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PS Royal Services Group LP v. Fisher

Court of Appeals of Texas, Fifth District, Dallas

August 5, 2019


          On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-01665-2014

          Before Justices Bridges, Brown, and Nowell



         Following a jury trial, appellants PS Royal Services Group, LP; GP Royal, LLC; Stephen F. Perkins; and S. Perkins Investment Properties, Inc. appeal a judgment in favor of appellees Scott and Kristi Fisher. Appellants raise five issues in which they complain of several pre- and post-trial rulings. In general, their complaints involve a docket control order that reopened discovery, the denial of a motion for continuance based on their attorney's health issues, and the judge's alleged misconduct during trial. For reasons that follow, we affirm.

         The actual subject matter of the lawsuit has little to do with the issues presented in this appeal. The Fishers initiated this lawsuit against appellants-Perkins and three business entities in which Perkins has an ownership interest. They alleged Perkins approached them about investing in a storage facility business in Prosper, Texas. They did invest, and they claimed Perkins made numerous false representations and intentionally concealed material facts to get them to do so. Among other things, the Fishers alleged Perkins failed to disclose that the storage facility property was the subject of an impending foreclosure. They asserted claims for fraud, civil conspiracy, and violations of the Texas Securities Act. A jury found that Perkins committed fraud by intentional misrepresentation and by failure to disclose material information to the Fishers. The jury also found that Perkins and/or PS Royal Services Group committed a securities law violation. In addition, the jury found that all four appellants were members of a civil conspiracy to use or benefit from both types of fraud and from the securities law violation. The jury determined the Fishers' actual out-of-pocket economic damages were $300, 000. The trial court's judgment awarded the Fishers $300, 000 and their attorney's fees and court costs, plus interest.

         Docket Control, Discovery and Scheduling Order

         Appellants' first and second issues are related. In their first issue, appellants complain of the trial court's March 24, 2017 "Docket Control, Discovery and Scheduling Order" and the fact that it reopened the discovery period. In issue two, they assert the trial court should have instead granted their motion to dismiss for want of prosecution.

         The Fishers filed their original petition on May 2, 2014. Appellants answered in November 2014. The parties conducted some discovery, but there was initially little activity in the case. On November 3, 2016, the trial court gave notice of its intent to dismiss the case for want of prosecution. The notice advised that the case would be dismissed unless either a judgment or a docket control order with a final setting was signed. In the event neither of these things could be accomplished, the court gave the Fishers thirty days to file a motion to retain. Any motion to retain was to be heard on December 2, 2016.

         The Fishers hired a new co-counsel, and on November 29, filed a "Motion for Docket Control Order." They asked the trial court to retain their case on the court's docket and sought a new pretrial discovery level and a new cutoff date for discovery. They argued that their attempts to conduct discovery had been met by appellants with objections. The trial court heard the motion on December 2, 2016, but did not rule on it at that time. The appellate record does not include the reporter's record from that hearing. The trial court's docket sheet indicates the dismissal for want of prosecution was canceled and the court would carry the case to the next dismissal docket. Before then, the parties were to "have scheduling order and trial date."

         Under the impression the trial court issued an order in December, on February 10, 2017, appellants moved to set aside such an order. Appellants' counsel stated he did not have notice of the Fishers' motion for a new docket control order and that he first learned of a new court order on January 18. Appellants argued that opposing counsel had electronically served their attorney at an outdated e-mail address, despite having notice of the address change in 2015.

         On March 21, 2017, appellants moved the trial court to dismiss the Fishers' case for want of prosecution. Appellants argued the discovery period had already ended under the original docket control plan, and the case should have been tried by May 2016. They asserted the Fishers had not taken any action in the case between February 2015 and February 2016. Appellants argued the Fishers had the burden to rebut the presumption that their delay had been unreasonable and had not done so.

         At a March 24 hearing, appellants' counsel acknowledged that he received notice from the court of the December 2 dismissal docket. But he asserted he never received a copy of any motion to retain. Because he did not know about the Fishers' motion, he "saw no reason to show up" on December 2. Appellants argued the case should be dismissed unless the Fishers had evidence to show why it should not be. The Fishers responded that they offered evidence at the December 2 hearing when the trial court ordered them to do so. They volunteered to offer the evidence again, but the judge said he had sufficient information to make a decision. Appellants made an offer of proof consisting of testimony from counsel. The judge denied appellants' motion to dismiss and signed an order captioned "Docket Control, Discovery and Scheduling Order." The order granted the Fisher's Motion for Docket Control Order based on the evidence presented at the December 2 hearing and the contents of the court's file. The court ruled that the case would be retained on the court's docket, set the case for jury trial on June 19, 2017, and required all discovery to be completed thirty days before trial.

         Appellants complain the trial court abused its discretion in issuing the March 24 order and in denying their motion to dismiss. They assert the trial court erred by reopening discovery without a showing of good cause from the Fishers. According to appellants, they were greatly prejudiced by the reopening of discovery because it allowed the Fishers to take the deposition of an attorney with knowledge of the foreclosure proceedings. Similarly, appellants argue the trial court abused its discretion in denying their motion to dismiss because the Fishers failed to offer a reasonable explanation for their delay in bringing this case to trial.

         At the December 2, 2016 hearing, the Fishers offered evidence in support of their Motion for Docket Control Order in which they requested new discovery deadlines. As stated, the appellate record does not include the reporter's record from that hearing. When the record is incomplete, the court of appeals must presume the missing reporter's record supports the trial judge's decision. See In re J.T.S., No. 05-17-00204-CV, 2018 WL 1465535, at *2 (Tex. App.- Dallas Mar. 26, 2018, no pet.) (mem. op.) (citing Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002)); Bailey v. Gallagher, 348 S.W.3d 322, 325 (Tex. App.-Dallas 2011, pet. denied). Appellants maintain that because they had no notice the December hearing would include consideration of the Fishers' motion, it does not matter what evidence was presented at that hearing. But appellants discount the fact that they appeared before the trial court before it ruled on the Fishers' Motion for Docket Control Order. At the March 24 hearing, appellants stated their position that the case should be dismissed unless the Fishers had evidence to show otherwise. The Fishers proposed to offer their evidence again. The trial judge did not require them to, stating he had sufficient information to make a decision. Appellants did not object to the fact that the court did not have the Fishers put on their evidence again in appellants' presence or otherwise make such a complaint known to the judge. See ...

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