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Phillips v. Dow Chemical Co.11/30/2005
te. Lâches is generally available as an affirmative defense solely in suits in equity and therefore does not apply to statutory challenges. See Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638 (Tex. App.---Houston [1st Dist] 2003, pet. denied). Moreover, because lack of standing defeats subject-matter jurisdiction and cannot be waived, a challenge to standing may properly be raised at any time and may even be raised for the first time on appeal. See West Orange- Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W.3d 558, 583 (Tex. 2003). Lâches did not bar appellees, therefore, from contesting Phillips's standing as Stewart's husband and, thus, from challenging the trial court's jurisdiction to consider his claims.
We conclude that appellees established the absence of any genuine issues of material fact concerning Phillips's lack of standing to pursue a remedy under the wrongful-death statute and conclusively established that Phillips was not Stewart's husband as a matter of law. Accordingly, they were entitled to summary judgment on that claim as to Phillips, both individually and as administrator of Stewart's estate.
We overrule Phillips's single issue in Cause No. 01-03-00451-CV and appellants' second, third, and fourth issues in Cause No. 01-03-00107-CV, in which they challenge rendition of summary judgment on the grounds that Phillips lacked standing under the wrongful death and survival statutes.
Survivor and Wrongful-Death Claims against Dow
In Cause No. 01-03-00107-CV, all appellants assert that the trial court erred by granting Dow's traditional and no-evidence motions for summary judgment. The order rendering summary judgment in favor of Dow recites the trial court's conclusion that Dow "did not retain any right of control over the general contractor's or the subcontractors' work sufficient to impose any duty of care." In rendering summary judgment on this basis, the trial court granted Dow's motion for traditional summary judgment.
Appellants contend that the trial court did not render summary judgment under chapter 95, that chapter 95 is inapplicable to this case, and that if Chapter 95 is applicable, their summary-judgment evidence raised fact issues that made summary judgment improper. Dow responds that it relied on chapter 95 principles in moving for summary judgment, that chapter 95 provides the exclusive remedy for claims like those presented here, and that the trial court properly rendered summary judgment in Dow's favor because appellants did not raise material fact issues.
A. Whether Chapter 95 Applies
Appellants assert that chapter 95 "played no role" in the trial court's decision to render summary judgment in Dow's favor and that chapter 95 does not apply to this case at all. Appellants are correct that the trial court's order does not specifically mention Chapter 95 by stating simply that Dow "did not retain any right of control over the general contractor's or the subcontractors' work sufficient to impose any duty of care." Appellants contend that the decision in Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 624 (Tex. 1996), precludes our addressing any other basis on which Dow relied in seeking summary judgment. To the contrary, Cincinnati Life holds that, in addition to reviewing all summary-judgment grounds on which the trial court expressly ruled, the reviewing court may, in the interests of justice, address other grounds that the movant preserved for appellate review, but on which the trial court did not rule. Id. at 625.
Appellants further contend that, because the trial court's order does not refer specifically to chapter 95, the trial court did not resolv
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