Reversed and Remanded and Opinion filed August 13, 2013.




                                      In The

                     Fourteenth Court of Appeals

                              NO. 14-12-00131-CV

                        ROBERTO PORRAS, Appellant,
                                         V.

 MARY L. JEFFERSON, INDEPENDENT EXECUTOR OF THE ESTATE
     OF ANDREW L. JEFFERSON, JR., DECEASED, Appellee.

                    On Appeal from the Probate Court No. 2
                                Harris County
                      Trial Court Cause No. 385,614-401


                                 OPINION

      Appellant Roberto Porras appeals the trial court’s order dismissing with
prejudice his breach-of-contract claim and other claims against the appellee. The
trial court, on its own motion, dismissed Porras’s claims after discussing the
parties’ intended presentations of evidence at the start of trial. Because we
conclude the trial court abused its discretion, we reverse and remand.
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      In April 2008, Porras retained attorney Andrew L. Jefferson to represent him
in a family-law matter. Porras signed a letter agreement with Jefferson and another
lawyer, Lawrence F. Cerf, in which Jefferson and Cerf agreed to provide legal
representation to Porras and Porras agreed to pay their stated hourly rates and
costs, as well as an initial retainer of $50,000. The letter agreement specified that
the retainer represented the minimum fee for the attorneys’ services, and provided
that if the case were resolved or the attorneys discharged before the retainer was
exhausted, Porras would not be entitled to a refund in any amount.

      At some point after the representation began, Jefferson became ill and later
passed away. In December 2009, Porras sued Mary A. Jefferson, as the
independent executor of Jefferson’s estate, alleging that Porras had deposited a
$25,000 retainer with Jefferson and approximately $15,000 of that amount was
unused and owing to Porras. The executor answered with a general denial. Porras
later amended his petition, alleging he had made payments to Jefferson totaling
$35,000 and asserting claims for breach of contract, promissory estoppel, and
conversion.

      In Porras’s breach-of-contract claim, he alleged that Jefferson failed to
provide the agreed-upon services resulting in damages to Porras of $35,000. Porras
also alleged that Jefferson promised to use his time, talent, resources, and
experience to represent Porras in his lawsuit; Porras relied on that promise and paid
him $35,000 for the representation; Jefferson knew or reasonably should have
known that Porras would rely on his promise; Jefferson was unable to perform his
promise; and Porras was damaged as a result. Finally, in the alternative, Porras
alleged that Jefferson “wrongfully converted Plaintiff’s money to his own use by
withdrawing Plaintiff’s money from his Trust Account without providing any

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services or invoices to Plaintiff” and that the independent executor had refused to
return Porras’s money to him.

       On September 12, 2011, the case was called to trial and a panel of potential
jurors was ordered. Before the trial began, the trial court engaged in an extended
discussion with the parties’ counsel concerning their claims and defenses. The
executor’s counsel argued that the agreement was with Jefferson and Cerf, not just
Jefferson, and Cerf completed the representation after Jefferson’s death. Porras’s
counsel responded that Porras did not get what he paid for, which was the
representation that Jefferson would have provided. Porras’s counsel also argued
that Porras had to pay additional money to Cerf to complete the case. The parties
also disagreed on the amount of work Jefferson actually did on the underlying case
before his death, and Porras’s counsel represented that he was prepared to offer
expert testimony concerning the circumstances surrounding the representation to
support Porras’s claims. Porras’s counsel further argued that Jefferson removed
funds from the trust account that were not earned.

       The trial court, after reviewing the letter agreement and considering the
parties’ arguments, concluded that Porras’s contract was with both Jefferson and
Cerf and that the services were ultimately performed by Cerf. Thus, the trial court
further concluded, Porras had no viable breach-of-contract claim and no damages.
At the conclusion of the discussion between the court and the parties’ counsel, the
April 2008 letter agreement was “admitted into evidence” and appended to the
reporter’s record of the pretrial proceedings. On November 8, 2011, the trial court
signed an “Order of Dismissal” dismissing Porras’s claims with prejudice. In the
order, the trial court stated in relevant part:

       In pretrial proceedings, the Court ascertained the nature of this claim
       together with the evidence upon which this claim is based. Following
       a review of the evidence and contract in question, along with
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      arguments of counsel on the evidence and the applicable law, the
      Court finds that there was no breach of the contract in question nor
      recoverable damages.

Porras filed a motion for new trial, arguing that the trial court signed a final order
even though no motion for summary judgment was presented and there was “no
legal authority to take this action.” The motion was overruled by operation of law.

                                          II

      In his sole issue on appeal, Porras contends the trial court abused its
discretion by dismissing his claims with prejudice. A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner without reference to any
guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
Although Porras’s contentions are imprecise, we understand the thrust of his
argument to be that his case was improperly dismissed “for lacking any arguable
basis in the law because the court determined in pretrial that there was no cause of
action.” In other words, the trial court dismissed Porras’s claims without a trial and
without a motion from the executor seeking this relief.

      Citing no authority, the appellee argues that it was within the trial court’s
inherent power to dismiss the case with prejudice. Accordingly, she maintains, we
should affirm the judgment. But, a trial court’s inherent power does not extend as
far as the appellee contends.

      A trial court possesses “inherent powers it may call upon to aid in the
exercise of its jurisdiction, in the administration of justice, and in preservation of
its independence and integrity.” Pub. Util. Comm’n of Tex. v. Cofer, 754 S.W.2d
121, 124 (Tex. 1988). These powers are not derived from legislative grant or any
specific constitutional provisions, but from the very fact that the court has been
created and charged with certain duties and responsibilities. Eichelberger v.

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Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979). Examples of inherent judicial
powers include the ability to (1) change, set aside or otherwise control judgments;
(2) summon and compel the attendance of witnesses; (3) punish by contempt; (4)
regulate the admission and practice of law; (5) and provide personnel to aid the
court in the exercise of its judicial function. Id. at 398 n.1 (citations omitted).

      A trial court also has the inherent power to control the disposition of cases
“‘with economy of time and effort for itself, for counsel, and for litigants.’” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (per curiam) (quoting
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). Further, a trial court may
properly intervene to maintain control in the courtroom, to expedite the trial, and to
prevent what it considers to be a waste of time. Id. at 241. And, though a trial court
has the inherent power to dismiss a case for want of prosecution, this power does
not confer upon the court the authority to adjudicate and deny the merits of the
dismissed claim. Attorney Gen. of Tex. v. Rideaux, 838 S.W.2d 340, 341 (Tex.
App.—Houston [1st Dist.] 1992, no writ); see also Lum v. Lacy, 616 S.W.2d 260,
261 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ) (“A judgment on the
merits should not be made until the plaintiff has had his day in court”).

      It is clear that “between the court’s ‘inherent power’ and the applicable rules
of procedure and evidence, judges have broad, but not unfettered, discretion” in
handling the cases that come before them. In re Does 1-10, 242 S.W.3d 805, 817
(Tex. App.—Texarkana 2007, orig. proceeding) (citing Metzger v. Sebek, 892
S.W.2d 20, 38–39 (Tex. App.—Houston [1st Dist.] 1994, writ denied)). But a trial
court’s inherent power does not include “the authority to make substantive rulings
on issues such as the enforceability or validity of contracts.” In re Polybutylene
Plumbing Litig., 23 S.W.3d 428, 438 (Tex. App.—Houston [1st Dist.] 2000, pet.
dism’d). Moreover, where an extensive system is in place governing procedures

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applicable to a situation, trial courts do not, in the absence of some extraordinary
reason to depart from those procedures, have the inherent authority to create their
own ad hoc procedures. See In re Does 1-10, 242 S.W.3d at 818.

      There are procedural mechanisms in place that allow a trial judge to dispose
of a case on the merits before it is submitted to the trier of fact. Among those
mechanisms are motions for summary judgment and for directed verdict. See Tex.
R. Civ. P. 166a (governing motions for summary judgment), 268 (governing
directed-verdict motions). Inherent power does not permit a trial court to dismiss a
party’s claims on the merits without a pending motion.

                                        ***

      We conclude that the trial court abused its discretion by dismissing Porras’s
claims, on its own motion, at the start of trial. We therefore sustain Porras’s issue,
and reverse and remand the case for further proceedings consistent with this
opinion.




                                       /s/       Jeffrey V. Brown
                                                 Justice



Panel consists of Justices Frost, Brown, and Busby.




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