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                                 MEMORANDUM OPINION

                                         No. 04-09-00384-CV

                              J. ALLEN FAMILY PARTNERS, LTD,
                                          Appellant

                                                  v.

Larry Edward SWAIN, Individually and as Co-Manager of the C.E. Swain et al, L.D. Webb, Co-
    Manager of C.E. Swain, et. al., Pamela Sue Swain Webb, Individually; Cindy Sue Swain
Aristequieta, Individually; Tammy Lorene Swain Malhiot, Individually; Larry Edward Swain, as
Trustee of the Charlotte Lorene Swain Trust and The Larry Edward Swain Jr. Trust, Pamela Sue
 Swain Webb, Trustee of the L.D. Webb, the Cody Glen Webb Trust, and Casey Nicole Webb
Trust, Estate of Carl Ronnie Swain, Deceased by Traci Lynn Swain, Independent Executrix, and
        Pamela Kay Swain Living Trust by and through Larry Edward Swain as Trustee,
                                           Appellees

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-13368
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 26, 2010

AFFIRMED

           J. Allen Family Partners, LTD (“JAFP”) appeals the summary judgment awarding appellees

(“Swain”) their attorney’s fees. JAFP contends the trial court lacked jurisdiction to grant summary

judgment on Swain’s attorney’s fees counterclaim because the trial court had previously signed an
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order of nonsuit and made a specific finding that no counterclaims were on file. Additionally, JAFP

argues that if Swain had a pending claim for affirmative relief, the trial court lacked jurisdiction to

entertain the claim because Swain failed to pay the mandatory $15.00 filing fee. We affirm the

judgment.

                                         BACKGROUND

       JAFP entered into a contract to buy land from Swain. The contract included a provision

allowing attorney’s fees in favor of the prevailing party in the event of litigation. A dispute arose

over the payment of “roll back” taxes on the property, and JAFP sued Swain for breach of contract.

Swain filed an original answer, which included the following:

                                       ATTORNEY FEES
       Defendants are entitled to recover reasonable and necessary attorney fees under the
       provisions of the written contract between the parties.

       On May 5, 2009, Swain filed a motion for summary judgment on its attorney’s fees claim and

on JAFP’s claims, which was set for hearing on May 29, 2009. JAFP filed a notice of nonsuit on

May 13, 2009. Without a hearing or notice to Swain, the order of nonsuit was signed by the trial

court on May 28, 2009. The order recited:

       On May 13, 2009, J. ALLEN FAMILY PARTNERS, LTD Non-suited all causes of
       action against Defendants. . . . The Court takes judicial notice of the file and finds
       that there are no counter-claims on file and no claims for affirmative relief, therefore,
       none of the Defendants are seeking affirmative relief from J. ALLEN FAMILY
       PARTNERS, LTD.

               The case is therefore DISMISSED without prejudice.

The next day Swain and JAFP appeared at the hearing on Swain’s motion for summary judgment.

JAFP argued the attorney’s fee claim was moot because he nonsuited his claims and the trial court

found there were no counterclaims on file or, alternatively, the hearing on the motion for summary


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judgment should be continued. The trial court denied JAFP’s request for a continuance, and after

argument of counsel, granted summary judgment for attorney’s fees in favor of Swain. The judgment

stated in part:

                On May 29, 2009, the Court heard Defendants’ Motion for Summary
        Judgment for attorney’s fees, after the Court was advised that the Plaintiff filed a
        Notice of Non-suit. The parties appeared before the Court for the hearing on the
        claim for attorney’s fees by Defendants. The court finds that the Non-suit by Plaintiff
        renders the third-party action of Defendants against Lukin T. Gilliland moot.

                After considering the pleadings, motion, evidence on file, and arguments of
        counsel, the Court grants the motion and hereby renders judgment for Defendants . . .
        jointly and severally, against Plaintiff.
                ...
                ...
                It is Ordered that the Plaintiff’s action and the third-party action of
        Defendants are non-suited with prejudice to their refiling.

                  This Judgment is final, disposes of all claims and all parties and is appealable.


JAFP filed a notice of appeal, which stated “A Final Judgment was signed on May 29, 2009 by the

Honorable Barbara Nellermoe.”

                                              DISCUSSION

        A. Nonsuit

        JAFP contends the order of nonsuit signed May 28, 2009 disposed of all claims between the

parties, was final and binding, and deprived the trial court of jurisdiction to entertain Swain’s motion

for summary judgment. We disagree.

        A trial court has plenary power to vacate, modify, correct, or reform judgment within thirty

days after the judgment is signed. TEX . R. CIV . P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip.,

Inc., 10 S.W.3d 308, 310 (Tex. 2000). Assuming the order of nonsuit was final, the trial court



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nevertheless retained the power to vacate or modify the order for thirty days after it was signed. The

final summary judgment was signed on May 29, 2009, the day after the order of nonsuit was signed

— a time clearly within the trial court’s plenary power.

       JAFP acknowledges that a nonsuit does not dispose of a counterclaim for attorney’s fees, but

argues that because the trial court specifically determined Swain had no counterclaim on file, the

order of nonsuit precluded the trial court from considering the motion for summary judgment. See

Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008) (plaintiff’s decision to pursue or abandon claims

does not control the fate of a non-moving party’s independent claims for affirmative relief for costs

and attorney’s fees). We disagree. Regardless of whether the trial court initially made such a finding,

the trial court retained plenary power to revisit the issue and modify the order of nonsuit. TEX . R.

CIV . P. 329b(d); Lane Bank, 10 S.W.3d at 310.

       The final summary judgment recited that the trial court heard the motion for summary

judgment after it had been informed of the filing of the nonsuit. The final summary judgment

awarded Swain attorney’s fees, and also changed the order of nonsuit from a dismissal without

prejudice to a dismissal with prejudice. Although the final summary judgment did not expressly state

that the order of nonsuit was modified or vacated, it did acknowledge the filing of the nonsuit,

granted Swain summary judgment, and dismissed all JAFP’s claims with prejudice. The final

summary judgment therefore modified the order of nonsuit. See, e.g., Abercia v. Kingvision

Pay-Per-View, Ltd., 217 S.W.3d 688, 706 (Tex. App.—El Paso 2007, pet. denied)(any change in

judgment vacates original judgment); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 40 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied)(any change in judgment indicates trial court’s intent

to vacate first judgment); Owens-Corning Fiberglas Corp. v. Wasiak, 883 S.W.2d 402 (Tex.


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App.—Austin 1994, no writ)(any change in judgment should be treated as a modified, corrected, or

reformed judgment that “presumptively vacates” trial court’s former judgment unless record

indicates contrary intent); Alford v. Whaley, 794 S.W.2d 920, 922 (Tex. App.—Houston [1st Dist.]

1990, no writ)(second judgment restarted appellate timetable even though neither second judgment

nor the record indicated first judgment had been vacated).

        B. Filing Fee

        JAFP next contends that because Swain failed to pay the mandatory filing fee for the

counterclaim there was not a valid counterclaim before the trial court and the trial court lacked

jurisdiction to award attorney’s fees. See TEX . GOV ’T CODE ANN . § 51.317(b)(2) (Vernon Supp.

2009)(mandatory $15 fee for filing counterclaim due at time of filing counterclaim). However, the

payment of filing fees “is not generally a prerequisite to jurisdiction, nor does the failure to pay such

fees deprive the trial court of jurisdiction over a case.” Kvanvig v. Garcia, 928 S.W.2d 777, 779

(Tex. App.—Corpus Christi 1996, no writ);(citing Tanner v. Axelrad, 680 S.W.2d 851, 853 (Tex.

App.—Houston [1st Dist.] 1984, writ dism’d) (failure to pay fee for filing original cause of action

in justice court does not defeat jurisdiction) and Advance Imps., Inc. v. Gibson Prods. Co., 533

S.W.2d 168, 169-70 (Tex. Civ. App.—Dallas 1976, no writ)(filing fee for filing appeal from justice

court to county court not prerequisite for jurisdiction)).

        The Texas Supreme Court in Garza v. Garcia, 137 S.W.3d 36, 38 (Tex. 2004) held the

failure to pay a filing fee for a motion for new trial did not invalidate the filing of the motion, and

the motion extended the appellate deadlines. The court noted that under such circumstances a trial

court is not required to review the factual sufficiency complaints raised in a motion for new trial.

Id. The court did not hold that a trial court could not consider a motion, rather the court reiterated


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its holding from an earlier decision related to filing fees: “‘absent emergency or other rare

circumstances’ a motion for new trial should not be considered until the filing fee is paid.” Id. (citing

Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993)(per curiam). Nothing in the court’s decision

indicates that the failure to pay a filing fee deprives a court of jurisdiction. Therefore, Swain did not

have an unconditional right to have the counterclaim heard if the fee was not paid, but the trial court

had jurisdiction to consider and rule on the claim. See In re C.A.S., 128 S.W.3d 681, 685-686 (Tex.

App.—Dallas 2003, no pet.)(without payment of mandatory filing fee defendant had no

“unconditional right” to be heard on counterclaims; therefore, court of appeals could not conclude

that the trial court erred in dismissing the conditional claims for affirmative relief); Kvanvig, 928

S.W.2d at 779 (“we interpret the Texas Supreme Court’s suggestion that the trial court “should not”

act on a motion for new trial before the filing fee is paid more as instructive than as a curbing of the

trial court’s jurisdiction or authority.”).

        Moreover, the clerk’s bill of costs indicates counsel for Swain paid the clerk $70.00 and

JAFP’s original answer and request for disclosure is stamped “Fee Paid.” Therefore, even if the

failure to pay a filing fee is considered a jurisdictional defect, JAFP failed to demonstrate the fee was

not paid.

        We affirm the final summary judgment.



                                                                Steven C. Hilbig, Justice




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