Opinion issued March 1, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-15-00429-CV
                          ———————————
                   EILEEN K. STARBRANCH, Appellant
                                      V.
               ELIZABETH HOWARD CROWELL, Appellee


                   On Appeal from the 55th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-14192


                        MEMORANDUM OPINION

      Elizabeth Crowell sued her neighbor Eileen Starbranch to challenge the

validity of a putative homeowners’ association formed by Starbranch and several

other neighbors. After Starbranch conceded that the association was not validly

formed, the trial court granted Crowell’s motion for summary judgment awarding
Crowell attorney’s fees. Because Crowell’s lawsuit is an action to quiet title for

which fees are unavailable, we reverse in part and render judgment that Crowell

take nothing on her claim for attorney’s fees.

                                 BACKGROUND

      Crowell purchased a parcel of land in Houston’s Museum District. Crowell

planned to subdivide the large lot, keeping a portion of it to live on herself and

building homes for sale on other parts of the property. Crowell’s plans proved

unpopular with her neighbors-to-be, who formed a “petition committee” and began

collecting signatures to form a homeowners’ association. Several nearby property

owners signed the petition to create the Jandor Gardens Association, Inc.,

including Starbranch.     The Association purported to amend the 1929 deed

restrictions to prohibit further subdivision of lots, frustrating Crowell’s

construction plans.

      Crowell responded by suing the Association’s members. Crowell’s petition

alleged that her neighbors had “conspir[ed] to form a bogus ‘property owners’

association’” for the purpose of enacting discriminatory deed restriction

amendments targeting Crowell. The petition asked for a declaratory judgment to

quiet title. Starbranch did not timely answer Crowell’s petition.

      Crowell moved for a partial summary judgment, asking that the trial court

declare that the Association’s filings in the real property records “ha[d] no force



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and effect, [were] nullified, and [were] no longer a cloud on the title to, and right

of ownership of, the Property.” The trial court granted Crowell’s motion, ordering

that the petition to create the Jandor Gardens Association “has no force and effect,

is nullified, and is no longer a cloud on the title to, and right of ownership of, the

Property.” Crowell then settled with all defendants except Starbranch, who had

not appeared.

      A year later, Starbranch answered Crowell’s lawsuit.             After another

exchange of pleadings, Crowell moved for summary judgment and Starbranch

moved for a no-evidence summary judgment. Starbranch did not contest the trial

court’s earlier order granting declaratory relief, but she adduced evidence that she

had disclaimed any interest in the Crowell property and had filed the disclaimer in

the real property records.

      Noting that the disclaimer had come only after suit was filed, Crowell asked

the trial court for attorney’s fees under the Declaratory Judgment Act. See TEX.

CIV. PRAC. & REM. CODE ANN. § 37.009 (West 2015). Starbranch opposed the

award of attorneys’ fees, arguing that a plaintiff cannot obtain attorney’s fees by

re-pleading a claim to remove cloud on title as a declaratory judgment claim. The




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trial court awarded Crowell $26,462 in fees. Crowell nonsuited her remaining

claims against Starbranch, making the trial court’s judgment final.1

                                       DISCUSSION

         Starbranch challenges the trial court’s award of attorney’s fees against her,

arguing that Crowell may not recast her claim to remove clouds from title as a suit

for declaratory judgment to support an award of attorney’s fees.

         I.     Standard of Review and Applicable Law

         The Uniform Declaratory Judgment Act (“UDJA”) “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.”

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Indian Beach Prop. Owners’

Ass’n v. Linden, 222 S.W.3d 682, 706 (Tex. App.—Houston [1st Dist.] 2007, no

pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 37.009 (“In any proceeding

under this chapter, the court may award costs and reasonable and necessary

attorney’s fees as are equitable and just.”).          Because the grant or denial of

attorney’s fees is within the discretion of the trial court, we will not disturb it on
1
    The trial court never ruled on the parties’ separate cross-motions for summary judgment
         with respect to the claims against Starbranch. In her motion for nonsuit, Crowell
         contended that the trial court’s earlier order granting declaratory relief rendered
         the parties’ motions moot once Crowell abandoned her other claims and thus the
         order granting nonsuit made the trial court’s earlier orders final. Neither party
         contests the finality of the judgment on appeal, nor does Starbranch challenge the
         propriety of the award of fees for lack of an underlying liability finding.

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appeal in the absence of a clear showing that it abused its discretion. Oake v.

Collin Cty., 692 S.W.2d 454, 455 (Tex. 1985); Indian Beach, 222 S.W.3d at 706.

A trial court does not abuse its discretion if some evidence reasonably supports its

decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); Indian

Beach, 222 S.W.3d at 706. Because the trial court did not specify its grounds for

awarding attorney’s fees, we uphold its ruling on any basis supported by the

evidence. See Weingarten Realty Inv’rs v. Harris Cty. Appraisal Dist., 93 S.W.3d

280, 283 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

        II.        Analysis

        Starbranch challenges the trial court’s award of attorney’s fees against her,

citing our decision in Southwest Guaranty Trust Company. Sw. Guar. Tr. Co. v.

Hardy Rd. 13.4 Joint Venture, 981 S.W.2d 951 (Tex. App.—Houston [1st Dist.]

1998, pet. denied). In that case, we considered the availability of attorney’s fees in

a suit for a declaration that a lien on the plaintiff’s real property was invalid. Id. at

952–53. We held that the declaratory judgment claim was in substance a quiet title

claim. Id. at 957. Attorney’s fees are not available in a suit to quiet title or remove

cloud from title, and as we observed, “[a] declaratory judgment action may not be

used solely to obtain attorney’s fees that are not otherwise authorized by

statute . . . .”     Id. at 956–57.   Thus, we held, the plaintiff could not use the




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Declaratory Judgment Act to circumvent the unavailability of attorney’s fees based

on his quiet title claim. Id. at 957.

      Crowell premised her motion for summary judgment on attorney’s fees

solely on the Declaratory Judgment Act’s fee provisions. See TEX. CIV. PRAC. &

REM. CODE ANN. § 37.009.          Where a claim for declaratory relief is “merely

incidental to [] title issues,” the Declaratory Judgment Act will not support an

award of attorney’s fees. See Sani v. Powell, 153 S.W.3d 736, 745–46 (Tex.

App.—Dallas 2005, pet. denied) (quoting John G. & Marie Stella Kenedy Mem’l

Found. v. Dewhurst, 90 S.W.3d 268, 269 (Tex. 2002)). Thus, unless Crowell’s

declaratory judgment claim has some substance independent of her action to quiet

title, she may not recover under the Act.

      Crowell sought declarations invalidating her neighbors’ deed office filings.

These declarations duplicate the relief afforded by a successful suit to quiet title.

See Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 388 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied) (“A suit to clear title or quiet title—also

known as a suit to remove cloud from title—relies on the invalidity of the

defendant’s claim to the property.”) (citing Longoria v. Lasater, 292 S.W.3d 156,

165 n.7 (Tex. App.—San Antonio 2009, pet. denied)).

      Relying on Gillebaard v. Bayview Acres Association, Inc., Crowell contends

that a declaratory judgment in a case involving the purported creation of a property



                                            6
owners’ association allows for an award of attorney’s fees. 263 S.W.3d 342 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied). Like the present case, Gillebaard

concerned the validity of an attempt to amend neighborhood deed restrictions. Id.

at 344–47. In remanding the case, we directed the trial court to declare that the

deed amendments at issue were invalid, and we noted that a tortious interference

claim and a request for attorney’s fees under the Declaratory Judgment Act

“remained pending.” Id. at 353. Gillebaard did not address whether an award of

attorney’s fees was appropriate when the only relief afforded is to quiet title.

      Such is the relief afforded in this case. The trial court declared the property

deed amendments and recorded filings purporting to create the association

“nullified, and [] no longer a cloud on the title to, and right of ownership of, the

Property.” The purpose of a suit to quiet title is to remove encumbrances from the

plaintiff’s title. See Hahn v. Love, 321 S.W.3d 517, 531 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied) (quoting Thomson v. Locke, 1 S.W. 112, 115 (Tex. 1886))

(observing that the action to remove cloud from title exists “to enable the holder of

the feeblest equity to remove from his way to legal title any unlawful hindrance

having the appearance of better right.”)).       The declaratory relief sought and

obtained in this case quieted title; in such instances, a recovery of attorney’s fees is

unavailable. See id. Accordingly, we hold that Crowell cannot recover attorney’s

fees on such a claim by re-pleading it as a declaratory judgment action. See Essex



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Crane, 371 S.W.3d at 388; Hahn, 321 S.W.3d at 531; Sani, 153 S.W.3d at 745–46;

Sw. Guar. Trust Co., 981 S.W.2d at 957.

                                   Conclusion

      Because Crowell has not demonstrated a basis for the recovery of attorney’s

fees, we reverse the trial court’s summary judgment on attorney’s fees and render

judgment that she take nothing on her claim for attorney’s fees. The judgment is

affirmed in all other respects.




                                              Jane Bland
                                              Justice

Panel consists of Justices Bland, Brown, and Lloyd.




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