law-declaratory judgment
DECLARATORY JUDGMENT CLAIMS (UDJA)
The UDJA provides that:
A person interested under a deed, will, written contract, or other writings constituting a contract or
whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or
franchise may have determined any question of construction or validity arising under the instrument,
statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal
relations thereunder.
TEX. CIV. PRAC. & REM. CODE ANN. § 37.004 (Vernon 2008); US Bank, N.A. v. Prestige Ford Garland Ltd.
P’ship, 170 S.W.3d 272, 278 (Tex. App.—Dallas 2005, no pet.). Declaratory judgment is appropriate when a
real controversy exists between the parties, and the entire controversy may be determined by judicial
declaration. Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859, 873 (Tex. App.—Dallas 2005, no
pet.) (citing Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 486 (Tex. App.—Houston [1st Dist.]
1993, writ denied)). A trial court may refuse to render or enter a declaratory judgment if the judgment will not
terminate the uncertainty or controversy giving rise to the proceedings. Id. (citing Spurlock, 869 S.W.2d at
486).
The UDJA is “not available to settle disputes already pending before a court.” Id. (quoting BHP Petroleum
Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990)). “Ordinarily declaratory relief will not be granted where the
cause of action has fully matured and invokes a present remedy at law,” and “declaratory judgment is
improper if the relief requested is raised for the first time in an amended petition and merely addresses the
same issues as were raised in the original petition.” Prestige Ford, 170 S.W.3d at 278.
“In certain instances, however, a defensive declaratory judgment may present issues beyond those raised by
the plaintiff.” Indian Beach Prop. Owners’ Ass’n v. Linden, 222 S.W.3d 682, 701 (Tex. App.—Houston [1st
Dist.] 2007, no pet.); see also Millard, 800 S.W.2d at 842 (holding that defensive declaratory judgment
counter-claim that has greater ramifications than original suit is proper). “To qualify as a claim for affirmative
relief, a defensive pleading must allege that the defendant has a cause of action, independent of the plaintiff’
s claim, on which he could recover benefits, compensation or relief, even though the plaintiff may abandon
his cause of action or fail to establish it.” Linden, 222 S.W.3d at 701 (quoting Gen. Land Office v. OXY U.S.
A., Inc., 789 S.W.2d 569, 570 (Tex. 1990)).
Fact issues in declaratory judgment proceedings may be tried and determined in the same manner that
issues of fact are tried and determined in other civil actions. Id. at 699 (citing TEX. CIV. PRAC. & REM.
CODE ANN. § 37.007). “The power to determine an issue of fact, however, ‘does not concomitantly carry
with it the power to render such a finding of fact as a declaratory judgment.’” Id. (quoting Hill v. Heritage
Res., Inc., 964 S.W.2d 89, 140 (Tex. App.—El Paso 1997, pet. denied)). If a factual dispute is the only issue
to be resolved, a declaratory judgment is not the proper remedy. Id.
DECLARATORY JUDGMENT CASES (UDJA) (DJA)
Lowenberg v. City of Dallas, No. 06-0310 (Tex. Mar. 28, 2008)(per curiam)
(illegal fee, tax refund suit, takings claim, declaratory judgment, UDJA attorney's fees)
JIM LOWENBERG, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. CITY OF DALLAS;
from Dallas County; 11th district (11-03-00061-CV, 187 S.W.3d 777, 03-01-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
08-0119
CITY OF LUBBOCK v. LARRY ACKERS; from Lubbock County; 7th district (07-06-00421-CV, ___ SW3d ___,
11-29-07, pet. denied June 2008)(jurisdictional dismissal of declaratory judgment claim reversed)
Appellant, Larry Ackers, appeals the trial court's judgment granting appellee's, the City of Lubbock, Plea to
the Jurisdiction and dismissing his claims with prejudice. We reverse the judgment and remand the case to
the trial court.
Ackers may bring certain declaratory judgment actions against a governmental entity without express
legislative consent or statutory waiver of immunity. Nueces County, 97 S.W.3d at 217-18. Because Ackers
pled a claim for declaratory judgment that we construe as not requesting monetary damages, the City is not
immune from the suit and the trial court's dismissal was in error.
Declaratory Judgment not available when issue can be decided in pending lawsuits
In his third issue, Elkins asserts the trial judge erred in failing to grant a declaratory judgment that Capital
One had violated the credit card agreement. There is no basis for declaratory relief when in the same action
a party seeks a different, enforceable remedy, and a judicial declaration would add nothing to what would be
implicit or express in a final judgment for the enforceable remedy. Universal Printing Co. v. Premier Vacation
Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.- Houston [1st Dist.] 2001, pet. denied).
Here the trial judge specifically found and we have concluded Elkins failed to prove by a preponderance of
the evidence each element of his breach of contract claim against Capital One. Therefore no declaratory
action would have been appropriate with respect to an alleged violation of the credit card agreement. We
overrule Elkins's third issue.
08-0230
RODNEY ELKINS v. CAPITAL ONE BANK AND CAPITAL ONE SERVICES, INC.; from Dallas County; 5th district
(05-06-01539-CV, ___ SW3d ___, 01-29-08, pet. denied Jun 2008) (credit card debt, breach of contract,
defamation, credit reputation)
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