Affirmed and Memorandum Opinion filed September 1 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00036

- CV

ANGELICA M ARIA REYES , Appellant

V.
A ZAEL P AT RICK FRAGA , Appellee
On Appeal from the 257th District Court

Harris County, Texas Trial Court Cause N o. 201 1

- 61532

MEMOR ANDUM OPINION Appellan t Angelica M aria R eyes (Grandmother) fi led a suit to modif y the parent

- child relationship requesting mana ging conservatorship of two children o f appellant Azael P atrick Fraga (Fathe r) as well as for grandp a rent access requesting possession of or access to the children

. See Tex. Fam . Code Ann. § § 102.004(a) (conferring standing on grandparent ) , 153.433(a) ( authorizing court to order reasonable possession or acc ess t o grandchild ) , 109.002 ( authorizing a p pellat e review )

. I n his ans wer to Grandmother ’ s petition, Fat her requested attorney ’ s fees2

on the grounds that Grandmother ’ s suit was “ fil ed frivolousl y or is designed to harass ” Fat her

. In November 2020, Grandmother filed a “ motion for non

- suit. ” The tri a l cour t signed an order dismissing Grandmother ’ s claims on November 13, 2020 . The trial court held a trial on Father ’ s request for atto rney ’ s fees in D ecember 2020 and si gned a final order awar ding Father $10,000 in attorney ’ s fees o n January 8, 202 1

. In t wo iss ues, Grandmot her challenges the trial court ’ s order , arg u ing (1) the order is void because the trial court ’ s plen ary power ha d expired a t the time it signed the or d e r and (2) the trial court awarded attorney ’ s fees on an improp er b asis.
I. A NALYSIS
A. P lenary power In issue 1, Grandmother arg ue s the order awarding attorney ’s fees is void because the trial court no longer had plenary pow e r at the time it signed the final order in January 202 1

. “ The tri al court, regardless of whether an appeal has been
per fected , has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed. ” Tex. R. Civ. P. 329b (d). If the trial court does no t take any action desc ri bed in Rule 329 b(d),

an d no mo tion f

or ne w trial or to mod ify, correct, or reform the judgment is filed within 30 days of the signing of the trial court ’ s judgment , the trial court loses its plenary power once thirty days have elaps ed after the judgment or other ord er complained of was signe d. See Tex . R. Civ. P. 329b. Here , Grandmother argues the trial court los t its plenary power 3 1 days a fter it signed the November 202 0 order granting Gran d mother ’s “motion for n on
- suit ” and di smis sing Grandmother ’s claims , b ecause those were the onl y claim s before the trial court

. Therefore, according to G randmother, the trial court ’ s January 2021 order is void.
Texas Rule of Civil Procedure 162 provides tha t a plaintiff may take a3

non
- suit at any time before introducing all of h er evidence other t han rebut tal evidence. Tex. R . Civ. P. 162. Rule 162 also provides , however, that a non
- suit “shall not prejudice the right of an adverse pa rty to be heard on a pendi ng claim for affirmative relief

. ” I

d. Here, Father reque sted attorney ’ s fees in his ans wer on the b asis that Grandmother ’ s suit was “ fil ed frivolously or is designed to harass ” Fat her

. Grandmother does not argue that this pleading is not sufficient to give notice of a claim for attorney ’ s f ees 1 ; instead, Grandmother a rgues that, because the req uest was asserted in an ans wer as opposed to a counter claim, the request d i d
not survive Grandmother ’ s non
- suit. However , “Te xas courts have held that a n affirmative claim, stated in an answer, for rec overy of attorney ’ s fees for preparation and prosecutio n of a de fense constitutes a counterclaim, and as such, survives a nonsuit. ” K

elsall v. Hai sten , 564 S.W.3d 157, 163 (Tex. App.

— Houston [1st Dist.] 2018, no pet.) (quotatio n s om itted) (collecting cases )

. 2
Because Father ’ s claim for attorney ’ s f ees was an a ffirma tiv e c laim for relief that was pending at the ti me the trial court signed the order that noted the non

- suit of Grandmother ’ s case , we conclud e the trial court ’ s plenary power di d not exp ire 31 days after it si g n ed a n order n ot ing the non

- suit of Gra ndmother ’ s c ase
. See Tex. R. Civ. P . 162; Kelsall , 564 S.W.3d at 163

. According ly, t he trial court ’ s January 2021 o rder awarding Father attorney ’ s f ees is n ot v oid d ue to expir ation of

1 C f. Bellefonte Underwriters Ins. Co. v. Brown , 663 S.W.2d 562, 575 (Tex. App.

— Houston [14t h Dist.] 1983) (plaintiff need on ly plead facts which entitle him to recovery o f attorney’s fees and need n ot also specifically plead legal authority entitling him to rec overy of attorney’s fees), aff’d in part, rev’d in part on othe r grounds , 704 S.W.2d 7 42 (Tex. 1986).

2 Grandmother arg ue s the supreme court ’ s decision in Univ ersity of Tex as Med ical B ra nch at Galveston v. Estate of Bla ckmon ex rel. Shultz compels a different result. UTMB , 195 S.W.3d 98 (Tex. 2006)

. UTMB , howe ver, doe s not address a cla im f or attorney ’ s fees pleaded in
an answer
. Instead , the supreme court determined that a request for co sts as s erted in a plea to the jur isdiction , without m ore, did not survive a non

- suit. See id. at 101 (explaining that UTM B “ has not r aised a claim for affirm ative relief, but it did request costs in its plea to the jurisdiction ” ). Accordingl y, UTMB is fact ually d istinguishable and does n o t control the disposition of this
a ppeal

.4

the tr ial court ’ s plenary power

. We overru le is sue 1.
B
. Basis for awar d of atto r ney ’ s fees
In issue 2 , Grandmother argues the trial court e rred by awarding attorney ’ s fees because Father p lea ded h is claim for fee s on t he basis th at Grandmother ’ s suit

was “ fil e d f

rivolously or is designed to harass ” Fat her , and the trial cour t awarded fee s on a different b asis that Father did not plead . The trial court ’ s o rder , however , d oes not state the bas is for the fee award, and there are n o findings of fact or conclusio ns of law in the record. Grandmother bases her argument on a n unsigne d docket e ntry stating in pa rt that “ [t] he court does not find that the suit was filed frivolously or designed to h arass
. However, the absen ce of that findi ng does not preclude the court fro m awarding Responde nt a judgment for reasonabl [e] attorney ’ s fees and expen s es pursuant to TFC 1 06.002, whether Respondent is considered the ‘ prevailing party ’ or not. ” 3

“ A docket en try may supply facts in certain situati ons , but it cannot be used
to con tra di ct or prevail over a final judicial order. ” N

- S

- W Corp. v. Snel l , 561 S. W .2d 798, 799 (Tex. 1977) (citation omitted )

. Mor eover , absent exceptional circu mstances not present here, “[a] n appellate court ma y not consider docket entries since they are onl y m ade for the clerk ’ s convenience and are usually unreliable. ” Rush v. Barri o s , 56 S.W.3d 88, 95 (Tex. App.

— Houston [14th Dist.] 2001, pet. denied) . Our court has explained that it is “ especially inappropria te ” to consider d ocket entries as findings of fa ct whe n the trial court ha s not filed such findings. I

d. at 96.

3 Family C ode section 106.002 (a) provides, “ In a suit unde r this title, the court may render judgment for reasonab le attorney ’ s fees and expenses and order the judgm ent and postjudg ment i n terest to be paid directly to an attorney. ” Tex. Fam. Code A nn. § 106.002 (a).5

Accordi ngly, w e do not consider the docket entry relied on by Grandmother in determin ing the bas is for the trial court ’ s a ward of att orney ’ s fees. Because the

“ f inding ” in the docket entry is th e sole basis on which Grandmother a rgues the trial court awarded fees on an improper basis, we overrule iss ue 2

. II. C ONCLUSI ON
H aving overruled Grandmot her ’ s two issues, we affirm the t rial court ’ s final order as challenged on a ppeal.

/s/ C har les A. Spai n Justice
Panel cons is ts of Ch i ef Justic e Christopher and Justice s Bour liot and Spain

.