CONDITIONALLY GRANT and Op inion Filed March 18, 2024 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-24-00064-CV IN RE RANGER ALTERNATIVE M ANAGEMENT (GP), LLC, Relator Original Proceeding from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-14668 MEMORANDUM OPINION Before Justices Reichek, Goldstein, and Kennedy Opinion by Justice Reichek In this mandamus proceeding, relator co ntends the trial court granted real parties’ Motion for Scheduli ng Order and Trial Date, issu ed a scheduling order, and set the case for trial after its plenary power had expired. We agree. Accordingly, we conditionally grant relator’s pe tition for writ of mandamus.
BACKGROUND Relator, Ranger Alternative Management (GP), LLC, is the plaintiff in the underlying proceeding. Ranger sued its fo rmer employee, Wesley McKnight, and his wife, Tracie McKnight, a sserting breach of contract claims arising out of a settlement agreement to which the McKnight s were both signatori es, and a separate–2– breach of contract claim against Wesl ey based on his employment agreement. Ranger generally alleged that the McKnight s breached the confidentiality provisions contained therein by failing to prevent the di sclosure of confiden tial and privileged information in response to two sets of subpoenas. Ranger sought its reasonable attorneys’ fees, expenses, and court cost s based on the settlement agreement, which provided that a prevailing party “shall be en titled to recover its reasonable attorneys’ fees, expenses, and court costs incurred in enforcing its rights under this Agreement” as well as Chapter 38 of the Texas Civ il Practice and Remedie s Code. (Emphasis added.) In their answer, the McKnights a sserted a general denial and affirmative defenses, and in their prayer they request ed “all costs and reasonable and necessary attorneys’ fees in defending this action ,” and all other relief to which they may be justly entitled. (Emphasis added.) On July 6, 2023, Ranger filed a notice of nonsuit, nonsuiting without prejudice all claims alleged in its pe tition against the McKnights. On July 12, 2023, the trial court signed an order granting Ranger’s no tice of nonsuit without prejudice. In the order, the trial court referred to the notice of nonsuit and then stated “[i]t is therefore ORDERED, ADJUDGED and DECREED that Pl aintiff’s Notice of Nonsuit as to Defendants is granted without prejudice.” On August 10, 2023, the McKnights filed a motion to modify the judgment pursuant to Texas Rule of Civil Procedure 329b(g), noting that the trial court’s docket sheet refl ected that the case was closed, but their request for attorneys’ fees wa s an affirmative claim for re lief that remained pending.–3– They asserted that the nonsuit order was not a final judgment and asked the trial court to reform the judgment to reflect th at the case remained pending. On August 18, 2023, the McKnights filed an “O riginal Counterclaim and Third-Party Complaint” which asserts a claim for attorn eys’ fees, alleging the attorneys’ fees language in the settlement agreement entitles them to their fees “in connection with the enforcement of the Settlement Agreement.” Meanwhile, the trial court did not rule on the McKnights’ motion to modify the judgment, which was overruled by oper ation of law on September 25, 2023. See
T EX
. R. C IV
. P. 329b(c). On December 13, 2023, th e McKnights filed a motion for scheduling order and trial da te. Ranger filed a response, arguing the trial court’s plenary power had expired. On January 11, 2024, the tr ial court granted the motion and subsequently issued a second amende d scheduling order and set the case for trial. Ranger sought mandamus review and a stay of the trial court proceedings. In this original proceeding, Ranger argues the order granting its nonsuit was a final judgment so by the time the trial court gr anted the McKnights’ motion for scheduling order and trial date, issued its second amen ded scheduling order, and set the case for trial, the trial court lacked plenary power to do so. We stayed all proceedings in the trial court pending reso lution of this original proceeding.
APPLICABLE LAW–4– Mandamus will issue if Ranger establis hes a clear abuse of discretion for which there is no ade quate remedy by appeal. See In re Prudential Ins. Co. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. pr oceeding). A trial court abuses its discretion when it issues a void order, In re Elavacity, LLC , No. 05-18-00135-CV, 2018 WL 915031, at *1 (Tex. App.—Dallas Fe b. 16, 2018, orig. proceeding) (mem. op.), and in such a case a party need not show that it lacks an adequate remedy by appeal. In re Sw. Bell Tel. Co. , 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam). Generally, judicial action ta ken after plenary power expires is void. In re Saving Grace #2, LLC , No. 05-23-00745-CV, 2023 WL 6783511, at *3 (Tex. App.—Dallas Oct. 13, 2023, orig. proceeding) (mem. op.); see T EX
. R. C IV
. P. 329b(f).
DISCUSSION The McKnights’ timely–filed motion to modify the judgment was overruled by operation of law on September 25, 2023. See T EX
. R. C IV
. P. 329b(c). If the July 12, 2023 order granting Ranger’s nonsuit was a final judgment, the trial court’s plenary power expire d on October 25, 2023, 1 and the trial court was without

1 A trial court retains jurisdiction over a cause for thirty days after ordering a nonsuit. T EX

. R. C IV

. P. 329b(d). A motion to modify the judgment during the initial th irty-day period will extend the trial court’s plenary power for a limited pe riod of time, the amount of which depends on whether the court determines the motion or it is overruled by operation of law. T EX

. R. C IV

. P. 329b(c), (d), and (g). Such moti on is overruled by operation of la w if it is not determined by written order signed within seventy-five days after the judgment was signed. T EX

. R. C IV

. P. 329b(c). Plenary power extends until thirty days after all timely-filed post-trial motions are overruled, either by written and signed order or by operation of law, whichever occurs first. T EX

. R. C IV

. P. 329b(e). The trial court signed the order granting Ranger’s nonsuit on July 12, 2023.–5– jurisdiction to grant the McKnights’ motion for scheduling order a nd trial date, issue the second amended scheduling order, and set the case for trial. See Saving Grace , 2023 WL 6783511 at *3. As follows, we conc lude the order granting nonsuit was a final judgment. A judgment without a trial is final if it either “actually disposes of every pending claim and party” or “c learly and unequivocally states that it finally disposes of all claims and parties, even if it does not actually do so.” Patel v. Nations Renovations, LLC , 661 S.W.3d 151, 154 (Tex. 2023 ) (per curiam) (citations omitted); see also Bella Palma, LLC v. Young , 601 S.W.3d 799, 801 (Tex. 2020) (per curiam) (citing Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 205 (Tex. 2001)). Here, the trial court’s July 12, 2023 nonsuit order does not contain any indicia of finality so we must look to the record to de termine if the order disposed of the entire

case. See Patel , 661 S.W.3d at 154. The only pleading the McKnights had on file at the time Ranger filed its notice of nonsuit wa s their original answer. They did not file a formal counterclaim in that pleading, and while they prayed for their attorneys’ fees “in defending this action” they did not cite any legal basi s for this request. While a dismissal pursuant to Rule 162 “sha ll not prejudice the right of an adverse party to be heard on a pending cl aim for affirmative relief,” T EX
. R. C IV
. P. 162, “[t]o

The McKnights filed a motion to modify the ju dgment within thirty days, and the motion was overruled by operation of law seve nty-five days after the nonsuit order, on September 25, 2023. If the July 12 order was a final judgment, the trial court’s plenary power expi red thirty days later, on October 25, 2023.–6– qualify as a claim for affirmative relief, the defendant must allege a cause of action, independent of plaintiff’s claims, on which he could recover comp ensation or relief even if the plaintiff abandons or fails to establish his cause of action.” Jackson v. Ali Zaher Enters., LLC , No. 05-18-00288-CV, 2019 WL 698019, at *2 (Tex. App.— Dallas Feb. 20, 2019, no pet.) (m em. op.). While an affirma tive claim, stated in an answer, for recovery of attorneys’ fees for preparation and pr osecution of a defense constitutes a claim for affirmative relief fo r the purpose of Rule 162, “[a] general prayer for relief will not support an award fo r attorney’s fees because it is a request for affirmative relief that must be supported by the associated pleading or pleadings.” Id . In AIX Specialty Insurance Co. , we held that “[a] request for attorney’s fees qualifies as a request for affirmative relief when asserted with an independent claim for relief.” AIX Specialty Ins. Co. v. Shiwach , No. 05-18-01050- CV, 2019 WL 6888515, at *8 (Tex . App.—Dallas Dec. 18, 2 019, pet. denied) (mem. op.). In that case, the defenda nt alleged affirma tive defenses in its answer and then included in its prayer for relief a request for its reasonable attorneys’ fees “for responding to and defending the a llegations raised against it.” Id . We concluded that the defendant “asserted no counterclaims” and that the defendant’s request for attorneys’ fees and its affirmative defenses were dependent on the plaintiff’s claims and thus did not assert any “c laims for affirmative relief.” Id . Here, too, the McKnights generally prayed for attorneys’ fees “in defending this action” but did not cite any legal or contract ual basis for their recovery of attorneys’ fees. They also–7– did not allege any facts that we could cons true as a counterclaim. Their answer did not assert any independent basis for r ecovery of their attorneys’ fees. As the McKnights point out, though, we must also look at whether the allegations in Ranger’s petiti on provide the missing substan ce to cure the omissions in the McKnights’ answer. See Jackson , 2019 WL 698019, at *2. We conclude they do not. The McKnights assert that their request for attorneys’ fees is an affirmative claim because the settlement agreement provi ded that the prevailing party is entitled to recover its reasonable attorneys’ fees . They contend that Ranger judicially admitted in its petition that the settlement agreement entitle s a “prevailing party” in a contract dispute to their reasonable a ttorneys’ fees. Thus, the McKnights argue, they were not required to plead a breach of contract or the details of the settlement agreement to prevail and recover their fees. We disagree. First, this argument misconstrues Ra nger’s petition and th e language of the settlement agreement. The se ttlement agreement described in Ranger’s petition does not authorize a defendant to recover attorney s’ fees if it prevails in defending against a contract dispute. Rather, Ranger alleged th at “the parties agreed that a prevailing party ‘shall be entitled to recover its reason able attorneys’ fees, expenses, and court costs incurred in enforcing its rights under this Agreement .’” [Emphasis added]. Thus, the settlement agreemen t Ranger described authorizes an award of attorneys’ fees only to a claimant who prevails in enforcing the settlement agreement—not to

a defendant who prevails in defending against such a claim. In other words, the–8– settlement agreement alleged in Ranger’s original petition is not a general “prevailing party” provision; instead, it aut horizes a fee award only to a prevailing claimant. The McKnights do not suggest in their answer that they were entitled to attorneys’ fees for enforcing the settlement agreement; on the contrary they alleged in their answer that they wanted their “co sts and reasonable and necessary attorneys’ fees in defending this action .” [Emphasis added.] The McKnights do not explain how defending against Ranger’s suit is ta ntamount to enforcing their rights under the settlement agreement. 2 The McKnights cite seve ral cases to support thei r position, but most are distinguishable on grounds that the claims before the trial court involved a statute that provided the defendant with an independent right to seek attorn eys’ fees even if the plaintiff dismissed its own claims. 3 But the McKnights do not assert any similar

2 While the McKnights did allege in their answ er the affirmative defe nse of prior material breach, they did so only to establish an excuse fo r their own alleged breach, and they did not plead any facts to support that defense. Regardless, they did not pray for fees to en force their rights under the settlement agreement. That they knew how to do so is dem onstrated by the c ounterclaim they filed in August 2023, after the nonsuit was granted, wherein they expressly prayed for fees “in connection with the ‘enforcement’ of the Settlement Agreement.”

3 E.g., Kelsall v. Haisten , 564 S.W.3d 157, 163–64 (Tex. App .—Houston [1st Dist.] 2018, no pet.) (involving § 156.005 of the family code, which au thorizes a trial court to assess attorneys’ fees as costs when a party file s a frivolous modification suit); Bacon Tomsons, Ltd. v. Chrisjo Energy, Inc. , No. 01-15-00305-CV, 2016 WL 4217254, at * 10 (Tex. App.—Houston [1st Dist.] Aug. 9, 2016, no pet.) (mem. op.) (involving §134.001(b) of the Texas Civil Pr actice and Remedies Code, the Texas Theft Liability Act, which aut horizes attorneys’ fees to “[e]ach person who prevails” in a suit broug ht under that statute); Dean Foods Co. v. Anderson , 178 S.W.3d 449, 453 (Tex. App.—Amarillo 2005, pet. denied) (involving § 408.221(c) of the labo r code, which makes an insurance carrier who seeks judicial review of a final decision of an appeals panel liable for reasonable and necessary attorneys’ fees incurred by a claimant as a result of the appeal if the claimant prevails); Reyes v. Fraga , No. 14-21-00036-CV, 2022 WL 3973544, at *1 (Tex. App.—–9– independent right to recover their attorn eys’ fees. The McKnights also rely on In re Frost National Bank , 103 S.W.3d 647, 650 (Tex. App.—Corpus Christi–Edinburg 2003, orig. proceeding [mand. denied]), wher e the appellate cour t concluded that a general prayer for attorneys’ fees in an answer constituted a counterclaim that survived an oral nonsuit. But the opinion does not explain the nature of the plaintiff’s suit or if there was anything in the answer that would ot herwise provide a factual or legal basis for the request for fees that was independent of the plaintiff’s claims. There was also a motion for sanctions filed between the oral nonsuit and entry of the nonsuit order, and it is not clear from the opini on if this played a role in the court’s decision. Thus, we do not find this opinion instructive. The McKnights also cite ECC Parkway Joint Venture v. Baldwin , 765 S.W.2d 504, 514 (Tex . App.—Dallas 1989, writ denied), in support of their position, where we stated gene rally, “[a] claim for attorney’s fees is a claim for affirmative relief.” But this Court was not addressing whether a general prayer for attorneys’ fees is a pending claim for affirmative relief that survives a nonsuit under rule 162. Rath er, we were determining whether a crossHouston [14th Dist.] Sept. 1, 2022, no pet.) (mem. op.) (involving reque st for attorney s’ fees based on a suit being filed frivolously or for harassment); Bailey v. Smith , 581 S.W.3d 374, 386 (Tex. App.—Austin 2019, pet. denied) (involving request for fees under the Uniform Declaratory Judgments Act, Texas Civil Practice and Reme dies Code § 37.009, which permits the trial court to award costs and fees “as are equitable and just”); Nolte v. Flournoy , 348 S.W.3d 262, 267–68 (Tex. App.—Texarkana 2011, pet. denied) (involving allegations that a claim was frivolous and filed for an improper purpose and a prayer for sanctions); Falls Cnty. v. Perkins & Cullum , 798 S.W.2d 868, 870–71 (Tex. App.—Fort Worth 1990, no wr it) (involving a request for attorneys’ fees in an answer to a petiti on asserting a claim u nder the Uniform Declaratory Judgments Act).–10– claim for declaratory judgment to recover attorneys’ fees was barred by limitations. Id . at 513. Accordingly, we conclude that the McKnights did not have a pending claim for affirmative relief when Ranger filed its notice of nonsuit. Thus, the nonsuit order disposed of the entire case and is a final j udgment. As a result the trial court abused its discretion in January 2024 when it entere d a scheduling order a nd set a trial date months after expiration of its plenary power.
CONCLUSION Ranger has shown the trial court abused its discretion by issuing void orders, and because these orders are void, Ranger is relieved of showing it lacks an adequate remedy by appeal. We therefore conditi onally grant Ranger’s petition for writ of mandamus and direct the trial court to vaca te (1) its order granting the McKnights’ Motion for Scheduling Order and Tria l Date, and (2) the Second Amended Scheduling Order. The writ will issue onl y if the trial court fails to do so.

240064F.P05 /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE