Opinion issued August 8, 2017

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00114-CV

———————————

ROBERT HOLMES, Appellant

V.

CRAIG CASSEL, Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Case No. 938067-003

MEMORANDUM OPINION

Appellant Robert Holmes appeals from the trial court’s grant of summary 

judgment in favor of appellee Craig Cassel. This suit began as a condemnation suit 

against Holmes, Cassel, and others regarding a tract of land in Houston. Proceeds 

from the condemnation sale were deposited into the registry of the court. Holmes 
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and Cassel filed cross-claims against each other, with each arguing that he was

entitled to the proceeds. Cassel moved for summary judgment on Holmes’s crossclaim. The court granted Cassel’s motion and awarded him the condemnation 

proceeds and attorney’s fees. 

Holmes raises two issues on appeal. First, he challenges the trial court’s 

award of attorney’s fees. Second, he contends that the trial court erred by granting 

summary judgment because unresolved fact issues remained about his claims of 

waiver and estoppel. 

Because the trial court did not err by awarding Cassel attorney’s fees, and 

Holmes failed to adequately brief his challenge to the summary judgment, we 

affirm the judgment of the trial court. 

Background

In 1995, taxing authorities initiated tax-deficiency proceedings involving 

property located at 5405 Griggs Road in Houston. At the time that the 1995 tax suit 

was filed, appellant Robert Holmes allegedly owned an undivided one-half interest 

in the property, based on a deed recorded in 1983. Holmes was not named in the 

tax suit, nor was he served with citation. In 1996, the trial court issued a final 

judgment in the tax suit, in favor of the taxing authorities. Holmes was not named 

in the judgment. In 2003, an order of sale was issued on the property. Craig Cassel 

purchased the property at the tax sale, and he took possession of it.
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The Metropolitan Transit Authority of Harris County (“Metro”) filed suit in 

Harris County Civil Court at Law No. 4 to condemn a portion of the property, and 

it named Holmes and Cassel as possible owners. Metro then deposited the 

condemnation proceeds into the court’s registry. Cassel and Holmes both claimed 

to own the proceeds. 

Holmes filed a cross-claim against Cassel in the condemnation case seeking 

to quiet title to the property and to obtain a declaration that he had a one-half

ownership interest in the property. Based on this claim, Holmes sought an award of 

one-half of the condemnation proceeds and attorney’s fees. 

Cassel answered Holmes’s cross-claim with a general denial. He asserted as 

affirmative defenses a statute of limitations under the Tax Code and Holmes’s 

failure to comply with statutory prerequisites to filing suit. Cassel also crossclaimed, seeking contribution for money spent for the benefit of the common estate 

to the extent that Holmes owned a one-half interest in the property. Cassel

requested an award of attorney’s fees arising out of his defense against Holmes’s 

declaratory-judgment cross-claim. 

Cassel and Holmes both filed motions for partial summary judgment on 

Cassel’s limitations defense. In his response to Cassel’s motion, Holmes argued 

that Cassel was estopped from asserting the limitations defense and that he had 

waived his right to contest Holmes’s ownership of the property. Holmes alleged 
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that Cassel requested that he pay half of the taxes on the property, and he did so. 

Holmes contended that his payment of the taxes estopped Cassel from asserting his 

limitations defense. He also argued that Cassel’s acts in directing him to pay half 

of the taxes were intentional conduct inconsistent with Cassel’s interest in the 

disputed property. Thus, Holmes argued that Cassel waived the right to challenge 

his interest in the property. There is no indication in the record that the court ruled 

on these motions. 

While the condemnation case was pending, Holmes filed a separate suit in 

the 80th District Court of Harris County against Cassel and the taxing authorities 

who had initiated the tax deficiency proceedings on the property in 1995. In that 

suit, Holmes argued that because he was not named in the tax suit or the judgment, 

the judgment was void as to his one-half interest in the property, and he sought a 

declaration to that effect. Cassel answered with a general denial and asserted the 

same affirmative defenses as in the condemnation case. He also added the 

affirmative defense of adverse possession. Cassel moved for summary judgment on 

all three of his affirmative defenses, and the district court granted the motion. The 

district court found that Holmes’s claims were barred and declared that all title and 

interest in the property vested in Cassel. 

After the district court rendered judgment, Cassel filed his fourth amended 

answer to Holmes’s cross-claim in the condemnation case, adding the affirmative 
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defenses of res judicata and collateral estoppel based on the district court’s 

judgment. Cassel then moved for summary judgment on these affirmative 

defenses. Meanwhile, Holmes appealed the district court’s judgment. The 

Fourteenth Court of Appeals affirmed, the Supreme Court of Texas denied his 

petition for review, and the United States Supreme Court denied his petition for 

writ of certiorari. Holmes v. Cassel, No. 14-12-00964-CV, 2013 WL 5497871 

(Tex. App.—Houston [14th Dist.] Aug. 15, 2013, pet. denied) (mem. op.), cert. 

denied, 135 S. Ct. 1900 (2015). 

After Holmes exhausted his appeals, Cassel reurged his motion for summary 

judgment in the condemnation case, based on his affirmative defenses of res 

judicata and collateral estoppel. He sought attorney’s fees and attached supporting 

evidence. Cassel also amended his cross-claim against Holmes. He sought a 

declaratory judgment declaring that Holmes’s cross-claim was barred by res 

judicata and collateral estoppel. Cassel also sought attorney’s fees under the 

Declaratory Judgment Act. Holmes amended his claim to allege that his payment 

of taxes on the property unjustly enriched Cassel. In a response to the claim for 

unjust enrichment, Cassel admitted that Holmes should not have paid the taxes and 

argued that the court should reduce Cassel’s recovery of attorney’s fees by the 

amount of taxes paid.
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The trial court granted Cassel’s motion for summary judgment. The 

judgment stated: 

The Court finds there is no genuine issue of material fact as to 

[Cassel’s] affirmative defenses of collateral estoppel and res judicata 

to the cross-claims of Robert Holmes and Craig Cassel is entitled to 

summary judgment thereon as a matter of law. 

The judgment awarded Cassel the remaining condemnation proceeds in the registry 

of the court in the amount of $58,652.83. After offsetting the amount of attorney’s 

fees by the amount of taxes Holmes paid, the judgment awarded Cassel $45,911.49 

in attorney’s fees. 

Holmes filed a motion for new trial. In this motion he challenged the award 

of attorney’s fees and argued that fact issues remained about his claims of waiver 

and estoppel. The trial court denied this motion. 

Holmes appealed. 

Analysis

Holmes raises two issues on appeal. First, he challenges the trial court’s 

award of attorney’s fees to Cassel. Second, he contends that the trial court erred by 

granting summary judgment in favor of Cassel because issues of fact remained 

regarding his claims of waiver and estoppel. 

I. Attorney’s fees

In his first issue, Holmes contends that the trial court erred by awarding 

attorney’s fees because (a) Cassel did not assert a claim for affirmative relief with 
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his cross-claim under the declaratory judgment act, (b) he did not segregate his 

fees, (c) the trial court made no judgment as to title or limitations, (d) the award of 

attorney’s fees is neither just nor equitable, and (e) a recovery of attorney’s fees

pursuant to a limitations claim is not allowed. 

a. Cassel’s lack of a claim for affirmative relief 

Holmes initially argues that the trial court erred by awarding attorney’s fees

because Cassel’s cross-claim seeking a declaratory judgment did not raise a claim 

for affirmative relief. 

In “any proceeding” under the Uniform Declaratory Judgment Act, “the 

court may award costs and reasonable and necessary attorney’s fees as are 

equitable and just.” TEX. CIV. PRAC. & REM. CODE § 37.009. The Act “entrusts 

attorney fee awards to the trial court’s sound discretion, subject to the requirements 

that any fees awarded be reasonable and necessary, which are matters of fact, and 

to the additional requirements that fees be equitable and just, which are matters of 

law.” Feldman v. KPMG LLP, 438 S.W.3d 678, 685 (Tex. App.—Houston [1st 

Dist.] 2014, no pet.). “Unreasonable fees cannot be awarded, even if the court 

believed them just, but the court may conclude that it is not equitable or just to 

award even reasonable and necessary fees.” Id.

The award of attorney’s fees is not dependent on a finding that the party 

“substantially prevailed.” Barshop v. Medina Cty. Underground Water 
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Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996). Instead, a trial court may 

exercise its discretion to award attorney’s fees to the prevailing party, the 

nonprevailing party, or neither. See id.; Feldman, 438 S.W.3d at 685. Thus, a trial 

court’s decision concerning the grant or denial of attorney’s fees will not be 

reversed on appeal absent a showing of an abuse of discretion. Ryan v. Abdel–

Salam, 39 S.W.3d 332, 337 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). “It 

is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or 

without regard to guiding legal principles.” See Bocquet v. Herring, 972 S.W.2d 

19, 21 (Tex. 1998). We will uphold a trial court’s judgment if it can be sustained 

on any legal theory supported by the evidence. See Zenner v. Lone Star Striping & 

Paving, L.L.C., 371 S.W.3d 311, 314–15 (Tex. App.—Houston [1st Dist.] 2012, 

pet. denied).

Holmes relies upon BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 

1990), which held that the “declaratory judgments act is ‘not available to settle 

disputes already pending before a court.’” 800 S.W.2d at 841 (quoting Heritage 

Life v. Heritage Grp. Holding, 751 S.W.2d 229, 235 (Tex. App.—Dallas 1988, 

writ denied)). As such, a party cannot assert a counterclaim for declaratory relief 

and attorney’s fees based on mere denials of the opposing party’s cause of action.

Id. at 841–42. Holmes essentially contends that Cassel’s cross-claim for 
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declaratory relief based on the affirmative defense of res judicata is the same as a 

counter-claim that merely denies the opponent’s cause of action. 

Even to the extent Holmes has correctly characterized Cassel’s cross-claim, 

the fact remains that he himself sought a declaratory judgment. In his cross-claim 

against Cassel, Holmes sought a declaration that he owned a one-half interest in 

the property. When a claimant, like Holmes, has invoked the declaratory judgment 

statute, either party may plead for and obtain attorney’s fees. See Knighton v. Int’l 

Bus. Machines Corp., 856 S.W.2d 206, 210 (Tex. App.—Houston [1st Dist.] 1993, 

writ denied). The availability of attorney’s fees is not limited to the plaintiff or the 

party affirmatively seeking declaratory relief. Hartford Casualty Ins. Co. v. Budget 

Rent-a-Car, 796 S.W.2d 763, 771 (Tex. App.—Dallas 1990, writ denied). 

Because Holmes sought declaratory relief and Cassel pleaded for attorney’s 

fees, the trial court had discretion to award the fees. See Feldman, 438 S.W.3d at 

685–86; Knighton, 856 S.W.2d at 210. 

b. Segregation of fees 

Holmes argues that Cassel was obligated to segregate his attorney’s fees

attributable to other causes of action. “A party may recover attorney’s fees only if 

provided for by statute or by contract.” Gulf States Utils. Co. v. Low, 79 S.W.3d 

561, 567 (Tex. 2002). Parties seeking attorney’s fees under Texas law “have 

always been required to segregate fees between claims for which they are 
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recoverable and claims for which they are not.” See Tony Gullo Motors I, L.P. v. 

Chapa, 212 S.W.3d 299, 311 (Tex. 2006). 

The only claims pending before the court were the opposing cross-claims for 

declaratory relief, and Metro’s condemnation claims against each of them. Cassel’s 

motion for summary judgment was supported by evidence of the fees that he 

sought to recover. In their affidavits, Cassel’s attorneys averred that the fees 

resulted from litigating the mutual cross-claims between Cassel and Holmes. The 

fees request excluded any time spent litigating the condemnation action against 

Metro. Further, the fees requested only included time spent on the dispute with 

Holmes in the condemnation case and did not include time spent litigating in the 

district court. 

Because the trial court may award attorney’s fees to either the prevailing or 

nonprevailing party under the declaratory judgment act, the court could award 

Cassel attorney’s fees for defending against Holmes’s declaratory-judgment action. 

See TEX. CIV. PRAC. & REM. CODE § 37.009; Feldman, 438 S.W.3d at 687–88.

Thus, because Cassel’s attorneys segregated the fees they sought for their work on 

the cross-claims between Holmes and Cassel from the defense against Metro’s 

claims, they properly segregated their fees. See Feldman, 438 S.W.3d at 687–88.
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c. No judgment as to title or limitations 

Holmes argues that Cassel was not entitled to attorney’s fees because the 

trial court did not make a declaration quieting title or about the applicability of

limitations when it granted summary judgment based on res judicata. Despite the 

fact that the trial court did not clearly rule on the merits of either party’s 

declaratory judgment, the declaratory judgment statute does not require a judgment 

on the merits of the dispute as a prerequisite to a fee award. See Feldman, 438 

S.W.3d at 685; Castro v. McNabb, 319 S.W.3d 721, 736 (Tex. App.—El Paso 

2009, no pet.). Thus, the court’s lack of a declaration of title or limitations did not 

preclude Cassel from recovering attorney’s fees. 

d. Equitable and just fees

Holmes argues that the attorney’s fees awarded to Cassel were not equitable 

or just because he did not initiate the condemnation proceedings, but was added to 

the suit as a defendant by Metro. 

Attorney’s fees under the declaratory judgment act must be equitable and 

just. See Feldman, 438 S.W.3d at 685. Whether attorney’s fees are equitable and 

just is a question of law for the court. See id.

Cassel’s motion for summary judgment was supported by evidence which 

identified the basis for the fee request. The court found these fees to be reasonable 

and necessary. Holmes argues that he was simply named in this lawsuit as a 
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defendant and it would be unjust to force him to pay these fees. But if Holmes did 

not want to participate in the litigation, he could have defaulted or disclaimed any 

interest in the condemnation proceeds. Instead, he actively sought an award of the 

condemnation proceeds. Accordingly, he now cannot claim that he was forced into 

litigating. Furthermore, Cassel prevailed in defending against Holmes’s affirmative 

claim for declaratory judgment. 

Because Cassel prevailed, and Holmes did not have to actively engage in the 

suit by seeking an award of the condemnation proceeds, we conclude that the trial 

court did not abuse its discretion by implicitly determining that the award of 

attorney’s fees was equitable and just. See Bocquet, 972 S.W.2d at 21; Feldman, 

438 S.W.3d at 686. 

It was within the trial court’s discretion to award attorney’s fees to Cassel 

based on successfully defending against Holmes’s claim for declaratory judgment.

The fees were properly segregated. The court did not have to rule on the merits of 

Holmes’s cross-claim. The fees were equitable and just. We thus conclude that the 

trial court did not abuse its discretion in awarding attorney’s fees to Cassel. See 

Feldman, 438 S.W.3d at 685; Knighton, 856 S.W.2d at 210–11.

e. Attorney’s fees based on limitations 

Finally, Holmes contends that the Cassel could not recover attorney’s fees

pursuant to a limitations defense. We need not address this issue, however, because 
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we have found that the trial court had discretion to award Cassel attorney’s fees

pursuant to the declaratory judgment act. See TEX. R. APP. P. 47.1. We overrule 

Holmes’s first issue.

II. Summary judgment

In his second issue, Holmes contends that the trial court erred by granting 

summary judgment in Cassel’s favor. Holmes argues that fact issues remain 

regarding his claims of waiver and estoppel, and he suggests that the trial court’s

judgment supports his claim that Cassel is estopped from contesting Holmes’s 

ownership interest in the property. Holmes presents no legal argument, citations to 

the record, or legal authorities in support of this argument. 

An appellant’s brief must contain a clear and concise argument for the 

contentions made, with appropriate citations to authorities and to the record. TEX.

R. APP. P. 38.1(i). This requirement is not satisfied by conclusory statements. See 

Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 650 (Tex. App.—Houston 

[1st Dist.] 2015, no pet.). A failure to provide substantive analysis of an issue or 

citations to appropriate authority waives the complaint. See Cervantes–Peterson v. 

Tex. Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). 

Holmes states in his brief that he properly pleaded his claims of waiver and 

estoppel, yet he provides no citation to the record indicating where this pleading is 
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located. Holmes did raise a waiver or estoppel argument in a response to a partial 

motion for summary judgment filed by Cassel on his affirmative defense of 

limitations and in his motion for new trial. There is no indication in the record that 

the trial court ruled on Cassel’s motion for partial summary judgment or that 

Holmes raised these arguments again until his motion for new trial. 

On appeal, Holmes argues that Cassel is estopped from contesting his

ownership interest in the property because he paid taxes on the property at Cassel’s 

direction. The record indicates that Holmes paid some of the taxes on the property, 

and he claimed that Cassel had been enriched unjustly once it was declared that he

had no interest in the property. As a result of Holmes’s claim for unjust 

enrichment, the trial court granted him an offset reducing the amount of Cassel’s 

attorney’s fee award by the amount of the taxes he paid. Holmes does not provide 

any legal authority that support his argument that Cassel would be estopped from 

contesting his ownership interest based on these actions. In addition, Holmes does 

not explain or provide any argument regarding his alleged claim of waiver. 

Because Holmes failed to provide substantive legal analysis and citations to 

authority to support his contentions, we hold that he waived this issue due to 

inadequate briefing. See TEX. R. APP. P. 38.1(i); Fredonia State Bank v. Gen. Am. 

Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court may deem issues 

waived due to inadequate briefing). We overrule this issue.
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Conclusion

We affirm the trial court’s judgment. 

Michael Massengale

Justice

Panel consists of Justices Jennings, Higley, and Massengale.