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Opinion filed August 21, 2008
In The
Eleventh Court of Appeals
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No. 11-06-00187-CV
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LAW OFFICES OF MILLER & BICKLEIN, Appellant
V.
DEEP EAST TEXAS SELF-INSURANCE FUND AND
RISK MANAGEMENT SERVICES, Appellees
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-118,250
M E M O R A N D U M O P I N I O N
The Law Offices of Miller & Bicklein sued Deep East Texas Self-Insurance Fund and Risk Management Services after the parties failed to agree upon the amount of attorney=s fees owed to Miller & Bicklein pursuant to Tex. Lab. Code Ann. ' 417.003 (Vernon 2006). Miller & Bicklein had essentially represented the interests of Deep East and Risk Management in a third-party action that resulted in Deep East and Risk Management=s recovery of a subrogation interest for workers= compensation benefits that had been paid to Miller & Bicklein=s client.[1] In addition to a claim for attorney=s fees under Section 417.003, Miller & Bicklein asserted a cause of action under former Tex. Ins. Code art. 21.21, ' 4 (2001)[2] for unfair insurance practices, a cause of action under the Deceptive Trade Practices-Consumer Protection Act,[3] a claim for treble damages, and a claim for additional attorney=s fees with respect to this suit. The trial court entered two orders disposing of the issues in this suit: (1) an order awarding Miller & Bicklein $2,583.43 under Section 417.003 and (2) an order granting Deep East and Risk Management=s motion for summary judgment and entering a take-nothing summary judgment against Miller & Bicklein.[4] Miller & Bicklein filed this appeal. We affirm.
Issues
Miller & Bicklein presents two points of error for our review. In the first point, Miller & Bicklein argues that the trial court erred in entering the summary judgment because the trial court had ruled that Miller & Bicklein was entitled to fees under Section 417.003, thereby evidencing that a genuine issue of fact existed as to the remaining causes of action. In the second point, Miller & Bicklein contends that the trial court erred in refusing to award the additional attorney=s fees that relate to the filing of this lawsuit.
Summary Judgment
A. Standard of Review.
In their motion for summary judgment, Deep East and Risk Management asserted both traditional and no-evidence grounds for summary judgment. See Tex. R. Civ. P. 166a(c), (i). Because the trial court did not specify the grounds it relied upon in granting the summary judgment, we will affirm the summary judgment Aif any of the theories advanced are meritorious.@ State Farm & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex. 1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We find the no-evidence grounds dispositive. We review a no‑evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750‑51 (Tex. 2003). Accordingly, we examine the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; Wal‑Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. Rule 166a(i); Wal‑Mart, 92 S.W.3d at 506.
B. DTPA.
With respect to the DTPA cause of action, Deep East and Risk Management asserted that there was no evidence that Miller & Bicklein was a consumer under the DTPA. Deep East and Risk Management also asserted that there was no evidence that Deep East and Risk Management made any representation concerning the quality of any goods or services; misrepresented the sponsorship, approval characteristics, ingredients, uses, benefits, or quantities of goods or services; or represented that an agreement conferred rights or involved rights, remedies, or obligations that it did not or that were prohibited by law. See Section 17.46(b)(2), (5), (12).
Under the DTPA, a Aconsumer@ may maintain an action for damages for deceptive trade practices. Section 17.50. The DTPA provides that a Aconsumer@ is Aan individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services.@ Section 17.45(4). Miller & Bicklein responded by asserting that, because Miller & Bicklein=s client was a consumer, Miller & Bicklein was also a consumer because the client had assigned a portion of his cause of action to Miller & Bicklein. In its brief, Miller & Bicklein refers to testimony adduced at the hearing regarding entitlement to fees under Section 417.003. This testimony, however, was not summary judgment evidence. See Rule 166a(c).
Because of the personal aspect of DTPA claims, an aggrieved consumer generally cannot assign a DTPA claim. PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P=ship, 146 S.W.3d 79, 91-92 (Tex. 2004). The court in PPG specifically noted that its holding did not prohibit an equitable assignment, such as a contingent-fee interest assigned to a consumer=s attorney. Id. at 92. Although Miller & Bicklein=s summary judgment evidence included an affidavit made by the attorney that handled the underlying case, nothing in the affidavit or in any other summary judgment evidence indicated that the client had a DTPA claim against Deep East or Risk Management or that the client had assigned a portion of any such claim to Miller & Bicklein. Thus, Miller & Bicklein failed to produce any summary judgment evidence showing that it was a consumer for purposes of its DTPA claim.
Furthermore, Miller & Bicklein also failed to produce any summary judgment evidence indicating that Deep East or Risk Management made any representation concerning the quality of any goods or services; misrepresented the sponsorship, approval characteristics, ingredients, uses, benefits, or quantities of any goods or services; or represented that an agreement conferred rights or involved rights, remedies, or obligations that it did not or that were prohibited by law. The summary judgment evidence presented by Miller & Bicklein included the affidavit of the Miller & Bicklein attorney that represented the client in the underlying suit and correspondence from counsel for Deep East and Risk Management requesting immediate payment of the portion of the carrier=s lien that was not in dispute. Upon reviewing all the summary judgment evidence, we find no evidence of any representation regarding goods, services, or an agreement.
We hold that the trial court did not err in granting summary judgment on the DTPA cause of action.
C. Insurance Practices.
With respect to the cause of action for unfair insurance practices, Miller & Bicklein responded to the motion for summary judgment by asserting that Deep East and Risk Management acted in bad faith because they refused to negotiate or pay attorney=s fees pursuant to Section 417.003 even after admitting that they had no attorney representing their interest. Evidence of the refusal to negotiate or pay attorney=s fees owed under Section 417.003 did not constitute evidence that Deep East or Risk Management made any misrepresentations; engaged in an unfair settlement practice under former Article 21.21, section 4(10) Awith respect to a claim by an insured or beneficiary@; or otherwise violated former Article 21.21, section 4. Summary judgment was therefore also proper as to the cause of action for unfair insurance practices.
The argument made by Miller & Bicklein in its brief B that the trial court erred in entering the summary judgment because the trial court had ruled that Miller & Bicklein was entitled to fees under Section 417.003, thereby evidencing that a genuine issue of fact existed as to the remaining causes of action B is also without merit. An entitlement to fees under Section 417.003 does not create an issue of fact regarding a DTPA claim or a claim for unfair insurance practices. The first point of error is overruled.
Additional Attorney=s Fees
In the second point of error, Miller & Bicklein complains of the trial court=s refusal to award attorney=s fees. In addition to the attorney=s fees owed pursuant to Section 417.003, Miller & Bicklein sought attorney=s fees for this suit pursuant to the Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. ch. 37 (Vernon 2008). The trial court awarded fees pursuant to Section 417.003 but refused to award any additional attorney=s fees as a matter of Apolicy.@
Parties to a lawsuit Amay not proceed alternatively under the Declaratory Judgments Act to recover their attorney=s fees.@ Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004). Miller & Bicklein did not seek declaratory relief in the original petition; it sought damages under various theories and attorney=s fees. The amended petition added a request for a declaration that it Ais entitled to attorneys fees@ under the Labor Code. However, Miller & Bicklein=s request for declaratory relief was merely incidental to its request for damages. A request for declaratory relief may not be coupled with a damages action simply to pave the way to recover attorney=s fees. U.S. Bank, N.A. v. Prestige Ford Garland Ltd. P=ship, 170 S.W.3d 272, 278 (Tex. App.CDallas 2005, no pet.). We hold that the trial court was correct in denying the request for additional attorney=s fees.
Moreover, the award of attorney=s fees in a declaratory judgment action is within the trial court=s discretion and is not dependent on a finding that a party substantially prevailed; the trial court=s determination on this issue will not be reversed on appeal absent a clear showing of abuse of discretion. Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637‑38 (Tex. 1996); Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985). We cannot hold that the trial court abused its discretion. The second point of error is overruled.
This Court=s Ruling
The orders of the trial court are affirmed.
August 21, 2008 TERRY McCALL
Panel consists of: Wright, C.J., JUSTICE
McCall, J., and Strange, J.
[1]See Tex. Lab. Code Ann. ' 417.001 (Vernon 2006).
[2]The substance of repealed Article 21.21, section 4 is currently located in Tex. Ins. Code Ann. '' 541.051-.061 (Vernon Supp. 2007).
[3]Tex. Bus. & Com. Code Ann. '' 17.41-.63 (Vernon 2002 & Supp. 2007) (DTPA).
[4]Although this order states that Miller & Bicklein shall take nothing Aby this suit,@ we give effect to both orders B which were signed on the same day B and presume that the take-nothing order applies to the claims other than the claim under Section 417.003 that was disposed of in the trial court=s other order. Moreover, we note that Deep East and Risk Management did not request a take-nothing summary judgment against Miller & Bicklein on the cause of action asserted under Section 417.003 and, in fact, stated in their motion that Miller & Bicklein=s sole remedy is provided by Section 417.003.