Nonsuit, but not a Ruling

The Theft Liability Act allows the recovery of fees by a successful defendant; therefore, “a ‘defendant may be a prevailing party when a plaintiff nonsuits without prejudice if the trial court determines, on the defendant’s motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.” (citation and emphasis omitted).

Absent such a finding, however, when a defendant nonsuits a TTLA claim after the filing of summary-judgment motions on other claims, a trial court’s decision to not award fees is not reversible error.

In the “Department of Subtle Hints,” the Fifth Court noted that findings of fact were requested but not made, but no appellate argument had been made on that procedural point. Centurion American Custom Homes, Inc. v. Crossroads Opportunity Partners LLC, No. 05-21-00025-CV (Dec. 28, 2022) (mem. op.).