Doolin`s Harley-Davidson, Inc. v. Clifford Young, Jr.--Appeal from County Court at Law of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00101-CV

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DOOLIN'S HARLEY-DAVIDSON, INC., Appellant

V.

CLIFFORD YOUNG, JR., Appellee

On Appeal from the County Court at Law

Bowie County, Texas

Trial Court No. 04C0756-CCL

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

This dispute started over the repair bill for Clifford Young, Jr.'s, motorcycle, // but has become one over attorneys' fees. The disputed attorneys' fees arise, not from the original lawsuit seeking collection of the repair charges in which Doolin's Harley-Davidson, Inc., received a default judgment // against Young but from Young's ensuing bill of review proceeding challenging Doolin's default judgment.

After the default judgment was rendered, Young filed a petition for bill of review. On the day set for the bill of review hearing, Young nonsuited his action. Doolin's requested the action be continued, asserting that it had requested attorneys' fees and that the claim was still pending. Eventually, the trial court dismissed the request and granted the nonsuit. Doolin's appeals the trial court's ruling.

We affirm the judgment of the trial court because (1) Doolin's did not have a pending claim for attorneys' fees when Young requested the nonsuit, and (2) Doolin's was not the "prevailing party" in the bill of review proceedings.

The availability of attorney's fees under a particular statute is a question of law for the court, which will be reviewed de novo. Brown v. Fullenweider, 135 S.W.3d 340, 346 (Tex. App. Texarkana 2004, pet. denied).

(1) Doolin's Did Not Have a Pending Claim for Attorneys' Fees When Young Requested the Nonsuit

A plaintiff has an absolute right to take a nonsuit before resting its case against the defendant. Tex. R. Civ. P. 162. A nonsuit will not affect, however, a pending claim for affirmative relief, sanctions, attorneys' fees, or other costs. The threshold issue, then, is whether Doolin's had a pending claim for attorneys' fees at the time the case was nonsuited. We hold it did not.

On the day set for trial, and before Young's request for a nonsuit, Doolin's filed a pretrial brief with the court. In that brief was a section stating that Doolin's was entitled to attorneys' fees. The entire section reads as follows:

"Attorney's fees are available to the successful party in a bill of review action if there is a legal basis for awarding them pursuant to the underlying cause of action." See Palomin v. Zarsky Lumber Co., 26 S.W.3d 690 (Tex. App. Corpus Christi 2000). Texas Civil Practice and Remedies Code 38.001 provides:

A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . (8) an oral or written contract.

Tex. Civ. Prac. & Rem. Code 38.001(8). Here, as Respondent's underlying cause of action is based on a breach of contract, Respondent is entitled to an award of attorney's fees incurred in the underlying suit and incurred in successfully defending the bill of review action.

Doolin's contends this is sufficient to constitute a request for attorneys' fees. We disagree.

We acknowledge that whether a pleading is an affirmative claim for relief is determined by the facts alleged, not by the name given the plea or by the form of the prayer for relief. Quanto Int'l Co. v. Lloyd, 897 S.W.2d 482, 487 (Tex. App. Houston [1st Dist.] 1995, no writ). But we believe there must be at least some request for the relief. At the time Doolin's filed its pretrial brief, Doolin's had not previously made any request for attorneys' fees. And, nowhere in the pretrial brief neither in the above-quoted section referencing attorneys' fees, nor in the brief's concluding section was there any prayer or request for attorneys' fees. That brief asks only that the trial court deny Young's petition for bill of review. It is also worth noting that the purpose of a pretrial brief is to argue positions already taken, not to urge new causes of action. We, therefore, hold that Doolin's had no request for attorneys' fees pending at the time Young sought his nonsuit.

Doolin's contends that, even if the pretrial brief was not sufficient to request attorneys' fees, it filed a motion for attorneys' fees with the trial court before the court signed the dismissal. We hold that the subsequently filed motion for attorneys' fees was not timely and thus does not support a request for attorneys' fees.

Young requested the nonsuit February 23, 2005. Doolin's filed its motion for attorneys' fees February 28, 2005. The trial court did not sign the order granting the nonsuit until June 22, 2005. Doolin's contends that, because the motion was filed before the order granting the nonsuit, it was pending at the time of the dismissal and therefore timely within Rule 162. See Tex. R. Civ. P. 162.

Any pleading requesting attorneys' fees must have been filed before Young's request for nonsuit, not before the trial court's order granting that request. Absent a pending claim for affirmative relief, sanctions, attorneys' fees, or other costs, a nonsuit is effective on request. Granting a request for nonsuit is a purely ministerial duty. A trial court's refusal to grant the nonsuit would violate that duty. Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 58 (Tex. 1991); Greenberg v. Brookshire, 640 S.W.2d 870, 872 (Tex. 1982); see also Tex. R. Civ. P. 162 cmt. If an opposing party has no claim for affirmative relief pending, a trial court's jurisdiction over a cause ends when a notice of nonsuit is given for the only pending claim for affirmative relief. In effect, in such a situation, the filing of a nonsuit divests a trial court of its subject-matter jurisdiction. Williams v. Nat'l Mortgage Co., 903 S.W.2d 398, 402 (Tex. App. Dallas 1995, writ denied).

Doolin's contends that, if the motion for attorneys' fees was late under Rule 162, the trial court still had the authority to award attorneys' fees because the motion was filed before the expiration of the court's plenary power. In support, Doolin's cites several cases, including Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990); In re Bennet, 960 S.W.2d 35, 38 (Tex. 1997).

Each of the cases cited by Doolin's is distinguishable from the present case. Schexnider and the others all discuss a trial court's jurisdiction to impose sanctions after a request for nonsuit has been made. We recognize that attorneys' fees may be awarded as sanctions. Brantley v. Etter, 677 S.W.2d 503, 504 (Tex. 1984). But attorneys' fees are not identical to sanctions as Doolin's suggests, and the trial court did not award either.

Courts possess the inherent power to sanction an attorney's behavior. Bennet, 960 S.W.2d at 40; Onstad v. Wright, 54 S.W.3d 799, 804 (Tex. App. Texarkana 2001, pet. denied). In contrast to an award for attorneys' fees, sanctioning counsel does not involve a judgment on the merits of the action. Rather, it requires the determination of a collateral issue: whether the attorney has abused the judicial process, and, if so, what sanction would be appropriate. Bennet, 960 S.W.2d at 39. Sanctions often do not operate on the underlying merits of a case, whereas an award of attorneys' fees necessarily stems from the merits of a case.

Further, assuming that a trial court has the authority to consider a motion for attorneys' fees filed after a nonsuit request, Doolin's has cited no authority that would require the trial court to consider such a motion. Schexnider and the other cases cited by Doolin's all involved situations where the trial court had decided to impose sanctions. None of the cases stands for the proposition that a trial court must award attorneys' fees requested after a request for nonsuit.

(2) Doolin's Was Not the "Prevailing Party" in the Bill of Review Proceedings

Attorney's fees are available to the prevailing party in a bill of review action if there is a legal basis for awarding them pursuant to the underlying cause of action. Palomin v. Zarsky Lumber Co., 26 S.W.3d 690, 696 (Tex. App. Corpus Christi 2000, pet. denied); see also Meece v. Moerbe, 631 S.W.2d 729, 730 (Tex. 1982). There is no dispute between the parties that Doolin's was entitled to attorneys' fees in the underlying collection action. Young contends Doolin's is not entitled to attorneys' fees accrued during the bill of review proceedings because it was not a "prevailing party" in that action. We agree.

A determination of whether a party is the prevailing or successful party "must be based upon success on the merits . . . ." Nicholson v. Tashiro, 140 S.W.3d 445, 447 (Tex. App. Corpus Christi 2004, no pet.), citing City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex. App. Amarillo 1997, pet. denied). Due to the nonsuit, the merits of the bill of review were never reached by the trial court. Therefore, Doolin's had no opportunity to prevail on the merits.

The "prevailing party" has alternatively been described as the party who is vindicated by the trial court's judgment. Brown, 135 S.W.3d at 347. As we said in Brown, "The prevailing party is typically described as the party to a suit that either successfully prosecutes the action or defends against it, prevailing on the main issue, even though not to the extent of its original contention." Id. The trial court's order granting the nonsuit shows that Doolin's does not fit either of these descriptions.

The trial court dismissed the case without prejudice. Because, under the order, Young retained a right to refile his case, Doolin's was not vindicated by the trial court's judgment, nor did it prevail on the merits. The merits of the main issue were not decided. The bill of review action was simply put aside with the possibility that it would be revisited at a later time.

Doolin's cites several cases in support of its contention that it was the prevailing party. Cooter & Gell, 496 U.S. 384, is inapplicable to the instant case. In Cooter & Gell, the issue before the United States Supreme Court was whether sanctions could be imposed under Rule 11 of the Federal Rules of Civil Procedure after a nonsuit was taken. The Court did not address the "prevailing party" issue.

Doolin's also cites Terry v. Howard, 546 S.W.2d 66, 69 (Tex. App. Dallas 1976, no writ). In that case, the plaintiff nonsuited a group of defendants that it had served by publication requiring the appointment of ad litem attorneys. The Dallas court held that the plaintiff should pay the ad litem attorneys' fees even though it had nonsuited those defendants. That case is distinguished by the presence of the ad litem attorneys' fees. Ad litem attorneys' fees are taxed as part of the costs of court. Tex. R. Civ. P. 244. The party requesting nonsuit is always responsible for court costs. Tex. R. Civ. P. 162. The "prevailing party" analysis is not necessary when determining who should pay court costs. Therefore, the holding in Terry is inapplicable here.

Perhaps the most similar case cited by Doolin's is Pac. Employers Ins. Co. v. Torres, 174 S.W.3d 344 (Tex. App. El Paso 2005, no pet.). In that case, an insurance company had requested judicial review of a decision of the Texas Workers' Compensation Appeals Commission. Three weeks before the trial date, the insurance company nonsuited its action. The trial court dismissed the case without prejudice and awarded attorneys' fees to Torres. The appeals court affirmed the award of attorney's fees, holding that Torres had prevailed on the issue on which judicial review was sought. Id.

We are unwilling to extend the holding in Torres to the facts of this case. The Torres decision was based solely on the court's interpretation of a statute within the Texas Labor Code. See Tex. Lab. Code Ann. 408.221(c) (Vernon Supp. 2005). The court noted that its decision was influenced by the canon that courts should liberally construe workers' compensation provisions in favor of injured workers. See Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000); see also Cigna Ins. Co. of Tex. v. Middleton, 63 S.W.3d 901, 903 (Tex. App. Eastland 2001, pet. denied).

We are guided by the canon that the rules should be construed liberally in favor of the right to nonsuit. Greenberg, 640 S.W.2d at 872, citing Smith v. Columbian Carbon Co., 145 Tex. 478, 198 S.W.2d 727 (1947). In contrast to the cases in which a judgment has been rendered, a nonsuit is a termination of the pleaded causes of action and asserted defenses without an adjudication of their merits that returns the litigants to the positions they occupied before the plaintiff invoked the court's jurisdiction. Molinar v. Plains Ins. Co., 660 S.W.2d 845, 849 (Tex. App. Amarillo 1983, no writ). That being so, the taking of a voluntary nonsuit does not constitute litigation of the issues in a case and does not prejudice the parties against seeking the same relief in a subsequent lawsuit. Rexrode v. Bazar, 937 S.W.2d 614 (Tex. App. Amarillo 1997, no writ); In re T.N.V., 855 S.W.2d 102, 103 (Tex. App. Corpus Christi 1993, no writ); Ashpole v. Millard, 778 S.W.2d 169, 171 (Tex. App. Houston [1st Dist.] 1989, no writ).

Because the bill of review was nonsuited, Doolin's was not the prevailing party. Therefore, Doolin's is not entitled to attorneys' fees incurred during its litigation of the bill of review action.

We affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: November 16, 2005

Date Decided: January 6, 2006