Opinion by Justice Moseley.
High Mountain Ranch Group, LLP (High Mountain), filed a petition for declaratory judgment against Elbert L. Niece, GT Land LP (GT Land), Mary Hernandez,
High Mountain owns
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.
The question before us is whether High Mountain's lawsuit seeking a declaration that Lot 34 is not subject to the
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.
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
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.
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 plaintiff's 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.
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.
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 controversy, we affirm the trial court's judgment dismissing High Mountain's declaratory action.
Turning next to the trial court's various attorney fee awards, we examine the issue of whether the trial court erred in awarding appellees' attorney fees in the face of High Mountain's claim that attorney fee experts were not timely designated.
On June 28, 2016, the trial court heard various summary judgment motions. In its cross-motion for summary judgment, GT Land sought recovery of its attorney fees, and Hernandez sought recovery of attorney fees in its motion for summary judgment. On August 15, 2016, the trial court heard the motions for payment of attorney fees filed by Niece and Saucedo, respectively. Attorney fees were awarded to each of the appellees as set out previously in this opinion.
A party must furnish testifying expert information requested under Rule 194.2(f), with regard to all experts testifying for a party seeking affirmative relief, by the later of two dates: thirty days after the request is served or ninety days before the end of the discovery period. TEX. R. CIV. P. 195.2. Rule 193.6(a) provides that "[a] party who fails to make, amend, or supplement a discovery response in a timely manner ... may not offer the testimony of a witness ... who was not timely identified" unless there was "good cause for the failure to timely make ... the discovery response" or the timely failure to respond does not "unfairly surprise or unfairly prejudice the other parties." TEX. R. CIV. P. 193.6(a). "The burden of establishing good cause or lack of unfair surprise is on the party seeking to introduce the evidence or call the witness," and such a finding must be supported by the record. TEX. R. CIV. P. 193.6(b). It is within the trial court's discretion to determine whether the offering party has met the burden of showing good cause or lack of unfair surprise or prejudice. Aluminum Co. of Am. v. Bullock, 870 S.W.2d 2, 3 (Tex. 1994).
Niece sought recovery of attorney fees pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. At the fee hearing, High Mountain claimed that Niece was not entitled to recover its attorney fees in light of its late-designated attorney fee expert, and specifically complained that Niece failed to outline a monetary figure for attorney fees. High Mountain argued that Niece did not identify its attorney fee expert until August 2, 2016, after the trial court ruled that High Mountain did not present a justiciable controversy.
Where a party's pleadings contained the request for attorney fees from the lawsuit's inception and the court, to cure any alleged surprise, offered a postponement of testimony to permit discovery of the attorney fee expert before a hearing on the application for attorney fees, our sister court determined that there was a lack of unfair surprise or prejudice. Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 850 (Tex. App.-Austin 2003, no pet.). In Rhey v. Redic, the El Paso Court of Appeals held it not an abuse of discretion for the trial court to overrule an objection to an untimely attorney fee expert designation where the opponent of the evidence was on notice of the request for attorney fees because the request was contained in the original petition, which was filed just five months before trial and the attorney fee expert had been disclosed thirty-one days before the trial commenced. See Rhey v. Redic, 408 S.W.3d 440, 459 (Tex. App.-El Paso 2013, no pet.).
Here, we cannot conclude that the trial court abused its discretion in permitting Magee to testify regarding reasonable and necessary attorney fees incurred on behalf of Niece. Niece had specifically requested an award of attorney fees from the time he filed his original answer on May 1, 2015, well over a year in advance of the fee hearing. On June 22, 2015, Niece filed a special exception to the original petition for declaratory judgment in which he sought dismissal of the declaratory judgment claim and requested that the case be retained on the docket solely for the limited purpose of hearing each of the defendants' claims for costs and attorney fees in connection with "Plaintiffs [sic] improper declaratory judgment action." Although Niece offered to provide fee invoices to High Mountain when it supplemented its response to High Mountain Ranch Group, LLC's, request for disclosure, High Mountain did not request copies of those invoices.
On June 15, 2015, well over a year before the attorney fee hearing, the heirs of Manuel Saucedo filed their original answer together with the first amended answer of Patricia and Miguel Saucedo. That answer specifically requested an award of attorney fees pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code. On July 29, 2016, Saucedo filed a motion for payment of attorney fees, requesting fees in the amount of $10, 940.74, plus contingent appellate attorney fee awards. Saucedo's attorney, Charles Smaistrla, attached his affidavit to the motion in support of the fee claim
Like Niece, Saucedo's pleadings included a request for the recovery of attorney fees from the inception of the lawsuit. Saudcedo's motion for payment of attorney fees included an extensive affidavit by Smaistrla, together with a project invoice and 2013 hourly fact sheet. That motion, together with attachments, provided High Mountain with all of the information covered by Rule 194.2(f). See TEX. R. CIV. P. 194.2(f). In light of the early notice given to High Mountain that it would press a claim for attorney fees, and in light of the disclosure provided over two weeks in advance of the hearing, together with the formal response to High Mountain's Rule 194.2 request for disclosure on August 2, 2016, it is reasonable to conclude that High Mountain was not unfairly surprised or prejudiced by Smaistrla's testimony at the August 15, 2016, fee hearing. The trial court acted within its discretion to permit this testimony. See Beard Family P'ship, 116 S.W.3d at 850; Wigfall v. Tex. Dep't of Criminal Justice, 137 S.W.3d 268, 274 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (holding that trial court did not abuse its discretion in not excluding late-designated expert witness where party who sought exclusion did not request continuance or complain that delay left him unable to conduct his own discovery).
On appeal, High Mountain argues that "none of the ... Appellees designated their attorney fee experts until well after the due date ... [and] none should be entitled to recover attorneys' fees in this
We find that any complaint High Mountain may have had regarding attorney fee awards to GT Land and Hernandez has not been preserved for appellate review. See TEX. R. APP. P. 33.1 (explaining that to preserve complaint for appellate review, record must show complaint was made to trial court).
We affirm the trial court's judgment.
Further, at the hearing on the motion to enter attorney fees, counsel for Niece stated,
GT Land informed High Mountain, after filing its original answer, that it might be willing to stipulate non-opposition to the declaratory relief sought in exchange for High Mountain's agreement to reimburse GT Land for its attorney fees. High Mountain rejected this proposal.