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Click here for the full text of this decision FACTS:Debra Anderson’s husband was murdered by an unknown assailant while employed by Dean Foods Co. d/b/a Bell Gandy’s Inc. She filed a claim for workers’ compensation benefits because of his death. That claim was opposed by Dean Foods, which contended that the death was the result of personal animosities with the assailant or assailants and also contended that the death occurred outside of the course and scope of his employment. A Texas Worker’s Compensation Commission hearing officer found that the death was a compensable injury and a TWCC appeals panel affirmed. Anderson was found to be the sole beneficiary and entitled to whatever TWCC benefits might be payable. Dean Foods appealed the compensability determination to the district court. In her answer and counterclaim Anderson sought attorney’s fees. A year after filing its suit, Dean Foods filed a motion for nonsuit. The trial court found that Anderson was not the “prevailing party” in the suit, but that reasonable and necessary attorney’s fees in the amount of $100,167.86 were incurred by Anderson, and that the attorney’s fees were to be paid out of Anderson’s death benefit award. Both parties appealed this decision and TWCC intervened in the appeal. HOLDING:The court reverses the trial court’s judgment in part and renders a corrected judgment. Dean Foods and the TWCC challenge the trial court’s award of attorney’s fees to Anderson. In her appeal, Anderson challenges the amount of attorney’s fees awarded and specifically complains of the trial court’s refusal to consider a contingent fee contract in determining the amount of its award of attorney’s fees to her. Therefore, the court states that at issue on appeal are whether the trial court had subject matter jurisdiction to award attorney’s fees, the statutory interpretation of the “prevailing party” requirement for attorney’s fees under Texas Labor Code 408.221(c), and the trial court’s award of attorney’s fees. Regarding jurisdiction, the court holds that once Dean Foods exhausted its administrative remedies and sought judicial review, the trial court gained jurisdiction over the dispute. When the court obtained jurisdiction, Anderson was entitled to and indeed obligated to respond, and in that response, seek attorney’s fees. Because a dismissal or nonsuit “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief,” the court concludes that Dean Foods’ nonsuit did not deprive the trial court of subject matter jurisdiction over Anderson’s request for attorney’s fees. Dean Foods next contends that the trial court could not have awarded attorney’s fees under 408.221(c) because the court determined that Anderson was not the “prevailing party” in the suit and that status was a prerequisite to the award of attorney’s fees to be paid by the insurance carrier. But the court holds that the effect of Dean Foods’ nonsuit was to make TWCC’s award final and enforceable. Thus, the court states, Anderson became the prevailing party within the purview of the statute. The court therefore reverses the trial court’s finding as to the prevailing party and its holding that the attorney’s fees would be paid out of Anderson’s recovery. The court affirms its finding as to the amount of attorney’s fees to be awarded. Accordingly, and pursuant to the applicable provisions of 408.221(c), the court renders judgment awarding Anderson the amount of $100,167.86 as the attorney’s fees reasonably and necessarily incurred by her to be paid by Dean Foods. OPINION:Boyd, S.J.; Quinn, C.J., Campbell, J., and Boyd, S.J. CONCURRENCE:Quinn, C.J., concurring. “I concur with the majority with regard to the”prevailing party,’ but write separately to explain that the majority’s decision also follows analogous precedent.”

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