F. DON LACY AND HOMES AND MORE, Appellants
LUIS A. CASTILLO, Appellee
Appeal from the 410th District Court Montgomery County, Texas
Trial Court Cause No. 16-05-06328-CV
consists of Chief Justice Frost and Justices Zimmerer and
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.
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.
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."
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.
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.
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."
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.
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."
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.
Appellants' claim for attorney's fees under Texas
Business and Commerce Code section 17.50(c) was "an
outstanding claim for affirmative relief"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.
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.").
we reject Appellee's contention that Appellants
"lack standing to file an appeal."
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
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.
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.
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.
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 ...