In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00314-CV
JANA SHEPHERD, APPELLANT
V.
HELEN PAINTER & CO., CATHERINE TAYLOR, AMY DEFOREST, YOUNGER
RANCH, LLC, SCOTT REAL ESTATE, INC., AND SHILA MANLEY, APPELLEES
On Appeal from the 348th District Court
Tarrant County, Texas
Trial Court No. 348-295290-17, Honorable Megan Fahey, Presiding
December 1, 2023
MEMORANDUM OPINION 1
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Jana Shepherd, acting pro se, appealed from an order dismissing her claims
against several parties for want of prosecution and a final summary judgment. The
dispute arose from her failed attempt to acquire a parcel of realty owned by Younger
Ranch, LLC. Those sued were Scott Real Estate, Inc. and its employee Shila Manley
1 Because this matter was transferred from the Second Court of Appeals, we apply its precedent
when it conflicts with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3.
(together referred to as Scott), Helen Painter & Co. and its employees Catherine Taylor
and Amy DeForest (referred to as Painter), and Younger Ranch, LLC (Younger).
Shepherd asserted a myriad of contentions on appeal. Most concern the propriety of the
dismissal and summary judgment. Others implicate the trial court’s refusal to reinstate
her claims after dismissal and the attorney’s fees awarded her opponents. We affirm.
Background
The property in question consisted of six acres owned by Younger. Shepherd
contracted to buy it in July 2017. Painter acted as real estate agent for both parties.
Per an addendum to the sales contract, consummation of the deal was contingent
upon Shepherd’s selling a separate parcel of realty. Consequently, Younger was free to
entertain and accept other offers in case Shepherd’s purchase came to naught. Yet, if it
received and accepted a subsequent offer during the interim, Younger was obligated to
afford Shepherd opportunity to waive the contingency and proceed with the acquisition if
she also deposited $1,000 in escrow. Failing to do both within three days of her receiving
notice resulted in the automatic termination of the agreement.
Younger received another offer during the interim. Painter notified Shepherd of it.
At that point, Shepherd informed Painter that she would waive the contingency and pay
cash for the property. This was not followed by a deposit of $1,000 within three days,
though. Around that same time, Shepherd discharged Painter and retained Scott to
represent her in the transaction. Nevertheless, the sale never transpired, even though
Younger afforded Shepherd another opportunity to perform the conditions within the
addendum.
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Believing herself aggrieved, Shepherd sued Painter and Younger in September
2017. So too did she sue Scott after they were joined as third-party defendants.
Painter and Younger eventually moved to dismiss the action for want of
prosecution in July 2021. So too did those parties simultaneously seek reconsideration
of the earlier denial of their motion for summary judgment. Scott acted similarly. In
August 2021, they too moved to dismiss the cause for want of prosecution and,
alternatively for summary judgment.
The trial court convened a hearing on the pending motions. Thereafter, it granted
1) Scott’s motion to dismiss and 2) Painter’s motions to dismiss and for summary
judgment. Shepherd moved to reinstate the proceedings, which motion the trial court
denied after conducting a live hearing upon it. So too did it grant motions for attorney’s
fees, thereby disposing of all claims and issues involved.
Issues
Needless to say, the number of parties, course of proceedings, and the multiple
trial court orders ultimately disposing of the cause render the issues before us somewhat
difficult to follow. We divide them into three categories: 1) dismissal for want of
prosecution, 2) summary judgment on the merits, and 3) summary judgment on attorney’s
fees.
Dismissal for Want of Prosecution
Again, all defendants other than Younger moved to dismiss Shepherd’s suit for
want of prosecution. Shepherd contends that the trial court erred in granting their motions
and failing to conduct a hearing on her subsequent motion to reinstate. We overrule those
issues.
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Due to its ease of disposition, we begin with her allegation that the trial court did
not conduct a live hearing on her motion to reinstate the causes after dismissing them.
Her argument is disingenuous. The record before us contains the transcript of a
September 15, 2022 hearing whereat the motion was heard. Moreover, Shepherd
personally attended the proceeding, as did other parties through legal counsel. During
this very same hearing, the trial court also commented on Shepherd’s latest motion to
continue proceedings. Thus, it too was before the court at the time, contrary to her
allegations otherwise.
Regarding the orders dismissing the claims for want of prosecution, same is
reviewed under the standard of abused discretion, Pence v. S&D Builders, LLC, No. 07-
21-00080-CV, 2021 Tex. App. LEXIS 9916, at *6-7 (Tex. App.—Amarillo Dec. 15, 2021
pet. denied) (mem. op.), as is the denial of a motion to reinstate. Cummings v. Billman,
634 S.W.3d 163, 166-67 (Tex. App.—Fort Worth 2021, no pet.). Furthermore, a trial court
has inherent power to dismiss a cause when the plaintiff fails to prosecute it with due
diligence. Pence, 2021 Tex. App. LEXIS 9916, at *6. Multiple factors may be considered
when assessing such diligence, or lack thereof. They include 1) the age of the case; 2)
the activity undertaken to develop it during its life, if any; 3) the requests for trial settings,
if any; and 4) the existence of reasonable excuses for the delay. Id. at *9-10.
With those indicia in mind, we first note that the case was about four years old
when dismissed. That period is at least about 30 months longer than the time in which
our Supreme Court expects a trial court to dispose of non-family civil proceedings. See
TEX. R. JUD. ADMIN. 6.1(a) (providing that civil cases other than family law matters be tried
within 18 months from appearance date for jury cases and within 12 months from
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appearance date in nonjury cases). Thus, its time had passed under the administrative
rule.
As for activity, Shepherd had two different attorneys represent her since the
inception of the suit. Both withdrew. The most recent did so because she failed to pay
and effectively communicate with him, at least that is what the attorney represented to
the trial court when it granted leave to withdraw. That happened in June 2021, or a bit
over two months before the trial court signed its dismissal orders. Moreover, the particular
attorney also represented to the court that no depositions had been taken and little other
discovery had transpired. Shepherd cited us to nothing of record contradicting this.
The record also illustrates that she failed to appear for a deposition set by the
opposing parties. Nor did Shepherd cooperate with effort to reschedule it. As said by
opposing counsel: “with respect to cooperation between Ms. Shepherd and her counsel,
we requested her deposition numerous times throughout the month of May and June.”
What they “kept getting back was, ‘Not available,’ ‘Can't do it,’ ‘Needs to be pushed off to
maybe August, September.’” So, the trial court heard not only that she conducted nominal
discovery but also hindered the ability of others to do so.
Next, the record reflects that the cause had been set for trial several times. Those
dates were met with multiple motions for continuance, which motions were granted.
Though most were jointly filed between the parties, they, nonetheless, illustrate continuing
delay in which Shepherd intentionally acquiesced.
Of further note is Shepherd’s comment about mediation at the hearing on the
motion to dismiss and her continuing attempt to pursue it. Her latest invitation to do so
was rejected in June 2021. Interestingly, effort to resolve the case through settlement
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negotiations or mediation served as the basis for many of the earlier motions to continue.
Obviously, those efforts proved fruitless, for whatever reason. Nevertheless, her
persistent effort to follow a path which much earlier proved untenable tends to contradict
her interest in trying the cause. And, as those efforts at settlement proved fruitless,
discovery apparently remained stagnant.
As for excuses, she placed the blame on her ex-attorneys. Allegedly, they refused
to heed her numerous pleas to conduct discovery. None of these attorneys were present
to confirm the allegation. Nor did she tender into the record any other evidence supporting
her contention, despite alluding to the existence of emails. Moreover, the latest withdrew
due to Shepherd’s refusal to pay and effectively communicate with him. The latter can
be viewed as some evidence that Shepherd impeded her attorney’s ability to answer her
purported pleas. Most importantly, though, ex-attorneys’ supposed inaction does not
explain her own failure to cooperate with the discovery efforts of others.
Shepherd also interjected Covid and its widespread effect. No doubt, it caused
people to minimize physical interaction and impacted litigation. Then again, Zoom
developed as a means by which people could overcome some obstacles created by the
germ and move forward. Shepherd did not address why that medium went unutilized in
preparation for trial.
The trial court’s observations and questions to Shepherd best capture the situation.
It uttered:
• “I mean, the problem here is this case has been pending for four years,
and there’s been no forward progress at great expense to the
Defendants.”
• “I think you were back here 11 months ago asking for more time on your
case. Eleven months have passed, nothing’s happened, and you failed
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to show up for your deposition. What am I supposed to do with this
case? It’s not moving forward after four years.”
• “Because your attorney was in here two months ago saying that you
weren’t cooperating with them and they needed to be removed from this
case . . . .”
• “But they asked you to show up for your deposition, and you just didn’t
show up and didn’t reschedule it. So how can you go to trial when you’re
not showing up for your deposition? You say that you have claims
against them, and they’re trying to conduct discovery so they can get
ready for trial, which is scheduled in less than three weeks, and . . . they
don’t even understand what your claims are against them because you
won’t show up for your deposition, and this case has been pending for
four years.”
• “What I see is it looks like this is the ninth trial setting in this case. Is
that correct? I’m just looking at my docket sheet.”
• “I see eight trial dates that have been scratched through.”
Given the trial court’s perception of the circumstances and the evidence alluded to
above, its decision to dismiss is not unreasonable. Nor does it deviate from controlling
rules and principles. The same is no less true of the trial court’s refusal to reinstate the
four-year-old case. Her excuses for the delay and proof supporting same were tenuous,
or so the trial court could have reasonably concluded. Accordingly, no discretion was
abused in either instance. See Preslar v. Garcia, No. 03-13-00449-CV, 2014 Tex. App.
LEXIS 2156, at *6-8 (Tex. App—Austin Feb. 26, 2014, no pet.) (mem. op.) (affirming the
decision to dismiss a case for want of prosecution when it was over 40 months old with
at least 21 months of inaction and no reasonable excuse was offered for the delay); In re
McBryde Family Trust, No. 13-20-00473-CV, 2021 Tex. App. LEXIS 8539, at *16-17 (Tex.
App.—Corpus Christi Oct. 21, 2021, no pet.) (mem. op.) (finding, among other things, that
Covid-19 was not a reasonable excuse for the delay given the “overall minimal” activity in
a case that had been on file for 18 months).
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Summary Judgments
As mentioned earlier, the trial court also entered summary judgments denying
Shepherd’s claims against Painter, Younger, and Scott. Having affirmed its orders of
dismissal, we need not consider the summary judgments awarded to anyone other than
Younger. Again, the claims against Younger were the only ones outside the umbrella of
the dismissal orders.
Shepherd alleged only one cause of action against Younger. It consisted of
breached contract. It allegedly breached it by refusing to sell her the realty in question.
Younger moved for summary judgment on the claim, contending that her failure to
perform various conditions ended its contractual obligation to her. Those conditions were
1) waiving the contingency that her duty to buy depended upon selling her house and 2)
depositing $1,000 in escrow, which contingencies had to be completed within three days
of being notified of the decision to accept the second offer.
Shepherd admitted that “[t]he standard written form contract unambiguously
required an additional deposit to escrow as part of waiving the contingency.” That is, the
addendum she executed contained the following:
B. If Seller [Younger] accepts a written offer to sell the Property, Seller shall
notify Buyer [Shepherd] (1) of such acceptance AND (2) that Seller requires
Buyer to waive the Contingency. Buyer must waive the Contingency on or
before the 3rd day after Seller’s notice to Buyer; otherwise the contract will
terminate automatically and the earnest money will be refunded to Buyer.
C. Buyer may waive the Contingency only by notifying Seller of the waiver
and depositing $1,000.00 with escrow agent as additional earnest money.
All notices must be in writing and are effective when delivered in accordance
with the contract.
So, within three days of being informed of Younger’s accepting a subsequent offer,
Shepherd had to waive the contingency. And, there was only one way to do it. The
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agreement obligated her by notifying Younger she waived the contingency “and
depositing $1000.00 with [the ] escrow agent as additional earnest money.” (Emphasis
added).
No one disputes that Younger accepted a subsequent offer and twice afforded
Shepherd notice of it. Nor does anyone deny that Shepherd failed to perform both
conditions required of her within three days of either notification. Indeed, Shepherd
acknowledged her failure to timely deposit the $1,000 through an email and attachment
sent on August 28, 2017. The attachment, according to her, was a “[s]igned . . . response
to Notice regarding Contingency, indicating ‘Buyer waives the contingency and deposits
the additional earnest money with the escrow agent.’” Following that, we find her
attestation that “l did not make the additional deposit to escrow.” Her thus having failed
to comply, the contract terminated per its own terms.
Nevertheless, effort was made to excuse the default. It came in the form of waiver.
Purportedly, Younger waived the condition about depositing the additional $1,000. That
occurred, in her view, when Younger’s real estate agent only requested proof of financial
ability to buy the property when delivering notice of the second offer. According to
Shepherd, the real estate agent had “apparent authority” to waive the condition on behalf
of Younger.
Yet, in urging the theory, she cited us to neither 1) legal authority specifying the
elements of apparent authority nor 2) evidence raising an issue of fact as to their
existence. Such was required by an appellant and one attempting to defend against a
summary judgment motion by interjecting some defense. See Hines v. Deutsche Bank
Nat’l Trust Co., No. 02-14-00368-CV, 2015 Tex. App. LEXIS 11715, at *6-7 (Tex. App.—
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Fort Worth Nov. 12, 2015, pet. denied) (mem. op.) (noting the nonmovant’s burden to
come forward with evidence sufficient to raise an issue of fact on each element of the
defense to avoid summary judgment). Similarly missing is substantive analysis
supporting her contention, that is, analysis applying legal authority to evidence of record.
We have no obligation to do any of that for her, sua sponte. Jackson Walker, LLP v.
Kinsel, 518 S.W.3d 1, 18 (Tex. App.—Amarillo 2015), aff’d on other grounds, 526 S.W.3d
411 (Tex. 2017); see Hornbuckle v. State Farm Ins., No. 02-15-00387-CV, 2016 Tex.
App. LEXIS 11197, at *7-8 (Tex. App.—Fort Worth Oct. 13, 2016, no pet.) (mem. op.)
(stating that the court has no duty to brief issues for an appellant). It matters not that she
acted pro se. Such parties must also comply with the rules of appellate procedure.
Hornbuckle, 2016 Tex. App. LEXIS 11197, at *7. And her omission is of particular
importance here since the doctrine of apparent authority normally does not apply to real
estate transactions. Huginnie v. Loyd, 483 S.W.2d 696, 701 (Tex. Civ. App.—Tyler 1972
writ ref’d n.r.e.); Bugh v. Word, 424 S.W.2d 274, 279 (Tex. Civ. App.—Austin 1968, writ
ref’d n.r.e.) (quoting Goode v. Westside Developers, Inc., 258 S.W.2d 844, 847 (Tex. Civ.
App.—Waco 1953, writ ref’d n.r.e.)). Together, this means that Shepherd did not carry
her appellate burden to establish the impropriety of summary judgment.
In short, the contract to buy the realty ended when Shepherd failed to perform the
conditions required of her. Thus, Younger established its entitlement to summary
judgment, as a matter of law, and we overrule her issue.
Attorney’s Fees
Lastly, Shepherd challenges the summary judgment through which the trial court
awarded attorney’s fees to her opponents. In support thereof, she asserts that 1) Younger
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did not plea for attorney’s fees and 2) everyone failed to prove the fees awarded were
reasonable and necessary. We overrule the issue.
Regarding Younger’s purported failure to seek fees through a pleading, Shepherd
again misrepresents the record. Younger prayed for same in its original answer.
As for proving the amount of fees recoverable, Shepherd said much about
applicable legal authority. Yet, no substantive analysis followed. As with her argument
about “apparent authority,” we are left to answer that on our own. But, again, that is not
our duty. So, her effort again constitutes inadequate briefing resulting in the waiver of the
complaint. Hornbuckle, 2016 Tex. App. LEXIS 11197, at *7-8 (holding that argument
must include substantive analysis and by omitting it, one waives the complaint).
Possibly, her omission may be explained by the tenor of the evidence. Simply put,
it negated her conclusory allegations. Indeed, the trial court had before it affidavits from
legal counsel and their respective detailed bills for services provided. Those items
illustrated 1) the qualifications of those performing services; 2) the services performed,
who performed them, when they were performed, and the time necessary to perform
them; and 3) the reasonable hourly rates for each of the services by each professional.
More importantly, such addressed and satisfied the criteria deemed relevant by our
Supreme Court in Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469
(Tex. 2018). So too did and does it constitute ample evidence to establish, as a matter
of law, the fees awarded were reasonable and necessary. Those fees were $88,706.60
to Helen Painter & Co, Catherine Taylor, and Amy DeForest, $30,872.00 to Scott Real
Estate, Inc. and Shila Manley, and $6,237.50 to Younger.
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To reiterate, we overrule each of Shepherd’s issues and affirm the judgments of
the trial court.
Brian Quinn
Chief Justice
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