Killam Ranch Properties, Ltd. v. Webb County, Texas

OPINION
No. 04-10-00324-CV

KILLAM RANCH PROPERTIES, LTD.,
Appellant

v.

WEBB COUNTY, Texas,
Appellee

From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2007-CVQ-001680-D3
Honorable Michael P. Peden, Judge Presiding 1

OPINION ON MOTION FOR EN BANC RECONSIDERATION
Opinion by: Steven C. Hilbig, Justice
Dissenting Opinion by: Marialyn Barnard, Justice, joined by Sandee Bryan Marion, Justice

Sitting en banc: Catherine Stone, Chief Justice
Karen A. Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice

Delivered and Filed: April 11, 2012

AFFIRMED IN PART, REVERSED AND REMANDED IN PART; APPELLANT’S MOTION
FOR EN BANC RECONSIDERATION IS GRANTED

1
The Honorable Michael P. Peden, sitting by assignment.
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Killam Ranch Properties Motion for En Banc Reconsideration is granted. We withdraw

our May 11, 2011 opinion and judgment and issue this opinion and judgment in its place.

This appeal arises from Killam Ranch Properties, Ltd.’s (“Killam”) claim that Webb

County violated the Texas Local Government Code and the Texas Open Meetings Act when it

sold county-owned acreage and easements to Khaledi Properties, Ltd. (“Khaledi”). Killam filed

suit against Webb County seeking a declaration the sale was void because of the statutory

violations. Killam also filed a lis pendens. Both parties filed motions for summary judgment. The

trial court granted Webb County’s motions and denied Killam’s motions. Killam appeals the

denial of its motions and the granting of Webb County’s motions. We affirm in part and reverse

and remand in part.

BACKGROUND

Factual background

Webb County owns a 294.24-acre parcel of property commonly known as the Webb

County Detention Center, which it acquired from the United States in 1980. The federal

government also conveyed easements over land owned by Killam. The easements provide access

to the property.

The record reflects that Webb County Commissioners Court passed a resolution to solicit

bids to sell the property on November 14, 2005. The original minutes from the meeting state as

follows:

Item No. 9 Discussion and possible action to direct the Webb County Purchasing
Agent to solicit requests for proposals for the possible sale of the Webb County
Detention Center.

Judge Bruni motioned to approve item as submitted. Cmr. Cortez-Bruner
seconded the motion.

Cmr. Gutierrez states that in previous meetings, the Court had set a minimum
bid of $10 million and doesn’t feed that it should change. She stated that the court was

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responsible to the taxpayers and stated that she did not see the need to sell the property
anytime soon. She stated that it was hard to make a decision without seeing an
appraisal on the property.

Judge Bruni motioned to approve item as submitted with a $10 million
minimum bid. Cmr. Garza seconded the motion.

Motion carried 4-1 with Cmr. Gutierrez voting against.

Several years later and after the suit was filed, the commissioners issued an order that amended

the original minutes. The order states “Item No. 9 inaccurately reflects that Judge Bruni

motioned to approve item as submitted with $10 million minimum bid.” (CR1118). The

amended minutes eliminated any reference to a minimum bid.

Eloy Ramirez, the Webb County purchasing agent, testified in his deposition regarding

the sale of the property and the bidding process. He testified Webb County used the procedure

identified in the “local government code” as its standard procedure for the sale of real estate.

Ramirez described the sealed bid process in Webb County as “bids are submitted in sealed

envelopes and they’re opened and read to the public.” Although not ordered to do so by the

Commissioners Court, Ramirez included in the public bid notice that the property was being sold

pursuant to section 263.007 of the Texas Local Government Code. 2 Ramirez testified he

determined on his own, based on his background and experience as purchasing agent for Webb

County, to use section 263.007 to sell the property. The notices identified the property as 294.24

acres, and stated it was being sold through sealed bid procedure pursuant to section 263.007. The

notices made no reference to any easements.

Three entities eventually submitted sealed bids—Khaledi, Killam, and Har Properties

Ltd., an entity associated with Khaledi. Khaledi’s bid was subject to conditions, including the

sale of the county-owned easements over Killam’s property. Ramirez recommended the

2
All further references to section 263.007 in this opinion are to that section of the Texas Local Government Code.

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commissioners accept Khaledi’s bid. On January 9, 2006, the commissioners considered the bids

and voted to accept Khaledi’s bid. The commissioners met in executive session four times,

between January 2006 and October 2006, to discuss the sale of the property to Khaledi.

Procedural background

Killam filed a declaratory judgment action against Webb County seeking a declaration

the sale of the property was void because the County did not comply with the bidding

requirements in section 263.007, or alternatively, the County failed to comply with section

272.001 of the Local Government Code. 3 Killam also asserted that by convening closed

meetings to continue negotiations of the sale of the property after the County voted to accept

Khaledi’s bid, the County violated the Texas Open Meetings Act, and the resulting sale was

void.

Killam filed a traditional motion for partial summary judgment on the ground the

commissioners court authorized the sale of only the acreage and not the easements. This motion

was denied. Killam filed a second traditional motion for summary judgment on its claim the sale

was void because Webb County did not comply with sections 263.007 or 272.001 and it violated

the Texas Open Meetings Act. This motion was also denied.

Webb County filed a traditional motion for summary judgment on the grounds that it

substantially complied with section 263.007 or alternatively, met the requirements of section

272.001. Webb County also filed a no evidence motion for summary judgment, asserting Killam

had provided no evidence the County violated the open meetings act and no evidence Webb

County conducted closed meetings “to negotiate the Real Estate Sales Contract with Khaledi.”

The trial court granted both Webb County’s motions for summary judgment. Webb County filed

a motion for attorneys fees, and Khaledi filed a motion to cancel the lis pendens. The trial court
3
All further references to section 272.001 in this opinion are to that section of the Texas Local Government Code.

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granted both motions at the hearing on the motions. The award of attorney’s fees was included in

the judgment; however, the order canceling the lis pendens was not signed by the trial court until

after the court lost plenary power.

DISCUSSION

TEXAS LOCAL GOVERNMENT CODE

Killam’s claims

Killam contends Webb County was required to sell the 294.24 acres pursuant to section

263.007 because the public notice stated the sale was pursuant to that statute. Killam claims

Webb County did not comply with section 263.007 because:

1. Webb County failed to “adopt a procedure” for the sealed–bid sale as required
by section 263.007;

2. the public notices of the sale were inadequate because neither the public notice
nor the bid specifications disclosed that the sale encompassed the easements;

3. Webb County failed to obtain and consider an appraisal before the sale to
ascertain the property’s fair market value; and

4. Webb County did not determine a minimum bid amount based on the appraisal.

Alternatively, Killam argues Webb County failed to comply with section 272.001(c), which

Killam contends requires county-owned easements be sold to abutting property owners.

Killam also claims Webb County accepted an improper bid because Khaledi’s bid was

not for the “total price for the 294.24 acres;” and Khaledi provided a conditional offer to pay

$3,100,000.00 if the acreage was buildable, it was free of easements or restrictions, Webb

County granted a warranty of use for single family dwelling or multiple family units, and Webb

County separately conveyed the county-owned easement overlying Killam’s abutting 24.36

acres. Additionally, Killam contends Khaledi’s bid should have been rejected because it was less

than the $10 million minimum bid requirement.

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Application of section 263.007of the Texas Local Government Code

Killam first contends that because Webb County’s public notice and bid specifications

stated the property would be sold pursuant to section 263.007 of the Texas Local Government

Code, Webb County had to comply with that section and section 272.001 was not applicable.

The Texas Local Government Code authorizes counties to sell property through a closed

bid procedure under either sections 263.007 or 272.001. See TEX. LOC. GOV’T CODE ANN.

§ 263.007 and § 272.001 (West Supp. 2010). Section 263.007 (a) provides the Commissioners

Court of a county may adopt a procedure by which the county may sell or lease any real property

through a sealed-bid or sealed-proposal procedure. Unlike section 263.007(a), section 272.001(a)

does not include any language requiring local governments to adopt a procedure for the sale of

real property; instead it requires only that the local governments comply with the enumerated

requirements in section 272.001.

When interpreting statutes, our primary concern is the Legislature’s intent as expressed

by the language of the statute. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.

2009); State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We construe the statute’s words

according to their plain and common meaning unless a contrary intention is apparent from the

context or unless such a construction leads to nonsensical or absurd results. FKM P’ship, Ltd. v.

Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008); see also Fleming

Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). When we interpret a code

enacted by the legislature, we read words and phrases in context and construe them according to

the rules of grammar and common usage. TEX. GOV’T CODE ANN. § 311.011(a) (West 2005);

Jones v. State, 175 S.W.3d 927, 930 (Tex. App.—Dallas 2005, no pet.).

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Neither section 263.007 nor section 272.001 requires the public notice include a reference

to the statute authorizing the sale. Furthermore, section 263.007 subsection (f) provides “[t]he

procedure authorized by this section is an alternative procedure to the procedure authorized by

Section 272.001.” TEX. LOC. GOV’T CODE ANN. § 263.007 (West Supp. 2010). The El Paso court

of appeals examined these two sections and concluded:

Section 272.001(a) provides the requirements for a valid sale of real property to
the general public through a sealed bid procedure by units of local government in
general, including counties, and that these requirements form an alternative,
parallel procedure to the procedure created specifically for counties in Section
263.007. Since Section 263.007 requires the adoption of specific procedures at the
discretion of the county commissioners, the procedure outlined in Section
272.001(a) constitutes the “default,” minimally sufficient procedure with which
all units of state government, including counties, must comply in order to conduct
a valid sale. . . . The legislature intended Section 263.007 to provide county
governments with a mechanism to draft and adopt more specific, extensive
requirements relating to the sale of real property, while ensuring that any such
rules adopted by a county would contain the minimum requirements for a public
sale of real estate.

Collins v. County of El Paso, 954 S.W.2d 137, 149 (Tex. App.—El Paso 1997, pet. denied)

(emphasis added). We agree with our sister court’s interpretation of the two statutes. Section

263.007 gives counties the option to adopt a procedure and if Webb County did not adopt a

procedure, then the sale of the property was governed by section 272.001, regardless of whether

the public notice stated the sale was pursuant to section 263.007. There is no language in either

statute to suggest otherwise.

The minimum requirements of section 263.007 are almost identical to the requirements of

Section 272.001(a). The requirements common to both section 263.001 and 272.001 (a) are:

● notice to the general public of the offer of land;
● to be published on two separate dates;
● in a newspaper of general circulation;
● including “a description of the land, including its location;”
● including the procedure by which sealed bids to purchase the land or offers to
exchange the land may be submitted; and

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● the sale or exchange of the land cannot occur until the fourteenth day after the
publication of the second advertisement.

TEX. LOC. GOV’T CODE ANN. §§ 263.007 & 272.001; see also Collins, 954 S.W.2d at 147-48.

The difference between the minimum requirements of each statute is that section 263.007(c)(2)

explicitly requires the commissioners determine the minimally acceptable bid based on an

appraisal. Although section 272.001 is silent as to the appraisal requirement, the court in Collins

determined there was an implied appraisal requirement in 272.001 because subsections (b), (f),

and (h) all refer to the determination of fair market value by appraisal, and all the subsections

refer to the sale of land for fair market value determined either by appraisal or by public auction.

Collins, 954 S.W.2d at 147-48.; see also Op. Tex. Att’y Gen. No. DM-232 (1993).

Because Webb County Commissioners Court did not adopt a procedure pursuant to

section 263.007, as long as the sale complied with the minimum statutory requirements of

section 272.001, the sale was proper. See Collins, 954 S.W.2d at 147-48.

On rehearing, Killam argues for the first time that “[a]t a minimum, Webb County’s

advertisement and Ramirez’s testimony present a fact issue on whether Webb County did ‘adopt

a procedure.’” The dissent agrees with Killam and finds “Collins is inapposite here.” The dissent

would hold that the following evidence is sufficient to raise a fact issue regarding whether Webb

County Commissioners Court adopted a procedure for the sale pursuant to section 263.007:

(1) the Commissioners court officially established a minimum bid of $10 million
by a four to one vote; (2) the twenty-year veteran Webb County purchasing agent
testified he received direction and instruction from the commissioners Court to
sell the property and that Webb County uses section 263.007 in its sales of real
property, noting he never remembers Webb County ever using section 272.001
for a sale; and (3) Webb County’s public notice and bid specifications specifically
referenced section 263.007….

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However, the record reflects that although the original minutes reference a $10 million bid, the

commissioners court issued an order correcting the original minutes by deleting any reference to

a minimum. Accordingly, the original minutes do not constitute any evidence of the intent of

Commissioners Court because that body, by its later order amending the minutes, indicated its

intent was that no minimum bid was required.

Additionally, Ramirez’s testimony is no evidence of the commissioners court’s intent to

adopt a procedure under section 263.007. Ramirez testified he decided to use section 263.007 on

his own, based on his background and experience as purchasing agent for Webb County, and he

could not ever remember using section 272.001 of the local government code. When asked if the

Webb County agreed with his assessment to use section 263.007, he answered that “he didn’t

recollect them disagreeing.” He testified that the commissioners did not give him any

instructions other than to sell the property.

Finally, the dissent appears to make an equity argument that the county should be bound

by its notice the sale was pursuant to section 263.007. However, a county is bound only through

the acts of its commissioners court. See Jack v. State, 694 S.W.2d 391, 397 (Tex. App.—San

Antonio 1985, writ ref’d n.r.e.) (“It is well settled that a county can act only through its

Commissioner’s Court and the authority of the Commissioner’s Court as the governing body of

the county to make contracts in behalf of the county is limited to that conferred either expressly

or by necessary implication by the constitution and laws of this state.”). Whatever the policy

considerations, the acts of the purchasing agent cannot and did not bind Webb County. See id.

As the Collins court held, we are unwilling to imply the adoption of local procedures by

examining the Commissioners’ actions or inactions, “especially given that the adoption of a

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procedure under Section 263.007(a) is discretionary, and intended as an alternative to the

“default” procedure contained in Section 272.001(a).” Collins, 954 S.W.2d at 149.

Property description

Killam next contends the property description in the public notice was inadequate

because it did not state the sale of the property included the easement. Both sections

263.007(b)(3) and 272.001(a) require the notice provide a description of the land and its location.

TEX. LOC. GOV’T CODE ANN. §§ 263.007(b)(3) & 272.001(a). County officials must strictly

comply with the property description requirements in order to provide valid notice of a sale.

Collins, 954 S.W.2d at 151. Strict compliance with notice provisions provides all bidders with an

equal opportunity to compete. See id. at 151. “Competitive bidding requires the soliciting of bids

through advertising in such a manner as to place all potential bidders on an even playing field.

This fair and equal treatment is necessary to achieve the best possible bid for the unit of local

government.” Id.

Webb County’s notices described the land and its location. All potential bidders received

the same information. Webb County was not required to include the easement in the public

notice because it is not a “description of land” or a “location” of property within the meaning of

the relevant sections. “Unlike a possessory interest in land, an easement is a nonpossessory

interest that authorizes its holder to use the property for only particular purposes.” Marcus Cable

Assoc., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002) (citing RESTATEMENT (THIRD) OF

PROPERTY (Servitudes) § 1.2 cmt. d.). Webb County’s property description met the statutory

requirements.

Killam contends the record lacks proof the Commissioners authorized or publicized the

sale of the easements, and the evidence conclusively shows the only thing contemplated for sale

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and advertised to the public was the 294.24 acres. Killam asserts Webb County never

contemplated selling the easements until after it held closed door meetings regarding the sale of

the acreage. However, Killam’s argument fails to appreciate the nature of the easements. It is

undisputed the easements in this case are appurtenant 4 to the acreage that was described in the

public notice. “An easement appurtenant benefits the property to which it is attached; it cannot

be separated from the owner’s rights in the land, and it passes with the property.” Holmstrom v.

Lee, 26 S.W.3d 526, 531 (Tex. App.—Austin 2000, no pet.); see also Drye v. Eagle Rock Ranch,

Inc., 364 S.W.2d 196, 203 (Tex. 1962). Because the easement necessarily passed with the

property, Webb County was not required to include its description in the public notice.

Fair Market Value based on appraisal

Killam also claims Webb County did not conclusively establish it complied with the

appraisal requirement of section 263.007(c). Killam contends that section requires specific

evidence demonstrating the commissioners reviewed the appraisal and then decided on a fair

market value for the property. Killam argues because there is no evidence the commissioners

actually considered the appraisal submitted as summary judgment evidence in establishing a fair

market value for the property, Webb County was not entitled to summary judgment.

As stated in Collins “[s]ection 263.007(c)(1) requires only that county officials obtain an

appraisal to establish the fair market value of the land and section 272.001(a) implicitly requires

the same procedure.” The commissioners obtained an appraisal that valued the property at

$2,950.000.00 as of October 26, 2005. The commissioners accepted a bid from Khaledi for

4
An easement is appurtenant when it is necessary and essential to the enjoyment of the dominant estate. Drye v.
Eagle Rock Ranch, Inc., 364 S.W.2d 196, 207 (Tex. 1962). “‘Appurtenant’ means that the rights or obligations of a
servitude are tied to ownership or occupancy of a particular unit or parcel of land. The right to enjoyment of an
easement or profit, or to receive the performance of a covenant that can be held only by the owner or occupier of a
particular unit or parcel, is an appurtenant benefit. A burden that obligates the owner or occupier of a particular unit
or parcel in that person’s capacity as owner or occupier is an appurtenant burden.” RESTATEMENT (THIRD) OF
PROPERTY (SERVITUDES) § 1.5 (2000).

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$3,100,000.00. There is nothing in the statute that requires anything other than an appraisal that

supports the fair market value and the amount of the bid that is accepted. See Collins, 954

S.W.2d at 152. Webb County complied with the appraisal requirement.

Sale of easements to abutting landowners only

Killam argues Webb County did not strictly comply with section 272.001(c), which

Killam contends only allows the sale of an easement to an abutting landowner. Section

272.001(c) provides that streets or alleys, owned in fee by a county or used by easement may be

sold to:

(1) abutting property owners in the same subdivision if the land has been
subdivided; or
(2) abutting property owners in proportion to their abutting ownership, and the
division between owners must be made in an equitable manner.

TEX. LOC. GOV’T CODE ANN. § 272.001(b)(2), (c). Killam argues the easements are on property

it owns in fee and it is the only abutting landowner; therefore, only Killam could purchase the

easements. A plain reading of the statute demonstrates this provision contemplates only the sale

of an easement independent from the sale of real property in fee and has no application to an

easement that is appurtenant to property. Id.

Improper bid

Killam asserts Khaledi’s bid should have been disqualified because it contained

conditions outside the public notice and bid specifications. Killam cites no authority that a

contract for sale of property is void where the bid includes conditions but there is no evidence

the bidder’s conditions were accepted. The sales contract here does not contain any of the

additional conditions listed in Khaledi’s bid.

Killam also contends the Commissioners Court authorized a minimum bid of $10 million

and Khaledi’s bid should have been rejected because it was for less than that amount. However,

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the Commissioners Court later corrected the meeting minutes after determining the minutes

“inaccurately” reflected that Judge Bruni’s motion to approve the sale of the 294.24 acres

included a $10 million minimum bid requirement. The corrected minutes reflect that

Commissioner Garza made a motion to sell the property with a $10 million minimum bid but the

motion failed. Webb County did not accept an improper bid.

TEXAS OPEN MEETINGS ACT

Killam alleged the Webb County commissioners violated the Texas Open Meetings Act

by “convening closed meetings after January 9, 2006, the date the County voted to accept

Khaledi’s bid for the Old Detention Center, to engage in ongoing negotiations for the sale of the

294.24 acres of land and to negotiate the Real Estate Sales Contract with Khaledi.” Webb

County filed a no-evidence motion for summary judgment, asserting Killam had no evidence it

violated the Texas Open Meetings Act. Webb County also asserted the executive sessions were

conducted pursuant to the legal consultation exception to the Texas Open Meetings Act and there

was no evidence Webb County conducted closed meetings “to negotiate the Real Estate Sales

Contract with Khaledi.” Killam filed a cross-motion, asserting violations of the Act.

The Open Meetings Act requires every regular, special, or called meeting of a

governmental body to be open to the public “except as provided by this chapter.” TEX. GOV’T

CODE ANN. §§ 551.002 (West 2004); City of San Benito v. Rio Grande Valley Gas Co., 109

S.W.3d 750, 757 (Tex. 2003). If the governmental body holds a closed meeting and none of the

exceptions to the Texas Open Meetings Act apply, then the closed meeting violates the statute.

Finlan v. City of Dallas, 888 F. Supp. 779, 783 (N.D. Tex. 1995); Martinez v. State, 879 S.W.2d

54, 56 (Tex. Crim. App. 1994).

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The attorney consultation exception to the Texas Open Meetings Act provides that a

governmental body may conduct a private consultation with its attorney only when the

governmental body seeks the advice of its attorney about pending or contemplated litigation or a

settlement offer, or on a matter in which the duty of the attorney under the Texas Disciplinary

Rules of Professional Conduct clearly conflicts with Chapter 551. TEX. GOV’T CODE ANN.

§ 551.071 (West 2004). Section 551.071 incorporates the attorney-client privilege. Olympic

Waste Servs. v. City of Grand Saline, 204 S.W.3d 496, 502 (Tex. App.—Tyler 2006, no pet.); see

also Op. Tex. Att’y Gen. No. JC-0233 (2000). “Under section 551.071(2), a governmental body

may consult with its attorney in executive session to receive advice on the legal issues raised by

a proposed contract, but under this provision the governmental body may not discuss the merits

of a proposed contract, financial considerations, or other non-legal matters related to the contract

merely because its attorney is present.” Op. Tex. Att’y Gen. No. JC-0233 (2000). If during an

executive session there is discussion of topics outside the scope of the statutory exception for

legal advice, then there is a violation of Texas Open Meetings Act. See Olympic Waste Servs.,

204 S.W.3d at 502. The legal counsel exception is an affirmative defense on which the

governmental entity bears the burden of proof. City of Farmers Branch v. Ramos, 235 S.W.3d

462, 466 (Tex. App.—Dallas 2007, no pet.); Olympic Waste Servs., 204 S.W.3d at 504. In this

case, Killam alleged the Commissioners Court convened the executive sessions to conduct

negotiations regarding the sale of the property to Khaledi, which would exceed the scope of the

authority conveyed by section 551.071(2) for executive sessions for consultation with an

attorney.

Webb County sought only a no evidence summary judgment based on the legal counsel

affirmative defense. A movant cannot file a no-evidence motion for summary judgment on an

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affirmative defense that it has the burden to prove at trial. Selz v. Friendly Chevrolet, Ltd., 152

S.W.3d 833, 838 (Tex. App.—Dallas 2005, no pet.); Thomas v. Omar Invs., Inc., 129 S.W.3d

290, 294 (Tex. App.—Dallas 2004, no pet.); Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680

(Tex. App.—Houston [14th Dist.] 2003, no pet.). Webb County had the burden of proving that

the legal counsel exception applied and that it did not exceed the scope of the exception. Webb

County did not seek a traditional summary judgment on the Texas Open Meetings Act claim and

did not conclusively establish the affirmative defense provided by the statutory exception

allowing the governmental entity to avoid an open meeting by consulting with its attorney.

Therefore, Webb County was not entitled to summary judgment on Killam’s Texas Open

Meetings Act claim and the trial court erred in granting the motion.

Killam also appeals the trial court’s denial of its cross motion for summary judgment on

the Texas Open Meetings Act claim. See Olympic Waste Servs., 204 S.W.3d at 501 (when cross-

motions are filed, appellate court decides all issues presented and renders judgment trial court

should have rendered). When the plaintiff moves for summary judgment it must conclusively

prove each element of the cause of action as a matter of law. Swilley v. Hughes, 488 S.W.2d 64,

67 (Tex. 1972); Ortega-Carter v. Am. Int’l Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.—

Dallas 1992, writ denied). The plaintiff meets the burden if it produces evidence that is sufficient

to support an instructed verdict at trial. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.

1984). If a defendant relies on an affirmative defense the plaintiff is not required to negate the

affirmative defense; rather, the defendant must come forward with evidence sufficient to raise an

issue of fact on its affirmative defense. Id.

Killam’s motion for summary judgment asserted Webb County violated the Texas Open

Meetings Act because the closed door meetings did not come within the real estate or attorney

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consultation exceptions. Killam relied on the Commissioners Court’s meeting minutes to

establish the Commissioners Court went into executive session in violation of the Texas Open

Meetings Act. The minutes clearly indicate the Commissioners Court went into executive session

on issues related to the sale of the property and that the executive sessions were requested

pursuant to the attorney consultation and real estate exceptions in sections 551.071(2) and

551.072. Because the attorney consultation exception is an affirmative defense, Killam was not

required to conclusively negate its application; however, if there is evidence in the record raising

a fact issue on the defense then Killam was not entitled to summary judgment.

Webb County asserted in its response to Killam’s motion that it was relying on the

attorney consultation exception. Although Webb County did not present any responsive

summary judgment evidence, Killam’s evidence raises a fact issue on whether the attorney

consultation exception applies. Olympic Waste Servs., 204 S.W.3d at 501 (when reviewing

competing motions for summary judgment, court considers all the evidence accompanying both

motions.); Dallas Cnty. Appraisal Dist. v. Inst. for Aerobics Research, 766 S.W.2d 318, 319

(Tex. App.—Dallas 1989, writ denied). The minutes from the meetings Killam contends were

conducted in violation of the Texas Open Meetings Act reflect the executive sessions were

conducted pursuant to the attorney consultation and real estate exceptions. This evidence is

sufficient to raise a fact issue regarding Webb County’s affirmative defense and the trial court

properly denied Killam’s motion for summary judgment.

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LIS PENDENS

Killam next contends the order cancelling the lis pendens is a nullity because it was

signed more than thirty days after the trial court rendered final judgment. Khaledi agrees that the

order was signed after the trial court lost plenary power, but argues the order was a proper nunc

pro tunc judgment to correct a clerical error.

After a judgment has become final, the trial court can correct only a clerical error in the

judgment. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex. 1986). “A clerical error is a

discrepancy between the entry of a judgment in the record and the judgment that was actually

rendered by the court, and does not arise from judicial reasoning or determination.” Rawlins v.

Rawlins, 324 S.W.3d 852, 855 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing Escobar,

711 S.W.2d at 231 (Tex. 1986) and Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986)). A

judgment is rendered when the trial court officially announces its decision either orally in open

court or by memorandum filed with the clerk. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855,

857 (Tex. 1995). “Although it is correct that whether an error in a judgment is judicial or clerical

on appeal is a question of law, what judgment the trial court actually rendered initially is a

question of fact for the trial court, and it is only after the trial court makes a factual determination

of what it actually rendered that the judicial or clerical question becomes a question of law on

appeal.” Thompson v. Tex. Dept. of Human Res., 859 S.W.2d 482, 484 (Tex. App.—San Antonio

1993, no writ) (emphasis in original). Thereafter, appellate courts may only review the trial

court’s factual determinations on whether a judgment has been rendered for no evidence and

factual insufficiency of the evidence. Escobar, 711 S.W.2d at 232; Thompson, 859 S.W.2d at

484. The appellate court may not substitute their judgment for the judgment of the trial court in

this respect. Escobar, 711 S.W.2d at 232; Thompson, 859 S.W.2d at 484.

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At the hearing where the court considered attorney’s fees, entry of judgment, and

cancellation of the lis pendens, the trial court indicated its intent to grant the motion to cancel the

lis pendens. However, the final judgment signed on April 1, 2010 did not did not include an

order canceling the lis pendens. Khaledi did not file a motion for nunc pro tunc judgment and

there is no evidence of the circumstances surrounding the entry of the order canceling the lis

pendens. The order is not in the clerk’s record, and there are no factual determinations for us to

review. Because there is nothing in the record to demonstrate the trial court’s basis for the

signing of the order canceling the lis pendens after plenary power expired, we cannot hold it was

a proper nunc pro tunc judgment. The order canceling the lis pendens is nullity.

Khaledi also argues that Killam lacked standing to file the lis pendens because Killam

failed to comply with section 12.007 of the Property Code, and lack of standing is a jurisdictional

issue that can be raised for the first time on appeal. However, whether Killam complied with

section 12.007 is not an issue of standing. Rather, “‘standing focuses on the question of who may

bring an action.’” The M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001)

(quoting Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998)).

A lis pendens may be filed during the pendency of an action involving title to real

property, the establishment of an interest in real property, or an enforcement of an encumbrance

against real property. TEX. PROP. CODE ANN. § 12.007 (West 2009). The purpose of a lis pendens

is to put parties interested in a particular tract of land on notice as to the facts and issues involved

in a suit or action concerning that particular tract. In re Jamail, 156 S.W.3d 104, 108 (Tex.

App.—Austin 2004, orig. proceeding); In re Collins, 172 S.W.3d 287, 292-93 (Tex. App.—Fort

Worth 2005, no pet.); Garza v. Pope, 949 S.W.2d 7, 8 (Tex. App.—San Antonio 1997, no writ).

A lis pendens is not an independent claim, Collins v. Tex Mall, L.P., 297 S.W.3d 409, 418 (Tex.

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App.—Fort Worth 2009, no pet.) and has no existence separate and apart from the litigation of

which it gives notice. Taliaferro v. Smith, 804 S.W.2d 548, 550 (Tex. App.—Houston [14th

Dist.] 1991, no writ).

The issue raised by Khaledi is whether the statutory requirements for filing notice of lis

pendens were met. This is not a standing issue and cannot be raised for the first time on appeal.

Therefore, we do not have jurisdiction to cancel the lis pendens, and upon remand the issue can

be raised in the trial court.

ATTORNEY’S FEES

The attorney’s fees were awarded to Webb County pursuant to the Uniform Declaratory

Judgment Act in connection with the grant of summary judgment on both the Local Government

Code and Texas Open Meetings Act claims. Because we are reversing and remanding the Open

Meetings Act claim, in the interest of justice we are reversing and remanding the attorney’s fee

award for further consideration after the Texas Open Meetings Act claim is determined.

CONCLUSION

The trial court correctly granted Webb County’s motion for summary judgment on

Killam’s claim that the County violated sections 263.007 and 272.001 of the Texas Local

Government Code. However, the trial court improperly granted Webb County’s no evidence

motion for summary judgment on the alleged Texas Open Meetings Act violations. We reverse

and remand the judgment on Killam’s claim the Texas Open Meetings Act was violated because

Webb County did not conclusively establish its affirmative defense. Finally, we reverse and

remand the attorney’s fee award for further consideration after the Texas Open Meetings Act

claim is determined.

Steven Hilbig, Justice

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