Opinion
01-22-00305-CV
03-30-2023
KENNARD LAW, PC, Appellant v. LINDA PATTON, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 15-DCV-226125A.
Panel consists of Goodman, Countiss, and Farris, Justices.
MEMORANDUM OPINION
Julie Countiss, Justice.
Appellant, Kennard Law, PC ("Kennard Law"), challenges the trial court's order granting the motion to dismiss for want of prosecution filed by appellee, Linda Patton, following Kennard Law's intervention in a wrongful-termination suit of Patton against a former employer. In four issues, Kennard Law contends that the trial court erred in dismissing its claims against Patton.
We modify the trial court's order and affirm as modified.
Background
On June 24, 2020, Kennard Law filed a plea in intervention in a wrongful-termination suit brought by Patton against her former employer, Triumph Southwest, LP, doing business as Kindred Hospital Sugar Land ("Kindred"), (the "Kindred suit"). Kennard Law alleged that Patton terminated "the attorney-client relationship" between her and Kennard Law "without good cause" because Kennard Law had "refus[ed] to hide relevant and discoverable items in discovery." Then Patton filed suit against Kennard Law in a Harris County justice court seeking to recover the retainer she had paid Kennard Law. That suit was dismissed, and Patton "[s]ubsequently," and "without merit," filed a grievance with the State Bar of Texas against Kennard Law's managing partner, Alfonso Kennard Jr. ("Alfonso Kennard"). According to Kennard Law, Patton's grievance was "unsuccessful[]."
Kennard Law asserted that it had "a valid contractual lien" against Patton based on the engagement agreement she executed with Kennard Law, which stated that Patton had "agree[d] to pay" Kennard Law forty percent "upon the filing of a lawsuit of any and all sums of money and property recovered [t]herein." Patton also had agreed to pay a "non-refundable retainer of $14,750.00" to Kennard Law "to secure [Kennard Law's] services and availability and remunerate [Kennard Law] for the loss of the opportunity to accept other employment." Because of its claim to attorney's fees under its engagement agreement with Patton, Kennard Law "request[ed] that when [the Kindred suit] [wa]s resolved and/or settled," Kennard Law's "assigned [forty-percent] interest" in any such settlement "be placed in the registry of the court" until Kennard Law's ownership dispute as to its interest in the settlement funds was resolved.
Patton responded to Kennard Law's plea in intervention by moving to strike the intervention or, alternatively, to sever Kennard Law's claims against her and order the disputed funds deposited in the court's registry. Patton disputed Kennard Law's allegation that she had terminated their attorney-client relationship without cause. She asserted that she had done so because in discovery in the Kindred suit, Kennard Law gave Kindred "blanket access to many of [her] confidential records," access that the trial court "later disallowed as falling well outside of the lawsuit's relevant time period." Patton also disputed Kennard Law's allegation that her grievance against Alfonso Kennard was unsuccessful, noting that he had "complet[ed] the State Bar's disciplinary program . . . as a direct result of [her] grievance."
Patton further explained in her motion to strike or alternative motion to sever, that in 2020, Patton and Kindred resolved their dispute "and entered into a confidential, no-fault settlement" of the Kindred suit, which had been "pending before the [trial court] since 2015." And Patton pointed out that because her dispute with Kindred was resolved, "[t]he only issue" that remained in the Kindred suit was the one Kennard Law raised in its plea in intervention. Kennard Law's intervention threatened to delay final resolution of the case by injecting "new causes of action and defenses, adding different parties, and imposing additional discovery requirements."
Patton agreed with Kennard Law that the trial court should place forty percent of the settlement funds from Patton and Kindred's resolution of the Kindred suit in its registry "pending resolution" of Kennard Law's attorney's-fees dispute with Patton. Alternatively, she requested that the funds be placed in her current attorney's client trust account. But Patton maintained that Kennard Law's intervention in the Kindred suit was improper and Kennard Law's claims against her belonged in a separate suit. So, as an alternative to striking the plea in intervention, she requested that the trial court sever Kennard Law's attorney's-fees claims "from the rest of" the Kindred suit and order the trial court clerk "to assign [the severed case] a new cause number."
On July 23, 2020, the trial court signed an order striking Kennard Law's plea in intervention and granting Patton's motion to sever. It further ordered that Kennard Law's plea in intervention be docketed in the severed action, which is the trial court case that culminated in this appeal.
On October 20, 2021, Patton filed a motion to dismiss Kennard Law's claims against her in the severed action and release the funds being held in the court registry. She alleged that in late October 2015, she retained Kennard Law to represent her in bringing suit against Kindred. Under her engagement agreement with Kennard Law, Patton paid an attorney's-fees retainer of $14,750.00 and an expense retainer of $2,000.00, and she agreed to give Kennard Law a forty percent stake in any recovery from the Kindred suit. While representing Patton in the Kindred suit, "Kennard Law engaged in one round of discovery with Kindred but performed no other substantive legal work." About six months later, Patton terminated Kennard Law when she discovered that Kennard Law had "deliver[ed] expansive authorizations to Kindred without her knowledge or consent." Kennard Law withdrew from representing Patton and sent her an email stating: "Our firm relinquishes any interest in your case. We will not be asserting a lien-although we could, we will choose not to." (Internal quotations omitted.) Patton retained new counsel, Derrick Law, PLLC ("Derrick Law"), to represent her in the Kindred suit. According to Patton, "[i]n reliance on Kennard Law's representation[] that it had relinquished any interest in her case," Patton then agreed to pay Derrick Law forty percent "of any settlement, judgment, or award she obtained as a result of [the Kindred suit]."
Meanwhile, in 2019, Patton, acting pro se, brought suit against Kennard Law and Alfonso Kennard in a Harris County justice court, seeking return of the balance of the retainer she had paid Kennard Law. In response, in September 2020, Alfonso Kennard, in the justice court suit, countersued Patton for breach of contract and invoked the provision of Kennard Law's engagement agreement with Patton, which required any dispute arising under it to be settled by arbitration. The justice court ordered the dispute to arbitration and dismissed Patton's suit and Alfonso Kennard's countersuit.
At the same time Alfonso Kennard filed his countersuit in the justice court, Kennard Law contacted Derrick Law to negotiate a settlement of its attorney's-fees claim. Derrick Law asked Kennard Law to provide legal authority to support its position that Kennard Law "could enforce a previously relinquished interest." No settlement occurred because Kennard Law did not provide such authority, but Derrick Law informed Kennard Law on June 23, 2020 that it would "hold the disputed amount of [$130,000.00] in a trust or the court's registry until the lien dispute [was] resolved," as required under the Texas Disciplinary Rules of Professional Conduct. The next day, on June 24, 2020, Kennard Law filed its plea in intervention in the Kindred suit.
See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.14(c), reprinted in TEX. GOV'T CODE ANN., TIT. 2, SUBTIT. G APP. A.
Patton further explained that from the time Kennard Law's claims against her were severed from the Kindred suit in July 2020 until the filing of Patton's motion to dismiss in October 2021, Kennard Law had not "take[n] any action whatsoever to prosecute its claims." Meanwhile, Patton's settlement funds had "uselessly sat in the [c]ourt's registry for over a year." Patton requested that the trial court dismiss the severed case for want of prosecution under Texas Rule of Civil Procedure 165a(2) and its inherent power.
See TEX. R. CIV. P. 165a(2).
In its response in opposition to Patton's motion to dismiss, Kennard Law argued that the requirements for dismissal were not met because there was no scheduling order for the case, Kennard Law had "never failed to appear at any scheduled event" in the case, the case had "never been placed on a dismissal docket," and Patton did "not have standing to move for dismissal for want of prosecution."
Kennard Law also disputed Patton's version of the events that followed her termination of their attorney-client relationship. It asserted that "Patton did not accept" Kennard Law's "original offer to do a 'walk-away,'" which, according to Kennard Law, "would have been the bargain[ed]-for exchange needed for [Kennard Law] to relinquish its interest." Kennard Law further represented that its dispute with Patton "ha[d] no material fact issues," and that it "anticipate[d] filing a dispositive motion within the time frame established by [the trial court's] scheduling order." For those reasons, Kennard Law requested that the trial court deny Patton's motion to dismiss and "allow[] [Kennard Law] to file its dispositive motion within forty-five days" of the order denying the motion to dismiss.
After the motion to dismiss was filed, Kennard Law propounded discovery on Patton. It also attempted to schedule Patton's deposition and, when Patton refused to provide available dates because of the pending motion to dismiss, Kennard Law filed a motion to compel Patton's deposition.
The trial court held a non-evidentiary hearing on Patton's motion to dismiss on April 18, 2022, and it signed an order granting the motion to dismiss for want of prosecution. It also ordered "that the court registry funds be released" to Patton and dismissed all claims against Patton "with prejudice."
Motion to Dismiss
In its first, second, and third issues, Kennard Law argues that the trial court erred in granting Patton's motion to dismiss for want of prosecution because (1) there was no evidence that Kennard Law failed to appear at any event or hearing, (2) Kennard Law diligently prosecuted its case by sending discovery requests, requesting depositions, and filing a motion to compel, and (3) there was no docket control order or trial date set in the case.
We review a trial court's dismissal of a suit for want of prosecution under an abuse-of-discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Renfro v. Davis, No. 01-21-00540-CV, 2022 WL 3031605, at *2 (Tex. App.- Houston [1st Dist.] Aug. 2, 2022, no pet.) (mem. op.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Renfro, 2022 WL 3031605, at *2.
The trial court's authority to dismiss a case for want of prosecution stems from two sources: (1) Texas Rule of Civil Procedure 165a and (2) the court's inherent power. Villarreal v. San Antonio Truck &Equip., 994 S.W.2d 628, 630 (Tex. 1999); see also TEX. R. CIV. P. 165a. Under Texas Rule of Civil Procedure 165a(1), a trial court may dismiss a civil suit for want of prosecution if a party seeking affirmative relief fails "to appear for any hearing or trial of which the party had notice." See TEX. R. CIV. P. 165A(1). Under Texas Rule of Civil Procedure 165a(2), a trial court may dismiss a case if it is “not disposed of within the time standards promulgated by the Supreme Court under its Administrative Rules." See TEX. R. CIV. P. 165A(2); see also In re Conner, 458 S.W.3d 532, 535 (Tex. 2015). The Texas Rules of Judicial Administration state that trial courts "should, so far as reasonably possible, ensure that" non-family-law and civil nonjury cases, like this one, be brought to trial "[w]ithin 12 months from appearance date." TEX. R. JUD. ADMIN. 6.1(a)(2), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. F app.
A trial court may exercise its inherent powers to dismiss a case when it has not been prosecuted with due diligence. See Villarreal, 994 S.W.2d at 630; State v. Rotello, 571 S.W.2d at 508-09. Diligence is generally a question of fact. Bechem v. Reliant Energy Retail Servs., LLC, No. 01-16-00189-CV, 2017 WL 976069, at *3 (Tex. App.-Houston [1st Dist.] Mar. 14, 2017, no pet.) (mem. op.); see also MacGregor v. Rich, 941 S.W.2d 74, 75-76 (Tex. 1997). In resolving this question, the trial court may consider the entire history of the case. Bechem, 2017 WL 976069, at *3. Factors to consider include: (1) the length of time the case was on file; (2) the extent of activity in the case; (3) whether a trial setting was requested; and (4) the existence of reasonable excuses for delay. Whallon v. Candlelight Trails I Ass'n, No. 01-18-00493-CV, 2019 WL 5996374, at *5 (Tex. App.-Houston [1st Dist.] Nov. 14, 2019, no pet.) (mem. op.); Bechem, 2017 WL 976069, at *3; Henderson v. Blalock, 465 S.W.3d 318, 321 (Tex. App.-Houston [14th Dist.] 2015, no pet.). "[A] delay of an unreasonable duration . . ., if not sufficiently explained, will raise a conclusive presumption" that a plaintiff has abandoned its suit. In re Conner, 458 S.W.3d at 534 (alteration in original) (internal quotations omitted). Absent a reasonable explanation for the plaintiff's delay in prosecuting its claims, a trial court is justified in dismissing the case, either under Texas Rule of Civil Procedure 165a(2) or its inherent authority. Id.
Kennard Law asserts that dismissal of its claims against Patton was not proper under Texas Rule of Civil Procedure 165a(1). Patton, though, did not move for dismissal under rule 165a(1), and nothing in the record indicates that Kennard Law failed to appear for a hearing or a trial. Patton sought dismissal under Texas Rule of Civil Procedure 165a(2) and the trial court's inherent power because the case had been pending for more than twelve months and Kennard Law "ha[d] not taken one step to advance its lien claims" while Patton had "tens of thousands of dollars in compensatory damages" sitting in the trial court's registry due to Kennard Law's "pending lien claims."
As to those grounds, Kennard Law argues that the trial court's dismissal under Texas Rule of Civil Procedure 165a(2) was improper and its inaction did not show a lack of diligence because there was no trial setting or docket control order in the case. But Kennard Law does not cite any authority to support its argument that the trial court, rather than the plaintiff, is responsible for setting a case for trial, and we find the contrary to be true. See TEX. R. APP. P. 38.1(I). TEXAS COURTS HAVE CONSISTENTLY CONFIRMED THAT A DILIGENT PLAINTIFF ENSURES THAT ITS CASE IS SET FOR TRIAL. See Moore v. Armour &Co., 748 S.W.2d 327, 330 (Tex. App.-Amarillo 1988, no pet.) (although trial court could have set cause for trial, plaintiff, not trial court, was responsible for securing trial setting as part of duty to proceed with reasonable diligence in prosecuting case); see also Southwell Invs. Grp., III v. Indwell Res., Inc., No. 14-08-00695-CV, 2010 WL 1379987, *1 (Tex. App.-Houston [14th Dist.] Apr. 8, 2010, no pet.) (mem. op.) (upholding dismissal where plaintiff failed to explain how absence of scheduling order showed it exercised diligence or why it did not ask trial court to enter docket control order); Van Dyke v. Boswell, O'Toole, Davis &Pickering, No. 14-93-00323-CV, 1994 WL 276875, at *5 (Tex. App.- Houston [14th Dist.] June 23, 1994, writ denied) (not designated for publication) (rejecting plaintiff's argument that her delay in prosecution was reasonable because she was waiting for trial court to set her case for trial and explaining she "had the primary duty to set her case for trial"). Thus, Kennard Law's failure to secure a docket control order or a trial setting was a factor that the trial court could properly rely on in deciding to dismiss Kennard Law's claims for want of prosecution.
Kennard Law has not provided any explanation for its failure to prosecute its claims against Patton for the nearly fourteen months that elapsed between the trial court's severance of its claims into a separate action and the filing of Patton's motion to dismiss. See In re Conner, 458 S.W.3d at 535 (failure to provide good cause for not disposing of case within time standards set forth in Texas Rules of Judicial Administration "mandates dismissal"). The closest Kennard Law comes to explaining its inaction is to assert, for the first time in this Court, that the COVID-19 pandemic "create[d] reasonable excuses for delay." But because Kennard Law did not explain to the trial court whether or how the COVID-19 pandemic affected its ability to prosecute its claims against Patton, that proffered explanation was not preserved for appellate review and we do not consider it. See TEX. R. APP. P. 33.1(A); Taylor v. Bridges, No. 14-13-00669-CV, 2014 WL 4202507, at *3 n.2 (Tex. App.- Houston [14th Dist.] Aug. 26, 2014, no pet.) (mem. op.) (appellant failed to preserve argument that dismissal for want of prosecution was improper because service of citation on appellant was perfected three days before dismissal hearing where record did not indicate trial court was made aware of such fact); see also Burnett v. Carnes Funeral Home, Inc., No. 14-12-01159-CV, 2014 WL 2601567, at *6 (Tex. App.- Houston [14th Dist.] June 10, 2014, no pet.) (mem. op.) (appellants failed to preserve for appellate review argument that they lacked notice as basis to reinstate case where they had opportunity to bring issue to trial court's attention but did not do so).
See generally Kim v. Ramos, 632 S.W.3d 258, 261 n.5, 266 n.13 (Tex. App.- Houston [1st Dist.] 2021, no pet.) (discussing COVID-19 pandemic).
Kennard Law also asserts on appeal that the trial court should have considered that its actions in prosecuting the case after Patton filed her motion to dismiss but before the hearing on the motion to dismiss "made any argument that [Kennard Law] was not diligently prosecuting its case moot." Texas courts have rejected the assertion that a plaintiff's showing of willingness to proceed after a motion to dismiss has been filed prevents the trial court from considering the entire history of the case in determining whether a case should be dismissed for want of prosecution. See Ashman v. Pasadena Indep. Sch. Dist., No. 01-93-00879-CV, 1994 WL 543316, at *2 (Tex. App.-Houston [1st. Dist.] Oct. 6, 1994, no writ) (not designated for publication); Moore v. Armour &Co., 748 S.W.2d 327, 330 (Tex. App.-Amarillo 1988, no pet.). Further, Texas courts have consistently refused to consider actions taken by a plaintiff after a motion to dismiss has been filed in determining whether the plaintiff exercised reasonable diligence in prosecuting its case. See Bannum, Inc. v. Mees, No. 03-19-00599-CV, 2021 WL 445133, at *3 (Tex. App.-Austin Feb. 9, 2021, no pet.) (mem. op.); In re Trane U.S. Inc., No. 13-18-00008-CV, 2018 WL 1192712, at *7 (Tex. App.-Corpus Christi-Edinburg Mar. 6, 2018, no pet.) (mem. op.); Cotten v. Briley, 517 S.W.3d 177, 184 (Tex. App.-Texarkana 2017, no pet.); Bjorkstam v. Woodward, Inc., No. 14-14-00927-CV, 2016 WL 1072298, at *3 (Tex. App.-Houston [14th Dist.] Mar. 17, 2016, no pet.) (mem. op.).
The record supports the trial court's dismissal of Kennard Law's suit under Texas Rule of Civil Procedure 165a(2) because the suit was not disposed of within the applicable twelve-month time standard. See TEX. R. CIV. P. 165A(2); TEX. R. JUD. ADMIN. 6.1(A)(2); see also In re Conner, 458 S.W.3d at 535. And because Kennard Law had no explanation for its inaction after filing the case, dismissal was also proper under the trial court's inherent power. Accordingly, we hold that the trial court did not err in granting Patton's motion to dismiss.
We overrule Kennard Law's first, second, and third issues.
Dismissal With Prejudice
In its fourth issue, Kennard Law argues that the trial court erred in "making factual determinations" at the hearing on Patton's motion to dismiss and in dismissing its claims with prejudice because "a dismissal without prejudice is required when the court dismisses a party for failing to prosecute its affirmative claims."
Kennard Law cites no legal authority and makes no argument to support its complaint that the trial court erred in "making factual determinations" at the hearing on Patton's motion to dismiss. Texas Rule of Appellate Procedure 38.1(i) requires that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). "This is not done by merely uttering brief conclusory statements, unsupported by legal citations." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.] 2002, pet. denied); see also Barham v. Turner Constr. Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.-Dallas 1990, writ denied) (appellant bears burden of discussing its assertions of error). A failure to provide substantive analysis of an issue or cite appropriate authority waives an appellate complaint. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.-San Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas 2006, no pet.). Accordingly, we hold that Kennard Law waived this portion of its fourth issue due to inadequate briefing. See TEX. R. APP. P. 38.1(I); M &E Endeavors LLC v. Air Voice Wireless LLC, Nos. 01-18-00852-CV, 01-19-00180-CV, 2020 WL 5047902, at *7 (Tex. App.-Houston [1st Dist.] Aug. 17, 2020, no pet.) (mem. op.) ("The [appellate] briefing requirements are mandatory ....").
The reporter's record shows that the hearing on Patton's motion to dismiss was non-evidentiary, so we do not consider it. "If all the evidence is filed with the clerk and only arguments by counsel are presented in open court, the appeal should be decided on the clerk's record alone." Michiana Easy Livin' Country, Inc. v. Holden, 168 S.W.3d 777, 782 (Tex. 2005); see also City of Baytown v. APTBP, LLC, No. 01-15-01039-CV, 2016 WL 3362459, at *1 (Tex. App.-Houston [1st Dist.] June 16, 2016, no pet.) (mem. op.).
As to the remaining portion of Kennard Law's fourth issue, we note that a dismissal for want of prosecution should be without prejudice. See Arrow Marble, LLC v. Estate of Killion, 441 S.W.3d 702, 707 (Tex. App.-Houston [1st Dist.] 2014, no pet.); see also El Paso Pipe &Supply Co. v. Mountain States Leasing, Inc., 617 S.W.2d 189, 190 (Tex. 1981) (observing trial court erroneously dismissed action for want of prosecution with prejudice); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568 (Tex. App.-Houston [14th Dist.] 1990, writ denied) ("As a general rule, a dismissal for want of prosecution with prejudice is improper."). For this reason, we hold that the trial court erred in dismissing Kennard Law's claims against Patton with prejudice.
In these circumstances, we have the authority to modify the trial court's dismissal order. See TEX. R. APP. P. 43.2(B); see, e.g., Moers v. Harris Cnty. Appraisal Dist., 469 S.W.3d 655, 668 (Tex. App.-Houston [1st Dist.] 2015, pet. denied) (modifying trial court judgment to provide dismissal for want of prosecution was without prejudice). Thus, we modify the trial court's order by deleting the words "with prejudice" and replacing them with the words "without prejudice."
We sustain this portion of Kennard Law's fourth issue.
Conclusion
We modify the trial court's order and affirm as modified.