Eileen K. Starbranch v. Elizabeth Howard Crowell
Opinion
ACCEPTED 01-15-00429-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 12:00:31 PM CHRISTOPHER PRINE CLERK
No. 01-15-00429-CV
FILED IN 1st COURT OF APPEALS In The First District Court of Appeals HOUSTON, TEXAS Houston, Texas 9/11/2015 12:00:31 PM CHRISTOPHER A. PRINE Clerk
Eileen K. Starbranch, Appellant, v.
Elizabeth Howard Crowell, Appellee.
On Appeal from the 55th Judicial District Court Harris County, Texas Cause No. 2013-14192
BRIEF OF APPELLANT
Nelson S. Ebaugh NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Ste. 1000 Houston, Texas 77019 Tel. (713) 752-0700 Fax (713) 739-0500 nebaugh@ebaughlaw.com Texas Bar Card No. 24007139
ATTORNEY FOR APPELLANT
Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL
Appellant: Eileen K. Starbranch
Trial and Appellate Counsel Nelson S. Ebaugh for Appellant: NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Ste. 1000 Houston, Texas 77019
Appellee: Elizabeth Howard Crowell
Trial and Appellate Counsel John B. Shely for Appellee: Courtney B. Glaser ANDREWS KURTH, LLP 600 Travis, Suite 4200 Houston, TX 77002
i TABLE OF CONTENTS Page
Identity of Parties and Counsel ............................................................................. i
Index of Authorities ..............................................................................................v
Statement of the Case.......................................................................................... xi
Issue Presented ................................................................................................... xii
Statement of the Facts ...........................................................................................1
A. Overview ..................................................................................................1
B. The parties and their relationships ...........................................................1
C. Neighbors ask Starbranch to execute signature pages for the Association ...............................................................................................3
D. Crowell files suit ......................................................................................4
E. Termination of the Association in 2013...................................................5
F. The trial court grants Crowell’s Motion for Summary Judgment on Attorney’s Fees against Starbranch ....................................................7
G. The trial court grants Starbranch’s motion to dismiss Crowell’s action for declaratory judgment as moot .............................................. 12
H. Order and Final Judgment leads to this appeal ..................................... 12
Summary of Argument ...................................................................................... 14
Argument............................................................................................................ 16
A. The Declaratory Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees .................................... 17
ii B. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding .............................................. 21
C. The attorneys’ fees are neither equitable nor just ................................. 25
1. The trial court awarded attorneys’ fees before it even declared the representative rights and interests of Crowell and Starbranch ........................................................................................ 26
2. It is inequitable and unjust to award attorneys’ fees against a person who was not even a proper party to the declaratory judgment action ................................................................................ 29
3. There is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case .................... 33
D. The summary judgment evidence raised genuine issues of material fact ........................................................................................... 36
1. The affidavit of Nelson S. Ebaugh raised genuine issues of material fact...................................................................................... 37
2. The affidavit of Eileen K. Starbranch raised genuine issues of material fact...................................................................................... 39
3. Genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objections to Crowell’s failure to segregate ........................................................................... 40
4. Crowell’s own evidence established the existence of genuine issues of material fact....................................................................... 42
E. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert ...................................................................... 43
F. The trial court granted more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees............ 46
Conclusion and Prayer ....................................................................................... 49 iii Certificate of Compliance .................................................................................. 51
Certificate of Service ......................................................................................... 51
Appendix ............................................................................................................ 52
iv INDEX OF AUTHORITIES Page Cases
Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015 WL 778487, *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) .......................... 24
Almaguer v. Jenkins, 882 S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ).................................................. 22
AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506 (Tex. App.—Fort Worth 2009, no pet.) ........................................................ 41
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d 380 (Tex. 2008) ........................................................................ 34
Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938 (Tex. App.—Houston [1st Dist.] 1993, no writ) .......................................... 42
Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied) ........................................................ 43
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998)............................................. 22, 23, 25, 26, 35, 37
Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995) ........................................................................ 32
Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) .................................. 40
Caldwell v. Carrollton Air Conditioning, Inc., No. 07-05-0241-CV, 2007 WL 2390425 *6 (Tex. App.—Amarillo Aug. 22, 2007, pet. denied) (mem. op.) ................... 43 v Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002)..................................................................... 43, 48
City of Carrollton v. RIHR Inc., 308 S.W.3d 444 (Tex.
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ACCEPTED 01-15-00429-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/11/2015 12:00:31 PM CHRISTOPHER PRINE CLERK
No. 01-15-00429-CV
FILED IN 1st COURT OF APPEALS In The First District Court of Appeals HOUSTON, TEXAS Houston, Texas 9/11/2015 12:00:31 PM CHRISTOPHER A. PRINE Clerk
Eileen K. Starbranch, Appellant, v.
Elizabeth Howard Crowell, Appellee.
On Appeal from the 55th Judicial District Court Harris County, Texas Cause No. 2013-14192
BRIEF OF APPELLANT
Nelson S. Ebaugh NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Ste. 1000 Houston, Texas 77019 Tel. (713) 752-0700 Fax (713) 739-0500 nebaugh@ebaughlaw.com Texas Bar Card No. 24007139
ATTORNEY FOR APPELLANT
Oral Argument Requested IDENTITY OF PARTIES AND COUNSEL
Appellant: Eileen K. Starbranch
Trial and Appellate Counsel Nelson S. Ebaugh for Appellant: NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Ste. 1000 Houston, Texas 77019
Appellee: Elizabeth Howard Crowell
Trial and Appellate Counsel John B. Shely for Appellee: Courtney B. Glaser ANDREWS KURTH, LLP 600 Travis, Suite 4200 Houston, TX 77002
i TABLE OF CONTENTS Page
Identity of Parties and Counsel ............................................................................. i
Index of Authorities ..............................................................................................v
Statement of the Case.......................................................................................... xi
Issue Presented ................................................................................................... xii
Statement of the Facts ...........................................................................................1
A. Overview ..................................................................................................1
B. The parties and their relationships ...........................................................1
C. Neighbors ask Starbranch to execute signature pages for the Association ...............................................................................................3
D. Crowell files suit ......................................................................................4
E. Termination of the Association in 2013...................................................5
F. The trial court grants Crowell’s Motion for Summary Judgment on Attorney’s Fees against Starbranch ....................................................7
G. The trial court grants Starbranch’s motion to dismiss Crowell’s action for declaratory judgment as moot .............................................. 12
H. Order and Final Judgment leads to this appeal ..................................... 12
Summary of Argument ...................................................................................... 14
Argument............................................................................................................ 16
A. The Declaratory Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees .................................... 17
ii B. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding .............................................. 21
C. The attorneys’ fees are neither equitable nor just ................................. 25
1. The trial court awarded attorneys’ fees before it even declared the representative rights and interests of Crowell and Starbranch ........................................................................................ 26
2. It is inequitable and unjust to award attorneys’ fees against a person who was not even a proper party to the declaratory judgment action ................................................................................ 29
3. There is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case .................... 33
D. The summary judgment evidence raised genuine issues of material fact ........................................................................................... 36
1. The affidavit of Nelson S. Ebaugh raised genuine issues of material fact...................................................................................... 37
2. The affidavit of Eileen K. Starbranch raised genuine issues of material fact...................................................................................... 39
3. Genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objections to Crowell’s failure to segregate ........................................................................... 40
4. Crowell’s own evidence established the existence of genuine issues of material fact....................................................................... 42
E. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert ...................................................................... 43
F. The trial court granted more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees............ 46
Conclusion and Prayer ....................................................................................... 49 iii Certificate of Compliance .................................................................................. 51
Certificate of Service ......................................................................................... 51
Appendix ............................................................................................................ 52
iv INDEX OF AUTHORITIES Page Cases
Adiuku v. Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015 WL 778487, *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) .......................... 24
Almaguer v. Jenkins, 882 S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ).................................................. 22
AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506 (Tex. App.—Fort Worth 2009, no pet.) ........................................................ 41
Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d 380 (Tex. 2008) ........................................................................ 34
Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938 (Tex. App.—Houston [1st Dist.] 1993, no writ) .......................................... 42
Beavers v. Goose Creek Consol. I.S.D., 884 S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied) ........................................................ 43
Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998)............................................. 22, 23, 25, 26, 35, 37
Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995) ........................................................................ 32
Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) .................................. 40
Caldwell v. Carrollton Air Conditioning, Inc., No. 07-05-0241-CV, 2007 WL 2390425 *6 (Tex. App.—Amarillo Aug. 22, 2007, pet. denied) (mem. op.) ................... 43 v Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002)..................................................................... 43, 48
City of Carrollton v. RIHR Inc., 308 S.W.3d 444 (Tex. App.—Dallas 2010, pet. denied) ......................................................... 27
Crown Asset Management, LLC v. Short, No. 01-08-00042-CV, 2009 WL 1025729 (Tex. App.—Houston [1st Dist.] Apr. 16, 2009, no pet.) (mem. op.) ................................................................................................. 28, 35
Engel v. Pettit, 713 S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) ........................................ 38
Extended Servs. Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.) .......................................... 46
Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559-60 (Tex. App.—Eastland 2010, pet. denied) ................................................ 21, 22
Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex.2000) ................................................................... 22
General Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591 (Tex. App.—Houston [1st Dist.] 1993, writ denied) .............................. 23, 36
Goldman v. Olmstead, 414 S.W.3d 346 (Tex. App.—Dallas 2013, pet. denied) ......................................................... 40
Guity v. C.C.I. Enter., Co., 54 S.W.3d 526 (Tex. App.—Houston [1st Dist.] 2001, no pet.) ........................................... 36
vi Hahn v. Love, 321 S.W.3d 517 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 19
Highland Capital Mgmt., L.P. v. Ryder Scott Co., 402 S.W.3d 719 (Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 47
Hourani v. Katzen, 305 S.W.3d 239 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 49
Jay Petroleum, L.L.C. v. EOG Res., Inc., 332 S.W.3d 534 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) .................................... 36
Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) ..................... 27, 32
LaGoye v. Victoria Wood Condo Ass’n, 112 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2003, no pet.)......................................... 49
MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) ........................................................................ 17
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 377 (Tex. 1993) .................................................................. 46, 47
McGlown v. Ashford Park Homeowners Asso’, Inc., No. 01-08-00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] Jun. 11, 2009, no pet.) (mem. op.) ............................................................................................... 24, 25
Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14-10-00090-CV, 2011 WL 1364070 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem. op.) ..................................................................................................... 19
vii Parker v. Hunegnaw, 364 S.W.3d 398 (Tex. App.—Houston [14th Dist.] 2012, no pet.)......................................... 18
Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708 (Tex. App.—Corpus Christi 1998, pet. denied) ........................................... 23
Positive Feed, Inc. v. Guthmann, 4 S.W.3d 879 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ........................................... 49
Reiner v. Ehrlich, 66 A.3d 1132 (Md. Ct. Spec. App. 2013) ............................................... 30, 31
Sams v. N.L. Indus., Inc., 735 S.W.2d 486 (Tex. App.—Houston [1st Dist.] 1987, no writ) .......................................... 45
Sanders v. Capitol Area Council, 930 S.W.2d 905 (Tex. App.—Austin 1996, no writ) .............................................................. 45
SW. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) .................. 18, 19, 20, 21
State v. Heal, 917 S.W.2d 6 (Tex. 1996)....................................................................... 16, 25
State & County Mut. Fire Ins. Co. ex rel. S. United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404 (Tex. App.—Fort Worth 2007, no pet.) .................................................. 26, 29
Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991)............................................................................. 37
viii Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) .................................. 28
Texan Dev. Co. v. Hodges, 237 S.W.2d 436 (Tex. Civ. App.—Amarillo 1951, no writ) ................................................... 19
Tex. Div.-Tranter v. Carrozza, 876 S.W.2d 312 (Tex. 1994) ........................................................................ 34
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) .................................................................. 40, 41
U.S. Nat’l Bank Ass’n v. Johnson, No. 01-10-00837-CV, 2011 WL 6938507 (Tex. App.—Houston [1st Dist.] De. 30, 2011, no pet.) (mem. op.) ........... 18
Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) .................................... 21
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) ........................................................................ 16
VICC Homeowners’ Ass’n v. Los Campeones, Inc., 143 S.W.3d 832 (Tex. App.—Corpus Christi 2004, no pet.) .................................................. 27
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) .......................................... 25
Wheeler v. Green, 157 S.W.3d 439, 442 (Tex.2005) ................................................................. 43
White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ) ....................................................... 22
ix Wise v. Conklin, No. 01-13-00840-CV, 2015 WL 1778612 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet. h.) (mem. op.) ...... 20
Yancy v. United Surgical Partners Intl., Inc., 236 S.W.3d 778 (Tex. 2007) ........................................................................ 16
Statues
Md. Code Ann., Cts. & Jud. Proc. § 5-422 ........................................................ 30
Tex. Bus. Orgs. Code § 22.152 .................................................................... 30, 31
Tex. Bus. Orgs. Code § 22.221 .......................................................................... 30
Tex. Bus. Orgs. Code § 22.235 .......................................................................... 30
Tex. Civ. Prac. & Rem. Code § 37.009 ................................................. 21, 25, 28
Tex. Prop. Code § 204.006 ........................................................................ 2, 3, 32
Rules
Tex. R. Civ. P. 5 ........................................................................................... 43, 48
Tex. R. Civ. P. 21(b) .......................................................................................... 45
Tex. R. Civ. P. 166a ........................................................................................... 46
Tex. R. Civ. P. 166a(c) .......................................................................... 36, 47, 49
Other Authorities
2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) ................ 22
65 AM. JUR. 2d Quieting Title § 63 (Database updated May 2015) ............ 30, 31
74 C.J.S. Quieting Title § 3 (April 2015)........................................................... 19
BLACK’S LAW DICTIONARY 308 (9th ed. 2009) ................................................. 34 x STATEMENT OF THE CASE
Nature of the Case: Elizabeth Howard Crowell sued twenty-seven defendants, including Eileen K. Starbranch, in connection with a property owners’ association that was allegedly invalidly formed. CR6-25.
Trial Court: The Honorable Jeff Shadwick, 55th District Court, Harris County, Texas, cause number 2013-14192.
Trial Court Proceedings: In 2013, Crowell settled with all of the defendants, except for Starbranch. CR866-908 (App. 4). In 2015, Crowell filed her Motion for Summary Judgment on Attorneys’ Fees against Starbranch. CR366-674. Subsequently, Starbranch filed a motion to dismiss Crowell’s action for declaratory judgment arguing the claim was moot. 1st Supp. CR7-122.
Trial Court’s Disposition: The trial court did not find Starbranch liable to Crowell or declare the respective rights and interests of Crowell and Starbranch. However, the trial court did grant Crowell’s Motion for Summary Judgment on Attorneys’ Fees, in part, awarding attorneys’ fees in the amount of $26,462.00 against Starbranch. CR917. The order became final and appealable on April 28, 2015, when the trial court entered a final judgment denying Starbranch’s motion for reconsideration and motion to dismiss. CR1059-60.
xi ISSUE PRESENTED
Did the trial court err by granting Crowell’s Motion for Summary Judgment
on Attorneys’ Fees?
A. Did the trial court err by awarding attorneys’ fees when Crowell’s claim for
declaratory relief merely duplicated the issues set forth in her action to quiet
title?
B. Did the trial court err by deciding a fact question on reasonable and
necessary attorneys’ fees that was reserved for the jury?
C. Did the trial court abuse its discretion by awarding fees that were neither
equitable nor just?
D. Did the trial court err by granting any relief to Crowell because there were
fact issues as to the amount of reasonable and necessary attorneys’ fees?
E. Did the trial court abuse its discretion by considering evidence filed after the
submission date and which Starbranch did not have the opportunity to
controvert?
F. Did the trial court err by granting more relief than was requested in
Crowell’s motion?
xii STATEMENT OF THE FACTS
A. Overview
This appeal arises from Appellee Elizabeth Howard Crowell’s suit to quite
title and declaratory judgment action seeking the same relief. CR19-21. Crowell
sued a property owners’ association, its officers and directors, and all of the
association members, claiming the association was not properly formed. CR6-25.
Among the defendants was Appellant Eileen K. Starbranch, who was not an
officer or director but instead a mere member of the association. CR6-25.
Starbranch has never been found liable for anything, and the trial court made no
declarations concerning the respective rights and interests of Crowell and
Starbranch. CR1040 (App. 2); CR1059-60 (App. 1). Crowell’s suit to quiet title,
and her duplicative declaratory judgment action, were dismissed without any
finding of liability or declaration against Starbranch. CR1040 (App. 2); CR1059-
60 (App. 1).
Yet the trial court, on summary judgment, ordered Starbranch to pay
Crowell $26,462.00 in attorneys’ fees. CR917 (App. 3). That order underlies
Starbranch’s appeal, and the facts germane to this appeal are as follows:
B. The parties and their relationships
In March 2009, Crowell acquired over 25,000 square feet of property in the
Jandor Gardens subdivision with the following address: 5326 Institute Lane,
1 Houston, Texas 77005 (hereinafter, the “Property”). CR75; 92. Crowell and all
of the defendants, including Starbranch, are homeowners in the Jandor Gardens
subdivision. CR7-9.
In 2012, several of the homeowners in Jandor Gardens formed a property
owners’ association for Jandor Gardens. CR99-124. The name of the property
owners’ association was the “Jandor Gardens Association, Inc.,” a Texas nonprofit
corporation (hereinafter, the “Association”). CR100.
To form a property owners’ association, a petition committee must be
formed first. Tex. Prop. Code § 204.006(a). Defendants Anna Stock, Fred Sharifi,
and Wyman H. Herendeen served on the petition committee for the Association.
CR154-157. Defendant Ron Whitte incorporated the Association. CR217-21.
Defendants Rick Rambo, Ron Witte, and Wyman H. Herendeen served as the
initial directors for the Association. CR101; 191; 218-219.
Starbranch did not serve as either an officer or a director for the Association.
CR217-21. In addition, Starbranch did not serve on the petition committee for the
Association. CR154-157. Instead, Starbranch was simply a member of the
Association. CR755-58; 181; 211; 260; 302.
Starbranch has never asserted any interest in Crowell’s Property. CR758. In
fact, Starbranch has disclaimed any and all interest in Crowell’s Property. CR758.
2 C. Neighbors ask Starbranch to execute signature pages for the Association.
It was not Starbranch’s idea to form the Association. CR755-58. On or
about November 8, 2012, Starbranch was in her vehicle exiting her garage onto
Dora Street, one of the streets in Jandor Gardens. CR756. While doing so, about
four or five people claiming to be homeowners in Jandor Gardens stopped her and
stated that they were forming the Association. CR756. They asked Starbranch to
execute one of more signature pages in connection with the Association. CR756.
Starbranch executed the signature pages presented to her. CR181; 211; 260; 302.
On or about November 18, 2012, Starbranch noticed that one or more
signature pages in connection with the Association were left on her front doorstep.
CR756. Starbranch picked up the document, signed where necessary, and then left
the document on her front doorstep. CR756.
Starbranch did not sign two of the instruments that Crowell sought to declare
as void in the trial court. Starbranch did not sign the “Notice of Formation of
Petition Committee”1 or the “Petition Pursuant to Property Code § 204.006 To
Create The Jandor Gardens Association, Inc.,” 2 which were the subjects of the first
and fourth declarations sought by Crowell in her later suit to quiet title and
duplicative declaratory judgment action. CR20.
1 CR154-57. 2 CR100-04.
3 Starbranch never proposed or circulated the instruments that created the
Association. CR756. In addition, Starbranch did not file any instruments in the
Harris County real property records in connection with the Association. CR756.
In short, Starbranch did nothing more than give her okay to the Association idea
proposed by others. CR755-58.
D. Crowell files suit.
In her Original Petition, Crowell asserted an action to quiet title against all
of the defendants, including Starbranch, wherein she alleged as follows:
the documents filed by Defendants [including Starbranch] in the real property records (see Harris County Clerk File Nos. 20120521806, 20120521807, 20120521808, 201205436661, and 2012054016216) are clouds or encumbrances on Ms. Crowell’s right of ownership of the Property, which affect impair Ms. Crowell's title to the Property. Ms. Crowell seeks to nullify the effect of these disputed filings and encumbrances. Ms. Crowell is entitled to a judgment that sets aside these improper filings and removes them as clouds on her title.
CR21.
Crowell sought the same the relief in her claim for declaratory relief against all of
the defendants, including Starbranch. CR19-20. On April 7, 2013, a jury trial was
requested and the jury fee was paid. CR56-58; 1093.
The following defendants did nothing more that than approve instruments
prepared by the Association: Eileen K. Starbranch, George L. Parker, Eva K.
Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric
4 Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell
later dismissed each of these defendants, except for Starbranch, from the lawsuit.
CR26-46; 59-61; 65-68; 72-74.
The Association was never Starbranch’s idea, and she did not oppose the
relief that Crowell sought in her action to quiet title and in her declaratory
judgment action (although Starbranch did contest her liability). CR724-810. In
fact, upon learning that Crowell wanted Starbranch to execute a Rescission of Real
Property Filings in connection with the Association, Starbranch voluntarily
executed the same and filed it in the real property records. CR755-767.
E. Termination of the Association in 2013.
On June 24, 2013, Crowell filed her Motion for Summary Judgment as to
Liability against several of the defendants in this lawsuit. CR75-344. In her
summary judgment motion, Crowell sought partial summary judgment on her
action for declaratory judgment and her action to quiet title. CR75-344; 368.
On August 19, 2013, this Court granted Crowell’s Motion for Summary
Judgment as to Liability against several of the defendants in the lawsuit. CR345-
346. However, because Starbranch had not made an appearance in this lawsuit
when the Motion for Summary Judgment as to Liability was filed and granted, the
order granting partial summary judgment was not entered against Starbranch.
5 CR722-23. Starbranch has never been found liable for anything. CR1059-60
(App. 1).
On October 15, 2013, Crowell entered into a settlement agreement with the
Association, Sarah Whiting, Ron Witte, Lawrence E. Plotsky, Rick Rambo,
Frances Rambo, David D. Stock, Anna L. Stock, Wyman H. Herendeen, Mary
Herendeen, Fereidoon Sharifi, Soody Sharifi, Edward G. Rizk, Billie Rizk,
Benjamin Levit, Erica Levit, Walter J. Taylor, and Anita J. Taylor (the “Settling
Defendants”) wherein the Settling Defendants agreed to “terminate the
[Association] by filing a Certificate of Termination of a Domestic Nonprofit
Corporation or Cooperative Association with the Secretary of State.” CR866-908
(App. 4). On November 20, 2013, the Settling Defendants filed the Certificate of
Termination as to Jandor Gardens Association, Inc. with the Texas Secretary of
State. 1st Supp. CR120-22 (App. 5). In the settlement agreement, Crowell and the
Settling Defendants also agreed as follows:
4. Filing of Order.
The Parties acknowledge and agree that Crowell will file a certified copy of the Order signed October 8, 2013, which is attached as Exhibit C, in the real property records. The Parties acknowledge and agree that they have waived any right to appeal the Order.
5. Applicable Deed Restrictions.
All Parties hereto acknowledge that the 1929 deed restrictions of Jandor Gardens, recorded in Volume 811, Pages 285-286 of the Deed
6 Records of Harris County, Texas, remain in effect, and all Parties hereto agree to comply with the deed restrictions.
CR868 (App. 4).
On December 5, 2013, Crowell filed the trial court’s order, dated October 8, 2013,
in the real property records for Harris County. CR790-94. Filing the trial court’s
October 8, 2013, order in the real property records removed the cloud of title on
the Property that had been created by the Association. CR368.3
F. The trial court grants Crowell’s Motion for Summary Judgment on Attorneys’ Fees against Starbranch.
On February 25, 2015, Crowell filed her Motion for Summary Judgment on
Attorney’s Fees against Starbranch seeking $71,345.80 in attorneys’ fees, incurred
by Crowell between February 28, 2013, and October 1, 2014. CR366-674. In that
motion, Crowell claimed that she had obtained an August 19, 2013, summary
judgment order on her action to quiet title and her claim for declaratory relief
against Starbranch. CR368.4 Starbranch filed a motion for reconsideration of the
summary judgment order, 5 arguing that the order could not have been against
Starbranch because “[w]hen Crowell filed and served her Motion for Summary
3 In her Motion for Summary Judgment on Attorneys’ Fees, Crowell admitted the following: in 2013, the trial court “granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby nullifying the actions of defendants’ bogus POA . . . .” CR368. 4 In her Motion for Summary Judgment on Attorneys’ Fees, Crowell made the following claim: “On August 19, 2013, [the trial court] granted Ms. Crowell’s Motion for Summary Judgment on Liability, thereby nullifying the actions of defendants’ bogus POA, and establishing the liability of the defendants in this case with respect to certain causes of action including Ms. Crowell’s action for declaratory judgment.” CR368. 5 CR675-708.
7 Judgment on Liability, this Court did not even have jurisdiction over Starbranch.”
CR677.
On March 10, 2015, the trial court entered an order ruling as follows:
ORDERED that the August 19, 2013 Order Granting Motion for Summary Judgment did not apply to Starbranch since Starbranch was not a party at that time. The Motion for Reconsideration is MOOT.
ORDERED that the Court will consider Plaintiff’s Motion for Summary Judgment as to Liability (filed 6-24-13) and its application to Starbranch by submission on March 30, 2015, along with Plaintiff’s Motion for Summary Judgment on Attorneys’ Fees.
CR722-23.
Crowell’s Motion for Summary Judgment as to Liability, filed on June 14,
2013, sought the following five declarations concerning the respective rights and
interests of Crowell and Starbranch:
1) the “Notice of Formation of Petition Committee” filed November 8, 2012 (Harris Co, Clerk File No. 20120521806) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property;
2) the “Petition Approval” filed November 8, 2012 (Harris County Clerk File No. 20120521807) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property;
3) the “Petition and First Amendment to Declaration for Jandor Gardens” filed November 8, 2012 (Harris County Clerk File No. 20120521808) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property;
8 4) the “Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens Association, Inc.” filed November 19, 2012 (Harris County Clerk File No. 201205436661) has no force and effect, is nullified, and is no longer a cloud on the title to, and right of ownership of, the Property; and
5) the “First Amendment to Declaration for Jandor Gardens” filed November 20, 2012 (Harris County Clerk File No. 20120540162) has no force and effect, is nullified, and is no longer a cloud on the title to, and right or ownership of, the Property.
CR88-89.
In other words, Crowell sought declarations to nullify the same five documents that
she sought to nullify in her action to quiet title against Starbranch. Compare CR21
with CR88-89.
On March 23, 2015, Starbranch filed her Response to Crowell’s Motion for
Summary Judgment as to Liability and Crowell’s Motion for Summary Judgment
on Attorneys’ Fees. CR724-810. Starbranch filed the Affidavit of Nelson S.
Ebaugh and the Affidavit of Eileen K. Starbranch, M.D. in response to the
attorneys’ fee affidavit submitted by Crowell. CR755-83. Mr. Ebaugh testified
that “it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s
attorneys have spent so little time prosecuting Crowell’s declaratory judgment
action against Starbranch.” CR771. In addition, Starbranch objected to Crowell’s
failure to segregate nonrecoverable fees from recoverable fees and Crowell’s
failure to segregate the fees owed by different parties. CR747-50.
9 On April 1, 2015, two days after the submission date for Crowell’s summary
judgment motions, Crowell filed a “Motion to Consider the Supplement to the
Affidavit of John B. Shely Filed in Connection with the Pending Motions on
Summary Judgment as to Attorneys’ Fees” (hereinafter, the “Motion to Consider
the Supplemental Affidavit”) that raised new and independent summary-judgment
grounds. CR834-63; 1st Supp. CR3-6. The Supplement to the Affidavit of John B.
Shely identified $19,345.506 in attorneys’ fees that Crowell had not requested in
her Motion for Summary Judgment on Attorneys’ Fees. Compare CR366-480 with
CR836-63 and 1st Supp. CR3-6. Shely claimed that Crowell incurred $19,345.50
in attorneys’ fees between November 3, 2014, and March 28, 2015. CR836-63; 1st
Supp. CR3-6.
In her Motion to Consider the Supplemental Affidavit, Crowell stated that
she decided to submit the Supplement to the Affidavit of John B. Shely to the trial
court because:
[It] describes additional fees incurred by Ms. Crowell in connection with the pending motions on summary judgment as to attorneys’ fees and for work performed on other litigation activities related solely to Defendant Dr. Eileen K. Starbranch since November 1, 2014. These fees are not included in the pending filings.
Consideration of the Supplement will allow the Court to simultaneously evaluate the most recent attorneys’ fees incurred by
6 Calculated from the addition of the following amounts: $6,110.50 (November-December 2014), $5,848.00 (January-February 2015), and $7,387.00 (March 2015).
10 Ms. Crowell along with those previously submitted and will promote judicial efficiency in resolving matters currently before the Court.
CR834-35.
Crowell did not serve a notice identifying when the Motion to Consider the
Supplemental Affidavit would be set for hearing or for submission.
On April 6, 2015, the trial court entered an interlocutory summary judgment
order that neither granted nor denied Crowell’s Motion for Summary Judgment as
to Liability against Starbranch. CR917 (App. 3). Instead of declaring the
respective rights and interests of Crowell and Starbranch, the summary judgment
order simply provided as follows:
Plaintiff Elizabeth Howard Crowell is awarded judgment for attorneys’ fees in the amount of 26,462.00 [sic], from Defendant Eileen K. Starbranch. This amount reflects the unrebutted $19,245.50 set out in John Shely’s April 1, 2015 affidavit and $7,116.50 awarded from the amounts requested in Crowell’s February 25, 2015, motion. To the extent the full amount requested by Plaintiff was not awarded, this Court is sustaining the objections raised by Starbranch.
CR917 (App. 3).
In other words, the trial court reduced the amount of attorneys’ fees initially
requested on February 25, 2015, from $71,345.80 to $7,116.50. Compare CR371
with CR917 (App. 3). In addition, the trial court reduced the amount of attorneys’
fees requested on April 1, 2015, from $19,345.50 to $19,245.50. Compare CR836-
63 and 1st Supp. CR3-6 with CR917 (App. 3).
11 G. The trial court grants Starbranch’s motion to dismiss Crowell’s action for declaratory judgment as moot.
On April 3, 2015, Starbranch filed a motion to dismiss Crowell’s claim for
declaratory relief as moot because the Association was terminated in 2013 pursuant
to a settlement agreement. 1st Supp. CR7-122. Crowell did not file a response to
this motion. On April 22, 2015, the trial court entered an interlocutory order
stating “that Plaintiff Elizabeth Howard Crowell’s action for declaratory judgment
that she filed against Starbranch is dismissed because the claim is moot.” CR1040
(App. 2) (underline in original).
On April 24, 2015, Starbranch filed a motion to vacate any order or
judgment previously issued and to dismiss the case for want of jurisdiction. 1st
Supp. CR124-26. The trial court did not rule on this motion.
H. Order and Final Judgment leads to this appeal.
On April 16, 2015, Starbranch filed an amended motion for reconsideration
objecting to the trial court’s consideration of Crowell’s late evidence filed after the
submission date for Crowell’s summary judgment motions. CR981-1011. In her
amended motion for reconsideration, Starbranch identified her objections to
Crowell’s late evidence and presented affidavits controverting Crowell’s late
evidence. CR981-1011.
12 In Crowell’s Response to Starbranch’s Post Judgment Motions, Crowell
requested the denial of Starbranch’s amended motion for reconsideration and
various other post-trial motions filed by Starbranch. CR1041-43. On April 28,
2015, the trial court granted Crowell’s request and entered an Order and Final
Judgment denying Starbranch’s amended motion for reconsideration and awarded
Crowell “attorneys’ fees in the amount of $26,462.00 from Defendant Eileen K.
Starbranch.” CR1059-60 (App. 1). In its Order and Final Judgment, the trial court
held as follows:
On April 6, 2015, the Court entered an order resolving Crowell’s claim for declaratory relief . . . (the “Summary Judgment Order”) . . . .
* * *
On April 22, 2015, the Court entered an [o]rder . . . dismissing Crowell’s claim for declaratory relief as moot because it was resolved by the Summary Judgment Order.
CR1060 (App. 1).
The trial court never made any declaration of the respective rights and interests of
Crowell and Starbranch. CR1059-60 (App. 1). Finally, the trial court made the
following statement in its Order and Final Judgment:
The Court has considered Starbranch’s objections and took them into account in carefully reviewing the subject attorneys’ fees. The Court eliminated requested fees that were not segregated or were related solely to parties other than Starbranch. Fees were awarded only for causes of action which support attorneys’ fees.
13 CR1059 (App. 1).
SUMMARY OF ARGUMENT
Crowell misused the Declaratory Judgments Act by duplicating the relief she
already sought in her action to quiet title in a claim for declaratory relief. Crowell
violated the rule that a party cannot use the Declaratory Judgments Act as a vehicle
to obtain otherwise impermissible attorneys’ fees. Consequently, the judgment
must be reversed and a take-nothing judgment rendered. For several other
independent reasons, the trial court erred or abused its discretion by awarding
attorneys’ fees against Starbranch.
The trial court improperly usurped the jury’s fact-finding role during a
summary-judgment proceeding. For instance, the trial court unilaterally reduced
the amount of attorneys’ fees initially requested in Crowell’s motion for summary
judgment on attorneys’ fees from $71,345.80 to $7,116.50. Accordingly, the
attorneys’ fee award should be reversed and the case should be remanded to the
trial court for further proceedings.
The trial court abused its discretion by awarding attorneys’ fees that were
neither equitable nor just. The trial court awarded attorneys’ fees under the
Declaratory Judgments Act before it even declared the representative rights and
interests of Crowell and Starbranch. In addition, Starbranch was not even a proper
party to Crowell’s declaratory judgment action. Finally, there is no evidence that
14 Starbranch prolonged the case or prevented a complete and final resolution to this
case. For each of these independent reasons, the attorneys’ fee award should be
reversed and a take nothing judgment rendered or, in the alternative, remanded to
the trial court for further proceedings.
The trial court improperly issued a summary judgment even though the
summary judgment evidence raised several genuine issues of material fact. The
Ebaugh Affidavit and the Starbranch Affidavit each raised genuine issues of
material fact. In addition, genuine issues of material fact necessarily existed
because the trial court sustained Starbranch’s objections to Crowell’s failure to
segregate her attorneys’ fees. Finally, Crowell’s own evidence established the
existence of genuine issues of material fact. For each of these independent
reasons, the attorneys’ fee award should be reversed and the case should be
remanded to the trial court for further proceedings.
The trial court abused its discretion by considering evidence filed after the
submission date and which Starbranch did not have the opportunity to controvert.
Two days after the submission date on her Motion for Summary Judgment on
Attorneys’ Fees, Crowell filed new evidence supporting a ground for summary
judgment that had not been sought in Crowell’s initial summary judgment motion.
Because the motion was not supported by good cause and the new evidence unduly
15 prejudiced Starbranch, the attorneys’ fee award should be reversed and the case
should be remanded to the trial court for further proceedings.
The trial court improperly awarded more relief than was requested in
Crowell’s Motion for Summary Judgment on Attorneys’ Fees. The new evidence
submitted by Crowell two days after the submission date for the summary
judgment motion entailed an independent ground for summary judgment that had
not been sought in Crowell’s summary judgment motion. Accordingly, this Court
should reverse and remand as to the attorneys’ fees which were never specifically
requested in Crowell’s summary judgment motion.
ARGUMENT
This Court reviews a grant of summary judgment under a de novo standard.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Questions of
law are reviewed “without deference to a lower court’s conclusion.” State v. Heal,
917 S.W.2d 6, 9 (Tex. 1996). “When reviewing a summary judgment, [this Court]
‘must examine the entire record in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts against the
motion.’” Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782
(Tex. 2007) (italics in original).
For several independent reasons, the trial court erred by granting Crowell’s
Motion for Summary Judgment on Attorneys’ Fees. First, the Declaratory
16 Judgments Act cannot be used as a vehicle to obtain otherwise impermissible
attorneys’ fees. Second, the trial court improperly usurped the jury’s fact-finding
role during a summary-judgment proceeding. Third, the summary judgment
evidence raised genuine issues of material fact. Fourth, the trial court granted
Crowell more relief than was requested in her Motion for Summary Judgment on
Attorneys’ Fees.
In addition, for at least a couple of independent reasons, the trial court
abused its discretion by granting Crowell’s Motion for Summary Judgment on
Attorneys’ Fees. First, the trial court abused its discretion by awarding attorneys’
fees against Starbranch under circumstances that were neither equitable nor just.
Second, the trial court abused its discretion by considering evidence filed after the
submission date and which Starbranch did not have the opportunity to controvert.
A. The Declaratory Judgments Act cannot be used as a vehicle to obtain otherwise impermissible attorneys’ fees.
Crowell has misused the Declaratory Judgments Act. Crowell duplicated the
relief she already sought in her action to quiet title via declaration. Thus, any
award of attorneys’ fees for Crowell’s declaratory judgment action violates the rule
that “a party cannot use the [Declaratory Judgments Act] as a vehicle to obtain
otherwise impermissible attorney’s fees.” MBM Fin. Corp. v. Woodlands
Operating Co., 292 S.W.3d 660, 669 (Tex. 2009).
17 As the Texas Supreme Court has explained, “[i]f repleading a claim as a
declaratory judgment could justify a fee award, attorney’s fees would be available
for all parties in all cases. That would repeal not only the American Rule
[prohibiting fee awards unless specifically provided by contract or statute] but also
the limits imposed on fee awards in other statutes.” Id. For these reasons, “[a]
declaratory judgment action may not be used solely to obtain attorney’s fees that
are not otherwise authorized by statute or to settle disputes already pending before
a court.” Sw. Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951,
956 (Tex. App.–Houston [1st Dist.] 1998, pet. denied).
The phrases “action to quiet title” and “suit to quiet title” are used
interchangeably and refer to the same claim. E.g., U.S. Nat'l Bank Ass’n v.
Johnson, No. 01-10-00837-CV, 2011 WL 6938507, at *2-3 (Tex. App.—Houston
[1st Dist.] Dec. 30, 2011, no pet.) (mem. op.). “[T]he term ‘suit to quiet title’ has
been used broadly in reference to legal disputes regarding (1) title to, and
possession of, real property—a trespass-to-try-title action, and (2) validity of other
‘clouds’ which indirectly have an adverse effect on an undisputed owner’s title to
real property.” Parker v. Hunegnaw, 364 S.W.3d 398, 402 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). In other words, an action to quiet title and an action to
18 remove a cloud on title are one and the same. 7 “[A] suit . . . to remove
encumbrances, or remove a cloud or quiet title may be maintained even though the
adversary is not actually occupying or in possession of the land.” Texan Dev. Co.
v. Hodges, 237 S.W.2d 436, 439 (Tex. Civ. App.—Amarillo 1951, no writ). In
fact, an action to quiet title may be asserted, as done so by Crowell in this case,
where any instrument 8 “would cast a cloud on the owner’s enjoyment of the
property.” Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14–10–00090–CV,
2011 WL 1364070, at *3 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet.
denied) (mem. op.). Attorneys’ fees are not recoverable in an action to quiet title.
Sw. Guar. Trust Co., 981 S.W.2d at 957.
Here, an examination of the pleadings reveals that Crowell’s declaratory-
judgment action duplicated her action to quiet title. Crowell sought a declaration
that five documents filed in connection with the property owners’ association have
“no force and effect,” are “nullified” and are “no longer a cloud on Ms. Crowell’s
title to, and right of ownership of, the Property . . . .” CR19-20. In her action to
quiet title, Crowell alleged as follows:
7 Lonnie E. Griffith, Jr., J.D., 74 C.J.S. Quieting Title § 3 (April 2015) (Texas does “not observe the distinction between an action to quiet title and to remove a cloud on title, treating the actions as one and the same”). 8 Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“A cloud on title exists when an outstanding claim or encumbrance is shown, which on its face, if valid, would affect or impair the title of the owner of the property.” . . . “Any deed, contract, judgment or other instrument not void on its face that purports to convey an interest in or make any charge upon the land of a true owner, the invalidity of which would require proof, is a cloud upon the legal title of the owner.”).
19 the [five] documents filed by Defendants in the real property records (see Harris County Clerk File Nos. 20120521806, 20120521807, 20120521808, 201205436661, and 2012054016216) are clouds or encumbrances on Ms. Crowell’s right of ownership of the Property, which affect or impair Ms. Crowell’s title to the Property. Ms. Crowell seeks to nullify the effect of these disputed filings and encumbrances. Ms. Crowell is entitled to a judgment that sets aside these improper filings and removes them as clouds on her title.
CR21.
In other words, Crowell sought the same relief in her claim for declaratory relief
that she sought in her action to quiet title. CR19-21. Because Crowell’s claim for
declaratory relief merely duplicated the issues set forth in her action to quiet title,
Crowell is not entitled to attorney’s fees based on her claim for declaratory relief.
Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612, at *8 (Tex. App.—
Houston [1st Dist.] Apr. 16, 2015, no pet.) (mem. op.) (collecting cases and
affirming the trial court’s denial of Crowell’s claim for attorneys’ fees because the
UDJA could not be used to recover attorney's fees for a suit brought to remove
cloud from title); Sw. Guar. Trust Co., 981 S.W.2d at 956 (“Attorney’s fees are not
available in a suit to quiet title or to remove cloud on title.”).
In addition, in her claim for declaratory relief, Crowell did not seek to
construe any terms of the instruments filed by the Association. CR19-21.
Consequently, Crowell’s declaratory judgment action could offer her no more
relief than her action to quiet title.
20 For these reasons, this Court should reverse the portion of the trial court's
judgment awarding attorneys’ fees to Crowell and render judgment that Crowell
take nothing on her requests for attorneys’ fees. Universal Printing Co. v. Premier
Victorian Homes, Inc., 73 S. W.3d 283, 296 (Tex. App.—Houston [1st Dist.] 2001,
pet. denied) (“There is no basis for declaratory relief when a party is seeking in the
same action 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.”); Sw. Guar. Trust, 981 S.W.2d at 956. (denying request for
attorneys’ fees where the declaratory judgment action simply sought to nullify the
clouds of title rather than to construe the terms of the challenged instruments).
Because Crowell only obtained attorneys’ fees from Starbranch, and Crowell
cannot recover attorneys’ fees under her claim for declaratory relief as a matter of
law, the judgment must be reversed and a take-nothing judgment rendered.
B. The trial court improperly usurped the jury’s fact-finding role during a summary-judgment proceeding.
“Pursuant to Section 37.009, the judge is to determine whether an award of
attorney’s fees is equitable and just; however, even when declaratory relief has
been determined by summary judgment, the issue of whether attorney’s fees are
reasonable and necessary is a question of fact for the jury to determine when the
jury is the trier of fact.” Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 559-
21 60 (Tex. App.—Eastland 2010, pet. denied) (citing City of Garland v. Dallas
Morning News, 22 S.W.3d 351, 367 (Tex.2000); Bocquet, 972 S.W.2d 19, 20–21
(Tex. 1998)).
On April 7, 2013, defendants Anita J. Taylor and Walter J. Taylor requested
a jury trial in this case and the jury fee was paid. CR56-58; 1093. “A jury
request by one party inures to the benefit of all other parties.” 9 Consequently,
Starbranch always had a right to a jury trial in this case. Starbranch never waived
her right to a jury trial in this case.
Here, Crowell submitted an affidavit stating that $71,354.80 was a
reasonable amount for the legal services rendered as of February 24, 2015.
CR386-468. Starbranch submitted an opposing affidavit in which her attorney
opined that “it is unreasonable to assess $71,354.80 against Starbranch when
Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory
judgment action against Starbranch.” CR771.
In its Order and Final Judgment, the trial court stated that it had partially
granted Crowell’s Motion for Summary Judgment on Attorneys’ Fees on April 6,
2015, and further stated in relevant part as follows: 9 Judge Adele Hedges & Daniel K. Hedges, Involuntary bench trial—No request for a jury trial—Request binding all parties, 2 TEX. PRAC. GUIDE CIVIL TRIAL § 14:25 (Thomson Reuters 2014) (“A jury request by one party inures to the benefit of all other parties. White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex. Civ. App.—Dallas 1963, no writ). The inquiry is simply whether one party made a proper jury request, not which party made it. Almaguer v. Jenkins, 882 S.W.2d 903, 904 (Tex. App.—Corpus Christi 1994, no writ) (jury request and fee payment inure to benefit all parties).”).
22 The Court eliminated requested fees that were not segregated or were related solely to parties other than Starbranch. Fees were awarded only for causes of action which support attorneys’ fees.
CR1059 (App. 1).
In other words, the trial court inappropriately engaged in fact finding when it
decided a fact dispute about the amount of attorneys’ fees, if any. General Elec.
Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex. App.—Houston
[1st Dist.] 1993, writ denied) (“Cases dealing with the fixing of attorneys' fees by
the trial judge when acting as the trier of fact have no application to a summary
judgment proceeding.”). In addition, the trial court inappropriately engaged in fact
finding when it decided to award Crowell $19,245.50 of the $19,345.50 initially
sought by Crowell in her Motion to Consider the Supplemental Affidavit.
Compare CR836-63 and 1st Supp. CR3-6 with CR917 (App. 3). In a declaratory
judgment action, the jury, not the judge, decides the amount of attorneys’ fees.
Bocquet, 972 S.W.2d at 21.
Because the Order and Final Judgment specifies the grounds on which the
court bases summary judgment, this Court should limit its review to those grounds.
Pentico v. Mad-Wayler, Inc., 964 S.W.2d 708, 712-13 (Tex. App.—Corpus Christi
1998, pet. denied) (“Where the summary judgment order specifies the grounds on
which it bases summary judgment, we limit our review to those grounds. The
summary judgment will be affirmed on appeal if the specified grounds are
23 meritorious. Even if the motion contained other independent grounds on which
summary judgment was sought, the grounds specified in the order are the only
ones on which summary judgment may be affirmed.”) (citations omitted).
Significantly, “[a] trial court is . . . not permitted to take judicial notice of
reasonable and necessary fees under the Declaratory Judgments Act.” Adiuku v.
Ikemenefuna ex rel. Ada Mbaise Ass’n of Houston, No. 14–13–00722–CV, 2015
WL 778487, at *12 (Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.)
(mem. op.) (“There is no presumption that a request for attorney’s fees under the
Declaratory Judgments Act is reasonable.”). Again, only a jury, not the judge,
could decide the amount of attorneys’ fees in this case.
In McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08-
00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(mem. op.), this Court held that the trial court’s reduction of the attorney’s fees
awarded in a summary judgment proceeding “reflect[ed] that the trial court was
duly concerned about the issue [of attorney’s fees], but the court was not
authorized to make a fact finding at this stage.” Id. at *4. “[C]ontroverting
evidence before the trial court bar[red] summary judgment on the Association's
attorney’s fees claim.” Id. For these reasons, this Court reversed the trial court’s
summary judgment on the attorney’s fee award and remanded the case for trial. Id.
24 As in McGlown, the trial court below was not authorized to engage in fact
finding at the summary judgment stage.
The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method for summarily ending a case involving only a question of law and no genuine fact issues. See Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962). The trial court must determine whether fact issues exist, not weigh the evidence or its credibility and try the case on affidavits. Gulbenkian, 252 S.W.2d at 931.
Thompson v. Community Health Inv. Corp., 892 S.W.2d 440, 441-42 (Tex. App.—Dallas 1995), rev'd on other grounds, 923 S.W.2d 569 (Tex. 1996).
For these reasons, the amount of Crowell’s reasonable attorneys’ fee is still a
factual issue to be tried. Accordingly, the attorneys’ fee award should be reversed
and the case should be remanded to the trial court for further proceedings.
C. The attorneys’ fees are neither equitable nor just.
In a declaratory judgment action, the trial “court may award costs and
reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac.
& Rem. Code § 37.009. Though a question of law, the determination of whether
attorneys’ fees are equitable and just under the Texas Declaratory Judgment Act is
reviewed for an abuse of discretion. Bocquet, 972 S.W.2d at 20-21. “[A] clear
failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). In
addition, “[i]t is an abuse of discretion for a trial court to rule . . . without
25 supporting evidence.” Bocquet, 972 S.W.2d at 21. “[I]n reviewing an attorney fee
award under the [Declaratory Judgments] Act, the court of appeals must determine
whether the trial court abused its discretion by awarding fees . . . when the award
was inequitable or unjust.” Id. at 21; State & Cnty. Mut. Fire Ins. Co. ex rel. S.
United Gen. Agency of Tex. v. Walker, 228 S.W.3d 404, 407 (Tex. App.—Fort
Worth 2007, no pet.) (“A court of appeals will determine that the trial court abused
its discretion in granting attorney’s fees in a declaratory judgment action if ‘the
award was inequitable or unjust as a matter of law.’”).
For at least three independent reasons, the trial court abused its discretion by
awarding fees that were not equitable and just. First, the trial court awarded
attorneys’ fees before it even made any declarations between Crowell and
Starbranch or determined that Starbranch had any liability at all. Second,
Starbranch was not even a proper party to Crowell’s claim for declaratory relief.
Third, despite Crowell’s bald claim to the contrary, Starbranch did not prevent a
complete and final resolution to this case.
1. The trial court awarded attorneys’ fees before it even declared the respective rights and interests of Crowell and Starbranch.
“Only after the trial court declares the parties’ rights under the Uniform
Declaratory Judgments Act, [should the trial court address] whether the evidence is
factually sufficient to support a finding that the fees are reasonable and necessary
26 and determine if the award is equitable and just.” VICC Homeowners’ Ass’n v.
Los Campeones, Inc., 143 S.W.3d 832, 839-40 (Tex. App.—Corpus Christi 2004,
no pet.) (Castillo, J., concurring). In support of this holding, Justice Castillo
reasoned as follows:
A claim for attorney fees under the Uniform Declaratory Judgments Act is not severable from the merits of the declaratory judgment action itself. See Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex. App.—Austin 2002, no pet.). “‘That a suit for the statutory attorney’s fees as a separate action could not be maintained is evident from the wording of the statute . . . . The attorney’s fees, while not costs, partake of the nature of the costs of suit and are assessed in accordance with the judgment’ reached in the proceeding.” Dalisa, Inc., 81 S.W.3d at 881 (quoting Huff v. Fidelity Union Life Ins. Co., 158 Tex. 433, 312 S.W.2d 493, 501 (1958)). I conclude that the reasonableness, necessity, equitableness, and justness of an award of attorney fees in a declaratory judgment action necessarily are related to the trial court’s declaration of the rights of the parties. I would hold that an award of attorney fees in this case must abide the declaration itself.
Id. at 839.
Here, the trial court awarded attorneys’ fees before it even declared the
respective rights and interests of Crowell and Starbranch. “The purpose of the
[Declaratory Judgments] Act is to provide a procedural device whereby litigants
can obtain a judicial determination of a controversy.” Kennesaw Life & Accident
Ins. Co. v. Goss, 694 S.W.2d 115, 117 (Tex. App.—Houston [14th Dist.] 1985,
writ ref'd n.r.e.) The Act is not a “vehicle to recover attorney’s fees.” City of
Carrollton v. RIHR Inc., 308 S.W.3d 444, 454–55 (Tex. App.—Dallas 2010, pet.
27 denied). In fact, “fees are not permissible under § 37.009 where [the declaration is
sought] solely for the purpose of obtaining attorney’s fees.” Tanglewood Homes
Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 69 (Tex. App.—Houston [14th Dist.] 2014,
no pet. h.).
Because an attorneys’ fee award is merely ancillary to a declaration under
the Act, and an attorney fee award is “not severable from the merits of the
declaratory judgment action itself,” it is inequitable and unjust as a matter of law to
award attorneys’ fees under the Act until a declaration of the rights of the parties
has been made. Cf. Crown Asset Mgmt., LLC v. Short, No. 01-08-00042-CV, 2009
WL 1025729, at *4 (Tex. App.—Houston [1st Dist .] 2009, no pet.) (mem. op.)
(“In the instant case, the trial court’s award of attorney's fees to Short for his
declaratory judgment action was inequitable and unjust because . . . Short produced
no evidence to support his claim for declaratory judgment.”). To hold otherwise
would turn the American Rule, prohibiting fee awards unless specifically provided
by contract or statute, on its head. It also would put the cart before the horse by
allowing a party to recover attorneys’ fees without the court first determining
liability.
For these reasons, the award of attorneys’ fees was neither equitable nor just
and the trial court abused its discretion in making the award. Accordingly, the
28 attorneys’ fee award should be reversed and the case should be remanded to the
trial court for further proceedings.
2. It is inequitable and unjust to award attorneys’ fees against a person who was not even a proper party to the declaratory judgment action.
Because Starbranch raised a fact issue on her defense that she has never been
a proper party in this case, it was inequitable and unjust as a matter of law for the
trial court to assess attorneys’ fees against Starbranch. If anything, the trial court
should have awarded attorneys’ fees against Crowell for unnecessarily joining
Starbranch as a party in this lawsuit, “causing her to incur fees that she otherwise
would not have had to incur.” E.g. State and Cty. Mut. Fire Ins. Co., 228 S.W.3d
at 411 (holing it was just and equitable to award attorneys’ fees to a party that was
unnecessarily joined in a declaratory judgment action).
In her response to Crowell’s Motion for Summary Judgment on Liability,
Starbranch asserted that she was not a proper party to Crowell’s declaratory
judgment action. CR740-43. Significantly, Crowell’s evidence did not identify
Starbranch as either an officer or a board member of the Association. CR 217-21.
Crowell’s evidence demonstrated that Starbranch was nothing more than a member
of the Association. CR 181; 211; 260; 302. Consequently, Crowell’s own
summary-judgment evidence raised a fact issue as to whether Starbranch was a
proper party to the declaratory judgment action. Starbranch also produced
29 summary-judgment evidence that raised a fact issue as to whether she was a proper
party to Plaintiff’s declaratory judgment action. CR755-62.
A property owners association, its officers, and board members are proper
parties to a landowner’s claim for declaratory relief. Tex. Bus. Orgs. Code §§
22.221 and 22.235. However, “[t]he members of a [nonprofit] corporation are not
personally liable for a debt, liability, or obligation of the corporation.” Tex. Bus.
Orgs. Code § 22.152. To show that she was not a proper party, Starbranch
explained in her response to Crowell’s summary judgment motions that she was
nothing more than a member of the Association and that she had never asserted an
interest in the Property. CR 740-743.
In sum, it is undisputed that the Association was a nonprofit corporation.
CR 100. It is undisputed that Starbranch was neither an officer nor a board
member for the property owners’ association. CR 217-21. Starbranch testified
that she had never asserted any interest in Crowell’s Property. CR 758. In fact,
Starbranch disclaimed any and all interest in Crowell’s Property. CR 758. Under
these facts, Section 22.152 shielded Starbranch from personal liability arising out
of her participation as a member in the Association. Cf. Reiner v. Ehrlich, 66 A.3d
1132, 1143 (Md. Ct. Spec. App. 2013) (affirming dismissal of Plaintiff’s
declaratory judgment action against individual homeowners due to homeowners’
immunity from liability under Md. Code Ann., Cts. & Jud. Proc. § 5-422); 65 AM.
30 JUR. 2d Quieting Title § 63 (Database updated May 2015) (“An action to quiet title
lies against those who, at the time it is instituted, are the present claimants to the
land under the instruments that creates the cloud.”).
In Reiner, a married couple sought declaratory relief not only against the
homeowners association but also against sixteen individual homeowners in the
community. Reiner , 66 A.3d. at 1134-35. The trial court dismissed the plaintiffs’
claim for declaratory relief against the individual homeowners because under
Maryland law the homeowners were immune from liability as long as they were
acting within the scope of their duties under the homeowners’ association. Id. at
1143. Under Texas law, Starbranch is similarly shielded from personal liability
arising out of her participation as a member in the Association at issue in this case.
Tex. Bus. Orgs. Code § 22.152.
This conclusion is supported by Crowell’s decision to dismiss defendants
that were similarly situated to Starbranch. Like Starbranch, the following
defendants did nothing more that than approve instruments prepared by the petition
committee or another representative of the Association: George L. Parker, Eva K.
Parker, Garret S. Madderra, Georgia W. Hitchcock, James Carper, and Eric
Mazziotta. CR106-114; 167-185; 197-215; 246-264; 275-283; 293-302. Crowell
dismissed each of these defendants from the lawsuit, and none paid any attorneys’
fees. CR26-46; 59-61; 65-68; 72-74. When Crowell dismissed these defendants
31 before obtaining any judgment in the lawsuit, Crowell knew that they were not
proper parties to a declaratory judgment action.
In addition, it is important to note that Starbranch did not even sign two of
the instruments that Crowell sought to declare as void. It is undisputed that
Starbranch did not sign the “Notice of Formation of Petition Committee” 10 or the
“Petition Pursuant to Property Code § 204.006 To Create The Jandor Gardens
Association, Inc.,”11 which are the subjects of the first and fourth declarations
sought in Crowell’s Motion for Summary Judgment on Liability. CR20.
Consequently, even if she was not shielded from liability under the Texas Business
Organizations Code, Starbranch could not have been a proper party to the first and
fourth declarations sought against her. After all, there can be no controversy
between Crowell and Starbranch in connection with documents that Starbranch did
not even sign. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995)
(“To constitute a justiciable controversy, there must exist a real and substantial
controversy involving genuine conflict of tangible interests and not merely a
theoretical dispute.”).
Viewed in the light most favorable to Starbranch, the evidence demonstrated
that Starbranch was not a proper party to the declaratory judgment action or suit to
quiet title. Cf. Kennesaw Life & Accident Ins. Co, 694 S.W.2d at 118 (holding that
10 CR154-57. 11 CR100-04.
32 declaratory judgment was inappropriate against a party in an action to remove a
cloud on plaintiff’s title to real property, even though the party may have played a
role in creating the cloud, because the party had disclaimed any interest in the
property and was not in possession of the property). Consequently, if a take-
nothing judgment is not rendered, this Court should reverse the trial court's
judgment awarding attorneys’ fees to Crowell and remand for trial.
3. There is no evidence that Starbranch prolonged the case or prevented a complete and final resolution to this case.
The only evidence presented to the trial court regarding whether it was
equitable or just to assess attorney’s fees against Starbranch was the conclusory
and self-serving affidavit testimony of Crowell’s lead attorney, John B. Shely. CR
386-389.
Shely testified “[f]inal resolution of the suit . . . has been drawn out by the
failure of Starbranch to file an answer for over fourteen months, despite being
served with process, and by her failure to rescind her signature to various
documents at issue in the case.” CR 389. Nowhere does Shely testify how or why
final resolution of the suit depended upon Starbranch’s appearance in this lawsuit
or rescission of her signatures. In fact, final resolution of the suit did not depend
upon whether Starbranch appeared in this suit or rescinded her signatures; it
depended on settlement with the proper parties to the case.
33 Before Starbranch even made an appearance in this suit, Crowell had already
obtained all the relief that she sought through her suit to quiet title and her
duplicative declaratory judgment action. CR345-46. In 2013, Crowell entered into
a global settlement with the Association, its officers and directors. CR866-908
(App. 4). The global settlement agreement removed all clouds of title and
terminated the Association. CR866-908 (App. 4). In other words, Crowell’s claim
for declaratory relief was completely resolved in 2013 prior to Starbranch’s
appearance. CR866-908 (App. 4); 1st Supp. CR 119-22; CR 790-94.
Moreover, as explained above, Starbranch has never been a proper party to
this lawsuit. See Argument C(2). Consequently, despite Crowell’s claim to the
contrary, Starbranch could not have prolonged the case or “prevent[ed] a complete
and final resolution to this case.” CR371. For these reasons, Shely’s testimony is
conclusory and therefore not competent summary judgment evidence. Texas
Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding
conclusory statements in support of a motion for summary judgment are “not
competent summary judgment evidence”).
An affidavit is conclusory if it states a conclusion “without any explanation”
or asks the fact-finder to “take my word for it.” Arkoma Basin Exploration Co. v.
FMF Assocs. 1990-A Ltd., 249 S.W.3d 380, 389 (Tex. 2008); see also BLACK’S
LAW DICTIONARY 308 (9th ed. 2009) (defining “conclusory” as “[e]xpressing a
34 factual inference without stating the underlying facts on which the inference is
based”).
A conclusory statement does not provide the underlying facts to support the conclusion. Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). A conclusory statement may set forth an unsupported legal conclusion or unsupported factual conclusion. S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 856 (Tex. App.–Dallas 2011, no pet.); Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 242 (Tex. App.— Waco 2003, no pet.). Conclusory affidavits are not sufficient to raise fact issues because they are not credible or susceptible to being readily controverted. Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Objections that statements in an affidavit are conclusory assert defects of substance, which may be raised on appeal for the first time. S & Mgmt., Inc., 331 S.W.3d at 856; Rockwall Commons Assocs., Ltd., 331 S.W.3d at 507.
Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 670 (Tex. App.— Houston [14th Dist.] 2012, pet. denied).
Simply put, Crowell offered no competent evidence to establish it was equitable or
just to assess attorneys’ fees against Starbranch.
Crowell offered no other grounds for supporting her claim that attorneys’
fees against Starbranch were just and equitable. Because there is no evidence that
Starbranch prolonged the case or prevented a complete and final resolution to this
case, it was inequitable and unjust as a matter of law for the district court to assess
attorneys’ fees against Starbranch. Bocquet, 972 S.W.2d at 21 (“It is an abuse of
discretion for a trial court to rule . . . without supporting evidence.”); Crown Asset
Mgmt., LLC, 2009 WL 1025729, at *4 (“In the instant case, the trial court’s award
35 of attorney’s fees to Short for his declaratory judgment action was inequitable and
unjust because . . . Short produced no evidence to support his claim for declaratory
judgment.”). Accordingly, the attorneys’ fee award should be reversed and a take
nothing judgment rendered or, in the alternative, remanded to the trial court for
further proceedings.
D. The summary judgment evidence raised genuine issues of material fact.
“The award of attorney’s fees in a summary judgment is improper unless the
evidence of the reasonableness of those fees is uncontroverted.” Guity v. C.C.I.
Enter., Co., 54 S.W.3d 526, 528 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Because Starbranch introduced the affidavit of Nelson S. Ebaugh 12 and the
affidavit of Eileen K. Starbranch 13 in response to Crowell’s motion for summary
judgment on attorneys’ fees, Starbranch created genuine issues of fact regarding
the reasonableness of the fees that precluded the granting of summary judgment
under Tex. R. Civ. P. 166a(c). Jay Petroleum, L.L.C. v. EOG Res., Inc., 332
S.W.3d 534, 542-43 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding it
was improper to award attorneys' fees in partial summary judgment because
appellant raised a fact issue by submitting a controverting affidavit from its
attorney); General Elec. Supply Co., 857 S.W.2d at 601 (“The only authority we
find permitting the award of attorneys’ fees on a summary judgment does not apply
12 CR 769-94 13 CR 755-62
36 unless the evidence of the reasonableness of those fees is uncontroverted; it does
not apply when, as here, conflicting affidavits from opposing attorneys are
presented.”) (collecting cases).
For several independent reasons, the summary judgment evidence raised
genuine issues of material fact as to whether the attorneys’ fees were reasonable
and necessary. First, the Affidavit of Nelson S. Ebaugh controverted Crowell’s
summary judgment evidence. Second, the Affidavit of Eileen K. Starbranch
controverted Crowell’s summary judgment evidence. Third, Crowell’s own
evidence established the existence of genuine issues of material fact on her claim
for attorneys’ fees.
1. The Affidavit of Nelson S. Ebaugh raised genuine issues of material fact.
“As a general rule, the party seeking to recover attorney’s fees carries the
burden of proof.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.
1991). “Although courts should consider several factors when awarding attorney’s
fees, a short hand version of these considerations is that the trial court may award
those fees that are ‘reasonable and necessary’ for the prosecution of the suit.” Id.
Whether an award of attorneys’ fees is reasonable and necessary is a fact question.
Bocquet, 972 S.W.2d at 21 (interpreting the Declaratory Judgments Act to allow a
jury, not the trial court, to determine the amount of “reasonable and necessary”
attorney’s fees).
37 In the Affidavit of John B. Shely, Shely testified that $71,354.80 was “a
reasonable fee for the work which has been performed by Andrews Kurth in this
matter as of the date of this affidavit . . . .” CR387. Starbranch controverted this
opinion with the Affidavit of Nelson S. Ebaugh. Ebaugh testified as follows:
[I]t is my opinion that the amount of $71,354.80 sought by Crowell against Starbranch is unreasonable because Crowell has only served one request for disclosure on Starbranch, has only served one request for production on Starbranch, has not taken any depositions in this case, and has not filed any discovery motions against Starbranch in this case. Under the circumstances, it is unreasonable to assess $71,354.80 against Starbranch when Crowell’s attorneys have spent so little time prosecuting Crowell’s declaratory judgment action against Starbranch.
CR 771.
Consequently, the Ebaugh Affidavit raised a genuine issue of material fact as to
whether $71,354.80 was a reasonable and necessary fee for the prosecution of
Crowell’s claim for declaratory relief against Starbranch. Engel v. Pettit, 713
S.W.2d 770, 771-73 (Tex. App.—Houston [14th Dist.] 1986, no writ) (holding that
trial court erred in granting summary judgment because of fact issue raised by
attorney’s fees affidavit of nonmovant). The remainder of Ebaugh’s affidavit
created additional genuine issues of material fact. For instance, paragraphs four
and five of the Ebaugh Affidavit also controverted Shely’s opinion that $71,354.80
was “a reasonable fee for the work which has been performed by Andrews Kurth
in this matter as of the date of this affidavit . . . .” CR770-771; 387. Because the
38 evidence was sufficient to raise genuine issues of material fact, the trial court erred
in granting summary judgment in favor of Crowell.
2. The Affidavit of Eileen K. Starbranch raised genuine issues of material fact.
In the Affidavit of John B. Shely, Shely testified as follows:
Starbranch was served with the correspondence attached as Exhibit 4- E contemporaneously when the lawsuit was served on her. She did not respond to me regarding Exhibit 4-E nor did she rescind her signature to the documents in issue.
CR389.
In her affidavit, Starbranch contradicted this statement by testifying as follows:
In his affidavit attached to Crowell’s Motion for Summary Judgment on Attorneys’ Fees as Exhibit 4, John B. Shely claims that, on July 1, 2013, I was served with a letter and its enclosure entitled ‘Rescission of Real Property Filings.’ However, I did not receive this letter inviting me to execute the ‘Rescission of Real Property Filings’ when Mr. Shely claimed it was served upon me. The first time that I saw the letter and its enclosure was as an attachment to Crowell’s Motion for Summary Judgment on Attorneys’ Fees as Exhibit 4-E.
CR758.
Consequently, the Starbranch Affidavit raised a genuine issue of material fact as to
whether Starbranch had ever been served with Exhibit 4-E 14, a letter and its
enclosure entitled ‘Rescission of Real Property Filings,’ before February 25, 2015.
Because the evidence was sufficient to raise a genuine issue of material fact, as to
14 CR 475-79.
39 whether Starbranch prolonged the litigation, the trial court erred in granting
summary judgment in favor of Crowell.
3. Genuine issues of material fact necessarily existed because the trial court sustained Starbranch’s objection to Crowell’s failure to segregate.
“A party seeking to recover attorney’s fees has the burden to show that the
fees were reasonable and necessary which, among other things, requires the party
to show the fees were incurred on a claim that allows recovery of such fees.”
Goldman v. Olmstead, 414 S.W.3d 346, 367 (Tex. App.—Dallas 2013, pet.
denied). The trial court sustained Starbranch’s objections to Crowell’s failure to
segregate nonrecoverable fees from recoverable fees and Crowell’s failure to
segregate the fees owed by different parties. CR 917. Consequently, as
acknowledged by the trial court, there was a genuine issue of material fact as to
how much of the attorneys’ fees, if any, incurred by Crowell should have been
apportioned to her claim for declaratory relief against Starbranch.
“[T]he need to segregate attorney’s fees is a question of law, while the
extent to which certain claims can or cannot be segregated is a mixed question of
law and fact.” Ca Partners v. Spears, 274 S.W.3d 51, 81 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299, 312-13 (Tex.2006)). Once the trial court has decided that attorneys’
fees need to be segregated, only under limited circumstances may the trial court
40 participate in the segregation of attorneys’ fees. Chapa, 212 S.W.3d at 341. For
example, a court may decide as a matter of law whether overcoming an affirmative
defense was necessary to prevail on a claim under which attorneys’ fees are
recoverable. Id. However, “when . . . it cannot be denied that at least some of the
attorney’s fees are attributable only to claims for which fees are not recoverable,
segregation of fees ought to be required and the jury ought to decide the rest.” Id.
Because some of the attorneys’ fees that Crowell sought were “attributable only to
claims for which fees are not recoverable,” Starbranch was entitled to have a jury,
not the trial court, segregate Crowell’s attorneys’ fees.
In sum, as acknowledged by the trial court, the summary judgment evidence
raised a genuine issue of material fact as to whether the attorneys’ fees sought were
appropriately segregated. Accordingly, the attorneys’ fees award should be
reversed and remanded to the trial court for a jury, not the judge, to segregate the
attorneys’ fees. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d 506, 523
(Tex. App.—Fort Worth 2009, no pet.) (“remand is required to calculate the
segregated award”).
41 4. Crowell’s own evidence established the existence of genuine issues of material fact.
Crowell presented contradictory evidence as to the amount of reasonable and
necessary attorneys’ fees incurred by her. First, Crowell introduced the Affidavit
of John B. Shely wherein Shely testified as follows:
In my opinion, a sum equal to $71,354.80 is a reasonable fee for the work which has been performed by Andrews Kurth in this matter as of the date of this affidavit [February 24, 2015].
CR387.
In other words, Shely claimed that $71,354.80 was a reasonable and necessary fee
for representing Crowell from February 28, 2013, through February 24, 2015.
Then, Crowell introduced the Supplement to the Affidavit of John B. Shely
wherein Shely claimed that reasonable and necessary attorneys’ fees incurred by
Crowell from November 3, 2014, through March 28, 2015, amounted to
$19,345.50. 1st Supp. CR3-6. These two affidavits were inconsistent with one
another because they each identified a different amount for the allegedly
reasonable and necessary attorneys’ fees incurred between November 3, 2014, and
February 24, 2015. Armbruster v. Memorial Southwest Hosp., 857 S.W.2d 938,
941 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“The movant’s own evidence
may establish the existence of a genuine issue of material fact . . . .”). Given the
conflicting evidence presented by Crowell on the amount of her reasonable and
42 necessary attorney’s fees between November 3, 2014, and February 24, 2015, there
are genuine issues of material fact as to the amount of her reasonable and
necessary attorneys’ fees.
E. The trial court abused its discretion by considering evidence filed after the submission date and which Starbranch did not have the opportunity to controvert.
A trial court’s decision to allow evidence to be filed after the submission
date on a motion for summary judgment and before summary judgment is rendered
is reviewed for an abuse of discretion. Beavers v. Goose Creek Consol. I.S.D., 884
S.W.2d 932, 935 (Tex. App.—Waco, 1994, writ denied). Late-filed summary
judgment evidence may be considered by the trial court only upon a showing of (1)
good cause, and (2) no undue prejudice. Caldwell v. Carrollton Air Conditioning,
Inc., No. 07-05-0241-CV, 2007 WL 2390425, at *6 (Tex. App.—Amarillo Aug.
22, 2007, pet. denied) (mem. op.) (citing Wheeler v. Green, 157 S.W.3d 439, 442
(Tex.2005)); see also Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682,
686 (Tex.2002) (“Our rules . . . provide that a trial court may permit an act to be
done after a period prescribed in other procedural rules upon a showing of ‘good
cause.’ Tex. R. Civ. P. 5.”). “Good cause exists when a failure was the result of
accident or mistake and not intentional or the result of conscious indifference.” Id.
“Undue prejudice depends on whether allowing late submission will delay trial or
significantly hamper the opposing party’s ability to prepare for it.” Id.
43 Two days after the submission date on her Motion for Summary Judgment
on Attorneys’ Fees, Crowell filed new evidence, entitled the “Supplement to the
Affidavit of John B. Shely.” 1st Supp. CR3-6. The Supplement to the Affidavit of
John B. Shely identified $19,345.50 in additional attorneys’ fees that Crowell had
not requested in her Motion for Summary Judgment on Attorneys’ Fees. Compare
CR366-480 with CR836-63 and 1st Supp. CR3-6. Significantly, Crowell failed to
demonstrate that her late filing of evidence was accidental instead of intentional or
the result of conscious indifference. CR836-63; 1st Supp. CR3-6. In addition,
Crowell failed to demonstrate that her late filing would not cause Starbranch undue
prejudice. CR836-63; 1st Supp. CR3-6.
Without giving Starbranch an appropriate opportunity to object or otherwise
respond, and less than a week after Crowell filed the new evidence, the trial court
awarded $19,245.50 (of the $19,345.50 sought in Crowell’s Motion to Consider
the Supplemental Affidavit). CR917 (App. 3).
Starbranch filed an amended motion for reconsideration objecting to the trial
court’s consideration of the new evidence. CR 981-1011. In her amended motion
for reconsideration, Starbranch identified her objections to Crowell’s new evidence
and presented affidavits controverting Crowell’s new evidence. CR 981-1011. The
trial court denied Starbranch’s motion for reconsideration. CR 1059-60 (App. 1).
44 Because summary judgment is a “harsh remedy,” the notice requirements of
the rule must be “strictly construed.” Sams v. N.L. Indus., Inc., 735 S.W.2d 486,
487 (Tex. App.—Houston [1st Dist.] 1987, no writ). Starbranch should have been
given notice of when the trial court would consider Crowell’s new evidence. Tex.
R. Civ. P. 21 (b) (“An application to the court for an order and notice of any
hearing thereon, not presented during a hearing or a trial, must be served upon all
other parties not less than three days before the time specified for the hearing,
unless otherwise provided by these rules or shortened by the court.”). However,
Crowell did not provide Starbranch with notice of either a hearing or a submission
date on Crowell’s Motion to Consider the Supplemental Affidavit. Consequently,
Starbranch had no way of knowing how long she had to respond to Crowell’s new
evidence. Under these circumstances, Starbranch was unduly prejudiced.
To give Starbranch a full opportunity to respond to Crowell’s new evidence,
Starbranch should have been given notice of a hearing or submission date on
Crowell’s Motion to Consider the Supplemental Affidavit and adequate time to
respond to Crowell’s new evidence. Without notice of when Crowell’s new
evidence would be considered by the trial court or an opportunity to object or
otherwise respond to the new evidence, Starbranch was unduly prejudiced. Cf.
Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996,
no writ) (“[A]llowing arguments made in the movant’s reply to be considered, after
45 the fact, as independent grounds for summary judgment would subvert the orderly
process contemplated by rule 166a and put the nonmovant to an unfair burden.”);
Extended Services Program, Inc. v. First Extended Serv. Corp., 601 S.W.2d 469,
470 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) (“To hold otherwise would
permit the movant to take unfair advantage of the nonmovant by permitting the
movant to serve his summary judgment evidence on the nonmovant on the seventh
day before the hearing, thus requiring the nonmovant’s response to depend upon
leave of the court. This would be untenable under our summary judgment
practice.”).
For these reasons, the trial court abused its discretion by entering summary
judgment based upon new evidence that was not supported by good cause and that
unduly prejudiced Starbranch. Accordingly, the attorneys’ fee award should be
reversed and the case should be remanded to the trial court for further proceedings.
F. The trial court granted more relief than was requested in Crowell’s Motion for Summary Judgment on Attorneys’ Fees.
A “motion for summary judgment must itself state specific grounds on
which judgment is sought.” McConnell v. Southside Independent School Dist., 858
S.W.2d 337, 339 (Tex. 1993). “The motion for summary judgment must stand or
fall on the grounds it specifically and expressly sets forth.” Id. “[A] summary
judgment cannot be sustained on a ground not specifically set forth in the motion.”
46 Id. “[A] literal reading of Rule 166a(c) and [other] authorities indicate that the
motion itself must state the grounds.” Id. (bold in original).
In other words, a movant may not file supplemental evidence to amend her
motion for summary judgment or to raise new and independent summary-judgment
grounds. Cf. McConnell, 858 S.W.2d at 339 (“When a motion for summary
judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which
were not asserted, even if the summary judgment proof supports them and the
responding party did not except to the motion.”); Highland Capital Management,
L.P. v. Ryder Scott Co., 402 S.W.3d 719, 740 n.12 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (“A movant is not entitled to use its reply to amend its motion
for summary judgment or to raise new and independent summary-judgment
grounds.”).
In her motion for summary judgment on attorneys’ fees, Crowell specifically
sought $71,354.80 because, “[a]s outlined in Mr. Shely’s affidavit, $71,354.80 is a
reasonable fee given the actions of Starbranch and other defendants after Ms.
Crowell purchased property intended for her home and other development.” CR
370-71. This amount represented the fees allegedly incurred by Crowell between
February 28, 2013, and October 1, 2014. CR 386-479. Crowell’s motion did not
expressly seek the recovery of any other attorneys’ fees incurred by Crowell. CR
366-72.
47 Without demonstrating good cause,15 Crowell filed her Motion to Consider
the Supplemental Affidavit after the submission date for the summary judgment
motion. Compare CR836-63 and 1st Supp. CR3-6 with CR722-23. As expressly
acknowledged by Crowell, she filed her Motion to Consider the Supplemental
Affidavit to raise new and independent summary judgment grounds that she had
not presented in her summary judgment motion. CR834-35. Crowell submitted
the supplement to the affidavit of John B. Shely to the trial court because:
[It] describes additional fees incurred by Ms. Crowell in connection with the pending motions on summary judgment as to attorneys’ fees and for work performed on other litigation activities related solely to Defendant Dr. Eileen K. Starbranch since November 1, 2014. These fees are not included in the pending filings.
Consideration of the Supplement will allow the Court to simultaneously evaluate the most recent attorneys’ fees incurred by Ms. Crowell along with those previously submitted and will promote judicial efficiency in resolving matters currently before the Court.
CR834-35 (bold and italics added for emphasis).
According to Crowell’s lead counsel, the attorneys’ fees incurred since November
1, 2014, totaled $19,345.50. 1st Supp. CR3-6. The trial court awarded most of
these fees (i.e., $19,245.50) even though they entailed a new and independent
ground for summary judgment that had not been sought in Crowell’s initial
15 Carpenter, 98 S.W.3d at 686 (“Our rules . . . provide that a trial court may permit an act to be done after a period prescribed in other procedural rules upon a showing of ‘good cause.’ Tex. R. Civ. P. 5.”).
48 summary judgment motion. Compare CR366-480 with CR836-63 and 1st Supp.
CR3-6.
The trial court erred by awarding $19,245.50 which was never specifically
requested in Crowell’s summary judgment motion. Tex. R. Civ. P. 166a(c);
Hourani v. Katzen, 305 S.W.3d 239, 255 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied) (“A trial court errs in granting more relief than was requested” in the
summary judgment motion); LaGoye v. Victoria Wood Condominium Ass'n, 112
S.W.3d 777, 786 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“a trial court
cannot grant more relief than was requested by a motion for summary judgment”).
“When, as here, a trial court grants more relief by summary judgment than
requested, by disposing of issues never presented to it, the interests of judicial
economy demand that [this Court] reverse and remand as to those issues, but
address the merits of the properly presented claims.” Positive Feed, Inc. v.
Guthmann, 4 S.W.3d 879, 881 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
Accordingly, this Court should reverse and remand as to $19,245.50 which was
never specifically requested in Crowell’s summary judgment motion.
CONCLUSION AND PRAYER
For the foregoing reasons, Starbranch respectfully requests that the Court
reverse the district court’s judgment and render judgment that Crowell take nothing
on her claim for attorneys’ fees under the Declaratory Judgments Act.
49 Alternatively, Starbranch requests that the Court modify the judgment to
dismiss the claim for declaratory relief and remand for a new trial on attorneys’
fees. Starbranch also asks for all other relief to which she is entitled, including
vacatur of the award of attorneys’ fees when the judgment to which it relates is
either modified or set aside.
Respectfully submitted,
NELSON S. EBAUGH, P.C.
/s/ Nelson S. Ebaugh Nelson S. Ebaugh Texas Bar No. 24007139 NELSON S. EBAUGH, P.C. 2777 Allen Parkway, Suite 1000 Houston, TX 77019 Ph (713) 752-0700 Fax (713) 739-0500 nebaugh@ebaughlaw.com
COUNSEL FOR APPELLANT
50 CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2007, this brief contains
11,742 words, excluding the portions of the brief exempt from the word count
under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Nelson S. Ebaugh Nelson S. Ebaugh
CERTIFICATE OF SERVICE
On September 11, 2015, I electronically filed this Brief for Appellant with
the Clerk of Court using the eFile.TXCourts.gov electronic filing system which
will send notification of such filing to the following:
John B. Shely Courtney B. Glaser ANDREWS KURTH, LLP 600 Travis, Suite 4200 Houston, Texas 77002 JShely@andrewskurth.com CGlaser@andrewskurth.com
/s/ Nelson S. Ebaugh Nelson S. Ebaugh
Tab Item
1. Order and Final Judgment, signed April 28, 2015 (CR1059-60)
2. Order on Defendant Starbranch’s Motion to Dismiss Action for Declaratory Judgment and Action to Quiet Title, signed April 22, 2015 (CR1040)
3. Order Granting Motion for Summary Judgment on Attorneys’ Fees, signed April 6, 2015 (CR917)
4. Settlement Agreement and Mutual Release, effective October 15, 2013 (CR866-908)
5. Certificate of Termination of a Domestic Nonprofit Corporation or Cooperative Association (Jandor Gardens Association, Inc.), filed on November 20, 2013 (1st Supp. CR120-22)
6. Tex. Bus. Orgs. Code § 22.152
7. Tex. Bus. Orgs. Code § 22.221
8. Tex. Bus. Orgs. Code § 22.235
9. Wise v. Conklin, No. 01–13–00840–CV, 2015 WL 1778612 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet.)
10. McGlown v. Ashford Park Homeowners Association, Inc., No. 01-08- 00619-CV, 2009 WL 1635310 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (mem. op.)
52 -t/'2312015 4;37:35 PM ctlrl$ Dilnlel - Dl~trlct Clcti( H~rrl5 County l!nvclopc No: 8013488 B).': TOLMAN, TAMMY E Ftled: 4123f2015 4::37:35 PM CAUSE NO. 2013·14192
e ELIZABIITH BOWARD CROWELL § IN THE DISTRICT COURT § vs. § § § /fHRt_ JANDOR GARDENS ASSOClA1'fON, IN<.:., § ' GRORGRL. PARKER, £ VA K. J•AltKER, § ( 7) SARAH WffiTING, RON WITTE, § LAWREI\CE E.. PLOTS KY, RICK RAMBO. § FRANCES RAMBO, DAVID D. STOCK, § ANNAL. STOCK, WYMAN H. HERE."'IDREN, § S5Tll JUDIClA.J. DiSTRICT MARY HERENDEEN, FEREIDOON § SHARIF[, SOODY SHARIFf, EDWARD G. § RTZK, BILLIE lUZK, BENJAMIN LEVIT, § ERICA LEVIT, GARRETS. ~1ADDERRA1 § GEORGE W. HAWJOlliS, EILE£N K. § STARURANCH, CA11JERINE A. MORGAN, § GEORGIA W. IDTCHCOCK, JAMF.S § CA:Rl''ER., WALTER J. TAYLOR, ANITAJ. § TAYLOR, AND ERIK 1\'IAZZIOTIA § BARIUS COUJ\'TY, TEXAS
On this day, 1tle Court has considered Defendant Eileen K. Starbranch's \'Starlmmch")
(i) First Axnendcd .Motion for Rcconsiderntion of Order Gnmting Plt\intift's Motion for Sttmm:rry
Judgment on Attomr:y$' Fee:,<~, (it) SupplemcmL tO Dllfendartt Stal'branch' s Moti'On to Dismiss
Actioo for Declaratory Judgment and Action to Quiet Title, and (iii) Defendunt Staibranch's
1059 On April 6, 2015, the Court entered an order resolving Crowell' s claim for declaratory
relief and awarding Crowell reasonable and necessary trial attorneys' fees in the amount of
$26,462.00 (the "Summary Judgment Order'}.
On April 14, 2015, the Court entered an Order Approving Nonsuit Without Prejudice as
to aU of Crowell's claims not addressed in the Summary Judgment Order.
On April 22, 2015, the Court entered an Order on Defendant Starbranch' s Motion to
Dismiss Action for Declaratory Judgment and Action to Quiet Tftle, finding that Starbranch' s
request for dismissal of Crowell's action to quiet title was rendered moot by Crowell's Notice of
Nonsuit Without Prejudice, and dismissing Crowell's claim for declaratory relief as moot
because it was resolved by the Summary Judgment Order.
It is therefore ORDERED that Starbranch's Post-Judgment Motions are DEN1ED.
It is further ORDERED that, for the reasons set forth in the Summary Judgment Order,
Plaintiff Elizabeth Howard Crowell is awarded attorneys' fees in the amount of $26,462.00 from
Defendant Eileen K. Starbrancb.
This is a Final Judgment.
SIGNED this 2 'irday of &-;!
2 HOU:3547662.t
1060 4/17/2015 2:18:31 PM Chris Daniel • District Clerk Harris County Envelope No: 4935907 By: FLORES, DANIEL Filed: 4117/2015 2:18:31 PM Cause No. 2013-14192
Elizabeth Howard Crowell, § In the District Court of § Plaintiff, § § v. § § Jandor Gardens Association, Inc,, George L , § Parker, Eva K. Parker, Sarah Whiting, Ron § Witte, Lawrence E. Plotsky, Rick Rambo, § Frances Rambo, David D. Stock, Anna L. § Harris County, Texas Stock, Wyman H. Herendeen, Mary § Herendeen, Fereidooo Shari£, Soody Sbarifi, § Edward G. Rizk, Billie Rizk, Benjalillil § Levit, Erica Levlt, Garret S. Madderra, § George W. Hawkins, Eileen K.. Starbranch, § JURY TRIAL DEMANDED Catherine A. Morgan, Georgia W. Hitchcock, § James Carper, Walter J. Taylor, Anita J. § Taylor, and Erik Mazziotta, § § Defendants. § 55°' Judicial District
Order on Defendant Statbranch's Motion to Dismiss Action for Declaratory Judgment and Action to Quiet Title
Pending before the Court is Defendant Starbranch·s Motion to Dismiss Action for
Declaratory Judgment and Action to Quiet Title. The Co11I'1! has considered the motion and the
response filed by Plaintiff Elizabeth Howard Crowell, if any, and finds tb11t Starbrancb's request
for dismissal of Plaintiffs action to qwct tiUe was rendered moot by Plaintilf's Notice of
Nonsuit without Prejudice filed on Aprll9, 201 ~ ; hC>wever, Starbranch' s request for dismissal of
Plaintiff's claim for declaratory relief is well taken. Accordingly, it is hereby
ORDERED that Plaintiff Elizabeth Howard Crowell's action for declaratory judgment
that she filed against Starbranch is dismissed because the claim is moot. 0 2-z Signed on --~--"--'1--------'' 2015.
1040 CAUSE NO. 2013-14192 tl ELIZABETH HOWARD CROWELL § § IN THE DISTRICT COURT OF {1/A § § vs § HARRIS COUNTY, TEXAS § § JANDOR GARDENS ASSOCIATION, § et al. § § 55TB JUDICIAL DISTRICT
ORDER GRANTING MOTION FOR S UMMARY JUDGMENT ON ATTORNEYS' FEES
Upon consideration of Plaintiffs Motion for Summary Judgment on
Attorneys' Fees, Defendant Starbranch's 1response and objections, Plaintiff's reply
and supplement, t he Court finds that the Motion should be granted to the following
extent:
Plaintiff Elizabeth Howard Crowell is awarded judgment for attomeys' fees
in the a mount of 26,462.00, from Defend:mt Eileen K. Starbrancb. This amount
reflects the unrebutted $19,245.50 set out in John Shely's April 1, 2015, affidavit,
and $7,116.50 awarded from the amounts requested in Plaintiffs February 25,
2015, motion. To the extent the full amount requested by Plaintiff was not
awarded, the Court is sustaining the objectlons raised by Starbranch.
IT IS SO ORDERED.
SIGNED on the ~ day of A~ FILED Chris Daniel Dlstrlct Clerk
APR 0 6 2015 nme~~--,~~~~--- Hanlo County, Texa.
By-----~~----- Deputy 917 SF.TfLJ:M f.ST A GR ~F.MENT AND ~flJTlJAt R F.L f.i\Sf.
Thi !' Se1tlemem Agreement and Mutual Relea~ (the "Ag.reemC7lt'") is bet\H!ffi: Elizah Rt;C rrA I.S 1\ WI IEREAS. ~ertai n di sputes. claims.. and alle~ed cauSts of itCtiOtl h:w.: existt:xl by ;Jald between PlaintiiT attd Defendants, \vflich disputes. claim&.. and alleged causes of action ar<~ etut of. or are. 1d atcd to, teal JlMflerty loc3ted \~it h in tht: J3ndnr Garden,. subdivision. including disputes relating to the deed restrictions applicable to JandOf G:irdens. real propt!f"ty llliugs pemtinlng to ptoperty within Jandor Garde~~s.. a"d Defendants' efforts to form a propert¥ owners· as.'!ociation io Jandor Gardens. U Wl!CRE.AS, a:; a result of such di sputes. c l C WHf.RE.i\ S. Defc::ndan~ Rick Rambo and F~met:s Rillnbo filed oounterclaims asain~t Plaintiff in the La\~Sui t (the "Coumerclaim''). Re1~rence is ltereby made to the pleadings on tile in tbe Ulwsuit for a otorc thorough des-cription ot'the di.l>'J)Utes. claim~. and caw;es of action made the subject of thi s Agreement No ()(her Defendantslw!sides Rick Rambo ;mel Frctne<:s Rambo filed any <:I aims or all ~ed cctusc.s of E. WllER.t:AS. tbt: Court grumed Plai.ntifrs M.o1ion for Summary Judgment and in tlmt ~rd signed Orders Or\ Augu-st 19, 20'13, and Or\ Oe1 866 Plaintiff002761 F. WHEREAS, Defendants deny ar1y liability to PlaintitT for a.ny disputes, claims, or alleged causes ofactiou made the basis of the Litig.1tion. G. WHEREAS, Plaintilf dMies any liability to Defendants for any disputes, claims, or nllcgcd c.aus
H. WHERF..AS, the Panies desire to forever settle any and all matters in comrove~ between them that arise from or relate to the Litigation ns of the Eff(:ctivc Date. NOW, TUER.EFORE, for :wei in consideration of the afotes3icl premises, m u tt~al covenants, agreements. acknowledgments, conditions and representations set forth herein :lrltl for other good and valuable consideration the receipt and sufticiency of which is hereby acknowledged, the Parties do hereby agree as follows: AGREE.MENT Defendants will pay Plaimifr the amoum of Two Hundred Thousand Dollars and NO/I 00 ($200.000.00) by cashier's check mHdt: payable to Eli~abeth l.lowurd Crowell (l h~ "Settlement Payment.,). On or before November 14, 2013, Defendants ~hall delivelf lhe Settlement Payment to Daryl Bristow. Also on or before Novembt!t 14. 2013, Plaintiff shall submit thi~ Agreement as well as final copies of all documents attached hereto to DiLI)'I Uri ~aow 1\11 Parties sl1all execute this Agreement on or before November !4. 2013 Within dgllt ($} days after tl1e receipt :uld clearing of the check rcpres~ntins tJr.: Settlement Payment and full e.xeclllion of this Agreement, and in, no evem later than ovember 22. 2013. the Parties shall direct tbeir attomeys to tl le. On or before November 22, 20 13, Defendants Rick and Frances Rambo will di smi~~ the Appeal w1th prejudice. The Dcfendll!lts will tci1Tiinate the Jandor Gardens Msociation (the .. Associatio11") by fllins a Certific~ t e of Tem1ination of a Domestic Nonpr'ofit Corpor11tion or Cooperative Association with the Sccrctmy of State in the fom1 atlt~chcd m; exhibit B. All fees and/or costs associated with tem1ir1a1ing the Ass-oeia1 i1~r1 shall be borne by the Association or the Dd'endants 867 Plaintiff002762 4. Filing orOrdel'. The P ). Applicable Deed Resc.·ktlons. All P a. Piaintiffwil l instnJct her builder to make reasonable efforts to address the privacy conoerns of Defendants Anna Stock and David Stock regard[ng thei r downstairs bathroom window. b PT.:Jintiff has l'l:p r\!.sen t ~d that landscaping has been provided for in thc budget for her intended development of tlH~ property a11d agrees to landscape the property within that bodset aJl c. Plaintiff agrees to instruct her builder not to aim any ~terior lighting directly at the hornes of Defendants David Stock and Anntr Stock or Wyman ller\ttdt:~Jl and Mary Herendeen and agrees not to aim any exterior lighting directly at the l1ome of Rick Rambo and Franees Rambo. d. Defendants David Stock and Anna Stock, Wyman Herendeen and Mary llerendeeo. and Rick Rambo and Frances Rambo agree 110 1 to e Plainti!T agrees to complete the construction of the three single-fami!,y residemial houses located at 5324 Institute Lane, 5326-A Institute Lane.. and 5326-ll ln:stitutc Lilne in a manner that is re:l$onably equivalent to the house~ reflected in, Exflflm D. The Parties acknowledge that the terms set forth $1 subsections (a) through {e) above are personal covenants and e.xpressly ttgJ';(! that none of the terms :set forth .;t subsections (a) through (e) shall be deemed covenan ts running with the l and, nor shall they bir1d any future purchlllSers or owners of any property. 7 No Admi~~ion of Liahi.litv l'his A&rrecmcnt is a compromise of disputed mutters to avoid the furtl)cr expense and inoonveni er1ce of litigat-ion, and shal l M t be oonstf\Hl.d as an admission ()f liabi li ty ()r wrongdoing by any Party hereto which liability or 'vrongdoing all Partie.-; Cl 868 Plaintiff002763 &. Rele.u e hv PlaintiiT. rn consideration of the mutual promises., considcratioo. and covenants described herein. Plaintiff ltereb}' rele?a~s. acquits, and forEwer di~haJges Defendants and their insurer(s) from and against any nnd nll disputes. claims. dt.'tllnnds., causes ot' action. debts.. liabilities, obligations. judgments, or $uils in equity, tort 11"1 consideraliOlt of tlte l"'lulual promises, considerali011, and oovenauts described herein, Defendants het'eby release, acquit. and fOfC\' C3' discllarge Plaintiff from and against any and all di 1)\rtel... elairi"'S. demands. caustz of ;lctioo. debts. liabilities. oulisatioos, judgment~, or suit!l in equity, ton or contract. of whatsoever nature .at common law, statuto!)· or olft.;!r"" ise. or any othe-r legal lh.;!ory. arisittg O\tt of or ret:ned to tho;! circumstance~ that form the basi~ of the Litigation, known or unkmJwn, now existing or that migHt arise herc!l!ftet, in<.-1uding all claims or C<'tuses of a~tion that wen~ asst:rted or could l1ave beerl asserted in the Litigation. l 0. AddiJiqmll Arkul)wJ£(1gs:uu; n!s, In consideratjon of !he murual promises. consideration. and covenants described herein, and in addition to the: n:lcasc set forth m paragraph() above. Dcfendnnts Rick l.{ambo and Frances Rambo hereby acknowledge and agree tl1at Plainti iT is released from any alleged cunlt In consid~r l'bt: Parties n:spoctivcly rc:present and wamtm tbut th(! Purties own and hold the claims relea!!ed in this Agreement. and that they l'lre fully a~Jthori%ed and .emrlowered .to fully relCiliie and 1.\Xtinguish all of the claims <1nd rights releal!ed hcn.-in Eacb of tile sil:-'llatori cs reprcsCJlls and warrants that he or she has read und fi1lly underst:~nds this A::;.reernent. is duly aothori~ed to fully <~nd comJ)lelety r~olve all disputes betw<:cn the Parties tlmt arc tbc subject of this Agr<:emcnt, to mnke this 869 Plaintiff002764 Ag_reemem, and to bind to the terms and conditions contained in this Agreement the (.'tltity or person on whose belt The validity. construction. interpretation. and adminisrration of this Agreement shall, to the extent the particular l!Ubject matter is controlled by state law, be con~nred, controlled. and govemed by the substantive laws of the State of Texas, without regard to the c¢t~Oit:ts of l~w principles thereof. If a dis,nue s}!()(rl cl;~rise rel.,tint; in any "11)' to thi A~eem~nt, the Parties asree promptly to atlempt to resclve same by phone conference \\ith Daryl Bristow. If the PaniCS" cannot re:K)lve their diOer~Tl l S. Constntdi()ll, The l'artics ~n::scnt and ~nx that tht: lanKuage used in thi~ Agnxment is the ~suit of arm~-lcngrh ba~nins bemoccn sophisticated partie$, that the Panics c.hooe the langllagc herein to· e.-.;press tl1eir mutual iJ1tcnt. and that u<.1 rurl! of stric~ construction shalJ be applied against any Pany . The Panie$ further repre11ent ancl agree that they have thoughtfully and voluntarily n¢gotiated the tc:m1s of this Agreement with equal input from eacT1 Pany, and th at this Asreemen r shall not be construed agl\ins! any Pany for the benefit of any other Party bilsed on The Pan.ies exp~ly acl:ttO\\ledse Md represem hereio that they have carefully rcvicwt!d tllis Agreement. tltat they underswnd its temlS and effect, thal they have h 870 Plaintiff002765 17. Consider ation. The Parties represent and U:g.T
IS. lntegr:aJi:On I EntiJ·e AgrccmcJtt. This Agreement constituter< the complete, final , integrated agreement between the Parties with regard to the settlement or their di spute and the matters released herein. and supersedes and canoels all prior Or contemporaneous nesotiatic;ms, drafts., offers, COllnter- offers, agreements, understandings., discussions, or representations, written or oral, regarding the subje\..'t matter hereof, including the CoMidentia1 Mediation Settlement Agreemem. T he Parties acknowledge and agree that, exoept as provided in thi s Agreement, each of rhem shall bear rhei r own costs, expenses and taxes and attorneys' fees arising our of the Litigation and the negotiation, d!afljng and execution of this Agreement. :w. Counterparts, Transmission bv Etnail or Fax. Thi s Aye.ement may be executed in counterpa..ns. l f any signatory to this agreement el oct~ to provide his/her sigr\tlture l>y em;)il or fax. M email or f;r\: transmission showing that the signatory l1as signed this Agreernem shall be the cqtJivaJent of an original $i~n"-tu re for al1 purposes 1\ll notices that any Patty to this 1\ Sfccmem may be required or may wish to give in connection, wi th this Agreement shall, be addressed to counsel: of record at the addresses set fortb below (or at other sucJ1 a Plaintitl' Elizab~th llownrd Crowell. c/o John U. Shely, Andr~ Kurth LLP, 600 Travis, Suite 4200, Houston. Texas 17002.,Jshd yra_rotdrcwskurth.com b. DefendwtllS Jandor OnrdcllS Association. lnc.. S 871 Plaintiff002766 IN WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below. EFFECTIVE DATE: October 15, 2013 [end of page] 872 Plaintiff002767 IMPORTANT: READ TlilS AGREEMENT ANU CONSULT WJ'I'H YOUR l..A'-VVF.R JJI!.:fORE SlGNlNG! THE STATE O.F TEXAS COUNTY OF HARRIS OE.FORE ME, the undetsij!;lled authority, onlhi~ day personally appeared ELT7..ABETH HOWARD C)t0\"'ELL, known to me to be tl~e person wl1ose nam" is subscribed to the fnrcgoing instrumem und acknowledged to me that she execute-d the same for the purpose& ruld eom•idt•ration thet-ein exptt:sllt:d, aod in the capaeity tl)etein stated, and as h~r act and deed. d.:!. GIVF.N \JNDF.R MY HAND AND SF..AL Of OFFlCH lbis __L_~.~ day of __jl~.tt--···---' W 13. ___.._______ -- _,. ,.......,_.,_ ...__ .. __ ........____ ______ ...,...__ _ ... ___ ........""""'"'_______ ,_______,,,..... _...,..,...,..._,_ ..._._____ . . . .............. ...._.. ................,. ~ _ . _ - · - · " · " · " " ' ~ - ~ - 873 Plaintiff002768 IMPORTANT ~ REAl} TJJIS AGRJ:o:f:MENT AN:O CONSULT Wfl'fl YOUlt u \.WYF.R RK"Ii'ORE SlGNlNG! JANDOR G.ARDE'NS ASSOCfATlON, INC f?.·ic..k @etM-ko ___ _ l itle: ~----'- 'bir-<,.h-r Signature: TtH~ STATG Of 'l CX/\S C'OUNTI' OF HARRIS _ _,,_R BEFORE _. 1'ck_ Me, 1hc f-1!.,,....,.1~ GARDE:"'S ASSOCIATlON. l!';C., knc.mn undersig~K't! t.~ . tll _ authority. on 1his day p.:f"\nnall~ ~.( r-tu:f·~r- _____ ,__ _ .lpt~arcd ol .lA 'WOR me to he: the pet!{llll \.\h and c.msidertHion 1herein expressed. and in the c~pnciry tht.>rdu s~.ated. tul•.l ~s lw; I·:! I acr .mel deed. (i!VE>J UNDER MY rl!\NO AND SEAl . or OffiCI" ~hi~ --~ ~ ---~4!1
-~~/.~~4~~ Notary Public 1)1 allU 11ol' 'fbe Stale of J exa-; . - ---------------...... ··---·"'' ,,_,__ ........-.. , - 874 Plaintiff002769 t·MI>ORTANT: IUt~l) nns AG~t<: I~Mfi~NT AND CONSU L T W ITH 'YOUR L AWYER JJ'FJ'OR F. SfGN!NG! THE STATE OF TEXAS COUNTY ()F I fAlUUS HFFORE ME, the undersig.oed authority, nn th1s day per~onally appe cxprc-:>sed. and.in the capacity therein $rated, and. m; her act and deed. Gi VEN UNDER M'\' BAND AND SEAL OI·~ OJ'FlCF !his /t;> ----'-- day of ___ f.'!_ ........................................................................... ·---- ---·--------~-------- ------·-----~-----~--- -------------------··-·-- ·· -- -- -·-- --- 875 Plai ntiff002770 IMPORTANT: READ THIS '\ GREE:\1E~T AND CONSUl~T WITH YOl n LA\VYER BEI~ORE SJGNING! Hy: THF RTA TB Of tEXAS § ~ ( ·ou;--n Y OF HARRIS § BeFORE fvfE_ the unctersignc:d authority. on this day personaII.' appcar.:=d RO~ WITTE. k.uo-.\ n tt) me to he the person wltt~M." ~r GIVEN UNOF.R MY HA"ff) ANTI SEAL OF Off iCE this ____ [4 '2,_ day of 1\ I() 'v-r; Yn ~~ ')Q I 3 _;_ I "_' - - - - - ------"' .. . U:~~J -df!-~:6 . N()iary Puhlic In u.nd Por The Stat~ of Texas !J - ·-· · -- - --~,-- · - ...... . ..... ..... .................... •• _ . . - - - - ... --·-·--·""'·~""'"..- · ··- ··· - · .............. ..... . . - . . ...... ....... ...... .. ..... . ....... ...... . . . ..... ... .. \ .''1'\\......\ . 876 Plaintiff002771 IMPORTANT: READ 1'HIS AGREEMENT ANll CON'SlJLT WITH YOUR Lt.\WY:ER BEFOJU!: SIGNING! _, .JP bJ-1£) By: ;~~VI IJ::'IJ(l~VJC tf6 BEFORE ME. the undersigned authority, on this day personally appeared LAWRENCE E. PLO'l'SKY. know.n E(l me to be the person whose name is subscribed to the foregoing instrwnent and acknowledged to me tbI. Setde1neJJt Pay ment I Oosing.
2. Di~mi~aJ of Litigation.
3. Term i.nalion of Assoc.ilHion.
6. Ad ditional Terms .
9. Rdt :ue bv Defendants.
12. AuthoriLy nnd Auorov;d~
13. Gi)venting L:lw.
14. D is put~ Resolution.
16. ,Rtn resrntatio~~:s Regarding Nc:goJin!ing th.c M.1·ecnum1.
19. Attor nevs' Fees and Expenses.
21. Notices.