Texas Rule of Civil Procedure 91a—a Texas version of a motion to dismiss—was added in 2013 to give parties an efficient way to have baseless claims dismissed at an early stage. The rule provides that a party may move to dismiss a cause of action that has no basis in law or fact. The court may not rule on the motion if, at least 3 days before the date of a hearing on the motion, the respondent files a nonsuit of the challenged action. The court must award the prevailing party on the motion all costs and reasonable and necessary attorneys' fees. Obviously you are a "prevailing party" if the court grants the motion to dismiss in your favor. But what if the other party nonsuits its claims before the motion is decided? Did you "prevail"?
The Fourteenth Court of Appeals in Houston recently addressed this question in
Thuesen v. Amerisure Ins. Co., No. 14-14-00666-CV (Tex. App.—Houston [14th] Feb.
9, 2016). Theusen involved a dispute over a condo association. The defendants moved to dismiss plaintiff's claims under Rule 91a. The plaintiff nonsuited all his claims without prejudice a week before the hearing. The defendants then requested that the nonsuit be made with prejudice and they be awarded fees under Rule 91a as prevailing parties because the nonsuit was taken to avoid an unfavorable ruling. The trial court awarded defendants fees.
The court of appeals reversed, holding that because Rule 91a.5 expressly provides that a court may not rule on a motion to dismiss if the party nonsuits its claims at least three days before the hearing, defendants did not "prevail" because the court could not rule on the motion. The court rebuffed defendants' attempt to apply Epps v. Fowler, 351
S.W.3d 862, 871 (Tex. 2011) in which the Texas Supreme Court held that a party was a "prevailing party" when its adversary nonsuited its claims without prejudice to avoid an unfavorable judgment. The Court of Appeals distinguished Epps on ground that it involved a contractual fee-shifting provision with language different than that in Rule
91a. Though both used the term "prevailing party," the clause in Epps required a party to prevail in a "legal proceeding," whereas Rule 91a.7 is limited to prevailing on a "[Rule 91a] motion."
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