Thanh Truc Tran v. George Richard Overby
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledSeptember 18, 2026
Docket01-23-00971-CV
StatusPublished
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Full Opinion
Opinion issued September 18, 2026
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00971-CV
———————————
THANH TRUC TRAN, Appellant
v.
GEORGE RICHARD OVERBY, Appellee
On Appeal from 310th District Court
Harris County, Texas
Cause No. 2023-00546
MEMORANDUM OPINION
This appeal arises from an attorney’s fee award in a nonsuited divorce case.
After the appellant, Thanh Truc Tran, nonsuited her claims without prejudice, the
trial court granted the appellee, George Richard Overby, part of his attorney’s fees.
Tran contends the trial court erred in granting Overby the attorney’s fee award
because Overby’s claim for attorney’s fees did not survive Tran’s nonsuit and the
trial court denied Tran’s request for a jury trial.
We affirm.
Background
Tran sued Overby for divorce. Overby answered the suit and requested his
attorney’s fees, expenses, costs, and post-judgment interest.
On May 31, 2023, Tran requested a jury trial and paid the jury fee. The day
before the November jury trial, Tran nonsuited all her claims without prejudice.
On November 28, 2023, Overby filed a motion to recover his attorney’s fees
and be declared the prevailing party. Tran responded on December 13, 2023 and
requested a jury trial on the issue of attorney’s fees. The trial court first set Overby’s
motion for hearing on January 10, 2024. Then, it was set for November 17, 2023,
which was in the past. Finally, it was set for the date the hearing took place,
December 27, 2023.
At the hearing, Tran objected to the trial court’s refusal to grant a jury trial on
the attorney’s fees issue, which the trial court overruled. The trial court denied
Overby’s request to be identified as the prevailing party but ordered Tran to pay a
portion of his attorney’s fees.
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Nonsuit
Tran contends that Overby’s claim for attorney’s fees did not survive Tran’s
nonsuit. Overby responds that Overby’s request for attorney’s fees survived nonsuit
because it was already pending before the nonsuit. We agree with Overby.
A plaintiff may nonsuit any time before introducing all evidence other than
rebuttal evidence. TEX. R. CIV. P. 162. The nonsuit does not prejudice any adverse
party’s right to be heard on a pending claim for affirmative relief and has “no effect
on any motion for sanctions, attorney’s fees, or other costs. pending at the time of
dismissal, as determined by the court.” Id.; Epps v. Fowler, 351 S.W.3d 862, 868
(Tex. 2011). We review de novo whether a pleading established an independent
claim for affirmative relief. Morton v. Timarron Owners Ass’n, Inc., No.
02-13-00409-CV, 2014 WL 2619189, at *3 (Tex. App.—Fort Worth June 12, 2014,
no pet.) (mem. op.); see Sanchez v. Huntsville Indep. Sch. Dist., 844 S.W.2d 286,
288 (Tex. App.—Houston [1st Dist.] 1992, no writ).
Tran contends that Overby’s request for attorney’s fees does not survive
nonsuit because it was purely defensive. Overby’s live pleadings contain a request
for payment of his attorney’s fees “to prepare and defend this suit.” Overby asked
that “judgment for attorney's fees, expenses, and costs through final judgment after
appeal” be granted against Tran and in his favor.
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“Texas courts have held that ‘an affirmative claim, stated in an answer, for
recovery of attorney’s fees for preparation and prosecution of a defense constitutes
a counterclaim,’ and as such, survives a nonsuit.” Kelsall v. Haisten, 564 S.W.3d
157, 163 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting Bacon Tomsons,
Ltd. v. Chrisjo Energy, Inc., No. 01-15-00305-CV, 2016 WL 4217254, at *10 (Tex.
App.—Houston [1st Dist.] Aug. 9, 2016, no pet.) (mem. op.)). Overby’s claim for
attorney’s fees and costs was an independent claim for affirmative relief pending at
the time of Tran’s nonsuit and thus, survives Tran’s nonsuit.
Tran argues that there can be no claim for attorney’s fees under Texas Family
Code section 6.708 because Overby’s request for attorney’s fees depended on Tran’s
dissolution suit, which she nonsuited. But it is well-settled that a claim for attorney’s
fees to defend a dissolution suit survives the dismissal of the dissolution suit. See
Alwazzan v. Alwazzan, 596 S.W.3d 789, 818 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied). Tran distinguishes Alwazzan and the cases it cites because they were
not nonsuits, but as discussed above, an affirmative claim for attorney’s fees survives
nonsuit. See Hagberg v. City of Pasadena, 224 S.W.3d 477, 483 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (“A nonsuit does not affect a pending claim for
affirmative relief or motion for attorney’s fees.”).
We overrule Tran’s issue regarding her nonsuit’s effect on Overby’s request
for attorney’s fees.
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Jury Trial
Tran also contends the trial court erred in denying her request for a jury trial
on attorney’s fees.
We review a trial court’s denial of a party’s demand for a jury trial for an
abuse of discretion. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666
(Tex. 1996). In conducting our review, we examine the entire record and will only
find an abuse of discretion when the trial court’s decision is arbitrary, unreasonable,
and without reference to guiding principles. Id.
In a suit for dissolution of a marriage, either party may demand a jury trial.
TEX. FAM. CODE § 6.703. The Texas Constitution protects a party’s right to have a
jury determine factual issues. TEX. CONST. art. 1 § 15, art. V, § 10. It is well-settled
that the reasonableness of attorney’s fees is a fact issue to be determined, if
requested, by a jury. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d
469, 489 (Tex. 2019); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
Texas Family Code section 6.708(c) authorizes the court to award reasonable
attorney’s fees in divorce proceedings.1 TEX. FAM. CODE § 6.708(c). This statute
contains language similar to other attorney’s fees statutes which have been
interpreted as requiring the trial court to determine in its discretion whether to award
1
Texas Family Code Section 6.708 was amended in 2025 to require that the
attorney’s fees also be necessary, which is another fact question. We apply the
statute in effect when the trial court decided this case.
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attorney’s fees and the fact finder, which may be a jury, to determine the amount of
attorney’s fees. See, e.g., City of Garland v. Dallas Morning News, 22 S.W.3d 351,
367 (Tex. 2000) (holding amount of reasonable attorney’s fees under TEX GOV’T
CODE § 552.323 was a fact question for the jury to decide); Boquet, 972 S.W.2d at
21 (holding TEX. CIV. PRAC. & REM. CODE § 37.009 allows the jury to determine the
amount of reasonable attorney’s fees); Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818–19 (Tex. 1997) (discussing jury’s determination of attorney’s
fees under TEX. BUS. & COM. CODE § 17.50); In re Lesikar, 285 S.W.3d 577, 587
(Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding party has a right to have
jury determine reasonable and necessary fee amount under TEX. PROP. CODE
§ 114.064). Consistent with the Texas Supreme Court’s interpretation of statutes
containing similar language and other Texas jurisprudence, we interpret reasonable
attorney’s fees under section 6.708(c) as a fact question for a jury to determine.
To be entitled to a jury in civil cases, a party must pay the jury fee and submit
a written request for a jury trial a reasonable time before the date set for trial on the
non-trial docket, but not less than 30 days in advance. TEX. R. CIV. P. 216. The Rules
also require at least forty-five days’ notice of a first setting for trial. TEX. R. CIV. P.
245.
Here, Tran first requested a jury trial and paid the jury fee prior to her nonsuit.
But Tran’s jury request prior to her nonsuit does not survive nonsuit. See Gonzalez
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v. Montalvo, 733 S.W.3d 905, 910 (Tex. App.—Houston [14th Dist.] 2026, no pet.);
Goode v. McGuire, No. 01-21-00535-CV, 2023 WL 5208053, at *9 (Tex. App.—
Houston [1st Dist.] Aug. 15, 2023, no pet.) (mem. op.).
Tran also requested a jury to decide attorney’s fees in her response to
Overby’s motion. While this request was less than 30 days prior to the hearing,
Overby gave Tran less than 30 days’ notice of the hearing. Under these
circumstances, the jury demand is deemed timely. See Bell Helicopter Textron, Inc.
v. Abbott, 863 S.W.2d 139, 141 (Tex. App.—Texarkana 1993, writ denied) (jury
demand deemed timely where compliance with 30-day notice requirement was
impossible); see also TEX. R. CIV. P. 216(a), 245. However, the record does not show
that Tran timely paid the jury fee. See TEX. R. CIV. P. 216(b) (“Unless otherwise
provided by law, a fee . . . must be deposited with the clerk of the court within the
time for making a written request for a jury trial.”).
We conclude the nonsuit extinguished Tran’s first jury demand. Because she
failed to comply with Rule 216, the trial court had discretion to deny a jury trial for
Overby’s attorney’s fee request. Higginbotham v. Collateral Prot., Inc., 859 S.W.2d
487, 490 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (when requesting party
fails to pay jury fee, trial court has discretion to deny request). To show the trial
court abused its discretion by denying the jury trial, Tran needed to show “(1) that
the granting of the . . . request would not interfere with the orderly handling of the
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court’s docket, (2) delay the trial of the case, or (3) operate to the injury of the
opposite party.” See Dawson v. Jarvis, 627 S.W.2d 444, 446 (Tex. App.—Houston
[1st Dist.] 1981, writ ref’d n.r.e.). Tran has not produced a record establishing any
of those facts.
We overrule Tran’s issue regarding her request for a jury trial.
Conclusion
We affirm the trial court’s judgment.
Clint Morgan
Justice
Panel consists of Justices Caughey, Morgan, and Dokupil.
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