TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-18-00234-CV
Gary Newton, Appellant
v.
Kenneth Williams, Lesia W. Jones, John H. Gomez, and Benita Gomez, Appellees
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 28,152, HONORABLE CARSON TALMADGE CAMPBELL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N1
Gary Newton appeals from the trial court’s judgment in favor of Kenneth Williams,
Lesia W. Jones, John H. Gomez, and Benita Gomez on Newton’s claims related to access to real
property located in a platted subdivision in Bastrop County. We will affirm in part and reverse and
remand in part.
BACKGROUND2
In August 2000, Newton purchased Lots 1 through 14, comprising Block 9 of the
J.C. Madison Addition in Bastrop County (“Block 9”) at a sale held by the Bastrop County Sheriff
1
Notice of appeal for this case was originally filed in this Court in March 2016, at which
time the case was transferred to the El Paso Court of Appeals in compliance with a docket-
equalization order issued by the Texas Supreme Court. On April 12, 2018, the Texas Supreme Court
ordered that certain cases be transferred back to this Court from the El Paso Court, and we consider
this appeal pursuant to that order. See Misc. Docket No. 18-9054 (Tex. Apr. 12, 2018) (per curiam).
2
The facts set forth herein are derived from the testimony and exhibits admitted at trial.
pursuant to an Order of Sale issued by the Bastrop County District Clerk.3 The conveyance was
made by reference to the J.C. Madison Addition “as shown by map or plat thereof, recorded in
Volume 5, Page 2, Deed Records of Bastrop County, Texas.” The referenced plat of the J.C. Madison
Addition includes a dedication “to the Public, and for Public use” of the streets and alleys shown on
the plat. The dedication to the public of the streets and alleys identified in the plat was approved by
Bastrop County by order of the Commissioners Court. The plat shows that Block 9 is bounded by
four dedicated streets: (1) Van Buren Street, adjacent to Block 9’s northern boundary; (2) Adams
Street, adjacent to Block 9’s western boundary; (3) Jefferson Street, adjacent to Block 9’s eastern
boundary; and (4) Jackson Street, adjacent to Block 9’s southern boundary. Block 8, which is owned
by Williams, is located south of Block 9 on the south side of Jackson Street. Lots 1 and 12 of Block
4, which are owned by Jones, are located west of Block 8 on the west side of Adams Street, and
Block 11, which is owned by Williams and his father, is located east of Block 8 on the east side of
Jefferson Street. The plat shows that Houston Street runs adjacent to Blocks 4, 8, and 11 along their
southern boundaries. At the time of trial, Houston Street had been constructed and was used by
Jones and Williams to access their properties in Blocks 4, 8, and 11. Jones had also improved Adams
Street almost to Jackson Street and was using it as a driveway to access Lot 12, Block 4, on which
she had placed a manufactured home. None of the streets adjacent to Block 9 (Van Buren, Adams,
Jefferson, and Jackson) had been constructed, nor had Jefferson Street between Blocks 8 and 11.
3
The Order of Sale issued after the district court rendered judgment in a suit filed by the
Elgin Independent School District to collect unpaid property taxes assessed against Block 9. See
Tex. Tax Code §§ 33.41 (at any time after its tax on property becomes delinquent taxing unit may
file suit to foreclose lien securing payment of tax); 33.53 (if judgment in suit to collect delinquent tax
is for foreclosure of tax lien, court shall order property sold in satisfaction of amount of judgment).
2
In April 2011, Newton entered into a Contract for Deed pursuant to which Enmanual
Cruz agreed to purchase Block 9 for $35,000. Newton testified that in late March or early April
2011, he and Cruz attempted to enter Block 9 from Houston Street by walking north on what they
believed to be the location of Adams Street and Jefferson Street, but were prevented from doing so
by John Gomez.4 Newton also testified that when he began marketing the property in late 2009 or
early 2010 he had attempted to access Block 9 using Adams Street. Newton testified that Jones told
him that what he believed was Adams Street was her driveway and that he could not come down it.
According to Newton, when he showed Jones the plat depicting Adams Street as a dedicated street
she stated that it was her driveway and that he could not use it to get to Block 9. Newton testified
that when he asked Williams and Jones why the rights of way created by the dedication of Adams
Street and Jefferson Street did not exist they responded that “they were old.”
In March 2011, Newton sent letters to Williams and Jones demanding that they
remove what he described as obstructions placed on the 40-foot rights of way identified on the plat
as Adams Street, Jefferson Street, and Jackson Street. Newton described the obstructions as vehicles,
trailers, fences, fence posts, and vehicle parts that he believed had been placed there to impede his
ability to use the rights of way to access Block 9. Newton stated that Bastrop County Commissioner
Lee Dildy was willing to meet with them to mediate any disputes about property boundaries. An
attorney representing Williams, Jones, and John Gomez responded to Newton’s letter. The attorney’s
letter stated:
4
John Gomez and Benita Gomez purchased Block 11 from Lillian Reese in May 2011 and
then sold it to Williams and his father, J.D. Williams, in October 2012. Gomez testified that he
purchased the property because he wanted to build a workshop on it and that he sold the property
because he decided he needed something closer to his home in Pflugerville.
3
It has come to our attention that you and a potential tenant/buyer and/or surveyor
have entered and crossed our clients’ property while my clients were out one day
(J.C. Madison Edition [sic], Blocks 11, Lots 1 through 8 and J.C. Madison Edition
[sic] Block 4, Lots 1, 10, 11, and 12, J.C. Madison Edition [sic] Block 11 [sic], Lots
1-8) to access your property in Block 9 of the same Edition [sic].
Please be advised that any entry onto the property of my clients is trespass and we
will seek any and all legal remedies, including arrest if appropriate, legal fees and
damages should you or your agents (anyone working for your [sic] or under your
supervision) enter their property again.
As a long time owner of Block 9, you are aware, and have been aware since the time
of its purchase by you at a tax sale over 5 years ago that your property does not have
access through the property of my clients. My clients’ property has been fenced post
to post for well over 15 years, with the occasional exception of minor repairs, and the
personal driveways of our clients are not your property. My clients have repeatedly
told you to stay off their property, and have had to gate the property to keep you out.
You will need to access your property from a different direction.
As you are also aware, the developer of the Madison Edition [sic] abandoned the
platted roads shown adjacent to my clients’ property (which roads were never even
constructed) over 30 years ago, and since that time my clients have fenced the
property, paid the taxes and held the property out as their own. The County does not,
and has not, owned or maintained any roads in the Madison Edition [sic].
Newton responded to this letter, in part, as follows:
It was good to speak with you today. [] Please let me know all statutory law, case
law, and/or legal theories your firm or Mr. Williams has as to why the 40 foot right
of ways on three sides of his property do not exist or the legal basis for him to block
them and deny me access to my land. If you look on Bastrop CAD’s website you can
see the maps of the right of ways on three sides of his property. These maps are
based upon the plat filed with Bastrop County in 1947. Mr. Williams bought his
property from Bastrop County in 2005 and if you look at his deed you will find that
it conforms to this plat.
If the right of ways are blocked past April 11 by Mr. Williams I will proceed to
exercise my full legal right to access my property.
4
Litigation is not my preference. Multiple times I have offered to sit down with
Mr. Williams and his representatives and look at all plats, surveys and other
information relevant to our dispute and work through the differences about property
lines.
After receiving no response to this letter, counsel for Newton sent a letter to counsel for Williams,
Jones, and Gomez. The letter stated, in part:
Mr. Newton needs unimpeded access to and use of either Adams or Jefferson Street,
and enough of Jackson Street where it crosses Adams or Jefferson to get to his
property. The quickest and least expensive way to do this is for your client to convey
any and all interests he may have in the streets to Mr. Newton, and for Mr. Newton
to convey any and all interests he may have in the street not chosen, either Adams or
Jefferson, and the remainder of Jackson Street, to parties to the negotiations.
The letter also proposed that the parties meet to go over the plats and come to a resolution. Such a
meeting never took place and in August 2011, Newton filed suit against Williams, Jones, and the
Gomezes asserting causes of action for tortious interference with access to real property and tortious
interference with a contract to sell real property. Newton also sought a declaration that obstruction
of the streets was wrongful and an injunction compelling removal of all obstructions from Adams,
Jefferson, and Jackson Streets. Newton sought to recover monetary damages he alleged resulted
from cancellation of the Contract for Deed as well as exemplary damages, attorneys’ fees, and court
costs. Jones and Williams filed general denials and asserted that “all relevant roadways have been
abandoned,” that Newton’s claim to a right to use the roadways was barred by limitations, estoppel
and laches, or extinguished by abandonment and prescription.
After conducting a one-day bench trial, the district court rendered judgment against
Newton on his tortious interference claims and denied his request for declaratory and injunctive
5
relief. At Newton’s request, the trial court issued findings of fact and conclusions of law in support
of the final judgment. This appeal followed.
DISCUSSION
In twenty-five appellate issues and sub-issues, Newton challenges the trial court’s
judgment that he take nothing by his claims for tortious interference with access to real property
(issue 13), tortious interference with contract (issue 14), and its denial of his claims for injunctive
and declaratory relief (issues 15 and 16). Newton also challenges the court’s denial of his request
for actual damages (issue 17), exemplary damages (issue 18), attorneys’ fees, and costs (issue 19).
The remaining issues constitute challenges to the legal conclusions and fact findings made by the
trial court in support of the judgment. Newton challenges the following fact findings (FOF) and
conclusions of law (COL):
FOF 1: A plat in the J.C. Madison Addition was filed for record on January 20, 1947
and recorded on January 23, 1947. In 1972, J.D. Williams, the father of Defendant
Kenneth Williams and Lesia W. Jones, acquired Lots 1, 10, 11 and 12 out of Block
4, Lots 1-8 out of Block 8. Lots 1-8 out of Block 11 were the property of Kenneth
Williams. Blocks 4, 8 and 11 are adjacent to each other and separated on the original
plat by 40-foot wide strips.
FOF 2: During the period from 1972 through 1996, Block 4, Lots 1, 10, 11 and 12
and Block 8, Lots 1-8 and Block 11, Lots 1-8 were treated as a single piece of
property. The 40-foot wide spaces between each of said blocks were closed off by
continuous fencing and cattle were grazed on the subject blocks.
FOF 3: At the time of the acquisition of the lots in question by J.D. Williams, there
had been no use by the public of the 40-foot wide strips as roadways, no roadways
had been installed, and no maintenance or other attempts to maintain a roadway had
occurred. During a period from 1972 through 1996, the fence remained in place,
blocking public access to the roadways between the three named lots.
6
FOF 4: In 1996, Defendant Lesia Jones acquired title to Block 4, Lots 1, 10, 11 and
12 by a Gift Deed from her father, J.D. Williams.
FOF 5: Defendant Kenneth Williams acquired title to Block 8, Lots 1-8 by a Gift
Deed from his father in 1996.
FOF 8: Lesia W. Jones uses and occupies Block 4, Lots 1, 10, 11 and 12, including
the 40-foot wide strip adjacent to said property, as a part of her homestead.
FOF 9: Defendant Kenneth Williams uses and occupies Block 8, Lots 1-8, including
the 40-foot wide strip separating Block 8 from Block 4 and Block 11 as a portion of
his homestead.
FOF 11: There is no evidence that any member of the public ever used any portion
of the two 40-foot wide strips for roadway purposes.
FOF 12: No member of the public has made use of any of the 40-foot wide strips as
roadways since 1972.
COL 1: The roadway strips between Blocks 4, 8 and 11 owned by Defendants at the
time of the suit were abandoned under Section 251.057 of the Texas Transportation
Code in 1993.
COL 2: The roadway strips between Blocks 4, 8 and 11 were abandoned under
Common Law abandonment.
COL 3: The property having been abandoned as roadway could not be re-established
as a public road except in the manner provided for establishing a new road.
COL 4: Gary Newton was without legal authority to access Block 9 using the 40-foot
wide strips between Blocks 4, 8, and 11 because those strips had been abandoned as
roadway.
COL 5: Plaintiff, Gary Newton is bound by the knowledge and actions of his
predecessors in title and the rights and parties in possession.
COL 6: Gary Newton is barred from asserting a right to open the roadways for
access to Block 9 under the theories of Laches and Equitable Estoppel.
7
Abandonment of J.C. Madison Addition Dedicated Streets
We first consider whether the trial court correctly concluded that Adams Street and
Jefferson Street, which had been dedicated for public use but were never constructed, were abandoned
under section 251.057 of the Texas Transportation Code. See State v. Heal, 917 S.W.2d 6, 9 (Tex.
1996) (trial court’s conclusions of law are reviewed de novo and reviewing court affords no
deference to lower court’s decision). Section 251.057 provides, in pertinent part:
(a) A county road is abandoned when its use has become so infrequent that one or
more adjoining property owners have enclosed the road with a fence continuously for
at least 20 years. The abandoned road may be reestablished as a public road only in
the manner provided for establishing a new road.
Tex. Transp. Code § 251.057(a). In order for this statute to apply, Adams Street and Jefferson Street
must qualify as “county roads.” The J.C. Madison Addition plat identifies these streets as dedicated
for public use. Streets and roads on an approved plat that are dedicated to the public are public
roads, but they are not county roads unless the commissioners court has accepted the roads into the
county road system. See Miller v. Elliot, 94 S.W.3d 38, 45 (Tex. App.—Tyler 2002, pet. denied);
Commissioners’ Court v. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex. Civ. App.—Dallas
1947, writ ref’d n.r.e.) (public road is not necessarily part of county road system). The trial court did
not make any express finding that Adams Street and Jefferson Street had been accepted into the
Bastrop County road system and there is no evidence to support any such implied finding. Moreover,
there was no evidence that Bastrop County had ever improved the road. See Tex. Transp. Code
§ 253.011 (road improved under chapter 253 is county road). Roads that are not county roads are
not subject to abandonment pursuant to Transportation Code section 251.057. Id. § 251.057(a).
8
Furthermore, even if Adams Street and Jefferson Street could be considered county
roads, there was no evidence at trial that “one or more adjoining property owners have enclosed
the road with a fence continuously for at least 20 years.” Id. The testimony at trial was that when
J.D. Williams purchased his property in 1969, there was a fence running along Houston Street, the
southern boundary of Williams’s property. That fence did not “enclose” Adams Street or Jefferson
Street. Williams testified that he did not build the fence himself and that at some point in time he
tore part of it down. Williams also testified that he did not build any other fences other than “a hot
fence, electric fence for my cattle.” Williams did not state when he built the electric fencing, where
it was located, or how long it was in place.5 Although the trial court found that “[t]he 40-foot wide
spaces between each of said blocks were closed off by continuous fencing,” there is no evidence
to support that finding. See Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)
(trial court’s findings of fact are reviewable for legal sufficiency of evidence by same standard as
applied in reviewing legal sufficiency of evidence supporting jury’s finding). The trial court erred
in concluding that Jefferson Street and Adams Street were abandoned pursuant to Transportation
Code section 251.057.
Newton also challenges the trial court’s conclusion that Adams Street and Jefferson
Street were abandoned under common-law abandonment. To show common-law abandonment, one
must show intent to abandon and acts of relinquishment. Maples v. Henderson Cty., 259 S.W.2d 264,
267 (Tex. Civ. App.—Dallas 1953, writ ref’d n.r.e.). “Common-law abandonment ‘occurs when
5
When asked how long the electric fence stayed up, Williams responded “That, I don’t
remember how long. When I sold out of cows.” There was no evidence of the date Williams sold
his cows.
9
the use for which the property is dedicated becomes impossible, or so highly improbable as to be
practically impossible, or where the object of the use for which the property is dedicated wholly
fails.’” Rutledge v. Staner, 9 S.W.3d 469, 471 (Tex. App.—Tyler 1999, pet. denied) (quoting Griffith
v. Allison, 96 S.W.2d 74, 77 (Tex. 1936)). There is no evidence that the purpose of either Jefferson
Street or Adams Street has become practically impossible or that the use for which the property was
dedicated has wholly failed. “The purpose of a public road, particularly one local in character, is to
provide access to property abutting upon it, as well as a thoroughfare between distant points.” Id.
Here, the purpose of Jefferson Street and Adams Street was to provide access to, among others
blocks, Block 9 of the J.C. Madison Addition. These streets have not lost their purpose as a public
road to provide landowners in the J.C. Madison Addition access to their property. Common-law
abandonment has not occurred.6
Several of the trial court’s findings seem to suggest that Williams and Jones have met
the elements of adverse possession of Jefferson Street and Adams Street that defeat the right of
others, including Newton, to use the roads for access to lots in the J.C. Madison Addition. However,
“a person may not acquire through adverse possession any right or title to real property dedicated to
public use.” Tex. Civ. Prac. & Rem. Code § 16.030(b).7 Nor can Newton be barred by the equitable
6
We also note that the county’s failure to maintain a road does not establish common-law
abandonment, nor does non-use of a road. See Rutledge v. Staner, 9 S.W.3d 469, 472 (Tex.
App.—Tyler 1999, pet. denied); Compton v. Thacker, 474 S.W.2d 570, 574 (Tex. Civ. App.—Dallas
1971, writ ref’d n.r.e.).
7
Although we will not discuss the issue in detail, we note that the evidence adduced at trial
does not support a finding that either Williams or Jones established title to the streets by virtue of
the 5-, 10- or 25-year limitations statutes. See Tex. Civ. Prac. & Rem. Code §§ 16.025 (setting forth
elements of adverse possession under 5-year statute as requiring claimant to continuously (1) claim
title under duly registered deed; (2) pay taxes on property; and (3) cultivate, use, or enjoy property),
10
theories of laches or estoppel from exercising his right to use the roads dedicated for public use in
the J.C. Madison Addition plat. The trial court erred in refusing to declare that Williams and Jones
could not obstruct the public roads in the J.C. Madison Addition, including Jefferson Street and
Adams Street. The trial court also erred in refusing to enjoin Williams and Jones from continuing
to obstruct these public roads.8
Tortious Interference Claims
We next consider the trial court’s denial of Newton’s claim that Williams, Jones, and
Gomez tortiously interfered with his contract to sell Block 9 to Cruz. The elements of interference
with an existing contract are (1) an existing contract subject to interference; (2) a willful and
intentional act of interference with the contract; (3) that proximately caused the plaintiff’s injury;
and (4) caused actual damages or loss. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc.,
29 S.W.3d 74, 77 (Tex. 2000) (citing ACS Inv’rs, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.
1997)). On appeal, Newton asserts that “[t]he trial court should not have denied [his] claim of
tortuous [sic] interference with [his] contract to sell real property, as the evidence establishes as a
.026-.027 (setting forth elements of adverse possession under 10- and 25-years statutes as requiring
claimant to cultivate, use, or enjoy property in continuous and hostile manner); see also id. § 16.021(1)
(“‘Adverse possession’ means an actual and visible appropriation of real property, commenced and
continued under a claim of right that is inconsistent with and is hostile to the claim of another
person.”). The evidence that J.D. Williams grazed cattle and repaired a fence that already existed
at the time he purchased his lots in the subdivision is insufficient to support a finding of adverse
possession. See Hopkins v. State, No. 03-07-00253-CV, 2009 WL 3806160, at *7 (Tex. App.—Austin
Nov. 13, 2009, no pet.) (mem. op.) (mere grazing of land incidentally enclosed by a fence created
by others cannot support a claim of adverse possession). Williams was also unable to recall how
many years he used the land for grazing cattle.
8
Because the Gomezes no longer own property in the J.C. Madison Addition, it was not
error for the trial court to deny Newton’s request for declaratory and injunctive relief as to them.
11
matter of law all the vital facts supporting a conclusion that the collapse of [his] attempt to sell Block
9 was directly the result of Appellees’ behavior, which forced Appellant to agree with his buyer to
cancel their Contract for Deed.” An appellant attacking the legal sufficiency of an adverse finding on
which he carried the burden of proof must demonstrate that the evidence conclusively establishes,
as matter of law, the vital facts in support of the issue. See Dow Chem. Co. v. Francis, 46 S.W.3d 237,
241 (Tex. 2001).
The only evidence Newton identifies in his appellate brief is an Agreement for
Cancellation of Contract for Deed executed by Newton and Cruz, which recites that the agreed
cancellation was “based upon and arises out of the wrongful acts of third parties who have blocked
access to the Property along the roads, streets and alleys which were dedicated to the public as such,
making it impossible for Purchaser to access and enjoy the Property.” Newton does not identify
evidence establishing, as a matter of law, that Williams, Jones, or Gomez placed obstructions in the
areas dedicated as public roads with the intent of interfering with Newton’s contract. Rather, the
evidence at trial indicated that the intent was to prevent Newton from accessing Block 9 by crossing
what they believed, albeit incorrectly, to be their property. See Bradford v. Vento, 48 S.W.3d 749,
758 (Tex. 2001) (there is no tortious interference if interference is, at most, only incidental result of
conduct engaged in for another purpose). There is no evidence that Williams or Jones even knew
that Newton had entered into a contract with Cruz for the sale of Block 9 at the time they first denied
Newton access to Block 9. See Southwestern Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470,
472 (Tex. 1992) (tortious interference requires finding that defendant performed certain acts with
knowledge or belief that interference with contract would result from that conduct). Newton testified
12
that at the time he entered into the contract with Cruz he “knew that Ms. Jones and Mr. Williams
viewed it as their property and didn’t want us using the platted right-of-way.” We cannot say that
the evidence conclusively establishes, as a matter of law, that obstructing the roads dedicated to
public use in the J.C. Madison Addition constituted a willful and intentional act of interference
with Newton’s contract with Cruz. See id. (element of intent is established when actor desires to
cause consequences of his or her acts or believes those consequences are substantially certain to
result from those acts).
Newton also challenges the trial court’s denial of his claim of “tortious interference
with access to real property.” While Texas law recognizes a cause of action for tortious interference
with property rights, we are unaware of a cause of action for tortious interference with access to
real property. Newton provides no authority to support the existence of such a claim. Moreover, the
remedy Newton requested in his petition—removal of the obstructions to the roadway and use of the
roadways to access his property—may be provided by the trial court in the form of declaratory and
injunctive relief.9
Actual and Exemplary Damages
Newton asserts that the trial court erred in failing to award him $45,000 in actual
damages arising out of the alleged tortious interference with his contract with Cruz and in failing to
9
Additionally, Newton’s briefing of this issue consists of only three sentences and contains
no citations to the record or to any legal authority related to this claim. See Tex. R. App. P. 38.1(i)
(“The brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”); Maverick Cty. v. Railroad Commission of Tex.,
No. 03-14-00257-CV, 2015 WL 9583873, at *10 (Tex. App.—Austin Dec. 29, 2015, pet. denied)
(mem. op.) (when appellant offers no discussion or analysis of argument it is waived).
13
award him exemplary damages. Because we affirm the trial court’s conclusion that Newton failed
to establish the elements of tortious interference with contract, there is no basis for an award of
damages. Exemplary damages are not available unless the plaintiff establishes that it sustained
actual loss or injury as the result of an underlying tort. Tex. Civ. Prac. & Rem. Code § 41.004(a);
Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex. 1993) (“Recovery of punitive
damages requires a finding of an independent tort with accompanying actual damages.”). A plaintiff
cannot recover punitive damages if its compensatory damage claim is precluded as a matter of law.
Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 494 (Tex. App.—Beaumont 2004, pet. denied).
Because Newton did not recover on his tort claims, the trial court properly declined to award actual
or exemplary damages.
Attorneys’ Fees
Newton asserts that the trial court erred by refusing to award him attorneys’ fees
and costs. Having denied all of Newton’s claims, there was no basis for the trial court to award him
fees. We have, however, reversed and remanded the cause to the trial court for entry of appropriate
declaratory and injunctive relief. The Texas Uniform Declaratory Judgments Act provides that the
court may award costs and reasonable and necessary attorneys’ fees “as are equitable and just.” Tex.
Civ. Prac. & Rem. Code § 37.009. In the present case, our reversal of the trial court’s judgment
denying Newton declaratory relief may affect whether an award of attorneys’ fees is equitable and
just. See Sava Gumarska In Kemijska Industria D.D. v. Advanced Polymer Scis., Inc., 128 S.W.3d 304,
324 (Tex. App.—Dallas 2004, no pet.) (on remand after reversal of declaratory judgment ruling trial
court may reconsider attorneys’ fee award). On remand, the trial court may reconsider whether to
14
award attorneys’ fees under the declaratory judgments act, to whom any such fees may be awarded,
and the reasonable and necessary amount of any such attorneys’ fees, if awarded. See Arthur M. Deck
& Assocs. v. Crispin, 888 S.W.2d 56, 62 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (in
declaratory judgment action, trial court may award either side costs and reasonable attorneys’ fees).
CONCLUSION
For the reasons stated in this opinion, we reverse the portion of the trial court’s
judgment denying Newton’s request for declaratory and injunctive relief. We remand the cause to
the trial court to provide the appropriate declaratory and injunctive relief regarding Jefferson Street,
Adams Street, and Jackson Street in the J.C. Madison Addition. On remand, the trial court may
also reconsider whether to award attorneys’ fees pursuant to section 37.009 of the Texas Uniform
Declaratory Judgments Act. The remainder of the trial court’s judgment is affirmed.
_____________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed in Part, Reversed and Remanded in Part
Filed: July 10, 2018
15