Court of Appeals of Texas, Fifth District, Dallas
PS ROYAL SERVICES GROUP LP, GP ROYAL, LLC, STEPHEN F. PERKINS, AND S. PERKINS INVESTMENT PROPERTIES, INC., Appellants
SCOTT FISHER AND KRISTI FISHER, Appellees
Appeal from the 219th Judicial District Court Collin County,
Texas Trial Court Cause No. 219-01665-2014
Justices Bridges, Brown, and Nowell
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.
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.
Control, Discovery and Scheduling Order
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.
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.
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
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.
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.
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.
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.
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 ...