Reversed and Rendered and Memorandum Opinion filed October 13, 2022.

In The

Fourteenth Court of Appeals

NO. 14-21-00146-CV

SUZANNE S. MUNDY, AS PERSONAL REPRESENTATIVE OF THE 

ESTATE OF JEAN LOUISE SWINDELL, J. ROBERT SWINDELL,

AND ROY MUNDY, Appellants

V.

ENE, INC., Appellee

On Appeal from the 434th Judicial District Court

Fort Bend County, Texas

Trial Court Cause No. 18-DCV-251265

M E M O R A N D U M O P I N I O N

Appellants Suzanne S. Mundy, as Personal Representative for the Estate of 

Jean Louise Swindell, J. Robert Swindell, and Roy Mundy challenge a judgment 

declaring void two deeds purporting to transfer property from the estate of Suzanne’s 

and Robert’s mother, Jean Louise Swindell, to Suzanne. Appellee ENE, Inc. 
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obtained summary judgment on its declaratory judgment claim seeking to declare 

the deeds void.

Because ENE’s substantive claim is a dispute over title to real property, the 

claim must be brought as a trespass-to-try-title claim, instead of one for declaratory 

judgment. We therefore conclude that ENE failed to establish its entitlement to 

summary judgment, and we reverse and render a take-nothing judgment in 

appellants’ favor on ENE’s declaratory judgment claim.

Background

ENE and Suzanne own adjacent tracts of real property in Fort Bend County. 

In a related case, Suzanne seeks title to the property, which we refer to as the “3.57 

Property,” through adverse possession. ENE purchased the 3.57 Property at a tax 

foreclosure sale in November 2003. According to ENE, Suzanne and Roy Mundy 

attended the tax sale and bid on the property before being outbid by ENE. Years 

later, Suzanne, acting as the personal representative of her late mother’s estate, 

purported to transfer title to the 3.57 Property to herself and her brother Robert in 

equal one-half interests via special warranty distribution deed, signed on July 2, 2014 

and recorded on July 7, 2014 in the Fort Bend County real property records.

1

 Robert 

then transferred his one-half interest to Suzanne via special warranty deed on July 

2; that deed was also recorded on July 7.2 

According to ENE, the 3.57 Property was not listed among the assets of Jean’s 

estate, and thus, the estate did not own the property. On May 9, 2016, ENE filed 

suit against appellants, asserting claims against Suzanne and Roy for common law 

1 This deed also purported to transfer the 10.25 acre Swindell Property, which is described

in the related adverse-possession appeal we also decide today. See Mundy v. ENE, Inc., No. 14-

21-00145-CV.

2 This deed also purported to transfer Robert’s interest in the Swindell Property to Suzanne.
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fraud and conversion, asserting a claim against all appellees for civil conspiracy, and 

seeking a declaration setting aside the two deeds. 

On March 1, 2019, ENE moved for traditional summary judgment on its claim 

for declaratory relief only. In its motion, it asserted that the 3.57 Property was not 

listed among the assets in Jean’s estate. ENE provided a copy of the “Inventory and 

List of Claims” filed by Suzanne, as the independent executrix of Jean’s estate, 

which was approved by the probate court on March 30, 1992. According to this 

inventory, Jean died on December 2, 1987, and the only real property she owned 

was a house in Harris County. Because the estate did not own the 3.57 Property, 

ENE sought a declaration voiding the two deeds.

Appellants responded to ENE’s motion, asserting that a declaratory judgment 

action “is not the proper cause of action in a dispute over title to real property.” 

Appellants argued that a trespass-to-try-title action is the only proper legal vehicle 

for determining title to land. Appellants also contended that ENE’s summary 

judgment evidence does not support its claim that the deeds were fraudulent because 

they “were executed years after the estate’s closing on the basis of the grantor’s right, 

title and interest to the property through adverse possession.” They claimed that 

they did not know about the 3.57 Property until March 2014 when the Mundys 

obtained a survey of the property. They attached an affidavit from Suzanne and an 

unsworn declaration from Roy. Both Suzanne and Roy stated that they were 

unaware of the 3.57 Property until they commissioned the survey and had considered 

the usable land contained therein as part of their property.

According to the record, appellants’ summary judgment response may have 

been untimely filed. Also, appellants’ counsel did not attend the summary judgment 

hearing. Appellants have asserted that they were unaware that a hearing had been 

set. 
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The trial court signed an order granting ENE’s motion for partial summary 

judgment, which declared both deeds void. The order states that the trial court 

considered “the pleadings, the response and the evidence submitted.” Appellants 

filed a motion to reconsider, in which they stated that their counsel failed to appear 

at the summary judgment hearing because counsel did not believe that an oral 

hearing had been set on the motion. They also asked the trial court to consider their 

summary judgment response and evidence, in the event it did not take those filings 

into account on the ground that they were untimely. 

ENE responded, asserting that “the lack of appearance is irrelevant to 

disposition of the underlying motion” because appellants “filed a written response 

and the Court considered the response in making its ruling on the original motion.” 

Indeed, the order expressly states that the court considered the summary judgment 

response and evidence.

ENE subsequently moved for an award of attorney’s fees under the Uniform 

Declaratory Judgments Act, seeking $25,122.49 based on affidavits and billing 

records provided by ENE’s attorneys. After a hearing, the trial court granted ENE’s 

request for attorney’s fees, but only awarded ENE $10,314.16. On this order, the 

trial court also handwrote that ENE’s “claims for civil conspiracy and fraud are 

nonsuited w/prejudice.” The trial court also handwrote, “This order disposes of all 

claims and parties and is an immediately appealable final judgment.” 

The trial court’s December 7 order was withdrawn on December 14. On that 

date, the trial court signed a final judgment, which: (1) found ENE’s claim for 

declaratory relief “to be meritorious”; (2) voided both deeds; (3) stated that ENE 

“has non-suited its claims for common law fraud, conversion, and civil conspiracy

against Defendants with all claims and parties now being resolved”; (4) awarded 

reasonable and necessary attorney’s fees of $10,314.16 against appellants, jointly 
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and severally;3and (5) stated it is a final judgment disposing of all claims and parties 

that is immediately appealable.

This appeal followed.

Analysis

Appellants bring five issues: (1) the trial court erred in granting judgment 

against J. Robert Swindell or his estate because appellants filed a suggestion of death 

and ENE proceeded against the surviving defendants; (2) a declaratory judgment is 

not the proper cause of action in a dispute over title to real property; (3) the 

attorney’s fee award was not equitable and just; (4) the trial court erred in declaring 

the deeds void as to the Swindell Property because that conveyance was valid, ENE 

did not complain about the Swindell Property, and the summary judgment granted 

more relief than requested; and (5) the trial court erred by declaring the deeds void 

because ENE did not establish that Suzanne had possession or knowledge of the 3.57 

Property when the inventory and list of claims was filed in her mother’s estate.

Analysis

A. Standard of review

We review a trial court’s ruling on a motion for summary judgment de novo. 

Tarr v. Timberwood Park Owners Assoc., Inc., 556 S.W.3d 274, 278 (Tex. 2018); 

Texan Land & Cattle II, Ltd. v. ExxonMobil Pipeline Co., 579 S.W.3d 540, 542 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.). To prevail on a traditional motion for 

summary judgment, the movant must show that no genuine issue of material fact 

exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 

166a(c); see City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 

3 The judgment awarded attorney’s fees “jointly and severally against Defendants Suzanne 

S. Mundy, J. Robert Swindell and/or his estate, and Roy Mundy. . . .”
6

2000). If the movant produces evidence that conclusively establishes its right to 

summary judgment, then the burden of proof shifts to the nonmovant to present 

evidence sufficient to raise a fact issue. See Centeq Realty, Inc. v. Siegler, 899 

S.W.2d 195, 197 (Tex. 1995). If a summary judgment movant fails in its initial

burden, the nonmovant has no obligation to respond. See Amedisys, Inc. v. 

Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511-12 (Tex. 2014). We 

consider all of the evidence in the light most favorable to the nonmovant, indulging 

every reasonable inference and resolving any doubts in the nonmovant’s favor. See 

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

Because appellants’ second issue is dispositive of this appeal, we address it

first.

B. ENE is not entitled to summary judgment on its declaratory judgment

claim.

Appellants contend that the judgment should be reversed because a 

declaratory judgment claim is not the proper cause of action in a dispute over title to 

and possession of real property. Instead, appellants assert, ENE should have filed a 

trespass-to-try-title action.4 See Tex. Prop. Code § 22.001 (“A trespass to try title 

action is the method of determining title to lands, tenements, or other real 

property.”). Appellants argue that ENE is improperly using the Uniform Declaratory 

Judgments Act (“UDJA”)5to settle the dispute that is pending in the related adverse 

possession litigation “to obtain an award for attorney’s fees.” We agree with 

appellants that declaratory relief is not available here as a vehicle to determine title.

4 We note that ENE asserted a trespass-to-try-title counterclaim in the related case on

January 13, 2015, over one year before it filed the instant suit. See Mundy v. ENE, Inc., No. 14-

21-00145-CV.

5

See Tex. Civ. Prac. & Rem. Code § 37.002(a).
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Before addressing the merits, we consider ENE’s argument that appellants 

have waived all complaints concerning the judgment because they failed to appear 

at the hearing on ENE’s motion for summary judgment, failed to obtain a ruling on 

appellants’ motion to reconsider, failed to respond to ENE’s motion for attorney’s 

fees or to appear at the hearing on the motion, and filed an “inadequate” motion for 

new trial. A summary judgment may not be granted by default but must stand or fall 

on its own merit. Amedisys, Inc., 437 S.W.3d at 511. If the movant fails to meet its 

burden to establish (1) there is no genuine issue as to any material fact and (2) the 

movant is entitled to judgment as a matter of law, the burden never shifts to the 

nonmovant, and the nonmovant need not respond or present any evidence. Id.

We turn to the merits. The UDJA 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 or rights, status, or other legal relations 

thereunder.

Tex. Civ. Prac. & Rem. Code § 37.004(a). However, “[b]y statute, a trespass-to-trytitle action is the method of determining title to lands,” and such a claim “is the 

exclusive remedy for resolving overarching claims to legal title.” Brumley v. 

McDuff, 616 S.W.3d 826, 831-32 (Tex. 2021); see also Jordan v. Bustamante, 158 

S.W.3d 29, 35 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Thus, “when 

‘the trespass-to-try-title statute governs the parties’ substantive claims . . . , [the 

plaintiff] may not proceed alternatively under the Declaratory Judgments Act to 

recover their attorney’s fees.’” Coinmach Corp. v. Aspenwood Apartment Corp., 

417 S.W.3d 909, 926 (Tex. 2013) (quoting Martin v. Amerman, 133 S.W.3d 262, 

267 (Tex. 2004)).
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The substance of a plaintiff’s pleadings determines whether a claim sounds in 

trespass to try title. Brumley, 616 S.W.3d at 833; Martin, 133 S.W.3d at 263-64. In 

its live pleading, ENE contended that these “fraudulent transfers were part of an 

overall conspiracy on the part of the Defendants to deceptively acquire title from 

Plaintiff.” ENE sought a declaration setting aside the two deeds purporting to 

convey the 3.57 Property to Mundy. ENE’s claim for declaratory relief is the very 

type of claim that the trespass-to-try-title statute governs. Shelton v. Kalbow, 489 

S.W.3d 32, 55 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“A trespass-totry-title lawsuit is an action generally used to clear problems in chains of title or to 

recover possession of land unlawfully withheld from a rightful owner.”); Jinkins v. 

Jinkins, 522 S.W.3d 771, 782 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (when 

dispute involves a claim of superior title or possessory interest in property, it must 

be brought as a trespass-to-try-title action); I-10 Colony, Inc. v. Chao Kuan Lee, 393 

S.W.3d 467, 475 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“[A] party 

may not artfully plead a title dispute as a declaratory judgment action just to obtain 

attorney’s fees when that claim should have been brought as a trespass-to-try-title 

action.”). A plaintiff may not proceed alternatively under the UDJA when the 

trespass-to-try-title statute governs. See Coinmach Corp., 417 S.W.3d at 926; 

Martin, 133 S.W.3d at 267.

Because ENE sought to negate Suzanne’s purported title to the 3.57 Property, 

its claim sounds as a trespass-to-try-title claim, not one for declaratory relief under 

the UDJA. Accordingly, the trial court erred in granting summary judgment in 

ENE’s favor on its declaratory judgment claim. Further, because ENE is not entitled 

to declaratory relief in this title dispute, the award of ENE’s attorney’s fees must be 

reversed as well. 
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We sustain appellants’ second issue. Our resolution of this issue makes it 

unnecessary to address appellants’ remaining issues. See Tex. R. App. P. 47.1.

Conclusion

We have determined that the trial court erred in granting summary judgment 

to ENE on its claim for declaratory relief and granting ENE attorney’s fees for this 

claim. ENE nonsuited its other claims against appellants. Accordingly, we reverse 

and render judgment that ENE take nothing on its claim for declaratory relief. 

/s/ Kevin Jewell

Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.