Jason Hoheisel and Audra Hoheisel v. Micky Boyd and Carrie Boyd

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00142-CV
___________________________

JASON HOHEISEL AND AUDRA HOHEISEL, Appellants

V.

MICKY BOYD AND CARRIE BOYD, Appellees

On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-292873-17

Before Birdwell, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Bassel
 MEMORANDUM OPINION

I. Introduction

In two issues, Appellants Jason and Audra Hoheisel, the Defendants below,

challenge the trial court’s denial of their claim for attorneys’ fees against Appellees

Micky and Carrie Boyd, the Plaintiffs below, that was based on the contention that the

Defendants were the prevailing parties in the litigation. We will refer to the parties by

their trial court designations.

The Defendants’ motion seeking attorneys’ fees alleged that the Plaintiffs had

nonsuited their claims against the Defendants to avoid an inevitable loss on those

claims and that this made the Defendants the prevailing parties. The Defendants

argue in two issues that the trial court committed harmful error when it (1) entered an

order of nonsuit that dismissed their pending claim for attorneys’ fees and (2) denied

their motion for attorneys’ fees and failed to recognize that the evidence established

as a matter of law that the Plaintiffs had dismissed their suit to avoid having a

summary judgment rendered against them. We overrule the first issue because the

order of nonsuit did not specifically dismiss the Defendants’ claim for attorneys’ fees

and, thus, should not be construed as a dismissal of that claim. We overrule the

second issue because the evidence supported two inferences: one was that the

Plaintiffs had nonsuited their claims to avoid an adverse result, but the other was that

a settlement with the other defendants had produced a decision that had made

continuing the litigation with the Defendants no longer worthwhile. Because both

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inferences are supported by the record, the trial court had the discretion to choose

between the two and chose an inference that warranted denial of the Defendants’

motion. The governing standard of review dictates that it is not for us to second-

guess that choice. We therefore affirm.

II. Factual and Procedural Background

The suit below involved the sale of a house and the claim that drainage

problems were not disclosed before the sale of the house to the Plaintiffs. The

Defendants were the sellers of the house, and the other defendants were real estate

agents who represented the Defendants in the sale.

When the Defendants answered the suit, they pleaded a claim for attorneys’

fees based on a provision of the sales contract that they had entered with the

Plaintiffs. That provision stated that any party to the contract “who prevails in any

legal proceeding related to this contract is entitled to recover reasonable attorney’s

fees.” The parties litigated for a year and a half.

After the close of discovery, the Defendants filed a no-evidence motion for

summary judgment. The Plaintiffs responded by attaching the seller’s disclosure made

by the Defendants and allegations and evidence in a prior lawsuit in which the real

estate agent who was a defendant below had alleged that the property had irreparable

drainage problems. The trial court denied the Defendants’ motion for summary

judgment. The Defendants filed a motion to reconsider this ruling, arguing that the

trial court had erred by not sustaining objections to the Plaintiffs’ evidence filed in

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support of their summary-judgment response and that the trial court had not properly

considered the evidence in making its original ruling. The motion to reconsider was

set to be considered by written submission.

The Plaintiffs did not file a response to the motion to reconsider. Instead, two

days before the motion to reconsider was set for submission, the Plaintiffs filed a

motion to dismiss their claims against the defendant real estate agents with prejudice.

The next day, the Plaintiffs filed a motion to nonsuit their claims against the

Defendants. The trial court signed orders granting both of the motions filed by the

Plaintiffs.

The Defendants then filed a motion asserting that they were the prevailing

parties in the litigation and that they were therefore entitled to recover their attorneys’

fees. This motion reiterated many of the arguments that they had made in their

motion to reconsider the trial court’s denial of their summary-judgment motion. The

motion for attorneys’ fees went on to note that the Defendants had asserted their

claim for attorneys’ fees before the nonsuit and also asserted that the Plaintiffs’ action

could support only one conclusion: they had nonsuited to avoid an unfavorable

ruling. The Defendants also filed a motion for new trial that repeated many of the

arguments made in their motion for attorneys’ fees and also asserted that the trial

court had erred by signing a nonsuit order that dismissed the “entire case” and did not

leave in place their affirmative claim for attorneys’ fees that was pending at the time of

the dismissal.

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 The Plaintiffs responded to the motion for attorneys’ fees. Among other

things, the Plaintiffs pointed out that they had not dismissed their case before the trial

court had originally ruled on the Defendants’ motion for summary judgment and

instead had responded to that motion, which the trial court ultimately denied. The

Plaintiffs also pointed out that the evidence supported an inference different from the

one that the Defendants had asked the trial court to draw from the timing of the

nonsuit, i.e., an inference drawn from the explanation that showed that the dismissal

was not an effort to avoid an adverse ruling on the motion to reconsider. The

Plaintiffs described the timing of the nonsuit in relation to the hearing on the motion

to reconsider as being “purely coincidental.” The Plaintiffs detailed what led to their

filing the nonsuit as follows:

The [Plaintiffs] did not file a response to the Motion to Reconsider and
nonsuited this case because of a significant change in the litigation of
this case: reaching a settlement with the other [defendants]. Between
the time the [Defendants’] Motion for Summary Judgment was denied
and the hearing by submission was set on their Motion to Reconsider on
January 23, 2019, the [Plaintiffs] were pursuing negotiations with [the
other defendants] to settle the case. Settlement negotiations between
these parties was ongoing since early December 2018.

. . . The negotiations were successful and the [Plaintiffs] and [the
other defendants] reached a confidential Settlement and Release
Agreement. Upon each respective party completing their obligations
under the agreement, a Motion to Dismiss with Prejudice for the claims
against [the other defendants] was drafted. The signed Motion was
received from counsel for [the other defendants] on January 21, 2019[,]
and filed with this Court on January 22, 2019 . . . .

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In their response, the Plaintiffs offered to tender the settlement agreement and “other

relevant communications” for in camera review. The response also catalogued

evidence that the Plaintiffs claimed demonstrated that their suit had merit when it was

filed.

The trial court determined the Defendants’ motion by written submission. It

entered an order stating, “The Court, having considered the motion and the

arguments of Counsel, has determined that the motion should be DENIED.” This

appeal followed.

III. Analysis

A. The trial court did not dismiss the Defendants’ claim for attorneys’ fees
when it entered an order of nonsuit. The order did not dismiss that claim
because it did not specifically address that claim.

In their first issue, the Defendants ask us to reverse and either render judgment

for the attorneys’ fees that they sought from the Plaintiffs or to remand to the trial

court for it to award those fees. The alleged error underlying the first issue is that the

trial court’s order of nonsuit was overbroad because it dismissed the entire suit,

including their claim for attorneys’ fees. Such an order, the Defendants argue, violates

the principle that a nonsuit cannot prejudice claims asserted by the party adverse to

the one taking the nonsuit. The Defendants are right in principle but wrong in

application because the trial court’s order did not dismiss their claim for attorneys’

fees.

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 Though the order of nonsuit dismisses “this cause,” we do not read it to have

the flaw that the Defendants claim. That order did not specifically dismiss the

Defendants’ claim for attorneys’ fees, and a specific statement is required before an

order of nonsuit should be construed to dismiss a claim for relief made by the party

adverse to the one taking a nonsuit. There is no presumption that the order of

nonsuit is final because it was not preceded by a traditional trial on the merits. See

Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009). In the absence of that presumption,

we “must examine the express language of the order and whether the order actually

disposes of all claims against all parties.” Id. Here, a rule governing the interpretation

of orders of dismissal establishes why the order’s language did not dispose of the fee

claim because “[a] judgment dismissing all of a plaintiff’s claims against a defendant,

such as an order of nonsuit, does not necessarily dispose of any cross-actions, such as

a motion for sanctions, unless specifically stated within the order.” Id. Further, the

trial court’s consideration of the Defendants’ motion indicated that their claim for

attorneys’ fees had not been dismissed. Even if the order contained the flaw that the

Defendants’ claim, the trial court’s consideration and ruling on their motion while the

trial court had plenary power rendered that error harmless.

Texas Rule of Civil Procedure 162 allows a party to terminate the prosecution

of its claim by taking a nonsuit. Tex. R. Civ. P. 162. But the rule is explicit that “[a]ny

dismissal pursuant to this rule shall not prejudice the right of an adverse party to be

heard on a pending claim for affirmative relief.” Id. The rule is also explicit that a

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dismissal “shall have no effect on any motion for . . . attorney’s fees or other costs,

pending at the time of dismissal.” Id. And caselaw, which has filled in a gap not

addressed in the rule, permits a trial court to consider a motion for attorneys’ fees

filed after the dismissal so long as that motion is heard while the trial court retains

plenary jurisdiction. Beasley v. Soc’y of Info. Mgmt., Dallas Area Chapter, No. 05-17-

01286-CV, 2018 WL 5725245, at *6 (Tex. App.—Dallas Nov. 1, 2018, pet. denied)

(mem. op.) (holding that trial court had jurisdiction to consider motion for attorneys’

fees filed after entry of order of nonsuit (citing Travelers Ins. Co. v. Joachim, 315 S.W.3d

860, 863 (Tex. 2010), and Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596

(Tex. 1996) (per curiam) (op. on reh’g))); see also Proler v. City of Houston, 499 S.W.3d 12,

15 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (op. on reh’g) (“Rule 162 merely

‘permits the trial court to hold hearings and enter orders affecting . . . attorney’s fees .

. . even after notice of nonsuit is filed.’”).

The Plaintiffs do not challenge that the Defendants’ claim for attorneys’ fees

was “a pending claim for affirmative relief” that survived a nonsuit. Our examination

of the record validates that the Defendants had a pending claim for relief. Though

phrased inartfully, the Defendants’ second amended answer sought attorneys’ fees

based on the provision of the parties’ contract awarding the prevailing party its

attorneys’ fees.1 And though not every claim for attorneys’ fees is considered a prior

The answer contains a heading labeled “Request for Attorney[’s] Fees” that is
1

followed by the allegation that “[p]ursuant to Section 17 of [sic] the Defendants

8
pending claim that survives a nonsuit, the Defendants’ claim appears to be one that

does qualify as a pending claim that would survive. To be such an affirmative claim

for relief, the fee claim must be based on an independent ground or sanction. Body

Shop Auto Storage v. Santander Consumer USA, Inc., No. 01-17-00693-CV, 2018 WL

3580938, at *2 (Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op.)

(“Thus, a claim for attorney’s fees based solely on defending against the other party’s

claims is not a request for affirmative relief, but if the fees claim is based on an

independent ground or sanction, it is a request for affirmative relief.” (citing Villafani

v. Trejo, 251 S.W.3d 466, 470 (Tex. 2008))). A fee claim made by a defendant against

a plaintiff based on the same type of contract provision invoked by the Defendants in

this case appears to be an affirmative claim for relief based on an independent ground.

See Epps v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011) (examining claim for attorneys’

fees predicated on claim that party was prevailing party and entitled to recover

attorneys’ fees under section of an earnest-money contract).

Because the Defendants had an affirmative claim for relief, as we have noted,

we agree in principle that such a claim should not have been dismissed when granting

request recovery their reasonable attorney’s fees should they prevail in this legal
proceeding.” This allegation apparently refers to the “ONE TO FOUR FAMILY
RESIDENTIAL CONTRACT (RESALE)” by which the Defendants contracted to
sell the property to the Plaintiffs. [Bolding removed from original.] Paragraph 17 of
that contract contains a provision allowing the prevailing party to recover attorneys’
fees.

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the Plaintiffs’ nonsuit. 2 But we disagree that the trial court’s order of nonsuit contains

such an error. The nonsuit order entered below does not address the affirmative

claim for attorneys’ fees made by the Defendants, and an order of nonsuit is not

interpreted to dispose of a pending claim for relief unless it specifically states that it is

doing so. See Crites, 284 S.W.3d at 840; see also In re Anderson, No. 01-10-00182-CV,

2010 WL 1612309, at *2 (Tex. App.—Houston [1st Dist.] Apr. 19, 2010, orig.

proceeding) (mem. op.) (rejecting argument that claim for sanctions was dismissed

because plaintiff intended nonsuit to dismiss entire case and stating that “[b]ecause of

the absence of specific language addressing the motion for sanctions, the trial court’s

order of nonsuit did not dispose of it”).

Further, the trial court allowed the parties to continue to litigate the claim for

attorneys’ fees after the entry of the order of nonsuit. This is an indication that the

trial court viewed that claim as viable and as not disposed of by its order of nonsuit.

And there is no challenge to and no question in our view that the trial court had the

jurisdiction to make that decision after signing the order of nonsuit. The order of

nonsuit was not a final judgment because it did not dispose of the fee claim. See

Anderson, 2010 WL 1612309, at *2. Even if it were a final judgment, the Defendants

filed a timely motion for new trial attacking the order of nonsuit for allegedly

disposing of their fee claim. This extended the trial court’s plenary jurisdiction, and

The Plaintiffs’ motion for nonsuit did not request the dismissal of the
2

Defendants’ fee claim. Rather, the Plaintiffs erroneously stated, “Defendants . . .
ha[ve] no pleadings on file seeking affirmative relief from plaintiff[s].”

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the trial court disposed of the fee motion within the period of that jurisdiction. See

Tex. R. Civ. P. 329b(a), (e).

Also, the trial court allowed the parties to litigate the fee question using the

appropriate procedure and then ruled on the motion in due course. The Defendants’

motion asking the trial court to award them attorneys’ fees because they were the

prevailing party was built on the relief that they had sought in their answer. That

motion was simply the vehicle for the Defendants to litigate the fee claim. See Killam

Ranch Props., Ltd. v. Webb Cty., No. 04-08-00105-CV, 2008 WL 4958452, at *5 (Tex.

App.—San Antonio Nov. 19, 2008, no pet.) (mem. op.) (“The subsequent motion for

attorney’s fee was merely the vehicle by which it sought to enforce its pre-existing

claim for relief.”). This course does not suggest that the trial court viewed its order of

nonsuit as a disposition of the Defendants’ fee claim.

Finally, the Plaintiffs point us to authority from this court holding that when an

order of nonsuit improperly dismisses a fee claim, the error is harmless when the

parties are able to brief the issue and the trial court enters an order disposing of the

fee claim. See Severs v. Mira Vista Homeowners Ass’n, 559 S.W.3d 684, 710–11 (Tex.

App.—Fort Worth 2018, pet. denied). This holding demonstrates that even if there

were error in the form of the order, it would be harmless.

The Defendants in their opening brief make only one challenge to the

contention that any error—if it occurred—was harmless: the trial court’s order is

vague whether it disposed of the merits of the fee claim or viewed that claim as moot

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because of its prior nonsuit order. The order denying the Defendants’ motion for

attorneys’ fees does not contain that ambiguity. The Defendants filed a motion

seeking their attorneys’ fees, and the Plaintiffs responded to that motion. The

response did not argue that the order of nonsuit had disposed of the fee claim but

challenged the merits of that motion. The Defendants filed a notice stating that their

motion would be decided by written submission. The trial court signed an order that

stated that it had considered the Defendants’ motion and that “[t]he Court, having

considered the motion and the arguments of Counsel, has determined that the motion

should be DENIED.” The record and the terms of the order indicate that the trial

court considered the motion for the fee request as the parties asked it to do and

disposed of it on the merits of the motion rather than on a belief that the claim was

previously dismissed.

In their reply brief, the Defendants expand on their argument that the trial

court committed harmful error and point to distinctions between Severs and the

instant case. They argue that those distinctions show that the trial court in this case

committed harmful error because it never considered the merits of their fee claim.

We remain unpersuaded.

First, as we have explained, we do not agree that the trial court’s order of

nonsuit contained the error of dismissing the Defendants’ fee claim. Second, the

Defendants’ argument turns on the procedure utilized by the trial court in hearing the

fee claim. In essence, the argument is that the process of determining the fee claim

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hearing in Severs was more thorough because, rather than hearing the matter by

submission, the trial court took three steps by holding a status conference, conducting

a hearing, and issuing an extensive letter ruling. Based on these distinctions, the

Defendants argue that “the record simply does not establish—as the Severs record

did—that the trial court ultimately considered the counterclaim ‘on the merits.’” This

argument is based on the faulty premise that because the trial court in this case

considered the fee claim in a different manner than the trial court did in Severs, we

must conclude that the trial court did not resolve the fee claim on the merits. But that

argument leaves unanswered the dispositive question of whether the trial court’s

actions below indicate that the trial court in fact disposed of the Defendants’ fee claim

on the merits. The trial court’s actions we have outlined and the provisions of its

order denying the fee claim indicate that the trial court disposed of the fee claim on

the merits and do not indicate that the trial court operated under a misconception that

the order of nonsuit had disposed of that claim.

Thus, the order of nonsuit did not improperly dismiss the Defendants’ fee

claim, and nothing the trial court did indicated a belief that it had disposed of the fee

claim in the order of nonsuit. Even if the order of nonsuit contained a flaw, that

error was harmless because the trial court heard and disposed of the fee claim while it

had jurisdiction to do so. We overrule the Defendants’ first issue.

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B. The evidence supported an inference that the Plaintiffs did not nonsuit
to avoid an adverse result. The trial court did not err because it chose a
reasonable inference that the Defendants do not like.

In their second issue, the Defendants assert that they were the prevailing

parties and that the trial court erred by denying their motion for attorneys’ fees. They

argue that the evidence established their status as prevailing parties because the

Plaintiffs nonsuited their case on the eve of the hearing to reconsider the trial court’s

denial of their no-evidence motion for summary judgment. In the Defendants’ view,

this act establishes as a matter of law that “there is unquestionably an inference that

the [Plaintiffs] nonsuited in order to avoid an unfavorable ruling which would have

been dispositive of the [Plaintiffs’] causes of action (i.e., an order disposing of all of

their claims on no-evidence grounds).” This argument ignores that the trial court had

evidence before it from which it could draw another reasonable inference—the

Plaintiffs’ settlement with another party made it uneconomical to continue the

litigation against the Defendants. Choosing between these two reasonable inferences

was within the purview of the trial court.

As noted, the Defendants sought attorneys’ fees by claiming that they were the

prevailing parties in this litigation. Usually, the taking of a nonsuit does not establish a

winner or a loser in litigation. See generally Epps, 351 S.W.3d at 869. The nonsuit

simply calls a halt to the conflict; in other words, “a nonsuit without prejudice works

no such change in the parties’ legal relationship; typically, the plaintiff remains free to

re-file the same claims seeking the same relief.” Id.

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 But the supreme court has held that a party may prevail even if the litigation

did not progress to a point that a party receives a formal declaration of victory in the

form of a judgment. Id. at 868–70. Calling a halt to the litigation process by

nonsuiting may establish that one party has prevailed when the nonsuit signals an

attempt to avoid an inevitable adverse result by a nonsuiting party. Id. In the

supreme court’s view, a nonsuit will not forestall the declaration that one party

prevailed when the nonsuit is conspicuously an acknowledgement that a losing claim

is about to reach its end by entry of an inevitable adverse judgment:

[I]t is logical to conclude that the parties intended to award attorney’s
fees to compensate the defendant when the plaintiff knowingly pursues a
baseless action. It makes sense to conclude that the parties would have
sought to “discourage the litigation of frivolous, unreasonable, or
groundless claims” when a “calculating plaintiff . . . voluntarily
withdraws his complaint ‘to escape a disfavorable judicial determination
on the merits.’” That construction is consistent with the disfavor our
cases have displayed toward nonsuits that are filed to circumvent
unfavorable legal restrictions or rulings.

Id. at 869–70 (citations omitted).

To make a determination regarding whether a nonsuit signals an attempt to

sidestep the inevitable, “[a] number of factors may support an inference that a

plaintiff has nonsuited in order to avoid an unfavorable ruling.” Id. at 870–71. The

supreme court catalogued the types of evidence that the trial court should examine in

deciding whether such an inference exists:

[I]f a plaintiff nonsuits only after a motion for summary judgment is
filed, it may suggest that the plaintiff elected to do so in order to escape
summary judgment. Further, a plaintiff’s unexcused failure to respond

15
 to requests for admissions or other discovery that could support entry of
an adverse judgment may also indicate that a nonsuit was taken to
foreclose that possibility. Similarly, a failure to timely identify experts or
other critical witnesses could suggest that a nonsuit is neither tactical nor
voluntary. And the existence of other procedural obstacles, such as the
plaintiff’s inability to join necessary parties, may also signal that the
defendant has prevailed over the plaintiff.

Id. at 871 (citation omitted). But the supreme court also noted that other factors may

signal an inference that the nonsuit is not a recognition that a baseless lawsuit is about

to receive its just deserts. Id. There may be events that occur as the suit progresses

that make the litigation no longer viable:

On the other hand, as we have noted, it is reasonable to presume that
the parties did not intend to encourage continued litigation when
discovery reveals previously unknown flaws in the plaintiff’s claims.
Accordingly, evidence that the suit was not without merit when filed
may indicate that the defendant has not prevailed and is therefore not
entitled to attorney’s fees.

Id.

In this case, the standard of review tightly constrains us from second-guessing

the trial court’s determination of what inference to make because, as we have recently

held, that question involves one of fact. See Severs, 559 S.W.3d at 706. In that case, we

had to delve into the appropriate standard of review because of uncertainty in what

standard we should apply “when, as is the case here, we review a trial court’s decision

to deny a defendant’s counterclaim for attorney’s fees under a ‘prevailing party’ clause

in a contract when the contract does not define ‘prevailing party’ and the plaintiff has

nonsuited its claims without prejudice.” Id. Relying on the First and Fourteenth

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Courts, we decided that the issue of whether a party nonsuited to avoid an

unfavorable ruling is a question of fact that we review under an abuse-of-discretion

standard. Id. (quoting N. Star Water Logic, LLC v. Ecolotron, Inc., 486 S.W.3d 102, 105

(Tex. App.—Houston [14th Dist.] 2016, no pet.), and citing Referente v. City View

Courtyard, L.P., 477 S.W.3d 882, 885–86 (Tex. App.—Houston [1st Dist.] 2015, no

pet.)). On the other hand, “we review any legal determinations, such as whether the

suit had an arguable basis in law, de novo.” N. Star Water Logic, LLC, 486 S.W.3d at

105; see also Referente, 477 S.W.3d at 886 (“[W]e will review the trial court’s

determination under Epps for an abuse of discretion, deferring to factual findings that

are supported by some evidence, but reviewing legal questions de novo.”).

Because the inference to draw whether a party nonsuited to avoid an

unfavorable result is a fact question, “the trial court’s finding on that issue may be

challenged on the ground that it is not supported by sufficient evidence.” Referente,

477 S.W.3d at 885. In that circumstance, we may reverse only if the evidence

supported only one decision and the trial judge made a different one:

With respect to factual matters, a trial court abuses its discretion if,
under the record, it reasonably could have reached only one decision,
and it failed to do so. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.
1992) (orig. proceeding). With respect to the application of the law, a
trial judge has no discretion in determining what the law is or in applying
the law to the undisputed facts, and a clear failure by the court to
correctly analyze or apply the law will constitute an abuse of discretion.
See id.

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Tex. Voices for Reason & Justice, Inc. v. City of Argyle, No. 02-16-00052-CV, 2017 WL

1173837, at *2 (Tex. App.—Fort Worth Mar. 30, 2017, no pet.) (mem. op.); see also

Health Care Serv. Corp. v. E. Tex. Med. Ctr., 495 S.W.3d 333, 338 (Tex. App.—Tyler

2016, no pet.) (op. on reh’g) (“The trial court does not abuse its discretion if some

evidence reasonably supports the trial court’s decision. More specifically, the trial

court does not abuse its discretion when it bases its decision on conflicting evidence,

or when some evidence of substantive and probative character exists to support its

decision.” (citation omitted)). And it is not our role to question whether a trial court

picked the better of the inferences because when deciding which inference to choose,

a factfinder is free to select between conflicting inferences drawn from the evidence

so long as each of the inferences is reasonable. City of Keller v. Wilson, 168 S.W.3d 802,

821 (Tex. 2005) (“Even if evidence is undisputed, it is the province of the jury to draw

from it whatever inferences they wish, so long as more than one is possible and the

jury must not simply guess.”).

Here, the Defendants’ argument fails because it ignores that the evidence

supported an inference contrary to the one they prefer—an inference that the

Plaintiffs nonsuited their claims against the Defendants because a settlement with the

other defendants and the poor likelihood of a recovery against the Defendants made

it unreasonable from their perspective to continue litigating. The Plaintiffs specifically

pointed to this inference as the basis for the trial court to deny the Defendants’

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motion for attorneys’ fees.3 The record contains evidence that the inference the

Plaintiffs advocated was reasonable if for no other reason than that the motion to

dismiss the other defendants with prejudice was followed a day later with the nonsuit

of their claims against the Defendants.

Nor do the other facts cited by the Defendants make the inference

unreasonable as a matter of law as they contend. The trial court had denied the

Defendants’ no-evidence motion for summary judgment. The Defendants asked the

trial court to reconsider that ruling, and the motion to reconsider was set by written

submission on the day after the Plaintiffs nonsuited. The Plaintiffs had not filed a

response to the motion to reconsider and had allegedly filed no admissible evidence in

response to the original no-evidence motion. The Defendants argue that “[u]nder

these facts, there is unquestionably an inference that the [Plaintiffs] nonsuited in order

to avoid an unfavorable ruling [on the motion to reconsider,] which would have been

3
As we noted earlier, the Plaintiffs’ response to the Defendants’ motion
articulated the inference that it asked the trial court to draw as follows:

In the present case, the [Plaintiffs] had a legitimate reason to nonsuit,
irrespective of the strength of their claims against the [Defendants] and
the pending hearing by submission on the [Defendants’] Motion to
Reconsider. Specifically, they were able to settle and complete their
respective obligations under the settlement agreement with [the other
defendants]—which was coincidentally two days before the Motion to
Reconsider. Upon settling with [the other defendants], the [Plaintiffs]
evaluated the impending trial costs and likelihood of collecting any
judgment obtained against the [Defendants]. Based on that analysis, the
[Plaintiffs] decided to file a Motion to Nonsuit Without Prejudice for the
claims against the [Defendants] on January 23, 2019.

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dispositive of the [Plaintiffs’] causes of action (i.e., an order disposing of all of their

claims on no-evidence grounds).” The inference that the Defendants draw may be

reasonable, but it is not the only reasonable inference. A complete portrayal of the

facts also supports the contrary inference, which is the one that the trial court

impliedly drew. The confluence of circumstances supports an inference that the

Plaintiffs decided that the settlement they had obtained made it unreasonable to

continue to litigate. And we highlight that the Plaintiffs had prevailed against the

Defendants’ motion for summary judgment. It is a stretch to argue that nonsuiting

before consideration of a motion that asked the trial court to reverse a favorable ruling

irrefutably signals that the Plaintiffs nonsuited to sidestep an inevitable adverse result.

The Defendants raise two arguments in their reply brief that challenge our

holding that there was evidence that offered the trial court two inferences to choose

from. As we interpret that brief, the first argument is that the Plaintiffs offered only

argument and no evidence to support the inference that they asked the trial court to

make. The second argument is that we cannot imply a finding to support the trial

court’s order because the trial court did not conduct an evidentiary hearing—because

the Plaintiffs offered no evidence—and findings of fact should not be made in a

postjudgment context.

With respect to the first argument, we disagree that the record is as fallow as

the Defendants claim. As we noted, the timing of the motion to dismiss with

prejudice and the nonsuit offered some evidence to support an inference that the

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nonsuit was not a tactic to avoid an inevitable adverse result. And we emphasize

again the unique posture of the case when dismissed—the Plaintiffs had prevailed

against the Defendants’ summary-judgment motion. This fact, in combination with

the timing of the motion to dismiss with prejudice and nonsuit, simply does not

support a conclusion that the only decision the trial court could reach was that the

Plaintiffs dismissed their case to dodge an inevitable loss.

We also reject the contention that the trial court could not consider Plaintiffs’

counsel’s explanation of the timing of the nonsuit. See N. Star Water Logic, 486 S.W.3d at

109 (stating that when a party is not put on notice until after nonsuit that attorneys’ fees are

at issue, “the trial court did not err by basing its decision, in part, on counsel’s statements

during the attorney’s fees hearing that there were monetary reasons behind the nonsuit”).

Our conclusion—that the trial court did have an evidentiary basis for the

inference that we conclude it drew—disposes of the Defendants’ arguments

suggesting that we cannot imply the finding that the trial court made. If we

understand the first of these procedural arguments, it is that the trial court had no

power under Texas Rule of Civil Procedure 296 to make a finding because it did not

try any issue due to not having any factual controversy before it. See Tex. R. Civ. P.

296 (“In any case tried in the district or county court without a jury, any party may

request the court to state in writing its findings of fact and conclusions of law.”). This

argument turns on the premise that we just rejected: Plaintiffs’ counsel’s explanation

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of the reason for the nonsuit was the only support in the record for the inference that

the trial court apparently drew, and that explanation is not evidence.

The Defendants’ second procedural argument is that the trial court has no duty

to make findings of fact and conclusions of law after a postjudgment hearing. They

cite two opinions from this court holding that a trial court does not abuse its

discretion by refusing to make findings when resolving a postjudgment proceeding.

See Murray v. Murray, 276 S.W.3d 138, 143–44 (Tex. App.—Fort Worth 2008, pet.

dism’d) (“Consequently, because the hearings in this case were post-judgment

hearings, and because a trial court’s duty to make findings of fact and conclusions of

law does not extend to post-judgment hearings, we hold that the trial court did not

abuse its discretion by denying Brad’s request for findings of fact and conclusions of

law.”); Johnson v. J.W. Constr. Co., 717 S.W.2d 464, 467–68 (Tex. App.—Fort Worth

1986, no writ) (reasoning that because a postjudgment hearing is not a trial and

because Rule 296 specifically states that findings of fact and conclusions of law are

mandatory in “any case tried in the district or county court without a jury,” Rule 296

is inapplicable to postjudgment hearings). The Defendants also cite a case holding

that a request for findings made after a postjudgment hearing will not extend the

appellate timetable. See Santiago v. Bank of N.Y. Mellon, No. 05-15-00342-CV, 2015 WL

2375400, at *1 (Tex. App.—Dallas May 18, 2015, no pet.) (mem. op.).

We are unsure what we are supposed to glean from this argument. Even if it

had no “duty” to do so, if the trial court had made findings, we could have considered

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them. See Shanklin v. Shanklin, No. 13-15-00392-CV, 2016 WL 3962707, at *2 (Tex.

App.—Corpus Christi–Edinburg July 21, 2016, no pet.) (mem. op.) (stating that for

purposes of Rule 296, a case is “tried” to the court when there is an evidentiary

hearing before the court upon conflicting evidence and that “[f]indings not ‘required’

by rule 296 could ‘properly be considered’ by an appellate court when such findings

are ‘not without purpose’ or ‘may be useful for appellate review’—for example, where

the trial court’s judgment is ‘based in any part on an evidentiary hearing’”).

And more fundamentally, even if the trial court had no duty to make findings,

that does stifle our ability to imply how it resolved a factual question and then review

whether that resolution was correct. If no findings are made, we still imply the

findings necessary to support the judgment or order and then apply the standards of

evidentiary review to those implied findings. See Wittau v. Storie, 145 S.W.3d 732, 736

(Tex. App.—Fort Worth 2004, no pet.) (per curiam) (stating that when no findings of

fact or conclusions of law are filed, the trial court’s judgment implies all findings of

fact necessary to support it and that “[b]ecause a record was made of the nunc pro

tunc hearing, however, these implied findings are not conclusive, and [appellant] may

challenge them by raising both legal and factual sufficiency of the evidence issues”

(citing Pharo v. Chambers Cty., 922 S.W.2d 945, 948 (Tex. 1996), and Roberson v.

Robinson, 768 S.W.2d 280, 281 (Tex. 1989))).

The Defendants’ second procedural argument appears to suggest that when the

trial court does not have a duty to make findings, we lack the ability to imply the

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apparent basis for the trial court’s ruling and then review that implied basis. As

shown, the latter is not dependent on the former. Indeed, at least two courts of

appeals have implied findings in appeals involving the same question before us

regarding whether a party was entitled to fees as a prevailing party. See Lusk v. Osorio,

Nos. 14-17-01011-CV, 14-18-00522-CV, 2019 WL 3943195, at *7 (Tex. App.—

Houston [14th Dist.] Aug. 20, 2019, no pet.) (mem. op.) (“When a trial court does not

file findings of fact and conclusions of law to support its ruling, as here, we infer all

findings necessary to support the judgment. Likewise, we infer the necessary finding

in favor of the trial court’s judgment that [appellant] nonsuited her claims to avoid an

unfavorable summary judgment.” (citations omitted)); BBP Sub I LP v. Di Tucci,

No. 05-12-01523-CV, 2014 WL 3743669, at *4 (Tex. App.—Dallas July 29, 2014, no

pet.) (mem op.) (“The trial court’s implied finding that [appellant] voluntarily

dismissed the [Texas Theft Liability Act] claim to avoid an unfavorable judgment on

the merits is supported by the record.”).

We overrule the Defendants’ second issue.

IV. Conclusion

We overrule the Defendants’ first issue because the trial court’s order of

nonsuit did not dispose of their fee claim; thus, the order does not contain the error

they contend it does. Even if it did, any error is harmless. We overrule the

Defendants’ second issue because the evidence does not conclusively establish the

inference they advocate for; instead, the record supports the inference that the trial

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court opted to make, and that inference warranted the denial of the Defendants’ fee

motion. We affirm the trial court’s order denying “Defendants Jason and Audra

Hoheisel’s Motion for Attorneys’ Fees as Prevailing Parties.”

/s/ Dabney Bassel

Dabney Bassel
Justice

Delivered: January 23, 2020

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