Fourteenth Court Clarifies Award of Attorney’s Fees Under Rule 91a
In a case of first impression, the 14th Court of Appeals ruled that a trial court may not award attorney’s fees to a movant on a Rule 91a motion if the respondent nonsuits the claims in time to avoid an adverse ruling. Rule 91a provides an avenue to obtain early dismissal of claims that have no basis in law or fact.
The Rule states that a court “must award” the “prevailing party” all costs and reasonable and necessary attorney’s fees; however, in Thuesen v. Amerisure Insurance Co. the 14thCourt found that under the plain meaning of “prevailing party,” a party cannot be a prevailing party if the trial court did not rule on the motion. In the case at issue the movant filed his nonsuit approximately one week before the hearing, but the Court’s opinion did not give any indication as to whether the specific timing played into its decision. As written, the opinion could be construed to mean any nonsuit filed before a trial court “rules” on a Rule 91a motion would be sufficient to avoid paying attorney’s fees.
One troubling implication of the 14th Court’s opinion is that is could further gamesmanship tactics by litigants who file baseless lawsuits. Rule 91a was enacted to provided Defendants a way to recover attorney’s fees when meritless claims are asserted against them. Following the opinion in Thuesen, a plaintiff filing a meritless claim can avoid paying for the Defendant’s attorney’s fees simply by filing nonsuit before the trial court rules on the 91a motion; thus, leaving the Defendant without recourse to recover the fees incurred in filing the motion.
Read more in “Frivolous Lawsuits Stand Less of a Chance in Texas“