Opinion
No. 05-03-01053-CV
Opinion Filed July 21, 2004.
On Appeal from the Dallas County Court at Law No. 5, Dallas County, Texas, Trial Court Cause No. cc-99-13674-e.
Affirm.
Before Justices WRIGHT, O'NEILL, FRANCIS.
MEMORANDUM OPINION
Edward Heyland appeals the judgment awarding attorney's fees to Hoffman, McBryde Co., f/k/a Hoffman, Pederson McBryde. In a single issue, appellant contends that the trial court erred in awarding attorney's fees under the Texas Uniform Declaratory Judgment Act because appellee sought declaratory relief for the sole purpose of recovering attorney's fees. We overrule appellant's issue and affirm the trial court's judgment.
In his sole issue, appellant contends that the trial court erred in awarding attorney's fees because appellee sought declaratory relief for the sole purpose of obtaining attorney's fees. The declaratory judgment act provides that the trial court may award reasonable and necessary attorney's fees. See Tex. Civ. Prac. Rem. Code Ann. § 37.009 (Vernon 1997). A declaratory relief plea may not, however, be coupled to a damage action merely "to pave the way" for attorney's fees. Park Cities Ltd. P'ship v. Transpo Funding Corp., 131 S.W.3d 654, 661 (Tex. App.-Dallas 2004, no pet.). Thus, when a claim for declaratory relief is merely incidental to the issue at hand, attorney's fees are not recoverable. See John G. and Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002) (holding claim for legislative enactment was incidental to title issue and attorney fees not authorized under Declaratory Judgment Act); Hawk v. E.K. Arledge, Inc., 107 S.W.3d 79, 84 (Tex. App.-Eastland 2003, pet. denied) (finding declaratory relief incidental to title issue and attorney's fees are not recoverable). After reviewing the record in this case, we cannot conclude that the declaratory relief sought by appellees was merely incidental.
A declaratory judgment is an appropriate remedy if (1) a justiciable controversy exists as to the rights and status of the parties; and (2) the controversy will be resolved by the declaration sought. Park Cities, 131 S.W.3d at 662; Texas Dept. of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.-Austin 1998, no pet.). Here, there was an actual, justiciable issue concerning whether a valid judgment lien existed when appellee filed an abstract that did not correctly reflect the balance due. This Court resolved that issue in our previous opinion, where we declared that a valid judgment lien exists once an abstract is correctly issued, recorded, and indexed. See Hoffman, McBryde Co. v. Heyland, 74 S.W.3d 906, 907 (Tex. App.-Dallas 2002, pet. denied). That declaration had a valid, legal meaning and ended the controversy concerning whether there was a valid judgment lien. Thereafter, the trial court decided the separate issue of foreclosure of appellant's property. Under these circumstances, we conclude the plea for declaratory relief had a purpose apart from seeking attorney's fees. See Park Cities Ltd. P'ship, 131 S.W.3d at 662 (finding justiciable controversy in requiring a judicial decree concerning legal title to four vehicles prior to deciding conversion issue). To the extent appellant argues that declaratory relief was not proper because appellee could have used a writ of execution to collect judgment, we disagree. The existence of another adequate remedy does not bar a party's right to maintain an action for declaratory judgment. Id. (citing Crow v. City of Corpus Christi, 209 S.W.2d 922, 924 (Tex. 1948). We overrule appellant's sole issue.
Accordingly, we affirm the trial court's judgment.