Opinion
No. 05-03-01022-CV
Opinion Filed September 3, 2004.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-01537-01.
Reverse and Remand
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
This is an appeal from a summary judgment in a boundary dispute. In five issues, appellants David E. and Karen Calkins contend the judgment in favor of appellee Brent Goette should be reversed because: (1) Goette, as movant, did not establish conclusively his entitlement to judgment; (2) appellants presented more than a scintilla of evidence to support their affirmative defenses; (3) the trial court should have excluded the affidavit testimony of a surveyor that Goette did not timely designate as an expert witness; (4) an award of attorney fees is not permitted in a boundary dispute; and (5) the pleadings and proof did not support the final judgment. Concluding the evidence did not conclusively establish Goette's entitlement to summary judgment, we reverse the trial court's judgment and remand this cause for further proceedings. At the center of this dispute is a wooden fence that purports to divide the parties' adjoining properties. Goette maintained the fence encroached on his property and asked the Calkins to remove it. The Calkins refused, and Goette filed this declaratory judgment action requesting the court to confirm the boundary line between the properties as depicted in a certain survey, declare the fence an encroachment on his property, and authorize its removal.
Goette moved for summary judgment asserting his summary judgment evidence (surveyor affidavit with surveys, together with the Calkins' deposition excerpts, and affidavit for attorney fees) conclusively established his entitlement to judgment as a matter of law. He also contended that appellants had no evidence to support their affirmative defenses of adverse possession and estoppel by acquiescence. The trial court granted summary judgment in favor of Goette.
We conduct a de novo review of a trial court's granting a summary judgment. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex. App.-Dallas 1997, pet. denied). For a traditional summary judgment motion, the moving party has the burden to show no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. See Tex. R. Civ. P.166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). For a no-evidence summary judgment, the non-movant has the burden to present sufficient evidence to raise a genuine issue of fact on the challenged elements of his claims or defenses. See Gen. Mills Rest. v. Texas Wings, Inc., 12 S.W.3d 827, 832-833 (Tex. App.-Dallas 2000, no pet.).
Although Goette has brought this case as a declaratory judgment action, it is the trespass-to-try-title statute that governs the parties' substantive claims. See Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). As recently noted by the Texas Supreme Court, that statute expressly states it is the exclusive method for determining title to real property, including those cases involving only boundary disputes. See id. Where, as here, the sole dispute between the parties involves a boundary's location, the formal proof requirements associated with trespass to try title actions are relaxed. Id. at 265. Ownership of the property is still a necessary element, however. See id. In such a case, proof of a formal chain of superior title may be substituted with evidence of a recorded deed sufficient to show an interest in the disputed property. Id.
Goette offered no such proof. Instead, the only evidence he offered to support his ownership of the property in question was a certified copy of records from the Central Appraisal District of Collin County identifying Goette as the owner of the property. These records were attached to Goette's reply to appellants' response to his summary judgment motion. We conclude that such evidence does not conclusively establish Goette's title to the property; it merely indicates whom the appraisal district believes the owner to be. Accordingly, Goette did not establish his entitlement to judgment as a matter of law.
Our disposition of appellant's first issue makes it unnecessary to address the remaining issues. We reverse the trial court's judgment and remand this cause for further proceedings.