IMP Oak Hill LP v. Jordan Ajhaji Kpaka

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00550-CV

IMP Oak Hill LP, Appellant v.

Jordan Ajhaji Kpaka, Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO. C-1-CV-24-001324, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING

MEMORANDUM OPINION

IMP Oak Hill LP appeals from the trial court’s order awarding attorney’s fees and costs to Jordan Ajhaji Kpaka in an eviction case. See generally Tex. Prop. Code §§ 24.001-.011; Tex. R. Civ. P. 510.1-.13. In two issues on appeal, IMP argues that the trial court (1) did not have plenary power to award attorney’s fees and costs to Kpaka and (2) erred in finding that IMP nonsuited its claims to avoid an unfavorable ruling and declaring Kpaka as the prevailing party in the suit. We will affirm the trial court’s order.

BACKGROUND

In September 2023, Kpaka leased an apartment from IMP. In October 2023, shortly after the lease began, a neighbor forcibly kicked open Kpaka’s front door. IMP attempted to repair the door, but Kpaka was not satisfied with the repairs and requested reimbursement for damages that he claimed to have suffered from the broken door.

In January 2024, IMP sent Kpaka a letter informing him that he was “not entitled to any damages” for the broken door. IMP further informed Kpaka that his rent had been late twice, in December 2023 and January 2024, and that he owed late fees as a result. IMP advised Kpaka, “Please prepare to pay the amount owed. Additionally, February’s rent will not be accepted unless the balance due is paid in full, including balances from December 2023 and January 2024.”

According to IMP, on February 6, 2024, it delivered to Kpaka a notice to vacate the premises for failure to pay rent. After Kpaka failed to vacate the premises, IMP filed a forcible-detainer action in justice court on February 12. On February 29, that court rendered judgment in favor of IMP after Kpaka failed to appear for trial, awarding IMP possession of the premises and the sum of $3,369 in past-due rent, attorney’s fees, court costs, and interest. Kpaka appealed the judgment to the county court at law (trial court).

In the trial court, Kpaka filed an amended original answer in which he alleged various defenses, including that he was not served with a notice to vacate the premises and that the eviction was in retaliation for him requesting reimbursement for damages resulting from the broken door. Kpaka also sought “reasonable attorney’s fees under Texas Property Code § 24.006 in defending against this eviction suit.” Trial was set for May 23, 2024.

On May 13, 2024, IMP filed an amended petition alleging that Kpaka “failed to pay rent and all applicable fees and charges for the months of February 2024, March 2024, April 2024, and May 2024.” IMP attached to its petition a second notice to vacate that the parties do not dispute was delivered to Kpaka on April 22, 2024. On May 16, Kpaka filed an emergency motion to dismiss the case as baseless, see Tex. R. Civ. P. 91a.1, asserting that the action had no basis in law or fact because the April 22 notice to vacate, which was the only notice mentioned

3

in the amended petition, had been untimely delivered after the eviction suit had been filed. See Tex. Prop. Code § 24.005(a) (providing that if occupant of premises is tenant under written lease agreement, landlord must give written notice to vacate prior to filing eviction lawsuit). On May 17, IMP filed a response, arguing in part that it was free to claim additional defaults of the lease agreement and to amend its petition.

On or about May 23, according to representations made by Kpaka in his motion for attorney’s fees,

[P]arties and counsel of record appeared for trial on the merits. At that time, the Court heard arguments about Defendant’s Emergency Motion to Dismiss Baseless Cause of Action from both Plaintiff and Defendant. The Court reset trial on the merits for May 30, 2024 pending a review of Defendant’s motion, Plaintiff’s response, and Defendant’s reply on the motion to dismiss. 1

On May 26, 2024, IMP filed a notice of nonsuit, asking the trial court to dismiss without prejudice its claims against Kpaka. On May 28, the trial court signed an order granting the nonsuit and dismissing without prejudice IMP’s cause of action against Kpaka. Later that day, Kpaka filed a motion requesting that he be awarded attorney’s fees and court costs as the prevailing party in the suit.

On June 17, 2024, Kpaka filed a notice of hearing on his motion, advising IMP that the hearing was set for July 18. On July 2, IMP filed a plea to the jurisdiction, asserting that the trial court no longer had jurisdiction to consider or rule on Kpaka’s motion and that Kpaka was not entitled to attorney’s fees as the prevailing party because he failed to prove that IMP’s nonsuit was taken to avoid an unfavorable ruling on the merits of Kpaka’s motion to dismiss. A hearing was held on July 18, and at the conclusion of the hearing, the trial court granted Kpaka’s

1 We do not have a reporter’s record of this hearing before us.

4

motion for attorney’s fees. On July 22, the trial court signed an order to that effect, awarding Kpaka $12,265 in reasonable and necessary attorney’s fees and court costs. This appeal followed. 2

DISCUSSION

Plenary power In its first issue, IMP asserts that the trial court’s order is void because it was issued by the trial court after its plenary power had expired. According to IMP, the trial court’s plenary power over the suit ended on June 27, 2024, thirty days after it signed the order granting IMP’s nonsuit on May 28, 2024. IMP contends that as a result, the trial court did not have authority on July 22, 2024, to issue the order on attorney’s fees.

We review de novo questions of law pertaining to the trial court’s jurisdiction and plenary power. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); Wright v. Liming, 702 S.W.3d 666, 671 (Tex. App.—Houston [1st Dist.] 2024, no pet.). Judicial action taken after a trial court’s plenary power has expired is void. See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).

In the case of a nonsuit, “the trial court loses its plenary power 30 days after it signs the order granting the nonsuit.” Harris Cty. Appraisal Dist. v. Wittig, 881 S.W.2d 193, 194 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding) (op. on reh’g). However, Texas Rule of Civil Procedure 162, authorizing nonsuits, provides that “[a]ny dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief” and that “[a] dismissal under this rule shall have no effect on any motion for sanctions,

2 Kpaka has not filed an appellee’s brief.

5

attorney’s fees or other costs, pending at the time of dismissal, as determined by the court.” Tex. R. Civ. P. 162. A defendant’s pending request for attorney’s fees constitutes a request for affirmative relief that survives a nonsuit. See Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008); Kelsall v. Haisten, 564 S.W.3d 157, 162-63 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Dean Foods Co. v. Anderson, 178 S.W.3d 449, 453 (Tex. App.—Amarillo 2005, pet. denied).

In this case, prior to IMP filing its nonsuit, Kpaka filed an amended answer in which he requested an award of attorneys’ fees pursuant to Texas Property Code section 24.006, which provides that the prevailing tenant in an eviction suit is entitled to recover reasonable attorney’s fees from the landlord. See Tex. Prop. Code § 24.006(c). That request remained pending at the time of the nonsuit. Accordingly, the district court retained plenary power to act on Kpaka’s request following the nonsuit. See Collingwood Seniors, Ltd. v. Williams, No. 03-24-00576-CV, 2025 WL 3028591, at *3 (Tex. App.—Austin Oct. 30, 2025, no pet.) (mem. op.).

We overrule IMP’s first issue.

Prevailing party In its second issue, IMP argues that the trial court erred in finding that IMP nonsuited its claims to avoid an unfavorable ruling and declaring Kpaka as the prevailing party in the suit. According to IMP, the record does not support the trial court’s finding that Kpaka was the prevailing party.

“In the usual case, a ‘prevailing party’ is one that successfully prosecutes, or defends against, a claim.” Bagby 3015, LLC v. Bagby House, LLC, 693 S.W.3d 646, 651 (Tex.

6

App.—Houston [14th Dist.] 2023, no pet.). However, in the case of a nonsuit by the plaintiff without prejudice, a defendant may be a prevailing party “if the trial court determines, on the defendant’s motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.” Epps v. Fowler, 351 S.W.3d 862, 870 (Tex. 2011). The supreme court has identified several factors that may support an inference that a plaintiff nonsuited to avoid an unfavorable ruling, including: (1) the filing of the nonsuit after a defendant files a motion for summary judgment or other “potentially dispositive motion”; (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. See 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.

We generally review a trial court’s award of attorney’s fees for abuse of discretion. See Polansky v. Berenji, 393 S.W.3d 362, 367 (Tex. App.—Austin 2012, no pet.). However, we apply a mixed standard of review to a trial court’s decision on whether a defendant is a prevailing party following a nonsuit. North Star Water Logic, LLC v. Ecolotron, Inc., 486 S.W.3d 102, 105 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Whether a party nonsuited to avoid an unfavorable ruling is a question of fact, which we review for an abuse of discretion, but we review any legal determinations, such as whether the suit had an arguable basis in law, de novo. Id.

In this case, IMP filed its nonsuit approximately ten days after Kpaka had filed a Rule 91a motion to dismiss, which is a “potentially dispositive motion” in that it can result in the

7

dismissal of the plaintiff’s cause of action.3 See Tex. R. Civ. P. 91a.1, 91a.3. Moreover, IMP filed its nonsuit after the trial court had held a hearing on the motion to dismiss and was in the process of considering whether to grant it. The district court would not have abused its discretion in finding that this was some evidence that IMP had filed its nonsuit to avoid an unfavorable ruling on Kpaka’s motion to dismiss. Thus, the first factor weighs in favor of the trial court’s finding. See Referente v. City View Courtyard, L.P., 477 S.W.3d 882, 886 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

The second and third factors are not applicable here. The parties did not conduct any discovery in the case, and there were no experts or other critical witnesses that were not properly designated.

Regarding the fourth factor, there was a procedural obstacle that could defeat IMP’s claim. Kpaka claimed that he had not been served with a copy of the notice to vacate that was supposedly delivered to him on February 6, 2024. If true, then that would prevent IMP from prevailing in the eviction suit.4 See Tex. R. App. P. 24.005(a); see also Geters v. Baytown Hous. Auth., 430 S.W.3d 578, 586 (Tex. App.—Houston [14th Dist.] 2014, no pet.). And the second notice to vacate delivered on April 22 could not remove this obstacle because it was not

3 IMP argues that “the motion itself was not a dispositive motion but rather a request for leave to file a dispositive motion.” However, although Kpaka moved for leave to file the motion, he also asked the court “to set this motion for hearing and, after the hearing, grant this motion and sign an order dismissing the challenged cause of action.” Thus, Kpaka did move for dismissal of the suit, and the trial court could have granted it.

4 The record reflects that IMP alleged delivery of the notice by “affixing the notice to the inside of the main entry door of the apartment.” In his amended answer, Kpaka represented, “[N]o Notice to Vacate was ever posted on the outside of the main exterior door to the Property, the inside of the main exterior door to the Property, or otherwise served on Defendant.”

8

delivered until after the eviction suit had been filed. 5 The trial court would not have abused its discretion in finding that this was an additional reason to believe that IMP filed its nonsuit to avoid an unfavorable ruling.

Finally, regarding “evidence that the suit was not without merit when filed,”

proper notice is an element of a forcible-detainer action, see Tex. Prop. Code § 24.002(b), and because forcible detainer is a statutory cause of action under the Texas Property Code, “a landlord must strictly comply with its requirements,” Perry v. Wichita Falls Hous. Auth., 646 S.W.3d 908, 912 (Tex. App.—Fort Worth 2022, no pet.). The record supports a finding by the trial court that IMP failed to strictly comply with the statutory notice requirement and that as a result, the suit when filed was without merit.

On this record, we cannot conclude that the district court abused its discretion in finding that IMP filed its nonsuit to avoid an unfavorable ruling on the merits and thus that Kpaka was the prevailing party entitled to attorney’s fees and costs.

We overrule IMP’s second issue.

CONCLUSION

We affirm the trial court’s order awarding attorney’s fees and costs to Kpaka.

__________________________________________

Gisela D. Triana, Justice

5 However, the April 22 notice could have served as the basis for a later-filed forcible-detainer action. See Federal Home Loan Mortg. Corp. v. Pharm, 449 S.W.3d 230, 235-36 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (explaining that “a new and independent cause of action for forcible detainer arises each time a person refuses to surrender possession of real property after a person entitled to possession of the property delivers a proper written notice to vacate”).

9

Before Justices Triana, Theofanis, and Crump Affirmed Filed: August 27, 2026