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



                      MEMORANDUM OPINION
      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
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 Corina 2 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 media-
tion, 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 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 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


        1
         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
                                          5
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.




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