Vicc Homeowners' Association Inc., a Texas Non-Profit Corporation v. Los Campeones , Inc.

• Court: Court of Appeals of Texas
• Decided: August 19, 2004
• Docket: 13-02-00006-CV
• Status: Published

Opinion

NUMBER 13-02-006-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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VICC HOMEOWNERS' ASSOCIATION, INC.,

A TEXAS NON-PROFIT CORPORATION,                                   Appellant,

v.

LOS CAMPEONES, INC., ET AL.,                                               Appellees.

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On appeal from the 107th District Court

of Cameron County, Texas.

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CONCURRING OPINION

Before Justices Hinojosa, Yañez, and Castillo

Concurring Opinion by Justice Castillo

          The majority affirms the summary judgment in appellees' favor and reverses and remands only the attorney fee award. I agree that remand is proper.

          The purpose of the Uniform Declaratory Judgments Act is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 1997). In its entirety, the summary judgment order at issue states:

ORDER

On the 22 day of October, 2001, came on to [sic] considered Plaintiffs' Motion for Summary Judgment on their Petition for Declaratory Judgment. After considering the pleadings, the record and the evidence, this Court is of the opinion that said Motion for Summary Judgment should be granted.

IT IS THEREFORE ORDERED, that Plaintiffs' Motion for Summary Judgment on their Petition for Declaratory Judgment is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs' [sic] be GRANTED attorneys fees in the amount of $33,805.47.

SIGNED on this the 22 day of October, 2001

This order does not declare the rights of the parties on any of the requested grounds in appellees' live pleading or in their motion for summary judgment. Thus, remand is appropriate to secure the trial court's declaration of the rights of the parties. See Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 785 (Tex. App.–Corpus Christi 2003, no pet.); Texas Water Comm'n v. Lindsey, 850 S.W.2d 183, 187 (Tex. App. –Beaumont 1992, writ denied).

          Moreover, an award of attorney fees must be based on statutory authority. We strictly construe statutes providing for recovery of attorney fees. City of Austin v. Travis County Landfill Co., 25 S.W.3d 191, 206-07 (Tex. App.–Austin 1999), rev'd on other grounds, 73 S.W.3d 234 (Tex. 2002) (citing New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967) and Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex. 1962)). Any award of attorney fees in this case must find its authority in the Uniform Declaratory Judgments Act. 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 (Vernon 1997). Whether to award attorney fees under the Act is within a trial court's sound discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Prevailing-party status is not required. State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 894 (Tex. App.–Dallas 2001, pet. denied) (citing Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637-38 (Tex. 1996)). Nonetheless, while the amount of the fee awarded is discretionary, that discretion is limited by the Act's requirements that the award be "reasonable and necessary" and "equitable and just." Tex. Civ. Prac. & Rem. Code § 37.009 (Vernon 1997); Bocquet, 972 S.W.2d at 21. Reasonableness and necessity are matters of fact. Bocquet, 972 S.W.2d at 21. Equity and justice are committed to a trial court's discretion. Id. A trial court may abuse its discretion by ruling arbitrarily, unreasonably, or without regard to guiding legal principles. Id. In other words, the Uniform Declaratory Judgments Act "entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law." Id. In reviewing an attorney fee award under the Act, this Court must determine both whether: (1) the trial court abused its discretion by awarding fees based on insufficient evidence of reasonableness or necessity; and (2) the award was inequitable or unjust. Id. "Unreasonable fees cannot be awarded, even if the court believed them just, but the court may conclude that it is not equitable or just to award even reasonable and necessary fees." Id. Thus, the Act requires a multi-faceted review involving both evidentiary and discretionary matters. Id.

          Here, the summary-judgment order does not declare the rights of the parties. Nonetheless, it awards attorney fees to appellees, the prevailing parties in the sense that the order granted appellees' motion for summary judgment. The parties agree no summary-judgment evidence on attorney fees was before the trial court at the time it awarded the fees. Indeed, as a general rule, the trial court may consider only summary-judgment proof properly on file at the time of the hearing. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992). For the reasons stated by the majority, at the time the trial court signed the summary judgment order, there was no evidence in the record to support the amount of reasonable and necessary attorney fees. However, the trial court granted appellees leave to prove up their attorney fees at a subsequent hearing held concurrently with the hearing on VICC's motion for new trial. The trial court did not rule on the merits of appellees' prove-up of their attorney fees, but it did not change the amount of attorney fees awarded by the summary judgment order, either.

          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., 312 S.W.2d 493, 501 (Tex. 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. Thus, only after the trial court declares the parties' rights under the Uniform Declaratory Judgments Act would I address whether the evidence is factually sufficient to support a finding that the fees are reasonable and necessary and determine if the award is equitable and just.

                                                                           ERRLINDA CASTILLO

                                                                           Justice

Concurring opinion delivered

and filed this 19th day of August, 2004.