Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perry v. Benbrooke Ridge Partners L.P.

Court of Appeals of Texas, Fifth District, Dallas

May 7, 2018

SHANE PERRY AND LIZETT PUGLIESE, Appellants
v.
BENBROOKE RIDGE PARTNERS L.P., PRETIUM PROPERTY MANAGEMENT LLC, BENBROOKE ROCKWALL INVESTMENT CORP, BENBROOKE REALTY INVESTMENT COMPANY, SAMUEL NICHOLSON, AND RICHARD LUBKIN, Appellees

          On Appeal from the County Court at Law Rockwall County, Texas Trial Court Cause No. 1-15-968

          Before Justices Francis, Evans, and Boatright

          MEMORANDUM OPINION

          DAVID EVANS JUSTICE

         Appellants Shane Perry and Lizett Pugliese assert that the trial court abused its discretion by denying their motion for new trial. We reverse and remand.

         BACKGKOUND

         Perry and Pugliese are married and owned and operated a laser clinic. Appellee Benbrooke Ridge Partners, L.P. entered into a shopping center lease agreement with Perry. Benbrooke Ridge filed a lawsuit in Justice Court seeking possession of the property. After obtaining possession, Benbrooke Ridge filed a lawsuit against Perry alleging he defaulted under the lease by failing to pay rent.

          Perry filed an original and amended answer. In each he pleaded affirmative defenses, and in each Pugliese joined the suit as a third-party plaintiff and together with Perry asserted "counterclaims/third party claims" against Benbrooke Ridge and appellees Pretium Property Management LLC, Benbrooke Rockwall Investment Corporation, Benbrooke Realty Investment Company, Sam Nichols and Richard Lubkin. Perry and Pugliese alleged numerous causes of action in their counterclaims and third-party claims including, but not limited to, loss of consortium, conspiracy, harm resulting from a criminal act, fraudulent inducement, business disparagement, violations of the Texas Deceptive Trade Practice Act, fraud, intentional infliction of emotional distress, and tortious interference with contract. The pleaded factual basis for the counterclaims/third-party claims involved the lease, disputes about amounts owed under the lease, a commercial lock-out, Benbrooke's agent swatting Pugliese's phone out of her hand and locking Pugliese in the premises against her will, Benbrooke's admission of mistake about the amount of rent owed, Perry and Pugliese's continued occupancy of the leased premises, and continued altercations with Benbrooke's agent at the premises.

         When the trial court called the case for trial, appellees appeared by and through their attorney and announced ready for trial, but neither Pugliese nor Perry appeared personally or through an attorney. The trial court heard evidence and argument of counsel and executed a post-answer default judgment which awarded as follows:

ORDERED, ADJUDGED AND DECREED, that Plaintiff, BENBROOKE RIDGE PARTNERS L.P., recover of and from Defendant, SHANE PERRY, the sum of ELEVEN THOUSAND NINE HUNDRED SIXTY-ONE AND 74/100 DOLLARS ($11, 961.74), plus post-judgment rate of five percent (5%) per annum from the date hereof until paid in full, plus TWENTY THOUSAND AND 00/100 DOLLARS ($20, 000.00) in reasonable attorneys [sic] fees; and all costs of court; and it is further,
ORDERED, ADJUDGED AND DECREED, that Plaintiff, Benbrooke Ridge Partners, L.P. recover of and from Defendant/Counter-Plaintiff, SHANE PERRY, the sum of TEN THOUSAND AND 00/100 DOLLARS ($10, 000.00) if this case is unsuccessfully appealed to the Court of Appeals, TEN THOUSAND

AND 00/100 DOLLARS ($10, 000.00) for responding to an Application for Writ of Error to the Supreme Court of Texas which is unsuccessful, and TEN THOUSAND AND 00/100 DOLLARS ($10, 000.00) for legal services if the Application for Writ of Error is granted by the Supreme Court of Texas but the appeal is not successful; it is further,

ORDERED, ADJUDGED AND DECREED, that Defendant/Counter-Plaintiff and Third-Party Plaintiff, SHANE PERRY and Third Party Plaintiff, LIZETT PUGLIESE, take nothing from Counter-Defendant, BENBROOKE RIDGE PARTNERS, L.P. and Third Party Defendants, PRETIUM PROPERTY MANAGEMENT, LLC, BENBROOKE ROCKWALL INVESTMENT CORP, BENBROOKE REALTY INVESTMENT CORP, BENBROOKE REALTY INVESTMENT COMPANY, SAMUEL NICHOLSON, AND RICHARD LUBKIN, by their Counterclaim and Third Party Petition.

         Perry and Pugliese filed a motion for new trial. According to the record, the trial court took the motion under advisement without a hearing on the merits.[1] When the trial court failed to issue an order on the motion for new trial, the motion was overruled by operation of law. Perry and Pugliese timely filed a notice of appeal.

         ANALYSIS

         In their sole issue, Perry and Pugliese assert that the trial court abused its discretion in denying their motion for new trial.

         A. Standard of Review

         The standard of review of the denial of a motion for new trial is abuse of discretion. See Dugan v. Compass Bank, 129 S.W.3d 579, 582 (Tex. App.-Dallas 2003, no pet.). When a defaulting party moving for new trial meets all three elements of the Craddock test, then a trial court abuses its discretion if it fails to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.