COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-207-CV
LASHUN RICHARDSON APPELLANT
V.
FOSTER & SEAR, L.L.P., ATTORNEYS AT LAW APPELLEES
AND SCOTT W. WERT
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FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Appellant LaShun Richardson, a pro se inmate, appeals from the trial
court’s order dismissing his claims against Appellees Foster & Sear, L.L.P. and
Scott W. Wert (collectively, “Foster & Sear”) for failing to serve them with
notice of suit under the Texas Deceptive Trade Practices Act (“DTPA”). We
reverse and remand.
Background
Richardson’s father, Willie Richardson, hired Foster & Sear to represent
him for a personal injury claim resulting from asbestos exposure. Willie died
before resolution of the claim. Richardson and his sister—Willie’s only
heirs—agreed to allow Foster & Sear to represent their interests as Willie’s heirs
in the asbestos litigation.
Richardson sued Foster & Sear on May 22, 2006, for “negligence,
professional negligence, breach of warranty, breach of contract and gross
negligence” and DTPA violations. He alleged that Foster & Sear settled the
asbestos claim without his approval and withheld settlement proceeds from
him.
Foster & Sear filed an original answer and verified plea in abatement,
asserting that Richardson had failed to serve presuit notice of his claim under
the DTPA. Foster & Sear later filed a motion to abate, and the trial court
abated the suit on August 22, 2006, “until written notice is tendered to
Defendants in accordance with the Texas Business and Commerce Code.”
On August 30, 2006, Richardson served a one-page letter on Foster &
Sear, stating that he would “submit a claim of professional liability against you
in reference to the underlying asbestos litigation” for “misrepresentation . . .
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and fraudulent misrepresentation . . . that has formed the basis of my claim in
connection with negligence . . . and professional negligence.” Richardson did
not state an amount of actual damages, but he stated that he sought exemplary
damages of $1.5 million.
Richardson filed a motion to lift the abatement on November 15, 2006.
The trial court denied his motion on February 20, 2007.
On March 5, 2007, Richardson served a second DTPA notice letter on
Foster & Sear through their attorney. This second letter is six pages long and
alleges that Foster & Sear settled the underlying asbestos claim with various
defendants but failed to forward Richardson’s share of the settlement proceeds
to him. Richardson demanded a total of $500,000 to settle the various claims
asserted in the letter.
On April 17, 2007, Foster & Sear filed a motion to dismiss Richardson’s
suit, arguing in a single sentence that Richardson’s March 5, 2007 letter did not
meet the requirements of the DTPA. The motion did not explain in what way
the letter was deficient or cite any authority other than the DTPA. Richardson
filed an “objection” to the motion to dismiss, asserting that his March 5 letter
fulfilled the DTPA’s notice requirements.
On May 22, 2007, the trial court signed an order dismissing Richardson’s
entire suit against Foster & Sear, including his non-DTPA causes of action. This
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appeal followed. In a single issue, Richardson argues that the trial court abused
its discretion by dismissing his claims.
Standard of Review
To determine whether a trial court abused its discretion, we must decide
whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a
trial court may decide a matter within its discretion in a different manner than
an appellate court would in a similar circumstance does not demonstrate that
an abuse of discretion has occurred. Id.
The DTPA’s Notice Requirement
Under DTPA section 17.505, a plaintiff must give notice of a DTPA claim
to a defendant sixty days before filing suit:
As a prerequisite to filing a suit seeking damages under Subdivision
(1) of Subsection (b) of Section 17.50 of this subchapter against
any person, a consumer shall give written notice to the person at
least 60 days before filing the suit advising the person in
reasonable detail of the consumer’s specific complaint and the
amount of economic damages, damages for mental anguish, and
expenses, including attorneys’ fees, if any, reasonably incurred by
the consumer in asserting the claim against the defendant. During
the 60-day period a written request to inspect, in a reasonable
manner and at a reasonable time and place, the goods that are the
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subject of the consumer’s action or claim may be presented to the
consumer.
T EX. B US. & C OM. C ODE A NN. § 17.505(a) (Vernon 2002). The purpose of the
notice provision is to discourage litigation and encourage settlement of
consumer complaints. Hines v.Hash, 843 S.W.2d 464, 468 (Tex. 1992).
When the supreme court decided Hines in 1992, the Legislature had not
specified a consequence for noncompliance with the DTPA’s notice
requirement. Id. After analyzing the purpose of the requirement and the
consequences for noncompliance imposed by the lower courts, the supreme
court held that “[w]hen a plaintiff fails to comply with the requirement,
abatement of the action for the statutory notice period is more consistent with
the purpose of notice than dismissal.” Id. at 468–69.
Three years later, the Legislature amended the DTPA to conform the
notice provision to the Hines opinion and provide for abatement when a DTPA
plaintiff fails to give presuit notice. See Act of Sept. 1, 1995, 74th Leg., R.S.,
ch. 414, § 6, 1995 Tex. Gen. Laws 2993; Univ. of Tex. Med. Branch at
Galveston v. Barrett, 112 S.W.3d 815, 818 n. 20 (Tex. App.—Houston [14th
Dist.] 2003) (recognizing purpose of amendment), aff’d, 159 S.W.3d 631 (Tex.
2005). The current version of the statute continues to specify that abatement
is the appropriate remedy when a plaintiff fails to provide presuit notice:
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(d) The court shall abate the suit if the court, after a hearing, finds
that the person is entitled to an abatement because notice was not
provided as required by this section. A suit is automatically abated
without the order of the court beginning on the 11th day after the
date a plea in abatement is filed under Subsection (c) if the plea in
abatement:
(1) is verified and alleges that the person against whom the
suit is pending did not receive the written notice as required by
Subsection (a); and
(2) is not controverted by an affidavit filed by the consumer
before the 11th day after the date on which the plea in abatement
is filed.
(e) An abatement under Subsection (d) continues until the 60th day
after the date that written notice is served in compliance with
Subsection (a).
T EX. B US. & C OM. C ODE A NN. § 17.505(d), (e). Thus, when a plaintiff fails to
provide presuit notice under subsection (a), the trial court must abate the suit
until the plaintiff serves notice that complies with subsection (a).
Although the Legislature has specified abatement as the remedy when a
plaintiff fails to serve presuit notice, it has not specified a consequence when
a plaintiff fails to serve notice, or serves an inadequate notice, while the suit is
abated for that purpose. But the Hines opinion does address this scenario,
albeit in dicta: “If a plaintiff fails to give notice while the action is abated for
that purpose, it should be dismissed.” Hines, 843 S.W.2d at 469 (citing Miller
v. Kossey, 802 S.W.2d 873, 876–77 (Tex. App.—Amarillo 1991, writ denied).
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In Miller, a DTPA plaintiff gave presuit notice under the applicable version of the
DTPA, but later conceded in open court that the notice was inadequate. Miller,
802 S.W.2d at 874–75. The trial court ordered the plaintiff to serve a new
notice within seven days of the order, but the plaintiff did not serve a new
notice until some six months later and on the eve of trial. Id. at 875. The trial
court found that the new notice was untimely under the court’s prior order and
did not comply with the DTPA’s notice requirements, and it dismissed the
plaintiff’s claims. Id. at 875–76. The court of appeals held that the trial court
was authorized to dismiss the claims because the plaintiff failed to comply with
the court’s order. Id. at 877. Thus, although the DTPA does not expressly
provide for dismissal when a plaintiff fails to serve the defendant with postsuit
notice when the suit is abated for that purpose, dismissal is appropriate in some
circumstances.
Richardson’s DTPA Claims
Richardson argues that the trial court abused its discretion by dismissing
his claims because his March 5, 2007 letter complied with section 17.505(a).
In reply, Foster & Sear contend that because Richardson cites no case law to
support his argument that his letter gave adequate notice, “his only argument
is ‘yes, I did!’” We note that Foster & Sear cite no authority in this court or the
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trial court to show that Richardson’s notice was inadequate; thus, in the spirit
of fairness, we may characterize their only argument as “no, he didn’t!”
To elevate the discourse to an appropriate legal level and determine
whether Richardson’s notice was adequate, we look to the requirements
expressly set forth in section 17.505(a). The requirements establish a fairly low
threshold for a notice letter. A DTPA notice must advise the defendant in
reasonable detail of (1) the consumer’s specific complaint and (2) the amount
of economic damages, damages for mental anguish, and expenses, including
attorneys’ fees, if any, reasonably incurred by the consumer in asserting the
claim against the defendant.
Richardson’s March 5 letter, while not a model of clarity and eloquence,
states in enough detail for this court—knowing nothing of his claims and
allegations except what he asserted in his letter—to grasp the basis of his
complaints against Foster & Sear, namely, that after agreeing to represent his
interests in whatever claims his deceased father had for asbestos exposure,
they settled those claims without his permission and refused to divulge his
share of the settlement proceeds. 1 As for damages, Richardson specifically
1
… We express no opinion as to the truth or validity of Richardson’s
claims or the soundness of the legal theories upon which he bases them; those
questions are not before the court.
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states that he seeks $50,000 in settlement of his claim that Foster & Sear
deprived him of $89,800 in settlement proceeds and his associated mental
anguish. He further states that $250,000 “would be considered fair and
reasonable” compensation for his claims for “negligence, professional
negligence, . . . misrepresentation, breach of warranty, breach of fiduciary duty,
breach of contract,” and his DTPA claims and associated mental anguish. He
also asserts that Foster & Sear failed to advise him “of the limitations on
representation of the client, i.e., that attorney’s undertaking the case did not
extend to representing the client, survivor, [and] beneficiary,” for which
Richardson seeks $200,000. He summarized his claims with a demand for “[a]
total of $500,000 for all combined legal injuries sustained, that constituted
Deceptive Trade Practices.”
Thus, Richardson’s six-page letter set out the basis of his complaints
against Foster & Sear and the amount of economic and mental anguish
damages he seeks as required by section 17.505(a). The letter is sufficiently
specific to allow Foster & Sear to determine whether to settle with Richardson
or undertake the cost and risk of litigation. Thus, it states Richardson’s claims
and damages “in reasonable detail” as required by section 17.505(a) and fulfils
the purpose of the notice requirement, to discourage litigation and encourage
settlement of consumer complaints. See Hines, 843 S.W.2d at 468.
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We hold that Richardson’s March 5 letter complied with the minimal
requirements of section 17.505(a) by providing in reasonable detail his specific
complaints and the damages he sought sufficient to fulfil the purpose of the
DTPA’s notice requirement. We therefore sustain his sole issue as it pertains
to his DTPA causes of action.
Richardson’s Non-DTPA Claims
The trial court also dismissed Richardson’s non-DTPA claims, “negligence,
professional negligence, breach of warranty, breach of contract and gross
negligence.” Even if we assume (contrary to the record and our holding in the
foregoing section) that Richardson provided no notice or inadequate notice of
his DTPA claims, Foster & Sear cite no authority for the proposition that a trial
court may dismiss non-DTPA claims when a plaintiff fails to give adequate
notice of his DTPA claims, and our own research finds none.
The most similar case is Miller, 802 S.W.2d at 877. In Miller, when the
trial court dismissed the plaintiff’s DTPA claims on the eve of trial because the
plaintiff had not served adequate notice of her DTPA claims as ordered, the
plaintiff announced to the court that she was not willing to go forward on her
non-DTPA claims. Id. at 875–76 . The court of appeals affirmed the dismissal
of the non-DTPA claims, noting that “[o]ne of the fundamental powers
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possessed by a trial court is the power to dismiss a case when a litigant refuses
to prosecute the case.” Id. at 877.
Nothing in the record before us suggests that Richardson refused to
prosecute his non-DTPA claims; thus, Miller is distinguishable. Finding no other
authority to support the trial court’s dismissal of Richardson’s non-DTPA claims,
we hold that the trial court abused its discretion by so doing, and we sustain
Richardson’s issue as it pertains to his non-DTPA claims.
Conclusion
Having sustained Richardson’s sole issue, we vacate the trial court’s
order of dismissal and remand the case for further proceedings.
ANNE GARDNER
JUSTICE
PANEL F: LIVINGSTON, DAUPHINOT and GARDNER, JJ.
DELIVERED: June 5, 2008
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