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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES THOMAS WESNER, JR. 

as Trustee of the Charles Wesner, 

Jr. Living Trust,

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Plaintiff, §

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V. § No. 3:22-cv-927-B

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MARK SOUTHALL, PRINCIPLE

MANAGEMENT GROUP INC.,

ASSOCIATIONS INC. d/b/a

ASSOCIA, ESTATES OF WINDSOR

RIDGE HOMEOWNERS’

ASSOCIATION INC., ASSOCIA

CLIENT SHARED SERVICE 

CENTER

INC. d/b/a CSSC, WHITTEN AND

WHITTEN PLLC, ADAM T.

WHITTEN, WYATT FRANCIS, 

BILLY

RAY SMITH, ELIZABETH 

FALCON,

MATTHEW BRYANT, LISA

HILDINGER, SCOTT MARTIN, and

SUSAN DENNEY,

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Defendants.

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FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Defendants Whitten & Whitten, PLLC (“Whitten Firm”) and Adam Whitten 

(“Whitten”) (collectively, “Whitten Defendants”) have filed an Amended Motion for 

Judgment on the Pleadings, see Dkt. No. 72, under Federal Rule of Civil Procedure 

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12(c), which United States District Judge Jane J. Boyle has referred to the 

undersigned United States Magistrate Judge for hearing, if necessary, and findings, 

conclusions, and a recommendation under 28 U.S.C. § 636(b), see Dkt. No. 73.

Plaintiff Charles Thomas Wesner, Jr. has not filed a response, and his deadline 

to do so has passed. See Dkt. No. 74.

For the reasons explained below, the undersigned recommends that the Court 

grant Defendants Whitten & Whitten, PLLC and Adam T. Whitten’s Amended 

Motion for Judgment on the Pleadings [Dkt. No. 72].

Background

As Judge Boyle previously explained,

[o]n April 26, 2022, Wesner sued current Defendants and now-dismissed 

Defendants Wyatt Francis, Susan Denney, Lisa Hildinger, and Scott 

Martin in this Court. Doc. 1, Compl. He alleged violations of the Federal 

Debt Collection Practices Act, the Texas Fair Debt Collection Act, and 

Texas Deceptive Trade Practices Act, breaches of fiduciary duty and 

contract, usury, intentional interference with contract, fraud, and a 

declaratory judgment. Id. Francis, Denney, Hildinger, and Martin were 

never served with process, and the Court dismissed the claims against 

them. Doc. 26, Order. The remaining Defendants filed motions to 

dismiss (Docs. 14, 17-19, 23). Wesner sought leave to amend, which the 

Court granted. Doc. 35, Order. Wesner filed his Amended Complaint 

(Doc. 38), which Defendants moved to dismiss (Docs. 40-44).

Dkt. No. 54 at 5.

The Court granted those motions in part but denied the motions as to Wesner’s 

claims for

• Declaratory judgment against all Defendants; 

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• Violation of the TDCA against Defendant Estates of Windsor Ridge 

Homeowners’ Association, Inc. (“Estates of Windsor Ridge”); 

• Breach of contract against Defendant Estates of Windsor Ridge; 

• Tortious interference with contract against Defendants Estates of Windsor 

Ridge, Associations, Inc. (“Associa”), Associa Client Shared Service Center, 

Inc. (“CSSC”), Mark Southall, and Principal Management Group, Inc. 

(“PMG”); and 

• Fraud and conspiracy to commit fraud against Defendants Southall and 

PMG.

Id. at 32. As to the dismissed claims, the Court dismissed the claims without prejudice 

“to give Wesner one final opportunity to amend his complaint” and ordered that, “[i[f 

Wesner wishes to amend his complaint, he must do so within THIRTY (30) days of 

this Order.” Id.

Wesner then filed Plaintiff’s Second Amended Complaint and Application for 

Declaratory and Injunctive Relief, see Dkt. No. 57, which only Whitten Defendants 

moved to dismiss, see Dkt. No. 63; see also Dkt. Nos. 58, 59, 60, 61, 62 (other 

defendants’ answers).

The Court granted in part Whitten Defendants’ motion to dismiss and 

dismissed with prejudice Wesner’s claims against Whitten Defendants for violations 

of the Texas Fair Debt Collection Act, for Tortious Interference with Contract, and 

for Fraud and Conspiracy to Commit Fraud but did not dismiss Wesner’s claims for 

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declaratory judgment and injunctive relief. See Dkt. Nos. 65, 68, & 69. The Court 

entered a Judgment as to Certain Claims, providing that “Plaintiff Charles Thomas 

Wesner, Jr.’s claims against Defendants Whitten & Whitten, PLLC and Adam T. 

Whitten for violations of the Texas Fair Debt Collection Act, for Tortious Interference 

with Contract, and for Fraud and Conspiracy to Commit Fraud are dismissed with 

prejudice.” Dkt. No. 69 at 1.

Whitten Defendants then filed their Original Answer to Plaintiff’s Second 

Amended Complaint, see Dkt. No. 70, and, a day later, filed their 

In their Amended Motion for Judgment on the Pleadings, Whitten Defendants 

explain that their filing of their answer “closed the pleadings” and that, “[a]s a result 

of the Judgment as to Certain Claims (Doc. 69), Wesner has no remaining causes of 

Action, only a request for declarative and injunctive relief.” Dkt. No. 72 at 3. Whitten 

Defendants argue that, “[b]ecause Wesner has not plead a plausible substantive 

claim, his declaratory judgment claim should be dismissed” and that “[s]imilarly, 

Wesner’s claim for injunctive relief is not a cause of action” and, “[t]herefore, Wesner’s 

pleading now states nothing and must be dismissed.” Id. at 3-4.

Legal Standards

Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are 

closed – but early enough not to delay trial – a party may move for judgment on the 

pleadings.” FED. R. CIV. P. 12(c). “A motion brought pursuant to [Rule] 12(c) is 

designed to dispose of cases where the material facts are not in dispute and a 

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judgment on the merits can be rendered by looking to the substance of the pleadings 

and any judicially noticed facts.” Great Plains Trust Co. v. Morgan Stanley Dean 

Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (cleaned up). The standard for deciding 

a motion under Rule 12(c) is the same as the one for deciding a motion to dismiss 

under Federal Rule of Civil Procedure 12(b)(6). See id. at 313 n.8.

In deciding a Rule 12(b)(6) motion, the Court must “accept all well-pleaded 

facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina 

Canal Breaches Litig., 495 F.3d 191, 205B06 (5th Cir. 2007). To state a claim upon 

which relief may be granted, Plaintiffs must plead “enough facts to state a claim to 

relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 

(2007), and must plead those facts with enough specificity “to raise a right to relief 

above the speculative level.” Id. at 555. “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009).

“The plausibility standard is not akin to a >probability requirement,= but it asks 

for more than a sheer possibility that a defendant has acted unlawfully.” Id. “A claim 

for relief is implausible on its face when ‘the well-pleaded facts do not permit the 

court to infer more than the mere possibility of misconduct.’” Harold H. Huggins 

Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. 

at 679).

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While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not 

contain detailed factual allegations, Plaintiffs must allege more than labels and 

conclusions, and, while a court must accept all of the Plaintiffs= allegations as true, it 

is “not bound to accept as true a legal conclusion couched as a factual allegation.” 

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic 

recitation of the elements of a cause of action, supported by mere conclusory 

statements, will not suffice. See id.

But, “to survive a motion to dismiss” under Twombly and Iqbal, a plaintiff need 

only “plead facts sufficient to show” that the claims asserted have Asubstantive 

plausibility@ by stating “simply, concisely, and directly events” that Plaintiff contends 

entitle him or her to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) 

(per curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)); accord N. Cypress Med. Ctr. 

Operating Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) (“To survive a 

Rule 12(b)(6) motion to dismiss, the complaint does not need detailed factual 

allegations, but it must provide the plaintiff’s grounds for entitlement to relief – 

including factual allegations that, when assumed to be true, raise a right to relief 

above the speculative level.” (cleaned up)).

The United States “Supreme Court has made clear that a Rule 12(b)(6) motion 

turns on the sufficiency of the >factual allegations= in the complaint.” Smith v. Bank 

of Am., N.A., 615 F. App=x 830, 833 (5th Cir. 2015) (quoting Johnson, 135 S. Ct. at 

347, and the Federal Rules of Civil Procedure “do not countenance dismissal of a 

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complaint for imperfect statement of the legal theory supporting the claim asserted,” 

Johnson, 135 S. Ct. at 346. 

Analysis

Whitten Defendants may file a Rule 12(c) motion for judgment on the pleadings 

now that they have answered the Second Amended Complaint. See Mandujano v. City 

of Pharr, Tex., 786 F. App’x 434, 436 (5th Cir. 2019) (explaining that, “for purposes of 

[Rule] 12(c), the pleadings are closed upon the filing of a complaint and an answer 

(absent a court-ordered reply), unless a counterclaim, crossclaim, or third-party claim 

is interposed” (cleaned up)).

And, where the pleadings closed one day before Whitten Defendants filed their 

Rule 12(c) motion, and considering the nature of Whitten Defendants’ arguments in 

the motion, the Court should consider the motion for judgment on the pleadings to be 

timely filed. See generally U.S. ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 

275-76 (5th Cir. 2015).

At this point, Wesner is only proceeding against Whitten Defendants on 

requests for declaratory and injunctive relief. But, where the Court has now 

dismissed with prejudice all of Wesner’s “underlying substantive claims” against 

Whitten Defendants, Wesner’s “requests for declaratory and injunctive relief 

necessarily fail.” Thomas v. EMC Mortg. Corp., 499 F. App’x 337, 343 (5th Cir. 2012) 

(footnote omitted).

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A request for “declaratory judgment is not itself a cause of action, and a claim 

for a declaratory judgment necessarily fails if there is no underlying cause of action.” 

Koncak v. Deutsche Bank Nat’l Tr. Co., No. 3:19-cv-71-B-BT, 2020 WL 5219558, at *5 

(N.D. Tex. Aug. 17, 2020), rep. & rec. adopted, 2020 WL 5215128 (N.D. Tex. Sept. 1, 

2020). Without “an independent cause of action against” Whitten Defendants, 

Wesner’s “declaratory judgment action cannot stand alone.” Id. The Federal 

“Declaratory Judgment Act[, 28 U.S.C. §§ 2201-2202,] is remedial only,” Collin Cnty., 

Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, (HAVEN), 915 F.2d 

167, 170 (5th Cir. 1990), “and does not create an independent private right of action,” 

Harris Cnty. Tex. v. MERSCORP Inc., 791 F.3d 545, 553 (5th Cir. 2015). “In a 

declaratory judgment action, the parties litigate the underlying claim, and the 

declaratory judgment is merely a form of relief that the court may grant.” Val-Com 

Acquisitions Tr. v. CitiMortgage, Inc., 421 F. App’x 398, 400-01 (5th Cir. 2011).

“Accordingly, when a district court dismisses a plaintiff’s [] claims for failure 

to state a claim and that plaintiff has no remaining claims, there are no other 

underlying claims for which the court can grant declaratory relief.” Lackie v. PHH 

Mortg. Corp., No. 3:17-cv-377-BT, 2018 WL 4409799, at *3 (N.D. Tex. Sept. 17, 2018).

And “a request for injunctive relief absent an underlying cause of action is 

fatally defective.” Thomas, 499 F. App’x at 343 n.15. “Injunctive relief is an equitable 

remedy, not an independent cause of action,” Puente v. CitiMortgage, Inc., No. 3:11-

cv-2509-N, 2012 WL 4335997, at *7 (N.D. Tex. Aug. 29, 2012) (cleaned up), and “must 

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be supported by an underlying cause of action,” Crook v. Galaviz, 616 F. App’x 747, 

753 (5th Cir. 2015).

Because Wesner’s “request for injunctive relief [against Whitten Defendants] 

depends on the success of [his] other claims,” the request should be dismissed, Massey 

v. EMC Mortg. Corp., 546 F. App’x 477, 483 (5th Cir. 2013), where the Court has 

dismissed “all of [Wesner’s] substantive claims” against Whitten Defendants, Shastry 

v. U.S. Bank Nat’l Ass’n, No. 3:16-cv-3335-G-BN, 2018 WL 4627132, at *14 (N.D. Tex. 

July 27, 2018), rep. & rec. adopted, 2018 WL 4090426 (N.D. Tex. Aug. 27, 2018).

Recommendation

For the reasons explained above, the Court should grant Defendants Whitten 

& Whitten, PLLC and Adam T. Whitten’s Amended Motion for Judgment on the 

Pleadings [Dkt. No. 72] and should render judgment on the pleadings in favor of 

Defendants Whitten & Whitten, PLLC and Adam T. Whitten on Plaintiff Charles 

Thomas Wesner, Jr.’s remaining claims of declaratory and injunctive relief and 

incorporate that ruling into a final judgment of dismissal with prejudice of all 

Wesner’s claims against Defendants Whitten & Whitten, PLLC and Adam T. 

Whitten.

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

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P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge=s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Services Auto. Ass=n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: September 22, 2023

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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