dissenting.
I do not believe that Fullenweider is entitled to rely on Section 16.064 of the Texas Civil Practice and Remedies Code to toll the statute of limitations. Therefore, I respectfully dissent from the majority opinion.
The purpose of the statute is to prevent the statute of limitations from barring an action when the plaintiff originally filed suit in the wrong court and the case was dismissed for want of jurisdiction. Courts have expressed that this statute should be given a liberal construction with a view of effectuating its manifest objective — relief from penalty of limitation bar to one who has mistakenly brought his or her action in the wrong court. Burford v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex.Civ.App.-Austin 1944, writ ref d w.o.m.). Fullenweider did not file his original action either “mistakenly” or “in the wrong court.”
Fullenweider filed the original action to collect his attorney’s fees in the Montgomery County District Court where the divorce was granted. Clearly, if Fullenweider had merely filed a separate suit for his attorney’s fees, the Montgomery County District Court had jurisdiction. Tex. Const, amend. V, § 8; Tex. Gov’t Code Ann. §§ 24.007-008, 24.505 (Vernon 2004). It was only because Fullenweider filed suit in the original divorce action that he was unable to pursue the matter in the Montgomery County District Court. The Texas Supreme Court held that the mechanism *348Fullenweider attempted to use was designed for clarifying and enforcing divorce decrees and did not relate to any issues other than those related to the division of a marital estate. Brown v. Fullenweider, 52 S.W.3d 169, 171 (Tex.2001). Otherwise, by this procedure, the parties would have been denied the right to a jury trial on the disputed fee issue. Id. The Texas Supreme Court held Fullenweider had not “properly invoked” jurisdiction. Id. This is not to say that the Montgomery County District Court was the wrong court with no jurisdiction over a properly presented dispute of the attorney’s fees issue. This is very similar to the situation in Bell v. Moores, No. 01-94-00826-CV, 1996 WL 74099, (Tex.App.-Houston [1st Dist.] Feb. 22,1996, no writ) (not designated for publication). In that case, a former spouse attempted to intervene in a suit against her husband’s employer to collect payments due him for writing a software program. Her intervention was dismissed because she did not have standing. She also filed a bill of review, and over four years later, after she acquired standing, she attempted to amend the bill of review to include the claims initially asserted in the intervention. The court of appeals held that Section 16.064 deals with tolling the statute of limitation when the first suit is filed in the wrong court. In Bell, the court of appeals held that the trial court lacked jurisdiction because the spouse did not have standing — not because she filed in the wrong court. Id. at * 5. Therefore, Section 16.064 did not apply. Likewise, here, the trial court did not lack jurisdiction because Fullenweider filed in the wrong court, but because he filed it in a case in which the judgment was already final and in a proceeding designed only to divide a marital estate.
Second, Fullenweider did not bring his original suit “mistakenly.” In Turner v. Tex. Dep’t of Mental Health & Mental Retardation, 920 S.W.2d 415 (Tex.App.Austin 1996, writ denied), the plaintiff had previously filed an action in federal court, which had been dismissed. The Austin Court of Appeals assumed for analysis purposes that the federal court dismissed Turner’s claim for lack of jurisdiction. However, the court pointed out that Turner could not be considered to have mistakenly filed his action in the wrong court. He could not have maintained his Section 1981 and Section 1988 causes of action in either state or federal court. Rather than mistakenly filing his action in the wrong court, Turner simply filed the wrong cause of action regardless of where it was filed. The court held such mistake was beyond the scope and purpose of the tolling provision at issue. Id. at 419.
Fullenweider could not have maintained his original cause of action for the enforcement of the divorce decree in any court other than the court of original continuing jurisdiction. Tex. Fam.Code Ann. § 9.002 (Vernon 1998). To enforce the divorce judgment, filing in that court was not a mistake, it was statutorily required. Fullenweider filed in a court of proper jurisdiction, but apparently for strategic reasons, in a procedurally incorrect manner. Therefore, it is likewise beyond the scope and purpose of the tolling provision at issue.
In Clary Corp. v. Smith, 949 S.W.2d 452 (Tex.App.-Fort Worth 1997, writ denied), a party filed its first action in a county court at law and exceeded the monetary jurisdictional limit of the court. Rather than amend the pleadings, the party allowed the original action to be dismissed and refiled with a reduced damage claim. The court there held that Section 16.064 was not designed to remedy such tactical decisions. The majority opinion distinguishes the Smith case, stating that the second case was not filed in a “different court.” How*349ever, the opinion in Smith held that one of the grounds precluding the use of Section 16.064 was “because there is no evidence that they initially mistakenly filed their counterclaim in the trial court they cannot rely on Section 16.064(a) to save their claims from limitations.” Id. at 461. Likewise, there is no evidence that Fullenweider mistakenly filed his original claim. Just as in the Smith case, the filing of the original claim was based on tactical decisions, but it was certainly not inadvertently or mistakenly filed in the Montgomery County District Court. Just as in Smith, Fullenweider should likewise not be able to rely on Section 16.064 to save his claim from limitations.
The majority refers to the policy underlying statutes of limitations to ensure the timely presentation of a cause of action. There is also a policy to avoid unnecessary litigation. See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 208 (Tex.1996). Fullenweider’s claim against Brown is a simple suit for attorney’s fees incurred. As a result of the novel and unorthodox procedure instituted by Fullenweider to collect these fees, this simple case has thus far been before the trial court twice, two courts of appeals, and the Texas Supreme Court, when it could have been disposed of promptly and at much less expense to the parties by traditional methods.
Finally, I do not understand why the majority opinion instructs on the distinction between venue and jurisdiction. The abstract statements are accurate, but unnecessary. Neither of the parties have raised this as an issue, the Texas Supreme Court opinion in this case does not mention it, and it has no application to this case.
Based on the above, it is my conclusion that the statute of limitations precludes the assertion of this cause of action and I respectfully dissent from that portion of the judgment and opinion of this Court.