Collinwood Seniors, Ltd. v. Ernest Williams

• Court: Court of Appeals of Texas
• Decided: October 30, 2025
• Docket: 03-24-00576-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00576-CV

Collinwood Seniors, Ltd., Appellant

v.

Ernest Williams, Appellee

FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO. C-1-CV-23-005032, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING

MEMORANDUM OPINION

This is an appeal from the county court’s order awarding attorneys’ fees to

Ernest Williams in an eviction case. See generally Tex. Prop. Code §§ 24.001-.011; Tex. R.

Civ. P. 510.1-.13. Collinwood Seniors, Ltd. appeals the county court’s order awarding

Williams attorneys’ fees after the court determined that Williams was a prevailing tenant

entitled to attorneys’ fees pursuant to Texas Property Code section 24.006(c). See Tex. Prop.

Code § 24.006(c) (providing that if lease entitles landlord or tenant to recover attorneys’ fees,

“prevailing tenant” is entitled to recover reasonable attorneys’ fees from landlord). We will

reverse the trial court’s award of attorneys’ fees to Williams.

BACKGROUND

Collinwood filed its forcible detainer suit in justice court on October 16, 2023,

alleging that Williams breached an apartment lease agreement between them by failing to pay rent due on the first day of May, June, July, August, and September 2023. Collinwood alleged

that it had hand delivered to Williams written notice to vacate the leased premises on June 6,

2023; it requested that the court render judgment awarding it possession of the leased premises.

Both parties appeared in justice court for a bench trial on October 24, 2023. The justice court

issued a final judgment awarding Collinwood possession of the leased premises and court costs

of $134.00. The court set a bond at $1,900.00 for appeal to the county court. See Tex. R. Civ.

P. 510.9(b). Williams, appearing pro se, perfected his de novo appeal to the county court by

filing a “Statement of Inability to Afford Payment of Court Costs or an Appeal Bond” with the

justice court. See id. R. 510.9(a). Collinwood did not contest the Statement. See id. R. 510.9(c).

The county court notified Williams that he was required to deposit one month’s rent of $950.00

into the court’s registry to avoid the court’s issuing a writ of possession without a hearing. See

Tex. Prop. Code § 24.0053 (governing payment of rent during appeal of eviction). The case was

set for trial on February 13, 2024.

On December 8, 2023, while the de novo appeal was pending in the county

court, Meals on Wheels issued a check in the amount of $2,210.81 to Collinwood. The check

described the payment as “Client Assistance E Williams April-May 23 Rent Apt 0529.” On

December 18, 2023, El Buen Samaritano issued a check in the amount of $6,000.00 to

Collinwood. The check described the payment as “Ernest James Williams rental assistance.” On

February 12, 2024, counsel for Williams filed an appearance and requested a continuance based

on his having been recently assigned the case by Volunteer Legal Services of Central Texas.

Williams’s counsel filed a general denial and a special denial asserting that Collinwood’s notice

to vacate did not comply with City of Austin ordinances, the Texas Property Code, and federal

2 statutes regulating subsidized properties. Williams requested attorneys’ fees pursuant to section

24.006(c) of the Texas Property Code. See Tex. Prop. Code § 24.006(c).

On June 11, 2024, Collinwood filed a Notice of Nonsuit and Sworn Motion to

Disburse Funds. Collinwood stated that it was dismissing the forcible detainer suit without

prejudice and sought to withdraw any rent held in the county court’s registry. See Tex. R. Civ.

P. 510.9(5)(B)(v). Collinwood asserted that it believed there to be $2,800.00 in the court’s

registry and that it was entitled to that as payment of contractual rent owed to it by Williams

during the pendency of the de novo appeal of the justice court’s judgment awarding possession

of the leased premises to Collinwood. Collinwood stated that any funds received from the

court’s registry would be credited toward William’s rental account. Collinwood attested that

“[u]pon discussion with relevant parties, [Collinwood] accepted partial rental assistance funds

with the understanding that the Registry Funds remain the only unpaid balance up to May 2024.

As such, [Collinwood] files its Notice of Nonsuit and Sworn Motion to Disburse Funds.”

On June 12, 2024, Williams filed a Motion for Attorney’s Fees, requesting that

the court determine that Collinwood nonsuited the case “to avoid an unfavorable ruling on the

merits.” See Epps v. Fowler, 351 S.W.3d 862, 870 (Tex. 2011) (holding that defendant may be

prevailing party when plaintiff nonsuits without prejudice if court determines, on defendant’s

motion, that nonsuit was taken to avoid unfavorable ruling on merits). Williams asserted that

applying the test set forth in Epps, Williams was a “prevailing party” entitled to attorneys’ fees

under Texas Property Code section 24.006(c). Collinwood filed a response asserting that, when

the parties appeared for the January trial setting, Williams had requested that Collinwood agree

to continue the trial so that Williams could secure rental assistance. Collinwood stated that,

during the pendency of the de novo appeal, it worked with Meals on Wheels and El Buen

3 Samaritano to secure rental assistance funds for Williams; that those efforts were successful and

resulted in those organizations’ providing $8,210.81 in rental assistance for Williams; and that

those rental assistance funds satisfied Williams’s outstanding rent balance up to May 2024.

Collinwood stated that in February 2024, its counsel contacted counsel for Williams requesting

an agreement to dismiss the case and disburse the remaining funds that Williams had earlier

paid into the court’s registry to apply as a credit to future rent payments. Williams’s counsel

responded that he would consult with his client, but, according to Collinwood, counsel did not

respond until a month later, when he informed Collinwood that Williams did not agree to the

disbursement of the remaining funds and “wants to go to court.” Collinwood stated that because

it was entitled to the funds Williams had paid into the registry pursuant to Texas Rule of

Civil Procedure 510.9 upon dismissal of the suit, it had filed the Notice of Nonsuit and Sworn

Motion to Disburse Funds. Collinwood explained that, as stated in its notice of nonsuit, it had

successfully worked with Meals on Wheels and El Buen Samaritano to obtain rental assistance

funds that, along with the funds Williams had paid into the court’s registry, covered Williams’s

outstanding rent balance through May 2024. Collinwood argued that, applying the Epps

analysis, Williams was not a “prevailing party” by virtue of Collinwood’s having nonsuited the

case without prejudice.

After a hearing, the court granted Williams’s motion for attorneys’ fees, stating

in its order that “the court is of the opinion that [Collinwood] non-suited its claims in this case

to avoid an unfavorable outcome” and that Williams “is a ‘prevailing tenant’ for purposes of

Texas Property Code 24.006.” The court awarded Williams $3,785.00 in attorneys’ fees. This

appeal followed.

4 DISCUSSION

In its first issue, Collinwood asserts that the trial court did not have jurisdiction to

award Williams attorneys’ fees because it had lost plenary power over the case thirty days after

the notice of nonsuit was filed on June 11, 2024. Collinwood maintains that the order awarding

attorneys’ fees, which was signed on August 1, 2024, was void because it was signed after the

court lost plenary power on July 11, 2024. We disagree.

A nonsuit does not affect a pending claim for affirmative relief or motion for

attorneys’ fees. See Tex. R. Civ. P. 162; Lentino v. Frost Nat’l Bank, 159 S.W.3d 651, 654 (Tex.

App.—Houston [14th Dist.] 2003, no pet.) (citing BHP Petroleum Co. v. Millard, 800 S.W.2d

838, 840, 842 (Tex. 1990)). In his answer, filed in March 2024, Williams requested an award of

attorneys’ fees pursuant to Texas Property Code section 24.006. This pleading constituted a

request for affirmative relief that remained pending despite the notice of nonsuit Collinwood

filed. See Dean Foods Co. v. Anderson, 178 S.W.3d 449, 453 (Tex. App.—Amarillo 2005, pet.

denied) (holding that pleading requesting attorneys’ fees constituted claim for affirmative relief

that remained pending after opposing party’s nonsuit); see Toscano v. Brown, No. 03-25-

00142-CV, 2025 WL 2677890, at *3 (Tex. App.—Austin Sept. 19, 2025, no pet.) (mem. op.)

(recognizing that request for attorneys’ fees pursuant to statute is claim for affirmative relief

authorizing party to be heard under provisions of Texas Rule of Civil Procedure 162). We

overrule Collinwood’s first issue.

In its second issue, Collinwood asserts that the trial court erred in determining that

Williams was a “prevailing tenant” entitled to an award of attorneys’ fees pursuant to Texas

Property Code section 24.006. See Tex. Prop. Code § 24.006(c). Texas adheres to the American

Rule with respect to attorneys’ fees. See Intercontinental Grp. P’ship v. KB Home Lone Star

5 L.P., 295 S.W.3d 650, 653 (Tex. 2009). Under that rule, litigants may recover attorneys’ fees

only if specifically provided for by statute or contract. Id. (citing MBM Fin. Corp. v. Woodlands

Operating Co., 292 S.W.3d 660, 669 (Tex. 2009)). Thus, we must determine whether Texas

Property Code section 24.006(c) authorized the court’s award of fees in this case to Williams.

Section 24.006(c) provides, in pertinent part:

If the landlord provides the tenant notice under Subsection (a) or if a written lease entitles the landlord or the tenant to recover attorney’s fees, the prevailing tenant is entitled to recover reasonable attorney’s fees from the landlord.

Id. The parties join issue on whether Williams “prevailed” when Collinwood nonsuited the

forcible detainer action. The Texas Supreme Court has held that “a defendant may be a

prevailing party when a plaintiff nonsuits without prejudice if the trial court determines, on the

defendant’s motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.”

Epps, 351 S.W.3d at 870. Collinwood contends that an award of attorneys’ fees based on the

“prevailing party” standard set forth in Texas common law was improper because Collinwood

did not nonsuit the forcible detainer action to avoid an unfavorable judgment but because it had

received full payment of rent for Williams’s apartment through May 2024. Whether a party

nonsuited to avoid an unfavorable ruling is a question of fact, which we review for an abuse of

discretion. North Star Water Logic, LLC v. Ecolotron, Inc., 486 S.W.3d 102, 105 (Tex. App.—

Houston [14th Dist.] 2016, no pet.).

In Epps, the supreme court considered whether a defendant is a prevailing party

entitled to attorneys’ fees when a plaintiff nonsuits a case without prejudice. 351 S.W.3d at 864.

The court first noted that a defendant is considered a prevailing party when a plaintiff nonsuits a

case with prejudice because “a nonsuit with prejudice works a permanent, inalterable change in

6 the parties’ legal relationship to the defendant’s benefit: the defendant can never again be sued

by the plaintiff or its privies for claims arising out of the same subject matter.” Id. at 868-69. In

contrast, the court noted, a nonsuit without prejudice works no such change in the parties’ legal

relationship. Id. at 869. Therefore, a defendant generally is not considered a prevailing party

when the plaintiff nonsuits a claim without prejudice. Id.

Identifying an exception to the general rule, the court held that “a defendant may

be a prevailing party when a plaintiff nonsuits without prejudice if the trial court determines, on

the defendant’s motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.”

Id. at 870. The supreme court identified several factors that may support an inference that a

plaintiff nonsuited to avoid an unfavorable ruling: (1) a plaintiff’s nonsuit after a defendant files

a motion for summary judgment; (2) a plaintiff’s failure to respond to requests for admission or

other discovery that could support an adverse judgment; (3) a plaintiff’s failure to timely identify

experts or other critical witnesses; and (4) the existence of other procedural obstacles that could

defeat the plaintiff’s claim, such as an inability to join necessary parties. Id. at 870-71. On the

other hand, “evidence that the suit was not without merit when filed may indicate that the

defendant has not prevailed and is therefore not entitled to attorneys’ fees.” Id. at 871. In

determining whether a nonsuit was filed to avoid an unfavorable ruling, courts should rely as far

as possible on the existing record and affidavits, and resort to live testimony only in rare

instances. Id. at 870.

Collinwood nonsuited its claims three months after Williams filed his answer and

after Collinwood had received full payment of Williams’s unpaid rent from rental assistance

provided by Meals on Wheels and El Buen Samaritano. There is no dispute that when

Collinwood filed its forcible detainer action Williams was in breach of the lease agreement and

7 Collinwood had a valid basis for seeking possession of the leased premises—a factor weighing

against the award of attorneys’ fees. Although Williams asserted defenses to Collinwood’s

forcible detainer action based on allegations of improper or insufficient notice, Williams had not

filed a dispositive motion, nor was Collinwood’s ability to refute these allegations foreclosed

because of failure to respond to requests for admissions or other discovery or failure to timely

identify experts or critical witnesses. None of the factors the Epps court identified to support an

inference that the nonsuit was taken to avoid an unfavorable ruling on the merits are present

here. In fact, the court was not required to make any inference about Collinwood’s reason for

nonsuiting the case because Collinwood clearly articulated the reason for the nonsuit in its

notice, stating that the rental assistance and money in the court’s registry had covered Williams’s

rent obligations through May 2024. We conclude that the court abused its discretion in

determining that Collinwood nonsuited the forcible detainer action to avoid an unfavorable

ruling on the merits. To the contrary, Collinwood’s pleadings and the record evidence

established that Collinwood nonsuited the case because Williams’s rent was no longer in arrears

and Collinwood no longer wished to evict him from the leased premises. Because we hold that

the trial court erred in determining that Williams was a “prevailing” tenant entitled to attorneys’

fees under the Texas Property Code, we sustain Collinwood’s second issue.

CONCLUSION

Having concluded that the trial court abused its discretion in determining that

Williams was a “prevailing tenant” entitled to attorneys’ fees pursuant to Texas Property Code

section 24.006(c), we reverse the trial court’s order awarding Williams’s attorneys’ fees and

render judgment that he take nothing on his claim for attorneys’ fees.

8 __________________________________________ Karin Crump, Justice

Before Justices Triana, Theofanis, and Crump

Reversed and Rendered

Filed: October 30, 2025