Background
Thanh Truc Tran sued George Richard Overby for divorce. In his answer, Overby requested attorney’s fees, expenses, costs, and post-judgment interest. Tran requested a jury trial and paid the jury fee, but she nonsuited all her claims without prejudice the day before the scheduled trial.
Overby then moved to recover his attorney’s fees and to be declared the prevailing party. Tran requested a jury trial on the fee issue. The trial court denied Overby’s request for prevailing-party status but ordered Tran to pay a portion of his attorney’s fees, rejecting her jury-trial objection.
The Court’s Holding
The Court of Appeals held that Overby’s pleaded request for attorney’s fees incurred in defending the divorce suit was an independent claim for affirmative relief that survived Tran’s nonsuit. The court rejected Tran’s argument that no fee claim remained under Texas Family Code section 6.708 after dismissal of the underlying dissolution suit.
The court also held that the reasonableness of fees under the applicable version of section 6.708(c) is a fact question that a jury may decide. Although Tran’s post-nonsuit jury demand was deemed timely because she received less than 30 days’ notice of the hearing, the record did not show that she timely paid the required jury fee. The trial court therefore had discretion to deny a jury trial, and Tran failed to establish an abuse of that discretion. The court affirmed the judgment.
Key Takeaways
- A defendant’s pleaded claim for attorney’s fees incurred in defending a divorce action may constitute affirmative relief that survives the plaintiff’s nonsuit.
- The reasonableness of attorney’s fees under the applicable version of Texas Family Code section 6.708(c) is a fact question that may be submitted to a jury.
- A jury demand made before a nonsuit does not survive the nonsuit, and a later demand may be denied when the requesting party does not timely pay the jury fee.
Why It Matters
The decision confirms that voluntarily dismissing a Texas divorce action does not necessarily eliminate an opposing party’s pending claim for defense fees. Practitioners should plead such fee requests as affirmative relief and preserve them after nonsuit.
It also underscores that preserving a civil jury right requires compliance with both components of Texas Rule of Civil Procedure 216: a timely written demand and timely payment of the jury fee.