Lile v. Smith
| Decision Date | 12 June 2009 |
| Docket Number | No. 06-08-00135-CV.,06-08-00135-CV. |
| Citation | 291 S.W.3d 75 |
| Parties | Danny D. LILE, Appellant, v. Don SMITH and Wife, Shirley Smith, Appellees. |
| Court | Texas Court of Appeals |
Edward D. Ellis, Ellis & Tidwell, LLP, Sydney Young, Paris, for appellant.
James R. Rodgers, Nikki D. Miller, The Moore Law Firm, LLP, Paris, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
Don Smith and wife, Shirley Smith, brought suit against Danny Lile and wife, Paulette Lile, under the Declaratory Judgments Act (Chapter 37 of the Texas Civil Practice and Remedies Code), asking for a declaration that the Smiths were the owners of certain lands; at the conclusion of the trial before the court, a judgment was entered declaring that the legal and equitable title of the disputed lands belonged to the Smiths. Lile1 has appealed. We reverse the judgment of the trial court and render a take-nothing judgment.
The seed of this dispute was planted in 1967 when a receiver in a partition suit was appointed to sell certain real estate, including a called thirty-acre tract in the Southern L. Rattan Survey of Delta County, Texas. In the deed executed by that receiver and approved by the judge of the court appointing him, there was additional property included in the receiver's deed which was not contained in the order directing the receiver to sell that additional property measuring forty feet in width and 2,250 feet, more or less, in length which traveled northerly from the northwest corner of the thirty-acre tract to an east/west county road. No evidence was presented that there was any record source of the title to the strip of land (or "lane") received by the receiver and there was no explanation given for its insertion into the receiver's deed.2 There was a regular chain of title of this thirty-acre tract and the lane beginning with the 1967 receiver's deed and ending in a 1994 deed to the Smiths.
During the period of 1994 through 1996, Lile acquired tracts of land situated immediately to the north of the thirty-acre tract which was traversed by the strip of land to which reference is made above. The location of the lane mentioned in the 1967 receiver's deed conflicted substantially with the lands acquired by Lile.
In 1996, Lile and the Smiths shared the cost of the construction of a fence along the west boundary of the strip of land in controversy. Lile had his property surveyed in 2002.
In 2006, Lile sent a letter to the Smiths which stated that although Lile had given consent for the use of the lane in the past, that consent was being withdrawn. The letter further advised the Smiths to inform their renters (who were then using the property) to cease its use. Lile then fenced both the north and south termini of the lane and locked the entrance of the lane property onto the county road. This lawsuit was filed shortly after this was done.
The Smiths' initial petition contained only a plea for declaratory judgment relief, seeking a declaration that the Smiths were the owners of the property and that Lile had wrongfully denied them access to it; they also sought the recovery of attorney's fees. In his original answer, Lile made exception to the petition, claiming that declaratory judgment was not proper under the circumstances and that the appropriate cause of action was trespass to try title. Without obtaining a ruling on the exception and after the expiration of some months, Lile then made a demand for abstract.3 Lile never made a pretrial request that the Smiths be barred from introducing written evidence of their claim as provided in Rule 792. See TEX.R. CIV. P. 792.
Only two days before trial, the Smiths amended their pleadings, reiterating their same claims for recovery under declaratory judgment, but adding an alternative pleading in trespass to try title. However, at the outset of the trial before the court, the Smiths announced that they were abandoning their trespass to try title pleadings and proceeding solely under the remaining declaratory judgment action. After testimony was given, the trial court entered a judgment declaring that the Smiths were the owners of the legal and equitable title to the land in question and that Lile had wrongfully denied them access to it.
Lile's first point of error complains that the trial court had no authority to enter the declaratory judgment finding the Smiths to be the owners of the property.
By statutory mandate, "A trespass to try title action is the method for determining title to lands, tenements, or other real property." TEX. PROP.CODE ANN. § 22.001(a) (Vernon 2000); Rogers v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex.1994). Trespass to try title is the exclusive remedy by which to resolve competing claims to property. Ely v. Briley, 959 S.W.2d 723, 727 (Tex.App.-Austin 1998, no pet.); Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115, 117-18 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). The exclusivity of this remedy and the pleading requirements which accompany it are long standing and well established in Texas. "The action of trespass to try title is the only formal civil action known to our law, and the statute states substantially what the form shall be." Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324, 325 (1890). The suit in trespass to try title is unique and governed by rather precise rules regarding its pleading and prosecution (TEX.R. CIV. P. 783-809), the violation of which can be fatal to the suit.
Perhaps due to fear of venturing into what might be uncharted territory for many attorneys or due to an effort to seek recovery of attorney's fees,4 it is not uncommon for litigants to attempt to circumvent an action in trespass to try title by proceeding under the pleading format of a petition for declaratory judgment.
For many years in Texas, although the subject matter of a suit for declaratory judgment did not include boundary disputes as to land, it did have the following inclusion: "A person interested under a deed, will, written contract, or other writings constituting a contract ... may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder." TEX. CIV. PRAC. & REM.CODE ANN. § 37.004(a) (Vernon 2008). This statute led some to attempt to employ the vehicle of a declaratory judgment action in circumstances which had been previously the sole province of trespass to try title, particularly in suits involving boundary disputes between adjoining property owners. The apparently finite distinctions necessary to determine between issues which may have been tried as a declaratory judgment action or which must have been tried as a trespass to try title suit led to conflicting conclusions in cases decided by this Court and at least one other. In Goebel v. Brandley, 76 S.W.3d 652 (Tex.App.-Houston [14th Dist.] 2002, no pet.), the holding was that a boundary dispute was proper grist for a declaratory judgment action. This Court contrarily determined that since such a dispute involved resolution of the title to lands, it was necessary that such an action be brought as a trespass to try title action. Amerman v. Martin, 83 S.W.3d 858 (Tex. App.-Texarkana 2002), aff'd, 133 S.W.3d 262 (Tex.2004). The Texas Supreme Court resolved the conflict by agreeing with this Court that an action to determine a boundary may not be brought as a declaratory judgment, but must be prosecuted as a trespass to try title suit. Amerman, 133 S.W.3d 262. However, in 2007, the Legislature then added a subsection (c) to Section 37.004 of the Texas Civil Practice and Remedies Code, specifically permitting a boundary dispute to be litigated as a declaratory judgment action, apparently negating that ruling.
Texas courts have zealously guarded the antique suit of trespass to try title, one court even recently ruling that an...
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