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Attorney’s Fees Survive Nonsuit in Divorce Cases | Tran v. Overby (2026)

Thomas Daley
New Texas Court of Appeals Opinion - Analyzed for Family Law Attorneys

Tran v. Overby, 01-23-00971-CV, September 18, 2026.

On appeal from 310th District Court, Harris County, Texas

Synopsis

A respondent’s pleaded request for attorney’s fees, expenses, and costs to prepare and defend a divorce case is an independent claim for affirmative relief that survives the petitioner’s nonsuit under Texas Rule of Civil Procedure 162. In Tran v. Overby, the First Court also held that although a fee claim under Family Code section 6.708 survives dismissal, a separate post-nonsuit jury demand on fees can still be denied if the requesting party does not timely pay the jury fee required by Rule 216.

Relevance to Family Law

This opinion matters directly to Texas divorce litigation because nonsuit is often used tactically—sometimes on the eve of trial—to avoid an adverse merits ruling, a property fight, a conservatorship dispute, or an expected fee exposure. Tran v. Overby confirms that in a divorce case, a respondent who has already pleaded for attorney’s fees under Family Code section 6.708 is not stripped of that claim merely because the petitioner dismisses first. The case is equally relevant in other family-law settings where fee-shifting is available: it reinforces the broader procedural point that a properly pleaded fee claim may function as affirmative relief rather than a merely defensive request, and it highlights the separate procedural trap that a jury demand can be lost or extinguished if not renewed and perfected after a nonsuit.

Case Summary

Fact Summary

Tran filed for divorce against Overby. Overby answered and, importantly, did more than simply deny the allegations: he affirmatively requested attorney’s fees, expenses, costs, and post-judgment interest, seeking a judgment against Tran for fees incurred to prepare and defend the suit.

Tran requested a jury trial and paid the jury fee while her divorce claims were still pending. The day before the scheduled November jury trial, however, she nonsuited all of her claims without prejudice. After the nonsuit, Overby filed a motion seeking recovery of attorney’s fees and a declaration that he was the prevailing party.

Tran opposed the fee request and also asked for a jury trial on the attorney’s-fees issue. The fee matter was then set for hearing on short notice, with a procedural record showing irregular resetting of hearing dates. At the hearing, Tran objected to the court proceeding without a jury. The trial court denied Overby’s request to be declared the prevailing party, but it did award him part of his attorney’s fees. Tran appealed, challenging both the survival of the fee claim after nonsuit and the denial of a jury trial on fees.

Issues Decided

Rules Applied

The court relied on several familiar procedural and family-law authorities.

Application

The First Court treated Overby’s fee request as the decisive pleading fact. His answer did not merely ask the court to consider fees incidentally if he prevailed; it requested that judgment be entered against Tran and in his favor for attorney’s fees, expenses, and costs incurred to prepare and defend the divorce suit. That framing mattered. The court viewed the request as an independent demand for affirmative relief, not simply a defensive appendage to the divorce case.

From there, the Rule 162 analysis was straightforward. A nonsuit terminates the plaintiff’s own claims, but it does not wipe out a pending claim for affirmative relief already on file by the opposing party. Because Overby’s fee claim was live before Tran nonsuited, the claim remained pending after the divorce petition was dismissed. The court rejected the argument that a section 6.708 fee request is inherently dependent on the continued existence of the divorce action in a way that makes it vanish upon nonsuit. Relying on Alwazzan and its own prior precedent, the court emphasized that fees incurred in defending a dissolution action may remain recoverable even after the underlying dissolution claim is dismissed.

The jury-trial issue turned on a different procedural point. The court acknowledged that the amount of reasonable attorney’s fees is ordinarily a fact issue that may be determined by a jury if properly requested. It further accepted that Tran’s post-nonsuit request for a jury on fees was deemed timely under the unusual notice circumstances because the hearing was set on less than 30 days’ notice. But timeliness of the written demand was only half the equation. Rule 216 also required timely payment of the jury fee, and the record did not show that Tran paid a jury fee tied to the post-nonsuit fee proceeding. Her earlier jury demand in the now-nonsuited divorce action did not survive the nonsuit. Once the nonsuit extinguished that earlier demand, she needed to perfect a new jury request as to the remaining fee dispute. Because she did not establish compliance with Rule 216, the trial court had discretion to deny a jury trial.

Holding

The court held that Overby’s pleaded request for attorney’s fees, expenses, and costs to prepare and defend the divorce suit was an independent claim for affirmative relief. Because that claim was pending at the time Tran nonsuited her divorce claims, it survived the nonsuit under Rule 162. The trial court therefore retained authority to adjudicate and award fees notwithstanding dismissal of the underlying divorce action.

The court also held that a fee claim under Family Code section 6.708 is not extinguished simply because the petitioner dismisses the divorce case. In the First Court’s view, Texas law already recognizes that attorney’s fees incurred to defend a dissolution suit may remain recoverable after dismissal, and the nonsuit posture did not alter that principle.

Finally, the court held that the trial court did not abuse its discretion in denying Tran’s request for a jury trial on attorney’s fees. Although a jury may determine the fact issue of reasonable fees, Tran’s original jury demand did not survive her nonsuit, and the record failed to show timely payment of a jury fee in connection with the remaining post-nonsuit fee dispute.

Practical Application

For family-law litigators, Tran v. Overby is a pleading and docket-control case as much as it is a fees case. If you represent a respondent in a divorce, do not assume the petitioner can erase fee exposure by dropping the case at the last minute. If your live pleading clearly requests attorney’s fees, expenses, and costs against the opposing party—and seeks an actual judgment in your client’s favor—you likely have a surviving claim for affirmative relief after nonsuit.

The case should also affect how practitioners evaluate dismissal strategy. A petitioner considering nonsuit on the eve of trial must now account for the realistic possibility that the court will retain and adjudicate the other side’s fee claim anyway. In high-conflict divorce litigation, that may significantly change the settlement calculus, especially where substantial preparation has already occurred.

The opinion also has implications beyond divorce. In SAPCR modification proceedings, enforcement cases, partition-and-exchange fights, and property characterization disputes embedded within a marital case, counsel should think carefully about whether a fee request is framed as true affirmative relief. The stronger the pleading language, the harder it will be for the other side to characterize the request as merely defensive.

On the jury side, the lesson is procedural and unforgiving. If the merits case is nonsuited but a fee dispute remains, do not rely on the original jury demand as if it automatically carries forward. Re-urge the jury demand in writing, pay the jury fee again if necessary, and build a clean record. Tran shows that even where the substantive right to have a jury decide reasonableness exists, failure to comply with Rule 216 can forfeit the practical benefit of that right.

Checklists

Pleading a Fee Claim That Will Survive Nonsuit

Evaluating Whether a Nonsuit Will Actually End the Case

Preserving a Jury Trial on Post-Nonsuit Attorney’s Fees

Presenting or Opposing a Section 6.708 Fee Claim

Avoiding the Mistakes Made by the Non-Prevailing Party

Citation

Tran v. Overby, No. 01-23-00971-CV, 2026 WL ___ (Tex. App.—Houston [1st Dist.] Sept. 18, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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