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Civil Litigation No. 13-03-00001-CV, 3/27/2003. Click here for the full text of this decision FACTS: The relator, Frost National Bank, filed a petition for writ of mandamus, requesting that this court order the respondent, the presiding judge of the Nueces County Court at Law No. 1, to vacate his order granting the motion to transfer venue of the real party in interest, Hector Recio. On June 1, 2001, Frost sued Recio. Recio was served with citation on Sept. 14, 2001. On Oct. 1, 2001, Recio filed a motion to transfer venue, an answer and a counterclaim for attorneys’ fees. On Dec. 20, 2001, a hearing was held and Frost orally moved to dismiss its claim against Recio. The respondent did not grant the dismissal, but asked counsel for Frost to submit an order in writing. On March 7, 2002, Recio filed a motion for sanctions. The following day, March 8, 2002, respondent signed an order dismissing Frost’s claim against Recio. On Oct. 9, 2002, a hearing was held on Recio’s motion to transfer venue. The respondent granted Recio’s motion and signed an order transferring the suit to the 79th Judicial District Court of Jim Wells County. HOLDING: Denied. Frost contends that the trial court was without jurisdiction on Oct. 9, 2002, when it signed the order transferring the suit to Jim Wells County because Frost’s claim against Recio was dismissed, and Recio’s claim for attorneys’ fees and sanctions did not constitute claims for affirmative relief. The court disagrees. Rule 162 of the Texas Rules of Civil Procedure provides that a plaintiff may dismiss its case any time before it has introduced all of its evidence. The rule further provides: “Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of the dismissal.” A plaintiff’s right to dismiss his suit exists from the moment a written motion is filed or an oral motion is made in open court, unless the defendant has, prior to that time, filed pleadings seeking affirmative relief. Greenberg v. Brookshire, 640 S.W.2d 870 (Tex. 1982). The trial court loses its plenary power thirty days after it signs an order granting the nonsuit, or 75 days after it signs an order if a motion for new trial is filed. Harris County Appraisal Dist. v. Wittig, 881 S.W.2d 193 (Tex. App. – Houston [1st Dist.] 1994, no pet.). The signing of an order of non-suit is important not only because it triggers the appellate deadlines, but also because the trial court by its written order determines what part of the suit is dismissed by the nonsuit. The plaintiff does not have an unqualified right to dismiss the entire suit. When the defendant has pending claims for affirmative relief, the plaintiff’s request for a nonsuit will not result in a dismissal of the entire suit. Gen. Land Office v. OXY U.S.A. Inc., 789 S.W.2d 569 (Tex. 1990). Either party can challenge the order of dismissal. In this case, the respondent signed an order dismissing Frost’s claim against Recio on March 8, 2002. However, prior to the dismissal, Recio asserted a claim for attorneys’fees in his original answer. The general rule is that a counterclaim for attorneys’ fees by the defendant is considered a claim for affirmative relief, which is not disposed of simply by the plaintiff’s dismissal of his own causes of action. An affirmative claim, stated in an answer, for recovery of attorneys’ fees for the preparation and prosecution of a defense constitutes a counterclaim. In Re: C.A.S., No. 05-02-01176, 2003 Tex. App. LEXIS 2284 (Tex. App. – Dallas March 18, 2003, no pet.). There is no indication that the respondent’s order dismissing Frost’s claim against Recio dismissed Recio’s claim for attorneys’ fees against Frost. Jurisdiction over the underlying suit depends upon justiciability, and for a controversy to be justiciable, there must be a real controversy between the parties that will be actually resolved by the judicial relief sought. State Bar of Texas v. Gomez, 891 S.W.2d 243 (Tex. 1994). The court concludes that Recio’s claim for attorneys’ fees constitutes a claim for affirmative relief. Therefore, the trial court retains jurisdiction until it hears and determines the claim for attorneys’ fees. Because Recio’s claim for affirmative relief existed prior to respondent’s signing the order of dismissal, and said claim was undetermined, the court holds the trial court was appropriately vested with jurisdiction on Oct. 9, 2002, to grant Recio’s motion to transfer venue. OPINION: Hinojosa, J.; Hinojosa, Yanez and Garza, JJ.

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