App.El Paso 2000, no pet. Co. v. Sassin, 894 F.Supp. denied); Ranger Ins. Typically, the first-filed suit has dominant jurisdiction. Unless the lease agreement says otherwise, the landlord must give the tenant at least 3 days to move out. They cannot file an eviction suit before they give this notice in writing. 19821 DECLARATORY JUDGMENTS IN TEXAS their statutory law. Sept. 1, 1987; Acts 1999, 76th Leg., ch. Tex. Sec. 1998); Monticello Ins. The court, in the coverage action, concluded that there was a conflict of interest and a lack of privity, and therefore the insurer was not collaterally estopped from re-litigating the existence of false imprisonment. Rule 57 also notes that "the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." App.Fort Worth 1998, no pet.) Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139 (Tex. Board Certified, Consumer and 37.009. This article is designed to acquaint investors with basic rules and procedures involved in Texas litigation. Can I Still File if I am already in Costly Litigation? insecurity with respect to rights, status, and other legal relations.". App.Houston [14th Dist.] (a) This chapter may be cited as the Uniform Declaratory Judgments Act. An advantage to arbitration may be the possibility of a quicker trial date, quicker final resolution, and privacy, but arbitration rulings are usually consid-ered final and cannot be appealed. Under Texas law, a duty to defend is determined by the complaint allegation rule. denied) (refusing to allow use of extrinsic evidence to disprove alleged facts). & Rem. Where a judgment has been entered in the underlying case, and the insurer has refused indemnity, it may also be that declaratory relief is inappropriate, because a cause of action for breach of contract has ripened. Under this rule, the insurers defense obligations are determined by the allegations of the pleadings and the language of the insurance policy, without regard to the actual facts. Co. v. Boll, 392 S.W.2d 158, 161 (Tex. A number of issues arise in regard to discovery in a declaratory judgment action. McKee Foods Kingman v. Kellogg Co., 474 F. Supp . Start with the updated Protecting Family Rights course. endobj Many of our sample motions are here in electronic form. See Tri-Coastal Contractors, Inc. v. Hartford Undwrs Ins. Suite 1850 Code 37.002 (b). Rules 38 and 39 govern a demand for a jury trial. Rule 57. (4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling of accounts. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for. Tex. 504-526-4350, 408 St. Peter Street, Suite 510 Co., 975 S.W.2d 329, 332 (Tex. 1992), cert. But, because courts have recognized that, where a coverage issue exists, there is no privity between the insured and the insurer, there is an argument that an insurer should be allowed to litigate facts in a declaratory judgment, regardless of whether the facts are also being litigated in the underlying suit. As Texas law remains uncertain regarding reimbursement of defense costs, and as many insureds are not financially capable of repayment, the defense issue may be rendered moot either practically or legally by delay. Code Ann. App.Austin 1999, no pet.) 1973) (court had no authority to order declaration against insurer in response to insureds motion for summary judgment on insurers claims); Indigo Oil, Inc. v. Wiser Oil Co., 1998 TEX. Texas Family Code Section 2.401 states the proof necessary to establish an informal marriage in Texas: . Co v. Indemnity is based on the actual facts establishing liability in the underlying suit. A fee award is not mandatoryunder the UDJA . 1997); Heyden Newport Chemical Corp. v. So. Civ. See Natl Union Fire Ins. The answer may depend upon whether the insurer has defended or simply denied coverage, and the extent to which the issue is actually material to, and fully litigated in, the underlying dispute. In a straight complaint allegation case, for instance, there should be extremely limited discovery, beyond verification of the pleadings and the policy. Rule 57, FED. App.Austin 1998, pet. App.Dallas 2001, pet. <>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 12 0 R/Group<>/Tabs/S/StructParents 1>> "Undoubtedly, the degree of control the agreement ultimately exerts over the parties' rights in the . Corp. v. Vacuum Tanks, Inc., 975 F.2d 1130, 1133 (5th Cir. If you would like additional TRAINING: You canHIRE the PALMERS** to teach your attorney how to argue the declaratory judgment motions for you in your family law or divorce case. Co. v. Vandewater, 907 S.W.2d 491 (Tex. App.San Antonio 1998, pet. If your state does not have a declaratory judgment statute that provides you the ability to be heard on your constitutional rights consider filing in federal court for this relief. A. Code 6.305 (a) (1)- (2). 2003) (finding Texas allows only narrow exception); but see Gonzales v. American States Ins. 0 5 0 obj denied) (judgment of negligence in underlying case did not establish that negligent acts caused bodily injury, and did not preclude insurer from establishing intentional conduct); Deering Mgmt. 1994), the court reviewed abstention doctrine in relation to declaratory judgment actions. Co. v. Sweatt, 978 S.W.2d 267 (Tex. In state court, an order to seal discovery requires that the parties jump through a number of additional hoops, but protective orders are still available. 2002); Monticello Ins. <>>> See Farmers Tex. A declaratory judgment is one that simply declares the rights, status, or other legal relations of the parties without ordering anything to be done. App.Waco 1943, no writ); Superior Ins. 1995), the court held a minor, whose interests were affected, was properly made a party to a declaratory judgment action, and was bound by the judgment where the minors mother answered, as next friend, and a guardian ad litem was appointed. At issue was a 100-year old agreement regarding the proper boundary line that referred to certain mesquite trees and rock piles, a fence line drawn on a decades-old survey, and the ownership of 90 acres of land. Co. v. Tex. Sherry does this through creating and teaching online digital courses, speaking, webinars, and workshops. CODE provides, in subpart (a), that: When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties. Corp., 817 F.Supp. You may not reproduce or sell this material or copy it into other training without express permission from Ron or Sherry Palmer in writing. Please avail yourself of these resources before seeking a consultation. 1997)2; see also State Farm Lloyds v. Sec. endobj 7 0 obj endobj % Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. Co. v. Hood, 895 F.Supp. B. Respondent misstates the current law in Texas. The woman appealed, arguing the evidence was factually insufficient to support the finding there was no mutual intent to be married. While abstention doctrine is more frequently an issue in federal court, state courts can also abstain. 1996). (b) The declaration may be either affirmative or negative in form and effect, and the declaration has the force and effect of a final judgment or decree. 1997), the Supreme Court reaffirmed the complaint allegation rule, with dicta suggesting that the exception for extrinsic evidence would be narrowed. P., specifically provides, with regard to joinder of third parties, that This rule shall not be applied, in tort cases, so as to permit the joinder of a liability or indemnity insurance company, unless such company is by statute or contract liable to the person injured or damaged. Most policies include a no action provision that provides that a third partys right of action against the insured does not arise until there is a settlement, to which the insurer has agreed, or a judgment against the insured. COPYRIGHT: All of the materials are copyrighted. The courts have recognized an exception when the liability insurance is statutorily required, and arguably for the benefit of the claimant, such as compulsory auto insurance or workers compensation. 1998), overruled on other grounds, State Farm Fire & Cas. Co. v. Cowan, 945 S.W.2d 819 (Tex. A developing issue has been the extent to which declaratory relief is available to determine an insurers indemnity obligations, while the underlying suit is pending. See the resource below for more details. Texas is not a direct action state, and a claimant typically has no claim against an insurer until a judgment is obtained. <> Indemnity, on the other hand, is based on actual facts and should always be subject to extrinsic evidence. 2005); In re Marriage of Byrne, 179 Ill.App.3d 944 (1st Dist. endobj Uniform Declaratory Judgment Act A party to a declaratory judgment claim may recover "reasonable and necessary attorney's fees as are equitable and just" under the Uniform Declaratory Judgment Act (UDJA), which is codified in Chapter 37 of the Texas Civil Practice and Remedies Code. 1 0 obj When an issue has been litigated in the underlying case, when can it be re-litigated in the coverage dispute? <>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Contact Us if you have questions.). While for years there was a question in the Federal courts as to whether 38.001, Tex. Acts 2007, 80th Leg., R.S., Ch. 1998); see also Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741 (Tex. 37.003. Texas Pattern Jury Charges, published by the State Bar of Texas, is a compilation of definitions, jury instructions, and supplemental material, intended to assist practitioners with developing jury charges. Cf. Sept. 1, 1985. !`g)a00-k@@eU 39 F.3d at 591. The focus is on the factual allegations that show the origin of damages, rather than the legal theories alleged. c) The court may grant summary judgment as to liability only and leave damages for the jury, as appropriate. 2 0 obj 1968) (J. Smith, dissenting). This week our nation's highest court will decide whether to review the 6th Circuit's conclusion that a declaratory judgment of liability starts the statute of . 1995). R. Civ. endstream endobj 141 0 obj <. denied); cf. Pursuant to 37.003, a declaration may be either affirmative or negative in form and effect. Where extrinsic evidence is offered, however, the scope of discovery should be broader. App.Dallas 2001, pet. In this chapter, "person" means an individual, partnership, joint-stock company, unincorporated association or society, or municipal or other corporation of any character. Where suits are filed in two states, one court may abstain in favor of the first-filed suit. Co., 542 S.W.2d 429 (Tex. The court in Griffin relied upon a change in the Texas Constitution, expanding the scope of district court jurisdiction and eliminating the minimum amount in controversy. In determining amount in controversy, the court may consider policy limits and defense costs, and is not necessarily limited by the damages pleaded in the underlying suit. Over the past few decades, Texas family lawyers have engaged in a legal fiction: Let's tie a bow around the package of a partition and exchange agreement by seeking to have the agreement made the subject of a declaratory judgment action. For years, Texas courts concluded that a declaration of indemnity was premature, until the underlying suit was resolved. Civ. June 15, 2007. (a) In this section, "state" includes any political subdivision of that state. App.Dallas 1998, no pet.). The court then noted the special concerns applicable in declaratory actions. 3, Ch. at 332. App.Dallas 2001, pet. DEFINITION. 2000) (staying declaratory action because of motion to join insurer in state court liability suit). (a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. 1979, no writ) (not justiciable controversy); Boorhem-Fields, Inc. v. Burlington Northern Railroad Co., 884 S.W.2d 530 (Tex. 1445(c) and federal abstention principles. Prac. The Federal act is broader in scope. ydXOEp Pzz2 -Ia5D(eUE02Xd#zG5 ;}srmVY9c~Vqz6#tUy/`ck$cVpxKCoo,}o{T#@TQ]%5|@Rtx~K9jptm> oL The Texas Civil Practice and Remedies Code Section 37.005. provides that: Saint Paul, MN 55102 [ii]Civil Practice and Remedies Code Declaratory Judgments Sec 37.002 and Sec 37.003 (c) (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty. If the discovery is limited, or poorly conducted, or does not address the coverage issues, however, the insurer may seek additional testimony and evidence. denied); see also State Farm Fire & Cas. App.Houston [14th Dist.] %PDF-1.5 App.Fort Worth 1986, writ refd n.r.e.). Id. One common element circuit courts often point to is whether the suit was brought . The U.S. Supreme Court's 2015 ruling in Obergefell v. 37.001. A person claiming to be the surviving spouse should file a claim for declaratory judgment to determine if there was a legal common law marriage. Co., 387 S.W.2d 22, 25 (Tex. A federal anti-injunction also exists. ); Taylor v. State Farm Lloyds, 2003 Tex. In Chiriboga v. State Farm Mut. Amended by Acts 1987, 70th Leg., ch. 1969); see also Allstate Ins. Federal courts have typically held that declaratory relief is discretionary, and a federal court has broad authority to stay or dismiss an action seeking a declaratory judgment. A Declaratory Judgment allows you to establish with your court what your rights are before you take steps which might involve you in costly litigation. The courts appear to be split, with federal courts being somewhat more lenient in allowing the use of extrinsic evidence in this circumstance. "A declaratory judgment is appropriate only when there is a justiciable controversy about the rights and status of the parties, and the declaration would resolve the controversy." (Kinnard v. Collin Co Bail Bond (2006) No. Co. v. Deering Mgmt. When Is a Declaratory Judgment Proper? Co. v. Rio Grande Heart Specialists of So. Step 1: Written Notice to Vacate. Code 7.001. ), Code of Judical Conduct, Canon 3 B (c) obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond;. Co. v. Carmichael, 1998 Tex. Civ. Ins. County Mut. denied). 1968); National Sav. C.M.W., 53 S.W.3d 877 (Tex. P. 301; Logan v. Mullis, 686 S.W.2d 605, 609 (Tex . If the application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith. Co., 628 S.W.2d 184 (Tex. The declaratory judgment is to also help you prevent additional costly litigation as stated above. Co. v. Ochoa, 19 S.W.3d 452 (Tex. SUBJECT MATTER OF RELIEF. App.San Antonio 1965), affd, 396 S.W.2d 855 (holding state court had no jurisdiction to render advisory opinion while prior suit was pending on appeal in Fifth Circuit, despite federal courts voluntary stay). 1999) (insureds motion to transfer erroneously granted); Southern County Mut. Id. In this instance, both state and federal courts have readily allowed the use of extrinsic evidence to determine the duty to defend. *I`Sl,'dpC2\,AMia*K/[ -M @ICPgIw5 Y k]x?4 :D R*NuNK^CXdmS0I,-B The Act provides you with a mechanism to get a ruling from the court before you are dragged through costly litigation. Concho counterclaimed for breach of contract and a declaratory judgment premised on the signed 2008 letter. Rule 166a - Summary Judgment. 2283. Co., 502 S.W.2d 232 (Tex. App.Fort Worth 1978, no writ); Providence Lloyds Ins. If the order resolves the entire action, then the answer is easy. Nevertheless, some courts have concluded that declaratory relief is inappropriate where another cause of action is fully mature and provides an appropriate remedy at law. 1996). Civ. (c) This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees. 2023 Thompson, Coe, Cousins & Irons, LLP. : `g`R@, w@T!A4Au~?8\m`g`v4oy@+./`N`p4#fb` w{X0=@ d$ As a preliminary consideration, counsel for the insurer should be careful and selective in what is requested. endobj . You can share these posts as long as you are linking to our posts. Sec. 1995). Austin, TX 78746 <> . 925 S.W.2d at 714. App.Austin 1998, no pet. There are exceptions, however, (1) when conduct estops a party from asserting prior active jurisdiction; (2) where parties are lacking; or (3) where there is lack of intent to prosecute. She enables parents and attorneys to assert rights and convert the constitutional principles into everyday practice and natural language. Co. v. Taylor, 706 S.W.2d 352 (Tex. Sec. (c) Notwithstanding Section 22.001, Property Code, a person described by Subsection (a) may obtain a determination under this chapter when the sole issue concerning title to real property is the determination of the proper boundary line between adjoining properties. 4 0 obj Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. See London Mut. Ins. Civ. (c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the exercise of the general powers conferred in this section in any proceeding in which declaratory relief is sought and a judgment or decree will terminate the controversy or remove an uncertainty. 1941); and there is every reason for not reducing declaratory . final decision in the case instead of a judge. 37.006, TEX. Westport v. Atchley, Russell, Waldrop & Hlavinka, 267 F. Supp. 1787), Sec. App.Dallas 2001, pet. The issue becomes more murky when allegations triggering coverage are alleged, but are in conflict with the actual facts. hbbd```b``3@$i6D2j`5`YOe= "Ydl_02]fIk`|g Co. v. Taylor, 832 S.W.2d 645 (Tex. See, e.g., State Farm Fire & Cas. River Entertainment was joined because it owned Pepes where the defendant imbibed. App.Corpus Christi 2000, no writ). The firm's new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112. . Now you can hire experts to teach your court that you are asserting the protections of your parental rights[vii]. Tex. Co. v. Burch, 442 S.W.2d 331 (Tex. We do not guarantee or warrant any of this information. SHORT TITLE, CONSTRUCTION, INTERPRETATION. Lazaro C. Olivarez Family Trust Page 3 of 10 Electronically Filed 11/30/2016 4:52:31 PM Hidalgo County District Clerks Reviewed By: Jennifer Sinder b) Judgment No.2: That trustees cannot use trust funds to respond to this motion for declaratory judgments pursuant to page 14 paragraph numbered 20 of the trust documents because the court's . oEN>-BZ=/c]-ZP4U3o>0!f$F = FQfB@DlClYthnA mML.;Emu =uT ATTORNEY'S FEES IN DECLARATORY JUDGMENTS. Co. v. Bailey, 133 F.3d 363, 368 (5th Cir. App.Dallas 1998, pet. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for." - Texas Uniform Declaratory Judgments Act <> App.Beaumont 1972), affd other grounds, 496 S.W.2d 552 (Tex. A marriage might be void for other reasons, but not because the spouses are of the same sex. 189 0 obj <>stream The application must be by petition to a court having jurisdiction to grant the relief. Despite the insurers right to review any such documents without waiver of the privilege, and the likelihood that defense counsels concerns would be abrogated by the right to conduct discovery, there is still a question as to what extent defense counsels opinions or observations would be relevant to coverage. Co. v. Ochoa, 19 S.W.3d 452 (Tex. Litigation in Texas. Here are the requirements: An informal or common-law marriage exists in Texas if the parties (1) agree to be married, (2) live together in Texas as husband and wife after the agreement, and (3) represent to others that they are married. Obviously, the nature of the coverage issue to be determined will also determine the scope of discovery. Eskew, 731 S.W.2d 124, 132 (Tex.App.-Austin 1987, writ ref'd n.r.e.) 1995) (whether trademark violation occurred during policy period). In Wade, the insurer argued that it was not challenging the veracity of the facts alleged, but had a defense independent of the pleadings. Co., 143 F.3d 192 (5th Cir. In part, of course, the scope of discovery will be determined by the nature of the issue. App.Houston [1st Dist.] 1023, 1026 (N.D. Tex. Wherefore, Plaintiff prays for judgment against the Defendants as follows: Respectfully submitted, KOONSFULLER, P.C. 2201-2202 . App.Houston [1st Dist.] Sec. Co. of N. Suite 1400 1996). In a decree for divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. * Associate Professor of Law, Texas Tech University School of Law. declaratory judgment action or dismiss the case. (although judgment reversed on coverage, no indication courts refusal to award fees to either party was abuse of discretion). Co., 996 S.W.2d 207 (Tex. Co. v. Bradleys Elec., Inc., 993 S.W.2d 673 (Tex. 10 0 obj Even before the Texas Supreme Courts opinion in Griffin, federal courts recognized that indemnity presented an actual controversy and was justiciable, prior to judgment in the underlying liability suit. Suite 400 Ohio Cas. The court noted that the Griffin exception did not apply, but that a justiciable controversy existed, as the judgment clarified the rights of the parties under the contract; especially because the policy includes a provision under which Ranger could be relieved of its duty to defend by tendering its limits. In Gandy, the court broadened the scope of re-litigation, noting that in no event, however, is a judgment for plaintiff against defendant rendered without a fully adversarial trial, binding on defendants insurer . Despite the complaint allegation rule, Texas courts have always recognized that there are circumstances in which the court must look to extrinsic evidence to determine whether a duty to defend exists. Sec. Issues also arise, when the underlying case is still proceeding, as to the extent to which the insurer can discover information which could also be relevant, and potentially damaging, in the underlying liability suit. (c) A business described by Subsection (b)(1) is entitled to declaratory relief on the issue of whether the requirement of another state that the business collect and remit sales or use taxes to that state constitutes an undue burden on interstate commerce under Section 8, Article I, United States Constitution. Declaratory Judgment These rules govern the procedure for obtaining a declaratory judgment under 28 U.S.C. 1997); Trinity Universal Ins. 9 0 obj Section 37.003 says that courts of record have within their jurisdiction the "power to declare rights, status and other legal relations whether or not. Coverage disputes under liability policies are well-suited for declaratory actions. (b) This chapter is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered. ); Rice v. Alamo Rent-A-Car, Inc., 987 S.W.2d 231 (Tex. As a constitutional family rights expert researcher and writer, Sherry helps parents and their attorneys see the possibilities in making constitutional arguments for parental rights as being in the childs best interests. Section 6.204 of the Texas Family Code still states that same-sex marriages are void, but that law is no longer enforceable. 1996) (insurer not estopped from litigating employment issue). (b) In any proceeding that involves the validity of a municipal ordinance or franchise, the municipality must be made a party and is entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state must also be served with a copy of the proceeding and is entitled to be heard. 1, eff. d) The court may also grant summary judgment against the moving party, if appropriate. Co., 316 U.S. 491 (1942); Wilton, 515 U.S. 277. App.San Antonio 1998, pet. LEXIS 7550 (Tex. 37.007. Mut. In American Genl Fire & Cas. There is a contract, and a dispute over the parties rights and obligations under the contract. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs. 1969); Getty Oil v. Ins. (a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. App.Fort Worth 1992, writ denied) (insurer not estopped by failing to have declaratory judgment determined before judgment in underlying case). Sec.A37.003.AAPOWER OF COURTS TO RENDER JUDGMENT; FORM AND EFFECT. The abundance of case law allowing extrinsic evidence, however, suggests that the exception will continue. denied). 7/22/14 N/A Yes . 97, 99 (E.D. ^9@VXB-'C(SOZ#jGT"1kfWj7i,9^'EJ Cty. 3 0 obj denied) (disallowing evidence of workers compensation payments to establish employment). A declaratory judgment is typically requested when a party is threatened with a lawsuit but the lawsuit has not yet been filed; or when a party or parties believe that their rights under law and/or contract might conflict; or as part of a counterclaim to prevent further lawsuits from the same plaintiff (for example, when only a contract claim is 1997) (whether vehicle was owned by insured); Harken Exploration Co. v. Sphere Drake Ins., PLC, 261 F.3d 466 (5th Cir. Prac. The award is subject to reversal only if it is arbitrary and unreasonable. P. 26; Tex. Estates Construction Lane-Jones v. Estate of Not Reported in S.W.3d Houston (14th Dist.) 1998) (whether release was sudden and accidental); Western Heritage Ins. App.Austin 1999, pet. 1995, no writ); Employers Cas. Co. v. Gaskins, 572 S.W.2d 573, 575 (Tex. 1991). Tex. 2201, and further provides for a jury trial. Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment. Group, 946 F.Supp. Tex. Clearly, the insurer should be entitled to discovery of anything that has been discovered in the underlying suit. Advisory opinions are prohibited by both the state and federal constitutions. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). Copyright 2013 - 2023. Volumes are organized by broad practice area and are generally sold individually, since few practitioners have need for all of them. [ii], You have the right to ask your state court for relief if you have a statute that says you do, like Texas statute says, A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed[viii](Most states have an act like this. See Southern County Mut. Olympic Financial Group, Inc., ("Olympic Financial") and Abdulaziz Sugule appealed a judgment dismissing their declaratory judgment action without prejudice after the district court granted the Department of Financial Institutions' ("Department") motion to dismiss. Co., 981 S.W.2d 861 (Tex. 37.002. Ins. Sec. (providing a "court . One reason proffered is the possibility of inconsistent outcomes. Flexibility of Court in Awarding Fees. There is nothing that we find in the Declaratory Judgment Act that precludes you from filing this and asking your court to make this determination while you are in litigation. Declaratory Judgments Act) Texas CPRC Plus REF KFT 1728.A196 A2 CPRC Ch. Tex. 1989, no writ); In re Fontenot, 13 S.W.3d 111 (Tex. Civ. Co., 981 S.W.2d 861 (Tex. to prevent: 1. litigation, 2. loss, 3. debt, 4. damage (injury), and 5. penalties! App.Texarkana 1994, no writ) (possibility that liability triggering indemnity would be incurred was a feature hypothetical event, and court had no power to pass upon hypothetical or contingent situation); Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex. (a) A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. 37.010. REVIEW. SUPPLEMENTAL RELIEF. denied sub nom. xko9.ou _:=;0b+w)m3]WTy:>yYWOv]vs|?V~>zw"{}v~eM/XVY&R~Eou6Wv/ *]nT:^\-G:[A? 1 Partner, Scheef & Stone, LLP, Frisco, Texas. App.Corpus Christi 1975, writ refd n.r.e.)