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concluding defendant had made no claim for affirmative relief in underlying lawsuit when plaintiff nonsuited and consequently trial court had no discretion to deny plaintiff's nonsuit
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NO. 03-15-00305-CV
03-04-2016
John Bryan Langdon, Appellant v. Leslie Mathison Gilbert, Appellee
FROM COUNTY COURT AT LAW NO. TWO OF TRAVIS COUNTY
NO. C-1-CV-14-003653, HONORABLE TODD T. WONG, JUDGE PRESIDINGMEMORANDUM OPINION
This appeal concerns whether appellant John Bryan Langdon is entitled to attorney's fees related to a bill-of-review proceeding he filed to vacate a default judgment. Appellee Leslie Mathison Gilbert had obtained the default judgment against Langdon in an underlying lawsuit over a residential lease. After the trial court set aside the default judgment pursuant to an agreed order, Gilbert nonsuited the underlying lawsuit and filed a motion for summary judgment in the bill-of-review proceeding, arguing that Langdon is not entitled to attorney's fees. The trial court rendered a final judgment in the bill-of-review proceeding granting Gilbert's motion for summary judgment, and Langdon timely appealed. For the following reasons, we will affirm.
BACKGROUND
Gilbert leased a residential property from Langdon in June of 2011. On October 14, 2013, Gilbert sued Langdon for damages related to his alleged failure to provide an accounting and refund of her security deposit. The cause number assigned to this lawsuit is C-1-CV-13-009444. Langdon did not plead for attorney's fees, file an answer, or make any appearance in this underlying lawsuit. Gilbert obtained a default judgment against him in the amount of $13,600 plus costs and attorney's fees on March 19, 2014.
Langdon filed a bill of review to set aside the default judgment due to inadequate service, now requesting attorney's fees. The cause number assigned to this bill-of-review proceeding is C-1-CV-14-003653. Both parties moved for summary judgment, and the trial court ruled in Gilbert's favor. Langdon then appealed to this Court. We reversed and remanded with instructions for further proceedings because there was some summary-judgment evidence raising a fact issue regarding defective service. Langdon v. Gilbert, No. 03-14-00491-CV, 2014 WL 7464095 (Tex. App.—Austin Dec. 31, 2014, no pet.) (mem. op.).
Langdon then filed his second motion for summary judgment in the bill-of-review proceeding. In this motion, he asked the trial court to grant the bill of review, void the default judgment, and award him attorney's fees. The parties ultimately agreed that the default judgment should be vacated. They did not, however, agree on whether Langdon was entitled to recover the attorney's fees he incurred in the bill-of-review proceeding.
On April 2, 2015, the trial court signed an agreed order that granted Langdon's second motion for summary judgment in part by vacating the default judgment and declaring it "null & void and unenforceable." This agreed order also denied summary judgment in part by ordering the bill-of-review proceeding, No. C-1-CV-14-003653, to proceed to trial on the issue of attorney's fees. It also ordered Cause No. C-1-CV-13-009444 to proceed to trial on the merits, effectively severing the underlying lawsuit from the bill-of-review proceeding.
Gilbert filed a notice of nonsuit in the underlying lawsuit on April 2, 2015, which the trial court signed on April 8, 2015. On April 20, 2015, Gilbert filed her second motion for summary judgment in the bill-of-review proceeding. In this motion, Gilbert asserted that Langdon's attorney's fees were the only remaining issue in the bill-of-review proceeding and that Langdon was not entitled to fees as a matter of law. On May 12, 2015, the trial court issued an order granting Gilbert's second motion for summary judgment. This appeal followed.
DISCUSSION
Langdon presents three issues in this appeal: (1) whether he is entitled to attorney's fees, (2) whether the trial court erred in granting Gilbert's nonsuit of the underlying lawsuit, and (3) whether the trial court erred in rendering a final judgment in the bill-of-review proceeding. First, according to Langdon, he was the prevailing party in the bill-of-review proceeding and is, therefore, entitled to fees by virtue of his contract with Gilbert. Gilbert counters that Langdon cannot recover attorney's fees in the bill-of-review proceeding because he failed to plead for them in the underlying lawsuit. She further contends that there is no legal authority allowing a bill-of-review complainant to recover fees when that complainant was not entitled to fees in the underlying lawsuit or an appeal therefrom. Second, Langdon argues that Gilbert's notice of nonsuit was an ill-conceived attempt to cut off fees in the bill-of-review proceeding by cutting off fees in the underlying lawsuit. He contends that fees are nevertheless available in the underlying lawsuit—and consequently the bill-of-review proceeding—because the trial court lost its plenary power to alter its March 2014 default judgment in the underlying lawsuit long before Gilbert filed her notice of nonsuit. Gilbert counters that her nonsuit was effective because the April 2015 agreed order granting the bill of review set aside the default judgment. Finally, Langdon argues that, because there were live issues pending in the underlying lawsuit, the trial court erred by making a final judgment in the bill-of-review proceeding without deciding the entire controversy. Gilbert maintains that, because the nonsuit effectively resolved the underlying lawsuit, there were no live issues pending in either lawsuit except for attorney's fees in the bill-of-review proceeding, which the trial court properly adjudicated in its final judgment granting Gilbert's second motion for summary judgment.
We conclude that Gilbert effectively nonsuited the underlying lawsuit, leaving only one issue pending—whether attorney's fees were warranted in the bill-of-review proceeding. The trial court did not err in disposing of this sole issue by granting Gilbert's motion for summary judgment because Langdon did not plead for fees in the underlying lawsuit. Accordingly, we affirm.
Nonsuit of the Underlying Lawsuit
For the sake of clarity, we reiterate that Langdon is appealing from the order granting summary judgment in the bill-of-review proceeding rather than the nonsuit of the underlying lawsuit. However, his challenges to the final judgment in the bill-of-review proceeding rely largely on his contention that Gilbert did not effectively nonsuit the underlying lawsuit. Although Langdon did not appeal the order granting nonsuit in the underlying lawsuit, we will address that order's role in the proceedings leading to this appeal.
Langdon contends that the nonsuit of the underlying lawsuit was ineffective because the trial court's plenary power to modify its March 19, 2014 default judgment expired well before the April 8, 2015 order granting nonsuit. A trial court's plenary power to modify a judgment normally expires thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d); see also Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000) (trial court's jurisdiction generally ends when plenary power expires thirty days after court makes final judgment). However, Gilbert did not file her notice of nonsuit until after the trial court signed the agreed order granting Langdon's bill of review. See Tex. R. Civ. P. 329(b)(f) (bill of review can set judgment aside even after plenary power expires). This agreed order vacated the default judgment and severed the underlying lawsuit for trial on the merits, effectively restoring the trial court's jurisdiction.
Once the agreed order restored the underlying lawsuit and Gilbert filed her motion for nonsuit, the trial court was not only able but obligated to grant the nonsuit. "Granting a nonsuit is a ministerial act," and a "plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief." In re Greater Hous. Orthopaedic Specialists, Inc., 295 S.W.3d 323, 324-25 (Tex. 2009); Tex. R. Civ. P. 162 ("At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit."); see also University of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam) (when notice of nonsuit is filed, "[t]he trial court generally has no discretion to refuse to dismiss the suit, and its order doing so is ministerial."). Langdon had made no claim for affirmative relief in the underlying lawsuit when Gilbert non-suited. This left the trial court without discretion to deny Gilbert's nonsuit.
We do not agree with Langdon's argument that the trial court lacked plenary power to issue an order granting nonsuit. To the extent that Langdon has raised this as an issue for review in this appeal, we overrule it.
Trial Court's Ability to Enter Final Judgment in the Bill-of-Review Proceeding
Langdon contends that the trial court should not have issued a final judgment granting summary judgment to Gilbert because there were live issues pending in the underlying lawsuit, citing to Shabaz v. Feizy Import & Export Co. for the contention that the final judgment in a bill-of-review proceeding must adjudicate the entire controversy between the parties. 827 S.W.2d 63, 64 (Tex. App.—Houston [1st Dist.] 1992, no writ) ("The final judgment in a bill-of-review action should either deny any relief to the petitioner or grant the bill of review and set aside the former judgment, insofar as it is attacked, and substitute a new judgment which properly adjudicates the entire controversy."). Langdon complains that this stonewalled the trial on the merits of the underlying lawsuit, in which he could have prevailed and, consequently, become entitled to attorney's fees pursuant to his contract with Gilbert. This argument fails for two reasons. First, Langdon waived this issue by failing to present it to the trial court. See Tex. R. App. P. 33.1 (to preserve complaint for appellate review, party must raise it before trial court); Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d 636, 643 (Tex. App.—Amarillo 2002, pet. denied) ("Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion . . . [i]ssues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal.") (citing Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)). Second, as we explained above, Gilbert successfully nonsuited the underlying lawsuit before moving for summary judgment in the bill-of-review proceeding, leaving no issues pending in either lawsuit except for attorney's fees in the bill-of-review proceeding. The trial court decided this sole remaining issue in its final judgment granting Gilbert's second motion for summary judgment, thereby adjudicating the entire controversy between the parties. We overrule this issue.
Attorney's Fees in the Bill-of-Review Proceeding
The trial court did not err in granting summary judgment in Gilbert's favor on the issue of attorney's fees. Gilbert moved for traditional summary judgment under Texas Rule of Civil Procedure 166a(b). We review traditional summary judgments de novo, taking all evidence favorable to the nonmovant as true, indulging every reasonable inference, and resolving any doubts in the nonmovant's favor. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). The question before us is whether Gilbert established, as a matter of law, that no genuine issue of fact exists as to Langdon's right to attorney's fees. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). We conclude that she has.
Litigants are not generally permitted to recover attorney's fees from the opposing party, but they may do so if authorized by a statute or contract. Medical City Dall., Ltd. v. Carlisle Corp., 251 S.W.3d 55, 58 (Tex. 2008). Langdon argues that he is entitled to fees by virtue of his contract with Gilbert, which contains the following provision: "Any person who is a prevailing party in any legal proceeding brought under or related to the transaction described in this lease is entitled to recover prejudgment interest, attorney's fees, costs of service, and all other costs of the legal proceeding from the non-prevailing party." There is precedent for awarding attorney's fees incurred in a bill-of-review proceeding, but these cases only allow fees to the extent that they were available in the underlying lawsuit. See Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982); Lowe v. Farm Credit Bank of Tex., 2 S.W.3d 293, 299 (Tex. App.—San Antonio 1999, pet. denied); Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App.—Dallas 1992, no writ); Rodriguez v. Holmstrom, 627 S.W.2d 198, 202-03 (Tex. App.—Austin 1981, no writ). As noted above, Gilbert nonsuited the underlying lawsuit before Langdon pled for fees, making fees unavailable to him in that lawsuit. See Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App.—Dallas 2009, no pet.) ("Absent a mandatory statute, a trial court's jurisdiction to render a judgment for attorney's fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney's fees is a nullity."). Because there is no pleading basis for fees in the underlying lawsuit, Langdon is not entitled to fees in the bill-of-review proceeding. We overrule this issue.
CONCLUSION
For the foregoing reasons, we affirm the trial court's final judgment granting Gilbert's second motion for summary judgment.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: March 4, 2016