Affirmed and Memorandum Opinion filed August 28, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00428-CV

                  SOLUM ENGINEERING, INC., Appellant
                                        V.

    MARTHA M.J. STARICH AKA MARIE J. STARICH AND LORI A.
                      HOOD, Appellees

                    On Appeal from the 61st District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-35151

                  MEMORANDUM OPINION


      Appellant Solum Engineering, Inc. sued appellees Martha Starich and Lori
Hood in Fort Bend County. After the suit was transferred to the 61st District Court
of Harris County, the court imposed monetary sanctions against Solum, ordering it
to pay $7,500 to Hood for fees and costs. In this appeal, Solum complains that the
court’s order imposing sanctions is void as a matter of law. We affirm.
                                          BACKGROUND

       Solum sued Starich and Hood for breaches of fiduciary duty in Fort Bend
County, and the 434th District Court transferred the suit to Harris County on June
3, 2011.1 Ten days later, the District Clerk gave notice to all parties that the case
would be dismissed under Rule 89 of the Texas Rules of Civil Procedure if Solum
did not pay its filing fee within thirty days. 2 Solum did not pay the filing fee.

       Hood filed a motion for summary judgment and a motion for sanctions on
August 1. On August 15, Starich moved to dismiss the case, citing Rule 89 and the
unpaid fees. Two days later, Solum moved to dismiss all of its claims against both
defendants without prejudice. The trial court granted Solum’s motion to dismiss on
August 19.

       Three days later, Hood filed a motion to reinstate the cause “for the purpose
of hearing Hood’s motions for Sanctions.” The trial court signed an order
reinstating the case on September 20 “for the purpose of hearing and ruling on . . .
Hood’s motion for Sanctions and other pending matters.” Solum appealed the trial
court’s order reinstating the case. In an opinion filed October 11, 2012, we
dismissed Solum’s appeal because the trial court had not yet signed a final
       1
          Originally, the case was randomly assigned to the 281st District Court. Because the case
had previously been litigated in a separate cause number in the 61st District Court, the 61st
District Court ordered the case transferred from the 281st Court to the 61st Court.
       2
           Texas Rule of Civil Procedure 89 states in part:
After the cause has been transferred, as above provided for the clerk of the court to which the
cause has been transferred shall mail notification to the plaintiff or his attorney that transfer of
the cause has been completed, that the filing fee in the proper court is due and payable within
thirty days from the mailing of such notification, and the case may be dismissed if the filing fee
is not timely paid; and if such filing fee is timely paid, the cause will be subject to trial at the
expiration of thirty days after the mailing of notification to the parties or their attorneys by the
clerk that papers have been filed in the court to which the cause has been transferred; and if the
filing fee is not timely paid, any court of the transferee county to which the case might have been
assigned, upon its own motion or the motion of a party, may dismiss the cause without prejudice
to the refiling of same.

                                                  2
judgment addressing Hood’s still-pending motion for sanctions. See Solum
Engineering, Inc. v. Starich, No. 14-11-00891-CV, 2012 WL 5307849 (Tex.
App.—Houston [14th Dist.] Oct. 11, 2012, pet. denied) (mem. op.).

       On April 19, 2013, the trial court ruled on Hood’s motions for sanctions,
ordering Solum to pay $7,500 to Hood for attorney’s fees and costs incurred as a
result of litigating this suit.

                                    ISSUES AND ANALYSIS

       In eight issues, Solum complains that the trial court’s sanctions order is void
as a matter of law.

       I.      Whether the trial court lacked jurisdiction to rule on Hood’s
               motion for sanctions
       Several of Solum’s issues are predicated on the proposition that this case
could not have been assigned and docketed in Harris County because Solum did
not pay the filing fee required by Texas Rule of Civil Procedure 89 and section
51.317 of the Government Code; therefore, Solum reasons, the trial court lacked
jurisdiction over the case and could not have granted Hood’s motion for sanctions.3
Rule 89 provides that, “ . . . if the filing fee is not timely paid, any court of the
transferee county to which the case might have been assigned, upon its own motion
or the motion of a party, may dismiss the cause without prejudice to the refiling of
same.” Tex. R. Civ. P. 89. The Government Code provides an accounting of the
amounts to be collected. See Tex. Gov’t Code 51.317.
       3
          Based on this reasoning, Solum asserts the following: (1) the trial court’s reinstatement
order was void because it referenced a “pending matter” which could not exist because Hood’s
motion for sanctions was not before the court; (2) the trial court abused its discretion when it
transferred the case from the 281st District Court to the 61st District Court because that transfer
assumed jurisdiction of the case and unlawfully absolved the District Clerk of its mandatory duty
to collect a filing fee; and (3) because Hood’s motion for sanctions was not and could not have
been before the court, the trial court’s plenary power ended thirty days after it signed the
dismissal order on August 19, 2011.

                                                3
          To support its point, Solum relies on an Attorney General’s Opinion, which
states:

          Under Rule 89, the clerk of the court to which a case is transferred is
          required to receive certified copies of the papers, files and orders
          entered in the case and to notify the plaintiffs that the case has been
          “transferred” and that a filing fee is due. If the filing fee is not paid,
          any district court “to which the case might have been assigned” may
          dismiss the cause. This last phrase, contained in Rule 89, we believe,
          implies that the case is not “assigned,” that is, placed on the docket of
          a particular court, before the filing fee is paid.
          ...

          Cases transferred under a change of venue need not be assigned and
          docketed in the transferee county until a filing fee is paid.

Tex. Att’y Gen. Op. No. JM-216 (1984).

          Hood responds that Solum’s failure to pay the filing fee did not deprive the
trial court of jurisdiction over the matter. Hood correctly notes that opinions issued
by the Attorney General, though persuasive, are not binding on the courts of this
state. See Cavender v. Houston Distrib. Co., Inc., 176 S.W.3d 71, 76 n.1 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied). And further, courts have long held
that the payment of a filing fee “is not generally a prerequisite to jurisdiction, nor
does the failure to pay such fees deprive the trial court of jurisdiction over a case.”
Nolte v. Flournoy, 348 S.W.3d 262, 268 (Tex. App.—Texarkana 2011, pet. denied)
(citing J. Allen Family Partners, Ltd. v. Swain, No. 04-09-00384-CV, 2010 WL
2103228, at *3 (Tex. App.—San Antonio May 26, 2010, no pet.) (mem. op.)); see
also Tanner v. Axelrad, 680 S.W.2d 851, 853 (Tex. App.—Houston [1st Dist.]
1984, writ dism’d); Advance Imps., Inc. v. Gibson Prods. Co., Inc. of Sherman, 533
S.W.2d 168, 169–70 (Tex. Civ. App.—Dallas 1976, no writ)).

          Notably, the Attorney General’s Opinion concludes that cases transferred

                                              4
under a change of venue “need not” be assigned before a filing fee is paid. See
Tex. Att’y Gen. Op. No. JM-216 (1984). The Opinion does not state that a district
clerk must not assign or docket a case before the filing fee is paid. Id. Likewise,
Rule 89 itself gives discretion to district courts to dismiss a case for lack of a filing
fee; it does not mandate that they do so. See Tex. R. Civ. P. 89 (“if the filing fee is
not timely paid, any court of the transferee county to which the case might have
been assigned, upon its own motion or the motion of a party, may dismiss the cause
without prejudice to the refiling of same”) (emphasis added). Accordingly, we
agree with Hood that Solum’s failure to pay the filing fee after the case was
transferred to Harris County did not deprive the trial court of jurisdiction.

      In a related issue, Solum asserts that the trial court erred because Hood’s
motion for sanctions “lacked a valid affidavit to support her grounds to reinstate.”
On this point, Solum argues that an affidavit of Hood’s attorney, attached to her
motion for summary judgment and motion for sanctions, is conclusory because it
states that the suit was “initially and improperly filed” in Fort Bend County and
refers to Solum’s claims as “frivolous and groundless.” Presumably, Solum
contends that the allegedly conclusory affidavit is not evidence to support Hood’s
motion to reinstate; therefore, without evidence to support the motion to reinstate,
the trial court lacked jurisdiction to sign the sanctions order. Without addressing
whether the affidavit is conclusory, we note that Hood’s motion for reinstatement
did not rely on the affidavit in question. Rather, the affidavit appears to be
presented as evidence of the reasonableness of the attorney’s fees requested by
Hood in her motion for sanctions. Solum has not presented an issue regarding the
sufficiency of the evidence to support the motion for reinstatement.

      Solum’s issues that rely on a determination that the trial court lacked
jurisdiction are overruled.

                                           5
       II.     Whether the trial court’s sanctions order is void because the trial
               court abused its discretion
       Solum further complains of alleged abuses of discretion which it contends
voided the trial court’s sanctions order. We review a trial court’s imposition of
sanctions under Texas Rule of Civil Procedure 13 for an abuse of discretion.
Robson v. Gilbreath, 267 S.W.3d 401, 405 (Tex. App.—Austin 2008, pet. denied).
A trial court abuses its discretion if it acts arbitrarily or unreasonably. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

       A.      Trial court’s signing of the transfer order

       Solum first asserts that the trial court abused its discretion when it signed the
order transferring this case from the 281st District Court to the 61st District Court.
According to Solum, the local rules of the court mandated that the District Clerk
transfer the case from the 281st District Court to the 61st District Court; therefore,
the case would have been transferred to the 61st District Court even without the
court’s transfer order. Thus, Solum states that there was “no rational reason” for
the trial court to sign the order, resulting in an abuse of discretion. Local Rule 3.2.1
of the Harris County Civil Trial Division provides that “[a]ny claim for relief based
upon a prior judgment shall be assigned to the court of original judgment.” Harris
(Tex.) Civ. Dist. Ct. Loc. R. 3.2.1. Here, the 61st District Court’s transfer order
indicated that Solum’s claim was based on a prior judgment in that court.

       Solum agrees that Rule 3.2.1 dictated transfer of the case to the 61st District
Court, and such transfer would have occurred regardless of the court’s transfer
order. 4 Because Solum has not demonstrated any harm, the asserted error provides


       4
         Although Solum contends that the Rules required the District Clerk to order the transfer,
the Rules state that “[i]f a case is on the docket of a court by any manner other than as prescribed
by these rules, the Administrative Judge of the Civil Trial Division shall transfer the case to the
                                                 6
no basis for reversal. See Tex. R. App. P. 44.1. We overrule Solum’s issue
regarding the trial court’s order transferring the case to itself.

       B.      Trial court’s findings to support the sanctions order

       Solum further contends that the trial court abused its discretion because its
sanctions order does not explicitly state a finding that Solum moved for a dismissal
without prejudice to avoid an unfavorable judgment. The trial court’s order
thoroughly explains its findings and support for the sanctions, but does not make
an explicit finding that Solum moved to dismiss its suit without prejudice to avoid
an unfavorable judgment.

       Citing the Supreme Court’s decision in Epps v. Fowler, Solum suggests that
the trial court could not have granted Hood’s motion for sanctions unless it
determined that the plaintiff took the nonsuit in order to avoid an unfavorable
judgment. See Epps v. Fowler, 351 S.W.3d 862, 870 (Tex. 2011) (“[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.”).

       The Epps decision concerned whether a defendant in a contract action could
recover attorney’s fees when the plaintiff voluntarily nonsuited its action without
prejudice. Id. at 865. The contract between the parties provided for attorney’s fees
for the prevailing party, but did not define “prevailing party.” Id. The court
determined that the defendant may be a prevailing party if the trial court
determines that the nonsuit was taken to avoid an unfavorable ruling on the merits.
Id. at 870.

       Unlike the defendant in Epps, Hood did not request attorney’s fees under a
proper court.” Harris (Tex.) Civ. Dist. Ct. Loc. R. 3.2.8. The Administrative Judge at the time of
the transfer order was also the Judge of the 61st District Court.

                                                7
contract that provided for fees for a prevailing party. Hood moved for sanctions
under Chapter 10 of the Civil Practices & Remedies Code. Therefore, a
determination that Solum took the nonsuit to avoid an unfavorable judgment was
not necessary for the trial court to grant Hood’s motion for sanctions.

      Solum’s issue regarding the absence of a finding that Solum took the nonsuit
to avoid an unfavorable judgment is overruled.

      C.     Trial court’s sanctions as retaliatory or punitive

      In a single issue, Solum complains that the trial court abused its discretion
when it signed the sanctions order because “a reasonable person might conclude
that [the court’s] actions . . . appears (sic) to have been for the purpose of some
form of retaliation against [Solum].” Solum also contends that it is entitled to
mandamus relief because the sanctions order “imposes severe monetary restrictions
that also threaten the litigation and penalize [Solum] for exercising its legal rights.”
See In re Ford Motor Co., 988 S.W.2d 714, 723 (Tex. 1998) (“[A]ppeal is not an
adequate remedy when a court imposes a monetary penalty on a party’s
prospective exercise of its legal rights.”)

      Other than reiterating its issue regarding the trial court’s order transferring
the case from the 281st District Court to the 61st, Solum points to no evidence
supporting its claim that the trial court’s sanctions order is in any way retaliatory.
Nor does Solum explain how mandamus precedent providing for review of
sanctions imposed while a case is being litigated requires reversal of sanctions
imposed at the end of a case.

      Solum’s issue alleging retaliation by the trial court is overruled.




                                              8
       III.   Whether the trial court’s sanctions order is void for lack of notice

       In two final issues, Solum contends that various alleged notice defects over
the course of the litigation require reversal of the trial court’s sanctions order.

       First, Solum asserts that the appellate record is defective because it does not
contain the required mailed notification from the Harris County District Clerk to
Solum informing it that the case had been transferred. But the record does, in fact,
contain written notification from the Harris County District Clerk, mailed to
Solum, notifying it that the clerk has received the transferred case and that filing
fees were due and payable. See Tex. R. Civ. P. 89 (“After the cause has been
transferred . . . the clerk of the court to which the cause has been transferred shall
mail notification to the plaintiff or his attorney that transfer of the cause has been
completed . . . .”). We therefore overrule this issue.

       Solum’s brief also seems to argue that the mailed notification was required
to inform it that the papers of the case had been assigned to 61st District Court,
specifically, yet it failed to do so. We understand Solum’s argument in this respect
to be a restatement of Rule 89 of the Texas Rules of Civil Procedure, which
provides, “ . . . and if such filing fee is timely paid, the cause will be subject to trial
at the expiration of thirty days after the mailing of notification to the parties or
their attorneys by the clerk that the papers have been filed in the court to which the
case has been transferred.” This provision is inapplicable because Solum never
paid the filing fee.

       Next, Solum argues that reversible error exists because it did not receive the
full 45 days’ notice before the Fort Bend County hearing on the motion to transfer
venue to Harris County. See Tex. R. Civ. P. 87(1) (“Except on leave of court each
party is entitled to at least 45 days notice of a hearing on the motion to transfer.”)
The Fort Bend County trial court set the hearing on the motion to transfer venue to
                                            9
Harris County for June 3, 2011. The record indicates that Solum was served with
notice of the hearing 37 days prior, on April 27, 2011. To preserve error on Rule
87 grounds that it did not receive its full 45 days’ notice of the hearing or
reasonable time to prepare, a party must have moved for a continuance. See Tex.
R. App. P. 33.1; Bench Co., Inc. v. Nations Rent of Tex., L.P., 133 S.W.3d 907,
908 (Tex. App.—Dallas 2004, no pet.); Beard v. Gonzalez, 924 S.W.2d 763, 765
(Tex. App.—El Paso 1996, no writ). Solum did not attend the hearing and did not
file any written objection or motion for continuance. Accordingly, Solum’s issue
regarding notice of the hearing for the motion to transfer venue was not preserved,
and we overrule it.

                                     CONCLUSION

      The trial court’s order granting Hood’s motion for sanctions is affirmed.



                               /s/            Ken Wise
                                              Justice

Panel consists of Justices Boyce, Busby, and Wise.




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