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Click here for the full text of this decision FACTS:The primary issue in dispute in the proceedings underlying this appeal is ownership of 83,936.40 acres of largely undeveloped, rural property located in Kenedy County, Texas, known as “La Barreta.” Appellants, Sylvia Menchaca Balli Aguilera, et. al. (“the Ballis”), are various heirs of the brother of the original owner of La Barreta and assert a continuing ownership interest in La Barreta through a chain of title originating with a land grant by the King of Spain and including a document allegedly created in 1804. On appeal, the Ballis argue that the trial court erroneously granted summary judgment in favor of appellee, the John G. and Marie Stella Kenedy Memorial Foundation. As cross-appellant, the foundation argues that the trial court erred by ruling that it could not recover attorneys fees under the declaratory judgment act. HOLDING:Affirmed. The Ballis did not raise a fact issue precluding summary judgment in favor of the foundation, because there is no evidence in the record to controvert the foundation’s expert testimony that the 1804 Document was invalid and had no legal effect under Spanish colonial law. Even if the 1804 Document is considered as summary judgment evidence, the Ballis have failed to show that the trial court’s traditional summary judgment was improper, because they failed to produce any summary judgment evidence establishing the validity and legal effect of the 1804 Document. The expert reports produced by the Foundation were the only evidence before the trial court on this issue, and they state that the 1804 Document was invalid and had no legal effect. Consequently, the Ballis failed to raise a genuine issue of material fact on the foundation’s claims of superior title and presumed grant. The foundation also appealed from the trial court’s decision, asserting that the trial court erred in 1. determining that attorneys fees could not be recovered under the declaratory judgment act because the declaratory relief sought related to an ownership interest in land; and 2. subsequently granting the Ballis’ motion for summary judgment as to the foundation’s claim for attorneys fees. The Texas Uniform Declaratory Judgments Act provides that an interested party to a deed “may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status or other legal relations thereunder.” Texas Civil Practice & Remedies Code 37.004(a). The Act also provides for the award of attorneys fees and costs to the prevailing party. 37.009. Nevertheless, if the interested party’s suit is in reality one for recovery of land based on an equitable title, the action brought is considered a trespass-to-try-title suit and is not an action for declaratory judgment. Texas Property Code 22.001(a). As the Texas Supreme Court clarified in Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004), how a case is pleaded is irrelevant, for so long as the underlying nature of the case involves determination of title, the case is governed by the trespass-to-try-title statute and attorneys fees cannot be recovered. In a letter to the parties explaining the basis for its decisions on the various motions before it, the trial court explained that, although the foundation argued that its suit is not a trespass-to-try-title suit: “[Its claim] is so intermingled with the issue of its own title, more than a small measure in defense against [the Ballis'] trespass-to-try-title [counterclaim] that its suit sounds in trespass-to-try-title and involves title issues so substantially that I cannot separate them. Therefore I will sustain [the Ballis'] motion for summary judgment on this issue.” The court agrees with the trial court and concludes that the Ballis proved as a matter of law that the foundation could not recover attorneys fees because this suit is a title dispute between two parties with competing claims of conveyance and inheritance and, as such, is governed by the Property Code, not the declaratory judgment act. OPINION:Garza, J.; Yanez, Rodriguez and Garza, JJ.

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