## In the Court of Appeals Second Appellate District of T exa s

at Fort Worth

______ ____________________ _ No. 02

- 19

- 0 0358

- CV

___________________________

On Appea l from the 30th District Court Wichita County, Texas Trial Court No. 188,276

- A
Before Bassel, Womack, and Wallach, JJ

. Memorandum Opinion by Justice Womack 

### R ONNIE 

### B OREN 

### , Appellant

V


### . N EWPORT 

### O PERATING 

### , LLC , Appellee2 MEMORANDUM OPINION
I. I NT RODUCTION This ca se arises out of a dis pute between Appella nt Ronni e Bor en and Appellee Newport Operating, LLC as to who has the right to drill on property located in Wichita County, Texas

. In one issue, Boren challenges the trial court’s a ward of

attorn ey’ s fees to Newport as p art of gr anting Newp ort ’ s mo tion for summary judgment on Boren ’ s claims

. We reverse the part of the judgment awarding Newport
attorney ’ s fees and rende r judgment that Newport take nothi ng on its claim for
attorney ’ s f

ees . II. B ACKGROUND
Boren received an a ssignment of oil a n d gas m i neral leases on June 9, 2015 , granting him access to an area identified as Block 11 of the John E. Roller Oil and
Gas Subdivisions of the C. Larbaletrier Sur vey, Abstract 3 70, in Wic hit a Co unty, Texas. More than t

wo years later, Newpo r t receiv ed a conflicting oil and gas mineral
lease that also included Block 11. Newport then began operating on t he land, despite multiple complaints from Boren t hat he had ex c lus ive rights to Block 11. As a result,
Boren filed su it ag ainst Newport on May 10, 2018 , requesting a declaratory judgment regarding who has the rights to Block 11

. Additionally, Boren’s original petition
included a cla im for conv ersion and requests for injuncti ve relief. Mo st re levant to this appeal, Boren also sought to recover attorney’s fees pursuant to the Uniform3

Declaratory Judgment s Act ( UDJA). See Tex. Civ. Prac. & Rem. Code Ann. § 37.009

. N ewpo rt filed a general denia l to all o f the allegati on s . B oren later amended his petitio n to add a trespass to try title claim and requested the declaratory jud gment in the alternative , whil e still requesting attorney’s
fees und er the UDJA

. Sh ortly after, Newport f iled its traditi ona l and no

- evide nce

mot ion for summary judgment arguing that Boren did not have superior title to
Block 11 because a lapse in production invalidated the Roller lease

. Newport
requ ested that it be granted summary j udgme nt as to al l of Boren ’ s clai ms . I n the motion, Newport argu ed that Boren’s declara tory judgment claim was “ inapposite
under [Boren ’ s] pleading s , ” and therefore, “ there is no need for t he Co urt to entertain this request for declara tory judgm ent. ” Under its no

- e v idence grounds for summary judgment, Newport again as serted that a trespass to try title a ction is the metho d of determining title and that “ the UDJA is not the p rop er veh ic le to seek reli ef under the present circums tances. ” Newpor t neverthele ss re quested attorney’s fees in its motion
for b eing the prevaili ng party on B oren ’ s UDJA claim. Boren did not specifically address attorney’ s fee s in his r esponse. The trial court grante d Newport’ s moti on for

sum mary judgmen t , dismissed Boren ’ s claims with prejudice, and awarded Newport
attorney ’ s fees in the amo u nt of $54 ,670.89. Following the judgment, Boren fil ed a mot io n for new trial a rguing that the case was actually based o n a trespass to try title claim; thus, aw arding fee s was not author ized by stat ute. Boren’s motion was overruled by operation of law , and this4

appeal ensued. In hi s only issu e , Boren argues that the trial court abused its discretion by awarding Newport att orney ’ s fees because such an award is not authorized in a
trespass to try title case.
III. D ISCUSSION
A . Preservation of Error
Becaus e it is pot en tially dispositi ve of this appeal , we begin by addre ssing Newpor t ’ s argument tha t Boren has faile d to adequately preserve his attorney ’ s fee
issue

. Here , Boren fil e d a motion for new tri a l arguing that attorney’s fees are not

rec overable on a tre spass to try titl e action. T he trial court did not rule on Boren’s motion, a nd therefore , it was overruled by operation of law seventy

- fiv e da ys a fter th e trial court signed its judgment. See Tex. R. Civ. P. 329b ( c)

. Citing Cabot Oil & Ga s Co r p. v. H ealey , L.P. , Newport argue s tha t a post judgment motion will not suffice to pres erve error when an att orney ’ s fee issue
has been decid ed

. No. 12

- 11

- 00 236

- CV, 2013 WL 12 82007 , at *3

– 4 (T ex. App.

— Tyler Mar . 28, 2013, pet . denied) (mem. op.)

. Notably , C abot Oil was an appeal of a jury tri al ve r dict where Cabot first r aised an attorney ’ s fee issue in its motion for judgment n o t

with st anding the verdict. Id.
Assu ming without deciding that Boren ’ s motion for new trial was insufficient

to pr eserve this issue f

or our rev

i ew, we conclude that Boren can raise this issu e on appeal because he is appealing a s um mary j udgment and was n ot obligated to file a
motion for new trial in order to preserve his complaint about attorney ’ s fees

. See Tex.5

R. C iv. P. 324 ; Lee v . Bra ebu rn Va lley W. Civ ic Ass oc. , 786 S.W.2d 262, 263 (Tex. 1990); Guzman v. Carnevale , 964 S .W.2d 311, 314 (Tex. App.

— Corp us Christi 1998, n o pet .).
A non movant may file no answer at all to a moti on for summary judgmen t and stil l

conten d on appeal that the g rounds e xpr e ssly presented to the trial cour t by the

movant ’ s motion are insuffici ent a s a matter of law to support summary judgment. City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671 , 678 (Tex. 1979 ). Here,
Boren did n ot w a ive hi s challeng e to th e awar d of attor ney ’ s fees by not objecting to it
in his summ ary judgment response because it was Newport ’ s burden conclusively to prove a le gal basis for them

. Garcia v. Nat ’ l Eligibility Express, Inc. , 4 S.W.3d 887, 889 (T ex . A pp . — Houston [1 st Di st.] 1999, n o pet.) ( op. on re h ’ g) ( “ G arcia did n o t waive
its chal le nge to the award of [att orney ’ s] fees by not objecting below because it was
NEE ’ s burden conclu sively to prove a l egal basis for them, which ther e was not. ” ) ; Z Auto Place

, LLC v. Cars.com

, LLC , No. 01

- 19

- 00477

- CV, 2020 WL 5666074, at * 6 (Tex. App.

— Houston [1st Dist.] Sept. 24, 2020, no pet. h.) (mem. op.) (reasoning that nonmovant had not waived attorney’s fee issue for appeal because the burden is on
the movant to establ ish its right to summar y judgm ent as a matter of law).
Accor din gly, Boren can r aise his issue regarding the aw ard of atto rney ’ s f ees to
N ewport in th is ap peal

. B . Standard of Review
We review summary judgment de novo. Travelers In s . Co. v. Joachi m , 315 S .W. 3d 860, 8 62 (T ex. 2010). In a summ ary judgment case, the issue on appeal is w hether the6

movant met i t s summary judgment burden by e stablis h ing that no genuine issue of material fact exists and that the movant is entitled to ju dgment as a matter of law.
Tex . R. Ci v. P. 166 a (c) ; M ann Fr ankfort Stein & Lipp Ad vis ors, Inc. v. Fielding

, 289 S.W. 3d 844, 848 (

T e x. 2 009).
We review a trial court ’ s awa rd of attorney ’ s fees under the UDJA for an abuse
of discretion. Poag v. Flories , 317 S.W.3d 820, 828 (Tex. Ap p.

— Fort Wo rth 201 0, p et. den ied) . To determine whether a trial court abus ed its discreti on , we m ust deci de
whether the trial co urt a cted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbit rary or unr easonab le. XT O
En erg y v. Nik olai

, 357 S.W.3d 47, 63

– 64 (T ex. App.

— Fort Worth 2011, pe t
. d enied) (citing Cire v. Cummings , 13 4 S.W .3d 835, 838

– 39 (Tex. 2004)).
C. Applicable Law Re g arding the Award of Attorney’s Fees
T he UDJA affords trial courts the dis cretion to awa rd “ reaso na ble and necessary attorney’s f

ees as are equitable and just.” T e x. Civ. Pr ac. & Rem. Code Ann. § 37 .009. However, attorney’s fees cannot be awarded under t he UDJA if the claim for relief is duplicative of another claim for whi ch recover y of at torn ey’s fe es i s not allowed. MBM Fin. C orp. v. Woodlands Oper. Co. , 29 2 S

. W.3d 66 0, 669

– 70 (Tex.
2009 ).
Recov ery o f attorne y’s fees for a trespass to try title clai m is not authorized by

statute. See Tex. Prop. Code Ann. § 22.001(a). T he Texas Property Cod e expla ins that a “trespass to try ti tle action is the method of det er m i ning ti tle to lands,7

tenements, or other real pro perty.” Id. Typically, the statute is u s ed “to clear problems in chains of t

itle or to recover possession of lan d u nlawfu lly with held from

a rig htful owner. ” Martin v. Am erman , 133 S.W.3d 262, 265 (Tex

. 2 0 04). S imilarly, the
trespass to tr y tit le statut e is applicable “when the claimant is see k ing to establish or
obtain the claimant’s ownership or possessory right in the la nd at is sue . ” Lanc e v. Robinson , 543 S.W.3d 723, 736 (Tex. 2018). Therefore , a tt o r ney’s f ees are not recoverable unde r the UDJA whe n the only issues, aside from the fees in question,
concern trespass to try title claims

. Biltex Enters

. , Inc. v

. Myer s , N o. 02

- 13

- 00 465

- CV,
2015 WL 1967285, at *3

– 4 (Tex. App.

— Fort Worth Apr. 3 0, 2 015, no pet .) (mem. op.) (citing AMC Mo rtg. Servs., I nc. v. Watts , 260 S.W.3d 582, 588 (Tex. A p p.

— Dallas 2008, no pet.)). D. Application of Law to Facts In the presen t case , Bo ren orig ina lly soug ht a declaratory ju dgment as to who
maintained poss e s sory rights to Block 11. He lat er am ended his petition to assert a trespass to try title clai m , while still seeking the declaratory judgment in the
alternative. In both his original and amended petitio ns, Boren was attempt i n g to

est ablish his possessory right to the land at i ssue. Therefore , the proper cause of
action for the reli e f Boren desires is, and always has been, a trespass to try title cla i m bec ause he soug ht to resolve a title dispute

. See L ance , 543 S.W.3d a t 736

. As we ha ve previous ly held, recovery of attorney ’ s fees on duplica tive claims under the UDJA is barred for title d isputes, and it is barred regardless of w h ich party8

first req ue sts attorney’s fees. See Biltex Enters. , In c. , 2015 WL 1 96 7 2 85, at *3

– 4 (holding that plaintiff’s ame nded petiti on for trespass to try title clai m , although originally seeking declaratory judg ment, prevented defendant from recovering attorney’s fees on declaratory judgm ent counterclaim ); Poa g , 317 S.W.3d a t 82 8 ( h o l di ng that the defendant could not recover attorney’s fees on the plaintiff’s cla im
fo r declaratory relief because the clai m was, in subs tance, a claim to quiet tit l e).
Therefore , the tr ial court erred by awarding Newport attorney’s fees be caus e B o r e n’ s UDJA claim is du plicative o f his trespass to try title claim

. In coming to a co ntrary position, Newpo rt cite s an opinion from the San
Antonio C o urt of Appeals to support its cla im for at torney’s fees. Se e EOG R e s. , In c.

v. Killam Oil Co. , Ltd. , 239 S.W.3d 29 3, 304 (Tex . App.

— San Antonio 2007, pet

. den ied)

. Specifically, Newport highl ights that the party in that suit who prev ailed on the other party ’ s UDJA claim was allo w e d to collect att orney’s fees despite t he c a s e invol ving title issue s . Se e id.
Howeve r , unlike h ere, EOG filed a declaratory judgment co unterclaim in response to Killam ’ s trespass to try title action. Id. Tha t c o unter claim ask ed for declaratory relief related to the perc entage ownership of c erta in oi l and ga s that had
b ee n pr oduced dur ing the ter m of the operating agreement

. Id

. at 29 7. T he Sa n Antonio Court of Appeals determined that “ [ b ] ecause EOG ’s l awsuit sought relief under the [UDJA] and because Killam was the pre vailing party [on that claim] , the

tr ial court did n ot a buse its discretion in awa rding attor ney’s fees to Killam. ” I d. a t9

304

. Although Killam had requested declaratory relief r elated to its trespass to try title
acti on in its p e tition , the court’s opini on in that case highlights a k e y distinction : Kil la m cou ld recover attorney’s fees for preva iling on E OG ’ s counterclaim for
d eclaratory relief but could no t rec over fees on it s tres p ass to try title claim. Id. H ere , Newport rec overed attorney’s f ees a s the prevailing party on Boren’s trespass to t ry

t i tl e claim tha t alt ernatively ask ed for declaratory rel ief , but unlike in EOG Res ources ,

no counterclaim seeking other declaratory relief was filed

. Because Newport has not
preva iled on a claim for declaratory reli ef not duplicative of a trespass to t ry t i tl e claim , N ewport ’ s re liance on EOG Resources is misplaced

. Consequen tly , we will
fol low this Court ’ s pr eviously establish ed bar against recovering attorney ’ s fee s on dec la ratory ju dgment claims that are duplicative of title claims. See Biltex Ente rs. , In c. , 2015 WL 19 67285, at *3

– 4

. Acc ordingly, we sustain Boren’s sole issue on appeal . Because a remand of this

case is not necessary for further proceedin gs or i n the interest of j ustice, we will
render th e jud gment t hat the t rial should have re nde re d o n the portion of the judgment we reve rse. See Tex. R. App. P. 43.3; see also City of Dallas v. GTE Sw., Inc. , 980 S.W .2d 928, 939 (Tex. App.

— Fort Worth 1998 , p et. denied)

. IV. C ONC LUSION Having sustained B o ren’ s sole issue, we reverse the portio n o f th e t rial court ’ s j udgment awarding Newp ort attorney’s fees and render judgment that Newp ort take nothing on its claim for attorney’s fees

. See Tex . R. App. P. 43.2(c ).10 /s/ Dana Womack
Dana Womack Jus tice
Delivered: October 29, 2020