Affirmed and Memorandum Opinion filed January 18, 2018.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-16-00523-CV

                      LYNDON MAYBERRY, Appellant
                                        V.
       KINDER MORGAN CRUDE & CONDENSATE, LLC, Appellee

                    On Appeal from the 412th District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 71532

                  MEMORANDUM OPINION

      In this condemnation proceeding, appellant Lyndon Mayberry challenges the
trial court’s judgment condemning certain Brazoria County property in favor of
appellee Kinder Morgan Crude & Condensate, LLC (“KMCC”). In four issues,
Mayberry asserts that: (1) he has constitutional standing; (2) there is legally
sufficient evidence that he has standing; (3) the trial court’s judgment is void for
lack of jurisdiction; and (4) certain statutory provisions concerning notice in a
condemnation proceeding are unconstitutional.
       Because we conclude that Mayberry lacks an ownership interest in the
condemned property, we affirm the trial court’s judgment.

                                           Background

       KMCC filed a petition for condemnation, seeking to acquire a permanent
easement for construction of a common-carrier pipeline through property in Brazoria
County. KMCC identified a 98-acre tract of land across which it sought rights for a
50-foot easement.1 After reviewing the Brazoria County real property records,
KMCC could not identify all owners of record of the 98-acre tract. Thus, KMCC
named several known and unknown parties as defendants, including Mayberry, the
unknown heirs of T. L. Smith, W. P. Womack, and the estate of Alice Grovey2—all
of whom KMCC alleged may own, possess, or claim some interest in the 98-acre
tract. KMCC asserted that it provided the requisite paperwork to the defendants and
that the defendants rejected its bona fide offer to purchase an interest in the property. 3

       KMCC sought appointment of special commissioners to schedule a hearing
and assess damages occasioned by condemning the property.4 The trial court
appointed three special commissioners, who notified Mayberry and the other
defendants, including the unknown defendants via publication, of the hearing to




       1
          This condemnation proceeding concerns only the 50-foot easement in the 98-acre tract
identified by KMCC in its condemnation petition. See Tex. Prop. Code § 21.012(b)(1) (stating
that a condemnation petition must describe the property to be condemned). KMCC attached a
metes and bounds survey description of the location of the easement to its condemnation petition.
       2
           The petition identifies “Maurice Grovey” as the agent for the estate of Alice Grovey.
       3
         See Tex. Prop. Code § 21.012(a) (“If an entity with eminent domain authority wants to
acquire real property for public use but is unable to agree with the owner of the property on the
amount of damages, the entity may begin a condemnation proceeding by filing a petition in the
proper court.”); id. § 21.012(b) (providing requisites of petition for condemnation).
       4
           See id. §§ 21.014-.015

                                                  2
assess damages.5 Mayberry appeared at the special commissioners’ hearing. After
hearing evidence and argument, the special commissioners signed an award
assessing damages of $13,043 for condemnation of the easement over the 98-acre
tract. In June 2013, KMCC deposited $13,043 into the court’s registry.6

        Subsequently, on June 7, 2013, Mayberry filed an objection and answer in
which he denied KMCC’s condemnation claims and objected to the special
commissioners’ award.7 Tex. Prop. Code § 21.018. Mayberry alleged that the
condemnation award was inadequate to compensate him for his interest in the
property and that the special commissioners “failed to apply the correct measure of
damages in determining the adequate compensation” to which he was entitled.

        The court set the matter for trial in early 2016. Mayberry filed an amended
answer against KMCC on the day of trial.8 Mayberry alleged that KMCC’s pipeline



        5
         See id. § 21.016(d) (stating authorized methods of serving notice, including by
publication if the property owner is unknown).
        6
       KMCC also filed a $5,000 bond for any additional costs that could be awarded to
condemnees.
        7
          Maurice Grovey III, who was served with KMCC’s petition, filed special exceptions, a
general denial, and verified denials. Grovey claimed he had been misidentified as having an
interest in the 98-acre tract and averred in an attached affidavit that he did not own or claim any
interest in the property described in KMCC’s petition. Further, at the hearing on March 7, 2016,
described infra, Grovey’s attorney disclaimed on behalf of Grovey any interest in the property on
the record.
        8
          Our record does not reflect whether Mayberry obtained leave of court to file his amended
pleading. See Tex. R. Civ. P. 63 (providing that amended pleadings filed within seven days of the
date of trial “shall be filed only after leave of the judge is obtained,” but that “leave shall be granted
by the judge unless there is a showing that such filing will operate as a surprise to the opposing
party”). In his amended pleading, Mayberry asserted several counterclaims against KMCC, but
he presented no evidence relevant to these claims at trial and he later non-suited them. Although
it appears Mayberry attempted to withdraw his non-suit, he has not raised any issues related to the
counterclaims or the non-suit on appeal. Further, the trial court’s judgment states that “all relief
sought by any party at the time of the trial of this cause on March 7, 2016 not expressly granted in
this judgment is denied.”

                                                    3
“extend[ed] far beyond just the . . . 98 acre tract.” Importantly, Mayberry expressly
stated he had no interest in the 98-acre tract.

       Mayberry also filed a trial brief in support of a motion to dismiss, although
the motion to dismiss is not contained in our record. In his brief, Mayberry again
clearly disclaimed any interest in the 98-acre tract at issue by stating “[t]he only
persons with an interest in the Subject property are the Heirs of TL Smith.
[Mayberry] is neither an Heir of TL Smith nor did he own any of their property
interest at the time of the filing of this action.”

       KMCC filed a bench memorandum “concerning proof of standing as a
predicate to offering evidence.” KMCC asserted that Mayberry had “failed to
provide any evidence of a vested interest in the [98-acre tract] through discovery or
otherwise, be it by deed, mortgage note, county record, or other property ownership
document.”     KMCC argued that because Mayberry had not established “an
identifiable, personal stake in the Property, or in this litigation,” he lacked standing
to seek any affirmative relief or recover any portion of the commissioners’ award.

       At the beginning of the bench trial on March 7, 2016, the trial court inquired
whether Mayberry had any interest in the 98-acre tract KMCC sought to condemn:
“Let me ask you this. Is [Mayberry] claiming any ownership interest in the 98 acres
that are the subject matter of this condemnation?”          Mayberry’s trial counsel
explained that Mayberry had an interest in a larger, 600-acre tract, known as the
Morris Tract, in which this 98-acre tract allegedly was contained, but stated that
Mayberry had “no interest” in the land described in KMCC’s petition.

       After these discussions, the trial court called the condemnation proceedings
to trial, and Mayberry testified in pertinent part as follows:

       This property that’s being described in this petition is the fractional
       interest of T. L. Smith heirs and I own none of their fractional interest.

                                             4
      I am not an heir of T. L. Smith. At the time of the taking I owned none
      of their fractional interest.
                                          ***
      The [property listed in KMCC’s petition] is describing the fractional
      interest of T. L. Smith heirs and I don’t own any of their fractional
      interest.

When asked if KMCC’s condemnation petition described Mayberry’s property, he
stated, “No.” The trial court admitted numerous deeds granting property contained
in the Morris Tract to Mayberry, but none of these transfers matched the property
described in KMCC’s condemnation petition.

      In various trial court filings, Mayberry asserted that the court lacked
jurisdiction to hear this case because he was the “wrong defendant.” During the trial,
Mayberry also urged that the court lacked jurisdiction because the property was
“improperly described” in KMCC’s condemnation petition, in that Mayberry had no
interest in the 98-acre tract identified in that petition; instead, according to Mayberry,
Mayberry had an interest in the larger Morris Tract, and KMCC’s petition did not
properly describe Mayberry’s interest in the larger tract.

      After hearing the evidence and arguments of counsel, the trial court signed a
final judgment on June 13, 2016. In the judgment, the trial court found, among other
things:

            At the trial of this cause, upon objection to any standing of
      Lyndon Mayberry to present evidence and prosecute a claim for
      personal damages, the Court provided him an opportunity to present
      evidence of his ownership interest in the Property in whole or in part.
      After hearing such evidence and all other arguments properly before
      the Court on this issue, the Court found that Lyndon Mayberry failed to
      meet his burden to prove that he had an ownership interest in the
      Property.



                                            5
The court decreed that KMCC was entitled to condemn the 50-foot pipeline right-
of-way in the 98-acre tract of land and, given KMCC’s deposit of $13,043 in the
registry of the court on June 3, 2013, KMCC was “released and discharged of its
constitutional obligation to pay adequate compensation” to all defendants. The
judgment stated that the $13,043 in condemnation damages would remain in the
court’s registry and paid to “those persons who can demonstrate . . . that they are the
heirs of T.L. Smith whose identity was not known as of March 7, 2016.” As to any
other relief sought by all parties at the time of trial, the judgment denied relief.

      This appeal timely followed.

                                   Governing Law

      Texas Property Code Chapter 21 governs eminent-domain proceedings. “The
Texas eminent-domain scheme is a two-part process that begins with an
administrative proceeding followed, if necessary, by a judicial one.” City of Tyler
v. Beck, 196 S.W.3d 784, 786 (Tex. 2006) (per curiam). An entity with eminent-
domain authority, such as condemnor KMCC, that cannot reach an agreement with
the property owner(s), initiates the administrative phase of condemnation
proceedings by filing a petition in the proper court. Tex. Prop. Code § 21.012(a),
(b); see Beck, 196 S.W.3d at 786. The court appoints three special commissioners
to hold a hearing and determine the appropriate amount of compensation to the
property owners. Tex. Prop. Code § 21.014-.015; Beck, 196 S.W.3d at 786. If the
condemnor is satisfied with the award, it must pay the amount of the award to the
condemnee(s), deposit that amount in the court’s registry, or post a sufficient bond.
See Tex. Prop. Code § 21.021(a); Beck, 196 S.W.3d at 786.

      Either a condemnor or condemnee may challenge the special commissioners’
award by filing “a written statement of the objections and their grounds” in the trial
court. Tex. Prop. Code § 21.018(a); see Beck, 196 S.W.3d at 786. “Upon the filing
                                            6
of objections, the award is vacated and the administrative proceeding converts into
a judicial proceeding.” Beck, 196 S.W.3d at 786 (citing Denton Cty. v. Brammer,
361 S.W.2d 198, 200 (Tex. 1962)). In such a judicial proceeding, “the burden of
proof regarding the right to condemn and certain other matters is generally on the
condemnor, [but] the ‘burden as to value is on the condemnee.’” Religious of Sacred
Heart of Tex. v. City of Houston, 836 S.W.2d 606, 613 (Tex. 1992) (quoting Miers
v. Hous. Auth. of City of Dallas, 266 S.W.2d 842, 845 (Tex. 1954)); State v. Moore
Outdoor Props., L.P., 416 S.W.3d 237, 247 (Tex. App.—El Paso 2013, pet. denied)
(“In a condemnation proceeding, the burden to establish the value of the condemned
property is on the condemnee.”).

                                     Analysis

      Believing Mayberry had no justiciable interest in the property, KMCC
challenged Mayberry’s standing to assert affirmative claims or recover any portion
of the award. The trial court determined that Mayberry lacked standing because he
failed to demonstrate any ownership interest in the condemned property. In his first
two appellate issues, Mayberry challenges the trial court’s ruling regarding his
standing. As we discuss below, we conclude that Mayberry’s lack of a justiciable
interest in the subject property disposes of this appeal.       See Country Cmty.
Timberlake Vill., L.P. v. HMW Special Util. Dist. of Harris & Montgomery Counties,
438 S.W.3d 661, 666-67, 672 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)
(concluding that defendants, developers and homeowners, who neither held deed
restrictions nor other property interests, lacked standing to recover condemnation
damages).

      “[F]or any person to maintain a suit it is necessary that he have standing to
litigate the matters at issue.” Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). We
review the legal question of whether a party has standing to maintain a suit de novo.

                                         7
See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004).
Standing pertains to an individual’s justiciable interest in a lawsuit, and a person has
standing when an alleged wrong affects him personally.           See Nootsie, Ltd. v.
Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Standing
generally requires a real controversy between the parties, which will be actually
determined by the relief sought. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d
845, 849 (Tex. 2005).

      The only parties entitled to a condemnation award are the owners of the
condemned property at the time of the taking. City of Austin v. Capitol Livestock
Auction Co., Inc., 453 S.W.2d 461, 463 (Tex. 1970); Beutel v. Dall. Cty. Flood
Control Dist., No. 1, 916 S.W.2d 685, 692 (Tex. App.—Waco 1996, writ denied);
see also Tex. Prop. Code § 21.042(a), (c), (d). A party “must have a compensable
interest in the property at issue” to recover compensation for a taking. Cf. Brownlow
v. State, 251 S.W.3d 756, 760 (Tex. App.—Houston [14th Dist.] 2008), affirmed by
State v. Brownlow, 319 S.W.3d 649 (Tex. 2010); cf. also Cont’l Food, Inc. v. State,
No. 05-09-01249-CV, 2011 WL 258999, at *2-4 (Tex. App.—Dallas Jan. 27, 2011,
no pet.) (mem. op.) (“[A] party is required to show it has a compensable interest in
the property at issue.”).

      Mayberry did not establish an ownership or other compensable interest in the
property at the relevant time, the date of the taking. A taking occurs on the date
when the condemnor lawfully takes either actual possession by physically entering
the land or constructive possession by the deposit of the commissioners’ award. City
of Fort Worth v. Corbin, 504 S.W.2d 828, 830 (Tex. 1974); see also Hooks v. Fourth
Court of Appeals, 808 S.W.2d 56, 60-61 (Tex. 1991) (orig. proceeding). Here,
KMCC deposited the award into the court’s registry on June 7, 2013. Although
Mayberry introduced numerous deeds proving an ownership interest in the Morris

                                           8
Tract, none of the deeds established any interest in the 98-acre tract as of June 7,
2013. During his trial testimony, Mayberry agreed he had no ownership interest (or
knew of none) in the 98-acre tract, and our review of the record confirms his
acknowledgment. Instead, Mayberry stated repeatedly that he has a fractional
interest in the larger Morris Tract. Yet, Mayberry does not identify or explain, and
the record does not reveal, how his ownership interest in the Morris Tract impacts
or creates any ownership interest—which he expressly disclaimed—in the relevant
98-acre tract.

      As in his trial testimony, in his pleadings Mayberry conceded a lack of any
compensable interest in the property. In both his amended answer and in his trial
brief, Mayberry expressly disavowed any ownership interest in the 98-acre tract.
Further, despite his characterization of the issues on appeal, Mayberry’s brief clearly
states that he had no ownership interest in subject property, but only had an interest
in the Morris Tract.

      In short, Mayberry did not establish that he had any compensable interest in
the property at issue. Cf. Cont’l Food, Inc., 2011 WL 258999, at *2-4; Brownlow,
251 S.W.3d at 760; see also In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San
Antonio 2010, pet. dism’d) (“The burden of proof on the issue of standing is on the
party asserting standing.”). Accordingly, Mayberry does not have a justiciable
interest in this suit, and the trial court did not err in so holding. See Beutel, 916
S.W.2d at 692. We overrule Mayberry’s first two issues. As Mayberry is not a
proper party to the condemnation suit, we will not consider his remaining arguments
on appeal. Id.; see Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 988 S.W.2d 750,
752 (Tex. 1999) (“Texas courts have long held that appealing parties may not
complain of errors that do not injuriously affect them or that merely affect the rights
of others.”); see also Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 104 (Tex. App.—

                                          9
Houston [14th Dist.] 2013, pet. denied); cf. Country Cmty. Timberlake Vill., 438
S.W.3d at 671-72.9

                                          Conclusion

       Mayberry’s lack of standing related to the condemnation proceeding is
dispositive of this appeal. We overrule Mayberry’s issues challenging the trial
court’s conclusion that he lacked standing and affirm the trial court’s judgment
without reaching his remaining issues.




                                              /s/    Kevin Jewell
                                                     Justice



Panel consists of Chief Justice Frost and Justices Boyce and Jewell.




       9
         In portions of his brief, Mayberry appears to argue on behalf of the unknown property
owners or other non-parties. Mayberry may not enforce the rights of any unserved, potential
owners. See Metropolitan Transit Auth. of Harris Cty. v. Graham, 105 S.W.3d 754, 759-60 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied) (citing Union Fraternal Latino Americana v. City
of San Antonio, 315 S.W.2d 68, 70 (Tex. Civ. App.—San Antonio 1958, no writ)). Similarly,
Mayberry has no standing to argue the interests of non-parties. See Beutel, 916 S.W.2d at 693
(holding appellant had no standing to assert argument on behalf of party who disclaimed all interest
in condemnation suit).

                                                10
