Affirmed and Memorandum Opinion filed September 1, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00036-CV
ANGELICA MARIA REYES, Appellant
V.
AZAEL PATRICK FRAGA, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2011-61532
MEMORANDUM OPINION
Appellant Angelica Maria Reyes (Grandmother) filed a suit to modify the
parent-child relationship requesting managing conservatorship of two children of
appellant Azael Patrick Fraga (Father) as well as for grandparent access requesting
possession of or access to the children. See Tex. Fam. Code Ann. §§ 102.004(a)
(conferring standing on grandparent), 153.433(a) (authorizing court to order
reasonable possession or access to grandchild), 109.002 (authorizing appellate
review). In his answer to Grandmother’s petition, Father requested attorney’s fees
on the grounds that Grandmother’s suit was “filed frivolously or is designed to
harass” Father. In November 2020, Grandmother filed a “motion for non-suit.” The
trial court signed an order dismissing Grandmother’s claims on November 13,
2020. The trial court held a trial on Father’s request for attorney’s fees in
December 2020 and signed a final order awarding Father $10,000 in attorney’s
fees on January 8, 2021. In two issues, Grandmother challenges the trial court’s
order, arguing (1) the order is void because the trial court’s plenary power had
expired at the time it signed the order and (2) the trial court awarded attorney’s
fees on an improper basis.
I. ANALYSIS
A. Plenary power
In issue 1, Grandmother argues the order awarding attorney’s fees is void
because the trial court no longer had plenary power at the time it signed the final
order in January 2021. “The trial court, regardless of whether an appeal has been
perfected, has plenary power to grant a new trial or to vacate, modify, correct, or
reform the judgment within thirty days after the judgment is signed.” Tex. R. Civ.
P. 329b(d). If the trial court does not take any action described in Rule 329b(d),
and no motion for new trial or to modify, correct, or reform the judgment is filed
within 30 days of the signing of the trial court’s judgment, the trial court loses its
plenary power once thirty days have elapsed after the judgment or other order
complained of was signed. See Tex. R. Civ. P. 329b. Here, Grandmother argues the
trial court lost its plenary power 31 days after it signed the November 2020 order
granting Grandmother’s “motion for non-suit” and dismissing Grandmother’s
claims, because those were the only claims before the trial court. Therefore,
according to Grandmother, the trial court’s January 2021 order is void.
Texas Rule of Civil Procedure 162 provides that a plaintiff may take a
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non-suit at any time before introducing all of her evidence other than rebuttal
evidence. Tex. R. Civ. P. 162. Rule 162 also provides, however, that a non-suit
“shall not prejudice the right of an adverse party to be heard on a pending claim for
affirmative relief.” Id. Here, Father requested attorney’s fees in his answer on the
basis that Grandmother’s suit was “filed frivolously or is designed to harass”
Father. Grandmother does not argue that this pleading is not sufficient to give
notice of a claim for attorney’s fees1; instead, Grandmother argues that, because
the request was asserted in an answer as opposed to a counterclaim, the request did
not survive Grandmother’s non-suit. However, “Texas courts have held that an
affirmative claim, stated in an answer, for recovery of attorney’s fees for
preparation and prosecution of a defense constitutes a counterclaim, and as such,
survives a nonsuit.” Kelsall v. Haisten, 564 S.W.3d 157, 163 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (quotations omitted) (collecting cases).2
Because Father’s claim for attorney’s fees was an affirmative claim for relief
that was pending at the time the trial court signed the order that noted the non-suit
of Grandmother’s case, we conclude the trial court’s plenary power did not expire
31 days after it signed an order noting the non-suit of Grandmother’s case. See
Tex. R. Civ. P. 162; Kelsall, 564 S.W.3d at 163. Accordingly, the trial court’s
January 2021 order awarding Father attorney’s fees is not void due to expiration of
1
Cf. Bellefonte Underwriters Ins. Co. v. Brown, 663 S.W.2d 562, 575 (Tex. App.—
Houston [14th Dist.] 1983) (plaintiff need only plead facts which entitle him to recovery of
attorney’s fees and need not also specifically plead legal authority entitling him to recovery of
attorney’s fees), aff’d in part, rev’d in part on other grounds, 704 S.W.2d 742 (Tex. 1986).
2
Grandmother argues the supreme court’s decision in University of Texas Medical
Branch at Galveston v. Estate of Blackmon ex rel. Shultz compels a different result. UTMB, 195
S.W.3d 98 (Tex. 2006). UTMB, however, does not address a claim for attorney’s fees pleaded in
an answer. Instead, the supreme court determined that a request for costs asserted in a plea to the
jurisdiction, without more, did not survive a non-suit. See id. at 101 (explaining that UTMB “has
not raised a claim for affirmative relief, but it did request costs in its plea to the jurisdiction”).
Accordingly, UTMB is factually distinguishable and does not control the disposition of this
appeal.
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the trial court’s plenary power.
We overrule issue 1.
B. Basis for award of attorney’s fees
In issue 2, Grandmother argues the trial court erred by awarding attorney’s
fees because Father pleaded his claim for fees on the basis that Grandmother’s suit
was “filed frivolously or is designed to harass” Father, and the trial court awarded
fees on a different basis that Father did not plead. The trial court’s order, however,
does not state the basis for the fee award, and there are no findings of fact or
conclusions of law in the record. Grandmother bases her argument on an unsigned
docket entry stating in part that “[t]he court does not find that the suit was filed
frivolously or designed to harass. However, the absence of that finding does not
preclude the court from awarding Respondent a judgment for reasonabl[e]
attorney’s fees and expenses pursuant to TFC 106.002, whether Respondent is
considered the ‘prevailing party’ or not.”3
“A docket entry may supply facts in certain situations, but it cannot be used
to contradict or prevail over a final judicial order.” N-S-W Corp. v. Snell, 561
S.W.2d 798, 799 (Tex. 1977) (citation omitted). Moreover, absent exceptional
circumstances not present here, “[a]n appellate court may not consider docket
entries since they are only made for the clerk’s convenience and are usually
unreliable.” Rush v. Barrios, 56 S.W.3d 88, 95 (Tex. App.—Houston [14th Dist.]
2001, pet. denied). Our court has explained that it is “especially inappropriate” to
consider docket entries as findings of fact when the trial court has not filed such
findings. Id. at 96.
3
Family Code section 106.002(a) provides, “In a suit under this title, the court may
render judgment for reasonable attorney’s fees and expenses and order the judgment and
postjudgment interest to be paid directly to an attorney.” Tex. Fam. Code Ann. § 106.002(a).
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Accordingly, we do not consider the docket entry relied on by Grandmother
in determining the basis for the trial court’s award of attorney’s fees. Because the
“finding” in the docket entry is the sole basis on which Grandmother argues the
trial court awarded fees on an improper basis, we overrule issue 2.
II. CONCLUSION
Having overruled Grandmother’s two issues, we affirm the trial court’s final
order as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Chief Justice Christopher and Justices Bourliot and Spain.
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