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NO. 20-03-04222
ROBERT WILLIAMS AND IN THE DISTRICT COURT
MICHELLE WILLIAMS
Plaintiffs
Vv. 284" TH JUDICIAL DISTRICT
PRECISION HOMES CUSTOM
BUILDERS, INC., JW CLOVIS Il,
LTD., AND JW CONROE I, LTD.
Defendants MONTGOMERY COUNTY, TEXAS
PLAINTIFFS’ MOTION TO DISMISS OR DENY DEFENDANTS’ MOTION FOR
ATTORNEY’S FEES FOR LACK OF SUBJECT MATTER JURISDICTION, AND,
ALTERNATIVELY, SPECIAL EXCEPTIONS, OBJECTIONS AND RESPONSE TO
DEFENDANTS’ MOTION FOR ATTORNEY’S FEES
NOW COME Plaintiffs, Robert and Michelle Williams, Husband and Wife, and file this
response to Defendants’ J.W. Clovis III, Ltd.’s and J. W. Conroe I, Ltd.’s Motion for Attorney’s
Fees Under Texas Civil Practice & Remedies Code Section 37.009 and Texas Rules of Civil
Procedure 13 (“Defendants’ Motion” or “Motion”), and in support thereof, show the Court the
following:
INTRODUCTION
Plaintiffs believe that the Court lost its plenary power on March 31, 2021 and no longer
has subject matter jurisdiction to decide Defendants’ Motion, filed on April 8, 2021. (see below,
Paragraph 1.1, Section II and Paragraph 4.3). Alternatively, Defendants’ Motion is an
Plaintiffs’ Response to Defendants’ Motion for Sanctions
unprofessional exercise in speculation that boils down to nothing more than their legal opinion!
that Plaintiffs’ Original Petition had no merit in fact or law because Plaintiffs, at the time they
closed on their property on May 31, 2017, “knew” they did not have a “recorded” access easement
to Edith Lane or an adjudication or definitive proof that Edith Lane had been impliedly dedicated
to Montgomery County. The merits of Plaintiffs’ claims becaine moot upon the Court’s signing of
the Amended Order of Nonsuit on March 1, 2021 (“Order of Nonsuit”). (No evidence was in the
record on March 1, 2021, and much of Defendants’ evidence in support of their motion is precluded
under Texas Rules of Civil Procedure 193.7 from admission because of Defendants’ discovery
failures.) Nevertheless, a review of the March 2020 Original Petition plainly shows its merit, in
fact and law, and gives notice to Defendants of their alleged destruction in approximately June of
2018 of Plaintiffs’ access to their property on Edith Lane and the issue of the unknown impact on
Plaintiffs’ usage of Edith Lane of the November 2017 JW Clovis JW Conroe Easement
Agreement. The question of title to the relevant properties affected by this easement agreement
was not dispositive of Plaintiffs’ claims and did not render Plaintiffs’ claims against the JW
Defendants meritless. Even if Plaintiffs’ Original Petition lacked merit, Defendants have waived
any complaint, and the Court must construe the Original Petition liberally?, Defendants’ argument
that they are the “prevailing party” because Plaintiffs nonsuited to avoid an unfavorable result
(and, therefore, Defendants should be awarded their reasonable and necessary attorney’s fees) is
wholly incorrect and based on contrived and “invented”? evidence. (See, below, Paragraphs 1.2
and 4.1 through 4.14.) Nor is the “prevailing party” status even controlling on the issue of an award
' See, Ex. 3-4, correspondence and documents from Plaintiffs’ former attorney, Michael Boltz, who referred
Plaintiffs to the undersigned attorney, that is probative on the existence of another legal opinion on the merits of the
lawsuit.
2 In the absence of special exceptions, a petition will be liberally construed in pleader’s favor to support judgment.
Lowther v. Lowther, 578 $.W.2d 560 (Civ. App. 1979) ref. n.r.e.
3 See, Paragraph 5.6.
Plaintiffs’ Response to Defendants’ Motion for Sanctions
of attorney’s fees under Section 37 of the Texas Civil Practice & Remedies Code since a trial court
“may” award attorney’s fees to the prevailing party, to the non-prevailing party, or to no party at
all. Nevertheless, Plaintiffs’ evidence establishes irrefutably that Plaintiffs did not nonsuit to avoid
an unfavorable result, but nonsuited shortly after settling with Defendant Precision Homes Custom
Builders, Inc. on February 11, 2021 and in consideration of other documented non-Epps factors.
Finally, Defendants have not only failed to specify which pleading Plaintiffs’ counsel signed in
violation of Texas Rule of Civil Procedure 13, they have wholly failed to demonstrate that
Plaintiffs acted in bad faith or to harass Defendants in signing the Original Petition or any
subsequent pleading, for that matter. (See, below, Paragraphs 1.4 through 1.5 and 4.15 through
4.27) Hence, this Court should dismiss for want of jurisdiction or, alternatively, exercise its
discretion and deny Defendants’ motion for attorney’s fees that are based on their counter-claims
under Section 37.009 of the Texas Civil Practice and Remedies Code, first pled on January 27,
2021. The Court should also deny the motion for Rule 13 sanctions. Furthermore, if the Honorable
Court is inclined to award any amount of reasonable and necessary attorney’s fees to Defendants,
Defendants’ evidence is not only inadmissible to prove their reasonableness and necessity, but
any award would be inequitable and unjust.
I. SUMMARY
11 No plenary power: This Court’s plenary power expired no later than March 31,
2021 when this Court signed its Amended Order Granting Motion for Nonsuit (“Order of
Nonsuit”). Plaintiffs nonsuited the entirety of their claims no later than March 1, 2021 at which
time the counter-claims for attorney’s fees of Defendants J. W. Clovis III, Ltd. (“JW Clovis”) and
J. W. Conroe I, Ltd. (“JW Conroe”) (collectively, “Defendants” or “JW Defendants”) were
Plaintiffs’ Response to Defendants’ Motion for Sanctions
conditional due to the failure of the JW Defendants to pay the filing fees for the counter-claims.
There were no affirmative claims for relief pending. The Defendants’ motion for Section 37.009
attorney’s fees and Rule 13 motion for sanctions were not filed until April 8, 2021. Thus, the Order
of Nonsuit disposed of the lawsuit in its entirety and the thirty-day plenary power period expired
on March 31, 2021 —prior to April 8, 2021 when the Motion was filed. See Section II, hereinbelow.
1.2 Nonsuit not taken to avoid an unfavorable result: Alternatively, if this Court
determines its plenary power has not expired prior to the filing of Defendants’ Motion, the nonsuit
of the case, nevertheless, did not violate Texas Rules of Civil Procedure 162 because the
nonsuit was not taken to avoid an unfavorable result, but was taken for several documented
reasons. Defendants mistakenly claim to be the prevailing party of their respective Section 37.009
counter-claims on the basis that Plaintiffs nonsuited to avoid an unfavorable result. However, the
primary reason for nonsuiting was that Plaintiffs reached a settlement on February 11, 2021
with Defendant Precision Homes Custom Builders, Inc. (“Precision Homes”) that involved
the sale of their Edith Lane property in issue to Defendant Precision Homes. Plaintiffs
instructed their counsel to refrain from nonsuiting the claims until the Precision Homes settlement
check cleared the bank, which occurred on or about February 26, 2021. In the interim, while
awaiting the clearance of the settlement check, Plaintiffs’ counsel, with the consent of Plaintiffs,
continued to attempt to reach a good faith settlement with the JW Defendants, but any settlement
attempts were to no avail. None of the Epps factors courts consider in evaluating whether a nonsuit
was taken to avoid a negative result was present prior to the nonsuit. Therefore, Defendants are
not the prevailing party. Even if they were, this Court should exercise its discretion and deny
Defendants’ claim for attorney’s fees and require each party to bear their respective attorney’s fees
based upon the history of the case, the overwhelming legitimacy of Plaintiffs’ lawsuit, and the
Plaintiffs’ Response to Defendants’ Motion for Sanctions
Defendants’ resting on their rights. Further, for the same reasons, any award of any amount of fees
to Defendants, whether reasonable and necessary or not, would not be equitable or just. See,
(Section IV, Paragraphs 4.1 through 4.15, hereinbelow.)
1.3 Record devoid of evidence supporting an award of attorney’s fees to Defendants:
Defendants are precluded from submitting evidence from the record on the Plaintiffs’ claims
because they have been rendered moot by the Order of Nonsuit’. At the time of the nonsuit,
no evidence had been submitted in the record of the Court to consider in reviewing the necessity
and reasonableness of the attorney’s fees. Therefore, this Court should deny Defendants’ Motion
as there is no evidence, much less sufficient evidence, to support the reasonableness and
necessity of Defendants’ attorney’s fees or that such award of attorney’s fees would be
equitable and just. Furthermore, the JW Defendants failed to respond to Plaintiffs’ Request
for Production of Documents, numbers 55 and 56,5 which requested copies of their fee
agreements and invoices reflecting their attorney’s fees. Each Defendant responded they
would produce the documents, but had not done so by the time the Order of Nonsuit was
signed or by the February 17, 2021 discovery deadline. Further, they failed to serve any
response at all to Plaintiffs’ Requests for Disclosure. This means that most of Defendants’
exhibits may not be introduced, including Brad Irelan’s Affidavit in support of attorney’s fees, that
is subject to exclusion upon proper objection. (See, Section III, hereinbelow.) Nor can Defendants
offer the evidence of the material or information that was not timely disclosed. (See, Section IIT,
hereinbelow.)
1.4 Award of attorney’s fees as sanctions under Rule 13 is improper: Alternatively,
4 Plaintiffs’ UDJA action involving the Easement Agreement is moot because of Plaintiffs’ sale of the property in
issue to Precision Homes and any ruling on such claim would be an improper advisory opinion. See, Ex. 3-5.
5 See, Ex. 1 (Responses 55, 56) and Ex. 2 (Responses 55, 56).
Plaintiffs’ Response to Defendants’ Motion for Sanctions
the Defendants’ Motion fails on its face to meet its threshold burden to “identify” a specific
pleading that was signed in violation of Rule 13. Defendants’ only reference in the Rule 13
motion to a pleading is to the “lawsuit”. On the assumption that the lawsuit is the specific
pleading signed in violation of Rule 13, Plaintiffs respond to the Rule 13 motion as if the Original
Petition is the specific pleading. Defendants also negated the first prong of the Rule 13 analysis
— that the lawsuit was “groundless” when filed — by their own admission that Plaintiffs
“admittedly inquired into the legal and factual basis for their claims against the JW
Defendants prior to filing the lawsuit”. The inquiry should stop there and the Rule 13 motion
denied. Defendants also cannot meet the second prong requiring a showing of “bad faith”
where “bad faith” is defined as the “conscious doing of a wrong for dishonest,
discriminatory, or malicious purposes” or that the lawsuit was filed to harass the JW
Defendants. Defendants also failed to cite to any evidence on the issue of the motive of Plaintiffs
or their counsel at the time they filed the Original Petition that would indicate “bad faith” or intent
to harass. Although, Defendants seem to rely on a finding of intent to harass rather than” bad
faith” to satisfy the second prong of the analysis, Plaintiffs respond to each allegation that
Defendants presumably rely upon as the basis to support “bad faith” or intent to harass even
though these allegations are not specifically addressed in the Defendants’ Rule 13 motion in
Section III, Section F of Defendants’ Motion. This Court should deny Defendants’ Rule 13
request for sanctions. (See, Section IV, Paragraphs 4.15 through 4.27 and Section V).
1.5 Attorney’s fees are unreasonable and unnecessary and any award would be
inequitable and unjust: Alternatively, even arguendo were the Defendants able to overcome the
hurdles stated above in Paragraphs 1.1 through 1.4, Defendants have failed to segregate their
fees between each of the JW Defendants, between the declaratory judgment cause of action added
Plaintiffs’ Response to Defendants’ Motion for Sanctions
in the October 30, 2020 amended petition and the causes of action against the JW Defendants in
the preceding petitions, and between the motion for attorney’s fees under Rule 37.009 of the Texas
Civil Practice & Remedies Code (““UDJA” or “Section 37.009) and under Rule 13 of the Texas
Rules of Civil Procedure (“Rule 13”). Additionally, as stated in Paragraph 1.4, hereinabove, the
Defendants have failed to specify the particular pleading which was signed in violation of
Rule 13, only refer ng generally to the “lawsuit”. (See Section III, Paragraphs 3.2. 3.3 and 3.5a,
hereinbelow.)
1.6 Defendants’ Motion misleads the Court in Paragraph 5.6 where Defendants’
wn sworn interrogatory responses controyert their repeated claim that Duane Bingham/the JW
Defendants_offered_an_easement_to Plaintiffs: Notwithstanding all of the above, and,
alternatively, to the above, out of an abundance of caution, Plaintiffs have no choice but to respond
to Defendants’ spurious claims and demonstrate the legitimacy of Plaintiffs’ lawsuit and good faith
of Plaintiffs. Defendants’ Motion is nothing more than a costly exercise in spite and greed that
cannot support the request for attorney’s fees or sanctions under any theory. (See, Section V,
hereinbelow, especially Paragraph 5.6).
1.7 Special Exceptions, Objections and Motion to Strike: Plaintiffs also specially
except to Defendants’ Motion because it is unartfully drafted; it is ambiguous and unclear.
Defendants’ confusing inclusion of the two distinct motions for attorney’s fees into one motion is
improper and places an unfair burden on Plaintiffs. It is, likewise, unclear in Brad Irelan’s Affidavit
in the paragraph discussing his pre-suit communications with Plaintiffs’ counsel as to which
motion these statements are intended to support. Plaintiffs also interpose objections to the evidence
submitted with Defendants’ Motion and the motion itself, including the Affidavit of Brad Irelan.
Finally, Plaintiffs move to strike Defendants’ Motion and Exhibits 1 through 17 to the extent of
Plaintiffs’ Response to Defendants’ Motion for Sanctions
Defendants’ usage and reliance thereon. (See Section III, hereinbelow.)
II. LACK OF PLENARY POWER
Court’s plenary power to consider and rule on Defendants’ Motion, filed on April 8, 2021,
expired on March 31, 2021.
2.1 Defendants’ Motion is comprised of a request for payment of the entirety of
Defendants’ attorney’s fees under two theories: (1) Defendants’ counter-claims for their attorney’s
fees (first added to their Amended Answers in January 2021) in response to Plaintiffs’ request for
declaratory relief under the Uniform Declaratory Judgments Act (“UDJA”) in the Fourth Amended
Original Petition; and (2) Defendants’ motion for attorney’s fees as sanctions under Texas Rule
of Civil Procedure 13. At the time of the nonsuit, the Fifth Amended Petition was the live pleading,
but mirrored the Fourth Amended Petition as to any declaratory judgment relief request.
2.2 UDJA counter-claims were conditional at time of nonsuit - Defendants’ counter-
claims in their Amended Answers were conditional until the filing fees were paid. Tex. Gov. Code
51.3179; see, Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (A document is “conditionally
filed” when tendered to the clerk, but the filing is not complete until the filing fee is paid.) Both
Defendants, JW Clovis and JW Conroe, failed to pay their respective filing fee for these counter-
claims first added in January 2021. Thus, on March 1, 2021, as Plaintiffs had nonsuited all of their
claims and the Court had signed its Order of Nonsuit, and there were no counter-claims or a
sanctions motion of record, the Court designated the lawsuit as “disposed” as all parties and claims
had been disposed of. Lehman y. Har—Con Corp., 39 S.W.3d 191, 195 (Tex.2001).
6 Texas Government Code 51.317 (“ (a) The district clerk shall collect at the time the suit or action is filed the fees
provided by Subsections (b) and (b-1) for services performed by the clerk. (b) The fees are:
(1) except as provided by Subsection (b-1), for filing a suit, including an appeal from an inferior court, $50;
(2) for filing a cross-action, counterclaim, intervention, contempt action, motion for new trial, or third-party petition,
$15.2")
Plaintiffs’ Response to Defendants’ Motion for Sanctions
2.3 The entirety of Plaintiffs’ claims were nonsuited on March 1, 2021, when the Court
signed the Order of Nonsuit. “A trial court retains jurisdiction over a case for a minimum of thirty
days after signing a final judgment.” Tex. R. Civ. P. 329b(d).’ Check v. Mitchell, 758 S.W.2d 755,
756 (Tex. 1988) (During the thirty-day period, the trial court has plenary power to change
its judgment.). The timely filing of a post judgment motion for new trial, or a motion to modify,
correct or reform the judgment, extends the thirty-day period of plenary power. Philbrook v. Berry,
683 S.W.2d 378, 379 (Tex. 1985). Neither the Defendants nor Plaintiffs filed an appropriate post
judgment motion to extend the plenary power. Defendants’ Motion was filed on April 8, 2021,
more than thirty-days after the Order of Nonsuit that disposed of all claims. At the time of the
nonsuit, there were no pending counter-claims (because the counter-claims were conditional until
the filing fees were paid), nor had the Defendants’ Motion even been filed requesting attorney’s
fees and sanctions; thus, the Order of Nonsuit disposed of all parties and claims and the Order of
Nonsuit was a dismissal of the lawsuit triggering the running of the 30 day plenary power period.
24 A trial court may “consider a motion for attorneys' fees filed after the dismissal so
long as that motion is heard while the trial court retains plenary jurisdiction.” Hoheisel v. Boyd,
2020 WL 370570, at *3 (Tex.App.-Fort Worth, 2020), quoting Beasley v. Soc'y of Info. Mgmt.,
Dallas Area Chapter, No. 05-17-01286-CV, 2018 WL 5725245, at *6 (Tex. App.—Dallas Nov.
1, 2018, pet. denied) (mem. op.). Therefore, any ruling by the Court on the motion for attorney’s
7 “The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments
.. in all district and county courts: (a) A motion for new trial, if filed, shall be filed prior to or within thirty days after
the judgment or other order complained of is signed. . . (d) The trial court, regardless of whether an appeal has been
perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty
days after the judgment is signed. . . . (g) A motion to modify, correct, or reform a judgment . filed, shall be filed
and determined within the time prescribed by this rule for a motion for new trial. . .”.
Plaintiffs’ Response to Defendants' Motion for Sanctions
fees based on the UDJA counter-claims would be void and a nullity because Defendants’ Motion
was filed outside of the plenary power period.
2.5 For the same reasons, the motion for attorney’s fees as sanctions was filed on April
8, 2021, outside the plenary power, and thus any order of the Court would be void. Warfield Elec.
of Texas, Inc. v. Harry Hines Property Venture, 871 S.W.2d 273, 275 (Tex. App. Eastland, 1994).
“A court has no more power to act in sanction matters without jurisdiction than it does elsewhere.
.. A court must have jurisdiction to act or its acts are void.” Jd.; see also Donaldson v. Donaldson,
2017 WL 2588162, at *1 (Tex.App.-Eastland, 2017) (at the time of its order on the motion for
sanctions, the trial court had lost its plenary power over this cause); Scott & White Mem'I Hosp. v.
Schexnider, 940 S.W.2d 594, 596 (Tex. 1996); Price v. Price, No. 02-14-00319-CV, 2015 WL
4652753, at *2-3 (Tex. App.—Fort Worth Aug, 6, 2015, no pet.) (mem. op.) (A trial court had
plenary jurisdiction to grant motion for sanctions even though the motion was not pending when
nonsuit was filed; however, a court has no jurisdiction to grant a Rule 13 motion for sanctions
after its plenary power has expired.); cf Arndt v. Farris, 633 S.W.2d 497 (Tex. 1982) (permitting
sanctions related to post-judgment enforcement and discovery).
2.6 Judicial action taken after the court's jurisdiction has expired is a nullity and beyond
the court’s subject matter jurisdiction. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.
1995); see also Clewis v. Safeco Ins. Co. of America, 287 S.W.3d 197, 203 (Tex. App. Fort Worth
2009) (citing In re Dickason, 987 8.W.2d 570, 571 (Tex.1998) (orig. proceeding); Coleman v.
Sitel Corp., 21 $.W.3d 411, 413 (Tex.App.-San Antonio 2000, no pet.) (holding that after the trial
court's plenary power expired, the court had no jurisdiction to change or vacate its judgment);
Moore v. Brown, 993 S.W.2d 871, 874 (Tex.App.-Fort Worth 1999, pet. denied) (stating that once
Plaintiffs’ Response to Defendants’ Motion for Sanctions 10
“a trial court's plenary power has expired, it has no jurisdiction to modify or change its original
judgment except by bill of review”).
2.7 Plaintiffs request that the Court dismiss Defendants’ Motion for want of subject
matter jurisdiction following the expiration on March 31, 2021 of the Court’s plenary power.
Il. ALTERNATIVELY, PLAINTIFFS FILE SPECIAL EXCEPTIONS AND
OBJECTIONS, AND OPPOSE DEFENDANTS’ MOTION
A. Special Exceptions to Defendants’ Motion
3.1 Plaintiffs specially except to the Defendants’ Motion because it is vague and
unclear and improperly conflates the distinct requests for attorney’s fees in the motion without
addressing separately each motion and grounds under which fees are requested and the supporting
facts and evidence therefor. Each theory underlying the different motions for fees — under their
section 37,009 counter-claims or under Rule 13 of the Texas Rules of Civil Procedure — has a
distinct burden or standard of proof.
3.2 Additionally, Plaintiffs specially except because Defendants failed to specify the
pleading or pleadings signed in violation of Rule 13, appearing to limit the alleged violation to the
lawsuit, which is construed by Plaintiffs to mean the “Original Petition”.
3.3 Plaintiffs also specially except to the Rule 13 motion because the JW Defendants
have failed to specify the conduct of Plaintiffs that is implicated in their counsel’s conduct apart
from having entrusted their legal representation to their counsel. Therefore, Plaintiffs request that
Section III, Section F of Defendants’ Motion be struck as it pertains to Plaintiffs.
3.4 The Court should strike Defendants’ Motion in its entirety with prejudice.
B. Objections to Defendants’ Motion and attached Exhibits and Motion to Strike
3.5 Plaintiffs make the following objections and motion to strike:
Plaintiffs’ Response to Defendants’ Motion for Sanctions i
Plaintiffs object to Defendants’ Motion because it fails to notify Plaintiffs of the
specific “groundless” claim or pleading that was signed in violation of Rule 13 of
the Texas Rules of Civil Procedure, instead referring generally to the “lawsui 28:
Plaintiffs request that the last paragraph of Section III, Section F of Defendants’
Motion and any reference to sanctions be struck.
Plaintiffs object to the entirety of Defendants’ Motion to the extent of any
references to attached exhibits and those exhibits themselves because the exhibits
ere not a part of the record of the Court prior to the nonsuit and are still not part
of the record. Plaintiffs request that the Defendants’ Motion and its Exhibits 1
through 18 be struck to the extent of Defendants’ usage and reliance thereon.
Plaintiffs object to the Affidavit of Brad Irelan in support of the attorney’s fees
requested because the JW Defendants each refused to produce their attorney fee
agreement and invoices as requested in Plaintiffs’ Request for the Production of
Documents? and each failed to respond to Plaintiffs’ Requests for Disclosures, in
violation of Texas Rules of Civil Procedure 193.7.'° Plaintiffs also object because
the Court signed the Order of Nonsuit on March 1, 2021, which effectuated a
disposition of all parties and claims. The attorney’s fees and fee agreements are no
5 See, page 22- Defendants’ Motion.
° True and correct copies of the JW Defendants’ Responses to Plaintiffs’ Requests for Production of Documents are
attached hereto as Exhibits 1 and 2 and show Defendants state they will produce the requested documents.
10 “(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response,
including a required disclosure, in a timely manner may not introduce in evidence the material or information that was
not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified,
unless the court finds that:
(J) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly
prejudice the other parties, Tex. R. Civ. P. 193.7.
Plaintiffs’ Response to Defendants’ Motion for Sanctions 12
longer admissible as the merits of the lawsuit’s claims became moot on March 1,
2021 and, furthermore, they are inadmissible to prove up the necessity and
reasonableness of Defendants’ claimed attorney’s fees because the discovery
deadline passed on February 17, 2021 and, pursuant to Texas Rules of Civil
Procedure 193.7, they are now precluded from admitting the attorney fees.!!
Plaintiffs also object to the Affidavit of Brad Irelan in support of Defendants’
Motion for attorney’s fees under the UDJA as defective because Defendants failed
to segregate their attorney’s fees between the JW Defendants, as well as between
the different causes of action and the UDJA claim not filed until October 30, 2020,
as well as between Section 37.009 and Rule 13 motions for fees. Further, Plaintiffs
object because the fees are excessive and not reasonable, especially the fees for
Defendants’ Motion in the approximate amount of $30,000.00 incurred in the
month of March 2021 alone, after the Order of Nonsuit was signed, amounting to
approximately one-fifth of the total fees from February 2020 through early April
2021 (or fourteen months).'? Furthermore, the Affidavit testimony of Brad Irelan is
unclear if it is offered in support of the Section 37.009 request for fees or the award
of Rule 13 violations. Plaintiffs request that the Affidavit and invoices attached
thereto be struck.
Plaintiffs object to the entirety of Defendants’ exhibits as not being a part of the
Court’s record following the Order of Nonsuit when the merits of the claims
became moot except as to pending motions for affirmative relief. The absence of
evidence in the Court record at the time of the Order of Nonsuit precludes
"! See, Paragraph 4.5k, herein.
"? Oddly, the JW Defendants omitted to include their February attorney’s fees.
Plaintiffx’ Response to Defendants’ Motion for Sanctions 13
consideration of the evidence relied upon by Defendants in Defendants’ Motion.
Plaintiffs request that the Exhibits 1 through 18 be struck to the extent of
Defendants’ usage and reliance thereon.
Plaintiffs also object to Defendants’ usage and reliance on the following exhibits to
Defendants’ Motion because Defendants failed to serve any responses to Requests
for Disclosures, despite Plaintiffs’ requests in the Original Petition, filed in March
2020, and in each subsequent amended petition!?: Special Warranty Deed (Exhibit
10, Defendants’ Motion); Deposition of Alfred Schlieske (Exhibit 11, Defendants’
Motion); Affidavit of Brad Irelan (Exhibit 13, Defendants’ Motion); Affidavit of
Debra Paseur (Exhibit 14, Defendants’ Motion). Plaintiffs request that the Exhibits
10, 11, 13 and 14 be struck to the extent of Defendants’ usage and reliance thereon.
Plaintiffs further object to Defendants’ inclusion as an exhibit their wnfiled and
unserved draft of a summary judgment motion (Exhibit 17, Defendants’ Motion) as
not relevant. Plaintiffs further request that the Exhibit 17 be struck to the extent of
Defendants’ usage and reliance thereon.
3 eg (a) A party may ask for the correct names of the parties to the lawsuit. Tex. R. Civ. P. 194.2(a).
(b) Potential parties.
A party may ask for the name, address, and telephone number of any potential party. Tex. R. Civ. P. 194.2(b). Potential
parties can be a good source of information, just like fact witnesses.
(c) Contentions.
A party may ask for the legal theories and, in general, the factual bases of the responding party's claims or defenses.
Tex. R. Civ. P. 192.3(j), 194.2(c). These requests are similar to so-called “contention interrogatories” and may be used
for the same purpose. Tex. R. Civ. P. 194 cmt. 2.
(d) Damages.
A party may ask for the amount and any method of calculating economic damages, Tex. R. Civ. P. 194.2(d).
(e) Fact witnesses.
A party may ask for the name, address, and telephone number of any person with knowledge of relevant facts, and a
brief statement of each identified person's connection with the case. Tex. R. Civ. P. 194.2(e).” Tex. R. Civ. P. 194.
Plaintiffs’ Response to Defendants’ Motion for Sanctions 14
h Plaintiffs also object to the Affidavit of Debra Paseur because it contains
inadmissible hearsay. Plaintiffs request that Exhibit 14 be struck to the extent of
Defendants’ usage and reliance thereon.
Plaintiffs object to the Figure-1 on page 4 of Defendants’ Motion regarding the
“One-Acre" Tract/the Williams Property and the two entries referencing
settlements as irrelevant. Furthermore, the JW Defendants haye stated an incorrect
settlement amount.
Plaintiffs also object to Figure | on page 4 regarding the Gardaphe TractJW
Conroe/Tractor Supply Tract (3.9 acres) because it is inaccurate and misleading."
IV. ARGUMENT AND AUTHORITIES
A. Plaintiffs had absoluie right to nonsuit:
4.1 Texas Rule of Civil Procedure 162 permits a plaintiff to voluntarily dismiss his
claims or nonsuit a party opponent at any time before he has introduced all his evidence other than
rebuttal evidence. Tex. R. Civ. P. 162; In re Bennett, 960 S.W.2d 35, 38 (Tex.1997) (orig.
proceeding), cert. denied, 525 U.S. 823, 119 8, Ct. 66, 142 L.Ed.2d 52 (1998). Texas Rules of
Civil Procedure 162 provides, as follows:
“At 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,
Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be
heard on a pending claim for affirmative reliefor excuse the payment of all costs taxed by
the clerk. A dismissal under this rule shall have no effect on any motion for sanctions,
attorney's fees or other costs, pending at the time of dismissal, as determined by the court.
[Italics added.]” /d.
bm
' See, Ex, 3-16 —a printout from real property records showing conveyances regarding J. W. Conroe 1, Lid,
Plaintiffs’ Response to Defendants’ Motion for Sanctions 15
42 In the instant case, Plaintiffs nonsuited all of their claims no later than March 1,
2021when this Court signed the Order of Nonsuit. A nonsuit extinguishes a case from the moment
the motion is filed and renders the merits of the nonsuited case moot and jurisdiction a to the claim
is lost. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862-63 (Tex. 2010). “A trial court generally
has no discretion to refuse to dismiss the suit, and its order dismissing the case is ministerial”.
University of Texas Medical Branch at Galveston y. Estate of Blackmon ex. Rel. Schultz, 195
S.W.2d 98, 100 (Tex. 2006); In re Bennett, 960 S.W.2d at 38. The entry of the dismissal order is
the starting point for determining the expiration of the trial court's plenary power. Jd. Tex. R. Civ.
P. 329b. Rule 162 expressly limits the right to nonsuit an entire cause when the defendant has a
claim for affirmative relief pending. Tex. R. Civ. P. 162; see also Bennett, 960 S.W.2d at 38. The
IW Defendants treat their counter-claims for attorney’s fees under the UDJA and Rule 13 of the
Texas Rules of Civil Procedure as still pending. They are incorrect under the following applicable
law.
B._Court’s plenary power had expired:
4.3 “Rule 162 only permits the trial court to hold hearings and enter orders affecting
costs, attorney's fees, and sanctions, even after notice of nonsuit is filed, while the court retains
plenary power [emphasis added]. Jn re Midland Funding, LLC, 527 S.W.3d 296, 299 (Tex.App.-
El Paso, 2016), citing Jn re Bennett, 960 S.W.2d at 38; Scott & White Mem’! Hospital v.
Schexnider, 940 S.W.2d 594, 596 (Tex. 1996). The plenary power of the Court expired on March
31, 2021, thirty days after the Order of Nonsuit was signed, because there were no pending counter-
claims on March 1, 2021, thereby effectuating a dismissal of the entire lawsuit. In fact, the Court
indicated the lawsuit as “disposed” upon signing the Order of Nonsuit. Any counter-claim of the
Defendants for attorney’s fees under the UDJA were, at best, conditional filings due to the
Plaintiffs’ Response to Defendants’ Motion for Sanctions 16
nonpayment by the JW Defendants of the mandatory filing fees. Tex. Gov. Code 51.317; see,
Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (A document is “conditionally filed” when
tendered to the clerk, but the filing is not complete until the filing fee is paid.)'* And, the claim for
Rule 13 as sanctions was not asserted until after the Court’s plenary power had expired. Therefore,
any ruling by the Court on the Defendants’ Motion would be a nullity. Moore v. Brown, 993
S.W.2d 871, 874 (Tex. App.-Fort Worth 1999, pet. denied) (stating that once “a trial court's plenary
power has expired, it has no jurisdiction to modify or change its original judgment except by bill
of review”).
44 The JW Defendants seek the entirety of their attorney’s fees from the inception of
the lawsuit. Defendants believe they are entitled to these fees apparently because they requested
attorney’s fees in their Original Answers in the prayers for relief, then responded in their
Interrogatory responses on October 16, 2020 that they are entitled to recover Section 37.009
attorney’s fees “when the Court finds adversely to Plaintiffs”, then asserted the Section 37.009
attorney’s fees counter-claims in their Amended Answers on January 27, 2021. On October 16,
2020, the only declaratory judgment claims pending involved Plaintiffs’ right to an easement or
public right of way to Edith Lane. The declaratory judgment claim regarding the November 2017
JW Clovis JW Conroe Easement Agreement was not asserted until two weeks later on October 30,
2020 and, other than the UDJA claims asserted only against Precision Homes, was the only
remaining UDJA claim pending at the time the counter-claim for Section 37.009 attorney’s fees
was asserted on January 27, 2021 and the Order of Nonsuit was signed on March 1, 2021. Hence,
the UDJA claim regarding the November 2017 JW Clovis JW Conroe Easement Agreement that
was pending when the Court signed the Order of Nonsuit was not the underlying factual or legal
1s See, Section II hereinabove.
Plaintiffs’ Response to Defendants’ Motion for Sanctions 17
basis for Defendants’ Section 37.009 counter-claims on October 16, 2020 when they responded to
interrogatories. Thus, Defendants’ argument that the basis for the Section 37.009 attorney’s fees
is the lack of merit of Plaintiffs’ claims from the inception of the lawsuit cannot be reconciled with
the timeline.
45 The timeline of events are shown, as follows:
a The JW Defendants filed their Answers in which they requested their attorney’s
fees in their prayers for relief on May 11, 2020; the Answers also include a Rule 788 “Not Guilty”
plea which, in a trespass to try title cause of action, has the effect of placing the burden on a
plaintiff to prove his or her right to recover land. Cox v. Olivard, 482 S.W.2d 682, 685 (Tex.App.-
-Dallas 1972, writ ref’d n.r.e.); Tex. R. Civ. P. 788. “Such plea or any other answer to the merits
shall be an admission by the defendant, for the purpose of that action, that he was in possession
of the premises sued for, or that he claimed title thereto at the time of commencing the action,
unless he states distinctly in his answer the extent of his possession or claim, in which case it shall
be an admission to such extent only. Tex. R. Civ. P. 790. Why Defendants included this guilty plea
in their Answers until January 27, 2021 is unknown. Defendants thus sent mixed signals, to wit —
that they claim title to the relevant properties versus Brad Irelan’s warning to Plaintiffs and
delivery of conveyance deeds to not sue the JW Defendants as they had sold the relevant
properties.!¢
b. The JW Defendants responded on October 16, 2020 to Interrogatories that request
the basis of their request for attorney’s fees in their prayers for relief that they are entitled to
recover attorney’s fees under the Texas Uniform Declaratory Judgment Acts “when the Court finds
adversely to Plaintiffs.” The Order of Nonsuit is not equivalent to a finding of the Court adverse
16 See also, Paragraphs 4.26, 5.2, and 5.12.
Plaintiffs’ Response to Defendants’ Motion for Sanctions 18
to Plaintiffs. It would seem, therefore, that the condition of an adverse finding has failed and
Defendants’ request for attorney’s fees is moot.
Cc. The JW Defendants responded on October 16, 2020 to Requests for Production for
their attorney fee agreement and invoices that they “will produce later”. They never produced
them and the discovery deadline was on or about February 17, 2021.
d Plaintiffs filed their Fourth Amended Petition on October 30, 2020, in which for
the first time they seek declaratory relief regarding the JW Clovis JW Conroe Easement
Agreement; until then, any declaratory relief related to the causes of action to establish an implied
dedicated public road.
€. JW Clovis filed a First Amended Answer on January 12, 2020, with a similar prayer
for relief to that contained in their previous answers.
f. On January 5, 2021, Defendants filed a Motion for Leave to file an Amended
Answer in which they acknowledged, as follows -
The purpose of JW Clovis’ and JW Conroe’s amendments is to correct a procedural defect
in their pleadings. Specifically, the Plaintiffs’ Petition did not include any trespass-to-
try title claims against JW Clovis and JW Conroe because neither of these entitles
own the access easement property at issue in Plaintiffs’ trespass-to-try title claims.
JW Clovis’ Second Amended Answer and JW Conroe’s First Amended Answer reflect this
development by removing the “not guilty” pleading as required by the owner of real
property in a trespass-to-try title claim under Rule 788 of the Texas Rules of Civil
Procedure.
Thus, on January 5, 2021 Defendants clearly disputed, for the first time, an ownership interest in
the relevant properties.
8. On January 15, 2021, the JW Defendants designated experts to testify to attorney’s
fees.
Plaintiffs’ Response to Defendants’ Motion for Sanctions 19
h. Shortly thereafter, on January 27, 2021, JW Clovis filed its Third Amended Answer
and JW Conroe filed its Second Amended Answer, adding the counter-claim for Section 3.009
attorney’s fees in defense of Plaintiffs’ claims seeking declaratory relief.
1 The discovery deadline was on or about February 17, 2021, or 90 days before the
May 17, 2021 trial. The time passed to respond to Plaintiffs’ Request for Disclosure to name
Exchangeright, Debra Paseur or Alfred Schlieske, or to supplement the Responses to Requests for
Production of Documents to produce the attorney’s fees agreements and invoices.
J The crux of Defendants’ request for attorney’s fees back to the inception of the
lawsuit is apparently that the they were forced to defend against the UDJA claim to establish the
validity and enforceability of the Easement Agreement as to Plaintiffs. But this UDJA claim was
not added until October 30, 2020 in Plaintiffs’ Fourth Amended Petition, before Defendants
responded on October 16, 2020 to Plaintiffs’ Interrogatories that the basis for their attorney’s fees
was authorized under Section 37.009. If this Court is of the opinion that Defendants are entitled to
an award of attorney’s fees at all, then no matter how this timeline is analyzed, at most, Defendants
are only entitled to an award of reasonable and necessary attorney’s fees incurred since October
30, 2020, !7
'’ They even acknowledge on January 5, 2021, above, that the guilty plea was a procedural defect because the
trespass-to-try-title claims and other UDJA claims filed in the Original Petition were not applicable to Defendants
based on their non-ownership in the relevant properties. Hence, the Defendants’ attorney’s fees prior to October 30,
2020 under Section 37.009 could not have been incurred. This timeline further establishes that Defendants’
sworu Interrogatory responses on October 16, 2020 regarding their basis for the recovery of Section 37.009
attorney’s fees were irrefutably false. The Section 37.009 counter-claims were not pled until January 27, 2021,
three months after the Fourth Amended Petition was filed that included for the first time the UDJA claim for
declaratory relief to establish the validity and enforceability of the JW Clovis JW Conroe Easement Agreement. But,
notwithstanding all of the above, it is illogical that the JW Defendants would have incurred any attorney’s fees at all
to respond to the UDJA claim regarding the November 2017 JW Clovis JW Conroe Easement Agreement as
Defendants would not be impacted or affected in any way regardless of the Court’s ultimate finding on this UDJA
claim. The glaring bottom line is that Defendants should not have incurred any attorney’s fees on this UDJA claim,
much less reasonable and necessary fees. And, any other UDJA claim either had been removed from the Fourth
Amended Original Petition in the manner of a nonsuit or was related to the adjudication ofan easement or implied
dedicated road and thus not directed to the JW Defendants.
Plaintiffs’ Response to Defendants’ Motion for Sanctions 20
k The Court signed the Order of Nonsuit on March 1, 2021, which effectuated a
disposition of all claims. The attorney’ fees invoices and fee agreements are no longer admissible
as the merits of the lawsuit’s claims became moot on March 1, 2021. Furthermore, they are not
admissible to prove up the necessity and reasonableness of Defendants’ attorney’s fees because
the discovery deadline passed on or about February 17, 2021 and, pursuant to Texas Rules of Civil
Procedure 193.7, Defendants are now precluded from admitting their attorney fees.
C. Alternatively, the Court should exercise its discretion to deny the motion for attorney’s
fees because there is not any evidence in the record for the Court to consider in deciding whether
the attorney’s fees are reasonable and necessary:
4.6 Alternatively, in the event the plenary power of the Court has not expired, the Court
should exercise its discretion to deny an award of attorney’s fees under the UDJA because the
attorney’s fees are not reasonable or just, as demonstrated in Paragraph 4.4, above. See, Oake v.
Collin County, 692 S.W.2d 454, 455 (Tex.1985); Redwine v, AAA Life Ins. Co., 852 S.W.2d 10,
17 (Tex.App.-Dallas 1993, no writ). The Uniform Declaratory Judgments Act does not require an
award of attorney fees to the prevailing or non-prevailing party'®. See Ridge Oil Co. v. Guinn Inv.,
Inc., 148 S.W.3d 143, 161-62 (Tex. 2004); Kings River Trail Ass’n Pinehurst Trail Holdings,
L.L.C, 447 8.W.3d 439, 451-52 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A trial court
even has the discretion to decline to award reasonable and necessary attorney’s fees that are
supported by sufficient evidence if that court concludes an award of such fees is inequitable or
unjust. Jd. What is not discretionary, however, is the necessity for sufficient evidence that any
fees are reasonable and necessary and any award is equitable and just:
18 A defendant is a prevailing party when a plaintiff nonsuits a case “with prejudice”. In contrast, a nonsuit “without
prejudice” works no such change in the parties' legal relationship. Epps v. Fowler, 351 $.W.3d 862, 869 (Tex. 2011).
Plaintiffs nonsuited with prejudice the claims against Precision Homes following the settlement and nonsuited without
prejudice the claims against the JW Defendants.
Plaintiffs’ Response to Defendants’ Motion for Sanctions 2
The Declaratory Judgments Act entrusts attorney fee awards to the trial court's sound
discretion, subject to the requirements that any fees awarded be reasonable and necessary,
which are matters of fact, and to the additional requirements that fees be equitable and
just, which are matters of law. [] There must be sufficient evidence that the fees are
reasonable and necessary and that the award is not inequitable or unjust. [] Unreasonable
fees cannot be awarded, even if the court believed them just, but the court may conclude
that it is not equitable or just to award even reasonable and necessary fees [internal
citations omitted] [emphasis added]. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998).
If a case is tried to the bench, the trial court determines all four factors and the amount of the award
generally rests in the sound discretion of the trial court, subject to review for abuse. Anderton v.
Gr
Preview
NO. 20-03-04222 ROBERT WILLIAMS AND IN THE DISTRICT COURT MICHELLE WILLIAMS Plaintiffs Vv. 284" TH JUDICIAL DISTRICT PRECISION HOMES CUSTOM BUILDERS, INC., JW CLOVIS Il, LTD., AND JW CONROE I, LTD. Defendants MONTGOMERY COUNTY, TEXAS PLAINTIFFS’ MOTION TO DISMISS OR DENY DEFENDANTS’ MOTION FOR ATTORNEY’S FEES FOR LACK OF SUBJECT MATTER JURISDICTION, AND, ALTERNATIVELY, SPECIAL EXCEPTIONS, OBJECTIONS AND RESPONSE TO DEFENDANTS’ MOTION FOR ATTORNEY’S FEES NOW COME Plaintiffs, Robert and Michelle Williams, Husband and Wife, and file this response to Defendants’ J.W. Clovis III, Ltd.’s and J. W. Conroe I, Ltd.’s Motion for Attorney’s Fees Under Texas Civil Practice & Remedies Code Section 37.009 and Texas Rules of Civil Procedure 13 (“Defendants’ Motion” or “Motion”), and in support thereof, show the Court the following: INTRODUCTION Plaintiffs believe that the Court lost its plenary power on March 31, 2021 and no longer has subject matter jurisdiction to decide Defendants’ Motion, filed on April 8, 2021. (see below, Paragraph 1.1, Section II and Paragraph 4.3). Alternatively, Defendants’ Motion is an Plaintiffs’ Response to Defendants’ Motion for Sanctions unprofessional exercise in speculation that boils down to nothing more than their legal opinion! that Plaintiffs’ Original Petition had no merit in fact or law because Plaintiffs, at the time they closed on their property on May 31, 2017, “knew” they did not have a “recorded” access easement to Edith Lane or an adjudication or definitive proof that Edith Lane had been impliedly dedicated to Montgomery County. The merits of Plaintiffs’ claims becaine moot upon the Court’s signing of the Amended Order of Nonsuit on March 1, 2021 (“Order of Nonsuit”). (No evidence was in the record on March 1, 2021, and much of Defendants’ evidence in support of their motion is precluded under Texas Rules of Civil Procedure 193.7 from admission because of Defendants’ discovery failures.) Nevertheless, a review of the March 2020 Original Petition plainly shows its merit, in fact and law, and gives notice to Defendants of their alleged destruction in approximately June of 2018 of Plaintiffs’ access to their property on Edith Lane and the issue of the unknown impact on Plaintiffs’ usage of Edith Lane of the November 2017 JW Clovis JW Conroe Easement Agreement. The question of title to the relevant properties affected by this easement agreement was not dispositive of Plaintiffs’ claims and did not render Plaintiffs’ claims against the JW Defendants meritless. Even if Plaintiffs’ Original Petition lacked merit, Defendants have waived any complaint, and the Court must construe the Original Petition liberally?, Defendants’ argument that they are the “prevailing party” because Plaintiffs nonsuited to avoid an unfavorable result (and, therefore, Defendants should be awarded their reasonable and necessary attorney’s fees) is wholly incorrect and based on contrived and “invented”? evidence. (See, below, Paragraphs 1.2 and 4.1 through 4.14.) Nor is the “prevailing party” status even controlling on the issue of an award ' See, Ex. 3-4, correspondence and documents from Plaintiffs’ former attorney, Michael Boltz, who referred Plaintiffs to the undersigned attorney, that is probative on the existence of another legal opinion on the merits of the lawsuit. 2 In the absence of special exceptions, a petition will be liberally construed in pleader’s favor to support judgment. Lowther v. Lowther, 578 $.W.2d 560 (Civ. App. 1979) ref. n.r.e. 3 See, Paragraph 5.6. Plaintiffs’ Response to Defendants’ Motion for Sanctions of attorney’s fees under Section 37 of the Texas Civil Practice & Remedies Code since a trial court “may” award attorney’s fees to the prevailing party, to the non-prevailing party, or to no party at all. Nevertheless, Plaintiffs’ evidence establishes irrefutably that Plaintiffs did not nonsuit to avoid an unfavorable result, but nonsuited shortly after settling with Defendant Precision Homes Custom Builders, Inc. on February 11, 2021 and in consideration of other documented non-Epps factors. Finally, Defendants have not only failed to specify which pleading Plaintiffs’ counsel signed in violation of Texas Rule of Civil Procedure 13, they have wholly failed to demonstrate that Plaintiffs acted in bad faith or to harass Defendants in signing the Original Petition or any subsequent pleading, for that matter. (See, below, Paragraphs 1.4 through 1.5 and 4.15 through 4.27) Hence, this Court should dismiss for want of jurisdiction or, alternatively, exercise its discretion and deny Defendants’ motion for attorney’s fees that are based on their counter-claims under Section 37.009 of the Texas Civil Practice and Remedies Code, first pled on January 27, 2021. The Court should also deny the motion for Rule 13 sanctions. Furthermore, if the Honorable Court is inclined to award any amount of reasonable and necessary attorney’s fees to Defendants, Defendants’ evidence is not only inadmissible to prove their reasonableness and necessity, but any award would be inequitable and unjust. I. SUMMARY 11 No plenary power: This Court’s plenary power expired no later than March 31, 2021 when this Court signed its Amended Order Granting Motion for Nonsuit (“Order of Nonsuit”). Plaintiffs nonsuited the entirety of their claims no later than March 1, 2021 at which time the counter-claims for attorney’s fees of Defendants J. W. Clovis III, Ltd. (“JW Clovis”) and J. W. Conroe I, Ltd. (“JW Conroe”) (collectively, “Defendants” or “JW Defendants”) were Plaintiffs’ Response to Defendants’ Motion for Sanctions conditional due to the failure of the JW Defendants to pay the filing fees for the counter-claims. There were no affirmative claims for relief pending. The Defendants’ motion for Section 37.009 attorney’s fees and Rule 13 motion for sanctions were not filed until April 8, 2021. Thus, the Order of Nonsuit disposed of the lawsuit in its entirety and the thirty-day plenary power period expired on March 31, 2021 —prior to April 8, 2021 when the Motion was filed. See Section II, hereinbelow. 1.2 Nonsuit not taken to avoid an unfavorable result: Alternatively, if this Court determines its plenary power has not expired prior to the filing of Defendants’ Motion, the nonsuit of the case, nevertheless, did not violate Texas Rules of Civil Procedure 162 because the nonsuit was not taken to avoid an unfavorable result, but was taken for several documented reasons. Defendants mistakenly claim to be the prevailing party of their respective Section 37.009 counter-claims on the basis that Plaintiffs nonsuited to avoid an unfavorable result. However, the primary reason for nonsuiting was that Plaintiffs reached a settlement on February 11, 2021 with Defendant Precision Homes Custom Builders, Inc. (“Precision Homes”) that involved the sale of their Edith Lane property in issue to Defendant Precision Homes. Plaintiffs instructed their counsel to refrain from nonsuiting the claims until the Precision Homes settlement check cleared the bank, which occurred on or about February 26, 2021. In the interim, while awaiting the clearance of the settlement check, Plaintiffs’ counsel, with the consent of Plaintiffs, continued to attempt to reach a good faith settlement with the JW Defendants, but any settlement attempts were to no avail. None of the Epps factors courts consider in evaluating whether a nonsuit was taken to avoid a negative result was present prior to the nonsuit. Therefore, Defendants are not the prevailing party. Even if they were, this Court should exercise its discretion and deny Defendants’ claim for attorney’s fees and require each party to bear their respective attorney’s fees based upon the history of the case, the overwhelming legitimacy of Plaintiffs’ lawsuit, and the Plaintiffs’ Response to Defendants’ Motion for Sanctions Defendants’ resting on their rights. Further, for the same reasons, any award of any amount of fees to Defendants, whether reasonable and necessary or not, would not be equitable or just. See, (Section IV, Paragraphs 4.1 through 4.15, hereinbelow.) 1.3 Record devoid of evidence supporting an award of attorney’s fees to Defendants: Defendants are precluded from submitting evidence from the record on the Plaintiffs’ claims because they have been rendered moot by the Order of Nonsuit’. At the time of the nonsuit, no evidence had been submitted in the record of the Court to consider in reviewing the necessity and reasonableness of the attorney’s fees. Therefore, this Court should deny Defendants’ Motion as there is no evidence, much less sufficient evidence, to support the reasonableness and necessity of Defendants’ attorney’s fees or that such award of attorney’s fees would be equitable and just. Furthermore, the JW Defendants failed to respond to Plaintiffs’ Request for Production of Documents, numbers 55 and 56,5 which requested copies of their fee agreements and invoices reflecting their attorney’s fees. Each Defendant responded they would produce the documents, but had not done so by the time the Order of Nonsuit was signed or by the February 17, 2021 discovery deadline. Further, they failed to serve any response at all to Plaintiffs’ Requests for Disclosure. This means that most of Defendants’ exhibits may not be introduced, including Brad Irelan’s Affidavit in support of attorney’s fees, that is subject to exclusion upon proper objection. (See, Section III, hereinbelow.) Nor can Defendants offer the evidence of the material or information that was not timely disclosed. (See, Section IIT, hereinbelow.) 1.4 Award of attorney’s fees as sanctions under Rule 13 is improper: Alternatively, 4 Plaintiffs’ UDJA action involving the Easement Agreement is moot because of Plaintiffs’ sale of the property in issue to Precision Homes and any ruling on such claim would be an improper advisory opinion. See, Ex. 3-5. 5 See, Ex. 1 (Responses 55, 56) and Ex. 2 (Responses 55, 56). Plaintiffs’ Response to Defendants’ Motion for Sanctions the Defendants’ Motion fails on its face to meet its threshold burden to “identify” a specific pleading that was signed in violation of Rule 13. Defendants’ only reference in the Rule 13 motion to a pleading is to the “lawsuit”. On the assumption that the lawsuit is the specific pleading signed in violation of Rule 13, Plaintiffs respond to the Rule 13 motion as if the Original Petition is the specific pleading. Defendants also negated the first prong of the Rule 13 analysis — that the lawsuit was “groundless” when filed — by their own admission that Plaintiffs “admittedly inquired into the legal and factual basis for their claims against the JW Defendants prior to filing the lawsuit”. The inquiry should stop there and the Rule 13 motion denied. Defendants also cannot meet the second prong requiring a showing of “bad faith” where “bad faith” is defined as the “conscious doing of a wrong for dishonest, discriminatory, or malicious purposes” or that the lawsuit was filed to harass the JW Defendants. Defendants also failed to cite to any evidence on the issue of the motive of Plaintiffs or their counsel at the time they filed the Original Petition that would indicate “bad faith” or intent to harass. Although, Defendants seem to rely on a finding of intent to harass rather than” bad faith” to satisfy the second prong of the analysis, Plaintiffs respond to each allegation that Defendants presumably rely upon as the basis to support “bad faith” or intent to harass even though these allegations are not specifically addressed in the Defendants’ Rule 13 motion in Section III, Section F of Defendants’ Motion. This Court should deny Defendants’ Rule 13 request for sanctions. (See, Section IV, Paragraphs 4.15 through 4.27 and Section V). 1.5 Attorney’s fees are unreasonable and unnecessary and any award would be inequitable and unjust: Alternatively, even arguendo were the Defendants able to overcome the hurdles stated above in Paragraphs 1.1 through 1.4, Defendants have failed to segregate their fees between each of the JW Defendants, between the declaratory judgment cause of action added Plaintiffs’ Response to Defendants’ Motion for Sanctions in the October 30, 2020 amended petition and the causes of action against the JW Defendants in the preceding petitions, and between the motion for attorney’s fees under Rule 37.009 of the Texas Civil Practice & Remedies Code (““UDJA” or “Section 37.009) and under Rule 13 of the Texas Rules of Civil Procedure (“Rule 13”). Additionally, as stated in Paragraph 1.4, hereinabove, the Defendants have failed to specify the particular pleading which was signed in violation of Rule 13, only refer ng generally to the “lawsuit”. (See Section III, Paragraphs 3.2. 3.3 and 3.5a, hereinbelow.) 1.6 Defendants’ Motion misleads the Court in Paragraph 5.6 where Defendants’ wn sworn interrogatory responses controyert their repeated claim that Duane Bingham/the JW Defendants_offered_an_easement_to Plaintiffs: Notwithstanding all of the above, and, alternatively, to the above, out of an abundance of caution, Plaintiffs have no choice but to respond to Defendants’ spurious claims and demonstrate the legitimacy of Plaintiffs’ lawsuit and good faith of Plaintiffs. Defendants’ Motion is nothing more than a costly exercise in spite and greed that cannot support the request for attorney’s fees or sanctions under any theory. (See, Section V, hereinbelow, especially Paragraph 5.6). 1.7 Special Exceptions, Objections and Motion to Strike: Plaintiffs also specially except to Defendants’ Motion because it is unartfully drafted; it is ambiguous and unclear. Defendants’ confusing inclusion of the two distinct motions for attorney’s fees into one motion is improper and places an unfair burden on Plaintiffs. It is, likewise, unclear in Brad Irelan’s Affidavit in the paragraph discussing his pre-suit communications with Plaintiffs’ counsel as to which motion these statements are intended to support. Plaintiffs also interpose objections to the evidence submitted with Defendants’ Motion and the motion itself, including the Affidavit of Brad Irelan. Finally, Plaintiffs move to strike Defendants’ Motion and Exhibits 1 through 17 to the extent of Plaintiffs’ Response to Defendants’ Motion for Sanctions Defendants’ usage and reliance thereon. (See Section III, hereinbelow.) II. LACK OF PLENARY POWER Court’s plenary power to consider and rule on Defendants’ Motion, filed on April 8, 2021, expired on March 31, 2021. 2.1 Defendants’ Motion is comprised of a request for payment of the entirety of Defendants’ attorney’s fees under two theories: (1) Defendants’ counter-claims for their attorney’s fees (first added to their Amended Answers in January 2021) in response to Plaintiffs’ request for declaratory relief under the Uniform Declaratory Judgments Act (“UDJA”) in the Fourth Amended Original Petition; and (2) Defendants’ motion for attorney’s fees as sanctions under Texas Rule of Civil Procedure 13. At the time of the nonsuit, the Fifth Amended Petition was the live pleading, but mirrored the Fourth Amended Petition as to any declaratory judgment relief request. 2.2 UDJA counter-claims were conditional at time of nonsuit - Defendants’ counter- claims in their Amended Answers were conditional until the filing fees were paid. Tex. Gov. Code 51.3179; see, Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (A document is “conditionally filed” when tendered to the clerk, but the filing is not complete until the filing fee is paid.) Both Defendants, JW Clovis and JW Conroe, failed to pay their respective filing fee for these counter- claims first added in January 2021. Thus, on March 1, 2021, as Plaintiffs had nonsuited all of their claims and the Court had signed its Order of Nonsuit, and there were no counter-claims or a sanctions motion of record, the Court designated the lawsuit as “disposed” as all parties and claims had been disposed of. Lehman y. Har—Con Corp., 39 S.W.3d 191, 195 (Tex.2001). 6 Texas Government Code 51.317 (“ (a) The district clerk shall collect at the time the suit or action is filed the fees provided by Subsections (b) and (b-1) for services performed by the clerk. (b) The fees are: (1) except as provided by Subsection (b-1), for filing a suit, including an appeal from an inferior court, $50; (2) for filing a cross-action, counterclaim, intervention, contempt action, motion for new trial, or third-party petition, $15.2") Plaintiffs’ Response to Defendants’ Motion for Sanctions 2.3 The entirety of Plaintiffs’ claims were nonsuited on March 1, 2021, when the Court signed the Order of Nonsuit. “A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final judgment.” Tex. R. Civ. P. 329b(d).’ Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988) (During the thirty-day period, the trial court has plenary power to change its judgment.). The timely filing of a post judgment motion for new trial, or a motion to modify, correct or reform the judgment, extends the thirty-day period of plenary power. Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex. 1985). Neither the Defendants nor Plaintiffs filed an appropriate post judgment motion to extend the plenary power. Defendants’ Motion was filed on April 8, 2021, more than thirty-days after the Order of Nonsuit that disposed of all claims. At the time of the nonsuit, there were no pending counter-claims (because the counter-claims were conditional until the filing fees were paid), nor had the Defendants’ Motion even been filed requesting attorney’s fees and sanctions; thus, the Order of Nonsuit disposed of all parties and claims and the Order of Nonsuit was a dismissal of the lawsuit triggering the running of the 30 day plenary power period. 24 A trial court may “consider a motion for attorneys' fees filed after the dismissal so long as that motion is heard while the trial court retains plenary jurisdiction.” Hoheisel v. Boyd, 2020 WL 370570, at *3 (Tex.App.-Fort Worth, 2020), quoting Beasley v. Soc'y of Info. Mgmt., Dallas Area Chapter, No. 05-17-01286-CV, 2018 WL 5725245, at *6 (Tex. App.—Dallas Nov. 1, 2018, pet. denied) (mem. op.). Therefore, any ruling by the Court on the motion for attorney’s 7 “The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments .. in all district and county courts: (a) A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed. . . (d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed. . . . (g) A motion to modify, correct, or reform a judgment . filed, shall be filed and determined within the time prescribed by this rule for a motion for new trial. . .”. Plaintiffs’ Response to Defendants' Motion for Sanctions fees based on the UDJA counter-claims would be void and a nullity because Defendants’ Motion was filed outside of the plenary power period. 2.5 For the same reasons, the motion for attorney’s fees as sanctions was filed on April 8, 2021, outside the plenary power, and thus any order of the Court would be void. Warfield Elec. of Texas, Inc. v. Harry Hines Property Venture, 871 S.W.2d 273, 275 (Tex. App. Eastland, 1994). “A court has no more power to act in sanction matters without jurisdiction than it does elsewhere. .. A court must have jurisdiction to act or its acts are void.” Jd.; see also Donaldson v. Donaldson, 2017 WL 2588162, at *1 (Tex.App.-Eastland, 2017) (at the time of its order on the motion for sanctions, the trial court had lost its plenary power over this cause); Scott & White Mem'I Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996); Price v. Price, No. 02-14-00319-CV, 2015 WL 4652753, at *2-3 (Tex. App.—Fort Worth Aug, 6, 2015, no pet.) (mem. op.) (A trial court had plenary jurisdiction to grant motion for sanctions even though the motion was not pending when nonsuit was filed; however, a court has no jurisdiction to grant a Rule 13 motion for sanctions after its plenary power has expired.); cf Arndt v. Farris, 633 S.W.2d 497 (Tex. 1982) (permitting sanctions related to post-judgment enforcement and discovery). 2.6 Judicial action taken after the court's jurisdiction has expired is a nullity and beyond the court’s subject matter jurisdiction. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); see also Clewis v. Safeco Ins. Co. of America, 287 S.W.3d 197, 203 (Tex. App. Fort Worth 2009) (citing In re Dickason, 987 8.W.2d 570, 571 (Tex.1998) (orig. proceeding); Coleman v. Sitel Corp., 21 $.W.3d 411, 413 (Tex.App.-San Antonio 2000, no pet.) (holding that after the trial court's plenary power expired, the court had no jurisdiction to change or vacate its judgment); Moore v. Brown, 993 S.W.2d 871, 874 (Tex.App.-Fort Worth 1999, pet. denied) (stating that once Plaintiffs’ Response to Defendants’ Motion for Sanctions 10 “a trial court's plenary power has expired, it has no jurisdiction to modify or change its original judgment except by bill of review”). 2.7 Plaintiffs request that the Court dismiss Defendants’ Motion for want of subject matter jurisdiction following the expiration on March 31, 2021 of the Court’s plenary power. Il. ALTERNATIVELY, PLAINTIFFS FILE SPECIAL EXCEPTIONS AND OBJECTIONS, AND OPPOSE DEFENDANTS’ MOTION A. Special Exceptions to Defendants’ Motion 3.1 Plaintiffs specially except to the Defendants’ Motion because it is vague and unclear and improperly conflates the distinct requests for attorney’s fees in the motion without addressing separately each motion and grounds under which fees are requested and the supporting facts and evidence therefor. Each theory underlying the different motions for fees — under their section 37,009 counter-claims or under Rule 13 of the Texas Rules of Civil Procedure — has a distinct burden or standard of proof. 3.2 Additionally, Plaintiffs specially except because Defendants failed to specify the pleading or pleadings signed in violation of Rule 13, appearing to limit the alleged violation to the lawsuit, which is construed by Plaintiffs to mean the “Original Petition”. 3.3 Plaintiffs also specially except to the Rule 13 motion because the JW Defendants have failed to specify the conduct of Plaintiffs that is implicated in their counsel’s conduct apart from having entrusted their legal representation to their counsel. Therefore, Plaintiffs request that Section III, Section F of Defendants’ Motion be struck as it pertains to Plaintiffs. 3.4 The Court should strike Defendants’ Motion in its entirety with prejudice. B. Objections to Defendants’ Motion and attached Exhibits and Motion to Strike 3.5 Plaintiffs make the following objections and motion to strike: Plaintiffs’ Response to Defendants’ Motion for Sanctions i Plaintiffs object to Defendants’ Motion because it fails to notify Plaintiffs of the specific “groundless” claim or pleading that was signed in violation of Rule 13 of the Texas Rules of Civil Procedure, instead referring generally to the “lawsui 28: Plaintiffs request that the last paragraph of Section III, Section F of Defendants’ Motion and any reference to sanctions be struck. Plaintiffs object to the entirety of Defendants’ Motion to the extent of any references to attached exhibits and those exhibits themselves because the exhibits ere not a part of the record of the Court prior to the nonsuit and are still not part of the record. Plaintiffs request that the Defendants’ Motion and its Exhibits 1 through 18 be struck to the extent of Defendants’ usage and reliance thereon. Plaintiffs object to the Affidavit of Brad Irelan in support of the attorney’s fees requested because the JW Defendants each refused to produce their attorney fee agreement and invoices as requested in Plaintiffs’ Request for the Production of Documents? and each failed to respond to Plaintiffs’ Requests for Disclosures, in violation of Texas Rules of Civil Procedure 193.7.'° Plaintiffs also object because the Court signed the Order of Nonsuit on March 1, 2021, which effectuated a disposition of all parties and claims. The attorney’s fees and fee agreements are no 5 See, page 22- Defendants’ Motion. ° True and correct copies of the JW Defendants’ Responses to Plaintiffs’ Requests for Production of Documents are attached hereto as Exhibits 1 and 2 and show Defendants state they will produce the requested documents. 10 “(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response, including a required disclosure, in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (J) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties, Tex. R. Civ. P. 193.7. Plaintiffs’ Response to Defendants’ Motion for Sanctions 12 longer admissible as the merits of the lawsuit’s claims became moot on March 1, 2021 and, furthermore, they are inadmissible to prove up the necessity and reasonableness of Defendants’ claimed attorney’s fees because the discovery deadline passed on February 17, 2021 and, pursuant to Texas Rules of Civil Procedure 193.7, they are now precluded from admitting the attorney fees.!! Plaintiffs also object to the Affidavit of Brad Irelan in support of Defendants’ Motion for attorney’s fees under the UDJA as defective because Defendants failed to segregate their attorney’s fees between the JW Defendants, as well as between the different causes of action and the UDJA claim not filed until October 30, 2020, as well as between Section 37.009 and Rule 13 motions for fees. Further, Plaintiffs object because the fees are excessive and not reasonable, especially the fees for Defendants’ Motion in the approximate amount of $30,000.00 incurred in the month of March 2021 alone, after the Order of Nonsuit was signed, amounting to approximately one-fifth of the total fees from February 2020 through early April 2021 (or fourteen months).'? Furthermore, the Affidavit testimony of Brad Irelan is unclear if it is offered in support of the Section 37.009 request for fees or the award of Rule 13 violations. Plaintiffs request that the Affidavit and invoices attached thereto be struck. Plaintiffs object to the entirety of Defendants’ exhibits as not being a part of the Court’s record following the Order of Nonsuit when the merits of the claims became moot except as to pending motions for affirmative relief. The absence of evidence in the Court record at the time of the Order of Nonsuit precludes "! See, Paragraph 4.5k, herein. "? Oddly, the JW Defendants omitted to include their February attorney’s fees. Plaintiffx’ Response to Defendants’ Motion for Sanctions 13 consideration of the evidence relied upon by Defendants in Defendants’ Motion. Plaintiffs request that the Exhibits 1 through 18 be struck to the extent of Defendants’ usage and reliance thereon. Plaintiffs also object to Defendants’ usage and reliance on the following exhibits to Defendants’ Motion because Defendants failed to serve any responses to Requests for Disclosures, despite Plaintiffs’ requests in the Original Petition, filed in March 2020, and in each subsequent amended petition!?: Special Warranty Deed (Exhibit 10, Defendants’ Motion); Deposition of Alfred Schlieske (Exhibit 11, Defendants’ Motion); Affidavit of Brad Irelan (Exhibit 13, Defendants’ Motion); Affidavit of Debra Paseur (Exhibit 14, Defendants’ Motion). Plaintiffs request that the Exhibits 10, 11, 13 and 14 be struck to the extent of Defendants’ usage and reliance thereon. Plaintiffs further object to Defendants’ inclusion as an exhibit their wnfiled and unserved draft of a summary judgment motion (Exhibit 17, Defendants’ Motion) as not relevant. Plaintiffs further request that the Exhibit 17 be struck to the extent of Defendants’ usage and reliance thereon. 3 eg (a) A party may ask for the correct names of the parties to the lawsuit. Tex. R. Civ. P. 194.2(a). (b) Potential parties. A party may ask for the name, address, and telephone number of any potential party. Tex. R. Civ. P. 194.2(b). Potential parties can be a good source of information, just like fact witnesses. (c) Contentions. A party may ask for the legal theories and, in general, the factual bases of the responding party's claims or defenses. Tex. R. Civ. P. 192.3(j), 194.2(c). These requests are similar to so-called “contention interrogatories” and may be used for the same purpose. Tex. R. Civ. P. 194 cmt. 2. (d) Damages. A party may ask for the amount and any method of calculating economic damages, Tex. R. Civ. P. 194.2(d). (e) Fact witnesses. A party may ask for the name, address, and telephone number of any person with knowledge of relevant facts, and a brief statement of each identified person's connection with the case. Tex. R. Civ. P. 194.2(e).” Tex. R. Civ. P. 194. Plaintiffs’ Response to Defendants’ Motion for Sanctions 14 h Plaintiffs also object to the Affidavit of Debra Paseur because it contains inadmissible hearsay. Plaintiffs request that Exhibit 14 be struck to the extent of Defendants’ usage and reliance thereon. Plaintiffs object to the Figure-1 on page 4 of Defendants’ Motion regarding the “One-Acre" Tract/the Williams Property and the two entries referencing settlements as irrelevant. Furthermore, the JW Defendants haye stated an incorrect settlement amount. Plaintiffs also object to Figure | on page 4 regarding the Gardaphe TractJW Conroe/Tractor Supply Tract (3.9 acres) because it is inaccurate and misleading." IV. ARGUMENT AND AUTHORITIES A. Plaintiffs had absoluie right to nonsuit: 4.1 Texas Rule of Civil Procedure 162 permits a plaintiff to voluntarily dismiss his claims or nonsuit a party opponent at any time before he has introduced all his evidence other than rebuttal evidence. Tex. R. Civ. P. 162; In re Bennett, 960 S.W.2d 35, 38 (Tex.1997) (orig. proceeding), cert. denied, 525 U.S. 823, 119 8, Ct. 66, 142 L.Ed.2d 52 (1998). Texas Rules of Civil Procedure 162 provides, as follows: “At 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, Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative reliefor excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal, as determined by the court. [Italics added.]” /d. bm ' See, Ex, 3-16 —a printout from real property records showing conveyances regarding J. W. Conroe 1, Lid, Plaintiffs’ Response to Defendants’ Motion for Sanctions 15 42 In the instant case, Plaintiffs nonsuited all of their claims no later than March 1, 2021when this Court signed the Order of Nonsuit. A nonsuit extinguishes a case from the moment the motion is filed and renders the merits of the nonsuited case moot and jurisdiction a to the claim is lost. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862-63 (Tex. 2010). “A trial court generally has no discretion to refuse to dismiss the suit, and its order dismissing the case is ministerial”. University of Texas Medical Branch at Galveston y. Estate of Blackmon ex. Rel. Schultz, 195 S.W.2d 98, 100 (Tex. 2006); In re Bennett, 960 S.W.2d at 38. The entry of the dismissal order is the starting point for determining the expiration of the trial court's plenary power. Jd. Tex. R. Civ. P. 329b. Rule 162 expressly limits the right to nonsuit an entire cause when the defendant has a claim for affirmative relief pending. Tex. R. Civ. P. 162; see also Bennett, 960 S.W.2d at 38. The IW Defendants treat their counter-claims for attorney’s fees under the UDJA and Rule 13 of the Texas Rules of Civil Procedure as still pending. They are incorrect under the following applicable law. B._Court’s plenary power had expired: 4.3 “Rule 162 only permits the trial court to hold hearings and enter orders affecting costs, attorney's fees, and sanctions, even after notice of nonsuit is filed, while the court retains plenary power [emphasis added]. Jn re Midland Funding, LLC, 527 S.W.3d 296, 299 (Tex.App.- El Paso, 2016), citing Jn re Bennett, 960 S.W.2d at 38; Scott & White Mem’! Hospital v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996). The plenary power of the Court expired on March 31, 2021, thirty days after the Order of Nonsuit was signed, because there were no pending counter- claims on March 1, 2021, thereby effectuating a dismissal of the entire lawsuit. In fact, the Court indicated the lawsuit as “disposed” upon signing the Order of Nonsuit. Any counter-claim of the Defendants for attorney’s fees under the UDJA were, at best, conditional filings due to the Plaintiffs’ Response to Defendants’ Motion for Sanctions 16 nonpayment by the JW Defendants of the mandatory filing fees. Tex. Gov. Code 51.317; see, Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (A document is “conditionally filed” when tendered to the clerk, but the filing is not complete until the filing fee is paid.)'* And, the claim for Rule 13 as sanctions was not asserted until after the Court’s plenary power had expired. Therefore, any ruling by the Court on the Defendants’ Motion would be a nullity. Moore v. Brown, 993 S.W.2d 871, 874 (Tex. App.-Fort Worth 1999, pet. denied) (stating that once “a trial court's plenary power has expired, it has no jurisdiction to modify or change its original judgment except by bill of review”). 44 The JW Defendants seek the entirety of their attorney’s fees from the inception of the lawsuit. Defendants believe they are entitled to these fees apparently because they requested attorney’s fees in their Original Answers in the prayers for relief, then responded in their Interrogatory responses on October 16, 2020 that they are entitled to recover Section 37.009 attorney’s fees “when the Court finds adversely to Plaintiffs”, then asserted the Section 37.009 attorney’s fees counter-claims in their Amended Answers on January 27, 2021. On October 16, 2020, the only declaratory judgment claims pending involved Plaintiffs’ right to an easement or public right of way to Edith Lane. The declaratory judgment claim regarding the November 2017 JW Clovis JW Conroe Easement Agreement was not asserted until two weeks later on October 30, 2020 and, other than the UDJA claims asserted only against Precision Homes, was the only remaining UDJA claim pending at the time the counter-claim for Section 37.009 attorney’s fees was asserted on January 27, 2021 and the Order of Nonsuit was signed on March 1, 2021. Hence, the UDJA claim regarding the November 2017 JW Clovis JW Conroe Easement Agreement that was pending when the Court signed the Order of Nonsuit was not the underlying factual or legal 1s See, Section II hereinabove. Plaintiffs’ Response to Defendants’ Motion for Sanctions 17 basis for Defendants’ Section 37.009 counter-claims on October 16, 2020 when they responded to interrogatories. Thus, Defendants’ argument that the basis for the Section 37.009 attorney’s fees is the lack of merit of Plaintiffs’ claims from the inception of the lawsuit cannot be reconciled with the timeline. 45 The timeline of events are shown, as follows: a The JW Defendants filed their Answers in which they requested their attorney’s fees in their prayers for relief on May 11, 2020; the Answers also include a Rule 788 “Not Guilty” plea which, in a trespass to try title cause of action, has the effect of placing the burden on a plaintiff to prove his or her right to recover land. Cox v. Olivard, 482 S.W.2d 682, 685 (Tex.App.- -Dallas 1972, writ ref’d n.r.e.); Tex. R. Civ. P. 788. “Such plea or any other answer to the merits shall be an admission by the defendant, for the purpose of that action, that he was in possession of the premises sued for, or that he claimed title thereto at the time of commencing the action, unless he states distinctly in his answer the extent of his possession or claim, in which case it shall be an admission to such extent only. Tex. R. Civ. P. 790. Why Defendants included this guilty plea in their Answers until January 27, 2021 is unknown. Defendants thus sent mixed signals, to wit — that they claim title to the relevant properties versus Brad Irelan’s warning to Plaintiffs and delivery of conveyance deeds to not sue the JW Defendants as they had sold the relevant properties.!¢ b. The JW Defendants responded on October 16, 2020 to Interrogatories that request the basis of their request for attorney’s fees in their prayers for relief that they are entitled to recover attorney’s fees under the Texas Uniform Declaratory Judgment Acts “when the Court finds adversely to Plaintiffs.” The Order of Nonsuit is not equivalent to a finding of the Court adverse 16 See also, Paragraphs 4.26, 5.2, and 5.12. Plaintiffs’ Response to Defendants’ Motion for Sanctions 18 to Plaintiffs. It would seem, therefore, that the condition of an adverse finding has failed and Defendants’ request for attorney’s fees is moot. Cc. The JW Defendants responded on October 16, 2020 to Requests for Production for their attorney fee agreement and invoices that they “will produce later”. They never produced them and the discovery deadline was on or about February 17, 2021. d Plaintiffs filed their Fourth Amended Petition on October 30, 2020, in which for the first time they seek declaratory relief regarding the JW Clovis JW Conroe Easement Agreement; until then, any declaratory relief related to the causes of action to establish an implied dedicated public road. €. JW Clovis filed a First Amended Answer on January 12, 2020, with a similar prayer for relief to that contained in their previous answers. f. On January 5, 2021, Defendants filed a Motion for Leave to file an Amended Answer in which they acknowledged, as follows - The purpose of JW Clovis’ and JW Conroe’s amendments is to correct a procedural defect in their pleadings. Specifically, the Plaintiffs’ Petition did not include any trespass-to- try title claims against JW Clovis and JW Conroe because neither of these entitles own the access easement property at issue in Plaintiffs’ trespass-to-try title claims. JW Clovis’ Second Amended Answer and JW Conroe’s First Amended Answer reflect this development by removing the “not guilty” pleading as required by the owner of real property in a trespass-to-try title claim under Rule 788 of the Texas Rules of Civil Procedure. Thus, on January 5, 2021 Defendants clearly disputed, for the first time, an ownership interest in the relevant properties. 8. On January 15, 2021, the JW Defendants designated experts to testify to attorney’s fees. Plaintiffs’ Response to Defendants’ Motion for Sanctions 19 h. Shortly thereafter, on January 27, 2021, JW Clovis filed its Third Amended Answer and JW Conroe filed its Second Amended Answer, adding the counter-claim for Section 3.009 attorney’s fees in defense of Plaintiffs’ claims seeking declaratory relief. 1 The discovery deadline was on or about February 17, 2021, or 90 days before the May 17, 2021 trial. The time passed to respond to Plaintiffs’ Request for Disclosure to name Exchangeright, Debra Paseur or Alfred Schlieske, or to supplement the Responses to Requests for Production of Documents to produce the attorney’s fees agreements and invoices. J The crux of Defendants’ request for attorney’s fees back to the inception of the lawsuit is apparently that the they were forced to defend against the UDJA claim to establish the validity and enforceability of the Easement Agreement as to Plaintiffs. But this UDJA claim was not added until October 30, 2020 in Plaintiffs’ Fourth Amended Petition, before Defendants responded on October 16, 2020 to Plaintiffs’ Interrogatories that the basis for their attorney’s fees was authorized under Section 37.009. If this Court is of the opinion that Defendants are entitled to an award of attorney’s fees at all, then no matter how this timeline is analyzed, at most, Defendants are only entitled to an award of reasonable and necessary attorney’s fees incurred since October 30, 2020, !7 '’ They even acknowledge on January 5, 2021, above, that the guilty plea was a procedural defect because the trespass-to-try-title claims and other UDJA claims filed in the Original Petition were not applicable to Defendants based on their non-ownership in the relevant properties. Hence, the Defendants’ attorney’s fees prior to October 30, 2020 under Section 37.009 could not have been incurred. This timeline further establishes that Defendants’ sworu Interrogatory responses on October 16, 2020 regarding their basis for the recovery of Section 37.009 attorney’s fees were irrefutably false. The Section 37.009 counter-claims were not pled until January 27, 2021, three months after the Fourth Amended Petition was filed that included for the first time the UDJA claim for declaratory relief to establish the validity and enforceability of the JW Clovis JW Conroe Easement Agreement. But, notwithstanding all of the above, it is illogical that the JW Defendants would have incurred any attorney’s fees at all to respond to the UDJA claim regarding the November 2017 JW Clovis JW Conroe Easement Agreement as Defendants would not be impacted or affected in any way regardless of the Court’s ultimate finding on this UDJA claim. The glaring bottom line is that Defendants should not have incurred any attorney’s fees on this UDJA claim, much less reasonable and necessary fees. And, any other UDJA claim either had been removed from the Fourth Amended Original Petition in the manner of a nonsuit or was related to the adjudication ofan easement or implied dedicated road and thus not directed to the JW Defendants. Plaintiffs’ Response to Defendants’ Motion for Sanctions 20 k The Court signed the Order of Nonsuit on March 1, 2021, which effectuated a disposition of all claims. The attorney’ fees invoices and fee agreements are no longer admissible as the merits of the lawsuit’s claims became moot on March 1, 2021. Furthermore, they are not admissible to prove up the necessity and reasonableness of Defendants’ attorney’s fees because the discovery deadline passed on or about February 17, 2021 and, pursuant to Texas Rules of Civil Procedure 193.7, Defendants are now precluded from admitting their attorney fees. C. Alternatively, the Court should exercise its discretion to deny the motion for attorney’s fees because there is not any evidence in the record for the Court to consider in deciding whether the attorney’s fees are reasonable and necessary: 4.6 Alternatively, in the event the plenary power of the Court has not expired, the Court should exercise its discretion to deny an award of attorney’s fees under the UDJA because the attorney’s fees are not reasonable or just, as demonstrated in Paragraph 4.4, above. See, Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985); Redwine v, AAA Life Ins. Co., 852 S.W.2d 10, 17 (Tex.App.-Dallas 1993, no writ). The Uniform Declaratory Judgments Act does not require an award of attorney fees to the prevailing or non-prevailing party'®. See Ridge Oil Co. v. Guinn Inv., Inc., 148 S.W.3d 143, 161-62 (Tex. 2004); Kings River Trail Ass’n Pinehurst Trail Holdings, L.L.C, 447 8.W.3d 439, 451-52 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A trial court even has the discretion to decline to award reasonable and necessary attorney’s fees that are supported by sufficient evidence if that court concludes an award of such fees is inequitable or unjust. Jd. What is not discretionary, however, is the necessity for sufficient evidence that any fees are reasonable and necessary and any award is equitable and just: 18 A defendant is a prevailing party when a plaintiff nonsuits a case “with prejudice”. In contrast, a nonsuit “without prejudice” works no such change in the parties' legal relationship. Epps v. Fowler, 351 $.W.3d 862, 869 (Tex. 2011). Plaintiffs nonsuited with prejudice the claims against Precision Homes following the settlement and nonsuited without prejudice the claims against the JW Defendants. Plaintiffs’ Response to Defendants’ Motion for Sanctions 2 The Declaratory Judgments Act entrusts attorney fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law. [] There must be sufficient evidence that the fees are reasonable and necessary and that the award is not inequitable or unjust. [] Unreasonable fees cannot be awarded, even if the court believed them just, but the court may conclude that it is not equitable or just to award even reasonable and necessary fees [internal citations omitted] [emphasis added]. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998). If a case is tried to the bench, the trial court determines all four factors and the amount of the award generally rests in the sound discretion of the trial court, subject to review for abuse. Anderton v. Gr