Jerry Byrom v. Roy P. Anderson, David S. Bouschor, Law Office of David S. Bouschor II, PC, and Duane L. Coker

• Court: Court of Appeals of Texas
• Decided: February 10, 2020
• Docket: 07-18-00353-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00353-CV

JERRY BYROM, APPELLANT

V.

ROY P. ANDERSON, DAVID S. BOUSCHOR, LAW OFFICE OF DAVID S. BOUSCHOR II, PC, AND DUANE L. COKER, APPELLEES

On Appeal from the 211th District Court Denton County, Texas1 Trial Court No. 2011-30018-211, Honorable Bob Brotherton, Presiding

February 10, 2020

MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.

Appellant Jerry Byrom appeals from the trial court’s summary judgment dismissing

his claims against appellees David S. Bouschor and the Law Office of David S. Bouschor

II, PC, and the dismissal for want of prosecution dismissing his claims against appellees

Roy P. Anderson and Duane L. Coker. We affirm the judgment of the trial court.

1 Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to this Court from the Second Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). Background

Byrom’s claims arise from a guardianship proceeding over his mother and the

subsequent administration of her estate. Anderson served as temporary guardian of Ms.

Byrom’s estate and was represented by David S. Bouschor of the Law Office of David S.

Bouschor II, PC (collectively, “Bouschor”). Coker served as Ms. Byrom’s attorney ad

litem. Byrom was the temporary guardian of his mother’s person and, later, the

independent executor of her estate.2 As independent executor, Byrom rejected a claim

filed by Anderson for temporary guardian’s fees and attorney’s fees. Anderson filed a

motion to remove Byrom as independent executor or to require him to post a bond.

Following a hearing, the probate court removed Byrom as independent executor but did

not discharge him. The probate court also ordered Byrom to deposit $85,000 into the

registry of the court. Byrom did not comply with the order, and Anderson filed a motion

to enforce the order by contempt. Following a hearing, the court held Byrom in civil

contempt. He was subsequently confined in the Cherokee County Jail. Byrom filed an

application for writ of habeas corpus, which the trial court denied.

Byrom then filed an original habeas proceeding in the Twelfth Court of Appeals.

See In re Byrom, 316 S.W.3d 787 (Tex. App.—Tyler 2010, orig. proceeding). The

appellate court held that the contempt order was void and that Byrom had been illegally

restrained. Id. at 793. Accordingly, Byrom was ordered discharged. He was released

from jail on January 30, 2010.

2 Ms. Byrom died on February 5, 2005.

2 On January 14, 2011, Byrom filed suit against appellees for allegedly causing his

unlawful incarceration and violating his civil rights. Byrom alleged claims for false

imprisonment, negligence per se, conspiracy, intentional infliction of emotional distress,

and a violation of 42 U.S.C. § 1983. By his first amended petition, filed in 2012, Byrom

eliminated his claim for intentional infliction of emotional distress and added a claim for

malicious prosecution.

Bouschor filed traditional and no-evidence motions for summary judgment

addressing all claims raised by Byrom. The trial court granted Bouschor’s motions on

November 15, 2012, without specifying the grounds for its decision.

Like Bouschor, Anderson and Coker filed both traditional and no-evidence motions

for summary judgment. On December 17, 2013, the trial court granted Anderson and

Coker’s motions in part, dismissing the claims of negligence per se, civil conspiracy, and

malicious prosecution, but denying summary judgment on the claims for false

imprisonment and a violation of 42 U.S.C. § 1983. In February of 2015, Anderson and

Coker filed their second traditional and no-evidence motions for summary judgment,

addressing the two remaining claims. The court administrator notified the parties that

their motions were denied in March of 2015, but no order was entered. The presiding

judge then retired. Over the next few months, the presiding judge of the Eighth

Administrative Judicial Region assigned eight different judges to preside over the case;

all of them recused themselves. Then, in September of 2015, Judge Woodlock was

appointed and accepted his appointment to preside over the case. In January of 2016,

the trial court entered an order denying Anderson and Coker’s second motions for

3 summary judgment. Anderson and Coker filed a motion to reconsider, which was denied

in July of 2016.

On March 27, 2018, Anderson and Coker filed a motion to dismiss for want of

prosecution, seeking the dismissal of Byrom’s remaining claims. Following a hearing on

the motion, the trial court dismissed the case by order dated August 31, 2018. 3 Byrom

timely filed this appeal.

Discussion

Issue No. 1: Dismissal of Claims against Anderson and Coker

In his first issue, Byrom contends that the trial court erred in dismissing his claims

for want of prosecution. We apply an abuse of discretion standard when reviewing a

dismissal for want of prosecution. James B. Bonham Corp. v. City of Corsicana, 528

S.W.3d 554, 557 (Tex. App.—Texarkana 2016, no pet.). A trial court abuses its discretion

when it acts without reference to any guiding rules and principles. Quixtar Inc. v.

Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam).

A trial court’s authority to dismiss a case for want of prosecution stems from two

sources: (1) Rule 165a of the Texas Rules of Civil Procedure and (2) the court’s inherent

power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A

trial court may dismiss under Rule 165a upon the “failure of any party seeking affirmative

relief to appear for any hearing or trial of which the party had notice,” or when a case is

“not disposed of within the time standards promulgated by the Supreme Court . . . .” TEX.

3Judge Woodlock, who had presided over the case since September of 2015, died on May 19, 2018. Judge Brotherton was assigned to the case in July of 2018.

4 R. CIV. P. 165a(1), (2).4 In addition, under the common law, trial courts are vested with

the inherent power to dismiss independently of the Rules of Civil Procedure when a

plaintiff fails to prosecute his case with due diligence. Villarreal, 994 S.W.2d at 630. In

determining whether a plaintiff has prosecuted his case with due diligence, “[t]he trial court

may consider the entire history of the case, including the length of time the case was on

file, the amount of activity in the case, the request for a trial setting[,] and the existence

of reasonable excuses for delay.” Nawas v. R & S Vending, 920 S.W.2d 734, 737 (Tex.

App.—Houston [1st Dist.] 1996, no writ). If the dismissal order does not specify the

reason for dismissal, it will be affirmed on any proper ground. Seals v. Seals, 83 S.W.3d

870, 873 (Tex. App.—Texarkana 2002, no pet.).

To avoid dismissal for want of prosecution, Byrom had the burden to establish that

he prosecuted his suit with reasonable diligence. See In re Conner, 458 S.W.3d 532, 534

(Tex. 2015) (orig. proceeding) (per curiam) (“A plaintiff has a duty to prosecute the suit to

a conclusion with reasonable diligence, failing which a trial court may dismiss for want of

prosecution.” (internal quotation marks omitted)). The record reveals that the motion to

dismiss was filed more than seven years after Byrom filed suit in January 2011. Byrom

did not present any evidence at the hearing on the motion to dismiss, nor did he attach

evidence to his response to the motion. He did, however, argue that the case had gone

4 Rule 6 of the Rules of Judicial Administration provides that civil jury trials, other than family law matters, must be disposed of within eighteen months from the appearance date. See TEX. R. JUD. ADMIN. 6, reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. F app. (West Supp. 2019).

5 through several judges, he had never sought a continuance, and the case had been set

for trial “several times.” 5

Even if we were to assume that Byrom diligently prosecuted his case from 2011 to

2015, we are still left with a long stretch of inactivity from November of 2015, when Byrom

filed a motion to enter an order denying Anderson and Coker’s second motions for

summary judgment, until the motion to dismiss was filed in March of 2018. In his response

to the motion to dismiss, at the hearing on the motion, and in his appellate brief, Byrom

asserts that, during this time period, he was waiting for the trial court to take action on the

case. Byrom claims that in July of 2016, the trial court informed the parties that it would

decide on the date for trial, and that Byrom was therefore awaiting word of this setting at

the time of Judge Woodlock’s death in May of 2018. The record does not reflect any

action by Byrom to actively prosecute the case in the interim, including making any

requests for a trial setting.

Litigants are required to act as ordinary prudent persons under the same or similar

circumstances. Manning v. North, 82 S.W.3d 706, 713 (Tex. App.—Amarillo 2002, no

pet.). Based upon the record before us, the trial court could have reasonably concluded

that Byrom did not act reasonably in taking no action to move his case toward resolution

or determine why it had not been set for trial, and that his inaction constituted a failure to

prosecute his claims against Anderson and Coker with due diligence. Therefore, we find

5 Our review of the record reveals just two trial settings: one for July 27, 2015, and one for November 16, 2015, both of which were canceled.

6 no abuse of discretion in the trial court’s decision to dismiss those claims for want of

prosecution. Accordingly, we overrule Byrom’s first issue.

Issue No. 2: Summary Judgment in Favor of Bouschor

Byrom asserts, in his second issue, that “[t]he trial court erred in granting summary

judgment for [Bouschor] as the uncontroverted actions of said defendants established a

fact question for the jury.”

As set forth above, the trial court granted both Bouschor’s traditional and no-

evidence motions for summary judgment. Although we would normally address the no-

evidence motion first when both no-evidence and traditional summary judgment motions

are filed, see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004), in this case

we will review the propriety of granting the traditional motion for summary judgment first

because it is dispositive. See TEX. R. APP. P. 47.1.

Bouschor raised several grounds in his traditional motion for summary judgment.

When a litigant presents multiple grounds for summary judgment and the summary

judgment does not specify the ground upon which the trial court rendered its judgment,

the appellant must negate all grounds on appeal. See State Farm Fire & Cas. Co. v. S.S.,

858 S.W.2d 374, 381 (Tex. 1993); Raines v. Hale, No. 07-17-00288-CV, 2018 Tex. App.

LEXIS 2232, at *4 (Tex. App.—Amarillo Mar. 28, 2018, no pet.) (mem. op.). Given the

nature of the summary judgment entered by the trial court, Byrom had the burden to

demonstrate on appeal that none of the grounds in Bouschor’s motion supported the trial

court’s ruling. He has failed to do so.

7 Here, the first argument raised in Bouschor’s traditional motion for summary

judgment was attorney immunity. Bouschor argued that all of Byrom’s claims against him

are barred because they arise from actions taken within the scope of his legal

representation of Byrom’s adversary, Anderson, in the underlying lawsuit. Attorneys have

qualified immunity from civil liability to non-clients “for actions taken in connection with

representing a client in litigation.” Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398,

405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); see also Toles v. Toles, 113

S.W.3d 899, 910-11 (Tex. App.—Dallas 2003, no pet.) (“[A]n attorney’s conduct, even if

frivolous or without merit, is not actionable as long as the conduct was part of the

discharge of the lawyer’s duties in representing his or her client.”) (citing Chapman

Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 441 (Tex. App.—Houston

[14th Dist.] 2000, pet. denied).

Although Byrom has raised a general issue challenging the trial court’s summary

judgment on his claims against Bouschor, he has not challenged all possible grounds for

summary judgment. Specifically, Byrom’s brief contains no argument or discussion of

alleged error by the trial court in granting summary judgment on the basis of attorney

immunity. If an appellant does not challenge each possible ground for summary

judgment, we must uphold the summary judgment on the unchallenged ground. See

Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied).

Because Byrom has not challenged this ground for summary judgment on appeal, we

affirm the summary judgment and overrule Byrom’s second issue.

8 Conclusion

Having overruled both of Byrom’s issues on appeal, we affirm the judgment of the

trial court.

Judy C. Parker Justice