Tucker v. Graham, 11-93-330-CV

• Decision Date: 16 June 1994
• Docket Number: No. 11-93-330-CV,11-93-330-CV
• Parties: Eldon Wayne TUCKER, Appellant, v. Paul D. GRAHAM, individually and as representative of The Sid Oliver Trust, and DeAlva Graham, Appellees.
• Court: Texas Court of Appeals

Page 681

878 S.W.2d 681

Eldon Wayne TUCKER, Appellant, v. Paul D. GRAHAM, individually and as representative of The

Sid Oliver Trust, and DeAlva Graham, Appellees.

No. 11-93-330-CV.

Court of Appeals of Texas,

Eastland.

June 16, 1994.

John Saringer, Scott Seamster, Wagstaff, Alvis, Stubbeman, Seamster & Longacre, Abilene, for appellant.

Thomas Choate, Abilene, for appellees.

OPINION

McCLOUD, Chief Justice.

Eldon Wayne Tucker built a dam or dike on property he owned in rural Taylor County to prevent surface water from flooding his property and his home. The natural flow of the surface water was from an adjacent tract of land owned by Paul D. Graham, DeAlva Graham, and The Sid Oliver Trust (Graham property) onto Tucker's 1.0044-acre tract (Tucker property).

Paul D. Graham, individually and as representative of The Sid Oliver Trust, together with DeAlva Graham sued Tucker, Tucker's ex-wife, ¹ and Levi W. and Mattie Douglas ² alleging that Tucker's dam was a nuisance that diverted or impounded the surface water, prevented the natural flow of the water, unreasonably interfered with plaintiffs' use and enjoyment of their land, and caused damage to their land. Plaintiffs sought damages and the removal of the dam. Plaintiffs also sought a declaratory judgment that the dam was a nuisance and that the dam was in violation of TEX.WATER CODE ANN. § 11.086 (Vernon 1988). ³ Plaintiffs further sought attorney's fees under TEX.CIV.PRAC. & REM.CODE ANN. § 37.009 (Vernon 1986).

After a nonjury trial, the trial court found that the dam was in violation of Section 11.086 of the Water Code and that plaintiffs were entitled to recover $315.00 in damages. The trial court entered a mandatory injunction ordering that the dam be removed and prohibiting the future construction of any dams higher than the elevation at the boundary between the Graham and Tucker properties and within eight feet of the Graham/Tucker property line. The trial court also awarded plaintiffs attorney's fees and expenses totalling $7,768.75. Tucker appeals. We reverse and render in part and affirm in part.

In his first point of error, Tucker argues that plaintiffs' declaratory judgment action involved the same rights to be determined in plaintiffs' cause of action for damages resulting from his violation of Section 11.086 of the Water Code. Therefore, Tucker contends that the trial court abused its discretion when it awarded attorney's fees under the provisions of the Uniform Declaratory Judgments Act, TEX.REV.CIV.PRAC. & REM.CODE ANN. § 37.001 et seq. (Vernon 1986 & Supp.1994). We agree.

Plaintiffs' original petition sought monetary damages for damage caused by Tucker's dam, the removal of the dam, and attorney's fees. After Tucker filed a special exception on the grounds that plaintiffs had cited no statutory authority for the award of attorney's fees, plaintiffs timely filed their first amended petition seeking relief under the Declaratory Judgments Act, including attorney's fees.

While Paragraph III of the amended petition did not mention Section 11.086, Paragraph III alleged a cause of action for violation of Section 11.086 of the Water Code: Tucker used his property adjacent to plaintiffs' property to divert or impound water causing damage to plaintiffs' property. Kraft v. Langford, 565 S.W.2d 223 (Tex.1978); Bily v. Omni Equities, Inc., 731 S.W.2d 606 (Tex.App.--Houston [14th Dist.] 1987, writ ref'd n.r.e.). Paragraph IV sought a declaratory judgment that Tucker created a nuisance. This was not a proper request for declaratory relief because it did not involve the construction or validity of an instrument, statute, ordinance, contract, or franchise as required by the Declaratory Judgments Act. See TEX.CIV.PRAC. & REM.CODE ANN. § 37.004. Paragraph V sought a declaration that Tucker's actions were in violation of Section 11.086 of the Water Code. Paragraph VI sought $8,800.00 in damages, and Paragraph VII sought attorney's fees under the Declaratory Judgments Act. Plaintiffs then prayed for a declaratory judgment that Tucker had created a nuisance for a judgment against Tucker in the amount of not less than $8,800.00; for attorney's fees and costs; for an order for removal of the dam; and for such other relief as they might be entitled to.

A declaratory judgment is a remedial action that determines the rights of the parties and affords relief from uncertainty with respect to rights, status, and legal relations. TEX.CIV.PRAC. & REM.CODE ANN. § 37.002; 1 ROY W. MCDONALD, TEXAS CIVIL PRACTICE § 4:9 (rev. 1992). A declaratory judgment action is not appropriate where plaintiff's cause of action is mature and enforceable in a pending suit that involves the same parties and the same issues as alleged in the declaratory judgment action. Southern Traffic Bureau v. Thompson, 232 S.W.2d 742 (Tex.Civ.App.--San Antonio 1950, writ ref'd n.r.e.); 1 ROY W. MCDONALD, TEXAS CIVIL PRACTICE § 4:12 at p. 435 (rev. 1992).

Plaintiffs' first amended petition alleged a cause of action for the violation of Section 11.086 of the Water Code based on the nuisance constructed by Tucker. This was a mature cause of action that could be enforced. Plaintiffs' declaratory judgment action involved the same parties and the same issues as in the statutory cause of action...