                        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
                             ------------

        FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

      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).


                                         6
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




                                        7
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.

                                       8
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.

                                        9
      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




                                       10
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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