Court of Appeals of Texas, Sixth District, Texarkana
Submitted: January 20, 2017
Appeal from the 402nd District Court Wood County, Texas Trial
Court No. 2014-355
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley Justice.
Jerry and Rosemary Cotten's newly-purchased retirement
home began exhibiting substantial problems of which they were
unaware when they purchased it, the Cottens filed suit
against the persons who sold it to them (Ron and Jeri
Briley), the sellers' real estate agent (Judy Stroman),
the broker under whom the agent worked (Century 21 Lake
Country), and the home inspector who was retained to inspect
the house prior to the purchase (Danny Halbrook). After the
trial court granted a no-evidence summary judgment in favor
of Stroman and Lake Countryand dismissed the Cottens'
claims against all defendants for want of prosecution, the
Cottens have appealed. In their appeal, the Cottens assert
that the trial court erred in (1) dismissing its claims as to
all defendants for want of prosecution, (2) dismissing its
claims against Stroman, Lake Country, and Stroman
Enterprises, LLC (Enterprise), for want of prosecution, and
(3) granting Stroman and Lake Country's motion to strike
the Cottens' second amended petition. We affirm the trial
outset of the litigation, the Cottens retained William R.
Power to represent them, and Power filed suit on their behalf
June 12, 2014, against the Brileys, Halbrook, Stroman, and
Lake County. This suit was to recover damages the Cottens
alleged were incurred from their purchase of the Brileys'
house in Wood County. In their original petition, the Cottens
alleged that when they purchased the house July 31, 2012,
they relied on the disclosures and representations made by
the Brileys and in a report issued to them by Halbrook. In
the ensuing months after they moved into the house, the
Cottens discovered, inter alia, that portions of the
flooring were rotted through, that the subflooring, the air
conditioning ductwork, and the ceiling were infested with
black and green mold, and that there was pre-existing and
unrepaired leakage in the roof. The Cottens' petition
asserted causes of action against the Brileys for breach of
contract, violations of the Texas Deceptive Trade Practices
Act (DTPA), common law fraud, fraud in a real estate
transaction, and civil conspiracy to defraud. They asserted
causes of action against Halbrook for negligence and civil
conspiracy to defraud, and against Stroman and Lake Country
for participation in a civil conspiracy to defraud them.
filing the original petition, there is nothing to show that
Power did anything at all to prosecute the lawsuit. The
Cottens were often unable to reach Power by telephone or
email for weeks at a time and became increasingly concerned
about his inaction and his failure to move the case forward.
It is undisputed that Power neither initiated discovery nor
responded to discovery propounded by Halbrook, Stroman, and
Lake Country, leading to the filing of a motion by Stroman
and Lake Country to compel responses. On April 6, 2016, Power
met the Brileys at an airport and delivered his file on their
case to them. The Brileys terminated Power's
representation in the case.
April 15, 2016, Stroman and Lake Country filed their motions
for no-evidence summary judgment and to dismiss the case for
want of prosecution. On April 19, 2016, those motions were
set for hearing on May 16, 2016; on the date of the hearing,
the Cottens' new counsel was substituted in place of
Power. On May 9, 2016, the Cottens' new counsel filed a
motion wherein he asked for a continuance of the hearing on
Stroman and Lake Country's motion; however, he did not
file any response to the Stroman and Lake Country motion for
summary judgment. The Cottens then sent notice to the Brileys
of their intention to take the Brileys' depositions. On
May 13, 2016, the Cottens filed their first amended petition,
which added causes of action against Stroman and Lake Country
for DTPA violations and fraud in a real estate transaction.
At the May 16 hearing, the trial court denied the
Cottens' motion for continuance, struck their first
amended petition, and entered a no-evidence summary judgment
in favor of Stroman and Lake Country.
17, 2016, Halbrook filed motions to dismiss for want of
prosecution and for no-evidence summary judgment, which were
set for hearing on June 27, 2016. The Brileys filed motions
on May 23, 2016, seeking dismissal of the Cottons' suit
for want of prosecution and for a no-evidence summary
Cottens, without first obtaining leave of court, filed their
second amended petition on May 31, 2016. That petition added
Enterprise as a defendant, reasserted their causes of action
against the Brileys and Halbrook, asserted a cause of action
against Stroman, Lake Country, and Enterprise for fraud in a
real estate transaction, and asserted a civil conspiracy to
defraud claim against the Brileys and Enterprise. The Cottens
then had Stroman, Lake Country, and Enterprise served with
citation. On June 10, 2016, the Cottens filed a jury demand.
The Cottens also filed a motion for entry of a scheduling
order and request for a level 3 discovery control plan on
June 14, 2016, this being set for hearing June 27, 2016.
Nevertheless, on June 16, 2016, the trial court entered its
scheduling order, setting the case for trial on May 1, 2017.
On June 24, 2016, Stroman and Lake Country filed their motion
to strike the Cottens' second amended petition.
June 27 hearing, the Cottens' new attorney admitted that
from June 2014 (when the suit was originally filed) until May
2016, the Cottens initiated no discovery and made no
responses to discovery requests sent to them. Nevertheless,
he argued that the lack of discovery was not the fault of his
clients, placing the entire blame at the feet of their first
attorney. The attorney then recounted to the trial court the
steps his firm had taken since having been retained, those
steps having been to send out discovery, requesting a
scheduling order and obtaining a trial date, hiring an expert
witness, and producing requested documents.
the trial court indicated that it was inclined to grant
Halbrook's motion to dismiss, the Cottens' attorney
informed the court that he had filed an amended petition
which added both a new defendant and additional causes of
action against Stroman. He then requested that if it was
entering an order of dismissal, the court enter an order
dismissing the case in its entirety, and this met with no
objection from opposing counsel. When the attorney for
Stroman asked whether the order would include Enterprise, the
Cottens' attorney clarified that he was not agreeing to
the dismissal, but he would rather all defendants be included
in the dismissal for want of prosecution in order to save
money on the part of the parties by avoiding multiple
and Lake Country then asked the court to hear their motion to
strike plaintiffs' second amended petition as it related
to them. The Cottens objected to hearing that motion and
informed the court that it had not received any notice that
the motion would be heard that day. The trial court
nevertheless heard the motion and struck the Cottens'
second amended petition. After some discussion, the Cottens
objected to including "the Stroman entities" in the
order of dismissal. Nevertheless, the trial court entered
both its order dismissing the Cottens' claims ...