Opinion
NO. 09-15-00049-CV
02-04-2016
VITO VARGAS, JOHN VARGAS, AND STEVEN TEMPLE, Appellants v. APPLIED MACHINERY CORP., Appellee
On Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 13-10-11119 CV
MEMORANDUM OPINION
Appellants Vito Vargas (Vito), John Vargas (John), and Steven Temple (Steven) (collectively, Appellants) are three of ten plaintiffs who filed a petition against Applied Machinery Corp. (Applied) asserting a claim for nuisance. Applied filed a no-evidence motion for summary judgment against all plaintiffs, which the trial court granted. Appellants filed a motion for new trial, which the trial court denied. Appellants now appeal the trial court's denial of Appellants' motion for new trial. We affirm.
The remaining plaintiffs are not parties to this appeal.
BACKGROUND
In October of 2013, Vito and Steven, along with four other individuals, filed an original petition against Applied in which the plaintiffs asserted a claim for nuisance, alleging that Applied's industrial facility operated 365 days a year and emitted noise and dust each day, interfering with the Plaintiffs' quiet enjoyment of their homes and property. The plaintiffs filed a first amended petition in February of 2014, adding three additional plaintiffs. In August of 2014, plaintiffs filed a second amended petition, adding John Vargas as a plaintiff, listing a total of ten plaintiffs. The original petition, first amended petition, and second amended petition were filed by attorney Erik A. Nelson (Nelson) as "ATTORNEY FOR PLAINTIFF" or "ATTORNEY FOR PLAINTIFFS[.]"
In June of 2014, Applied filed a counterclaim against Vito, alleging that Vito had published defamatory statements concerning Applied and asserting a cause of action against Vito for trespass. Also in June of 2014, Erik C. Ostrander (Ostrander), president and owner of Applied, filed a petition in intervention and asserted claims against Vito for trespass, libel, and slander.
In July of 2014, Applied filed a Motion to Compel Plaintiffs to Respond to Interrogatories and Requests for Production, stating that Applied had served Vito and Steven, as well as the other plaintiffs, with interrogatories and requests for production on June 10, 2014. Applied argued that plaintiffs' responses to discovery were "late and incomplete" which interfered with Applied's ability to prepare its case. Applied's discovery requests to Vito and Steven included a request that they describe the damage to their real property and a request for "any and all documents which in any way support your claim for real property damages[]." Vito responded "None[]" to these requests. In his interrogatory responses, Steven described his permanent property damage as "[n]oise and dust making my property less valuable[]." Steven answered "none" to requests for production one and two, which asked him to produce documents in support of his damages. The appellate record reflects that Applied noticed depositions of all plaintiffs (except for John Vargas, who was not a named plaintiff at the time the depositions were noticed), but the record is silent as to whether or not depositions of any of the Appellants were ever taken. The appellate record does reflect certain documents pertaining to the efforts by the parties' attorneys to schedule the depositions.
John Vargas did not become a plaintiff in this lawsuit until plaintiffs filed Plaintiff's Second Amended Petition in August 2014.
On September 12, 2014, Applied filed a no-evidence motion for summary judgment against all of the plaintiffs. Applied argued that the plaintiffs "cannot show by pleadings, written discovery, deposition testimony, expert testimony, or other admissible evidence that there is legally probative evidence that Applied's use of its property has caused any loss of market value to Plaintiffs' property." Applied alleged that "[n]ot a single piece of legally probative and credible evidence has been produced by any Plaintiff during this entire case that establishes a scintilla of evidence that the market value to any of Plaintiffs' properties has been damaged by Applied[]" and that the plaintiffs failed to produce any evidence of damages.
On September 23, 2014, the plaintiffs filed a first amended motion for a continuance. Also on September 23, 2014, Nelson, the attorney for the plaintiffs, filed a motion to withdraw as counsel for plaintiffs Vito, John, and Steven. In his motion to withdraw, the attorney stated that during the process of preparing for mediation
. . . it became clear based on conversations and correspondence with [Vito, John, and Steven] that settlements that they desired are contrary to the desires of the remaining plaintiffs in this matter and for counsel to zealously advocate for the remedies requested by [Vito, John, and Steven] it will negatively impact the claims of the [other] plaintiffs. This creates a conflict of interest between the two groups of plaintiffs. Further the remedies that [Vito, John, and Steven] seek are not what this attorney believes are permitted under Texas law and
there is an irreconcilable break down in the attorney client relationship on this point.The attorney also stated that Vito, John, and Steven had instructed him to withdraw, they had discharged him, and they had informed him that they would seek other counsel. The motion to withdraw stated that Vito, John, and Steven had consented to Nelson's withdrawal and that Nelson had informed Vito, John, and Steven in writing of certain upcoming deadlines, namely a "September 29th 2014 Pre-trial conference, October the 6th 2014 trial, [and] October the 6th 2014 hearing on defendant's motion for summary judgment[.]" On September 26, 2014, Applied filed a response to Nelson's motion to withdraw, arguing that no conflict of interest existed and that "the court should not permit [Vito, John, and Steven] to rely on their discharge of Erik Nelson as a ground for continuance."
On September 24, 2014, Nelson filed a Notice of Hearing on the motion to withdraw, setting September 29, 2014, as the date for a hearing. Also on September 24, 2014, Nelson filed Plaintiffs' Response to the Motion for Summary Judgment. Nelson stated in the Response to the Motion for Summary Judgment that he was the "ATTORNEY FOR PLAINTIFFS[.]" In the Response the plaintiffs argued that "[i]n each and every deposition in this case Plaintiffs stated that they believed the market value of their property had gone down" and that "more than a scintilla of evidence exists with which Plaintiffs may prove their damages" at trial.
Deposition excerpts from the depositions of James Spurlock, William Cruz, Wesley Allen, and Maria Gilley were attached to the Plaintiffs' Response to Defendant's Motion for Summary Judgment. Vito, John, and Steven, as well as other named plaintiffs, were not mentioned by name in the Response. --------
According to the clerk's docket, the trial court held a hearing on the motion to withdraw on September 29, 2014, and granted the motion that day. In granting the motion, the court stated that
. . . it is ORDERED that counsel in the person of Erik Nelson is hereby relieved of any future professional obligation, responsibility or duty to Vito Vargas, John Vargas, and Steven Temple other than providing access to any and all materials which are necessary to represent Vito Vargas, John Vargas and Steven Temple, in this case and which are within his/her possession to new subsequent counsel.Also on September 29, 2014, the trial court granted plaintiff's motion for continuance and set the trial for December 1, 2014.
On October 15, 2014, Vito as a "PRO SE PLAINTIFF[,]" filed a "Motion for Continuance of the trial currently set for December 1, 2014" asking that it be reset until May 2015 "so that he may retain counsel to represent him." This motion for continuance made no reference to Applied's pending motion for summary judgment. The clerk's docket sheet reflects that the court held a hearing on October 28, 2014, with "Vito Vargas present with Atty Erik Nelson[]" and that the court granted the continuance, resetting the trial for February 9, 2015. The trial court also sent the parties a notice that the case was reset for a jury trial on February 9, 2015.
On November 7, 2014, the trial court granted Applied's no-evidence motion for summary judgment, which disposed of all the plaintiffs' claims against Applied. On November 21, 2014, defendant Applied and intervenor Ostrander filed a Motion to Enter Final Judgment and Dismissal Without Prejudice, in which Applied and Ostrander requested entry of final judgment and dismissal of their claims against Vito Vargas.
On December 11, 2014, Vito, John, and Steven had a new attorney file a motion for new trial. In the motion for new trial, Vito, John, and Steven argued they "were not represented for approximately 30 days prior to the submission date of this Motion for Summary Judgment, their attorneys having withdrawn from their representation abruptly." In their motion for new trial, they argued they were "not fully apprised" of the nature of the motion for summary judgment or "the substance of their attorneys' response[]," and further that they were unable to obtain new counsel "to address the summary judgment prior to the submission date because of a looming trial date[]." Citing to Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), Vito, John, and Steven argued that their failure to properly answer or respond to the motion for summary judgment was accidental, "arising from their loss of counsel and inability to obtain substitute counsel in a timely manner[,]" and that it was neither intentional nor the result of conscious indifference. And, they alleged that they would be able to demonstrate damages resulting from Applied's conduct.
On January 9, 2015, Applied filed its response to the motion for new trial, arguing that all plaintiffs, including Vito, John, and Steven, filed a response to the motion for summary judgment prior to the withdrawal of their attorney. On January 23, 2015, the trial court denied the motion for new trial and entered an order dismissing without prejudice Ostrander's claims against Vito. The trial court entered final judgment on January 27, 2015, disposing "of all parties and claims asserted in this Case as of the time of entry of this judgment." Appellants timely filed their notice of appeal.
ISSUE ON APPEAL
In a single issue, Appellants argue that the trial court abused its discretion in denying their motion for new trial because their "failure to respond to the No Evidence Motion for Summary Judgment was not the result of conscious indifference, but rather[] was the result of Appellants['] excusable mistakes made when suddenly becoming pro se while a Motion for Summary Judgment was pending." They argue they should be considered litigants who "failed to file any response" to the motion for summary judgment and that applying Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939), they are entitled to a new trial as a matter of law. Citing to Nguyen v. Kuljis, 414 S.W.3d 236 (Tex. App.—Houston [1st Dist.] 2013, pet. denied), Appellants argue they were rendered "hopelessly pro se" defendants when their attorney filed his motion to withdraw and that the failure of Appellants to respond was a result of mistake. In Appellee's Brief, Applied argues that "Appellants filed a response [but] it was inadequate[]" and that it "is simply not true[]" that Appellants were pro se at the time their response to the no-evidence summary judgment motion was due. Applied further argues Appellants have failed to demonstrate that the trial court abused its discretion in denying the motion for new trial.
APPLICABLE LAW
Under Rule 320 of the Texas Rules of Civil Procedure, a trial court may grant a new trial for "good cause" or "in the interest of justice." In re Columbia Med. Ctr. of Las Colinas, L.P., 290 S.W.3d 204, 210, 213 (Tex. 2009) (orig. proceeding) (citing Tex. R. Civ. P. 320 and Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985)); In re City of Houston, 418 S.W.3d 388, 392 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding). We review a trial court's denial of a motion for new trial under an abuse of discretion standard of review. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
In Craddock, the Texas Supreme Court established the standard for determining whether to grant a new trial and set aside a default judgment. 133 S.W.2d 124. Craddock requires the defendant to demonstrate that (1) its failure to file an answer was not intentional or the result of conscious indifference, but rather was due to an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) the motion shows that granting a new trial will cause no delay or injury to the plaintiff. Id. at 126. However, the Supreme Court has refused to extend Craddock "to a motion for new trial filed after summary judgment is granted on a motion to which the nonmovant failed to timely respond when the respondent had notice of the hearing and an opportunity to employ the means our civil procedure rules make available to alter the deadlines Rule 166a imposes." Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 683-84 (Tex. 2002). Thus, satisfaction of the three Craddock factors does not, without more, necessarily confer upon a party the right to have a summary judgment set aside when the nonmovant fails to respond. Id.; see also Nguyen, 414 S.W.3d at 239; Scott v. Hunt, No. 01-11-00042-CV, 2012 Tex. App. LEXIS 2226, at *23 (Tex. App.—Houston [1st Dist.] Mar. 22, 2012, no pet.) (mem. op.) ("Craddock does not apply to an appeal from a traditional summary judgment.") (citing Rabe v. Guar. Nat'l Ins. Co., 787 S.W.2d 575, 579 (Tex. App.—Houston [1st Dist.] 1990, writ denied)).
ANALYSIS
Appellants argue that the trial court erred in denying the motion for new trial "because the failure to respond to the No Evidence Motion for Summary Judgment was not the result of conscious indifference, but rather[] was the result of Appellants['] excusable mistakes made when suddenly becoming pro se while a Motion for Summary Judgment was pending." According to the appellate record, a response to Applied's motion for summary judgment was filed by Nelson as "ATTORNEY FOR PLAINTIFFS" before the trial court granted Nelson's motion to withdraw as the attorney of record for Vito, John, and Steven. Although Nelson filed a motion to withdraw as attorney of record for Vito, John, and Steven on the day before he filed the "Plaintiffs' Response to the Motion for Summary Judgment," as a matter of law, Nelson's representation of the Appellants continued until the trial court granted the motion to withdraw. See Ward v. State, 740 S.W.2d 794, 797 (Tex. Crim. App. 1987) ("It is readily apparent that an attorney may not withdraw without the permission of the trial court."); Yammine v. HDH Fin., LLC, No. 07-14-00169-CV, 2015 Tex. App. LEXIS 5994, at *4 (Tex. App.—Amarillo June 12, 2015, pet. denied) (mem. op.) (". . . simply moving to withdraw does not mean counsel is no longer attorney of record. The trial court must grant the motion."); Cooks v. State, 190 S.W.3d 84, 87 (Tex. App.—Houston [1st Dist.] 2005), aff'd, 240 S.W.3d 906 (Tex. Crim. App. 2007) (explaining that an attorney's representation continues "until expressly permitted to withdraw[]"); In re News Am. Publ'g, 974 S.W.2d 97, 104 (Tex. App.—San Antonio 1998, orig. proceeding) (Under Rule 10 of the Texas Rules of Civil Procedure, "an attorney's representation continues in a pending case until the court, upon written motion, grants withdrawal or substitution, as the case may be."). Therefore, Nelson continued to represent Appellants on September 24, 2014, when he filed the response to the motion for summary judgment as the "ATTORNEY FOR PLAINTIFFS[.]" Nelson continued to be the attorney of record for Vito, John, and Steven until the trial court granted the motion to withdraw on September 29, 2014. Accordingly, Appellants were not pro se at the time Nelson filed plaintiffs' response to Applied's motion for summary judgment on September 24, 2014, and a response to the Motion for Summary Judgment was filed on behalf of the plaintiffs.
Appellants argue that Nguyen v. Kuljis is controlling in this matter. 414 S.W.3d 236. In Nguyen, the First Court of Appeals considered the appeal of a denial of a motion for new trial filed by three defendants, Christopher, Tho, and Giang Nguyen, whose attorney had withdrawn during the litigation. Id. at 237. After the defendants had become pro se, the plaintiff filed a traditional motion for summary judgment against the defendants as well as a no-evidence motion for summary judgment on the defendants' counterclaims. Id. at 238. Christopher filed a response only to the no-evidence motion for summary judgment, and Tho and Giang filed no response to either summary judgment motion. Id. at 241. After the trial court granted the motions for summary judgment, all three pro se defendants filed a motion for new trial, in which Christopher claimed he mistakenly believed that his response to the no-evidence summary judgment motion was an adequate response to both summary judgment motions. Id. at 238-39. Tho and Giang argued they mistakenly believed that Christopher's response was "all that was required to respond to [both] motions for summary judgment." Id. at 241-42. The trial court denied the motion for new trial as to Christopher, Tho, and Giang. Id. at 239.
On appeal, the First Court determined that in the motion for new trial, Tho and Giang had demonstrated good cause and no undue prejudice, and as pro se litigants who had failed to respond, the trial court had abused its discretion in denying the motion for new trial as to Tho and Giang. Id. 241-42 (citing Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) and Carpenter, 98 S.W.3d at 687-88). As to Christopher, the First Court determined that he had failed to file a response to the traditional motion for summary judgment due to mistake and that he had shown good cause and no unfair prejudice. Id. at 242-43. Therefore, the trial court had abused its discretion in denying the motion for new trial as to Christopher on the traditional motion for summary judgment. Id. However, the First Court determined that the trial court did not abuse its discretion in denying Christopher a new trial on the no-evidence motion for summary judgment because Christopher had filed a response thereto and "the reason his response was inadequate is irrelevant[.]" Id. at 243.
In the case at bar, Appellants argue they "are nearly identically situated" as Tho and Giang in Nguyen, "pro se parties who wholly failed to respond[,]" and as a consequence, the trial court erred in denying their motion for new trial. We disagree. Unlike Tho and Giang in Nguyen, the Appellants were not pro se when Applied filed its motion for summary judgment. Their attorney, Mr. Nelson, filed a response to Applied's no-evidence motion for summary judgment on behalf of the "PLAINTIFFS" on September 24, 2014, and Nelson continued to represent all plaintiffs until the trial court granted the motion to withdraw on September 29, 2014. Therefore, the Appellants did not "wholly fail to respond[.]"
Appellants further argue that the response to Applied's no-evidence summary judgment motion "does not mention any of the Appellants by name; and the only response ever filed presented no evidence of these Appellants' damages." Appellants cite no legal authority for their argument that a response that does not mention a party by name constitutes a failure to respond as to that party. See Tex. R. App. P. 38.1(i) (requiring an appellate brief to cite to appropriate legal authority). The record reflects that Nelson timely filed a response to Applied's no-evidence motion for summary judgment, and the trial court did not abuse its discretion by denying Appellants' motion for new trial. See Nguyen, 414 S.W.3d at 243 (trial court did not abuse its discretion in denying motion for new trial where party did file a response to summary judgment, and any reason the response may have been inadequate was "irrelevant"). Moreover, the motion to withdraw recites that Appellants had written notice of the hearing on the summary judgment motion. Accordingly, we conclude that the trial court did not abuse its discretion by denying the motion for new trial. Id. We overrule Appellants' issue and affirm the judgment of the trial court.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on December 1, 2015
Opinion Delivered February 4, 2016 Before Kreger, Horton, and Johnson, JJ.