law-DJA | Uniform Declaratory Judgments Act (UDJA) | declaratory relief | determination of validity
Etan Industries, Inc. v. Lehmann, No. 10-0318 (Tex. Dec. 16, 2011)(per curiam opinion)
(limitations bar, propriety of declaratory relief, award of attorney's fees on declaratory judgment claim,
Defendant Etan Industries, Inc. contends that the tort claims against it are barred by the two year statute
of limitations. It also argues that the declaratory judgment against it was unwarranted.
We agree and accordingly reverse and render judgment for Etan.
We agree with Etan that the Lehmanns’ common-law tort claims were barred by limitations. Etan argues
that the claims for declaratory judgment were moot because Etan had removed its lines from the
Lehmanns’ properties prior to trial. We agree. We have recently noted that a request for declaratory
judgment is moot if the claim presents “no live controversy.” Tex. A & M
Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011).
Declaratory Judgment Cases & Caselaw
In his third issue, Elkins asserts the trial judge erred in failing to grant a declaratory judgment that Capital
One had violated the credit card agreement. There is no basis for declaratory relief when in the same
action a party seeks a different, enforceable remedy, and a judicial declaration would add nothing to
what would be implicit or express in a final judgment for the enforceable remedy. Universal Printing Co. v.
Premier Vacation Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).
08-0230 RODNEY ELKINS v. CAPITAL ONE BANK AND CAPITAL ONE SERVICES, INC.; from Dallas
County; 5th district (05-06-01539-CV, ___ SW3d ___, 01-29-08, pet. denied Jun 2008) (credit card debt
suit, breach of contract)
SHARON SWANK BACKHUS, BENJAMIN F. SWANK, III, SHANNON LEA WERCHAN PICKERING, SWANK
TURNER BACKHUS, BENJAMIN FONTAINE SWANK, IV, CHRISTIAN HARRIS SWANK AND SUZANNE
SWANK PORTER v. HAVEN LYNN WERCHAN WISNOSKI AND SHANE ALAN WERCHAN; from Grimes
County; 1st district (01-07-00041-CV, ___ SW3d ___, 03-13-08)
Backhus v. Werchan Wisnoski (Tex.App. - Houston [1st Dist.] Mar. 13, 2008, pet. denied Aug 2008)
(Nuchia) (probate law, construction of will, real estate law, partition of land)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
This is an appeal from a declaratory judgment action. Appellants sought a judicial declaration that the
partition of certain lands inherited by life tenants, Sharon Swank Bacchus and Benjamin F. Swank, III ("B.
F."), was valid and binding on all parties.
Tex. Civ. Prac. & Rem. Code § 37.006(a) (providing that a declaratory judgment “does not prejudice the
rights of a person not a party to the proceeding”); see, e.g., Brooks v. Northglen Ass’n, 141 S.W.3d 158,
163 (Tex. 2004).
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