Opinion
No. 05-07-01680-CV
Opinion issued May 7, 2009.
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 06-04046-F.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
Opinion By Justice FRANCIS.
MEMORANDUM OPINION
In five issues, OAIC Commercial Assets, L.L.C. appeals the trial court's order granting the plea to the jurisdiction of Larry White, Susan White, CAWC Financial, Inc., U.E. Texas Five Partnership, and Legal Fund I, Ltd. For the reasons that follow, we affirm the trial court's order.
In April 1998, Stonegate Village, L.P., a Georgia limited partnership, was formed for the purpose of constructing and operating an apartment complex in Chandler, Arizona. CAWC, a Texas corporation, served as general partner; Larry White was the principal of CAWC. At the time of the limited partnership's formation, the limited partners were Frey Ventures, L.L.C., an Arizona limited liability company; CAWC/Stonegate Partners, L.P., a Texas limited partnership; and AFC Equities, L.P., a Georgia limited partnership. In January 2000, AFC purported to transfer its interest in Stonegate to OAIC, a Florida limited liability company.
In the first of a series of lawsuits, OAIC sued Stonegate, CAWC, and Larry White for various claims based on the Stonegate limited partnership agreement, including breach of contract, breach of fiduciary duty, and conspiracy to breach fiduciary duty. OAIC also sought declaratory relief regarding its status in and entitlement to distributions from the limited partnership. The trial court granted partial summary judgment in favor of OAIC and, following a bench trial, declared OAIC was a limited partner in Stonegate, ordered OAIC recover damages for breach of contract, and appointed OAIC liquidator of Stonegate.
On appeal, this Court concluded "OAIC did not acquire AFC's interest in Stonegate pursuant to that purported transfer in compliance with the terms of the agreement" and therefore lacked standing to bring its breach of contract and breach of fiduciary duty claims against Stonegate, CAWC, and Larry White. OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 741, 746 (Tex.App. 2007, pet. denied) ( OAIC I). Likewise, we determined OAIC was not entitled to declaratory relief because it had not shown it was "interested under" or had "rights, status, or other legal relations affected by" the limited partnership agreement as required by the Uniform Declaratory Judgments Act. See id. at 745. Because OAIC lacked standing to bring its claims, we vacated the trial court's judgment and dismissed the case for lack of jurisdiction. Id. at 746.
While the appeal in OAIC I was pending in our Court, OAIC filed suit in this case. In its first amended original petition for declaratory relief, OAIC alleged it "purchased all the right, title and interest of AFC in the Limited Partnership, including, but not limited to, its limited partnership interest and the AFC Preferred Return" and that CAWC and Larry White "continued to make unapproved and unauthorized secret loans from their Affiliates to the Limited Partnership." OAIC also alleged it discovered, through a deposition of Larry White on March 29, 2006, that CAWC, by and through White, "booked financial obligations on the books and records of the Limited Partnership and created promissory notes . . . to repay such obligations, related to amounts paid by White, CAWC, and other affiliates of White for attorney's fees and costs . . . without first obtaining (a) the approval of OAIC or (b) [the trial court's] approval (hereinafter referred to collectively as the `Post-trial Loans')." OAIC sought a declaratory judgment that those "Post-trial Loans are void and of no force and effect against the Limited Partnership or its property." Appellees filed a plea to the jurisdiction, asserting OAIC lacked standing because this Court previously concluded the assignment from AFC to OAIC was invalid. The trial court granted the plea to the jurisdiction and dismissed OAIC's claims. This appeal ensued.
OAIC raises five issues challenging the trial court's order dismissing this case. In its response to appellees' plea to the jurisdiction, OAIC argued the OAIC I judgment was not binding because "all appellate review" had not been exhausted and this Court's mandate in OAIC I had not issued. OAIC argued the plea to the jurisdiction was therefore premature and "not supported by any enforceable authority." OAIC asked the trial court to deny the plea to the jurisdiction or, alternatively, abate "these proceedings until all appeals in the Companion Case are exhausted and the appellate courts issue a final, non-appeallable judgment."
During the hearing on the plea to the jurisdiction, OAIC argued only that appellees' plea was premature because "the Court of Appeals decision [in OAIC I] has no force and effect in this court until a mandate issues." In fact, OAIC stated it agreed with "everything [appellees say] about the basis of all the litigation. It all has to do with the same assignment." OAIC asked the trial court to abate the case pending the outcome of the OAIC I appeal. The Texas Supreme Court denied OAIC's petition for review on March 28, 2008, and this Court issued its mandate October 23, 2008. Thus, the only argument raised by OAIC in the trial court-that this Court's opinion was not final or controlling because the mandate had not issued-is no longer valid. Because we are bound by our own Court's precedent, we conclude the trial court did not err in concluding OAIC lacked standing under the limited partnership agreement because of an invalid assignment. See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995) (court is bound by its own precedent). To extent OAIC attempts to raise evidentiary issues on appeal, these issues were not raised in the trial court and as a result, are waived. See Tex. R. App. P. 33.1(a); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (appellant waived due process argument raised on appeal by failing to present argument in trial court); Swink v. Alesi, 999 S.W.2d 107, 110 (Tex.App. 1999, no pet.) (by failing to present theory to trial court, appellees waived error on appeal). We overrule OAIC's issues.
We affirm the trial court's order.