Opinion filed January 30, 2014

In The

Eleventh Court of Appeals ___________

No. 11-11-00258-CV

___________

MITZIE F. TARIN AND MARIA FLORES, Appellants

V.

ELIAZER BENAVIDES, BELINDA BENAVIDES, ENRIQUE 

RUBIO, CORINA RUBIO, AND LELAND V. MAPLES, Appellees

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 that 
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arose from an automobile accident. We affirm in part and reverse and render in 

part. 

I. Background Facts and Procedural History

On November 18, 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 vehicle1 then struck Enrique and Corina2 Rubio’s 

building, which housed Eliazer and Belinda Benavides’s dry cleaning business.

The Benavideses sued Tarin and Maples for damage to their business; later, the 

Rubios and others sued. The trial court ordered all parties to mediation; at mediation, the parties executed the Agreement.

Under the Agreement, no preset settlement amounts were included, and the 

parties agreed that the trial court would resolve competing claims for the $50,056

interpleaded 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 required the parties to submit their claims or settlement funds as a “plea” or “interpleader,” respectively, but provided no deadline to do so. Per the Agreement, 

settlement funds of $50,056 were 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 causes of action filed by the Benavideses 

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It is not clear whether the vehicle being driven by Tarin belonged to Tarin or Flores, who is 

Tarin’s mother. Flores said that she had given Tarin the Trans Am, but Flores held record title.

2

We note that we have received notice that Corina Rubio passed away after the trial court 

rendered judgment. See TEX. R. APP. 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 TEX. TRANSP. CODE § 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).
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and the Rubios. In these orders, the trial court ordered that $45,056 of the funds in 

the court’s registry be released 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 has settled 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 that 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 their response, the Benavideses also 

counterclaimed for declaratory judgment. They sought a declaration 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.

The trial court ultimately entered a final judgment in which it found that 

Tarin’s and Flores’s claim 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 in the amount of $12,012.90 plus an additional 

$5,000 for an appeal.

II. 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.
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Second, they argue that the trial court erred when it awarded attorney’s fees to the 

Benavideses 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.

III. Limitations and Award of Funds Under the Agreement

The Agreement 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, neither 

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 concluded that the claim for property damages made in Flores’s

November 30, 2010 original petition was filed after the expiration of the applicable 

two-year statute of limitations and “is barred by the Statute of Limitations and is 

denied.” See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2013).

On appeal, Appellants do not challenge the trial court’s findings as to

limitations. 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-damage settlement funds, we need not address 
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any complaint made by Appellants regarding the trial court’s award of those funds

to others. See TEX. R. APP. P. 47.1. Appellants’ first and third points of error are

overruled.

IV. Declaratory Judgment and Attorney’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 allowed 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 Dist. v. Seven Inv. Co., 835 S.W.2d 75, 77 (Tex. 1992)). The

Agreement did not authorize attorney’s fees and did not provide for any payment 

of attorney’s fees from registry funds.

The Benavideses filed a declaratory judgment action in which they sought to 

recover attorney’s fees. The Benavideses 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, status, and other legal relations. TEX. CIV. PRAC. & REM. CODE 

ANN. § 37.003 (West 2008). But the Declaratory Judgments 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 involved in the declaratory action”); Hitchcock
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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); Joseph 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 Benavideses’ 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 disbursement 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 fees in a negligence case. We sustain Appellants’ 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. We affirm the judgment of the trial court in all other respects.

MIKE WILLSON

JUSTICE

January 30, 2014

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.