                                  MEMORANDUM OPINION
                                         No. 04-10-00763-CV

                                  THE CITY OF CHINA GROVE,
                                           Appellant

                                                    v.

                                         Mac S. MORRIS, Jr.,
                                              Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009-CI-02954
                            Honorable Janet P. Littlejohn, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: November 23, 2011

AFFIRMED

           The City of China Grove (“the City”) appeals the trial court’s judgment awarding Mac S.

Morris, Jr. attorney’s fees under the Uniform Declaratory Judgments Act.           We affirm the

judgment of the trial court.

                                                BACKGROUND

           Morris resides at 4244 Edwards Drive in China Grove. On February 9, 2009, the City

sent Morris a letter which notified him that “Edwards Dr. is a public street within the corporate
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limits of the City” and requested that Morris remove the fencing he had recently installed on the

East side of Edwards Drive to prevent public access to the street. The letter stated in relevant

part:

        Official city records indicate that “Edwards Drive” out of the “Grover Edwards
        118 ¼ acre tract” was a part of the original incorporation of the “Town of China
        Grove” along with several other streets.

        Minutes of the November 2, 1961 meeting naming the streets in China Grove also
        reflect the dedication of the street to the City of China Grove. Bexar County Tax
        Office reports that Edwards is a “Public Street Not Maintained by the County”
        and no tax monies have been collected accordingly.

A copy of the 1961 meeting minutes was enclosed with the letter sent to Morris.

        In response to the letter, Morris filed his Original Petition for Declaratory Judgment,

Temporary Injunction, and Permanent Injunction seeking a declaration that Edwards Drive was

not a public roadway. 1 Morris specifically requested that the trial court “enter a Judgment

construing the City’s minutes and other documentary claims [as] not granting to the City of

China Grove any valid claim to Edwards Drive as a public roadway.” Morris also sought

attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2008). The City filed a

general denial and asserted Morris had brought the action under the Declaratory Judgments Act

as a pretext to recover attorney’s fees.         The City also sought its own attorney’s fees and

sanctions.

        During the discovery process, Morris’s attorney, James Johnson, provided the City with

deeds and records showing that title to Edwards Drive was in Morris’s name.                      The City

subsequently stipulated that Edwards Drive was Morris’s private property, and the parties

proceeded to a bench trial solely on the issue of attorney’s fees. At trial, the City again contested

the propriety of the declaratory judgment suit. The City insisted that a different cause of action

1
  Morris also sued RST Construction, Inc., which owned land that abutted Edwards Drive. Morris sought a
declaration that RST had no rights of access to or use of Edwards Drive. Morris subsequently non-suited RST.

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would have been more appropriate, such as a trespass to try title; such a cause of action would

not permit an award of attorney’s fees. The trial court disagreed, and signed a final order in

which it found that the action was properly brought under the Declaratory Judgments Act, and

that Morris was entitled to recover attorney’s fees from the City. The trial court ordered the City

to pay Morris $13,440 as reasonable and necessary attorney’s fees.

       The City now appeals, arguing that the trial court erred in finding that the action was

properly brought under the Declaratory Judgments Act and in awarding Morris attorney’s fees

because the facts underlying Morris’s claim were outside the scope of the Declaratory Judgments

Act.

                         STANDARD OF REVIEW AND APPLICABLE LAW

       We review declaratory judgments under the same standards as other judgments. TEX.

CIV. PRAC. & REM. CODE ANN. § 37.010 (West 2008); Lidawi v. Progressive Cnty. Mut. Ins. Co.,

112 S.W.3d 725, 730 (Tex. App.—Houston [14th Dist.] 2003, no pet.).              We look to the

procedure used to resolve the issue at trial to determine the standard of review on appeal.

Lidawi, 112 S.W.3d at 730. When the trial court determines the declaratory judgment issue after

a bench trial, we review its factual findings under a sufficiency of the evidence standard and

review its conclusions of law de novo. Van Dam v. Lewis, 307 S.W.3d 336, 339 (Tex. App.—

San Antonio 2009, no pet.); Black v. City of Killeen, 78 S.W.3d 686, 691 (Tex. App.—Austin

2002, pet. denied).

       When the trial court does not enter findings of fact and conclusions of law, all facts

necessary to support the judgment and supported by the evidence are implied. BMC Software

Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). However, because the record

before us includes a reporter’s record, these implied findings are not conclusive and may be



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challenged on sufficiency grounds.       Id.    To analyze the legal sufficiency of the evidence

supporting a finding, we review the record in the light most favorable to the trial court’s finding

and indulge every reasonable inference that would support it. See City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005). Additionally, we credit favorable evidence if a reasonable fact-

finder could and disregard contrary evidence unless a reasonable fact-finder could not. Id. at

827.

       The Uniform Declaratory Judgments Act 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 of rights, status, or other
       legal relations thereunder.

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2008). A declaratory judgment action is

proper to interpret questions of document construction. See City of Schertz v. Parker, 754

S.W.2d 336, 338 (Tex. App.—San Antonio 1988, no writ) (dispute over construction of city

ordinance was an actual, bona fide, and justiciable controversy authorized under the Declaratory

Judgments Act); City of Austin v. Pendergrass, 18 S.W.3d 261, 264 (Tex. App.—Austin 2000,

no pet.) (holding that question regarding construction of a city ordinance was properly

determined under the Declaratory Judgments Act).

                                               DISCUSSION

       Both parties disagree about the underlying basis of the lawsuit. The City maintains that

the real controversy between the parties was title and ownership of Edwards Drive. The City

relies on caselaw holding that suit under the Declaratory Judgments Act is generally not proper

where title to real estate is in dispute. See Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004)

(dispute involving question of title to real property must be brought as trespass to try title action).

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Thus, the City contends that a different action, such as a suit for trespass to try title, would have

been the appropriate method to resolve Morris’s claim. See Hawk v. E.K. Arledge, Inc., 107

S.W.3d 79, 84 (Tex. App.—Eastland 2003, pet. denied) (“Attorney’s fees are not recoverable

[under the Declaratory Judgments Act] when the real essence of the suit is one in trespass to try

title.”). Morris counters that title to Edwards Drive was never in dispute. He maintains that

“[t]he only issue in dispute was whether the 1961 resolution/municipal ordinance gave the City

of China Grove a public easement.” Additionally, Morris contends that he could not have

brought a trespass to try title action because the City neither possessed Edwards Drive nor

claimed title to Edwards Drive as required under Rule 784 of the Texas Rules of Civil Procedure.

See TEX. R. CIV. P. 784. We agree that a declaratory judgment action was proper in this

instance.

       At trial, James Johnson, Morris’s first attorney, testified on behalf of Morris. Johnson, a

board certified real estate attorney, explained that he interpreted the February 2009 letter as an

assertion by the City that it was attempting to prove that Edwards Drive was dedicated as a

public roadway by virtue of the 1961 minutes stating a motion was passed by the city council to

place street signs on certain streets. Johnson stated that Morris filed suit asking the trial court to

construe the 1961 minutes, and to declare what legal rights, if any, the document gave the City.

Morris, of course, disagreed that the 1961 minutes gave the City any rights to his private

property.   Thus, the trial court was presented with “an actual, bona fide, and justiciable

controversy” as to the proper construction of the 1961 city council meeting minutes. See City of

Schertz, 754 S.W.2d at 338. Accordingly, because the suit pertained to construction of a written

document affecting Morris’s property interests, suit was authorized under the Declaratory

Judgments Act and the trial court did not err in awarding attorney’s fees. See TEX. CIV. PRAC. &



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REM. CODE ANN. § 37.004(a); City of Schertz, 754 S.W.2d at 338; City of Austin, 18 S.W.3d at

264.

        Further, we agree that the City never claimed title to the property at issue. The February

2009 letter referenced “dedication of the street to the City of China Grove,” but did not otherwise

imply that the City owned Edwards Drive. Additionally, never during the course of litigation did

the City claim ownership of the property. In fact, prior to trial, the City stipulated that Edwards

Drive was Morris’s private property. At oral argument before this court, the City stressed that

the February 2009 letter’s reference to the fact that “no tax monies have been collected” on the

property placed the issue of title in dispute. We disagree that this assertion alone amounted to an

explicit claim of title.

        Moreover, we disagree with the City’s argument that Morris should have brought a

trespass to try title action. A trespass to try title suit is “the method of determining title to lands,

tenements, or other real property.” TEX. PROP. CODE ANN. § 22.001(a) (West 2000); see Martin,

133 S.W.3d at 267. Generally, trespass to try title suits involve competing deeds. See, e.g.,

McRae Exploration & Prod., Inc. v. Reserve Petroleum Co., 962 S.W.2d 676, 678-79 (Tex.

App.—Waco 1998, no pet.) (noting that title dispute between competing deeds did not involve

the construction of validity of deeds and therefore was an action for trespass to try title, not for

declaratory judgment); Archaeological Conservancy v. Wilson Land & Cattle Co., No. 03-08-

00061-CV, 2010 WL 1253576, at *5 (Tex. App.—Austin Mar. 30, 2010, no pet.) (mem. op.)

(noting that action to determine title to land under competing deeds is “precisely what the

trespass-to-try-title action is intended to address”) (citing Lile v. Smith, 291 S.W.3d 75, 78 (Tex.

App.—Texarkana 2009, no pet.), and Roberson v. City of Austin, 157 S.W.3d 130, 136 (Tex.

App.—Austin 2005, pet. denied)). Further, Rule 784 provides that the defendant in a trespass to



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try title action “shall be the person in possession if the premises are occupied, or some person

claiming title thereto in case they are unoccupied.” TEX. R. CIV. P. 784. Here, because the City

neither possessed the property at issue nor claimed title to the property at issue, Morris could not

have properly brought a trespass to try title action against the City. See id.; see also Williams v.

Ballard, 722 S.W.2d 9, 11 (Tex. App.—Dallas 1986, no writ) (noting that the person in

possession of the premises is a necessary party defendant in a trespass to try title suit).

       On this record, we conclude the evidence is sufficient to support the trial court’s

judgment awarding Morris attorney’s fees under the Declaratory Judgments Act. Thus, we

overrule the City’s issues on appeal, and affirm the judgment of the trial court.



                                                       Phylis J. Speedlin, Justice




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