                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00135-CV
         ______________________________


             DANNY D. LILE, Appellant

                          V.

DON SMITH AND WIFE, SHIRLEY SMITH, Appellees



    On Appeal from the 62nd Judicial District Court
                 Delta County, Texas
                Trial Court No. 10174




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Moseley
                                              OPINION

        Don Smith and wife, Shirley Smith, brought suit against Danny Lile and wife, Paulette Lile,

under the Declaratory Judgments Act (Chapter 37 of the Texas Civil Practice and Remedies Code),

asking for a declaration that the Smiths were the owners of certain lands; at the conclusion of the

trial before the court, a judgment was entered declaring that the legal and equitable title of the

disputed lands belonged to the Smiths. Lile1 has appealed. We reverse the judgment of the trial

court and render a take-nothing judgment.

ORIGIN OF DISPUTE

        The seed of this dispute was planted in 1967 when a receiver in a partition suit was appointed

to sell certain real estate, including a called thirty-acre tract in the Southern L. Rattan Survey of Delta

County, Texas. In the deed executed by that receiver and approved by the judge of the court

appointing him, there was additional property included in the receiver's deed which was not

contained in the order directing the receiver to sell that additional property measuring forty feet in

width and 2,250 feet, more or less, in length which traveled northerly from the northwest corner of

the thirty-acre tract to an east/west county road. No evidence was presented that there was any

record source of the title to the strip of land (or "lane") received by the receiver and there was no




        1
        Danny Lile testified at trial that his spouse had died, that he was her sole heir, and stated that
he was content to proceed solely. No objection was raised by the Smiths and no suggestion of death
was filed by either party. Henceforth, references to those parties will be in the singular.

                                                    2
explanation given for its insertion into the receiver's deed.2 There was a regular chain of title of this

thirty-acre tract and the lane beginning with the 1967 receiver's deed and ending in a 1994 deed to

the Smiths.

        During the period of 1994 through 1996, Lile acquired tracts of land situated immediately

to the north of the thirty-acre tract which was traversed by the strip of land to which reference is

made above. The location of the lane mentioned in the 1967 receiver's deed conflicted substantially

with the lands acquired by Lile.

        In 1996, Lile and the Smiths shared the cost of the construction of a fence along the west

boundary of the strip of land in controversy. Lile had his property surveyed in 2002.

        In 2006, Lile sent a letter to the Smiths which stated that although Lile had given consent for

the use of the lane in the past, that consent was being withdrawn. The letter further advised the

Smiths to inform their renters (who were then using the property) to cease its use. Lile then fenced

both the north and south termini of the lane and locked the entrance of the lane property onto the

county road. This lawsuit was filed shortly after this was done.

PLEADINGS AND PROCEEDINGS AT TRIAL

        The Smiths' initial petition contained only a plea for declaratory judgment relief, seeking a

declaration that the Smiths were the owners of the property and that Lile had wrongfully denied them

access to it; they also sought the recovery of attorney's fees. In his original answer, Lile made

        2
        One is reminded of the story in Greek mythology that Athena sprang full grown from the
brow of Zeus. Here, this "lane" appears to have sprung full grown in the mind of the receiver.

                                                   3
exception to the petition, claiming that declaratory judgment was not proper under the circumstances

and that the appropriate cause of action was trespass to try title. Without obtaining a ruling on the

exception and after the expiration of some months, Lile then made a demand for abstract.3 Lile never

made a pretrial request that the Smiths be barred from introducing written evidence of their claim

as provided in Rule 792. See TEX . R. CIV . P. 792.

       Only two days before trial, the Smiths amended their pleadings, reiterating their same claims

for recovery under declaratory judgment, but adding an alternative pleading in trespass to try title.

However, at the outset of the trial before the court, the Smiths announced that they were abandoning

their trespass to try title pleadings and proceeding solely under the remaining declaratory judgment

action. After testimony was given, the trial court entered a judgment declaring that the Smiths were

the owners of the legal and equitable title to the land in question and that Lile had wrongfully denied

them access to it.

SUIT AS AN ACTION FOR DECLARATORY JUDGMENT

       Lile's first point of error complains that the trial court had no authority to enter the

declaratory judgment finding the Smiths to be the owners of the property.

       By statutory mandate, "A trespass to try title action is the method for determining title to

lands, tenements, or other real property." TEX . PROP . CODE ANN . § 22.001(a) (Vernon 2000); Rogers

v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex.1994). Trespass to try title is the exclusive



       3
           TEX . R. CIV . P. 791.

                                                  4
remedy by which to resolve competing claims to property. Ely v. Briley, 959 S.W.2d 723, 727 (Tex.

App.—Austin 1998, no pet.); Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115, 117–18

(Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.). The exclusivity of this remedy and the

pleading requirements which accompany it are long standing and well established in Texas. "The

action of trespass to try title is the only formal civil action known to our law, and the statute states

substantially what the form shall be." Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324, 325 (1890). The

suit in trespass to try title is unique and governed by rather precise rules regarding its pleading and

prosecution (TEX . R. CIV . P. 783–809), the violation of which can be fatal to the suit.

        Perhaps due to fear of venturing into what might be uncharted territory for many attorneys

or due to an effort to seek recovery of attorney's fees,4 it is not uncommon for litigants to attempt to

circumvent an action in trespass to try title by proceeding under the pleading format of a petition for

declaratory judgment.

        For many years in Texas, although the subject matter of a suit for declaratory judgment did

not include boundary disputes as to land, it did have the following inclusion: "A person interested

under a deed, will, written contract, or other writings constituting 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)



        4
         The only circumstance under which attorney's fees can be collected in a trespass to try title
suit involves the circumstance where a record title owner brings suit against a trespasser. TEX . CIV .
PRAC. & REM . CODE ANN . § 16.034 (Vernon 2002).

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(Vernon 2008). This statute led some to attempt to employ the vehicle of a declaratory judgment

action in circumstances which had been previously the sole province of trespass to try title,

particularly in suits involving boundary disputes between adjoining property owners. The apparently

finite distinctions necessary to determine between issues which may have been tried as a declaratory

judgment action or which must have been tried as a trespass to try title suit led to conflicting

conclusions in cases decided by this Court and at least one other. In Goebel v. Brandley, 76 S.W.3d

652 (Tex. App.—Houston [14th Dist.] 2002, no pet.), the holding was that a boundary dispute was

proper grist for a declaratory judgment action. This Court contrarily determined that since such a

dispute involved resolution of the title to lands, it was necessary that such an action be brought as

a trespass to try title action. Amerman v. Martin, 83 S.W.3d 858 (Tex. App.—Texarkana 2002),

aff'd, 133 S.W.3d 262 (Tex. 2004). The Texas Supreme Court resolved the conflict by agreeing with

this Court that an action to determine a boundary may not be brought as a declaratory judgment, but

must be prosecuted as a trespass to try title suit. Amerman, 133 S.W.3d 262. However, in 2007, the

Legislature then added a subsection (c) to Section 37.004 of the Texas Civil Practice and Remedies

Code, specifically permitting a boundary dispute to be litigated as a declaratory judgment action,

apparently negating that ruling.

       Texas courts have zealously guarded the antique suit of trespass to try title, one court even

recently ruling that an action to determine the identity of the party possessing the executive rights

under a reservation of oil and gas mineral estate could not be brought as a declaratory judgment



                                                 6
action, but could only be prosecuted as a suit in trespass to try title. Veterans Land Bd. v. Lesley,

No. 11-07-00034-CV, 2009 Tex. App. LEXIS 382 (Tex. App.—Eastland Jan. 22, 2009, pet. filed).

        One must look to determine if the heart of the controversy is to determine a boundary or

whether its true aim is to determine the title to land. "The proper test for determining if the case is

one of boundary is as follows: If there would have been no case but for the question of boundary,

then the case is necessarily a boundary case even though it might involve questions of title." Plumb

v. Stuessy, 617 S.W.2d 667, 669 (Tex. 1981). There is no indication that the controversy in this case

arose in a dispute over the location of a boundary. The Smiths' petition made no such claim but,

rather, sought a declaration that they were the "owners" of the disputed property by virtue of a deed

and granting them "ownership" of the property. The evidence at trial supported no claim of a

disputed boundary; rather, Don Smith's testimony was that fences were erected jointly by the Smiths

and Lile on an agreed situs along the long east and west boundaries of the disputed property. The

final judgment evidences no claim to resolve a boundary dispute; rather, it simply purports to find

the "legal and equitable title [of the lane the subject of the lawsuit] . . . lies in Plaintiffs, Don Smith

and wife, Shirley Smith . . . ." There was, therefore, no existing boundary question which gave rise

to a claim under the newest amendment to the declaratory judgment act. TEX . CIV . PRAC. & REM .

CODE ANN . § 37.004(c) (Vernon 2008).

        Plainly, the issue was not one of the location of a boundary but was, instead, the

determination of the title to a well-defined parcel of land. As such, the action could not have been



                                                    7
prosecuted as a declaratory judgment action, but must, instead, have been the subject of a suit in

trespass to try title.

        Since the exclusive remedy available to the Smiths was in trespass to try title and not in

declaratory judgment, we sustain Lile's first point of error.

FAILURE TO FIND FOR APPELLANT IN TRESPASS TO TRY TITLE

        Lile next complains that although he presented sufficient evidence to support a finding that

he was the owner of the tract of land in dispute, the trial court erred in not having granted judgment

to him for the title and possession of the property.

        Although Lile's appellate brief mentions "[his] trespass to try title action," the record does

not reveal that Lile filed any such pleading seeking affirmative relief.

        Had this been brought by the Smiths as a trespass to try title action, and if the Smiths had

failed to meet the requisite standard of proof to sustain that claim, then it would have been proper

for the trial court to have entered a take-nothing judgment against them. The effect of a take-nothing

judgment in a suit for trespass to try title is to vest whatever claim or title to the lands which the

plaintiff possesses in the defendant. This harsh rule has remained the law in Texas for well over a

century. French v. Olive, 67 Tex. 400, 3 S.W. 568 (1887); Permian Oil Co. v. Smith, 129 Tex. 413,

73 S.W.2d 490 (1934), Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). Even had the suit been

brought and prosecuted by the Smiths as a suit in trespass to try title and had failed to prove title to




                                                   8
be vested in them, in the absence of an affirmative plea for relief, a proper judgment would have

been a take-nothing judgment.

          However, Lile has successfully argued that the Smiths' sole available remedy rested in

bringing an action in trespass to try title, a claim which was abandoned by them before trial

commenced. There is no doubt that a suit in trespass to try title was not before the court.

          Further, the record does not reflect that Lile brought any counterclaim or other action in

trespass to try title or for any other affirmative relief. Rather, his claims were solely defensive in

nature.

          The Rules under which Texas courts operate require that the "judgment of the court shall

conform to the pleadings, the nature of the case proved and the verdict." TEX . R. CIV . P. 301. A

party may not be granted relief in the absence of pleadings to support that relief. Cunningham v.

Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.

1979).

          Lile, having not filed pleadings requesting relief in trespass to try title, cannot now complain

that the judgment does not grant him that relief.

          We overrule this point of error.

          Although Lile has raised a point of error regarding the admission of evidence over his hearsay

objection, the two rulings above are dispositive of the case. Accordingly, we need not address the

evidence objection.



                                                     9
       We reverse the ruling of the trial court and render a judgment that the Smiths take nothing

under their action for declaratory judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:       June 11, 2009
Date Decided:         June 12, 2009




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