      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00705-CV



                 Appellant, Ashlie Koenig// Cross-Appellant, Brian Blaylock

                                                 v.

                  Appellee, Brian Blaylock// Cross-Appellee, Ashlie Koenig


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
   NO. 14-1177-C277, HONORABLE MICKEY RAY PENNINGTON, JUDGE PRESIDING



                                          OPINION


               Ashlie Koenig appeals the trial court’s final order denying her petition to partition

real property (the Residence) that was previously awarded pursuant to an agreed divorce decree to

Brian Blaylock in exchange for his payment of a sum certain to Koenig, after Koenig reduced

to judgment that sum certain via a motion to enforce. Koenig contends that, notwithstanding the

divorce decree and enforcement order, she is a cotenant entitled to partition the Residence. On cross

appeal, Blaylock complains that the trial court abused its discretion in denying his Rule 91a motion

to dismiss Koenig’s suit and awarding her attorney’s fees incurred in responding to the motion.

See Tex. R. Civ. P. 91a. We will reverse the trial court’s final judgment, render judgment granting

Blaylock’s Rule 91a motion to dismiss, and remand this cause for a determination of attorney’s fees

to be awarded to Blaylock as the prevailing party on his Rule 91a motion.
                                        BACKGROUND1

               Before Koenig and Blaylock were married, they acquired the Residence together

via general warranty deed, with Blaylock contributing $100,000 as a down payment and Koenig

contributing no down payment. Blaylock lived as a single man in the Residence from the time

of purchase until about the time the parties were married—half a year after acquiring the

Residence—at which time Koenig moved into the Residence and after which time she contributed

some amount of equity. The parties separated about a year and a half later with Koenig moving out

of the Residence and Blaylock continuing to live there. Four months later, the parties entered into a

mediated settlement agreement, which was incorporated into the family court’s final divorce decree.

Included among the decree’s provisions were the following:


       Residence

       IT IS ORDERED that the residence and all improvements location thereon . . . shall
       be awarded to Brian Blaylock on the following terms and conditions:

       1.      Ashlie Blaylock shall execute a marital deed transferring her ownership
               interest in the property to Brian Blaylock upon payment of the $61,500.00 to
               be paid by Brian Blaylock to Ashlie Blaylock and upon Brian Blaylock’s
               endorsement and payment of $22,500.00 from the sale of the Cadillac
               Escalade to Ashlie Blaylock.

       2.      Brian Blaylock shall execute a Deed of Trust to Secure Assumption in favor
               of Ashlie Blaylock.



       1
           The factual background is drawn from the trial court’s unchallenged findings of fact,
entered after the court held an evidentiary hearing on Koenig’s petition, as well as Koenig’s
pleadings and attachments thereto. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986)
(holding that when findings of fact are filed and are unchallenged, they occupy same position and
are entitled to same weight as verdict of jury and are binding unless there is no evidence to support
them or contrary is established as matter of law).

                                                 2
        3.         Brian Blaylock shall refinance the property in his name within 60 days
                   following the entry of the Final Decree of Divorce and shall upon the 60th
                   day from the entry of the decree of divorce pay to Ashlie Blaylock the sum
                   of $61,500.00.

        4.         On the date of the rendition of the Final Decree of Divorce, Brian Blaylock
                   shall endorse and turn over to Ashlie Blaylock, through her attorney, the
                   check which is the net proceeds from the sale of the Cadillac Escalade in the
                   amount of $22,500.00.


                   Some time after the final divorce decree was entered, Koenig filed a motion in

the family court to enforce the property division outlined in the decree, asking the court to order a

sale of the Residence or to enter a money judgment in the amount owed to her by Blaylock for the

Residence and alleging that he was in default of the decree by failing to refinance the Residence

and pay her the $61,500 within 60 days of the decree’s entry. The family court refused to order the

sale of the Residence but entered an enforcement order granting Koenig a money judgment against

Blaylock in the amount of $61,500, plus pre- and post-judgment interest and attorney’s fees.

                   Unable to collect on her judgment, Koenig filed the present partition suit against

Blaylock, seeking an order from the district court to sell the Residence and distribute to the parties

the net proceeds in accordance with their alleged undivided, equal ownership interests. Blaylock

filed a joint original answer, motion to dismiss under Texas Rule of Civil Procedure 91a, and request

for disclosure.2




       2
          Simultaneously, Blaylock filed a motion to recuse all sitting judges in Williamson County
from any further proceedings in the case asserting that, because Koenig serves as the Budget Officer
for Williamson County, “her position over the budget matters of the Courts can reasonably question
the impartiality of . . . any . . . sitting judge in Williamson County.” The court granted his motion
and assigned the cause to a visiting judge from another county.

                                                     3
               The court was unable to schedule a hearing on Blaylock’s Rule 91a motion to dismiss

until more than 45 days after he filed it. After the hearing, the trial court denied the motion on the

procedural ground that the court had not ruled on the motion with 45 days of its filing and awarded

attorney’s fees to Koenig as the prevailing party.3 Tex. R. Civ. P. 91a.3(c) (“A motion to dismiss

must be . . . granted or denied within 45 days after the motion is filed.”), 91a.7 (“[T]he court must

award the prevailing party on the [Rule 91a] motion all costs and reasonable and necessary attorney’s

fees incurred with respect to the challenged cause of action in the trial court.”). The cause proceeded

to an evidentiary hearing on the merits, after which the trial court denied Koenig’s partition

suit without specifying the grounds for its decision. Upon Koenig’s request, the trial court issued

Findings of Fact and Conclusions of Law.

               In three issues, Koenig contends that the trial court abused its discretion in denying

her partition suit by concluding that (a) she had no possessory rights to the Residence, foreclosing

the remedy of partition; and (b) her suit was barred by res judicata due to the prior divorce decree

and enforcement order. In three issues on cross appeal, Blaylock contends that the trial court erred

in denying his Rule 91a motion to dismiss, awarding Koenig attorney’s fees in responding to the

motion, and failing to award him attorney’s fees incurred in filing the motion. We will first address

Blaylock’s issues on cross appeal and then, if necessary, consider Koenig’s issues.




       3
          The trial court’s order denying Blaylock’s motion did not specify the reason for denial,
but its later-issued Findings of Fact and Conclusions of Law recited that “The Court denied
Defendant’s Motion to Dismiss because the hearing was held outside of the 45-day timeframe
specified by Rule 91a.3(c), although it was the first date made available to the parties after filing
the motion.”

                                                  4
                                           DISCUSSION

Rule 91a motion to dismiss

               In his first two issues on cross appeal, Blaylock contends that the trial court erred in

denying his Rule 91a motion to dismiss and in awarding Koenig attorney’s fees as the prevailing

party.4 See Tex. R. Civ. P. 91a.1 (“A party may move to dismiss a cause of action on the grounds

that it has no basis in law . . . if the allegations, taken as true, together with inferences reasonably

drawn from them, do not entitle the claimant to the relief sought.”). We will review the trial court’s

ruling on the motion de novo. See Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 183

(Tex. App.—Houston [14th Dist.] 2015, pet. denied); City of Austin v. Liberty Mut. Ins., 431 S.W.3d

817, 822 (Tex. App.—Austin 2014, no pet.); see also Wooley v. Schaffer, 447 S.W.3d 71, 76

(Tex. App.—Houston [14th Dist.] 2014, pet. denied) (noting that Rule 91a motions are analogous

to pleas to jurisdiction, which require court to determine whether pleader has alleged facts

demonstrating jurisdiction).

               The trial court denied Blaylock’s motion solely because the court did not rule on the

motion until more than 45 days after it was filed. See Tex. R. Civ. P. 91a.3(c). While it is true that

Rule 91a.3 provides that a motion to dismiss “must be . . . granted or denied within 45 days after the

motion is filed,” the Rule does not provide any consequences if a court takes no action on the motion

within the prescribed period. See id.; see also Tex. Gov’t Code § 22.004(g) (“The rules shall provide



       4
          Blaylock was not entitled to seek interlocutory review of the denial of his Rule 91a
motion because no statute permits interlocutory appeals from orders on such motions. See Bally
Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001) (noting that party may not appeal
interlocutory order unless authorized by statute); cf. Tex. Civ. Prac. & Rem. Code § 51.014 (listing
types of orders from which interlocutory appeal is available).

                                                   5
that the motion to dismiss shall be granted or denied within 45 days of the filing of the motion to

dismiss.”). Blaylock contends that it was error for the trial court to deny his motion on this non-

substantive, procedural ground because under the applicable statute and rule the time period during

which a court must rule on a motion is “directory” rather than “mandatory.”5 See Chisolm v. Bewley

Mills, 287 S.W.2d 943, 945 (Tex. 1956) (“If the statute directs, authorizes or commands an act to

be done within a certain time, the absence of words restraining the doing thereof afterwards or stating

the consequences of failure to act within the time specified, may be considered as a circumstance

tending to support a directory construction.”); Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380

(Tex. App.—Austin 1988, no writ) (“When determining whether a statutory time limit is mandatory

or directory, a court must consider the statute in its entirety, its nature and object, and the

consequences that would follow from each construction.”).

                We agree with Blaylock that the 45-day period during which a court “shall” deny

or grant a Rule 91a motion to dismiss is merely directory rather than mandatory. In the absence of

any “words restraining” action by the trial court beyond the time limit and the outlining of any

consequences for failure to act therein, see Chisolm, 287 S.W.2d at 945, it is more reasonable to

conclude that the time limit in this relatively new rule is not a hard deadline that prohibits the court

from considering the substance of the motion to dismiss after the expiration of the 45-day time

period but, rather, a provision included in the rule to promote the orderly and prompt dismissal


       5
         Koenig contends that Blaylock waived the right to complain about the trial court’s ruling
“by requesting that the hearing be set on a date 58 days after the motion was filed.” However,
because the record indicates that he made the trial court aware of his complaint about denial of his
motion on procedural grounds both before the court made a ruling and then, again, in a Motion to
Modify filed after the court issued its Findings of Fact and Conclusions of Law, Blaylock did not
waive this complaint. See Tex. R. App. P. 33.1(a).

                                                   6
of baseless causes of action. It is in the interest of justice and the orderly conduct of the courts for

baseless lawsuits to be dismissed sooner rather than later, but it is better for them to be dismissed

later rather than not at all. The mandatory reading embraced by the trial court and Koenig would

frustrate the legislative intent that a defendant be made whole through an award of its attorney’s fees

and costs incurred in successfully dismissing a baseless lawsuit.

                Furthermore, Koenig has not identified how a plaintiff in her position would be

prejudiced by a court’s ruling on a motion to dismiss after the 45-day period, nor can we imagine

any such prejudice. In fact, a plaintiff would have more time to formulate a response to a dismissal

argument, more time to amend a petition to add facts or adjust legal theories, and more time to

consider whether to non-suit her case. Cf. Tex. R. Civ. P. 91a.5 (providing that court may not

rule on motion if at least 3 days before hearing respondent files nonsuit of challenged cause of

action or movant files withdrawal of motion, and that if respondent amends challenged cause of

action at least 3 days before hearing, movant may file withdrawal of motion or amended motion);

Thuesen v. Amerisure Ins. Co., __ S.W.3d __, No. 14-14-00666-CV, 2016 WL 514404, at *7

(Tex. App.—Houston [14th Dist.] Feb. 9, 2016, no pet.) (holding that movant seeking attorney’s fees

and costs is not “prevailing party” within meaning of rule if claimant timely files nonsuit and

prevents ruling on motion). Conversely, a defendant would be prejudiced if a trial court were unable

to consider his motion to dismiss after the 45-day period, for instance by needlessly responding to

discovery before a summary-judgment motion could be heard. We conclude that the trial court erred

in denying Blaylock’s motion on the procedural basis of its ruling being outside the 45-day period

outlined in the rule and that it should have considered the substance of the motion. We now turn to

a de novo review of the merits of Blaylock’s Rule 91a motion.

                                                   7
                In conducting our review, we must construe the pleadings liberally in favor of the

plaintiff, look to the pleader’s intent, and accept as true the factual allegations in the pleadings to

determine if the cause of action has a basis in law or fact. Wooley, 447 S.W.3d at 76. We apply the

fair-notice pleading standard to determine whether the allegations of the petition are sufficient to

allege a cause of action. Id. In considering a Rule 91a motion, a court “may not consider evidence”

and “must decide the motion based solely on the pleading of the cause of action, together with any

pleading exhibits permitted by Rule 59.” Tex. R. Civ. P. 91a.6. Koenig attached an exhibit to her

petition containing a copy of the general warranty deed that, she contends, granted to her a cotenancy

in the Residence and entitles her to partition. In her response to Blaylock’s Rule 91a motion to

dismiss, Koenig attached additional exhibits in the form of: (1) a copy of the parties’ final divorce

decree and (2) a copy of the family court’s enforcement order.6 We may, therefore, consider the

divorce decree and enforcement order in our de novo review of the Rule 91a motion. See id.;

see also id. R. 59 (“Notes, accounts, bonds, mortgages, records, and all other written instruments,

constituting, in whole or in part, the claim sued on, or the matter set up in defense, may be made a

part of the pleadings by copies thereof, or the originals, being attached or filed and referred to as such

. . . and shall be deemed a part thereof for all purposes.”); Wooley, 447 S.W.3d at 74 (“The trial court

may not consider evidence in ruling on the motion and must decide the motion based solely on the

pleading of the cause of action, together with any exhibits permitted by Rule 59.”).



        6
         She also attached a copy of the family court’s enforcement order nunc pro tunc, which
contained substantively the same information as the enforcement order but clarified that Koenig was
awarded judgments against Blaylock in the amount of $61,500 plus pre- and post-judgment interest
and $16,832.50 plus interest for attorney’s fees. For convenience, we will henceforth refer to the
family court’s “enforcement order nunc pro tunc” as simply its “enforcement order.”

                                                    8
                The Family Code permits a party to reduce a divorce decree’s property award

to judgment. See Tex. Fam. Code § 9.010(b) (“If a party did not receive payments of money as

awarded in the decree of divorce or annulment, the court may render judgment against the defaulting

party for the amount of unpaid payments to which the party is entitled.”); DeGroot v. DeGroot,

369 S.W.3d 918, 923 (Tex. App.—Dallas 2012, no pet.) (holding that trial court properly reduced

property award in decree to money judgment pursuant to section 9.010); de la Garza v. de la Garza,

185 S.W.3d 924, 930 (Tex. App.—Dallas 2006, no pet.) (“A money judgment is a remedy available

to a spouse where the other spouse does not make payments as ordered in the divorce decree.”). The

decree here ordered Blaylock to pay Koenig $61,500; he defaulted on that payment; Koenig filed a

motion to enforce; and the family court rendered an enforcement order and judgment against

Blaylock for that very amount. See Tex. Fam. Code §§ 9.006(a) (“[T]he court may render further

orders to enforce the division of property made or approved in the decree . . . to assist in the

implementation of or to clarify the prior order.”), .007(a) (“An order to enforce the division is limited

to an order to assist in the implementation of or to clarify the prior order and may not alter or

change the substantive division of property.”). When Koenig petitioned the family court to enforce

the divorce decree and obtained a judgment for the $61,500 that she was awarded in the decree in

exchange for the award of the Residence to Blaylock, she was made whole by receiving the

very award to which she was entitled.7 Under these circumstances, the enforcement order served to

effectuate the property division in the decree, and Koenig may not now contend that she still has



        7
          If Koenig believed that the trial court erred in denying her partition request and instead
granting the money judgment, or that the court improperly modified the decree, she could have
appealed its enforcement order. However, neither she nor Blaylock appealed the enforcement order.

                                                   9
rights to the Residence awarded to Blaylock. On this record, we sustain Blaylock’s first two issues

on cross appeal8 and hold that the trial court erred in denying Blaylock’s Rule 91a motion to dismiss

because Koenig’s partition suit had no basis in law. See Tex. R. Civ. P. 91a.1; Savell v. Savell,

837 S.W.2d 836, 840 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (“In a suit to partition

land, a party must show joint ownership in the land and a present possessory interest.”).


Denial of Koenig’s partition suit

               As already discussed with respect to Blaylock’s cross issues, Koenig was not entitled

to partition because she has no enforceable property interest in the Residence, and the trial court

erred in denying Blaylock’s motion to dismiss. Accordingly, had the trial court properly granted

Blaylock’s motion, it would have been required to award him attorney’s fees and costs associated

with filing the motion, and the cause would not have proceeded further to a hearing on the merits.

See Tex. R. Civ. P. 91a.7; see also Tex. R. App. P. 43.2(c) (providing that appellate court may

“reverse the trial court’s judgment in whole or in part and render the judgment that the trial court

should have rendered”). Therefore, we need not reach Koenig’s issues on appeal.


                                          CONCLUSION

               We reverse the trial court’s final judgment, render judgment granting Blaylock’s

Rule 91a motion to dismiss and entitlement to attorney’s fees and costs incurred in filing the motion,




       8
         We need not reach Blaylock’s third issue, in which he contends that the trial court erred
in awarding Koenig attorney’s fees in responding to the Rule 91a motion because she did not
produce documentation of her attorney’s time records in response to his requests for disclosure.

                                                 10
and remand this cause for a determination of the amount of attorney’s fees and costs to be awarded

to Blaylock.



                                              __________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Goodwin, and Field

Reversed and Rendered in part; Remanded in part

Filed: July 1, 2016




                                                11
