Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 95th District Court Dallas County, Texas
Trial Court Cause No. DC-18-06158
Justices Whitehill, Partida-Kipness, and Pedersen, III
withdraw our opinion dated August 5, 2019. This is now the
Court's opinion in this case.
an appeal from the trial court's Rule 91a dismissal of
Greg Gutman's declaratory judgment action against Richard
Wells and Real Estate Arbitrage Partners, LLC (Arbitrage).
Gutman's two issues argue that the trial court erred by
(i) dismissing the action and, consequently, (ii) awarding
Wells and Arbitrage reasonable attorney's fees.
case asks us to decide whether a petition alleging that a
defendant has repeatedly harassed and threatened the
plaintiff because he refuses to accede to the defendant's
unlawful demands presents a sufficiently concrete dispute to
justify a viable action seeking a judgment declaring that the
plaintiff need not accede to those demands.
discussed below, the trial court erred by dismissing the case
because there was a justiciable controversy to be determined
by declaratory judgment. And because the dismissal was
reversible error, the court also erred by awarding
attorney's fees against Gutman. We thus reverse the trial
court's judgment and remand the case for further
the relevant facts verbatim from the allegations in
9. Previously Plaintiff had sued Defendants in Cause No.
DC-17-1809 in the 95th District Court to set aside a contract
between Plaintiff and Arbitrage, which request was premised
upon both, deficiencies in the formation of the contract and
fraud practiced by the Defendants. Defendants counter-claimed
against Plaintiff for alleged fraud and enforcement of the
10. Following a trial in the 95th District Court, all of
Plaintiffs claims against Arbitrage were validated and found
to be meritorious and all of Defendant's claims were
found to be groundless. No Judgment issued against Defendant
11. Based upon the foregoing, on the 7th day of August, 2017,
the Judge of the 95th District Court issued a Judgment in
favor of Plaintiff and as against Defendant Arbitrage,
cancelling the contract, and awarding Plaintiff
attorney's fees, court costs and interests. Defendants
were awarded no relief under their counter-claims. The
Judgment survived an unsuccessful attempt at an appeal.
12. Weeks following the Judgment, Plaintiff recorded an
Abstract of Judgment in the Deed Records of Dallas County.
The Abstract of Judgment only referenced the Judgment awards
against Defendant Arbitrage. The Abstract of Judgment did not
contain any indication that there was any claim referenced in
the Abstract of Judgment with respect to Defendant Wells.
13. The Judgment amounts awarded to Plaintiff were paid in
full on the 7th day of May, 2018. Consistent with his duties,
Plaintiff agreed to deliver and did deliver to Arbitrage on
the 9th of May, 2018, a properly composed, executed,
acknowledged and notarized ...