      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00578-CV



                                    Jenny Hansson, Appellant

                                                  v.

              Time Warner Entertainment Advance/Newhouse Partnership and
               Time Warner Cable-News 8 Austin, a Division of Time Warner
                 Entertainment Advance/Newhouse Partnership, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
           NO. GN-001747, HONORABLE PAUL DAVIS, JUDGE PRESIDING




               Appellee Time Warner Entertainment Advance/Newhouse Partnership 1 sued Jenny

Hansson claiming that she breached an employment agreement, and Hansson counterclaimed seeking

a declaratory judgment. Time Warner moved to nonsuit its claims and the district court, after

sustaining Time Warner’s special exceptions, struck Hansson’s counterclaim and dismissed all claims

with prejudice. Hansson appeals contending that, because she raised independent claims for

affirmative relief, the district court erred in dismissing her counterclaim. Additionally, she contends

that the district court erred in dismissing her counterclaim without providing her an opportunity to

amend the claim. We affirm the district court’s judgment.



       1
         Time Warner Cable-News 8 Austin, a Division of Time Warner Entertainment
Advance/Newhouse Partnership is also an appellee. We refer to the appellees collectively as “Time
Warner.”
                                        BACKGROUND

               Time Warner and Hansson executed an employment agreement in which Hansson

agreed to work as a videojournalist for News 8 Austin for thirty months. Under the agreement,

Hansson could terminate her employment only if she (1) gave thirty days’ written notice and (2)

accepted employment with a television station in a top-thirty television market. Approximately ten

months into the thirty-month term, Hansson left News 8 Austin after accepting employment with a

television station in San Antonio, a station not in a top-thirty market. Time Warner sued Hansson

claiming that she breached its employment agreement. Hansson counterclaimed, seeking declarations

that (i) Time Warner was seeking to enforce an unenforceable covenant not to compete and (ii) she

properly terminated her employment under the agreement and had no further obligation to work for

Time Warner. She sought attorneys’ fees in connection with this counterclaim.

               Time Warner filed special exceptions contending that, though titled a declaratory-

judgment action, substantively Hansson’s counterclaim was a defense to its claims and that the

declaratory-judgment action was an impermissible attempt to recover attorneys’ fees. At the hearing

on the special exceptions, Time Warner requested a nonsuit of its claims. Hansson argued that,

despite Time Warner’s intent to nonsuit its claims, because Time Warner could in the future sue her

for breach of the agreement if she changed employers before the thirty-month term expired, the court

should determine her rights under the agreement. In response, Time Warner stipulated that it would

not sue Hansson if she sought future employment. Based on its stipulation and request for a nonsuit

of its claims, the district court granted Time Warner’s special exceptions, struck Hansson’s

counterclaim, denied Hansson’s request for attorneys’ fees, and dismissed all claims with prejudice.



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                                            DISCUSSION

                Hansson generally contends in her first issue that the district court erred in granting

Time Warner’s special exceptions and dismissing her counterclaim. In her second and third issues,

Hansson asserts that her counterclaim raised two independent claims for affirmative relief.

                We review de novo a trial court’s dismissal of a case on a special exception for failure

to state a cause of action. Butler Weldments Corp. v. Liberty Mut. Ins. Co., 3 S.W.3d 654, 658 (Tex.

App.—Austin 1999, no pet.); see also Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286, 288

(Tex. App.—Houston [1st Dist.] 1992, no writ). When reviewing a dismissal based on a special

exception, we “accept as true all material factual allegations and all factual statements reasonably

inferred from the allegations” in the respondent’s pleadings. Sorokolit v. Rhodes, 889 S.W.2d 239,

240 (Tex. 1994).

                If a defendant does not make an independent claim for affirmative relief, a plaintiff has

an unqualified and absolute right to nonsuit its claims. Tex. R. Civ. P. 162; BHP Petroleum Co. v.

Millard, 800 S.W.2d 838, 840-41 (Tex. 1990). To state a claim for affirmative relief, a defensive

pleading must assert a cause of action independent of the claims already asserted by the plaintiff; i.e.,

the defendant could recover benefits, compensation, or relief, even if the plaintiff abandoned its cause

of action. See Howell v. Mauzy, 899 S.W.2d 690, 706 (Tex. App.—Austin 1994, writ denied) (citing

BHP Petroleum, 800 S.W.2d at 841). The facts alleged in the defendant’s pleading determine

whether the defendant has asserted an independent claim for affirmative relief. Baca v. Hoover, Bax

& Shearer, 823 S.W.2d 734, 737-38 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (citing

Progressive Ins. Co. v. Hartman, 788 S.W.2d 424, 426 (Tex. App.—Dallas 1990, no writ)).



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Restating a defense in the form of a request for a declaratory judgment does not defeat a plaintiff’s

right to nonsuit. Newman Oil v. Alkek, 614 S.W.2d 653, 655 (Tex. App.—Corpus Christi 1981, writ

ref’d n.r.e.). We review whether Hansson’s counterclaim established an independent claim for

affirmative relief de novo. See Butler Weldments, 3 S.W.3d at 658; Sanchez, 844 S.W.2d at 288.


Interpretation of the Employment Agreement Provision

               Hansson contends in her second issue that she made an independent claim for

affirmative relief by requesting a declaration that the term-of-employment provision Time Warner

sought to enforce was an unenforceable covenant not to compete. See Tex. Bus. & Com. Code Ann.

§§ 15.05, .50 (West Supp. 2002). Hansson argues that her declaratory-judgment action should

survive Time Warner’s nonsuit because Time Warner could sue her in the future for breach of the

agreement if she changed employers before the thirty-month term expired. Time Warner denies that

the provision of the employment agreement at issue is a covenant not to compete, asserting that the

provision sets out the term of the contract period. Further, Time Warner contends Hansson’s claim

is moot because it has agreed not to sue Hansson regarding her future employment.

               Covenants not to compete are future restrictions that become effective only after

termination of employment; they do not operate during the employment term. See, e.g., Light v.

Centel Cellular Co., 883 S.W.2d 642, 645-46 n.8 (Tex. 1994) (restriction for one year after

employment terminated); Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 383 (Tex. 1991)

(restricting employment for two years after employment termination); Travel Masters, Inc. v. Star

Tours, Inc., 827 S.W.2d 830, 831 (Tex. 1991) (same). The provision at issue here sets a term of




                                                 4
thirty months for Hansson’s employment.2 It also conditions Hansson’s acceptance of other

employment during the thirty-month time period by requiring her to give Time Warner thirty days’

notice upon receiving an offer from a television station in a top-thirty market. The provision,

however, does not restrict Hansson’s employment opportunities after she leaves Time Warner, and

thus cannot be a covenant not to compete. We hold that the district court did not err in striking

Hansson’s counterclaim regarding a covenant not to compete. Further, because Time Warner

nonsuited and stipulated that it would not sue Hansson regarding future employment, there was no

need for a declaration regarding the provision. Hansson’s second issue is overruled.


Attorneys’ Fees

               Hansson contends in her third issue that she raised an independent claim for affirmative

relief by requesting attorneys’ fees resulting from her defense against Time Warner’s action to enforce

a covenant not to compete. See Tex. Bus. & Com. Code Ann. § 15.51 (West Supp. 2002)

(permitting recovery of attorneys’ fees for defending action to enforce covenant not to compete).

She argues that she is entitled to attorneys’ fees pursuant to the Uniform Declaratory Judgment Act.

See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997) (permitting recovery of attorneys’ fees

in declaratory-judgment action, regardless of outcome). We review the trial court’s decision not to

award attorneys’ fees under an abuse of discretion standard. See Bocquet v. Herring, 972 S.W.2d

19, 21 (Tex. 1998).


    2
      The employment agreement contained a covenant not to compete provision that restricted
Hansson from working for another television station in the Austin area for six months after
termination of her employment with News 8 Austin. Hansson, however, did not complain about that
provision of the agreement.

                                                  5
                Hansson’s request for attorneys’ fees is without merit because the provision that Time

Warner sought to enforce was a contract provision regarding the term of her employment, not a

covenant not to compete.       Even assuming Hansson was defending against Time Warner’s

enforcement of a covenant not to compete, Hansson’s declaratory judgment action was mooted when

Time Warner stipulated that it would not sue Hansson regarding her future employment. Attorneys’

fees under section 15.51 of the Texas Business and Commerce Code were therefore unavailable to

Hansson. The district court did not abuse its discretion in denying an award of attorneys’ fees under

this statute.

                Hansson’s remaining claim is that her declaratory-judgment counterclaim was a

request for attorneys’ fees pursuant to the Declaratory Judgment Act. Time Warner asserts the

general rule that a defendant may not seek a declaratory judgment simply to recover attorneys’ fees.

See HECI Exploration Co. v. Clajon Gas Co., 843 S.W.2d 622, 639 (Tex. App.—Austin 1992, writ

denied) (citing John Chezik Buick Co. v. Friendly Chevrolet Co., 749 S.W.2d 591, 595 (Tex.

App.—Dallas 1988, writ denied)). Hansson contends that Falls County v. Perkins supports her claim

that a request for attorneys’ fees is an affirmative claim for relief. See 798 S.W.2d 868, 871 (Tex.

App.—Fort Worth 1990, no writ). We find the facts in Falls County distinguishable from the facts

in the case before us. Falls County involved a defendant who sought attorneys’ fees in defense of

a plaintiff’s declaratory-judgment action. Id. The court in Falls County explicitly held that the

general rule only applies when a defendant files a declaratory-judgment counterclaim that presents

no new issues except to recover attorneys’ fees. Id. The court went on to hold that the rule does not

apply when a defendant is defending against a plaintiff’s declaratory-judgment action. Id. Unlike



                                                  6
Falls County, Hansson’s counterclaim presents no new issues and only asserts a claim for attorneys’

fees. We hold that the general rule applies and Hansson is not entitled to maintain a declaratory-

judgment action solely to recover attorneys’ fees. See Chezik, 749 S.W.2d at 594-95. Accordingly,

we hold the district court did not abuse its discretion in denying Hansson’s request for attorneys’ fees

under the Uniform Declaratory Judgment Act. We overrule Hansson’s third issue.

                In conclusion, the district court did not err in granting Time Warner’s special

exceptions and dismissing Hansson’s counterclaim, given that the counterclaim did not raise an

independent claim for affirmative relief. See Butler Weldments, 3 S.W.3d at 658. Hansson’s issues

contending that she raised a claim for affirmative relief in her counterclaim are overruled.


Opportunity to Amend Pleadings

                Hansson contends in her fourth issue that even if the district court properly granted

Time Warner’s special exceptions, the court erred by failing to provide Hansson an opportunity to

amend her pleadings before dismissing her counterclaim. When a trial court grants a special

exception, it must give the respondent an opportunity to amend its pleading. Friesenhahn v. Ryan,

960 S.W.2d 656, 658 (Tex. 1998); Texas Dep’t of Corr. v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1974).

However, before a party may complain on appeal that it was improperly denied the opportunity to

amend its pleading, it must demonstrate that it requested that opportunity and that the trial court

denied the request. Tex. R. App. P. 33.1(a)(1). If there is no ruling in the record, a motion for new

trial will preserve error. Inglish v. Prudential Ins. Co. of Am., 928 S.W.2d 702, 705 (Tex.

App.—Houston [1st Dist.] 1996, writ denied). Although Hansson requested that her counterclaim

not be stricken because she had not been given an opportunity to amend, she failed to obtain a ruling

                                                   7
and failed to file a motion for new trial. Hansson failed to preserve this contention for appellate

review. Tex. R. App. P. 33.1(a)(1). Hansson’s fourth issue is overruled.


                                        CONCLUSION

               Having overruled Hansson’s issues, we affirm the district court’s judgment.




                                              Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: March 21, 2002

Do Not Publish




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