Opinion
05-23-00064-CV
01-25-2024
URBAN LOFTS BENNETT, LLC, Appellant v. DEE THONGSAVAT AND WIFE, PHOUSADETH THONGSAVAT, Appellees
On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-02752
Before Justices Partida-Kipness, Pedersen, III, and Garcia
MEMORANDUM OPINION
DENNISE GARCIA, JUSTICE
This dispute between neighboring landowners ended with a judgment requiring appellant Urban Lofts Bennett, LLC to pay about $87,000 to appellees as attorneys' fees under the Uniform Declaratory Judgments Act. Urban Lofts appeals, contending that the Declaratory Judgments Act does not permit any fee award on the facts of this case. We affirm.
I. Background
This litigation began in February 2019 when appellee Dee Thongsavat sued Urban Lofts and one other defendant who is not part of this appeal. Thongsavat alleged that he owned a certain lot, referred to as Lot 12, in Dallas County, and that Urban Lofts had the right to develop Lots 10 and 11, with Lot 11 being adjacent to Lot 12. The following map is excerpted from a document attached to Thongsavat's original petition:
(Image Omitted)
(Highlighting in original.) Thongsavat alleged that Urban Lofts had removed Thongsavat's chain-link fence, started construction work that extended five feet onto Lot 12, and begun to build a fence against Thongsavat's master-bedroom window. He asserted claims for declaratory judgment, quiet title, trespass to try title, damages, and attorney's fees.
Urban Lofts answered and counterclaimed, alleging that Thongsavat's fence was actually on Urban Lofts' property and that Thongsavat had asserted that he owned up to five feet of Urban Lofts' property. Urban Lofts asserted claims for bad faith, trespass to try title as to the disputed land, and declaratory judgment.
In March 2020, Thongsavat filed a Second Amended Original Petition in which his wife Phousadeth Thongsavat also appeared as a plaintiff. The Thongsavats alleged that they had hired a professional land surveyor, Michael B. Davis, who had performed a survey of the land in dispute. They further alleged that Davis's survey showed that the entire disputed strip of land was properly part of Lot 12. The Thongsavats asserted a claim for declaratory judgment and, in the alternative, for trespass to try title. The relief they sought included damages and attorney's fees.
In July 2022, Urban Lofts filed a motion for partial summary judgment. The gist of the motion was that the case was moot because Urban Lofts had abandoned its claim to the disputed strip of land. Urban Lofts claimed that it had installed a new fence where the Thongsavats' original fence had been and had executed and recorded a quitclaim deed conveying the disputed strip to the Thongsavats. Urban Lofts sought dismissal of the Thongsavats' claims for declaratory judgment and trespass to try title based on mootness. It also argued that the Thongsavats were not entitled to recover any attorney's fees under the Declaratory Judgments Act because the boundary determination was not the sole issue concerning real property in the case. The trial judge denied Urban Lofts' motion.
The case was tried without a jury. In opening statement, the Thongsavats' attorney said that the only issues left in the case were the Thongsavats' mentalanguish damages for Urban Lofts' acts of trespass and their attorney's fees. Urban Lofts objected that the Thongsavats had not pleaded a claim for general trespass, and the trial judge sustained Urban Lofts' objection. This removed the issue of mentalanguish damages from the case. The Thongsavats' attorney then testified in support of their request for attorney's fees.
The trial judge signed a final judgment that awarded the Thongsavats $87,446.92 as attorney's fees under the Declaratory Judgments Act. The judgment also included contingent awards of appellate attorney's fees.
Urban Lofts timely filed a motion for new trial that raised the same arguments it now raises on appeal. The motion was overruled by operation of law. Urban Lofts appealed the final judgment
II. Analysis
A. Issue Presented
In a single issue on appeal, Urban Lofts argues that the trial judge erred by awarding the Thongsavats any attorney's fees at all. Urban Lofts contends that the Declaratory Judgments Act does not authorize any award of attorney's fees to the Thongsavats on the facts of this case.
B. Standard of Review
We review a fee award under the Declaratory Judgments Act for abuse of discretion. Transcor Astra Grp. S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 482 (Tex. 2022), cert. denied, 143 S.Ct. 2493 (2023). An abuse of discretion occurs if (1) the trial judge fails to analyze or apply the law correctly, or (2) with regard to factual matters or matters committed to its discretion, the trial judge could reasonably reach only one decision and failed to do so. VSDH Vaquero Venture, Ltd. v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 (Tex. App.-Dallas June 16, 2020, no pet.) (mem. op.).
C. The Law Regarding Attorney's Fees in Land-Dispute Cases
"A trespass to try title action is the method of determining title to lands, tenements, or other real property." TEX. PROP. CODE ANN. § 22.001(a). In 2004, the Texas Supreme Court held that a boundary dispute between the owners of adjacent tracts was governed by the trespass-to-try-title statute. Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). The court reasoned that the statute applies because "[a] boundary determination necessarily involves the question of title, else the parties would gain nothing by the judgment." Id. The trespass-to-try-title statute does not authorize a recovery of attorney's fees, and the court concluded that the victorious parties to the boundary dispute could not resort to the Declaratory Judgment Act as a basis for fee shifting. Id. at 267-68. Accordingly, the court affirmed the court of appeals' judgment reversing the trial court's fee award. Id. at 268. In 2007, the legislature amended the Declaratory Judgments Act by adding § 37.004(c):
Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) [e.g., a person interested under a deed] may obtain a determination under this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties.TEX. CIV. PRAC. &REM. CODE ANN. § 37.004(c). The Act further 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." Id. § 37.009.
Since 2007, several appellate decisions have addressed the question of whether a particular land dispute could be litigated under § 37.004(c). See, e.g., Eggemeyer v. Hughes, 621 S.W.3d 883, 893-95 (Tex. App.-El Paso 2021, no pet.) (dispute was properly brought under the Declaratory Judgments Act); Armstrong DLO Props., LLC v. Furniss, No. 05-13-01581-CV, 2015 WL 265653, at *13-15 (Tex. App.-Dallas Jan. 21, 2015, no pet.) (mem. op.) (dispute could not be brought under the Declaratory Judgments Act); Lile v. Smith, 291 S.W.3d 75, 77-78 (Tex. App.-Texarkana 2009, no pet.) (dispute could not be brought under the Declaratory Judgment Act). That is the question we confront in this case.
D. Application of the Law to the Facts
In its appellant's brief, Urban Lofts presents essentially two arguments in support of its contentions that, as a matter of law, this case does not come within § 37.004(c) and that the Thongsavats were thus not entitled to recover attorney's fees under the Declaratory Judgments Act. We discuss each argument in turn.
1. Urban Lofts' First Argument
First, Urban Lofts argues that this case does not fit within § 37.004(c) because "the heart of this controversy concerns ownership over the disputed parcel, not its location." Urban Lofts contends that this case is analogous to five cases rejecting the applicability of the Declaratory Judgments Act, but of those five cases it discusses only Lile and Armstrong DLO Properties, cited above.
Urban Lofts' argument is unpersuasive. It is true that the parties' dispute concerns ownership of a disputed strip of land along the border of Lots 11 and 12. But boundary disputes are disputes over the ownership of disputed land. As the Martin court observed, "[a] boundary determination necessarily involves the question of title, else the parties would gain nothing by the judgment." 133 S.W.3d at 267. So the fact that the Thongsavats sought a declaration confirming their ownership of the disputed property is irrelevant to answering the question of whether "the sole issue concerning title to real property [was] the determination of the proper boundary line between adjoining properties." CIV. PRAC. &REM. § 37.004(c).
In this case, the pleadings show that the title dispute between Urban Lofts and the Thongsavats was indeed a boundary dispute falling within § 37.004(c). Dee Thongsavat originally contended that he owned the disputed strip of land under a 1994 survey. In its counterpetition, Urban Lofts alleged that it had hired its own surveyors and engineers to mark the property lines of its lots, and it contended that the true property boundaries corresponded to the locations it had staked out. In the Thongsavats' amended petition, they alleged that they had obtained a new survey and expert report that confirmed that the disputed property lay entirely within their lot. Thus, the parties sought to have the trial court determine the proper boundary between their adjoining properties. See Eggemeyer, 621 S.W.3d at 893-95 (holding that § 37.004(c) applied because the heart of the dispute was properly applying a boundary agreement to the landmarks that existed and were identified in the deed records).
The two cases discussed by Urban Lofts are distinguishable. In Armstrong DLO Properties, neighboring landowners contested ownership of a certain strip of land. 2015 WL 265653, at *1-2. But their dispute centered on the validity of a 1949 deed that purported to convey the strip from the owners of one lot to the owners of the other-not on the proper location of a contested boundary line. See id. at *2-3. Thus, we concluded that § 37.004(c) did not apply. Id. at *13-15. Similarly, in Lile the parties also contested ownership of a certain strip of land. 291 S.W.3d at 76. But their dispute arose from conflicts between the deeds in the two relevant chains of title, and not from a disagreement over the proper location of their boundary line under the deeds. See id. The court of appeals concluded that the plaintiffs' claim to the disputed property did not satisfy § 37.004(c). Id. at 78. Neither Lile nor Armstrong DLO Properties is analogous to the case before us.
The three cases that Urban Lofts cites without discussion are also distinguishable. See Coinmach Corp. v. Aspenwood Apt. Corp., 417 S.W.3d 909 (Tex. 2013) (containing no discussion of § 37.004(c)); Meekins v. Wisnoski, 404 S.W.3d 690 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (same); Tex. Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 390 (Tex. 2011) (holding that § 37.004(c) did not apply because the dispute was whether State owned any of the land in question at all).
We reject Urban Lofts' argument that § 37.004(c) was rendered inapplicable because the Thongsavats sought title to the disputed strip of land.
2. Urban Lofts' Second Argument
In its second argument, Urban Lofts contends that § 37.004(c) did not apply even if the case involved a boundary dispute because that dispute was not the "sole issue" in the case. Specifically, Urban Lofts argues that another issue was raised in the case because the Thongsavats pleaded that Urban Lofts trespassed on the Thongsavats' property on three separate occasions, and they sought to recover damages for those trespasses.
As the Thongsavats point out in their appellate brief, Urban Lofts' argument fails because § 37.004(c) does not require that the determination of a boundary dispute be the sole issue in the entire case for the Declaratory Judgment Act to be available. Rather, the determination of a boundary dispute between adjoining properties must be "the sole issue concerning title to real property." CIV. PRAC. & REM. § 37.004(c) (emphasis added). So Urban Lofts adjusts its argument in its reply brief, contending that the Thongsavats pleaded facts to support a trespass claim. But for the Thongsavats' failure to plead an actual trespass cause of action, Urban Lofts continues, there would have been a trial on common-law trespass, at which the Thongsavats would have had to prove that they held title to the land on which Urban Lofts allegedly trespassed. This, Urban Lofts contends, would have injected a title issue into the case beyond the determination of the proper boundary line between the parties' lots.
Urban Lofts' reply-brief argument is not persuasive for two reasons. First, the trial judge ruled, based on Urban Lofts' objection, that the Thongsavats failed to plead a trespass claim, and no one has appealed that ruling. Thus, trespass was not a live issue in the case, and it could not bar § 37.004(c) from applying. Second, even if the trial judge had ruled that Thongsavats adequately pleaded a common-law trespass claim against Urban Lofts, that claim would not have injected a second issue "concerning title to real property" into the case. Even if Urban Lofts is correct that Thongsavats would have had to prove that they held title to the land in order to recover for trespass, the only dispute about title presented in the parties' pleadings was-as discussed above-a boundary dispute. Thus, Urban Lofts again fails to show that § 37.004(c) was not satisfied on the facts of this case.
We reject Urban Lofts' argument that this case involves an issue concerning title to real property that is not the determination of a boundary line between adjoining properties.
E. Conclusion
For the foregoing reasons, we overrule Urban Lofts' sole issue on appeal.
III. Disposition
The trial court's judgment is affirmed.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Dee Thongsavat and Wife, Phousadeth Thongsavat recover their costs of this appeal from appellant Urban Lofts Bennett, LLC.
Judgment entered January 25, 2024.