Greg Gutman v. Richard Wayne Wells and Real Estate Arbitrage Partners, LLC ( 2019 )

Dissenting Opinion Filed August 5, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01227-CV
GREG GUTMAN, Appellant
V.
RICHARD WAYNE WELLS AND
REAL ESTATE ARBITRAGE PARTNERS, LLC, Appellees
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-18-06158
DISSENTING OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness
I respectfully dissent. The claims made by Greg Gutman do not fall within the parameters
of the Declaratory Judgments Act. See TEX. CIV. PRAC. & REM. CODE §§ 37.001–.011. First,
Gutman does not seek construction of a contract, nor does he argue that his rights have been
“affected by a statute, municipal ordinance, contract, or franchise . . . .” Id. § 37.004(a). There is
also no judgment or lien against Wells that the trial court could construe. Gutman admits as much:
“Appellant did not obtain or ever claimed [sic] to have obtained a judgment or Judgment lien
against Appellee Wells in the prior litigation. The Abstract of Judgment filed by Appellant made
reference only to the Judgment obtained against Appellee Arbitrage.” As all parties concede, there
was nothing at issue about the lower court’s decision in the previous case. Second, a fair reading
of Gutman’s petition, and the majority’s characterization of it, shows his claims for civil
harassment, to the extent such a cause of action exists, sound in tort. See Tort, BLACK’S LAW
DICTIONARY (11th ed. 2019) (tort is “[a] civil wrong . . . for which a remedy may be obtained,
usually in the form of damages.”). Under no circumstances is this a proper declaratory judgment
action, and I do not agree with the majority’s expansion of the statute. The trial court properly
dismissed Gutman’s action pursuant to rule 91a. See TEX. R. CIV. P. 91a. Accordingly, I would
affirm the trial court’s dismissal.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
181227DF.P05
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