Summary
holding a declaratory judgment seeking to remove a materialmen's lien was rendered moot where petition failed to request either attorney's fees or costs of litigation
Summary of this case from ESAU v. ROBINSONOpinion
No. 05-04-01353-CV
Opinion issued October 12, 2005.
On Appeal from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 02-03131-M.
Affirmed.
Before Justices WRIGHT, MORRIS, and RICHTER.
MEMORANDUM OPINION
Margaret Buffin appeals the final judgment determining ownership of a house and lot located in Dallas County and awarding reimbursement to co-tenant, Robert Henry Buckner. In five issues, Buffin complains that the trial court erred in failing to award her attorney's fees, damages, and an "offset" to the award for reimbursement. The facts are known to the parties so we do not recite them in any detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to rule 47.1 of the Texas Rules of Appellate Procedure. Tex.R.App.P. 47.1 We affirm.
Buffin and Buckner bought a house together in 1978 and lived in it until 1984, when Buffin moved out. On July 24, 1984, a "special warranty deed" was filed with the Dallas County Clerk clarifying that the couple did not own the property as husband and wife, but that each party owned an undivided one-half interest as tenants in common. On April 24, 1994, a quitclaim deed was filed purporting that Buffin had "quitclaimed" her interest in the property to Buckner. Subsequently, on April 4, 2002, Buffin brought suit for: (1) a declaratory judgment stating that she owned an undivided interest in the property in question, (2) an order removing the cloud on her title caused by a forged quitclaim deed, (3) damages, (4) removal of the cloud on her title based on adverse possession, and (5) for breach of contract. Buckner counterclaimed for ownership of the property through adverse possession or, alternatively, for reimbursement for money spent on taxes, mortgage payments, and repairs for Buffin's share of the property and for partition. The trial court awarded Buffin a one-half ownership interest in the property, denied all of her other claims, granted Buckner's claims for reimbursement, and ordered the property sold.
In her first two issues, Buffin challenges the trial court's failure to award her attorney's fees. Buffin relies on the Texas Declaratory Judgments Act as the authority for her claim for attorney's fees. Under the Declaratory Judgments Act, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. Rem. Code Ann. § 37.009 (Vernon Supp. 2004-05). However, when the declaratory relief is merely incidental to a title dispute, attorney's fees cannot be obtained under the Texas Declaratory Judgments Act. See John G. and Marie Stella Kenedy Memorial Foundation v. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002); Sani v. Powell, 153 S.W.3d 736, 745 (Tex.App.-Dallas 2005, no pet.). A review of the record reveals this case involves a dispute over the title to property. "Attorney's fees are not available in a suit to quiet title or to remove cloud on title." Id. (quoting Southwest Guar. Trust Co. v. Hardy Road 13.4 Joint Venture, 981 S.W.2d 951, 956 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). Accordingly, we conclude that Buffin was not entitled to attorney's fees in this case, and we resolve her first two issues against her.
In her third issue, Buffin contends that she was entitled to both damages and exemplary damages because Buckner participated in filing a forged quitclaim deed. As her sole authority for damages, Buffin relies on section 33.013(b)(2)(H) of the Texas Civil Practices and Remedies Code, which applies to causes of action in tort and causes of action brought under the Deceptive Trade Practices-Consumer Protection Act. See Tex. Civ. Prac. Rem. Code Ann. § 33.002 (Vernon 2004-05). Buffin did not bring an action in tort or one under the DTPA. Buffin's suit is one for removal of the cloud on her title caused by the filing of the forged quitclaim deed. Such a suit is an equitable action for which damages are not available. Pampell Interests, Inc. v. Wolle, 797 S.W.2d 392, 395 (Tex.App.-Austin 1990, no writ). "No Texas case has ever awarded damages under the rubric `cloud on title.'" Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983).
Regarding her assertion that she is entitled to exemplary damages, Buffin relies on sections 41.008(c)(8) and 41.011 of the civil practices and remedies code. Section 41.008 provides for limitation of the amount of recovery for exemplary damages and section 41.011 lists the factors the trial court may consider in determining the amount of exemplary damages. See Tex. Civ. Prac. Rem. Code Ann. § 41.008(c)(8) (Vernon Supp. 2004-05), § 41.011 (Vernon 1997). However, to support an award of exemplary damages, the plaintiff must prove a distinct tortious injury with actual damages. See Federal Exp. Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993); Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). Again, Buffin did not bring a tort action. In her brief, she fails to assert that she pleaded a tort or proved tortious injury and she fails to argue any legal basis that would entitle her to exemplary damages. Accordingly, we resolve Buffin's third issue against her. In her fourth issue, Buffin asserts that she is "entitled to damages from having to defend successfully against [a]ppellee's claim of title by adverse possession (limitations)." In her fifth issue, Buffin asserts that Buckner is not entitled to reimbursement because of their agreement that he could have the use of the property if he would pay the mortgage, insurance and taxes. However, Buffin fails to support her fourth and fifth issues with any record references or citations to legal authority. Consequently, these issues present nothing for review. See Tex.R.App.P. 38.1(h); Birnhaum v. Law Offices of David Westfall, 120 S.W.3d 470, 477 (Tex.App.-Dallas 2003, pet. denied), cert. denied, 125 S.Ct. 875 (2005). Accordingly, we resolve Buffin's fourth and fifth issues against her.
We affirm the trial court's judgment.