Court of Appeals
Tenth Appellate District of Texas
10-25-00243-CV
Kevin B. Miller,
Appellant
v.
College Station Properties KP6, LLC and
Cardinal Group Management Midwest, LLC,
Appellees
On appeal from the
472nd District Court of Brazos County, Texas
Judge G. Jerrell Wise, presiding
Trial Court Cause No. 24-002707-CV-472
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Kevin B. Miller appeals from the dismissal of his suit for declaratory
relief against College Station Properties KP6, LLC and Cardinal Group
Management Midwest, LLC. In two issues, Miller contends the trial court
erred in dismissing his claims on its own motion at the hearing on his motion
to compel discovery, and the court’s action amounts to a general demurrer. We
dismiss in part and reverse and remand in part.
BACKGROUND
Miller is guarantor on a residential lease executed by his son, Landon,
with College Station Properties KP6, LLC. Cardinal Group Management
Midwest, LLC, the building manager, notified Miller and Landon that, based
on security camera footage, they identified Landon and others as being
responsible for disturbances on their floor, and reminded them that such
behavior violates their agreement.
Miller filed suit seeking a declaratory judgment that the lease has not
been violated by the events referenced in the notice.1 He also requested
injunctive relief to prevent the destruction of the security video and requiring
production of the security video. Additionally, he requested reasonable and
customary attorney’s fees pursuant to the Uniform Declaratory Judgments Act
(UDJA).
Because Appellees did not respond to his requests for discovery, Miller
filed a motion to compel discovery. In Appellees’ opposition to the motion to
compel, they explained they are irrevocably waiving their potential eviction
and breach of contract claim against Miller and Landon for any of the alleged
disturbances. Therefore, they argued, Miller is no longer exposed to legal
consequences related to the conduct at issue, the controversy no longer exists,
1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-.011.
Miller v. Coll. Station Props. KP6, LLC Page 2 and the issue is moot. Furthermore, they asserted that a ruling on the motion
to compel discovery would be advisory. The response is supported by affidavits
of Appellees’ representatives memorializing their waiver of all claims related
to the events at issue in this case.
At the hearing on the motion to compel discovery, counsel for Appellees
orally presented a Rule 11 agreement stating they irrevocably and forever
discharge any claims for breach of contract, eviction, default, negligence, fraud,
defamation, or any other potential cause of action that could arise and that
they may have against Landon Miller and his sureties, or anyone else that
could claim under his lease agreement with Appellees, arising from the
disturbances on the seventeenth floor of the leased premises that occurred
between August 9th and September 14th of 2024. Based on the Rule 11
agreement, the trial court found Miller’s causes of action are moot and,
therefore, the discovery is improper. Further, the trial court dismissed Miller’s
claims “because they are completely extinguished due to mootness.” The trial
court later signed an order reflecting those rulings.
MOOTNESS
On appeal, Miller combines his arguments for both of his issues. He
contends the trial court erred when it, on its own motion, without notice,
dismissed his claims pursuant to a discovery motion. He further asserts that
Miller v. Coll. Station Props. KP6, LLC Page 3 the trial court’s act of dismissing his claims based on the pleadings on the
ground of mootness, without notice or a hearing, amounts to a general
demurrer, which is not allowed under the rules of civil procedure. Finally,
Miller asserts the declaratory judgment action is not moot because he
requested attorney’s fees pursuant to the UDJA.
General Demurrer
Miller correctly asserts that general demurrers are precluded by Rule 90
of the Texas Rules of Civil Procedure. TEX. R. CIV. P. 90. General demurrers
were originally responses filed by defendants asserting that the plaintiff’s
petition was wholly insufficient in law to state any cause of action against the
defendant. See In re Shire PLC, 633 S.W.3d 1, 11-12 (Tex. App.—Texarkana
2021, orig. proceeding). An order entered by the trial court is not a general
demurrer. See Landa v. Rogers, No. 03-21-00097-CV, 2023 WL 2697880, at *3
(Tex. App.—Austin March 30, 2023, no pet.) (mem. op.). Accordingly, the trial
court’s order of dismissal does not amount to a general demurrer. The trial
court appropriately inquired as to whether it had subject matter jurisdiction,
which it can consider on its own motion at any time. Tex. Ass’n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); In re K.L.W., 726 S.W.3d 563,
567 (Tex. App.—Houston [14th Dist.] 2025, no pet.). We overrule Miller’s
second issue.
Miller v. Coll. Station Props. KP6, LLC Page 4 Claim for Declaration Regarding Breach
Miller sought a declaration that the lease had not been breached by the
events referenced in the notification he received. In open court, Appellees
asserted a Rule 11 agreement waiving any and all claims it may have against
Miller arising from those events.
A declaratory judgment is appropriate only if there is a justiciable
controversy about the rights and status of the parties and the declaration
would resolve the controversy. TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.001-37.011; Tex. Ass’n of Bus., 852 S.W.2d at 446. A court cannot decide a case that
has become moot during the pendency of the litigation. Heckman v.
Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012). A case becomes moot if,
since the time of filing, there has ceased to exist a justiciable controversy
between the parties, that is, if the issues presented are no longer “live,” or if
the parties lack a legally cognizable interest in the outcome. Id.
The absence of a genuine dispute between the parties, whether through
agreement or waiver, destroys the jurisdictional foundation for declaratory
relief. Hilburn v. Storage Trust Props., LP, 586 S.W.3d 501, 511 (Tex. App.—
Houston [14th Dist.] 2019, no pet.). Here, Appellees’ waiver mooted Miller’s
substantive declaratory claim. Because there is no justiciable controversy on
Miller’s claim requesting a declaratory judgment that the lease was not
Miller v. Coll. Station Props. KP6, LLC Page 5 breached, the trial court did not have jurisdiction over this claim. Id. The trial
court appropriately dismissed this claim as moot. See Tex. Dep’t of Family &
Protective Servs. v. Grassroots Leadership, Inc., 717 S.W.3d 854, 873 (Tex.
2025). We overrule Miller’s first issue to the extent it complains about the trial
court’s dismissal of his claim for declaratory relief on the breach of lease issue.
Claim for Attorney’s Fees
In his petition, Miller asserted a claim for attorney’s fees pursuant to the
UDJA. On appeal, he contends the case is not moot because the trial court did
not consider his request for attorney’s fees.
In any proceeding brought pursuant to the UDJA, the court may award
costs and reasonable and necessary attorney’s fees as are equitable and just.
TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. A request for attorney’s fees
under the UDJA is separate from the underlying controversy. Tex. Dep’t of
Transp. v. Tex. Weekly Advocate, No. 03-09-00159-CV, 2010 WL 323075, at *3
(Tex. App.—Austin Jan. 29, 2010, no pet.) (mem. op.). Under the UDJA, there
is no requirement that a party prevail in the proceeding in order to recover
attorney’s fees. Growden v. Good Shepherd Health Sys., 550 S.W.3d 716, 728
(Tex. App.—Texarkana 2018, no pet.).
Mootness is generally analyzed on a claim-by-claim basis, with the
claims subject to being grouped and analyzed by the injury alleged. McDaniel
Miller v. Coll. Station Props. KP6, LLC Page 6 v. Crowley Indep. Sch. Dist., No. 02-24-00053-CV, 2025 WL 876777 at *8 (Tex.
App.—Fort Worth March 20, 2025, pet. denied). If a statute allows a nonprevailing party to recover fees under equitable principles, the claim for fees
always breathes life into a case that has otherwise become moot, because the
trial court must always consider the relative merits of the parties’ positions,
among other factors, when exercising its discretion to award fees to either
party. State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018).
Accordingly, we agree that Miller’s claim for attorney’s fees under the
UDJA did not become moot when his request for declaratory relief regarding
the lease became moot. See id. The claim for fees presented a justiciable
controversy between the parties, and the trial court had subject matter
jurisdiction to resolve it. See Tex. Ass’n of Bus., 852 S.W.2d 446; Growden, 550
S.W.3d at 728-29. The trial court erred by dismissing Miller’s claim for
attorney’s fees. We sustain Miller’s first issue to the extent it complains of the
trial court’s dismissal of his claim for attorney’s fees pursuant to the UDJA.
CONCLUSION
We dismiss the appeal as to Miller’s substantive claim for declaratory
relief regarding breach of the lease for lack of jurisdiction. See Hilburn, 586
S.W.3d at 511. We reverse the trial court’s order dismissing Miller’s claim for
attorney’s fees and remand the case to the trial court for further proceedings.
Miller v. Coll. Station Props. KP6, LLC Page 7
STEVE SMITH
Justice
OPINION DELIVERED and FILED: August 20, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Dismissed in part; Reversed and remanded in part
CV06
Miller v. Coll. Station Props. KP6, LLC Page 8