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
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 cross-

claim. 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 cross-

claimed, 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.




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