CRS Mechanical v. Norfolk Cold Storage, 2025 Tex. Bus. 46 (8th Div.) (mem. op.)

2025 Tex. Bus. 46
T HE BUSINESS COURT OF T EXAS
EIGHTH DIVISION
CRS MECHANICAL, INC.; CRS
MECHANICAL OF NEBRASKA,
INC.; and CHRIS ALLENSWORTH
Plaintiffs,
v.
NORFOLK COLD STORAGE, LLC
f/k/a TVG CAPITAL HOLDINGS,
LLC; and JON TRYGGESTAD,
Defendants.
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Cause No. 25-BC08B-0001
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MEMORANDUM OPINION AND ORDER
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¶ 1 	Before the Court is the Motion for Summary Judgment on Defendants’
Counterclaim for Attorney’s Fees (“Motion”) filed September 12, 2025, by Plaintiffs
CRS Mechanical, Inc., CRS Mechanical of Nebraska, Inc., and Chris Allensworth
(collectively, 	“Plaintiffs”). 	Having 	carefully 	considered 	the 	pleadings, 	the
summary-judgment briefing and evidence, the arguments of counsel, and applicable
law, the Court concludes that the Motion should be GRANTED.
FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
11/14/2025

M EMORANDUM O PINION AND O RDER , PAGE 2
I. 	BACKGROUND
¶ 2 	This case arises out of an alleged 2021 partnership to renovate and
operate a cold-storage facility in Norfolk, Nebraska.
¶ 3 	According to Plaintiffs, the parties agreed that Defendants would
purchase the facility at a foreclosure sale; Plaintiffs would perform the necessary
renovations; Defendants would fund those renovations; and Plaintiff Allensworth
would receive an ownership interest in the to-be-formed entity (NewCo). Plaintiffs
allege that in reliance on Defendants’ assurances, they refrained both from bidding
at the foreclosure sale and from enforcing two preexisting mechanic’s liens on the
property (“CRS Liens”). Plaintiffs contend that Defendants, after securing control
of the facility, ceased performance and excluded Plaintiffs from all ownership and
operations. 	Plaintiffs 	bring 	claims 	for 	breach 	of 	fiduciary 	duty, 	knowing
participation, and common-law fraud.
¶ 4 	Defendants Norfolk Cold Storage, LLC f/k/a TVG Capital Holdings,
LLC and Jon Tryggestad (collectively, “Defendants”) deny all wrongdoing. On
October 30, 2025, Defendants filed their Third Amended Answer, Defenses,
Counterclaim, and Verified Denial (“Counterclaim”).1 In their Counterclaim,
Defendants seek three specific declarations:
1 Plaintiffs filed this Motion when Defendants’ live pleading was the Second Amended Answer, Defenses, and
Counterclaim (filed July 7, 2025). The requested declaratory relief in the Second Amended Answer is
identical to that in the Third Amended Answer. Compare 2d Am. Answer ¶ 31, with 3d Am. Answer ¶ 32.

M EMORANDUM O PINION AND O RDER , PAGE 3
i. 	No contract, agreement, or partnership was formed between
Plaintiff(s) and Defendant(s);
ii. 	The Liens were never valid because, among other things, the
Liens do not comply with Nebraska law, neither CRS nor CRS
Nebraska had a real estate improvement contract with the
contracting owner of the Norfolk Property, and neither CRS nor
CRS Nebraska timely recorded the Liens; and,
iii. 	To the extent the Liens were ever valid, the Liens lapsed and
became invalid and void due to failure to comply with Nebraska
law, including but not limited to, CRS and CRS Mechanical
failed to bring a suit to foreclose the Liens within the statutory
time period required by Nebraska Law.2
Defendants also request attorney’s fees, expert fees, and costs in connection with
their declaratory-judgment claims.
¶ 5 	Plaintiffs contend that the Counterclaim is an impermissible attempt to
recover 	attorney’s 	fees 	under 	the 	Declaratory 	Judgments 	Act 	because 	each
declaration merely duplicates issues already before the Court. Defendants respond
that the declarations are necessary to remove the CRS Liens and that Nebraska law
authorizes the requested declarations and attorney’s fees.
II. 	LEGAL STANDARD
¶ 6 	Summary judgment is governed by Texas Rule of Civil Procedure
166a. To obtain a traditional summary judgment, the movant “bears the burden to
show that no genuine issue of material fact exists and that it is entitled to judgment
2 Counterclaim ¶ 32.

M EMORANDUM O PINION AND O RDER , PAGE 4
as a matter of law.”3 A plaintiff seeking summary judgment on a defendant’s
counterclaim must negate at least one essential element of the counterclaim.4
¶ 7 	Once the movant satisfies this initial burden, the burden shifts to the
nonmovant to raise a genuine issue of material fact.5 Raising a fact issue defeats
summary judgment.6 Conclusory assertions, argumentative characterizations, or
mere denials do not.
III. 	ANALYSIS
A. 	The Declaratory Judgment Act and attorney’s fees
¶ 8 	The Declaratory Judgments Act (“DJA”) serves an important but
carefully circumscribed function; it allows courts to “settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and other legal relations.”7
The Act also authorizes, but does not dictate, an award of reasonable and necessary
attorney’s fees associated with the requested relief.8
¶ 9 	The DJA is not an unrestrained fee-shifting device, nor does it provide
a procedural backdoor for recovering attorney’s fees for issues already before the
court. Texas law is clear that a defendant may not bring a declaratory-judgment
3 ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018) (citing T EX. R. CIV. P. 166a(c)).
4 Tello v. Bank One, N.A., 218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Taylor v.
GWR Operating Co., 820 S.W.2d 908, 910 (Tex. App.—Houston [1st Dist.] 1991, writ denied).
5 Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); Tello, 218 S.W.3d
at 114.
6 Tello, 218 S.W.3d at 114.
7 T EX. CIV. PRAC . & REM . CODE § 37.002(b).
8 Id. §§ 37.003(b), 37.009.

M EMORANDUM O PINION AND O RDER , PAGE 5
counterclaim that merely mirrors or repackages defenses to the plaintiff’s claims.9
Likewise, defendants may not use the DJA as a vehicle to obtain attorney’s fees
when the requested declarations add nothing of substance beyond the issues raised
in the plaintiff’s suit.10
¶ 10 	A DJA counterclaim is permissible only if it has greater ramifications
than the issues already before the court.11 A counterclaim has greater ramifications
if it seeks affirmative relief.12 A counterclaim seeks affirmative relief if it alleges
“that the defendant has a cause of action, independent of the plaintiff’s claim, on
which [the defendant] could recover benefits, compensation or relief, even though
the plaintiff may abandon [their] cause of action or fail to establish it.”13
¶ 11 	This Court recently applied these principles in CreateAI Holdings v. Bot
Auto TX.14 There, the Court dismissed DJA counterclaims that functioned as mere
denials of the plaintiff’s pending claim for a permanent injunction. In that case, the
9 See BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig. proceeding) (explaining that the
DJA “is not available to settle disputes already pending before a court”); Etan Indus., Inc. v. Lehmann, 359
S.W.3d 620, 624–25 (Tex. 2011) (“[D]eclaratory relief was improper because the declarations in this case
add nothing to what would be implicit or express in a final judgment for the other remedies sought in the same
action.”).
10 See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009) (“[A] party cannot
use the [DJA] as a vehicle to obtain otherwise impermissible attorney’s fees.”); Tex. Health Harris Methodist
Hosp. Fort Worth v. Featherly, 648 S.W.3d 556, 584 (Tex. App.—Fort Worth 2022, pet. denied) (“A party
may not use the Declaratory Judgments Act as a vehicle for recovering attorney’s fees when the declaratory
claims merely duplicate other claims already before the trial court for which attorney’s fees are not
permitted.”).
11 Guniganti v. Kalvakuntla, 346 S.W.3d 242, 251 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“When
a declaratory judgment counterclaim has greater ramifications than the original suit—such as settling future
disputes—a court may allow the counterclaim.”).
12 Ysasaga v. Nationwide Mut. Ins., 279 S.W.3d 858, 863 (Tex. App.—Dallas 2009, pet. denied).
13 Gen. Land Off. v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990).
14 2025 Tex. Bus. 17, ¶ 7, 2025 WL 1387931, at *3 (11th Div.).

M EMORANDUM O PINION AND O RDER , PAGE 6
defendants sought declarations that the plaintiff “has not and cannot establish
imminent and irreparable injury” and “has not and cannot establish there is no
adequate remedy at law.”15 Because the counterclaims did not seek any independent
benefit or remedy, the Court concluded they failed as a matter of law and dismissed
them under Texas Rule of Civil Procedure 91a.16
¶ 12 	Applying the same principles here, each of Defendants’ requested
declarations either duplicates issues already joined by the pleadings or seeks relief
beyond this Court’s jurisdiction. Either basis is independently fatal.
B. 	Declaration One is subsumed in Plaintiffs’ claims for breach of fiduciary duty
and knowing participation.
¶ 13 	Declaration 	One 	asks 	the 	Court 	to 	declare 	that 	“[n]o 	contract,
agreement, or partnership was formed between Plaintiff(s) and Defendant(s).”17
¶ 14 	That issue, however, is entirely duplicative of issues subsumed in
Plaintiffs’ claims for breach of fiduciary duty and knowing participation. Whether
the parties formed a partnership or partnership agreement is a threshold question
the Court must answer to adjudicate Plaintiffs’ claims.18 A declaration to the
15 Id. ¶ 3.
16 See id. ¶¶ 5, 7 (where the Court found that the counterclaims violated the “mirror-image rule,” which
“precludes a defendant from asserting a counterclaim under the Uniform Declaratory Judgments Act which
presents nothing more than a mere denial of the plaintiff’s claim”).
17 Counterclaim ¶ 32(i).
18 See 1st Am. Pet. ¶¶ 6.2 (“As partners in the cold storage joint venture, Defendants owed fiduciary duties
to Allensworth.”), 6.3 (“To the extent one or[] more Defendants were not included as partners in the
partnership agreement set forth in ¶6.2 above, said Defendants are liable for knowing participation in breach
of fiduciary duty by another . . . .”).

M EMORANDUM O PINION AND O RDER , PAGE 7
contrary would add no new controversy, no independent remedy, and no separate
benefit. It would serve simply to negate an element of Plaintiffs’ claims.
¶ 15 	Because Declaration One seeks no affirmative relief, it cannot support
an award of attorney’s fees as a matter of law. Plaintiffs are therefore entitled to
summary judgment on Declaration One.
C. 	Declarations Two and Three likewise mirror Plaintiffs’ fraud and damages
claims.
¶ 16 	Declarations Two and Three seek a determination that the CRS Liens
were never valid or, alternatively, have become invalid.19
¶ 17 	These requests directly overlap with Plaintiffs’ fraud and damages
theories. Plaintiffs allege they refrained from enforcing the CRS Liens in reliance on
Defendants’ misrepresentations and later allowed the liens to expire based on the
same or similar representations. 20 They seek damages associated with this alleged
forbearance.21 The existence of the liens is thus critical to Plaintiff’s theory of the
case.
¶ 18 	Like Declaration One, these declarations operate as classic defensive
denials—not affirmative relief. Defendants cannot use the DJA to repackage
defenses as declaratory relief or to obtain attorney’s fees not otherwise available.
19 Counterclaim ¶ 32(ii)–(iii).
20 1st Am. Pet. ¶¶ 4.13, 6.4.
21 Id. ¶¶ 6.4, 8.1.

M EMORANDUM O PINION AND O RDER , PAGE 8
Indeed, courts have concluded that declaratory claims seeking to invalidate clouds
to title are suits to quiet title for which attorney’s fees are not available.22
¶ 19 	For these reasons, Plaintiffs are entitled to summary judgment on
Declarations Two and Three.
D. 	The Court lacks jurisdiction to grant Declarations Two and Three.
¶ 20 	Even if Declarations Two and Three were not subsumed in Plaintiffs’
claims and did seek affirmative relief, the Court lacks subject-matter jurisdiction
over 	real property interests in other states 	and, therefore, cannot grant the
declaratory relief sought by Defendants.
¶ 21 	It is well established that Texas courts cannot adjudicate title to real
property located outside Texas.23 The one quasi-exception is that courts may enforce
contractual obligations that indirectly affect foreign real property, but not if the crux
of the requested relief is a direct adjudication of title or encumbrances.24
22 See Tuttle v. Builes, 572 S.W.3d 344, 359–60 (Tex. App.—Eastland 2019, no pet.); DAS Inv. Corp. v.
Nowak, No. 01-03-00140-CV, 2004 WL 396983, at *2–3 (Tex. App.—Houston [1st Dist.] Mar. 4, 2004, no
pet.) (mem. op.) (“Appellants prayed that the three liens ‘be declared of no force and effect; canceling said
instruments; removing them as Cloud on Counter–Plaintiff’s Title, and for all other relief’ to which they were
justly entitled. Appellants also requested attorney’s fees. We hold that appellants’ claim was one to quiet title
and, therefore, appellants were not entitled to attorney’s fees.”).
23 Bauer v. Braxton Mins. III, LLC, 689 S.W.3d 633, 637 (Tex. App.—Fort Worth 2024, pet. granted); see
also Crawford v. Silette, 608 F.3d 275, 277–78 (5th Cir. 2010) (“The local action doctrine holds that federal
and state courts lack jurisdiction over the subject matter of claims to land located outside the state in which
the court sits . . . It prevents courts unfamiliar with local property rights and laws from interfering with title
to real property which must be recorded under a unitary set of rules to keep it free of conflicting
encumbrances.”) (internal quotation marks omitted).
24 Bauer, 689 S.W.3d at 637.

M EMORANDUM O PINION AND O RDER , PAGE 9
¶ 22 	“To determine the extent to which title and possession are involved,
and thereby implicate jurisdiction, we look to the nature of the suit, the injury
complained of, and the relief sought, together with any relevant evidence.”25 Courts
consider the basis upon which a party seeks recovery; “[i]f the gist or gravamen of a
claim involves adjudication of title to foreign real property interests, the Texas court
lacks subject matter jurisdiction.”26
¶ 23 	These limitations apply with equal force even within Texas’s own
borders. The legislature has mandated that suits involving real property—including
those “to remove encumbrances from the title to real property”—must brought in
the county where the property is located.27 A court in Tarrant County, for example,
is powerless to remove an encumbrance from land located just miles away in Dallas
County. A fortiori, this Court cannot adjudicate encumbrances on land in Nebraska.
¶ 24 	Because the essence of Declarations Two and Three is the removal of
encumbrances from title to Nebraska property—a classic quiet-title remedy28—the
Business Court lacks jurisdiction to provide such relief. Summary judgment is
therefore appropriate for this independent reason as well.
25 Id.
26 Id.
27 T EX. CIV. PRAC . & REM. CODE § 15.011; see Lumbermen’s Inv. Corp. v. Brown, 383 S.W.2d 938, 940–41
(Tex. App.—Waco 1964, no writ) (holding plaintiffs satisfied burden of pleading right to maintain suit in
Navarro County, Texas under predecessor to T EX. CIV. PRAC . & REM. CODE § 15.011 because plaintiffs sought
declaration that mechanic’s lien on property in county was void).
28 See DAS Inv. Corp., 2004 WL 396983, at *2–3 (holding that declaratory suit seeking to remove liens from
real property was by its nature a suit to quiet title).

M EMORANDUM O PINION AND O RDER , PAGE 10
IV. 	CONCLUSION
¶ 25 	For all the foregoing reasons, Plaintiffs are entitled to summary
judgment as to Defendants’ Counterclaim for attorney’s fees.
¶ 26 	Accordingly, 	Plaintiffs’ 	Motion 	for 	Summary 	Judgment 	on
Defendants’ Counterclaim for Attorney’s Fees is GRANTED. Defendants are
precluded from recovering attorney’s fees, expenses, expert fees, expenses, or costs
in connection with Counterclaim ¶ 32(i)–(iii).
It is SO ORDERED.
BRIAN STAGNER
Judge of the Texas Business Court,
Eighth Division
DATED: November 14, 2025