Greg Gutman v. Richard Wayne Wells and Real Estate Arbitrage Partners, LLC

Opinion

Dissenting Opinion Filed August 28, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01227-CV

GREG GUTMAN, Appellant V. RICHARD WAYNE WELLS AND REAL ESTATE ARBITRAGE PARTNERS, LLC, Appellees

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-18-06158

DISSENTING OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Dissenting Opinion by Justice Partida-Kipness I withdraw my prior dissent, and respectfully dissent to the new opinion issued today. The

claims made by Greg Gutman do not fall within the parameters of the Declaratory Judgments Act.

See TEX. CIV. PRAC. & REM. CODE §§ 37.001–.011. The declaratory relief sought by Gutman will

not terminate the controversy or remove an uncertainty. See id. § 37.003(c); see also Bonham

State Bank v. Beadle, 907 S.W.2d 465, 468 (Tex. 1995) (“[a] trial court has discretion to enter a

declaratory judgment so long as it will serve a useful purpose or will terminate the controversy

between the parties.”); City of Richardson v. Gordon, 316 S.W.3d 758, 761 (Tex. App.—Dallas

2010, no pet.) (a declaratory judgment action does not give a court jurisdiction “to pass upon

hypothetical or contingent situations, or to determine questions not then essential to the decision

of an actual controversy, although such questions may in the future require adjudication.”) (internal citations omitted). As all parties concede, there was nothing at issue about the lower court’s

decision in the previous case, and the parties agree no judgment was entered against Wells in the

previous case. There is, thus, no uncertainty to resolve. Further, a fair reading of Gutman’s

petition, and the majority’s characterization of it, shows his claims are for civil harassment and, to

the extent such a cause of action exists, sound in tort. See Tort, BLACK’S LAW DICTIONARY (11th

ed. 2019) (tort is “[a] civil wrong . . . for which a remedy may be obtained, usually in the form of

damages.”). Any declaration regarding the parties’ rights to seek, or duties to provide, a release

of judgment would, therefore, not terminate the controversy.

Under no circumstances is this a proper declaratory judgment action, and I do not agree

with the majority’s expansion of the statute. The trial court properly dismissed Gutman’s action

pursuant to rule 91a. See TEX. R. CIV. P. 91a. Accordingly, I would affirm the trial court’s

dismissal.

/Robbie Partida-Kipness ROBBIE PARTIDA-KIPNESS JUSTICE

181227DF.P05

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