Robert C. Pruett v. City of Galena Park

Opinion issued July 12, 2022

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-20-00521-CV

———————————

ROBERT C. PRUETT, Appellant

V.

CITY OF GALENA PARK, Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Case No. 2016-35876

MEMORANDUM OPINION

Appellant Robert C. Pruett was a long-time employee of appellee the City of

Galena Park (the City), serving as a police officer, chief of police, and city

administrator over more than twenty years. Following a tumultuous election and

resulting upheaval in the City’s mayoral office and City Commission, Pruett

resigned. He subsequently sought severance pay pursuant to a City ordinance

providing for severance benefits to certain long-term employees and pursuant to a

purported Severance Agreement between him and the City. The City opposed

paying severance benefits. The City filed a petition seeking declaratory judgment

construing the ordinance and Severance Agreement, and Pruett alleged counter-

claims challenging the City’s construction of the ordinance and agreement and

alleging that the City had breached its contract with him. Both parties filed motions

for summary judgment, and, after several interlocutory rulings, the trial court

rendered judgment granting the City’s motion and denying Pruett’s.

On appeal, Pruett contends that the trial court erred (1) in granting the City’s

motion for summary judgment and denying his own motion and (2) in denying his

request for attorney’s fees pursuant to Civil Practice and Remedies Code chapters

37 and 38. Because we conclude that the ordinance in question did not, by itself,

support Pruett’s claim for severance benefits and the purported agreement between

the parties was invalid, we affirm.

Background

Robert C. Pruett served the City of Galena Park as a police officer starting in

1993. He eventually became the Chief of Police in 2000, and he became the City

Administrator in 2012. In 2014, mayoral candidate Esmerelda Moya ran on a

platform that included efforts to eliminate the position of City Administrator.

2

Pruett presented summary judgment evidence that Moya targeted him personally

during this contentious election and, upon her election to office, attempted to have

him removed from office. The governing body of the City—the City

Commission1—voted against removing Pruett.

After this attempt to remove him, the City Commission adopted Ordinance

2015-10, which stated that its purpose was to amend the City’s personnel

ordinance to provide for severance package agreements and benefits for certain

long-term employees. The Ordinance further stated, “It is the intent of this

ordinance to provide severance protection to long term senior Department Heads

and certain Key Employees of the City[.]” The Ordinance defined key terms,

including “Department Head,” which expressly included the City Administrator,

and “Key Employee.” The Ordinance also defined “Severance Agreement” as “the

agreement between the covered employee and the City entered into pursuant to this

ordinance and the terms and conditions of the severance agreement.”

Ordinance 2015-10 then provided for compensation upon termination under

certain circumstances:

If the Department Head or Key Employee’s employment is terminated

by the City Commission Without Good Cause or by the Department

Head or Key Employee With Good Reason during the employment

period, the City Commission shall provide to the Employee the

1

The City is a Texas home rule city operating under a city charter that provides for

the business of the City to be conducted by the mayor and four Commissioners.

Galena Park charter art. IX, Sec. 1; Galena Park Code § 2-47.

3

accrued obligations, severance compensation and other benefits set

forth in this ordinance and in the severance agreement of the parties.

The Ordinance defined “Good Cause” as including “[w]illful or negligent failure to

fulfill and perform the duties required by his job or employment,” and it defined

“Voluntary termination for Good Reason” as including “any willful and deliberate

action by the City Commission that creates a hostile work environment so as to

make continued employment unbearable.” Severance benefits were not available

for terminations by the City with Good Cause or “[i]n the event the Department

Head or Key Employee voluntarily retires, becomes disabled and is unable to

perform his required duties, or dies during his employment.”

The Ordinance set out a method for determining the severance amount,

stating that the amount should be a lump-sum payment consisting of “one month’s

base wages for every year of service” but that “the total severance pay paid to such

employee shall not exceed twenty-four (24) months.” The Ordinance also set out a

procedure to “Contest and Appeal” a termination:

G. Contest and Appeal of termination. (1) The Department Head or

Key Employee may contest and appeal the decision of the City

Commission to terminate his employment for “Good Cause” by

requesting that the decision be submitted to an Arbitration Hearing

before an independent hearing examiner or arbitrator within ten (10)

days of such employee’s termination. The hearing examiner or

arbitrator shall be selected and the hearing shall be held pursuant to

the American Arbitration Association Rules and Regulations. (2) The

City Commission may also contest and appeal the decision of the

Department Head or Key Employee to terminate his employment for

“Good Reason” by requesting that the decision be submitted to an

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Arbitration Hearing before an independent hearing examiner within

10 days of such employee’s delivery of his written notice to terminate

his employment for “Good Reason” to the City Secretary of the City

of Galena Park. The hearing examiner or arbitrator shall be selected

and hearing shall be held pursuant to the American Arbitration

Association Rules and Regulations.

The Ordinance also contained a “Severance Agreement” provision:

I. Severance Agreement[.] After the Department Head or Key

Employee accumulates twenty (20) years of employment with the

City, the City Commission will provide a formal Severance

Agreement in such form as it may deem proper and in accordance

with the terms and conditions of this ordinance. Such formal

agreement must be agreed to and executed by the Department Head or

Key Employee in order for such employee to be entitled to the

benefits of severance pay provided in this ordinance.

And the Ordinance contained a severability clause, providing that “any section,

paragraph, sentence, clause, or phrase contained in this ordinance” that becomes

illegal, null, or void could be severed and the remaining sections “shall not be

affected thereby.”

Ordinance 2015-10 was adopted by the then-sitting City Commission, but it

was not signed by Mayor Mora. Rather, it was signed by Mayor Pro Tem Maricela

Serna.

On March 15, 2016, Pruett filed suit in federal court regarding Moya’s

unsuccessful attempt to remove Pruett as City Administrator. He sought relief

pursuant to the Age Discrimination in Employment Act and Title VII of the Civil

Rights Act of 1964. These claims were ultimately dismissed.

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In May 2016, Pruett and the four then-sitting Commissioners—Juan Flores,

Maricela Serna, Cruz Hinojosa, Jr., and Danny Simms—signed a “Severance

Agreement.” The purported Severance Agreement provided for Pruett to receive

severance benefits as provided for in Ordinance 2015-10 if he resigned for good

reason, and it contained a mandatory arbitration provision. However, the purported

Severance Agreement was not presented to the City Commission as a formally

convened body in an open meeting, nor was it voted on or approved by the Mayor.

No public notice was given of a meeting to approve or ratify the purported

Severance Agreement. The purported Severance Agreement was not signed by the

Mayor, the City Secretary, or the City Attorney.

On May 7, 2016, Flores, Serna, Hinojosa, and Sims lost their bids to be re-

elected to the City Commission. In addition to the election of the new

Commissioners—Rodney Chersky, Oscar Silva, Eric Broussard, and Barry

Ponder—Mayor Moya was re-elected.

Following this election, the City Commission provided the required notice of

its next meeting, including an agenda. The agenda stated that the Commission

would canvass the election results and swear in the new Commissioners. The

agenda also included consideration and voting on proposed Ordinance 2016-01,

which would rescind Ordinance 2015-10.

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Pruett signed a resignation letter dated May 16, 2016. The resignation letter

stated that his resignation would take effect at 5:00 pm on May 16, 2016. Pruett

stated, “I have reviewed the city council agenda and it is clear to me that you have

once again violated the Open Meetings Act with yet another walking quorum in an

attempt to fire both me and Chief of Police John Rader and beat both of us out of

the severance package that the City Council has previously approved.” Pruett

identified other actions that he believed violated the City Charter and state law and

stated, “For these and other reasons, I cannot in good conscience continue my

employment with the City of Galena Park. Please immediately tender my

severance package payment to my home address[.]”

The City Commission accepted his resignation at the May 17, 2016 meeting.

The Commission also passed Ordinance No. 2016-01, repealing Ordinance 2015-

10. In adopting Ordinance 2016-01, the City Commission found that “[w]hen

Ordinance 2015-10 was adopted, no provision was made to fund the benefits

descried therein,” and that “the city commission believes that it is not in the public

interest to provide the benefits described in Ordinance 2015-10.”

On May 20, 2016, Pruett presented his purported Severance Agreement to

the City by sending it to the City Secretary’s office. The document was added to

his personnel file. On May 24, 2016, Pruett’s counsel sent a letter to the Mayor

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demanding full severance benefits under Ordinance 2015-10 and requesting that

the matter be arbitrated if the City refused.

On May 31, 2016, the City commenced the underlying suit by filing its

original petition “to Stay Arbitration.” In this petition, the City sought declaratory

and injunctive relief.2 Pruett counter-petitioned, seeking a declaratory judgment

that both Ordinance 2015-10 and the purported Severance Agreement were valid.

Pruett further requested that “the Court determine and declare whether the

conditions precedent to performance have been met under both Ordinance 2015-10

and the severance agreement, such that Pruett would be entitled to severance

benefits as provided in the Ordinance.” Pruett also alleged that the City breached

its contract with him.

The parties filed cross motions for summary judgment. Significant here, the

City asserted that Ordinance 2015-10 was not valid.3 It argued that repealed

Ordinance 2015-10 was not “self-executing” and that a written severance contract

was required for any severance benefits to be authorized. The City further argued

2

The City’s petition was originally filed to prevent Pruett’s attempt to arbitrate the

dispute between himself and the City. As the litigation progressed, the demand for

arbitration was eventually dropped.

3

The City’s motion for summary judgment was filed in light of its efforts to prevent

Pruett from arbitrating the dispute between the parties. Although its challenge to

the validity of Ordinance 2015-10 and the purported Severance Agreement was

phrased in terms of invalidating any agreement to arbitrate, the City’s arguments,

as set out above, stated arguments generally applicable to the validity and

enforceability of the Ordinance and the Severance Agreement.

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that Ordinance 2015-10 was not validly adopted because it was signed by the

Mayor Pro Tem rather than the Mayor and proper public notice was not given. The

City further challenged the validity of the purported Severance Agreement. Pruett,

in his motion for summary judgment, argued that both Ordinance 2015-10 and his

Severance Agreement were valid and enforceable and entitled him to severance

benefits.

The trial court made several interlocutory rulings while these motions for

summary judgment were pending. On February 13, 2020, the trial court signed an

order resolving some of the issues raised in the motions for summary judgment.

The order stated that the trial court “does not rule on the merits of the City’s

motions, but instead finds that the City does not have standing” to challenge

various aspects of the adoption of the Ordinance and purported Severance

Agreement.

Litigation continued between the parties, and on February 4, 2020, the trial

court signed its “Agreed Amended Order Declaring [the purported Severance

Agreement] Unenforceable.” This order stated, “On December 18, 2019, came on

for consideration the validity of the severance agreement between the City of

Galena Park and Robert Pruett arising from Ordinance No. 2015-10 and made the

subject of this action.” The trial court “found the severance agreement to be void

and unenforceable.”

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On February 25, 2020, the trial court signed orders stating only that it

granted the City’s motion for summary judgment and denied Pruett’s motion for

summary judgment. These orders did not state the grounds for the trial court’s

rulings, nor did they contain any declarations.

Pruett subsequently filed a “Cross-motion for Attorney’s Fees and Entry of

Final Judgment.” He sought attorney’s fees pursuant to the Declaratory Judgment

Act (DJA). See TEX. CIV. PRAC. & REM. CODE § 37.009. The City likewise sought

attorney’s fees pursuant to the DJA.

The trial court rendered its final judgment on July 14, 2020. The final

judgment stated, “This Court, recognizing its authority under [Chapter] 37 of the

Texas Civil Practice & Remedies Code, decides not to exercise its discretion in

awarding fees to any Party to this litigation. By signing this Order, the February

25, 2020 Summary Judgment Order is final and appealable. All relief not granted

by this Order is DENIED.” This appeal followed.

Summary Judgment

In his first issue, Pruett challenges the trial court’s judgment, rendered on the

basis of the parties’ cross-motions for summary judgment.

A. Standard of Review

Summary judgment is appropriate only when no genuine issue of material

fact exists and the movant is entitled to judgment as a matter of law. TEX. R. CIV.

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P. 166a(c). On cross-motions for summary judgment, “each party bears the burden

of establishing that it is entitled to judgment as a matter of law.” Tarr v.

Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018); Fallon v.

Univ. of Tex. MD Anderson Cancer Ctr., 586 S.W.3d 37, 46 (Tex. App.—Houston

[1st Dist.] 2019, no pet.). When both parties move for summary judgment and the

trial court denies one motion but grants the other, we examine the summary-

judgment evidence presented by each party, determine all issues presented, and

render the judgment that the trial court should have rendered. Fallon, 586 S.W.3d

at 46; Tarr, 556 S.W.3d at 278–79; Mann Frankfort Stein & Lipp Advisors, Inc. v.

Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

B. Construction of Ordinance 2015-10

As part of his first issue challenging the trial court’s ruling granting the

City’s motion for summary judgment and denying his own motion for summary

judgment on his breach of contract claim, Pruett argues that the City “entered into

a contractual agreement with [him] for a severance or retirement package in the

event he should be fired or should resign for good cause” and that this agreement

was “memorialized, not created, or was confirmed and independently created, by

the passage of a City ordinance: No. 2015-10.” Pruett argues that “[t]he Ordinance

created, by its very passage, a valid and subsisting contract between the City and

[Pruett].”

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The City challenges this assertion, arguing in relevant part that the

Ordinance did not create a binding obligation on the City. In its motion for

summary judgment, the City argues that Ordinance 2015-10 was “not a stand-alone

contract and create[d] no self-executing obligation against the City.” Rather, the

City argued that the Ordinance “was intended to amend the City’s Personnel Policy

to authorize the Commission to enter into severance agreements with eligible

employees,” and the Ordinance required that the City Commission “must still enter

separate, written severance agreements with eligible employees in a form [it]

deemed proper.” In its brief on appeal, the City cites these arguments to support its

contention that the trial court’s judgment based on the parties’ cross-motions for

summary judgment was proper.

We agree with the City that Ordinance 2015-10 cannot be construed as a

stand-alone contract for the City to pay Pruett severance benefits.

In construing municipal ordinances, we apply the same rules that govern the

construction of state statutes. Powell v. City of Hous., 628 S.W.3d 838, 842 (Tex.

2021); Hotze v. Turner, 634 S.W.3d 508, 515 (Tex. App.—Houston [14th Dist.]

2021, pet. filed). The proper construction of an ordinance is a question of law we

review de novo. Powell, 628 S.W.3d at 842. “In construing a municipal ordinance,

we seek to determine and give effect to the intent of the governing body of the

municipality.” Hotze, 634 S.W.3d at 515. “We ascertain that intent from the

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language the governing body used in the ordinance—if the meaning of the

ordinance’s language is unambiguous, we adopt the interpretation supported by the

plain meaning of the provision’s words.” Id. “We must not engage in forced or

strained construction; instead, we must yield to the plain sense of the words the

governing body chose.” Id.

Pruett argues that Ordinance 2015-10 is an enforceable contract for

severance pay, citing City of Houston v. Williams. In Williams, the Supreme Court

of Texas addressed whether a lawsuit by 540 former Houston Firefighters against

the City of Houston for underpayment of lump-sum severance benefits was barred

by governmental immunity. 353 S.W.3d 128, 131–32 (Tex. 2011). The Firefighters

relied on Local Government Code section 271.152, waiving governmental

immunity for certain suits alleging breach of written contract, arguing that certain

City of Houston ordinances and three agreements negotiated between the

Firefighters’ union and the City constituted written agreements that fell within

section 271.152’s waiver. Id. In this context, the supreme court considered whether

certain City of Houston ordinances constituted a unilateral employment contract.

Id. at 135–36.

The Williams court concluded, “[I]n some circumstances, an ordinance or

group of ordinances can constitute a unilateral contract.” Id. at 136. The court

outlined the specific provisions contained in the City of Houston ordinances that

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constituted the terms of the agreement of the City of Houston to pay certain

benefits to its Firefighters, and it concluded that the ordinances in that case

comprised a contract:

“A promise, acceptance of which will form a contract, ‘is a

manifestation of intention to act or refrain from acting in a specified

way, so made as to justify a promisee in understanding that a

commitment has been made.’” Montgomery Cnty. Hosp. Dist. v.

Brown, 965 S.W.2d 501, 502 (Tex. 1998) (quoting RESTATEMENT

(SECOND) OF CONTRACTS § 2(1)). The City manifested its intention to

act in a specific way in the Ordinances by its extensive use of the

word “shall” and similar provisions that make the benefits offered to

the Firefighters mandatory upon performance.

Id. at 138 (footnote omitted); see also Saifi v. City of Texas City, No. 14-13-00815-

CV, 2015 WL 1843540, at *5–6 (Tex. App.—Houston [14th Dist.] Apr. 23, 2015,

no pet.) (mem. op.).

Thus, courts look to the terms of the ordinance itself to determine whether

the ordinance constituted an agreement. See Saifi, 2015 WL 1843540, at *5

(analyzing Williams opinion and stating, “After examining the ordinances in detail,

the court determined that the ordinances constituted a unilateral employment

contract with the city”); see also Williams, 353 S.W.3d at 136–37 (discussing

general standing ordinances as unilateral contracts and citing cases such as S.

Union Co. v. City of Edinberg, 129 S.W.3d 74, 76 (Tex. 2003) (construing city’s

ordinance that “embodied” franchise agreement between municipality and gas

company as contract and discerning from it parties’ intent and scope of their

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respective obligations) and Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22

S.W.3d 831, 840–41 (Tex. 2000) (construing two ordinances and related

documents together as single agreement)).

Looking to the plain language of Ordinance 2015-10, we conclude that it is

distinguishable from the ordinances in Williams. We disagree with Pruett’s

contention that the Ordinance, by itself, constitutes a contract promising him

severance pay. Ordinance 2015-10 provided for severance compensation upon

termination under certain circumstances, in accordance with the terms of the

ordinance itself and a formal- severance agreement:

If the Department Head or Key Employee’s employment is terminated

by the City Commission Without Good Cause or by the Department

Head or Key Employee With Good Reason during the employment

period, the City Commission shall provide to the Employee the

accrued obligations, severance compensation and other benefits set

forth in this ordinance and in the severance agreement of the parties.

(Emphasis added.) The Ordinance defined “Severance Agreement” as “the

agreement between the covered employee and the City entered into pursuant to this

ordinance and the terms and conditions of the severance agreement.” And the

Ordinance contained a “Severance Agreement” provision:

I. Severance Agreement[.] After the Department Head or Key

Employee accumulates twenty (20) years of employment with the

City, the City Commission will provide a formal Severance

Agreement in such form as it may deem proper and in accordance

with the terms and conditions of this ordinance. Such formal

agreement must be agreed to and executed by the Department Head or

15

Key Employee in order for such employee to be entitled to the

benefits of severance pay provided in this ordinance.

By its plain language, Ordinance 2015-10 contemplates the creation of a

severance agreement for individual employees who would qualify for severance

benefits under the ordinance. And it provided that such an agreement would be

created by the City Commission “in such form as [the Commission] may deem

proper” and that the formal agreement “must be agreed to and executed by the

Department Head . . . in order for such employee to be entitled to the benefits of

severance pay provided in this ordinance.” Thus, although Pruett argues that

Ordinance 2015-10 “created a present right, one not contingent upon any future

occurrence or condition precedent other than the resignation for good cause by

[Pruett],” the Ordinance itself indicates that that the payment of severance benefits

was contingent upon the creation and execution of a formal severance agreement.

We conclude that the Ordinance, by itself, did not entitle Pruett to severance

pay. By its plain language, a formal severance agreement created according to the

terms of the Ordinance and properly executed by the parties was required. The trial

court rendered an interlocutory order, based on the agreement of the parties,

concluding that the purported Severance Agreement—the only such agreement

presented in the summary judgment record—was void and unenforceable. That

ruling is not challenged on appeal. Because no valid and enforceable severance

agreement exists between the parties, Pruett cannot prevail on his claim that the

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City owed him severance pay as a matter of law. Thus, the trial court properly

rendered judgment based on the cross-motions for summary judgment.

Pruett asserts several other arguments in support of his breach of contract

claim that are also unavailing. He argues that the “failure of the severance

agreement does not invalidate the Ordinance,” pointing to the Ordinance’s

severability clause which provides:

J. Severability. If any section, paragraph, sentence, clause or phrase

contained in this ordinance shall become illegal, null, or void, or shall

be found to be against public policy or contrary to state or federal law,

for any reason, or shall be held by any court of competent jurisdiction

to be illegal, null or void, the remaining sections, paragraphs,

sentences, clauses or phrases contained in this ordinance shall not be

affected thereby.

Pruett argues that “if the terms relating to the severance agreement are excised

from the ordinance,” then “the remaining sections leave a valid and complete

ordinance.”

This argument misapplies the intent behind the severability clause.

“Severability is determined by the intent of the parties as evidenced by the

language in the contract.” Ross v. Union Carbide Corp., 296 S.W.3d 206, 218

(Tex. App.—Houston [14th Dist.] 2009, pet. denied). If a portion of the ordinance

is determined to be unlawful or void, severing the remaining provisions may be

proper “[i]f, when the [unlawful] portion is stricken out, that which remains is

complete in itself, and capable of being executed in accordance with the apparent

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legislative intent, wholly independent of that which was rejected. . . .” Rose v.

Doctors Hosp., 801 S.W.2d 841, 844 (Tex. 1990). Here, however, no portion of

Ordinance 2015-10 has been declared unlawful; rather, we have determined that

the Ordinance as written did not, by itself, entitle Pruett to severance benefits. The

severability clause cannot be used here to waive the requirement of a validly

created and properly executed formal severance agreement.

Pruett further argues that the City’s failure to secure a severance agreement

should not excuse it from payment of the severance benefits. Pruett argues,

“Generally, a party who ‘prevents or makes impossible’ the occurrence of a

condition precedent upon which its liability under a contract depends cannot rely

on the nonoccurrence to escape liability.” See SLT Dealer Grp., Ltd. v.

AmeriCredit Fin’l Servs., Inc., 336 S.W.3d 822, 831 (Tex. App.—Houston [1st

Dist.] 2011, no pet.) (“As a general rule, ‘one who prevents or makes impossible

the performance of a condition precedent upon which his liability under a contract

is made to depend cannot avail himself of its nonperformance.’”); Clear Lake City

Water Auth. v. Friendswood Dev. Co., 344 S.W.3d 514, 519–520 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied) (opinion on remand). Pruett argues that

“because the severance agreement is void for non-execution by the City, the City

Council failed to perform its duties under the ordinance.”

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The cases cited by Pruett involve circumstances in which one party was

contractually obligated to perform certain “conditions precedent”—“conditions”

that were more properly construed as “covenants.” This Court in SLT Dealer

Group recognized that “[c]onditions precedent may be either a condition to the

formation of a contract or an obligation to perform an existing agreement.” 336

S.W.3d at 830. We concluded in that case that the requirement that the appellee

perfect a security interest in favor of the appellant “read in conjunction with the

rest of the provisions” in the parties’ agreement created “a covenant, not a

condition.” Id.

Similarly, in Clear Lake City Water Authority, the Fourteenth Court of

Appeals considered an agreement between the water authority and a development

company in which the authority agreed to purchase the developers’ facilities

subject to voter approval. 344 S.W.3d at 519–20. The court held that the water

authority’s failure to submit the required bond measure in the election did not

excuse its performance. Id. (holding that water authority could not rely on

projected failure of voter approval to escape its liability to purchase developers’

facilities).

In contrast, here, we have already rejected Pruett’s view that the Ordinance,

standing alone, constituted an agreement of the City to provide him with severance

benefits. As discussed above, the Ordinance set out conditions under which the

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City could enter into severance agreements with certain employees. The City never

entered into a valid severance agreement with Pruett prior to his resignation and

the City’s subsequent repeal of Ordinance 2015-10. Pruett has thus failed to show

he was entitled to relief on this basis.

We overrule Pruett’s challenge to the trial court’s summary-judgment

rulings.

Attorney’s Fees & Costs

In his second issue, Pruett argues that the trial court erred in denying his

request for attorney’s fees. He asserts that he was entitled to fees on his breach of

contract claim and pursuant to the DJA. However, he was not a prevailing party on

his breach of contract claim and thus is not entitled to attorney’s fees on that basis.

See TEX. CIV. PRAC. & REM. CODE § 38.001(b)(8); Peterson Grp., Inc. v. PLTQ

Lotus Grp., L.P., 417 S.W.3d 46, 60 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied) (recognizing that to obtain attorney’s fees pursuant to section 38.001, party

must prevail on appropriate cause of action and recover damages).

Pruett also argues that he prevailed in the declaratory judgment action

because the City never obtained declaratory relief, and, thus, he was entitled to his

attorney’s fees under Civil Practice and Remedies Code section 37.009. We

observe, however, that the trial court granted the City’s motion for summary

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judgment and denied Pruett’s. The trial court further stated that it declined to

award attorney’s fees to either party in this case.

The DJA provides that the trial court “may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE

§ 37.009. Thus, “the Declaratory Judgments Act allows fee awards to either party

in all cases.” MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660,

669 (Tex. 2009). The award of attorney’s fees under the DJA is left to the

discretion of the trial court and is not dependent on a finding that the party

“substantially prevailed.” See Barshop v. Medina Cty. Underground Water

Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996); Feldman v. KPMG LLP,

438 S.W.3d 678, 685 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“Under

section 37.009, a trial court may exercise its discretion to award attorneys’ fees to

the prevailing party, the nonprevailing party, or neither.”). Given this broad grant

of discretion and the facts of this case—including the nature of the dispute between

the City and Pruett and the fact that the trial court denied Pruett’s motion for

summary judgment and granted the City’s motion for summary judgment—we

cannot say that the trial court abused its discretion in declining to award Pruett

attorney’s fees. See Feldman, 438 S.W.3d at 685.

Pruett also argues that he was entitled to recover costs pursuant to Rule of

Civil Procedure 131. See TEX. R. CIV. P. 131 (“The successful party to a suit shall

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recover of his adversary all costs incurred therein, except where otherwise

provided.”). The trial court’s judgment did not address costs, and as noted above,

Pruett cannot be considered the successful party. See Fortitude Energy, LLC v.

Sooner Pipe LLC, 564 S.W.3d 167, 189–90 (Tex. App.—Houston [1st Dist.] 2018,

no pet.) (holding that “successful party” is “one who obtains judgment of a

competent court vindicating a civil right or claim”); Henry v. Masson, 453 S.W.3d

43, 50–51 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding that when party

alleges counterclaim, “if neither party is wholly successful on its claims, it is

within the trial court’s discretion to order each party to bear its own costs”); see

also Durant v. Anderson, No. 02-14-00283-CV, 2020 WL 1295058, at *36 (Tex.

App.—Fort Worth Mar. 19, 2020, pet. denied) (mem. op.) (“The plain language of

Rule 131 does not expressly require an allocation of costs between unsuccessful

parties.”).

We overrule Pruett’s challenge to the trial court’s decision to deny his

request for attorney’s fees and costs.

Conclusion

We affirm the judgment of the trial court.

Richard Hightower

Justice

Panel consists of Justices Landau, Hightower, and Rivas-Molloy.

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