                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-15-00272-CV


         SUSAN HARRINGTON AND KATHLEEN KILGORE, APPELLANTS

                                           V.

                      LONE STAR NGL PIPELINE LP, APPELLEE

                           On Appeal from the 13th District Court
                                  Navarro County, Texas
           Trial Court No. 07-15890-CV, Honorable James Lagomarsino, Presiding

                                     July 29, 2016

                           MEMORANDUM OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellants Susan Harrington and Kathleen Kilgore sued Magellan Pipeline

Company, L.P., seeking a declaratory judgment and money damages, alleging

Magellan trespassed on their property by placing pipelines outside its easement.

Magellan filed a counterclaim seeking a declaration it had the right to lay the pipelines

under the existing easement. After several years of litigation, Harrington and Kilgore

joined appellee Lone Star NGL Pipeline, L.P. to their lawsuit, seeking a declaratory

judgment. By motion for summary judgment, Lone Star asserted the trial court lacked
subject-matter jurisdiction to adjudicate Harrington and Kilgore’s claim against it for

declaratory relief. The motion was granted and Harrington and Kilgore’s claim against

Lone Star was severed from their claims against Magellan. Harrington and Kilgore

appeal, and we will affirm the judgment.

                                        Background1

         The litigation involves a tract of some 100 acres in Navarro County, Texas. The

tract was owned for several generations by members of Harrington and Kilgore’s family.

It is traversed by a number of underground pipelines.

         Harrington and Kilgore each inherited an undivided four percent interest in the

tract.   They filed suit against Magellan in 2007.          Their suit complains of pipelines

Magellan or its predecessor built across the 100-acre tract in 1999 and 2005. After suit

was filed, Magellan purchased the other ninety-two percent interest in the tract, and filed

amended pleadings for a partition. The partition was accomplished in kind, with the

result that Harrington and Kilgore each own five acres in the southwest corner of the

tract. No pipelines cross either of the five-acre tracts.

         In 2011, the Waco Court of Appeals issued its opinion in a previous appeal,

brought by Harrington and Kilgore after the trial court rendered a summary judgment for

Magellan on its counterclaim for declaratory relief. The court held that the instruments

under which Magellan held its easement, those being a 1919 easement granted by H.


         1
        Because this is the review of a summary judgment, we take as true all evidence
favorable to the nonmovants, Harrington and Kilgore, and indulge every reasonable
inference and resolve any doubts in their favor. Kachina Pipeline Co. v. Lillis, 471
S.W.3d 445, 449 (Tex. 2015); State v. Ninety Thousand Two Hundred Thirty-Five
Dollars & No Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013).
                                              2
P. Ross, Harrington and Kilgore’s great-grandfather, and a 1997 partial assignment of

the easement to Magellan’s predecessor, are ambiguous. The court therefore reversed

the summary judgment and remanded the cause to the trial court.2

      In 2013, Harrington and Kilgore filed their amended pleadings adding Lone Star

as a defendant. They alleged Lone Star is the successor-in-interest to the assignor of

the 1997 partial assignment, and thus is the owner of easement rights not held by

Magellan.    As noted, they sought only declaratory relief against Lone Star.         In an

interrogatory response, they elaborated on their reason for making Lone Star a

defendant:

      Lone Star NGL Pipeline Company is a necessary party to this suit
      because the factfinder is being asked to determine its rights under the
      easement. More specifically, this suit seeks to determine (i) where future
      pipelines can be laid across the property under the easement’s multiple
      line rights clause, and (ii) whether, after giving effect to the 1997 Partial
      Assignment of the easement, Lone Star NGL Pipeline Company or
      Magellan possesses the right to lay additional pipelines under the multiple
      line rights clause . . . .

      Lone Star’s traditional summary judgment motion acknowledged it and Magellan

each own easement rights that were granted under the 1919 easement and were

addressed in the 1997 partial assignment. Its summary judgment proof established it

owns two pipelines that cross the 100-acre tract.

      In deposition testimony, Harrington acknowledged she does not claim any

wrongdoing by Lone Star.     She believes the pipelines owned by Lone Star on the

property are within its easement and that Lone Star has the right to lay multiple lines


      2
        Harrington v. Magellan Pipeline Co., No 10-09-00131-CV, 2011 Tex. App.
LEXIS 9844 (Tex. App.—Waco Dec. 14, 2011, no pet.) (mem. op.). Additional
background facts may be found in the Waco court’s opinion.
                                           3
under the 1919 easement.        When asked why she joined Lone Star to the lawsuit

Harrington testified, “To help clarify if Lone Star actually is the one that owns the

multiple line rights that Magellan is claiming that they have instead.”           Kilgore

acknowledged she has no complaints with the pipelines Lone Star owns on the land.

She agrees that Lone Star has the right to lay multiple lines on the property.

       Lone Star’s summary judgment proof also includes its Vice President’s affidavit

confirming that the company “does not claim any easement rights over [Harrington’s

and Kilgore’s] two partitioned tracts, it does not own or maintain any pipelines on

[Harrington’s and Kilgore’s] two partitioned tracts, and it considers its easement on the

[property] to be fixed in place where its pipelines presently exist.”

       Lone Star’s motion asserted the trial court lacked subject-matter jurisdiction over

the claim against it because, among other reasons, no justiciable controversy existed

between it and Harrington and Kilgore. The trial court granted the motion. Thereafter,

on Lone Star’s motion the trial court severed Harrington and Kilgore’s declaratory

judgment action against Lone Star from their case against Magellan.

                                          Analysis

       In their first issue, Harrington and Kilgore assert the trial court abused its

discretion by denying their unsworn motion to extend the deadline for responding to

Lone Star’s motion for summary judgment. TEX. R. CIV. P. 166a(c) (the nonmovant in a

summary judgment proceeding may file and serve opposing affidavits or other written

response no later than seven days prior to the scheduled date of the hearing).

Harrington and Kilgore’s response to Lone Star’s motion was filed within seven days of


                                              4
the summary judgment hearing and was accompanied by a motion asking the trial court

to extend the deadline so that its otherwise untimely-filed response would be timely.

See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (explaining that

without an order granting leave, untimely filed summary judgment evidence is not before

the court).   According to the motion, Harrington and Kilgore sought additional time

because their counsel “incorrectly calendared” the deadline to file a response. Lone

Star filed a written response opposing the requested extension of time.       The court

denied Harrington and Kilgore’s motion for additional time.

      Because the motion was unsworn and unaccompanied by an affidavit, it was

within the court’s discretion to deny it. See Ramsey v. Criswell, 850 S.W.2d 258, 259-

60 (Tex. App.—Texarkana 1993, no writ) (concerning withdrawal of deemed

admissions, the necessary good cause showing must be made by evidence); see

generally Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam) (“the

standards for withdrawing deemed admissions and for allowing a late summary-

judgment response are the same”).

      Further, the evidence Harrington and Kilgore submitted with their late-filed

summary judgment response consisted of a copy of the Waco Court of Appeals’ 2011

opinion in the first appeal, a copy of a motion for summary judgment filed by Magellan

on December 8, 2008, and a copy of Magellan’s first amended answer and

counterclaim. Consideration of those documents would not have called for a different

ruling on Lone Star’s motion for summary judgment.

      For those reasons, Harrington and Kilgore’s first issue is overruled.



                                            5
       By their second issue, Harrington and Kilgore challenge the propriety of the trial

court’s grant of summary judgment for Lone Star based on the absence of subject-

matter jurisdiction.

       “A summary judgment motion challenging jurisdiction may challenge either the

pleadings or the existence of jurisdictional facts.”     Montrose Mgmt. Dist. v. 1620

Hawthorne, Ltd., 435 S.W.3d 393, 402 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.

2004)).   When a motion for summary judgment challenges jurisdictional facts, we

resolve the jurisdictional issue by considering relevant evidence filed by the parties. Id.

If the evidence raises a question of material fact on the jurisdictional issue, then

summary judgment on the jurisdictional challenge is improper and the question must be

resolved by the factfinder. Id. However, if the competent summary judgment evidence

is conclusive on the jurisdictional challenge, summary judgment is proper. Id. Evidence

is conclusive only if reasonable people could not differ in their conclusions. City of

Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). We review the trial court’s summary

judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003). When the trial court does not specify the ground for its ruling, the summary

judgment must be affirmed if any ground on which judgment was sought has merit.

Ninety Thousand Two Hundred Thirty-Five Dollars & No Cents in U.S. Currency, 390

S.W.3d at 292.




                                            6
       The Uniform Declaratory Judgment Act (UDJA)3 functions remedially ‘“to settle

and to afford relief from uncertainty and insecurity with respect to rights, status, and

other legal relations.’” City of El Paso v. Heinrich, 284 S.W.3d 366, 370 (Tex. 2009)

(quoting TEX. CIV. PRAC. & REM. CODE § 37.002(b)). The purpose of a declaratory

judgment action is to establish existing rights, status, or other legal relations. Bonham

State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995); Republic Ins. Co. v. Davis, 856

S.W.2d 158, 164 (Tex. 1993). A declaratory judgment is appropriate only if there exists

a justiciable controversy about the rights and status of the parties and the declaration

will resolve the controversy. See Bonham State Bank, 907 S.W.2d at 467. The UDJA

does not provide the parties additional substantive rights, and does not expand the

court’s jurisdiction. Rush v. Barrios, 56 S.W.3d 88, 105 (Tex. App.—Houston [14th

Dist.] 2001, pet. denied). “The provisions of [the UDJA] authorizing the bringing of suit

for a declaratory judgment, do not in any way change the law as to jurisdiction of Texas

courts.” Connor v. Collins, 378 S.W.2d 133, 134 (Tex. Civ. App.—San Antonio 1964,

writ dism’d).

       “To constitute a justiciable controversy, there must exist a real and substantial

controversy involving genuine conflict of tangible interests and not merely a theoretical

dispute.” Bexar-Medina-Atascosa Counties Water Control & Improvement Dist. No. 1 v.

Medina Lake Prot. Ass’n, 640 S.W.2d 778, 779-80 (Tex. App.—San Antonio 1982, writ

ref’d n.r.e.); see Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340, 345 (Tex. Civ. App.—

Amarillo 1967, writ ref’d n.r.e.); Reuter v. Cordes-Hendreks Coiffures, Inc., 422 S.W.2d

193, 196 (Tex. Civ. App.—Houston [14th Dist.] 1967, no writ). A declaratory judgment


       3
           TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011 (West 2015).
                                            7
capable of resolving a justiciable controversy must be distinguished from an advisory

opinion. Skalak v. Book, No. 03-11-00595-CV, 2012 Tex. App. LEXIS 8226, at *9 (Tex.

App.—Austin Sept. 26, 2012, no pet.) (mem. op.). A court lacks authority to render a

judgment that is merely advisory. Patterson v. Planned Parenthood of Houston & Se.

Tex, Inc., 971 S.W.2d 439, 443 (Tex. 1998). Thus the UDJA does not empower a court

to rule on hypothetical or contingent situations, or to determine questions not essential

to the decision of an actual controversy, even if future adjudication of the question may

be necessary. OHBA Corp. v. City of Carrollton, 203 S.W.3d 1, 6 (Tex. App.—Dallas

2006) (citing Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968)). In the

absence of a justiciable controversy, a case must be dismissed for want of subject-

matter jurisdiction. Skalak, 2012 Tex. App. LEXIS 8226, at *9.

      The Waco Court of Appeals held the 1919 easement and the 1997 partial

assignment are each capable of more than one reasonable interpretation and are

therefore ambiguous. Harrington, 2011 Tex. App. LEXIS 9844, at *6, 9. As for the 1997

partial assignment, it found reasonable Harrington and Kilgore’s interpretation that the

assignment was only for the rights to a single pipeline, the Telescope pipeline, and all

other rights, including the right to lay multiple lines, were retained by the assignor. It

also found reasonable Magellan’s explanation that the assignor and assignee each

possess the “same broad easement rights under the 1919 Easement” including “the

right to lay multiple or additional pipelines.” 2011 Tex. App. LEXIS 9844, at *9. The

ambiguity of these instruments has not yet been judicially resolved.

      But the trial court also had before it Lone Star’s express disclaimer of any

easement rights over the five-acre tracts partitioned to Harrington and Kilgore.       As

                                            8
noted, it is undisputed no pipelines currently cross those tracts.4 Harrington and Kilgore

allege no invasion or threatened invasion of their property rights by Lone Star. See

Caldwell v. City of Denton, 556 S.W.2d 107, 109 (Tex. Civ. App.—Fort Worth 1977, writ

ref’d n.r.e.) (observing in such circumstances there is no controversy to litigate, an

essential aspect of a suit for declaratory judgment). They testified to no complaints over

Lone Star’s existing pipelines or its conduct.      The summary judgment record thus

negates any genuine conflict of tangible interests between Harrington and Kilgore and

Lone Star.5 See Bexar-Medina-Atascosa, 640 S.W.2d at 779-80; Phillips Petroleum,

423 S.W.2d at 344 (declarations that, inter alia, leases lacked pooling provisions

improper because lessee agreed it had no contractual pooling rights).

       In this case the summary judgment evidence is conclusive that Harrington and

Kilgore’s declaratory judgment claim against Lone Star does not seek resolution of an

existing justiciable controversy. Montrose Mgmt. Dist., 435 S.W.3d at 402. In view of

Lone Star’s express disclaimer of any easement rights over land owned by Harrington

and Kilgore, any declaration regarding such rights would merely be advisory.           See

Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004) (in declaratory judgment

action by lot owners, trial court lacked subject-matter jurisdiction to declare rights as to

two subdivisions; any opinion as to those subdivisions would be advisory).




       4
         All existing pipelines underlying the 100-acre tract are on land owned since
2007 by Magellan. As noted, Harrington and Kilgore’s trespass claims relate to
pipelines Magellan or its predecessor constructed in 1999 and 2005.
       5
       Nor does the record reflect any actual conflict between Lone Star and Magellan
concerning easement rights.
                                             9
         The trial court did not err in its grant of summary judgment for Lone Star because

of a lack of subject-matter jurisdiction.       Harrington and Kilgore’s second issue is

overruled.

         Through their final three issues, Harrington and Kilgore assert the trial court erred

in granting summary judgment because joinder of Lone Star to their suit against

Magellan is required by the UDJA and Texas Rule of Civil Procedure 39, and assert the

trial court abused its discretion by severing their declaratory judgment action against

Lone Star from their suit against Magellan. Because of our conclusion the trial court

lacked jurisdiction over their claim against Lone Star, our analysis of the joinder and

severance questions are not necessary to disposition of the appeal. TEX. R. APP. P.

47.1.6




         6
        Lone Star’s motion for summary judgment was based solely on jurisdictional
grounds and did not address Rule of Civil Procedure 39 or application of Texas Civil
Practice and Remedies Code section 37.006(a). TEX. CIV. PRAC. & REM. CODE ANN. §
37.006(a) (stating in part that when declaratory relief is sought, “all persons who have or
claim any interest that would be affected by the declaration must be made parties”);
TEX. R. CIV. P. 39. We perceive no reason why Lone Star’s absence from the suit
prevents the trial court from granting complete relief in the controversy between
Harrington and Kilgore and Magellan. And, because of Lone Star’s express disclaimer
of easement rights over Harrington and Kilgore’s tracts, we see no risk their tracts could
be burdened by greater or inconsistent easement rights by virtue of resolution of their
dispute with Magellan.
       As to the severance issue, even an improper severance would not have deprived
this court of jurisdiction over the appeal. Rucker v. Bank One Texas, N.A., 36 S.W.3d
649, 652 (Tex. App.—Waco 2000, pet. denied); see Pierce v. Reynolds, 160 Tex. 198,
329 S.W.2d 76, 79 n.1 (1959); Bird v. Lubricants, USA, LP, No. 02-06-00061-CV, 2007
Tex. App. LEXIS 7110, at *7-9 (Tex. App.—Fort Worth August 31, 2007, pet. denied)
(mem. op.); see also Brown v. Todd, 53 S.W.3d 297, 300 (Tex. 2001) (“After the trial
court dismissed [appellant’s] claim for lack of standing, he could have sought a
severance so that the dismissal against him would have been an appealable final
judgment”).

                                              10
                                       Conclusion

      Having overruled each of Harrington and Kilgore’s issues for which review was

necessary, we affirm the judgment of the trial court. TEX. R. APP. P. 43.2(a).




                                                 James T. Campbell
                                                     Justice




                                            11
