law-UDJA | Declaratory Judgments Act | Attorneys fess under UDJA | declaratory relief | standing for UDJA claim
UDJA-jurisdiction | Uniform Declaratory Judgments Act Texas UDJA aka DJA | summary judgment for declaratory
relief |
Declaratory judgments are reviewed under the same standards applicable to other judgments; thus, the denial or
grant of a declaratory judgment in a summary judgment is reviewed under summary judgment standards. See
TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (Vernon 2008); Lidawi v. Progressive County Mutual Ins. Co., 112
S.W.3d 725, 730 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Although a denial of summary judgment is not
normally reviewable, we may review such a denial when both parties move for summary judgment and the trial
court grants one and denies the other. See Tex. Mun. Power Agency, 253 S.W.3d at 192. In our review of such
cross-motions, we review the summary judgment evidence presented by each party, determine all questions
presented, and render judgment as the trial court should have rendered. Id. (citing Comm'rs Court v. Agan, 940
S.W.2d 77, 81 (Tex. 1997)).
A trial court may not render a declaratory judgment unless there is a justiciable controversy between the parties
that will actually be resolved by the declaration sought. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.008
(Vernon 2008); Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). A "justiciable controversy"
requires a "real and substantial controversy involving genuine conflict of tangible interests and not merely a
theoretical dispute." Id. (internal quotations and citations omitted).
TEXAS UNIFORM DECLARATORY JUDGMENTS ACT (UDJA) CASELAW
FROM HOUSTON
The purpose of the Declaratory Judgments Act is “to settle and afford relief from uncertainty and
insecurity with respect to rights, status, and other legal relations.” Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b)
(Vernon 2008); see Bonham State Bank, 907 S.W.2d at 467; Indian Beach Property Owners’ Ass’n v. Linden,
222 S.W.3d 682, 699 (Tex. App.—Houston [1st Dist] 2007, no pet.). The statute is “remedial” and “to be liberally
construed.” Id. A declaratory judgment is appropriate only if a justiciable controversy exists
as to the rights and status of the parties, and a declaration will resolve the controversy.
Bonham State Bank, 907 S.W.3d at 467; Fort Bend County v. Martin-Simon, 177 S.W.3d 479, 482–83 (Tex. App.
—Houston [1st Dist.] 2005, no pet.). A trial court has discretion to enter a declaratory judgment so long as it will
serve a useful purpose or will terminate the controversy between the parties. Bonham State Bank, 907 S.W.3d at
467 (citing James v. Hitchcock Independent School Dist., 742 S.W.2d 701, 704 (Tex. App.—Houston [1st Dist.]
1987, writ denied).
We review declaratory judgments under the same standards as other judgments and decrees. Tex. Civ. Prac. &
Rem. Code Ann. § 37.010 (Vernon 2008); City of Galveston v. Giles, 902 S.W.2d 167, 170 (Tex. App.—Houston
[1st Dist.] 1995, no writ). We look to the procedure used to resolve the issue at trial to determine the standard of
review on appeal. Giles, 902 S.W.2d at 170. Here, because the trial court resolved the case on competing
motions for summary judgment, we review the propriety of the declaratory judgment under summary judgment
standards. Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex. App.—Houston [14th Dist.]
2003, no pet.).
Our review of a summary judgment is de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003). Under the traditional standard for summary judgment, the movant has the burden to show that no
genuine issue of material fact exists and that judgment should be granted as a matter of law. Tex. R. Civ. P. 166a
(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We view all
evidence in a light favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s
favor. Provident Life, 128 S.W.3d at 215. When both sides move for summary judgment and the trial court
grants one motion and denies the other, we consider both motions, their evidence, and their issues, and we may
render the judgment that the trial court should have rendered. See CU Lloyd’s of Tex. v. Feldman, 977 S.W.2d
568, 569 (Tex. 1998).
In this case, a real and justiciable controversy existed as to the parties’ rights and liabilities under the division
order. See Martin-Simon, 177 S.W.3d at 483–84 (holding that a justiciable controversy existed with regard to
plaintiff’s liability for taxes previously assessed because she had already paid those taxes). Beard’s numerous
threats of suit in his “demand letters” indicated that there was ample reason for Endeavor and Tepee to believe
that a real controversy existed over the proper amount of the royalty checks (though Beard never pursued those
demands once Endeavor filed suit). See Ainsworth v. Oil City Brass Works, 271 S.W.2d 754, 760–61 (Tex. App.
—Beaumont 1954, no writ) (holding that an action for declaratory judgment lies when the fact situation manifests
the presence of “ripening seeds of a controversy”).
Furthermore, a declaratory judgment can be a proper method to determine that a party performed under a
contract. See Martin-Simon, 177 S.W.3d at 483–84 (holding that judgment was proper to determine that plaintiff
paid her taxes). The determination that Endeavor and Tepee had paid the correct amount under the contract
was not simply an issue of fact, as it determined Endeavor and Tepee’s “status” under the division order. See
Indian Beach, 222 S.W.3d at 700 (holding that whether the plaintiffs’ construction of a fence was in compliance
with deed restrictions applicable to their property was not a purely factual dispute but related to their status with
regard to the fence and deed restrictions, and was a proper subject for declaratory judgment).
Beard v. Endeavor Natural Gas, LP (Tex.App.- Houston [1st Dist.] Dec. 19, 2008)(Bland)
(oil and gas law, royalties, declaratory judgment, attorney's fees)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland)
01-08-00180-CV Joseph Mitchell Beard v. Endeavor Natural Gas, L.P., and Tepee Petroleum Company
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock
Beard also contends that the declaratory judgment action was improper because Endeavor and Tepee filed
against him “solely as a ‘preemptive strike’” to gain “favorable venue and unlawful tactical advantage” over
Beard, which is an improper use of the Declaratory Judgments Act. Beard relies on Abor v. Black for his
contention that filing suit to declare non-liability is improper. Abor v. Black, 695 S.W.3d 564 (Tex. 1985). In Abor,
the Court held that a suit to determine non-liability in a negligence claim is an improper use of the Declaratory
Judgments Act. Id. at 566. This rule evolves from the notion that it is a plaintiff’s right to sue for a tort, in his
choice of venue. Stark v. Benckenstein, 156 S.W.3d 112, 117 (Tex. App.—Beaumont 2004, pet. denied). Abor
and its holding do not apply to a contract action. See Trinity Universal Ins. Co. v. Sweatt, 978 S.W.2d 267, 271
(Tex. App.—Fort Worth 1998, no pet.). In contract cases, either party may seek a judicial declaration of rights
under the contract. Stark, 156 S.W.3d at 117 (holding that where party sought a judicial determination of validity
of a release contract, rights and legal relations of the parties under that instrument, and full and final disposition
of all claims under the instruments, such questions were a judicial determination of rights under a contract and
were proper for declaratory relief). The dispute here is contractual, and Endeavor and Tepee were within their
rights to file a declaratory judgment in a court of proper venue. We hold that the trial court did not abuse its
discretion in hearing Endeavor and Tepee’s declaratory judgment action.
DEFENSIVE DECLARATORY JUDGMENT CLAIMS NOT PROPER TO THWART PLAINTIFF'S NONSUIT
In Re John D. Hanby (Tex.App.- Houston [14th Dist.] Feb. 11, 2010)(per curiam)
(declaratory judgment counterclaims that mirrored plaintiff's causes of action were not independent claims that
could survive nonsuit by plaintiff) (mandamus granted to vindicate plaintiff's right to nonsuit)
MOTION OR WRIT GRANTED: Per Curiam
Before Justices Brock Yates, Anderson and Boyce
14-09-00896-CV In Re John D. Hanby
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble
APPELLATE REVIEW OF DECLARATORY JUDGMENTS
We review declaratory judgments under the same standards as other judgments. See Tex. Civ. Prac. & Rem.
Code Ann. § 37.010 (Vernon 2008). We look to the procedure used to resolve the issue below to determine the
standard of review on appeal. City of Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—
Houston [1st Dist.] 2006, pet. denied). When a trial court resolves a declaratory judgment action on competing
motions for summary judgment, “we review the propriety of the declaratory judgment under the same standards
that we apply in reviewing a summary judgment.” Id.
Potter v. Clear Channel Outdoor, Inc. (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Taft)
(billboard lease, billboard lease, construction of lease, contract interpretation, quantum meruit, declaratory
judgment, UDJA, attorney's fees)
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN PART, AND
REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Taft
Before Chief Justice Radack, Justices Taft and Sharp
01-07-00578-CV Larry E. Potter v. Clear Channel Outdoor, Inc.
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach
Cassidy v. TeamHealth, Inc. (Tex.App.- Houston [1st Dist.] Jul. 23, 2009)(Jennings)(no standing to pursue
declaratory judgment claim, plea to the jurisdiction, opportunity to amend pleadings not exercised)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Keyes and Higley
01-08-00324-CV Crystal Cassidy v. The American Academy of Emergency Medicine, The Texas Academy of
Emergency Medicine and Richard J. Ybarra v. TeamHealth, Inc., TeamHealth, P.A., Memorial Hermann
Healthcare System, ACS Primary Care Physcians Southwest, P.A., and Teamhealth West
Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull
Twyman v. Twyman (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(trustee removal, temporary injunction appeal fails, UDJA claim)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00904-CV Nancy D. Twyman v. William Earl Twyman
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin
Hilburn v. Providian Holdings, Inc. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Taft)
(interpretation of easement agreement, untimely designation of expert witness) (UDJA, interpretation of easement
agreement, untimely designation of expert witness, attorney's fees)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Taft
Before Chief Justice Radack, Justices Taft and Alcala
01-06-00961-CV Barbara Hilburn v. Providian Holdings, Inc.
Appeal from 189th District Court of Harris County
Trial Court Judge: Hon. William R. Burke. Jr.
City of Houston v. Hildebrandt (Tex.App.- Houston [1st Dist.] Feb. 28, 2008)(Hanks)
(firefighter law suits, UDJA, declaratory judgment, statutory penalty)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-06-00936-CV City of Houston v. Alan Hildebrandt
Appeal from 165th District Court of Harris County (Judge Elizabeth Ray)
McLean Bowers v. Speer Taylor (Tex.App. - Houston [1st Dist.] May 3, 2007)(Alcala)(UDJA, real estate law)
Houston Municipal Employees Pension System v. Ferrell, No. 05-0587 (Tex. Nov. 30, 2007)(Justice Green)
(public employment, UDJA, jurisdiction, nonsuit); Decision below: Harris County; 1st district (01-03-00925-CV,
177 S.W.3d 502, 05/20/05) Justice Brister delivered a concurring opinion
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