Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

High Mountain Ranch Group, LLC v. Niece

Court of Appeals of Texas, Sixth District, Texarkana

August 4, 2017

HIGH MOUNTAIN RANCH GROUP, LLC, ET AL., Appellants
v.
ELBERT L. NIECE, ET AL., Appellees

          Submitted: July 3, 2017

         On Appeal from the 98th District Court Travis County, Texas Trial Court No. D-1-GN-15-001451

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Bailey C. Moseley Justice

         High Mountain Ranch Group, LLP (High Mountain), filed a petition for declaratory judgment against Elbert L. Niece, GT Land LP (GT Land), Mary Hernandez, [1] and the Estate of Manuel Saucedo, Sr. (Saucedo), among others, [2] seeking a judgment determining that the Declaration of Covenants and Restrictions (DCRs) on Lot 34 in Austin's Glenbrook Addition[3] is illegal, void, and/or unenforceable, and alternatively, seeking a modification of the DCRs to remove the residential use restrictions and subdivision set back requirements from the lot.[4] The trial court entered a final judgment after having granted various summary judgment motions filed on behalf of certain appellees. Ultimately, the trial court concluded that there was no justiciable case or controversy before it and, therefore, concluded that it did not have jurisdiction to consider the issues set out in High Mountain's pleadings. The trial court awarded attorney fees to Niece, GT Land, Hernandez, and Saucedo, and dismissed High Mountain's claims and causes of action with prejudice. Because (1) the trial court was not presented with a justiciable controversy and (2) the trial court acted within its discretion in the award of attorney fees, we affirm the trial court's judgment.

         I. Factual and Procedural Background

         High Mountain owns[5] two adjacent lots in the Glendale subdivision.[6] The first lot fronts Highway 71 and is zoned commercial. The second lot-Lot 34-is also zoned commercial[7] and fronts Meldrum Road. Lot 34 is subject to certain DCRs restricting it to residential use and also imposing certain setback restrictions, which High Mountain claims prevent it from using or selling the property. After unsuccessfully attempting to gain sufficient signatures on a petition circulated among the property owners in Glenbrook subdivision[8] (Chapter 201 Petition) which, if successful, would have relieved Lot 34 of the residential use restrictions, High Mountain filed a declaratory judgment lawsuit[9] asking the trial court to determine that the DCRs to which Lot 34 is subject are invalid, illegal, void and/or unenforceable, and alternatively seeking a modification of the DCR's so that they do not apply to Lot 34.

         High Mountain filed a motion for summary judgment, a second amended motion for summary judgment, and a supplement to its second amended motion for summary judgment. Other defendants, including Hernandez, filed a motion for summary judgment and severance, GT Land filed a cross-motion for summary judgment, various defendants filed responses to High Mountain's summary judgment motions, Niece filed a motion for attorney fees, and Saucedo filed a motion for payment of attorney fees. The trial court concluded that there was no justiciable case or controversy before it, and, therefore, determined that it lacked jurisdiction to consider the issues set out in High Mountain's pleadings. The trial court granted (1) the request for attorney fees set forth in the Hernandez motion for summary judgment in the amount of $26, 580.00, (2) the request for attorney fees set forth in GT Land's cross-motion for summary judgment in the amount of $23, 750.00, (3) Niece's request for attorney fees in the amount of $30, 000.00, and (4) Saucedo's request for attorney fees in the amount of $10, 875.00.[10] The trial court denied High Mountain's request for an award of attorney fees and dismissed High Mountain's claims and causes of action with prejudice.

         II. The Declaratory Judgment Action Did Not Present a Justiciable Controversy

         The question before us is whether High Mountain's lawsuit seeking a declaration that Lot 34 is not subject to the DCRs presented the trial court with a justiciable controversy.[11] Because ripeness, or justiciability, is an element of subject matter jurisdiction, it is a legal question subject to de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Save Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 680 (Tex. App.-Austin 2004, no pet.).

         High Mountain has unsuccessfully attempted to sell Lot 34 together with its adjoining, unrestricted parcel. Its inability to sell the property, it contends, is due to the residential use and setback restrictions to which Lot 34 is subject. High Mountain thus claims that unless Lot 34 is exempted from these restrictions, it will be unable to sell the property for its true value, or for any value whatsoever. It further claims that there has been and continues to be a justiciable controversy which began when High Mountain initiated the Chapter 201 petition process and the appellees either failed to respond or objected to the removal of the restrictions.

         Niece, GT Land, and Hernandez contend, however, that the issue of the DCRs' applicability to Lot 34 is not ripe for determination, as High Mountain has not taken any action in violation of the DCRs. They point out that Lot 34 is and has been, at all relevant times, vacant property with no specified future use.[12] They further dispute High Mountain's claim that the appellees objected to the removal of the DCRs in response to the Chapter 201 Petition.

         The Uniform Declaratory Judgment Act (UDJA) is a remedial statute which permits a person to petition the court for a declaration of rights under a written instrument. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2015). The UDJA does not, however, expand the scope of the trial court's jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993); City of Austin v. Whittington, 385 S.W.3d 28, 33 (Tex. App-Austin 2007, no pet.). Consequently, "[a] declaratory judgment requires a justiciable controversy as to the rights and status of [the] parties . . . and the declaration sought must actually resolve the controversy." Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64 (Tex. 2004). "A justiciable controversy is one in which a real and substantial controversy exists involving a genuine conflict of tangible interests and not merely a theoretical dispute." Tex. Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App-Austin 1998, no pet.).

         "Ripeness 'is a threshold issue that implicates subject matter jurisdiction . . . [and] emphasizes the need for a concrete injury for a justiciable claim to be presented.'" Robinson v. Parker, 353 S.W.3d 753, 755 (Tex. 2011) (quoting Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998) ("The constitutional roots of justiciability doctrines such as ripeness, as well as standing and mootness, lie in the prohibition on advisory opinions, which in turn stems from the separation of powers doctrine.")). To determine whether a claim is ripe, we consider "whether, at the time a lawsuit is filed, the facts are sufficiently developed 'so that an injury has occurred or is likely to occur, rather than being contingent or remote.'" Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex. 2000) (quoting Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998)). "A case is not ripe when determining whether the plaintiff has a concrete injury depends on contingent or hypothetical facts, or upon events that have not yet come to pass." Id.; see Camarena v. Tex. Emp 't Comm'n, 754 S.W.2d 149, 151 (Tex. 1988) (trial court cannot grant relief based on "a hypothetical situation which might or might not arise at a later date").

          Although a fully ripened cause of action may not be necessary for a justiciable controversy to exist, the maintenance of an action for declaratory judgment requires a "'fact situation [which] manifests the presence of ripening seeds of a controversy, ' such that 'the claims of several parties are present and indicative of threatened litigation in the immediate future which seems unavoidable, even though the differences between the parties as to their legal rights have not reached the state of an actual controversy.'" Trinity Settlement Servs., LLC, 417 S.W.3d 494, 506 (Tex. App-Austin 2013, pet. denied) (quoting Moore, 985 S.W.2d at 154). Consequently, "A claimant is not required to show that the injury has already occurred, provided the injury is imminent or sufficiently likely." City of Waco v. Tex. Natural Res. Conservation Comm 'n, 83 S.W.3d 169, 175 (Tex. App-Austin 2002, pet. denied) (citing Gibson, 22 S.W.3d at 852).

         Nothing in the record before us reveals any indication of threatened litigation in the immediate future which seems unavoidable. There is no evidence that High Mountain wishes to construct a commercial venture on Lot 34, that such a venture has been proposed to the subdivision lot owners, and that, as a result, litigation looms in the immediate future.[13] In fact, "the distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties." Boorhem-Fields, Inc. v. Burlington N. RR Co., 884 S.W.2d 530, 539 (Tex. App - Texarkana 1994, no pet.). Whether the DCRs are binding on Lot 34 is just such an abstract question, as there is currently no claim that those restrictions have been violated.

         High Mountain, however, relies on Jones v. Young, 541 S.W.2d 200 (Tex. App-Houston [14th Dist] 1976, no writ), in support of its claim that it is entitled to a judicial declaration that the DCRs do not apply to Lot 34. We disagree. Jones involved a declaratory judgment action by a property owner seeking to have certain restrictive covenants declared inapplicable to his property, claiming that the restrictions would interfere with his complete use and enjoyment of the property. Id. at 200-01. The trial court sustained the jurisdictional pleas and dismissed the suit. Id. at 201. Although the appellate court acknowledged, without elaboration, that the case presented a justiciable controversy, its reversal of the trial court's dismissal order was based on the determination that the plaintiffs pleadings failed to state a cause of action and dismissal was premature because the plaintiff was "precluded opportunity to amend his pleadings once the trial court had granted the motion for summary judgment." Id.

         We, therefore, do not read Jones as standing for the proposition that a declaratory judgment action is an appropriate means for seeking a determination of the validity, applicability, or enforceability of deed restrictions, in the absence of a justiciable controversy. And, while it is true in this case that potential purchasers may well be concerned that Glenbrook property owners may choose to pursue enforcement of the DCRs if a commercial venture is established on Lot 34, such speculation by a potential purchaser does not create a justiciable controversy between High Mountain and the Glenbrook subdivision property owners.[14] See Trinity Settlement Servs., LLC, 417 S.W.3d at 506.

         High Mountain further contends that its efforts to successfully gain sufficient signatures on the Chapter 201 Petition and the Glenbrook lot owners' objections to the removal of the restrictions created a controversy which has now fully ripened. This contention is without support. Chapter 201 does not require a property owner to take any action whatsoever in response to a request to sign such a petition.[15] See generally Tex. Prop. Code Ann. §§ 201.001-.013. And, from a purely factual standpoint, nothing in the record indicates that the appellee property owners objected to the removal of the DCRs. Indeed, High Mountain's first supplement to its second amended motion for summary judgment indicates the opposite:

During the Chapter 201 process, the Plaintiff expended in excess of $4, 000. This cost was solely the Plaintiff's expense and the Plaintiff does not seek reimbursement for this activity. Each property owner was asked only to get a petition signature page notarized. Since all major banks offer free notary service, no property owner was required to expend any money. No defendant gave any reason nor raised any objection to the petition prior to the filing of the lawsuit.

         There is no evidence in the record that Glenbrook property owners who failed to provide High Mountain with a notarized signature page for the petition did so because they were opposed to the removal of Lot 34's DCRs. Even according to High Mountain, there were no objections to the petition prior to the filing of the lawsuit. The mere failure to participate in a Chapter 201 petition is not evidence of a justiciable controversy or of "ripening seeds of a controversy, such that . . . claims are present and indicative of threatened litigation in the immediate future which seems unavoidable . . ." Trinity Settlement Servs., LLC, 417 S.W.3d at 506.

         Finally, to the extent High Mountain contends that opposition to its declaratory judgment lawsuit creates a justiciable controversy, we reject this contention. A justiciable controversy must exist at every stage of a lawsuit. See Coburn v. Moreland,433 S.W.3d 809, 825 (Tex. App - Austin 2014, no pet.). Because High Mountain's declaratory judgment action did not present a justiciable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.