      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00828-CV



                          John Walker and Molly Walker, Appellants

                                                  v.

                          Dennis Vick and James C. Timms, Appellees


            FROM THE COUNTY COURT AT LAW NO. 1 OF TOM GREEN COUNTY
               NO. 11C053-L, HONORABLE BEN NOLEN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In this dispute between neighbors, the county court denied a plea to the jurisdiction

by appellants John Walker and Molly Walker and granted final summary judgment in favor of

appellees Dennis Vick and James C. Timms. On appeal, the Walkers challenge the county court’s

jurisdiction over the claims and counterclaims between the Walkers and Timms.1 For the reasons

that follow, we conclude that the county court did not err in denying the Walkers’ plea to

the jurisdiction.


                                         BACKGROUND

                The Walkers and Timms own adjacent lots on Edinburgh Road in Highland Range

Estates, a platted subdivision in Tom Green County. In 2008, the Walkers sued Timms and his wife


        1
         In their briefing to this Court, the Walkers state that they are not appealing the portion of
the judgment granting final summary judgment in favor of appellee Dennis Vick.
in district court seeking damages and injunctive relief under a nuisance theory of recovery. The suit

arose out of the Walkers’ construction of a circular driveway and the alleged interference by the

Timms with the Walkers’ right of access and use of their property.2 The Highland Range Estates

Owners’ Association was named a third-party defendant, and the parties reached a settlement in

2009. The Walkers agreed to construct the driveway “completely within their property line or within

their extended property line” in exchange for $5,000.00. After the Walkers completed the driveway,

the Timms agreed to remove “twenty (20) feet of curbing, including red cone and dots.”




       2
          In their first amended original petition and application for permanent injunction, in addition
to the driveway issue, the Walkers described the nature of the suit as follows:

        This is a suit to recover damages for nuisance arising from the Timms’ improper use
        of the right-of-way of Edinburgh Road located in the Highland Range Estates
        Subdivision, and to enjoin the Timms from further interference with the Walkers’
        right to use the right-of-way to access their home.

        ...

        In 2007, the Walkers began construction of a home on their Highland Range Estates
        lot. During construction, they were often faced with one or more vehicles parked by
        the Timms in front of the Walkers’ lot, partially blocking access to their property.
        This blockage was especially irksome to work crews who were forced to park a
        distance away from the worksite, . . . .

        ...

        The Timms have intentionally and substantially interfered with the Walkers’ right of
        access and their use of their own land. The Timms construction of the curb and
        placement of the landscaping in the public right-of-way places a barrier to the
        Walkers’ property and constitutes a common law nuisance. The Timms’
        unreasonable use of the public right-of-way in front of the Walkers’ home
        substantially interferes with reasonable use and enjoyment of the Walkers’ lot and the
        right-of-way.

                                                   2
               As part of the settlement agreement, the Walkers released the Timms and the

Association as follows:


       [The Walkers] release, acquit and forever discharge the Timms and the Association,
       their representatives, agents, successors and assigns and lawyers of and from any and
       all demands, rights, damages, actions, representations, duties, obligations,
       agreements, contracts, claims, counterclaims, and causes of action whatsoever which
       [the Walkers] now have or which may hereafter accrue on account of or in any way
       growing out of or related to any and all known or unknown, foreseen and unforeseen
       damages and the consequences thereof resulting or to result from the relationship,
       duties, obligations, dealings, contracts, representations, and agreements between [the
       Walkers], the Timms and the Association through the effective date of this
       Agreement, including but not limited to all matters, actions, representations, duties,
       agreements, contracts, claims, counterclaims, and causes of action described in the
       pleadings filed in the Lawsuit or which were or could have been asserted in
       connection with the Lawsuit or which are a part of or are related to the subject matter
       of the Lawsuit and any duties or obligations, contractual, statutory or otherwise,
       arising from or related to the dealings and relationships between [the Walkers], the
       Timms and the Association, including but not limited to those relating to, contained
       in or arising from the construction of the subject driveway, provided that no release
       of any written promise or agreement set out in this Agreement is made or intended.


The district court thereafter dismissed the suit with prejudice based on a joint motion by the parties.

               In April 2010, the Walkers sued Timms in small claims court. They sought damages

and injunctive relief under theories of recovery of harassment and “breach of right-of-way

easement.” They alleged that Timms was harassing them “by parking trucks in front of Plaintiff’s

front door” and that he breached the right-of-way easement by “[m]aintaining a boulder, gravel,

curbing and trucks in a dedicated right-of-way in order to exclude Plaintiffs or others from using said

public right-of-way and harassment of Plaintiffs on a regular basis.” Timms filed an answer

asserting that the Walkers’ claims were barred by the parties’ prior settlement agreement in the

district court proceeding and counterclaimed for damages and injunctive relief “due to harassment

                                                  3
by Plaintiff John Walker.” Timms sought to enjoin Walker “from blowing his air horn” at Timms

or “driv[ing] across the property line or the extended property line of [Timms]’s property.”

                  After the Walkers filed a separate suit in small claims court against Vick, the two

actions were consolidated and transferred to county court.3 In the county court proceeding, Timms

amended his counterclaim to include a contract claim against the Walkers for breach of the

settlement agreement, and Vick and Timms filed motions for summary judgment, asserting res

judicata based on the settlement agreement. See Barr v. Resolution Trust Corp., 837 S.W.2d 627,

628 (Tex. 1992) (“Res judicata, or claims preclusion, prevents the relitigation of a claim or cause

of action that has been finally adjudicated, as well as related matters that, with the use of diligence,

should have been litigated in the prior suit.”). Timms also sought summary judgment on his breach

of contract claim in his motion and submitted evidence of his attorney’s fees.

                  The Walkers responded to the motions and filed a plea to the jurisdiction. In their

amended plea, they asserted that the original court—the small claims court—lacked jurisdiction over

the Walkers’ claims against Timms because the Walkers “exclusively” prayed for injunctive relief

and, therefore, the small claims court could not transfer those claims to county court. They also

contended that the parties’ claims involved title issues so that they could only be brought in

district court.

                  The parties filed responses and, in one of his responses, Timms waived any prior

request for injunctive relief. After a hearing, the trial court denied the Walkers’ plea to the




        3
          The Walkers brought a contract claim against Vick arising from his actions as a member
of the architectural control committee of the Highland Range Estates Owners’ Association.

                                                   4
jurisdiction and determined that Vick and Timms were entitled to summary judgment. The trial

court ordered that the Walkers take nothing against Vick and Timms and awarded attorney’s fees

of $2,000 to Timms from the Walkers. The Walkers filed a motion for new trial as to Timms only,

which motion was overruled by operation of law. This appeal followed.


                                            ANALYSIS

               In two issues, the Walkers challenge the county court’s jurisdiction. They contend

that the county court should have granted their plea to the jurisdiction because the claims and

counterclaims between the Walkers and Timms turned on a title dispute. They further contend that

the transfer of the case from small claims court to the county court was without jurisdiction and void

because the small claims court lacked jurisdiction to grant injunctions, which was the only relief

requested by the Walkers against Timms.


Standard of Review

               Whether a court has subject matter jurisdiction is a question of law, which appellate

courts review de novo. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012)

(citing Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). “If the trial

court lacks subject matter jurisdiction, the appellate court can make no order other than reversing the

judgment of the court below and dismissing the cause.” City of Garland v. Louton, 691 S.W.2d 603,

605 (Tex. 1985).




                                                  5
Did the county court lack jurisdiction because the parties’ claims were title disputes?

               In their first issue, the Walkers contend that the county court erred by denying their

plea to the jurisdiction because the claims between the Walkers and Timms turned on the existence

and location of a right-of-way easement, which is a title dispute. The county court generally does

not have jurisdiction to determine title disputes. See Tex. Gov’t Code § 26.043(8) (“A county court

does not have jurisdiction in: . . . a suit for the recovery of land.”); Merit Mgmt. Partners I, L.P.

v. Noelke, 266 S.W.3d 637, 643 (Tex. App.—Austin 2008, no pet.) (noting that “suit for the

‘recovery of land’ is a suit that determines title” and that dispute over existence of easement

“‘necessarily involved the trial of title to real estate’” (quoting Coughran v. Nunez, 127 S.W.2d 885,

887 (Tex. 1939))).

               The Walkers contend that the parties’ claims raise the following title questions:

(1) whether a public right-of-way exists that supports the Walkers’ claim that Timms should be

enjoined from obstructing the Walkers’ use of that right-of-way to access their home; and

(2) whether the settlement agreement and the district court’s dismissal order entitle Timms to

obstruct the public right-of way. Timms counters that “[t]his is not a title case involving the

obstruction of a right-of-way or where a right-of-way has been forfeited” but a case “where [the

Walkers] compromised their claim to use of the public right-of-way . . . in return for the payment

of $5,000.00.” Timms urges that the “existence and location of the right-of-way along Edinburgh

Road is set out in the subdivision’s plat” and that the current dispute between the parties is a breach

of contract action involving the contractual settlement agreement. Timms also asserts that, “[i]f a




                                                  6
question of title is present, it arises only ‘incidentally’ which does not deprive the county court at law

of jurisdiction.” See Noelke, 266 S.W.3d at 646.

                We are informed by this Court’s opinion in Noelke. In that case, we explained that

a “county court does not have jurisdiction over a lawsuit if the gist of the suit is a title dispute.” Id.

at 649. We described the test for making this determination as follows: “To determine the extent

to which title and possession are involved, we look to ‘the nature of the suit, the injury complained

of, and the relief sought.’” Id. (quoting Dauenhauer v. Devine, 51 Tex. 480, 487 (1879)). “If the

right of recovery in a suit depends, at least in part, upon the title to land, but there is no real dispute

between the parties over questions of title, the question of title is incidental.” Id. at 648. When the

question of title is incidental, the county court is not deprived of jurisdiction. Id.; see also In re

Elamex, S.A. de C.V., 367 S.W.3d 891, 898 (Tex. App.—El Paso 2012, orig. proceeding) (“A lawsuit

involves the adjudication of title to real property if title is not involved in a merely incidental or

collateral way, but is actually involved as the basis, as well as the measure of right of any recovery.”

(citing Noelke, 266 S.W.3d at 646–47)).

                Here, there is “no real dispute” between the parties over questions of title, such as the

existence of a right-of-way on Edinburgh Road. See Noelke, 266 S.W.3d at 648 (noting that, “even

if title to real property is a necessary predicate to recovery in a case for money damages, it is

incidental to the case if there is no real dispute over title that must be resolved by the county court”).

The earlier district court proceeding also resolved the parties’ dispute as to Timms’ alleged

interference with the Walkers’ right of access and use of their property. In the settlement agreement,

the Walkers agreed to locate their driveway “completely within their property line or within their



                                                    7
extended property line” and released Timms from causes of action “related to” the parties’ disputes

before the district court, which disputes included Timms’ alleged interference with the Walkers’

“right of access and their use of their own land.” In this context, we conclude that any adjudication

of title involved before the county court was only in an “incidental or collateral way” and did not

deprive the county court of jurisdiction. See In re Elamex, S.A. de C.V., 367 S.W.3d at 898. Thus,

we overrule the Walkers’ first issue.


Did the county court lack jurisdiction because the small claims court lacked jurisdiction?

               In their second issue, the Walkers contend that the transfer from the small claims

court to the county court was without jurisdiction and void because they only sought injunctive relief

and the small claims court lacked jurisdiction to grant injunctions. See Tex. Gov’t Code § 28.003

(repealed May 1, 2013) (providing concurrent jurisdiction between small claims court and justice

court in actions for the recovery of money not exceeding $10,000).4 But, in their statement of claim

filed with the small claims court, the Walkers stated in relevant part:


       John Walker and Molly Walker . . . being duly sworn on [their] oath, deposes and
       says that James Times . . . is justly indebted to [them] in the sum of the maximum
       jurisdictional limits of the Court [of] at least Ten Thousand but not to exceed
       ($10,000).




       4
        Small claims courts under Chapter 28 of the Government Code were abolished effective
May 2013. See Act of July 19, 2011, 82d Leg., 1st C.S., ch. 3 (H.B. 79), § 5.06(b), 2011 Tex. Sess.
Law Serv. 116, 135.

                                                  8
Despite their argument to this Court, the Walkers’ statement of claim expressly included a claim for

the recovery of money damages. Further, Timms counterclaimed for money damages, and, as to his

request for injunctive relief, he waived and withdrew that request before the county court.

                To support their argument that the small claims court’s transfer order

was void, the Walkers cite Texas Board of Law Examiners v. Little, No. 03-09-00342-CV,

2009 Tex. App. LEXIS 9857 (Tex. App.—Austin Dec. 31, 2009, no pet.) (mem. op.). We find that

case factually distinct. In that case, the appellant attempted to appeal a decision from the Texas

Board of Law Examiners to county court, but only Travis County district courts had jurisdiction over

appeals from decisions by the Texas Board of Law Examiners. Id. at *1. In that context, we

concluded that the county court did not have jurisdiction to transfer the case to district court because

it did not have jurisdiction over the appeal, noting that a court lacking jurisdiction can only dismiss

the case and cannot transfer the case unless the transfer is otherwise authorized. Id. at *6–8.

                In contrast, the small claims court here had jurisdiction over claims for money

damages under $10,000, the Walkers’ statement of claim expressly included a claim for money

damages under $10,000, and Timms’s counterclaim included a claim for money damages under

$10,000. This was sufficient to invoke the jurisdiction of the small claims court. Thus, the small

claims court had jurisdiction to transfer the claims for money damages to county court, a court with

concurrent jurisdiction over such claims. See Tex. Gov’t Code § 26.042(a) (providing that county

court has concurrent jurisdiction with justice courts in civil case in which the matter in controversy

exceeds $200 in value but does not exceed $10,000, exclusive of interest). On this basis, we

overrule the Walkers’ second issue.



                                                   9
                                        CONCLUSION

               For these reasons, we conclude that the county court did not err in denying the

Walkers’ plea to the jurisdiction. There being no other issues raised, we affirm the county court’s

final summary judgment.




                                              __________________________________________

                                              Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: January 3, 2014




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