      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00592-CV



                      Mark Polansky and Landrah Polansky, Appellants

                                                  v.

                        Pezhman Berenji and John Berenjy, Appellees1


           FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
            NO. 10-1472-CC4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING



                                            OPINION


               Appellants Mark and Landrah Polansky appeal from the trial court’s order granting

summary judgment and awarding attorneys’ fees of $1,000 to appellees Pezhman Berenji and John

Berenjy (collectively, the “Builders”). In two issues, the Polanskys assert that the trial court erred

by (1) granting summary judgment after they had nonsuited their claims and (2) awarding attorneys’

fees to the Builders because no legal basis existed for the fee award and the Builders had no

affirmative claim for relief or viable motion for fees pending at the time of the nonsuit. We will

reverse and render judgment that the Polanskys’ claim is dismissed without prejudice and the

Builders take nothing in attorneys’ fees.




       1
          This case was originally styled Mark Polansky and Landrah Polansky, Appellants v.
Pezhman Berenji, John Berenjy, and Johnny S. Ramirez, Appellees. We have amended the style of
the case. Ramirez is not a party to this appeal because the order from which the Polanskys appeal
is the order granting Pezhman Berenji and John Berenjy’s motion for summary judgment.
                                         BACKGROUND

               In October 2010, the Polanskys sued the Builders and Johnny S. Ramirez for breach

of a contract to build the Polanskys’ house. The Builders answered with a general denial, but also

included a request for “costs of court, attorney’s fees, and such other and further relief as [the

Builders] may be entitled to in law and equity,” if the court entered judgment in their favor.

               On June 13, 2011, the Builders moved for a no-evidence summary judgment. They

asserted that (1) an adequate time for discovery had passed and the Polanskys had answered

discovery on December 9, 2010, (2) Landrah Polansky had failed to appear for a deposition noticed

for June 2, 2011, (3) the Polanskys had failed to respond to a proper discovery request and thus were

in contempt, and (4) the Polanskys could not produce evidence of any of the elements of their

breach-of-contract claim, including evidence of a contract. The Builders requested that the court

grant their summary-judgment motion and “dismiss [the Polanskys’] claims with prejudice to refiling

of same and that the [c]ourt award [the Builders] reasonable and necessary attorney’s fees incurred

in this matter.” (Emphasis added.) The Builders did not, however, state a statutory or contractual

basis for their request for attorneys’ fees or move for sanctions.

               The Polanskys filed a notice of nonsuit and asked that the court “enter a nonsuit

without prejudice on all claims pending against Defendants” on June 30, 2011. On the same day,

the Builders filed a response to the notice of nonsuit, in which they asserted that the Polanskys

“cannot nonsuit [the Builders’] attorney’s fees claims NOR their summary judgment motion, which

includes attorney’s fees for failure to show up at the properly noticed deposition.” The Builders

argued that Texas Rule of Civil Procedure 162 makes clear that a nonsuit has no effect on “any



                                                  2
motion for sanctions, attorney’s fees or other costs.” They also argued that a court does not lose

jurisdiction to sanction a party for discovery abuse even after a nonsuit is filed and granted, citing

In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (orig. proceeding) (per curiam). The Builders stated

their intent to appear “at the summary judgment hearing asking for lawyer’s fees as both the motion

and pleadings do” and noted that the hearing was set for July 6, 2011. (Emphasis added.)

               On July 6, 2011, the trial court granted summary judgment for the Builders and

awarded them $1,000 in attorneys’ fees.2 The Polanskys filed a motion for new trial in which they

asserted two grounds. First, they argued that the trial court was without jurisdiction to grant

summary judgment because they had nonsuited their claims. Second, they argued that the trial court

should not have granted attorneys’ fees because the Builders’ summary-judgment motion had not

requested sanctions and the Builders had not produced evidence of the alleged sanctionable conduct

or the amount, reasonableness, or necessity of the attorneys’ fees.

               The Builders responded to the motion for new trial. In their response, they focused

on case law that they asserted supports the proposition that the requests for attorneys’ fees in their

answer and their summary-judgment motion constitute an affirmative claim for relief that is not

affected by a nonsuit. They conceded that the attorneys’ fees award was not a sanction for Landrah




       2
          The Polanskys noted in their motion for new trial that the court erroneously dated the order
“June 6, 2011” and requested that the trial court modify the order to reflect the “July 6, 2011” date
that the motion was actually heard. No modified order appears in the record. We note that the
motion for summary judgment was filed on June 13, 2011—after June 6, 2011. Furthermore, the
docket sheet reflects that a hearing on a motion for summary judgment was held on July 6, 2011 at
9:00 a.m. Also, the Builders did not file a brief and thus have not challenged any of the Polanskys’
representations in their Statement of Facts. See Tex. R. App. P. 38.1(g) (court accepts facts stated
as true unless another party contradicts them).

                                                  3
Polansky’s failure to appear at a deposition, stating that the certificate of non-appearance was part

of the record and that the trial court could still “and perhaps should still add to the judgment” by

sanctioning Landrah’s failure to appear.3 In other words, they acknowledged that the court had not

considered evidence of Landrah’s failure to appear at a deposition when ruling on the summary-

judgment motion, but asserted that it could still do so in the future.

                In reply, the Polanskys asserted that the Builders had not argued—because they

could not—that the trial court properly granted summary judgment on the merits of the claims that

the Polanskys had nonsuited. They also argued that the Builders’ request for attorneys’ fees was not

an independent claim (unlike the statutory fee claims in the cases cited by the Builders) and that

they had failed to plead or prove any basis for a fee award. They further challenged the Builders’

assertion that the summary-judgment motion amounted to a request for sanctions because no request

for sanctions had been made in the motion or set for hearing on the date of the hearing on the

summary-judgment motion.

                The motion for new trial was overruled by operation of law on September 20, 2011.

This appeal followed.


                                           DISCUSSION

                The Polanskys challenge the trial court’s order on two grounds. First, they contend

that the trial court erred by granting summary judgment on their breach-of-contract claim after they

filed their notice of nonsuit because the nonsuit immediately rendered the merits of the claim moot.




       3
           For clarity, when we refer to the Polanskys individually, we will use their first names.

                                                  4
Second, they assert that the trial court erred by awarding attorneys’ fees to the Builders because there

was no legal basis for the award and no active claim for affirmative relief or viable motion for

attorneys’ fees pending at the time of the nonsuit.


Law governing nonsuits under Texas Rule of Civil Procedure 162

                Under Texas Rule of Civil Procedure 162, “[a]t any time before the plaintiff has

introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take

a non-suit, which shall be entered in the minutes.” The granting of a nonsuit is merely a ministerial

act, and the trial court generally has no discretion to refuse to dismiss the suit. University of Tex.

Med. Branch at Galveston v. Estate of Darla Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex.

2006) (per curiam). A nonsuit is effective when it is filed; it “extinguishes a case or controversy

from ‘the moment the motion is filed’ or an oral motion is made in open court.” Id. “It renders the

merits of the nonsuited case moot.” Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

Although rule 162 allows the trial court to hold hearings and enter orders affecting costs, attorneys’

fees, and sanctions after a nonsuit is filed, the rule “does not forestall the nonsuit’s effect of

rendering the merits of the case moot.” University of Tex. Med. Branch, 195 S.W.3d at 101.

                Although the nonsuit immediately renders the merits of the case moot, the trial court

need not immediately dismiss the suit when notice of nonsuit is filed. Id. Rule 162 provides that

the plaintiff’s right to nonsuit “shall not prejudice the right of an adverse party to be heard on a

pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk.” Tex. R.

Civ. P. 162; see also University of Tex. Med. Branch, 195 S.W.3d at 100. A claim for affirmative

relief must allege a cause of action—independent of the plaintiff’s claim—upon which the claimant

                                                   5
could recover compensation or relief even if the plaintiff abandons or is unable to establish his cause

of action. University of Tex. Med. Branch, 195 S.W.3d at 101. In addition, a dismissal “shall have

no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of

dismissal.” Tex. R. Civ. P. 162.

               We first turn to the second issue raised by the Polanskys to determine whether the

Builders’ claim for attorneys’ fees constituted a pending claim for affirmative relief at the time of

the nonsuit before we address the trial court’s decision to grant summary judgment on the merits.4


Award of attorneys’ fees

               We review a trial court’s award of attorneys’ fees for abuse of discretion. See

Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996) (orig. proceeding). We

also review a trial court’s imposition of sanctions for abuse of discretion. See Cire v. Cummings,

134 S.W.3d 835, 838 (Tex. 2004). A trial court abuses its discretion if its decision is arbitrary,

unreasonable, and without reference to guiding principles, or if it rules without supporting evidence.

Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (per curiam). We will review the

record to determine whether the trial court followed guiding rules and principles. Id. The trial court

does not abuse its discretion if it bases its decision on conflicting evidence and some evidence




       4
          We need not separately address whether the Builders had a viable motion for attorneys’
fees pending at the time of the nonsuit because we necessarily will address that point when deciding
whether their request for fees was a claim for affirmative relief. See University of Tex. Med. Branch
at Galveston v. Estate of Darla Blackmon ex rel. Shultz, 195 S.W.3d 98, 100-01 (Tex. 2006) (per
curiam) (explaining that rule 162 protects substantive right of party to be heard on claim for
affirmative relief after nonsuit and also provides trial court with discretion to defer signing order of
dismissal for reasonable time to hold hearings on matters collateral to merits).

                                                   6
supports its decision. Id. But if its decision is contrary to the only permissible view of probative,

properly admitted evidence, then we must find that the trial court has abused its discretion. Id.

                A claim for attorneys’ 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. See Villafani v. Trejo, 251 S.W.3d 466, 470 (Tex.

2008) (citing Leon Springs Gas Co. v. Restaurant Equip. Leasing Co., 961 S.W.2d 574, 578

(Tex. App.—San Antonio 1997, no pet.)). At the time the Polanskys nonsuited their breach-of-

contract claim, the Builders’ only live pleadings were their original answer and their no-evidence

summary-judgment motion. In the answer, the Builders requested attorneys’ fees in their prayer.

In the conclusion of their summary-judgment motion, the Builders requested that they be awarded

reasonable and necessary attorneys’ fees “incurred in this matter.” Neither the answer nor the

motion stated any basis for the requested award. After the summary-judgment hearing, the trial

court awarded attorneys’ fees to the Builders in the amount of $1,000, “jointly and severally against

[the Polanskys],” without stating the basis for the fee award.

                We first consider whether the Builders’ claim for attorneys’ fees was based on an

independent ground. Texas law does not allow recovery of attorneys’ fees unless authorized by

statute or by contract. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006)

(“Absent a contract or statute, trial courts do not have inherent authority to require a losing party

to pay the prevailing party’s fees.”). Although both the Builders’ answer and motion requested

attorneys’ fees, neither pleading stated a statutory or contractual basis for the attorneys’ fees request.

                The Polanskys’ only claim was a breach-of-contract claim. In their petition, they

sought attorneys’ fees under chapter 38 of the civil practices and remedies code. See Tex. Civ. Prac.

                                                    7
& Rem. Code § 38.001(8) (West 2008) (establishing that person may recover reasonable attorney’s

fees in addition to amount of valid claim and costs if claim is based on oral or written contract). A

claim for attorneys’ fees made in connection with a contract dispute is only a claim for affirmative

relief if it is made in connection with a claim for damages under the contract. See Leon Springs,

961 S.W.2d at 578.

               In this case, the Builders made no claim for damages connected with the underlying

contract; they answered the Polanskys’ breach-of-contract claim with a general denial and did not

present any claim of their own. Chapter 38 does not provide for recovery of attorneys’ fees by

defendants who only defend against a plaintiff’s contract claim and do not present their own

contract claim. See American Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545, 547 (Tex. 1986) (holding

defendant could not recover attorneys’ fees under predecessor to statute 38.001 when defendant

did not present contract claim); see also, e.g., Brockie v. Webb, 244 S.W.3d 905, 910 (Tex.

App.—Dallas 2008, pet. denied) (“Section 38.001 does not provide for attorney’s fees in the

pure defense of a claim.”); Energen Resources MAQ, Inc. v. Dalbosco, 23 S.W.3d 551, 558 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied) (holding defendant that did not present its own

claim under chapter 38 could not recover attorneys’ fees). Therefore, even if it had been asserted,

chapter 38 does not provide any basis for the trial court’s award of attorneys’ fees, and the Builders

have no claim for affirmative relief under chapter 38. The trial court abused its discretion to the

extent that it awarded the Builders their attorneys’ fees as the prevailing parties without a statutory

or contractual basis to do so.




                                                  8
               We will also consider whether the trial court could have properly awarded attorneys’

fees as sanctions based on the Builders’ summary-judgment motion. The Builders’ response to the

nonsuit appears to seek to have their summary-judgment motion construed as a motion for sanctions.

Although in their summary-judgment motion the Builders did not move for sanctions or identify any

rule or statute under which they sought sanctions, they asserted in their nonsuit response that the

Polanskys “cannot nonsuit [the Builders’] attorney’s fees claims NOR their summary judgment

motion, which includes attorney’s fees for failure to show up at the properly noticed deposition.”

(Emphasis added.) But they again failed in their nonsuit response to move for sanctions or to

identify any statute or rule as the basis for a motion for sanctions, attorneys’ fees, or other costs.

And while the Builders’ summary-judgment motion suggests that Landrah was in contempt for

failure to appear at a deposition, the motion seeks only attorneys’ fees “incurred in this matter”—not

attorneys’ fees as sanctions for Landrah’s failure to appear. (Emphasis added.) Even if we were

to construe the Builders’ motion as a motion for sanctions, a trial court may not award sanctions

on a basis not asserted in the motion. See Greene v. Young, 174 S.W.3d 291, 298-301 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied) (reversing sanctions awarded because parties did not

have notice of legal basis or conduct under consideration for sanctions); Ball v. Rao, 48 S.W.3d 332,

338 (Tex. App.—Fort Worth 2001, pet. denied) (holding trial court erred by imposing sanctions

under section 9 of civil practice and remedies code because claim for sanctions was based solely on

section 10 of code and rule 13 of rules of civil procedure). Neither the summary-judgment motion

nor the response to the nonsuit sets forth a basis or includes a motion for sanctions.




                                                  9
               The Builders also pointed out in their nonsuit response that a court does not lose

jurisdiction to sanction a party for discovery abuse even after a nonsuit is filed and granted, citing

In re Bennett, 960 S.W.2d at 38. See also Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594,

596-97 (Tex. 1996) (per curiam) (noting that whether sanction survives nonsuit depends on purpose

served by imposing sanction). But the Builders did not move for sanctions after the nonsuit was

filed. Moreover, nothing in the record indicates that the trial court considered either the summary-

judgment motion or the response to the nonsuit as a motion for sanctions. The Builders did not

attach any evidence supporting a motion for sanctions to either the summary-judgment motion or the

response to the nonsuit. The summary-judgment hearing was not an evidentiary hearing. The trial

court’s order does not mention sanctions.

               In addition, although the Builders filed a certificate of non-appearance with the trial

court on June 21, 2011, the certificate was not part of the summary-judgment record. And it is clear

from the Builders’ reference to it in a pleading filed after the order that the trial court did not

consider the certificate at the summary-judgment hearing on July 6, 2011, and that the trial court did

not award attorneys’ fees as sanctions for Landrah’s failure to appear at a deposition. The Builders

stated in their response to the Polanskys’ motion for new trial that:


       [T]he Polanskys should be careful pursuing this Motion [for New Trial], because a
       third prong of Texas law provides that a Court may issue sanctions for discovery
       abuse against any party even after a judgment has been rendered and it is clear by
       the Certificate of Non-Appearance filed with the Court on June 21, 2011 and part
       of the court’s record that Landrah Polansky failed to appear at a duly noticed
       deposition—the Court can and perhaps still should add to the judgment for the Non-
       Movants by sanctioning this admittedly abusive behavior.



                                                 10
(Emphasis added.) The Builders did not, however, move for sanctions after the trial court rendered

its judgment. Therefore, to the extent that the trial court awarded sanctions on a rule or statutory

basis never asserted by the Builders in a motion for sanctions and without supporting evidence, it

abused its discretion. See Greene, 174 S.W.3d at 299-301; Unifund CCR, 299 S.W.3d at 98 (holding

trial court abused discretion by assessing sanctions without supporting evidence).

                Because we must consider “whether the court acted without reference to any guiding

rules and principles,” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985),

we will also consider whether the trial court could have appropriately imposed sanctions on its

own initiative without a motion. A court may impose sanctions on its own initiative under civil

practice and remedies code chapter 10, Texas Rules of Civil Procedure 13 and 191.3, and its own

inherent power, but it first must provide notice and a show-cause hearing to the person to be

sanctioned. See Tex. Civ. Prac. & Rem. Code Ann. §§ 10.002(b), .003 (West 2002); Tex. R. Civ.

P. 13; see also In re Bennett, 960 S.W.2d at 40; Greene, 174 S.W.3d at 298 (“The traditional due

process protections of notice and hearing are also required before a trial court can impose sanctions

on a party pursuant to its inherent power to sanction.”). Furthermore, “[a] court cannot invoke its

inherent power to sanction without some evidence and factual findings that the conduct complained

of significantly interfered with the court’s legitimate exercise of one of its traditional core functions.”

Kennedy v. Kennedy, 125 S.W.3d 14, 19 (Tex. App.—Austin 2002, pet. denied).

                In this case, it is undisputed that the trial court never noticed or held a court-initiated

evidentiary hearing on sanctions. The order is entitled “Order Granting Summary Judgment,” and

it notes that “a hearing was held on the Motion for Summary Judgment” and that the court grants

                                                    11
“this Motion.” Nevertheless, to the extent that the trial court imposed sanctions on its own initiative

without (1) notice issued before the hearing, (2) an evidentiary hearing, or (3) factual findings, it

abused its discretion. See Unifund CCR, 299 S.W.3d at 98 (holding trial court abused its discretion

by assessing sanctions based on inadmissible document); Kennedy, 125 S.W.3d at 19 (holding court

erred by striking pleadings without evidence that complained-of conduct significantly interfered with

court’s legitimate exercise of traditional core function).

               There is no evidence in the record that shows the trial court followed guiding rules

and principles in awarding attorneys’ fees. See Unifund CCR, 299 S.W.3d at 97. From the record

before us, we cannot reasonably conclude that the trial court’s award of attorneys’ fees was based

on an independent ground or sanction. We conclude that there was no legal basis for awarding

attorneys’ fees and that the Builders did not have an active claim for affirmative relief or a viable

motion for attorneys’ fees pending at the time of the nonsuit. Consequently, we find the trial court

abused its discretion in awarding $1,000 in attorneys’ fees to the Builders. Therefore, we sustain

the Polanskys’ second issue. We will reverse the award of $1,000 in attorneys’ fees and render

judgment that the Builders take nothing.


Grant of summary judgment after nonsuit filed

               We now turn to the Polanskys’ first issue challenging the trial court’s grant of the

Builders’ no-evidence summary-judgment motion after the Polanskys filed the notice of nonsuit.

The Builders filed a response to the nonsuit in which they argued that the Polanskys could not

nonsuit the Builders’ summary-judgment motion or the Builders’ requests for attorneys’ fees. The



                                                  12
Builders continued to argue in their response to the Polanskys’ motion for new trial that the nonsuit

did not dispose of the Builders’ summary-judgment motion and answer because in those pleadings

they made an affirmative claim for attorneys’ fees, which was not affected by the Polanskys’ nonsuit.

               Under rule 162, “[i]f a defendant does nothing more than resist plaintiff’s right to

recover, the plaintiff has an absolute right to the nonsuit.” General Land Office v. OXY U.S.A. Inc.,

789 S.W.2d 569, 570 (Tex. 1990). As stated above, unless the Builders have alleged a cause of

action upon which they could recover independent of the Polanskys’ claim, they have not stated

a claim for affirmative relief that precludes a nonsuit. See id. The Builders never asserted any

counterclaims or affirmative defenses. The non-specific request in their answer and summary-

judgment motion for attorneys’ fees is the only request that could potentially constitute a claim for

affirmative relief. As discussed above, the Builders’ claim for attorneys’ fees was not a claim for

affirmative relief independent of the Polanskys’ claim, and the Builders did not have a viable motion

for attorneys’ fees or sanctions pending at the time of the nonsuit. Thus, the Polanskys were entitled

to a dismissal without prejudice of their breach-of-contract claim against the Builders immediately

upon filing the nonsuit. See Fowler v. Epps, 352 S.W.3d 1, 3-4 (Tex. App.—Austin 2010) (holding

court erred by disposing of plaintiffs’ claims on merits after nonsuit filed instead of dismissing case

without prejudice), rev’d on other grounds, 351 S.W.3d 862, 864 (Tex. 2011). The trial court erred

by granting summary judgment and dismissing the Polanskys’ breach-of-contract claim with

prejudice. We sustain the Polanskys’ first issue. We will reverse the trial court’s judgment and

render judgment that the Polanskys’ breach-of-contract claim is dismissed without prejudice.




                                                  13
                                          CONCLUSION

               Having sustained the Polanskys’ issues on appeal, we reverse the district

court’s judgment. We render judgment that the Polanskys’ claim is dismissed without prejudice and

that the Builders take nothing in attorneys’ fees.5



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Justices Puryear, Pemberton and Henson
 Concurring Opinion by Justice Pemberton

Reversed and Rendered

Filed: December 7, 2012




       5
          The Polanskys have requested that we render an order tolling the statute of limitations on
their claims from June 30, 2011 until the date of this opinion. We lack jurisdiction to decide whether
the statute of limitations would be tolled and will not issue an advisory opinion on that issue. See
O’Neal v. Ector Cnty. Indep. Sch. Dist., 221 S.W.3d 286, 291-92 (Tex. App.—Eastland 2006)
(holding limitations issue would not be a ripe controversy until party refiled claims after exhausting
administrative remedies and opposing party raised limitations as defense), aff’d on other grounds,
251 S.W.3d 50 (Tex. 2008) (per curiam).

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