Epps v. Fowler

Butler’s claims and show that Carroll against brought could have been M.D., Petitioner, ILLOH, Kachikwu UTHSCH, section requirement v. 101.106(f), the trial therefore affirmed and motion to dismiss. of Illoh’s court’s denial Butler, Karen and CARROLL Damita (Tex.App.-Houston Representatives of Individually and as 2010). Dist.] [14th Carroll, Respon James the Estate dents. pending has been While this case Velasquez, Franka v. we decided appeal, No. 10-0748. held, (Tex.2011), which 332 S.W.3d 367 of Texas.

Supreme Court action that a tort among things, other brought under” the Tort have been “could 24, 2011. June if that tort action does Act even Claims im- limited waiver of fall within the Act’s Franka, light munity. Id. at 375. review, for and grant petition Illoh’s reverse the hearing argument, oral Smith, Broaddus, & Nancy Bolin Smith and remand appeals’ judgment court of Holm, Bambace & B. Holm Charles for further appeals the court of case to LLP, Houston, Il- Kachikwu for McCabe Tex.R.App. P. 59.1. proceedings. loh, M.D. Bradshaw-Hull, Attorney Christopher Houston, Law, Damita Caroll.

PER CURIAM. and re- a stroke

James Carroll suffered Illoh, Kachikwu from Dr.

ceived treatment University of Texas employee of The Laura Christopher N. EPPS Health Science Center —Houston Petitioners, Epps, L. (UTHSCH). died, al- After James Carroll septicemia caused

legedly because Illoh’s developed while under bed sores FOWLER, Stephanie Bruce Jr. care, Butler and Karen Damita Carroll Fowler, Respondents. L. Illoh another doctor. Illoh and sued No. 10-0283. section the suit under moved dismiss 101.106(f) Act, Tort of the Texas Claims of Texas. Supreme Court 101.106(f), § & Rem.Code Tex. Civ. Prac. Argued Feb. on con- that the suit was based claiming scope of his em- general within the duct 26, 2011. Aug. Decided brought have been ploymеnt and could

against UTHSCH. motion, trial court denied Illoh’s

The interlocutory appeal brought an

and Illoh 51.014(a)(5) (8) of the

under section Remedies Practice and Code.

Civil Illoh appeals held that did damages

no was not entitled to entitling a language contractual under prevailing party to such fees. Intercont’l L.P., Group v. KB Lone Star P’ship Home Today, pre we whether a is a consider vailing entitled fees to when the nonsuits a claim without prejudice. We hold that such defendant not the court unless determines, motion, on the defendant’s took the nonsuit order to judgment. avoid an unfavorable We that, prej also because with hold a nonsuit immediately udice relation alters the ship judicata res parties by between the its effect, prevails plain a defendant when prejudice. tiff with Because nonsuits opportunity trial has not had the to court the plaintiff ‍​​‌​​‌​‌‌‌‌​​‌​‌​​‌‌‌‌​​​​​‌​​​​​​​​‌​​​​‌​‌‌​‌​‍determine whether nonsuited judgment, order to avoid an unfavorable we appeals’ judgment reverse the court of and claim for remand defendant’s at torney’s under to fees the contract Finally, trial court. that the court hold remanding of appeals erred dispose case allow the trial for Eppses’ pending claim sanctions under 10 of Practice chapter the Civil and Code, accordingly Remedies and remand dispose for the trial court to of that alter native if it claim determines that are under the available contract. Short, Weitzel, Dale Noel West Travis P.C., Associates, & George- West Short Background I. town, TX, Christopher Epps. for N. Law, Lyon, Attorney B.

Frank Aus- Stephanie Bruce and Fowler tin, TX, Fowler, for Bruce Jr. Texas, purchased Georgetown, a house

from Christopher Epps. Laura and Two Justice LEHRMANN delivered the later, years allegedly the Fowlers discover- Court, of the opinion in which Chief ed in the cracks house’s sheetrock and JEFFERSON, Justice Justice past repairs. They evidence of concluded WAINWRIGHT, GREEN, Justice Justice failing, the foundation was sued WILLETT, and joined. Justice GUZMAN Deceptive of the Eppses violations Act, fraud, years ago,

Two that a Trade negligent we held Practices jury who obtained favorable findings misrepresentation. The Fowlers claimed problems “[a]ny that the were aware of granted relief not herein is the house’s foundation expressly and failed to denied.” The Fowlers appealed. disclose them at the time of the sale. The The court of appeals modified the judg- having knowledge denied ment to reflect that the Fоwlers’ claims They sought defects foundation. were dismissed without their fees as sanctions under S.W.3d It also portion reversed the Chapter of10 the Civil Practice and Reme- of the judgment ordering that the Fowlers ground fees, dies Code on the pay attorney’s Fowlers’ reasoning that a favor- legally factually ground- claims were able decision on the merits of a case is Alternatively, less. they sought attorney’s necessary to confer prevailing party status fees under section 17 money litigant. of the earnest on a 352 S.W.3d at 6-7. We signed by contract the parties, pro- granted which Eppses’ petition the for review to vides that “[t]he decide whether a defendant is a prevailing legal proceeding party related to the contract when is voluntarily non- entitled attorney’s to recover reasonable suits without prejudice. 54 Tex.Sup.Ct.J. (Jan. 2011). fees all proceeding 11, costs of such in- 428 by prevailing curred party.”1 The

contract does not “prevail- Party define the term Prevailing II. ing party.” Texas adheres to the American Rule with respect fees. KB

According Eppses, to the the Fowlers Home, 295 S.W.3d at 653. Under that respond discovery, failed to including rule, litigants may recover Eppses’ admissions, requests for if only specifically provided by statute cancelled or postponed depo- a number of or contract. Id. (citing Corp. MBM Fin. Eppses sitions.2 The partial moved for Co., v. Operating Woodlands 292 S.W.3d summary judgment, and the Fowlers re- (Tex.2009)). 660, Thus, 669 we must de sponded expert report with an attached. termine if the contract between the Fowl- The day they same filed thеir summary Eppses ers and the authorized the trial judgment response, the Fowlers a filed court’s award of fees in this case to the counsel, motion to substitute which was they “prevailed.” because granted. day, The next the Fowlers’ new- ly retained a counsel filed notice of nonsuit Our primary concern when we parties proceeded The construe a written contract is to ascertain to trial Eppses’ on the contractual attor- parties’ expressed true intent as ney’s trial, fees issue. At contract. Operating Valence v. Dor Co. expressly reserved their claim for fees as sett, (Tex.2005) 164 S.W.3d (citing Chapter sanctions under Davidson, Webster, J.M. Inc. v. 128 dismissing (Tex.2003); Rather than the Fowlers’ S.W.3d Ins. Co. Gulf claims, Motors, Inc., the trial court judgment rendered Burns S.W.3d (Tex.2000); nothing Coker, tаke and ordered that Coker v. 650 S.W.2d (Tex.1983)). pay the Fowlers Eppses’ attorney’s look to We $22,950. fees of The provided agreement entire give an effort to each widely 1. The contract a working country. used standard Tex- he was outside of the as Real Estate Commission form contract. requests for admission are not in the record before us. depositions 2. There is evidence that several Bruce Fowler had to be rescheduled because but was its contract had breached Coker, at 393. dant meaning.

part a prevailing was not damages awarded no instance, does agreement In this We reasoned at 655. 295 S.W.3d party, party. term expressly define agreement of the portion no other [wjhether turns on party prevails meaning. When term’s light оn the sheds upon the prevails whether undefined, we a term leaves a contract something, either mon- to award it its intended presume got noth- KB Home etary equitable. or meaning. Va accepted plain, generally ‍​​‌​​‌​‌‌‌‌​​‌​‌​​‌‌‌‌​​​​​‌​​​​​​​​‌​​​​‌​‌‌​‌​‍that Interconti- jury finding ing except 662; Co., Operating lence Nor do violated the contract.... nental Home, According at 653. KB in which the any manner perceive we meaning. ordinary the term its ly, give re- materially altered outcome to discern Often, dictionaries we consult and Inter- KB Home lationship between common-usage meaning of the natural continental. statute, contract, or term not defined Id. Laredo, City Reyes v. regulation. See of tests A. Federal (Tex.2010); 605, Albert 607 958, Sinclair, son’s, 960 Inc. v. we find federal we in KB Home4 As did (Tex.1999); Am. Ins. Co. Guardian Lifе prevail meaning on the focusing cases (Tex.1966). 64, Scott, But 65 v. 405 In Buckhannon instructive.5 ing party case, controlling KB Home in our in this as Home, Virginia v. Inc. West Board & Care decision, interpreting legal-usage a we are and Human partment Health De contract, a term that a form term within 1835, Resources, 598, 121 S.Ct. 532 U.S. than two many (including us less courts (2001), Supreme 855 149 L.Ed.2d by examining explicated have years ago) who whether a considered Court statutorily.3 party is used prevailing how nor neither a favorable received never Home, degree, but whose lawsuit a a consent we held that In KB voluntarily the defendant that the defen- theless caused jury finding who obtained fact, argued Eppses take issue with the court 5.The petitioner in KB Home In interpreting the presented appeals’ an that was reliance on cases issue that the case important likely to the We to recur and thus be in statutes. term as used the term's jurisprudence because of state’s might improper to look to agree that it be contracts, including a differ use in numerous exer focusing whether courts should cases on Standard One ently numbered version of the pre to award fees to cise their discretion (Resale) Family Contract To Four Residential turn vailing party, because those cases on that the Real Commission form Texas Estate See, e.g., legislative policy Chris choices. Petition into in this case. See entered Equal Employment tiansburg v. Garment Co. 12, the Merits at 5 n. Intercont'l er’s Brief on 412, 420-21, Comm’n, Opportunity 434 U.S. L.P., P’ship KB Lone 295 Group v. Home Star 694, (1978) (holding 54 L.Ed.2d 648 98 S.Ct. S.W.3d 650 may be entitled to recover that defendant attorney's prevailing party when a fees as looking to federal faults us for 4. The dissent complaint if it plaintiff voluntarily withdraws intent, parties’ we to determine the cases groundless, be that the suit was establishes nearly analytical applied identical frame- Congress protect defen "wanted to cause Home, opinion the dissent’s in KB work litigation having no burdensome dants from joined. in KB Home And the dissent author error, basis”). We no factual see or objections as the dis- raised almost the same however, considering looking to cases following KB In Home's sent this case. party. meaning plain of the term parties to a law- analysis, simply treat all rely same, themselves We note plaintiffs or whether are suit the defendants, statutory сases. obligated to do. as we are conduct, change prevailing party. its was a While Buckhannon involved a prevailed claimed to have rejected plain the notion that a because of Court action, voluntary defendant’s at least tiff lawsuit had the cata whose served as two Circuit have applied Courts its rea lyst change for a defendant’s con soning to seeking defendants be a prevailing duct considered should fees as a plaintiffs’ result of voluntary entitled to fees under the Wisdom, actions. v. Claiborne the Sev Amendments, Fair Act Housing U.S.C. enth Circuit considered whether a defen 3613(c)(2), § and the Americans with Dis dant was a prevailing party after Act, 12205, § overruling abilities U.S.C. plaintiff voluntarily moved to dismiss her several Circuit Court decisions. Id. at (7th Cir.2005). claim. 414 F.3d 715 Exer 601-02, (citing 121 S.Ct. 1835 Stanton S. cising the discretion afforded it Rule Dist., 574, Reg’l Berkshire Sch. 197 F.3d 41(a)(2) of the Federal Rules of Civil Proc (1st 577, Cir.1999); Bane, n. 2 Marbley v. edure,6 the district court dismissed the (2d Cir.1995); Baumgart 57 F.3d claim with Id. at 717. The Auth., Harrisburg Housing ner v. 21 F.3d Seventh Circuit affirmed. Id. at 719. (3d Cir.1994); Payne 546-50 v. Bd. of The order a material “effected] alteration Educ., (6th Cir.1996); 88 F.3d plaintiffs] legal relationship [the Shalala, (7th Zinn v. 35 F.3d the other parties, because it terminate[d] Cir.1994); Little Rock Sch. Dist. v. Pula plaintiff] may claims [the have had Dist., Cnty. Special ski Sch. # 17 F.3d ... arising out of operative this set of (8th 260, Cir.1994); 2 263 n. Kilgour v. facts”; because the claims were dismissed Pasadena, (9th 1007, 53 F.3d 1010 Cir. prejudice, they would be by barred 1995); Teska, 942, v. Beard 31 F.3d 951-52 judicata res preclusion. or claim Id. (10th Cir.1994); v. Morris West Palm Similarly, the Federal Circuit has held Beach, (11th 1203, 194 F.3d 1207 Cir. that a defendant was a prevailing party 1999)). conclusion, In reaching that after thе plaintiff filed a “Declaration and Court noted that “enforceable judgments Covenant Not to Sue” on the eve of trial. on the merits and court-ordered consent FECO, Highway Ltd., Equip. Co. v. 469 decrees create the ‘material alteration of 1027, (Fed.Cir.2006). F.3d 1035-36 In re relationship parties’ of the neces declaration, sponse to the the district court sary” to confer prevailing party status on plaintiffs dismissed the preju claims with 604, the plaintiff. Id. at 121 S.Ct. 1835 dice. Id. The Federal Circuit concluded (quoting Tex. State Teachers Ass’n v. Gar could be considered a Dist., Indep. land Sch. 489 U.S. 792- prevailing party. Id. The dismissal with 109 S.Ct. 866 L.Ed.2d prejudice, extinguished plain which (1989)). voluntary A change the defen claims, ability tiffs again to sue on its had conduct, contrast, by dant’s req lacked the necessary judicial “the imprimatur to con “judicial imprimatur” uisite pre confer stitute a judicially change sanctioned Id,, vailing party plaintiff. status oh the at legal relationship of the at parties.” Id. 605,121 1835. S.Ct. 1035. 41(a)(1) permits plaintiffs

6. Rule 41 generally prejudice. to dismiss their is Id. 41(a)(1)(B). op- claims without a court order before If it is too late to dismiss under 41(a)(1), posing party plaintiff may serves either an answer aor Rule still elect to dismiss, summary judgment, may by motion for only or with the move to do so stipulation parties. all order “on that terms court considers Fed.R.Civ.P. 41(a)(l)(A)(i), (ii). 41(a)(2). proper.” A dismissal under Rule Fed.R.Civ.P. Buckhannon, nonsuit law cited B. Texas predating case In a the Fifth consid- Circuit parties, both Texas, may nonsuit plaintiffs was a whether a defendant ered introducing before all of their at time voluntarily non- after evidence other than rebuttal evidence. Dean v. case with suited his order Civ. P. 162. No court is Tex.R. Cir.2001). (5th Riser, 240 F.3d 505 Id.; required. Travelers Ins. Co. Joa pre- not a that a defendant is court held chim, A 315 S.W.3d 1988 of vailing party under section “from ‘the mo nonsuit terminates a case Joachim, Act the defendant can Rights unless ment the motion filed.’” Civil Tex. (quoting in S.W.3d Univ. Med. dismissed establish Branch at v. Estate Black Galveston escape unfavorable order Shultz, ex rel. mon Id. The Fifth the merits. at 511. (Tex.2006) curiam)). At (per same mere fact rejected the idea that the Circuit time, any pending affect a nonsuit does not dismissal, even with was suffi- prejudice, relief or motion for claim affirmative prevailing party status on a cient to confer 863; attorney’s fees or Id. at sanctions. Id. at The court ob- defendant. P. a casе is 162. When non- Tex.R. Civ. may the decision to nonsuit served prejudice, judicata suited without res does legitimate litigation strategy reflect a well relitigation not bar same claims. (Tex. 307, 307 Dooley, Klein v. nothing the merits of a reveals about 1997).7 not war- plaintiffs case does [and thus] rant a conclusion that a defendant par- does a alter the C. When nonsuit prevailed.... has such case legal relationship? ties’ Home, a plain In KB held that appeared claim ... whose [A] jury findings tiff who secured favorable at the encounter meritorious onset was damages but was awarded no not a changes litigation posture in various his plaintiff the re because litiga- during unpredictable the course of altered materially ceived no relief that the may emerge tiоn. “Decisive facts plaintiffs the parties’ legal relationship; discovery until or trial. The law Home, victory illusory. KB simply was change clarify litiga- or in the midst By comparison, 295 S.W.3d tion.” is have no doubt that a defendant who the (quoting Christiansburg, Id. at 510 484 beneficiary prejudice of a with nonsuit 694). Thus, the fed- U.S. at 98 S.Ct. As the prevailing party. would be a Fifth recognized eral courts have defen- observed, has a dismissal or Circuit non- may be a when the prevailing party dant to prejudice suit with is “tantamount in when a plaintiff nonsuits two situations: Riser, the judgment on merits.” F.3d prejudice, ‍​​‌​​‌​‌‌‌‌​​‌​‌​​‌‌‌‌​​​​​‌​​​​​​​​‌​​​​‌​‌‌​‌​‍suit is dismissed with and when judicata of a at 509. The res effect non- the is taken an unfavora- nonsuit to avoid prejudice permanent, in- suit works change parties’ ble merits decision. alterable in the rela not, ment, however, plaintiff may prеjudice 7. A take a nonsuit the nonsuit with as to ruling. avoid an In re Hyundai to unfavorable venue disposed by judgment. claims Rocket, L.P., (Tex. Alvarado, Team 256 S.W.3d Motor Co. v. 2008). Further, when a claimant nonsuits 1995). (Tex. summary judg partial after an unfavorable to the tionship require defendant’s benefit: us to conclude that sought to again defendant can never be discourage sued all nonsuits.9 As the Fifth Cir- noted, plaintiff privies arising or its for claims cuit imposing attorney’s fees on Joachim, subject out of the same matter. plaintiffs who take regardless nonsuits (citing 315 S.W.3d at 862 Gracia v. RC the reason for or effect of the nonsuit Co., Cola-7-Up Bottling penalize “would the plaintiff doing pre- for (Tex.1984)). such, cisely As we hold that a what should be actually done” and defendant is a when a encourage plaintiffs to рursue claims that plaintiff Riser, nonsuits a case with should be abandoned. 240 F.3d at 510. In construing parties’ agreement, contrast, a nonsuit without it is to presume reasonable that they did prejudice works change no such encourage intend to litiga- continued parties’ legal relationship; typically, the if, tion of weak claims. But as the dissent plaintiff remains free to re-file the same suggests, any nonsuit will result in an Klein, seeking claims the same relief. award of attorney defendant, fees to the S.W.2d at B07.8 Like the plaintiff KB then a plaintiff may have the incentive to Home, prevail did not upon the roll the dice and hope for a favorable anything, court to award them either mon judgment rather accept than an inevitable etary Moreover, equitable. or we doubt for fees. parties agreement to this intended that there could prevail time, be more than one At the same logical it is to ing party. But construing agreement conclude that intended to apply to plaintiff to a nonsuits without award compensate fees to prejudice potentially just could result defendant when knowingly that, as the Eppses’ acknowledged counsel pursues a baseless action. It makes sense argument: oral after the defendant is to conclude that the parties would have action, attorney awarded fees in an sought initial “discourage litigation of friv olous, unreasonable, simply could re-file the exact or groundless claims” claims, same litigate them to a “calculating favorable when a ... voluntari judgment, and thus also prevail ly become a complaint -withdraws his ‘to escape a Further, ing party. judicial us determine disfavorable determination on the ” that a prevails within the mean (quoting merits.’ Id. Marquart Lodge ing parties’ agreement any time a Int’l Ass’n Machinists and Aero plaintiff Workers, (8th prejudice 842, nonsuits without space would 26 F.3d 852 Cir. case, 8. In subject this the contend exceptions that limita be like fraudulent con any tions would have barred claims the Fowl- discovery cealment and the rule. BP Am. may ers have filed in a new lawsuit. Without Marshall, 59, Prod. Co. v. 342 S.W.3d 65-67 contention, considering the merits of that (Tex.2011). Until a defendant has secured a agree appeals with the court of that the mere defense, ruling judicata favorable on a res possibility that limitations would bar future change there has been no material in the change suits does not parties' effect a in the parties' legal relationship relationship prevailing party that confers sta tus on a defendant. Limitations anis affirma pur- maintain that section 17’s tive pleaded proven. defense that must be pose discourage filing was to the of frivolous Cnty. See KPMG Peat Marwick v. Harrison agreement’s language claims. The is not so 746, Housing Corp., Fin. 748 narrow, provi- however. If that were the (Tex. 1999) (citing Corp. Velsicol Chem. v. Win purpose, sion’s sole then it would award fees 529, (Tex.1997)). ograd, 956 S.W.2d 530 th Fur "prevailing to a defendant.” er, circumstances, may, limitations in some (5th 22, 2008), aff'd, 594 F.3d Sept. consistent 1994)). construction That — Cir.2010), grounds, vacated on other displayed have our cases with the disfavor 2205, U.S. -, 180 L.Ed.2d to circum 131 S.Ct. are filed that toward nonsuits Tech., Inc., NO. (2011); or rul MBNA restrictions Butler v. vent unfavorable Rocket, L.P., 389101, 3:02-CV-1715-H, *5 at See, re Team 2004 WL e.g., In ings. (Tex.2008); 2004). Moreover, 257, (N.D.Tex. In re Ben 1, Mar. (Tex.1997); Hyun nett, has that the determination suggest cases Alvarado, 892 S.W.2d Motor upon dai Co. inferences largely based been made in ac Accordingly, 853, 854 the course of events from drawn Riser, that a defendant we hold cord with lawsuit; have tended to the federal courts plaintiff when a prevailing be a a the fact that great weight upon place if trial court prejudice without nonsuits closely on has followed nonsuit plaintiffs motion, determines, on the defendant’s dis- potentially the heels of a defendant’s taken to avoid nonsuit was that Fox, in example, motion. For positive the merits. ruling on unfavorable were that the defendants court determined in of the fact that parties light prevailing Eppses propose The definition —that only after the defen plaintiff nonsuited time the prevails a defendant after the appears promise moved to dismiss first blush dants nonsuits—at But the mere claim. that she had no federal simplicity application. conceded fees, itself, will almost availability in MBNA at *3. And 2008 WL be that must inevitably expand plain issues the court noted Technology, The amount and lawsuit. resolved a the defendants only tiff nonsuited after likely will be the fees reasonableness of that summary judgment, and moved for no mat litigation, subject continuing suggested that timing of the dismissal And, is defined. prevailing party ter how was not motivated plaintiffs dismissal which definition under bright-line while a support by her failurе to uncover evidence when a nonsuit is prevails never instead, discovery, ing her claims the triable would reduce prejudice to avoid an attributable to her desire was issues, possibility enhance it would judgment. 2004 WL unfavorable frivolous claims pursue plaintiffs Banes, *5; 2011 WL at see also fail to reward consequences and suffer no *2 the defendant was (finding oppo cause their whose efforts defendants when the moved prevailing party Our re yield playing field. nents to only after trial had commenced to dismiss court decisions view of federal district for dismiss the defendant had moved suggests that Ris within the Fifth Circuit Hilbon, al); at *3 2010 WL spawned has not er’s test were (finding defendants litigation. large amount of satellite dismissal plaintiff sought when the decided, only a Riser was the decade since presented uncon only after the defendants cases have focused bare handful of establishing that tested affidavits party a prevailing is whether a defendant no viable First Amendment plaintiff had See, e.g., Banes San under that case. claim). 3:07-CV-01184-M, chez, 2011 WL NO. test, courts should applying In (N.D.Tex. 10, 2011); 1831602, May *2 at existing on the Dist., rely possible as far as H- Indep. Sch. NO. Hilbon v. Klein affidavits, to live (S.D.Tex. and resort record and 09-840, *2 at 2010 WL See Ris testimony only in rare instances. 12, 2010); Vice, NO. 2:06-CV- Apr. Fox v. (W.D.La. er, factors A number of *3 240 F.3d at 511. WL may support an inference that a III. plaintiff Remand for Consideration in Chapter Remedy has nonsuited order to avoid an unfavor- ruling. example, able For as in MBNA that, Eppses argue even if if a Technology, plaintiff only nonsuits af- appeals the court of was correct in revers ter a summary judgment motion for is ing the trial court’s attorney’s award of filed, it may suggest that fees under section 17 of the money earnest elected to do so in to escape order sum- contract, judgment its was erroneous. Tech., Inc., mary judgment. MBNA See They maintain that the court of appeals Further, 2004 WL 389101. plaintiffs by erred rendering judgment dismissing respond requests unexcused failure to to the Fowlers’ claims with prejudice rather discovery for admissions or other that than remanding to allow the trial court to support entry could of an judg- adverse Eppses’ consider the reserved claim for may ment also indicate that a nonsuit was chapter fees under 10 of the taken possibility. to foreclose that Simi- Civil Practice and Remedies Code. The larly, a failure to timely identify experts or Fowlers contend that Eppses waived other critical suggest witnesses could that that issue failing appeal to the portion a nonsuit neither voluntary. is tactical nor of the trial judgment court’s denying all And the existence of other procedural ob- expressly relief not granted. We agree stacles, plaintiffs inability such as the Eppses. The trial judg court’s join necessary parties, may signal also that “[a]ny ment that granted recited relief not prevailed plain- defendant has over the herein expressly is denied.” The Fowlers hand, noted, tiff. On the other as we have argue that were required to presume it is reasonable to that the parties appeal portion of the judgment to encourage did intend continued liti- order to be entitled to a remand. That gation when discovery previously reveals argument fails for two reasons. unknown flaws in the plaintiffs claims. Accordingly, evidence that the suit was not First, 25.1(c) Appel Rule of the Rules of without merit when filed indicate that late only requires Procedure prevailed defendant has not and is seeks to alter judgment the trial court’s therefore not to attorney’s entitled fees. case, file a notice of In appeal. this Eppses sought case, under this record reflects that the $22,950 chapter fees—is solely trial court based its decision on the 10— the same the judgment as that was award fact that nonsuited without money ed under section 17 of the earnest appeals’ While the court of Thus, contract. were not re judgment reversing the trial court’s award quired to appeal challenging of fees consistent with file notice of holding our to- day, no determination the trials court’s denial of fees under chap has been made whether ter Understandably, Eppses’ the Fowlers nonsuited in order to focus they avoid an unfavorable the brief ruling.10 According- filed court of ly, we remand the appeals case to the trial court to was on the fees the trial court apply the standard we announce. awarded under the contract. But course, parties may pre 10. Of (Tex.App.-Corpus elect to define Christi choose, vailing party any way they writ), see Health conceivably say no and could Sys., Shepherd Hosp., care Cable Inc. v. Good prevails any a defendant time a non- Inc., (Tex.App.-Tyler suits, prejudice. with or without pet.); Cooper, no Alexander v. dissenting filed a claim Justice of their affirmative HECHT the court advised MEDINA, opinion, which Justice one of the the issues chapter under joined. Justice JOHNSON was whether “a trial court brief presented awarding attor its discretion abuse[s] HECHT, joined by Justice Justice where ney plaintiffs after a nonsuit fees JOHNSON, MEDINA and Justice ... had an independent [the] dissenting. file affirmative relief on counterclaim signed a Eppses The the Fowlers and of the nonsuit.” The court at the time of if either the contract sued agreeing sufficiently apprised of the appeals was other, the would be enti- “prevailing party” they en would be

Eppses’ contention attorney fees. tled to recover reasonable if the to a remand the reversed titled Eppses, the but after The Fowlers sued generally fees. See contractual $22,950 in Eppses the had incurred attor- Co., suit, v. S. Eng’g Co. Steel Consol. the Fowlers ney defending fees (Tex.1985). suddenly Eppses pre- nonsuited. Did vail? Moreover, appeals’ disposi- the court undisputedly Because were inconsistent with Rule 162 of the tion is happen agree free to what would in this rule, Procedure. Rules of Civil Under situation, entirely on depends the answer prejudice right nonsuit “shall they signed the what meant when heard party pending an to be on a adverse a written construing contract. “In con- relief.” The court of claim for affirmative tract, the of the court is primary concern judgment dismissing appeals’ rendition intentions of par- to ascertain the true prejudice the Fowlers’ claims without as in the instrument.”1 expressed ties allowing opportuni- primarily But the concerned Court is ty chapter on their hearing for a 10 claims with, in, or interested as- especially even ran afoul of Rule 162. certaining Fowlers’ and the Eppses’

intentions the text of their contract. from The concern is whether primary Court’s IV. Conclusion recovery from a attorney fees appeals The court of did not err in re- policy, pre- and it good nonsuits is versing the trial court’s award of attor- and the must sumes Fowlers under section 17 of earnest ney’s fees subject. have of the shared its view contract, money as the lower court award- should, The it with the begins, Court as solely ed bаsed on the non- Howards’ presumption that the Fowlers and the suit without Because the trial Eppses give “prevail- the word intended opportunity court has had no determine ‍​​‌​​‌​‌‌‌‌​​‌​‌​​‌‌‌‌​​​​​‌​​​​​​​​‌​​​​‌​‌‌​‌​‍but then ing” ordinary meaning its turns the Fowlers whether dismissed to avoid meaning. to federal law for that case judgment, unfavorable vacate the court Fifth case: Circuit’s Court finds one appeals’ remand There, v. Riser.2 2001 decision in Dean contractual claim to the Eppses’ the issue was whether defendant sued remand Eppses’ trial court. We also rights a civil was a action 1988(b) chapter § claim for fees under 10 of the meaning Civil within the of 42 U.S.C. when the claim was nonsuited plaintiffs Practice and Remedies Code. Davidson, Webster, (5th Cir.2001). Inc. v. 2. 240 J.M. F.3d 505 prejudice.3 attorney The determinative con- fees there depended policy general policies sideration was “the and considerations in the Civil Rights Act. competing prompted interests that Con- There legislative are no policy in- choices gress to enact VII of the [Title Civil volved in deciding what “prevailing party” Rights authorizing Act of district 1964] private means in a agreement, even a stan- courts to award fees to prevail- dard form agreement like the one in this ing parties rights litigation.”4 in civil The Second, case. nothing suggests pri- finally concluded: vate like the Fowlers and the policy surrounding The considerations Eppses would have federal case law in the law of fees for prevailing in reaching mind an agreement that attor- rights litigants civil demand a flexible ney go prevailing should to a party. rule. It empower should trial courts to balance the encouraging concerns for place The ordinary look mean vigorous enforcement of rights civil ing of words is not federal case law but a against discouraging litigation frivolous dictionary.7 According to Webster’s Third within the specific unique context of New International Dictionary, prevail each individual Accordingly, case. we means gain victory by “to virtue of hold that a defendant is not a strength superiority: or mastery: win § within the meaning of surely beyond TRIUMPH”.8 Now it is ar rights plaintiff voluntarily when civil that, gument policy aside, considerations claim, dismisses his unless the defendant when a decides to abandon his can demonstrate that the plaintiff with- lawsuit, defendant, thereby relieved of drew to avoid a disfavorable the further worry expense of defend on the merits.5 himself, ing he thinks won. ex Common reasons, For two the federal cases the perience teaches that the challenger who First, give guidance. Court cites do not forfeits, loses, opponent and his wins. the cases cited all legislative deal with Imagine the conversation between the statutes, policy public reflected in not with lawyer: and their “Good news! private parties’ ordering intentions in their dropped Fowlers their suit.” “Wow! personal affairs contract. The Court “No, you So we won!” didn’t win. The problem, observing notes this that “it just gave up.” Fowlers “But we said all might be improper to look to cases” con- along merit, the case had no now struing legislative statutes based on policy they’ve effectively conceded it. We didn’t choices for guidance determining what “Well, you win?” have to understand that private contract,6 parties intended in a a federal case anyway. construing Rights then does it Riser the Civil could not be clearer in explaining availability of Act has held that....” (Tex.2009), 3. Id. at 506. which considered case law in de- termining prevailing par- when a is a 4. Id. at 507. ty. But we held in KB Home that a damages nothing who sues for and recovers Id. at 511. prevail. does not The case law the Court 6. Ante at n. 3. only supported dictionary meaning cited "prevailing”. hypocrisy, 7. The Court accuses me of or at faulty memory, pointing least a out that I 8. Webster’s Third New Dictio- International joined majority Grp. P’ship in Intercont'l nary (1961). L.P., v. KB Home Lone Star 295 S.W.3d 650 largely inferences drawn from Epрses’ upon with the problem based The Court’s common-sense, dictionary understanding lawsuit.”14 the course events “appears prom- it to is that “prevailing” why other there is none. Then words: application.”9 The simplicity ise pieces The them? differentiate between it prevail of what means to Court’s notion unifying puzzled ruling princi- this have no complexity. The defen- virtue of has the by a ple supported but are instead some- plaintiff a nonsuit if the takes prevails dant cynical what pragmatism: (because would further suit prejudice prejudice iswho nonsuited without cannot by judicata, an affirmative res be barred he is attorney willing recover fees unless defense10), if not the nonsuit is without but to litigating prove to continue that if further would be prejudice, even action anyway. a plaintiff would have lost And so preju- nonsuit were with barred as if the unquestionably contractual in- provision limitations, for (by example, another dice unnecessary to discourage litiga- tended defense11), when the except affirmative is to foment it tion construed either or do taken to avoid an unfavorable nonsuit is nothing at all. impossible think that judgment. It is to parties like the Fowlers and the inconsistency in the Another is Court’s have all this in when would ever mind post-nonsuit litiga- differentiation between prevailing party a agreeing that should by judicata tion that res is barred attorney fees. recover post-nonsuit that is litigation barred internal inconsistencies in this new

The limitations. The Court concludes that at- cannot be reconciled. One is between tеst torney against awarded fees be that of weak claims should not be nonsuits former nonsuiting instance discouraged and nonsuits claims to avoid Because, Why? the latter. judgments that be dis- unfavorable should explains, possibility Court “the mere that award- couraged. Court reasons future suits limitations would bar does a attorney against who ing effect a change parties’ relationship in the a “weak that “should be claim[ ]” nonsuits confers status on a “ ‘penalize would the plaintiff abandoned” judicata defendant.”15 But the bar of res doing precisely what should be a possibility” is also “mere sense time,” done’”.12 “At same the Court that both limitations are affirmative it and attorney be concludes fees should defenses if not If that are waived raised. against who “nonsuit[s] awarded rаised, the successfully either is effect is judg- order to avoid unfavorable the same: Yet suit is barred. Court ment.” What is difference between goes way out to treat them of its different- abandoned, claim that should weak be ly. why As it hard as is understand with impunity, which can be nonsuited between Court would differentiate the two likely in an unfa- claim that is result defenses, impossible to think it judgment, Says vorable which cannot? Court: “the determination has been made Fowlers did.

9. 12. Ante Ante at 870. at 869. 13. Ante at 864. I,

10. Chapa, Tony Gullo Motors L.P. v. 14. Ante at 870.

11. Id. Ante at n. 8. end, In the The Court doubts Fowlers and the Court forces intended for a defendant to be desire a fee-shifting agreement broader attorney after a awarded fees nonsuit than it good policy thinks is to use clearer prejudice because result could words than “prevailing party”. par- “Just if prevailing parties be two different ty” only encourage judicial would more refiles the same suit and wins. subjectivism. I don’t think “escaping par- difficulty But the in Court sees this it, ty” would do because nonsuiting example by sparing is not avoided plaintiff may escaping be the defendant’s nonsuiting plaintiff attorney from an fee becoming a prevailing party. “Fortunate view, In the if the plaintiff award. Court’s work, party” might though very it’s gener- prejudice nonsuits without a claim that is al. Viewed angle, from another the provi- limitations, then barred the defendant might sion “oppressed award fees to the prevailed. has not But if the re- it, too, party”, though very general action, raised, files the same the defense is injects also “prevail- moral tone. But if wins, prevаiled? and the has he ing” is not clear enough, probably one no Of course. The Court does avoid safe, parties word is. To be will have to it difficulty raises. out spell their intentions more detail. An agreement to shift reality, attorney In fees will difficulty the Court sees require attorney more any not have been at all to draft. But problem should it will be worth it. for the Fowlers and the Eppses, had thought about it before signing their con- “A court must be careful not to substi- illogical tract. It is neither nor unreason- tute its own view what should have been parties agree able for that a plaintiff was intended.”16 intended for what litigation abandons should make ev- parties’ agreement, accordance with the I whole, eryone even if he again tries would award the reasonable attor- wins. The law a mulligan, afford but ney Accordingly, fees. I respectfully dis- can parties decide it should not be sent. prevailing attorney free. And if a tois fees, attorney recover perfect it makes them

sense award to a defendant both nonsuited, again

when he is later when

a second suit is dismissed based on res Jerry BARTH, Petitioner, L. judicata or limitations. Finally, the Court worries that to en- v. fee-shifting provision

force a like the one AMERICA, BANK OF in this case will result in satellite litigation N.A., Respondent. attorney Usually, over determining fees. No. 10-0659. a party’s amount of reasonable attor- ney ‍​​‌​​‌​‌‌‌‌​​‌​‌​​‌‌‌‌​​​​​‌​​​​​​​​‌​​​​‌​‌‌​‌​‍require fees does not much litigation. Supreme Court of Texas. important But the point, through- here and Aug. Decided out, is that belongs cause for concern to the reaching agreement, setting policy.

to the Court in J., Equip. Equip., concurring) original). 16. Lane Bank (emphasis Co. Smith S. Inc., (Tex.2000) (Hecht,

Case Details

Case Name: Epps v. Fowler

Court Name: Texas Supreme Court

Date Published: Aug 26, 2011

Citation: 351 S.W.3d 862

Docket Number: 10-0283

Court Abbreviation: Tex.