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Gutman v. Wells

Court of Appeals of Texas, Fifth District, Dallas

August 28, 2019

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

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III

          MEMORANDUM OPINION

          BILL WHITEHILL JUSTICE

         We withdraw our opinion dated August 5, 2019. This is now the Court's opinion in this case.

         This is 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.

         This 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.

         As 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 proceedings.

         I. Background

         We draw the relevant facts verbatim from the allegations in Gutman's petition:

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 contract.
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 Wells.
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 ...

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