Robert Holmes v. Craig Cassel

Opinion issued August 8, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00114-CV
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ROBERT HOLMES, Appellant
V.
CRAIG CASSEL, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 938067-003
MEMORANDUM OPINION
Appellant Robert Holmes appeals from the trial court’s grant of summary
judgment in favor of appellee Craig Cassel. This suit began as a condemnation suit
against Holmes, Cassel, and others regarding a tract of land in Houston. Proceeds
from the condemnation sale were deposited into the registry of the court. Holmes
and Cassel filed cross-claims against each other, with each arguing that he was
entitled to the proceeds. Cassel moved for summary judgment on Holmes’s cross-
claim. The court granted Cassel’s motion and awarded him the condemnation
proceeds and attorney’s fees.
Holmes raises two issues on appeal. First, he challenges the trial court’s
award of attorney’s fees. Second, he contends that the trial court erred by granting
summary judgment because unresolved fact issues remained about his claims of
waiver and estoppel.
Because the trial court did not err by awarding Cassel attorney’s fees, and
Holmes failed to adequately brief his challenge to the summary judgment, we
affirm the judgment of the trial court.
Background
In 1995, taxing authorities initiated tax-deficiency proceedings involving
property located at 5405 Griggs Road in Houston. At the time that the 1995 tax suit
was filed, appellant Robert Holmes allegedly owned an undivided one-half interest
in the property, based on a deed recorded in 1983. Holmes was not named in the
tax suit, nor was he served with citation. In 1996, the trial court issued a final
judgment in the tax suit, in favor of the taxing authorities. Holmes was not named
in the judgment. In 2003, an order of sale was issued on the property. Craig Cassel
purchased the property at the tax sale, and he took possession of it.
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The Metropolitan Transit Authority of Harris County (“Metro”) filed suit in
Harris County Civil Court at Law No. 4 to condemn a portion of the property, and
it named Holmes and Cassel as possible owners. Metro then deposited the
condemnation proceeds into the court’s registry. Cassel and Holmes both claimed
to own the proceeds.
Holmes filed a cross-claim against Cassel in the condemnation case seeking
to quiet title to the property and to obtain a declaration that he had a one-half
ownership interest in the property. Based on this claim, Holmes sought an award of
one-half of the condemnation proceeds and attorney’s fees.
Cassel answered Holmes’s cross-claim with a general denial. He asserted as
affirmative defenses a statute of limitations under the Tax Code and Holmes’s
failure to comply with statutory prerequisites to filing suit. Cassel also cross-
claimed, seeking contribution for money spent for the benefit of the common estate
to the extent that Holmes owned a one-half interest in the property. Cassel
requested an award of attorney’s fees arising out of his defense against Holmes’s
declaratory-judgment cross-claim.
Cassel and Holmes both filed motions for partial summary judgment on
Cassel’s limitations defense. In his response to Cassel’s motion, Holmes argued
that Cassel was estopped from asserting the limitations defense and that he had
waived his right to contest Holmes’s ownership of the property. Holmes alleged
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that Cassel requested that he pay half of the taxes on the property, and he did so.
Holmes contended that his payment of the taxes estopped Cassel from asserting his
limitations defense. He also argued that Cassel’s acts in directing him to pay half
of the taxes were intentional conduct inconsistent with Cassel’s interest in the
disputed property. Thus, Holmes argued that Cassel waived the right to challenge
his interest in the property. There is no indication in the record that the court ruled
on these motions.
While the condemnation case was pending, Holmes filed a separate suit in
the 80th District Court of Harris County against Cassel and the taxing authorities
who had initiated the tax deficiency proceedings on the property in 1995. In that
suit, Holmes argued that because he was not named in the tax suit or the judgment,
the judgment was void as to his one-half interest in the property, and he sought a
declaration to that effect. Cassel answered with a general denial and asserted the
same affirmative defenses as in the condemnation case. He also added the
affirmative defense of adverse possession. Cassel moved for summary judgment on
all three of his affirmative defenses, and the district court granted the motion. The
district court found that Holmes’s claims were barred and declared that all title and
interest in the property vested in Cassel.
After the district court rendered judgment, Cassel filed his fourth amended
answer to Holmes’s cross-claim in the condemnation case, adding the affirmative
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defenses of res judicata and collateral estoppel based on the district court’s
judgment. Cassel then moved for summary judgment on these affirmative
defenses. Meanwhile, Holmes appealed the district court’s judgment. The
Fourteenth Court of Appeals affirmed, the Supreme Court of Texas denied his
petition for review, and the United States Supreme Court denied his petition for
writ of certiorari. Holmes v. Cassel, No. 14-12-00964-CV, 2013 WL 5497871
(Tex. App.—Houston [14th Dist.] Aug. 15, 2013, pet. denied) (mem. op.), cert.
denied, 135 S. Ct. 1900 (2015).
After Holmes exhausted his appeals, Cassel reurged his motion for summary
judgment in the condemnation case, based on his affirmative defenses of res
judicata and collateral estoppel. He sought attorney’s fees and attached supporting
evidence. Cassel also amended his cross-claim against Holmes. He sought a
declaratory judgment declaring that Holmes’s cross-claim was barred by res
judicata and collateral estoppel. Cassel also sought attorney’s fees under the
Declaratory Judgment Act. Holmes amended his claim to allege that his payment
of taxes on the property unjustly enriched Cassel. In a response to the claim for
unjust enrichment, Cassel admitted that Holmes should not have paid the taxes and
argued that the court should reduce Cassel’s recovery of attorney’s fees by the
amount of taxes paid.
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The trial court granted Cassel’s motion for summary judgment. The
judgment stated:
The Court finds there is no genuine issue of material fact as to
[Cassel’s] affirmative defenses of collateral estoppel and res judicata
to the cross-claims of Robert Holmes and Craig Cassel is entitled to
summary judgment thereon as a matter of law.
The judgment awarded Cassel the remaining condemnation proceeds in the registry
of the court in the amount of $58,652.83. After offsetting the amount of attorney’s
fees by the amount of taxes Holmes paid, the judgment awarded Cassel $45,911.49
in attorney’s fees.
Holmes filed a motion for new trial. In this motion he challenged the award
of attorney’s fees and argued that fact issues remained about his claims of waiver
and estoppel. The trial court denied this motion.
Holmes appealed.
Analysis
Holmes raises two issues on appeal. First, he challenges the trial court’s
award of attorney’s fees to Cassel. Second, he contends that the trial court erred by
granting summary judgment in favor of Cassel because issues of fact remained
regarding his claims of waiver and estoppel.
I. Attorney’s fees
In his first issue, Holmes contends that the trial court erred by awarding
attorney’s fees because (a) Cassel did not assert a claim for affirmative relief with
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his cross-claim under the declaratory judgment act, (b) he did not segregate his
fees, (c) the trial court made no judgment as to title or limitations, (d) the award of
attorney’s fees is neither just nor equitable, and (e) a recovery of attorney’s fees
pursuant to a limitations claim is not allowed.
a. Cassel’s lack of a claim for affirmative relief
Holmes initially argues that the trial court erred by awarding attorney’s fees
because Cassel’s cross-claim seeking a declaratory judgment did not raise a claim
for affirmative relief.
In “any proceeding” under the Uniform Declaratory Judgment Act, “the
court may award costs and reasonable and necessary attorney’s fees as are
equitable and just.” TEX. CIV. PRAC. & REM. CODE § 37.009. The Act “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.” Feldman v. KPMG LLP, 438 S.W.3d 678, 685 (Tex. App.—Houston [1st
Dist.] 2014, no pet.). “Unreasonable fees cannot be awarded, even if the court
believed them just, but the court may conclude that it is not equitable or just to
award even reasonable and necessary fees.” Id.
The award of attorney’s fees is not dependent on a finding that the party
“substantially prevailed.” Barshop v. Medina Cty. Underground Water
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Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996). Instead, a trial court may
exercise its discretion to award attorney’s fees to the prevailing party, the
nonprevailing party, or neither. See id.; Feldman, 438 S.W.3d at 685. Thus, a trial
court’s decision concerning the grant or denial of attorney’s fees will not be
reversed on appeal absent a showing of an abuse of discretion. Ryan v. Abdel–
Salam, 39 S.W.3d 332, 337 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). “It
is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or
without regard to guiding legal principles.” See Bocquet v. Herring, 972 S.W.2d
19, 21 (Tex. 1998). We will uphold a trial court’s judgment if it can be sustained
on any legal theory supported by the evidence. See Zenner v. Lone Star Striping &
Paving, L.L.C., 371 S.W.3d 311, 314–15 (Tex. App.—Houston [1st Dist.] 2012,
pet. denied).
Holmes relies upon BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex.
1990), which held that the “declaratory judgments act is ‘not available to settle
disputes already pending before a court.’” 800 S.W.2d at 841 (quoting Heritage
Life v. Heritage Grp. Holding, 751 S.W.2d 229, 235 (Tex. App.—Dallas 1988,
writ denied)). As such, a party cannot assert a counterclaim for declaratory relief
and attorney’s fees based on mere denials of the opposing party’s cause of action.
Id. at 841–42. Holmes essentially contends that Cassel’s cross-claim for
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declaratory relief based on the affirmative defense of res judicata is the same as a
counter-claim that merely denies the opponent’s cause of action.
Even to the extent Holmes has correctly characterized Cassel’s cross-claim,
the fact remains that he himself sought a declaratory judgment. In his cross-claim
against Cassel, Holmes sought a declaration that he owned a one-half interest in
the property. When a claimant, like Holmes, has invoked the declaratory judgment
statute, either party may plead for and obtain attorney’s fees. See Knighton v. Int’l
Bus. Machines Corp., 856 S.W.2d 206, 210 (Tex. App.—Houston [1st Dist.] 1993,
writ denied). The availability of attorney’s fees is not limited to the plaintiff or the
party affirmatively seeking declaratory relief. Hartford Casualty Ins. Co. v. Budget
Rent-a-Car, 796 S.W.2d 763, 771 (Tex. App.—Dallas 1990, writ denied).
Because Holmes sought declaratory relief and Cassel pleaded for attorney’s
fees, the trial court had discretion to award the fees. See Feldman, 438 S.W.3d at
685–86; Knighton, 856 S.W.2d at 210.
b. Segregation of fees
Holmes argues that Cassel was obligated to segregate his attorney’s fees
attributable to other causes of action. “A party may recover attorney’s fees only if
provided for by statute or by contract.” Gulf States Utils. Co. v. Low, 79 S.W.3d
561, 567 (Tex. 2002). Parties seeking attorney’s fees under Texas law “have
always been required to segregate fees between claims for which they are
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recoverable and claims for which they are not.” See Tony Gullo Motors I, L.P. v.
Chapa, 212 S.W.3d 299, 311 (Tex. 2006).
The only claims pending before the court were the opposing cross-claims for
declaratory relief, and Metro’s condemnation claims against each of them. Cassel’s
motion for summary judgment was supported by evidence of the fees that he
sought to recover. In their affidavits, Cassel’s attorneys averred that the fees
resulted from litigating the mutual cross-claims between Cassel and Holmes. The
fees request excluded any time spent litigating the condemnation action against
Metro. Further, the fees requested only included time spent on the dispute with
Holmes in the condemnation case and did not include time spent litigating in the
district court.
Because the trial court may award attorney’s fees to either the prevailing or
nonprevailing party under the declaratory judgment act, the court could award
Cassel attorney’s fees for defending against Holmes’s declaratory-judgment action.
See TEX. CIV. PRAC. & REM. CODE § 37.009; Feldman, 438 S.W.3d at 687–88.
Thus, because Cassel’s attorneys segregated the fees they sought for their work on
the cross-claims between Holmes and Cassel from the defense against Metro’s
claims, they properly segregated their fees. See Feldman, 438 S.W.3d at 687–88.
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c. No judgment as to title or limitations
Holmes argues that Cassel was not entitled to attorney’s fees because the
trial court did not make a declaration quieting title or about the applicability of
limitations when it granted summary judgment based on res judicata. Despite the
fact that the trial court did not clearly rule on the merits of either party’s
declaratory judgment, the declaratory judgment statute does not require a judgment
on the merits of the dispute as a prerequisite to a fee award. See Feldman, 438
S.W.3d at 685; Castro v. McNabb, 319 S.W.3d 721, 736 (Tex. App.—El Paso
2009, no pet.). Thus, the court’s lack of a declaration of title or limitations did not
preclude Cassel from recovering attorney’s fees.
d. Equitable and just fees
Holmes argues that the attorney’s fees awarded to Cassel were not equitable
or just because he did not initiate the condemnation proceedings, but was added to
the suit as a defendant by Metro.
Attorney’s fees under the declaratory judgment act must be equitable and
just. See Feldman, 438 S.W.3d at 685. Whether attorney’s fees are equitable and
just is a question of law for the court. See id.
Cassel’s motion for summary judgment was supported by evidence which
identified the basis for the fee request. The court found these fees to be reasonable
and necessary. Holmes argues that he was simply named in this lawsuit as a
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defendant and it would be unjust to force him to pay these fees. But if Holmes did
not want to participate in the litigation, he could have defaulted or disclaimed any
interest in the condemnation proceeds. Instead, he actively sought an award of the
condemnation proceeds. Accordingly, he now cannot claim that he was forced into
litigating. Furthermore, Cassel prevailed in defending against Holmes’s affirmative
claim for declaratory judgment.
Because Cassel prevailed, and Holmes did not have to actively engage in the
suit by seeking an award of the condemnation proceeds, we conclude that the trial
court did not abuse its discretion by implicitly determining that the award of
attorney’s fees was equitable and just. See Bocquet, 972 S.W.2d at 21; Feldman,
438 S.W.3d at 686.
It was within the trial court’s discretion to award attorney’s fees to Cassel
based on successfully defending against Holmes’s claim for declaratory judgment.
The fees were properly segregated. The court did not have to rule on the merits of
Holmes’s cross-claim. The fees were equitable and just. We thus conclude that the
trial court did not abuse its discretion in awarding attorney’s fees to Cassel. See
Feldman, 438 S.W.3d at 685; Knighton, 856 S.W.2d at 210–11.
e. Attorney’s fees based on limitations
Finally, Holmes contends that the Cassel could not recover attorney’s fees
pursuant to a limitations defense. We need not address this issue, however, because
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we have found that the trial court had discretion to award Cassel attorney’s fees
pursuant to the declaratory judgment act. See TEX. R. APP. P. 47.1. We overrule
Holmes’s first issue.
II. Summary judgment
In his second issue, Holmes contends that the trial court erred by granting
summary judgment in Cassel’s favor. Holmes argues that fact issues remain
regarding his claims of waiver and estoppel, and he suggests that the trial court’s
judgment supports his claim that Cassel is estopped from contesting Holmes’s
ownership interest in the property. Holmes presents no legal argument, citations to
the record, or legal authorities in support of this argument.
An appellant’s brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record. TEX.
R. APP. P. 38.1(i). This requirement is not satisfied by conclusory statements. See
Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 650 (Tex. App.—Houston
[1st Dist.] 2015, no pet.). A failure to provide substantive analysis of an issue or
citations to appropriate authority waives the complaint. See Cervantes–Peterson v.
Tex. Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
Holmes states in his brief that he properly pleaded his claims of waiver and
estoppel, yet he provides no citation to the record indicating where this pleading is
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located. Holmes did raise a waiver or estoppel argument in a response to a partial
motion for summary judgment filed by Cassel on his affirmative defense of
limitations and in his motion for new trial. There is no indication in the record that
the trial court ruled on Cassel’s motion for partial summary judgment or that
Holmes raised these arguments again until his motion for new trial.
On appeal, Holmes argues that Cassel is estopped from contesting his
ownership interest in the property because he paid taxes on the property at Cassel’s
direction. The record indicates that Holmes paid some of the taxes on the property,
and he claimed that Cassel had been enriched unjustly once it was declared that he
had no interest in the property. As a result of Holmes’s claim for unjust
enrichment, the trial court granted him an offset reducing the amount of Cassel’s
attorney’s fee award by the amount of the taxes he paid. Holmes does not provide
any legal authority that support his argument that Cassel would be estopped from
contesting his ownership interest based on these actions. In addition, Holmes does
not explain or provide any argument regarding his alleged claim of waiver.
Because Holmes failed to provide substantive legal analysis and citations to
authority to support his contentions, we hold that he waived this issue due to
inadequate briefing. See TEX. R. APP. P. 38.1(i); Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court may deem issues
waived due to inadequate briefing). We overrule this issue.
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Conclusion
We affirm the trial court’s judgment.
Michael Massengale
Justice
Panel consists of Justices Jennings, Higley, and Massengale.
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