Opinion filed January 30 , 2014



### In The 

# Eleventh Court of Appeals

_____ _

_____ 

### No. 11

- 11

- 00258

- CV

______ _ ____ 

### MITZIE F. TARIN AND MARIA FLORES , Appellant s V.
ELI AZ E R BENAVIDES , BELINDA BENA VIDES , ENRIQUE RUBIO, CORINA RUBIO , AND LELAND V. MAPLES , Appellee s

On Appeal from the 161st District Court Ector County , Texas Trial Court Cause No. B

- 126,827

M E M O R A N D U M O P I N I O N Appellants, Mitzie F. Tarin and Maria Flores, appeal from a judgment in which the trial court awarded funds held in the registry of the court, entered judgment against Appellants for attorney’s fees, and dismissed the bodily injury
claims of Tarin’s minor child

. The funds held in the trial court’s registry were settlement proceeds that were part of the Mediated Settlement Agreement ( the Agreement) that the parties had executed to settle property

- damage claims that2 arose from an automobile acc ident

. We affirm in part and reverse and render in part.
I. Background Facts and Procedural History
On November 1 8 , 2008, vehicles being driven by Tarin and Leland V. Maples collided with each other

. Tarin drove a Trans Am that collided with Maples’ s Windstar van

. Tarin’s vehicle 1 then struck Enrique and Corina 2 Rubio’s building, which housed Eliaz e r and Belinda Benavides’ s dry cleaning business.
The Benavides es sued Tarin and Maples for damage to their business ; later, the
Rubio s and others sued

. The trial court ordered all parties to mediation; at media

tion, the parties executed the Agreement.
Under the A greement, no preset settlement amounts were included, and the parties agreed that the trial court would resolve competing claims for the $50,056
in terpleaded as settlement funds

. The parties stated in the Agreement that $50,056 constituted the combined “full policy limits for property damage” from the automobile liability insurance policies of Tarin and Maples. 3 The Agreement re

quired the parties to submit their claims or settlement funds as a “plea” or “inter

pleader,” respectively, but provided no deadline to do so. Per the Agreement,
settlement funds of $50,056 w ere deposited into the trial court’s registry on September 29, 2010. In two subsequent orders, the trial court granted motions to
withdraw the funds and to dismiss the c auses of action filed by the Benavideses

1 It is not clear whether the vehicle being drive n by Tarin belonged to Tarin or Flores, who is Tarin’s mother. Flores said that she had given Tarin the Trans Am, but Flo res held record title.

2 W e note that we have received notice that Corina Rubio passed away after the trial court rendered judgment. See T EX

. R. A PP

. P. 7.1(a)(1).

3 The Agreement related to property damage only; it did not address liability or damages for any personal injuries, for which separate policy limits applied. See former T EX

. T RANSP

. C ODE § 601.072(a) (2007) (which was in effect from April 1, 2008, through December 31, 2010, and which required the following minimum amounts of motor vehicle liability insurance coverage: $25,000 per person for bodily injury, $50,000 per accident for bodily injury, and $25,000 per accident for property damage).3 and the Rubios. In these orders
, the trial court ordered that $45,056 of the funds in the court’s registry be rele ased to the Benavideses and that $5,000 of those funds
be released to the Rubios

. On November 19, 2010 , Tarin , individually and as next friend of her minor daughter, Kirah V. Tarin, filed a plea in intervention for personal injury damages
because the daughter was a passenger in the Trans Am. According to the plea in intervention, “ Maples ha s settle d this case for $6,500.00 to benefit the minor
, ” and Tarin, as next friend, sought a formal hearing in a “Friendly Suit” to finalize the

matter . We note th at the record does not indicate that any hearing was held. On November 30, 2010, the day after the trial court entered the order releasing $45,056 to the Benavideses, Flores filed an original petition against Maples for property damage to the Trans Am.
The Benavideses subsequently filed a response to Tarin’s and Flores’s pleadings for property damages. In th eir response, the Benavideses also counterclaimed for declaratory judgment. The y sought a declaration concerning the applicability of the statute o f limitations to Flores’s and Tarin’s claims for property damage , a declaration regarding the parties’ compliance with the Agreement , and attorney’s fees

. The trial court ultimately entered a final judgment in which it found that
Tarin’s and Flores’s clai m for property damages were barred by the statute of
limitations ; dismissed the cause of action filed by Tarin for the minor ’s personal injuries ; and awarded attorney’s fees , for which Tarin and Flores are jointly and severally liable, to the Benavideses i n the amount of $12,012.90 plus an a dditional $5,000 for an appeal.
I I

. Issues Presented Appellants present three points of error on appeal

. First
, Appellants contend
that the trial court erred in ignoring the Agreement and releasing the funds

.4 Second
, the y argue that the trial court erred when it awarded attorney’ s fees to the
Benavides es under the guise of declaratory relief

. Third, Appellants assert that the
trial court erred when it denied Appellants’ “Motion for Enforcement” of the Agreement without holding a hearing. We note that Appellants do not complain on appeal that the trial court erred when it dismissed the cause of action relating to the minor’s personal injuries.
II I

. Limitations and Award of Funds Under the Agreement
T he Agreemen t was signed by the Benavideses, their attorney, the Rubios, Flores, Tarin, the attorney for Flores and Tarin, and the attorney for Maples. The Benavideses and the Rubios timely filed pleadings against Tarin, Maples, and
Flores. Until Flores filed her original petition on November 30, 2010 , n either
Tarin nor Flores had filed any pleading that sought recovery for property damages

or that sought recovery of a portion of the funds in the court’s registry. The
Benavideses raised the statute of limitations to any claims for property damages made by Tarin and Flores. The trial court made findings regarding the limitations
issue and conclud ed that the claim for property damages made in Flores ’s November 30, 2010 original petition was filed after the expiratio n of the applicable

two

- year statute of limitations and “is barred by the Statute of Limitations and is
denied.” See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 16.003 (a) (West Supp. 2013 ). On appeal, A ppellants do not challenge the trial court’s findings as to
l imitations

. Based upon the unchallenged ground of limitations, Appellants are barred by limitations from asserting their claims for property damages and, therefore, have no justiciable interest in the settlement funds. See BP Am. Prod.
Co. v. Marshall
, 342 S.W.3d 59, 73 (Tex. 2011) (holding that appellate court erred in reversing trial court’s judgment on ground that was contrary to the jury’s unchallenged finding regarding limitations)

. Because Appellants have no justiciable interest in the property

- da mage settlement funds , we need not address5 any complaint made by Appellants regarding the trial court’s award of th ose funds
to others

. See T EX

. R. A PP

. P. 47.1. Appellants’ first and third point s of error are overruled.
IV. Declaratory Judgment and Atto rney ’ s Fees In their second point of error, Appellants contend that the trial court erred in awarding attorney’s fees. The underlying suit was a negligence action for property damage resolved by the Agreement. Attorney ’ s fees are not recoverable in a tort

case. Pacesetter Pools, Inc. v. Pierce Homes, Inc. , 86 S.W.3d 827, 834 (Tex. App.

— Austin 2002, no pet.) (citing Knebel v. Capital Nat’l Bank in Austin
, 518 S.W.2d 795, 803

– 04 (Tex. 1974) )

. Attorney’s fees also are not recoverable in
Texas unless all owed by contract or by statute. Oscar M. Telfair, III, P.C. v. Bridges , 161 S.W.3d 167, 170 (Tex. App.

— Eastland 2005, no pet.) (citing Dallas
Cent

. Appraisal Dis t. v. Seven Inv

. Co

. , 835 S.W.2d 75, 77 (Tex. 1992) )

. The Agreement did not authorize attorne y ’ s fees and did not provide for any payment of attorney ’ s fees from registry funds.
The Benavides es filed a declaratory judgment action in which they sought to recover attorney ’ s fees

. The B enavides es sought declarations concerning the applicability of the statute of limitations to Flores’s and Tarin’s claims for property damage , a declaration regarding the parties’ compliance with the Agreement , and attorney’s fees

. A trial court has the power under the Declaratory Judgments Act to declare rights, stat us, and other legal relati ons

. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 37.003 (West 2008)

. But the Declaratory Judgment s Act is not available to settle disputes that are already pending before a court. Tex

. Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970) (stating that “an action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involv ed in the declaratory action”); Hitchcock6 Props

. , Inc. v. Levering , 776 S.W.2d 236, 239 (Tex. App.

— Houston [1st Dist.] 1989, writ denied) ; Heritage Life Ins. Co. v. Heritage Group Holding Corp.
, 751 S.W.2d 229, 235 (Tex. App.

— Dallas 1988, writ denied); Jos eph v. City of Ranger
, 188 S.W.2d 1013, 1014 (Tex. Civ. App.

— Eastland 1945, writ ref’d w.o.m.).

“ [ T ] he rule is that a party cannot use the Act as a vehicle to obtain otherwise impermissible attorney’s fees.” MBM Fin

. Corp. v. Woodlands Operating Co. , 292
S.W.3d 660 , 669 (Tex. 2009).
A careful review of fee statements provided by the Benavid es es ’ counsel and admitted as evidence at the August 24, 2011 hearing indicated that the fees were for the prosecution of the tort case and the defense of the disbursem ent award ordered by the court. The Benavideses’ request for declaratory judgment was nothing more than an attempt to circumvent the prohibition of an award of attorney ’ s fee s i n a negligence case. W e sustain Appellant s ’ second point of error.
V. This Court ’ s Ruling
We reverse the judgment of the trial court insofar as it awarded attorney’s
fees to the Benavideses , and we render judgment that the parties are not entitled to attorney’s fees . W e affirm the judgment of the tri al court in all other respect s.

MIKE WILLSON
JUSTICE

January 30 , 2014 Panel consists of: Wright, C.J., W illson, J. , and Bailey, J.