393 S.W.3d 362
Tex. App.2012Background
- Polanskys sued Builders and Ramirez in October 2010 for breach of a contract to build their house.
- Builders answered with a general denial and asked for costs, attorney's fees, and other relief if they prevailed.
- June 13, 2011, Builders moved for no-evidence summary judgment alleging discovery issues and lack of contract evidence.
- Polanskys nonsuited all claims on June 30, 2011, and Builders sought to preserve their fee requests and the summary judgment in response.
- July 6, 2011, trial court granted no-evidence summary judgment for Builders and awarded $1,000 in attorneys’ fees.
- Polanskys appealed challenging (a) the grant of summary judgment after nonsuit and (b) the attorneys’ fees award as unsupported by a basis in law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment could be granted after nonsuit | Polanskys: merits moot; nonsuit dismisses claims without prejudice. | Builders: summary judgment and fee requests survive nonsuit as sanctions or collateral relief. | The trial court erred; dismissal should be without prejudice. |
| Whether attorneys’ fees could be awarded without a basis for affirmative relief or sanctions | Polanskys: no independent basis for fees; fees not tied to contract claim. | Builders: fees claimed as independent relief or sanctions; could survive nonsuit. | The award was an abuse of discretion; Builders take nothing in fees. |
Key Cases Cited
- In re Bennett, 960 S.W.2d 35 (Tex. 1997) (sanctions require notice and hearing; cannot be imposed sua sponte)
- University of Tex. Med. Branch at Galveston v. Estate of Darla Blackmon ex rel. Shultz, 195 S.W.3d 98 (Tex. 2006) (nonsuit renders merits moot but may not preclude collateral relief claims)
- Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590 (Tex. 1996) (standard for reviewing awards of attorneys’ fees)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (recovering attorneys’ fees requires statute or contract)
- Leon Springs Gas Co. v. Restaurant Equip. Leasing Co., 961 S.W.2d 574 (Tex. App.—San Antonio 1997) (attorney’s fees in contract disputes require a basis)