Robert C. Pruett v. City of Galena Park ( 2022 )


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  • Opinion issued July 12, 2022
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-20-00521-CV
    ———————————
    ROBERT C. PRUETT, Appellant
    V.
    CITY OF GALENA PARK, Appellee
    On Appeal from the 127th District Court
    Harris County, Texas
    Trial Court Case No. 2016-35876
    MEMORANDUM OPINION
    Appellant Robert C. Pruett was a long-time employee of appellee the City of
    Galena Park (the City), serving as a police officer, chief of police, and city
    administrator over more than twenty years. Following a tumultuous election and
    resulting upheaval in the City’s mayoral office and City Commission, Pruett
    resigned. He subsequently sought severance pay pursuant to a City ordinance
    providing for severance benefits to certain long-term employees and pursuant to a
    purported Severance Agreement between him and the City. The City opposed
    paying severance benefits. The City filed a petition seeking declaratory judgment
    construing the ordinance and Severance Agreement, and Pruett alleged counter-
    claims challenging the City’s construction of the ordinance and agreement and
    alleging that the City had breached its contract with him. Both parties filed motions
    for summary judgment, and, after several interlocutory rulings, the trial court
    rendered judgment granting the City’s motion and denying Pruett’s.
    On appeal, Pruett contends that the trial court erred (1) in granting the City’s
    motion for summary judgment and denying his own motion and (2) in denying his
    request for attorney’s fees pursuant to Civil Practice and Remedies Code chapters
    37 and 38. Because we conclude that the ordinance in question did not, by itself,
    support Pruett’s claim for severance benefits and the purported agreement between
    the parties was invalid, we affirm.
    Background
    Robert C. Pruett served the City of Galena Park as a police officer starting in
    1993. He eventually became the Chief of Police in 2000, and he became the City
    Administrator in 2012. In 2014, mayoral candidate Esmerelda Moya ran on a
    platform that included efforts to eliminate the position of City Administrator.
    2
    Pruett presented summary judgment evidence that Moya targeted him personally
    during this contentious election and, upon her election to office, attempted to have
    him removed from office. The governing body of the City—the City
    Commission1—voted against removing Pruett.
    After this attempt to remove him, the City Commission adopted Ordinance
    2015-10, which stated that its purpose was to amend the City’s personnel
    ordinance to provide for severance package agreements and benefits for certain
    long-term employees. The Ordinance further stated, “It is the intent of this
    ordinance to provide severance protection to long term senior Department Heads
    and certain Key Employees of the City[.]” The Ordinance defined key terms,
    including “Department Head,” which expressly included the City Administrator,
    and “Key Employee.” The Ordinance also defined “Severance Agreement” as “the
    agreement between the covered employee and the City entered into pursuant to this
    ordinance and the terms and conditions of the severance agreement.”
    Ordinance 2015-10 then provided for compensation upon termination under
    certain circumstances:
    If the Department Head or Key Employee’s employment is terminated
    by the City Commission Without Good Cause or by the Department
    Head or Key Employee With Good Reason during the employment
    period, the City Commission shall provide to the Employee the
    1
    The City is a Texas home rule city operating under a city charter that provides for
    the business of the City to be conducted by the mayor and four Commissioners.
    Galena Park charter art. IX, Sec. 1; Galena Park Code § 2-47.
    3
    accrued obligations, severance compensation and other benefits set
    forth in this ordinance and in the severance agreement of the parties.
    The Ordinance defined “Good Cause” as including “[w]illful or negligent failure to
    fulfill and perform the duties required by his job or employment,” and it defined
    “Voluntary termination for Good Reason” as including “any willful and deliberate
    action by the City Commission that creates a hostile work environment so as to
    make continued employment unbearable.” Severance benefits were not available
    for terminations by the City with Good Cause or “[i]n the event the Department
    Head or Key Employee voluntarily retires, becomes disabled and is unable to
    perform his required duties, or dies during his employment.”
    The Ordinance set out a method for determining the severance amount,
    stating that the amount should be a lump-sum payment consisting of “one month’s
    base wages for every year of service” but that “the total severance pay paid to such
    employee shall not exceed twenty-four (24) months.” The Ordinance also set out a
    procedure to “Contest and Appeal” a termination:
    G. Contest and Appeal of termination. (1) The Department Head or
    Key Employee may contest and appeal the decision of the City
    Commission to terminate his employment for “Good Cause” by
    requesting that the decision be submitted to an Arbitration Hearing
    before an independent hearing examiner or arbitrator within ten (10)
    days of such employee’s termination. The hearing examiner or
    arbitrator shall be selected and the hearing shall be held pursuant to
    the American Arbitration Association Rules and Regulations. (2) The
    City Commission may also contest and appeal the decision of the
    Department Head or Key Employee to terminate his employment for
    “Good Reason” by requesting that the decision be submitted to an
    4
    Arbitration Hearing before an independent hearing examiner within
    10 days of such employee’s delivery of his written notice to terminate
    his employment for “Good Reason” to the City Secretary of the City
    of Galena Park. The hearing examiner or arbitrator shall be selected
    and hearing shall be held pursuant to the American Arbitration
    Association Rules and Regulations.
    The Ordinance also contained a “Severance Agreement” provision:
    I. Severance Agreement[.] After the Department Head or Key
    Employee accumulates twenty (20) years of employment with the
    City, the City Commission will provide a formal Severance
    Agreement in such form as it may deem proper and in accordance
    with the terms and conditions of this ordinance. Such formal
    agreement must be agreed to and executed by the Department Head or
    Key Employee in order for such employee to be entitled to the
    benefits of severance pay provided in this ordinance.
    And the Ordinance contained a severability clause, providing that “any section,
    paragraph, sentence, clause, or phrase contained in this ordinance” that becomes
    illegal, null, or void could be severed and the remaining sections “shall not be
    affected thereby.”
    Ordinance 2015-10 was adopted by the then-sitting City Commission, but it
    was not signed by Mayor Mora. Rather, it was signed by Mayor Pro Tem Maricela
    Serna.
    On March 15, 2016, Pruett filed suit in federal court regarding Moya’s
    unsuccessful attempt to remove Pruett as City Administrator. He sought relief
    pursuant to the Age Discrimination in Employment Act and Title VII of the Civil
    Rights Act of 1964. These claims were ultimately dismissed.
    5
    In May 2016, Pruett and the four then-sitting Commissioners—Juan Flores,
    Maricela Serna, Cruz Hinojosa, Jr., and Danny Simms—signed a “Severance
    Agreement.” The purported Severance Agreement provided for Pruett to receive
    severance benefits as provided for in Ordinance 2015-10 if he resigned for good
    reason, and it contained a mandatory arbitration provision. However, the purported
    Severance Agreement was not presented to the City Commission as a formally
    convened body in an open meeting, nor was it voted on or approved by the Mayor.
    No public notice was given of a meeting to approve or ratify the purported
    Severance Agreement. The purported Severance Agreement was not signed by the
    Mayor, the City Secretary, or the City Attorney.
    On May 7, 2016, Flores, Serna, Hinojosa, and Sims lost their bids to be re-
    elected to the City Commission. In addition to the election of the new
    Commissioners—Rodney Chersky, Oscar Silva, Eric Broussard, and Barry
    Ponder—Mayor Moya was re-elected.
    Following this election, the City Commission provided the required notice of
    its next meeting, including an agenda. The agenda stated that the Commission
    would canvass the election results and swear in the new Commissioners. The
    agenda also included consideration and voting on proposed Ordinance 2016-01,
    which would rescind Ordinance 2015-10.
    6
    Pruett signed a resignation letter dated May 16, 2016. The resignation letter
    stated that his resignation would take effect at 5:00 pm on May 16, 2016. Pruett
    stated, “I have reviewed the city council agenda and it is clear to me that you have
    once again violated the Open Meetings Act with yet another walking quorum in an
    attempt to fire both me and Chief of Police John Rader and beat both of us out of
    the severance package that the City Council has previously approved.” Pruett
    identified other actions that he believed violated the City Charter and state law and
    stated, “For these and other reasons, I cannot in good conscience continue my
    employment with the City of Galena Park. Please immediately tender my
    severance package payment to my home address[.]”
    The City Commission accepted his resignation at the May 17, 2016 meeting.
    The Commission also passed Ordinance No. 2016-01, repealing Ordinance 2015-
    10. In adopting Ordinance 2016-01, the City Commission found that “[w]hen
    Ordinance 2015-10 was adopted, no provision was made to fund the benefits
    descried therein,” and that “the city commission believes that it is not in the public
    interest to provide the benefits described in Ordinance 2015-10.”
    On May 20, 2016, Pruett presented his purported Severance Agreement to
    the City by sending it to the City Secretary’s office. The document was added to
    his personnel file. On May 24, 2016, Pruett’s counsel sent a letter to the Mayor
    7
    demanding full severance benefits under Ordinance 2015-10 and requesting that
    the matter be arbitrated if the City refused.
    On May 31, 2016, the City commenced the underlying suit by filing its
    original petition “to Stay Arbitration.” In this petition, the City sought declaratory
    and injunctive relief.2 Pruett counter-petitioned, seeking a declaratory judgment
    that both Ordinance 2015-10 and the purported Severance Agreement were valid.
    Pruett further requested that “the Court determine and declare whether the
    conditions precedent to performance have been met under both Ordinance 2015-10
    and the severance agreement, such that Pruett would be entitled to severance
    benefits as provided in the Ordinance.” Pruett also alleged that the City breached
    its contract with him.
    The parties filed cross motions for summary judgment. Significant here, the
    City asserted that Ordinance 2015-10 was not valid.3 It argued that repealed
    Ordinance 2015-10 was not “self-executing” and that a written severance contract
    was required for any severance benefits to be authorized. The City further argued
    2
    The City’s petition was originally filed to prevent Pruett’s attempt to arbitrate the
    dispute between himself and the City. As the litigation progressed, the demand for
    arbitration was eventually dropped.
    3
    The City’s motion for summary judgment was filed in light of its efforts to prevent
    Pruett from arbitrating the dispute between the parties. Although its challenge to
    the validity of Ordinance 2015-10 and the purported Severance Agreement was
    phrased in terms of invalidating any agreement to arbitrate, the City’s arguments,
    as set out above, stated arguments generally applicable to the validity and
    enforceability of the Ordinance and the Severance Agreement.
    8
    that Ordinance 2015-10 was not validly adopted because it was signed by the
    Mayor Pro Tem rather than the Mayor and proper public notice was not given. The
    City further challenged the validity of the purported Severance Agreement. Pruett,
    in his motion for summary judgment, argued that both Ordinance 2015-10 and his
    Severance Agreement were valid and enforceable and entitled him to severance
    benefits.
    The trial court made several interlocutory rulings while these motions for
    summary judgment were pending. On February 13, 2020, the trial court signed an
    order resolving some of the issues raised in the motions for summary judgment.
    The order stated that the trial court “does not rule on the merits of the City’s
    motions, but instead finds that the City does not have standing” to challenge
    various aspects of the adoption of the Ordinance and purported Severance
    Agreement.
    Litigation continued between the parties, and on February 4, 2020, the trial
    court signed its “Agreed Amended Order Declaring [the purported Severance
    Agreement] Unenforceable.” This order stated, “On December 18, 2019, came on
    for consideration the validity of the severance agreement between the City of
    Galena Park and Robert Pruett arising from Ordinance No. 2015-10 and made the
    subject of this action.” The trial court “found the severance agreement to be void
    and unenforceable.”
    9
    On February 25, 2020, the trial court signed orders stating only that it
    granted the City’s motion for summary judgment and denied Pruett’s motion for
    summary judgment. These orders did not state the grounds for the trial court’s
    rulings, nor did they contain any declarations.
    Pruett subsequently filed a “Cross-motion for Attorney’s Fees and Entry of
    Final Judgment.” He sought attorney’s fees pursuant to the Declaratory Judgment
    Act (DJA). See TEX. CIV. PRAC. & REM. CODE § 37.009. The City likewise sought
    attorney’s fees pursuant to the DJA.
    The trial court rendered its final judgment on July 14, 2020. The final
    judgment stated, “This Court, recognizing its authority under [Chapter] 37 of the
    Texas Civil Practice & Remedies Code, decides not to exercise its discretion in
    awarding fees to any Party to this litigation. By signing this Order, the February
    25, 2020 Summary Judgment Order is final and appealable. All relief not granted
    by this Order is DENIED.” This appeal followed.
    Summary Judgment
    In his first issue, Pruett challenges the trial court’s judgment, rendered on the
    basis of the parties’ cross-motions for summary judgment.
    A.    Standard of Review
    Summary judgment is appropriate only when no genuine issue of material
    fact exists and the movant is entitled to judgment as a matter of law. TEX. R. CIV.
    10
    P. 166a(c). On cross-motions for summary judgment, “each party bears the burden
    of establishing that it is entitled to judgment as a matter of law.” Tarr v.
    Timberwood Park Owners Ass’n, 
    556 S.W.3d 274
    , 278 (Tex. 2018); Fallon v.
    Univ. of Tex. MD Anderson Cancer Ctr., 
    586 S.W.3d 37
    , 46 (Tex. App.—Houston
    [1st Dist.] 2019, no pet.). When both parties move for summary judgment and the
    trial court denies one motion but grants the other, we examine the summary-
    judgment evidence presented by each party, determine all issues presented, and
    render the judgment that the trial court should have rendered. Fallon, 586 S.W.3d
    at 46; Tarr, 556 S.W.3d at 278–79; Mann Frankfort Stein & Lipp Advisors, Inc. v.
    Fielding, 
    289 S.W.3d 844
    , 848 (Tex. 2009).
    B.    Construction of Ordinance 2015-10
    As part of his first issue challenging the trial court’s ruling granting the
    City’s motion for summary judgment and denying his own motion for summary
    judgment on his breach of contract claim, Pruett argues that the City “entered into
    a contractual agreement with [him] for a severance or retirement package in the
    event he should be fired or should resign for good cause” and that this agreement
    was “memorialized, not created, or was confirmed and independently created, by
    the passage of a City ordinance: No. 2015-10.” Pruett argues that “[t]he Ordinance
    created, by its very passage, a valid and subsisting contract between the City and
    [Pruett].”
    11
    The City challenges this assertion, arguing in relevant part that the
    Ordinance did not create a binding obligation on the City. In its motion for
    summary judgment, the City argues that Ordinance 2015-10 was “not a stand-alone
    contract and create[d] no self-executing obligation against the City.” Rather, the
    City argued that the Ordinance “was intended to amend the City’s Personnel Policy
    to authorize the Commission to enter into severance agreements with eligible
    employees,” and the Ordinance required that the City Commission “must still enter
    separate, written severance agreements with eligible employees in a form [it]
    deemed proper.” In its brief on appeal, the City cites these arguments to support its
    contention that the trial court’s judgment based on the parties’ cross-motions for
    summary judgment was proper.
    We agree with the City that Ordinance 2015-10 cannot be construed as a
    stand-alone contract for the City to pay Pruett severance benefits.
    In construing municipal ordinances, we apply the same rules that govern the
    construction of state statutes. Powell v. City of Hous., 
    628 S.W.3d 838
    , 842 (Tex.
    2021); Hotze v. Turner, 
    634 S.W.3d 508
    , 515 (Tex. App.—Houston [14th Dist.]
    2021, pet. filed). The proper construction of an ordinance is a question of law we
    review de novo. Powell, 628 S.W.3d at 842. “In construing a municipal ordinance,
    we seek to determine and give effect to the intent of the governing body of the
    municipality.” Hotze, 634 S.W.3d at 515. “We ascertain that intent from the
    12
    language the governing body used in the ordinance—if the meaning of the
    ordinance’s language is unambiguous, we adopt the interpretation supported by the
    plain meaning of the provision’s words.” Id. “We must not engage in forced or
    strained construction; instead, we must yield to the plain sense of the words the
    governing body chose.” Id.
    Pruett argues that Ordinance 2015-10 is an enforceable contract for
    severance pay, citing City of Houston v. Williams. In Williams, the Supreme Court
    of Texas addressed whether a lawsuit by 540 former Houston Firefighters against
    the City of Houston for underpayment of lump-sum severance benefits was barred
    by governmental immunity. 
    353 S.W.3d 128
    , 131–32 (Tex. 2011). The Firefighters
    relied on Local Government Code section 271.152, waiving governmental
    immunity for certain suits alleging breach of written contract, arguing that certain
    City of Houston ordinances and three agreements negotiated between the
    Firefighters’ union and the City constituted written agreements that fell within
    section 271.152’s waiver. 
    Id.
     In this context, the supreme court considered whether
    certain City of Houston ordinances constituted a unilateral employment contract.
    
    Id.
     at 135–36.
    The Williams court concluded, “[I]n some circumstances, an ordinance or
    group of ordinances can constitute a unilateral contract.” Id. at 136. The court
    outlined the specific provisions contained in the City of Houston ordinances that
    13
    constituted the terms of the agreement of the City of Houston to pay certain
    benefits to its Firefighters, and it concluded that the ordinances in that case
    comprised a contract:
    “A promise, acceptance of which will form a contract, ‘is a
    manifestation of intention to act or refrain from acting in a specified
    way, so made as to justify a promisee in understanding that a
    commitment has been made.’” Montgomery Cnty. Hosp. Dist. v.
    Brown, 
    965 S.W.2d 501
    , 502 (Tex. 1998) (quoting RESTATEMENT
    (SECOND) OF CONTRACTS § 2(1)). The City manifested its intention to
    act in a specific way in the Ordinances by its extensive use of the
    word “shall” and similar provisions that make the benefits offered to
    the Firefighters mandatory upon performance.
    Id. at 138 (footnote omitted); see also Saifi v. City of Texas City, No. 14-13-00815-
    CV, 
    2015 WL 1843540
    , at *5–6 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015,
    no pet.) (mem. op.).
    Thus, courts look to the terms of the ordinance itself to determine whether
    the ordinance constituted an agreement. See Saifi, 
    2015 WL 1843540
    , at *5
    (analyzing Williams opinion and stating, “After examining the ordinances in detail,
    the court determined that the ordinances constituted a unilateral employment
    contract with the city”); see also Williams, 353 S.W.3d at 136–37 (discussing
    general standing ordinances as unilateral contracts and citing cases such as S.
    Union Co. v. City of Edinberg, 
    129 S.W.3d 74
    , 76 (Tex. 2003) (construing city’s
    ordinance that “embodied” franchise agreement between municipality and gas
    company as contract and discerning from it parties’ intent and scope of their
    14
    respective obligations) and Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 
    22 S.W.3d 831
    , 840–41 (Tex. 2000) (construing two ordinances and related
    documents together as single agreement)).
    Looking to the plain language of Ordinance 2015-10, we conclude that it is
    distinguishable from the ordinances in Williams. We disagree with Pruett’s
    contention that the Ordinance, by itself, constitutes a contract promising him
    severance pay. Ordinance 2015-10 provided for severance compensation upon
    termination under certain circumstances, in accordance with the terms of the
    ordinance itself and a formal- severance agreement:
    If the Department Head or Key Employee’s employment is terminated
    by the City Commission Without Good Cause or by the Department
    Head or Key Employee With Good Reason during the employment
    period, the City Commission shall provide to the Employee the
    accrued obligations, severance compensation and other benefits set
    forth in this ordinance and in the severance agreement of the parties.
    (Emphasis added.) The Ordinance defined “Severance Agreement” as “the
    agreement between the covered employee and the City entered into pursuant to this
    ordinance and the terms and conditions of the severance agreement.” And the
    Ordinance contained a “Severance Agreement” provision:
    I. Severance Agreement[.] After the Department Head or Key
    Employee accumulates twenty (20) years of employment with the
    City, the City Commission will provide a formal Severance
    Agreement in such form as it may deem proper and in accordance
    with the terms and conditions of this ordinance. Such formal
    agreement must be agreed to and executed by the Department Head or
    15
    Key Employee in order for such employee to be entitled to the
    benefits of severance pay provided in this ordinance.
    By its plain language, Ordinance 2015-10 contemplates the creation of a
    severance agreement for individual employees who would qualify for severance
    benefits under the ordinance. And it provided that such an agreement would be
    created by the City Commission “in such form as [the Commission] may deem
    proper” and that the formal agreement “must be agreed to and executed by the
    Department Head . . . in order for such employee to be entitled to the benefits of
    severance pay provided in this ordinance.” Thus, although Pruett argues that
    Ordinance 2015-10 “created a present right, one not contingent upon any future
    occurrence or condition precedent other than the resignation for good cause by
    [Pruett],” the Ordinance itself indicates that that the payment of severance benefits
    was contingent upon the creation and execution of a formal severance agreement.
    We conclude that the Ordinance, by itself, did not entitle Pruett to severance
    pay. By its plain language, a formal severance agreement created according to the
    terms of the Ordinance and properly executed by the parties was required. The trial
    court rendered an interlocutory order, based on the agreement of the parties,
    concluding that the purported Severance Agreement—the only such agreement
    presented in the summary judgment record—was void and unenforceable. That
    ruling is not challenged on appeal. Because no valid and enforceable severance
    agreement exists between the parties, Pruett cannot prevail on his claim that the
    16
    City owed him severance pay as a matter of law. Thus, the trial court properly
    rendered judgment based on the cross-motions for summary judgment.
    Pruett asserts several other arguments in support of his breach of contract
    claim that are also unavailing. He argues that the “failure of the severance
    agreement does not invalidate the Ordinance,” pointing to the Ordinance’s
    severability clause which provides:
    J. Severability. If any section, paragraph, sentence, clause or phrase
    contained in this ordinance shall become illegal, null, or void, or shall
    be found to be against public policy or contrary to state or federal law,
    for any reason, or shall be held by any court of competent jurisdiction
    to be illegal, null or void, the remaining sections, paragraphs,
    sentences, clauses or phrases contained in this ordinance shall not be
    affected thereby.
    Pruett argues that “if the terms relating to the severance agreement are excised
    from the ordinance,” then “the remaining sections leave a valid and complete
    ordinance.”
    This argument misapplies the intent behind the severability clause.
    “Severability is determined by the intent of the parties as evidenced by the
    language in the contract.” Ross v. Union Carbide Corp., 
    296 S.W.3d 206
    , 218
    (Tex. App.—Houston [14th Dist.] 2009, pet. denied). If a portion of the ordinance
    is determined to be unlawful or void, severing the remaining provisions may be
    proper “[i]f, when the [unlawful] portion is stricken out, that which remains is
    complete in itself, and capable of being executed in accordance with the apparent
    17
    legislative intent, wholly independent of that which was rejected. . . .” Rose v.
    Doctors Hosp., 
    801 S.W.2d 841
    , 844 (Tex. 1990). Here, however, no portion of
    Ordinance 2015-10 has been declared unlawful; rather, we have determined that
    the Ordinance as written did not, by itself, entitle Pruett to severance benefits. The
    severability clause cannot be used here to waive the requirement of a validly
    created and properly executed formal severance agreement.
    Pruett further argues that the City’s failure to secure a severance agreement
    should not excuse it from payment of the severance benefits. Pruett argues,
    “Generally, a party who ‘prevents or makes impossible’ the occurrence of a
    condition precedent upon which its liability under a contract depends cannot rely
    on the nonoccurrence to escape liability.” See SLT Dealer Grp., Ltd. v.
    AmeriCredit Fin’l Servs., Inc., 
    336 S.W.3d 822
    , 831 (Tex. App.—Houston [1st
    Dist.] 2011, no pet.) (“As a general rule, ‘one who prevents or makes impossible
    the performance of a condition precedent upon which his liability under a contract
    is made to depend cannot avail himself of its nonperformance.’”); Clear Lake City
    Water Auth. v. Friendswood Dev. Co., 
    344 S.W.3d 514
    , 519–520 (Tex. App.—
    Houston [14th Dist.] 2011, pet. denied) (opinion on remand). Pruett argues that
    “because the severance agreement is void for non-execution by the City, the City
    Council failed to perform its duties under the ordinance.”
    18
    The cases cited by Pruett involve circumstances in which one party was
    contractually obligated to perform certain “conditions precedent”—“conditions”
    that were more properly construed as “covenants.” This Court in SLT Dealer
    Group recognized that “[c]onditions precedent may be either a condition to the
    formation of a contract or an obligation to perform an existing agreement.” 
    336 S.W.3d at 830
    . We concluded in that case that the requirement that the appellee
    perfect a security interest in favor of the appellant “read in conjunction with the
    rest of the provisions” in the parties’ agreement created “a covenant, not a
    condition.” 
    Id.
    Similarly, in Clear Lake City Water Authority, the Fourteenth Court of
    Appeals considered an agreement between the water authority and a development
    company in which the authority agreed to purchase the developers’ facilities
    subject to voter approval. 
    344 S.W.3d at
    519–20. The court held that the water
    authority’s failure to submit the required bond measure in the election did not
    excuse its performance. 
    Id.
     (holding that water authority could not rely on
    projected failure of voter approval to escape its liability to purchase developers’
    facilities).
    In contrast, here, we have already rejected Pruett’s view that the Ordinance,
    standing alone, constituted an agreement of the City to provide him with severance
    benefits. As discussed above, the Ordinance set out conditions under which the
    19
    City could enter into severance agreements with certain employees. The City never
    entered into a valid severance agreement with Pruett prior to his resignation and
    the City’s subsequent repeal of Ordinance 2015-10. Pruett has thus failed to show
    he was entitled to relief on this basis.
    We overrule Pruett’s challenge to the trial court’s summary-judgment
    rulings.
    Attorney’s Fees & Costs
    In his second issue, Pruett argues that the trial court erred in denying his
    request for attorney’s fees. He asserts that he was entitled to fees on his breach of
    contract claim and pursuant to the DJA. However, he was not a prevailing party on
    his breach of contract claim and thus is not entitled to attorney’s fees on that basis.
    See TEX. CIV. PRAC. & REM. CODE § 38.001(b)(8); Peterson Grp., Inc. v. PLTQ
    Lotus Grp., L.P., 
    417 S.W.3d 46
    , 60 (Tex. App.—Houston [1st Dist.] 2013, pet.
    denied) (recognizing that to obtain attorney’s fees pursuant to section 38.001, party
    must prevail on appropriate cause of action and recover damages).
    Pruett also argues that he prevailed in the declaratory judgment action
    because the City never obtained declaratory relief, and, thus, he was entitled to his
    attorney’s fees under Civil Practice and Remedies Code section 37.009. We
    observe, however, that the trial court granted the City’s motion for summary
    20
    judgment and denied Pruett’s. The trial court further stated that it declined to
    award attorney’s fees to either party in this case.
    The DJA provides that the trial court “may award costs and reasonable and
    necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE
    § 37.009. Thus, “the Declaratory Judgments Act allows fee awards to either party
    in all cases.” MBM Fin. Corp. v. Woodlands Operating Co., L.P., 
    292 S.W.3d 660
    ,
    669 (Tex. 2009). The award of attorney’s fees under the DJA is left to the
    discretion of the trial court and is not dependent on a finding that the party
    “substantially prevailed.” See Barshop v. Medina Cty. Underground Water
    Conservation Dist., 
    925 S.W.2d 618
    , 637 (Tex. 1996); Feldman v. KPMG LLP,
    
    438 S.W.3d 678
    , 685 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“Under
    section 37.009, a trial court may exercise its discretion to award attorneys’ fees to
    the prevailing party, the nonprevailing party, or neither.”). Given this broad grant
    of discretion and the facts of this case—including the nature of the dispute between
    the City and Pruett and the fact that the trial court denied Pruett’s motion for
    summary judgment and granted the City’s motion for summary judgment—we
    cannot say that the trial court abused its discretion in declining to award Pruett
    attorney’s fees. See Feldman, 438 S.W.3d at 685.
    Pruett also argues that he was entitled to recover costs pursuant to Rule of
    Civil Procedure 131. See TEX. R. CIV. P. 131 (“The successful party to a suit shall
    21
    recover of his adversary all costs incurred therein, except where otherwise
    provided.”). The trial court’s judgment did not address costs, and as noted above,
    Pruett cannot be considered the successful party. See Fortitude Energy, LLC v.
    Sooner Pipe LLC, 
    564 S.W.3d 167
    , 189–90 (Tex. App.—Houston [1st Dist.] 2018,
    no pet.) (holding that “successful party” is “one who obtains judgment of a
    competent court vindicating a civil right or claim”); Henry v. Masson, 
    453 S.W.3d 43
    , 50–51 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding that when party
    alleges counterclaim, “if neither party is wholly successful on its claims, it is
    within the trial court’s discretion to order each party to bear its own costs”); see
    also Durant v. Anderson, No. 02-14-00283-CV, 
    2020 WL 1295058
    , at *36 (Tex.
    App.—Fort Worth Mar. 19, 2020, pet. denied) (mem. op.) (“The plain language of
    Rule 131 does not expressly require an allocation of costs between unsuccessful
    parties.”).
    We overrule Pruett’s challenge to the trial court’s decision to deny his
    request for attorney’s fees and costs.
    Conclusion
    We affirm the judgment of the trial court.
    Richard Hightower
    Justice
    Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
    22
    

Document Info

Docket Number: 01-20-00521-CV

Filed Date: 7/12/2022

Precedential Status: Precedential

Modified Date: 7/18/2022