Earnest Taylor and Lisa Taylor D/B/A T&S Enterprises v. Alfredo Cantu and Lynn A. Cantu

Opinion issued November 24, 2020

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00353-CV
———————————
EARNEST TAYLOR AND LISA TAYLOR D/B/A T&S ENTERPRISES,
Appellants
V.
ALFRED CANTU, LYNN A. CANTU, VELA RANCH, L.L.C., AND
BRAZORIA COUNTY, Appellees

On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Case No. 81916-CV

MEMORANDUM OPINION

Appellants Earnest Taylor and Lisa Taylor d/b/a T & S Enterprises appeal the

trial court’s orders granting summary judgment in favor of appellees Brazoria

County and Alfred and Lynn A. Cantu on the Taylors’ trespass-to-try-title and
nuisance claims and declaratory judgment. In five issues, the Taylors contend that

the trial court erred in (1) awarding attorney’s fees to the Cantus because the fee

awards are supported by legally insufficient evidence; (2) granting traditional and

no-evidence summary judgment in favor of the Cantus based solely upon the Cantus’

adoption of appellee Brazoria County’s traditional and no-evidence summary

judgment motions against the Taylors; (3) granting no-evidence summary judgment

in favor of Brazoria County because the ground on which the motion was based is

not an appropriate ground for a no-evidence summary judgment motion; (4) granting

Brazoria County’s no-evidence and traditional motions for summary judgment on

the Taylors’ trespass-to-try-title and nuisance causes of action because the Taylors

did not plead those causes of action against Brazoria County; and (5) signing the

declaratory judgment because the Taylors were no longer parties to the lawsuit at

the time the trial court signed the declaratory judgment, and appellees failed to join

them. We affirm in part and reverse and remand in part.

Background

On June 3, 2015, the Taylors filed suit against the Cantus asserting claims for

trespass-to-try-title and nuisance. In their petition, the Taylors alleged that they were

the owners of a tract of land located in Brazoria County and that the Cantus

trespassed on their property and caused damage to it, thereby creating a permanent

nuisance. The Taylors sought to recover actual damages, exemplary damages,

2
attorney’s fees, a temporary restraining order, a temporary injunction, and court

costs. On June 3, 2015, the trial court granted the Taylors’ application for a

temporary restraining order and set a hearing on their application for a temporary

injunction for June 12, 2015.

On June 10, 2015, Brazoria County intervened in the suit, seeking a temporary

and permanent injunction against the Taylors as well as declaratory relief. In its

petition, Brazoria County alleged that the property in question—a forty-foot wide

platted road/right-of-way that abuts and is perpendicular to County Road 192—was

dedicated to the public as reflected in a 1911 Plat. Brazoria County further alleged

that the Taylors, despite being previously notified that a public road/right-of-way

existed that was dedicated to the public, repeatedly attempted to block and deny the

public’s access to the road/right-of-way.

On June 22, 2015, the Cantus filed their original answer. That same day, the

trial court signed an order denying the Taylors’ request for a temporary injunction.

On October 1, 2018, the Cantus filed their original counterpetition and

applications for temporary restraining order, temporary injunction, and permanent

injunction, and for declaratory relief. In their pleading, the Cantus alleged that the

Taylors do not own the forty-foot road/right-of-way dedicated to the public. The

Cantus sought a declaration that the Taylors have no ownership interest in the platted

road/right-of-way which is, and continues to be, dedicated to the public. The Cantus

3
also requested temporary and permanent injunctive relief preventing the Taylors

from obstructing access to the property in question and interfering with, among other

things, the Cantus’ right to use the disputed property and requested an award of trial

and appellate attorney’s fees. That same day, the trial court granted the Cantus’

application for a temporary restraining order and set it for hearing on October 18,

2018.

On October 10, 2018, Brazoria County filed its second amended original

petition in intervention and requests for temporary and permanent injunctive relief

and declaratory judgment. In its amended pleading, Brazoria County alleged that

the Taylors’ property had been sold at foreclosure on December 6, 2016, and that

the current property owner was Vela Ranch, L.L.C., which Brazoria County sued as

a third-party defendant in its second amended petition. Brazoria County further

alleged that, despite a successful foreclosure, the Taylors continued to occupy the

property and obstruct use of the public road/right-of-way. Brazoria County sought

injunctive relief preventing the Taylors from interfering with the public’s right to

use the road/right-of-way as well as a declaratory judgment that the Taylors have no

ownership interest in the title to the road in question and that the road/right of way

is public.

On October 18, 2018, the trial court held a temporary injunction hearing. At

the conclusion of the hearing, the trial court signed a temporary injunction order

4
granting injunctive relief against the Taylors. The trial court found, among other

things, that the property in question “is a 40’ wide platted road dedicated to the

public as reflected in a 1911 Plat,” and that the Taylor had “obstructed . . . access”

to the dedicated public right-of-way, “interfered with” others’ “use of and access to”

it, and failed to provide evidence to show “they owned any property adjoining” it.

The trial court further ordered the Taylors to “refrain from obstructing access to” the

dedicated public right-of-way, “refrain from interfering with Defendants’ right to

use” it, “refrain from interfering with the construction of [the Cantus’] house …

[and] the installation of electrical poles and utilities within” the dedicated public

right-of-way.1

On November 29, 2018, Brazoria County filed a hybrid traditional and no-

evidence motion for summary judgment against the Taylors. In its motion, Brazoria

County asserted that the Taylors do not own the dedicated public right-of-way or

any adjoining property and, therefore, they lack standing. It further argued that the

Taylors’ lack of standing negated an essential element of their trespass-to-try-title

and nuisance claims. The Cantus filed a written adoption of Brazoria County’s

summary judgment motion on November 30, 2018. On December 12, 2018, the

1
The Taylors filed an interlocutory appeal of the trial court’s temporary injunction
order which this Court dismissed as moot on June 20, 2019. See Taylor v. Cantu,
No. 01-18-01027-CV, 2019 WL 2528202, at *2 (Tex. App.—Houston [1st Dist.]
June 20, 2019, no pet.).
5
Taylors filed their summary judgment response. On December 17, 2018, Brazoria

County filed objections, motion to strike inadmissible evidence, and summary

judgment reply.

On December 21, 2018, the trial court signed three orders (1) sustaining

Brazoria County’s objections and striking the objected-to evidence; (2) granting

Brazoria County’s traditional and no-evidence summary judgment motions; and (3)

granting the Cantus’ traditional and no-evidence summary judgment motions and

awarding them $15, 300 in trial attorney’s fees, $20,000 in appellate attorney’s fees

if the Taylors unsuccessfully appeal to the court of appeals, and $20,000 if the

Taylors unsuccessfully appeal the order to the Texas Supreme Court. The three

orders dismissed the Taylors with prejudice.

On January 18, 2019, the Taylors filed a motion for new trial and,

alternatively, a motion for reconsideration of the final summary judgments granted

in favor of Brazoria County and the Cantus. The motion was subsequently overruled

by operation of law.

On March 6, 2019, Brazoria County and the Cantus filed a motion for

summary judgment—declaratory judgment. They requested a declaration that (1)

the dedicated public right-of-way was dedicated to the public; (2) it remains

dedicated to the public; (3) it is forty-feet wide; (4) no one shall obstruct others’

access to and use of it; and (5) a fence is located within the dedicated public right-

6
of-way, impeding the public’s access to and use of it. The Taylors filed a response

and objection to the motion for summary judgment—declaratory judgment on April

5, 2019.

On April 9, 2019, the trial court entered an order striking the Taylors’ late

response and granting declaratory judgment. This appeal followed.

Issues Pertaining to Cantus

In their first issue, the Taylors contend that the trial court erred in awarding

attorney’s fees to the Cantus because the fee awards are supported by legally

insufficient evidence. In their second issue, they argue that the trial court erred in

granting traditional and no-evidence summary judgment in favor of the Cantus based

solely upon the Cantus’ adoption of Brazoria County’s summary judgment motion.

A. Attorney’s Fees

In its December 21, 2018 order, the trial court awarded to the Cantus $15,300

in reasonable and necessary attorney’s fees, $20,000 in reasonable and necessary

attorney’s fees if the Taylors unsuccessfully appeal the order to the court of appeals,

and $20,000 in reasonable and necessary attorney’s fees if the Taylors

unsuccessfully appeal the order to the Texas Supreme Court. Citing the Texas

Supreme Court’s recent decision in Rohrmoos Venture v. UTSW DVA Healthcare,

LLP, 578 S.W.3d 469 (Tex. 2019), the Taylors contend that all three awards of trial

and appellate attorney’s fees are supported by legally insufficient evidence.

7
 The Cantus sought attorney’s fees pursuant to the Uniform Declaratory

Judgments Act (“UDJA”). Section 37.009 of the Act provides that “[i]n any

proceeding under this chapter, the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE

§ 37.009. The UDJA “entrusts attorney fee awards to the trial court’s sound

discretion, subject to the requirements that any fees awarded be reasonable and

necessary, which are matters of fact, and to the additional requirements that fees be

equitable and just, which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19,

21 (Tex. 1998). A trial court’s award of attorney’s fees under the UDJA is reviewed

for an abuse of discretion. See id. at 20–21. A trial court abuses its discretion by

awarding fees when there is insufficient evidence that the fees were reasonable and

necessary, or when the award is inequitable or unjust. Id. at 21.

To determine the amount of attorney’s fees to be awarded, Texas follows the

lodestar method, which is essentially a short-hand version of the Arthur Andersen

factors.2 Rohrmoos Venture, 578 S.W.3d at 496. The lodestar method requires the

fact finder to determine the amount of reasonable attorney’s fees by first determining

the reasonable hours spent by counsel in the case and the reasonable hourly rate for

counsel’s work. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012).

2
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
8
The fact finder then multiplies the number of hours counsel worked on the case by

the applicable rate, the product of which is the base fee or lodestar. Id.

It is the fee claimant’s burden to provide sufficient evidence of both the

reasonable hours worked and the reasonable hourly rate. Rohrmoos Venture, 578

S.W.3d at 498. Sufficient evidence includes, at a minimum, evidence of (1)

particular services performed; (2) who performed those services; (3) approximately

when the services were performed; (4) the reasonable amount of time required to

perform the services; and (5) the reasonable hourly rate for each person performing

such services. See id.; see also City of Laredo v. Montano, 414 S.W.3d 731, 736

(Tex. 2013) (per curiam) (“In El Apple, we said that a lodestar calculation requires

certain basic proof, including itemizing specific tasks, the time required for those

tasks, and the rate charged by the person performing the work.”).

Conclusory or general testimony devoid of specifics will not support a fee

award. The Supreme Court of Texas has consistently held that evidence of

attorney’s fees is insufficient under the lodestar method when counsel fails to

indicate how the aggregate time spent in the case was devoted to any particular tasks

or category of tasks. See Rohrmoos Venture, 578 S.W.3d at 505; Long v. Griffin,

442 S.W.3d 253, 255 (Tex. 2014) (per curiam); Montano, 414 S.W.3d at 736; El

Apple, 370 S.W.3d at 763.

9
 We now consider the Cantus’ evidence offered in support of their request for

attorney’s fees. To their summary judgment motion, the Cantus attached an affidavit

from their attorney, Justin R. Gilbert, who attested to the Cantus’ reasonable and

necessary attorney’s fees. Gilbert testified that he spent fifty-one hours prosecuting

this suit by (1) investigating claims; (2) drafting pleadings and responses; (3)

collecting evidence; (4) preparing for and attending hearings; and (5) taking other

necessary actions to perform his legal services properly. He testified that his hourly

billing rate is $300, and that, based on the fee arrangement with the Cantus, the

Cantus incurred attorney’s fees in the amount of $15,300 through the date of the

submission of the summary judgment motion. Gilbert stated that, in his opinion, the

reasonable value of the attorney’s fees necessarily incurred by the Cantus were as

follows: (1) $15,300 for representing the Cantus in trial and through entry of

judgment; (2) $20,000 for representing the Cantus on appeal to the Court of Appeals;

and (3) $20,000 for representing the Cantus on appeal to the Supreme Court of

Texas. He further testified that the fees charged in this case were those customarily

charged in this area for the same or similar services for an attorney with his

experience, reputation, and ability, considering the matters in controversy, the

amount in controversy, and the limitations imposed.

As in El Apple and Rohrmoos Venture, Gilbert did not indicate how the hours

that he spent in the aggregate were devoted to any particular task or category of

10
tasks. See El Apple, 370 S.W.3d at 763–65; Rohrmoos Venture, 578 S.W.3d at 505.

Instead, he stated that he spent fifty-one hours performing various categories of

activities related to the case. “While all this is relevant, it provides none of the

specificity needed for the trial court to make a meaningful lodestar determination.”

El Apple, 370 S.W.3d at 763. Moreover, Gilbert did not submit time records or other

documentary evidence to substantiate or explain how the hours were spent, when the

services were performed, or the reasonable amount of time necessary to perform

each service. See El Apple, 370 S.W.3d at 763 (“Without at least some indication of

the time spent on various parts of the case, a court has little basis upon which to

conduct a meaningful review of the fee award.”). Simply put, Gilbert’s testimony is

too general to establish that the requested fees and expenses were reasonable and

necessary. See Rohrmoos Venture, 578 S.W.3d at 505. Furthermore, Gilbert’s

affidavit provides no guidance to determine the factual basis for his testimony that

$20,000 in appellate attorney’s fees for work in the court of appeals and $20,000 in

attorney’s fees and expenses for work in the Texas Supreme Court is reasonable and

necessary.

In response, the Cantus argue that El Apple and Rohrmoos Venture were

complicated cases involving hundreds of hours of work and the attorney’s fee awards

were substantially higher in those cases than the fees at issue here. They reason that

“[g]iven the relatively few hours of attorney time that were required” in this case,

11
Gilbert’s affidavit testimony was legally sufficient to support the awards. However,

the holdings in El Apple or Rohrmoos Venture are not limited to high-dollar,

complex litigation, and the Cantus have directed us to no authority for such a

proposition.

We hold that the Cantus failed to conclusively prove the reasonableness and

necessity of their trial and appellate attorney’s fees. Because the evidence was

insufficient to support the fee awards, we sustain the Taylors’ first issue.

B. Adoption of Summary Judgment Motion

The Taylors contend that the trial court erred in granting traditional and no-

evidence summary judgment in favor of the Cantus based solely upon the Cantus’

adoption of Brazoria County’s traditional and no-evidence summary judgment

motions against the Taylors.

Texas Rule of Civil Procedure 58 allows a party to adopt another party’s

pleadings by reference. TEX. R. CIV. P. 58. The rule provides, in relevant part, that

“statements in a pleading may be adopted by reference in a different part of the same

pleading or in another pleading or in any motion. . . .” Id. Rule 58 promotes

efficiency by providing a mechanism to avoid the excessive reproduction of exhibits

where the co-parties’ claims or defenses rely on the same evidence. Ahmed v. Shah,

No. 01-13-00995-CV, 2015 WL 222171, at *3 (Tex. App.—Houston [1st Dist.]

2015, no pet.) (mem. op.) (citing Lockett v. HB Zachry Co., 285 S.W.3d 63, 73 (Tex.

12
App.—Houston [1st Dist.] 2009, no pet.)). “Because Rule 58 is a procedural tool

designed to promote efficient case management, we review the trial court’s use of it

for an abuse of discretion.” Ahmed, 2015 WL 222171, at *3 (citing Allison v. Ark.

La. Gas Co., 624 S.W.2d 566, 568 (Tex. 1981)). Parties routinely use Rule 58 in

multiple-party lawsuits to adopt and join in the pleadings and motions of their co-

parties. Id.

The Taylors acknowledge that courts of appeals, including this one, “have

recognized adoption of a co-party’s motion for summary judgment as a procedurally

legitimate practice.” Lockett, 285 S.W.3d at 72; Chapman v. King Ranch, Inc., 41

S.W.3d 693, 700 (Tex. App.—Corpus Christi 2001), rev’d on other grounds, 118

S.W.3d 742 (Tex. 2003); see also e.g., Sanchez v. Deutsche Bank Nat’l Trust Co.,

No. 14–13–00272–CV, 2015 WL 3609100, at *5 (Tex. App.—Houston [14th Dist.]

June 9, 2015, no pet.) (mem. op.); Luna v. Luna, No. 13–10–00455–CV, 2011 WL

3667465, at *2 (Tex. App.—Corpus Christi Aug. 22, 2011, no pet.) (mem. op.)

(citing Lockett and Chapman for same proposition). Since Lockett, we have

reaffirmed recognition that Texas Rule of Civil Procedure 58 permits a party to adopt

a co-party’s summary judgment motion by reference. See Ahmed, 2015 WL 222171,

at *3; Mallory v. Arctic Pipe Inspection Co., Inc., No. 01-12-00979-CV, 2014 WL

701123, at *6 (Tex. App.—Houston [1st Dist.] Feb. 20, 2014, no pet.) (mem. op.)

(noting “the process of adoptive summary judgment is well-established”).

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 Nonetheless, the Taylors urge us to adopt the reasoning of the Fort Worth

Court of Appeals in Camden Machine & Tool, Inc. v. Cascade Co., 870 S.W.2d 304

(Tex. App.—Fort Worth 1993, no writ). There, the court held that a summary

judgment motion that incorporated by reference grounds from the summary

judgment motions of co-defendants was insufficient as a matter of law. See id. at

310. In reaching its conclusion, the Camden court noted that the Texas Supreme

Court in McConnell v. Southside Independent School District stated that a summary

judgment motion must stand or fall on its own and the motion itself must assert the

grounds relied upon. See id. (citing McConnell, 858 S.W.2d 337, 342–43 (Tex.

1993)). We decline to do so.

Under Rule 58, a party may adopt and incorporate by reference as its grounds

for summary judgment the grounds alleged by a co-party when those parties share

“a community of interest and identical defenses” to their co-party’s claims. Lockett,

285 S.W.3d at 72–73. Here, the trial court properly allowed the Cantus to adopt by

reference Brazoria County’s traditional and no-evidence motions for summary

judgment because they share Brazoria County’s interest in the dispute, i.e.,

defending the 1911 dedication of the land as a road and the right of the public—

including the Cantus—to use the road as Brazoria County asserted in its summary

judgment motions and adopted by the Cantus pursuant to Rule 58. The arguments

and evidence raised in Brazoria County’s summary judgment motions were equally

14
applicable to the Cantus, and the Cantus’ adoption of Brazoria County’s motion

provided the Taylors fair notice of the summary judgment grounds. See id. at 73

(citing Chapman, 41 S.W.3d at 699). We hold that the Cantus’ adoption of Brazoria

County’s motion for summary judgment was proper. We overrule the Taylors’

second issue.

Issues Pertaining to Brazoria County

In their third issue, the Taylors contend that the trial court erred in granting

no-evidence summary judgment in favor of Brazoria County because the ground on

which the motion was based is not an appropriate ground for a no-evidence summary

judgment motion. In their fourth issue, they argue the trial court erred in granting

Brazoria County’s no-evidence and traditional motions for summary judgment on

the Taylors’ trespass-to-try-title and nuisance causes of action because the Taylors

did not plead those causes of action against Brazoria County. In their fifth issue,

they assert that the trial court erred in signing the declaratory judgment because the

Taylors were no longer parties to the lawsuit at the time the trial court signed the

declaratory judgment and appellees failed to join them.

A. Propriety of Jurisdictional Challenge in No-Evidence Summary
Judgment Motion

The Taylors contend that the trial court erred in granting Brazoria County’s

no-evidence motion for summary judgment because a no-evidence summary

15
judgment may not be granted on the issue of standing as a matter of law.3 In

response, Brazoria County argues that the issue is moot because the Taylors do not

dispute that the trial court properly granted Brazoria County’s traditional summary

judgment on this issue. It further argues that, even if they had, the trial court properly

granted Brazoria County’s traditional summary judgment motion because the

evidence demonstrates that the Taylors do not own the dedicated road/right-of-way

and they no longer own any property adjoining it because the property was sold to

the third-party defendant, Vela Ranch, in a foreclosure sale.

In presenting this issue in their main brief, the Taylors relied on our opinion

in Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785 (Tex. App.—Houston [1st

Dist.] 2012, no pet.), in which we held that “a court’s subject-matter jurisdiction

cannot be challenged in a no-evidence motion for summary judgment.” Id. at 794.

However, in their supplemental reply brief, the Taylors acknowledge that the Texas

Supreme Court has since decided the issue in a contrary manner. In Town of Shady

Shores v. Swanson, 590 S.W.3d 544 (Tex. 2019), the Court held that “[b]ecause

jurisdiction may be challenged on evidentiary grounds and the burden to establish

jurisdiction, including waiver of a government defendant’s immunity from suit, is

on the plaintiff, we see no reason to allow jurisdictional challenges via traditional

3
Standing is a component of subject matter jurisdiction and is a constitutional
prerequisite to maintaining a lawsuit under Texas law. Tex. Ass’n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 443–45 (Tex. 1993).
16
motions for summary judgment but to foreclose such challenges via no-evidence

motions.” Id. at 551. We agree with the Taylors that while the Court addressed the

issue specifically in the context of governmental immunity, the opinion is written

broadly enough to encompass all challenges to subject-matter jurisdiction. See id.

In accordance with the holding in Town of Shady Shores, we overrule the

Taylor’s third issue.4

B. Brazoria County’s Summary Judgment Motion and Intervention in Suit

The Taylors argue that the trial court erred in granting Brazoria County’s

no-evidence and traditional motions for summary judgment on the Taylors’ trespass-

to-try-title and nuisance causes of action because the Taylors did not plead those

causes of action against Brazoria County. In response, Brazoria County argues that

the trial court properly dismissed the Taylors’ claims because their lack of standing

negated an essential element of their claims. It further argues that, once it

intervened, it could, and did, defeat the Taylors’ claims as if they had been asserted

against the county.

1. Summary Judgment Evidence

In its summary judgment motion, Brazoria County argued that the Taylors do

not own the dedicated public right-of-way or any adjoining property and, therefore,

4
We further note that the Taylors do not contend that the trial court erred in granting
Brazoria County’s traditional motion for summary judgment on the issue of
standing.
17
they lack standing. It argued that the Taylors’ lack of standing negates an essential

element of their trespass-to-try-title and nuisance claims. To its motion, Brazoria

County attached, among other things, the following evidence: (1) the 1911 Plat,

Volume 2, Page 67 and deed records; (2) Affidavit of Chuck Davis, professional

land surveyor, incorporating his 2015 Land Survey; (3) Trustee’s Deed, recorded as

document number 2016062057 in the Brazoria County Deed Records; and (4)

Affidavit of Jorge Reyna, Development Coordinator, Brazoria County Engineer

Department.

The 1911 plat shows that the owners subdivided 699.8 acres, including the

Taylors’ property, “as shown by this plat with streets and roads as shown therein

which streets and roads are dedicated for use as Public ways for pedestrians and

vehicles and for the convenience of the public.” In Davis’s affidavit, which includes

a copy of his 2015 survey, he states that based on his review of the recorded plat,

relevant deed records, and prior surveys, and after walking, surveying and finding

the survey monuments placed by prior surveyors, “it is my opinion that the platted

road/public right-of-way, which is the subject of the above-entitled and numbered

cause, is a recognized platted road . . . that is 40 feet wide.” In Reyna’s affidavit,

he states that “[b]ased on the language from the 1911 Plat, the platted road/public

right-of-way is a road that is dedicated for the convenience of the public,” Brazoria

County has not accepted the platted road/public right-of-way into its road system,

18
which means it does not maintain the platted road/public right-of-way, yet it remains

dedicated to the public unless or until it is abandoned by a Commissioners Court

order,” and “Brazoria County Commissioners Court has not abandoned the platted

road/public right-of-way.” The Trustee’s Deed shows that the Taylors’ property

adjoining the dedicated public right-of-way was sold in a foreclosure sale to Vela

Ranch on December 6, 2016, after the Taylors defaulted on their mortgage. The trial

court’s October 18, 2018, temporary injunction order states that the dedicated public

right-of-way is dedicated to the public, is forty-feet wide, and is not owned by the

Taylors.

In their summary judgment response, the Taylors argued that although the

1911 plat identifies the thirty-foot dedicated road,5 the evidence does not show that

the road is a right-of-way that belongs to Brazoria County, or that Brazoria County

accepted the dedicated road, maintained the road, or exercised dominion or control

over the dedicated right-of-way for which they intervened. They further argued that

even if the trial court found that Brazoria County was a party in interest in the case,

Brazoria County produced no evidence demonstrating that the alleged right-of-way

was forty-feet wide and that, having intervened, Brazoria County sought to unjustly

enrich itself with an additional ten feet of the property. Brazoria County filed

5
The Taylors disputed Brazoria County’s contention that the platted road was
forty-feet wide and instead argued that it was only thirty-feet wide.
19
objections to the Taylors’ summary judgment evidence and a summary judgment

reply.

On December 21, 2018, the trial court signed three orders (1) sustaining

Brazoria County’s objections to the Taylors’ evidence and striking the evidence in

question; (2) granting Brazoria County’s traditional and no-evidence summary

judgment motions; and (3) granting the Cantus’ traditional and no-evidence

summary judgment motions and awarding them attorney’s fees. The trial court’s

orders dismissed the Taylors with prejudice.

2. Taylors’ Lack of Standing

“Standing is a threshold requirement to maintaining a lawsuit.” See Heckman

v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012) (citations omitted) (“Standing

is a constitutional prerequisite to suit. A court has no jurisdiction over a claim made

by a plaintiff who lacks standing to assert it.”). To establish standing in Texas, a

plaintiff must allege “a concrete injury . . . and a real controversy between the parties

that will be resolved by the court.” Id. at 154. Specifically, the plaintiff must allege

a threatened or actual injury—it may not be hypothetical. Farmers Tex. Co. Mut.

Ins. Co. v. Beasley, 598 S.W.3d 237, 241 (Tex. 2020) (citing Allstate Indem. Co. v.

Forth, 204 S.W.3d 795 (Tex. 2006) (per curiam).

To prevail on a trespass-to-try title claim, a plaintiff must “(1) prove a regular

chain of conveyances from the sovereign, (2) establish superior title out of a common

20
source, (3) prove title by limitations, or (4) prove title by prior possession coupled

with proof that possession was not abandoned.” Lance v. Robinson, 543 S.W.3d

723, 735 (Tex. 2018) (citing Plumb v. Stuessy, 617 S.W.2d 667, 668 (Tex. 1981)).

Trespass-to-try-title actions “involve detailed pleading and proof requirements.” Id.

The law of “nuisance” seeks to balance a property owner’s right to use his

property “as he chooses in any lawful way” against his duty not to use it in a way

that “injure[s] another.” Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d

580, 596 (Tex. 2016) (“To support a claim for private nuisance, the condition the

defendant causes may interfere with a wide variety of the plaintiffs’ interests in the

use and enjoyment of their property.”) “The common thread through Texas nuisance

jurisprudence is that the defendant has invaded the plaintiff’s property by some

physical means, creating a ‘condition’ that substantially interferes with the plaintiff’s

use and enjoyment of its land.” See Amini v. Spicewood Springs Animal Hosp., LLC,

No. 03-18-00272-CV, 2019 WL 5793115, at *11 (Tex. App.—Austin Nov. 7, 2019,

no pet.) (mem. op.) (citing Crosstex, 505 S.W.3d at 593, 595–600). Thus, the

element of ownership is inherent in both trespass and nuisance causes of action.

The summary judgment evidence shows that the Taylors do not own, nor have

they ever owned, the dedicated public right-of-way. The 1911 plat and recorded

deeds establish that the dedicated public right-of-way is dedicated to the public and

that it was never conveyed to the Taylors’ predecessors-in-title or to the Taylors.

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Davis’s and Reyna’s affidavits demonstrate that the dedicated public right-of-way is

a forty-foot wide recognized platted road, and that it remains dedicated to the public,

despite the fact that Brazoria County has not accepted the platted road/public

right-of-way into its road system (meaning it does not maintain the platted

road/public right-of-way), because Brazoria County Commissioners Court has not

abandoned the platted road/public right-of-way. Further, the Trustee’s deed shows

that the Cantus and Vela Ranch, not the Taylors, own the relevant property adjoining

the dedicated public right-of-way. Because the summary judgment evidence

establishes that the Taylors never owned the dedicated public right-of-way, and in

fact no longer own any adjoining property,6 Brazoria County negated an essential

6
In their reply brief, the Taylors point out that the Trustee’s deed was signed and
filed in the real property records in December 2016. They argue that this date is
significant because the Taylor’s petition, which was filed on June 3, 2015, claimed
damages for conduct and harm that was alleged to have occurred “[o]n or about May
1, 2015.” The Taylors complained that, as of that date, the Cantus caused physical
damage to their property, trespassed on their property, and created a nuisance on
their property. The Taylors argue that “nothing about their losing record title to the
property at issue in December 2016 stripped them of their legal standing to seek
property damages from May 1, 2015 to December 2016.” However, this argument
ignores the fact that the Taylors’ nuisance and trespass claims are premised on their
contention that they own the platted road/public right-of-way and are entitled to
prevent the Cantus and others from accessing it. To its second amended petition in
intervention, Brazoria County attached the affidavit of Stephanie Bradford, the
GIS/Data Technician and Right of Way Agent for the Brazoria County Engineering
Department. In her affidavit, Bradford testified that in Summer 2014, the Taylors
came to her office regarding the platted road/public right-of-way. She stated that
Mr. Taylor claimed that the road was his alone and that the landowners behind his
property had no right to use it. Despite being shown the plat and its dedication
language, and the fact that the Taylors’ deed itself references the plat, the Taylors
repeatedly blocked access to the platted road/public right-of-way by various means,
22
element of the Taylors’ trespass and nuisance claims. See Lance, 543 S.W.3d at 736

(noting that “the plaintiff in” a trespass “action must establish superior title to the

property”); Crosstex, 505 S.W.3d at 590–91 (noting private nuisance claim arises

when condition caused by defendant interferes with plaintiff’s interest in use and

enjoyment of its property).

The Taylors also argue that the trial court erred in granting Brazoria County’s

traditional and no-evidence motions for summary judgment because Brazoria

County sought and received summary judgment as to issues that were entirely causes

of action that existed between the Cantus and Taylors and not between the Taylors

and Brazoria County. They argue that, under Texas Rule of Civil Procedure 166a,

Brazoria County is not a “party against whom a claim, counterclaim, or cross-claim

is asserted or a declaratory judgment is sought,” and therefore Brazoria County could

not move for summary judgment with respect to claims pleaded only against the

Cantus. See TEX. R. CIV. P. 166a(b). Brazoria County contends that it intervened in

the Taylors’ lawsuit because the platted road/public right-of-way was dedicated to

the public and it has a duty to protect the public’s ability to access the road.

including a chain, cable, gate, and/or tractors or vehicles, as well as erecting a fence
and gate in the platted road/public right-of-way. As discussed above, the summary
judgment evidence establishes that the Taylors do not own, nor have they ever
owned, the platted road/public right-of-way.
23
 Texas Rule of Civil Procedure 60 authorizes a party with a justiciable interest

in a pending lawsuit to intervene in the suit as a matter of right. Nghiem v. Sajib,

567 S.W.3d 718, 721 (Tex. 2019). A person or entity has the right to intervene if

the intervenor could have brought the same action, or any part thereof, in his own

name, or, if the action had been brought against him, he would be able to defeat

recovery, or some part thereof. Guar. Fed. Sav. Bank v. Horseshoe Operating Co.,

793 S.W.2d 652, 657 (Tex. 1990).

When lots are sold that reference a plat or dedicated streets, an irrevocable

dedication to the public is created, even if the governmental entity never formally

accepted the dedication. See McLennan Cty. v. Taylor, 96 S.W.2d 997, 998–99 (Tex.

Civ. App. 1936, writ dism’d) (determining that once plat showing subdivision of

lots, blocks, and streets was filed and conveyances were made referencing plat, “it

amounted to a complete and irrevocable dedication of the streets shown thereon to

public use . . . no formal acceptance of the dedication by the county or other

organized representative of the public was necessary”); Coombs v. City of Houston,

35 S.W.2d 1066, 1068-69 (Tex. Civ. App. 1930) (concluding that city did not need

to accept dedication because “the right which vested in the purchasers of the different

lots, and through them the public, was irrevocable”); Chappell Hill Bank v. Smith,

257 S.W.3d 320, 329 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Adams

v. Rowles, 228 S.W.2d 849, 851 (Tex. 1950) (holding “conveyance of lots according

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to a plat or plan of a town implies to the purchasers ‘that the streets and other public

places, indicated as such upon the plan, shall be forever open to the use of the

public’”)). The dedication remains forever vested in the county, which can develop

the platted road/public right-of-way at any time it becomes necessary to do so to

satisfy the public’s needs. See Coombs, 35 S.W.2d at 1068.

Here, the 1911 plat dedicated to the public the platted road/public right-of-

way and the deeds, including the Taylors’ deed, reference the plat, its dedicated

streets, and its lots. Owners of each tract of land along the platted road/public right-

of-way have the right to utilize it to access their respective tracts of land. Brazoria

County has a justiciable interest in the Taylors’ lawsuit because the Taylors

prevented the public’s ability to use the platted road-public right-of-way. Because

it could defeat the Taylors’ claims as if those claims had been asserted against it,

Brazoria County had a right to intervene in the suit. See Guar. Fed. Sav. Bank, 793

S.W.2d at 657.

The trial court did not err in granting Brazoria County’s traditional motion for

summary judgment because it negated an essential element of the Taylors’ trespass-

to-try-title and nuisance claims. We overrule the Taylors’ fourth issue.

C. Declaratory Judgment

In their fifth issue, the Taylors contend that the trial court erred in signing the

declaratory judgment because they have or claim an interest in the real property that

25
is the subject of the declaratory judgment, and they were no longer parties to the

lawsuit at the time the trial court signed the declaratory judgment.

On December 21, 2018, the trial court granted Brazoria County’s and the

Cantus’ no-evidence and traditional motions for summary judgment on the Taylors’

trespass-to-try-title and nuisance causes of action based on the Taylors’ lack of

standing and dismissed the Taylors from the case. On March 6, 2019, Brazoria

County and the Cantus filed a motion for summary judgment—declaratory judgment

requesting a declaration that (1) the dedicated public right-of-way was dedicated to

the public; (2) it remains dedicated to the public; (3) it is forty-feet wide; (4) no one

shall obstruct others’ access to and use of it; and (5) a fence is located within the

dedicated public right-of-way, impeding the public’s access to and use of it. The

Taylors filed a response and objection to the motion.

On April 9, 2019, the trial court entered an order striking the Taylors’ late

response and granting Brazoria County’s and the Cantus’ declaratory judgment. In

the order, which contains numerous findings of fact, the trial court ordered that

(i) The Taylors shall refrain from obstructing access to the Dedicated
Public ROW, and the Taylors shall refrain from interfering with the
public access to and use of the Dedicated Public ROW.

(ii) The Taylors shall remove all obstructions impeding the public’s
access to and use of the Dedicated Public ROW, including the
southernmost fence they placed within the boundaries of the Dedicated
Public ROW.

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 (iii) If, after receiving written notice of this Declaratory Judgment, the
Taylors fail to promptly remove all said obstructions, any party to this
case or any other interested party is AUTHORIZED TO
IMMEDIATELY REMOVE all obstructions impending the public’s
access to and use of the Dedicated Public ROW, including the
southernmost fence the Taylors placed within the boundaries of the
Dedicated Public ROW.

(iv) The remaining parties in this case shall be allowed such writs and
processes as may be needed for the enforcement of this Judgment.

This PERMANANENT AND FINAL JUDMGENT finally disposes
of all parties and all claims in this case.

Section 37.006(a) of the Texas Civil Practice and Remedies Code provides,

in relevant part: “When declaratory relief is sought, all persons who have or claim

any interest that would be affected by the declaration must be made parties.” TEX.

CIV. PRAC. & REM. CODE 37.006(a). The Taylors argue that, based upon this

language, the trial court erred in adjudicating the Taylors’ real property rights

because the trial court had previously declared that the Taylors were no longer

parties to the lawsuit as of December 21, 2018. They argue that their dismissal from

the suit denied them any meaningful opportunity to contest the trial court’s April 9

declaratory judgment order adjudicating their property rights.

“When a party asserts section 37.006(a) as a bar to any judgment favoring a

party who has failed to join all necessary parties to his or her suit, Rule of Civil

Procedure 39’s standards govern.” Amboree v. Bonton, 575 S.W.3d 38, 44 (Tex.

App.—Houston [1st Dist.] 2019, no pet.) (citing Brooks v. Northglen Ass’n, 141

27
S.W.3d 158, 162–64 (Tex. 2004) and Clear Lake City Water Auth. v. Clear Lake

Utils. Co., 549 S.W.2d 385, 390 (Tex. 1977)). Rule 39(a)(2) relates to a non-joined

party who:

claims an interest relating to the subject of the action and is so situated
that the disposition of the action in his absence may (i) as a practical
matter impair or impede his ability to protect that interest or (ii) leave
any of the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest.

TEX. R. CIV. P. 39(a).

“There is no litmus paper test for determining whether a particular party is

indispensable” under Section 37.006(a) and Rule 39. Amboree, 575 S.W.3d at 45

(quoting Sage St. Assocs. v. Fed. Ins. Co., 43 S.W.3d 100, 104 (Tex. App.—Houston

[1st Dist.] 2001, pet. denied). We therefore “must examine the surrounding facts

and circumstances of the case to determine if the interests of an absent party will be

prejudiced and if an adequate judgment can be rendered for the parties before the

court.” Id. (quoting Sage St. Assocs., 43 S.W.3d at 104). Rarely is a failure to

comply with Section 37.006(a) a jurisdictional bar. See Brooks, 141 S.W.3d at 163

(“[I]t would be rare indeed if there were a person whose presence was so

indispensable in the sense that his absence deprives a court of jurisdiction. . . . .”)

(quoting Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974)).

Instead, a failure to comply with Section 37.006(a) usually triggers an analysis of

28
“whether the trial court should have refused to enter a judgment” until the necessary

parties are joined. See id. at 162 (citing Cooper, 513 S.W.2d at 204).

As an initial matter, we note that the Taylors did not object to not being

rejoined as a party in their response to the declaratory judgment or in any other

motion. See TEX. R. APP. P. 33.1. Having failed to do so, they waived any joinder

argument on appeal. See id.; Brooks, 141 S.W.3d at 163 (concluding party waived

joinder argument by failing to raise it in trial court).

Citing our decision in Amboree, Brazoria County contends that even if the

Taylors could claim a theoretical “interest” in the dedicated public right-of-way via

Vela Ranch’s property,7 the trial court properly granted the declaratory judgment

because the Taylors were not indispensable parties. In Amboree, a former charter

school employee filed suit against the school’s board and officers for, in part,

declaratory relief. 575 S.W.3d at 40–41. The board and officers argued that the

school, which was not served or named as a party, should have been joined as “an

indispensable party.” Id. at 41-42. After an extensive review of the relevant case

law concerning joinder requirements, this Court concluded that the school was not

an indispensable party under Section 37.006(a) and Rule 39. See id. at 51. In

reaching this conclusion, we noted that “this is not a situation where a judgment

7
Brazoria County assumes “[the Taylors] claim this theoretical ‘interest’ via Vela
Ranch’s property [] as [the Taylors] failed to point to anything in the record that
describes or defines this ‘interest.’”
29
would adversely affect the interests of absent parties who had no opportunity to

assert their rights,” and that the school’s board and officers could adequately protect

the school’s interests before the trial court upon remand. Id. at 50 (quotations

omitted).

Here, the Taylors were not an absent indispensable party because they had an

opportunity to assert their rights in the trial court (including in their response to the

declaratory judgment), which they did from the time they filed their lawsuit in 2015.

Further, the Taylors’ claimed interest was subsumed and inferior to Vela Ranch’s

superior interest in its own property and therefore could be represented by Vela

Ranch, who did not oppose the declaratory judgment. Finally, as Brazoria County

points out, even if the Taylors later purchase Vela Ranch’s property, it would be

subject to the declaratory judgment and the interest of their predecessors-in-title

who, as evidenced by the 1911 plat and recorded deeds, never owned the public

right-of-way. Lance, 543 S.W.3d at 740-43 (agreeing that defendants could not

claim ownership of property and, thus, could not prevent neighbors from accessing

it because predecessors-in-title had no such ownership to convey and therefore

defendants lacked standing to assert claim).

Having concluded that the Taylors are not an indispensable party, we hold that

the trial court did not err in granting declaratory judgment. We overrule the Taylors’

fifth issue.

30
 Conclusion

We reverse in part the trial court’s December 21, 2018 summary judgment

order in the Cantus’ favor awarding them trial and appellate attorney’s fees, and we

remand the case to the trial court solely for redetermination of attorney’s fees and

expenses in accordance with this opinion. We affirm the remainder of the summary

judgment. We affirm the trial court’s December 21, 2018 summary judgment order

in Brazoria County’s favor. We further affirm the trial court’s April 9, 2019 order

granting declaratory judgment.

Russell Lloyd
Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.

31