465 S.W.3d 715
Tex. App.2015Background
- Stroman lived on property he claimed was devised to him by decedent Robert Wright; the estate, through executor Tautenhahn, sued for forcible entry and detainer in justice court and prevailed.
- Stroman appealed to the county court at law for a trial de novo.
- On the day of trial, Tautenhahn filed a notice of nonsuit; the trial court held a hearing and entered an order granting nonsuit.
- After the nonsuit order, Stroman filed: (1) an affidavit of attorney’s fees; and (2) a motion for attorney’s fees/reconsideration asserting he had requested fees before nonsuit.
- The trial court denied reconsideration and denied fees; Stroman appealed, arguing he had a pending request for affirmative relief (attorney’s fees) when the nonsuit occurred and thus the nonsuit was not final.
Issues
| Issue | Plaintiff's Argument (Stroman) | Defendant's Argument (Tautenhahn) | Held |
|---|---|---|---|
| Whether a pending request for affirmative relief (attorney’s fees) existed when plaintiff nonsuited | Stroman contended he had a pending request because: (a) statutory entitlement made fees automatic; (b) his affidavit constituted a motion for fees; (c) he orally requested fees at the nonsuit hearing and later filed a motion for reconsideration | Tautenhahn argued no affirmative request for relief was pending at the time of the nonsuit; nonsuit terminates the plaintiff’s case and only preexisting affirmative requests survive | Held: No pending request existed. The affidavit was merely evidentiary, the oral request occurred after the nonsuit filing, and statutory entitlement does not substitute for a request. The nonsuit order was final and appealable and the trial court did not err in denying fees. |
Key Cases Cited
- McNally v. Guevara, 52 S.W.3d 195 (Tex. 2001) (judgment that did not dispose of defendant’s claim for attorney’s fees was interlocutory)
- Clark v. Pimienta, 47 S.W.3d 485 (Tex. 2001) (order not final where it did not dispose of all claims and lacked unmistakable finality language)
- Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011) (nonsuit terminates plaintiff’s case upon filing and does not affect opponent’s pending affirmative claims)
- Washington v. Related Arbor Court, LLC, 357 S.W.3d 676 (Tex. App.—Houston [14th Dist.] 2011) (interpretation of tenant’s entitlement to attorney’s fees under Prop. Code §24.006)
- Johnson v. City of Fort Worth, 774 S.W.2d 653 (Tex. 1989) (statutory construction reviewed de novo)
- Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525 (Tex. 2000) (statutory interpretation principles)
- St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997) (plain-meaning rule in statutory construction)
- Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598 (Tex. 1999) (look to substance over title of filing under Rule 71)