Opinion
NO. 14-17-00317-CV
07-24-2018
IN THE INTEREST OF N.M.B., A CHILD
On Appeal from the 257th District Court Harris County, Texas
Trial Court Cause No. 2009-50557
MEMORANDUM OPINION
This appeal arises from a suit to modify the parent-child relationship brought by appellant Dennis Thomas Beacham against appellee Annahita Youssefi. Appellant subsequently filed a nonsuit, after which appellee filed a motion for attorney's fees. Following a hearing, the trial court granted that motion. From that ruling, appellant brings this appeal.
The only issue appellant raises is whether the trial court erred by awarding attorney's fees to appellee after the nonsuit was filed. The record reflects the following timeline, in pertinent part:
• 05/27/16 Appellee files answer that pleads for attorney's fees;
• 12/02/2016 Appellee files motion for interim attorney's fees;
• 02/23/17 Appellant files motion for nonsuit;
• 02/24/17 Trial court grants motion for nonsuit;
• 03/9/17 Appellee files second motion for attorney's fees.
• 03/23/17 Trial court grants motion for attorney's fees.
Appellant argues "[t]here was no legal basis for awarding attorney's fees because Appellee had no active claim for affirmative relief or viable motion for fees pending at the time of the nonsuit." Appellant asserts appellee's claim for attorney's fees at the time of the nonsuit was not a request for affirmative relief because it was based on defending appellant's claims.
A claim for attorney's fees constitutes a claim for affirmative relief that is not disturbed by a nonsuit. Bacon Tomsons, Ltd. v. Chrisjo Energy, Inc., No. 01-15-00305-CV, 2016 WL 4217254, at *10 (Tex. App.—Houston [1st Dist.] Aug. 9, 2016, no pet.) (mem. op.) (holding that "a plaintiff's nonsuit cannot extinguish a defendant's counterclaim for costs and attorney's fees") (citing Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008)); see also Nolte v. Flournoy, 348 S.W.3d 262, 267 (Tex. App.-Texarkana 2011, pet. denied) (claim for attorney's fees included in defendant's answer was considered to be counterclaim seeking affirmative relief); In re C.A.S., 128 S.W.3d 681, 686 (Tex. App.—Dallas 2003, no pet.) (same); In re Frost Nat'l Bank, 103 S.W.3d 647, 650 (Tex. App.-Corpus Christi 2003, no pet.) (same). Appellant's nonsuit did not affect appellee's pending claim for attorneys' fees because a nonsuit does not affect another party's independent claim for affirmative relief. Tex. R. Civ. P. 162 ("A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees, or other costs, pending at the time of dismissal, as determined by the court."); Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006) (per curiam); see also Matter of Marriage of Dilick, No. 14-17-00848-CV, 2018 WL 1866029, at *6, n.7 (Tex. App.—Houston [14th Dist.] Apr. 19, 2018, no pet. h.) (not yet released for publication).
Appellant's sole issue is overruled and the judgment of the trial court is affirmed.
/s/ John Donovan
Justice Panel consist of Justices Boyce, Donovan and Wise.