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Cotten v. Briley

Court of Appeals of Texas, Sixth District, Texarkana

March 14, 2017

JERRY COTTEN AND ROSEMARY COTTEN, Appellants
v.
RON BRILEY AND JERI BRILEY, CENTURY 21 LAKE COUNTRY, DANNY HALBROOK, JUDY STROMAN AND STROMAN ENTERPRISES, LLC, Appellees

          Date Submitted: January 20, 2017

         On Appeal from the 402nd District Court Wood County, Texas Trial Court No. 2014-355

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Bailey C. Moseley Justice.

         When 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 Country[1]and 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[2] (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 court's orders.

         I. Background

         At the 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.

         After 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.

         On 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.

         On May 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 judgment.

         The 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.

         At the 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.

         After 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 appeals.

         Stroman 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 ...


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