United States Court of Appeals

for 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. Thus, the district court 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: 08/07/2023
No. 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 remainsthe 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 agreedupon 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’sterm. In 2011, 

Dalpark and Verus amended the Assignment, reaffirming the same rights. 

Over the next four years, Verus and AT&T executed several 

amendments without consulting Dalpark. In essence, the amendments 

allowed AT&T to “modify” the equipment already installed on the 

Premises. None of the amendments authorized AT&T to install more 

antennas on the Premises. Nor 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 court 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 initially asserting claims for slander of title and conversion, Dalpark 

ultimately abandoned both claims and instead alleged trespass. Thus, trespass was the only 

issue before the district court in this case. 

Case: 22-10884 Document: 00516848401 Page: 2 Date Filed: 08/07/2023
No. 22-10884

3

II.

We review de novo the district court’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 dispute 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 party’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 

trespassing on the property. Rather, Dalpark mainly contends that Verus 

urged AT&T’s trespass through “unauthorized amendments” to the Lease. 

In making this argument, Dalpark neglects to prove one fundamental

element of the claim: physical entry. Dalpark does not identify any physical

intrusion, beyond the defined Premises, by any AT&T equipment. Nor can 

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: 08/07/2023
No. 22-10884

4

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

Dalpark’s claim fails on the first element.

(2)

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

not address the third: whether Verus authorized the alleged trespass without 

Dalpark’s consent. In any event, Dalpark also fails to provide sufficient proof 

for this element.

Under Texas law, defendants 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 language 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 district court’s grant of summary judgment 

is thus AFFIRMED.

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