The pitches in your arsenal are your fastball and your curveball; it’s the late innings; third time around the batting order; they’re sitting on the fastball. Once they catch up to it (and they will unless you’re Justin Verlander which, face it, you are not), goodbye game. Why not go to the bender to keep ’em uncomfortable and give you options? In Lackey v. Templeton, plaintiffs stayed with the heater. Goodbye game.
The lesson to be learned
In this title action the title issues didn’t matter. The lesson is simple: The exclusive procedure to resolve competing claims to real property in Texas is a statutory trespass-to-try-title suit under Property Code Chapter 22, not a suit for declaratory judgment. Most often the question arises when the plaintiff asserts both actions, prevails, tries to recover attorneys’ fees under the Declaratory Judgment Act, and is rebuked by the court. In Lackey, the penalty was more severe.
The only basis asserted by the plaintiffs for recovery of mineral interests in two tracts in Jasper County was under the DJA. Faced with special exceptions and motions for summary judgment by the (many) defendants, plaintiffs failed/refused/elected not (whichever it was) to amend their petition to include trespass-to-try-title. Summary judgment for the plaintiffs was overturned by the court of appeals, resulting in a take-nothing judgment in favor of defendants.
A dispute involving deeds or contracts might appear to be appropriate under DJA, but it’s not. A suit to recover real property must be brought under the TTT statute and the specific pleading and proof requirements of Texas Rules of Civil Procedure 783 through 809.
I wasn’t there and I’m sure there’s a good answer, but why didn’t the plaintiffs just amend the petition in the face of the defendants’ pleadings to add a trespass to try title cause of action?
This short post gives you time to honor the 12-string guitar.
With apologies to Jimmy Page.