Where suits are filed in two states, one court may abstain in favor of the first-filed suit. A separate issue exists, however, as to the facts and testimony relating to the liability event, and the evidence that has been accumulated or produced in the underlying case. Admiral Ins. San Antonio, TX 78216 Lazaro C. Olivarez Family Trust Page 3 of 10 Electronically Filed 11/30/2016 4:52:31 PM Hidalgo County District Clerks Reviewed By: Jennifer Sinder b) Judgment No.2: That trustees cannot use trust funds to respond to this motion for declaratory judgments pursuant to page 14 paragraph numbered 20 of the trust documents because the court's . Westport v. Atchley, Russell, Waldrop & Hlavinka, 267 F. Supp. Instead, plaintiffs alleged River Entertainment was negligent for allowing the defendant to leave, in his own vehicle, when they should have known his driving ability was impaired. App. c) The court may grant summary judgment as to liability only and leave damages for the jury, as appropriate. See, e.g., Boring & Tunneling Co. v. Salazar, 782 S.W.2d 284, 289-90 (Tex. Frontier Pac. St. Paul had also appealed the original award to state district court, and that suit had also been settled, with a provision for payment of future expenses. Prac. Co. v. Boll, 392 S.W.2d 158, 161 (Tex. Co. v. Block, 744 S.W.2d 940, 943 (Tex. %%EOF 1941); and there is every reason for not reducing declaratory . The county where the contract was formed may also be a proper venue. Co. v. Quinn-L Capital Corp., 3 F.3d 877 (5th Cir. Fam. 4 Among the statutes allowing for award of attorney's fee s is the following non-exhaustive list: 5Civil Practice & Remedies Code. While for years there was a question in the Federal courts as to whether 38.001, Tex. The declaratory action may also bring the coverage issues into focus for the plaintiff, and assist the insured in negotiating settlement. 8. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139 (Tex. 1271 (N.D. Tex. Auto. Estates Construction Lane-Jones v. Estate of Not Reported in S.W.3d Houston (14th Dist.) at 332. Co., 95 S.W.3d 702 (Tex. Co. v. Tandy Corp., 986 F.2d 94, 95 (5th Cir. The purpose of a Declaratory Judgment is to protect you, your child, your relationship with your child, your property, and your money from your ex and the state: The purpose of the Act and its effect is to enable the citizen to procure from a court guidance which will keep him out of trouble and to procure that guidance with materially less expense than he would have to incur if he should wait until the trouble came before having recourse to the court.[iv], It concerns itself not only with contracts, but withrespect to titles to property, and particularly with the status of family relations, man and wife, parent and child, guardian and ward, and also with provisions of trust.[v], This act is declared to be remedial; its purpose it to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.[vi], Sec. Co. v. Ochoa, 19 S.W.3d 452 (Tex. 5 0 obj Group, 946 F.Supp. App.San Antonio 1998, pet. declaratory judgment be granted as requested herein, and Plaintiff be awarded costs and reasonable and necessary attorney's fees, and for such other and further relief that may be awarded at law or in equity. E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. POWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT. 140 0 obj <> endobj The author would like to thank the Texas Tech Law School Foundation for its generous support. Further, while it is unlikely that an insurer wishes to proceed, without protective order, to establish evidence that demonstrates the insureds liability as the insurer has not yet prevailed on its coverage defenses it is also unclear under what standard the insured should be able to protect otherwise discoverable information, simply because it is damaging. 512-708-8200, 700 North Pearl Street P., also addresses declaratory judgments, by reference to 28 U.S.C. FFC Home Page / 5 Reasons to file a Declaratory Judgment. ); State Farm Lloyds Ins. We do not guarantee or warrant any of this information. 1968). Co. v. Gandy, 925 S.W.2d 696 (Tex. "gj6P'pn.g_9z# ?V#yof.j,^4{%y^LJ_z|0 eivLnBE.orQevfwe^_d \2P4^Gy-ts}] ;|^QRg-d^yX^OeGE?kP0+]kw/k}m+TssVg4Pv. Ellison sought a declaratory judgment to that effect and also brought claims for trespass to try title, trespass to real property, conversion, unlawful drainage, gross negligence, and nonpayment of oil and gas proceeds. 37.006. At issue was a 100-year old agreement regarding the proper boundary line that referred to certain mesquite trees and rock piles, a fence line drawn on a decades-old survey, and the ownership of 90 acres of land. Co. v. Childress, 650 S.W.2d 770, 775-76 (Tex. FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. While federal abstention doctrine is equally applicable to declaratory judgments action, courts are particularly vigilant in exercising their discretion to protect comity and prevent forum shopping. . 925 S.W.2d at 714. There is nothing that we find in the Declaratory Judgment Act that precludes you from filing this and asking your court to make this determination while you are in litigation. The application must be by petition to a court having jurisdiction to grant the relief. Id . In determining amount in controversy, the court may consider policy limits and defense costs, and is not necessarily limited by the damages pleaded in the underlying suit. Co. v. Burch, 442 S.W.2d 331 (Tex. Co. v. Bradleys Elec., Inc., 993 S.W.2d 673 (Tex. 1997) (whether vehicle was owned by insured); Harken Exploration Co. v. Sphere Drake Ins., PLC, 261 F.3d 466 (5th Cir. denied) (judgment of negligence in underlying case did not establish that negligent acts caused bodily injury, and did not preclude insurer from establishing intentional conduct); Deering Mgmt. "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." (Kinnard v. Collin Co Bail Bond (2006) No. Code 37.002 (b). 1968); National Sav. . App.Dallas 1998, pet. [iii] Ibid Uniform Declaratory Judgments Act, [iv]Ibid Uniform Declaratory Judgments Act, [v] Ibid Uniform Declaratory Judgments Act, [vi] Ibid Uniform Declaratory Judgments Act. Tex. denied) (any judgment on indemnity was advisory and beyond power and jurisdiction of the court); Campbell v. Commercial Standard Ins. 1993); American States Ins. Sec. 2005); In re Marriage of Byrne, 179 Ill.App.3d 944 (1st Dist. The insurer denied defense based on the liquor liability exclusion and filed a declaratory judgment action. The El Paso Court of Appeals recently considered Eggemeyer v. Hughes, a case involving a disputed boundary line. Declaratory Judgment These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. For more information, please contact the law firm at 817-335-8800. The following are some specific ways that declaratory judgments can be used in family law. See Hartford Ins. Civ. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for. Texas Uniform Declaratory Judgments Act, You can get sample motions here: Declaratory Relief Declaratory Judgment and Rights. He then filed a lawsuit seeking a declaratory judgment that Allstate owed him the difference between the settlement . App.San Antonio 1998, pet. App.Corpus Christi 2000, no writ). You want to get the most out of these motion arguments, so make sure you do step 1 and 2 as well. (d) In determining whether to grant declaratory relief to a business under this section, a court shall consider: (1) the factual circumstances of the business's operations that give rise to the demand by the other state; and. Indemnity is based on the actual facts establishing liability in the underlying suit. Co., 96 S.W.3d 673 (Tex. Irwin settled with Alonso's insurance carrier for the $30,000 policy limit. The court recognized that the insurer was defending, but the coverage issue would not be litigated in the underlying case, so declaratory relief was appropriate. 1965, writ refd n.r.e.) A declaratory judgment claim can be useful in a wide variety of circumstances. endobj LEXIS 7550 (Tex. See Firemens Ins. Texas Pattern Jury Charges, published by the State Bar of Texas, is a compilation of definitions, jury instructions, and supplemental material, intended to assist practitioners with developing jury charges. Federal courts have typically held that declaratory relief is discretionary, and a federal court has broad authority to stay or dismiss an action seeking a declaratory judgment. 1364 (N.D. Tex. Sec.A37.003.AAPOWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT. Mut. 1989, no writ); In re Fontenot, 13 S.W.3d 111 (Tex. 6 0 obj Co. v. Truckin USA, 122 F.3d 270, 272-73 (5th Cir. Obviously, the nature of the coverage issue to be determined will also determine the scope of discovery. (not justiciable controversy); Foust v. Ranger Ins. & Ind. Instead, a party may recover fees only where controlling substantive law permits recovery. ***It is your responsibility to make sure that this is appropriate for your individual case. There is a contract, and a dispute over the parties rights and obligations under the contract. Co. v. Tex. The U.S. Supreme Court's 2015 ruling in Obergefell v. Code37.009 provides that in any proceeding under this Chapter, the court may award costs and reasonable and necessary attorneys fees as they are equitable and just.. A plaintiff is the side that starts the lawsuit by filing a complaint or petition with the court.A plaintiff files the lawsuit to get the court to force the defendant to do something, such as pay money damages. In Chiriboga v. State Farm Mut. denied); State Farm Lloyds v. *I`Sl,'dpC2\,AMia*K/[ -M @ICPgIw5 Y k]x?4 :D R*NuNK^CXdmS0I,-B Courts have struggled with the issue of what can be resolved in the declaratory judgment action, when the issue determining coverage may also be material in the underlying case. (a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. Co. v. Cooper Mach. Congress enacted the Uniform Declaratory Judgments Act in 1922, which was implemented by the National Conference of Commissioners on . 1993) (Colorado River factors inapplicable in declaratory judgment action); Granite State Ins. It is axiomatic that the duty to defend is broader than the duty to indemnify. County Mut. 2 0 obj Acts 1985, 69th Leg., ch. Read this complete Texas Estates Code - EST 257.101. Auto Ins. See Utica Lloyds of Tex. App.Austin, Oct. 2, 2003, no pet. DEFINITION. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for. Civ. See, e.g., Texas Assn of Bus. endobj In Gonzales v. American States Ins. 699 (H.B. (b) A district court has original jurisdiction of a proceeding seeking a declaratory judgment that involves: (1) a party seeking declaratory relief that is a business that is: (A) organized under the laws of this state or is otherwise owned by a resident of this state; or, (B) a retailer registered with the comptroller under Section 151.106, Tax Code; and, (A) is an official of another state; and. ATTORNEY'S FEES IN DECLARATORY JUDGMENTS. See, e.g., City of Galveston v. Giles, 902 S.W.2d 167 (Tex. Sept. 1, 1999. Tex. We are not attorneys. App.Houston [1st Dist.] In American Genl Fire & Cas. App.Beaumont 1999, pet. In part, of course, the scope of discovery will be determined by the nature of the issue. Ins. 1993). Id. App. %PDF-1.6 % (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty. 830-252-5100. <> Co. v. Griffin, 955 S.W.2d 81, 82-84 (Tex. 37.003. Ins. stream App.Dallas 1992, writ denied) (insurer not collaterally estopped from challenging findings); United States Fire Ins. When Is a Declaratory Judgment Proper? App.Austin 2003, no pet. 1968) (J. Smith, dissenting). (2) the decisions of other courts interpreting Section 8, Article I, United States Constitution. (driver excluded); see also Tri-Coastal Contrs, Inc. v. Hartford Undwrs Ins. 1997), the Supreme Court reaffirmed the complaint allegation rule, with dicta suggesting that the exception for extrinsic evidence would be narrowed. The Historic Hamm Building 1995); but cf. See, e.g., Commercial Metals Co. v. Balfour, Guthrie & Co., Ltd., 577 F.2d 264 (5th Cir. The court may refuse to render or enter a declaratory judgment or decree if the judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding. [ii]Civil Practice and Remedies Code Declaratory Judgments Sec 37.002 and Sec 37.003 (c) (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty. App.Austin 1998, no pet. 959, Sec. It is not an abuse of discretion, however, to retain a suit, and to decide issues of indemnity, even before the underlying liability suit has reached judgment. Civ. 1 Justice Smith was perhaps prescient in his dissent, concluding that a justiciable controversy existed. 11 0 obj Cf. Co. of Texas, 1998 Tex. Co. v. Gaskins, 572 S.W.2d 573, 575 (Tex. A federal court cannot, however, stay a pending suit for declaratory relief to allow the parties to re-file suit in state court, as the state court will have no jurisdiction. Tex. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs. When an issue has been litigated in the underlying case, when can it be re-litigated in the coverage dispute? 1994). R. CIV. <> K-yXHMKS mmgOT}|aMz0. Federal Jurisdiction Issues A. Diversity Jurisdiction 1. V 8). 39 F.3d at 591. Co., 61 F.3d 389 (5th Cir. Acts 1985, 69th Leg., ch. Civ. Co., 981 S.W.2d 861 (Tex. Co. v. Cooper Machinery Corp., 817 F.Supp. App.Texarkana 1994, no writ) (possibility that liability triggering indemnity would be incurred was a feature hypothetical event, and court had no power to pass upon hypothetical or contingent situation); Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex. Rule 57 also notes that "the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." App.Houston [14th Dist.] App. Unless the lease agreement says otherwise, the landlord must give the tenant at least 3 days to move out. 45 . hbbd```b``3@$i6D2j`5`YOe= "Ydl_02]fIk`|g 1995). "Since its inception, the Declaratory Judgment Act has been understood to confer on federal Google it and find out how your State has interpreted this remedy. See, e.g., Sylvester v. Watkins, 538 S.W.2d 827 (Tex. There are literally dozens of statutes in Texas law that provide for the recovery of attorney's fees, usually as part of a judgment. If the order resolves the entire action, then the answer is easy. Declaratory relief is an especially appropriate method for resolving coverage disputes, because of the limited options available for resolution of such disputes. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for. The courts have recognized an exception when the liability insurance is statutorily required, and arguably for the benefit of the claimant, such as compulsory auto insurance or workers compensation. June 15, 2007. Therefore, either diversity or federal question jurisdiction must still exist. Sec. 4 . Under this rule, the insurers defense obligations are determined by the allegations of the pleadings and the language of the insurance policy, without regard to the actual facts. 1978). Utica Lloyds of Tex. In state court, an order to seal discovery requires that the parties jump through a number of additional hoops, but protective orders are still available. endobj Rules 38 and 39 govern a demand for a jury trial. (a) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. The Motion: a) May be filed by a defending party any . See, e.g., State Farm Lloyds v. The district court dismissed the declaratory action on the defendants motion based on 28 U.S.C. 8 0 obj If the discovery is limited, or poorly conducted, or does not address the coverage issues, however, the insurer may seek additional testimony and evidence. Genl Agency v. Cooper, 952 S.W.2d 861 (Tex. Tex. As amended through January 27, 2023. 651-389-5000, 10001 Reunion Place 2201-2202 . P., specifically provides, with regard to joinder of third parties, that This rule shall not be applied, in tort cases, so as to permit the joinder of a liability or indemnity insurance company, unless such company is by statute or contract liable to the person injured or damaged. Most policies include a no action provision that provides that a third partys right of action against the insured does not arise until there is a settlement, to which the insurer has agreed, or a judgment against the insured. may declare the rights. All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees. See McCarthy Bros. Co. v. Continental Lloyds, 7 S.W.3d 725 (Tex. App.Houston [1st Dist.] 12 0 obj While abstention doctrine is more frequently an issue in federal court, state courts can also abstain. (providing a "court . Courts recognize that when there are conflicting positions on coverage, as when the insurer reserves rights, there is no privity between the insured and the insurer on issues relating to coverage, which are also at issue in the underlying case.
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