# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________**
No. 22

- 10884

**____________ Dalpark Partners, Limited,** 

Plaintiff

— Appellant **,**

versus
**Verus Management One, L.L.C.,**

Defendant

— Appellee

**.**

**______________________________** Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20

- CV

- 965

**______________________________** Before **Wiener ,**  **Graves ,**  and **Douglas ,**  Circuit Judges

**. Per Curiam**  **:** ***** Dalpark Partners, Limited (“Dalpark”) alleges that Verus Management One, LLC (“Verus”) trespassed on its property by authorizing a third party, AT&T , to install equipment beyond the parties’ lease agreement

. However, its claim requires proof of physical entry , which Dalpark does not offer

. T hus , the d istrict c ourt granted summary judgment in favor of Verus . We agree and **AFFIRM**

.

**_____________________**

* This opinion is not designated for publication. See **5th Cir**

**. R** 

**.** 47.5. United States Court of Appeals Fifth Circuit 

### FILED August 7, 2023 Lyle W. Cayce Clerk Case: 22-10884 Document: 00516848401 Page: 1 Date Filed: 08/07/2023No. 22

- 10884

2 I. Dalpark purchased a parking garage in Dallas , Texas

. Along with the property came the rights to an existing lease agreement (the “Lease”) covering a portion of the garage

. AT&T remains the sole tenant of this Lease and uses the leased space (the “Premises”) to install equipment for its business

. In 2006, Dalpark assigned its interest in the Lease to Verus for agreed

upon consideration (the “Assignment”)

. In executing the Assignment, Dalpark agreed to “allow [Verus] to modify,

. . . expand or refurbish the equipment” on the Premises “at any time” during the Lease ’s term

. In 2011 , Dalpark and Verus amended the Assignment, reaffir m ing the same rights. Over the next four years, Verus and AT&T executed several amendments without consulting Dalpark. In essence, t he amendments allowed AT&T to “modify” the equipment already installed on the Premises. N one of the amendments authorize d AT&T to install more
antennas on the Premises

. N or was AT&T allowed to install equipment outside the stipulated Premises. Asserting that Verus and AT&T executed the amendments without its consent, Dalpark sued Verus for trespass. 1 Verus moved for summary judgment, and the c ourt granted its motion, holding that (1) Dalpark did not provide sufficient evidence demonstrating physical entry on the property by AT&T equipment and (2) no reasonable jury could conclude that Verus intentionally authorized AT&T ’s alleged trespass. Dalpark timely appealed

. We have jurisdiction under **28 U.S.C. § 1291** 

.

**_____________________**

1 While i nitially asse rting claims for slander of title and conversion , Dalpark ultimately abandoned both claims and instead alleged trespass. T hus, trespass was the only issue before the district court in this case

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3 II.

We review de novo the d istrict c ourt’s grant of summary judgment

. Austin v. Kroger Tex., L.P. , 864 F.3d 326, 328 (5th Cir. 2017) (citation omitted)

. We will affirm if “there is no genuine dispu te as to any material fact and the movant is entitled to judgment as a matter of law.” **Fed. R. Civ. P. 56(a)** 

. Further, all evidence will be viewed “ in the light most favorable to the nonmoving party and all reasonable inferences” will be drawn in that pa rty’s favor. Austin , 864 F.3d at 328

- 29. However,

“ [u] nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Hous. , 337 F.3d 539, 541 (5th Cir. 2003).

III. Texas law provides three elements to trespass: “( 1 ) entry ( 2 ) onto the property of another ( 3 ) without the property owner’s consent or authorization.” Env’t Processing Sys., L.C. v. FPL Farming Ltd. , 457 S.W.3d 414, 419 (Tex. 2015). In dispute here are elements ( 1 ) and ( 3 ). Dalpark has

not provided sufficient evidence to prove either element. (1) Dalpark ’s claim does not depend on Verus , by and of itself , physically trespass ing on the property

. Rather , Dalpark mainly contends that Verus urged AT&T ’s trespass through “unauthorized amendments” to the Lease.

I n making this argument, Dalpark neglects to prove one fundamental element of the claim: physical entry. Dalpark does not identify any physical intrusion , beyond th e defined Premises, by any AT&T equipment. Nor c an

we find anything in the record

. And Texas law requires “ some physical entry” before that entry is deemed a trespass

. R.R. Comm ’ n of Tex. v. Case: 22-10884 Document: 00516848401 Page: 3 Date Filed: 08/07/2023No. 22

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4 Manziel , 361 S.W.2d 560, 567 (Tex. 1962) (emphasis added)

. Thus, Dalpark ’s claim fails on the first element

. (2)

Because Dalpark can not prove the first element of its claim, we need

not address the third : w hether Verus authorized the alleged trespass without Dalpark’s consent

. In any event, Dalpark also fails to prov ide suffici ent proof for this element.

Under Texas law , defendant s may be liable for trespass , without personally participating in the physical entry , if they “ intentionally cause[] a third person” to trespass

. Wilen v. Falkenstein , 191 S.W.3d 791, 798 (Tex. App.

— Fort Worth 2006 , pet. denied ). Dalpark contends that Verus’ s amendments to the Lease suffice to indicate such intent. We disagree

. Dalpark offers no evidence to help ascertain what is genuinely being authorized by the amendments. Further , the lang uage in the Assignment is clear : Dalpark contractually agreed to “allow [Verus] to modify” the equipment on the Premises. Verus abided by these terms , and no competent evidence in the record suggests the contrary.

IV. It is indisputably true that summary judgment is about the evidence

. Dalpark has offered us none. The d istrict c ourt’s grant of summary judgment is thus **AFFIRMED**

. Case: 22-10884 Document: 00516848401 Page: 4 Date Filed: 08/07/2023