AFFIRM; and Opinion Filed July 29, 2014.




                                       S   In The
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                    No. 05-12-01523-CV

                                 BBP SUB I LP, Appellant
                                           V.
                                JOHN DI TUCCI, Appellee

                      On Appeal from the 14th Judicial District Court
                                  Dallas County, Texas
                           Trial Court Cause No. 11-13991-A

                           MEMORANDUM OPINION
                          Before Justices Fillmore, Evans, and Lewis
                                 Opinion by Justice Fillmore
       Appellant BBP Sub I LP (BBP) appeals the trial court’s amended summary judgment

awarding appellee John DiTucci (DiTucci) attorney’s fees pursuant to the Texas Theft Liability

Act (TTLA). We affirm the trial court’s judgment.

                                        Background

       In July 2010, BBP entered into an agreement to lease commercial real property in Austin,

Texas to U.S. Courier and Logistics, L.P. (USC). The lease commenced on September 1, 2010,

and the term of the lease was seventy-two months. DiTucci signed the lease agreement in his

representative capacity as the manager of USC’s general partner. The agreement provided for a

landlord’s lien on, and security interest in, all property, including fixtures, equipment, and

chattels, owned by USC that were placed or used on the premises. In December 2010, Timeline

Logistics, Inc. (Timeline) acquired USC. According to BBP, it was informed in September 2011
that USC/Timeline had no intention of occupying the premises after October 1, 2011, and all of

USC’s personal property was removed from the premises before the lease was terminated.

         BBP sued USC, Timeline, and DiTucci asserting several causes of action, including an

alleged violation of the TTLA relating to the removal of USC’s personal property from the

premises. DiTucci filed a counterclaim against BBP for attorney’s fees under section 134.005 of

the TTLA. Section 134.005(b) of the TTLA provides that “[e]ach person who prevails in a suit

under this chapter shall be awarded court costs and reasonable and necessary attorney’s fees.”

See TEX. CIV. PRAC. & REM. CODE § 134.005(b) (West 2011).

         DiTucci filed a traditional motion for summary judgment on all claims asserted against

him by BBP and for recovery of his attorney’s fees under section 134.005 of the TTLA. Four

days later, BBP filed an amended petition omitting its cause of action for violation of the TTLA.

BBP filed a response to DeTucci’s motion for summary judgment, in which it contended that its

first amended petition had the effect of a nonsuit without prejudice of its TTLA claim, and

DiTucci’s counterclaim for attorney’s fees was moot because the TTLA claim “no longer

exist[ed].” DiTucci filed an amended motion for summary judgment, and asserted that he was

the prevailing party under the TTLA and thus entitled to his attorney’s fees. The trial court

granted DiTucci’s motion for summary judgment, but reserved the issue of attorney’s fees for a

later hearing. After a hearing on DiTucci’s claim for attorney’s fees under section 134.005 of the

TTLA, the trial court signed an order awarding DiTucci his attorney’s fees. BBP appealed that

order.

         At the time BBP appealed the order awarding DiTucci his attorney’s fees, the order was

interlocutory because a final judgment had not been entered in the case. BBP’s notice of appeal

stated that “[b]ecause the challenged order is interlocutory and cannot be appealed until final

judgment is granted, this Notice of Appeal shall become effective on the day that final judgment

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is signed in this lawsuit per [Texas Rule of Appellate Procedure] 27.1(a).” Because the appellate

record did not reflect that the judgment appealed from had become final, we requested a

supplemental clerk’s record in the proceeding below.

       The clerk filed a supplemental record on July 18, 2014 containing (1) a November 28,

2012 Amended Judgment Against U.S. Courier & Logistics, LP. that specifically states it is

interlocutory because BBP’s causes of action against Timeline Logistics, Inc. remain unresolved,

(2) BBP’s Notice of Non-Suit Without Prejudice of Timeline Logistics, Inc. filed on April 24,

2013, and (3) an April 25, 2013 Order of Non-Suit Without Prejudice of the lawsuit. The Order

of Non-Suit specifically provides that it concludes this lawsuit. Because the record reflects the

trial court has made a disposition with respect to all parties and claims in the lawsuit, we have

jurisdiction and may now address BBP’s complaint on appeal. See Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 195 (Tex. 2001) (appellate courts only have jurisdiction to review final

judgments and certain interlocutor orders identified by statute).

                                            Discussion

       In its sole issue on appeal, BBP argues the trial court erred by awarding DiTucci

attorney’s fees pursuant to section 134.005(b) of the TTLA because DiTucci was not a “person

who prevail[ed]” under the statute. Whether a party is entitled to recover attorney’s fees under a

particular statute is a question of law. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94

(Tex. 1999) (per curiam) (statutory construction is a question of law) (citing Johnson v. City of

Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989)). We review this issue de novo. Spector, Gadon

& Rosen, P.C. v. Sw. Securities, Inc., 372 S.W.3d 244, 248 (Tex. App.—Dallas 2012, no pet.);

Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762, 766 (Tex. App.—Dallas 2007, no pet.).

       Texas follows the “American Rule” with respect to attorney’s fees. MBM Fin. Corp. v.

Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). Under that rule, litigants may

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recover attorney’s fees only if specifically provided for by statute or contract. Id. BBP agrees

that the “person who prevails” in a suit under the TTLA is entitled to recover reasonable and

necessary attorney’s fees. See TEX. CIV. PRAC. & REM. CODE § 134.005(b); see also Bouquet v.

Herring, 972 S.W.2d 19, 20 (Tex. 1990) (statutes providing that party “may recover,” “shall be

awarded,” or “is entitled” to attorney’s fees are not discretionary). However, BBP asserts that

because it voluntarily nonsuited the TTLA claim, DiTucci was not a prevailing party under the

TTLA, and therefore was not entitled to recover attorney’s fees under that statute.

       A plaintiff may nonsuit at any time before introducing all of its evidence other than

rebuttal evidence. TEX. R. CIV. P. 162. In civil cases, generally, filing an amended petition that

does not include a previously asserted cause of action “effectively nonsuits or voluntarily

dismisses the omitted claim” from the moment the amended pleading is filed. FKM P’ship, Ltd.

v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 632–33 (Tex. 2008). However, an

amended petition effectively nonsuiting a claim does not affect a trial court’s jurisdiction to

address collateral matters, such as a pending claim for affirmative relief or a motion for

attorney’s fees or sanctions. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010);

see also TEX. R. CIV. P. 162.

       The phrase “person who prevails,” as used in section 134.005(b) of the TTLA, is not

defined in the TTLA, and no other provision of the Act sheds light on the meaning of the phrase.

See TEX. CIV. PRAC. & REM. CODE § 134.005(b). In Epps v. Fowler, 351 S.W.3d 862 (Tex.

2011), the Texas Supreme Court construed an attorney’s fee provision in a contract to determine

whether a defendant was a prevailing party when the plaintiff nonsuited his claims without

prejudice. Generally, a defendant would not be considered a prevailing party when the plaintiff

nonsuits a claim without prejudice. Id. at 869. However, the court took notice of “the disfavor

[its] cases have displayed toward nonsuits that are filed to circumvent unfavorable legal

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restrictions or rulings.” Id. at 870. Accordingly, the court held that “a defendant may be a

prevailing party when a plaintiff nonsuits without prejudice if the trial court determines, on the

defendant’s motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.” Id.

In Epps, the court noted that “federal courts have tended to place great weight upon the fact that

a plaintiff’s nonsuit has followed closely on the heels of a defendant’s potentially dispositive

motion.” Id.; see also Dean v. Riser, 240 F.3d 505, 511 (5th Cir. 2001) (defendant is not a

prevailing party unless the defendant can establish that the plaintiff dismissed its claim in order

to escape unfavorable ruling on the merits); Hilborn v. Klein Indep. Sch. Dist., No. H-09-840,

2010 WL 1463472, at *3 (S.D. Tex. Apr. 12, 2010) (defendants were prevailing parties when

plaintiff sought dismissal only after the defendants presented uncontested affidavits establishing

plaintiff had no viable First Amendment claim); Butler v. MBNA Tech., No. 3:02-CV-1715-H,

2004 WL 389101, at *5 (N.D. Tex. March 1, 2004) (plaintiff nonsuited only after defendants

moved for summary judgment, and timing of dismissal indicated it was not motivated by failure

to uncover evidence supporting claims in discovery, but instead, suggested was to escape

unfavorable judgment).

       BBP contends DiTucci is not entitled to recover attorney’s fees because he is not a

prevailing party under the TTLA. Specifically, BBP argues that because it voluntarily nonsuited

the TTLA claim without prejudice, there was no longer a TTLA claim upon which DiTucci

could prevail. DiTucci argues that the trial court properly determined that BBP filed its amended

petition omitting the TTLA claim to avoid an unfavorable ruling on the merits after he filed his

motion for summary judgment, and, therefore, he was entitled to recover his attorney’s fees

under the TTLA.

       BBP filed its amended petition effectively nonsuiting the TTLA claim against DiTucci

without prejudice within days after DiTucci filed his motion for summary judgment. Attached to

                                               –5–
DiTucci’s motion for summary judgment was DiTucci’s affidavit in which he attested he had no

control over USC’s personal property that was subject of the TTLA claim BBP had asserted.

BBP’s amended pleading, filed “closely on the heels” of DiTucci’s motion for summary

judgment, supports an inference that the nonsuit was filed to avoid an unfavorable ruling on the

merits. See Epps, 351 S.W.3d at 870; see also Hilborn, 2010 WL 1463472, at *3 (defendants

were prevailing parties when the plaintiff sought dismissal only after the defendants presented

uncontested affidavits establishing that the plaintiff had no viable First Amendment claim).

             A defendant is entitled to attorney’s fees under the TTLA as a “person who prevails”

after a plaintiff voluntarily nonsuits without prejudice, if the trial court determines on

defendant’s motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.

Epps, 351 S.W. 3d at 869–70. After a hearing on the issue of attorney’s fees, the trial court

awarded DiTucci attorney’s fees under the TTLA. The record reflects that the trial court based

its decision on a determination that BBP nonsuited its TTLA claim in order to avoid an

unfavorable ruling. 1 During that hearing, BBP acknowledged that there was not a trial on the

merits of its TTLA claim because, by nonsuiting that claim, BBP basically cried “Uncle.” 2 See

Epps, 351 S.W.3d at 870. The trial court’s implied finding that BBP voluntarily dismissed the

TTLA claim to avoid an unfavorable judgment on the merits is supported by the record.




     1
       At oral submission, BBP argued the trial court made no formal finding that BBP nonsuited its TTLA claim to avoid an unfavorable ruling
on the merits. BBP did not raise this argument in its appellate brief. See TEX. R. APP. P. 38(h) (appellant’s brief must contain clear, concise
argument for contentions made, with appropriate citations to authorities to the record). This argument has not been preserved for appellate
review. See Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.).
     2
         At the hearing on attorney’s fees, the following exchange occurred between the trial court and counsel for BBP:
             Counsel for BBP:      If we had a trial on the merits and there’s evidence presented that who [sic] should prevail on the TTLA claim
                                   and then there was adjudicated [sic] after that, I would agree that would be the prevailing party.
             Trial Judge:          Isn’t the only reason we didn’t have [a trial on the merits of the TTLA claim] is because you, by filing your
                                   nonsuit, basically said “Uncle?”

             Counsel for BBP:      That’s exactly right, Judge, but–.




                                                                        –6–
       The TTLA provides that the “person who prevails” is entitled to recover reasonable and

necessary attorney’s fees. On this record, we conclude the trial court did not err by awarding

attorney’s fees to DiTucci pursuant to the TTLA because DiTucci was the prevailing party under

section 134.005(b) of the TTLA. See TEX. CIV. PRAC. & REM. CODE § 134.005(b); Epps, 351

S.W.3d at 870. We resolve BBP’s sole issue against it and affirm the trial court’s judgment.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE



121523F.P05




                                              –7–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

BBP SUB I LP, Appellant                               On Appeal from the 14th Judicial District
                                                      Court, Dallas County, Texas,
No. 05-12-01523-CV         V.                         Trial Court Cause No. 11-13991-A.
                                                      Opinion delivered by Justice Fillmore,
JOHN DI TUCCI, Appellee                               Justices Evans and Lewis participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee John DiTucci recover his costs of this appeal from
appellant BBP Sub I LP.


Judgment entered this 29th day of July, 2014.




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