PS Royal Services Group LP, GP Royal, LLC, Stephen F. Perkins, and S. Perkins Investment Properties, Inc. v. Scott Fisher and Kristi Fisher ( 2019 )

AFFIRM; and Opinion Filed August 5, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01139-CV
PS ROYAL SERVICES GROUP LP, GP ROYAL, LLC, STEPHEN F. PERKINS,
AND S. PERKINS INVESTMENT PROPERTIES, INC., Appellants
V.
SCOTT FISHER AND KRISTI FISHER, Appellees
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-01665-2014
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Nowell
Opinion by Justice Brown
Following 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.
The 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.
Docket Control, Discovery and Scheduling Order
Appellants’ 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.
The 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.
The 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
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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 date.”
Under 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.
On 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.
At a 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
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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.
Appellants 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.
At the 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
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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 TEX. R. APP. P. 33.1(a). Under these circumstances,
where appellants have not brought a record of the evidence presented on December 2 and did not
raise any complaint on March 24 about not getting to hear the Fishers’ proof, appellants have
waived their complaint that the Fishers failed to show good cause or explain their delay. We
overrule appellants’ first and second issues.
Motion for Continuance
In their third issue, appellants contend the trial court abused its discretion in denying their
motion for continuance and subsequent motion for reconsideration. We disagree.
In its March 24 order, the court set the case for trial on June 19, 2017. Ten days before
trial, appellants moved for continuance due to the vision problems of their attorney. They had not
previously requested a continuance. Attached to the motion was the attorney’s unsworn
declaration and a statement from a medical assistant to his eye doctor. The motion and
accompanying documents described counsel’s situation in great detail. Counsel is a diabetic. In
early December 2016, his ophthalmologist informed him he needed cataracts removed in both
eyes, but first needed to lower his blood sugars. Counsel saw an endocrinologist to work on that
and in May 2017 was referred to a retina specialist. Counsel had surgery to remove the cataract in
his left eye on May 11, 2017. After surgery, counsel’s vision in both eyes declined. According to
the June 8, 2017 statement from the medical assistant, counsel’s vision was 20/100 in his left eye
and 20/400 in the right due to a diagnosis of diabetic retinopathy.
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Appellants argued the condition prevented counsel from conducting an effective trial for
at least two reasons. First, counsel would have to hold documents extremely close to his face to
read them and that would cause delays which would irritate the judge and jury. Second, counsel
would not be able to see the faces of the jury and jury panel members with clarity. Appellants
asked that the case be continued to October 2017. The Fishers opposed the continuance. They
argued that opposing counsel’s vision problems were not new and not grounds for delaying the
trial.
In a June 13 e-mail, the trial judge informed that parties that he could not grant the motion
for continuance. He cited the age of the case. In addition, the judge noted that the health issue
forming the basis for continuance was known to counsel since December 2016; it was not a health
concern that arose suddenly. The judge stated, “There has been ample time for arrangements to
have been made knowing this trial date existed.”
Appellants asked the judge to reconsider his ruling on the motion for continuance. They
presented a supplemental declaration from their attorney, seeking to “refute any suspicion that
defense counsel is somehow at fault for delaying his eye surgery,” and to make sure the judge
noted that their attorney’s vision declined dramatically after his May surgery. They also argued
the delay in bringing the case to trial was not attributable to them. The trial court did not change
its ruling.
At trial, appellants’ counsel did not have an assistant or co-counsel. Before voir dire,
counsel asked the judge if he could move into the aisle while conducting voir dire to be able to see
the faces of the panel members. The judge stated that he wanted to do everything possible to
“accommodate that physical ailment with [counsel’s] vision.” But he cautioned there might be
times when it was not possible. The judge explained, “I think it’s incumbent upon the lawyer that
is in - - any case, that if they have something that’s making it difficult for them to perform at their
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best, that they acquire someone to help them to that.” The judge showed counsel where he could
stand and move during voir dire. He also allowed counsel to explain his eye condition to the jury
panel.
This Court will not disturb a trial court’s order denying a motion for continuance unless
the trial court has committed a clear abuse of discretion. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 800 (Tex. 2002). In deciding whether a trial court abused its discretion,
the appellate court does not substitute its judgment for that of the trial court, but only decides
whether the trial court’s action was arbitrary and unreasonable. Yowell v. Piper Aircraft Corp.,
703 S.W.2d 630, 635 (Tex. 1986). Before the appellate court reverses the trial court’s discretionary
ruling, “it should appear clearly from the record that there has been a disregard of the rights of a
party.” Id.
Citing one Fifth Circuit case from 1970, appellants argue that a “far less deferential
standard” applies where continuance is sought on grounds that a party’s counsel is unavailable due
to illness or disability. See Smith-Weik Mach. Corp. v. Murdock Mach. & Eng’g Co., 423 F.2d
842 (5th Cir. 1970). In Smith-Weik, the appellate court reversed and remanded for a new trial
because the trial court denied a motion for continuance where the defendant’s counsel had the flu.
Id. at 843 & n.1. Although Smith-Weik spoke in terms of an “exception to the general rule” in
certain cases when the illness of counsel is the reason continuance is sought, the Fifth Circuit has
since clarified that Smith-Weik did not create a different standard for cases involving an attorney’s
illness. Id. at 845; see Johnson v. Potter, 364 F. App’x 159, 162 n.1 (5th Cir. 2010). It instead
explored a “facet of the abuse of discretion standard.” Johnson, 364 F. App’x at 162 n.1.
Here, we find no abuse of discretion in the manner in which the trial judge handled this
situation. Unlike Smith-Weik, counsel’s health problem was not one that arose suddenly. The
record reflects that counsel was having difficulty with his vision over six months before trial. We
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understand that the situation became worse after surgery in May 2017, but the trial court had
discretion to determine there was time for counsel to bring on co-counsel or an assistant before the
June trial. And as noted above, the trial judge gave counsel some leeway in the courtroom. We
are sympathetic to counsel’s vision issues. However, we cannot substitute our judgment for that
of the trial judge. We overrule appellants’ third issue.
Alleged Misconduct by the Trial Judge
Appellants’ fourth and fifth issues are related. They both involve appellants’ claim that
just prior to their attorney’s closing argument, the trial judge engaged in misconduct by making
improper facial expressions in front of the jury. In issue four, appellants contend the trial judge
should have been recused from considering their motion for new trial, which was based on the
alleged misconduct. In issue five, appellants contend the trial judge probably prevented them from
properly presenting their case to this Court because he refused to testify at the new trial hearing.
According to appellants, there was a delay prior to their attorney’s closing argument
because he could not recognize and read the trial exhibits due to his impaired eyesight. Appellants
allege that in response to the delay, the trial judge made “facial expressions of disgust, impatience,
mockery, and/or frustration in front of the jury.” Perkins informed his attorney immediately after
arguments of the trial judge’s alleged facial expressions. Appellants first raised their complaint
about the judge’s “egregious misconduct” in a motion for new trial. Appellants argued the judge’s
conduct violated their rights under the Texas and federal constitutions. Appellants attached
affidavits from Perkins and their attorney in support of the motion for new trial.
About a month later, appellants moved to recuse the trial judge from presiding over the
hearing on their motion for new trial. They initially sought recusal on two grounds set out in rule
of civil procedure 18b(b)(1) and (b)(4). See TEX. R. CIV. P. 18b (b)(1), (b)(4). The Fishers’
response, supported by the affidavits of both Scott and Kristi Fisher, denied the alleged misconduct
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occurred. Appellants then amended their motion to recuse to assert an additional ground for
recusal. They sought recusal under rule 18b(b)(3)—the judge has personal knowledge of disputed
evidentiary facts concerning the proceeding. Id. 18b(b)(3).
At a hearing before a visiting judge assigned to hear the motion to recuse, appellants waived
all grounds for recusal except for rule 18b(b)(3). The parties informed the visiting judge they had
agreed recusal was mandatory under that rule because the trial judge had personal knowledge about
whether he made the alleged facial expressions. The visiting judge determined it would be
inappropriate and improper to recuse a judge based on an agreement between the parties and
required appellants to make a showing the trial judge needed to be recused. Appellants asked the
visiting judge to take judicial notice of certain documents filed with the court and rested. The
Fishers presented the testimony of Scott Fisher. Scott testified that he sat at counsel’s table during
the entire trial. He disputed the truthfulness of the statements in Perkins’s affidavit about the
judge’s facial expressions.
The visiting judge asked appellants if they made the trial judge aware, prior to the filing of
Perkins’s motion, that his conduct had been improper and gave him the opportunity to correct the
situation. Appellants’ counsel answered that he did not see the judge’s conduct due to his vision.
The visiting judge denied the motion to recuse, stating he was unable to find by a preponderance
of the evidence that the trial judge’s conduct required recusal.
After the motion to recuse was denied, the trial judge held a hearing on appellants’ motion
for new trial. Appellants presented evidence that the judge made facial expressions indicating
frustration with the delay before closing argument. The Fishers presented evidence that the trial
judge did not make any facial expressions that appeared to be unusual or out of the ordinary.
Appellants called the trial judge to testify. He denied their request. Appellants then asked
him to make an offer of proof. The judge denied that request as well, stating that it would be
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inappropriate for him to testify in a hearing over which he is presiding. The trial judge found that
Perkins’s testimony was not credible and denied appellants’ motion for new trial.
Appellants do not complain of the denial of their motion for new trial. They complain
about the visiting judge’s denial of their motion to recuse. As part of that issue, they assert the
visiting judge abused his discretion in refusing to enforce the parties’ stipulation that the trial judge
had personal knowledge of disputed evidentiary facts concerning the motion for new trial. They
also complain of the trial judge’s failure to testify at the new trial hearing.
The Fishers contend that appellants waived their right to seek recusal. We agree.
We review the denial of a motion to recuse for an abuse of discretion. TEX. R. CIV. P.
18a(j)(1)(A); Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—Dallas 2017, no pet.).
Complaints that concern recusal can be waived if the party seeking recusal fails to file an
appropriate motion within the time required by rule of civil procedure 18a. K.T. v. M.T., No. 02-
14-00044-CV, 2015 WL 4910097, at *2 (Tex. App.—Fort Worth Aug. 13, 2015, no pet.) (mem.
op.); see Johnson v. AT&T Servs., Inc., No. 05-10-01426-CV, 2012 WL 479736, at *1 (Tex.
App.—Dallas Feb. 15, 2012, no pet.) (mem. op.) (procedural requirements for recusal are
mandatory and failure to file proper motion will result in waiver of issue on appeal). A motion to
recuse must be filed as soon as practicable after the movant knows of the ground stated in the
motion. TEX. R. CIV. P. 18a(b)(1)(A).
Here, the record reflects that appellants gave their closing argument just after 3 p.m. on
June 22, 2017. It is undisputed that Perkins informed his attorney about the judge’s alleged facial
expressions right after the attorney finished his argument. The jury returned its verdict in favor of
the Fishers at about 10:30 the following morning. The trial judge signed the judgment on June 29.
Appellants first complained of the judge’s conduct in their July 31, 2017 motion for new trial.
They did not inform the trial judge of their complaint about his conduct at a time when he had the
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opportunity to correct any error. See TEX. R. APP. P. 33.1(a). It appears appellants adopted a “wait
and see” approach before deciding to raise the complaint. Appellants did not file their motion to
recuse until August 29, 2017, over nine weeks after the event. Under these circumstances,
appellants have failed to show that the visiting judge abused its discretion in denying their motion
to recuse the trial judge. See K.T., 2015 WL 4910097, at *2 (in divorce case, no abuse of discretion
in denial of December 2013 motion to recuse based on judge’s April 2012 comment to husband
allegedly indicating bias against wife); Henry v. Henry, No. 03-11-00253-CV, 2014 WL 1572478,
at *4 (Tex. App.—Austin Apr. 18, 2014, no pet.) (mem. op.) (untimely filing of motion to recuse
waived complaint).
In their reply brief, appellants argue they did not waive their motion to recuse. They first
assert the Fishers waived their waiver defense by raising it for the first time on appeal. They rely
on rule of civil procedure 94 and a case involving waiver of an affirmative defense to a plaintiff’s
cause of action. Appellants also argue they filed their amended recusal motion as soon as
practicable after they knew of the ground presented in that motion, namely, that evidentiary facts
were being disputed. They also argue that they could not have waived their right to seek a new
trial due to the judge’s misconduct because it was incurable. But appellants have not challenged
the ruling on their motion for new trial. Further, appellants ignore the fact that whether the conduct
even occurred was contested. We find appellants’ arguments unpersuasive. We overrule their
fourth issue.
In issue five, appellants contend the trial judge probably prevented them from properly
presenting their case to this Court. See TEX. R. APP. P. 44.1(a) (providing for reversal of judgment
on appeal when court of appeals concludes error of law probably prevented appellant from properly
presenting case to court of appeals). Appellants complain of the judge’s refusal to testify at the
hearing on their motion for new trial and refusal to make an offer of proof about his prospective
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testimony. They argue that “centuries of Anglo-Saxon law” undercut the trial judge’s refusal to
testify and assert “we start with the presumption that there is a general duty to give what testimony
one is capable of giving.” United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting Wigmore on
Evidence).
The cases appellants cite do not involve a trial judge giving testimony in a case over which
he is presiding. Rule of evidence 605 provides, “The presiding judge may not testify as a witness
at the trial.” TEX. R. EVID. 605. Appellants’ brief contains no mention of rule 605, which the
judge seemed to reference at the new trial hearing. Without any attempt to address this provision,
appellants have not met their burden to demonstrate on appeal that the trial judge erred in refusing
to testify or make an offer of proof. See TEX. R. APP. P. 38.1(i) (brief must contain clear and
concise argument for contentions made, with appropriate citations to authorities). Further, any
error in the judge’s failure to testify at the new trial hearing did not prevent appellants from
properly presenting their case to this Court. Appellants have not attempted to raise a complaint
about the ruling on the motion for new trial. And, as discussed, their recusal motion was untimely.
We overrule appellants’ fifth issue.
We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
171139F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PS ROYAL SERVICES GROUP LP, GP On Appeal from the 219th Judicial District
ROYAL, LLC, STEPHEN F. PERKINS, Court, Collin County, Texas
AND S. PERKINS INVESTMENT Trial Court Cause No. 219-01665-2014.
PROPERTIES, INC., Appellants Opinion delivered by Justice Brown,
Justices Bridges and Nowell participating.
No. 05-17-01139-CV V.
SCOTT FISHER AND KRISTI FISHER,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees SCOTT FISHER AND KRISTI FISHER recover their
costs of this appeal from appellants PS ROYAL SERVICES GROUP LP, GP ROYAL, LLC,
STEPHEN F. PERKINS, AND S. PERKINS INVESTMENT PROPERTIES, INC.
Judgment entered this 5th day of August, 2019.
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