### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00595- CV

Kat hryn F. Skalak, E laine Ker r, Beve rly Hiller, Michael H. Mason, K enneth Bryan Jeanes, Charles W. Jeanes, individ ually an d as executor of the estate of Jack K. Jeanes, dece ased; Mart ha J. Beasley, Janalu P archm an, John T. Bryant, Nina Mata, ind ividu ally and as co-t rustee of the Don C. Mason Fam ily Trust; Ke ith Bradley Mason, in divid ually an d as the co- truste e of the Don C. Mason F am ily Trust; and Jack Mason, Appellan ts

v. Larry Ber nard Book , Charlene Book Wild e, Viola Mae Book, an d Cheryl Ann B ook, Appellees

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 51ST JUDICI AL DISTRICT NO. A-0 9-0 949- C, H ONO RAB LE B ARB ARA L. WALTH ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellants, who are members of the Mason family (collec t i v el y , “the Masons”), 1 appea l from the trial court’s judgme nt decla ring that a deed t h at co n v ey ed cer tain proper

ty in Tom Gre en County rese rved for the g rantors a fix ed one-sixteenth non-par ticipating roy alty interest in all oil, gas, a

nd other minera ls produced f rom that land. We will affirm.

Kathry n F. Skalak; Elaine Ker

r; Be verly Hiller; Michae l H. Mason; Kenne th Br y an J eane s; 1 Charles Wesley J eane s, individually and as executor of the estate of J ack Kenne th J eanes; Martha J ill Be asley ; J analu Parchma n; J ohn T. Br

y ant; Nina Mata, individually and as trustee of the Don C. Mason Family Trust; Keith Br adley Mason, individually and as trustee of the Don C. Mason Family Trust; and Jack Mason.BACK GR OUND I n 1944, sever al m ember s of t he Mason family convey ed a 640-ac re parce l of l and in Tom Green C ounty to Be n Malec hek. The warra nty deed convey

ing the proper

ty (“the Dee d”) contained the following rese rvation:

The g rantors further rese rve for themselves, th ei r h eirs and assig ns, an undivided one-half of the usual one-e ighth royalty of all oil, g as and other minerals that may be produce d from the above- descr ibed land on a non-par ticipating basis. The g rantors shall not share in the bonuses or renta ls but shall only share in production of minerals and it shall not be nec essar y for the g rantors to join in the execution of any oil, g as or mineral lease s but the exclusive rig ht to execute such oil, g as or mineral lease s is here by confe rre d on the g rante e, his heirs and assig ns; it being understood that the g ran t o rs are rese rving a one-half of the usual one eighth royalty on a non-par ticipating ba sis. (Emphase s added.) The Mas o n s ar e d esce ndants of the g rantors and own the roy alty interest

rese rved in the Dee d. Appellee s L arr y Be rnar d Book, Charlene Book Wil de, Viola Mae Book, and Chery l Ann Book ( collectively , “the B ooks”) a re suc cessor s in interest to Maleche k. I n J anuar y 2006, “Charle ne M. Wil de,” as lessor, and RFW Petroleum, I nc., as lessee, executed an oil and g as lease (“the L ease ”) cover ing the proper ty descr ibed in the Dee d. The L ease require d that the lessee pay the lessor a three -six teenths roy alty on all oil and g as produce d under the L ease . There afte r, RFW Petroleum’s drilling opera tions resulted in the production of oil and g as in pay ing quantities. Acc ording to the Masons, an a ttorney repr esenting RFW Petroleum prepa red a
set of division order s attempting to descr ibe the roy alty interests held by the Masons and the Books and sent them to an attorney repr esenting the Books for his revie w. R FW P et ro l eu m’s attorney interpre ted the Dee d and the L ease to mean that the Book s an d t h e M asons wer e eac h entitled to

2one-ha lf of the total r oy alty pay able under the L ease —i.e., one-ha lf of three -six teenths (0.09375).

T he Books’ attorney objected to the di vision order s on the ground that, in his opinion, the roy alt y interest assig ned to the Books was too low. The B ooks’ attorne y took the position that the roy alty interest reserve d in the Deed was limit ed to one-half of one -eig hth and, consequently , entitled the Masons to a fixed one-sixt eenth ( 0.0625) roy alty reg ardle ss of the t otal roy alty ultimately pay able under the terms of a

ny subsequent lea se of the property

. I n the Books’ attorney ’s vi ew, no matter how larg e a roy alty they neg otiated with a lessee of the proper ty , the Masons’ roy alty would alway s be fixed at one-sixteenth.

When the Books did not sign the d i v i s i o n order , RFW Petroleum suspended the roy alty acc ount. See T ex . Na t

. R es. Code Ann. § 91.402(c) (1) (West 2011) (as condition for pay ment of proce eds from sale of oil and g as production to pay ee, pay or shall be entitled to rec eive

s i gn ed division order from pay ee, including, among other things, the fra ctional and/or decimal interest in production claimed by pay ee) . Be cause the B ooks and RFW Petroleum wer e unable to

rea ch an ag ree ment reg arding the proper allocation of the three -six teenths roy alty betwee n the Books and the Ma sons, the Books r equeste d that the Masons ex ecute a “Stipulation of I ntere st” in which the Masons would aff

irm that the rese rvation in the Dee d was of a fix ed one-sixteenth roy alty

. The Books planned to rec ord the Stipul ation of I ntere st in the Tom Gre en County rea l pr operty rec ords and there by resolv e t h e d i s ag ree ment with RFW Petroleum reg arding the division of the three -six teenths roy alty betwee n the Books and the Masons. The Masons, howeve r, declined to sign the S tipulation of I ntere st and were unwilli ng to otherwise affir m that the Deed reserve d for them

a fix ed one-sixteenth roy alty

. Rather, they simply took the position that the Dee d cl ea rl y and

3expressly rese rved to them a “one- half of the usual one-e ighth roy alty .” Acc ording to the Masons,

no further clar ification wa s nece ssary . When the Masons did not ag ree to sign the Stipul ation of I ntere st, the Books broug ht this suit seeking a decla

ration that the interest held by the Masons was a fix ed one-sixteenth roy alty

. The Masons filed g ener al denials. There afte r, the Masons filed traditional and no-evide nce motions for summary

judgme nt, asserting that there was no justiciable c ontroversy betwee n the Books and the Masons and that they wer e there fore entitled to “summary judgme nt deny ing Plaintiffs’ decla ratory claims.” T h e t ri al co urt denied the motions for summary judgme nt. The case then 2 proce eded to a bench trial, afte r wh i ch the trial court rende red judgme nt decla ring that the Dee d

rese rved to the g rantors (the Masons) “a 1/16th (one- six teenth) non-par ticipating roy alty interest in all oil, g as and other minerals that may be produce d from the L and, which is a fix ed 1/16th r oy alty interest independe nt of the terms of any oil, g as, or mineral lease which may be executed perta ining
to the L and.” The judgme nt a lso a war ded the Books $10,000 in attorney s’ fee s. The Masons then perf ecte d this appeal.

DISCUSSIO N

I n their first two appellate issues, the Masons contend that beca use there was no evidenc e or insufficient evidence of a justiciable controve rsy betwee n the Books and the Masons,

Although the Masons reque sted that the trial court rende r a summary judgme nt deny ing the 2 Books’ reque st for a de clar ation, if, as they claimed, ther e wa s no justiciable controve rsy , the trial court could only have dismiss ed the case for lack of jurisdiction. See Texas Ass’n of B us. v. Texas Air Control Bd. , 852 S.W .2d 440, 445-47 (Tex. 1993) (existence of justiciable controve rsy is nece ssary component of subjec t-matter jurisdiction). 4the trial cour t erre d by deny

ing their motion for summ ary judgme nt. The Masons further contend that afte r the trial, during which they asser t “ther e was a complete lack of evidenc e of any justiciable
controve rsy ,” the trial court should have rende red a take- n o t h i n g judgme nt in their favor or, alterna tively , dismiss ed the case . We construe the Masons’ first two appellate issues as arg uing that, beca use there was no justiciable controve rsy betwee n the Books and the Masons, the trial court did not have subjec t-matter jurisdiction over the ca use and should have dismiss ed it. Subject-matter jurisdic tion is essential to a trial court’s power to decide a case and may be challeng ed at any time. See Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 445 (Tex. 1993). The question of whether a trial court has subject-matter jurisdiction is one of law that we r eview de novo. Texas De p’t of Parks & W

ildlif e v. M iranda , 133 S.W .3d 217, 226 (Tex. 2004). The Texas Uniform Dec lara tory J udg ments Act g ives Texas courts the power to “dec lare rig hts, status, and other leg al rela tions whether or not further re lief is or could be claimed.” Tex. Civ. P rac . & Re m. Code Ann. § 37.003 (West 2008). The A ct provides that

a person interested under a deed, will, written contra ct, or other writing s constituting a contra ct

. . . may

have de termined a

ny question of construction or validity arising under the instrument

. . . and obtain a decla ration of rig hts, stat u s , or other leg al rela tions thereunder

.
Id. § 37.004 (West 2008). The Act is a reme dial statute, the purpose of which is to settle and aff ord relief from uncer

tainty and insecurity with respe ct to those matters, and is to be liberally construed and administered. Id. § 37.002(b); Bonham State Bank v. Beadle , 907 S.W .2d 465, 467 (Tex. 1995); Cobb v. Harrington , 190 S.W .2d 709, 713 (Tex

. 1 9 4 5 ) (dec lara tory -judg ment action is “an

5instrumentality to be wielded in the interest of preve ntative justice and its scope should be kept wide

and libera l, and should not be hedg ed about by technica lities”). The Act does not c rea

te or a ug ment a trial court’s subject-matter jurisdiction—it is “mer ely a proce dural device for deciding case s alre ady within a court’s jurisdiction.” Texas Ass’n

o f Bus. , 852 S.W .2d at 444. A decla ratory -judg ment action will lie within the trial court ’s subject-matter jurisdicti o n wh en a j usticiable controve rsy exis ts as to the rig hts and status of the parties befor e the court for adjudication and th e re quested decla ration will actua lly resolve the
cont ro v ersy . Brooks v. Northglen Ass’n , 141 S.W .3d 158, 163-64 (Tex. 2004). A justiciable
controve rsy is one in which a rea l and substantial controve rsy exis ts involving a g enuine conflict of tang ible interest and not mer ely a theor etical dispute. Bonham State Bank , 907 S.W .2d at 467. A justiciable controve rsy is to be dis tinguished from an advisory opinion, which is prohibited under the Texas and fede ral constitutions. Texas Ass’n o f Bus. , 852 S.W .2d at 444. I f a justiciable
controve rsy does not exis t, the trial court m u s t d i smiss the case for lack of subject-matter jurisdiction. Di Portanova v. Monroe , 229 S.W .3d 324, 330 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)

. As an initial matter, the Masons do not dispute that RFW Petroleum was holding the roy alty pay

ments in suspense due to its conce rn about their pr oper a llocation betwee n the M asons and the Books. I t is also undisputed that the Masons had an interest in the suspended roy alties and that the rese rvation in the Dee d confe rre d to them the rig ht to rec eive roy alties f r om RFW Petroleum. I t appea rs, t h er efore, that a g enuine issue exis ted as to their rig hts as well as to the rig hts of the Books. See B rooks , 141 S.W .3d 158. I t further appea rs t hat a judicial decla

ration of the me aning

6of the Dee d’s rese rva t i o n would resolve the controve rsy reg arding not only the Masons’ rig ht to

rec eive roy alties but also the Books’

. I n fac t, s u ch a decla ration was nece ssary to resolve the
controve rsy

beca use the Masons r efuse d to acknowle dg e, throug h a stipulation or otherwise, what they now claim they ag ree with—that the D ee d re s er ved to them a one-six teenth roy alty interest. Whil e the Masons arg

ue that the corr ect resolution of the justiciable controve rsy was for the Books
to bring a decla

ratory judgme nt action ag ainst RFW Petroleum, the Masons would still have had to be made parties to such an action. See Tex. Civ. Prac. & Rem. Code Ann. § 37.006(a) (West 2008) (“When decla

ratory relief is soug ht, all persons who have or claim any interest that would be aff ecte d by the decla

ration must be made parties.” ). Ne v er t h eless, the Masons insist that there was no controve rsy betwee n them and the Books and there fore the decla ratory -judg ment action should have been dismiss ed. Even if we wer e t o conclude that the controve rsy cre ated by RFW Petroleum’s holding the Masons’ and the Books’ roy alty pay ments in suspense was, by itself, insufficient to support the court’s exercise of subject-matter jurisd i ction over the Books’ decla ratory -judg ment action , we rema in unpersua ded that no justiciable controve rsy exis ted betwee n the Masons and the B ooks. I n their petition, the Books alleg ed that “a question and dispute betwee n [t he Books] and [t he Masons] has arisen about the meaning of the [roy alty rese rvation]” in the Dee d. The Books reque sted that the court construe the roy alty rese rvation “as b ei n g a re s er vation of a 1/16th non-par ti ci p at i n g ro y alt y interest.” I n response , eac h of the Masons filed a g ener al denial. For example, C. Wesley J eane s’s responsive pl ea d i n g asser ted “a g ener al denial of the claims and
matters set forth in the pleading s of Plaintiffs.” Severa l other of the Masons’ responsive pleading s

7asser

ted a “g ener al denial of the claims and alleg ations asser ted by Plai n t i ff

s . ” There afte r, the Masons filed a motion for summary judgme nt in wh i ch they arg ued that the Books “see k a decla ration from the Court limiting t he reta ined roy alty interest [] to one-sixteenth,” and further arg ued that the Books wer e “impermissibly seek[ing] to change a n d alter the express rese rvation lang uag e of the 1944 Dee d.” (Emphasis added.) The Masons compl ained that “[t] he decla ratory judgme nt statute cannot be invoked as an aff irmative g round of rec overy to revise or alter existing rights or leg al re lations.” (Emphasis adde d.) Afte r the trial c ourt denied the motion for summ ary j u d gm en t , it conducte d a one-da y bench trial. At the trial, the Masons appea red throug h t h ei r counsel, C. Wesley J eane s, who was also named indivi dually as a defe n d an t

. At the out set of t he trial, J eane s inf

o rm ed t he court that the Masons believed “the case should proper ly proce ed as a trespass to try

title case r ather

than [] a dec lara tory judgme nt action.” J eane s’s opening statement consisted almost entirely of the statement that “the M as o n family did not initiate this fight

. And we’ re not g oing to prosec ute RFW Petroleum or Star Producti o n [ ’s ] case for them.” (Emphasis adde d.)

At trial, Br andon Arc her, trial counsel for the Books, elicited testimony from J ohn Sutton, a former district judge and a med i at o r, reg arding a court-or dere d mediation he was reta ined to conduct. After the trial court order ed the parties to mediation, the Books proposed a date for the mediation and asked the Masons whether the chosen date was acc eptable. The Masons did
not respond, and they subseque n t l y failed to attend the schedule d mediation. Also during trial, counsel for the Books testified reg arding his fee s. He stated that counsel for the Masons filed a plea in abate ment in which they asked the trial court to order the Books to join sever al additional parties

8to th e suit, among them J eane s in his officia l capa city as the executor of his fathe r’s estate.

Acc ording to Arche r:

I persona lly told [J eane s] that he had the ability to join them himself if he thought it was ne cessa

ry , and enc ourag ed him to do so and that I would not be objec ting to it if he did. Howeve r, he r efuse d, and as a result we had to g o to a gre at deal of t ime and expense prepa

ring to deal with his plea in abate ment, which was an eff ort to shift the costs. Once that plea was hear d, the Court did order tha t [ J eane s], i n his of ficial capa city , be serve d. Howeve r, we made sever al attem p t s to serve him with a citation and found it near ly impossibl e to do so until we finally go t an o rder from this Court allowing us to eff ect substitut ed service

. We wer e not able to serve him without that. 3

Arc her also testified that the Masons fail ed t o respond to his reque st for disclosure, which would have require d them to set forth their leg al co n t en t i ons with respe ct to the Books’ reque st for decla ratory relief

, and that when Arch er as k ed J eanes “point blank, ‘What do y ou think this

rese rvatio n means? ’ [ Arc her] would only g et an evasive response .” Arc her testified that J eane s’s response to this question was essentially that “the lang uag e meant whateve r resulted in the g rea test interest for

his clients.” At the conc lusion of Arche r’s testimony , the B ooks rested. The Masons did not put on any witnesses. I n s t ea d , J eane s attempted to admit into evidenc e two opinions issued by Tex as appellate courts. When questioned by the trial court reg arding why he was seeking to introduce as evidenc e two case s, J eane s replied that it was “bec ause

The Books’ motion for substitut ed service rec ites that they attempted persona l delivery of 3 citation four times at Jeanes’s usua l place of abode in Da llas but were unsucce ssful. 9we believe that they constitute some evidenc e of party ’s intent back in the 1940s timeframe .” J eane s

further explained:

And s pecif

ically at pag e 262 of the King case the C ourt takes judi cial noti ce of the fac t that the usual roy alty is a one-e ighth roy alty

. The Morg an case at pag e 761 say s the s ame th i n g. The Morga n case is a 1940 Court of Appeals [si c] decision which was adopted by the Supreme Court and is expressly ref ere nced in the King case . And King is a 1946 opinion. Our dee d here is a 1944 dee d. And the purpose of this, Your Honor, is to put on some evidenc e that at the time this deed was executed there was a common assumption that when t h er e was a rese rvation of roy alty y ou wer e talking about a one-eig hth roy alty , and vice versa . When y ou’re talking about a one-e ighth roy al t y , y ou’re talking about the usual roy alty

. And we believe that is some evidenc e of the party ’s intent at the time these documents we re e x ecute d. That’s the sole pur pose of this.

After J eane s and the court discussed whether or not it was appropr iate to admit Tex as case law as evidenc e, the Masons rested. I n closing , the Books arg ued that the Dee d’s plain lang uag e indicated that the Masons’ roy alty interest was fix ed at one-sixteenth. The Mason s ’ cl o s i ng was devoted entirely to arg uing that “the dispute” was betwee n the Books and RFW Petroleum and that the case was, in substance, nece ssarily a trespass- to-try -title case and should no t h av e proce eded as a decla ratory -judg ment action. Counsel for the Masons stated “the main point that aff ects thi s case is that under a tr espass a ction y ou don’t g et attorne y ’s fe es.”

On appea l, the Masons contend that there has never been a justiciab l e co ntroversy betwee n them and the Books. They asser t that they did not “by their inaction either ag ree or disag ree with any position or opinion of [t he Books’ counsel], nor did they ag ree or disag ree with any position or opi nion of [counsel for RF W P etroleum] and his clients.” The Masons further char acte rize the
10construction of their roy alty interest advanc ed by RFW Petroleum as “irre g ular” and asser t that they have “neve r aff

irmatively raised any question reg arding the amount or calc ulation of the conce rned roy alty interests which the y

own.” We disag ree . First, the Masons ref

used t o sign a Stipul ation of I ntere st that would have clarifie d that the roy alty interest they held was a fix ed one-sixteenth. Whil e the Masons now claim that their ref usal was due to the fac t that the stipulation was unnece ssary beca use their interest was subject to

no other interpre tation, that is not the p o sition they took at the time the reque st was made. Acc ording to Arc her’ s testimony , the M asons’ posit ion, at l east as articula ted t o the Books by the Masons’ attorney , J eane s, was that the rese rvation in the Dee d meant whateve r g ave them the larg est roy alty interest. Second, when the Books initiated litigation in an attempt to o b tain a judicial decla ration of the meaning of the rese rvation in the Dee d, eac h of the Masons filed a g ener al denial. Whil e t h e M as ons contend on appea l that the g ener al denial serve d only to deny the Books’ alleg ation that “a question and dispute betwee n [t he Books] and [t he Masons] has arisen about the meaning of the Rese rvation,” the ir responsive ple ading s also serve d to de ny all “of the claims and
matters set forth in the pleading s of [t he Books].” This would seem to be an objection to the Books’ reque st that the court construe the rese rvation “as being a rese rvation of a one-sixteenth n onparticipa ting roy alty interest.” I t is inconsistent for t h e M as o n s now to claim that they wer e only deny ing that there was any disag ree ment b et wee n them and the Books reg arding the proper construction of the rese rvation. Telling ly , the M as o n s d i d not at that time seek to have the case dismiss ed for want of jurisdiction due to the absenc e of a justiciable controve rsy . I nstead, they filed

11a motion for summary judgme nt expressly asking the court to deny the relief the Books reque sted.

I n that motion the Masons asser ted that the Books wer e seeking to “limit” their roy alty and that the Books’ interpre tation of the rese rvation constituted an arg ument “ag ainst t h e express lang uag e of [t he Dee d].” The Masons further charac t eriz ed the Books’ decla ratory judgme nt action as one “impermissibly seek[ing] to chang e or alter the express rese rvation of [t he Dee d]” and to “re vise or alter exis ting rig hts.” These arg uments reve al that the Masons’ interpre tation of the rese rvation was differ ent from the Bo o k s ’ an d t h at they did not ag ree that their roy alty interest was “limited” to one-sixteenth. We are unper suaded by the Masons’ asser tion on appea l that their summary judgme nt arg uments constituted nothing more than a n objection to the Books’ attempt to unne cessa rily alter the otherwise clea

r and unambig uous lang uag e of the Dee d. The Books did not file suit seeking to

re fo rm t h e Deed or repla ce the words “one- half of the usual one-e ighth roy alty ” with the words “fixed one-sixteenth” roy alty

. Rather, they soug ht a decla ration reg arding the meaning of the words contained in the Dee d. Moreove r, if, as the Masons now arg ue on appea l, they never disag ree d with the Books and there fore there was not a justi ci ab l e controve rsy , the logic al step for them to have taken was to file a motion to dismiss the decla ratory judgme nt action for lack of subject- m at t er jurisdiction. Rather than do tha t, they filed a motion for summar y judgme nt and then par

ticipated in the trial of a case whose sole purpose was to construe the lang uag e of the Dee d. Whil e they now char acte rize RFW Petroleum’s co n s t ru ction of t he reserva tion as “irreg ular,” they wer e unwill ing to make such a

conce ssion at any

time during the pende ncy of the unde rly ing c ause.

12Finally , at trial the Masons attempted to introduce into evidenc e two Texas case s they

contende d stand for the proposition that at the time the Dee d was executed, the “usual roy alty ” was understood to be one-e ighth. This evidenc e was ostensibly offe red to prove the intent of the g rantors when they rese rved “one- half of the usual o n e- eig hth roy alty .” Evidence of intent could only be rele vant and admissible if the rese rvation wer e ambig uous and there was, as a result, a controve rsy reg arding its meaning

. The Masons appea red to be advanc ing the arg ument that, beca use oil and g as lease s executed in t h e 1 9 4 0 s u s ually provided that the lessor rec eive no g rea ter than a one-e ighth roy alty , the g rantors in the Dee d used the words “the usual one-e ighth” in a g ener ic sense and they should be understood to mean whateve r roy alt y was ultimately neg otiated betwee n the lessor and lessee—in the prese nt case three -six teenths. I f the Masons intended for their actions at trial to indicate that they in fac t agreed with the Books and that there was no controve rsy about the meaning of the re serva

tion, they should have be haved in a less cry ptic manner

. The Masons’ pre- litigation conduc t and the stateme nts made by their counsel, who also had a persona l stake in the matter, as well as their l itigation positions, belie their prese nt contention that they never disag ree d with the Bo o k s re g arding how to interpre t the rese rvation. Rather than simply not take a position, the Masons opposed any form of stipulation, admission, or judicial pronounce ment reg arding the meaning of the rese rvation. I n addition, despite never filing specia l exceptions to the Books’ pleading , the Masons attempted to convince the trial court that the litigation in which they had actively participa ted should have been conducte d a s a tr e s p a s s -to-try -title suit—a cause of action that would car ry no risk that an adver se ruling would result in an assessment ag ainst them of some or a ll of the Books’ attorney s’ fe es.

13The purpose of the Dec lara tory J udg ments Act is to “settle and to aff ord relief from

uncer tainty and insecurity with respe ct to rig hts, status, and ot h er l ega l rela tions; and it is to be liberally construed and administered.” Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (West 2008). There was a justiciable controve rsy reg arding the proper allocation of t he t h re e-six teenths roy alty interest held in suspense by RFW Petroleum pursuant to the natura l resour ces code. T h e j u dicial decla ration soug ht by the Books to resolve that controve rsy was not advisory and was rende red

nece ssary by the Masons’ conduct. We hold, there fore , that the trial court did not err in deny ing the Masons’ motion for summary judgme nt, nor did it err by rende ring a final judgme nt in the case rathe r than dismissi ng it for lack of jurisdiction. W e over

rule the Ma sons’ first two appe llate issues. I n t h ei r t h i rd issue, the Masons contend that the trial court err ed in awa rding the Books attorney s’ fee s pursuant to the Dec lara tory J udg ments Act. See id

. § 37.009 (West 2008) (in proce eding s under chapte r 37 court may awa rd rea sonable and nece ssary attorney s’ fee s as are equitable and just). The Masons char acte rize the Books’ suit as one involving a deter mination of competing claims to an interest in land that conseque ntly should have been b ro u gh t as a trespass- to-try -title action. See Martin v

. Amerman , 133 S.W .3d 262, 267 (Tex. 2004) (indicating trespass to try title is method for deter mining interest in land). The Masons maintain that attorney s’ fee s are not rec overa

ble in a trespass- to-try -title action and that the Books may not plead their case

as one for decla

ratory judgme nt in order to rec over attorney s’ fee s not otherwise available

. This arg ument fails for the simple rea son that a roy alty interest, as distinguished from a mineral interest, is a no n -possessory interest. See Natural Gas Pipeline Co. v. Pool , 124 S.W .3d 188, 192 (Tex. 2003). Trespa ss-to-try -title actions are conce rned with the establishment of title (leg al or equitable)

14and possession. Acc ording ly , a non-possessory interest such as a roy alty interest is not a proper

matter for resolution by trespass to try title. See Ramsey v. Grizzle , 313 S.W .3d 498, 502 n.2 (Tex. App.—Texarkana 2010, no pet.) (citing Grasty v. W ood , 230 S.W .2d 568, 5 7 1 (T ex . Civ. App.—Galve ston 1950, writ ref’ d n.r.e.) ). We overr ule the Masons’ third a

ppellate issue.

CONCLUSION Having o v er ru l ed the Masons’ three appellate issues, we aff irm the trial court’s judg ment.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: September

26, 2012

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