Kevin B. Miller v. College Station Properties KP6, LLC and Cardinal Group Management Midwest, LLC

Tex. App. Ct., 10th Dist. (Waco)

Kevin B. Miller v. College Station Properties KP6, LLC and Cardinal Group Management Midwest, LLC

Texas Court of Appeals, 10th District (Waco)·Decided August 20, 2026·No. 10-25-00243-CV·Published

Opinion

Court of Appeals

Tenth Appellate District of Texas

10-25-00243-CV

Kevin B. Miller,

Appellant

v.

College Station Properties KP6, LLC and Cardinal Group Management Midwest, LLC, Appellees

On appeal from the

472nd District Court of Brazos County, Texas Judge G. Jerrell Wise, presiding Trial Court Cause No. 24-002707-CV-472

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Kevin B. Miller appeals from the dismissal of his suit for declaratory relief against College Station Properties KP6, LLC and Cardinal Group Management Midwest, LLC. In two issues, Miller contends the trial court erred in dismissing his claims on its own motion at the hearing on his motion to compel discovery, and the court’s action amounts to a general demurrer. We dismiss in part and reverse and remand in part.

BACKGROUND

Miller is guarantor on a residential lease executed by his son, Landon, with College Station Properties KP6, LLC. Cardinal Group Management Midwest, LLC, the building manager, notified Miller and Landon that, based on security camera footage, they identified Landon and others as being responsible for disturbances on their floor, and reminded them that such behavior violates their agreement.

Miller filed suit seeking a declaratory judgment that the lease has not been violated by the events referenced in the notice.1 He also requested injunctive relief to prevent the destruction of the security video and requiring production of the security video. Additionally, he requested reasonable and customary attorney’s fees pursuant to the Uniform Declaratory Judgments Act (UDJA).

Because Appellees did not respond to his requests for discovery, Miller filed a motion to compel discovery. In Appellees’ opposition to the motion to compel, they explained they are irrevocably waiving their potential eviction and breach of contract claim against Miller and Landon for any of the alleged disturbances. Therefore, they argued, Miller is no longer exposed to legal consequences related to the conduct at issue, the controversy no longer exists,

1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011.

and the issue is moot. Furthermore, they asserted that a ruling on the motion to compel discovery would be advisory. The response is supported by affidavits of Appellees’ representatives memorializing their waiver of all claims related to the events at issue in this case.

At the hearing on the motion to compel discovery, counsel for Appellees orally presented a Rule 11 agreement stating they irrevocably and forever discharge any claims for breach of contract, eviction, default, negligence, fraud, defamation, or any other potential cause of action that could arise and that they may have against Landon Miller and his sureties, or anyone else that could claim under his lease agreement with Appellees, arising from the disturbances on the seventeenth floor of the leased premises that occurred between August 9th and September 14th of 2024. Based on the Rule 11 agreement, the trial court found Miller’s causes of action are moot and, therefore, the discovery is improper. Further, the trial court dismissed Miller’s claims “because they are completely extinguished due to mootness.” The trial court later signed an order reflecting those rulings.

MOOTNESS

On appeal, Miller combines his arguments for both of his issues. He contends the trial court erred when it, on its own motion, without notice, dismissed his claims pursuant to a discovery motion. He further asserts that

the trial court’s act of dismissing his claims based on the pleadings on the ground of mootness, without notice or a hearing, amounts to a general demurrer, which is not allowed under the rules of civil procedure. Finally, Miller asserts the declaratory judgment action is not moot because he requested attorney’s fees pursuant to the UDJA. General Demurrer Miller correctly asserts that general demurrers are precluded by Rule 90 of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 90. General demurrers were originally responses filed by defendants asserting that the plaintiff’s petition was wholly insufficient in law to state any cause of action against the defendant. See In re Shire PLC, 633 S.W.3d 1, 11-12 (Tex. App.—Texarkana 2021, orig. proceeding). An order entered by the trial court is not a general demurrer. See Landa v. Rogers, No. 03-21-00097-CV, 2023 WL 2697880, at *3 (Tex. App.—Austin March 30, 2023, no pet.) (mem. op.). Accordingly, the trial court’s order of dismissal does not amount to a general demurrer. The trial court appropriately inquired as to whether it had subject matter jurisdiction, which it can consider on its own motion at any time. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); In re K.L.W., 726 S.W.3d 563, 567 (Tex. App.—Houston [14th Dist.] 2025, no pet.). We overrule Miller’s second issue.

Claim for Declaration Regarding Breach Miller sought a declaration that the lease had not been breached by the events referenced in the notification he received. In open court, Appellees asserted a Rule 11 agreement waiving any and all claims it may have against Miller arising from those events.

A declaratory judgment is appropriate only if there is a justiciable controversy about the rights and status of the parties and the declaration would resolve the controversy. TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001- 37.011; Tex. Ass’n of Bus., 852 S.W.2d at 446. A court cannot decide a case that has become moot during the pendency of the litigation. Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties, that is, if the issues presented are no longer “live,” or if the parties lack a legally cognizable interest in the outcome. Id.

The absence of a genuine dispute between the parties, whether through agreement or waiver, destroys the jurisdictional foundation for declaratory relief. Hilburn v. Storage Trust Props., LP, 586 S.W.3d 501, 511 (Tex. App.— Houston [14th Dist.] 2019, no pet.). Here, Appellees’ waiver mooted Miller’s substantive declaratory claim. Because there is no justiciable controversy on Miller’s claim requesting a declaratory judgment that the lease was not

breached, the trial court did not have jurisdiction over this claim. Id. The trial court appropriately dismissed this claim as moot. See Tex. Dep’t of Family & Protective Servs. v. Grassroots Leadership, Inc., 717 S.W.3d 854, 873 (Tex. 2025). We overrule Miller’s first issue to the extent it complains about the trial court’s dismissal of his claim for declaratory relief on the breach of lease issue. Claim for Attorney’s Fees In his petition, Miller asserted a claim for attorney’s fees pursuant to the UDJA. On appeal, he contends the case is not moot because the trial court did not consider his request for attorney’s fees.

In any proceeding brought pursuant to the UDJA, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just. TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. A request for attorney’s fees under the UDJA is separate from the underlying controversy. Tex. Dep’t of Transp. v. Tex. Weekly Advocate, No. 03-09-00159-CV, 2010 WL 323075, at *3 (Tex. App.—Austin Jan. 29, 2010, no pet.) (mem. op.). Under the UDJA, there is no requirement that a party prevail in the proceeding in order to recover attorney’s fees. Growden v. Good Shepherd Health Sys., 550 S.W.3d 716, 728 (Tex. App.—Texarkana 2018, no pet.).

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Court of Appeals

Tenth Appellate District of Texas

10-25-00243-CV

Kevin B. Miller,

Appellant

v.

College Station Properties KP6, LLC and Cardinal Group Management Midwest, LLC, Appellees

On appeal from the

472nd District Court of Brazos County, Texas Judge G. Jerrell Wise, presiding Trial Court Cause No. 24-002707-CV-472

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Kevin B. Miller appeals from the dismissal of his suit for declaratory relief against College Station Properties KP6, LLC and Cardinal Group Management Midwest, LLC. In two issues, Miller contends the trial court erred in dismissing his claims on its own motion at the hearing on his motion to compel discovery, and the court’s action amounts to a general demurrer. We dismiss in part and reverse and remand in part.

BACKGROUND

Miller is guarantor on a residential lease executed by his son, Landon, with College Station Properties KP6, LLC. Cardinal Group Management Midwest, LLC, the building manager, notified Miller and Landon that, based on security camera footage, they identified Landon and others as being responsible for disturbances on their floor, and reminded them that such behavior violates their agreement.

Miller filed suit seeking a declaratory judgment that the lease has not been violated by the events referenced in the notice.1 He also requested injunctive relief to prevent the destruction of the security video and requiring production of the security video. Additionally, he requested reasonable and customary attorney’s fees pursuant to the Uniform Declaratory Judgments Act (UDJA).

Because Appellees did not respond to his requests for discovery, Miller filed a motion to compel discovery. In Appellees’ opposition to the motion to compel, they explained they are irrevocably waiving their potential eviction and breach of contract claim against Miller and Landon for any of the alleged disturbances. Therefore, they argued, Miller is no longer exposed to legal consequences related to the conduct at issue, the controversy no longer exists,

1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011.

and the issue is moot. Furthermore, they asserted that a ruling on the motion to compel discovery would be advisory. The response is supported by affidavits of Appellees’ representatives memorializing their waiver of all claims related to the events at issue in this case.

At the hearing on the motion to compel discovery, counsel for Appellees orally presented a Rule 11 agreement stating they irrevocably and forever discharge any claims for breach of contract, eviction, default, negligence, fraud, defamation, or any other potential cause of action that could arise and that they may have against Landon Miller and his sureties, or anyone else that could claim under his lease agreement with Appellees, arising from the disturbances on the seventeenth floor of the leased premises that occurred between August 9th and September 14th of 2024. Based on the Rule 11 agreement, the trial court found Miller’s causes of action are moot and, therefore, the discovery is improper. Further, the trial court dismissed Miller’s claims “because they are completely extinguished due to mootness.” The trial court later signed an order reflecting those rulings.

MOOTNESS

On appeal, Miller combines his arguments for both of his issues. He contends the trial court erred when it, on its own motion, without notice, dismissed his claims pursuant to a discovery motion. He further asserts that

the trial court’s act of dismissing his claims based on the pleadings on the ground of mootness, without notice or a hearing, amounts to a general demurrer, which is not allowed under the rules of civil procedure. Finally, Miller asserts the declaratory judgment action is not moot because he requested attorney’s fees pursuant to the UDJA. General Demurrer Miller correctly asserts that general demurrers are precluded by Rule 90 of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 90. General demurrers were originally responses filed by defendants asserting that the plaintiff’s petition was wholly insufficient in law to state any cause of action against the defendant. See In re Shire PLC, 633 S.W.3d 1, 11-12 (Tex. App.—Texarkana 2021, orig. proceeding). An order entered by the trial court is not a general demurrer. See Landa v. Rogers, No. 03-21-00097-CV, 2023 WL 2697880, at *3 (Tex. App.—Austin March 30, 2023, no pet.) (mem. op.). Accordingly, the trial court’s order of dismissal does not amount to a general demurrer. The trial court appropriately inquired as to whether it had subject matter jurisdiction, which it can consider on its own motion at any time. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); In re K.L.W., 726 S.W.3d 563, 567 (Tex. App.—Houston [14th Dist.] 2025, no pet.). We overrule Miller’s second issue.

Claim for Declaration Regarding Breach Miller sought a declaration that the lease had not been breached by the events referenced in the notification he received. In open court, Appellees asserted a Rule 11 agreement waiving any and all claims it may have against Miller arising from those events.

A declaratory judgment is appropriate only if there is a justiciable controversy about the rights and status of the parties and the declaration would resolve the controversy. TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001- 37.011; Tex. Ass’n of Bus., 852 S.W.2d at 446. A court cannot decide a case that has become moot during the pendency of the litigation. Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties, that is, if the issues presented are no longer “live,” or if the parties lack a legally cognizable interest in the outcome. Id.

The absence of a genuine dispute between the parties, whether through agreement or waiver, destroys the jurisdictional foundation for declaratory relief. Hilburn v. Storage Trust Props., LP, 586 S.W.3d 501, 511 (Tex. App.— Houston [14th Dist.] 2019, no pet.). Here, Appellees’ waiver mooted Miller’s substantive declaratory claim. Because there is no justiciable controversy on Miller’s claim requesting a declaratory judgment that the lease was not

breached, the trial court did not have jurisdiction over this claim. Id. The trial court appropriately dismissed this claim as moot. See Tex. Dep’t of Family & Protective Servs. v. Grassroots Leadership, Inc., 717 S.W.3d 854, 873 (Tex. 2025). We overrule Miller’s first issue to the extent it complains about the trial court’s dismissal of his claim for declaratory relief on the breach of lease issue. Claim for Attorney’s Fees In his petition, Miller asserted a claim for attorney’s fees pursuant to the UDJA. On appeal, he contends the case is not moot because the trial court did not consider his request for attorney’s fees.

In any proceeding brought pursuant to the UDJA, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just. TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. A request for attorney’s fees under the UDJA is separate from the underlying controversy. Tex. Dep’t of Transp. v. Tex. Weekly Advocate, No. 03-09-00159-CV, 2010 WL 323075, at *3 (Tex. App.—Austin Jan. 29, 2010, no pet.) (mem. op.). Under the UDJA, there is no requirement that a party prevail in the proceeding in order to recover attorney’s fees. Growden v. Good Shepherd Health Sys., 550 S.W.3d 716, 728 (Tex. App.—Texarkana 2018, no pet.).

Mootness is generally analyzed on a claim-by-claim basis, with the claims subject to being grouped and analyzed by the injury alleged. McDaniel

v. Crowley Indep. Sch. Dist., No. 02-24-00053-CV, 2025 WL 876777 at *8 (Tex. App.—Fort Worth March 20, 2025, pet. denied). If a statute allows a non- prevailing party to recover fees under equitable principles, the claim for fees always breathes life into a case that has otherwise become moot, because the trial court must always consider the relative merits of the parties’ positions, among other factors, when exercising its discretion to award fees to either party. State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018).

Accordingly, we agree that Miller’s claim for attorney’s fees under the UDJA did not become moot when his request for declaratory relief regarding the lease became moot. See id. The claim for fees presented a justiciable controversy between the parties, and the trial court had subject matter jurisdiction to resolve it. See Tex. Ass’n of Bus., 852 S.W.2d 446; Growden, 550 S.W.3d at 728-29. The trial court erred by dismissing Miller’s claim for attorney’s fees. We sustain Miller’s first issue to the extent it complains of the trial court’s dismissal of his claim for attorney’s fees pursuant to the UDJA.

CONCLUSION

We dismiss the appeal as to Miller’s substantive claim for declaratory relief regarding breach of the lease for lack of jurisdiction. See Hilburn, 586 S.W.3d at 511. We reverse the trial court’s order dismissing Miller’s claim for attorney’s fees and remand the case to the trial court for further proceedings.

STEVE SMITH

Justice

OPINION DELIVERED and FILED: August 20, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Dismissed in part; Reversed and remanded in part CV06

Kevin B. Miller v. College Station Properties KP6, LLC and Cardinal Group Management Midwest, LLC, (Tex. Ct. App. 2026).

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