                                     In The

                               Court of Appeals

                   Ninth District of Texas at Beaumont

                             _________________

                              NO. 09-18-00083-CV
                             _________________

M & M RESOURCES, INC. and ENERGY LAND RESOURCES, Appellants

                                       V.

DSTJ, LLP, DSTJ CORPORATION and MILESTONE OPERATING, INC.,
                         Appellees
________________________________________________________________________

                   On Appeal from the 172nd District Court
                          Jefferson County, Texas
                         Trial Cause No. A-172,979
________________________________________________________________________

                                   OPINION

      M & M Resources, Inc. (M & M) and Energy Land Resources (ELR) appeal

two orders issued by the trial court under Texas Civil Practice and Remedies Code

section 51.014(d) sustaining DSTJ, L.L.P.’s (DSTJ) and Milestone Operating, Inc.’s




                                        1
(Milestone) special exceptions and partial motion to strike. 1 See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(d) (West Supp. 2017). The trial court orders at issue are

(1) “Order Sustaining Defendants’ Special Exceptions to Plaintiffs[’] and Third-

Party Defendants’ 7th Amended Original Petition” signed February 9, 2018; and (2)

“Order Granting Defendants’ Motion to Strike Paragraphs 22 (‘M & M’s

Declaratory Judgment’) and 32–33 (‘Attorney’s Fees’) in Plaintiffs[’] and Third-

Party Defendants’ 8th Amended Original Petition” signed February 22, 2018. M &

M and ELR assert their sole issue on appeal is “whether . . . ratification, which is a

fact question . . . can be determined under Section 37.004 of the Texas Civil Practice

and Remedies Code.” DSTJ and Milestone disagree with M & M and ELR’s framing

of the issue and contend it is correctly framed as

       “[w]hether the trial court abused its discretion when the Court
      sustained Appellee’s special exceptions and, thereafter, struck portions
      of Appellants’ pleadings seeking declaratory relief and attorney’s fees
      due to substantive defects; namely, that the dispute over the title to
      mineral rights, which Appellants claim reside[] with them due to
      alleged termination [of] an Assignment of mineral leases, should have
      been brought as a trespass to try title claim, under which attorney’s fees
      may not be awarded.”




      1
        The trial court’s orders granted Appellants the right to bring a permissive
interlocutory appeal.
                                         2
We determine Appellees have properly framed the issue. See Tex. R. App. P. 38.1(e)

(“The statement of an issue or point will be treated as covering every subsidiary

question that is fairly included.”).

                                Factual Background2

      The underlying lawsuit involves a dispute over certain mineral estates in

Jefferson County, Texas, specifically oil and gas leases. ELR and its owners, A.M.

“Mickey” Phelan, III and Daniel Phelan, operate as “landmen” acquiring oil and gas

leases of mineral interests. DSTJ3 alleges it retained ELR in 2001 to negotiate with

landowners in Jefferson County and obtain leases of mineral properties in the

Bennett Blackman 4 and Gilleland Surveys. During 2001 and 2002, ELR procured

several leases in the area DSTJ desired. Rather than acquire the leases in the name

of DSTJ, ELR acquired the leases in the name of M & M, another company in which

the Phelans had an ownership interest. M & M then executed an “Assignment of Oil,

Gas and Mineral Leases” (“the Assignment”) which assigned twenty-one leases in




      2
        After notifying the parties and receiving no objections, we take judicial
notice of the records of the previous appeals in this matter.
      3
        DSTJ, L.L.P. is the successor in interest to DSTJ Corporation.
      4
        Exhibit “A” to the Assignment refers to the “Bennette Blackman Survey.”
Other records as well as the parties refer to it as the “Bennett Blackman Survey,” as
do we throughout this opinion.
                                         3
the Bennett Blackman and Gilleland Surveys to DSTJ. 5 The Assignment was

executed on September 10, 2002, and signed by A.M. Phelan, III, president of M &

M. The Assignment reserved an override royalty interest and contained a provision

by which the assigned leases would automatically terminate and revert to M & M

upon default by DSTJ. Paragraph M of the Assignment states

      If Assignee fails to make any payment under this Assignment when
      due, and still fails to pay within 30 days following receipt of Assignor’s
      written demand for payment by certified mail to the address shown
      above, return receipt requested, Assignor shall have the option to
      terminate this Assignment in its entirety at the expiration of that 30-day
      period by filing written notice of termination in the real property
      records of Jefferson County, Texas. Upon termination, the Leases shall
      automatically revert to Assignor without any further action, together
      with all of Assignee’s right, title and interest in all equipment, personal
      property and fixtures located on, or held or used in connection with the
      Leases. The reverted interests shall be free of all liens, security
      interests, production burdens and other encumbrances and defects
      created by, through or under Assignee, all of which shall be void as to
      Assignor. Assignor’s remedies in this Paragraph M are cumulative, and
      are in addition to any other legal or equitable remedies available to
      Assignor for Assignee’s breach of this Assignment.

DSTJ alleged in its counterclaim that M & M recorded the Assignment in the

Jefferson County property records before M & M sent it to DSTJ for review. A.M.




      5
         M & M executed a second Assignment on March 7, 2003, containing
identical provisions and assigning ten additional leases in the Gilleland Survey to
DSTJ, but the main dispute between the parties arises out of the first Assignment.
                                          4
Phelan, III admitted in his testimony that he never gave DSTJ an opportunity to sign

and convey its acceptance of the Assignment.

      In March 2004, M & M notified DSTJ they were in default of the Assignment

and made written demand for payment in a letter signed by Daniel Phelan. The same

day, ELR sent DSTJ a letter signed by Daniel Phelan specifically demanding

payment of all money due under the Barrier lease assigned by M & M to DSTJ. 6 On

July 28, 2004, M & M recorded a “Notice of Termination” of the Assignment from

M & M to DSTJ and giving notice that the leases in the Assignment automatically

reverted to M & M.7

                              Procedural Background

      The procedural background is complex, but we will give a cursory recitation

of those facts, as they are helpful in determining the relationships of the parties and

the controversy in the underlying litigation.

      Contemporaneously with recording the Notice of Termination, M & M filed

its “Petition for Declaratory Judgment” against DSTJ alleging that DSTJ failed to

make royalty payments due under the assignment for drilling and production




      6
        Chauncey Shephard Barrier was the Lessor, and M & M Resources, Inc. was
the Lessee. The lease was included in the first Assignment from M & M to DSTJ.
      7
        The “Notice of Termination” was signed by A.M. Phelan, III.
                                          5
associated with the Quail No. 1 well. M & M asserted the Assignment terminated

when DSTJ failed to make payment after written demand. M & M sought a

declaratory judgment under Chapter 37 of the Texas Civil Practice and Remedies

Code that the Assignment terminated; that any right, title and interest of DSTJ in the

leases made a part of the Assignment terminated; and, that all rights, title and

interests conveyed by the leases of the Assignment are owned by M & M. M & M

also sought to recover its costs and attorney’s fees under section 37.009 of the Texas

Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 37.009

(West 2015). DSTJ counterclaimed against M & M and filed a third-party claim

against ELR. Milestone intervened as the entity that drilled the Quail No. 1 well,

having received competing claims to funds from the production of the well.

       The parties amended their petitions, counter-petitions, and answers several

times. Consistently, through its eighth amended original petition, M & M has

maintained its action for declaratory judgment seeking a declaration that it owns the

mineral leases at issue and that any interest DSTJ had in the leases under the

Assignment terminated. Additionally, M & M pleaded a cause of action for trespass

to try title and for a fraudulently filed lien.

       The first trial ended in a mistrial in June 2009. In October 2009, the Court

granted M & M’s partial summary judgment finding DSTJ ratified the Assignment;

                                             6
terminated the Assignment from M & M to DSTJ; terminated all title, right and

interest DSTJ had in the leases; and terminated DSTJ’s right, title and interest in all

equipment, personal property and fixtures located on, or held or used in connection

with the leases and granted ownership to M & M. After the trial court granted M &

M’s partial summary judgment, the case was tried again in February 2011, to resolve

(1) ELR’s claims that three of the four leases terminated for failure to timely

commence operations, (2) attorney’s fees, and (3) DSTJ’s claims for breach of

fiduciary duty for purchase of the Barrier Minerals against ELR. The jury returned

a verdict finding that M & M incurred reasonable attorney’s fees and costs totaling

$500,280.00, but the jury also found ELR breached its fiduciary duty to DSTJ. On

appeal, this court reversed the October 2009 partial summary judgment and

therefore, the final judgment and issued a general remand of the case for a new trial.8

See DSTJ, LLP v. M & M Resources, Inc., No. 09-11-00292-CV, 2012 WL 2450820,

at *8 (Tex. App.—Beaumont, June 28, 2012, pet. denied) (mem. op.).




      8
        Initially, the trial court refused to retry the entire case and took the position
this court’s opinion was not a general remand. DSTJ sought mandamus relief, and
the Fourteenth Court of Appeals in Houston held this court’s remand was a general
remand. See In re DSTJ, LLP, No. 14-16-00645-CV, 2016 WL 6603739, at *5 (Tex.
App.—Houston [14th Dist.] Nov. 8, 2016, orig. proceeding) (mem. op.).
                                           7
         The procedural background immediately preceding this appeal warrants

discussion in greater detail. DSTJ filed special exceptions to M & M and ELR’s sixth

amended original petition. 9 In its special exceptions, DSTJ complained that

paragraphs 20–29 of M & M’s sixth amended original petition were an improper

attempt to couch a trespass to try title action as a claim for declaratory relief under

the Uniform Declaratory Judgments Act (“UDJA”). DSTJ also asserted in their

special exceptions that any claim for attorney’s fees was improper in a suit to quiet

title.

         Before the trial court ruled on DSTJ’s special exceptions to M & M’s sixth

amended original petition, M & M amended its petition again. Although the seventh

amended petition added a claim for trespass to try title and a suit to quiet title, it still

contained claims for declaratory judgment and sought attorney’s fees under the

UDJA. DSTJ then filed its “First Supplement to Its Motion for Special Exceptions”

in which it complained of M & M’s sixth and seventh amended original petitions.

DSTJ specially excepted to paragraphs 22, 23, and 24 of the seventh amended

original petition contending that the “claims (declaratory judgment) [] are not

permitted by law[,]” the “claim[s] may only be brought as a trespass to try title


         9
        The petition included a claim for declaratory judgment to quiet title and for
trespass to try title.
                                             8
claim,” and the “defect may only be cured by eliminating these claims and

proceeding only with the claim for trespass to try title[.]” DSTJ further specially

excepted to paragraphs 27–30 of M & M’s seventh amended original petition in

which M & M requested a finding that DSTJ’s lien was invalid and “quieting title”

“for oil and gas purposes” to the mineral rights M & M asserts are subject to the

Assignment. DSTJ argued those claims were not appropriate for declaratory relief

but may be brought only as a trespass to try title claim. Last, DSTJ specially excepted

to paragraphs 32–33 of M & M’s seventh amended petition in which M & M pleaded

claims for attorney’s fees. DSTJ contended that attorney’s fees are not recoverable

in a trespass to try title action. The trial court sustained DSTJ’s special exceptions

to paragraphs 22, 32, and 33 of M & M’s seventh amended original petition and

ordered M & M to replead paragraphs 23 and 24 within seven days, providing M &

M an opportunity to amend its petition.

      M & M subsequently filed its eighth amended original petition. Even so,

paragraphs 22, and 32–33 of that petition were identical to those of the seventh

amended petition. In response, DSTJ filed a “Motion to Partially Strike Pleadings,”

asking the court to strike those paragraphs for which special exceptions were

sustained, arguing M & M failed to replead or eliminate the paragraphs (paragraphs

22, 32–33) and thus M & M had not cured the substantive defects. The trial court

                                          9
signed an “Order Granting Defendants’ Motion to Strike Paragraphs 22 (‘M & M’s

Declaratory Judgment’) and 32–33 (‘Attorney’s Fees’) in Plaintiffs[’] and Third-

Party Defendants’ 8th Amended Original Petition” and suggested the order could be

appealed on an interlocutory basis. The trial court’s order effectively dismissed M

& M’s declaratory judgment action and associated claims for attorney’s fees.

Additionally, the trial court’s order struck paragraph 33 of M & M’s eighth amended

petition which sought attorney’s fees associated with M & M’s fraudulent lien claim

under Civil Practice and Remedies Code section 12.002. This interlocutory appeal

ensued.

                               Standard of Review

      We review a trial court’s ruling on special exceptions under an abuse of

discretion standard. See Ross v. Goldstein, 203 S.W.3d 508, 512 (Tex. App.—

Houston [14th Dist.] 2006, no pet.). “The trial court has broad discretion to grant

special exceptions, and an appellate court will not disturb the trial court’s ruling

absent an abuse of discretion.” Hoover v. J & J Home Insps., No. 09-13-00454-CV,

2015 WL 367105, at *4 (Tex. App.—Beaumont Jan. 29, 2015, no pet.) (mem. op.)

(citing Ford v. Performance Aircraft Servs., 178 S.W.3d 330, 335 (Tex. App.—Fort

Worth 2005, pet. denied); Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65 (Tex. App.—

San Antonio 2003, pet. denied); Mowbray v. Avery, 76 S.W.3d 663, 678 (Tex.

                                        10
App.—Corpus Christi 2002, pet. denied)). Whether a trial court abuses its discretion

depends on whether it acted without reference to guiding rules and principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Ross,

203 S.W.3d at 512. Likewise, we review a trial court’s ruling on a motion to strike

pleadings for an abuse of discretion. See Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 657 (Tex. 1990) (op. on reh’g) (noting a trial court

has broad discretion in determining whether an intervention should be stricken);

Gallien v. Washington Mut. Home Loans, Inc., 209 S.W.3d 856, 862 n.9 (Tex.

App.—Texarkana 2006, no pet.) (noting whether the trial court’s order was treated

as simply an order striking pleadings or as the functional equivalent of a dismissal,

the appellate court would apply the abuse of discretion standard of review).

                                      Analysis

      Special exceptions are a mechanism to question the legal sufficiency of a

plaintiff’s petition. Ross, 203 S.W.3d at 512. Special exceptions are also appropriate

to challenge a pleading for failing to allege a cause of action recognized in Texas.

Id. (citing Trevino v. Ortega, 969 S.W.2d 950, 951–52 (Tex. 1998)). Texas Rule of

Civil Procedure 91 governs the filing of special exceptions. See Tex. R. Civ. P. 91.

That rule requires special exceptions “not only point out the particular pleading



                                         11
excepted to, but it shall also point out intelligibly and with particularity the defect

. . . or other insufficiency in the allegations in the pleading excepted to.” Id.

      In its special exceptions and supplement, DSTJ identified the defects in M &

M’s sixth and seventh amended original petitions. DSTJ identified specific

paragraphs in M & M’s petitions which it contended constituted improper attempts

to include in a declaratory judgment action claims they contended should only be

brought in a trespass to try title action. DSTJ further excepted to the paragraphs in

these amended petitions that sought attorney’s fees under the UDJA, because if M

& M’s claims were properly brought as a trespass to try title action, the Texas

Property Code would not allow for recovery of attorney’s fees.

      DSTJ specially excepted to paragraphs 22, 23, and 24 of the seventh amended

original petition on the basis the “claims (declaratory judgment) [] are not permitted

by law[,]” the “claim[s] may only be brought as a trespass to try title claim,” and the

“defect may only be cured by eliminating these claims and proceeding only with the

claim for trespass to try title[.]” DSTJ further specially excepted to paragraphs 27–

30 of M & M’s seventh amended original petition, in which M & M requested a

finding that DSTJ’s lien was invalid and “quieting title” “for oil and gas purposes”

as to the mineral rights M & M asserts are subject to the Assignment, and DSTJ

argued those claims were not appropriate for declaratory relief, but must be brought

                                           12
as a trespass to try title claim. We conclude DSTJ’s special exceptions comport with

Rule 91.

      If a trial court sustains special exceptions and requires a party to replead, the

litigant must obey the order and file a curative amendment or suffer the

consequences of dismissal. Hefley, 131 S.W.3d at 65. Here, the trial court’s order

sustained DSTJ’s special exceptions to paragraph 22, which outlined a claim for

declaratory judgment under Texas Civil Practice and Remedies Code section 37.004,

and paragraphs 32–33, which requested attorney’s fees. The order also required M

& M to replead paragraphs 23–24, which outlined ELR’s declaratory judgment cause

of action. M & M never amended its pleading to re-plead or otherwise remove

paragraphs 22 and 32–33. Instead, identical paragraphs are contained in its eighth

amended original petition.10 DSTJ therefore moved to partially strike pleadings,

specifically paragraphs 22 and 32–33 from M & M’s pleadings. The trial court

granted the motion to strike those paragraphs, effectively dismissing M & M’s

declaratory judgment cause of action. M & M’s cause of action for trespass to try

title was not affected by the trial court’s order.




      10
         M & M and ELR amended the paragraphs 23–24 to remove ELR’s
declaratory judgment and outline a trespass to try title claim.
                                           13
      We now turn to the propriety of the trial court’s ruling sustaining DSTJ’s

special exceptions. See Hoover, 2015 WL 367105, at *4 (“Where a trial court has

sustained special exceptions and dismissed [a] cause of action following the

appellant’s failure to amend, the controlling issue is the propriety of the trial court’s

ruling sustaining the special exceptions.”) (citing Cole v. Hall, 864 S.W.2d 563, 566

(Tex. App.—Dallas 1993, writ dism’d w.o.j.)).

      At the heart of this dispute is which party holds rightful title to certain mineral

interests. In its live petition, M & M seeks a judgment declaring that it “is the owner

of the mineral interests” and awarding it title to all personal property and fixtures

“located on, or held in connection with the twenty-one (21) leases[.]” Even though

M & M and ELR couched the relief sought under the Declaratory Judgments Act,

the underlying dispute remains unchanged. See Tex. Parks & Wildlife Dep’t v.

Sawyer Trust, 354 S.W.3d 384, 389 (Tex. 2011)

      Whether a claimant must seek relief related to property interests through a

trespass to try title action, as opposed to a suit under the Declaratory Judgments Act,

has been a source of confusion. Lance v. Robinson, 543 S.W.3d 723, 735 (Tex.

2018). “Generally, a trespass to try title claim is the exclusive method in Texas for

adjudicating disputed claims of title to real property.” Sawyer Trust, 354 S.W.3d at

389. The UDJA states a “person interested under a deed . . . or whose rights, status,

                                           14
or other legal relations are affected by 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) (West 2015). Having rights under some instruments

determined in a declaratory judgment action can be efficient for the parties. Martin

v. Amerman, 133 S.W.3d 262, 265 (Tex. 2004).

      Even so, the Texas Property Code provides a “trespass to try title action is the

method of determining title to lands, tenements, or other real property.” Lance, 543

S.W.3d at 735 (quoting Tex. Prop. Code Ann. § 22.001(a) (West 2014)) (emphasis

added by Texas Supreme Court). Texas Rules of Civil Procedure 783 through 809

governing trespass to try title actions require detailed pleading and proof. See Tex.

R. Civ. P. 783–809; Martin, 133 S.W.3d at 265. “[A] plaintiff must usually (1) prove

a regular chain of conveyances to the sovereign, (2) establish superior title out of a

common source, (3) prove a title by limitations, or (4) prove title by prior possession

coupled with proof that possession was not abandoned.” Martin, 133 S.W.3d at 265,

(citing Plumb v. Stuessy, 617 S.W.2d 667, 668) (Tex. 1981)).

      This court recently had the opportunity to examine a case with similar issues.

See Lackey v. Templeton, No. 09-17-00183-CV, 2018 WL 3384570 (Tex. App.—

Beaumont July 12, 2018, pet. filed) (mem. op.). Lackey involved competing claims

                                          15
against mineral estates in which the trial court denied the appellant’s special

exceptions and granted partial summary judgment in favor of appellees who pursued

their claims as a declaratory judgment action but failed to plead trespass to try title.

See id. at *1. Much like DSTJ’s arguments here, the appellants in Lackey argued

appellees were not entitled to plead a claim that must be brought as a trespass to try

title suit as a declaratory judgment action solely to obtain attorney’s fees. See id. at

*2. In that case, this court held appellees “were required to plead and prove a

trespass-to-try-title action because their pleadings and motions for partial summary

judgment sought to adjudicate title to mineral estates.” Id. at *6. We held “that

because [appellees] failed to plead a trespass-to-try-title action, the trial court erred

in denying the defendants’ special exceptions[.]” Id.

      “If a dispute involves a claim of superior title and the determination of

possessory interests in property, it must be brought as a trespass-to-try-title action.”

Jinkins v. Jinkins, 522 S.W.3d 771, 786 (Tex. App.—Houston [1st Dist.] 2017, no

pet.) (citing Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 926

(Tex. 2013)). Moreover, when the “trespass-to-try-title statute governs the parties’

substantive claims . . . [a party] may not proceed alternatively under the Declaratory

Judgments Act to recover their attorney’s fees.” Martin, 133 S.W.3d at 267.



                                           16
      Here, because the underlying dispute involves ownership of the possessory

interest in the mineral estates at issue, we conclude the proper and mandatory vehicle

for resolving those claims is a trespass to try title action. See id.; Lackey, 2018 WL

3384570, at *6; Jinkins, 522 S.W.3d at 786; see also Tex. Prop. Code Ann. § 22.001.

M & M may not proceed alternatively under the UDJA to seek recovery of their

attorney’s fees. See Martin, 133 S.W.3d at 267; Jinkins, 522 S.W.3d at 786.

      M & M wishes to frame the issue before us as ratification of the assignment,

and we agree there are fact issues surrounding that question, among others. See

DSTJ, L.L.P., 2012 WL 2450820, at *8. However, we disagree that ratification

somehow negates the requirement this case be pleaded and litigated as a trespass to

try title action or otherwise allows M & M to pursue declaratory relief in the

alternative. Ratification may be an issue of the suit, but it is an issue within the

context of a trespass to try title case, adjudicating which party holds superior title to

the mineral estates.

      Next, we turn to whether the trial court properly sustained and subsequently

struck M & M’s claim for attorney’s fees under section 12 of the Texas Civil Practice

and Remedies code for an alleged fraudulently filed lien.11 See Tex. Civ. Prac. &


      11
        M & M’s claim for attorney’s fees under section 12 are contained in
paragraph 33 of its live pleading.
                                           17
Rem. Code Ann. §§ 12.002(b), 12.006 (West 2014). We note that while DSTJ moved

to strike the portion of the pleading seeking attorney’s fees under sections 12.002(b)

and 12.006, it did not move to strike M & M’s underlying claim for filing an

allegedly fraudulent lien under section 12.002.12

      A claim for a fraudulently filed lien under section 12 of the Texas Civil

Practice and Remedies Code allows for the recovery of attorney’s fees. See id. §§

12.002(b), 12.006. Whether the rule prohibiting a plaintiff from recovering

attorney’s fees in a trespass to try title case by pursuing a declaratory judgment

action in the alternative likewise bars a plaintiff from recovering attorney’s fees in a

fraudulent lien action appears to be a question of first impression.

      In its live petition, M & M requested that the court enter a judgment that the

Affidavit of Lien Against Mineral Property filed by DSTJ is invalid, thereby quieting

title to the land, leasehold interest, and all personal property and fixtures associated

with the mineral interests. By the very nature of M & M’s requested relief, the lien

is subject to the outcome of the trespass to try title action. The law is clear when the

substance of the controversy involves the resolution of issues of title to real property,

the proper vehicle to adjudicate those issues is a trespass to try title suit. See Tex.


      12
         M & M’s claim for filing an invalid or unenforceable lien under section
12.002 is contained in paragraph 29 of its live pleading.
                                           18
Prop. Code Ann. § 22.001(a) (trespass to try title as “the method of determining title

to . . . real property”) (emphasis added); see also Lance, 543 S.W.3d at 735;

Coinmach, 417 S.W.3d at 926; Martin, 133 S.W.3d at 267. The law is well-settled

in a trespass to try title case, a plaintiff may not alternatively pursue a declaratory

judgment action to seek recovery of attorney’s fees. See Coinmach, 417 S.W.3d at

926; Martin, 133 S.W.3d at 267. The disputes here for personal property, fixtures

and DSTJ’s filing of a lien against one of the mineral estates all hinge on which party

has a superior possessory or ownership interest in the mineral estate. Resolution of

the trespass to try title action necessarily implicates the merits of M & M’s claim

that DSTJ’s recorded lien is fraudulent. For the same reasons courts have held a

plaintiff may not alternatively pursue a declaratory judgment action in a trespass to

try title case to seek to recover attorney’s fees, we likewise conclude a plaintiff may

not alternatively pursue a claim for a fraudulently filed lien under section 12 of the

Texas Civil Practice and Remedies Code in a trespass to try title action to seek to

recover attorney’s fees. See Coinmach, 417 S.W.3d at 926; Martin, 133 S.W.3d at

267. In this trespass to try title case, the trial court did not abuse its discretion in




                                          19
striking M & M’s request for attorney’s fees in connection with its claim for a

fraudulently filed lien under section 12. 13

      We overrule appellant’s sole issue.

                                      Conclusion

      M & M and ELR’s claims in this case seek a determination of superior title to

the mineral estates at issue and as such, must be pursued as a trespass to try title

action, which cause of action does not allow for the recovery of attorney’s fees. Thus,

M & M and ELR may not seek recovery of attorney’s fees by alternatively pleading

a cause of action under the Declaratory Judgments Act or for a fraudulently filed

lien. We conclude the trial court did not abuse its discretion in sustaining DSTJ’s

special exceptions and striking those portions of M & M’s pleading seeking

declaratory relief and attorney’s fees.

      AFFIRMED.

                                                ________________________________
                                                        CHARLES KREGER
                                                              Justice



      13
          We note that while DSTJ did not ask the court to strike Paragraph 29 of
plaintiffs’ eighth amended petition and only asked the court to strike the attorney’s
fees associated with that claim, such a cause of action is not permitted in a trespass
to try title case and should be handled in a manner analogous to a declaratory
judgment action in such cases.
                                           20
Submitted on June 5, 2018
Opinion Delivered November 15, 2018

Before McKeithen, C.J., Kreger, and Burgess, JJ




                                       21
