Opinion filed August 30, 2018




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-16-00047-CV
                                    __________

DAVID LAWRENCE “LARRY” GLASS, WILLENE KEY GLASS
   BOGER, LACY CREEK RANCHES, LLC, AND GLASS
            PROPERTIES, LTD., Appellants
                                       V.
     FRANK GLASS FAMILY PARTNERSHIP, LTD., FRANK
        GLASS, AND CAROL A. STROTHER, Appellees


                     On Appeal from the 118th District Court
                           Glasscock County, Texas
                          Trial Court Cause No. 1714


                      MEMORANDUM OPINION
      This is an appeal from a summary judgment entered to resolve a boundary
dispute among family members over 32.1 acres of land in Glasscock County.
Appellants own Section 2, Block 32, Township 5 South, T & P Ry. Co. Survey, and
Appellees own Section 3 of the same block. These sections are located beside each
other sharing a common boundary on the eastern border of Section 3 and the western
border of Section 2. The 32.1-acre tract that is the subject of this suit is located at
the north end of this common boundary line—north of State Highway 158, which
crosses Sections 2 and 3. The question before us is whether the 32.1-acre tract is
located in Section 3 or in Section 2. The trial court determined that, as a matter of
law, the tract is located in Section 3. Accordingly, the trial court awarded the 32.1-
acre tract to Appellees. We affirm.
                                       Background Facts
       In light of the trial court’s determination that the 32.1-acre tract lies within
Section 3, we direct our attention to Section 3. Murray Harris, a deputy surveyor for
the Texas and Pacific Railway Company, originally surveyed Section 1 3 in 1876.
Harris’s field notes were filed with the State of Texas in 1876, and a patent was
issued by the State for Section 3 in 1884.
       Sections 2 and 3 were subsequently acquired by J.L. and Mattie J. Glass, along
with a large amount of other land located in Glasscock and Sterling Counties. Thus,
J.L. and Mattie J. Glass and their probate estates are the common source of title for
both Appellants and Appellees. J.L. Glass died in 1947, and Mattie J. Glass died in
1954. Prior to their deaths, a boundary dispute arose with a neighboring property
owner. In order to resolve the dispute, a surveyor named Claude Beckett was hired
to survey Block 32. Appellees assert that an oral agreement was reached between
J.L. Glass and the neighbor to accept Beckett’s survey as a resolution of the property
dispute.
       In 1954, M.D. Rawls completed another survey of Section 3. Appellees assert
that Rawls’s survey confirmed the survey lines of the Beckett survey. Rawls filed

       1
        Some of the documents filed with the General Land Office refer to the “sections” as “surveys.”
For example, “Section No. 3” is called “Survey No. 3” in Harris’s original field notes.


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corrected field notes in 1955 for Section 3 with the General Land Office, indicating
that Section 3 contained excess acreage. The independent executors of the Estates
of J.L. and Mattie J. Glass also filed an Application to Purchase Excess Acreage with
the General Land Office in 1955. The General Land Office offered to sell the excess
acreage in Section 3 to the executors for the cost of $3.33 an acre. The executors
accepted the terms of purchase by paying the requested sum and executing an
Acceptance of Terms of Sale of Excess Acreage.
       In 1987, the General Land Office issued a Deed of Acquittance for Section 3.
A recital in the deed provided that “it has been determined by corrected field notes
approved and filed in the General Land Office” that the survey for Section 3 contains
excess acreage. The deed also recited that the independent executors of the Estates
of J.L. and Mattie J. Glass had purchased the excess acreage. The deed then
“acquitted” a tract of property as Section 3, which was described by a metes and
bounds description. The metes and bounds description in the Deed of Acquittance
was the same as the metes and bounds description in Rawls’s corrected field notes.
In the trial court’s final summary judgment, it determined that Section 3 was
comprised of the property described by the same metes and bounds description as
the Deed of Acquittance and Rawls’s corrected field notes. The 32.1-acre tract lies
within this metes and bounds description.
       The dispute giving rise to the underlying lawsuit arose when Appellant Larry
Glass filed an Affidavit of Adverse Possession in the public deed records for the
32.1-acre tract. Filing on behalf of himself and his sister, Willene Key Glass Boger,
Larry Glass asserted that he and his family claimed adverse possession of the tract
based on an existing ranch fence.           In response, Appellees filed suit against
Appellants asserting claims for trespass to try title, declaratory judgment, breach of
lease contracts, slander of title, and suit to quiet title.


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      With respect to the breach of lease claim, Larry Glass leased Section 3 from
Appellees Frank Glass and Carol Strother (along with other sections not subject to
this appeal) for ranching and grazing purposes. The term of the last lease agreement
expired on March 31, 2014. Larry Glass filed the Affidavit of Adverse Possession
in October 2014. Appellees asserted that Larry Glass breached the lease by failing
to return all of the leased property at the end of the lease term by filing the Affidavit
of Adverse Possession.
      Appellees filed a traditional motion for summary judgment seeking judgment
on all of the causes of action asserted in their petition. Appellees primarily relied
upon Rawls’s corrected field notes, the General Land Office’s acceptance of the
corrected field notes, the Deed of Acquittance issued by the General Land Office,
and the actions of Appellants’ predecessors-in-interest with respect to their
recognition and acceptance of Rawls’s survey.
      In their response to Appellees’ motion for summary judgment, Appellants
asserted that the 32.1-acre tract was originally located in Section 2 of Harris’s 1876
survey.   Appellants supported this contention with an affidavit from another
surveyor, Thomas J. Houston.         Houston asserted in his affidavit that he had
compared Harris’s original field notes from 1876 with Rawls’s corrected field notes
from 1954. Houston averred as follows: “I believe there is a conflict between the
original and corrected positions for Surveys 2 and 3. The east line of Survey 3 per
Rawls Corrected Field Notes is over 1000 feet east of the original and patented west
line of Survey 2.” 2 Houston concluded by stating that the 32.1-acre tract lies
between the original west line of Survey 2 and the corrected east line of Survey 3.




      2
       See previous footnote.


                                           4
On appeal, Appellants rely upon Houston’s position that the 32.1-acre tract is in the
original survey for Section 2.
                                       Analysis
        Appellants raise five issues on appeal. The first four issues challenge the
summary judgment entered by the trial court in favor of Appellees. Appellants’ fifth
issue is in response to Appellees’ cross-appeal. Appellees assert in a single issue
that the trial court abused its discretion by failing to award Appellees their attorney’s
fees.
        A grant of summary judgment is reviewed de novo on appeal. First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017).
When the trial court’s order fails to specify the grounds for its summary judgment,
we will affirm if any of the theories are meritorious. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). A party moving for traditional
summary judgment bears the burden of proving that there is no genuine issue of
material fact as to at least one essential element of the cause of action being asserted
and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). If the
movant initially establishes a right to summary judgment on the issues expressly
presented in the motion, then the burden shifts to the nonmovant to present to the
trial court any issues or evidence that would preclude summary judgment. See City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). When
reviewing a traditional motion for summary judgment, we review the evidence in
the light most favorable to the nonmovant, indulge every reasonable inference in
favor of the nonmovant, and resolve any doubts against the motion. City of Keller v.
Wilson, 168 S.W.3d 802, 824 (Tex. 2005).




                                           5
      Appellants contend in their first issue that the trial court erred in granting
summary judgment to Appellees because Appellees failed to prove a regular chain
of conveyances to the 32.1-acre tract as a part of Section 2. Appellants assert in their
second issue that the trial court erred if it relied upon the Deed of Acquittance for
granting Appellees’ motion for summary judgment. Both of these contentions are
premised on Houston’s contention that the 32.1-acre tract, per Harris’s original field
notes, was located in Section 2. Appellants assert that Rawls’s corrected field notes
for Section 3 and the Deed of Acquittance from the General Land Office based upon
the corrected field notes were ineffectual to alter the boundaries of Section 3 to
include the 32.1-acre tract. We disagree.
      Appellants’ claims based on Harris’s original field notes are an attempt to
establish record title to the 32.1-acre tract. However, Harris’s field notes have
essentially been cancelled by the State by the General Land Office’s acceptance of
Rawls’s corrected field notes and the issuance of the Deed of Acquittance. Rawls’s
corrected field notes were filed by Appellants’ predecessor-in-interest, the Estates
of J.L. and Mattie J. Glass at a time when Sections 2 and 3 were owned by the
Estates. In this regard, Larry Glass’s father was one of the executors of the estates
that sought the excess acreage for Section 3 from the General Land Office. Larry
Glass inherited Section 2 from his father.
        The Corpus Christi Court of Appeals addressed a similar contention in
Wofford v. Miller, 381 S.W.2d 640 (Tex. Civ. App.—Corpus Christi 1964, writ ref’d
n.r.e.). The appellant in Wofford claimed that property extended to a line depicted
on an earlier survey. 381 S.W.2d at 646. However, the earlier survey had been
“cancelled and corrected” and a patent issued by the State on corrected field notes.
The court held that the acceptance by the appellant’s predecessor-in-interest of a
patent under the corrected field notes had the effect of him and his assignees “losing


                                             6
all right to any additional area embraced in the prior field notes.” Id. With respect
to record title, the cancellation of the original field notes and issuance of a deed
based on the corrected field notes from the State results in a nullification of the
record title under the original field notes. Foster v. Duval Cty. Ranch Co., 260
S.W.2d 103, 108 (Tex. Civ. App.—San Antonio 1953, writ ref’d n.r.e.) (citing
Miller v. Yates, 15 S.W.2d 730 (Tex. Civ. App.—El Paso, 1929), aff’d, 61 S.W.2d
767 (Tex. 1933)).
      Thus, there is evidence of a chain of title in favor of Appellees, as owners of
Section 3, to the 32.1-acre tract because the tract is included within the metes and
bounds description of the corrected field notes and the Deed of Acquittance. For the
same reason, there is no record title in favor of Appellants for the 32.1-acre
tract. Accordingly, we overrule Appellants’ first and second issues. In light of
our disposition, we do not reach Appellants’ third and fourth issues.
      Appellees assert in their cross-issue that the trial court abused its discretion
by failing to award Appellees their attorney’s fees. Appellees sought attorney’s fees
on three grounds: (1) the parties’ grazing lease provided for the recovery of
attorney’s fees; (2) Appellants’ claim of adverse possession was made in bad faith;
and (3) the Declaratory Judgments Act allows for a recovery of attorney’s fees that
are just and equitable.
      “As a general rule, litigants in Texas are responsible for their own attorney’s
fees and expenses in litigation.” Ashford Partners, Ltd. v. ECO Res., Inc., 401
S.W.3d 35, 41 (Tex. 2012). A court may award attorney’s fees only when authorized
by statute or by the parties’ contract. MBM Fin. Corp. v. Woodlands Operating Co.,
292 S.W.3d 660, 669 (Tex. 2009). Whether a party is entitled to seek an award of
attorney’s fees is a question of law that we review de novo. Holland v. Wal–Mart
Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999).


                                          7
      With respect to the attorney-fee provision contained in the grazing lease,
Appellees assert that an award of attorney’s fees is mandatory under the contract.
The Civil Practice and Remedies Code provides that “[a] person may recover
reasonable attorney’s fees from an individual or corporation, in addition to the
amount of a valid claim and costs, if the claim is for . . . an oral or written contract.”
TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2015). To obtain an award of
attorney’s fees under Section 38.001, “a party must (1) prevail on a cause of action
for which attorney’s fees are recoverable, and (2) recover damages.” Green Int’l,
Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). However, “[p]arties are free to
contract for a fee-recovery standard either looser or stricter than Chapter 38’s.”
Intercontinental Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex.
2009). When parties include such a provision in a contract, the language of the
contract controls, rather than the language of the statute. Id. at 654–56.
      Appellees did not seek an award of mandatory attorney’s fees pursuant to the
grazing lease in either their petition or their motion for summary judgment. Instead,
Appellees only sought a recovery of attorney’s fees under Chapter 38. A party who
pleads for attorney’s fees only under Chapter 38 waives its claim for attorney’s fees
under a contractual provision. Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417
S.W.3d 46, 61 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (citing
Intercontinental Grp. P’ship, 295 S.W.3d at 659)).
      The trial court’s summary judgment makes no mention of the grazing lease
that provides the basis for Appellees’ claim for breach of contract. Additionally, the
trial court did not award Appellees any damages that resulted from the alleged breach
of the grazing lease. Accordingly, Appellees were not entitled to a recovery of
attorney’s fees for their breach of contract claim. See Green Int’l, Inc., 951 S.W.2d
at 390.


                                            8
      With respect to Appellees’ claim for attorney’s fees arising from Appellants’
claim of adverse possession, Section 16.034 of the Texas Civil Practice and
Remedies Code provides that an award is mandatory in a suit for the possession of
real property between a person claiming under record title to the property and one
claiming by adverse possession if the court finds that the claim of adverse possession
was groundless and made in bad faith. CIV. PRAC. & REM. § 16.034(a)(1) (West
Supp. 2017). In the absence of a finding of groundlessness and bad faith, an award
of attorney’s fees under the statute is discretionary. Id. § 16.034(a)(2); see NAC Tex
Hotel Co. v. Greak, 481 S.W.3d 327, 335 (Tex. App.—Tyler 2015, no pet.).
Appellees did not obtain a determination from the trial court that Appellants’ claim
of adverse possession was groundless and made in bad faith. In the absence of this
determination, Appellees were not entitled to mandatory attorney’s fees under
Section 16.034.
      Appellants assert that a cause of action for trespass to try title is the only viable
cause of action for a boundary dispute. They cite Martin v. Amerman, 133 S.W.3d
262, 263 (Tex. 2004), in support of this proposition. In making this contention,
Appellants are asserting that a declaratory judgment action is an improper cause of
action for this boundary dispute. We disagree. After the Texas Supreme Court’s
holding in Martin, the Texas Legislature added subsection (c) to Section 37.004 of
the Texas Civil Practice and Remedies Code. CIV. PRAC. & REM. § 37.004(c). This
subsection now specifically permits a declaratory judgment action “when the sole
issue concerning title to real property is the determination of the proper boundary
line between adjoining properties.” Id.; see Lile v. Smith, 291 S.W.3d 75, 78 (Tex.
App.—Texarkana 2009, no pet.). Accordingly, Appellees were entitled to assert a
claim for declaratory judgment under the Act as well as a claim for attorney’s fees
under the Act.


                                            9
      The Declaratory Judgments Act provides that, in any proceeding under the
Act, “the court may award costs and reasonable and necessary attorney’s fees as are
equitable and just.” CIV. PRAC. & REM. § 37.009. Appellees acknowledge that the
recovery of attorney’s fees under the Declaratory Judgments Act is discretionary.
Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (“The Declaratory Judgments
Act does not require an award of attorney fees to the prevailing party. Rather, it
provides that the court ‘may’ award attorney fees. The statute thus affords the trial
court a measure of discretion in deciding whether to award attorney fees or not.”).
Thus, an award or non-award of attorney’s fees under the Act is reviewed for an
abuse of discretion. Id. at 21.
      Accordingly, we direct our attention to Appellees’ contention that the trial
court abused its discretion by failing to award attorney’s fees under Section 16.034
and the Declaratory Judgments Act. A trial court abuses its discretion when it acts
arbitrarily or unreasonably, or when it acts without reference to any guiding rules or
principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997); Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In conducting an abuse of discretion
review, an appellate court views the evidence in the light most favorable to the trial
court’s ruling and indulges every presumption in its favor. Aquaduct, L.L.C. v.
McElhenie, 116 S.W.3d 438, 444 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
      Determining whether to award attorney’s fees is a question committed to the
trial court’s sound discretion because of the nature of the issue. Ridge Oil Co. v.
Guinn Investments, Inc., 148 S.W.3d 143, 161–62 (Tex. 2004). Whether it is
equitable and just to award attorney’s fees depends, not on direct proof, but on the
concept of fairness, in light of all the circumstances of the case. Id. at 162; see
Approach Res. I, L.P. v. Clayton, 360 S.W.3d 632, 639 (Tex. App.—El Paso 2012,
no pet.). As was the case in Ridge Oil, there is no indication in the record that the


                                         10
trial court’s decision to not award attorney’s fees was arbitrary or unreasonable.
Accordingly, the trial court did not abuse its discretion. We overrule Appellees’
cross-issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE


August 30, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J. 3

Willson, J., not participating.




        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


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