Lacy v. Castillo

          On Appeal from the 410th District Court Montgomery County, Texas Trial Court Cause No. 16-05-06328-CV

          Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.

          MAJORITY OPINION

          Meagan Hassan, Justice.

         Appellants, F. Don Lacy and Homes and More, appeal the trial court's order denying their Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice. We affirm.^[1]

         Background

         Appellee Luis A. Castillo bought a mobile home from Homes and More in November 2014. Appellee filed suit against Appellants, Homes and More, and its general partner and representative, F. Don Lacy, in May 2016.

         Appellee asserted claims against Appellants for breach of contract, Deceptive Trade Practices Act violations, common law fraud, fraud in a real estate transaction, and negligent misrepresentation. Appellee alleged that, at the time of the sale, the mobile home "had purportedly had a renovation, including a roof repair, replacement of significant portions of the floors, painting of the home's interior and exterior, ceiling repair, replacement of a water heater and appliances, and the replacement of the septic system." Appellee also alleged that (1) within a month of moving in, "a rain storm caused further roof leaks which have been ongoing since"; (2) "[i]n some portions of the home, prior to [Appellee]'s occupancy, the particle board flooring had been wet and in part fallen through exposing the interior of the home to the outdoors"; (3) "[a] hole in the master bedroom floor which had been concealed by wall cabinets that had been removed by [Appellee] had not been repaired"; (4) to induce Appellee to buy the home, Lacy "made promises to make the extensive repairs necessary to make the home habitable in a good and workmanlike manner prior to [Appellee] moving into the home"; and (5) "[a]lthough [Lacy] has made some effort on two occasions to make promised repairs, the repairs that were made have been totally inadequate and . . . [t]he roof continues to leak on virtually the entire perimeter, ceilings have collapsed into the home, floors have collapsed leaving gaping openings onto the ground below."

         Appellants filed an original and amended answer, generally denying Appellee's allegations and asserting a claim for attorney's fees under Texas Business and Commerce Code section 17.50(c). Appellants filed a summary judgment motion on May 24, 2017, and Appellee filed a response to Appellants' summary judgment motion on June 23, 2017. Appellee also filed "Plaintiff's Motion for Special Exceptions to Defendants' Motion for Summary Judgment, Plaintiff's Objections to Defendants' Summary Judgment Evidence & Motion to Strike; and Plaintiff's Motion for Leave to Amend Pleadings" on June 28, 2017.

         Appellee filed a notice of nonsuit on June 30, 2017. The trial court signed an order granting the nonsuit and dismissing the case without prejudice on July 3, 2017. Appellants filed a Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice on July 21, 2017. Appellee filed a response a few days later. The trial court held a hearing on Appellants' motion and signed an order denying the motion on September 5, 2017. Appellants filed a notice of appeal on September 11, 2017.

         This Court subsequently issued a letter informing the parties the order being appealed is not a final, appealable order and that dismissal for want of jurisdiction was being considered. Appellants filed a response acknowledging they had an outstanding claim for attorney's fees against Appellee. Appellants stated: "On April 28, 2019, in an effort to make the order appealed from final, Appellants filed a notice of non-suit regarding their request for attorney's fees." They further stated they filed a request for a supplemental clerk's record to include their notice for nonsuit, and that "[t]hese filings should resolve the issue of finality."

         The supplemental clerk's record was filed in this Court; it shows Appellants nonsuited their claim for attorney's fees without prejudice on April 29, 2019, and the trial court signed an order granting the nonsuit on May 8, 2019. Following the nonsuit of Appellants' claim for attorney's fees and there being no other outstanding claims before the court, the trial court's order denying Appellants' Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice is a final, appealable order.

         Analysis

         I. Standing

         Before we analyze Appellants' arguments, we address Appellee's contention that Appellants "lack standing to file an appeal." Appellee argues Appellants lack standing to appeal the trial court's July 3, 2017 order granting his nonsuit because (1) Appellants had "no outstanding claim for affirmative relief . . . on file with the court at the time of the nonsuit" and the nonsuit "render[ed] the merits of the nonsuited case moot" so there is nothing for an appellate court to review; and (2) Appellants' Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice was filed eighteen days after Appellee's nonsuit was granted and was "too late to be considered by the trial court."

         Appellee's contentions fail for several reasons. First, Appellants do not challenge the trial court's July 3, 2017 order granting Appellee's nonsuit; instead, Appellants appeal the trial court's September 5, 2017 order denying their Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice. Appellee does not argue Appellants lack standing to challenge the order denying their Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice.

         Second, Appellants' claim for attorney's fees under Texas Business and Commerce Code section 17.50(c) was "an outstanding claim for affirmative relief"^[2]and it was "on file with the court at the time of the nonsuit." In fact, Appellants nonsuited their attorney's fees claim only recently on April 29, 2019.

         Third, there is no authority to support Appellee's assertion that Appellants' Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice was filed "too late to be considered by the trial court." To the contrary, with Appellants' claim for attorney's fees still before the trial court, the trial court's July 3, 2017 order granting Appellee's nonsuit was not a final order and the trial court had plenary power to consider Appellants' motion. See Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam) ("A trial court has plenary power over its judgment until it becomes final. The trial court also retains continuing control over interlocutory orders and has the power to set those orders aside any time before a final judgment is entered."); Callaway v. Martin, No. 02-16-00181-CV, 2017 WL 2290160, at *3 n.3 (Tex. App.-Fort Worth May 25, 2017, no pet.) (mem. op.) ("A trial court has plenary power - power that is full, entire, complete, absolute, perfect, and unqualified - over, and therefore the jurisdiction and authority to reconsider, not only its judgment but also its interlocutory orders until thirty days after the date a final judgment is signed or, if a motion for new trial or its equivalent is filed, until thirty days after the motion is overruled by signed, written order or operation of law, whichever first occurs."); Flagstar Bank, FSB v. Walker, 451 S.W.3d 490, 504 (Tex. App.-Dallas 2014, no pet.) ("[A] trial court has the inherent right to change or modify any interlocutory order or judgment until the judgment on the merits of the case becomes final.").

         Accordingly, we reject Appellee's contention that Appellants "lack standing to file an appeal."

         II. Unfavorable Ruling

         We now turn to Appellants' argument that the trial court erroneously denied their "motion to declare [Appellee]'s notice of nonsuit without prejudice to be a notice of nonsuit with prejudice" because "the record shows [Appellee] filed the nonsuit without prejudice to avoid an unfavorable ruling on the merits."^[3]

         Whether a party nonsuited his claims to avoid an unfavorable ruling is a question of fact we review for an abuse of discretion. N. Star Water Logic, LLC v. Ecolotron, Inc., 486 S.W.3d 102, 105 (Tex. App.-Houston [14th Dist.] 2016, no pet.); Referente v. City View Courtyard, L.P., 477 S.W.3d 882, 885-86 (Tex. App.- Houston [1st Dist.] 2015, no pet.). Several factors may support an inference that a plaintiff has nonsuited in order to avoid an unfavorable ruling: (1) a plaintiff's nonsuit after a defendant files a motion for summary judgment; (2) a plaintiff's unexcused failure to respond to requests for admission or other discovery that could support an adverse judgment; (3) a plaintiff's failure to timely identify experts or other critical witnesses; and (4) the existence of other procedural obstacles that could defeat the plaintiff's claim, such as an inability to join necessary parties. Epps v. Fowler, 351 S.W.3d 862, 870-71 (Tex. 2011); N. Star Water Logic, LLC, 486 S.W.3d at 108; Referente, 477 S.W.3d at 886.

         Appellants contend the record before us shows Appellee nonsuited his claims without prejudice to avoid an unfavorable ruling because (1) Appellee timely filed a response to Appellants' summary judgment motion but failed to include controverting evidence; (2) "Lacy's affidavit refutes the elements of all of the causes of action alleged, and therefore, the only way for [Appellee] to overcome summary judgment would have been to file sworn testimony controverting Lacy's affidavit"; (3) Appellee "untimely filed a combined special exception to the motion for summary judgment, an objection to the evidence supporting the motion for summary judgment, and a request for leave to amend his petition to overcome the motion for summary judgment" but only requested a hearing on Appellants' summary judgment motion and not on his combined motion; (4) Appellee failed to designate experts "for the type of damages alleged in his pleadings" so he "could not have proven the damages at trial"; and (5) Appellee intended to refile the case at a later time.

         In the trial court, Appellants argued their Motion to Declare Plaintiff's Nonsuit a Dismissal with Prejudice should be granted because Appellee failed to submit any summary judgment evidence and failed to timely designate an expert to testify as to the reasonable and necessary cost to repair his mobile home. In his response, Appellee countered he did not nonsuit his claims to avoid an unfavorable ruling. He stated Appellants incorrectly asserted he failed to provide evidence in support of his summary judgment response and claimed Appellants' evidence would not have "substantiated a summary judgment." Appellee asserted that Appellants "even resorted to filing evidence that was tampered with in order to continue to mislead this Court;" Appellee asserted that Appellants' summary judgment exhibit E was tampered with and attached a "true and correct copy" of exhibit E to his response. Appellee also contended Lacy's affidavit provided false information in that Lacy claimed not having any knowledge of Appellee's "complaints about the mobile home" or any defects affecting habitability when a February 23, 2015 letter from Lacy to Appellee showed that Lacy and Appellee had several conversations and meetings "within the sixty-day (60) warranty period at issue in the underlying suit" about what repairs needed to be made to the mobile home. Appellee attached the letter as an exhibit to his response.

         Additionally, the trial court heard the parties' arguments at the hearing on Appellants' Motion to Declare Plaintiffs Nonsuit a Dismissal with Prejudice. Appellants' repeated their contention that the trial court should grant their motion because Appellee filed his nonsuit immediately after Appellants filed their summary judgment motion, he failed to submit any summary judgment evidence, and he failed to timely designate an expert on damages. Appellee responded, among others, as follows:

• "We certainly did not - we were not concerned with an adverse judgment coming out of the, you know, summary judgment motion. Again, in fact, especially when defendant himself has introduced tampered evidence within his summary judgment evidence . . . . There were many bad acts that were discovered during the investigation of this case."

• "In fact, I believe that many other causes of action were discovered during the investigation, and that was one of the reasons why we ...