Dissenting Opinion Filed August 5, 2019.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-01227-CV

                           GREG GUTMAN, Appellant
                                    V.
                         RICHARD WAYNE WELLS AND
                REAL ESTATE ARBITRAGE PARTNERS, LLC, Appellees

                            On Appeal from the 95th District Court
                                    Dallas County, Texas
                             Trial Court Cause No. DC-18-06158

                                DISSENTING OPINION
                   Before Justices Whitehill, Partida-Kipness, and Pedersen, III
                                Opinion by Justice Partida-Kipness
       I respectfully dissent. The claims made by Greg Gutman do not fall within the parameters

of the Declaratory Judgments Act. See TEX. CIV. PRAC. & REM. CODE §§ 37.001–.011. First,

Gutman does not seek construction of a contract, nor does he argue that his rights have been

“affected by a statute, municipal ordinance, contract, or franchise . . . .” Id. § 37.004(a). There is

also no judgment or lien against Wells that the trial court could construe. Gutman admits as much:

“Appellant did not obtain or ever claimed [sic] to have obtained a judgment or Judgment lien

against Appellee Wells in the prior litigation. The Abstract of Judgment filed by Appellant made

reference only to the Judgment obtained against Appellee Arbitrage.” As all parties concede, there

was nothing at issue about the lower court’s decision in the previous case. Second, a fair reading

of Gutman’s petition, and the majority’s characterization of it, shows his claims for civil
harassment, to the extent such a cause of action exists, sound in tort. See Tort, BLACK’S LAW

DICTIONARY (11th ed. 2019) (tort is “[a] civil wrong . . . for which a remedy may be obtained,

usually in the form of damages.”). Under no circumstances is this a proper declaratory judgment

action, and I do not agree with the majority’s expansion of the statute. The trial court properly

dismissed Gutman’s action pursuant to rule 91a. See TEX. R. CIV. P. 91a. Accordingly, I would

affirm the trial court’s dismissal.




                                                 /Robbie Partida-Kipness/
                                                 ROBBIE PARTIDA-KIPNESS
                                                 JUSTICE


181227DF.P05




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