IMP Oak Hill LP v. Jordan Ajhaji Kpaka, 03-24-00550-CV, August 27, 2026.
On appeal from County Court at Law No. 2 of Travis County
Synopsis
A pleaded claim for attorney’s fees is affirmative relief that survives a plaintiff’s nonsuit under Texas Rule of Civil Procedure 162. In this eviction appeal, because the tenant had already pleaded for fees under Texas Property Code § 24.006(c), the trial court retained plenary power to decide that fee claim after the landlord nonsuited, even more than 30 days after the nonsuit order. The case is a useful procedural reminder for family lawyers: a nonsuit or dismissal does not necessarily eliminate pending fee exposure.
Relevance to Family Law
Texas family litigators should pay close attention to the procedural point, even though the underlying dispute was an eviction case. In divorce, SAPCR, modification, enforcement, and protective-order-adjacent proceedings, parties often assume that once a claim or pleading is withdrawn, dismissed, or nonsuited, the fee fight goes away with it. This opinion reinforces the opposite principle: if the opposing party has already asserted a live request for attorney’s fees that qualifies as affirmative relief, that claim can remain pending and independently support continuing trial-court power. That matters particularly where temporary orders, enforcement disputes, emergency motions, or failed merits positions create meaningful fee exposure despite a later effort to end the principal dispute.
Case Summary
Fact Summary
The landlord filed a forcible-detainer action after alleging nonpayment of rent. The tenant appealed an adverse justice-court result to county court and, in the county-court proceedings, filed an amended answer asserting defenses that included lack of proper notice to vacate and retaliation. Importantly, the tenant also expressly sought reasonable attorney’s fees under Texas Property Code § 24.006(c), which authorizes fees for a prevailing tenant in an eviction case.
As trial approached, the landlord amended its pleading and attached a later notice to vacate. The tenant then filed an emergency Rule 91a motion to dismiss, arguing the amended eviction theory was legally defective because the notice referenced in the amended petition was delivered only after the eviction suit had already been filed. The trial court heard argument and reset the merits setting while considering the dismissal issues.
Before the reset trial date, the landlord filed a notice of nonsuit. The trial court signed an order dismissing the landlord’s claims without prejudice. Later that same day, the tenant filed a motion seeking attorney’s fees and costs as the prevailing party. The trial court eventually granted that request and signed a post-nonsuit fee order. On appeal, the landlord argued both that the trial court’s plenary power had expired and that the tenant was not properly treated as the prevailing party.
Issues Decided
- Whether a tenant’s previously pleaded claim for attorney’s fees under Texas Property Code § 24.006(c) survived the landlord’s nonsuit under Texas Rule of Civil Procedure 162.
- Whether the trial court retained plenary power to adjudicate and award those fees after the nonsuit order, including more than 30 days after that order was signed.
- Whether the trial court erred in determining that the tenant qualified as the prevailing party for purposes of a fee award after the landlord nonsuited the eviction case.
Rules Applied
The court relied on the following authorities and principles:
- Texas Rule of Civil Procedure 162, which provides that a nonsuit does not prejudice an adverse party’s right to be heard on a pending claim for affirmative relief and has no effect on a pending motion for attorney’s fees, sanctions, or costs.
- Villafani v. Trejo, 251 S.W.3d 466 (Tex. 2008), recognizing that a pending request for attorney’s fees can constitute affirmative relief that survives a nonsuit.
- Texas Property Code § 24.006(c), authorizing a prevailing tenant in an eviction suit to recover reasonable attorney’s fees from the landlord.
- Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011), addressing when a defendant may qualify as a prevailing party after a plaintiff nonsuits without prejudice, including when the nonsuit is taken to avoid an unfavorable ruling on the merits.
- Authorities on plenary power, including the general rule that a trial court ordinarily loses plenary power 30 days after signing a nonsuit order, unless a surviving claim remains pending.
Application
The court began with the procedural question, because if the fee claim did not survive the nonsuit, the later fee order would have been void. It concluded that the tenant’s amended answer already contained a live request for attorney’s fees under Property Code § 24.006(c) before the landlord nonsuited. That mattered. Under Rule 162 and Villafani, a fee request of that kind is not merely defensive surplusage; it is affirmative relief. Because the tenant’s fee claim was pending at the time of dismissal, the nonsuit did not extinguish it.
That conclusion answered the plenary-power argument. The landlord treated the nonsuit order as if it ended the case in full and started an unqualified 30-day jurisdictional clock. But the appellate court treated the matter differently: where a live fee claim survives, the case is not procedurally over as to that claim, and the trial court keeps authority to adjudicate it. The later attorney’s-fee order was therefore not void simply because it was signed more than 30 days after the nonsuit order.
On the prevailing-party question, the court turned to Epps v. Fowler. Because a nonsuit without prejudice does not automatically make the defendant a prevailing party, the relevant inquiry was whether the nonsuit was taken to avoid an unfavorable merits ruling. The court noted that the tenant had filed a potentially dispositive Rule 91a motion and that the trial court had already heard argument and taken the matter under consideration before the nonsuit was filed. The court also pointed to a procedural obstacle in the landlord’s case tied to the notice-to-vacate problem. Against that backdrop, the trial court had some evidentiary basis to conclude that the nonsuit occurred in the face of a likely adverse ruling, which was enough to support prevailing-party status under the governing framework.
Holding
The court held that the tenant’s pleaded request for attorney’s fees under Texas Property Code § 24.006(c) was a pending claim for affirmative relief preserved by Texas Rule of Civil Procedure 162. Because that fee claim survived the landlord’s nonsuit, the trial court retained plenary power to hear and decide it after dismissal.
The court also held that the trial court did not reversibly err in treating the tenant as the prevailing party for fee purposes. Applying the Epps framework, the appellate court concluded the record supported the determination that the nonsuit was taken in circumstances permitting prevailing-party treatment, and the resulting fee award was affirmed.
Practical Application
For Texas family lawyers, the case is less about eviction law than about civil-procedure architecture that routinely surfaces in domestic litigation. Fee claims in family cases are often embedded in answers, counterpetitions, enforcement pleadings, modification responses, and requests tied to temporary orders. When one side nonsuits a petition to modify, withdraws an enforcement effort, abandons a property-reimbursement claim, or dismisses a collateral pleading after motion practice has exposed procedural defects, counsel should not assume the fee issue disappears. If the responding party has already pleaded an independent fee claim, Rule 162 may preserve that claim and keep the court’s power alive to adjudicate it.
The lesson is especially practical in three recurring family-law settings. First, in modification or enforcement litigation, a petitioner may drop the case after a jurisdictional challenge, Rule 91a-style attack where available, or other potentially dispositive procedural motion; if fees were already pleaded by the respondent, the fee exposure may remain live. Second, in divorce litigation with interim disputes over possession, reimbursement, waste, discovery abuse, or temporary-orders compliance, partial dismissals and withdrawn claims do not necessarily end requests for attorney’s fees attached to those disputes. Third, in de novo appeals from associate judges or in fragmented proceedings with multiple live pleadings, lawyers need to track whether a fee request is merely incidental or has been pleaded in a way that qualifies as affirmative relief.
The strategic takeaway is straightforward: plead fees early, plead them clearly, and evaluate nonsuit timing with precision. A party considering dismissal must analyze not just whether it can exit its own claims, but whether the opponent has already preserved a live basis to keep litigating fees.
Family Law Crossover
The procedural rule established here is that a nonsuit under Rule 162 does not eliminate a pending claim for affirmative relief, and a properly pleaded attorney’s-fee request can qualify as such a claim. In a Texas family law matter, that mechanism can arise when one party dismisses a petition, motion, or discrete claim after the opposing party has already pleaded for attorney’s fees in response. Examples include a nonsuited modification petition, a withdrawn enforcement action, a dismissed reimbursement claim in a divorce, or a temporary-orders dispute that becomes moot before final hearing. In those situations, the court may still retain authority to decide the pending fee request even after dismissal of the primary claim, because the fee request remains independently justiciable under Rule 162.
Checklists
Preserving a Fee Claim After a Nonsuit
- Plead attorney’s fees expressly in the live answer, counterpetition, or responsive motion before the opposing party files a nonsuit.
- Identify the statutory, contractual, or rule-based source for the fee request.
- Frame the fee demand as affirmative relief, not merely as a contingent prayer buried in general relief language.
- Confirm that the pleading containing the fee request is on file and live at the time of dismissal.
- After nonsuit, promptly set the surviving fee claim for hearing and obtain a written ruling.
Evaluating Nonsuit Risk in Family Litigation
- Review all opposing pleadings before filing a nonsuit or withdrawal.
- Determine whether the opponent has asserted an independent fee claim that survives under Rule 162.
- Assess whether any dispositive motion, jurisdictional objection, or procedural defect is already pending and may affect prevailing-party analysis.
- Do not assume the nonsuit order ends plenary power as to every issue in the case.
- Consider whether a negotiated dismissal should include an express resolution of attorney’s fees and costs.
Building a Record for Post-Dismissal Fees
- Put the fee claim in a verified or otherwise clear live pleading where appropriate.
- Preserve copies of pending motions that may show why the underlying case was dismissed when it was.
- Request a hearing and create a reporter’s record.
- Offer evidence of reasonable and necessary fees under the applicable family-law or general fee standard.
- Obtain findings or express rulings where prevailing-party status may be contested.
Avoiding the Losing Side’s Problem
- Before amending or dismissing a case, analyze whether the amendment creates a new notice, pleading, service, or ripeness defect.
- If a potentially dispositive motion is pending, evaluate whether dismissal will still leave fee exposure in place.
- Address fees explicitly in any dismissal papers or agreed orders when resolution is intended.
- Track post-dismissal deadlines carefully, but do not rely on the assumption that the 30-day plenary-power period runs from the nonsuit order if a fee claim remains pending.
- Preserve appellate complaints with a clear jurisdictional objection and a developed record.
Citation
IMP Oak Hill LP v. Kpaka, No. 03-24-00550-CV, ___ S.W.3d ___ (Tex. App.—Austin Aug. 27, 2026, no pet.) (mem. op.).
Full Opinion
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