Elwyn D. Shumway v. Whispering Hills of Comal County Texas Property Owners Association, Inc.

Summary

The Texas Court of Appeals affirmed the trial court’s dismissal under Texas Rule of Civil Procedure 91a of Elwyn D. Shumway’s declaratory action concerning whether his subdivision lots could be used for commercial purposes. The trial court’s written order did not specify its grounds, and Shumway challenged only the limitations ground on appeal. Because he did not challenge the alternative ground that his pleadings established the lots were restricted to residential use, the appellate court affirmed on that unchallenged ground.

Holdings

1. When a trial court's order granting a Rule 91a motion to dismiss does not identify the ground on which it relied, the appellant must challenge every ground upon which the trial court could have granted the motion; failure to challenge one such ground requires affirmance on that unchallenged ground.
2. The dismissal must be affirmed because Shumway did not challenge the ground that his own pleadings and attached documents established that the lots were restricted to residential use and therefore did not entitle him to the requested declaration permitting commercial use.

Questions Presented

1. Whether the trial court's written order granting a Rule 91a motion to dismiss could be affirmed on an unchallenged ground when the order did not specify its basis.
2. Whether Shumway was required to challenge every ground on which the trial court could have granted the Rule 91a dismissal.
3. Whether the appellate court should affirm because Shumway failed to challenge the ground that his pleadings and attached documents established that the lots were restricted to residential use.

Disposition

affirmed