Opinion
No. 05-05-00061-CV
Opinion Filed July 18, 2006.
On Appeal from the 416th District Court, Collin County, Texas, Trial Court Cause No. 416-03361-03.
Before Justices RICHTER, LANG, and MAZZANT.
MEMORANDUM OPINION
This is a declaratory judgment case. The trial court granted the request of appellee Collin County Bail Bond Board ("the Board") for declaratory relief and for an award of attorney's fees and costs. On appeal, appellant Pat Kinnard, d/b/a Bail Bonds Unlimited, is challenging the awards of declaratory judgment and of attorney's fees. In addition, the Board filed a motion to dismiss, asserting that Kinnard lacked standing to bring the lawsuit and, as a result, this Court lacks jurisdiction to hear this appeal. We deny the Board's motion and sustain Kinnard's challenges to the court's declaratory judgment and award of attorney's fees.
BACKGROUND
On October 30, 2003, the Board conducted a hearing to determine whether Kinnard was maintaining an office in Collin County as required by Tex. Occ. Code Ann. § 1704.213(a). The evidence presented at the hearing revealed that Kinnard's business office was located in his home on Riverstone Court in the city of Dallas, in Collin County. Concluding that this did not meet the requirements of Section 1704.213(a), the Board issued an order of immediate suspension of "the license of [sic] issued to Patrick Kinnard, d/b/a Bail Bonds Unlimited as agent for Continental Heritage Insurance Company" until such time as Kinnard could present proof that he had an office located outside a residential neighborhood in Collin County.
Section 1704.213(a) states: "A license holder shall maintain an office in the county in which the license holder holds a license."
Kinnard filed suit for de novo review by the district court and applied for temporary relief. Specifically, he claimed that the Board's ruling was erroneous because nothing in Section 1704.213(a) requires a license holder's office to be maintained separately from his residence, if that residence is within the licensing county. On November 12, 2003, the trial court granted a temporary restraining order, which prohibited the Board from enforcing the suspension order. However, the trial court likewise ordered Kinnard to obtain an office within Collin County in an area zoned commercial. The court further specified furnishings and other items (such as a business phone) to be contained in the office. The record reflects that Kinnard complied with the trial court's order. In December of 2003, the Board filed a counterclaim seeking a three-fold declaratory judgment regarding the phrase "office in the county." Specifically, the Board requested that the trial court declare that (1) the phrase "office in the county" contained in Texas Occupations Code § 1704.213(a) requires that the office location of a bail bond business be located in an area legally zoned for such use and not in a residential area; (2) the phrase "office in the county" contained in Texas Occupations Code § 1704.213(a) prohibits Kinnard from maintaining an office at his personal residence on Riverstone Court in Dallas, Collin County; and (3) the Board's definition of "office in the county" as contained in Rule 3.12 of its local rules and regulations is legal, valid, appropriate, and consistent with the policy goals of the Texas Occupations Code. The Board advised the trial court that the language in Rule 3.12 "substantially tracks" language in the court's temporary restraining order.
In February of 2004, Kinnard filed his own application for declaratory judgment, requesting the court to construe Section 1704.312 to require an office in the county where the license holder holds a license, without imposing any other restrictions regarding the location. Later, both Kinnard and the Board filed motions for summary judgment. In his motion for summary judgment, Kinnard reiterated his position stated in his application for declaratory judgment-that the Board could not dictate where he located his office within Collin County. The Board's motion reiterated its position that an office cannot be located in a residence and reurged its request for declaratory judgment.
In June 2004, the trial court heard argument from both parties. In its amended order granting the Board's motion for summary judgment and denying Kinnard's motion for summary judgment, the trial court (1) granted the Board's motion for summary judgment, (2) dismissed all of Kinnard's actions and claims with prejudice, (3) noted that Kinnard's bonding license was suspended because he did not have an office in Collin County, (4) vacated and set aside the Board's suspension order of October 30, 2003, (5) noted that Local Rule 3.12 was enacted after Kinnard's license suspension, (6) denied Kinnard's motion for summary judgment, (7) issued declaratory relief that construed Section 1704.213(a) of the occupations code to require the licensee's office to be located in a commercial, non-residential zone, (8) issued declaratory relief that construed Section 1704.213(a) of the occupations code to prohibit Kinnard from maintaining an office at his personal residence, and (9) issued declaratory relief that found Local Rule 3.12 legal and valid. The court advised that it would issue a separate order on the amount of attorney fees and costs to be awarded.
The Board subsequently filed its motion for attorney's fees and costs pursuant to section 37.009 of the Texas Civil Practice and Remedies Code, which allows the trial court to award attorney's fees and costs when declaratory relief has been granted. Specifically, the Board requested that it be awarded "at least $12,422.88." The trial court awarded the Board $2,145.00.
This appeal ensued. Prior to Kinnard's filing of his brief, the Board filed its motion to dismiss for lack of standing and jurisdiction. We advised the Board that this motion would be considered upon submission. Kinnard raises three issues on appeal: (1) that he has standing; (2) that the trial court erred in granting the Board's request for declaratory relief; and (3) that the trial court erred in awarding the Board attorney's fees.
ISSUE ONE: STANDING
Kinnard argues that he had standing to file the underlying lawsuit and, thus, to bring this appeal. He contends that we should deny the Board's motion to dismiss. We agree.
Standing is a component of subject matter jurisdiction that can be raised at any time and cannot be waived. Texas Ass'n of Bus. V. Texas Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). The general test for standing requires that there be a real controversy between the parties that can be determined by the judicial declaration sought. Id. at 446. There must be a restriction of the plaintiff's rights-not those of another. Bailey v. City of Austin, 972 S.W.2d 180, 184-85 (Tex.App.-Austin 1998, pet. denied).
Here, the Board claims that Kinnard lacked standing to challenge the Board's order of immediate suspension because the license suspended was one issued to Continental Heritage Insurance Company. According to the Board, Kinnard was merely the executing agent for the true license holder. Therefore, the issue is whether the license that was suspended by the Board's October 30, 2003 order was the license issued to Continental Heritage, as a licensed corporate bail bond surety, or the license issued to Kinnard, the corporate surety agent. See Tex. Occ. Code Ann. § 1704.151 (requiring a person to hold a license to act as an agent for a corporate surety).
See also, Tex. Atty Gen. Op. GA-0165 (March 15, 2004), which states that Section 1704.151 explicitly provides that agents of corporate sureties must possess a bail bond license.
The record clearly shows that the Board suspended Kinnard's license, not Continental Heritage's license. The Board's notice of hearing and order compelling appearance stated the purpose of the hearing was to consider the possible suspension or revocation of "the Bail Bond License issued to Patrick Kinnard d/b/a Bail Bond Unlimited as agent for Continental Heritage Insurance Company." This language is also present in the Board's official minutes for October 30, 2003 and in the Board's order of immediate suspension.
The Board's official record of the hearing held on October 30, 2003 reflects that the hearing was conducted to determine if Kinnard had failed to maintain an office in Collin County. According to Kinnard's testimony, he (1) held a license issued by the Board to conduct a bail bond business in Collin County; (2) owned Bail Bonds Unlimited; (3) understood that Section 1704.213(a) required the "license holder" to maintain an office in the county in which he holds the license; and (4) located his business office in his residence in Collin County. The Board's official minutes reflect that, at the end of the hearing, a motion was made to suspend the license issued to "Patrick Kinnard d/b/a Bail Bonds Unlimited" until such time as he obtained a business location outside of a residential area in Collin County. The Board's letter that accompanied the written order of suspension was addressed to Kinnard and stated that "your license" can be reinstated upon proof that the office has been relocated to an area outside of a residential neighborhood.
The record demonstrates that only Kinnard's right to conduct his bail bond business was affected by the Board's order. There is simply nothing to indicate that Continental Heritage's license as a corporate bail bond surety was in any way restricted. We therefore conclude that Kinnard had standing to bring suit regarding the Board's suspension order. And, because he is complaining on appeal that the trial court's judgment has injuriously affected him, Kinnard likewise has standing to bring this appeal. See Kenseth v. Dallas County, 126 S.W.3d 584, 594 (Tex.App.-Dallas 2004, pet. denied) (a party may only appeal errors in which he has a justiciable interest). Accordingly, we sustain Kinnard's first issue and deny the Board's motion to dismiss.
ISSUE TWO: DECLARATORY JUDGMENT
Kinnard contends that the trial court erred in issuing declaratory relief with respect to Local Rule 3.12 and Section 1704.213(a). We agree.
A declaratory judgment is appropriate only when there is a justiciable controversy about the rights and status of the parties, and the declaration would resolve the controversy. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). The controversy must be real and substantial, involving a genuine conflict of tangible interests and not merely a theoretical dispute. Id.
Here, the trial court vacated, set aside, and held for naught the Board's order of immediate suspension because the terms of the order were satisfied when Kinnard obtained an office outside a residential neighborhood and complied with the trial court's temporary restraining order. Kinnard's sole cause of action was based on his claim that the Board's suspension order of his license was founded on an erroneous interpretation of Section 1704.213(a). When Kinnard satisfied the terms of the Board's order, he rendered the controversy regarding the meaning of Section 1704.213(a) and its application to Kinnard's office moot.
The court also noted that Kinnard's license was not suspended under authority of the Board's Local Rule 3.12 because the rule was enacted after Kinnard's license was suspended. Therefore, there was never any controversy between the Board and Kinnard regarding Local Rule 3.12. Any declaratory relief regarding this rule constituted an advisory opinion.
When the trial court issued its declaratory judgment, there was simply no conflict to be resolved regarding either Local Rule 3.12 or Section 1704.213(a). We sustain Kinnard's second issue. Accordingly, we reverse the portions of the trial court's amended order that grant declaratory relief with respect to Local Rule 3.12 and section 1704.213(a). We render judgment that the Board's request for declaratory relief be denied.
ISSUE THREE: ATTORNEY'S FEES
Kinnard argues that sustaining his second issue requires that we reverse the award of attorney's fees. Specifically, he contends that (1) the trial court awarded attorney's fees under the Declaratory Judgment Act; (2) the trial court erred in granting declaratory relief; and (3) the Board has not shown itself entitled to attorney's fees under any other statute. Kinnard thus assumes that only a prevailing party is entitled to attorney's fees. This is not the case. As part of a declaratory judgment, the trial court has the discretion to award attorney's fees, and may make an award to either party. Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex. 1998).
See Tex. Civ. Prac. Rem. Code Ann. § 37.001, et seq.
Here, the trial court states only that it found the award of attorney's fees and costs to the Board to be just and equitable. Based upon the record before us, we are unable to determine if the trial court abused its discretion. Accordingly, we reverse the award of attorney's fees and remand this cause to the trial court to determine if the Board is still entitled to an award of attorneys' fees in light of this opinion and, if so, what amount is just and equitable.
CONCLUSION
Having sustained all of Kinnard's issues, we (1) deny the Board's motion to dismiss for lack of standing and jurisdiction, (2) reverse the portions of the trial court's order regarding the Board's Local Rule 3.12 and Section 1704.213(a) of the occupations code and render judgment that the Board's request for declaratory relief be denied, and (3) reverse the trial court's award of attorney's fees and remand this cause to the trial court for further consideration regarding these fees.