AFFIRMED and Opinion Filed February 11, 2019 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-18-00142-CV 

CRYSTAL GEE ROACH, Appellant 

V. 

LIAT TURKIA, AVI TURKIA, TIL INVESTMENTS, LLC, AND 

AMBIANCE REALTY, Appellees 

On Appeal from the 416th Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 416-01156-2017 

MEMORANDUM OPINION 

Before Justices Schenck, Reichek, and Nowell 

Opinion by Justice Reichek 

Following the nonsuit of her claims without prejudice, Crystal Gee Roach appeals the trial 

court’s order designating Liat Turkia, Avi Turkia, TIL Investments, LLC, and Ambiance Realty 

the prevailing parties in this suit and awarding them attorney’s fees. In two issues, Roach contends 

the trial court erred in determining appellees had prevailed and in concluding her defenses to 

appellees’ motion for summary judgment lacked merit. Appellees bring a cross-appeal contending 

the trial court abused its discretion in not awarding them the full amount of attorney’s fees they 

requested. We affirm the trial court’s order. 

Factual Background 

Liat and Avi Turkia are the managing members of TIL Investments, a real estate investment 

company. In January 2014, TIL purchased a residential property in Plano, Texas through a short-
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sale. The property was purchased without a prior inspection. Independent contractors were then 

hired to perform repairs and renovations to the house, including replacing the tile in the master 

bathroom and cleaning, refilling, and restarting the swimming pool. The updates were made for 

the purpose of putting the house back on the market for resale.

In February 2014, the Turkias listed the house for sale and made arrangements for 

Ambiance Realty to act as broker. On February 21, Roach, an attorney specializing in real estate 

matters, made an offer to purchase the house. The offer was accepted a short time later. Roach 

and Liat signed a sales contract naming Roach as buyer and TIL as seller. The contract specified 

Roach was accepting the property “in its present condition.” Roach was provided with the seller’s 

disclosure notice at that time. The notice stated the seller was not aware of any defects in the 

property. 

Roach hired an independent inspector who created a detailed report listing numerous issues 

with the property, including large cracks in the pool plaster and multiple leaks at the pool pump. 

The report advised Roach to consult a specialist concerning re-surfacing the pool. Roach also 

obtained an appraisal report which noted that, at the time TIL purchased the property, the pool was 

empty and not functional. The report went on to state the pool had been repaired and refilled and 

was currently functioning. Based on the inspection and appraisal reports, the parties signed an 

amendment to the sales contract lowering the purchase price and requiring TIL to make various 

repairs. The repairs were made and the sale of the property closed as scheduled. 

Approximately three years later, on March 9, 2017, Roach sent a demand letter to TIL 

asserting it had failed to disclose in its seller’s disclosure notice that the repairs to the master 

bathroom were done without the proper permits and in a negligent manner. The letter alleged the 

walls in the shower were not updated with the proper water resistant backing, which resulted in 

water permeating the new tiles and causing extensive mold damage. The letter further stated TIL 
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failed to disclose the fact that the pool had been empty for an extended period of time prior to sale 

which led to severe cracking. Roach demanded TIL pay her $20,056 within thirty days based on 

estimates she had obtained of the cost to repair the bathroom and pool. The same day the demand 

letter was sent, Roach filed suit against appellees alleging claims for fraud, breach of contract, 

negligence, negligent misrepresentation, and violations of the Texas Deceptive Trade Practices 

Act. 

Counsel for appellees responded to Roach stating that her letter was insufficient to fulfill 

the prerequisite of a prior demand under the DTPA and her claims were “barred either by the 

statute of limitations or by prevailing case law.” The letter cited authority for the proposition that 

Roach’s renegotiation of the sales contract based on an independent inspection rendered her unable 

to establish either reliance or causation with respect to any alleged misrepresentations made by the 

Turkias. Counsel also noted that no permits were required for the work done to the house and the 

Turkias had no knowledge of any defects regarding installation of the tile. Appellees then filed 

verified answers asserting that Roach failed to satisfy the conditions precedent to bringing suit and 

her claims were barred by waiver, estoppel, and the applicable statute of limitations. The Turkias 

and Ambiance Realty also asserted they were not liable in the capacity in which they had been 

sued. Finally, appellees requested an award of attorney’s fees and costs. 

On September 29, 2017, the Turkias and TIL filed a traditional motion for summary 

judgment. In the motion, they argued: (1) Roach’s claims for negligence and DTPA violations 

were barred by the two-year statute of limitations and the accrual date of those claims was not 

tolled by the discovery rule; (2) the Turkias were not liable in their individual capacities; (3) Roach 

could not establish the Turkias’ or TIL’s liability for negligence, DTPA violations, or fraud 

because they did not supervise the repairs made to the house and had no knowledge of any issues 

regarding the work done by the independent contractors; (4) Roach’s renegotiation of the sales 
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contract following the independent inspection negated the elements of reliance and causation 

necessary for her tort claims; and (5) the summary judgment evidence showed the Turkias and TIL 

did not breach the sales contract as a matter of law. The Turkias and TIL requested attorney’s fees 

under the terms of the sales contract, which granted reasonable fees and costs to “[a] Buyer, Seller, 

Listing Broker, Other Broker, or escrow agent who prevails in any legal proceeding related to this 

contract.” A hearing on the motion was set for November 13, and then rescheduled for December 

18, 2017. 

Seven days before the hearing, on the day her response to the summary judgment motion 

was due, Roach filed a notice of nonsuit dismissing all of her claims against appellees without 

prejudice. Appellees then responded with a motion asking the trial court to declare them the 

prevailing parties in the suit and award them $11,000 in attorney’s fees and expenses. Appellees 

argued that Roach dismissed her claims to avoid an unfavorable ruling on the merits and, therefore, 

appellees should be declared the prevailing parties pursuant to the Texas Supreme Court’s opinion 

in Epps v. Fowler, 351 S.W.3d 862, 870 (Tex. 2011). In the alternative, appellees asserted Roach’s 

claims were groundless and brought in bad faith and they requested an award of their attorney’s 

fees as sanctions. Attached to the motion was an affidavit by appellees’ counsel and a billing 

summary in support of the fee request. 

 Roach responded to appellees’ motion stating she dismissed her claims solely for personal 

reasons and not because her claims lacked merit. Roach listed a variety of personal and 

professional commitments and asserted she was “forced to dismiss her suit because she lack[ed] 

the emotional energy, time and financial resources to keep up the good fight in light of more 

important and pressing needs of her immediate family and career.” Roach attached an affidavit in 

which she discussed the challenges in her personal and professional life in more detail, including 

single motherhood, helping to care for friends and family members, and job demands. Roach also 
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submitted a draft response to appellees’ motion for summary judgment that she stated she prepared 

before dismissing her suit. According to Roach, the draft response demonstrated the validity of 

her claims. 

 The trial court conducted a hearing on appellees’ motion on January 8, 2018. At the 

hearing, counsel for appellees argued that Roach’s unfiled response to their motion for summary 

judgment failed to address all the grounds asserted or the relevant case law. According to 

appellees, Roach’s inadequate response supported their position that she nonsuited her claims to 

avoid an unfavorable ruling. The trial judge indicated the motion for summary judgment would 

likely have been granted and Roach’s personal issues did not sufficiently explain the nonsuit. 

Counsel for Roach responded that, if the court was inclined to grant appellees’ motion to declare 

them the prevailing parties, he was willing withdraw the nonsuit and go forward on the merits of 

the summary judgment. Both appellees’ counsel and the trial judge noted that, if the case went 

forward, appellees were likely to incur more attorney’s fees which could result in a higher fee 

award to appellees if summary judgment was granted in their favor. Counsel for Roach then asked 

to speak with his client. The record reflects that Roach ultimately chose not to withdraw her notice 

of nonsuit. 

 Following the hearing, the trial court granted appellees’ motion to declare them the 

prevailing parties and specifically concluded Roach nonsuited her claims to avoid an unfavorable 

ruling on the motion for summary judgment. The court did not, however, award appellees all the 

fees and costs they requested, but instead ordered appellees recover $3,500 in attorney’s fees. This 

appeal followed. 

 
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Analysis

A. Declaration of Prevailing Parties Following Nonsuit Without Prejudice

 In her first issue, Roach contends the trial court’s determination that appellees were the 

prevailing parties in this case is not supported by factually sufficient evidence. In her second issue, 

Roach contends the trial court erred in concluding her response to the Turkia’s and TIL’s motion 

for summary judgment lacked any arguable basis in law. We review a trial court’s prevailing party 

determination for an abuse of discretion, deferring to factual findings that are supported by some 

evidence, but reviewing legal questions de novo. Referente v. City View Courtyard, L.P., 477 

S.W.3d 882, 886 (Tex. App.—Houston [1st Dist.] 2015, no pet.). 

 In Texas, plaintiffs may nonsuit without a court order at any time before introducing all of 

their evidence other than rebuttal evidence. Epps, 351 S.W.3d at 868. The nonsuit does not affect 

a defendant’s pending claim for affirmative relief, such as a claim for attorney’s fees. Id. When 

a plaintiff nonsuits her claims without prejudice, the defendant may still be a prevailing party 

entitled to attorney’s fees if the trial court determines, on defendant’s motion, that the nonsuit was 

taken to avoid an unfavorable ruling on the merits. Id. at 870. This determination is largely based 

on inferences drawn from the course of events in the lawsuit and courts place great weight upon 

whether the plaintiff’s nonsuit closely follows a defendant’s potentially dispositive motion. Id. 

 In this case, Roach nonsuited her claims on the day her response to the Turkia’s and TIL’s 

motion for summary judgment was due. Roach asserts she filed the notice of nonsuit because she 

lacked the energy, time, and financial resources to continue the litigation. Yet, Roach also states 

that, on the day she filed her notice, she had “all but finished” her response to the motion and it 

needed only “an hour or two of editing.” She argues that “it defies explanation as to why a party 

would all but finish a summary judgment response” if the party intended to “avoid the fight.” The 

trial court could have reasonably concluded, however, that it defied explanation for Roach to 
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expend the energy, time, and financial resources to draft an “all but finished” response to the 

motion for summary judgment and then not file it unless she was concerned about the impending 

filing deadline and a potentially unfavorable outcome. See Kontoh v. Safo, No. 05-17-00448-CV, 

2018 WL 3215881, *3 (Tex. App.—Dallas July 2, 2018, no pet.) (mem. op.) (nonsuits filed to 

circumvent unfavorable legal restrictions or rulings are disfavored). Although Roach submitted 

an affidavit discussing the personal reasons she said were the basis of her nonsuit, the trial court 

was free to discredit this testimony. See Referente, 477 S.W.3d at 888. This is particularly true in 

light of the fact that most, if not all, of the personal challenges Roach referenced in the affidavit 

existed at the time Roach chose to file suit. Roach’s decision to file her notice of nonsuit 

immediately before her response to the motion for summary judgment was due is strong evidence 

the nonsuit was taken to avoid an adverse ruling. Id. at 886–87; Kontoh, 2018 WL 3215881, at 

*3. 

 Roach appears to contend that, for the trial court to declare appellees the prevailing parties 

in this case, it was required to determine both that her claims had no merit when they were filed 

and that the Turkias and TIL were entitled to summary judgment. Neither finding was required. 

Although the trial court may consider whether the plaintiff’s claims had merit when filed, this is 

generally done when dismissal follows a post-filing occurrence, such as a change in the law or the 

discovery of evidence revealing previously unknown flaws in the case. See Epps, 351 S.W.3d at 

871; Referente, 477 S.W.3d at 887–88. Courts do not want to discourage plaintiffs from dismissing 

claims that appeared meritorious when brought, but are subsequently revealed to be unviable. 

Epps, 351 S.W.3d at 871. In this case, Roach has neither alleged nor adduced evidence of any 

post-filing occurrences that would have affected the merits of her claims and justified her nonsuit. 

 Indeed, Roach asserts that her claims continue to be viable and she asks this Court to 

address the merits of her case by determining whether the trial court could have properly granted 
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summary judgment against her in light of the arguments made in her unfiled draft response. To 

the extent Roach asks us to review a hypothetical ruling by the trial court in light of arguments and 

evidence never properly presented to the trial court for that purpose, we decline to do so. See 

Referente, 477 S.W.3d at 888. We note, however, that Roach’s draft response fails to substantively 

address several of the asserted grounds for summary judgment including (1) the preclusive effect 

on Roach’s claims of the independent inspection and renegotiation of the sales contract and (2) 

evidence showing the Turkias had no knowledge of any defects in the work done by the 

independent contractors. 

 After reviewing the record, we conclude there is sufficient evidence to show Roach 

nonsuited her claims to avoid an adverse ruling and the trial court did not abuse its discretion in 

declaring appellees to be the prevailing parties in this suit. We resolve Roach’s two issues against 

her. 

B. Attorney’s Fees Award

 In their cross-appeal, appellees contend the trial court abused its discretion by not awarding 

them the full amount of attorney’s fees they requested. Appellees argue they submitted 

uncontradicted evidence that conclusively established they were entitled to recover $11,000 and 

the trial court’s reduction of that amount was arbitrary. We disagree. 

 The sales contract in this case provided for an award of “reasonable attorney’s fees” to a 

prevailing party in a proceeding related to the contract. The reasonableness of attorney’s fees is a 

question of fact and we may not substitute our judgment for that of the factfinder. Smith v. Patrick 

W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009). A reasonable fee is one that is not excessive 

or extreme, but rather moderate or fair. Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). The 

fee must also be reasonable under the particular circumstances of the case and must bear some 

relationship to the amount in controversy. Armstrong Forest Prods. v. Redempco, Inc., 818 
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S.W.2d 446, 453 (Tex. App.—Texarkana 1991, writ denied). A request for attorney’s fees may 

be found unreasonable even if it is supported by uncontradicted evidence. See Ragsdale v. 

Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). In determining an appropriate 

award, the trial court may look at the entire record and view the matter in light of the amount in 

controversy, the nature of the case, and its own common knowledge and experience as a lawyer 

and judge. Redempco, 818 S.W.2d at 453. 

 The litigation in this case was neither lengthy nor complicated. Appellees’ counsel stated 

in his affidavit that he had familiarity with, and expertise in, the types of claims asserted by Roach 

and he recognized early on what law would likely be dispositive of the case. The actual damages 

asserted by Roach in her demand letter were only $20,056. Yet, the amount of fees and expenses 

requested by appellees’ attorney less than a year after the demand was made was more than half 

the amount of damages alleged. Given these facts, we cannot say the trial court abused its 

discretion in its implicit determination that the amount of fees requested by appellees’ counsel was 

unreasonable. The court was free to base its calculation of the lesser amount on the information 

provided in the record. See id. We resolve appellees’ sole issue against them. 

CONCLUSION

 We conclude the trial court did not err in determining appellees were the prevailing parties 

in this suit and in awarding $3,500 in attorney’s fees. We affirm the trial court’s order. 

 

 

180142F.P05 

 

/Amanda L. Reichek/ 

AMANDA L. REICHEK 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

CRYSTAL GEE ROACH, Appellant 

No. 05-18-00142-CV V. 

LIAT TURKIA, AVI TURKIA, TIL 

INVESTMENTS, LLC, AND AMBIANCE 

REALTY, Appellees 

 On Appeal from the 416th Judicial District 

Court, Collin County, Texas 

Trial Court Cause No. 416-01156-2017. 

Opinion delivered by Justice Reichek. 

Justices Schenck and Nowell participating. 

 In accordance with this Court’s opinion of this date, the order of the trial court is 

AFFIRMED. 

 It is ORDERED that each party bear its own costs of this appeal. 

Judgment entered February 11, 2019