PURNELL v. 1000 MAIN LLC SW GP LLC ISS (2026)

OPINION

Local and regional rules applicable to the 189th District Court “protect attorneys from trials” during timely designated vacation weeks over the summer, “even if the trial judge signed an order setting a case for trial before the attorney filed the vacation designation.” 11th Admin. Jud. Reg. Tex. R. 14(b); accord Harris (Tex.) Civ. Dist. Ct. Loc. R. 11.2. Appellant's attorney timely designated the week of the trial setting for vacation. Appellant moved for a continuance one month before the trial on this basis. The court denied the motion and then dismissed appellant's case with prejudice when her attorney was not ready for trial. This, we hold, was an abuse of discretion. See In re N. Am. Refractories Co., 71 S.W.3d 391, 393–94 (Tex. App.—Beaumont 2001, orig. proceeding).

The trial court's judgment is reversed, and the case is remanded for a new trial.

I. Background

Because appellees contend that appellant's former ¹ attorney, Carl Gordon, waived application of the rules pertaining to a vacation designation, we recite what happened at the May 6 pretrial conference when the court set the trial date for July 21. The court told counsel, “Pull out your calendars.” After discussion of a separate issue, the following exchange occurred:²

THE COURT: All right. So we're into June. My calendar is July. Now, at this point, we're into July. Does anybody have a vacation letter on file for July?

MR. PAPPAS: I can go any time in—I can go—well, just the last week, Judge, of July 20th. I can go the 7th, 14th or the 21st if it meets the Court's schedule.

MR. TOLES: I'm open in July. I just want to make sure I don't have any conflicts, but I don't have a vacation letter on file.

MR. GORDON: The—we prefer a non-summer month.

THE COURT: I don't care what you prefer, Counsel. I mean, I prefer to be on the beach somewhere right now.

MR. GORDON: You and me both, Judge.

THE COURT: Okay. Danielle?

COORDINATOR: We have July 21st available, Judge.

MR. TOLES: Let me just check, Your Honor. The only thing I have is I'm speaking at the advanced PI on the 23rd.

THE COURT: On the what?

MR. TOLES: On the 23rd.

THE COURT: And how many days is that supposed to be?

MR. PAPPAS: I think it'd be two to three at the max, Judge.

THE COURT: Get your witnesses in and—

MR. TOLES: Yeah. That's fine. I'm good with it, Your Honor.

THE COURT: Trial's been set for 7/21/25. Pretrial starts at 8:30.

MR. TOLES: And you said preferentially set, Your Honor.

THE COURT: Yes.

MR. GORDON: And one more thing, Your Honor.

Gordon then asked for the case to be sent to mediation. The court denied the request.

Later that day, Gordon filed with the district clerk a vacation designation for the weeks of July 21 and July 28. On the same day, the court provided written notice to the parties of the trial setting. The court requested timely submission of pretrial materials such as exhibit lists, witness lists, and proposed jury charges. The notice stated that “pre-trial will be held on the same day prior to trial.”

Appellant filed a motion for continuance based on the vacation designation. Appellees filed responses, arguing that the parties “agreed” to the July 21 setting. The court denied the motion. Appellant filed a further objection to the trial setting, declaring that he did not agree to the July 21 setting.

At the July 21 setting, Gordon announced that they were not ready. He objected to the trial setting, contending that he did not agree to the July 21 setting, his vacation designation was timely filed, he did not waive it, and the designation should be enforced under a mandatory rule. The court overruled the objection:

THE COURT: And I—I—you said—you stated that you never agreed to a trial setting, but this case was preferentially set. I had you guys pull out your calendars, take whatever time you needed to tell me a date of certain for trial, correct?

MR. GORDON: And I recall—and I think the record will reflect that we requested that it not be set in the summer months.

THE COURT: Okay. Well, unfortunately, this court has 2,817 cases and you don't get to determine what cases are set during the summer or any other season, okay? All right. So, again, your motion or Plaintiff's objections are denied.

Appellees moved for dismissal of all of appellant's claims based on appellant's failure to prepare items required in the pretrial order, such as exhibits and a witness list. When the court again asked if Gordon was ready to proceed with trial, and Gordon said he was not, the court dismissed the case with prejudice.

II. Continuance

In her sole issue, appellant contends that the trial court erred by denying her motion for continuance and objection to the trial setting because Gordon complied with the local and regional rules for designating summer vacation. Appellees contend that the trial court did not abuse its discretion because the court's ruling was a proper exercise of its broad docket-management authority and because Gordon's silence at the pretrial hearing and appearance for the trial setting were inconsistent with his reliance on the vacation designation, resulting in waiver.

A. Standard of Review

We review a trial court's denial of a continuance for an abuse of discretion. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800–01 (Tex. 2002). A trial court abuses its discretion when it disregards guiding rules or principles, or when it fails to analyze or apply the law correctly. In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021). We interpret rules of procedure like statutes, and this review is de novo. In re City of Dickinson, 568 S.W.3d 642, 645–46 (Tex. 2019).

B. Rules for Summer Vacation

Rule 14(b) of the Regional Rules of Administration for the Eleventh Administrative Judicial Region allow attorneys to designate summer vacation weeks by May 15 to “protect attorneys from trials during those summer weeks, even if the trial judge signed an order setting a case for trial before the attorney filed the vacation designation”:

(a) Designation of Vacation. Except as provided by paragraphs (b) and (c) below, attorneys may designate up to four weeks during a calendar year as vacation during which they cannot be assigned to trial or required to engage in any pretrial proceedings in any case in which they are the attorney in charge as defined by Tex. R. Civ. P. 8. The trial court may expand the protection of this Rule to other attorneys working on the case besides the attorney in charge.

(b) Summer Vacations. To designate vacation weeks during June, July, or August, attorneys must file their vacation designations with the district clerk by May 15. Timely filed vacation designations for June, July, or August will protect attorneys from trials during those summer weeks, even if the trial judge signed an order setting a case for trial before the attorney filed the vacation designation.

(c) Non-Summer Vacations. To designate vacation weeks in months other than June, July, or August, attorneys must file their vacation designations with the district clerk by February 1. Non-summer vacation weeks may not run consecutively for more than two weeks at a time. Timely filed vacation designation for non-summer vacation weeks will not protect an attorney from a trial set by an order signed before the date the attorney filed the designation.

11th Admin. Jud. Reg. Tex. R. 14. Rule 11 of the Rules of the Civil Trial Division of the District Courts of Harris County is substantially the same. See Harris (Tex.) Civ. Dist. Ct. Loc. R. 11.³

C. Error and No Waiver

The Beaumont court of appeals, in considering a substantially similar regional rule, held that the trial court abused its discretion by not granting a continuance when the attorney filed his vacation letter to designate the week of trial as a vacation week and then moved for a continuance one week before trial. In re N. Am. Refractories Co., 71 S.W.3d 391, 392–94 (Tex. App.—Beaumont 2001, orig. proceeding). “Once the motion was filed invoking the rule, the trial court had no discretion to ignore the mandatory language in the rule.” Id. at 394. The trial court had a “ministerial duty to grant the continuance in compliance with the local rules of procedure.” Id. The court's refusal to recognize the vacation letter was “arbitrary.” Id.

The Beaumont court, like the parties here, recognized that a party could waive the application of the rules pertaining to vacation letters. In Siegler v. Williams, for example, the appellant's co-counsel agreed to a preferential trial setting during the lead counsel's previously designated vacation week. 658 S.W.2d 236, 239 (Tex. App.—Houston [1st Dist.] 1983, no writ). Neither the appellant nor his counsel appeared for trial. Id. at 238. The court of appeals held that the trial court did not err by disregarding the vacation letter and holding trial. Id. at 239. The Siegler court did not mention when, if ever, this issue was raised in the trial court. See id. The Beaumont court distinguished Siegler on the facts that (1) the party agreed to the trial setting after designating vacation and (2) the party did not file a motion for continuance based on the vacation designation. See In re N. Am. Refractories Co., 71 S.W.3d at 394. Our sister court held further in Bennett v. Coghlan that a party could waive their previously designated vacation by subsequently agreeing to a trial setting, and the trial court did not err by denying a motion for continuance on this basis. Bennett v. Coghlan, No. 01-04-00104-CV, 2007 WL 2332969, at *7 (Tex. App.—Houston [1st Dist.] Aug. 16, 2007, pet. denied) (mem. op.).

Appellees contend that appellant waived the vacation designation by Gordon's silence or inaction at the May 6 hearing, coupled with his conduct of appearing for the July 21 trial setting. Whelan goes further, contending that Gordon “agreed to a preferential setting” and “claimed to be available on the stated trial date” during the May 6 hearing.

But unlike in Siegler and Bennett, Gordon never agreed to the July 21 trial setting. Nor did he claim to be available for the trial setting. Rather, Gordon told the court that they preferred a “non-summer month.” The court disregarded Gordon's request and did not ask whether he was available for the July setting. The trial court and appellees would have been aware of Gordon's ability to designate vacation and prevent the July setting, so it was incumbent upon them to secure an agreement from Gordon to prevent his reliance on the local rules. See Mayad v. Rizk, 554 S.W.2d 835, 838–39 (Tex. App.—Houston [14th Dist.] 1977, writ ref'd n.r.e.) (noting that parties “should be charged with knowledge of the local rules”); see also Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (holding that even pro se litigants must comply with local rules). See generally Dan Hinde, Motions for Continuance, 72 Advocate 54, 57 (2015), Westlaw 72 ADVOCTX 54 (“If attorneys comply with the vacation-letter procedures and deadlines, then the trial court must continue the trial setting. So, vacation-letter continuances are mandatory, like continuances for active-duty servicemembers, religious observants, and legislators.”).

Nor was Gordon's conduct at the trial setting inconsistent with his reliance on the vacation designation. He announced not ready because of the vacation designation and objected to the trial setting. We decline to find waiver based on his appearance alone. See Wade v. Valdetaro, 696 S.W.3d 673, 677 (Tex. 2024) (litigant did not waive complaint about inadequate notice of trial setting by appearing for trial and failing to move for continuance; litigant “broached the subject of inadequate notice,” but the trial court “cut him off”); see also Ezeoke v. Tracy, 349 S.W.3d 679, 687 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that an attorney who requests a continuance, does not receive it, and then “gambles” by failing to attend a hearing “reasonably can anticipate adverse consequences”). This record does not support a finding that Gordon or appellant intentionally relinquished a known right to designate vacation or engaged in intentional conduct inconsistent with claiming the right. See In Greyhound Lines, Inc., 718 S.W.3d 250, 261 (Tex. 2025) (elements of waiver).

Appellees also point to the facts that this case had been pending four years with numerous prior continuances, Gordon previously had designated vacation for a summer trial setting, and appellant did not comply with pretrial obligations such as filing witness and exhibit lists and a proposed charge. Appellees suggest that the trial court's inherent broad power to manage its docket would allow the court to deny the continuance, disregard Gordon's timely designated vacation, and dismiss the case with prejudice.⁴

True, courts have broad discretion in managing their dockets. But this discretion is not unfettered. Porras v. Jefferson, 409 S.W.3d 804, 808 (Tex. App.—Houston [14th Dist.] 2013, no pet.). When there is a set of “governing procedures 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.” Id. Rules of procedure “have the same force and effect as statutes.” In re City of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001) (quotation omitted). Thus, courts may not disregard procedural rules' plain language nor revise them by opinion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). When a trial court's violation of a local rule effectively deprives a party of representation, the court abuses its discretion by refusing to continue the proceedings to a time when counsel is available. Dancy v. Daggett, 815 S.W.2d 548, 549 & n.1 (Tex. 1991) (orig. proceeding) (failure to follow local rules for attorneys' conflicting appearances).

We are mindful of the trial court's responsibility to dispose of cases efficiently and quickly, ideally within eighteen months. See Harris (Tex.) Civ. Dist. Ct. Loc. R. 1; see also 11th Admin. Jud. Reg. Tex. R. 7. Although an objective of procedural rules is to help “resolve lawsuits with ‘great expedition and dispatch and at the least expense,’ the supreme objective of the courts is ‘to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.’ ” Sw. Ref. Co. v. Bernal, 22 S.W.3d 425, 437 (Tex. 2000) (citing Tex. R. Civ. P. 1); see also Harris (Tex.) Civ. Dist. Ct. Loc. R. 1 (same objectives); Harris (Tex.) Dist. J. R. Admin. 1 (same objectives). “This means that convenience and economy must yield to a paramount concern for a fair and impartial trial.” Bernal, 22 S.W.3d at 437; see also Olin Corp. v. Coastal Water Auth., 849 S.W.2d 852, 858 (Tex. App.—Houston [1st Dist.] 1993, no writ) (“The tension between the objective of rule 1 and the inherent power of the trial judge to control the court's docket may be impossible to resolve with absolute precision, but a just resolution of cases generally prefers trial over dismissal.”). Courts cannot disregard the rules, upon which litigants rely, in the name of efficiency. See Porras, 409 S.W.3d at 808.

Moreover, the trial court's notice of the setting requested timely submission of pretrial materials but stated that “pre-trial will be held on the same day prior to trial,” i.e., on the same day covered by Gordon's vacation designation. Gordon could not be required to engage in any pretrial proceeding on July 21, so appellant's failure to file pretrial matters on July 21 is no basis for denying the continuance. See 11th Admin. Jud. Reg. Tex. R. 14(a).

In sum, Gordon timely designated summer vacation for the week of the trial setting. Under the rules, he was protected from trial even though the court had already scheduled it. He did not waive the vacation designation expressly or impliedly. Rather, he asked that the trial not be set in the summer, moved for a continuance, and objected to the trial setting. Under these circumstances, the trial court lacked discretion to disregard the rules and deny a continuance. See In re N. Am. Refractories Co., 71 S.W.3d at 394; cf. Dancy, 815 S.W.2d at 549.

D. Harm

The parties do not address harm, but we conclude that the trial court's error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). The denial of the continuance resulted in appellant's counsel attending trial unprepared and the court's summary dismissal of the case with prejudice. See Caddell v. Caddell, 597 S.W.3d 10, 14–15 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (harm established when denial of continuance forced litigant to trial unrepresented and unprepared where she suffered an adverse judgment).

III. Conclusion

Appellant's sole issue is sustained. The trial court's judgment is reversed, and the case is remanded for a new trial.

FOOTNOTES

1.   After appellant's attorney filed a brief, he was suspended from the practice of law for three years, partially probated. Appellant is now appearing pro se. Because appellant has not asked this court to abate the appeal for the purpose of obtaining substitute counsel, we decide the appeal on the merits. See Estate of Klovenski v. Kapoor, No. 14-13-00850-CV, 2015 WL 732651, at *2 n.3 (Tex. App.—Houston [14th Dist.] Feb. 19, 2015, no pet.) (mem. op.).

2.   Dean Pappas represented appellees 1000 Main, LLC, Transwestern Property Company SW GP, LLC, and ISS Facility Services, Inc. William Toles represented appellee Whelan Security Co. d/b/a Gardaworld Security Services.

3.   As it must be. See 11th Admin. Jud. Reg. Tex. R. 9(a) (“The Local Rules adopted by the Boards of Judges of the Counties [in] this Region must conform with the requirements of these Rules.”).

4.   But see, e.g., Gulf Star Foundries, Inc. v. Robert S. Condon & Co., 780 S.W.2d 894, 896 (Tex. App.—Houston [14th Dist.] 1989, no writ) (error to dismiss “with prejudice” because dismissal for want of prosecution is not judgment on merits).

Ken Wise, Justice