## In the Court of Appeals Second Appellate District of Tex as

at Fo rt Worth

_____________

______________ No. 02

- 19

- 0 0142

- CV

___________________________

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 

### J ASON 

### H OHEISEL AND 

### A UDRA 

### H OHEISEL 

### , Appellants

V



### . M ICKY 

### B OYD AND 

### C ARRIE 

### B OYD 

### , Appellees2 MEMORANDUM OPINION
I. Introduc tion
In t wo iss ues, Appellants Jason and Audra Hoheisel, the D ef e ndants belo w, challenge the trial court ’ s denial of their claim for att orney s ’ fees against Appellees
Mic ky and Carrie Boyd, the P laintiffs belo w , that was bas ed on the c ontentio n that the
Defendants were the prevailing parties in the litigation

. W e will refer to the partie s by

t hei r trial court de signations

. The Defendants ’ motion seeking attorney s ’ fees alleg ed that the P laintiffs h ad
nonsuite d their claims against the Defenda nts to avoid an inevit able l oss on th o se claims and th at t his made t he D efe nda nts the prevailing part ies

. T he Defendants argue in two issues that the trial court c ommitted harm ful error when it (1) enter ed an

or der of nonsuit that dismis sed thei r pending claim f or at torneys ’ fe es and (2) denied
th eir motion for attorneys ’ fees and fail ed to recognize that the evidence establis hed

as a matte r of law that the Plaintiffs h ad dismis sed their suit to avoid having a

su mmary ju dgment rendered ag ainst th em. W e overrule the first issue because the
order of nonsuit did not specif ic ally dismiss the Defendants ’ claim for attor neys ’ fees
and , thu s, should not be constr ued as a dismissal of t hat claim. We overrule the
second issue because the evidenc e support ed t w o inferences: o ne was that the
Plaintiffs had nonsuited their claims to av o i d an adverse result , but the other was that
a settlement with the other defend ants had produced a decision t hat had m ade continuing t he litigat

ion with t he Defendants no l onge r worthwhil e . B ecause both3

i nfe rences are supported by t he record, the trial court ha d the d iscretion to choose
between the two and chose an inference th at warranted deni al of the Defe ndants’

mot io n. T he governing standard of revie w dictates th at it is not for us t o second

gu ess that c hoice. We there fore affirm.

II. Factual and P rocedural B ackgro u nd
T he suit below involved th e sale of a house and the claim that drainage
p robl ems w ere not disclo s e d before the s al e of the house to the P laintiffs

. The
De f endants were th e seller s of the house , and th e other defendants were real estate
agents who represented the Defendants in the sale.
When the Defendants answered the suit, they pleaded a claim for attorney s ’
fe es based on a provision of the sale s contr act that they had entered w ith the
Plaintiffs

. That provi sion stated that a ny party to the contrac t “ who prevails in any legal proceeding related to this contract is entitled to r ecover reasonable att orney ’ s fees. ” The parties litig ate d for a year and a hal f

. Af t er the close of disco very, t he Def en dants filed a no

- evidence motion for

s ummar y judgment. T he Plaintiffs responded by attaching the seller ’ s disclosure made by the De f

endant s and alle gations and evidence i n a prio r lawsuit in which the re al

estate ag e nt who was a defe ndant below had alleged that the property had i rrepar able
d rai nage problems

. The trial cou rt denied the Defenda nts ’ motion for summary judgment

. The D efe ndants filed a motion t o re consider th is ruling , arg uing that the
trial court had erred by not sustaining objection s to the Plaintiffs ’ evid e nce fi le d in4

support of the ir summary

- judgment response and that the trial court had not properly
consi d ered the evidence in making its or igin al ruling

. The motio n to reconsid er was

s et to be considered by written submission

. The P l aintiffs did not file a response to the m otion to r econsider. I n ste ad, t wo days before the motion to reco n sider was set for s ubmission, the P lain tiff s filed a

m o tion to dis m is s their claims a gainst the defendant real es tate agent s with prejudice.
T h e next day, the Plaintiffs filed a m otion to non suit the ir claims a gainst the
Defendants

. The trial cou r t si g n ed orders granting b oth of the m otions filed by the
Pla intiffs

. T he De fendants then fi led a motion asserting that they were the prev ail ing
pa rti es in the litigation an d that they were therefore entitled to recov er their attorn ey s ’
fees. T his mo tion reiterated many of the a r gument s that they had mad e in thei r motion to rec onside r t he trial court ’ s denial of their summary

- judgment motion

. Th e motion for attorney s ’ fees w ent on to note that the Defendants had asserted their
claim for at torneys ’ fees before the n onsu it and also asserted that the P lai ntiff s ’ actio n could suppo rt only one conclusion : t hey had nonsuited to avoid an u nfa vorabl e ruling

. The Defen d ants also filed a m otion for n ew t rial that repeated many of the
argum ents made in their motion for attorneys ’ fees and also ass erted that the trial

court h ad erred by s i gning a no nsuit order tha t dismi ssed the “ entire case ” and did not
le ave in place their affirmative cla i m for atto rneys ’ f ees that was pending at the time o f
the dismissal

.5

The Plaintiff

s responded t o th e motio n for attorneys ’ fees

. Among o ther things , the Plaintiffs pointed out that the y had not dismissed the ir case be fore the trial

court had originally ruled on t h e Defendants ’ motio n for summary judgm ent and
instead h ad responded to that moti on , which the trial court ulti mately denied

. Th e Plaintiffs also poi nted o ut t hat the evidence supported a n infer e nce different from the
one that the Defend ants had asked the trial cou rt to draw f r o m the timing of the
nonsui t, i.e., an infere nce dra wn from the explanation that showed that the dismissal

was not an e f

fort to av oid an adverse ruling on the motion to r econsider. The
Plaintiffs desc r ibed th e timing of the no nsuit i n re lation to the hearin g on the m otion
to reconsider as be ing “ pure ly coincidental

. ” T he Plaintiffs det ailed what le d to t he ir filing th e n onsuit as foll ows: The [Pl aintiffs] did not file a response to the Motion to Reconsider and nonsui ted this cas e because of a significant chan ge in the litigation of t his case: reaching a settleme nt with the other [defendants]

. Be tween the ti m e the [Defen dants ’ ] Motion for Summary Judgment was denied
a n d the hearing by subm ission was s et on their Motion to Reconsi der on January 23, 2019, the [

Plaintiffs] were pursuing negotiat ions with [the other de fendants] to settle t he case. Se ttlement n eg o tiations bet ween these parties was ong oing since early Dec e mber 2018.

. . . The negot

iations were su ccessful and the [Plai ntiffs] and [the other defenda nts] reached a confidenti al Settle ment and Release Agre ement. Upon each respective party completing t h eir obl igati ons under the agreement, a Motion to D ismiss with Prejudice for the cla ims against [the other def

endants] was d rafted. The signed Motion was received from counsel fo r [the ot her defend ants] on Ja nu ary 21, 2019 [,] and filed with th is Court o n J anua ry 22, 2 019

. . . .6

In th e ir resp onse , the Plaintiffs offered to tender the settlement agreement and “ other

r elev ant communications ” for in c am era review. The re sponse also catalog u ed

ev idence tha t the Plaintiffs claimed demons tra ted t hat their suit had merit wh en it was
filed.
The tr

ia l court dete rmined the Defendant s ’ motion by written submis sion. It

enter ed an o rder stating , “ The Cour t, having c onsidered the motion a nd the arguments of Counsel, has det ermined that the motion should be DENIED. ” This appeal f ollowed.
III. Ana ly s is
A. T h e trial cou rt did not dismiss the Defend ants ’ claim for attorne ys ’ fee s when it entered an o rder of non s uit. The order did not dismiss that cla im because it did not specifically address that c laim.
I n their first issue , th e D efendants ask us to rever se a nd eithe r render judgment
for the attorn ey s ’ fees th at they sought from th e Plaintiff s or to reman d t o the trial
court for i t to award those fees. Th e all ege d error underl ying the first is sue is that the

tr ia l cou r t ’ s order of nonsuit was over broad becaus e it d is missed the entire suit , includin g th eir cla i m for a ttorney s ’ fee s. Such an order , the Defend ants argue, violates
th e princ iple that a nonsuit cann ot prejudice cla i ms asserted by th e party adverse to
the on e taking the nonsuit. T he Def endants are right in principle but wrong in applicat ion because the tri al court ’ s order did not dismi ss their cla im for attorneys ’
fees

.7

Though the order of non suit d i sm isses “ this caus e , ” we do not read it to have

t he f law th at the Defend ants claim. T hat order did n ot specifically dismiss th e Defendants ’ claim for attorney s ’ fees , and a specific statem ent is requi red before an order of non suit should be cons trued to dis miss a claim for relief made b y the party adverse to the one ta king a nonsuit

. T here is no presump tion that the order of
nonsuit is final because it was not precede d by a traditional tri al on the me rits. See
Crites v. Collin s , 284 S.W.3d 839, 840 (Tex. 2009)

. In the absence of that presumption,
we “must exami ne the expres s language of the order and wheth er the order actually disposes of all cl aims against all pa rties.” Id. Here, a rule gov erning the interpretation
of orders of dismissal establishes why the orde r ’s language did not dispose of the fee
claim be cause “[a] ju dgment dismissing all of a plaint iff ’ s claims against a defendant,
such a s an order of nonsu it, doe s not necessarily dispo se of any c ross

- actions, such as

a motion for sanctions, unless specific ally stated within the order.” Id. Furth er, the

tr ial c ourt ’ s con siderati on of the Defendants ’ motion i ndicat ed that the ir claim for
attorneys ’ fees had n ot be en dismissed. E ven if the order c ontained the f law that t he
Defendants ’ claim, the trial court ’ s c onsideration and ruling o n their motion while the
trial co urt had plenary power r endered th at error harml ess. Texas Rule of Civil Procedure 162 allows a party to terminate t he prosecut ion
of its cla i m by ta ki n g a non suit. T e x. R. C iv . P . 162

. But t he rule is explicit that “ [a] ny dismissal pursuant to thi s rule shall not prejudice the ri ght of an advers e party to be
heard on a pending claim for affirma tive relief

. ” Id

. T he rule is al so expl icit t hat a8

d is m iss al “ shall have no effec t on any moti on for . . . attorney ’ s fees or other costs, pending a t t he time of di smissal

. ” Id

. And cas e law , which has filled in a gap not addre ssed i n the rul e , permit s a trial court to co nsid er a motion for attorney s ’ fe es fil ed after the dismissal so lo ng as th at moti on i s heard while the trial court retains plenary j urisdiction. Beasley v. S oc ’ y of Info

. M

g m t

. , Dallas Area Ch apter

, No. 05

- 17

- 01286

- CV , 2018 WL 5725245 , at * 6 (T e x. App.

— D allas Nov. 1, 2 018, pet

. denie d) ( me m . op.) (

holding that trial court had juris diction to con sider motion for attorney s ’
fees filed after entry o f order of nons uit (citing Traveler s Ins. Co. v. Joachim, 315 S.W.3 d 860, 863 (Tex . 2010) , an d Scott & White Mem ’ l Hosp. v. Sch exnid

er , 940 S.W.2 d 5 94, 596 (Tex. 1996) (per curiam

) (op. on reh ’ g)) ) ; see also Proler v. City of Houston , 499 S.W. 3d 12, 15 (Te x. App.

— Houston [14th Dist.] 2016, no pet.) (op. on reh ’ g ) (“Rule 162 merely ‘permit s the trial court to hold hearings and enter ord ers affecting

. . . a ttorney ’ s fees .

. . even after no tice of no n suit is filed.’ ”).
The Plaintiff

s do not chal lenge that th e Defendants’ claim for attorneys ’ fees

was “ a p endi ng claim for affirmative relief ” that survi ved a nonsuit. Ou r exam ina tion
of the record val idat es that the Defendants ha d a pend i ng claim for relief. Th oug h
p hrased i nartfully , the Defendan ts ’ second am ended answer sought attorney s ’ fees
based on the provi s i on of the par ties ’ contract awarding the prevailing party its

atto rney s ’ fees

. 1 And th o ugh n ot every claim for attorn ey s ’ fee s is consi dered a prior

1 The answer contain s a headi ng labeled “ R equest for At torney [ ’ s ] Fees ” that is followed by the allegation that “ [ p] ursuant t o Sec tion 17 of [sic ] the Defendants9

pen ding claim tha t survives a nons uit , the Defenda nts ’ cla i m appears to be one that
does qu alify as a pen ding claim that would survive . T o be such a n affirmat ive claim
for re lief, the fee claim mus t be based on an indepe nde nt groun d or sanc t ion

. Body
Sho p A uto Storage v. Santander Consumer USA, Inc. , No . 01

- 17

- 00693

- CV, 2018 WL 3580938, at *2 (Tex. App.

— Hou ston [1st Dist.] July 26, 2018, n o pet.) (mem. op.) ( “ Thus, a claim for attorney’s fees b ased solely on defending aga in st the o ther party’ s claims is n ot a request for a ffirmativ e relief, but if the fe es claim is based on an independent ground or sanction, it is a request for a ffirmative rel ief. ” (citing Villafani v. Trej o , 2 51 S.W.3d 466, 470 (Te x. 2008) ) )

. A fee clai m made by a def endant against a pl ain tiff b ased on t he same t y pe of c on tract provisi on invoked by the Defendants in
this case appears to be an affirmative claim f or reli ef based on an independent g round.
S ee Epps v . Fowler

, 351 S.W .3d 862, 86 5 (Tex. 2011) ( examinin g claim for attorney s ’
f ees predicated on claim that p arty wa s prevailing party and entitled to recover attorney s ’ fees under sec tion of an earnest

- money cont ract ).
Because the D efendants had a n a ffirmative claim for reli ef, as we have noted ,

we a gree in principle that such a cl aim shou ld not have been dismiss ed whe n granti ng

request re cove ry t heir r easonable attorne y’s fees should t hey prevail in this legal proc ee ding. ” This allegation ap parently r efers t o t he “ ONE TO FO UR FAMILY RESIDENTIAL CO NTRACT (RESALE) ” by which the Defendants con t racte d to sell the pr oper ty to the Plaint iff s . [Bold ing removed from original.] Par a gr a ph 17 of that con trac t cont ains a provision allowing the prevail ing party t o recover attorney s ’ fe e s .10

th e Plaintiff

s ’ nonsuit. 2 But we disagree that the trial court’s order of nonsuit contains
such an erro r
. The nonsuit orde r entered below does not add ress the affirmative
cl aim for attorney s ’ fees made by t he Defendants , and a n order of no nsui t is not
inte rpr eted to dis pose of a pen ding c laim for relief unless it specifically states that it is doing so. See Crites

, 284 S.W.3 d at 840 ; see also In re Anderson , No. 01

- 10

- 00182

- CV,
2010 WL 1612309, at *2 ( Tex. Ap p
. — Houston [1st D ist.] A pr. 19, 201 0, orig.
proc eeding) ( mem. op.) ( rejecting argument that claim for s anctions was dismissed
because plaintiff intended nonsuit to dis mis s entire case and sta ting that “ [b] e cause of
the ab sence of specific language address i ng the motion for sanctions, the tr ial cou rt ’ s

o rder of nonsuit did not dis pose of it ” )

. Further , the t rial court allowed the parties to continue to litigate the claim fo r attorney s ’ fee s a fter the entry of the order of nonsuit

. T his is an indication t h at the
trial court viewed th at claim as viabl e and as not d ispo sed of by its order of nonsuit.
And t he re is no challenge to and no question in our view that the trial cour t had the jurisdict i on to make that decision afte r signin g the order of nonsuit. T h e order of nonsuit was not a final ju dgment becau s e it did not dispose of the fee claim. See
Anderson , 2 010 WL 1612309, at *2

. Even i f it were a final judgment, the Defen dants
filed a tim el

y mo tion for new trial attacki ng the o rder of nonsuit for allege d ly dispo s ing of their fee claim. Thi s extend ed th e trial court ’ s plenary jurisdiction , and

2 The Plaintiffs ’ mot

ion for nonsuit did not requ est the dismissal of the Defendants ’ fe e clai m. Rather , the Plaintiffs erroneously stated, “ Defendants . . . ha[ve] no pleadi ngs on file seeking affirmativ e reli ef from plaintiff[s ]. ”11

the trial cou rt disposed of the fee motion with in the per iod of that jurisdi ctio n . S ee Tex. R. Civ. P

. 32 9 b ( a

), ( e ). Also, the trial court allowe d the parties to litigate the fee question u sing the
ap propriate pro c edure and then rul ed on t he motion in due course

. T he De fendants ’
moti on asking th e tr i a l court to award them attorney s ’ fees because they were the
prev a iling party was bu ilt on the relief that they had sought in their answer. Th at
motion w as simp ly th e vehicle fo r the Defe nda nts to l i tigate th e fee claim

. S ee Killam
Ranch Pr ops., Ltd. v. Web b C

ty ., No. 04

- 0 8

- 00105

- CV, 2008 WL 4958452, at * 5 (T ex. App.

— San A ntonio Nov. 19, 2008, no pet.) (mem. op.) ( “ The subsequent motion f or

att o rney ’ s fee was me rely t he vehicle by which it s ou ght to enforce its pre

- existi ng

c l aim for relief. ” ). T his course does not suggest that the trial court view ed its order of
nonsuit as a disposition of the Defendants ’ fee claim.
Fina lly, the Plaintiff

s po int us to a u thorit

y fro m t his court hold ing that when a n order of no nsuit improp e rl y dismisses a fee claim , the erro r is harmless when th e part ies are able to brief the issue and the t ria l court enters an order disposing of the
fee claim. S ee S evers v. Mi ra Vista Hom eowner

s Ass ’ n , 559 S .W.3d 684, 710

– 1 1 (Tex.
A pp.

— Fort Wor th 2018, pe t
. d enied ) . This holding demonstrates t hat even if there

wer e erro r in the form of the or der , it would be harm less.
T he Defendants in their opening brief make o n ly one challe nge t o the

co ntention t hat any error

— if i t occurred

—

was h armless : the t rial cour t ’ s order is

v ague whet he r it disposed of the merit s of the fee claim or viewed that claim as moot12

b ecause of its prio r nonsuit o rder

. The order den ying th e Defendants ’ motion fo r

attorne ys ’ fees does not contain that ambiguity

. T he Defendants filed a mo tion seeking their attorneys ’ f ees, and the Pl ain tif

f s responded to that motion. The

r esponse did n ot arg ue that the order o f nonsuit had dis posed of the fee claim but
chall enged t he meri ts of that mo tio n . The Defen dants fil ed a notice stating th at their

mot ion would be de cid ed by written submission. The tr ial c ourt signed an or der th at stated that it h ad considered the D efenda nts ’ motion and t ha t “ [t] h e Court, having
considere d the moti on and the ar guments of Counse l, h as dete rmined that the motio n shou ld be DE NIE D. ” The record and the terms of the order i ndicat e that the trial

court considered the motion for the fee re quest a s the par ties aske d it to do and disposed o f it on the merits of the motio n rather than on a belief t hat the claim was
pre viously di smi ssed

. In th eir reply brief, the Defendants expand on their argument that the trial
court committed harmfu l error and point to di stinctions between Severs and the instant case. They argue that th ose distinctions show that the trial court in this case
committed harmfu l error because it never considered the merits of their fee claim.
We rem ain unpersuaded.
Firs t, as we have explained, we do not agree that the trial court’s order of

non suit containe d the error of dismissing the Defendants’ fee cla im. S econd, the Defendants’ argument turns on the procedure utilized by the trial court in heari ng the
fee claim. In essence, the argument is that the process of determining the fee claim13

hear ing in Severs was more thorough because, rather than hearing t he mat ter by submission, the trial court took three steps by holding a status conference, conduct ing a hearing, and is suing an extensive letter ruling. Based on these distinctions, the
Defendan ts argue that “the record simply does not e stablish

— as the Severs re cord
did

— that the trial court ultimately considered the counterclaim ‘on the merits.’” This argument is bas ed on the faulty premise that because the trial court in this case
considered th e fee claim i n a differe nt manner than the trial court did in Severs , we must conclude that the trial court did not resol ve the fee claim on t he merits. But that argument leav es unanswered the dispositive question of whether the trial court’s
actions belo w indicate th at the tria l court in fact disposed of the Defendants’ fee claim
on the merits. The trial court’s actions w e have outlined and t he provisions of its order denying the fee claim indicate that the trial court disposed of the fee claim on
the me rits and do n ot indicate that the trial court operated under a misco nception that the order of nonsuit had disposed of th at claim. Thus, the o rder of nonsuit d id not impro perly dismiss the Defendants ’ fee
cla im , and nothing the tri al court did indicated a belief that i t had disposed of the f ee claim in the order of nonsuit

. Eve n if the order of no nsuit contained a fla w , tha t

e rro r was harmless because the trial court hear d and d isposed of th e fee claim while it had jurisdiction to do s o. W e overrule the D efenda nts’ fi rst issue.14

B. The evide nce supported an inference that the Plaintiffs di d not nonsuit t o avoid an adverse re su lt. The trial cour t did not err beca use it cho se a reasonable inference tha t the Defendants do not like.
I n th ei r se cond issue, th e D efendants assert that they wer e the prevailing
part ies and that t h e trial court erred by denying the ir moti on for attor ney s ’ fe es. Th ey

a rgue that the evidence established their stat us as prevailing part ies because the
Plaintiff s nonsuited their cas e o n t he eve of the hearing to rec on sider the trial court ’ s denial of t h eir no

- evide nce motion for summary judgment

. I n the Def endants ’ view,

t his act es tablishes as a matter of law that “ there is unque stionably an inferen ce that
the [ Plaintiff s] nonsuited i n o rder to av oi d an unfavorable r uling which would have been disposi t

ive of the [

Plaint iff s ’ ] causes of action (i.e., an o rd e r disposing of a ll of
their claims on no

- evidence grounds). ” This argument ig nores that the trial c ourt had
evidence bef

ore it f ro m wh ich it co uld dra

w another reasonable inference

— the
Plaintiff s ’ se ttlement wit h another party made it une c ono mical to continu e the
l itigation against the Defen dants

. Choosing betwe en the s e two reasonable inferenc es

wa s within t he pur

view of t h e tr

ial c ourt.
A s note d, th e Defendants sought attorney s ’ fees by claiming tha t they were the
p rev ailing part

ies in th i s litigation

. U sua lly , the t aking of a nonsuit do es not establish a winner or a lo ser in litigation

. See generally Epps , 351 S.W.3d at 869

. The non s uit simp ly ca lls a halt to the c on flict ; in othe r word s, “ a nons uit without prejudice works
no such ch an g e in the parties ’ leg al relationship; typically, t he plaint iff remain s free to

re

- file the same claims seeking the sam e relief. ” Id.15

But t he supr eme court has he ld that a party ma y prevail even if the litigation
di d not progress to a point that a par ty r eceives a forma l declaration o f victory in th e fo rm o f a judgment

. Id . at 868

– 70. C alling a halt to th e litigation process by

nonsu iting may esta blish that on e p arty has prevailed when the nonsuit signals an

att emp t to avoid an inevitable adverse res ult by a non suiting party
. Id

. In the
supreme court ’ s vi ew, a nonsu it will not forestall the declaration that on e party prevailed when the nonsuit is conspicuousl y a n ackno wledgement that a losing cla im
i s about to rea ch its end by entry of an inevit able ad v erse judgment : [I] t is lo g ical to conclude that th e p a rties inte nded to award attorney ’ s fees to compe nsate the defendant when the p laintiff knowin gly pursues a b aseless action. I t makes sense to conclude that the p arties would have sought to “disc ou rag e the litigation of frivolou s , unreasonable, or gr oun dl es s claims” when a “calculating plaintiff .

. . v oluntarily withdraws his compl aint ‘to escape a disfavorab le judicial determinat ion on the meri ts. ’” That constru ction is consistent with the disfav o r ou r cases have d isplayed toward nonsuits that are filed to c ircumvent unfavorable legal restrictions or rulings.
Id . at 869

– 70 ( citat

ions omitted).
To make a det e rmination regarding whe t her a non su it signals an attemp t t o sidestep t he inevitable, “ [a] nu mbe r of fa ctors may support an inference t ha t a pl aintiff has nonsu ited in order t o avoid an unfavorable ruling. ” Id

. at 87 0

– 7 1. The
supreme court c atalogued the types of evidence that t he tr i a l c o urt should exam ine i n deciding whether such an inferen ce exi sts: [I] f a p laintiff nonsui ts only after a mot ion for summa ry ju dgment is filed, it may s uggest tha t the plaintif f elected to do s o in order to es cape summary j udgment. Further, a plai ntiff ’ s un excused failure to r espond16

to requests for admissions or oth er discovery that could suppo rt entry of an adv erse j udgment ma y a lso indicate that a nonsuit was tak en to foreclos e that possibili ty. Similarly, a failure to t imely identify experts or other cri t ical witnesses coul d suggest that a nonsuit is neithe r t act ical nor volu ntary. And the ex istence of other procedu ral obst ac les , such as the plaint iff ’ s inability to join neces sary parties, may also signal that the defe n dant has prevailed over the plainti ff

. Id . at 871 (cit ation omitted) . But the supreme court al so noted tha t o the r factors may signal an inferen ce that the nons uit i s not a rec og nit ion that a base l ess lawsuit is abou t

to receive i ts just de s ert s . Id

. T her e may be events t hat o ccur as the suit prog resses th a t make the litigation no longer via ble : On the other han d, as we have no ted, it is reasonable to presume t hat the parties did not intend to encourage c ontinued litigation when discovery r eve a ls previo usly unknown flaws i n th e plaintiff ’ s claim s. A ccordi ng

l y, evi dence that the suit was not without merit when fil ed may indicate that the defendant has not prevail ed and is therefore not entitled to attorney ’ s fees.
Id

. In this case, t h e stan d ard of revie w tightly constrai ns us from second

- gue ssing
the tria l c ou rt ’ s determination of what inference to make beca use , as we ha ve rec ently
held , that question involves on e of fact

. S ee S evers , 559 S. W.3d at 7 06

. In that case , w e had to delve into t h e appropriat e standard of re vi ew bec ause of uncer tain ty in w hat

s tan dard we should apply “ when, as is the ca se here, we re view a trial cou rt’s decision to deny a defendant’ s counterclaim for attorney’s fees under a ‘ prevailing par ty ’ clause
in a contract w hen the cont ract does n ot defi ne ‘ prevailing party ’ and the plain tif f has
nonsuited its c l aims with out preju dice. ” I d

. Relyin g o n the Fi rst and Fourteenth17

Courts, w e deci ded t hat the issue of whether a par ty nonsuited to avo id an
unfavorable ruling i s a question of fact that we r eview under an abuse

- of

- discretion

s tandar d

. Id

. (quo ting N. Star Water Logic, LL C v. Ec ol o tron, Inc

. , 486 S.W. 3d 1 02, 105 (Tex. App.

— Houston [14 th Dist.] 2016, no pet

. ) , and citing Referente v. City View Courtyard, L.P. , 47 7 S. W.3d 882, 8 8 5

– 8 6 (Tex. App.

— Houston [1st Dist.] 2015, no pet.) )

. On the o ther han d , “ we review any legal determinat ion s, such a s whether t he suit had an arguable basis in l aw, de n ovo.” N. Star Water L ogic, LLC , 486 S.W.3d at
105 ; see also Referente , 477 S.W.3d at 8 8 6 ( “ [W]e wi ll review the trial court’s
determi na tion und er Epps for an abuse of discretion, deferrin g t o factual fi ndings that are supported by some evidence, b ut reviewing legal question s de novo.” ).
Because the inference to draw wheth er a p a rt y nonsuit e d to avoid an unfavorabl e result is a fact que stion, “ th e trial cour t ’ s findi ng on that issue may be challeng ed on the ground that it is not supported by suffic ient evidence. ” Referente , 477 S. W .3d at 88 5 . In that circumstance , we may revers e only if the evidence

s upported only on e decision and the trial judg e made a differen t one : Wi th respect to factual m atters, a trial court abuses its discretion if , under t he record, it reasonably could have reac hed only one decision, and it failed to do so. S ee Walk er v. Packer , 82 7 S.W.2d 833, 840 (Tex. 1992) (orig . pro ceeding)

. With res pect to t he application of the law, a t r ial judge h as no discretion in determi ning wh at the law is or in applying the law to the undisp uted facts, and a clear failure b y the court t o correctly anal yze or apply the law will constitut e an abuse of discretion

. See i d.18

Tex. Voices for Rea son & Jus t ice, Inc. v . City of Argyle , No. 02

- 16

- 00052

- CV, 2017 WL
1173 837, at *2 (Tex. App.

— Fo rt Worth M ar. 30, 2017, no pet.) (mem. op. ) ; see also
He alth Care Serv. Corp. v. E. Tex. Med. Ctr. , 495 S.W .3d 3 33, 338 ( Tex. App.

—

Tyler
20 1 6, no pet.) (op. on r eh ’ g) (“T h e trial cou rt does not abuse its discr etion i f some
evidence reasonably supports the trial cour t ’ s decision. More specifically , the t rial

co urt does not abu se its discretion when it bases its deci sion on co nflicting evidence , or when some eviden ce of sub s tantive and probative character exists to sup port its
decision .” (citation omitted)). And it is no t our role to question wheth e r a trial cou rt picked the b e tter of the inferences because w hen deci ding which in ference to choose,

a f act finder is f

ree to se l ect between conflicting inferences drawn f r o m the evidence so long as each of the infere nces is reasona bl e. City of Keller v. W ilson , 16 8 S. W.3d 802,
821 (T ex. 2005) ( “ Even if evidence is und isput ed, it is th e province of the jury to draw
from i t whateve r inferences they wish, so long as more than o ne is po ssible and the jury must not simply guess. ” ).
Her e, the Defendants ’ arg ume nt fail s beca use it ignores that the evidence supported a n inf

erence contrary t o the one they pr efer

— an inference th at the
Pl ain tiff s nonsu ited the ir claims against the Defe ndants because a s ett lement with the
other de fe ndant s and the poor likelihood of a r ecovery agai nst the Defend ants m ade
it unreasonable from thei r persp ective to continue litigating

. The Plaintiff s specifica l ly pointed to th is inference as the basis fo r t h e trial court t o deny the Defendants ’19

motion for attorneys ’ fees. 3 The reco rd con t a ins evidenc e that the inf erence the
Plain tiff s ad vocated was reason able if for no other reason than that the motio n t o dism iss the other de f

endants with prejudice was foll owed a day later with the non suit
of their claims against the Defendants

. Nor do t he other fa ct s cite d by the Defendants make th e infe rence unreasonabl e as a matter of law as they co ntend . T he t rial court had denied the
Defendants’ no

- evid ence motion for summary judgment. The Defendants asked the
trial court to reco nsider tha t ru ling , and the mo ti on to reconsider was set by w ritt en submissi on o n the da y a fter the Plaintiff s nonsuite d. Th e P lain tiff s h ad n ot filed a
response to the moti on to reconsider and had allegedly f iled no admissible e vidence in
response to the original no

- eviden ce motion. The Defen da n ts argue that “ [u] nder
thes e fac ts, there is unquestion ably a n inference that the [ Plaintiffs ] n o ns uited i n or der
to avoid an unfavor able rulin g [on the motion to reconsider,] which would have been

3 As we noted earlie r, t h e P laintiff s ’ respo nse to the Defendan ts ’ mot i on articul ate d the inference that i t ask ed the t rial court to draw as follows : I n the present case, the [ Plaintif fs] had a legitimate rea son to nonsui t, irrespectiv e of the stren gth of their c laims against the [De fendants] and th e pending hearing b y s ubmi s sion on th e [Defend ants ’ ] Motion to R eco nsider. Specifically, they were able to settle and complete their respec tive obligations under th e set tlement agreem ent with [the other d efen dants]

—

whi ch was coinci dental ly two days before the Motion to Reco nsi de r
. Upon sett ling with [the other def end ant s] , the [Plaintiffs] evaluated the impending trial costs and likelihood o f collecting any j udg ment obta ined against the [ Defendants]

. Bas ed o n that ana lysis, the [P lainti ffs ] decided to fi le a Motion to Nons uit W ithout Prejud ice for t he claims agains t the [Def

endants] on January 23, 2019.20

dispositive of the [Plai n tiffs ’ ] c auses of a ction (i.e. , an order disposing of all of thei r

c laims on no

- evidence gr ounds)

. ” T he inference that t he Defendan ts draw may be

rea sonable , but it is not the on ly reasonable inference

. A complete portrayal o f the
facts also s upp orts the contrary inference , whi ch is th e one that the trial c ourt impliedly drew

. T he confluen ce of circum stances supports an i nference th at the
Plaintiff s decided t hat the se ttlement th ey had obtained made it unreasonable to
continue t o litigate

. An d we highlight that the Plaint iff s had prev ailed again st the
Defe ndants ’ moti on for summary judgmen t. It is a stretch t o argue that nonsuiting
before consid erat

ion of a motion that asked t he trial court to reverse a favorable ruling
irre futabl y signa ls th at the Plaintiff

s no n suited to sidestep an inevitable a d verse res ult

. The Defendants ra ise two argu ments in their r eply b rief that c hallenge o ur holding that there was evidence that offered the trial court two inferences to choose from. As we interpret that brief, the first argument i s that the Pl aintiffs offered only argument and no eviden ce to suppor t the inference that they asked the tr ial 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 no t conduct an evidentiar y hearing

— because
the Plaintiffs offered no evidence

— and find ings of fact should no t be made in a
post judgment contex t. With respect to the first argument, we disagree that the record is as fallow as
the Defendants claim. As we not ed, the ti ming of the m otion t o dismiss with prejudice and the nonsuit offered some evidence to support a n inference that the21

nonsuit was n ot a tactic to avoid an inevitable adverse result. And w e emphasize again th e unique posture of the case when dismis sed

— the Pl aintiffs had prevail ed against the Defendants’ summary

- judgment motion. T his fact, i n combinat ion with
the timing of the motion to d ismiss with prejudice and nonsuit, simply do es not support a conclusion that the only decision the trial court co uld reach was that the
Plaintif fs dismissed their case to dodge an inevitable loss.
W e also re ject the contention that the trial court c ould not consider Plaintiffs’ counsel’s explanation of the timing of the nonsuit. See N. Star Water Logic , 486 S.W.3d at
10 9 (st ating that wh en a party is not put on notice until after nonsuit that atto rney s ’ fees are
at i ssue, “the trial court did not er r by basing its decision, in part, on counsel’s statements during the attorney’s fees hearing that there were monetary reasons be hind the nons uit ”).
Our conclusion

— that the trial court did have an evide ntiary basi s for the
inference that we conclude it dr ew
— disposes of the Defendants’ arguments suggesting that we cannot imply the finding that the trial court made. If we
understand the first of t hese pr ocedural argument s, it is that the trial court had n o power und er Texas Rule of Civil Procedure 296 to ma ke 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 trie d in the district or county court without a jury, any party may

r equest 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 e xplanation22

of the rea so n for the nonsuit was the only support in the record f or the in f erence that the trial court appa rently drew , and that explanation is not evidence. The Defendants’ second procedural argument is that the trial court has no duty
to mak e findings of fact and conclusions of law after a post judgment hearing. They
cite two opinion s from this court holding that a trial court does not abuse its
discretion by refusing to make findings when resolving a post judgment proceeding.
See Murray v. M

urray , 27 6 S.W.3d 138, 143

– 44 (Tex. App.

— Fort Worth 20 08, 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

- j udgment he arings, we ho ld 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, 46 7

– 6 8 (Tex. App.

— Fort Worth 1986, no writ) (reasoning tha t b ecause a p ost judgment h earing is not a trial and
because R

ule 29 6 specifically states t hat findin gs of fact and conclusions of law are mandatory in “any case tried in the district or county court without a jury,” R ule 296 is inapplicable to post judgm ent he arings). The Defendant s also cite a case holding
that a request for findings made afte r a post ju dgment hearing will not extend the appellate timetable

. S ee S antiago v. Bank of N.Y. Mellon , No. 05

- 15

- 00342

- CV, 2015 WL 2375400, at *1 (Tex. App.

— Dallas Ma y 18, 2015, no pet.) (mem . op.)

. We are unsure what we are suppo sed to glean from this a rgument. Even if it had no “duty” to do so, if the trial court had made findings, we could have considered23

them. S ee S hanklin v. Shanklin , No. 13

- 15

- 00392

- CV, 2016 WL 39 62707, a t *2 (Tex. Ap p.

— Corpus Christi

– Edinburg July 21 , 2016 , no pet.) (mem. op.) ( s tating th at f or purposes of R

ule 296, a case is “ tried ” to the court when there is an evidentiary hearing before the court upon conflicting evidence and tha t “ [f] indings not ‘ requ ired ’ by rule 2 96 could ‘ properly be considered ’ by a n appellate court when s uch findi ngs

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 hear ing ’ ” )

. A nd more funda m entally, even if the trial court had n o duty to make findings,
that doe s not stifle our ability to imply how it resolved a factual question and then
review whether that resolution was correct. If no findings are made , w e still imply th e findings necessary to support the judgment or order and then apply the standards of

e videntia ry review to those implied findings. See Wittau v. Storie , 145 S.W.3d 732, 73 6 (Tex. App.

— Fort Worth 2004, no pet.) (per curiam) ( stating that w hen no findings of
fact or conclusions of law a re filed, the trial court ’ s jud gment implies all finding s of fact necessary t o 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 chall enge them by ra ising both legal and factual suf ficie ncy of the evidence issue s ” (citing Pharo v. C

hambers C ty

. , 922 S.W.2d 945, 948 (Tex. 1996) , and Roberson v.
Robinson , 768 S.W.2d 280, 281 (Tex. 1989) ) )

. The Defendants’ second procedural argum ent appear s to suggest that w hen the
trial court does n ot ha ve a duty to make findings , we lack the abilit y to imply the24

apparent basis for the trial court ’ s ruling and then review that implied basis. As shown, t he latter is not dependent on the former. Indeed, at least two co urts of appeals have implied fin dings in appeals involving the s ame question before us regarding whether a party was entitled to fees as a prevailing party. See Lusk v. Osorio , No s . 14

- 17

- 01011

- CV, 14

- 18

- 00522

- CV, 2019 WL 3943195, a t *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 necess ary finding
i n favor of the trial court ’ s jud gment that [a ppellant] n onsuited 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 implie d fin ding that [appellant] volun tarily
dismisse d 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. C onclusion
W e overrule the Defendants’ fi rst i ssue because t he trial cou rt ’ s order of

no nsuit did not dispose of the ir fee claim ; thus, the order does not contain the error th ey contend it does. Even if it did, any error is harmless. We over rule the
D efe ndants ’ se cond issue because the evidence does not conclusive ly establish the
inf erence they advocate for ; instead, t he record supp orts the inference that the trial25

c ourt op ted to make , and that infere nce warranted the deni al of the Defendants ’ fee
moti on . We affir m t he trial court ’ s or der den yi ng “ D e fend ants J ason and A udr a
H oh e i sel ’ s M oti on f

or A ttorneys ’ F ees as P revailing P arties

. ” /s/ Dabney Bassel Dabney Bassel J ustice
Deliver e d: January 23, 2020