER PARTITION CLAIM

        In his third issue, Lopez argues the statutory probate court has exclusive jurisdiction over

Morales’s partition claim, and therefore, the trial court lacks jurisdiction over this claim. The record

before us indicates this issue has not been presented to the trial court. Because we are remanding this

cause for further proceedings, the parties will have the opportunity to raise this issue in the trial

court. Thus, this issue is not yet ripe for appellate review. See Dominguez v. Gilbert, 48 S.W.3d 789,

795 (Tex. App.—Austin 2001, no pet.) (concluding the issue of costs and fees was not ripe for




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review in light of appellate court’s disposition remanding for further proceedings). We, therefore,

do not address Lopez’s third issue.

                                         REMAINING ISSUES

        In his remaining five issues, Lopez contends the judgment must be reversed because: (1) he

was denied his right to a jury trial; (2) the fraud claim was barred by the statute of limitations; (3)

Morales lacked capacity; (4) the evidence was legally insufficient; and (5) the evidence was factually

insufficient. We need not address these issues, however, because they are unnecessary to the final

disposition of this appeal. See TEX . R. APP . P. 47.1 (requiring appellate court opinions to be as brief

as possible but to address every issue necessary to the final disposition of the appeal).

                                             CONCLUSION

        We reverse the judgment of the trial court, and remand the cause to the trial court for further

proceedings.

                                                         Karen Angelini, Justice




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