law-declaratory judgment | construction of deeds |
DECLARATORY JUDGMENT CASES (UDJA) (DJA)
Lowenberg v. City of Dallas, No. 06-0310 (Tex. Mar. 28, 2008)(per curiam)
(illegal fee, tax refund suit, takings claim, declaratory judgment, UDJA attorney's fees)
JIM LOWENBERG, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. CITY OF
DALLAS; from Dallas County; 11th district (11-03-00061-CV, 187 S.W.3d 777, 03-01-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
CITY OF LUBBOCK v. LARRY ACKERS; from Lubbock County; 7th district (07-06-00421-CV, ___ SW3d
___, 11-29-07, pet. denied June 2008)(jurisdictional dismissal of declaratory judgment claim reversed)
Appellant, Larry Ackers, appeals the trial court's judgment granting appellee's, the City of Lubbock, Plea to
the Jurisdiction and dismissing his claims with prejudice. We reverse the judgment and remand the case to
the trial court.
Ackers may bring certain declaratory judgment actions against a governmental entity without express
legislative consent or statutory waiver of immunity. Nueces County, 97 S.W.3d at 217-18. Because Ackers
pled a claim for declaratory judgment that we construe as not requesting monetary damages, the City is
not immune from the suit and the trial court's dismissal was in error.
Declaratory Judgment not available when issue can be decided in pending lawsuits
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).
Here the trial judge specifically found and we have concluded Elkins failed to prove by a preponderance of
the evidence each element of his breach of contract claim against Capital One. Therefore no declaratory
action would have been appropriate with respect to an alleged violation of the credit card agreement. We
overrule Elkins's third issue.
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, breach of
contract, defamation, credit reputation)
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