Koenig v. Blaylock

• Decision Date: 01 July 2016
• Docket Number: NO. 03-15-00705-CV,03-15-00705-CV
• Parties: Ashlie Koenig, Appellant, Brian Blaylock, Cross-Appellant, v. Brian Blaylock, Appellee, Ashlie Koenig, Cross-Appellee.
• Court: Texas Court of Appeals

497 S.W.3d 595

Ashlie Koenig, Appellant,

Brian Blaylock, Cross-Appellant,

v.Brian Blaylock, Appellee,Ashlie Koenig, Cross-Appellee.

NO. 03-15-00705-CV

Court of Appeals of Texas, Austin.

Filed: July 1, 2016

Michael E. Grimes, Michael E. Grimes, P.C., Round Rock, TX, for Appellant.

Michael T. Howell, N. West Short, West Short & Associates, P.C., J. Randall Grimes, Law Offices of J. Randall Grimes, Georgetown, TX, for Appellee.

Before Justices Puryear, Goodwin, and Field

OPINION

David Puryear

, Justice

Ashlie Koenig appeals the trial court's final order denying her petition to partition real property (the Residence) that was previously awarded pursuant to an agreed divorce decree to Brian Blaylock in exchange for his payment of a sum certain to Koenig, after Koenig reduced to judgment that sum certain via a motion to enforce. Koenig contends that, notwithstanding the divorce decree and enforcement order, she is a cotenant entitled to partition the Residence. On cross appeal, Blaylock complains that the trial court abused its discretion in denying his Rule 91a motion to dismiss Koenig's suit and awarding her attorney's fees incurred in responding to the motion. See Tex.R. Civ. P. 91a

. We will reverse the trial court's final judgment, render judgment granting Blaylock's Rule 91a motion to dismiss, and remand this cause for a determination of attorney's fees to be awarded to Blaylock as the prevailing party on his Rule 91a motion.

BACKGROUND¹

Before Koenig and Blaylock were married, they acquired the Residence together via general warranty deed, with Blaylock contributing $100,000 as a down payment and Koenig contributing no down payment. Blaylock lived as a single man in the Residence from the time of purchase until about the time the parties were married—half a year after acquiring the Residence—at which time Koenig moved into the Residence and after which time she contributed some amount of equity. The parties separated about a year and a half later with Koenig moving out of the Residence and Blaylock continuing to live there. Four months later, the parties entered into a mediated settlement agreement, which was incorporated into the family court's final divorce decree. Included among the decree's provisions were the following:

Residence

IT IS ORDERED that the residence and all improvements location thereon ... shall be awarded to Brian Blaylock on the following terms and conditions:

1. Ashlie Blaylock shall execute a marital deed transferring her ownership interest in the property to Brian Blaylock upon payment of the $61,500.00 to be paid by Brian Blaylock to Ashlie Blaylock and upon Brian Blaylock's endorsement and payment of $22,500.00 from the sale of the Cadillac Escalade to Ashlie Blaylock.

2. Brian Blaylock shall execute a Deed of Trust to Secure Assumption in favor of Ashlie Blaylock.

3. Brian Blaylock shall refinance the property in his name within 60 days following the entry of the Final Decree of Divorce and shall upon the 60th day from the entry of the decree of divorce pay to Ashlie Blaylock the sum of $61,500.00.

4. On the date of the rendition of the Final Decree of Divorce, Brian Blaylock shall endorse and turn over to Ashlie Blaylock, through her attorney, the check which is the net proceeds from the sale of the Cadillac Escalade in the amount of $22,500.00.

Some time after the final divorce decree was entered, Koenig filed a motion in the family court to enforce the property division outlined in the decree, asking the court to order a sale of the Residence or to enter a money judgment in the amount owed to her by Blaylock for the Residence and alleging that he was in default of the decree by failing to refinance the Residence and pay her the $61,500 within 60 days of the decree's entry. The family court refused to order the sale of the Residence but entered an enforcement order granting Koenig a money judgment against Blaylock in the amount of $61,500, plus pre-and post-judgment interest and attorney's fees.

Unable to collect on her judgment, Koenig filed the present partition suit against Blaylock, seeking an order from the district court to sell the Residence and distribute to the parties the net proceeds in accordance with their alleged undivided, equal ownership interests. Blaylock filed a joint original answer, motion to dismiss under Texas Rule of Civil Procedure 91a

, and request for disclosure.²

The court was unable to schedule a hearing on Blaylock's Rule 91a

motion to dismiss until more than 45 days after he filed it. After the hearing, the trial court denied the motion on the procedural ground that the court had not ruled on the motion with 45 days of its filing and awarded attorney's fees to Koenig as the prevailing party.³ Tex.R. Civ. P. 91a.3(c) (“A motion to dismiss must be ... granted or denied within 45 days after the motion is filed.”), 91a.7 (“[T]he court must award the prevailing party on the [Rule 91a ] motion all costs and reasonable and necessary attorney's fees incurred with respect to the challenged cause of action in the trial court.”). The cause proceeded to an evidentiary hearing on the merits, after which the trial court denied Koenig's partition suit without specifying the grounds for its decision. Upon Koenig's request, the trial court issued Findings of Fact and Conclusions of Law.

In three issues, Koenig contends that the trial court abused its discretion in denying her partition suit by concluding that (a) she had no possessory rights to the Residence, foreclosing the remedy of partition; and (b) her suit was barred by res judicata due to the prior divorce decree and enforcement order. In three issues on cross appeal, Blaylock contends that the trial court erred in denying his Rule 91a

motion to dismiss, awarding Koenig attorney's fees in responding to the motion, and failing to award him attorney's fees incurred in filing the motion. We will first address Blaylock's issues on cross appeal and then, if necessary, consider Koenig's issues.

DISCUSSION

Rule 91a

motion to dismiss

In his first two issues on cross appeal, Blaylock contends that the trial court erred in denying his Rule 91a

motion to dismiss and in awarding Koenig attorney's fees as the prevailing party.⁴

See Tex.R. Civ. P. 91a.1 (“A party may move to dismiss a cause of action on the grounds that it has no basis in law ... if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.”). We will review the trial court's ruling on the motion de novo. See

Weizhong Zheng v. Vacation Network, Inc., 468 S.W.3d 180, 183 (Tex.App.—Houston [14th Dist.] 2015, pet. denied) ; City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 (Tex.App.—Austin 2014, no pet.) ; see also

Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex.App.—Houston [14th Dist.] 2014, pet. denied) (noting that Rule 91a motions are analogous to pleas to jurisdiction, which require court to determine whether pleader has alleged facts demonstrating jurisdiction).

The trial court denied Blaylock's motion solely because the court did not rule on the motion until more than 45 days after it was filed. See Tex.R. Civ. P. 91a.3(c). While it is true that Rule 91a.3 provides that a motion to dismiss “must be ... granted or denied within 45 days after the motion is filed,” the Rule does not provide any consequences if a court takes no action on the motion within the prescribed period. See id.; see also Tex. Gov't Code § 22.004(g)

(“The rules shall provide that the motion to dismiss shall be granted or denied within 45 days of the filing of the motion to dismiss.”). Blaylock contends that it was error for the trial court to deny his motion on this non-substantive, procedural ground because under the applicable statute and rule the time period during which a court must rule on a motion is “directory” rather than “mandatory.”⁵

See

Chis

h

olm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956) (“If the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereof afterwards or stating the consequences of failure to act within the time specified, may be considered as a circumstance tending to support a directory construction.”); Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex.App.—Austin 1988, no writ) (“When determining whether a statutory time limit is mandatory or directory, a court must consider the statute in its entirety, its nature and object, and the consequences that would follow from each construction.”).

We agree with Blaylock that the 45–day period during which a court “shall” deny or grant a Rule 91a

motion to dismiss is merely directory rather than mandatory. In the absence of any “words restraining” action by the trial court beyond the time limit and the outlining of any consequences for failure to act therein, see

Chis

h

olm, 287 S.W.2d at 945, it is more reasonable to conclude that the time limit in this relatively new rule is not a hard deadline that prohibits the court from considering the substance of the motion to dismiss after the expiration of the 45–day time period but, rather, a provision included in the rule to promote the orderly and prompt dismissal of baseless causes of action. It is in the interest of justice and the orderly conduct of the courts for baseless lawsuits to be dismissed sooner rather than later, but it is better for them to be dismissed later rather than not at all. The mandatory reading embraced by the trial court and Koenig would frustrate the legislative intent that a defendant be made whole through an award of its attorney's fees and costs incurred in successfully dismissing a baseless lawsuit.

Furthermore, Koenig has not identified how a plaintiff in her position would be prejudiced by a court's ruling on a motion to dismiss after the 45–day period, nor can we imagine any such prejudice. In fact, a plaintiff would have more time to formulate a response to a dismissal argument,...