Reversed and Rendered and Memorandum Opinion filed October 13, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00146-CV
SUZANNE S. MUNDY, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF JEAN LOUISE SWINDELL, J. ROBERT SWINDELL,
AND ROY MUNDY, Appellants
V.
ENE, INC., Appellee
On Appeal from the 434th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 18-DCV-251265
MEMORANDUM OPINION
Appellants Suzanne S. Mundy, as Personal Representative for the Estate of
Jean Louise Swindell, J. Robert Swindell, and Roy Mundy challenge a judgment
declaring void two deeds purporting to transfer property from the estate of Suzanne’s
and Robert’s mother, Jean Louise Swindell, to Suzanne. Appellee ENE, Inc.
obtained summary judgment on its declaratory judgment claim seeking to declare
the deeds void.
Because ENE’s substantive claim is a dispute over title to real property, the
claim must be brought as a trespass-to-try-title claim, instead of one for declaratory
judgment. We therefore conclude that ENE failed to establish its entitlement to
summary judgment, and we reverse and render a take-nothing judgment in
appellants’ favor on ENE’s declaratory judgment claim.
Background
ENE and Suzanne own adjacent tracts of real property in Fort Bend County.
In a related case, Suzanne seeks title to the property, which we refer to as the “3.57
Property,” through adverse possession. ENE purchased the 3.57 Property at a tax
foreclosure sale in November 2003. According to ENE, Suzanne and Roy Mundy
attended the tax sale and bid on the property before being outbid by ENE. Years
later, Suzanne, acting as the personal representative of her late mother’s estate,
purported to transfer title to the 3.57 Property to herself and her brother Robert in
equal one-half interests via special warranty distribution deed, signed on July 2, 2014
and recorded on July 7, 2014 in the Fort Bend County real property records.1 Robert
then transferred his one-half interest to Suzanne via special warranty deed on July
2; that deed was also recorded on July 7.2
According to ENE, the 3.57 Property was not listed among the assets of Jean’s
estate, and thus, the estate did not own the property. On May 9, 2016, ENE filed
suit against appellants, asserting claims against Suzanne and Roy for common law
1
This deed also purported to transfer the 10.25 acre Swindell Property, which is described
in the related adverse-possession appeal we also decide today. See Mundy v. ENE, Inc., No. 14-
21-00145-CV.
2
This deed also purported to transfer Robert’s interest in the Swindell Property to Suzanne.
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fraud and conversion, asserting a claim against all appellees for civil conspiracy, and
seeking a declaration setting aside the two deeds.
On March 1, 2019, ENE moved for traditional summary judgment on its claim
for declaratory relief only. In its motion, it asserted that the 3.57 Property was not
listed among the assets in Jean’s estate. ENE provided a copy of the “Inventory and
List of Claims” filed by Suzanne, as the independent executrix of Jean’s estate,
which was approved by the probate court on March 30, 1992. According to this
inventory, Jean died on December 2, 1987, and the only real property she owned
was a house in Harris County. Because the estate did not own the 3.57 Property,
ENE sought a declaration voiding the two deeds.
Appellants responded to ENE’s motion, asserting that a declaratory judgment
action “is not the proper cause of action in a dispute over title to real property.”
Appellants argued that a trespass-to-try-title action is the only proper legal vehicle
for determining title to land. Appellants also contended that ENE’s summary
judgment evidence does not support its claim that the deeds were fraudulent because
they “were executed years after the estate’s closing on the basis of the grantor’s right,
title and interest to the property through adverse possession.” They claimed that
they did not know about the 3.57 Property until March 2014 when the Mundys
obtained a survey of the property. They attached an affidavit from Suzanne and an
unsworn declaration from Roy. Both Suzanne and Roy stated that they were
unaware of the 3.57 Property until they commissioned the survey and had considered
the usable land contained therein as part of their property.
According to the record, appellants’ summary judgment response may have
been untimely filed. Also, appellants’ counsel did not attend the summary judgment
hearing. Appellants have asserted that they were unaware that a hearing had been
set.
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The trial court signed an order granting ENE’s motion for partial summary
judgment, which declared both deeds void. The order states that the trial court
considered “the pleadings, the response and the evidence submitted.” Appellants
filed a motion to reconsider, in which they stated that their counsel failed to appear
at the summary judgment hearing because counsel did not believe that an oral
hearing had been set on the motion. They also asked the trial court to consider their
summary judgment response and evidence, in the event it did not take those filings
into account on the ground that they were untimely.
ENE responded, asserting that “the lack of appearance is irrelevant to
disposition of the underlying motion” because appellants “filed a written response
and the Court considered the response in making its ruling on the original motion.”
Indeed, the order expressly states that the court considered the summary judgment
response and evidence.
ENE subsequently moved for an award of attorney’s fees under the Uniform
Declaratory Judgments Act, seeking $25,122.49 based on affidavits and billing
records provided by ENE’s attorneys. After a hearing, the trial court granted ENE’s
request for attorney’s fees, but only awarded ENE $10,314.16. On this order, the
trial court also handwrote that ENE’s “claims for civil conspiracy and fraud are
nonsuited w/prejudice.” The trial court also handwrote, “This order disposes of all
claims and parties and is an immediately appealable final judgment.”
The trial court’s December 7 order was withdrawn on December 14. On that
date, the trial court signed a final judgment, which: (1) found ENE’s claim for
declaratory relief “to be meritorious”; (2) voided both deeds; (3) stated that ENE
“has non-suited its claims for common law fraud, conversion, and civil conspiracy
against Defendants with all claims and parties now being resolved”; (4) awarded
reasonable and necessary attorney’s fees of $10,314.16 against appellants, jointly
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and severally;3 and (5) stated it is a final judgment disposing of all claims and parties
that is immediately appealable.
This appeal followed.
Analysis
Appellants bring five issues: (1) the trial court erred in granting judgment
against J. Robert Swindell or his estate because appellants filed a suggestion of death
and ENE proceeded against the surviving defendants; (2) a declaratory judgment is
not the proper cause of action in a dispute over title to real property; (3) the
attorney’s fee award was not equitable and just; (4) the trial court erred in declaring
the deeds void as to the Swindell Property because that conveyance was valid, ENE
did not complain about the Swindell Property, and the summary judgment granted
more relief than requested; and (5) the trial court erred by declaring the deeds void
because ENE did not establish that Suzanne had possession or knowledge of the 3.57
Property when the inventory and list of claims was filed in her mother’s estate.
Analysis
A. Standard of review
We review a trial court’s ruling on a motion for summary judgment de novo.
Tarr v. Timberwood Park Owners Assoc., Inc., 556 S.W.3d 274, 278 (Tex. 2018);
Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Co., 579 S.W.3d 540, 542 (Tex.
App.—Houston [14th Dist.] 2019, no pet.). To prevail on a traditional motion for
summary judgment, the movant must show that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.
166a(c); see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.
The judgment awarded attorney’s fees “jointly and severally against Defendants Suzanne
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S. Mundy, J. Robert Swindell and/or his estate, and Roy Mundy. . . .”
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2000). If the movant produces evidence that conclusively establishes its right to
summary judgment, then the burden of proof shifts to the nonmovant to present
evidence sufficient to raise a fact issue. See Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995). If a summary judgment movant fails in its initial
burden, the nonmovant has no obligation to respond. See Amedisys, Inc. v.
Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511-12 (Tex. 2014). We
consider all of the evidence in the light most favorable to the nonmovant, indulging
every reasonable inference and resolving any doubts in the nonmovant’s favor. See
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Because appellants’ second issue is dispositive of this appeal, we address it
first.
B. ENE is not entitled to summary judgment on its declaratory judgment
claim.
Appellants contend that the judgment should be reversed because a
declaratory judgment claim is not the proper cause of action in a dispute over title to
and possession of real property. Instead, appellants assert, ENE should have filed a
trespass-to-try-title action.4 See Tex. Prop. Code § 22.001 (“A trespass to try title
action is the method of determining title to lands, tenements, or other real
property.”). Appellants argue that ENE is improperly using the Uniform Declaratory
Judgments Act (“UDJA”)5 to settle the dispute that is pending in the related adverse
possession litigation “to obtain an award for attorney’s fees.” We agree with
appellants that declaratory relief is not available here as a vehicle to determine title.
4
We note that ENE asserted a trespass-to-try-title counterclaim in the related case on
January 13, 2015, over one year before it filed the instant suit. See Mundy v. ENE, Inc., No. 14-
21-00145-CV.
5
See Tex. Civ. Prac. & Rem. Code § 37.002(a).
6
Before addressing the merits, we consider ENE’s argument that appellants
have waived all complaints concerning the judgment because they failed to appear
at the hearing on ENE’s motion for summary judgment, failed to obtain a ruling on
appellants’ motion to reconsider, failed to respond to ENE’s motion for attorney’s
fees or to appear at the hearing on the motion, and filed an “inadequate” motion for
new trial. A summary judgment may not be granted by default but must stand or fall
on its own merit. Amedisys, Inc., 437 S.W.3d at 511. If the movant fails to meet its
burden to establish (1) there is no genuine issue as to any material fact and (2) the
movant is entitled to judgment as a matter of law, the burden never shifts to the
nonmovant, and the nonmovant need not respond or present any evidence. Id.
We turn to the merits. The UDJA provides:
A person interested under a deed, will, written contract, or other
writings constituting a contract or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract, or
franchise may have determined any question of construction or validity
arising under the instrument, statute, ordinance, contract, or franchise
and obtain a declaration or rights, status, or other legal relations
thereunder.
Tex. Civ. Prac. & Rem. Code § 37.004(a). However, “[b]y statute, a trespass-to-try-
title action is the method of determining title to lands,” and such a claim “is the
exclusive remedy for resolving overarching claims to legal title.” Brumley v.
McDuff, 616 S.W.3d 826, 831-32 (Tex. 2021); see also Jordan v. Bustamante, 158
S.W.3d 29, 35 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Thus, “when
‘the trespass-to-try-title statute governs the parties’ substantive claims . . . , [the
plaintiff] may not proceed alternatively under the Declaratory Judgments Act to
recover their attorney’s fees.’” Coinmach Corp. v. Aspenwood Apartment Corp.,
417 S.W.3d 909, 926 (Tex. 2013) (quoting Martin v. Amerman, 133 S.W.3d 262,
267 (Tex. 2004)).
7
The substance of a plaintiff’s pleadings determines whether a claim sounds in
trespass to try title. Brumley, 616 S.W.3d at 833; Martin, 133 S.W.3d at 263-64. In
its live pleading, ENE contended that these “fraudulent transfers were part of an
overall conspiracy on the part of the Defendants to deceptively acquire title from
Plaintiff.” ENE sought a declaration setting aside the two deeds purporting to
convey the 3.57 Property to Mundy. ENE’s claim for declaratory relief is the very
type of claim that the trespass-to-try-title statute governs. Shelton v. Kalbow, 489
S.W.3d 32, 55 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“A trespass-to-
try-title lawsuit is an action generally used to clear problems in chains of title or to
recover possession of land unlawfully withheld from a rightful owner.”); Jinkins v.
Jinkins, 522 S.W.3d 771, 782 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (when
dispute involves a claim of superior title or possessory interest in property, it must
be brought as a trespass-to-try-title action); I-10 Colony, Inc. v. Chao Kuan Lee, 393
S.W.3d 467, 475 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“[A] party
may not artfully plead a title dispute as a declaratory judgment action just to obtain
attorney’s fees when that claim should have been brought as a trespass-to-try-title
action.”). A plaintiff may not proceed alternatively under the UDJA when the
trespass-to-try-title statute governs. See Coinmach Corp., 417 S.W.3d at 926;
Martin, 133 S.W.3d at 267.
Because ENE sought to negate Suzanne’s purported title to the 3.57 Property,
its claim sounds as a trespass-to-try-title claim, not one for declaratory relief under
the UDJA. Accordingly, the trial court erred in granting summary judgment in
ENE’s favor on its declaratory judgment claim. Further, because ENE is not entitled
to declaratory relief in this title dispute, the award of ENE’s attorney’s fees must be
reversed as well.
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We sustain appellants’ second issue. Our resolution of this issue makes it
unnecessary to address appellants’ remaining issues. See Tex. R. App. P. 47.1.
Conclusion
We have determined that the trial court erred in granting summary judgment
to ENE on its claim for declaratory relief and granting ENE attorney’s fees for this
claim. ENE nonsuited its other claims against appellants. Accordingly, we reverse
and render judgment that ENE take nothing on its claim for declaratory relief.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
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