Opinion issued July 12 , 2022

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 20 - 00521 - CV

—— — ———————— ROBERT C. PRUETT , Appella nt

V. CITY OF G AL E N A PARK , Appell e e On Appeal from the 127th District Court

Harris County, Texas T rial Court Ca se No. 2016 - 35876

MEMORANDUM OPINION Appellant Robert C. Pruett was a long

- time employee of appell e e the City of Galena Park (the City ) , se rving as a police officer, chief of police , and city administrator over more than twenty years. Foll o w ing a tumultuous election and resulting upheaval in the City ’ s mayoral office and City C o mmission , Pruett2

resign e d. He subsequently sought severance pay p ur suant to a Ci ty ordinance providing for severance benefits to certain long

- term employe es and purs u a nt to a purported Severance Agreement between him and the City . T he City opposed paying severance benef

its . The C ity filed a pet ition seeking declaratory judgment construing the ordinance and S everance A gre ement , and Pruett alleged cou nter

claims challeng i ng the City ’ s construction of the ordinance and agreement and alleging that the City had breached its contract w i th him. Both parties filed motions for summary judgment, and , after several interlocutory rulings, the trial court rendere d j udgment granting t he City ’ s motion and denying Pruett ’ s . On appeal , Pruett contends that the trial court erred ( 1) in granting the City ’ s
m otion fo r summary judgment and denying his own motion and (2) in denying his request fo r attorney ’ s fees pursuant to Civil Practice an d Remedies Code chapters 37 and 38. Because we conclude that the ordinance in question di d no t, b y itself, suppor t Pr

uett ’ s claim for severance benefits and the purported agreement between the parties was invalid, we affirm. B ackground Robert C. Pruett se r ved th e City of Galena Park as a police officer starting in 1993 . H e eve ntu ally became the C hief of P olice in 20 0 0, and he became the City Administrator in 2012. In 2014, mayoral candidate Esmerelda Moya ran on a platform that included efforts to el iminat e the pos ition of City Administrator

.3

Pruett prese nted summary judgment evidence that Moya targeted him personall y during this contentious election and, upon her election to office, attempted to have him removed from office . The governing body of the City

— t he City Com mission 1

— voted again st removing P r uett. After this attempt to remove him , the City Commission adopted Ordi na nc e 201 5

- 10 , which s tated that its purpose was to am end t he City ’ s personnel ordinance to p ro vid e for seve rance package agreements and be nef its for certain long

- term employees

. The O r dinance further stated, “ I t is t he intent of this ordinance to provide se verance protecti on to long term senior Department Heads and certain Key Employees of the City [.] ” The O r di nanc e defined key terms, includ ing “ Department Head , ” which expressly included the City Administrator, and “ Key Employee

. ” The Ordinance also define d “ Severan ce Agreement ” as “ t he agreement between the covered employee and the City entered into pursuant to this ordinance and the terms a nd conditions of the severance agreement. ” Ord ina nce 2015

- 10 then provided for compensation upon termination under

ce rt ain circ umst ances : If the Department Head or Key Employee ’s employment is terminat ed by the City Commissio n Without Good Cause or by the Dep artment H e ad or Key Employee With Good Reason during the employment period, the City Commission shall provide to t he Employe e the

1 T he City is a Texas home r ule city operating under a city charter that provides for the busi ness of the City to be conduct ed by the m ayor and four Commissioners. Galena Park charter art. IX, Sec. 1; Galena Park Cod e § 2

- 47

.4

accrued obligations, severance compensation and other benefits set forth in this ordinance a nd in the severance agreement o f t he parties

. T he O r dinance defin ed “ Good Cause ” as including “ [w]illful or neg ligent failure to fulfill and perform t he duties required by his job or employment, ” and it defined

“ Voluntary termination for Good Reason ” as in cluding “ any willfu l and delibe rat e action by the City Commission that creates a hostil e work environment so as to make continued employment un bearable. ” Severance benefits were not available for terminations by the City with Good Cause or “ [i]n the event the De partment Head or Key Empl oye e voluntarily retires, b ecomes disabled and is unable to per form his required duties, or dies during his employment. ” Th e O r dinanc e set ou t a meth od for determining the severance amount , stating that the amount should be a lump

- sum payment consisting of “ o ne month ’ s base wages for every year of service ” but that “ the total severance pay paid to suc h employee shal l not exc ee d twenty

- four (24) months. ” The Ordinance a lso set out a proc edure to “ Contest and Appeal ” a terminati on : G. Contest and Appeal of te rmi nation. (1) The Department Head or Key Employee may contest and appeal the decision of the City Commission to terminat e his employment for “ Good Cause ” by requesting that the decision be submitted to an Arbitration Hearin g before an independent hearing exa miner or arbitrator within ten (10) days of such employee ’ s termination. The hearing examiner or arbitrator s hall be s el ected and the hearing shall be held pursuant to the American Arbitration Association Rules and Regula tions. (2) The City Commission m ay also contest and appeal the decision of the Department Head or Key Employee to terminate his employment for
“ Good Reas on ” by requesting that the decision be submitted to an5

Arbitration Hearing before an independent h earing examiner within 10 days of suc h e mployee ’ s delivery of his written notice to terminate his employment for “ Good Reason ” to the City Secretar y of the Ci ty of Galena Park. The hearing examiner or arbitrator shall be selected and hearing shall be he ld pursuant to the American Arbitration Ass ociation Rules and Regulations. The Ordinance also contained a “ Severance A greement ” provision: I. Seve rance Agreement [ . ] A fter the D e partment Head or Key Emp loyee accumulates twenty (20) years of employment with the City, the City Commission will provi de a f orm al Severance Agreement in such form as it may deem proper and in accordance with the terms and co nditions of this o rd inance. Such forma l agreement must be agreed to and executed by the Department Head or Key Employee in order for such employee to be ent itled to the benefits o f severance pay provided in th is ordinance. And the Ordinance contain ed a severability c lause, p ro vi ding that “ any section , paragraph , sentence, clause, or phrase contained in th is ordinance ” that becomes illegal, null, or void could be severed and the remaining se c tions “ shall not be affected there by. ” O rdinance 2015

- 10 was adopted by the then

- sitt in g City Commission , but it was not signed by Mayor Mora. Rather, it was signed by Mayor Pro Tem Mar icela Serna. On March 15, 2016, Pruett filed suit in federal court r e gardin g Moya ’ s unsuccessful attempt to remove Pruett as City Administrator

. H e sought r el ief pursuant to the Age Discrimination in Emplo yment Act and Title VII of th e Ci vil Rights Act of 1 964. These claims were ultimat ely dis missed.6

In May 2016, Pruett and the four then

- sitt ing Com mis sioners

— Juan Flores, Mar i c ela Serna, Cruz Hinojosa, Jr., a nd Danny Simms

— signed a “ Sever ance A g reemen t
. ” The purported Severance A g reement p rovided for Pruett to receive severance benefits a s prov ided f or in Or dinance 2015

- 10 if he resigned for good
reason, and it contained a mandatory arbitration provision . However, t he purported S e verance A g reement was not presented to the City Commis sion as a formally convened body in an open meeting, no r wa s it vot ed on or ap proved by the Mayor

. No public notice was given of a meeting to approve or ratify the purported Severance A gr eement. The purported S e verance Agreement was not signed by the Mayor, the C ity Secretary , or the City Attorney. On May 7, 20 16, Flores, Serna, Hinojosa , and Sims lost their bi ds to be re

elected to the City Commission

. In addition to the election of the n ew Commission ers
— Rodney Chersky, Oscar Sil v a, Eric Brous s ard, a n d Barry P ond er
— Mayor Moya was re

- elected. Following this elec tion, the C ity Commission provided the required no tice of its next meeting, including an agenda . The agenda stated that the Commi ss ion would canvass the election results and swear in the new Commissioners . T he agenda also included consideration and voting on proposed Ordinance 2016

- 01 , which would rescind Ordinance 2015

- 10

.7

Pruett signed a resignati o n lett e r dated May 16, 2016

. The re sign ation letter

s tated that his resignation would take e ffect at 5:00 pm on May 1 6 , 2016. Pruett stated, “ I have reviewed th e city coun c il agenda and it is clear to me that you have once again vi olated the Open Meetings Act with yet another walking quor um in an attempt to fi re both me and Chief of Police John Rader and beat both of us out of the severance package that the City Council has previously a pproved. ” Pruett identified other actions that he belie ved violated the City Charter and state law an d
st at ed, “ For these and other reasons, I cannot in good conscience contin ue my
em ployment with the City of Galena Park. Please imm ediately te nder my severance package payment to my hom e address [.] ” T he City Comm i ssion a ccepted his resignation at the May 17, 20 1 6 meeting

. The Commission also passed Ordinance No. 2016

- 01 , r epeal ing O r di nance 2015

- 10

. In adopting Ordinance 2016

- 01, the City Commi ssion found that “ [w]hen O rd inance 2015

- 10 was adopted , no provision was made to fund the benefits descried therein, ” an d that “ the city commission believes that it is not in the public interes t t o provide the benefits described in Ordinance 201 5

- 10. ” On M ay 20, 2016, Pruett presented his purported Severance A g reement to the City by sen ding it to the City Secretary’s o ffi ce . The document was added to his pers onnel file. On May 24, 201 6, Pruet t ’ s co u n sel se nt a letter to the Mayor8

demand ing full s everance be nefits under O rdinance 2015

- 10 and re questing that the ma tter be arbi trated if the City refused. On May 31, 2016, t he Ci t y commenced the underlying suit by filing its

o riginal p etition “ to Sta y Ar bitration

. ” In this petition , the City sought dec laratory

an d injunctive relief. 2 Pruett c ounter

- petitioned, seeking a declaratory judgment that both Ordinance 2015

- 10 and the pu rp orted S everance A greement were valid. Pruett f urther r equested that “ the Cou rt determine and declare whether the conditions p reced e nt to performance have been met under both Ordinance 2015

- 10 and the severance agreement , such that Pruett would be entitle d to severance benefits as provided in the Ordinance

. ” Pruett also alleged tha t the City breached its contract with him. The p arties file d c ross motions for summary judgment

. Significant here, the City asserted that Ordinance 2015

- 10 was no t valid

. 3 It ar gu ed that repealed O r dinance 2015

- 10 was not “self

- executing ” and that a writt en severance contract

was re quired for any severa nce benefit s to be authorized. The City further argued

2 The City ’ s petition was originally filed to prevent Pruett ’ s at tempt to arbitrate the dispute between himself and the City. A s the lit igation p rogresse d, the demand for arbitra tion was eventually dropped.
3 The City ’ s motion for summary judgme nt was filed in light of its effo rts to prevent Pruett from arbitrating th e dispute between the parties. Although its challenge to the v alidity of Ordinan ce 2015

- 10 and the purp orted S e verance A g reement was phrased in terms of invalid ating any agreement to ar bitrate, the City ’ s arguments, as set out a bove, stated arguments gener ally applicable to the validity and enforceability of the O rdi nance and the Se ve ranc e A g reem ent.9

that Ordinance 2015

- 10 was not validly adopted be cause it was signed by th e Mayor Pro Tem rather than the Mayor and proper public notice was not given. The City further challenged the validity of the p urported Se verance Agreement. Pruett, in his mo t ion for summary judgment , argued that both O r dinance 2015

- 10 and his Severance A g re ement were valid and enforceable and entitled him to severance benefits. T he trial court made several interlocutory ruling s while thes e motions for summary judgment were pending. On F ebruary 13, 2020 , the trial court si gned an order resolving some of t he issues raised in the motions for summary judgment. The order stated that th e trial court “ does not rule on the merits of the City ’ s mot ions, but instead finds that the City does not hav e standing ” to challenge

va rious as pects of the adoption of the Ordi na nc e and purpor ted Se verance A g reement. Litigation continued between the par ti es, and o n F ebruary 4, 2020, the trial court si gned it s “ A greed Am ended Order Declaring [the pur ported Severance Agreement] Une n forceable. ” This order stated, “ On December 18, 2 01 9, came on for consideration the validity of the severance agreement betwe e n the City of Galena Park and Robert P r uett arisi ng from O r di nance No . 2 015

- 10 and made the subject of this action. ” The trial court “ found the severance agreement to be void and un enforceable

. ”10

On February 2 5, 20 20, the trial court signed order s stating o nly that it granted the City ’ s motion for summary judgment an d d enied Pruett ’ s motion for

su mmary judgment

. Th ese order s did not state the grounds for the trial court ’ s ruling s , n or did the y contain any declarations. Pruett subsequently filed a “ Cro ss - moti on for Attorney ’ s Fees and Entry of Final Judgmen t. ” He sough t attorney ’ s fees pur suant to the Declaratory J udgment Act (DJA )

. S ee T EX . C IV . P RAC . & R EM . C ODE § 37.009

. The City likewis e sought attorney ’ s fees pursuant to the DJA. The trial court r endered its final judgment on July 14, 2020. The final ju dgment state d, “ This Court , recognizing its authority under [Chapter] 37 of the Texas Civil Practice & R emedies Code , decide s not to exe rc ise its discretion in awarding fees to any Party to this litigation. By signing this O r der, the Febr uary 25, 2020 Summ ary Judgment Order is final and appealable. All relief not granted by th is Order is DENIED. ” This appeal followed. Summary Ju dgment In h is first issue, Pruett challenges the trial court ’ s judgmen t, rendere d on the ba sis of the parties ’ cross - motions for summary judg ment
. A. Standard o f Review Summary judgment is appropriate only when no genuine issue of material fact exists and the movant i s entitled to judgment as a matter of law. T EX . R. C IV .11

P . 166a(c)

. On cross - motions for summary judgment, “ each party b ears the bu r den of establishing that it is entitled to judgment as a matter of law. ” Tarr v. Timberwood Park Owners Ass ’ n , 556 S.W.3d 274, 2 78 (Tex. 2018); Fallon v. Univ. of Tex. MD Anderson Cancer Ctr. , 58 6 S.W.3d 37, 46 (Tex. App.

— Houston [1st Dist.] 20 19, no pe t.)

. When both parties move for summary judgment and the trial court denies one motion but grants the other , we examine the su m m ary judgment evidence presented by each party, determine all issues pr esented, and render the judgment that the trial c ourt should have rendered. Fallon , 586 S.W.3d

a t 46; Tarr , 556 S.W.3d at 278

– 79 ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex

. 2009). B. Con str uction of Or dinance 2015 - 10 As part of his first issue challenging the trial cou rt ’ s ruling granting the City ’ s motion for summary judgment and den ying his own motion for summary judgment on his breach of contract claim , Pruet t argues that t h e City “ entered into

a c ontractual agreement with [him ] for a severance or retirement package in the

even t he should be fired or should resign for good cause ” and that this ag reement

was “mem orialized, not created, or was confirmed and independe ntly creat e d , b y the passage of a City ordinance: No. 20 15

- 10. ” Pruett argues that “ [t]he Or dinance
creat ed, by its v ery passage, a v alid and subsisting contract between the City and [Pruett]. ”12

The City challenges this assertion, arguing in relevan t part that the O r d in ance did n ot create a binding obligation o n the City. In its mo tion fo r summary judgment , t he City argu es that Ordinance 2015

- 10 was “ not a stand

- alone
contract and create[d] no self

- executing o b ligation against the City. ” Rather, the City argue d that t h e Ordinance “ was intended to amend the City’ s Personnel Policy to authorize the Commission to enter into severance agreements with eligible employees , ” and the Ordinance required that the City Commission “ must still enter separate, written severance agre e m ents with eligible employees in a form [it] deemed proper

. ” In its brief on appeal, the City cites these arguments to support its contention that the tria l court ’ s judgment based on the parties ’ cross - motions for summary judgment was proper. W e agree wit h the City that Ordinance 2015

- 10 c annot be co nstrued as a stand

- alon e contract for the City to pay Pruett severance benefits. In construi ng municipal ordinances, we apply the same rules that govern the construction of state statu tes
. Powe ll v. City of Hou s . , 628 S.W.3d 838 , 842 (Tex. 2021); Hotze v. Turner , 634 S.W.3d 508, 515 (Tex. App.

— Houston [1 4th Dist.] 2 021, pet. filed ). The proper construction of an ordinance is a question of law we review de novo. Powe ll , 628 S.W.3d at 842. “ In construing a munici p a l ordinance, we seek to determine and give ef fect to the intent of the governing body of the

m unicipality. ” Hotze , 634 S.W.3d at 515. “ We ascert ain that intent from the13

language the governing body used in the ordinance

— if the meaning of the ordinance ’ s la n g uage is unambiguous, we adopt the interpreta tion supported by the plain meaning of the provis ion ’ s words. ” Id. “We must not engage in forced o r strained construction; instead, we must yield to the plain sense of the words the governing body chose.” Id. P r uett argues that O r dinance 2015

- 10 is an enf orceable contrac t fo r severance pay, citing C ity of Houston v . Wi lliams . In Williams , the Supreme Court of Texas addres sed whether a lawsuit by 540 former Houston Firefighters a gainst the City of Houston for un d e rpayment of lump

- sum severance benefits was barred by governmental immunity. 353 S.W.3d 128, 13 1

– 32 (Tex. 201 1). The Firefighters relied on Local Government Code section 271.152 , waiv ing governmental immunity for certain suits alleging breach of written c o ntract , arguing that certain City of Houston or dinances and three agreements negotiated betwe en the Firef ight ers ’ uni on and the City constituted written agreements that fell within section 271.152 ’ s waiver. Id. In this context, the supreme court consider e d w hether certain City of Houston ordinanc es constit uted a unilateral employment contract
. Id. at 13 5

– 36. The Williams court concluded , “ [I] n some circumstances , an ord inance or group of ordi nances can constitute a unilater al contract. ” Id. at 136. The c o urt outlined the sp ecific provisions co n tained in the City of Houston ordinances that14

c onstitut ed the terms of the agreeme nt of the City of Houston to pay certain benefits to its Firefighters , and it concluded that the o r dinances in that case comp rised a c ontract: “A promise, acceptance of which will form a contract, ‘is a manifestation of intention to act or r efrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.’ ” Montgomery Cnty. Hosp. D i st. v. B rown , 965 S.W.2d 501, 502 ( Tex. 1998) (quoting R ESTATEMENT (S ECOND ) O F C ONTRACTS § 2(1) ). The City manifested its intention to act in a specific way in the Ordinances by its extensive use of the word “shall” and similar provisions that make the b e n efits o ffered to the Firefighters m andatory u pon performance. Id. at 138 (footnote om itted) ; se e also Saifi v. City o f Texas City , N o. 14

- 13

- 00815

- CV, 2015 WL 1843540, at * 5

– 6 (Tex. App.

— Houston [14th Dist.] Apr. 23, 201 5, no pet. ) (mem. op.). T h us, courts look to the term s of the or dinance itself to determine whether the ordinance constituted an ag reement. See Saifi , 2015 WL 18435 40, at * 5 (analyzing Williams opinion and stat ing, “ After examining the ordinances in detail, the court determined that the ordinances constitute d a unilateral emp loyment contract with the city ” ); see also Williams , 353 S.W .3d at 13 6

– 3 7 (discussin g general sta nding ordinances as unila teral contracts and citing cases such as S. Union Co. v. City of E dinberg , 129 S.W.3d 7 4, 76 (Tex . 2 003) (construing c ity ’ s ordinance that “ embodied ” franchise agreement between municip ality and gas company as contract and discerning from it parties ’ intent and scop e of their15

respective obligations) and Fort Worth In dep. Sch. Dist. v. City of Fort Worth , 22 S.W.3d 8 3 1 , 840

– 41 (Tex. 2 000) ( construing two ordinance s and related documents together a s single agreement ) ). Looking to the plain language of Ordinance 2015

- 10 , we conclude that it is disting uishable from the ordinances in Williams

. We disagree with Pruett ’ s
co nt ention that the O r dinance, b y itself , constitute s a contract promising him

sever ance pay . Ord ina nce 2015

- 10 provided for severance compensation upon termination under certain circumst ances , in accor dan ce w i th the terms of the ordinance it self and a forma l

- severance agree ment : If the Department Head or Key Employee ’s employment is ter minat ed by the City Commission Without Good Cause or by the Department H e ad or Key Employee With Good Reason during the employment period, the City Commission shall provide to t he Employee the accrued obligations, severance compensation and other benefits set fort h in this ordinance and in the severance agreement of the parties

. ( E mphasis added.) The Ordinance defined “ Severance Agreement ” as “ t he agreement betw een the covered em ployee and the City entered into pursuant to this ordinance and the terms and c ondition s of the severance agreement. ” And the O rdinance contained a “ Severance A greement ” provision: I. Seve rance Agreement [ . ] After the D e partment Head or Key Employee a ccumula tes twenty (20 ) years of employment with the City, the City Commission will pr ovide a for m al Severance Agreement in such form as it may deem proper and in accordance with the terms and co nditions of this ordinance. Such forma l agreement must be agre ed to a nd executed by the Department Head or16

Key Employee in order for such employee to be entit led to the benefits o f severance pay provided in th is ordinance. By it s pla in language , Ordinance 2015

- 10 contemplate s the creation of a severance agreement for indivi dual employ ees who would qualify for severance benefits under the ordinance . A nd it provi ded that such an agreement would be created by the C ity C ommission “ in such form as [the Commis sion ] may deem proper ” and that the formal agreement “ must be agr eed to a nd execute d b y the Department Head . . . in order for such employee to be ent itled to th e benefits of

severa nce pay provided in this ordinance. ” Thus, although Pruett argues that Ordinance 2015

- 10 “ created a present right, one not contingent upon any futu re
occurren ce or condition precedent other than the resignation for good ca use by [Pr uett ] , ” the O rdinance itself indicate s that that the payment o f severance benefits was contingent upon the creation and execution of a formal severance agre ement. W e conc lude that t he Ordinance , by itself, did not entitle Pruett to severance pay. B y it s plain language , a formal severance agreement created according to the terms of the Ord inance and properly executed by the parties wa s required. The trial court rendered an interlocuto ry order , based on the agreement of the parties , concluding that th e purported Severance Agreement

— the only such agreement presented in the summary judgment record

— was void and une nforceable . That ruling is not challen ged on appe al. Because no v alid and en for ceable se verance agreement exists between the parties, Pruett ca nnot prevai l on his claim that the17

City owed him severance pay as a matter of law. Thus, the tria l court properly rendered judgment b ased o n the cross

- motions for su mmary judgmen t. Pruet t a sse rts several other arguments in support of his breach of contract claim that are al so unavailing . He argues that the “ failure of the severance agreement does not invalidate the O rdinance , ” pointing to the Ordinanc e ’ s severability clause which provid es: J . S everability . I f a ny section , paragraph, sentence, cl ause or phra se containe d in this ordinance shall become illegal, null, or void, or shall be found to be against public polic y or contrary to state or f ederal law, for any reason, or shall be held by an y c ourt of competent jurisdiction to be illegal, null o r void, the remaining s ectio ns, paragraphs, sentences, clause s or phrases contained in this ordinance shall not be affected thereby. Pruett argues that “ if the terms relating to the severanc e agreement ar e excised from the ordinance, ” then “ the remaining s ections leav e a valid a nd co mplete ordinance. ” This argument mis applies the intent behind the severability clause.

“ Severability is determined by the intent of the parties as evidenced by t he language in the contract. ” Ross v. Union Carbide C orp. , 296 S.W .3d 206, 218 (Tex. App.

— Houston [14th Dist.] 2009, pet. denied). If a portion of the ordinance is determined to be unlawful or void , severing the remaining provisions may be proper “[i]f, wh en the [unl awf ul] portion is stricken out, that which remains is

c omplete in i tself, and capable of being executed in accordance with the apparent18

legislative intent, wholly independent of that which was rejected.

. . . ” Rose v. Doctors Hosp. , 801 S.W.2d 841, 84 4 (Tex. 199 0)

. Here, however, no portion of Ordinance 2015

- 10 has been d e clared unl awful; rather, we have determined that the O r dina nce as written did not, b y itself, entitle Pruett t o severance benefits. The severability clause cannot be u sed here to waiv e the re qui rement of a validly created and properly executed forma l se ve rance agree ment
. P r uett further argues that the City ’ s failure to secure a severance agreement should not excuse i t from payment of the severance benefits. Pr u ett argues ,

“ Generally, a party w ho ‘ prevents or makes impossible ’ the occurrence of a condition precedent u pon which its liability un der a contract depends cannot rely on the nonoccurrence to escape liability

. ” See SLT Dealer Grp., Ltd. v. Am eriCredit Fin’l Servs., Inc. , 336 S.W. 3d 822, 8 31 (Tex. App.

— Houston [ 1st Dist.] 2011, no pet.) ( “ As a general rule, ‘ one who prevents or makes i mpossible the performance of a condition precedent upon which his liability under a contract is made to depend cannot avail himself of its nonper formance

. ’ ” ) ; Clear Lake City Water Auth. v. Friendswo od Dev. Co. , 344 S.W.3 d 514, 519

– 520 (Tex. App.

— Houston [14th Dist.] 2011, pet. denied) (opin ion on remand)

. Pr uett argue s that

“ because the severance agreement is void for non

- ex ecution by the City , the City C ounc il failed to per form its duties under the ordinance

. ”19

The cases cited by Pr uett involve circumstances in which one party was contractu a ll y obligated to per form certain “ con ditions precedent ”

— “ c o nditions ” that were more p roperly construed as “ cov enants. ” Th is Court i n SLT Dealer Group recognized that “ [c]onditions prece dent may be either a condition to the formation of a contract or an obligation to perform an existing agreement. ” 33 6 S.W.3d at 830. We concluded in that case that th e requirement t hat th e app ellee perfect a security interest in favor of the appellant “ rea d in conjun ction with the rest of the provision s ” in the parties ’ agreement created “ a covenant, not a cond ition

. ” Id. Similarly, in C lear L ake City Water Auth or ity , the Fourteen th Court of A ppeals considered an agreement b etween the water authority and a developmen t company in which the authority agreed to purchase the developers ’ facilities subject to voter approval. 344 S.W.3d at 5 19

– 20 . The court held that the water authority ’ s fail ur e to submit the required bond measure in the election did not

excuse its perfor m ance. Id. ( holding t hat water authority could n o t rely on projected failure of voter approval to escape its liability to purchase developers ’ faciliti es ). In contra st, here, w e hav e already rejected Pr uett ’ s view that the O r dinance, standing al one, const ituted an agreement of the City to provide him with severance be nefits. As discussed above, the O rdinance set out conditions under which the20

City could enter into severan ce agre ement s with certain em p loyees. The City never
enter ed into a valid se verance agreement with Pruett prior to his resignation and the City ’ s subsequent repeal of O r dinance 2015

- 10. Pr u ett has thus failed to show he wa s entitled to r elief on this bas is. We over rule Pruett ’ s challenge to the tria l court ’ s summary - judgment ruli ngs. Att or ney ’ s Fees & Costs In his second i ssue, Pruett argues that the trial c ourt er red in denying his request for attorney ’ s fees. He a sserts that he was entitled to fees on hi s brea ch of
contra ct claim and p ursuant to the DJA

. However, h e was not a pr evailing party o n his breach of contract claim and thus is not entitled to attorney ’ s fees on that basis. See T EX . C IV . P RAC . & R EM . C ODE § 38.001(b)(8 ); Peterson Gr p., Inc. v. PLTQ Lotu s Grp ., L.P. , 417 S.W.3d 46, 60 (Tex. App.

— Houston [1st Dist .] 2013 , p et. deni ed ) ( rec ognizing that to obtain attorney ’ s fees pursuant to section 38.001, party must prevail on appropriate cause of action and recover damages)

. Pruett also argues that he pre vaile d in th e declar a tory judgment action because the City never obtai ned decl aratory relief , and, thus , he was entitled to his attorney ’ s f

ees under Civil Practice and Remedies Code section 37.009

. We observe, however , that the trial co urt granted the Cit y ’ s m otion f or summary21

judgment and d enied Pruett ’ s. The trial court f u rther s tated th at it declined to award attorney ’ s fees to either party in this case. The DJA provides that the trial court “ may awar d costs and reasonable and necessary attorney ’ s fe e s a s ar e equit a ble and just. ” T EX . C IV . P RAC . & R EM . C ODE § 37.009. Thus , “ t he D eclarato ry Judgments Act allows fee awards to either party in all ca ses.” MBM Fin. Corp. v. Woodlands Operating Co., L.P. , 292 S.W.3d 660, 669 (Tex. 2009) . The award of attorney ’ s fee s under the DJA is left to the discretion of the trial court and is no t d ependent on a finding that the party

“ substantially prevailed. ” See Barshop v. Medina Cty. Underground Water Conservation Dist. , 925 S.W.2d 618, 637 (Tex. 1996); Feldman v. KPMG L L P , 438 S.W

. 3d 678, 685 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) (“Under section 37.009, a trial court may exercise its discretion to award attorneys’ fees to the prevailing party, the nonprevailing party, or neither.”). Given this broad grant of disc reti on and t he facts of this case

— including the nature of the di spute between the Cit y a nd Pruett and the fact that the trial court denied Pruett ’ s motion for summary judgment and granted the City ’ s motion for summary judgment

— we cannot say that the tria l court ab u sed its discretion in declining to award Pruett
attorn ey ’ s f

ees . See Feldman , 438 S.W.3d at 685. Pruett also argues that he was entitled to recover costs p urs uant to Rule of Civil Procedure 131. See T E X . R. C IV . P . 131 ( “ The succ essful party to a suit sha ll22

recover of his adversary all costs incurred therein, excep t where otherwis e provided. ” ). The trial court ’ s judgment did not address costs , and as noted above, Pruett cannot be consi dered the successful party. Se e Fortitude Energy, LLC v. Soone r Pipe LLC , 564 S.W.3d 167, 189

– 90 (Tex. App

. — Houston [1st Dist.] 2018, no pet. ) (holdi ng that “successful party” is “one who obtains judgment of a competent court vindicating a civil right or claim ” ); Henry v. Masson , 453 S.W.3d 43, 50

– 5 1 (Tex. App.

— Houst on [1st Di st.] 2014, no pet.) ( holding that when party alleges counterc laim, “ i f neithe r party is wholly successful on its claims, it is within the trial court ’ s discretion to order each party to bear its own costs ” ); see also Durant v. Anderso n , No. 02

- 14

- 002 83

- CV, 2 020 WL 1295058, at *36 (Tex. App.

— Fort Worth Mar. 19, 2020, pet. de nied) (m em. op.) (“The plain language of Rule 131 does not expressly require an allocation of costs between unsuccessful parties

. ”). We o verrule Pruett ’ s challenge to the trial court ’ s decis ion to deny his request for attorney ’ s fees and costs
. Con clusion W e affirm the judg ment of the trial court.
Richard Hightower Justice Panel consists of Justices Landau, Hightower, and Rivas

- Molloy.