Opinion
02-22-00383-CV
04-20-2023
Commissioners Court of Wise County, Texas; and Danny White, County Commissioner, Precinct One, Wise County, Texas, Appellants v. Katherine Mastropiero, Appellee
On Appeal from the 271st District Court Wise County, Texas Trial Court No. CV18-06-475
Before Birdwell, Bassel, Womack, JJ.
MEMORANDUM OPINION
Dana Womack Justice
I. Introduction
In this second round of litigation between the parties, Appellants Commissioners Court of Wise County, Texas, and Danny White, County Commissioner, Precinct One, Wise County, Texas, complain of the judgment awarding attorney's fees to Appellee Katherine Mastropiero. This litigation began when Mastropiero sued Wise County, the Commissioners Court, and Commissioner White, seeking declaratory relief to compel them to maintain certain roads in her subdivision. See Wise Cnty. v. Mastropiero, No. 02-18-00378-CV, 2019 WL 3755766, at *1 (Tex. App.-Fort Worth Aug. 8, 2019, no pet.) (mem. op.) (Mastropiero I). In round one, we addressed the question of whether the trial court may exercise jurisdiction under article V of the Texas constitution, which provides district courts with "appellate jurisdiction and general supervisory control" over a commissioners court that has failed to perform a clear duty or otherwise abused its discretion. Id.; Tex. Const. art. V, § 8. Concluding that Mastropiero's petition and evidence established the trial court's jurisdiction, we affirmed the denial of Appellants' plea to the jurisdiction. Mastropiero I, 2019 WL 3755766, at *1. However, we also concluded "that a fact issue remains as to whether the commissioners court expressly accepted the dedication [of the roads]." Id. at *6.
Wise County, Texas, was named as a defendant in Mastropiero's original petition. Wise County, however, was removed as a defendant in Mastropiero's Second Amended Petition (her live pleading) and is not a party to this appeal.
Later, after amending her pleadings, Mastropiero filed (1) a "Motion for Partial Summary Judgment" (motion for summary judgment) requesting declaratory relief, a writ of mandamus, and attorney's fees, and (2) a "Partial Nonsuit and Plaintiff's Motion for Judgment for Attorney[']s Fees and Costs" (motion for attorney's fees). After a non-evidentiary hearing on the motion for attorney's fees, the trial court found that Mastropiero was a "prevailing party" in the declaratory judgment proceeding and awarded her attorney's fees. In three issues, Appellants complain of the trial court's judgment.
The procedural posture of this case necessarily informs our analysis of the issues. Because neither the motion for summary judgment nor any other dispositive motion or trial was heard by the trial court before judgment was entered and because no evidence was admitted at the hearing on the motion for attorney's fees, we will reverse and remand the case for further proceedings.
II. Background
After Mastropiero I, Mastropiero filed her Second Amended Petition, seeking "non-monetary relief" and attorney's fees and costs. Specifically, she sought "a declaratory judgment that the Roads are county roads as platted" and "are entitled by law to County maintenance and repair" and "a writ of mandamus requiring the Commissioners Court to include the Roads in their system of roads, with corresponding duties of inspection, reporting, maintenance, and repair." Citing the Uniform Declaratory Judgments Act (UDJA), Mastropiero also sought her reasonable and necessary attorney's fees. See Tex. Civ. Prac. &Rem. Code Ann. § 37.009.
Approximately one week after filing her Second Amended Petition, Mastropiero filed the motion for summary judgment. While numerous exhibits were attached to the motion, no evidence regarding attorney's fees was attached, no response was filed, and there is nothing in the record indicating that the motion was ever set for hearing or heard by the trial court.
Several months later, Mastropiero filed the motion for attorney's fees. Included in the motion for attorney's fees was a partial nonsuit, which stated:
On October 1, 2019, Mrs. Mastropiero filed her Second Amended Petition to preserve her existing complaints to establish a history of abuses of discretion and to add these new complaints. Since that time, Defendants have made no further effort to replace the road surfaces with gravel. Having learned that Commissioner White does not intend to seek reelection, Mrs. Mastropiero has determined that her victory in getting the Phase 2 roads accepted as county roads entered into the County's system of maintenance is sufficient relief on the merits. She hereby nonsuits all of her causes of action alleged against the Commissioners Court and Commissioner White except her original request for declaratory judgment to the extent that it supports a claim for her attorney's fees.
In addition to the nonsuit, the motion stated that "Mastropiero now seeks judgment awarding her attorney's fees," and "to the extent necessary to support that claim, incorporates herein by reference [the motion for summary judgment] which demonstrates that she was entitled to the relief sought before Defendants conceded defeat." Among the attachments to the motion was an attorney's fee affidavit from Mastropiero's attorney. Thereafter, Mastropiero's attorney filed an unopposed motion to withdraw, which was granted.
In her appellate brief, Mastropiero states that she "did not nonsuit her claims for declaratory relief arising out of the Appellants' August 28, 2000 acceptance of the roads" and "nonsuited only those claims associated with improper maintenance and/or for mandamus relief because Appellants had undertaken to maintain the roads."
In November 2021, a "Notice of Hearing" was filed, setting the motion for attorney's fees for hearing. On the same day that the Notice of Hearing was filed, a "Notice of Rule 11 Agreement" was filed, which stated the following:
1. Defendants will file and serve any written response to the motion no less than seven (7) days prior to the hearing; and
2. Defendants waive any objection to Plaintiff's proof of attorneys' fees and costs by affidavit rather than by a witness called live.
While the notice was signed only by Mastropiero, it included as an exhibit email exchanges between Mastropiero and Appellants' attorney wherein he stated that Appellants "will file a response to your motion at least 7 days before the hearing" and "will not insist on you having a live witness to prove up the amount of attorney's fees."
Thereafter, Appellants filed their response in opposition to the motion for attorney's fees. The response urged several reasons for denying the motion, including that there was no waiver of immunity; Article V, Section 8 of the Texas constitution does not authorize an award of fees and expenses; the request "violates principles of statutory construction and the redundant remedies doctrine"; and awarding fees "would not be equitable or just under the facts of this case."
At the hearing on the motion for attorney's fees, Mastropiero and counsel for Appellants appeared and argued. The record states that only the motion for attorney's fees was heard. No evidence was offered or admitted at the hearing, and the trial court took the motion under advisement.
In a judgment signed more than seven months later, the trial court stated that after considering the motion for attorney's fees, it was granting the nonsuit and motion for attorney's fees. In addition to awarding attorney's fees and finding that the attorney's fees were "reasonable and necessary" and "just and equitable," the judgment included a finding
that [Mastropiero] is a prevailing party in this Declaratory Judgment Act lawsuit in that: (a) she obtained rulings at trial and on interlocutory appeal in favor of this Court's jurisdiction; (b) she obtained an appellate ruling defeating [Appellants'] legal argument that subdivision roads in Wise County that are accepted on the minutes of the Commissioners Court do not become county roads unless the developer posts a maintenance bond; and (c) during the pendency of this case and after the Court of Appeals' Opinion, [Appellants] accepted the roads as county roads and placed them into the Wise County System of Roads for perpetual maintenance[.]
Appellants appeal from this judgment.
III. Discussion
In three issues, Appellants complain of "a jurisdictional ruling that led directly to a final Judgment for attorney's fees, with no proceeding on the merits in between" and ask: (1) Does the UDJA or the Texas constitution permit Mastropiero to recover attorney's fees from Appellants for her claims?; (2) Could the trial court enter a judgment for attorney's fees where the trial court stated Mastropiero was a prevailing party because Appellants' plea to the jurisdiction was denied and Mastropiero asserted without evidence that Appellants had conceded the merits of the case?; and (3) Did Mastropiero submit competent evidence to the trial court that substantiated the trial court's attorney's fee award?
In her response, Mastropiero relies extensively on Mastropiero I and the evidence attached to her summary-judgment motion, arguing that she established Appellants' liability with "evidence includ[ing] judicial admissions and all of the documents supporting the Appellants' formal and informal acceptance of the public dedication of the roads in 2000." Further, she states that she "expressly reserved" her claims for declaratory relief arising out of the "August 28, 2000 acceptance of the roads" and incorporated by reference her motion for summary judgment into her motion for attorney's fees. Finally, she contends that Appellants "conceded" her claims by failing to controvert either the motion for summary judgment or the motion for attorney's fees.
Appellants then replied, "primarily to address the contention underpinning much of Appellee's Brief: that Mastropiero's Partial Nonsuit and Plaintiff's Motion for Judgment for Attorney's Fees and Costs [ ] properly incorporated-and thus itself constituted-a motion for summary judgment that was later heard and adjudicated in the trial court." They urge that this is a "procedural impossibility" because Mastropiero failed to include the grounds for summary judgment in her motion for attorney's fees and failed to set a hearing on her motion for summary judgment. We agree.
A. Standard of Review and Applicable Law
In "any proceeding" under the UDJA, "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. The UDJA "entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). In a declaratory judgment case, we review a trial court's award of attorney's fees for an abuse of discretion. Id. It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles. Id.
To determine whether evidence is sufficient to support the trial court's exercise of discretion, we consider (1) whether the trial court had sufficient information upon which to exercise its discretion, to which we apply the legal and factual sufficiency standards of review, and (2) whether the trial court erred in its application of that discretion, i.e., whether, based on the evidence before it, the trial court made a reasonable decision. Jones-Hospod v. Maples, No. 03-20-00407-CV, 2021 WL 3883884, at *6 (Tex. App.-Austin Aug. 31, 2021, pet. denied) (mem. op.). A trial court does not abuse its discretion when its ruling is based on conflicting evidence and some evidence of substantive and probative character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009). Because the trial court did not issue findings of fact or conclusions of law, we imply all facts supported by the evidence that are necessary to support the trial court's ruling. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
B. Analysis
Because it is dispositive, we will first address Appellants' second and third issues which complain of the sufficiency of the evidence to support the trial court's judgment. See Tex.R.App.P. 47.1. As Appellants argue in their brief, the trial court could not have entered a judgment declaring Mastropiero's claims were meritorious and that she was a prevailing party because the plea to the jurisdiction in Mastropiero I does not encompass a decision on the case's merits and because the trial court considered no evidence (1) that Appellants conceded the claims that the disputed roads were always entitled to county maintenance and (2) that Mastropiero was entitled to attorney's fees.
1. Effect of Mastropiero I
We first address what effect, if any, Mastropiero I has on our decision here. As stated above, Mastropiero I involved an appeal of the denial of a plea to the jurisdiction. See Mastropiero I, 2019 WL 3755766, at *1. A plea to the jurisdiction is a dilatory plea by which a party challenges the trial court's subject matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its purpose is to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
After examining the evidence in Mastropiero I, we determined that a fact issue remained as to whether the commissioners court expressly accepted the dedication of the disputed roads. Mastropiero I, 2019 WL 3755766, at *6. We noted that while Mastropiero contended that the maintenance bond-even if it was a precondition for acceptance of the roads-was entirely invalid, "[w]e need not pass on this argument, which goes to the merits of Mastropiero's complaint, because there is already a fact issue as to acceptance even without this argument." Id. at *6 n.3; see Farmers Tex. Cnty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 241 (Tex. 2020) (stating that in ruling on a plea to the jurisdiction, courts should decide the plea without delving into the merits of the case). Therefore, it was left to the finder of fact to decide if Appellants had accepted the dedication of the roads.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties only to the extent necessary to resolve the jurisdictional issues, just as the trial court is required to do. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). When a plea to the jurisdiction includes evidence, as was the case here, and the jurisdictional challenge implicates the merits of the plaintiff's cause of action, the trial court will review the relevant evidence to determine whether a fact issue exists. Id.; Mastropiero I, 2019 WL 3755766, at *1.
2. Resolution of Fact Issues
After Mastropiero I was decided, confusion apparently arose about the procedural posture of this case. Mastropiero contends that the fact question regarding the acceptance of the dedication left open after Mastropiero I "was judicially admitted and supported by summary judgment evidence." Appellants respond that this is a "procedural impossibility" because Mastropiero failed to include the ground for summary judgment in her motion for attorney's fees and failed to set her motion for summary judgment for hearing. In addition, while an attorney's fee affidavit was attached to her motion for attorney's fees, Mastropiero failed to offer it into evidence at the hearing and merely stated that "the motion has been submitted." We agree with Appellants.
Unless a party seeking a declaratory judgment files a motion for a summary judgment, she is not legally entitled to a summary declaratory judgment short of engaging in a trial on the merits of the case and therein proving that she is entitled to the relief she seeks. Rice v. Nu-Ray Elec. Co., Inc., 514 S.W.2d 86, 89 (Tex. App.-Fort Worth 1974, no writ). "Even if it is ultimately determined that the only issues in the underlying suit are questions of law, those questions 'can only be determined from a review of the entire record after a full and final hearing in the trial court.'" Dall./Fort Worth Int'l Airport Bd. v. Ass'n of Taxicab Operators, USA, 335 S.W.3d 361, 366 (Tex. App.-Dallas 2010, no pet.) (citing Transp. Co. of Tex. v. Robertson Transps., Inc., 261 S.W.2d 549, 553 (Tex. 1953)).
In lieu of trial, a declaratory judgment proceeding can be disposed of by summary judgment if no material fact issues exist. Hill v. Enerlex, Inc., 969 S.W.2d 120, 122 (Tex. App.-Eastland 1998, pet. denied). In that case, the purpose of summary judgment is to eliminate patently unmeritorious claims and untenable defenses. Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 783 n.56 (Tex. 2017) (quoting City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979)). While Mastropiero suggests that "any necessary fact determinations were proper summary judgment decisions," she still must follow proper summary judgment procedure to obtain those fact decisions.
Summary judgment proceedings are governed by Rule 166a of the Texas Rules of Civil Procedure. Tex.R.Civ.P. 166a. Specific grounds for summary judgment must be set forth in the motion for summary judgment. See id.; KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). Once the motion is filed, the trial court must give notice of the hearing date because this date determines the date that the nonmovant's response is due. Martin v. Martin, Martin &Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). The trial court does not have the authority to grant summary judgment on its own initiative. See Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.-Corpus Christi 2001, no pet.). At a minimum, notice of a summary judgment hearing requires that (1) the opposing party be advised that the motion has in fact been set for hearing, and (2) the date and time of the hearing be included in the fiat. Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 333 (Tex. App.-Corpus Christi-Edinburg 2003, pet. denied) (op. on reh'g). Because "[s]ummary judgment is a harsh remedy," an appellate court "will strictly construe summary judgment in procedural and substantive matters against the movant." Tanksley v. CitiCapital Com. Corp., 145 S.W.3d 760, 763 (Tex. App.-Dallas 2004, pet. denied) (citations omitted).
Mastropiero sought her attorney's fees in both the motion for summary judgment and the motion for attorney's fees. While Mastropiero's motion for attorney's fees stated that it incorporated by reference the motion for summary judgment, the motion for summary judgment was never specifically set for hearing. See Stephens v. Turtle Creek Apartments, Ltd., 875 S.W.2d 25, 26 (Tex. App.-Houston [14th Dist.] 1994, no writ) (stating that the notice requirements of the summary judgment rule must be strictly construed). Strictly construing the summary-judgment procedural requirements, we conclude that Mastropiero's motion for summary judgment was never set for hearing, and therefore, could not have been considered by the trial court. See id.
Even where it is properly before the trial court, the party seeking an attorney's fee award bears the burden of proof to support the award. Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017). The attorney's fee claimant must prove that the requested fees are both reasonable and necessary for the legal representation. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 489-90 (Tex. 2019); see In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 809 (Tex. 2017) (orig. proceeding) (stating that a party seeking recovery of attorney's fees from the losing party "bears the burden of establishing the fees are reasonable and necessary").
Here, the trial court's judgment was entered without either a trial on the merits or a hearing on a dispositive motion. See Hilton v. Korrect Gen. Contracting, LLC, No. 02-20-00337-CV, 2021 WL 4621761, at *4 (Tex. App.-Fort Worth Oct. 7, 2021, pet. denied) (mem. op.) (holding that there could be no disposition of a counterclaim "without either a trial on the merits or a hearing on a dispositive motion"). After Mastropiero set her motion for attorney's fees for hearing, Appellants agreed that she did not need to call a live witness; they did not agree that she did not need to offer evidence of her attorney's fees. See Trudy's Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex. App.-Austin 2010, no pet.) (stating that the primary objective in construing a Rule 11 agreement is to ascertain and give effect to the intentions the parties objectively manifested in the written instrument). At the hearing on the motion, Mastropiero proceeded only on her request for attorney's fees. However, she offered neither live nor affidavit evidence on attorney's fees. Further, there was no evidence offered or admitted regarding either the fact question left open by Mastropiero I or any concession by Appellants that the disputed roads were always entitled to county maintenance. Therefore, we conclude that there was no evidence to support the trial court's award of attorney's fees and no evidence to support the findings in the judgment that Mastropiero was the prevailing party in the UDJA case. See Banc One Asset Sol. Corp. v. Thomas, No. 05-99-01621-CV, 2001 WL 259140, at *5 (Tex. App.-Dallas Mar. 16, 2001, no pet.) (reversing trial court's declaratory judgment and permanent injunction because there was no evidence to support the award where affidavits were not admitted into evidence and holding that there was "no right to an award of attorney's fees" where the party did not prevail on any of his causes of action.). We sustain Appellant's second and third issues.
At the beginning of the hearing, the following exchange occurred:
THE COURT: All right. So this is your motion, ma'am, for attorney's fees:
[MASTROPIERO]: Correct. Yes, we are seeking attorney's fees.
IV. Conclusion
Having sustained Appellant's second and third issues-which moots Appellant's first issue-we reverse the trial court's judgment and remand for further proceedings. See Tex.R.App.P. 43.2(d).
"[R]emand is the greatest relief available in light of the procedural posture of this case." Fish v. Tex. Legis. Serv., No. 03-10-00358-CV, 2012 WL 254613, at *8 (Tex. App.-Austin Jan. 27, 2012, no pet.) (mem. op.); see Mihalic v. City of Houston, No. 01-90-00968-CV, 1991 WL 119198, at *2, 4 (Tex. App.-Houston [1st Dist.] July 3, 1991, no pet.) (not designated for publication) (reversing and remanding where trial court rendered judgment in response to a motion for judgment and there was no trial on the merits and no evidence was introduced); Entrekin v. Entrekin, 398 S.W.2d 139, 140 (Tex. App.-Houston 1966, no writ) (reversing and remanding for trial where "there was not only no full and satisfactory evidence, there was no evidence whatever and no trial on the merits"); see also Pena v. Smith, 321 S.W.3d 755, 759 (Tex. App.- Fort Worth 2010, no pet.) ("As long as there is a probability that a case has for any reason not been fully developed, an appellate court has the discretion to remand rather than render a decision.").