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Pence v. S&D Builders, LLC

Court of Appeals of Texas, Seventh District, Amarillo

December 11, 2017

PATRICK AND JODEE PENCE, APPELLANTS
v.
S&D BUILDERS, LLC, S&D DEVELOPMENT, LLC, LANGE CUSTOM BUILDERS, LLC, STEVEN M. LANGE, SUMMIT OAK HOMES, LLC AND DAVID C. OESTREICH, APPELLEES

         On Appeal from the 274th District Court Comal County, Texas Trial Court No. C2007-1311C; Honorable Dib Waldrip, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ

          MEMORANDUM OPINION

          Patrick A. Pirtle Justice

         Appellants, Patrick and Jodee Pence, appeal from the trial court's order dismissing their breach of contract case against Appellees, S&D Builders, S&D Development, LLC, Lange Custom Builders, LLC, Steven M. Lange, Summit Oak Homes, LLC, and David C. Oestreich (hereinafter collectively "S&D"). By a single issue, the Pences contend the trial court abused its discretion in dismissing their case for want of prosecution.[1] We reverse and remand.

         Background

         In 2005, the Pences and S&D entered into a contract for construction of a home. For the next few years, the Pences reported numerous problems with the home and eventually filed a complaint against S&D with the Texas Residential Construction Commission for not addressing defects with the new home.

         When the defects were not resolved, in late 2007, the Pences filed suit alleging numerous claims, including breach of contract against S&D. They also requested a jury. In 2009, the Pence's suit was transferred to the trial court's "drop docket" and notice was provided that the suit would be dismissed for want of prosecution on August 19, 2009. The notice instructed the Pences that a motion to retain the suit on the docket was required to be filed no later than August 17th. The Pences moved to retain the suit on the docket and the trial court signed an order setting the case for a nonjury trial to begin on November 17, 2009.

         Thereafter, S&D moved to abate the case and compel the Pences to arbitration pursuant to the terms of their contract. By order entered on November 9, 2009, the parties agreed to remove the case from the trial docket and submit the dispute to arbitration.

         However, no arbitration or activity occurred for several years and the case remained pending while the Pences were without legal counsel.

         On July 17, 2013, the case was again transferred to the trial court's "drop docket" with a notice advising that a motion to retain setting forth good cause to avoid dismissal was required to be filed no later than August 26, 2013. This time the trial court ordered that the case be retained on the docket with a new trial setting of October 29, 2013. Again, for reasons unknown, trial did not proceed as scheduled.

         Meanwhile, between March 16, 2014, and May 16, 2014, counsel for the Pences sent three letters to S&D asking for its cooperation to move forward with arbitration. None of the letters were answered and S&D's attorneys apparently withdrew from the case. In July 2014, the Pences filed a Motion to Enforce Order to Compel Arbitration.

         The next month, S&D filed a Suggestion of Bankruptcy that further stayed the proceedings. Due to the bankruptcy, the Pences asked the trial court to cancel a setting scheduled for August 20, 2014. In August 2015, after the automatic stay was lifted on S&D's bankruptcy, the Pences amended their petition to add new parties and claims. S&D answered and filed a counterclaim on September 2, 2015.

         On September 22, 2015, counsel for S&D sent a facsimile to the Pences' counsel confirming that the parties had agreed to litigate the case and waive their rights to enforce arbitration under their contract. However, the very next day, S&D filed its Motion to Dismiss for Want of Prosecution citing a violation of Rule 165a of the Texas Rules of Civil Procedure as well as the trial court's inherent power to dismiss a case for want of prosecution.

          On September 29, 2015, the Pences filed their motion to set the case for trial on the court's jury docket for January 18, 2016. S&D then filed a motion to strike the Pences' request for a jury trial based on their original contract which provided, in part, that the purchaser (here the Pences) "voluntarily and knowingly waives any right he/she may have to a jury trial." Subject to its motion to strike the Pences' request for a jury trial setting, S&D requested that the ...


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