In Leon Springs Gas Co. v. Restaurant Equip. Leasing Co., 961 S.W.2d 574 (Tex. App.--San Antonio 1997, no pet.), the defendant counterclaimed for attorney's fees under section 38.002 of the Civil Practice and Remedies Code, which permits a party to recovery attorney's fees in the event a party recovers on a breach of contract claim and meets other statutory requirements. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. 38.002 (Vernon 2008). However, the defendant had no underlying breach of contract claim. The Court held a request for attorney's fees made in connection with a contract dispute is only a claim for affirmative relief that will survive a nonsuit if the request is made in connection with an underlying contract claim. Leon Springs, 961 S.W.2d at 578. Because the defendant made no claim for damages based on a breach of contract, there was no basis for an award of attorney's fees, negating the existence of any claim for affirmative relief that would preclude dismissal based on the plaintiff's nonsuit. Id.