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Click here for the full text of this decision FACTS:In January 2006, Primarily Primates Inc. (PPI) and Ohio State University entered into an agreement for Ohio State to transfer nine chimpanzees and three new-world monkeys used in research at the university’s chimpanzee center to PPI. PPI in turn agreed “to accept ownership of the chimps and monkeys and to provide for their lifetime care.” The agreement listed the following as PPI’s responsibilities: “(1) PPI agrees to accept ownership of the Chimps and Monkeys and to provide for their lifetime care in a humane environment that complies with all relevant state and federal regulations. PPI will not breed the Chimps and Monkeys, will not use them in research projects of any kind, and will not euthanise any of them except for humane reasons relating to a health condition. “(2) PPI will construct facilities for the housing of the Chimps and Monkeys in accordance with the specifications set forth in Attachment A. “(3) PPI will provide personnel and other assistance in connection with the shipment of the Chimps and Monkeys to PPI, in accordance with the Shipment Schedule set forth in Attachment B. The Parties will mutually agree on a shipping date. “(4) PPI will construct a temporary enclosure to house the Chimps and Monkeys pending completion of a permanent facility. PPI acknowledges receipt of $14,944.00 from Ohio State to cover the cost of constructing the temporary enclosure.” The agreement also lists the following as Ohio State’s responsibilities: “(1) Ohio State will pay facility construction costs in the total amount of $236,483.00 as set forth in Attachment A. This amount will be paid upon execution of this Agreement. “(2) Ohio State will provide personnel and other assistance in connection with the shipment of the Chimps and Monkeys to PPI, and will pay the shipping costs in accordance with the Shipping Schedule set forth in Attachment B. “(3) Ohio State will provide an endowment to PPI in the amount of $8,000 per chimpanzee for a total of $72,000. A check for this amount, payable to Primarily Primates, Inc. will be delivered no later than 60 days after the Point of Transfer. Ohio State is not required to pay an endowment for the New World Monkeys.” Under a section titled “Ownership,” the agreement also discussed that Ohio State warranted “that it is the owner of all rights, title and interest in the Chimps and Monkeys” and “transfers all rights, title and interest in the Chimps and Monkeys to PPI.” In return, PPI agreed “to accept such transfer” effective at the “Point of Transfer.” Moreover, according to the agreement, PPI agreed that if suit is initiated against Ohio State or PPI after the point of transfer challenging Ohio State’s ownership, its authority to transfer ownership, or the validity of the ownership rights conveyed to PPI, then ownership of the chimps and monkeys would revert to Ohio State but Ohio State would be responsible for all legal fees. In February 2006, the primates were shipped from Ohio to PPI’s facilities in Texas. Shortly after their arrival, two of them died and a third escaped from a cage. On April 27, 2006, attorneys purporting to act on behalf of “Sarah, Harper, Emma, Keeli, Ivy, Sheba, Darrell, Rain, and Ulysses” (the surviving primates) filed suit against PPI, alleging breach of contract. In the alternative, they brought a declaratory judgment action, asking the trial court to declare that “the contract [between PPI and Ohio State] is void because it violates Texas law.” They also sought the primates’ removal from PPI and transfer to “an appropriate sanctuary that will provide them with appropriate care as is described in the contract.” Additionally, “[i]n the alternative, and in the unlikely event that the court does not order specific performance,” they requested the “creation” of a trust and “an award of damages in the amount of $236,483.00 (the full contract price) to be held in trust and applied towards the acquisition of shelter and care at a suitable facility.” On May 4, 2006, the attorneys attempting to act on behalf of the primates filed a Second Amended Original Petition, adding Henry Melvyn Richardson, Stephany Harris and Klaree Boose, people interested in the primates’ welfare, as plaintiffs. This amended petition retained the same claims as the original one. In response to the suit, PPI filed a motion to dismiss for lack of standing. After several hearings, the trial court dismissed the case for lack of standing. The parties denied standing appealed. HOLDING:Affirmed. On appeal, Richardson, Harris and Boose argued that even if they did not initially have standing, they gained standing when PPI agreed to the order appointing a master in chancery. The trial court appointed Charles H. Jackson III to provide recommendations to the court regarding any and all emergency relief necessary “to maintain the health, safety, and welfare of the chimpanzees and monkeys” at issue. Jackson recommended that the chimps be transferred to Chimp Haven, a Louisiana facility. The trial court then held a hearing on PPI’s motion for reconsideration of its first amended motion to dismiss for lack of standing and on whether to adopt the master’s recommendations. At the beginning of the hearing, the parties indicated that they were close to settling. PPI’s counsel, however, explained that before PPI could settle the dispute, he needed approval from PPI’s board, which was scheduled to meet on Sept. 6, 2006. Thus, the trial court agreed to wait until Sept. 7, 2006, to rule on the pending motions. On Sept. 8, 2006, the trial court signed an order granting PPI’s motion for reconsideration, granting PPI’s first amended motion to dismiss and dismissing the cause for lack of standing. Standing, the court stated, is an element of subject-matter jurisdiction that can be raised at any time. Thus, a party cannot waive standing. Second, the court noted that PPI preserved the issue for appeal by timely filing a motion to dismiss and obtaining a ruling from the trial court. The agreed order, the court noted, explicitly stated that the trial court retained authority over the master. Thus, PPI did not agree to have the master in chancery resolve the parties’ dispute; it agreed only to the appointment of the master, who would then report to the trial court, which would then either accept or reject the master’s recommendations under Texas Rule of Civil Procedure 171. Thus, the court found that the agreed order to appoint a master in chancery did not confer standing upon Richardson, Harris and Boose. Next, the court sought to determine whether the contract between PPI and Ohio State created a trust to provide for the care of the primates. After reviewing the language used in the contract, the court failed to discern an intention by Ohio State to create a trust; therefore, the court held that the contract between Ohio State and PPI did not create a trust to provide for the care of the primates. Thus, because the contract between Ohio State and PPI did not create a trust to provide for the care of the primates, Richardson, Harris and Boose lacked standing under Texas Trust Code �112.037 to bring their claims. OPINION:Angelini, J.; Stone, Angelini and Simmons, JJ.

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