In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-19-00142-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

JASON HOHEISEL AND AUDRA HOHEISEL, Appellants

V.

MICKY BOYD AND CARRIE BOYD, Appellees
2

MEMORANDUM OPINION

I. Introduction

In two issues, Appellants Jason and Audra Hoheisel, the Defendants below, 

challenge the trial court’s denial of their claim for attorneys’ fees against Appellees 

Micky and Carrie Boyd, the Plaintiffs below, that was based on the contention that the

Defendants were the prevailing parties in the litigation. We will refer to the parties by 

their trial court designations.

The Defendants’ motion seeking attorneys’ fees alleged that the Plaintiffs had

nonsuited their claims against the Defendants to avoid an inevitable loss on those 

claims and that this made the Defendants the prevailing parties. The Defendants

argue in two issues that the trial court committed harmful error when it (1) entered an 

order of nonsuit that dismissed their pending claim for attorneys’ fees and (2) denied 

their motion for attorneys’ fees and failed to recognize that the evidence established

as a matter of law that the Plaintiffs had dismissed their suit to avoid having a 

summary judgment rendered against them. We overrule the first issue because the 

order of nonsuit did not specifically dismiss the Defendants’ claim for attorneys’ fees

and, thus, should not be construed as a dismissal of that claim. We overrule the 

second issue because the evidence supported two inferences: one was that the

Plaintiffs had nonsuited their claims to avoid an adverse result, but the other was that 

a settlement with the other defendants had produced a decision that had made 

continuing the litigation with the Defendants no longer worthwhile. Because both 
3

inferences are supported by the record, the trial court had the discretion to choose 

between the two and chose an inference that warranted denial of the Defendants’

motion. The governing standard of review dictates that it is not for us to secondguess that choice. We therefore affirm.

II. Factual and Procedural Background

The suit below involved the sale of a house and the claim that drainage 

problems were not disclosed before the sale of the house to the Plaintiffs. The 

Defendants were the sellers of the house, and the other defendants were real estate 

agents who represented the Defendants in the sale.

When the Defendants answered the suit, they pleaded a claim for attorneys’

fees based on a provision of the sales contract that they had entered with the 

Plaintiffs. That provision stated that any party to the contract “who prevails in any 

legal proceeding related to this contract is entitled to recover reasonable attorney’s

fees.” The parties litigated for a year and a half.

After the close of discovery, the Defendants filed a no-evidence motion for 

summary judgment. The Plaintiffs responded by attaching the seller’s disclosure made 

by the Defendants and allegations and evidence in a prior lawsuit in which the real 

estate agent who was a defendant below had alleged that the property had irreparable

drainage problems. The trial court denied the Defendants’ motion for summary 

judgment. The Defendants filed a motion to reconsider this ruling, arguing that the 

trial court had erred by not sustaining objections to the Plaintiffs’ evidence filed in
4

support of their summary-judgment response and that the trial court had not properly 

considered the evidence in making its original ruling. The motion to reconsider was 

set to be considered by written submission.

The Plaintiffs did not file a response to the motion to reconsider. Instead, two 

days before the motion to reconsider was set for submission, the Plaintiffs filed a 

motion to dismiss their claims against the defendant real estate agents with prejudice. 

The next day, the Plaintiffs filed a motion to nonsuit their claims against the 

Defendants. The trial court signed orders granting both of the motions filed by the 

Plaintiffs.

The Defendants then filed a motion asserting that they were the prevailing

parties in the litigation and that they were therefore entitled to recover their attorneys’

fees. This motion reiterated many of the arguments that they had made in their 

motion to reconsider the trial court’s denial of their summary-judgment motion. The 

motion for attorneys’ fees went on to note that the Defendants had asserted their 

claim for attorneys’ fees before the nonsuit and also asserted that the Plaintiffs’ action 

could support only one conclusion: they had nonsuited to avoid an unfavorable 

ruling. The Defendants also filed a motion for new trial that repeated many of the 

arguments made in their motion for attorneys’ fees and also asserted that the trial 

court had erred by signing a nonsuit order that dismissed the “entire case” and did not 

leave in place their affirmative claim for attorneys’ fees that was pending at the time of

the dismissal.
5

The Plaintiffs responded to the motion for attorneys’ fees. Among other 

things, the Plaintiffs pointed out that they had not dismissed their case before the trial 

court had originally ruled on the Defendants’ motion for summary judgment and 

instead had responded to that motion, which the trial court ultimately denied. The

Plaintiffs also pointed out that the evidence supported an inference different from the 

one that the Defendants had asked the trial court to draw from the timing of the

nonsuit, i.e., an inference drawn from the explanation that showed that the dismissal

was not an effort to avoid an adverse ruling on the motion to reconsider. The

Plaintiffs described the timing of the nonsuit in relation to the hearing on the motion

to reconsider as being “purely coincidental.” The Plaintiffs detailed what led to their

filing the nonsuit as follows:

The [Plaintiffs] did not file a response to the Motion to Reconsider and 

nonsuited this case because of a significant change in the litigation of 

this case: reaching a settlement with the other [defendants]. Between 

the time the [Defendants’] Motion for Summary Judgment was denied 

and the hearing by submission was set on their Motion to Reconsider on 

January 23, 2019, the [Plaintiffs] were pursuing negotiations with [the 

other defendants] to settle the case. Settlement negotiations between 

these parties was ongoing since early December 2018.

. . . The negotiations were successful and the [Plaintiffs] and [the 

other defendants] reached a confidential Settlement and Release 

Agreement. Upon each respective party completing their obligations 

under the agreement, a Motion to Dismiss with Prejudice for the claims 

against [the other defendants] was drafted. The signed Motion was

received from counsel for [the other defendants] on January 21, 2019[,]

and filed with this Court on January 22, 2019 . . . .
6

In their response, the Plaintiffs offered to tender the settlement agreement and “other 

relevant communications” for in camera review. The response also catalogued

evidence that the Plaintiffs claimed demonstrated that their suit had merit when it was 

filed.

The trial court determined the Defendants’ motion by written submission. It 

entered an order stating, “The Court, having considered the motion and the 

arguments of Counsel, has determined that the motion should be DENIED.” This 

appeal followed.

III. Analysis

A. The trial court did not dismiss the Defendants’ claim for attorneys’ fees

when it entered an order of nonsuit. The order did not dismiss that claim 

because it did not specifically address that claim.

In their first issue, the Defendants ask us to reverse and either render judgment

for the attorneys’ fees that they sought from the Plaintiffs or to remand to the trial 

court for it to award those fees. The alleged error underlying the first issue is that the

trial court’s order of nonsuit was overbroad because it dismissed the entire suit, 

including their claim for attorneys’ fees. Such an order, the Defendants argue, violates

the principle that a nonsuit cannot prejudice claims asserted by the party adverse to 

the one taking the nonsuit. The Defendants are right in principle but wrong in 

application because the trial court’s order did not dismiss their claim for attorneys’

fees.
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Though the order of nonsuit dismisses “this cause,” we do not read it to have 

the flaw that the Defendants claim. That order did not specifically dismiss the 

Defendants’ claim for attorneys’ fees, and a specific statement is required before an 

order of nonsuit should be construed to dismiss a claim for relief made by the party 

adverse to the one taking a nonsuit. There is no presumption that the order of 

nonsuit is final because it was not preceded by a traditional trial on the merits. See 

Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009). In the absence of that presumption, 

we “must examine the express language of the order and whether the order actually 

disposes of all claims against all parties.” Id. Here, a rule governing the interpretation 

of orders of dismissal establishes why the order’s language did not dispose of the fee 

claim because “[a] judgment dismissing all of a plaintiff’s claims against a defendant, 

such as an order of nonsuit, does not necessarily dispose of any cross-actions, such as 

a motion for sanctions, unless specifically stated within the order.” Id. Further, the

trial court’s consideration of the Defendants’ motion indicated that their claim for 

attorneys’ fees had not been dismissed. Even if the order contained the flaw that the 

Defendants’ claim, the trial court’s consideration and ruling on their motion while the 

trial court had plenary power rendered that error harmless.

Texas Rule of Civil Procedure 162 allows a party to terminate the prosecution

of its claim by taking a nonsuit. Tex. R. Civ. P. 162. But the rule is explicit that “[a]ny 

dismissal pursuant to this rule shall not prejudice the right of an adverse party to be 

heard on a pending claim for affirmative relief.” Id. The rule is also explicit that a 
8

dismissal “shall have no effect on any motion for . . . attorney’s fees or other costs, 

pending at the time of dismissal.” Id. And caselaw, which has filled in a gap not 

addressed in the rule, permits a trial court to consider a motion for attorneys’ fees

filed after the dismissal so long as that motion is heard while the trial court retains 

plenary jurisdiction. Beasley v. Soc’y of Info. Mgmt., Dallas Area Chapter, No. 05-17-

01286-CV, 2018 WL 5725245, at *6 (Tex. App.—Dallas Nov. 1, 2018, pet. denied)

(mem. op.) (holding that trial court had jurisdiction to consider motion for attorneys’

fees filed after entry of order of nonsuit (citing Travelers Ins. Co. v. Joachim, 315 S.W.3d 

860, 863 (Tex. 2010), and Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 

(Tex. 1996) (per curiam) (op. on reh’g))); see also Proler v. City of Houston, 499 S.W.3d 12, 

15 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (op. on reh’g) (“Rule 162 merely 

‘permits the trial court to hold hearings and enter orders affecting . . . attorney’s fees .

. . even after notice of nonsuit is filed.’”).

The Plaintiffs do not challenge that the Defendants’ claim for attorneys’ fees

was “a pending claim for affirmative relief” that survived a nonsuit. Our examination 

of the record validates that the Defendants had a pending claim for relief. Though

phrased inartfully, the Defendants’ second amended answer sought attorneys’ fees 

based on the provision of the parties’ contract awarding the prevailing party its 

attorneys’ fees.

1

 And though not every claim for attorneys’ fees is considered a prior 

1The answer contains a heading labeled “Request for Attorney[’s] Fees” that is

followed by the allegation that “[p]ursuant to Section 17 of [sic] the Defendants 
9

pending claim that survives a nonsuit, the Defendants’ claim appears to be one that 

does qualify as a pending claim that would survive. To be such an affirmative claim 

for relief, the fee claim must be based on an independent ground or sanction. Body 

Shop Auto Storage v. Santander Consumer USA, Inc., No. 01-17-00693-CV, 2018 WL 

3580938, at *2 (Tex. App.—Houston [1st Dist.] July 26, 2018, no pet.) (mem. op.)

(“Thus, a claim for attorney’s fees based solely on defending against the other party’s 

claims is not a request for affirmative relief, but if the fees claim is based on an 

independent ground or sanction, it is a request for affirmative relief.” (citing Villafani 

v. Trejo, 251 S.W.3d 466, 470 (Tex. 2008))). A fee claim made by a defendant against 

a plaintiff based on the same type of contract provision invoked by the Defendants in 

this case appears to be an affirmative claim for relief based on an independent ground. 

See Epps v. Fowler, 351 S.W.3d 862, 865 (Tex. 2011) (examining claim for attorneys’

fees predicated on claim that party was prevailing party and entitled to recover

attorneys’ fees under section of an earnest-money contract).

Because the Defendants had an affirmative claim for relief, as we have noted,

we agree in principle that such a claim should not have been dismissed when granting 

request recovery their reasonable attorney’s fees should they prevail in this legal 

proceeding.” This allegation apparently refers to the “ONE TO FOUR FAMILY 

RESIDENTIAL CONTRACT (RESALE)” by which the Defendants contracted to

sell the property to the Plaintiffs. [Bolding removed from original.] Paragraph 17 of 

that contract contains a provision allowing the prevailing party to recover attorneys’

fees.
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the Plaintiffs’ nonsuit.2 But we disagree that the trial court’s order of nonsuit contains 

such an error. The nonsuit order entered below does not address the affirmative

claim for attorneys’ fees made by the Defendants, and an order of nonsuit is not 

interpreted to dispose of a pending claim for relief unless it specifically states that it is 

doing so. See Crites, 284 S.W.3d at 840; see also In re Anderson, No. 01-10-00182-CV, 

2010 WL 1612309, at *2 (Tex. App.—Houston [1st Dist.] Apr. 19, 2010, orig. 

proceeding) (mem. op.) (rejecting argument that claim for sanctions was dismissed

because plaintiff intended nonsuit to dismiss entire case and stating that “[b]ecause of 

the absence of specific language addressing the motion for sanctions, the trial court’s 

order of nonsuit did not dispose of it”).

Further, the trial court allowed the parties to continue to litigate the claim for 

attorneys’ fees after the entry of the order of nonsuit. This is an indication that the 

trial court viewed that claim as viable and as not disposed of by its order of nonsuit. 

And there is no challenge to and no question in our view that the trial court had the 

jurisdiction to make that decision after signing the order of nonsuit. The order of 

nonsuit was not a final judgment because it did not dispose of the fee claim. See 

Anderson, 2010 WL 1612309, at *2. Even if it were a final judgment, the Defendants

filed a timely motion for new trial attacking the order of nonsuit for allegedly

disposing of their fee claim. This extended the trial court’s plenary jurisdiction, and 

2The Plaintiffs’ motion for nonsuit did not request the dismissal of the

Defendants’ fee claim. Rather, the Plaintiffs erroneously stated, “Defendants . . . 

ha[ve] no pleadings on file seeking affirmative relief from plaintiff[s].”
11

the trial court disposed of the fee motion within the period of that jurisdiction. See 

Tex. R. Civ. P. 329b(a), (e).

Also, the trial court allowed the parties to litigate the fee question using the 

appropriate procedure and then ruled on the motion in due course. The Defendants’

motion asking the trial court to award them attorneys’ fees because they were the 

prevailing party was built on the relief that they had sought in their answer. That

motion was simply the vehicle for the Defendants to litigate the fee claim. See Killam 

Ranch Props., Ltd. v. Webb Cty., No. 04-08-00105-CV, 2008 WL 4958452, at *5 (Tex.

App.—San Antonio Nov. 19, 2008, no pet.) (mem. op.) (“The subsequent motion for 

attorney’s fee was merely the vehicle by which it sought to enforce its pre-existing

claim for relief.”). This course does not suggest that the trial court viewed its order of 

nonsuit as a disposition of the Defendants’ fee claim.

Finally, the Plaintiffs point us to authority from this court holding that when an 

order of nonsuit improperly dismisses a fee claim, the error is harmless when the 

parties are able to brief the issue and the trial court enters an order disposing of the 

fee claim. See Severs v. Mira Vista Homeowners Ass’n, 559 S.W.3d 684, 710–11 (Tex. 

App.—Fort Worth 2018, pet. denied). This holding demonstrates that even if there 

were error in the form of the order, it would be harmless.

The Defendants in their opening brief make only one challenge to the 

contention that any error—if it occurred—was harmless: the trial court’s order is 

vague whether it disposed of the merits of the fee claim or viewed that claim as moot 
12

because of its prior nonsuit order. The order denying the Defendants’ motion for 

attorneys’ fees does not contain that ambiguity. The Defendants filed a motion

seeking their attorneys’ fees, and the Plaintiffs responded to that motion. The 

response did not argue that the order of nonsuit had disposed of the fee claim but 

challenged the merits of that motion. The Defendants filed a notice stating that their

motion would be decided by written submission. The trial court signed an order that 

stated that it had considered the Defendants’ motion and that “[t]he Court, having 

considered the motion and the arguments of Counsel, has determined that the motion 

should be DENIED.” The record and the terms of the order indicate that the trial 

court considered the motion for the fee request as the parties asked it to do and

disposed of it on the merits of the motion rather than on a belief that the claim was 

previously dismissed.

In their reply brief, the Defendants expand on their argument that the trial 

court committed harmful error and point to distinctions between Severs and the 

instant case. They argue that those distinctions show that the trial court in this case

committed harmful error because it never considered the merits of their fee claim. 

We remain unpersuaded.

First, as we have explained, we do not agree that the trial court’s order of 

nonsuit contained the error of dismissing the Defendants’ fee claim. Second, the 

Defendants’ argument turns on the procedure utilized by the trial court in hearing the 

fee claim. In essence, the argument is that the process of determining the fee claim 
13

hearing in Severs was more thorough because, rather than hearing the matter by 

submission, the trial court took three steps by holding a status conference, conducting 

a hearing, and issuing an extensive letter ruling. Based on these distinctions, the 

Defendants argue that “the record simply does not establish—as the Severs record 

did—that the trial court ultimately considered the counterclaim ‘on the merits.’” This 

argument is based on the faulty premise that because the trial court in this case 

considered the fee claim in a different manner than the trial court did in Severs, we 

must conclude that the trial court did not resolve the fee claim on the merits. But that 

argument leaves unanswered the dispositive question of whether the trial court’s 

actions below indicate that the trial court in fact disposed of the Defendants’ fee claim 

on the merits. The trial court’s actions we have outlined and the provisions of its 

order denying the fee claim indicate that the trial court disposed of the fee claim on 

the merits and do not indicate that the trial court operated under a misconception that 

the order of nonsuit had disposed of that claim.

Thus, the order of nonsuit did not improperly dismiss the Defendants’ fee

claim, and nothing the trial court did indicated a belief that it had disposed of the fee 

claim in the order of nonsuit. Even if the order of nonsuit contained a flaw, that 

error was harmless because the trial court heard and disposed of the fee claim while it 

had jurisdiction to do so. We overrule the Defendants’ first issue.
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B. The evidence supported an inference that the Plaintiffs did not nonsuit

to avoid an adverse result. The trial court did not err because it chose a 

reasonable inference that the Defendants do not like.

In their second issue, the Defendants assert that they were the prevailing

parties and that the trial court erred by denying their motion for attorneys’ fees. They 

argue that the evidence established their status as prevailing parties because the 

Plaintiffs nonsuited their case on the eve of the hearing to reconsider the trial court’s 

denial of their no-evidence motion for summary judgment. In the Defendants’ view, 

this act establishes as a matter of law that “there is unquestionably an inference that 

the [Plaintiffs] nonsuited in order to avoid an unfavorable ruling which would have 

been dispositive of the [Plaintiffs’] causes of action (i.e., an order disposing of all of 

their claims on no-evidence grounds).” This argument ignores that the trial court had 

evidence before it from which it could draw another reasonable inference—the 

Plaintiffs’ settlement with another party made it uneconomical to continue the 

litigation against the Defendants. Choosing between these two reasonable inferences

was within the purview of the trial court.

As noted, the Defendants sought attorneys’ fees by claiming that they were the 

prevailing parties in this litigation. Usually, the taking of a nonsuit does not establish a 

winner or a loser in litigation. See generally Epps, 351 S.W.3d at 869. The nonsuit 

simply calls a halt to the conflict; in other words, “a nonsuit without prejudice works 

no such change in the parties’ legal relationship; typically, the plaintiff remains free to 

re-file the same claims seeking the same relief.” Id.
15

But the supreme court has held that a party may prevail even if the litigation

did not progress to a point that a party receives a formal declaration of victory in the

form of a judgment. Id. at 868–70. Calling a halt to the litigation process by

nonsuiting may establish that one party has prevailed when the nonsuit signals an 

attempt to avoid an inevitable adverse result by a nonsuiting party. Id. In the 

supreme court’s view, a nonsuit will not forestall the declaration that one party

prevailed when the nonsuit is conspicuously an acknowledgement that a losing claim 

is about to reach its end by entry of an inevitable adverse judgment:

[I]t is logical to conclude that the parties intended to award attorney’s 

fees to compensate the defendant when the plaintiff knowingly pursues a

baseless action. It makes sense to conclude that the parties would have 

sought to “discourage the litigation of frivolous, unreasonable, or 

groundless claims” when a “calculating plaintiff . . . voluntarily 

withdraws his complaint ‘to escape a disfavorable judicial determination 

on the merits.’” That construction is consistent with the disfavor our 

cases have displayed toward nonsuits that are filed to circumvent 

unfavorable legal restrictions or rulings.

Id. at 869–70 (citations omitted).

To make a determination regarding whether a nonsuit signals an attempt to 

sidestep the inevitable, “[a] number of factors may support an inference that a 

plaintiff has nonsuited in order to avoid an unfavorable ruling.” Id. at 870–71. The

supreme court catalogued the types of evidence that the trial court should examine in 

deciding whether such an inference exists:

[I]f a plaintiff nonsuits only after a motion for summary judgment is 

filed, it may suggest that the plaintiff elected to do so in order to escape 

summary judgment. Further, a plaintiff’s unexcused failure to respond 
16

to requests for admissions or other discovery that could support entry of 

an adverse judgment may also indicate that a nonsuit was taken to 

foreclose that possibility. Similarly, a failure to timely identify experts or 

other critical witnesses could suggest that a nonsuit is neither tactical nor 

voluntary. And the existence of other procedural obstacles, such as the 

plaintiff’s inability to join necessary parties, may also signal that the 

defendant has prevailed over the plaintiff.

Id. at 871 (citation omitted). But the supreme court also noted that other factors may

signal an inference that the nonsuit is not a recognition that a baseless lawsuit is about 

to receive its just deserts. Id. There may be events that occur as the suit progresses

that make the litigation no longer viable:

On the other hand, as we have noted, it is reasonable to presume that 

the parties did not intend to encourage continued litigation when

discovery reveals previously unknown flaws in the plaintiff’s claims. 

Accordingly, evidence that the suit was not without merit when filed 

may indicate that the defendant has not prevailed and is therefore not 

entitled to attorney’s fees.

Id.

In this case, the standard of review tightly constrains us from second-guessing 

the trial court’s determination of what inference to make because, as we have recently 

held, that question involves one of fact. See Severs, 559 S.W.3d at 706. In that case, we

had to delve into the appropriate standard of review because of uncertainty in what 

standard we should apply “when, as is the case here, we review a trial court’s decision 

to deny a defendant’s counterclaim for attorney’s fees under a ‘prevailing party’ clause 

in a contract when the contract does not define ‘prevailing party’ and the plaintiff has 

nonsuited its claims without prejudice.” Id. Relying on the First and Fourteenth
17

Courts, we decided that the issue of whether a party nonsuited to avoid an 

unfavorable ruling is a question of fact that we review under an abuse-of-discretion

standard. Id. (quoting N. Star Water Logic, LLC v. Ecolotron, Inc., 486 S.W.3d 102, 105 

(Tex. App.—Houston [14th Dist.] 2016, no pet.), and citing Referente v. City View 

Courtyard, L.P., 477 S.W.3d 882, 885–86 (Tex. App.—Houston [1st Dist.] 2015, no 

pet.)). On the other hand, “we review any legal determinations, such as whether the 

suit had an arguable basis in law, de novo.” N. Star Water Logic, LLC, 486 S.W.3d at 

105; see also Referente, 477 S.W.3d at 886 (“[W]e will review the trial court’s 

determination under Epps for an abuse of discretion, deferring to factual findings that

are supported by some evidence, but reviewing legal questions de novo.”).

Because the inference to draw whether a party nonsuited to avoid an 

unfavorable result is a fact question, “the trial court’s finding on that issue may be

challenged on the ground that it is not supported by sufficient evidence.” Referente, 

477 S.W.3d at 885. In that circumstance, we may reverse only if the evidence 

supported only one decision and the trial judge made a different one:

With respect to factual matters, a trial court abuses its discretion if, 

under the record, it reasonably could have reached only one decision, 

and it failed to do so. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 

1992) (orig. proceeding). With respect to the application of the law, a 

trial judge has no discretion in determining what the law is or in applying 

the law to the undisputed facts, and a clear failure by the court to 

correctly analyze or apply the law will constitute an abuse of discretion. 

See id.
18

Tex. Voices for Reason & Justice, Inc. v. City of Argyle, No. 02-16-00052-CV, 2017 WL 

1173837, at *2 (Tex. App.—Fort Worth Mar. 30, 2017, no pet.) (mem. op.); see also 

Health Care Serv. Corp. v. E. Tex. Med. Ctr., 495 S.W.3d 333, 338 (Tex. App.—Tyler 

2016, no pet.) (op. on reh’g) (“The trial court does not abuse its discretion if some 

evidence reasonably supports the trial court’s decision. More specifically, the trial 

court does not abuse its discretion when it bases its decision on conflicting evidence,

or when some evidence of substantive and probative character exists to support its 

decision.” (citation omitted)). And it is not our role to question whether a trial court 

picked the better of the inferences because when deciding which inference to choose, 

a factfinder is free to select between conflicting inferences drawn from the evidence 

so long as each of the inferences is reasonable. City of Keller v. Wilson, 168 S.W.3d 802, 

821 (Tex. 2005) (“Even if evidence is undisputed, it is the province of the jury to draw 

from it whatever inferences they wish, so long as more than one is possible and the

jury must not simply guess.”).

Here, the Defendants’ argument fails because it ignores that the evidence 

supported an inference contrary to the one they prefer—an inference that the

Plaintiffs nonsuited their claims against the Defendants because a settlement with the

other defendants and the poor likelihood of a recovery against the Defendants made 

it unreasonable from their perspective to continue litigating. The Plaintiffs specifically

pointed to this inference as the basis for the trial court to deny the Defendants’
19

motion for attorneys’ fees.3 The record contains evidence that the inference the 

Plaintiffs advocated was reasonable if for no other reason than that the motion to 

dismiss the other defendants with prejudice was followed a day later with the nonsuit 

of their claims against the Defendants.

Nor do the other facts cited by the Defendants make the inference 

unreasonable as a matter of law as they contend. The trial court had denied the 

Defendants’ no-evidence motion for summary judgment. The Defendants asked the 

trial court to reconsider that ruling, and the motion to reconsider was set by written 

submission on the day after the Plaintiffs nonsuited. The Plaintiffs had not filed a 

response to the motion to reconsider and had allegedly filed no admissible evidence in 

response to the original no-evidence motion. The Defendants argue that “[u]nder 

these facts, there is unquestionably an inference that the [Plaintiffs] nonsuited in order 

to avoid an unfavorable ruling [on the motion to reconsider,] which would have been 

3As we noted earlier, the Plaintiffs’ response to the Defendants’ motion 

articulated the inference that it asked the trial court to draw as follows:

In the present case, the [Plaintiffs] had a legitimate reason to nonsuit, 

irrespective of the strength of their claims against the [Defendants] and 

the pending hearing by submission on the [Defendants’] Motion to 

Reconsider. Specifically, they were able to settle and complete their

respective obligations under the settlement agreement with [the other 

defendants]—which was coincidentally two days before the Motion to 

Reconsider. Upon settling with [the other defendants], the [Plaintiffs]

evaluated the impending trial costs and likelihood of collecting any 

judgment obtained against the [Defendants]. Based on that analysis, the 

[Plaintiffs] decided to file a Motion to Nonsuit Without Prejudice for the 

claims against the [Defendants] on January 23, 2019.
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dispositive of the [Plaintiffs’] causes of action (i.e., an order disposing of all of their 

claims on no-evidence grounds).” The inference that the Defendants draw may be 

reasonable, but it is not the only reasonable inference. A complete portrayal of the 

facts also supports the contrary inference, which is the one that the trial court

impliedly drew. The confluence of circumstances supports an inference that the

Plaintiffs decided that the settlement they had obtained made it unreasonable to 

continue to litigate. And we highlight that the Plaintiffs had prevailed against the 

Defendants’ motion for summary judgment. It is a stretch to argue that nonsuiting

before consideration of a motion that asked the trial court to reverse a favorable ruling 

irrefutably signals that the Plaintiffs nonsuited to sidestep an inevitable adverse result.

The Defendants raise two arguments in their reply brief that challenge our 

holding that there was evidence that offered the trial court two inferences to choose 

from. As we interpret that brief, the first argument is that the Plaintiffs offered only 

argument and no evidence to support the inference that they asked the trial 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 not conduct an evidentiary hearing—because 

the Plaintiffs offered no evidence—and findings of fact should not be made in a 

postjudgment context.

With respect to the first argument, we disagree that the record is as fallow as 

the Defendants claim. As we noted, the timing of the motion to dismiss with 

prejudice and the nonsuit offered some evidence to support an inference that the 
21

nonsuit was not a tactic to avoid an inevitable adverse result. And we emphasize 

again the unique posture of the case when dismissed—the Plaintiffs had prevailed 

against the Defendants’ summary-judgment motion. This fact, in combination with

the timing of the motion to dismiss with prejudice and nonsuit, simply does not 

support a conclusion that the only decision the trial court could reach was that the 

Plaintiffs dismissed their case to dodge an inevitable loss.

We also reject the contention that the trial court could not consider Plaintiffs’ 

counsel’s explanation of the timing of the nonsuit. See N. Star Water Logic, 486 S.W.3d at 

109 (stating that when a party is not put on notice until after nonsuit that attorneys’ fees are 

at issue, “the trial court did not err by basing its decision, in part, on counsel’s statements 

during the attorney’s fees hearing that there were monetary reasons behind the nonsuit”).

Our conclusion—that the trial court did have an evidentiary basis for the

inference that we conclude it drew—disposes of the Defendants’ arguments 

suggesting that we cannot imply the finding that the trial court made. If we 

understand the first of these procedural arguments, it is that the trial court had no 

power under Texas Rule of Civil Procedure 296 to make 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 tried in the district or county court without a jury, any party may 

request 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 explanation
22

of the reason for the nonsuit was the only support in the record for the inference that 

the trial court apparently drew, and that explanation is not evidence.

The Defendants’ second procedural argument is that the trial court has no duty 

to make findings of fact and conclusions of law after a postjudgment hearing. They 

cite two opinions from this court holding that a trial court does not abuse its 

discretion by refusing to make findings when resolving a postjudgment proceeding. 

See Murray v. Murray, 276 S.W.3d 138, 143–44 (Tex. App.—Fort Worth 2008, 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-judgment hearings, we hold 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, 467–68 (Tex. App.—Fort Worth 

1986, no writ) (reasoning that because a postjudgment hearing is not a trial and 

because Rule 296 specifically states that findings of fact and conclusions of law are 

mandatory in “any case tried in the district or county court without a jury,” Rule 296 

is inapplicable to postjudgment hearings). The Defendants also cite a case holding 

that a request for findings made after a postjudgment hearing will not extend the 

appellate timetable. See Santiago v. Bank of N.Y. Mellon, No. 05-15-00342-CV, 2015 WL 

2375400, at *1 (Tex. App.—Dallas May 18, 2015, no pet.) (mem. op.).

We are unsure what we are supposed to glean from this argument. Even if it 

had no “duty” to do so, if the trial court had made findings, we could have considered 
23

them. See Shanklin v. Shanklin, No. 13-15-00392-CV, 2016 WL 3962707, at *2 (Tex. 

App.—Corpus Christi–Edinburg July 21, 2016, no pet.) (mem. op.) (stating that for 

purposes of Rule 296, a case is “tried” to the court when there is an evidentiary 

hearing before the court upon conflicting evidence and that “[f]indings not ‘required’

by rule 296 could ‘properly be considered’ by an appellate court when such findings 

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 hearing’”).

And more fundamentally, even if the trial court had no duty to make findings, 

that does 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, we still imply the 

findings necessary to support the judgment or order and then apply the standards of 

evidentiary review to those implied findings. See Wittau v. Storie, 145 S.W.3d 732, 736

(Tex. App.—Fort Worth 2004, no pet.) (per curiam) (stating that when no findings of 

fact or conclusions of law are filed, the trial court’s judgment implies all findings of 

fact necessary to 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 

challenge them by raising both legal and factual sufficiency of the evidence issues”

(citing Pharo v. Chambers Cty., 922 S.W.2d 945, 948 (Tex. 1996), and Roberson v. 

Robinson, 768 S.W.2d 280, 281 (Tex. 1989))).

The Defendants’ second procedural argument appears to suggest that when the 

trial court does not have a duty to make findings, we lack the ability to imply the 
24

apparent basis for the trial court’s ruling and then review that implied basis. As 

shown, the latter is not dependent on the former. Indeed, at least two courts of 

appeals have implied findings in appeals involving the same question before us 

regarding whether a party was entitled to fees as a prevailing party. See Lusk v. Osorio, 

Nos. 14-17-01011-CV, 14-18-00522-CV, 2019 WL 3943195, at *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 necessary finding 

in favor of the trial court’s judgment that [appellant] nonsuited 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 implied finding that [appellant] voluntarily 

dismissed 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. Conclusion

We overrule the Defendants’ first issue because the trial court’s order of 

nonsuit did not dispose of their fee claim; thus, the order does not contain the error

they contend it does. Even if it did, any error is harmless. We overrule the 

Defendants’ second issue because the evidence does not conclusively establish the

inference they advocate for; instead, the record supports the inference that the trial 
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court opted to make, and that inference warranted the denial of the Defendants’ fee 

motion. We affirm the trial court’s order denying “Defendants Jason and Audra

Hoheisel’s Motion for Attorneys’ Fees as Prevailing Parties.”

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: January 23, 2020