Civ. Ins. New Orleans, LA 70130 App.San Antonio 1965), affd, 396 S.W.2d 855 (holding state court had no jurisdiction to render advisory opinion while prior suit was pending on appeal in Fifth Circuit, despite federal courts voluntary stay). A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolvent may have a declaration of rights or legal relations in respect to the trust or estate: (1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others; (2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; (3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings; or. . The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. Ins. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. Group, Inc., 946 F.Supp. App.Houston [14th Dist.] Co. of Texas, 1998 Tex. APP. See Farmers Tex. 4 . (B) A contract may be construed either before or after there has been a breach. <> 2201-2202 . App.Houston 1965, writ refd n.r.e.) 959, Sec. The firm's new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112. . Rule 166a - Summary Judgment. 168 0 obj <>/Filter/FlateDecode/ID[<9A8DD3395C28F34D981E9CD96490FD9D>]/Index[140 50]/Info 139 0 R/Length 129/Prev 481282/Root 141 0 R/Size 190/Type/XRef/W[1 3 1]>>stream The author would like to thank the Texas Tech Law School Foundation for its generous support. . See Great American Ins. Copyright 2013 - 2023. 1993); Trinity Univ. The application must be by petition to a court having jurisdiction to grant the relief. DEFINITION. 11 0 obj 1997), the Supreme Court reaffirmed the complaint allegation rule, with dicta suggesting that the exception for extrinsic evidence would be narrowed. hb```c`` AX,$)00(IrZ Ny d3Vttt00 In Bradleys Electric, the court rejected an argument from the insured that the county where the insurance contract was negotiated and executed was the only proper venue, but recognized it was also proper. The Texas Civil Practice and Remedies Code Section 37.005. provides that: & REM. Sec. Uniform Declaratory Judgment Act A party to a declaratory judgment claim may recover "reasonable and necessary attorney's fees as are equitable and just" under the Uniform Declaratory Judgment Act (UDJA), which is codified in Chapter 37 of the Texas Civil Practice and Remedies Code. App.Waco 1943, no writ); Superior Ins. [i]Since the state requires that you file some sort of lawsuit to protect your rights and time to your child and your property, and most state statutes authorize the use of state power to affect these rights, you should consider using declaratory judgment to establish what process and procedure your court will use to protect you and your child from the harm of a court completely ignoring process and procedure required for fundamental rights. 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. See, e.g., Ruth v. Imperial Ins. App.El Paso 2000, no pet. Please avail yourself of these resources before seeking a consultation. "Undoubtedly, the degree of control the agreement ultimately exerts over the parties' rights in the . All Rights Reserved. & Rem. Typically, the first-filed suit has dominant jurisdiction. The Burches were the plaintiffs, and were also the petitioners for declaratory relief. The purpose of the Declaratory Judgments Act is "to settle and afford relief from uncertainty and. See, e.g., Standard Fire Ins. Amount in Controversy Corp., 817 F.Supp. A trial court has discretion to enter declaratory judgment if it will serve a useful purpose or will terminate the controversy between the parties. Id. 1995); but cf. Co. v. Deering Mgmt. Co. v. Rio Grande Heart Specialists of So. Thompson Coe on Best Lawyers Best Law Firms List for 12th Consecutive Year, Four Years Later: The Impact of Texas Insurance Code Section 542A.006 on Insurance Litigation, Texas Supreme Court Reverses Appeals Court Judgment, Affirms Trial Win for Thompson Coe Client, Developing Texas Insurance Law in the Appellate Courts, Update & Recap: Winter Storm Uri and Impact on Gulf Coast Coverage Cases, The Good, The Bad, The Ugly: Texas Appraisals, NEW June PC Webinar: Insurance Retrospective, Texas Supreme Court Issues Significant Decision on Exception to Eight Corners Rule, 2801 Via Fortuna 8 0 obj 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 . denied); State Farm Lloyds v. & Liab. 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. This week our nation's highest court will decide whether to review the 6th Circuit's conclusion that a declaratory judgment of liability starts the statute of . App.Fort Worth 1998, no pet.) Group v. Lou-Con, Inc., 293 F.3d 908 (5th Cir. 1271 (N.D. Tex. 955 S.W.2d at 84 (construing Tex. See, e.g., Stroop v. N. County Mut. Protective orders are still relatively simple, and can usually be subject to an agreed motion in federal court. Advisory opinions are prohibited by both the state and federal constitutions. [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. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for. Foust v. Ranger Ins. Sherry does this through creating and teaching online digital courses, speaking, webinars, and workshops. dismd by agrmt.) San Antonio, TX 78216 Google it and find out how your State has interpreted this remedy. Co. v. Grapevine Excavation, 241 F.3d 396 (5th Cir. The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. Sec. See, e.g., State Farm Lloyds v. 2.401 (a) (West 2006) Co., 975 S.W.2d 329, 332 n.1 (Tex. In cases involving duty to indemnify, there may be issues as to whether the indemnity facts were fully litigated in an actual trial, or whether the facts can be re-litigated, construing Gandy and Maldonado. Sept. 1, 1999. 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. Thus, an insured can seek an affirmative finding of coverage, or an insurer can seek a negative determination that coverage does not exist. 1991). of Trans., 999 S.W.2d 881, 883 (Tex. 37.008 provides that the court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the proceeding. LEXIS 7088 (Tex. While for years there was a question in the Federal courts as to whether 38.001, Tex. Co., 767 F.Supp. Co. v. Quinn-L Capital Corp., 3 F.3d 877 (5th Cir. 37.010. REVIEW. Sept. 1, 1987; Acts 1999, 76th Leg., ch. ***It is your responsibility to make sure that this is appropriate for your individual case. Texas Air Control Bd., 852 S.W.2d at 444. Declaratory Judgment Construing Will on Westlaw. If the application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith. 959, Sec. In re Houston Specialty Insurance Co., 569 S.W.3d 138 (Tex. Berger v. Berger, 358 Ill.App.3d 651 (1st Dist. 1993); American States Ins. Civ. App.San Antonio 1998, pet. Citing the Travelers case, the court recited the relevant factors the court must consider in determining whether to dismiss a declaratory judgment action: 1) whether there is a pending state action in which all of the matters in controversy may be fully litigated; 2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant; 3) whether the plaintiff engaged in forum shopping in bringing the suit; 4) whether possible inequities in allowing the declaratory plaintiff to gain precedence in time or to change forums exist; 5) whether the federal court is a convenient forum for the parties and witnesses; 6) whether retaining the lawsuit in federal court would serve the purposes of judicial economy; and. Civ. PARTIES. effectuate its general purpose to make uniform the law of those states that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees. In Gonzales v. American States Ins. Wade, 827 S.W.2d at 451. App.Dallas 1998, no pet.). 2201(a) . 1998) (whether release was sudden and accidental); Western Heritage Ins. SHORT TITLE, CONSTRUCTION, INTERPRETATION. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. You can share these posts as long as you are linking to our posts. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for. 6#7a |mp}v"VY2I Tex. Co. v. Hood, 895 F.Supp. See Farmers Tex. Code 7.001. The district court dismissed the indemnification issue, but granted judgment on defense, based on the extrinsic evidence. Civ. Tex. Cf. In this chapter, "person" means an individual, partnership, joint-stock company, unincorporated association or society, or municipal or other corporation of any character. Co. of Texas v. Erskine, 169 S.W.2d 731 (Tex. Group, Inc., 946 F.Supp. App.Corpus Christi 1992, writ denied) (whether boat was being used for business pursuit); International Serv. Acts 1985, 69th Leg., ch. 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. Prac. 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." Acts 1985, 69th Leg., ch. LEXIS 8494 (Tex. See TEX. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. 855, Sec. Code, applied to breaches of an insurance agreement, this question was resolved by the Texas Supreme Court, on a certified question from the Fifth Circuit, in Grapevine Excavation, Inc. v. Maryland Lloyds, 35 S.W.3d 1 (Tex. 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. Ins. P., also addresses declaratory judgments, by reference to 28 U.S.C. In Wade, the insurer argued that it was not challenging the veracity of the facts alleged, but had a defense independent of the pleadings. Sec. <>>> When an issue has been litigated in the underlying case, when can it be re-litigated in the coverage dispute? denied sub nom. See, e.g., Texas Assn of Bus. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. & Rem. 1998). Co. v. Watson, 876 S.W.2d 145, 149 (Tex. The claims involved crop-dusting, which allegedly damaged abutting fields because of herbicide drift. Co., 975 S.W.2d 329, 332 (Tex. A future interest in a potential judgment has been held insufficient to allow intervention. (a)For Claimant. R. CIV. Chapter 5 2 III. A fee award is not mandatoryunder the UDJA . 699 (H.B. FFC Home Page / 5 Reasons to file a Declaratory Judgment. The answer may depend upon whether the insurer has defended or simply denied coverage, and the extent to which the issue is actually material to, and fully litigated in, the underlying dispute. v. Mitchell, 138 F.3d 208, 210 (5th Cir. 1991), affd in part, 961 F.2d 213 (5th Cir. may declare the rights. App.San Antonio 1998, pet. Co., 418 S.W.2d 712, 715-16 (Tex. Determination of title is only dispute to be raised by declaratory judgment. Where Can I Get More Information and Training? In this instance, there may be legitimate concerns that the insurers discovery will inure to the benefit of the liability plaintiff, which is likely not in the interest of either the insured or the insurer. Civ. JURY TRIAL. See Tri-Coastal Contractors, Inc. v. Hartford Undwrs Ins. 2003) (finding Texas allows only narrow exception); but see Gonzales v. American States Ins. Twenty-Fifth Floor - Plaza of the Americas. Sec.A37.003.AAPOWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT. Fam. We are posting this information just for educational purposes and not as a practice of law. Indemnity, on the other hand, is based on actual facts and should always be subject to extrinsic evidence. (b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard. dismd, 507 U.S. 1026 (1993). Because there was no judgment in the liability suit, the court concluded that any declaration regarding indemnity would be purely hypothetical.1 In 1997, the Supreme Court concluded that the law had changed, however, and determined that a declaration of indemnity was available, when the same facts that defeated a duty to defend also defeated a duty to indemnify. P., also addresses declaratory judgments, by reference to 28 U.S.C. Auto. Typically, an anti-suit injunction is appropriate in limited instances: 1) to address a threat to the courts jurisdiction; 2) to prevent the evasion of important public policy; 3) to prevent a multiplicity of suits; or 4) to protect a party from vexatious or harassing litigation. In Natl Union Fire Ins. Declaratory Judgment These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. 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. !`g)a00-k@@eU 1996). ), Code of Judical Conduct, Canon 3 B (c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond;. A defendant is the side the lawsuit has been filed against.The defendant is the party that may have to pay money damages or perform some other action if the plaintiff wins and the . 1994), the court reviewed abstention doctrine in relation to declaratory judgment actions. 37.004. In St. Paul Ins. CODE ANN. 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. On the other hand, in some instances, principally those in which only indemnity is at issue, or where stay or abstention is likely, there may be no benefit to early filing. 1995) (whether trademark violation occurred during policy period). 1996); Williamson v. State Farm Lloyds, 76 S.W.3d 64 (Tex. Pursuant to this directive, OCA has prepared the following felony judgment forms and instructions for the forms:: Judgment of Acquittal by Court Judgment of Acquittal by Jury Judgment of Conviction by Court Judgment of Conviction by Jury Judgment of Conviction (Capital Murder-State seeks Death) As long as both parties agree to the three elements listed in Section 2.401, they meet the requirements of a common law marriage. Arbitration is not used very often in Texas family law cases. endstream endobj startxref Similarly, courts have held that an insurance company has no right to intervene in the liability action against the insured to seek a coverage determination. 7/22/14 N/A Yes . 1364 (N.D. Tex. Ins. A declaration does not prejudice the rights of a person not a party to the proceeding. 1965, writ refd n.r.e.) Defense counsel may, nonetheless, have protected certain information from disclosure, for fear that it was effect coverage, and violate counsels own ethical obligations. 1998), overruled on other grounds, State Farm Fire & Cas. Definition of Declaratory Judgment Noun A legal determination, made by a court, resolving a legal uncertainty within a legal action by outlining the facts of the case before it. A Declaratory Judgment allows you to establish with your court what your rights are before you take steps which might involve you in costly litigation. Suite 1400 Co. v. Tandy Corp., 986 F.2d 94, 96 (5th Cir. Rule 56(c). * Associate Professor of Law, Texas Tech University School of Law. 2201, and further provides for a jury trial. Sec. C.M.W., 53 S.W.3d 877 (Tex. The Declaratory Judgment Act itself provides that a "declaration shall have the force and effect of a final judgment or decree," 28 U. S. C. 2201; eminent authority anticipated that declaratory judgments would be res judicata, E. Borchard, Declaratory Judgments 10-11 (2d ed. Federal courts are especially reluctant to exercise jurisdiction if there is a parallel state court proceeding even if subsequently filed that includes all necessary parties and will resolve the issues. Flexibility of Court in Awarding Fees. App.Houston [1st Dist.] 19821 DECLARATORY JUDGMENTS IN TEXAS their statutory law. App.Corpus Christi 2000, no writ). September 1, 2007. Contact Us if you have questions.). Co. v. Boll, 392 S.W.2d 158, 161 (Tex. dYU1oprU.:1FlU;{~_%uIMT6cHE 7o1E-j=E.s nR&%*%")QmLd~s`MF_]jd%DhjP1h 4 z#G?o 0Xj[f e /R&K(KX K$ TBu /5v+nA%. River Entertainment was joined because it owned Pepes where the defendant imbibed. 1998). endobj Co. v. Ward, 107 S.W.3d 820 (Tex. The Fifth Circuit overruled prior case law to conform with the Supreme Courts ruling. 7) whether the federal court is being called on to construe a state judicial decree involving the same parties and entered by the court before whom the parallel state suit between the same parties is pending. denied). (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. Tex. Acts 1985, 69th Leg., ch. P. 301; Logan v. Mullis, 686 S.W.2d 605, 609 (Tex . In addition, in many instances, a protective order will allow broad discovery, without fear of disclosure to the plaintiff. See Owens v. Allstate Ins. Suite 400 The court remanded for consideration of these factors. 1996). o FRCP Rule 57. & Rem. Co. v. Griffin, 955 S.W.2d 81 (Tex. 37.002 (b) (Vernon 2008); see Bonham State Bank, 907 S.W.2d at 467; Indian Beach Property Owners' Ass'n v.