Opinion
NO. 03-21-00561-CV
11-30-2023
The FAITH P. AND CHARLES L. BYBEE FOUNDATION a/k/a Texas Pioneer Arts Foundation, Appellant v. Douglas J. KNUTZEN; Douglas and Diana Knutzen Family Partnership, Ltd.; Douglas and Diana Knutzen Family Partnership Two, Ltd.; Knutzen Family GP, LLC; and Knutzen Family GP Two, LLC, Appellees
James B. McIver, The McIver Law Firm, PLLC, 1360 Kallus Road, La Grange, TX 78945, for appellant. R. Travis Piper, Ben A. Bering Jr., Paul J. McConnell, III, DeLange, Hudspeth, McConnell & Tibbets, L.L.P., 1177 West Loop South, Suite 1700, Houston, TX 77027-9031, for appellees.
FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY, NO. 2020V-099, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING
James B. McIver, The McIver Law Firm, PLLC, 1360 Kallus Road, La Grange, TX 78945, for appellant.
R. Travis Piper, Ben A. Bering Jr., Paul J. McConnell, III, DeLange, Hudspeth, McConnell & Tibbets, L.L.P., 1177 West Loop South, Suite 1700, Houston, TX 77027-9031, for appellees.
Before Chief Justice Byrne, Justices Kelly and Smith
OPINION
Chari L. Kelly, Justice
The Faith P. and Charles L. Bybee Foundation appeals a summary judgment ruling that the Foundation take nothing on its claims for trespass to try title and awarding the defendants attorneys’ fees and conditional appellate fees. The Foundation began this action by suing Douglas J. Knutzen; the Douglas and Diana Knutzen Family General Partnership; the Douglas and Diana Knutzen Family General Partnership Two; Knutzen Family GP, LLC; and Knutzen Family Two GP, LLC (collectively, the Knutzen Parties). The Knutzen Parties are the parties appearing before us as appellees. In seven issues, some with discrete subparts, the Foundation maintains that the summary judgment awarded more relief than the court had the authority to award, the Knutzen Parties’ grounds for summary judgment in their hybrid motion failed to discharge the relevant initial summary-judgment burdens, fact issues precluded summary judgment, the trial court should not have proceeded to judgment because necessary parties had not yet appeared in the suit, and the fees awards should be reversed. We affirm in part, reverse in part, and remand.
BACKGROUND
The Foundation brought this suit to determine title to disputed land within Lot 4, Block 13 in Round Top, Texas. The disputed land sits within the block that lies south of the intersection of Washington Street and Mill Street. After the Foundation filed its original petition, the Knutzen Parties answered and filed a hybrid motion for summary judgment, seeking a judgment that the Foundation take nothing on its claims and an award of fees. After a continuance on the submission of the hybrid motion, the Foundation filed a First Supplemental Petition (Supplemental Petition) and then a First Amended Original Petition (Amended Petition). In the Supplemental Petition, it raised a purported defect in parties in the suit because of missing parties whom the Foundation alleges own interests in the lands in dispute. Then in the Amended Petition, the Foundation added those purportedly necessary parties as defendants, keeping the Knutzen Parties as defendants as well. Nothing in the record shows that the newly added defendants (the Unserved Parties) were ever served with citation, and they did not file any pleadings.
Separately, the Foundation filed a motion for summary judgment of its own, attempting to advance a no-evidence ground on which it bore the burden of proof—that the Knutzen Parties had "no evidence to show" that they "own any interest in Lot 4, Block 13." See Brumley v. McDuff, 616 S.W.3d 826, 829 n.4 (Tex. 2021); Greeheyco, Inc. v. Brown, 565 S.W.3d 309, 320 (Tex, App.—Eastland 2018, no pet.) ("Appellees asserted a no-evidence motion for summary judgment against Greeheyco on Appellees’ trespass to try title claim. Appellees, as the plaintiffs, have the burden of proof on this claim. As such, they were not entitled to seek a no-evidence summary judgment on that claim."). The Foundation assigns no error to the denial of its motion. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam) ("It is axiomatic that an appellate court cannot reverse a trial court's judgment absent properly assigned error.").
After deciding Penn, the Texas Supreme Court issued Lehmann v. Har-Con Corporation, which instructs that a judgment issued without a conventional trial is final for purposes of appeal if it actually disposes of all claims and parties then before the court, regardless of its language, or states with unmistakable clarity that it is a final judgment as to all claims and all parties. 39 S.W.3d 191, 192–93, 200, 204 (Tex. 2001). The Texas Supreme Court clarified that "Penn was not overruled, expressly or otherwise, by Lehmann" M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674–75 (Tex. 2004) (per curiam). Absent a clear holding from the Texas Supreme Court overruling Penn, or a statutory directive, we are bound by existing precedent. See Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) ("It is not the function of a court of appeals to abrogate or modify established precedent. That function lies solely with [the Texas Supreme] Court." (internal citation omitted)); Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 565 (Tex. App.—Austin, 2004, no pet.) (explaining that intermediate appellate courts must follow Texas Supreme Court precedent unless and until the high court overrules them and cannot mold Texas law as we see fit).
After the Foundation responded to the Knutzen Parties’ hybrid motion for summary judgment, the court heard the hybrid motion by submission. The court then granted the Knutzen Parties their requested summary judgment; ruled that the Foundation take nothing on its claims against them; and awarded them attorneys’ fees, conditional appellate fees, and costs. It did all this in a judgment styled as the "Final Judgment" that also contains this three-part statement: "[(1)] This is a FINAL JUDGMENT, [(2)] disposing of all claims and parties. [(3)] This judgment is appealable." The Foundation now appeals that judgment. DISCUSSION
This three-part statement, because it is a "clear indication" of finality, makes the summary judgment the final judgment in the suit. Patel v. Nations Renovations, LLC, 661 S.W.3d 151, 155 (Tex. 2023) (per curiam); Bella Palma, LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2020) (per curiam); see Nexus Series B, LLC v. Durham Trading Partners XII, LLC, No. 13-21-00333-CV, 2022 WL 17351597, at *3 (Tex. App.—Corpus Christi–Edinburg Dec. 1, 2022, no pet.) (mem. op.); Ryan v. TX RCG, LLC, No. 05-21-00382-CV, 2022 WL 17261158, at *5 n.9 (Tex. App.—Dallas Nov. 29, 2022, no pet.) (mem. op.); In re Estate of Cougot, No. 08-22-00007-CV, 2022 WL 2866012, at *2, 4 (Tex. App.—El Paso July 21, 2022, pet. denied) (mem. op.); Hjella v. Red McCombs Motors, Ltd., No. 04-20-00359-CV, 2022 WL 789501, at *3 (Tex, App.—San Antonio Mar. 16, 2022, pet. denied) (mem. op.); Metro Solns. Tex., LLC v. Smith, No. 0240-00176-CV, 2021 WL 5742078, at *3 (Tex. App.—Fort Worth Dec. 2, 2021, no pet.) (mem. op.); Martin v. Higginson, No. 07-19-00254-CV, 2021 WL 279249, at *4–5 (Tex. App.—Amarillo Jan. 27, 2021, no pet.) (mem. op.); Walker v. Holmes, Diggs, Eames & Sadler, No. 14-19-00234-CV, 2020 WL 2120295, at *2 (Tex. App.—Houston [14th Dist.] May 5, 2020, no pet.) (mem. op.). Our dissenting colleague, in concluding that the judgment is instead interlocutory, reviews the record to apply a test based on 1962’s Youngstown Sheet Tube Co. v. Penn. See generally 363 S.W.2d 230 (Tex. 1962). Because this judgment contains language clearly indicating finality, we are forbidden from reviewing the record to question whether the judgment is really final. Bella Palma, 601 S.W.3d at 801; In re Elizondo, 544 S.W.3d 824, 827–28, 829 (Tex. 2018) (orig. proceeding) (per curiam).
The trial court entered the summary-judgment order a little more than two months after the date when the original petition was filed.
I. The summary judgment awards more relief than the court had the authority to award under the hybrid motion for summary judgment.
In its first issue, the Foundation maintains that the summary judgment is in error because it awards relief on claims that the Knutzen Parties’ hybrid motion had not addressed. The parties’ competing positions under this issue require us to decide what claims the Foundation had pleaded to determine whether all were adequately addressed.
After the Knutzen Parties answered and filed their hybrid motion, the Foundation filed its Supplemental Petition and later its Amended Petition. The Amended Petition purported to add the Unserved Parties as defendants. And, the Foundation says, the Supplemental Petition and Amended Petition added claims that had not been pleaded in the Foundation’s original petition and that the hybrid motion had not addressed.
As we explain below, our conclusions about the claims the Foundation has pleaded stays the same no matter whether we consider the Supplemental Petition to be part of the live pleadings.
[1, 2] Because a court’s authority to render a summary judgment depends on "the issues expressly set out in the motion or in an answer or any other response," see Tex. R. Civ. P. 166a(c), a summary judgment must not award the movant more relief than requested, see Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). In such an instance, the part of the summary judgment awarding relief on a claim not addressed by the motion for summary judgment generally must be reversed. See Hayes v. Vista Host, Inc., No. 03-08-00053-CV, 2009 WL 722288, at *5 (Tex. App.—Austin Mar. 20, 2009, no pet.) (mem. op.); see also Clark v. First Nat’l Bank of Highlands, 794 S.W.2d 953, 955–56 (Tex. App.—Houston [1st Dist.] 1990, no writ) (reversing summary judgment because it awarded judgment on claims added by amended pleading filed after summary-judgment motion had been filed). But there are exceptions to this rule. First, for traditional grounds for summary judgment, "[c]ourts have granted summary judgments on causes of action not specifically addressed in a movant’s motion if the movant has conclusively disproven an ultimate fact which is central to all causes of action alleged, or the unaddressed causes of action are derivative of the addressed cause of action." Hayes, 2009 WL 722288, at *5 (quoting Smith v. Heard, 980 S.W.2d 693, 697 (Tex. App.—San Antonio 1998, pet. denied)). And for no-evidence grounds, "when a previously filed no-evidence summary-judgment motion already challenges an essential element of a later-added claim," the later-added claim may be disposed of by summary judgment even if not expressly addressed by the no-evidence motion. See id. Therefore, the grounds for summary judgment that the Knutzen Parties presented in their hybrid motion may meet these exceptions and still support the summary judgment on all the Foundation’s claims.
[3, 4] When we review pleadings for whether they plead certain claims, we are guided by the "fair notice" standard. See Tex. R. Civ. P. 47(a); Bos v. Smith, 556 S.W.3d 293, 305–06 (Tex. 2018). "In the absence of special exceptions or other motion challenging the sufficiency of the pleadings, we construe a petition liberally in favor of the pleader." Brumley v. McDuff, 616 S.W.3d 826, 831 (Tex. 2021); accord Bos, 556 S.W.3d at 306. "Even so, a liberal construction ‘does not require a court to read into a petition what is plainly not there.’ " Bos, 556 S.W.3d at 306 (quoting Heritage Gulf Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 658 (Tex. App.—Houston [14th Dist.] 2013, no pet.)). "A plaintiff sufficiently pleads a cause of action when the elements of the claim and the relief sought may be discerned from the pleadings alone." Brumley, 616 S.W.3d at 831.
We do not consider the Knutzen Parties' special exceptions because the Knutzen Parties did not secure a hearing and ruling on them. See Davis v Angleton ISD, 582 S.W.3d 474, 481 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). Even if we were to consider them, they would not change our analysis below.
[5, 6] Turning to the Foundation’s live pleadings, we first observe that the Foundation pleaded trespass-to-try-title claims. "By statute, a trespass-to-try-title action ‘is the method of determining title to lands.’ " Id. at 831–32 (quoting Tex. Prop. Code § 22.001(a)). "Although related claims exist to determine narrower questions of possession, a cloud on a title, or a nonpossessory interest, a trespass-to-try-title action is the exclusive remedy for resolving overarching claims to legal title." Id. at 832. Any of several theories can support a trespass-to-try-title claim: (1) a. regular chain of title of conveyances from the sovereign to the plaintiff; (2) a superior title to that of the defendant out of a common source; (3) title by limitations, that is, by adverse possession; (4) possession that has not been abandoned; or (5) title by recorded deed if the only dispute between the parties is the location of the property’s boundary lines. See id. at 832–33; Lance v. Robinson, 543 S.W.3d 723, 735–36 & n.10 (Tex. 2018); Martin v. Amerman, 133 S.W.3d 262, 265–66 (Tex. 2004), superseded by statute on other grounds by Act of May 17, 2007, 80th Leg., R.S., ch. 305, § 1, 2007 Tex. Gen. Laws 581, 581 (codified at Tex. Civ. Prac. & Rem. Code § 37.004(c)), as recognized in Lance, 543 S.W.3d at 736 n.10.
The Foundation pleaded its claims for trespass to try title concerning what it calls Tracts 1, 2, and 3. By its claims, it seeks title to what it has termed in the following graphic of the land at issue the "[d]isputed" portions of Tracts 1 and 2 and all of Tract 3:
681 S.W.3d 828.bmp
The Foundation pleaded trespass to try title concerning Tracts 1 and 2 based on the theories of superior title out of a common source, adverse possession, and boundary lines established by recorded deeds. For Tract 3, it pleaded trespass to try title but using only the theories of adverse possession and boundary lines established by recorded deeds. As relief for all these claims, the Foundation pleaded for damages, declaratory relief, injunctive relief, and attorneys’ fees.
Notwithstanding Property Code section 22.001(a), a party may use the Uniform Declaratory Judgments Act "when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties." Tex. Civ. Prac. & Rem. Code § 37.004(c); see Lance v. Robinson, 543 S.W.3d 723, 736 n.10 (Tex. 2018); see also Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 297–98 (Tex. App.—Austin 2018, pet. denied) ("While sometimes termed a ‘cause of action’ colloquially, declaratory relief under the UDJA is more precisely a type of remedy that may be obtained with respect to a cause of action or other substantive right.").
[7–9] Some of the Foundation’s briefing suggests that beyond claims for trespass to try title, the Foundation believes it had also pleaded quiet-title claims. A claim for trespass to try title is distinct from a claim to quiet title, though the differences are nuanced. See Brumley, 616 S.W.3d at 835 & n.46; McCammon v. Ischy, No. 03-06-00707-CV, 2010 WL 1930149, at *7 (Tex. App.—Austin May 12, 2010, pet. denied) (mem. op.). A claim "to quiet title is traditionally one in which the superior title holder seeks to remove a challenge to that title." Brumley, 616 S.W.3d at 835. "Thus, ‘[t]he plaintiff in a quiet-title suit "must prove, as a matter of law, that he has a right of ownership and that the adverse claim is a cloud on the title that equity will remove." ’ " Id. (quoting Lance, 543 S.W.3d at 739). These principles are often summed up as "adjudicat[ing] the supremacy of [plaintiff's] title," see id. at 835, which stands in contrast with what claims for trespass to try title resolve—"overarching claims to legal title," see id. at 832, 835. "Over time, … the term ‘quiet title’ has acquired a colloquial meaning encompassing many kinds of title disputes, including those more aptly named as trespass-to-try-title actions." Id. at 835. Even when plaintiffs have called their claims ones to "quiet title," the claims are actually claims for trespass to try title when their substance amounts to seeking title ownership of land. See id. at 835–36.
[10, 11] Applying these principles here, plus those more generally about reviewing pleadings for what claims are pleaded, we conclude that the Foundation did not plead any quiet-title claims. The substance of all its pleaded claims was to establish title ownership of the disputed parts of Tracts 1 and 2 and of all of Tract 3 and to establish the boundary lines of all three tracts. The Amended Petition names the claims it pleads "Trespass to Try Title" claims. And the only time the Amended Petition uses the word "quiet" is in this sentence: "[The Foundation] brings this action to quiet title to the disputed areas under §[§] 16.024, 16.025, 16.026, 16.027, and 16.028 Tex. Civ. Prac. & Rem. Code." The statutes cited are adverse-possession statutes. See generally Tex. Civ. Prac. & Rem. Code §§ 16.024–.026, 16.027–.028. And a "claim of title by adverse possession is a dispute over title to land; thus, ‘the method’ to resolve it is a statutory trespass-to-try-title action." Brumley, 616 S.W.3d at 835 (quoting Martin, 133 S.W.3d at 267). There is simply no quiet-title claim or any other kind of claim in the Foundation’s live pleadings. See Bos, 556 S.W.3d at 306.
Our conclusion stays the same no matter whether we consider the Supplemental Petition in addition to the Amended Petition. Even if we consider the Supplemental Petition as part of the Foundation’s live pleadings, see, e.g., Alert Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246, 252–53 (Tex. App.—Tyler 2004, no pet.) (amended petition superseded only original petition and not also earlier first supplemental petition because amended petition was styled "amended original petition" and not also "amended first supplemental petition" (citing Tex. R. Civ. P. 64)); but see Rupp v. Brown, 31 S.W.3d 803, 806 (Tex, App.—Austin 2000, pet. denied) (amended pleading supersedes "all" previous pleadings); CIGNA Ins. Co. v. TPG Store, Inc., 894 S.W.2d 431, 434 (Tex. App.—Austin 1995, no writ) (amended petition supplants "all" former petitions), we conclude that the Supplemental Petition pleads no claims that are not otherwise pleaded in the Amended Petition. The substance of the Supplemental Petition reveals that it was asserting only a defect in parties in connection with the claims that the Foundation had otherwise pleaded.
[12] We turn next to the grounds for summary judgment advanced in the Knutzen Parties’ hybrid motion and decide whether the grounds either expressly address all the Foundation’s claims or fall into either of the exceptions identified above for later-added claims. See Tex. R. Civ. P. 166a(c); Hayes, 2009 WL 722288, at *5. As with determining whether a petition has pleaded a particular claim, we judge whether a motion for summary judgment has "expressly set out," see Tex. R. Civ. P. 166a(c), a particular ground for summary judgment using the "fair notice" standard, see Berkel v. Texas Prop. & Cas. Ins. Guar. Ass’n, 92 S.W.3d 584, 594–95 (Tex. App.—Austin 2002, pet. denied); Dear v. City of Irving, 902 S.W.2d 731, 734–35 (Tex. App.—Austin 1995, writ denied).
Using that standard, we conclude that the Knutzen Parties’ motion expressly sets out these summary-judgment grounds: (a) traditional grounds intending to conclusively negate the Foundation’s ability to prove record title to the disputed portions of Tracts 1 and 2, (b) no-evidence grounds for all three tracts asserting that the Foundation cannot prove record title to any tract, (c) a traditional ground intending to conclusively negate all adverse-possession theories for Tract 3, and (d) an attempted no-evidence ground on all adverse-possession theories for Tract 3.
As we conclude below, this ground must be treated instead as a traditional ground for summary judgment because it fails to state the adverse-possession elements as to which there was no evidence. See Section II below.
[13] For Tracts 1 and 2, the motion states the traditional grounds by arguing that the relevant chain of title includes a deed of a 10-foot-wide strip of land from the Foundation’s predecessor-in-interest to the county for widening Washington Street. If true, then all the Foundation’s arguments based on the chain of title from that predecessor-in-interest to itself are mistaken insofar as they consider Tract 1 to have remained 40 feet wide, instead of 30 feet wide after accounting for the strip deeded to the county. And if Tract 1 were in fact narrower by that much, then, the Knutzen Parties say, the Foundation’s record-title-based arguments about Tract 2 would all be similarly erroneous because that tract would, in fact be 10 feet closer to Washington Street than the Foundation appreciates. This ground would dispose of the common-source and boundary-lines theories for Tracts 1 and 2 because those theories depend on proving record title. See Brumley, 616 S.W.3d at 832–33 (describing common-source and boundary-lines theories of proving claim for trespass, to try title as depending on plaintiff’s proof of title); Lance, 543 S.W.3d at 736 n.10 ("The parties to [a boundary-lines suit] necessarily compete for title to the disputed strip between the asserted boundaries, but they typically do not contest their opponent’s ownership subject to the proper boundary."). This ground also would dispose of any adverse-possession theories for Tracts 1 and 2 that depend on proving record title. See, e.g., Tex. Civ. Prac. & Rem. Code § 16.024 (three-year adverse-possession statute applies to claims involving "property held … in peaceable and adverse possession under title or color of title" (emphasis added)).
[14, 15] For the no-evidence ground applicable across all three tracts, the motion addresses the ground, like the preceding ground, to evidence of record title: "Plaintiff's trespass to try title claims fail as a matter of law, as Plaintiff does not show title to any tract other than the now 30-foot-wide Tract 1 and the 30-foot-wide Tract 2." This ground, like the prior one, would dispose of the common-source and boundary-lines theories for Tracts 1 and 2 and the boundary-lines theory for Tract 3 because those theories depend on proving record title. It would also dispose of any adverse-possession theories for the three tracts that depend on proving record title.
[16, 17] As for the grounds addressed only to Tract 3 by itself, the motion states a traditional ground for summary judgment based on all adverse-possession theories: "With respect to Tract 3 …, … any claim of adverse possession is specifically negated by the sworn testimony of Douglas Knutzen, attached hereto." It also states an attempted no-evidence ground on all adverse-possession theories: "With respect to Tract 3 …, Plaintiff has come forward with no evidence to support any claim of adverse possession."
[18] But not expressly addressed by any of the grounds are the Foundation’s trespass-to-try-title claims for Tracts 1 and 2 based on adverse-possession theories that do not depend on proving record title. While the traditional grounds for Tracts 1 and 2 are based on conclusively negating the Foundation’s ability to prove its record title to the tracts, at least some of the Foundation’s claims using adverse possession do not depend on proving record title at all. For example, the Foundation pleaded Civil Practice and Remedies Code sections 16.026 and 16.027 as two of its adverse-possession theories for Tracts 1 and 2, and at least some claims under those statutes do not require plaintiffs to prove their own preexisting claim of title, color of title, or recorded deed or instrument, See Hopkins v. State, No. 03-07-00253-CV, 2009 WL 3806160, at *6 (Tex. App.—Austin Nov. 13, 2009, no pet.) (mem. op.). These traditional grounds for summary judgment therefore could not dispose of all the Tract 1 and Tract 2 adverse-possession theories. Much the same is true for the no-evidence ground applicable across all three tracts stating that "Plaintiff’s trespass to try title claims fail as a matter of law" because "Plaintiff does not show title to any tract other than the now 30-foot-wide Tract 1 and the 30-foot-wide Tract 2." This ground rests on the Foundation’s need to prove its record title, but, as we have explained, the Foundation’s claims for adverse possession for the three tracts are not limited to theories that require proof of a preexisting claim of title, color of title, or recorded deed or instrument. Finally, the motion’s no-evidence ground specifically mentioning adverse possession did not address Tracts 1 and 2, addressing only Tract 3, see Holloway v. Texas Elec. Util. Constr., Ltd., 282 S.W.3d 207, 213 (Tex. App.—Tyler 2009, no pet.) (discussing general requirements that no-evidence grounds be addressed to specific claims and elements of those claims), and lack of evidence to prove adverse possession’s elements for Tract 3 does not necessarily mean that there is also a lack of evidence to prove adverse possession’s elements for Tracts 1 and 2.
The Knutzen Parties’ unpreserved special exceptions would not change our analysis because they address only Tract 3 claims.
We thus conclude that the Knutzen Parties’ hybrid motion did not expressly address the Foundation’s trespass-to-try-title claims for Tracts 1 and 2 that use adverse-possession theories that do not depend on proving record title and that for those claims and theories, the motion’s grounds do not otherwise trigger either of the exceptions recognized in Hayes. See Tex. R. Civ. P. 166a(c); 2009 WL 722288, at *5. We. therefore sustain the Foundation’s first issue and reverse the portion of the summary judgment that awarded relief on the unaddressed claims and theories. See Hayes, 2009 WL 722288, at *5.
II. One attempted no-evidence ground should instead be treated as a traditional ground, but another no-evidence ground sufficiently "state[d] the elements as to which there is no evidence."
The Foundation’s next issues attack the summary judgment on the merits. In its second issue, the Foundation takes up the no-evidence grounds for summary judgment, dividing its appellate arguments be- tween, on the one hand, the ground specific to Tract 3 and, on the other, the ground encompassing all three tracts. It argues that in neither case did the hybrid motion meet the initial burden on a movant for no-evidence summary judgment and thus that the motion should have been denied for that reason alone.
[19, 20] Movants for no-evidence summary judgment, to discharge their initial burden, must obey this rule: "The motion must state the elements as to which there is no evidence." See Tex. R. Civ. P. 166a(i); see also id. cmt. to 1997 change ("The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case."). The Supreme Court of Texas "ha[s] called for strict enforcement of this requirement":
Thus, a no-evidence motion that lists each element of the plaintiff's claim and then asserts that the plaintiff has no evidence to support "one or more" or "any of" those elements is insufficient to support summary judgment because this language does not clearly identify which elements, whether some or all, are challenged.
Community Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 695–96 (Tex. 2017) (internal citations omitted). A motion’s recitations of general law, conclusory arguments, and mere references to attached affidavits fall short of stating the elements as to which there is no evidence. See Brown v. Hegar, No. 03-14-00492-CV, 2015 WL 7952259, at *2 n.2 (Tex. App.—Austin Dec. 3, 2015, no pet.) (mem. op.); Smith v. McCleskey, Harriger, Brazill, & Graf, L.L.P., 15 S.W.3d 644, 645–46 (Tex. App.—Eastland 2000, no pet.). When an attempt at a no-evidence ground falls short of stating the elements as to which there is no evidence, we then treat it as a traditional ground for summary judgment. Brown, 2015 WL 7952259, at *2 n.2.
[21] The Foundation first attacks the no-evidence ground addressed to Tract 3 alone, which states, "With respect to Tract 3 …, Plaintiff has come forward with no evidence to support any claim of adverse possession." But adverse possession has elements, see Tex. Civ. Prac. & Rem. Code § 16.021(1); Hoffman v. Mena, No. 03-19-00409-CV, 2021 WL 2460637, at *3 (Tex. App.—Austin June 17, 2021, no pet.) (mem. op.), including differing ones for the differing limitations periods, see Tex. Civ. Prac. & Rem. Code §§ 16.024–.026, 16.027–.028; see, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 756–57 (Tex. 2003); Martin v. McDonnold, 247 S.W.3d 224, 233 (Tex. App.—El Paso 2006, no pet.). Nothing in the motion identifies the adverse-possession elements on which the Knutzen Parties were moving, and their reliance on appeal on the affidavit that they attached to their hybrid motion does not suffice, see Brown, 2015 WL 7952259, at *2 n.2; Smith, 15 S.W.3d at 645–46. The motion falls short even of what the Court in Hansen said was insufficient. See 525 S.W.3d at 695–96. We therefore sustain this portion of the Foundation’s second issue in part—this problem alone is not a basis for reversing the summary judgment, but we treat this attempted no-evidence ground for summary judgment instead as a traditional ground. See Brown, 2015 WL 7952259, at *2 n.2.
[22] The Foundation next attacks the no-evidence ground that applies across all three tracts, which states, "Plaintiff’s trespass to try title claims fail as a matter of law, as Plaintiff does not show title to any tract other than the now 30-foot-wide Tract 1 and the 30-foot-wide Tract 2." As we have explained, this ground would not entitle the Knutzen Parties to a. no-evidence summary judgment on claims or theories that do not depend on proof of the Foundation’s preexisting claim of title, color of title, or recorded deed or instrument. But this ground does otherwise state that the Foundation has no evidence to support the record-title element of any of its claims or theories that do depend on such an element, like the common-source and boundary-lines theories and some of the adverse-possession theories. See, e.g., Tex. Civ. Prac. & Rem. Gode § 16.024; Brumley, 616 S.W.3d at 832–33; Lance, 543 S.W.3d at 736 n.10. We therefore overrule this remaining portion of the Foundation’s second issue.
III. The Foundation challenges the initial shifting of the traditional-summary-judgment burden and argues that it raised fact issues precluding summary judgment.
Under its third, fifth, and sixth issues, the Foundation argues that the Knutzen Parties failed to carry their initial traditional-summary-judgment burden and thus that no burden shifted to the Foundation, and it argues that the Knutzen Parties’ no-evidence and traditional grounds were not meritorious because fact issues precluded summary judgment.
A. The Knutzen Parties carried their initial traditional-summary-judgment burden.
The Knutzen Parties’ traditional grounds for summary judgment were:
(1) for Tracts 1 and 2, arguing that based on an earlier deed in the Foundation’s chain of title, the chain could no longer include as much land as the Foundation believed it did;
(2) for Tract 3, the attempted no-evidence ground that "Plaintiff has come forward with no evidence to support any claim of adverse possession"; and
(3) for Tract 3, "any claim of adverse possession is specifically negated by the" affidavit of Douglas Knutzen, attached to the hybrid motion.
The Foundation’s arguments on appeal that these grounds failed to discharge the initial traditional-summary-judgment burden focus on affidavit evidence that the Knutzen Parties offered about Tracts 1 and 2—an affidavit by a registered publicland surveyor—and, separately, on other affidavit evidence that the Knutzen Parties offered about Tract 3—Douglas Knutzen’s affidavit.
[23] "A party that moves for traditional summary judgment must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022) (citing Tex. R. Civ. P. 166a(c)). Defendants moving for summary judgment on the plaintiff’s claim can meet their burden by conclusively negating at least one element of the claim. Huckabee v. Time Warner Ent. Co., 19 S.W.3d 413, 420 (Tex. 2000). If the movant meets its burden, the burden then shifts to the nonmovant to raise a fact issue on the challenged elements. See Chavez v. Kansas City S. Ry. Co., 520 S.W.3d 898, 900 (Tex. 2017) (per curiam); Huckabee, 19 S.W.3d at 420. But if the movant does not meet its burden, then the burden does not shift and the nonmovant need not respond or present any evidence. Chavez, 520 S.W.3d at 900. We begin with whether the Knutzen Parties discharged their initial burden under the traditional ground about Tracts 1 and 2. The thrust of their arguments and supporting evidence under that ground was that the Foundation's chain of title could not include as much land as the Foundation thinks it did because earlier in the chain, the Foundation’s predecessor-in-interest deeded to the county a 10-foot strip out of the land for widening the adjoining road, Washington Street. These facts, if true, go to the heart of the Foundation’s claims and theories that depend on proving its record title. All those claims and theories as the Foundation pleaded them depend on proving that the chain of title for Tracts 1 and 2 conveyed to the Foundation 70 feet of frontage on Mill Street. But the Knutzen Parties’ traditional ground here and supporting evidence asserted that Tracts 1 and 2 could enjoy no more than 60 feet of frontage on Mill Street because of the loss of the 10-foot strip to the county.
[24–26] The parties’ positions call on us to interpret deeds or recorded instruments, which are interpreted the same as contracts. See Nettye Engler Energy, LP v. BlueStone Nat. Res. II, LLC, 639 S.W.3d 682, 689 (Tex. 2022). If a deed or recorded instrument has a certain and definite meaning, then the deed or instrument is unambiguous, we interpret it as a matter of law, and we enforce it as written. See id.; Stribling v. Millican DPC Partners, LP, 458 S.W.3d 17, 20 (Tex. 2015) (per curiam). But deed or instrument language aside, when a deed or instrument purports to convey several tracts but some of the tracts had previously been conveyed by the grantor to others, the conveyance is only effective as to tracts not previously conveyed. See United States Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 226 (Tex. App.—San Antonio 1951, writ ref'd); see also Collora v. Navarro, 574 S.W.2d 65, 70 (Tex. 1978) ("Joe’s … attempted transfer of the entire tract … would not be effective to transfer a greater interest in the property than that which he owned."); Travis Cent. Appraisal Dist. v. Signature Flight Support Corp., 140 S.W.3d 833, 843 (Tex. App.—Austin 2004, no pet.) ("Regardless of such language in the subleases, Signature and Austin Aero … could not have conveyed or assigned … any rights or interests greater than those they possessed." (citing Collora, 574 S.W.2d at 70)).
The summary-judgment record shows that the parties agree that the Foundation’s chain of title depends on a 1920 deed conveying from certain Knutzen ancestors to an Ernst Emmerich the 40-foot-by-70-foot tract that the Foundation calls Tract 1. That 40-foot-by-70-foot tract bordered Washington Street, as shown in the 1920 deed’s language describing the tract:
Part of Lot No. 4, in Block No. 13, in the town of Round Top, … described as follows, to-wit: beginning at the north corner of Lot No. 4 at the intersection of Washington and Mill Streets; thence south 43° west, parallel with Washington Street, 70 feet to a stake for corner; thence south 47° east 40 feet to a stake for corner; thence north 43° east 70 feet to a stake for comer in said Mill Street; then north 47° west 40 feet to the place of beginning.
(Emphases added and formatting altered.) This description shows that no other land then lay between this tract’s edge and Washington Street.
Next, the Knutzen Parties attached to their hybrid motion a 1929 deed from Emmerich to Fayette County of "a strip of land 10 feet wide adjoining" Washington Street "and across the northwest edge of a part of Lot No. 4, of Block No. 13 in the town of Round Top …, conveyed by [the Knutzen ancestors] to Ernst Emmerich and recorded in" the county records at the volume and page numbers matching those of the 1920 deed. According to the Knutzen Parties’ evidence, because no other land lay between Tract 1 and Washington Street, the 10-foot strip conveyed by the 1929 deed must have been carved out of Tract 1 and not out of some other land.
Then to address Tract 2, the Knutzen Parties attached to their motion a 1931 deed, which the Foundation agrees is part of its chain of title, conveying to the Foundation’s predecessor-in-interest
all that certain parcel of land, in Round Top, … being part of Lot No. 4 in Block No. 13, … said parcel being 50 feet in length and 30 feet in width and fronting on Mill Street, and lying adjacent to a certain lot, 70 x 40, conveyed by [the Knutzen ancestors] to Ern[]st Emmerich, … 1920, (See [volume-and-page location of the 1920 deed in the county records]), more particularly described as follows, to-wit: beginning at the east of said Emmerich Lot, in Mill Street; thence south 43° West with the south line of said Emmerich lot and parallel with Washington, 50 feet to a stake for comer; thence south 47° east 30 feet to a stake for the south corner of the lot hereby conveyed; thence north 43° east 50 feet to a stake for corner; thence north 47° west parallel with Mill Street and at right angles with Washington Street, 30 feet to the place of beginning.
(Emphases added and formatting altered.) Because this deed describes Tract 2 as lying adjacent to Tract 1 and bordering Tract 1’s "south line," the deed effectively sets Tract 1’s southeast edge, which is where Tract 2 then begins.
[27] We conclude that the deeds that the Knutzen Parties attached to the hybrid motion, which we interpret as a matter of law, see Nettye Engler Energy, 639 S.W.3d at 689; Stribling, 458 S.W.3d at 20, sufficed to shift the summary-judgment burden to the Foundation to prove its record title to Tracts 1 and 2 for those claims and theories that depend on such an element. The Foundation’s chain-of-title-based claims depend on the 1920 and 1931 deeds, but the Knutzen Parties’ proof of those deeds plus the intervening 1929 deed to the county show that all later conveyances of Tracts 1 and 2, ending with the Foundation, could no longer have added up to 70 feet of frontage on Mill Street as the Foundation argues because after 1929 there was no longer 70 feet of frontage to convey—10 feet had gone to the county—and the 1931 deed set both Tract 1’s southeast edge and Tract 2’s total length fronting Mill Street. See United States Fid. & Guar., 242 S.W.2d at 226; see also Collora, 574 S.W.2d at 70; Travis Cent. Appraisal Dist., 140 S.W.3d at 843. The Foundation’s evidence of its chain of title after 1931 relies on deeds whose language continues to refer to the originally 40-foot-by-70-foot tract as having those dimensions, with no mention of the intervening 1929 deed. The Foundation’s arguments to the contrary on this issue of the initial burden all focus on the affidavit by the Knutzen Parties’ registered public-land surveyor, who described his work of creating a sketch of the parcels described by the 1920, 1929, and 1931 deeds. The Foundation otherwise offers no arguments for why the deeds themselves could not shift the initial summary-judgment burden on proof of record title for Tracts 1 and 2. Regarding Tract 3, the Knutzen Parties’ remaining traditional grounds for summary judgment concern adverse possession, and to support those grounds, they attached to the hybrid motion a July 16, 2020 affidavit by Douglas Knutzen. He swore that "[t]he tract described as Tract 3 … has always been owned and possessed by the Knutzen family since before the turn of the twentieth century"; the "tract has never been in the possession of any[ ]one other than the Knutzen family, during [his] lifetime"; and he was then "78 years of age, and ha[s] been familiar with that tract [his] entire life." To argue that this affidavit did not shift the summary-judgment burden to the Foundation on elements of adverse possession for Tract 3, the Foundation invokes the interested-witness rule; variously calls the affidavit testimony vague, nonspecific, and conclusory; and argues that it falls short of being clear, direct, positive, and free of circumstances tending to discredit or impeach it. See generally Tex. R. Civ. P. 166a(c), (f).
[28] But we conclude that the Douglas Knutzen affidavit sufficed to shift the summary-judgment burden on elements of adverse possession implicated by possession of the property. See Tex. Civ. Prac. & Rem. Code §§ 16.021(1), 16.024–.026, 16.027–.028. We have recognized very similar affidavit testimony as sufficient to support a defense summary judgment on a plaintiff's adverse-possession theory. When that defendant moved for a traditional summary judgment on adverse possession, the defendant attached his own. affidavit to his motion. See Bay Area Council Boy Scouts of Am. v. Myers, No. 03-04-00653-CV, 2009 WL 790197, at *1, 4–6 (Tex. App.—Austin Mar. 27, 2009, no pet.) (mem. op.). In it, he swore that his family had "maintained uninterrupted use and exclusive possession of the property in dispute since 1937," using the property themselves, maintaining its perimeter fences, and turning away trespassers. See id. at *4. We recognized the interested-witness rule—"[t]he affidavit of an interested party may conclusively establish a fact when, as is the case here, it is clear, positive and direct, free from inconsistences and contradictions, and could have been readily controverted." Id. And we concluded not only that the affidavit could support the summary judgment but also that the plaintiff had not raised a fact issue to defeat summary judgment. Id. at *5. Douglas Knutzen’s affidavit similarly sufficed to shift the summary-judgment burden. And it was not conclusory because it explained the bases for him to testify as he had—that he was familiar with the tract given his family’s history on it. See Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex, 2012) (stating among the "requirements [of] any other evidence" that witness’s testimony is conclusory if witness "simply state[s] a conclusion without any explanation" (first quoting Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984), abrogated on other grounds by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 482–83 (Tex. 2014), then quoting Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008))); Gardner v. Abbott, 414 S.W.3d 369, 385 n.19 (Tex. App.—Austin 2013, no pet.) (stating that lay testimony "is not conclusory when it recites some facts and gives details that can be rebutted"). We thus overrule the portions of the Foundation’s third, fifth, and sixth issues that challenge whether toe Knutzen Parties shifted the traditional-summary-judgment burden.
B. The Foundation did not raise a fact issue on proof of record title to Tracts 1, 2, and 3 but did raise a fact issue on its Tract 3 theories that do not depend on proof of record title.
The rest of the Foundation’s arguments under its third, fifth, and sixth issues advance purported fact issues that the Foundation says precluded summary judgment. Based on our analysis above, a summary-judgment burden shifted to the Foundation to raise a genuine issue of material fact on the following topics: (1) proof of its record title to the disputed parts of Tracts 1 and 2 to support its common-source and boundary-lines theories and to support its adverse-possession theories that depend on proving record title, (2) proof of its record title to Tract 3 to support its boundary-lines theory and to support its adverse-possession theories that depend on proving record title, and (3) proof of its acts of adverse possession of Tract 3. See Tex. R. Civ. P. 166a(c), (i); JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021) (no-evidence-summary-judgment burden on nonmovant); Huckabee, 19 S.W.3d at 420 (traditional-summary-judgment burden on nonmovant).
As a reminder, we concluded above that the trial court erred by awarding summary judgment on the adverse-possession theories for Tracts 1 and 2 that do not depend on proving record title because the hybrid motion did not address those theories. See Section I above.
Viewing the summary-judgment record in the light most favorable to the Foundation, see Bay Area Council Boy Scouts of Am., 2009 WL 790197, at *1, we first observe that the Foundation’s evidence of chain of title for Tracts 1 and 2 from 1920 onward is uniform in describing the tracts. It uniformly shows Tract 1 as abutting the intersection of Washington and Mill Streets and as being 40 feet by 70 feet, with metes-and-bounds descriptions matching one another from 1920 onward. Its evidence of its chain for Tract 2 uniformly shows that tract as abutting Tract 1 on the latter’s southeast side, abutting Mill Street, and being 30 feet by 50 feet. The Foundation’s evidence of its chain is uniform in showing that the two tracts together enjoy 70 feet of frontage on Mill Street.
Nevertheless, the Foundation’s evidence of its chain of title for Tracts 1 and 2, including all the metes-and-bounds descriptions within it, does not raise a fact issue about whether the Foundation can show record title to the disputed portions of the tracts because we are to interpret all the deed evidence—all unambiguous—as a matter of law. See Nettye Engler Energy, 639 S.W.3d at 689; Stribling, 458 S.W.3d at 20. The 1929 deed put forward by the Knutzen Parties is unambiguous in describing the 40-foot-by-70-foot tract and the conveyance of a 10-foot strip out of that tract to the county. Therefore, although all of the Foundation’s post-1929 evidence continues to refer to the same 40-foot-by-70-foot tract, as a matter of law, none of the post-1929 conveyances in the Foundation’s chain for Tracts 1 and 2 could convey all the land that the Foundation believes makes up the two tracts because the 10-foot strip was no longer for the Foundation’s predecessors-in-interest to give. See United States Fid. & Guar., 242 S.W.2d at 226; see also Collora, 574 S.W.2d at 70; Travis Cent, Appraisal List., 140 S.W.3d at 843. The summary-judgment record’s chain-of-title evidence, as a matter of law, conclusively negates the Foundation’s ability to prove record title to the disputed portions of Tracts, 1 and 2. The trial court therefore did not err by granting the Knutzen Parties sum- mary judgment on the Foundation’s common-source and boundary-lines theories concerning those disputed lands or on the Foundation’s adverse-possession theories for those lands that depend on proving record title.
The Foundation's appellate briefing makes a couple of references to the 1929 deed's causing the comer of Washington and Mill to move, at one point arguing that the Knutzen Parties’ surveyor "failed to take into account the fact that when Emm[e]rich sold 10 feet to Fayette County, the corner of Washington and Mill Street was moved over ten feet," and at another arguing that the Knutzen Parties admitted "that the conveyance of the 10' strip, ‘had the effect of moving the corner of Mill Street and … Washington Street[ ] 10 feet to the east." If the Foundation is making these references to argue that Washington Street’s widening caused Tract 1 to move southeastward (rightward on the graphic) with it and retain its original 40-foot-by-70-foot dimensions, then the Foundation failed to raise a fact issue to support any such argument. The briefing cites no part of the record to support such an argument from these references, and, in any event, the location of Tract 1's originally 40-foot-by-70-foot dimensions were fixed by the time of the 1920 deed. The language of the 1929 and 1931 deeds does not support viewing Tract 1 as having moved southeastward to make up for the loss of the 10-foot strip from its northwest edge.
For Tract 3, we also conclude that the Foundation failed to raise a fact issue on proof of record title. The Foundation simply adduced no evidence from deed records or Otherwise to prove that it held record title to Tract 3. The trial court thus did not err by granting the Knutzen Parties summary judgment on the Foundation’s boundary-lines theory concerning Tract 3 and on adverse-possession theories for the tract that depend on proving record title.
[29] But we reach a different conclusion about the adverse-possession theories for Tract 3 that do not depend on, proving record title. Although the Knutzen Parties had shifted the summary-judgment burden to the Foundation on some of adverse possession’s elements via Douglas Knutzen’s affidavit, the Foundation raised a fact issue on the same elements via a declaration by the Foundation’s president. Its president declared that Tract 3 "has been owned, occupied, and maintained peaceably, exclusively, and adversely by [the Foundation] and its predecessors in interest from June 8, 1965, to the present and for over 55 years" and that "[t]his maintenance included but is not limited to cleaning, trimming, grass cutting, and general lawn maintenance as would be done by any landowner." So while Douglas Knutzen swore in effect that neither the Foundation nor its predecessors-in-interest had ever possessed Tract 3 for any relevant period, the Foundation’s president’s declaration raised a fact issue on the topic. The trial court thus erred by granting summary judgment on the Foundation’s Tract 3 adverse-possession theories that do not depend on proving record title. We sustain the relevant portions of the Foundation’s third, fifth, and sixth issues.
Declarations may be used in lieu of affidavits in summary-judgment practice. Tex. Civ. Prac. & Rem. Code § 132.001(a).
It raised a fact issue irrespective of whether either (a) adverse possession matured only during the Foundation's possession of Tract 3 by "tacking" its predecessors’ periods of possession from any point from 1965 onward or (b) the Foundation received by deed a previously matured adverse-possession title. See generally Tex. Civ. Prac. & Rem. Code § 16.023; BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 69–70 (Tex. 2011); Loeffler v. Lytle ISD, 211 S.W.3d 331, 342–43 (Tex. App.—San Antonio 2006, pet. denied).
IV. We need not reach the Foundation’s issue about a purported Rule 39 defect in parties.
Our resolutions of the preceding issues make it unnecessary for us to reach the Foundation’s fourth issue, which asserts a defect in parties under Rule of Civil Procedure 39. By that issue, the Foundation maintains that the trial court should not have proceeded to judgment without appearances in the suit by the Unserved Parties. The Foundation’s position is that because the Unserved Parties own interests. in the land subject to dispute in the suit, the trial court should not have proceeded to a judgment on the claims for determining title to the land without the Unserved Parties’ having appeared.
Because of our resolutions of the issues above, the Foundation will have live claims for trespass to try title under some of its pleaded theories, even if the other claims and theories on which we have affirmed portions of the summary judgment are no longer live. Because the Foundation thus could still obtain a judgment determining title to the land at issue, there will be a chance on remand to address the purported Rule 39 defect in parties. We express no opinion on the merits of the issue and do not reach the Foundation’s fourth issue. See Tex. R. App. P. 47.1.
V. The evidence was legally insufficient to support the fee awards.
In its seventh issue, the Foundation maintains that the trial court’s awards of attorneys’ fees and conditional appellate fees are in error. The judgment awarded the Knutzen Parties $10,000 in attorneys’ fees, $10,000 in conditional appellate fees for an unsuccessful appeal to this Court by the Foundation, and $10,000 in conditional appellate fees for an unsuccessful appeal to the Supreme Court by the Foundation.
In their answer, in their hybrid motion, and now on appeal, the Knutzen Parties have sought attorneys’ fees and conditional appellate fees solely under the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem. Code § 37.009. Assuming without deciding that the Act authorizes fee awards for defendants in suits like this, we conclude that the Knutzen Parties’ evidence to support the fee awards was legally insufficient.
[30–33] Proof of fee awards under the Act is governed by the principles laid out in Rohrmoos Venture v. UTSW DVA Healthcare, LLP. See 578 S.W.3d 469, 494–503 (Tex. 2019); Green v. Villas on Town Lake Owners Ass’n, Inc., No. 03-20-00375-CV, 2021 WL 4927414, at *5–6 (Tex. App.—Austin Oct. 22, 2021, pet. denied) (mem. op.), To meet Rohrmoos Venture’s standards, a fee claimant must at least put on evidence of the "lodestar method" for calculating fee awards, 578 S.W.3d at 501. "Under the lodestar method, the determination of what constitutes a reasonable attorney’s fee involves two steps." Id. (quoting El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)). "First, the [factfinder] must determine the reasonable hours spent by counsel in the case and a reasonable hourly rate for such work." Id. (quoting El Apple I, 370 S.W.3d at 760). "The [factfinder] then multiplies the number of such hours by the applicable rate, the product of which is the base fee or lodestar." Id. (quoting El Apple I, 370 S.W.3d at 760). "The [factfinder] may then adjust the base lodestar up or down (apply a multiplier), if relevant factors indicate an adjustment is necessary to reach a reasonable fee in the case." Id. (quoting El Apple I, 370 S.W.3d at 760). "[A] claimant seeking an award of attorney’s fees must prove the attorney’s reasonable hours worked and reasonable rate by presenting sufficient evidence to support the fee award sought." Id. at 501–02. "Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services." Id. at 502 (emphasis added).
[34] The Knutzen Parties’ only fees evidence was in the form of an affidavit by one of their attorneys. They did not provide any billing records. The affidavit provided testimony about the Knutzen Parties’ need to retain attorneys to defend the suit; legal tasks that were needed to defend the suit, specifically, "investigating the matter," "drafting pleadings, correspondence, motions (including dispositive ones), briefs," "attending any necessary hearings," and "taking other necessary actions to perform my legal services properly"; the senior attorney’s $500 hourly rate; the junior attorney’s $275 hourly rate; "paralegal/legal assistant" hourly rates of $125; and evidence to support recovery for tasks performed by paralegals and legal assistants. The affidavit testimony also included testimony that "the reasonable value of attorneys’ fees, costs, and expenses reasonably and necessarily incurred by [the Knutzen Parties] (which are also customary in this area for the same or similar services for any attorney with my experience, reputation, and ability) to date is … $20,000.00."
The affidavit is legally insufficient to support the award for trial-court-level fees. It provides no evidence of the reasonable amount of time required to perform the listed services and of whether the unknown amounts of hours spent on each service were reasonable and necessary. See id: at 501–02. The amount of hours spent on tasks in defending the suit by either the senior attorney, junior attorney, or paralegals or legal assistants is incalculable based on the affidavit testimony. The $20,000 total could have been achieved, for example, either by 40 senior-attorney hours, zero junior-attorney hours, and zero paralegal hours or by zero senior-attorney hours, about 72.727 junior-attorney hours, and zero paralegal hours. There is no way to know from the affidavit which timekeeper spent what amount of hours on which tasks, and therefore it is impossible for the factfinder to have determined whether the hours spent on any given task were reasonable. See id. at 501 (quoting El Apple I, 370 S.W.3d at 760); see also Nath v. Texas Children’s Hosp., 576 S.W.3d 707, 710 (Tex. 2019) (fees evidence that "merely reference[d] the fees without substantiating … the reasonable hours worked" was legally insufficient) (per curiam); Person v. MC-Simpsonville, SC-1-UT, LLC, No. 03-20-00560-CV, 2021 WL 3816332, at *9 (Tex. App.—Austin Aug. 27, 2021, no pet.) (mem. op.) ("As a whole, the redacted billing records admitted in evidence were not sufficient, in light of the supreme court’s admonitions in Rohrmoos concerning the need to identify specific tasks performed, to allow the trial court to evaluate the reasonableness and necessity of hours worked."). The award of trial-court-level fees must be reversed.
[35, 36] Much the same is true for the awards of conditional appellate fees. To recover such fees, a. claimant "need[s] to provide opinion testimony about the services it reasonably believes will be necessary to defend the appeal and a reasonable hourly rate for those services." Yowell v. Granite Operating Co., 620 S.W.3d 335, 355 (Tex. 2020). The affidavit provides no evidence about any such tasks for an ap- peal before this Court or for any proceedings before the Supreme Court of Texas. The awards of conditional appellate fees thus must be reversed as well, and we sustain the Foundation’s seventh issue.
The appropriate remedy under this issue is to remand the Knutzen Parties’ claims for attorneys’ fees and conditional appellate fees to the trial court for further proceedings. Some of the Foundation’s affirmative claims are again live as the suit will be remanded to the trial court, so the Knutzen Parties’ fee claims should remain live as well.
CONCLUSION
We reverse the portions of the summary judgment that ruled that the Foundation take nothing on its trespass-to-try-title claims for Tracts 1, 2, or 3 that advance adverse-possession theories that do not depend on proving record title, and we reverse all three fee awards. We express no opinion on the merits of the purported defect in parties. We affirm the rest of the summary judgment. We remand the case for trial on the claims and defenses that remain live and for any other necessary further proceedings, all of which are to be consistent with this opinion.
Dissenting Opinion by Justice Smith
DISSENTING OPINION
Edward Smith, Justice
Before we address the merits of this appeal, we must first consider issues affecting our jurisdiction. State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018) (instructing "we must consider issues affecting our jurisdiction sua sponte"); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). I conclude that the trial court’s summary-judgment order was not a final, appealable order because it expressly disposed of only the Knutzen Parties; however, ten days before the entry of the order, the Foundation filed an amended petition that asserted claims against additional defendants and requested service of process on those additional defendants. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962).
The Texas Supreme Court has addressed the finality of a judgment that disposes of fewer than all of the defendants where not all of the defendants had been served. See Fair Oaks Hous. Partners, LP v. Hernandez, 616 S.W.3d 602, 605 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citing Penn, 363 S.W.2d at 232). In Penn, the trial court granted summary judgment expressly disposing of all parties named in the petition except one, who had never been served and did not file an answer. 363 S.W.2d at 232. The Texas Supreme Court noted that because there was nothing in the record to indicate that the petitioner ever expected to obtain service on the remaining defendant, "the case stands as if there had been a discontinuance" as to that defendant and the judgment should be "regarded as final for the purposes of appeal." Id. The Penn standard is summarized as a three-factor test that provides a judgment is final for the purposes of appeal when: (1) the judgment expressly disposes of some, but not all, defendants; (2) the only remaining defendants have not been served or answered; and (3) nothing in the record indicates the plaintiff ever expected to obtain service on the unserved defendants.1a Hernandez, 616 S.W.3d at 605 (citing Penn, 363 S.W.2d at 232).
Applying the Penn factors to the record of this case, it is undisputed that the trial court's summary-judgment order expressly disposes of the Knutzen Parties but does not dispose of the additional defendants named in the live petition (collectively, the Knutzen Heirs). See Penn, 363 S.W.2d at 232. Because the order specifically defines "Defendants" to include only the Knutzen Parties, the recitation that the Foundation "have and recover nothing from Defendants" explicitly does not dispose of the Knutzen Heirs. The trial court also did not include the Knutzen Heirs as defendants in the case caption of the order; in contrast, the Foundation included the Knutzen Heirs as defendants in the case caption of its pleadings. The record also affirmatively supports the second Penn factor, that the Knutzen Heirs, the remaining defendants, had not been served or answered. See id.
Addressing the third Penn factor, the record demonstrates that the Foundation intended to serve the Knutzen Heirs and continue the lawsuit with the Knutzen Heirs joined as defendants. See id. The Foundation filed its first amended petition nine days before the summary-judgment motions were heard by submission and ten days before the trial court entered its summary-judgment order.2a See In re Sheppard, 193 S.W.3d 181, 188 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (explaining that failure to effect service of process against unserved defendant does not, by itself, demonstrate lack of intent to serve defendant). In the first amended petition, the Foundation requested issuance of citation and service of process on each Knutzen Heir and the Foundation provided the addresses where individual Knutzen Heirs could be served. The Foundation alleged that the Knutzen Heirs own undivided interests in Lot 4, Block 13, and were thus necessary and indispensable parties in the lawsuit. See V.I.P. Royal Palace, LLC v. Hobby Event Ctr. LLC, No. 01-18-00621-CV, 2020 WL 3579563, at *2 (Tex. App.—Houston [1st Dist.] July 2, 2020, no pet.) (mem. op.) (explaining that petitioner intended to obtain service upon additional defendant because petitioner asserted claims against additional defendant in amended petition and provided address where additional defendant could be served). But cf. M.O. Dental Lab, 139 S.W.3d at 674 (explaining that summary-judgment order was final because petitioner did not provide address of unserved defendant or request citation and did not complain to trial or appellate courts). The Foundation complained in its motion for new trial that the summary-judgment order was "not dispositive" to the Knutzen Heirs, who were indispensable parties, and the Foundation continues to argue that the Knutzen Heirs are necessary parties on appeal. Because the record demonstrates that the Foundation did not wish to discontinue its suit against the Knutzen Heirs but rather wished to continue it, I do not conclude that the trial court’s summary-judgment order constituted a final, appealable judgment. See Penn, 363 S.W.2d at 232; MO. Dental Lab, 139 S.W.3d at 674.
This Court lacks jurisdiction to hear an appeal of an interlocutory order unless expressly authorized by statute. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011). Because the trial court’s summary-judgment order is not an order that is made appealable by statute, see Tex. Civ. Prac. & Rem. Code § 51.014 (Appeal from Interlocutory Orddr), I Would dismiss this appeal for want of jurisdiction, see Tex. R. App. P. 42.3(a), 43.2(f).