517 S.W.3d 177
Tex. App.2017Background
- Jerry and Rosemary Cotten bought a retirement home in 2012 and later discovered extensive defects (rot, mold, roof leakage) they alleged were undisclosed.
- Plaintiffs sued sellers (Brileys), seller’s agent (Judy Stroman), the broker (Century 21 Lake Country), home inspector (Danny Halbrook), and later added Stroman Enterprises, LLC.
- Original counsel (Power) filed suit in June 2014 but largely failed to prosecute: no discovery, poor communication, and eventually was discharged in April 2016.
- Stroman and Lake Country moved for no-evidence summary judgment and to dismiss for want of prosecution; the trial court granted summary judgment for Stroman and Lake Country and later dismissed the entire suit for want of prosecution.
- Plaintiffs filed a second amended petition (adding Enterprise and new claims) without leave and after summary judgment; the trial court struck that amended petition and denied Plaintiffs’ objections.
- Plaintiffs appealed, arguing the dismissal was an abuse of discretion (faulting prior counsel), that certain defendants should not have been included in the dismissal, and that the court erred in shortening Rule 21 notice and striking the second amended petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for want of prosecution was an abuse of discretion | Inactivity was due to negligent prior counsel; dismissal punishes clients unfairly | Long period (≈17 months) of inactivity without adequate excuse; clients bound by counsel’s acts | Court affirmed dismissal: plaintiffs failed to show good cause; attorney’s inaction imputed to clients |
| Whether Stroman, Lake Country, and Enterprise were improperly included in dismissal | Second amended petition was struck, so Enterprise (and/or Stroman entities) were not properly in dismissal | Enterprise was added after motions were filed; striking order applied only to Stroman/Lake Country; inclusion of newly added parties in dismissal proper | Court held inclusion of Brileys, Halbrook, and Enterprise in dismissal was proper; no abuse of discretion |
| Whether striking second amended petition was error due to inadequate notice (Rule 21) | Plaintiffs lacked three-day notice and were prejudiced | Court may shorten Rule 21 notice for exigent circumstances; plaintiffs were present and not surprised; amendment was untimely after summary judgment | Court affirmed striking the second amended petition; no abuse of discretion in shortening notice |
| Whether trial court could consider new claims against Stroman/Lake Country after summary judgment | Plaintiffs argued new claims should be considered | Trial court had entered summary judgment; Rule 63 limits amendments near/after trial/summary judgment | Court held it could not consider amendments to revive claims after summary judgment; striking amendment did not prejudice plaintiffs |
Key Cases Cited
- In re Conner, 458 S.W.3d 532 (Tex. 2015) (dismissal for want of prosecution and Rules of Judicial Administration standards)
- Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999) (trial court power to dismiss for want of prosecution)
- Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167 (Tex. App.—Texarkana 1997) (client bound by acts/inactions of attorney)
- Gracey v. West, 422 S.W.2d 913 (Tex. 1968) (attorney-client principal-agent imputation of acts)
- Rampart Capital Corp. v. Maguire, 974 S.W.2d 195 (Tex. App.—San Antonio 1998) (factors for inherent-power dismissal)
- Denman v. Citgo Pipeline Co., 123 S.W.3d 728 (Tex. App.—Texarkana 2003) (amendments not permitted after summary judgment)
- Saint v. Bledsoe, 416 S.W.3d 98 (Tex. App.—Texarkana 2013) (imputation of attorney conduct to client)