Jamie Genender v. Larry Kirkwood and USA Store Fixtures, LLC
This text of Jamie Genender v. Larry Kirkwood and USA Store Fixtures, LLC (Jamie Genender v. Larry Kirkwood and USA Store Fixtures, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ACCEPTED 01-15-00058-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/29/2015 4:20:09 PM CHRISTOPHER PRINE CLERK
No. 01-15-00058-CV _______________________________________________________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE FIRST COURT OF APPEALS 4/29/2015 4:20:09 PM AT HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk _______________________________________________________
JAMIE GENENDER , Appellant,
v.
LARRY KIRKWOOD AND USA STORE FIXTURES, LLC, Appellees. _______________________________________________________
On Appeal from the 55th Judicial District Court of Harris County, Texas, Cause No. 2013-59766 ________________________________________________________
BRIEF OF APPELLANT _______________________________________________________
Jan Woodward Fox Tex. Bar No. 07334500 Cameron Weir Tex. Bar No. 24088616 JAN WOODWARD FOX PROFESSIONAL LEGAL CORPORATION 440 Louisiana Street, Suite 900 Houston, Texas 77002-4205
Counsel for Appellant
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Jan Woodward Fox and Cameron Weir, Jan Woodward Fox A Professional Legal
Corporation, 440 Louisiana Street, Suite 900, Houston, TX 77002, trial counsel
for Appellant Jamie Genender, hereinafter “Genender”.
Jerrad D. Bloome, Weycer Kaplan, Pulaski, and Zuber, 11 Greenway Plaza, Suite
1400, Houston, Texas 77046, trial counsel for Appellees Larry Kirkwood,
hereinafter “Kirkwood” and USA Store Fixtures, LLC, hereinafter “USA”.
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .........................................................ii
TABLE OF CONTENTS…………………………………………………………iii
INDEX OF AUTHORITIES..................................................................................vii
STATEMENT OF THE CASE.............................................................................xiv
STATEMENT REGARDING ORAL ARGUMENT...........................................xvi
ISSUES PRESENTED.........................................................................................xvii
STATEMENT OF FACTS.....................................................................................1
SUMMARY OF ARGUMENT .............................................................................7
APPLICABLE LEGAL STANDARDS ................................................................9
ARGUMENT.........................................................................................................12
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S DTPA CLAIMS ORIGINALLY FILED IN COUNTY COURT AS §16.064 TEX. CIV. PRAC. & REM. CODE APPLIED AND TOLLED THE APPLICABLE LIMITATION PERIOD………………………………………………………………….12
A. Summary of the Argument……………………………………………..12
B. Interpretation of §16.064 TEX. CIV. PRAC. & REM. CODE, the savings statute, its predecessor, and the purpose of the limitations affirmative defense.……………………………………………………………….15
C. Savings statute’s liberal interpretation of what constitutes dismissal and the courts’ common law severance procedure tantamount to dismissal………………………………………………………………..19
iii D. The County Court’s lack of jurisdiction in a direct proceeding entitled Genender to the protection of the savings statute and her voluntary non- suit of the severed case had no effect on its application……………...21
II. THE DISTRICT COURT ERRED IN DISMISSING GENENDER’S DTPA UNCONSCIONABILITY CLAIM FOR APPELLEES’ COURSE OF CONDUCT INCLUDING THEIR AGENT’S TRESPASS AS THERE IS NO SPECIFIC SUMMARY JUDGMENT EVIDENCE OR EVEN ARGUMENT OFFERED BY APPELLEES ON THIS CLAIM…………25
III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S FRAUD CLAIM AS RES JUDICATA DOES NOT PRECLUDE A CAUSE OF ACTION IN ONE CASE BECAUSE IT COULD HAVE BEEN ARGUED AS AN AFFIRMATIVE DEFENSE IN ANOTHER……………………………...26
A. Summary of the Argument……………………………………………..26
B. USA and Kirkwood’s proposition that not asserting an affirmative defense of fraud to a contract action forecloses a cause of action for fraud in a subsequent suit due to res judicata (claim preclusion) is not supported by the case law……………….……………………………..27
C. USA and Kirkwood’s motion conflates claim preclusion with issue preclusion and meets the statutory burden for neither ………………29
IV. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S DTPA DISTANT FORUM ABUSE CLAIM, AS THE CREDIT CARD AGREEMENT - THE TRUE CONTRACT AT ISSUE – WAS ENTERED INTO FOR PRIMARILY PERSONAL REASONS………………...………………………………...34
V. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S CLAIMS OF UNFAIR DEBT COLLECTION PRACTICES AS USA AND KIRKWOOD ARE DEBT COLLECTORS WHO, THROUGH THEIR AGENT, VIOLATED THE TEXAS DEBT COLLECTION ACT AND THE DTPA…………………39
iv VI. THE DISTRICT COURT ERRED IN GRANTING A NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AS TO GENENDER'S TRESPASS CLAIM AS THERE IS A FACT ISSUE AS TO WHETHER THE ULTERIOR MOTIVE OF USA AND KIRKWOOD’S AGENT INTERFERED WITH GENENDER’S RIGHT OF POSSESSION.……43
CONCLUSION AND PRAYER FOR RELIEF....................................................54
CERTIFICATE OF SERVICE...............................................................................56
CERTIFICATE OF COMPLIANCE.....................................................................57
APPENDIX
1. Plaintiff’s Second Amended Original Petition…………………………….58
2. Order for Interlocutory Summary Judgment………………………………69
3. Order Granting Defendants’ Second Motion for Summary Judgment and No-Evidence Motion for Summary Judgment…………………..……...…72
4. Plaintiffs’ Plea to the Jurisdiction and Motion to Dismiss Defendant’s Counterclaims (County Court) …………………...…………………..…...75
5. Order on Plaintiff’s Plea to the Jurisdiction and Motion to Dismiss and on Defendants’ Motion for Severance and to Consolidate….........…..............81
6. Texas Rule of Civil Procedure 574a (Repealed)…………………...……...84
7. Texas Civil Practice and Remedies Code §16.064…………………..........86
8. Deceptive Trade Practices Act §17.46(b)(23)……………………………..88
9. Texas Finance Code Ann. §392.304(a)(19)……………………………….90
10. Opinion – Cause No. 14-14-00048-CV; Jamie Genender and Critter Stuff, LLC v. USA Store Fixtures, LLC….……………………………………...92
11. Plaintiff’s Original Petition (JP Court)…………………………………..110
v 12. Defendant’s First Amended Answer and Original Counterclaim (County Court)…………………………………………………………………….112
13. Defendant’s Answer (Justice Court and County Court) ………………...120
14. Judgment for Defendant Before the Court (Justice Court)………………122
15. Plaintiff USA Store Fixture’s Amended Original Petition (County Court)………………………………………………………………….…124
16. Letter of Appeal (Justice Court to County Court)………………………..130
17. Video Exhibit introduced in CC…………………………………………132
vi INDEX OF AUTHORITIES
Cases
Adedipe v. Guardian Transfer & Storage, Inc., 14-10-00752-CV, 2011 WL 61862 (Tex. App.—Houston [14th Dist.] Jan. 6, 2011, no pet., not designated for publication)……………………………………………………………………….23
Alaniz v. Hoyt, 105 S.W.3d 330 (Tex. App. — Corpus Christi 2003, no pet.)……9
Ali v. State, 742 S.W.2d 749 (Tex. App.— Dallas 1987, writ ref'd)……………..49
Almanza v. Navar, 225 S.W.3d 14 (Tex. App. — El Paso 2005, no pet.)…….….52
Amberboy v. Societe de Banque Privee, 831 S.W.2d 793 (Tex. 1992)….........…24
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 01-15-00058-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/29/2015 4:20:09 PM CHRISTOPHER PRINE CLERK
No. 01-15-00058-CV _______________________________________________________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE FIRST COURT OF APPEALS 4/29/2015 4:20:09 PM AT HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk _______________________________________________________
JAMIE GENENDER , Appellant,
v.
LARRY KIRKWOOD AND USA STORE FIXTURES, LLC, Appellees. _______________________________________________________
On Appeal from the 55th Judicial District Court of Harris County, Texas, Cause No. 2013-59766 ________________________________________________________
BRIEF OF APPELLANT _______________________________________________________
Jan Woodward Fox Tex. Bar No. 07334500 Cameron Weir Tex. Bar No. 24088616 JAN WOODWARD FOX PROFESSIONAL LEGAL CORPORATION 440 Louisiana Street, Suite 900 Houston, Texas 77002-4205
Counsel for Appellant
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Jan Woodward Fox and Cameron Weir, Jan Woodward Fox A Professional Legal
Corporation, 440 Louisiana Street, Suite 900, Houston, TX 77002, trial counsel
for Appellant Jamie Genender, hereinafter “Genender”.
Jerrad D. Bloome, Weycer Kaplan, Pulaski, and Zuber, 11 Greenway Plaza, Suite
1400, Houston, Texas 77046, trial counsel for Appellees Larry Kirkwood,
hereinafter “Kirkwood” and USA Store Fixtures, LLC, hereinafter “USA”.
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .........................................................ii
TABLE OF CONTENTS…………………………………………………………iii
INDEX OF AUTHORITIES..................................................................................vii
STATEMENT OF THE CASE.............................................................................xiv
STATEMENT REGARDING ORAL ARGUMENT...........................................xvi
ISSUES PRESENTED.........................................................................................xvii
STATEMENT OF FACTS.....................................................................................1
SUMMARY OF ARGUMENT .............................................................................7
APPLICABLE LEGAL STANDARDS ................................................................9
ARGUMENT.........................................................................................................12
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S DTPA CLAIMS ORIGINALLY FILED IN COUNTY COURT AS §16.064 TEX. CIV. PRAC. & REM. CODE APPLIED AND TOLLED THE APPLICABLE LIMITATION PERIOD………………………………………………………………….12
A. Summary of the Argument……………………………………………..12
B. Interpretation of §16.064 TEX. CIV. PRAC. & REM. CODE, the savings statute, its predecessor, and the purpose of the limitations affirmative defense.……………………………………………………………….15
C. Savings statute’s liberal interpretation of what constitutes dismissal and the courts’ common law severance procedure tantamount to dismissal………………………………………………………………..19
iii D. The County Court’s lack of jurisdiction in a direct proceeding entitled Genender to the protection of the savings statute and her voluntary non- suit of the severed case had no effect on its application……………...21
II. THE DISTRICT COURT ERRED IN DISMISSING GENENDER’S DTPA UNCONSCIONABILITY CLAIM FOR APPELLEES’ COURSE OF CONDUCT INCLUDING THEIR AGENT’S TRESPASS AS THERE IS NO SPECIFIC SUMMARY JUDGMENT EVIDENCE OR EVEN ARGUMENT OFFERED BY APPELLEES ON THIS CLAIM…………25
III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S FRAUD CLAIM AS RES JUDICATA DOES NOT PRECLUDE A CAUSE OF ACTION IN ONE CASE BECAUSE IT COULD HAVE BEEN ARGUED AS AN AFFIRMATIVE DEFENSE IN ANOTHER……………………………...26
A. Summary of the Argument……………………………………………..26
B. USA and Kirkwood’s proposition that not asserting an affirmative defense of fraud to a contract action forecloses a cause of action for fraud in a subsequent suit due to res judicata (claim preclusion) is not supported by the case law……………….……………………………..27
C. USA and Kirkwood’s motion conflates claim preclusion with issue preclusion and meets the statutory burden for neither ………………29
IV. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S DTPA DISTANT FORUM ABUSE CLAIM, AS THE CREDIT CARD AGREEMENT - THE TRUE CONTRACT AT ISSUE – WAS ENTERED INTO FOR PRIMARILY PERSONAL REASONS………………...………………………………...34
V. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S CLAIMS OF UNFAIR DEBT COLLECTION PRACTICES AS USA AND KIRKWOOD ARE DEBT COLLECTORS WHO, THROUGH THEIR AGENT, VIOLATED THE TEXAS DEBT COLLECTION ACT AND THE DTPA…………………39
iv VI. THE DISTRICT COURT ERRED IN GRANTING A NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AS TO GENENDER'S TRESPASS CLAIM AS THERE IS A FACT ISSUE AS TO WHETHER THE ULTERIOR MOTIVE OF USA AND KIRKWOOD’S AGENT INTERFERED WITH GENENDER’S RIGHT OF POSSESSION.……43
CONCLUSION AND PRAYER FOR RELIEF....................................................54
CERTIFICATE OF SERVICE...............................................................................56
CERTIFICATE OF COMPLIANCE.....................................................................57
APPENDIX
1. Plaintiff’s Second Amended Original Petition…………………………….58
2. Order for Interlocutory Summary Judgment………………………………69
3. Order Granting Defendants’ Second Motion for Summary Judgment and No-Evidence Motion for Summary Judgment…………………..……...…72
4. Plaintiffs’ Plea to the Jurisdiction and Motion to Dismiss Defendant’s Counterclaims (County Court) …………………...…………………..…...75
5. Order on Plaintiff’s Plea to the Jurisdiction and Motion to Dismiss and on Defendants’ Motion for Severance and to Consolidate….........…..............81
6. Texas Rule of Civil Procedure 574a (Repealed)…………………...……...84
7. Texas Civil Practice and Remedies Code §16.064…………………..........86
8. Deceptive Trade Practices Act §17.46(b)(23)……………………………..88
9. Texas Finance Code Ann. §392.304(a)(19)……………………………….90
10. Opinion – Cause No. 14-14-00048-CV; Jamie Genender and Critter Stuff, LLC v. USA Store Fixtures, LLC….……………………………………...92
11. Plaintiff’s Original Petition (JP Court)…………………………………..110
v 12. Defendant’s First Amended Answer and Original Counterclaim (County Court)…………………………………………………………………….112
13. Defendant’s Answer (Justice Court and County Court) ………………...120
14. Judgment for Defendant Before the Court (Justice Court)………………122
15. Plaintiff USA Store Fixture’s Amended Original Petition (County Court)………………………………………………………………….…124
16. Letter of Appeal (Justice Court to County Court)………………………..130
17. Video Exhibit introduced in CC…………………………………………132
vi INDEX OF AUTHORITIES
Cases
Adedipe v. Guardian Transfer & Storage, Inc., 14-10-00752-CV, 2011 WL 61862 (Tex. App.—Houston [14th Dist.] Jan. 6, 2011, no pet., not designated for publication)……………………………………………………………………….23
Alaniz v. Hoyt, 105 S.W.3d 330 (Tex. App. — Corpus Christi 2003, no pet.)……9
Ali v. State, 742 S.W.2d 749 (Tex. App.— Dallas 1987, writ ref'd)……………..49
Almanza v. Navar, 225 S.W.3d 14 (Tex. App. — El Paso 2005, no pet.)…….….52
Amberboy v. Societe de Banque Privee, 831 S.W.2d 793 (Tex. 1992)….........…24
American Industries Live Ins. Co. v. Ruvalcaba, 64 S.W.3d 126 (Tex. App. — Houston [14th Dist.] 2001 pet. denied)……………………………...…………...50
Ayre v. J.D. Bucky Allshouse, P.C., 942 S.W.2d 24 (Tex. App.— Houston [14th Dist.] 1996), writ denied)…………………………….………………………..…31
Barnes v. Bituminous Cas. Corp., 495 S.W.2d 5 (Tex. App. — Amarillo 1973, writ ref'd n.r.e..)………………………………………………………………….20
Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165 (Tex. App. — Houston [1st Dist.] 2012, pet. denied)……………………………………………...………31, 33
Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627 (Tex. 1992)………………………………………………………………………….29, 30
Beathard Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426 (Tex. App.—Texarkana 2002, no pet.)……………………………………………….26
Bhalli v. Methodist Hosp., 896 S.W.2d 207 (Tex. App. — Houston [1st Dist.] 1995,writ denied)………………………………………………………………11
Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816 (Tex.1984)……………30, 31
Bracken v. Wells Fargo Bank, N.A., 2014 WL 31778 (E.D. Tex. 2014) ………..41 vii Brown v. Fullenweider, 135 S.W.3d 340, 342 (Tex. App. — Texarkana 2004, pet. denied)…………………………………………………………………………...15
Burford v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex. Civ. App.—Austin 1944), writ refused W.O.M. (Apr. 25, 1945)…………………………………………………19
Burnett v. New York Central Railroad Co., 380 U.S. 424 (1965)…………...…18
Burton Constru. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598 (Tex. 1954)………………………………………………………………………....43, 53
Carlisle v. J Weingarten, Inc.,137 S.W.2d 1073 (Tex. 1941)…………………..50
Carter v. Charles, 853 S.W.2d 667, 672 (Tex. App. — Houston [14th Dist.] 1993, no writ)…………………………………………………………………………...31
Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986)………………….…….32
Century 21 Page One Realty v. Naghad, 760 S.W.2d 305 (Tex. App. — Texarkana 1988, no writ)…………………………………………………….….47
Chacon v. Andrews Distrib. Co. Ltd., 295 S.W.3d 715 (Tex. App. — Corpus Christi 2009, pet. denied)…………………………………...…………..…9, 15, 16
Champion v. Vincent, 20 Tex. 811 (1858)………………………………………45
City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979)……………………………………………………………………..…11
Clary Corp. v. Smith, 949 S.W.2d 452 (Tex. App. — Fort Worth 1997, pet. denied)………………………………………………………………………16, 22
Clayton v. Richards, 47 S.W.3d 149 (Tex. App. — Texarkana 2001, pet. denied)……………………………………………………………….….44, 47, 49
Culbertson v. Tisdale, 01-97-01020-CV, 1999 WL 82612 (Tex. App. — Houston [1st Dist.] Feb. 4, 1999, no pet.)………………………………………………...33
Davis v. Wells Fargo Bank, N.A., 976 F. Supp. 2d 870 (S.D. Tex. 2013) on viii reconsideration, 6:11-CV-00047, 2014 WL 585403 (S.D. Tex. Feb. 14, 2014)…………………………………………………………………………….40
El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362 (Tex.1993)…………..31
Elec. Data Sys. Corp. v. Tyson, 862 S.W.2d 728 (Tex. App. — Dallas 1993, no writ)………………………………………………………………………………41
Fenno v. Sam Reece Air Conditioning & Heating, Inc., 572 S.W.2d 810 (Tex. App.—Houston [14th Dist.] 1978, no writ)…………………………………..…20
First Bank of Deer Park v. Harris County, 804 S.W.2d 588, 593 (Tex. App.— Houston [1st Dist.] 1991, no writ)………………………………………………..29
Ford v. City State Bank of Palacios, 44 S.W.3d 121 (Tex. App. — Corpus Christi 2001, no pet.)…………………………………………………………………….38
French v. Gill, 252 S.W.3d 748 (Tex. App. — Texarkana 2008, pet. denied)……………………………………………………………………………16
Garza v. Bancorp Group, Inc., 955 F. Supp. 68 (S.D. Tex. 1996)……………..38
Gen. Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827 (Tex. App. — Dallas 2000, no pet.)………………………………………………………….....45
Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571 (Tex.1975)…………32
Getty Oil v. Insurance Co. of N. America, 845 S.W.2d 794 (Tex.1992)……….30
Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970)…………10, 11
Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965)……………………………………………………………………….10
Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645 (5th Cir. 1983)………18, 19
Hatmaker v. Farmers Texas County Mut. Ins. Co., 14-98-00552-CV, 1999 WL 459788 (Tex. App.—Houston [14th Dist.] July 8, 1999, no pet., not designated for publication)……………………………………………………………………….20
ix Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191, 195 (Tex. App.—Dallas 2000, pet. dism'd w.o.j.)………………………………………………………….31
Henry v. Williams, 132 S.W.2d 633 (Tex. App. — Beaumont 1939, no writ)….45
Hotvedt v. Schlumberger Ltd. (N.V.), 914 F.2d 79 (5th Cir. 1990), opinion withdrawn and superseded on reh'g, 942 F.2d 294 (5th Cir. 1991)………….16, 23
Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78 (Tex. 2008)…….……28
Jeanes v. Henderson, 688 S.W.2d 100 (Tex.1985)………………………………30
Long Island Trust Co. v. Dicker, 659 F.2d 641 (5th Cir.1981)…………………..18
Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901 (Tex. App. — Houston [14th Dist.] 2009, no pet.)………………………………………………51, 52, 53
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex.1993)………26
McDaniel Bros. v. Wilson, 70 S.W.2d 618 (Tex. App. — Beaumont 1934, writ ref'd)……………………………………………………………………………..45
McNeil Interests, Inc. v. Quisenberry, 407 S.W.3d 381 (Tex. App. — Houston [14th Dist.] 2013, no pet.)………………………………………………………..34
Meyers v. Ford Motor Credit Co., 619 S.W.2d 572 (Tex. App. — Houston [14th Dist.] 1981, no writ)………………………………………………………….….45
Monroe v. Frank, 936 S.W.2d 654 (Tex. App. — Dallas 1996, no writ)............................................................................................................37, 40, 41
Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103 (Tex. App. — El Paso 1997, writ denied)………………………………………………………………………51
Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984)………………………..9, 10
Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546 (Tex. 1985)……………9, 10
Olivier v. Snowden, 426 S.W.2d 545 (Tex. 1968)………………………………50
x Oncor Elec. Delivery Co., LLC v. Murillo, 01-10-01123-CV, 2013 WL 5372544 (Tex. App. Sept. 26, 2013)……………………………………………………….53
Phillips v. Allums, 882 S.W.2d 71, 74 (Tex. App. — Houston [14th Dist.] 1994, writ denied)………………………………………………………………………30
Priddy v. Bus. Men's Oil Co., 241 S.W. 770, 773 (Tex. Civ. App.—Amarillo 1922), writ granted (Oct. 4, 1922), aff'd, 250 S.W. 156 (Tex. Comm'n App. 1923)……………………………………………………………………………24
Prof'l Sec. Patrol v. Perez, 01-12-00506-CV, 2013 WL 4478020 (Tex. App. — Houston [1st Dist.] Aug. 20, 2013, no pet.)……………………………………..48
Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003)………10, 39
Renfro Drug Co. v. Lewis, 235 S.W.2d 609 (Tex. 1951)………………………..50
Rowland v. City of Corpus Christi, 620 S.W.2d 930 (Tex. App. — Corpus Christi 1981, writ refd n.r.e.)…………………………………………………………….51
Richmond Condos. v. Skipworth Commerical Plumbing, Inc., 245 S.W.3d 646 (Tex. App. — Fort Worth 2008, pet. denied)…………………………………..48
Rosas v. Buddie's Food Store, 518 S.W.2d 534 (Tex. 1975)…………………….50
Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983)……………………………………21
Smith v. Huizar, 1860 WL 5812 (Tex. 1860)……………………………………46
Stanley v. Hicks, 272 S.W.2d 917 (Tex. App. — Waco 1954, no writ)………..23
State Farm Fire and Casualty Co. v. Gross, 818 S.W.2d 908 (Tex. App. — Austin 1991, no writ)……………………………………………………………………41
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004)……….9
Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314 (Tex.2002)………………….15
Tex. Water Rights Comm'n v. Crow Iron Works, 582 S.W.2d 768 (Tex.1979)…28
xi Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50 (Tex.1970)…………..11
Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819 (Tex.1997)……………..45
Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex. App.—Austin 1990), writ granted (Dec. 19, 1990), rev'd, 855 S.W.2d 619 (Tex. 1993)……………………25
United Food & Commercial Workers Intern. Union v. Wal-Mart Stores, Inc., 430 S.W.3d 508 (Tex. App. — Fort Worth 2014, no pet.)……………..…………….46
United States v. Torres, 751 F.2d 875 (7th Cir.1984)……………………………49
Vale v. Ryan, 809 S.W.2d 324 (Tex. App. — Austin 1991, no writ)..…19, 20, 24
Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005)………………..10
Valero Mktg. & Supply Co. v. Kalama Int'l, 51 S.W.3d 345 (Tex. App. — Houston [1st Dist.] 2001, no pet.)………………………………………………11
Weaver v. KFC Management, Inc., 750 S.W.2d 24 (Tex. App. — Dallas 1988, writ denied)………………………………………………………………………51
Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589 (Tex.1975)…..9
Winston v. Am. Med. Intern., Inc., 930 S.W.2d 945, 954 (Tex. App.—Houston [1st Dist.] 1996), writ denied (June 12, 1997)………………………………………17
Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex.1988)………………..15
Statutes and Rules
Deceptive Trade Practices Act §17.46(b)(23)………….…1, 6, 26, 34, 35, 36, 38
Federal Debt Collection Protection Act, 15 U.S.C.A. §1692a…………..………40
Tex. Civ. Prac. & Rem. Code §16.064…………1, 5, 7, 12, 13, 14, 15, 16, 17, 22
Texas Disciplinary Rule of Professional Conduct 4.02………………………….48
Tex. Fin. Code Ann. § 392………………………………………..………6, 39, 40 xii Tex. Gov’t. Code Ann. § 312.006(a)……………………………………………37
Tex. Rev. Civ. Stat. Ann. art. 5539………………………………………16, 17, 19
Tex. R. Civ. P. Rule 94…………………………………………….……………15
Tex. R. Civ. P. 574a [repealed]………………………………4, 23, 27, 29, 31, 33
Publications
Handbook of the Law of Torts § 46 (4th ed.1971)………………….……………47
Texas Civil Practice § 17.20 (rev. ed. 1984)……………………………………..20
Restatement (Second) of Torts § 332(1) and (2) (1965)…………………………50
Statute Permitting New Action after Failure of Original Action Commenced within Period of Limitation, as Applicable in Cases Where Original Action Failed for Lack of Jurisdiction, 6 A.L.R.3d 1043 (1966)………………….……………20
Webster’s Third New Int’l Dictionary 1686 (1981)……………………………..37
xiii STATEMENT OF THE CASE
Nature of the Case: This case is an appeal of orders granting summary judgment
against all of Genender’s causes of action including DTPA violations, fraud,
improper debt collection practices under §392 of the Tex. Fin. Code, and trespass.
(CR 144-153)
Trial Court: This is an appeal from the 55th District Court of Harris County.
Some of the DTPA claims involved were originally filed in the Harris County
Civil Court at Law Number 1, which was an appeal from two cases heard by the
Harris County Justice of the Peace, Precinct 3, Place 1.
Procedural Disposition: After a credit card dispute process was decided in the
customers’ favor and the money paid for a shipment of used shelving was
recredited, the merchant, USA Store Fixtures, LLC, brought suit in the Justice of
the Peace Court against the customer Jamie Genender, and her company Critter
Stuff, LLC (“Critter Stuff”). (APP 11) Upon an unsuccessful result, USA appealed
to the County Court at Law. (APP 16) Genender brought counterclaims for
Deceptive Trade Practices Act violations and upon the Court’s determination that
it had no jurisdiction to hear these claims, as not brought in the Justice Court, she
refiled the DTPA claims in District Court. (CR 6-13) Genender amended her
petition to include claims for DTPA violations, Texas Debt Collection Act
violations, trespass, and fraud. (CR 144-153) On June 19, 2014, the Court signed
xiv an interlocutory Order granting summary judgment in favor of USA and
Kirkwood on Genender’s DTPA claims originally brought in the County Court
which accrued before October 4, 2011, based on the affirmative defense of statute
of limitations. (CR 142-143, APP 2) On October 13, 2014, the Court signed a
second summary judgment order in favor of USA and Kirkwood as to all of
Genender’s remaining claims, making the same a Final Judgment in the case. (CR
490-491, APP 3) Genender filed a Motion for New Trial which was denied by
Order on November 24, 2014. (CR 511) Genender timely filed her Notice of
Appeal on January 9, 2015. (CR 515-517)
xv STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument. The facts of this case span two states and
more than three years. The procedural background of this case is also intricate as
it is an appeal from a District Court case involving the same core facts and certain
operative orders as a County Court case, which was itself an appeal from the
Justice Court. The County Court’s judgment has since been reviewed by the
Fourteenth Court of Appeals, which reversed in part. Appellant believes oral
argument may facilitate deliberations for this Court as the factual and procedural
history underlying the issues to be determined is fairly detailed and voluminous
and can be placed in context through oral argument.
xvi ISSUES PRESENTED
1. Whether the County Court’s act of granting USA’s Plea to the Jurisdiction and Motion to Dismiss and severing Appellant’s DTPA claims for lack of jurisdiction pursuant to former TEX. R. CIV. P. 574a (which was applicable at the time on an appeal of a Justice Court decision), was sufficient to invoke the savings provision of Section 16.064 of the Texas Civil Practice and Remedies Code such that the limitations period was tolled and Genender’s refiling of her DTPA claims in the District Court was timely.
2. Whether Genender’s DTPA unconscionability claim related to Appellees’ course of conduct which include causing their agent to trespass upon her property can be dismissed by summary judgment when Appellee’s motion never specifically challenged or raised any affirmative defenses as to that cause of action.
3. Whether the availability of an unplead and unlitigated affirmative defense of fraud to USA’s contract claims in the County Court can operate to bar on res judicata grounds Genender’s fraud claims in the District Court, especially when fraud was not available to Genender as a cause of action in the County Court because of Rule 574(a) TEX. R. CIV. P..
4. Whether Genender had consumer status under the DTPA §17.46(b)(23) because the contract at issue was the extension of credit secured by Genender’s cardholder agreement, made a part of the credit card sale contract with USA, and was sufficiently personal in nature to demonstrate Genender’s standing to bring a cause of action against USA for abuse of a distant forum in violation of DTPA §17.46(b)(23).
5. Whether USA and Kirkwood’s private investigator agent’s use of fraudulent, deceptive and misleading representations for obtaining information concerning Genender were in furtherance of Appellees’ efforts to collect a debt from her and raises a fact issue as to whether violation of the Texas Debt Collection Act occurred.
6. Whether the entry gained to Genender’s premises by deceit interfered with her right of possession of those premises and raises a fact issue as to trespass.
xvii STATEMENT OF FACTS
The District Court in two orders (CR 142-143, APP 2 and CR 490-491, APP
3) which are the subject of this appeal granted final summary judgment as to all of
Genender’s causes of action (CR 146-151) on the following grounds:
1. DTPA claims first filed in County Court. The District Court ruled that
Genender’s DTPA claims which accrued before October 4, 2011 were
barred by limitations. (CR 258) It held specifically that §16.064 of the Civil
Practices and Remedies Code did not apply to toll limitations where a prior
filing was not dismissed but severed, because the court lacked
jurisdiction.(CR 142)
2. DTPA claims first filed in District Court. The District Court dismissed all
of Genender’s remaining DTPA claims in its second summary judgment
order. The Court specifically noted that the transaction at issue in
Genender’s DTPA distant forum abuse claim was not primarily personal as
required for §17.46(b)(23) to apply. The Court gave no reason for dismissing
Genender’s DTPA unconscionability claim which accrued after October 4,
2011. (CR 490)
3. Improper debt collection practices. The Court dismissed Genender’s Texas
Debt Collection Act and DTPA violation claims based upon USA and
Kirkwood’s summary judgment motion alleging that the private investigator
1 they sent to enter Genender’s store and secretly videotape her was not a
“debt collector” as required under the statute. (CR 490 and 263-264)
4. Fraud. Genender’s fraud claims against USA and Kirkwood were dismissed
on res judicata grounds on the argument that fraud could have been, but was
not, asserted as an affirmative defense to USA’s contract claim in its appeal
to the County Court. (CR 490 and 264-272)
5. Trespass. The Court granted a no evidence motion for summary judgment
on the grounds that there was less than a scintilla of evidence that USA and
Kirkwood’s agent’s actions in entering her property on false pretenses,
misrepresenting his intentions and secretly recording Genender interfered
with Genender’s right of possession. (CR 490 and 272)
The underlying facts at issue plead in Genender’s petition are as follows.
Using her personal credit card, Genender purchased used shelving online in
Wisconsin from USA, a Harris County business. (CR 7) USA shipped the shelving
to Genender in Wisconsin, but the quantity and quality of the shelving she received
as well as USA’s response to her concerns were completely unacceptable to
Genender. Genender filed a dispute with her credit card company that resulted in a
chargeback to USA. (CR 8) Instead of abiding by the determination of the credit
card dispute process, USA sued both Genender individually and Critter Stuff, LLC
(a pet store she was opening) in the Harris County Justice of the Peace Court,
2 alleging not only $10,000 in damages, but also claims for fraud, defamation, and
slander. (CR 8, APP 11)
Genender, representing herself pro se, filed an answer denying that she was
indebted to USA in the amount of $10,000 and denying the causes of action
alleged by USA in its petitions. (APP 13)
On May 23, 2012 in Harris County Justice of the Peace court, Precinct 3,
Place 1, the Court entered a take nothing judgment in favor of Genender and her
then co-Defendant Critter Stuff. (CR 8 and APP 14)
USA appealed the result of the JP Court case in a trial de novo to the Harris
County Civil Court at Law ultimately alleging claims of breach of contract,
negligent misrepresentation, fraud, fraud in the inducement, and quantum meruit.
(APP 15)
After the Justice of the Peace Court ruled in Genender’s favor and USA filed
the appeal to the County Court, Genender filed her DTPA counterclaims with the
County Court on July 30, 2012. (APP 12)
On or about October 26, 2012, a private investigator hired by USA and
Kirkwood was able to gain entry to Genender’s pet supply store by falsely
representing himself to be a pet owner in need of supplies. His true purpose was to
take secret video of Genender and her property and to collect information for USA
and Kirkwood to use in their pending lawsuit against Genender, as well as her
3 business Critter Stuff, LLC. Genender was not aware of the true identity and
purpose of the man to whom she had granted entry to her store until USA’s counsel
produced the secret recording on January 9, 2013, two and a half months later. (CR
434-435 and 437-438)
Over a year after Genender filed her Original Petition in County Court, and
with the trial set to begin on August 19, 2013, USA filed a Plea to the Jurisdiction
and Motion to Dismiss Appellant’s Counterclaims on July 25, 2013. (APP 4) This
was two years and two months after the shelving sale in question.
At the hearing on August 6, 2013 on USA’s motion, the County Court
determined that it had no jurisdiction of Genender’s DTPA counterclaims because
they were a new ground of recovery and/or a counterclaim not asserted in the JP
Court and, therefore, not maintainable in the Appeal pursuant to Texas Rule of
Civil Procedure 574a. The Court also found that it lacked jurisdiction over USA’s
newly asserted claim of negligent misrepresentation. (APP 5) Ultimately, the
parties proceeded to trial on the contract claims, while the claims and
counterclaims to which the Plea to the Jurisdiction and Motion to Dismiss were
granted were severed into a new cause in County Court. (APP 5) The Court
declined to entertain Genender’s motion to consolidate the severed causes of action
with the appeal for trial. (CR 216-221)
On October 4, 2013, fifty-three (53) days following the Court’s order,
4 Genender filed her Original Petition with the District Court (CR 6-13) Thereafter,
on October 18, 2013, following the filing of the severed causes of action in a court
of proper jurisdiction (the District Court) within the sixty days allotted by §16.064
Tex. Civ. Prac. & Rem. Code, a joint motion was filed to non-suit the causes of
action that were severed because of the County Court’s ruling that it lacked
jurisdiction in the action in which the claims were first filed. (CR 214-215)
At the end of the trial in the County Court on the parties’ breach of contract
claims, the jury found in favor of USA and awarded a judgment for damages in the
amount of $2,303.42 plus attorneys’ fees. (CR 64-66) Genender appealed to the
Fourteenth Court of Appeals (Cause No. 14-14-00048-CV). The Fourteenth Court
of Appeals affirmed the judgment as to actual damages, but reversed the award of
attorneys fees. (APP 10)
When Genender refiled the claims the County Court had severed for lack of
jurisdiction, she added Kirkwood, the owner and prime actor of USA, as a
defendant; and she added a claim for trespass and a DTPA claim for the
unconscionable actions and/or course of action taken by USA and Kirkwood which
resulted in and ratified their agent’s misrepresentations used to gain entry to
Genender’s property and secretly film her and her premises for use in their lawsuit
against her. Genender later amended her District Court petition to include a claim
against USA and Kirkwood for their trespass as an improper debt collection
5 practice in violation of §392.304(19) of the Texas Finance Code and the DTPA.
(CR 8-11, 16-20) Genender also added a claim under DTPA §17.46(b)(23) for
USA and Kirkwood’s actions in filing suit against her based on contract in Harris
County (the JP and County Court cases), despite their knowledge that that was not
the county in which she lived or signed the contract. (CR 18) In Plaintiff’s Second
Amended Original Petition, filed July 21, 2014, Genender added claims for fraud
against USA and Kirkwood. (CR 144-153, APP 1)
On June 19, 2014 the Court signed an Order granting Summary Judgment in
favor of Kirkwood/USA on Genender's DTPA claims. (APP 2, CR 142-143) The
Court also noted in that same Order that, "the Plaintiff [Genender] has raised
material issues of fact related to Defendants' alleged trespass on October 26, 2012,"
denying Summary Judgment on that claim. (Id.) The Court clarified its order on
September 8, 2014 when it stated that "its June 19, 2014 Order on Appellees'
Motion for Summary Judgment granted summary judgment only as to those DTPA
claims of Appellant which were originally filed in the County Court and which
accrued before October 4, 2011." (CR 258)
It was following this ruling, on July 21, 2014, that Genender filed her
Second Amended Original Petition, adding a claim of fraud against USA and
Kirkwood. (APP 1, CR-144-153)
6 On October 13, 2014, the Court granted USA and Kirkwood's Second
Motion for Summary Judgment and No Evidence Motion for Summary Judgment
as to all claims, making the same a Final Judgment. (CR 490-491, APP 3)
Appellant timely filed her Motion for New Trial on November 12, 2014 and
her Notice of Appeal on January 9, 2015. (CR 492-500; CR 515-517)
SUMMARY OF ARGUMENT
Genender seeks reversal of two orders by the District Court granting USA
and Kirkwood’s motions for summary judgment, which, together, granted a final
judgment against Genender on all of her causes of action, including: DTPA
misrepresentation and unconscionability violations, fraud, DTPA distant forum
abuse violation, DTPA and Texas Finance Code debt collection violations, and
trespass. The Court erred in granting summary judgment as to Appellant’s pre –
October 4, 2011 DTPA claims originally brought in the County Court because the
statute of limitations for these causes of action was tolled by the “savings clause”
of Section 16.064 of the Texas Civil Practice and Remedies Code, the County
Court having severed that action for lack of jurisdiction.
The District Court erred in granting summary judgment as to Genender’s
fraud cause of action on res judicata grounds, as fraud was neither plead nor
litigated in the County Court. It was neither mandatory that it be litigated nor was
it within the jurisdiction of the County Court to entertain it as a cause of action in
7 the appeal from the JP Court.
The District Court erred in granting summary judgment as to Genender’s
Distant Forum DTPA claim, as the contract on which Genender was sued in a
distant forum was a contract for the extension of credit primarily for her personal
use and Genender, therefore, has standing as a consumer for DTPA distant forum
claim purposes.
The District Court erred in granting summary judgment on Genender’s
claims of unfair debt collection practices as there are ample fact issues regarding
the “debt collector” status of USA, Kirkwood, and their admitted agent who,
uninvited and unsolicited, came on to Genender’s property under false pretenses in
connection with their ulterior purpose of secretly videotaping Appellant and her
personal property to gather information on a consumer for use in litigation
concerning an alleged debt.
The District Court erred in granting a no-evidence summary judgment on
Appellant’s claim of trespass as issues of material fact exist as to the invitee status
of Kirkwood and USA’s agent.
8 APPLICABLE LEGAL STANDARDS
General standard for review of orders granting defendants summary judgment
The standards for reviewing a motion for summary judgment are well
established. As mandated by the Texas Supreme Court, they are:
1. The movant for summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding
summary judgment, evidence favorable to the non-movant will be
taken as true.
3. Every reasonable inference must be indulged in favor of the non-
movant and any doubts resolved in its favor.
Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex.1984); Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589, 592–93 (Tex.1975).
The function of summary judgment is to eliminate patently unmeritorious
claims and defenses, not to deprive litigants of the right to a trial by jury. Chacon
v. Andrews Distrib. Co. Ltd., 295 S.W.3d 715, 721 (Tex. App.—Corpus Christi
2009, pet. denied); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
228 (Tex.2004); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex.App.-Corpus Christi
2003, no pet.).
9 The standard for appellate review of a summary judgment in favor of a
defendant is whether the summary judgment proof establishes, as a matter of law,
that there is no genuine issue of fact as to one or more of the essential elements of
the plaintiff's causes of action. Gibbs v. General Motors Corp., 450 S.W.2d 827,
828 (Tex.1970). In an appeal from a summary judgment, the standard of review
and presumptions favor reversal of the judgment. Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 548–49 (Tex.1985) On appeal, the granting of
a motion for summary judgment is reviewed de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life & Acc. Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). Because evidence that favors the movant
will not be “considered unless it is uncontroverted” and because it is reviewed de
novo, the usual presumption that the judgment was correct does not apply. Great
Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47
(Tex. 1965)
Standard for review of summary judgment based on affirmative defenses of
limitations and res judicata
Where, as here, part of the defendants’ motion for summary judgment is
based on affirmative defenses, the defendants have the burden to prove
conclusively each element of each affirmative defense relied upon, as a matter of
law. Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex.1984); City of
10 Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Gibbs
v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). Unless the movant
conclusively establishes the affirmative defenses, the non-movant plaintiff has no
burden in response to a motion for summary judgment filed on the basis of
affirmative defenses. Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50, 52
(Tex.1970)
Standard of appellate review of no-evidence summary judgment as to trespass
The District Court granted Appellees’ no-evidence motion for summary
judgment as to Appellant’s claim for trespassing. A no-evidence summary
judgment is essentially a pretrial directed verdict, and a reviewing appellate court
applies the same legal sufficiency standard in reviewing a no-evidence summary
judgment as is applied in reviewing a directed verdict. Valero Mktg. & Supply Co.
v. Kalama Int'l, 51 S.W.3d 345, 350 (Tex.App.-Houston [1st Dist.] 2001, no pet.)
Standard for disposing of entire case by summary judgment
Summary judgment for a defendant that disposes of the entire case is proper
only if, as a matter of law, the plaintiff could not have succeeded upon any of the
theories in its petition. Bhalli v. Methodist Hosp., 896 S.W.2d 207, 209
(Tex.App.—Houston [1st Dist.] 1995, writ denied).
11 ARGUMENT
I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO APPELLANT’S DTPA CLAIMS ORIGINALLY FILED IN COUNTY COURT AS §16.064 TEX. CIV. PRAC. & REM. CODE APPLIED AND TOLLED THE APPLICABLE LIMITATION PERIOD
As noted above, Genender successfully defended herself from USA’s claims
in Justice of the Peace Court, USA appealed to the County Court. (CR 8 and APP
14) Genender filed counter claims for USA’s DTPA violations. (APP 12) Upon the
County Court’s determination that it did not have jurisdiction to hear these counter
claims and declined to consolidate the severed claims with the appeal for trial,
Genender refiled them in District Court. (CR 6-13) The parties non-suited the case
created by the County Court’s decision to sever rather than dismiss the claims it
did not have jurisdiction to hear. (CR 214-215)
The District Court granted USA and Kirkwood’s motion for summary
judgment on limitations grounds as Genender’s pre – October 4, 2011 DTPA
causes of action originally filed in County Court accrued more than two years
before they were filed in District Court. (CR 142-143 and 258)
A. Summary of the Argument
To summarize the arguments below, Section 16.064 of the Texas Civil
Practice and Remedies Code (§16.064 Tex. Civ. Prac. & Rem. Code), the “savings
statute”, preserves causes of action which are dismissed for lack of jurisdiction if
12 they are refiled in a court of proper jurisdiction within 60 days of the date of
dismissal. In support of its ruling that §16.064 Tex. Civ. Prac. & Rem. Code did
not apply to toll the statute of limitations on Genender’s pre October 4, 2011
DTPA claims, the District Court specifically cited Genender’s voluntary non-suit
of the case created when the County Court determined that it did not have
jurisdiction to hear her DTPA counterclaims and severed them into a new case.
(CR 142) As discussed below, the non-suit of the severed County Court case had
no operative effect in this circumstance as Genender had already filed her suit in
District Court (a court of proper jurisdiction) within the period provided by the
savings statute.
The pre October 4, 2011 DTPA claims filed in County Court accrued more
than two years before the County Court granted USA’s motion to dismiss on
jurisdictional grounds and thus, more than two years before Genender refiled them
in District Court. However, §16.064 Tex. Civ. Prac. & Rem. Code provides a
tolling provision for litigation initially filed in a court without jurisdiction, if suit is
filed in a court of proper jurisdiction within 60 days of the dismissal, as was done
in the case at hand. With regard to this set of facts, it was the action of the County
Court in ruling that it had no jurisdiction of Appellant’s DTPA claims in the action
in which they were first filed that triggered Appellant’s right to the relief afforded
by §16.064 Tex. Civ. Prac. & Rem. Code. Appellant timely availed herself of that
13 relief by filing suit in the District Court (CR 6); and the subsequent nonsuit of the
new County Court case, created by the Court’s jurisdictional severance had no
legal effect because suit was properly and timely filed in a court of proper
jurisdiction, the District Court, and would have had to be either dismissed by the
Plaintiff or by the Court in order for the District Court to proceed, as the same
causes of action may not be maintained simultaneously in different courts.
The District Court’s interpretation of the savings statute was too narrow and
is contrary to a wealth of case law supporting a liberal interpretation in support of
its objective, granting relief from limitations. Further, the savings statute case law
prescribes that courts applying the savings statute use a liberal standard for what
constitutes dismissal. Under such a liberal standard, and in light of the open courts
doctrine discussed below, the courts’ common law practice of severing rather than
dismissing claims they did not have jurisdiction to hear on appeal would still
satisfy the dismissal requirement for savings statute application purposes.
Finally, the District Court’s ruling ran contrary to a strict reading of the
statutory language of §16.064 Tex. Civ. Prac. & Rem. Code which supports the
proposition that only what happens in the direct proceeding is significant, and the
case law which holds that a subsequent non-suit has no effect on the application of
the savings statute.
14 B. Interpretation of §16.064 TEX. CIV. PRAC. & REM. CODE, the savings statute, its predecessor, and the purpose of the limitations affirmative defense.
The applicability of §16.064 Tex. Civ. Prac. & Rem. Code is a
question of law, which the appellate court reviews de novo. Chacon v. Andrews
Distrib. Co. Ltd., 295 S.W.3d 715, 721 (Tex. App.— Corpus Christi 2009, pet.
denied); Brown v. Fullenweider, 135 S.W.3d 340, 342 (Tex.App. — Texarkana
2004, pet. denied) (citing Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318
(Tex.2002)). Limitations is an affirmative defense, and a defendant asserting
limitations must plead, prove, and secure findings on that issue. Tex. R. Civ. P. 94;
Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988).
The period between the date of filing an action in a trial court and the date of
a second filing of the same action in a different court suspends the running of the
applicable statute of limitations for the period if:
(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and (2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction. Tex. Civ. Prac. & Rem. Code §16.064.
Genender filed the District Court suit within 60 days of the date the Court
granted USA’s Motion to Dismiss on jurisdiction grounds and severed the case. As
a result, the tolling provision applied and the statute of limitations had not expired. 15 Courts liberally construe the savings statute so that the tolling of limitations
can be applied under a variety of circumstances. Chacon v. Andrews Distrib. Co.,
Ltd., 295 S.W.3d 715, 722 (Tex.App. – Corpus Christi 2009, pet. denied). Case
law also notes that the statute is to be liberally construed to effectuate its objective
- relief from penalty of limitations bar to one who mistakenly brought his action in
the wrong court. French v. Gill, 252 S.W.3d 748, 750 (Tex. App. – Texarkana
2008, pet. denied) citing Clary Corp. v. Smith, 949 S.W.2d 452, 461 (Tex. App. –
Fort Worth 1997, pet. denied)
The Texas Legislature codified Tex. Rev. Civ. Stat. Ann. art. 5539 (Vernon
1958) as Tex. Civ. Prac. & Rem. Code §16.064 (Vernon 1986). After careful
consideration of both, the Fifth Circuit determined that “the legislature merely
intended a codification of the statute. In others words, there is no substantive
difference between the old statute and the new.” Hotvedt v. Schlumberger Ltd.
(N.V.), 914 F.2d 79, 82 (footnote 11) (5th Cir. 1990), opinion withdrawn and
superseded on reh'g, 942 F.2d 294 (5th Cir. 1991)
Analysis of the predecessor statute, Art. 5539a Tex. Rev. Civ. Stat. Ann., is,
therefore, useful in determining the application of Tex. Civ. Prac. & Rem. Code
§16.064.
Tex. Rev. Civ. Stat. Ann. art. 5539a provides:
When an action shall be dismissed in any way, or a judgment therein shall be set aside or annulled in a direct proceeding, because of a want 16 of jurisdiction of the Trial Court in which such action shall have been filed, and within sixty (60) days after such dismissal or other disposition becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second Court shall not be counted as a part of the period of limitation unless the opposite party shall in abatement show the first filing to have been in intentional disregard of jurisdiction. Tex. Rev. Civ. Stat. Ann. art. 5539a (Vernon 1958)
A plain reading of Article 5539a’s language concerning the dismissal,
“…dismissed in any way, or a judgment therein shall be set aside or annulled in a
direct proceeding, because of want of jurisdiction of the Trial Court in which such
action shall have been filed… after such dismissal or other disposition” supports
the proposition that Section 16.064 and its predecessor require lack of jurisdiction
in the direct proceeding as the primary issue and that dismissal is to be liberally
interpreted. Houston’s First Court of Appeals urged reliance on the “many cases
mandating a liberal construction of the [savings] statute.” Winston v. Am. Med.
Intern., Inc., 930 S.W.2d 945, 954 (Tex. App.—Houston [1st Dist.] 1996), writ
denied (June 12, 1997)
Granting the summary judgment relief requested by USA and Kirkwood,
despite the applicability of TEX. CIV. PRAC. & REM. CODE §16.064 does not
further the policy goals of limitations. In a Fifth Circuit case deciding whether Tex.
Rev. Civ. Stat. Ann. art. 5539a [the statutory predecessor to Tex. Civ. Prac. &
Rem. Code §16.064] would apply when the first suit was in a court of a different
17 state, the Court stated:
“Finally, we note that Dicker's suggested rule would not further the policies that ordinarily provide justification for the results otherwise created by statutes of limitations. Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitations and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965)…. [where, as here, a defendant has notice] the defendant has no one but himself to blame if evidence is lost, memories fade, and witnesses disappear.” Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645, 650 (5th Cir. 1983); Long Island Trust Co. v. Dicker, 659 F.2d 641, 647 (5th Cir.1981).
Appellees had notice of Genender’s DTPA claims from the time they were
originally filed in County Court, July 30, 2012. Further, Appellees were given
notice that Genender had refiled them in District Court before the parties moved
jointly to non-suit the case created by the County Court’s severance. There is no
question that Appellees had sufficient notice of Genender’s DTPA claims to
preserve evidence and witnesses for their defense and that application of
limitations under these circumstances would not promote their purpose.
18 C. Savings statute’s liberal interpretation of what constitutes dismissal and the courts’ common law severance procedure tantamount to dismissal.
Beyond being liberally interpreted in general to effectuate its purpose, under
Texas law, the savings statute is also to be liberally interpreted with respect to what
constitutes a dismissal. Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645, 651
(5th Cir. 1983); Burford v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex. Civ. App.—
Austin 1944), writ refused W.O.M. (Apr. 25, 1945) (“[I]t is clear that the Act
[5539a] was intended to cover every case where the effect of the final judgment or
order of the first court was tantamount to a dismissal because the action was
mistakenly but in good faith brought in the wrong court. In other words, the effect
of the court judgment or order and not its form or the name by which it is called is
the determining factor.”)
In a case determining that a Federal court’s refusal to exercise jurisdiction
was tantamount to a dismissal for lack of jurisdiction necessary to invoke the
savings statute, the Austin Court of Appeals held that “the effect of the order as
one of dismissal for want of jurisdiction cannot be obviated by means of
nomenclature. And this is true in the instant case regardless of the distinction in a
proper case between want of jurisdiction and refusal to exercise it.” Vale v. Ryan,
809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no writ)
The Court further noted that the savings statute applies “whether the
19 dismissal is one for want of jurisdiction of the subject matter or one based upon the
impropriety of exercising jurisdiction in a particular action.” 4 McDonald, Texas
Civil Practice § 17.20, at 123 (rev. ed. 1984) (emphasis added); see also
Annotation, Statute Permitting New Action after Failure of Original Action
Commenced within Period of Limitation, as Applicable in Cases Where Original
Action Failed for Lack of Jurisdiction, 6 A.L.R.3d 1043 (1966).
Thus, a severance for lack of jurisdiction, which is analogous to a dismissal
for lack of jurisdiction, despite its different nomenclature, makes the tolling
provision applicable. Further, the County Court’s declining to entertain
Defendants’ Motion for Joint Trial after severance (CR 216-221) was tantamount
to a dismissal “based upon the impropriety of exercising jurisdiction in a particular
matter.” Vale v. Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no writ).
It is well settled that when a court lacks jurisdiction in a matter, the only
valid action it may take is dismissal. (See e.g., Fenno v. Sam Reece Air
Conditioning & Heating, Inc., 572 S.W.2d 810, 811 (Tex. App. — Houston [14th
Dist.] 1978, no writ); Barnes v. Bituminous Cas. Corp., 495 S.W.2d 5, 11 Tex. Civ.
App.—Amarillo 1973, writ ref'd n.r.e..) Thus, for many years, when a counterclaim
was found to be inappropriately filed in a JP Appeal, the appropriate action to be
taken by the Court was dismissal. See, e.g., Hatmaker v. Farmers Texas County
Mut. Ins. Co., 14-98-00552-CV, 1999 WL 459788 (Tex. App.—Houston [14th
20 Dist.] July 8, 1999, no pet., not designated for publication) (“When faced with this
situation, the proper procedure is to dismiss any added claims over which the court
lacks jurisdiction.”) Recognizing, however, that the defendant had an absolute right
to file its counterclaim as an original action, some courts determined that the
“better practice” for judicial economy upon dismissal from the action in which it
was first filed, was to sever it into a new case to be dealt with separately.
However, what may be procedurally convenient and economical cannot act
to deprive the counterclaimant of her due process and open courts rights to select
the forum of proper jurisdiction in which she will proceed. Sax v. Votteler, 648
S.W.2d 661, 665 (Tex. 1983) (The test for an open courts-due process violation is
whether the statute unreasonably abridges a justiciable right to obtain redress for
injuries caused by the wrongful acts of others.) It was these rights that Genender
was exercising in filing suit in the District Court. The County Court’s choice that
the action be refiled in County Court cannot bind the claimant to that forum when
others are available.
D. The County Court’s lack of jurisdiction in a direct proceeding entitled Genender to the protection of the savings statute and her voluntary non-suit of the severed case had no effect on its application.
There is no question that the County Court ruled it lacked jurisdiction of the
claims in the action where it was first filed and there is no question that Appellant
commenced her action in a different court, the District Court – a court of proper 21 jurisdiction – within sixty days of the Court’s ruling.
The pertinent portion of subsection (a)(1) is that the action must be
dismissed by the trial court where the action was first filed [and] in a direct
proceeding. (Emphasis added). Only the Court’s actions in the direct proceeding
are to be considered for application of this section. The non-suit of Appellant’s
severed claims in County Court occurred in a separate proceeding and can have no
bearing on the applicability of section 16.064. The trial court where the action was
first filed had already determined that it did not have jurisdiction to hear the claims,
ordered them refiled in a separate case in the County Court before the claims were
non-suited, and did not grant Genender’s motion to consolidate them for trial. “The
plain language of both section 16.064 (‘second filing ... in a different court’) and
its predecessor (‘commencement in the second court’) indicates that the legislature
intended the saving statute to apply only to cases refiled in a different court after
dismissal, not in the same court.” Clary Corp. v. Smith, 949 S.W.2d 452, 460 (Tex.
App. – Fort Worth 1997, pet. denied.)
As discussed below, so long as the claimant commences the action in a
different court of proper jurisdiction not later than 60 days after the date the
dismissal or other disposition becomes final, the claimant would be free to file,
non-suit, and refile an action.
The grounds for the Court’s Order on Appellees’ Motion for Summary
22 Judgment state that, because Appellant filed a voluntary nonsuit, the case did not
qualify as one dismissed because the court lacked jurisdiction. (CR 142-143)
However, based upon the County Court’s determination that Appellant’s pre
October 4, 2011 DTPA claims had not been raised in the JP Court and its
application of Tex. R. Civ. P. 574a [repealed], the County Court did not have
jurisdiction over the claims in the action in which it was first filed, the JP Appeal.
Adedipe v. Guardian Transfer & Storage, Inc., 14-10-00752-CV, 2011 WL 61862
(Tex. App.—Houston [14th Dist.] Jan. 6, 2011, no pet., not designated for
publication) citing Stanley v. Hicks, 272 S.W.2d 917, 919 (Tex.Civ.App.-Waco
1954, no writ). The Fifth Circuit Court of Appeals addressed the application of the
Texas saving statute to such a situation in a case in which a claim was filed in
California and stayed for forum non conveniens, then non-suited and refiled in
Texas state court. Hotvedt v. Schlumberger Ltd. (N.V.), 914 F.2d 79 (5th Cir. 1990)
(Opinion withdrawn and superseded on reh'g on other grounds, 942 F.2d 294 (5th
Cir. 1991).
The Fifth Circuit initially held [although ultimately it re-determined the case
on California state law grounds] that the California Court’s ruling of forum non
conveniens was tantamount to a finding of no jurisdiction which it held was the
operative act for application of the Texas savings statute.1 It went on to rule that
1 This is similar to the Austin Court of Appeals ruling discussed earlier, in which a court’s decision not to exercise jurisdiction was held to be effectively a dismissal for lack of 23 Plaintiff’s later nonsuit of the California action had no bearing on the application
of the saving statute. Id at 82.
The Fifth Circuit’s original opinion as it applied the Texas saving statute
was cited with approval in a Texas Supreme Court concurring opinion. (See
concurring and dissenting opinion in Amberboy v. Societe de Banque Privee, 831
S.W.2d 793, 800 (Tex. 1992).) The “issue presented [application of the saving
statute when the trial court ruling amounted to dismissal] had already been
answered correctly based on Texas law” in the Fifth Circuit’s first opinion. Id at
800, Footnote 8.
Further, Genender had refiled her claims in the District Court before moving
jointly to with Appellees to nonsuit the new County Court suit. The new case
created by the County Court would have had to be either dismissed by the Plaintiff
or by the Court in order for the District Court to proceed, as the same causes of
action may not be maintained simultaneously in different courts. Priddy v. Bus.
Men's Oil Co., 241 S.W. 770, 773 (Tex. Civ. App.—Amarillo 1922), writ granted
(Oct. 4, 1922), aff'd, 250 S.W. 156 (Tex. Comm'n App. 1923) (“If the two suits
[between the same parties and for the same cause of action] had been still pending
at the same time [a] plea in abatement was filed that would have required the party
[maintaining the same cause of action in two suits] to dismiss one and pay the cost
jurisdiction in applying the Texas saving statute. See Vale v. Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no writ). 24 before proceeding with the other.”)
II. THE DISTRICT COURT ERRED IN DISMISSING GENENDER’S DTPA UNCONSCIONABILITY CLAIM FOR APPELLEES’ COURSE OF CONDUCT INCLUDING THEIR AGENT’S TRESPASS AS THERE IS NO SPECIFIC SUMMARY JUDGMENT EVIDENCE OR EVEN ARGUMENT OFFERED BY APPELLEES ON THIS CLAIM.
USA and Kirkwood failed to address or raise any arguments supporting the
dismissal of Genender’s DTPA cause of action for their unconscionable acts or
course of action through and including causing their agent to trespass upon
Genender’s property on or about October 26, 2012. In analyzing an
unconscionability claim under Texas law, the courts have recognized that no single
incident can fairly be identified as the cause of harm, but rather the cumulative
effect of the continuous chain of tortious activity must be analyzed, and as such
apply the tolling concept of continuing tort to bring the entire course of conduct
within the statute of limitations if any part of it is. Twyman v. Twyman, 790 S.W.2d
819, 821 (Tex. App.—Austin 1990), writ granted (Dec. 19, 1990), rev'd, 855
S.W.2d 619 (Tex. 1993)
Both of the summary judgment orders signed by the District Court use broad
language which seems to encapsulate and dismiss all of Genender’s DTPA causes
of action, however, the Court clarified its first order to state that only those claims
which were originally filed in County Court and which accrued before October 4,
2011 were barred by limitations and dismissed under that order. 25 In their next motion for summary judgment, USA and Kirkwood alleged
specific affirmative defenses and bars to recovery against Genender’s other
remaining causes of action, with the sole exception of her DTPA unconscionability
claim. Despite Appellees’ failure to specifically raise summary judgment against or
address this claim, the District Court’s second summary judgment order dismissed
“all of Plaintiff’s claims for violations of the Deceptive Trade Practices Act.” The
Court hand wrote its specific holding as to Genender’s DTPA claim under
§17.46(b)(23) and the summary judgment arguments raised against it but neglected
to provide any rational for dismissing Genender’s DTPA unconsionability claim. It
is well settled that a trial court cannot grant summary judgment on a ground not
asserted in the motion. Beathard Joint Venture v. W. Houston Airport Corp., 72
S.W.3d 426, 436 (Tex. App.—Texarkana 2002, no pet.); citing McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).
III. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S FRAUD CLAIM AS RES JUDICATA DOES NOT PRECLUDE A CAUSE OF ACTION IN ONE CASE BECAUSE IT COULD HAVE BEEN ARGUED AS AN AFFIRMATIVE DEFENSE IN ANOTHER.
The District Court erroneously granted summary judgment as to Appellant’s
fraud claims based upon USA and Kirkwood’s affirmative defense of res judicata.
(CR 490-491) The crux of Appellees’ argument to the District Court was that
26 Genender’s claim for fraud was precluded by the availability of fraud as an
affirmative defense to USA’s contract claim in County Court, an affirmative
defense which was neither asserted nor litigated by Genender.2 There is no
statutory or case law support cited by USA and Kirkwood for an application of res
judicata under these circumstances. The ruling is not supported by the essential
elements required for either claim preclusion or collateral estoppel. With respect to
claim preclusion, Larry Kirkwood was not a party to the JP Court case or the
County Court appeal; and, through the operation of Rule 574a [repealed], the
County Court did not have jurisdiction to hear Appellant’s fraud claims against
Larry Kirkwood or USA.
Finally, the District Court’s grant of summary judgment as to Appellant’s
fraud claim had the effect of granting collateral estoppel or issue preclusion rather
than res judicata or claim preclusion, even though Appellees pleaded for relief on
res judicata grounds and failed to meet the burden for either claim or issue
preclusion.
B. USA and Kirkwood’s proposition that not asserting an affirmative defense of fraud to a contract action forecloses a cause of action for fraud in a subsequent suit due to res judicata (claim preclusion) is not supported by the case law
For res judicata (claim preclusion) to apply, the following elements must be
present: (1) a prior final judgment on the merits by a court of competent
2 Of note is that because of Rule 574a Tex. R. Civ. P, Genender was precluded from pursuing fraud as a cause of action in the County Court appeal. 27 jurisdiction; (2) the same parties or those in privity with them; and (3) a second
action based on the same claims as were raised or could have been raised in the
first action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex.
2008) “Thus, a party may not pursue a claim determined by the final judgment of a
court of competent jurisdiction in a prior suit as a ground of recovery in a later suit
against the same parties.” Id at 86; Tex. Water Rights Comm'n v. Crow Iron Works,
582 S.W.2d 768, 771–72 (Tex.1979).
Counsel for Genender have found no examples in case law or statutes which
support USA and Kirkwood’s argument that a defendant in a suit on a contract
claim must assert fraud as an affirmative defense or waive her right to sue for fraud
in a separate suit.
The cases cited by USA and Kirkwood to the trial court, Igal and Barr, are
inapposite. In the Igal case, the Texas Supreme Court considered for the first time
whether res judicata should be applied to final decisions by the Texas Workforce
Commission. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex.
2008). Ultimately, the Court concluded that a final administrative order has
preclusive effect in a subsequent lawsuit when a claimant under the Payday Law
elected to utilize the administrative process rather than exercise a right of relief
under the common law. Id. at 88. The Barr case cited by Appellees held that under
res judicata analysis, a subsequent suit will be barred if it arises out of the same
28 subject matter of a previous suit and which through the exercise of diligence, could
have been litigated in a prior suit. Barr v. Resolution Trust Corp. ex rel. Sunbelt
Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (emphasis added). In the Barr case,
the second suit was barred by res judicata where a take nothing judgment was
entered in the first suit on nearly identical allegations. Due to Rule 574a, Genender
could not have reached a final judgment on a fraud cause of action and an
affirmative defense of fraud to a breach of contract claim is not the same as a cause
of action for fraud. First Bank of Deer Park v. Harris County, 804 S.W.2d 588,
593 (Tex. App.—Houston [1st Dist.] 1991, no writ) “To determine if a claim of
fraud is an affirmative defense or a separate cause of action, the Courts look to the
pleadings to see if the party requested affirmative relief for fraud. If the fraud
allegation does not request damages, the fraud claim is an affirmative defense; if
the fraud allegations request damages, fraud is a counterclaim.”
C. USA and Kirkwood’s motion conflates claim preclusion with issue preclusion and meets the statutory burden for neither.
USA and Kirkwood’s motion for summary judgment, upon which the
District Court’s ruling is based, requested relief analogous to collateral estoppel for
its argument that it had met the requirements for res judicata. Under the rule
proposed by USA and Kirkwood, Genender could effectively be barred from all
claims surrounding the same nuclei of facts so long as there was a corresponding
affirmative defense that she did not argue when forced to defend herself in USA’s 29 County Court appeal of its JP Court loss.
The general doctrine of res judicata consists of two principal categories: (1)
res judicata or claim preclusion; and (2) collateral estoppel or issue preclusion.
Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628
(Tex.1992). The doctrines of res judicata (claim preclusion) and collateral estoppel
(issue preclusion) are not the same and may not be interchanged. Bonniwell v.
Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984). In discussing the
confusion over res judicata and collateral estoppel, the Texas Supreme Court states
that the argument that a claimant “should have brought all theories of liability in
one suit, is the defense of claim preclusion,” and that “[c]laim preclusion prevents
splitting a cause of action.” Barr 837 S.W.2d at 629 citing Jeanes v. Henderson,
688 S.W.2d 100, 103 (Tex.1985). An affirmative defense of fraud to a breach of
contract claim is neither a theory of liability nor a cause of action.
Res judicata (claim preclusion) precludes a second action by the parties or
their privies on matters actually litigated and on causes of action or claims that
arise out of the same subject matter and could have been litigated in the first suit.
Getty Oil v. Insurance Co. of N. America, 845 S.W.2d 794, 798 (Tex.1992), On the
other hand, collateral estoppel (issue preclusion) prohibits relitigation of particular
issues already resolved in a prior suit. Barr, 837 S.W.2d at 628; Phillips v. Allums,
882 S.W.2d 71, 74 (Tex.App.—Houston [14th Dist.] 1994, writ denied).
30 To invoke the doctrine of collateral estoppel, a party must establish “(1) the
facts sought to be litigated in the first action were fully and fairly litigated in the
prior action; (2) those facts were essential to the judgment in the first action; and
(3) the parties were cast as adversaries in the first action.” Ayre v. J.D. Bucky
Allshouse, P.C., 942 S.W.2d 24, 27 (Tex. App.—Houston [14th Dist.] 1996, writ
denied); Phillips, 882 S.W.2d at 74 (quoting El Paso Natural Gas Co. v.
Berryman, 858 S.W.2d 362, 364 (Tex.1993)); Carter v. Charles, 853 S.W.2d 667,
672 (Tex.App.—Houston [14th Dist.] 1993, no writ).
Collateral estoppel does not extend to an issue that was previously
determined but unessential to a prior judgment. Barnes v. United Parcel Serv., Inc.,
395 S.W.3d 165, 174 (Tex. App.—Houston [1st Dist.] 2012, pet. denied);
Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818-19 (Tex.1984) (holding
that collateral estoppel did not preclude relitigation of issue that was previously
determined but unessential to prior judgment)
In the case at bar, Rule 574a barred both Jamie Genender and Critter Stuff
from prosecuting a cause of action for fraud against USA in the County Court
appeal, as it was not a claim raised in the JP Court. See Harrill v. A.J.'s Wrecker
Serv., Inc., 27 S.W.3d 191, 195 (Tex. App.—Dallas 2000, pet. dism'd w.o.j.) in
which the Dallas Court of Appeals points out that “even if Harrill's additional
causes of actions were “new grounds of recovery” under rule 574a, Harrill would
31 not have been precluded from bringing these claims in a separate suit in county
court. See tex. Civ. Prac. & Rem.Code Ann. § 31.005 (Vernon 1997) (judgment or
determination of fact or law in justice court proceeding is not res judicata in
proceeding in county court or statutory county court, except that judgment
rendered is binding on the parties thereto as to recovery or denial of recovery)”
Genender’s cause of action for fraud filed in the District Court case was
brought against both USA and Larry Kirkwood. (CR 147) Kirkwood was not a
party to the JP Court trial or the County Court appeal. Appellees argued in their
motion for summary judgment that because Kirkwood was not a party to the
contract, he can only be held liable by piercing the corporate veil. However,
Appellant, in her District Court petition sued Kirkwood individually for fraud, as
well as alleging that he is the alter ego of USA. (CR 144-153)
The alter ego doctrine applies when: (1) there is such a unity between the
corporation and the individual that the separateness of the corporation has ceased;
and (2) the facts are such that holding only the corporation liable would promote
injustice. Castleberry v. Branscum, 721 S.W.2d 270, 278 (Tex. 1986); Gentry v.
Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 (Tex.1975). Here, Kirkwood
has testified under oath that he is the sole owner, its president and only officer, and
even the board of directors of USA Store Fixtures. (CR 423-424) Actions taken by
USA, which were in fact decisions made by Larry Kirkwood, form part of the basis
32 of Appellant’s causes of action. There is evidence that Kirkwood personally
participated in fraudulent misrepresentations to Genender. Kirkwood admitted that
he knew the condition of the shelving sent to Genender. (CR 428:22-25)
Appellant never had an opportunity to have any of her claims against Larry
Kirkwood heard by the jury in the County Court case. Indeed, through the
operation of Rule 574a of the Texas Rules of Civil Procedure [repealed], the
County Court determined that the only claims it had jurisdiction to hear on appeal
were USA’s breach of contract claim and Genender’s counterclaim for the same.
USA asserted in its motion to the District Court that Genender was required
to assert fraud as a defense even though she was unable to seek affirmative relief
on it, which runs counter to concepts of due process. (CR 264) To qualify as a
claim for affirmative relief, a defensive pleading must allege the defendant has a
cause of action, independent of the plaintiff's claim, on which he could recover
benefits, compensation, or relief. Culbertson v. Tisdale, 01-97-01020-CV, 1999
WL 82612 (Tex. App.—Houston [1st Dist.] Feb. 4, 1999, no pet.)
Res judicata does not operate as a bar to litigation when the second claim
could not be raised in the previous litigation. Barnes v. United Parcel Serv., Inc.,
395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
Fundamentally, the application of res judicata to the particular facts of any case
must give assurance that the party to whom the doctrine is applied has had his day
33 in court and, thereby, due process. McNeil Interests, Inc. v. Quisenberry, 407
S.W.3d 381, 387 (Tex. App.—Houston [14th Dist.] 2013, no pet.) Here, there is no
doubt that Genender would not be afforded due process and the purposes of res
judicata would not be served if, to receive compensation or relief for her fraud
cause of action, she were forced to defend a breach of contract case with an
affirmative defense of fraud and win, only to relitigate the claim in a subsequent
suit, this time alleging fraud as a cause of action. USA and Kirkwood’s
formulation of res judicata would require more litigation, not less, and place a
higher burden on anyone seeking recovery under a cause of action with a
corresponding affirmative defense.
IV. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S DTPA DISTANT FORUM ABUSE CLAIM, AS THE CREDIT CARD AGREEMENT - THE TRUE CONTRACT AT ISSUE – WAS ENTERED INTO FOR PRIMARILY PERSONAL REASONS.
The District Court erroneously granted USA and Kirkwood’s motion for
summary judgment on Genender’s claim for distant forum abuse based upon the
Court’s determination that “although Genender was sued in her individual
capacity, [Deceptive Trade Practices Act] §17.46(b)(23) relates to the shelving not
her. The transaction was not primarily personal.” (CR 490-491) The District
Court’s determination, however, focused on the reason for the shelving purchase
itself, when the real contract at issue was the extension of credit for shelving,
34 provided upon Genender’s entering a cardholder agreement, which was the basis
for her credit card company’s rescission of Genender’s payment to USA. USA’s
suit against Genender for breach of contract was specific to the actions taken by
Genender pursuant to her cardholder agreement. Otherwise USA would have had
no basis for suing Genender individually. USA’s suit related to the contract for the
extension of credit between Genender and her credit card company, which
Genender entered into as an individual. (CR 413) (CR 465: 2-7) Further, USA and
Kirkwood were aware that Genender made payment for the shelving with her
personal credit card. (CR 275) (CR 298: 14-22)
DTPA §17.46(b)(23) states that the following is defined as a false,
misleading, or deceptive act or practice for which the DTPA provides a cause of
action:
[F]iling suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use in any county other than in the county in which the defendant resides at the time of the commencement of the action or in the county in which the defendant in fact signed the contract… Deceptive Trade Practices Act §17.46(b)(23)
USA and Kirkwood asserted in their motion for summary judgment that no
issues of material fact exist surrounding the determination that Genender had a
commercial purpose for the shelving rather than intending it for primarily personal,
family, or household use. (CR 263) However, USA and Kirkwood and the District 35 Court disregarded the impact of suit against Genender individually, separate and
apart from the suit against the Critter Stuff, LLC pet store. While the affidavit of
Larry Kirkwood, used as summary judgment evidence by Appellees in support of
this point, acknowledges that he sued Appellant because she “reversed the
charges” on her personal credit card, USA and Kirkwood ignore that it was their
claim that Genender failed to honor her personal credit obligation that was the
basis for the suit, thus placing the cardholder agreement for her personal credit
card at the heart of the litigation as part of the consumer transaction. USA would
have retained Genender’s payment and had no basis for suit in the JP Court but for
the cardholder agreement upon which the charge was reversed. Genender’s act in
obtaining the credit card in her own name is some evidence that the extension of
credit was for primarily personal use, raising a fact issue in the matter. (CR 413)
(CR 465: 2-7) A material fact issue exists as to whether Appellant incurred an
obligation with the primary purpose of personal use, and the District Court erred in
granting summary judgment on Appellant’s DTPA distant forum claim.
In their second motion for summary judgment, USA and Kirkwood cited no
law on this point besides the statute upon which Genender based her claim. There
is very little case law interpreting the “intended primarily for personal, family,
household, or agricultural use” provision of DTPA §17.46(b)(23). The Dallas
Court of Appeals, however, in grappling with the meaning of the identical phrase
36 in a case involving both debt collection activities and whether the plaintiff was
engaged in a consumer transaction when he borrowed money for the bail bond of a
friend, the Court stated the following:
The Act does not define “personal.” Thus, consistent with the purposes of the Act, we must give the term its common meaning. Tex. Gov’t. Code Ann. § 312.006(a); Trinity Universal, 837 S.W.2d at 204. “Personal” is defined as “of or relating to a particular person; affecting one individual or each of many individuals; peculiar or proper to private concerns; not public or general.” Webster’s Third New Int’l Dictionary 1686 (1981). Monroe v. Frank, 936 S.W.2d 654, 660 (Tex.App.—Dallas 1996, no writ)
The Court went on to hold (1) that plaintiff incurred the debt to the bonding
company primarily for personal reasons and, therefore, was a consumer for the
purposes of the Act and (2) that the activities of the bail bonding company
involved debt collection. Monroe at 660. In Monroe, the Court held that the
borrowing of money for the use of another person but for the borrower’s own
reasons did not keep the transaction from being for primarily personal reasons.
Thus, by the same reasoning, the use of the extension of credit to Genender
personally, for her personal expenditures and use on other entities (a pet store and a
volunteer rescue shelter) do not keep that extension of credit from being intended
primarily for Genender’s personal use.
Appellant has found only two cases which expressly consider whether a
37 purchase or extension of credit was intended primarily for personal use for the
purposes of DTPA §17.46(b)(23): Garza v. Bancorp Group, Inc., 955 F. Supp. 68,
72 (S.D. Tex. 1996) and Ford v. City State Bank of Palacios, 44 S.W.3d 121, 135
(Tex. App.—Corpus Christi 2001, no pet.). Both are distinguishable on their facts
from the situation presented in our case.
In Garza, the District Court for the Southern District of Texas in Laredo
ruled that security camera equipment which was leased under an agreement which
specifically stated it was not for personal, family, or household use and which was
installed in two family owned business locations were not intended primarily for
personal, family, household, or agricultural use. Garza v. Bancorp Group, Inc., 955
F. Supp. 68, 72 (S.D. Tex. - Laredo 1996) The Ford case, decided by the Corpus
Christi Court of Appeals, held that two loans with commercial security agreements
and another taken for the purpose of securing income for plaintiff’s family farming
enterprise were for commercial rather than personal use. Each of these cases is
clearly distinguishable from the case at hand. The contract at issue in this case is
the cardholder agreement, which Genender clearly entered into as an individual.
(CR 413) (CR 465: 2-7) Neither Garza nor Ford involved a personal extension of
credit to an individual which she used to benefit both a prospective commercial
enterprise as well as a volunteer rescue operation.
There is unquestionably an issue of material fact as to whether the shelving
38 Appellant purchased with an extension of credit pursuant to her personal credit
card agreement was primarily for Genender’s personal use. Where, as here, an
issue of material fact remains to be determined, summary judgment was improper.
Provident Life & Acc. Ins. Co. v. Knott, 128 S.W. 3d 211, 215-16 (Tex. 2003)
V. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO GENENDER’S CLAIMS OF UNFAIR DEBT COLLECTION PRACTICES AS USA AND KIRKWOOD ARE DEBT COLLECTORS WHO, THROUGH THEIR AGENT, VIOLATED THE TEXAS DEBT COLLECTION ACT AND THE DTPA.
In Plaintiff’s First Amended Original Petition, Genender articulated a
specific cause of action for violations under Title 5 of the Texas Finance Code
§392 et seq., claiming that Appellees’ agent, a private investigator hired by
Kirkwood, made false representations and used deceptive means to obtain
information on Jamie Genender, a consumer, for the purpose of collecting an
alleged debt. (CR 19) The statute under which Genender made her claim provides
as follows: [A] debt collector may not use a fraudulent, deceptive, or misleading
representation that employs the following practices: (19) using any other false
representation or deceptive means to collect a debt or obtain information
concerning a consumer.” Tex. Fin. Code Ann. §392.304(19) (Vernon).
USA and Kirkwood, in their Motion for Summary Judgment, argued that the
private investigator does not qualify as a "debt collector" under the Texas Finance
Code, claiming that the Finance Code adopts the federal definition of "debt
39 collector," which describes the term as:
“Any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C.A. §1692a(6) (1998).
USA and Kirkwood went on to argue that, as the private investigator's
principal purpose was not the collection of any debts; but, rather, was the
collection of information, Genender’s claim for unfair debt collection practices
must be dismissed as a matter of law. (CR 263-264)
The federal definition of “debt collector” upon which USA and Kirkwood
base their argument is inapplicable to the circumstances of this case. The Texas
Debt Collection Act (TDCA), under which Genender brought her claim, has a two-
tiered structure for analyzing who qualifies as a debt collector. It includes both
“third-party debt collectors” (defined the same as “debt collectors” under the
Federal Debt Collection Protection Act) and “debt collectors,” which include
anyone “who directly or indirectly engages in debt collection.” Davis v. Wells
Fargo Bank, N.A., 976 F. Supp. 2d 870, 885 (S.D. Tex. 2013) on reconsideration,
6:11-CV-00047, 2014 WL 585403 (S.D. Tex. Feb. 14, 2014). Unlike the federal
statute, the Act does not require that debt collection be the principal business of a
debt collector. [Tex. Fin. Code Ann. §392.001(6) (Vernon)] Monroe v. Frank, 936
S.W.2d 654, 660 (Tex. App.—Dallas 1996, writ dism'd w.o.j.). 40 The private investigator is an agent of the USA and Kirkwood. A
corporation can act only through its agents. Elec. Data Sys. Corp. v. Tyson, 862
S.W.2d 728, 737 (Tex. App.—Dallas 1993, no writ); State Farm Fire and Casualty
Co. v. Gross, 818 S.W.2d 908, 912–13 (Tex.App.—Austin 1991, no writ). USA
and Kirkwood are themselves “debt collectors” under the TDCA definition, as
USA, through Kirkwood’s actions, had alleged and even brought suit against
Genender over a debt which they said she owed. By October 26, 2012, the date
USA’s agent gained entry to Genender’s premises, USA had participated in and
lost a credit card charge dispute process, had had a take nothing judgment entered
against it on its claims in Justice of the Peace Court in Harris County against both
Critter Stuff and Genender individually, had filed an appeal of the JP Court
judgment in County Court, had hired legal counsel, was aware Genender had hired
legal counsel, and had sent written discovery requests. The creditor is not excused
from following the provisions of the Act because the debt is owed directly to him.
Monroe v. Frank, 936 S.W.2d 654, 659–660 (Tex.App.—Dallas 1996, writ dism'd
w.o.j.) (interpreting the Texas Debt Collection Act). A legal action such as
participation in a credit card dispute process or a civil suit upon a debt can be an
attempt to collect a debt. For example, the Texas Debt Collection Act (TDCA) has
been held to apply to foreclosure actions because such actions inevitably involve a
debt collection aspect. Bracken v. Wells Fargo Bank, N.A., 2014 WL 31778
41 (E.D.Tex. 2014).
Kirkwood acknowledged the agency relationship he formed with the private
investigator in his affidavit attached as Exhibit A to USA and Kirkwood’s motion
for summary judgment when he states that, after filing suit against her, USA hired
the investigator to enter Genender’s premises to make a video showing the
shelving was inside of the building and being used by Genender. (CR 36, CR 275-
276) Kirkwood’s affidavit also makes clear that he was aware of the investigator’s
actions in deceiving Genender and approved of them as he states that Genender
“never requested that the private investigator leave the premises.” (CR 37, CR 276)
Had USA, Kirkwood, USA’s counsel, or the private investigator himself disclosed
at the time of entry or thereafter that he was acting as an agent of USA and what
his purpose was and then was never told to leave, USA and Kirkwood’s argument
would carry more weight.
USA and Kirkwood’s Second Motion for Summary Judgment admits that
the private investigator was hired to provide USA with evidence for the lawsuits it
initiated to recover the alleged debt for shelving. (CR 263) In the case at hand
there is certainly an alleged pecuniary debt, a perceived debtor/creditor
relationship, and an agent of the alleged creditor using deceptive means to obtain
information concerning a consumer in indirect furtherance of the creditor’s debt
collection efforts. These, together, satisfy the statutory requirements to maintain a
42 claim under the TDCA.
VI. THE DISTRICT COURT ERRED IN GRANTING A NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AS TO GENENDER'S TRESPASS CLAIM AS THERE IS A FACT ISSUE AS TO WHETHER THE ULTERIOR MOTIVE OF USA AND KIRKWOOD’S AGENT INTERFERED WITH GENENDER’S RIGHT OF POSSESSION.
The trial court also granted USA and Kirkwood’s No Evidence Motion for
Summary Judgment as to Genender’s claim for the trespass perpetrated by the
private investigator, USA and Kirkwood’s agent. There are three elements
involved in a trespass claim: (1) the plaintiff owned or had a lawful right to possess
the real property; (2) the defendant entered the plaintiffs land, and the entry was
physical, intentional, and voluntary; and (3) the defendant's trespass caused injury
to the plaintiff’s right to possession. Salazar v. Sanders, 440 S.W.3d 863, 876
(Tex. App.—El Paso 2013), review denied (July 11, 2014), cert. denied, 135 S. Ct.
1433 (2015) USA and Kirkwood’s No Evidence Motion for Summary Judgment
argued that there was less than a scintilla of evidence that defendant’s trespass
caused injury to Genender’s right of possession. (CR 272)
Although the premises housed a business and rescue shelter open to the
public, the private investigator and his debt collecting employers’ ulterior motive
for his going into the building negated any invitee licensee status; and the
investigator was, therefore a trespasser. Burton Const. & Shipbuilding Co. v.
Broussard, 154 Tex. 50, 58, 273 S.W.2d 598, 603 (1954) USA and Kirkwood’s act 43 of sending a private investigator to gain information and evidence through deceit
and artifice interfered with Genender’s right to determine who entered her business
property and for what purpose. Further, secretly recording Genender interfered
with her privacy rights while on her own premises. Clayton v. Richards, 47 S.W.3d
149, 156 (Tex. App.—Texarkana 2001, pet. denied) There is a clear fact issue as to
whether USA and Kirkwood interfered with Genender’s rights of possession; and
USA and Kirkwood’s motion should have been denied.
In this case, USA and Kirkwood asserted the affirmative defense of
invitee/licensee to Genender's claim of trespass, asserting that the private
investigator who entered Genender’s building while the store and rescue operation
were open to the public, was either an invitee or licensee, and being an invitee or a
licensee, the private investigator's entrance onto Genender’s property was
permitted. (CR 26-28)
Additionally, USA and Kirkwood argued that as an invitee and/or licensee,
such entry could not have caused injury to Genender's right of possession, as a
matter of law. In their No-Evidence Motion for Summary Judgment, USA and
Kirkwood asserted that there was less than a scintilla of evidence that their trespass
In this connection, USA and Kirkwood allege that Appellant has no
evidence of damages related to her cause of action for trespass and that her cause
44 of action should, therefore, be summarily dismissed. (CR 261) In the body of the
motion, however, Appellees’ claim transforms to an allegation that there is no
evidence that the trespass caused injury to Appellant’s right of possession. (CR
272) In answer to Appellees’ first argument, that there was no evidence of
damages, there is ample case law which states that evidence of trespass damages is
not necessary to maintain a trespass claim. Gen. Mills Restaurants, Inc. v. Texas
Wings, Inc., 12 S.W.3d 827, 833 (Tex. App.—Dallas 2000, no pet.) Every
unauthorized entry is a trespass “even if no damage is done.” See Trinity Universal
Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex.1997) (citing McDaniel Bros. v.
Wilson, 70 S.W.2d 618, 621 (Tex.Civ.App.-Beaumont 1934, writ ref'd)); see also
Champion v. Vincent, 20 Tex. 811, 815 (1858) (“The law supposes that every
trespass, committed upon property, is necessarily attended with some damage,
however inconsiderable the injury; and hence the right to a recovery of damages
for a trespass cannot be denied.”). Even if a plaintiff fails to plead or prove that the
defendant did any injury by entering plaintiff's property, the plaintiff is still entitled
to nominal damages. See Meyers v. Ford Motor Credit Co., 619 S.W.2d 572, 573
(Tex.Civ.App.-Houston [14th Dist.] 1981, no writ) (“The law is well settled that a
trespasser is liable to the property owner even though there is no proof of actual
damages in any specific amount.”); Henry v. Williams, 132 S.W.2d 633, 634
(Tex.Civ.App.-Beaumont 1939, no writ) (by alleging and proving trespass,
45 appellants “were entitled, at least, to nominal damages”); see also Smith v. Huizar,
1860 WL 5812 (Tex. 1860) (if plaintiff fails to lay foundation for or prove
damages, he is entitled to nominal damages for trespass).
USA and Kirkwood’s argument in their No Evidence Motion for Summary
Judgment was that there is not a scintilla of evidence that their agent’s actions in
lying about his purpose for entering Genender’s premises interfered with
Genender’s right of possession. One of Genender’s rights of possession of a
building in which she does business and volunteer work and which is open to the
public is the right to refuse entrance to persons not there to conduct such business.
United Food & Commercial Workers Intern. Union v. Wal-Mart Stores, Inc., 430
S.W.3d 508, 512 (Tex. App.—Fort Worth 2014, no pet.) Where a person’s true
purpose is outside the scope of a reasonable invitation to do business in a store,
that person does not have consent and is a trespasser. Id at 514 (Wal–Mart
established United Foods representatives were trespassers by clear and specific
evidence that after entering Wal–Mart's property, United Food's representatives
engaged in mass demonstrations and, by doing so, used Wal–Mart property on a
venture in their own interests that was not within the scope of Wal–Mart's
invitation to shop at Wal–Mart and that was not for the purpose for which the Wal–
Mart property was reasonably intended to be used.)
Here, USA and Kirkwood’s agent knowingly interfered with Genender’s
46 right to determine admission to her property by entering the premises, upon which
a No Trespassing and No Solicitation sign was displayed, by representing falsely
that he was there to conduct business. (CR 437) The agent’s true task was to
secretly obtain evidence for the purposes of collecting an alleged debt, as discussed
above. It was clear that USA and Kirkwood intended that this evidence be
extracted secretly, as they failed to inform Genender or her attorney that their agent
would be entering Genender’s property, that their agent would be representing
himself as someone interested in either pet supplies or pet adoption, or that their
agent would be secretly filming Genender and the facilities to gather evidence for
use against Genender in litigation. The general rule in Texas is that those who
pursue a common plan or design to commit a tortious act, actually take part in it or
further it by cooperation or request, or to lend aid to the wrongdoer, or ratify or
adopt his act are also liable for the tortious act. Clayton v. Richards, 47 S.W.3d
149, 154 (Tex. App.—Texarkana 2001, pet. denied); Century 21 Page One Realty
v. Naghad, 760 S.W.2d 305 (Tex.App.—Texarkana 1988, no writ) (quoting W.
Prosser, Handbook of the Law of Torts § 46 (4th ed.1971)).
Had the attorney for USA and Kirkwood arranged for the private
investigator to visit Genender’s store, rather than his clients, or if he had directed
his clients’ plan, and/or encouraged it, he may well have been subject to
disciplinary action for violation of the Texas Disciplinary Rules of Professional
47 Conduct, Rule 4.02(a) proscribing contact with one represented by counsel, as
USA and Kirkwood’s counsel had been aware for several months that Genender
was represented by an attorney at the time of the contact the private investigator
had with Genender.3 See Prof'l Sec. Patrol v. Perez, 01-12-00506-CV, 2013 WL
4478020, at *4 (Tex. App.—Houston [1st Dist.] Aug. 20, 2013, no pet.) citing
Richmond Condos. v. Skipworth Commerical Plumbing, Inc., 245 S.W.3d 646, 661
(Tex.App.-Fort Worth 2008, pet. denied) (holding that ex parte contact of
represented parties by opposing counsel constitutes abuse of discovery process).
USA and Kirkwood had sent written discovery requests to Appellant only seven
days before the private investigator entered Genender’s store to conduct secret
videotaping. A request for inspection of the property that is the subject of
litigation, sent to opposing counsel, is a standard discovery procedure that was
circumvented by USA and Kirkwood here; and the evidence obtained by deceit
was used before the jury that heard USA’s claim for contract breach in the County
Court case. (APP 17)
As is clear from the Wal-Mart case discussed above, USA and Kirkwood
used Genender’s property on a venture in their own interests that was not within
3 “(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” TX ST RPC Rule 4.02(a)
48 the scope of her invitation to enter for the purchase of pet supplies or the adoption
of a rescue animal and that was not for the purpose for which Appellant’s property
was reasonably intended to be used.
Genender submitted evidence that USA and Kirkwood’s actions interfered
with her possessory right not to have her property entered and not to be filmed on
her property, by artifice and fraud, without consent. (CR 91-92) This was a
violation of Genender’s right to privacy, as she had a reasonable expectation that
she was not being recorded on her own property. An individual's right of privacy is
compromised no less from being secretly videotaped than from being secretly
recorded. A secret videotape of an individual who presumes to be in a private
place is an even greater intrusion of privacy than secretly recording conversations.
Clayton v. Richards, 47 S.W.3d 149, 156-57 (Tex. App.—Texarkana 2001, pet.
denied); United States v. Torres, 751 F.2d 875 (7th Cir.1984). Videotapes are a
simultaneous audio and visual recording of events. Ali v. State, 742 S.W.2d 749,
754 (Tex.App.—Dallas 1987, writ ref'd). Genender’s evidence submitted to the
District Court included her affidavit, dated January 14, 2014, which stated that had
she been aware of the man’s true purpose for entering the store, she would not
have allowed him to enter the premises.(CR 438)
USA and Kirkwood argued in their motion that the private
investigator/detective was either an invitee or a licensee, and, as such, entry onto
49 Genender’s property was permitted and could not have caused injury to
Genender’s right of possession.
Texas has not adopted the "public invitee" concept of the Restatement
(Second) of Torts § 332(1) and (2) (1965), but has adopted a similar concept by
extending invitee status to members of the public who are invited into a store that
sells goods and that is open to members of the public for the purpose of allowing
them to buy and inspect goods. See American Industries Live Ins. Co. v.
Ruvalcaba, 64 S.W.3d 126 at 138-39 (Tex.App.- Houston [14th Dist.] 2001, pet.
denied) (citing Rosas v. Buddie's Food Store, 518 S.W.2d 534, 536 (Tex. 1975)).
Two central cases handed down by the supreme court, however, both suggest a
benefit to the store, even if remote, is still required. See Carlisle v. J Weingarten,
Inc., 137 Tex. 220. 137 S.W.2d 1073. 1076 (Tex. 1941) (children of tender years
deemed invitees if accompanying mothers to do shopping); Renfro Drug Co. v.
Lewis, 149 Tex. 507, 235 S.W.2d 609, 617 (1951)(invitee status conferred on
person crossing through drug store and falling because of potential that person may
stop and purchase item). A person is an invitee only where the owner or occupier
invites the person to enter the premises and where the visit involves, "at least a
potential pecuniary profit to the owner or occupier." American Industries Live Ins.
Co. v. Ruvalcaba, 64 S.W.3d 126 at 135 (Tex.App.- Houston [14th Dist.] 2001,
pet. denied); Olivier v. Snowden, 426 S.W.2d 545 at 550 (Tex. 1968). An invitee is
50 a person who enters the premises of another in answer to an express or implied
invitation from the owner or occupier for their mutual benefit. Montes v. Indian
Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex.App.-El Paso 1997, writ denied). An
invitee is one who enters land with the owner's knowledge and for the mutual
benefit of both. Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 909
(Tex.App.-Houston [14th Dist.] 2009, no
pet.).
The private investigator/detective in the case at bar does not meet the criteria
to be classified as an invitee as he was not there to buy or inspect goods, there was
no potential pecuniary profit to the owner, and there was unquestionably no mutual
benefit involved. Therefore, USA and Kirkwood's argument that the private
investigator/detective was an invitee fails and summary judgment was, therefore,
improper as to the invitee status of USA and Kirkwood’s agent.
In contrast, a licensee is a person who for his or her own convenience,
pleasure, or benefit enters the premises with the express or implied permission of
the owner. See Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933
(Tex.Civ.App.-Corpus Christi 1981, writ refd n.r.e.); Weaver v. KFC Management,
Inc., 750 S.W.2d 24, 26 (Tex.App.-Dallas 1988, writ denied). "A licensee enters
and remains on land with the owner's consent and for the licensee's own
convenience, or on business with someone other than the owner." Mayer v.
51 Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 910 (Tex.App.-Houston [14th
Dist.] 2009, no pet.). Absent a relationship that inures to the mutual benefit of the
owner and the entrant, the entrant is a licensee. Id. The private
investigator/detective hired by the Appellees does not meet the criteria for a
licensee either. While he was clearly there for his own benefit and for the benefit
of his employer, USA in this case, he was not there with Genender’s express or
implied consent. The private investigator/detective knew he did not have the
owner's consent to enter the store, as evidenced by his devious and deceptive
behavior in pretending to be a customer. Logically, a person who legitimately had
a store owner's consent to enter the premises as either an invitee or licensee, would
not need to undertake deceptive measures to intentionally hide who he was,
misrepresent his identity or purpose for being in said store and/or covertly film the
store. The investigator/detective's devious and deceptive behavior is circumstantial
evidence that he did not have the authority, invitation, permission and/or consent to
enter Genender’s building and conduct video surveillance of its interior. As such,
USA and Kirkwood’s argument that the private investigator/detective was a
licensee fails and USA and Kirkwood’s Motion for Summary Judgment should
have been denied.
A trespasser is one who enters another's property without any lawful
authority, permission, or invitation for his or her own purpose, pleasure, or
52 convenience. Almanza v. Navar, 225 S.W.3d 14, 21 (Tex.App. — El Paso 2005, no
pet.). "A trespasser enters another's property without lawful authority, permission,
or invitation." Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 909
(Tex.App.-Houston [14th Dist.] 2009, no pet.) as cited in Oncor Elec. Delivery
Co., LLC v. Murillo, 01-10-01123-CV, 2013 WL 5372544 (Tex. App. Sept. 26,
2013). A licensee who goes beyond the rights and privileges granted by the license
becomes a trespasser. Burton Constru. & Shipbuilding Co. v. Broussard, 273
S.W.2d 598, 603 (Tex. 1954). A licensee who exceeds the rights and privileges
granted by the license becomes a trespasser. Mayer v. Willowbrook Plaza Ltd.
P'ship, 278 S.W.3d 901, 910 (Tex. App. 2009).
The private investigator/detective in this case knew he did not have implied
or express permission of the store owner, as evidenced by his deceptive conduct to
conceal and/or misrepresent his identity and his purpose for being in the store. He
knew that his interests were adverse to those of Genender and knew that he would
not be permitted to enter her building as a legitimate invitee or licensee under the
law if he had disclosed his true identity and purpose for being in the building. (CR
92) Clearly, the private investigator/detective that was hired by USA and
Kirkwood meets the criteria under the law to be classified as a trespasser in
Genender’s building; and, as such, USA and Kirkwood's argument that he was an
invitee or licensee fails. Given that the private investigator/detective was not an
53 invitee or licensee, USA and Kirkwood's argument that he could not have caused
injury to Genender’s right of possession also fails. Therefore, the Court erred in
granting USA and Kirkwood’s Motion for Summary Judgment and dismissing
Genender’s trespass claims.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMESIS CONSIDERED, Appellant Jamie Genender
respectfully requests that each of the Summary Judgments in the underlying case
be reversed and that she be allowed a trial on the merits of each of her causes of
action. Alternatively, Appellant requests that the Court reverse the final judgment
of the District Court as to such of her claims as the Court deems proper. Appellant
requests such other and further relief which she may show herself to be entitled to
and that this court may deem proper to grant.
Respectfully submitted,
JAN WOODWARD FOX, A Professional Legal Corporation
By: /s/ Cameron Weir
Jan Woodward Fox State Bar No.: 07334500 Cameron Weir State Bar No.: 024088616 The Lyric Centre 440 Louisiana St., Suite 900 Houston, TX 77002 54 (713) 623-8600 (713) 807-1758 (fax)
ATTORNEYS FOR APPELLANT JAMIE MICHELE GENEDER
55 CERTIFICATE OF SERVICE
A true and correct copy of the foregoing was filed electronically and served
on the parties listed below in the manner specified on April 29, 2015.
USA Store Fixtures, LLC Via Electronic Service Larry Kirkwood c/o Jerrad D. Bloome, WEYCER, KAPLAN, PULASKI & ZUBER, 11 Greenway Plaza, Suite 1400 Houston, Texas 77046,
Trial Counsel for USA Store Fixtures, LLC and Larry Kirkwood
/s/ Cameron Weir Cameron Weir
56 CERTIFICATE OF COMPLIANCE
This is to certify that, in compliance with Texas Rule of Appellate Procedure
Rule 9.4(i)(2)(B), the applicable sections of this computer-generated brief on the
merits contain 13,278 words total.
Dated: April 29, 2015
57 APPENDIX 1
58 7f2112014 3:00:11 PM Chris Daniel - District Clerk Harris County Envelope No. 1892153 By: JONATHAN PATTON
CAUSE NO. 2013·59766
JAMIE GENENDER § IN THE DISTRICT COURT OF § § § VS. § HARRIS COUNTY, TEXAS § § LARRY KIRKWOOD AND § USA STORE FIXTURES, LLC § 55" DISTRICT COURT
PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Jamie Genender, Plaintiff, and files thi s her Second Amended Ori ginal
Petition complaining of Larry Kirkwood and USA Store Fixtures, LLC, Defendant s, and for cau se
of action would res pectfully show the Court as follows:
INTRODUCTION
I. Thi s is a civil action brought on behalf of Pl aintiff. Thi s ac tion seeks monetary
compensation for damages caused by Defe ndants' decepti ve trade practices, trespass, and fraud.
2. Discovery in thi s case is to be conducted under Leve l T wo pursuant to Rul e 190.3 of the
Texas Rules of Civil Procedure.
PARTIES
3. Pl aintiff is an indi vidual res iding in Kenosha County, Wi sconsin at all times pertinent to
the event s giving ri se to thi s lawsuit.
4. Defendant Larry Kirkwood is a natural person and the alter ego of USA Store Fixtures,
LLC. Defendant Kirk wood has been prev iously served and has answered herein.
59 5. Defendant USA Store Fixtures, LLC is an ac ti ve Texas corporation with its principal
place of business in Harri s County, Texas. USA Store Fixtures, LLC has been prev iously served
and has an swered herein.
VENUE AND JURISDICTION 6. Venue is proper in Harri s County, Texas pursuant to Tex. Civ. Prac. & Rem. Code
§ 15.002 because at the time of th e event s givin g ri se to thi s cause of action Defendant Kirk wood
res ided in Harri s County.
7. The court has jurisdicti on of thi s matter because the amount in controversy exceeds the
jurisdicti onal limit s of the court .
FACTUAL BACKGROUND 8. Pl ainti ff is a consume r who sought to acquire goods and serv ices by purchase from
Defendant s in Houston for deli very to SiJ ver Lake, Wi sconsin . Specifi call y, as the res ult of
mi srepresentations made in Defe ndants' adverti sing over the internet and telephone, which
Defendan ts knew to be false at the time they were made, Pl aintiff purchased and paid for
shelving sold by Defendant s to be deli vered to her in Wisconsin.
9. The shelving was de l.i vered to Pl ainti ff later than the date represe nted by Defendants and
was defective and incomple te. The shelving sold by Defendants as used Lozie r brand shelving
was not of the quality or quantity represented and cont ained parts which were not made by
Loz ier. Defendants made representati ons prior to the sale regarding the shelv ing orders'
compl eteness, qual.ity, and brand . as we l.l as USA Store Fixtures' compliance with it s own return
policy, which were subsequentl y shown to be fal se.
10. Defendants responded to atte mpt s by Pl ainti ff to seek redress from Defendant s pursuant
to the ir adverti sed policies by threa tening and vul gar verbal abuse of Pl aintiff.
60 II. Defendants to date ha ve wholly fail ed to remedy or replace the defective shelving and/or
otherwise compl y with their ad verti sed representati ons.
12. Defendants res ponded to Plaintiffs exerc ise of her ri ght to seek and obtain redress
through the credit card co mpany procedures by making mi srepresentation s to the credit card
companies, then riling two law suits against PlaintiH in Harri s County, Texas, on
October 17,2011 , whi ch Plaintiff has been required to liti gate to their conclu sion . Meanwhile,
Defendants reiterated its mi srepresentation s concerning the she lving to Plaintiff and the COUl1S.
13. Further, on October 26.2012, Defendant s and their agent, throug h the device of false and
deceptive state me nts made to Plaintiff, obtained access to Plaintifr s property and Plaintiff while
secretl y videotaping and audio recording both Pl aintiff and the interior o f her property.
ALTER EGO AND RESPONDEAT SUPERIOR
14. As weU as being the alter ego of USA Store Fixtures, LLC from the time o f the event s
giving rise to thi s law suit through the present and being res ponsible for its conduct, Defendant
Larry Kirk wood at a U limes materia l to this cau se of action was e mployed by and acting in the
course and scope of hi s empl oy ment for Defendant USA Store Fixtures. Defendant USA Store
Fixtures is res ponsible for the conduct of De fendant Kirkwood under the doctrine of respondeal
superior.
CAUSES OF ACTION
Fraud
15. Plaintiff incorporates by re ference all facts and allegations contained in pm'agraphs 1- 14.
l6. Defendants made a material representation s which were fal se and which they knew to be
fal se when made and/or which were recklessly made as positive assertion s wilhout knowledge of
their truth and whi ch Defendant s made with the intent that they be acted upon . Plaintiff took
action in reliance upon the mi srepresentation s and thereby suffered injury . These fal se
61 representations of fact and opinion included representations that the shelving was of a qu ality, make,
consistency, and/or conditi on it was not and had attributes that it did not, incl uding, but not limited
to, representations that the shelv ing would be shipped complete and on time, would be a six or
better on a scaJe of one to ten in quality and appearance, and would be rep laced if defecti ve if
PlaintiFF complied with the replacement procedures.
17. Pl aint iff justifiabl y relied upon the facts as represented by Defendants through and until the
intentionaJ faJ sity of their representati ons were made obv ious by DeFendants' course of conduct.
18. The misrepresentations made by Defendants were material in that, among other things, they
induced Plai ntifF to purchase the shelving, to cease or not begin any efforts to seek alternate
shelving, to make plans based upon the representations, to expend time, effort and money to comply
with Defendants' instmctions and to attempt to ameliorate the obvious de ficits in the shelving.
Pl aint iff wou ld not have entered the transaction had she been aware of the falsit y of Defendants
representations above.
19. In making the above mi srepresent ati ons, Defendants acted knowingly so as to deceive and
de fraud Ms. Genender and the Court . Accordingly, their conduct was such as to rise to the level of
common law fraud.
20. Ms. Genender was damagcd as a direct and proximatc result of Dcfendants' fraudulent
conduct.
011' A Violations
2 1. Pl ainti ff incorporates by reference all Fac ts and allegations contained in paragraphs 1- 20.
22. Pl ainti ff is a consumer who sought to acquire goods and/or services from Defendant USA
Store Fi xtures by purchase. In their transactio ns with PlaintifF relati ve to her purchase of goods
and services, Defendant s engaged in false. misleading, or decepti ve acts or practices. including.
but not li nti ted to. the acts or practices specified below. Plaintiff has performed or will perform
62 all conditions precedent to entitle her to bring thi s action.
a. Defendants used and employed one or more false, mi sleading and/or decepti ve
acts and/or practices that is/are spec iJically enumerated in a subdi vision of Section 17.46
of the Texas Business and Commerce Code, including, but not limited to, subdi vision (b),
nllmbers (5), (7), (9), ( 12), (23) and (24) and that were relied on by Plaintiff. The fal se
and mi sleading acts co mmilled by De fendant s inc lude, but are not limited to the
follo wing:
1. The goods provided were damaged and deteriorated to the point of not
being functional for the purpose and use represented by De fendants. § 17 .46(b)(5)
u. The qualit y of the goods pro vided fe U so far below the standard
represented as to be unu sable. The ty pes of items provided al so differed from
those listed on the website and in the in voice. § 17 .46(b)(7)
Ill. The advertising on Defe ndants' website represent s that "all orders usually
ship within 1-2 bu siness days" and that "tran sit time mi ght vary, 3-5 bu siness
days." This was false and mi sleading, as the processing and shipment of orders in
fa ct is much longer th an represented. § 17.46(b)(5) and (9)
I V. The advertising on De fe ndants' website represent s that the used shelving
of the ty pe purchased by Plaintiff may have superfi cial dings and scratches but
that "it will still perform for what you need it to do most. " This is patently untrue,
as man y of the part s were so defecti ve as to fail to perform as she lving.
§ 17.46(b)(5) and (9)
v. Defendant s represented thatl? complete she lving unit s were being sold to
Plaintiff when they never intended to and did not provide the parts for the
63 assembly o f 17 complete shelving unit s as advertised. § 17.46(b)(5) and (9)
VI. Defendants ad veJ1i sed images of shelving and parts o f she lving which they
did not prov ide and did no t inte nd to deli ver. § 17.46(b)(5) and (9)
VII. Despite the represent ati on made on their website th at " Madix she lving and
Lozier shelving are the o nl y two brands we w ill sell ," and the assertions o f Larry
Kirkwood during the initi al sale and constructi on, the redress process atte mpted
by Pl aintif f, and at trial in the County Court, that Defendant s prov ided Lozier
brand shelving, Defendant s so ld Pl aintiff parts made by neither Lozier nor
Maddix. § 17.46(b)(5) (7) and (9)
VIl1 . Defendants' Return Po !.icy as di splayed on it s website represent s th at
materi als deli vered damaged are subject to repl acement so lo ng as their inferior
qua!.it y is noted on the de li very receipt w ith the dri ver's signature at the time of
deli very, photograph s are taken o f the damaged pal1 s, all o ri ginal packag ing is
retained , and the damaged good s are reported within three days o f de li very.
Pl aintiff complied with all o f these req uireme nts and was never furni shed
repl acement parts or reimburse ment despite Pl aintiff s compli ance with the
De fendants' Return Policy's requirement s. § 17.46(b)( 12)
IX. Defendants fil ed suit against Pl aintiff on the written contract in Ham s
County, a county other than that in which Plaintiff was known to res ide and/or in
whi ch the contract was sig ned. Thi s constituted di stant fo rum abu se in which
Defendants engaged on not o ne but two separate occas io ns, co mpounding the
damage to Pl aintiff. §17.46(b)(23)
x. Had De fendants di sclosed its policy o f mix ing dif fe rent manufacturer's
64 parts, the level of inco mpleteness and defec ti ve conditi on of the she lving, the half
measures and di sorganizati on in volved in shipping, and the di sdain , crudeness,
and threats that constitute it s customer service, Pl aintiff would not have purc hased
the she lving and deli very. Defe ndants failed to make suc h di sc losures, a lth ough
the extent of the inco mpleteness and defecti ve conditi on of the shelving and the
meth od of dealing with customers, as in thi s case, were kn ow n to the selJ er at the
time of the tran sac ti on. § 17.46(b)(24).
b. Defendant s breached express warranti es, including, but not limited to, the
warranties contained in their adverti sing, their purchase order material s spec ified above,
and the express warranti es cont ained in the pubUc and pti vate communicati ons by
Defendants.
c. Defendant s engaged in one or more unconsc ionable action s and/or courses of
acti on, incl uding, but not limited to, intentionall y suppl ying inco mplete and defecti ve
goods, failing and refusing to honor their adverti sed poli cies on shipment and/or return
and/or repl acement and verbally abusing custome rs who complain in an effort to
intimidate them int o accepting the inco mplete, damaged and deteri orated goods deli vered
by Defendant s, which were in gross di sproportion to the amount paid. Additionally,
Defendant s' acti ons which resulted in and rati fied mi srepresentati ons to gain
unauth orized entry of the ir agent onto Plaintiff' s property, personal contac t with Pl ainti ff
and secret videotaping and recording of Pl aintiH and her propert y constitute an
unconsc ionable course of action.
d. The aforesaid agent ' s mi srepresentati ons were on behalf of Defendant s acting
directl y or indirectl y in the capac ity of debt collectors and were for the purpose of obtaining
65 infonllation concerning a consumer, namely Pl aintiff, in violation of the Texas Finance
Code secti on 392.304( 19), constituting a deceptive trade practkc under Subchapter E.
Chapler 17, of the Business & Commerce Code. Tex. Fin. Code Ann. § 392.404(a)
e. Each of the above, indi viduaUy and cumul ati vely, was a producing cause of
damages to Pl ainti ff.
r. Each of the foregoing violati ons co mmitted by Defendant s was co mmitted
know ingly and/or intentionally, entitling Plaintiff to the remedies prov ided by 17 .50(b).
As the above co nduct is in violati on of the Texas Decepti ve Trade Practices Act, Plainti ff
is entitled to attorneys' fees and her damages, which include both economic damages and
ment al angui sh. Further, Defendant s' violati on of the Texas Decepti ve Trade Practices
Acl through the ir violation of the Texas Finance Code secti on 392.304( 19) entitles
Pl ainti ff to aU of her actual damages at co mmon law.
Trespass
23 . Pl aintiff incorporates by reference all facts and allega tions contained in paragraphs 1- 22.
24. Defendant s, through decepti on and artifice, and without Pl aintiff s effecti ve consent ,
made intentional e ntry onto Pl ainti ff's property and co mmitted trespass upon Plaintifr s property
and person in violati on of the laws of both the State of Texas and the State of Wi sconsin .
ATTORNEYS' FEES
25. As a result of the facts all eged above, it has become necessary for Pl aintiff to hire an
att orney 10 prosecute thi s action, and Pl ainti ff has incurred and will incur attorneys' fees for the
prosecuti on of thi s acti on. Plainti ff has retai ned the fir m of Jan Woodward Fox, P.L.e. to
represent her in this ac tion and has agreed to pay the firm reasonable attorneys' fees. Plaintiff is
66 entitled to recover judgment against Defendants for those attorneys' fees pursuant to § 17.50, et
seq of the Texas Business & Commerce Code. These fees include:
a. preparation and tri al of thi s laws uit;
b. post-tri al and pre-appeal legal services;
c. an appeal to the Court of Appeals;
d. an appeal to the Texas Supreme Court ; and
e. post judgment di scovery and co llection in the event execution on the judgment is
necessary.
DAMAGES
26. As a direct result of the wrongful acts and/or omi ssions of the Defendants, Pl aint iff has
suffered damages above the minimum jurisdictional requirements of thi s Court, including but not
Umited to the fo Uow ing:
a. econornic damages;
b. other actual damages, including ment al anguish;
c. the ri ght to treble damages as provided by statute;
d. att orneys fees.
PRAYER
27. Pl aintiff prays th at the Defendants be ci ted to appear and answer and th at upon fin al
hearing, Plaintiff recover:
a. judgment against the Defendants, jointly and severall y, for Pl ainti ff's damages as
set forth above in an amount over $ 100,000 but not more than $200,000, as of the
rihng of this Petiti on.
b. attorneys' fees as allowed by law;
67 c. pre and post-judgment interest on Plaintirr s damages as allowed by law;
d. aU costs of court ; and
e. such other and furth er relief to which Plaintiff may be entitled.
RespectfuU y submitted,
J AN WOODWARD Fox, A Profess ional Legal Corporation
By: lsi Jan Woodward Fox
Jan Woodward Fox State Bar No. 07334500 The Lyric Centre 440 Loui siana, Suite 900 Hou ston , Texas 77002 (7 13) 623-8600 (te lephone) (7 13) 807- 1758 (facsimile)
ATTORNEY FOR PLAINTIFF JAMIE GENENDER
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a tme and correct copy of the forego ing in strument was served by the Court' s electronic filin g notificati on sys1em on thi s 1he 21 st day of Jul y, 2014, upon the roUowing counse l of record:
Mr. Jerrad Bloome, WEYCER , KAPLAN , PULASKI & ZUBER, 11 Greenway Plaza, Ste. 1400, Houston , Texas 77046 AUorney for Defendants Larry Kirkwood and USA Store Fixtures, LLC
lsI Jan Woodward Fox Jan Wood ward Fox
68 APPENDIX 2
69 JAMIE GENENDER CAUSE NO. 2013-59766
§ IN THE DISTRICT COURT OF e (1)A § § § VS § HARRIS COUNTY, TEXAS § LARRY KIRKWOOD, et al. § § § § 55TH JUDICIAL DISTRICT
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Upon consideration of Defendants' Motion for Summary Judgment, Plaintiffs
Response, the summary judgment evide nce and arguments of counsel, the Court
rules as follows:
The Plaintiffs DTPA claims raised in this matter were originally brought in
County Court at Law #1. Because the DTPA claims were improperly joined with
claims which were in the county court through an appeal, a jurisdictional problem
was present. The presiding judge ordered a severance of the DTPA claims.
Accordingly, Case no. 1016718-101 was created. The case, once seve red, was thus
initially filed in a court with jurisdiction over those claims. Plaintiff then filed a
voluntary non-suit on October 21, 2013. It was not dismissed because the court
lacked jurisdiction.
Accordmgly, Section 16.064 of the Civil Practice and Remedies Code which is
relied upon by Plaintiff does not apply. The Plaintiffs DTPA claims originally filed
in the county court are barred by limitations. To this extent the Motion is
GRANTED.
70 The Plaintiff has raised material issues of fact rela ted to Defendants' alleged
trespass on October 26, 20 12. To this extent the Motion is DENIED.
IT IS SO ORDERED.
SIGNED on the fl day of lM\ e.- , 2014.
JUD
71 APPENDIX 3
72 Un of fic ial Co py O ffic e of C
73 hr is Da nie lD ist ric t Cl er k Un of fic ial Co py O ffic e of C
74 hr is Da nie lD ist ric t Cl er k APPENDIX 4
75 ENTRY DATA 252 JUL 25A10: NO.1016718 STORE USA FIXTURES, LLC § IN THE COUNTY CIVIL COURT
vs. ATLAW ONE NUMBER GENENDER MICHELE JAMIE TEXAS COUNTY, HARRIS [CONSOLIDATED WITH]
No.1016719 CAUSE USA STORE FIXTURES, LLC § IN THE COUNTY CIVIL COURT
VS. AT LAW NUMBER TWO (2)
CRITTER STUFF, LLC § HARRIS COUNTY, TEXAS
PLAINTIFF’SPLEATO THE ANDMOTIONTO DISMISS COUNTERCLAIMS DEFENDANTS’
COMES now USA STORE FIXTURES, LLC, and this its Plea to the
and Motion to Dismiss Defendants’ Counterclaims; and, in will
showtheCourtas follows:I. Introduction
This case is a consolidatedappeal from Justice Court. Defendantsdid not assert any
counterclaims against USA Store Fixtures, LLC in the lower court. As this matter is an appeal,
the court lacks subject matter jurisdiction to hear any counterclaims by the Defendants
which were not pleaded in the court below. Pursuant to Texas Rule of Civil Procedure 574a, .
ground of recovery shall be set up by the nor shall any set-off or . no new counterclaim be set-up by defendant which was not pleaded in the court below.” (emphasis
76 238 Requested II.Relief lackssubject AstheCourt jurisdiction tohearDefendants’ counterclaims, seeks an order dismissingDefendant’scounterclaimsfor Deceptive Trade Practices, breach of
contractandattorneys’fees. III.
USA Store Fixtures sold and delivered to Defendantused shelving. Not being
with the product, Defendant contested the charge on her credit card and received a credit.
Defendant has maintained possession of and utilized the shelving for the past two years without
paying USA Store Fixtures. As such, on or about October 17, 2011, USA Store Fixtures filed
two (2) Justice Court Actions: -- one action was against Jamie Michele Genender, individually,
for fraud and for defamation, (Exhibit A) —-the other action was against Critter LLC for
fraud, breach of contract and defamation. (Exhibit B)
Defendants did not assert any counterclaims or seek any damages from USA Store
Fixtures in the Justice Court. Defendants did not file a written pleading in Justice Court before
announcingready for trial.
The Justice Court rendered a judgment for the Defendants in both actions.
the Justice Court entered a judgment for Defendants, Plaintiff should take nothing by his
suit; that the Defendant, go hence with his costs without day and that execution issue in
Defendant’s behalf for his said costs." (Exhibits C & D) Plaintiff perfected the appeal of the
two cases to County Court. The two matters were consolidated into this action.
On or about July 30, 2012, Defendantsfiled their First Amended Answer and Original
Counterclaims. (Exhibit E) For the first time, in that pleading, Defendants asserted claims for
breach of contract and violation of the Deceptive Trade Practices Act, in addition to seeking to
77 239 recover attorneys’fees. never any claimsfor affirmativerelief in the Justice
IV. Argumentand Authorities In a appeal to the County Court at Law from Justice Court, the County Court’s
. .. 1S by the . . at the . .. Court. Pursuant to Texas Rule of C1v1l
Procedure574a, upon an appeal to CountyCourt:
Either party may plead any new matter in the county or district court which was not presented in the court below, but no new ground of recovery shall be set up by the nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the below. The pleading thereof shall be in writing and filed in the cause before the parties have announced ready for trial.
As Defendants never asserted a counterclaim in Justice Court, this Court lacks jurisdiction to
entertain Defendants’ counterclaims asserted for the first time in this appeal. Further, as no
cause of action upon which statutory attorneys’ fees is dependent was originally pleaded in the
Justice Court, a claim for attorneys’ fees cannot be asserted for the time in a de appeal
to the County Court. v. 936 S.W.2d 473 (Tex.App.—Fort Worth 1996, no
writ.) Additionally, Defendants never sought any award of damages or any relief in
Justice Court, and cannot seek such relief for the first time on appeal.
V.Conclusion As this matter is a de appeal from Justice Court to County Court at Law, pursuant to
the Rules of Civil Procedure,this lacks subject matter jurisdiction to hear Defendants’
counterclaims asserted for the first time in the appeal. As such, Defendants’ counterclaims must
be dismissed.
78 240 Prayer premises WHEREFORE, USASTOREFIXTURES,LLCpraysthat
this Court grant Plea to the Jurisdiction and Motion to Dismiss, entering an order
dismissing Defendants’ counterclaims for violation of the Deceptive Trade Practice Act, breach
of contract, and request for attomeys’ fee; and, for all other relief either at law or in equity to
which it shows itself entitled.
WEYCER, KAPLAN, PULASKI & ZUBER, P.C.
By: /S/ D. Bl00me JERRADD. BLOOME StateBar No. 24001755 1400SummitTower Eleven Greenway Plaza Houston, Texas 77046 Telephone: (713) 961-9045 Facsimile: (713) 961-5341
FORPLAINTIFF ATTORNEYS
79 241 CERTIFICATEOF SERVICE I hereby that the foregoing instrument has been served upon the following counsel of record via hand delivery, facsimile, and/or mail, return receipt requested pursuant to Tex. R. Civ. P. 2la this the day ofJuly, 2013.
Jan WoodwardFox JAN WOODWARD FOX, A Professional Legal Corporation 440 Louisiana, St. Ste900 Houston, TX 77002
FAX 713-425-7196/S/
D. Bloome JERRAD D. BLOOME
}
80 242 APPENDIX 5
81 CAUSE No.1016718 USA STORE FIXTURES, LLC § IN THE COUNTY COURT vs. ATLAWNUMBER JAMIENHCHELEGENENDER HARRISCOUNTY,TEXAS [CONSOLIDATED WITH]
CAUSE USA STORE FIXTURES, LLC § IN THE COUNTY CIVIL COURT
ORDER ON PLAINTIFF’S PLEA TO THE JURISDICTION AND MOTION TO DISMISSANDON DEFENDANTS’MOTION TO SEVERAND CONSOLIDATE
On the day of 2013, came on to be heard to the and Motion to Dismissand Motion to Sever Consolidate in the above
considering the pleadings, the evidence and the arguments of counsel, the Court has
determined that Plea to the Jurisdiction and Motion to Dismiss should be granted in
part and denied in part and that Defendants’ Motion to Sever and Consolidate should be granted
in part and denied in Accordingly, it is
ORDERED, ADJUDGED AND DECREED that claims in the County Court
for negligent misrepresentation, and Defendants’
l
82 325 . . in counterclarms . the County Court for . . . of the Deceptrve . Act be severed
and placed under a new number (Cause Number 101671 and it is, further
ORDERED, ADJUDGED ANDDECREEDthattheclerkof the courtshallassignthe severed action the separate cause number of copy the following documents, and includetheminthat 1. Plaintiff USA Store Fixture’s Petition on September 11, 2012. 2. Defendant’s First Amended Original Answer and Original Counterclaim on July 30, 2012.
3. A copy of the docket sheet.
4. A copy of this order.
All other requested relief not expressly granted herein is denied.
Entered this day of August, 2013.Hon
Coselli Pr rng Judge
Approved as to
JerradBloome AttorneyforPlaintiff -·-··
for ¤f to for of photo copy,
83 326 APPENDIX 6
84 Tex.R.Civ.P. 574a
Texas Rules of Civil Procedure Part V. Rules of Practice in Justice Courts Section 6. Appeal TX Rules of Civil Procedure, Rule 574a Rule 574a. New Matter May be Pleaded
Either party may plead any new matter in the county or district court which was not presented in the court below, but no new ground of recovery shall be set up by the plaintiff, nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the court below. The pleading thereof shall be in writing and filed in the cause before the parties have announced ready for trial.
85 APPENDIX 7
86 Tex. Civ. Prac. & Rem. Code §16.064
§ 16.064. EFFECT OF LACK OF JURISDICTION. (a) The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if: (1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and (2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction. (b) This section does not apply if the adverse party has shown in abatement that the first filing was made with intentional disregard of proper jurisdiction.
87 APPENDIX 8
88 Deceptive Trade Practices Act §17.46(b)(23)
(b) Except as provided in Subsection (d) of this section, the term "false, misleading, or deceptive acts or practices" includes, but is not limited to, the following acts:
(23) filing suit founded upon a written contractual obligation of and signed by the defendant to pay money arising out of or based on a consumer transaction for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use in any county other than in the county in which the defendant resides at the time of the commencement of the action or in the county in which the defendant in fact signed the contract; provided, however, that a violation of this subsection shall not occur where it is shown by the person filing such suit he neither knew or had reason to know that the county in which such suit was filed was neither the county in which the defendant resides at the commencement of the suit nor the county in which the defendant in fact signed the contract;
89 APPENDIX 9
90 Tex. Fin. Code §392.304(a)(19) FRAUDULENT, DECEPTIVE, OR MISLEADING REPRESENTATIONS.
(a) Except as otherwise provided by this section, in debt collection or obtaining information concerning a consumer, a debt collector may not use a fraudulent, deceptive, or misleading representation that employs the following practices:
(19) using any other false representation or deceptive means to collect a debt or obtain information concerning a consumer.
91 APPENDIX 10
92 Affirmed as Modified and Opinion filed December 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00048-CV
JAMIE GENENDER AND CRITTER STUFF, LLC, Appellants V. USA STORE FIXTURES, LLC, Appellee
On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Cause No. 1016718
OPINION Appellee USA Store Fixtures, LLC sued appellants Jamie Genender and her business Critter Stuff, LLC in justice court after Genender successfully obtained a chargeback on her credit card related to her purchase of $2,303.42 in used shelving from Store Fixtures. Store Fixtures appealed a take-nothing judgment from the justice court to the county court, which held a trial de novo. A jury awarded Store Fixtures damages of $2,303.42 and attorney’s fees of $38,000 for trial, $20,000 for an appeal to the court of appeals, and $20,000 for an appeal to the Supreme Court of Texas. In three issues,
93 appellants contend the county court lacked jurisdiction over Store Fixtures’ breach of contract claim, the evidence is legally insufficient, and Store Fixtures is not entitled to attorney’s fees because it failed to plead and prove presentment of its claim.
We hold that the trial court had jurisdiction over Store Fixtures’ breach of contract claim and the evidence is legally sufficient to support the jury’s finding on that claim, but Store Fixtures failed to prove presentment. Accordingly, we modify the trial court’s judgment to delete the award of attorney’s fees and affirm the trial court’s judgment as modified.
I. BACKGROUND
Using a credit card, Genender purchased some used shelving from Store Fixtures for Genender’s business. Store Fixtures shipped the shelving to Genender in Wisconsin. But she was disappointed with the quantity and quality of the shelving she received and with Store Fixtures’ response to her concerns, so she filed a dispute with her credit card company that resulted in a chargeback to Store Fixtures. Store Fixtures sued appellants in justice court; all parties were pro se. After a bench trial, the justice court signed a take-nothing judgment in appellants’ favor, and Store Fixtures appealed to the county court. The parties hired attorneys and ultimately proceeded to a de novo jury trial with each side asserting claims for breach of contract and attorney’s fees.
The only issues submitted to the jury were whether any party failed to comply with the agreement, and if so, the amounts of damages and attorney’s fees. The jury found that appellants failed to comply with the agreement, Store Fixtures did not fail to comply with the agreement, Store Fixtures suffered damages of $2,303.42, and Store Fixtures’ reasonable and necessary attorney’s fees were $38,000 for preparation and trial, $20,000 for an appeal to the court of appeals, and $20,000 for an appeal to the Supreme Court of Texas. The county court signed a final judgment consistent with the jury’s verdict. This appeal followed. 2
94 II. SUBJECT MATTER JURISDICTION
In their first issue, appellants contend the county court’s judgment is void because the county court lacked subject matter jurisdiction over the only claim and basis for attorney’s fees supporting the judgment. Appellants argue that Store Fixtures did not plead a breach of contract claim in the justice court, and Store Fixtures’ contract claim was a “new ground of recovery” pleaded for the first time on appeal to the county court. See Tex. R. Civ. P. 574a, 50 Tex. B.J. 868 (1987, repealed 2013) (on appeal from justice court, “no new ground of recovery shall be set up by the plaintiff”).
Store Fixtures contends that it pleaded a breach of contract claim in the justice court because Store Fixtures reserved the right to plead orally and, at the justice court trial, Store Fixtures “sought to recover the total invoice amount under the theory that Genender and Critter Stuff had breached the contract by not paying for the shelving.”
First we will review the relevant proceedings and evidence in the record. Then we overrule appellant’s issue because appellants failed to rebut the presumption that Store Fixtures orally pleaded its breach of contract claim in the justice court.
A. Background and Evidence
Store Fixtures, acting through its president,1 filed two petitions in justice court. The petition naming Genender as a defendant alleged as follows:
That the defendant is legally indebted to the plaintiff in the sum of $10,000.00 based upon the following facts: Defendant, Jaimie Michele Genender, purposefully intended to defraud USA Store Fixtures LLC from financial gain by refusing payment on her credit card. Defendant also acted outside of her title and personally defamed and slandered this company in writing. Invoice $2,303.42 damages for slander $7,697.58. The petition naming Critter Stuff as a defendant alleged as follows: 1 See Tex. Gov’t Code Ann. 27.031(d) (“A corporation need not be represented by an attorney in justice court.”).
95 That the defendant is legally indebted to the plaintiff in the sum of $10,000.00 based upon the following facts: Defendant, Jamie Michele Genender, purposefully intended to defraud USA Store Fixtures LLC from financial gain by refusing payment on her credit card. Defendant also slandered and defamed this company in writing. Invoice amount $2,303.42 plus damages for slander and defamation.
Both petitions stated, “THAT plaintiff reserves the right to plead further orally upon trail [sic] of this matter.” See Tex. R. Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed 2013) (in justice court, “[t]he pleadings shall be oral, except where otherwise specially provided”).
After Store Fixtures appealed to the county court and retained counsel, it filed an amended petition asserting claims for breach of contract, negligent misrepresentation, fraud, fraud in the inducement, and quantum meruit. Store Fixtures also sought attorney’s fees. Appellants filed counterclaims for breach of contract and violations of the Deceptive Trade Practices–Consumer Protection Act (DTPA), Tex. Bus. & Com. Code Ann. subch. E. Appellants also sought attorney’s fees.
Store Fixtures filed a plea to the jurisdiction and motion to dismiss all of appellants’ counterclaims under former Rule 574a. The rule provided,
Either party may plead any new matter in the county or district court which was not presented in the court below, but no new ground of recovery shall be set up by the plaintiff, nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the court below. Tex. R. Civ. P. 574a, 50 Tex. B.J. 868 (1987, repealed 2013). Store Fixtures alleged dismissal was the proper remedy because the county court lacked subject matter jurisdiction over appellants’ newly pleaded counterclaims.2 Appellants responded that
2 See Hatmaker v. Farmers Tex. Cnty. Mut. Ins. Co., No. 14-98-00552-CV, 1999 WL 459788, at *3 (Tex. App.—Houston [14th Dist.] July 8, 1999, no pet.) (not designated for publication); Kramek v. Stewart, 648 S.W.2d 399, 401–02 (Tex. App.—San Antonio 1983, no writ); Tex. Co. v. Henderson, 154 S.W.2d 911, 911 (Tex. Civ. App.—El Paso 1941, no writ); Racugno v. Hanovia Chem. & Mfg. 4
96 severance was the proper remedy3 and also requested severance of Store Fixtures’ newly pleaded claims of breach of contract, quantum meruit, fraudulent inducement, and negligent misrepresentation. The county court granted partial relief to both sides, ordering severance of Store Fixtures’ negligent misrepresentation claim and appellants’ DTPA claim. At the de novo trial, only the contract claims were tried, along with the amounts of attorney’s fees.
B. Analysis
Regardless of whether Store Fixtures alleged a breach of contract claim in its written petitions in justice court, the law recognizes a presumption that Store Fixtures orally pleaded its breach of contract claim in justice court. See Gordon v. Zoes, 125 S.W.2d 1049, 1049–50 (Tex. Civ. App.—Galveston 1939, no writ) (holding that the county court’s judgment was not void based on an allegation that the plaintiff brought a new cause of action not pleaded in justice court; “While plaintiff filed certain written pleadings in the justice court, he expressly reserved the right in said pleadings to plead orally on the trial of the case. It is uniformly held in this State that in cases originating in the justice court, pleadings may be either oral or written, or partly oral and partly written. In the absence of a showing to the contrary, it will be presumed that said written pleadings were supplemented by such oral amendments as cured any defects therein, and that such pleadings as amended supported the judgment rendered by the trial court.”); Garcia v. Rendon, 59 S.W.2d 881, 881 (Tex. Civ. App.—San Antonio 1933, no writ) (“If the oral plea made by appellee was not pleaded in the justice’s court, appellant should have shown it. The mere fact that the justice of the peace did not note
Co., 110 S.W.2d 249, 250 (Tex. App.—Fort Worth 1937, no writ); see also Neal v. Beck Funeral Home, 131 S.W.2d 778, 780–81 (Tex. Civ. App.—Fort Worth 1939, writ dism’d). 3 See New Wave Props., Inc. v. Wikoff, No. 13-11-00762-CV, 2012 WL 2929623, at *3 (Tex. App.—Corpus Christi July 19, 2012, no pet.) (mem. op.); Harrill v. A.J.’s Wrecker Servs., Inc., 27 S.W.3d 191, 195 (Tex. App.—Dallas 2000, pet. dism’d w.o.j.); D’Tel Commc’ns v. Roadway Package Serv., Inc., 987 S.W.2d 213, 214 (Tex. App.—Eastland 1999, no pet.).
97 the oral pleadings did not prove that they were not made.”).4 This presumption exists because the rules specifically require oral pleadings in the justice court. See Tex. R. Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed 2013) (“The pleadings shall be oral . . .”).5
The presumption is rebuttable. See Gordon, 125 S.W.2d at 1049–50; Garcia, 59 S.W.2d at 881. For example, a statement regarding the oral pleadings may be noted on the justice court’s docket. See Tex. R. Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed 2013) (“The pleadings shall be oral . . . but a brief statement thereof may be noted on the docket . . . .”); see also Subcomm. on Interpretation of Rules of Civil Procedure, State Bar of Tex., Op. 27-a, 5 B.J. 287 (1942) (noting that this statement may be necessary because “it may become important to show what the old pleadings were with . . . contentions that a new cause of action has been set up for the first time in the county court”).
The record here contains no such notation, but the lack of a notation does not rebut the presumption of oral pleading. See Gordon, 125 S.W.2d at 1049–50; Garcia, 59 S.W.2d at 881; Amarillo Commercial, 140 S.W. at 378. Nor does the record contain any evidence that Store Fixtures did not orally plead a breach of contract claim in the
4 See also Fort Worth & D.C. Ry. Co. v. Brewer, 1 S.W.2d 686, 686 (Tex. Civ. App.—Amarillo 1928, no writ) (“If the record does not disclose that the written pleadings constituted the whole pleadings, it will be presumed that there were oral pleadings necessary to support the judgment.”); Amarillo Commercial Co. v. Chicago, R.I. & G. Ry. Co., 140 S.W. 377, 378 (Tex. Civ. App.— Amarillo 1911, no writ) (“[If] no oral pleadings on the part of the plaintiff are noted on the docket, it will be presumed that there was some oral pleading by plaintiff at the time the account was filed, from which the justice received that information, and which he failed to note upon the docket.”). 5 Parties have pleaded orally in justice courts since the early days of the Republic, and the practice continued in early statehood. See, e.g., Act approved Nov. 4, 1837, 2d Cong., R.S., § 1, 1837 Repub. Tex. Laws 14, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1356 (Austin, Gammel Book Co. 1898) (“[A]ll civil proceedings before justices of the peace, shall be had in a summary manner, and without the formality of a petition in writing . . . .”); Act approved Aug. 13, 1870, 12th Leg., C.S., ch. 65, § 7, 1870 Tex. Gen. Laws 87, 93, reprinted in 6 H.P.N. Gammel, supra, at 261, 267 (“The pleading in a justice’s court shall be oral . . . .”).
98 justice court.6 Because appellants did not rebut the presumption of oral pleading, we presume that Store Fixtures orally pleaded a breach of contract claim in the justice court, and therefore, the claim was not a new ground of recovery in the county court.
Appellants’ first issue is overruled.
III. SUFFICIENCY OF THE EVIDENCE
Appellants’ second issue is that “there is legally insufficient evidence that Jamie Genender or Critter Stuff breached any contractual duty to USA Store Fixtures.” Appellants argue that there is no evidence to support the jury’s “yes” answer for each appellant in Jury Question No. 1, which asked, “Did Jamie Genender and/or Critter Stuff fail to comply with the agreement?” Thus, appellants challenge the “breach” element of Store Fixtures’ claim and contend that the claim “must be based entirely upon Genender’s action in submitting a dispute of the transaction through the chargeback process established by her credit card company.”
Appellants contend that their “promise to pay was stipulated upon compliance with the Cardholder Agreement” because when Store Fixtures charged Genender’s credit card, Store Fixtures sent her an unsigned receipt (Defendant’s Exhibit No. 3), which states, “I agree to pay above total amount according to card issuer agreement. (Merchant Agreement if Credit Voucher).”7 So, because it is undisputed that Store Fixtures lost the credit card dispute due to its “failure to comply” with its merchant
6 In fact, in the first pleading filed in county court—appellants’ answer—appellants pleaded an “affirmative defense of failure of consideration,” thus indicating that Store Fixtures had previously pleaded a breach of contract claim. At the time, the only written pleadings Store Fixtures had filed were its justice court petitions. 7 Although some of these words on Defendants’ Exhibit No. 3 appear illegible, Store Fixtures’ does not contest appellants’ interpretation, so we accept as true this factual allegation. See Tex. R. App. P. 38.1(g) (“In a civil case, the court will accept as true the facts stated unless another party contradicts them.”).
99 account agreement, appellants claim they could not possibly have breached the contract for the sale of the shelving.8
Store Fixtures contends that there is evidence of appellants’ breach because they agreed to purchase goods, accepted the goods, and ultimately did not pay for the goods. We agree with Store Fixtures.
We find no authority, and appellants have cited none, to suggest that in general (or under any specific circumstances), a buyer has not breached a sale-of-goods contract as a matter of law when a credit card company reverses a charge in favor of the buyer at the buyer’s request. In fact, there is authority that a party’s obtaining a credit card chargeback does not erase liability for obligations owed. See CSL Prop. Mgmt. Co. v. Thyssenkrupp Elevator Co., No. 01-11-00665-CV, 2013 WL 396252, at *2, *6 (Tex. App.—Houston [1st Dist.] Jan. 31, 2013, no pet.) (mem. op.) (upholding summary judgment for the plaintiff on its indemnity claim where the factual basis for part of the claim was the defendant’s failure to indemnify an amount reversed by a third party’s credit card company). Defendant’s Exhibit No. 3 does not conclusively establish that the parties agreed to resolve disputes solely under their credit card companies’ chargeback policies. To the extent there was an ambiguity, the jury resolved it in favor of Store Fixtures. See Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987) (ambiguity in contract creates question of fact for jury).9
8 Appellants suggest this case has enormous implications for consumers in Texas and across the country [because it] addresses an all-too-common occurrence but a novel legal question: whether a consumer who properly and successfully disputes a credit card charge pursuant to a merchant’s agreement with its credit card company may nevertheless be sued by and found liable to that same merchant for the full disputed amount despite the merchant’s failure to comply with such agreement. 9 Appellants also ask this court to consider several excluded exhibits related to the credit card dispute, including Genender’s two-page complaint filed with her credit card company and a notification from Store Fixtures’ credit card company that the dispute was resolved in Genender’s 8
100 Store Fixtures adduced evidence that it sent appellants the shelving Genender ordered, that appellants accepted the shelving, and that Genender initiated a chargeback on her credit card, resulting in appellants’ failures to pay for the goods accepted.10 A buyer’s failure to pay the contract rate for goods accepted constitutes a breach of contract. See Tex. Bus. & Com. Code Ann. 2.607(a); see also Garden Ridge, L.P. v. Advance Int’l, Inc., 403 S.W.3d 432, 445 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (proper to instruct the jury about what constitutes acceptance of goods and about “the UCC’s provision that the buyer must pay the contract rate for goods it accepts”).11 Accordingly, the evidence is legally sufficient to support the jury’s affirmative answer to Jury Question No. 1.
Appellants’ second issue is overruled.
IV. PRESENTMENT
In their third issue, appellants contend “the county court erred in submitting to the jury and entering judgment on [Store Fixtures’] attorney’s fee award because there are no pleadings or legally or factually sufficient evidence of timely presentment.” We agree with appellants that there is no evidence to support an implied finding that Store Fixtures presented its claim.
To recover attorney’s fees for a breach of contract claim under Section 38.001 of the Texas Civil Practice and Remedies Code,
favor. These exhibits do not support appellants’ construction of the contract or remove any ambiguity about the terms of the contract. 10 There was conflicting evidence about whether appellants accepted the shelving and whether the shelving conformed to the contract. But the jury resolved this conflicting evidence in Store Fixtures’ favor, finding that appellants failed to comply with the agreement and Store Fixtures did not fail to comply with the agreement. We must defer to the jury’s resolution of conflicting evidence. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 820–21 (Tex. 2005). 11 The jury charge here defines “acceptance” and declares, “A buyer must pay at the contract rate for any goods accepted.”
101 (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.
Tex. Civ. Prac. & Rem. Code Ann. § 38.002. Presentment is a “demand or request for payment or performance, whether written or oral.” Gibson v. Cuellar, 440 S.W.3d 150, 157 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981)). No particular form of presentment is required. Id. However, merely filing suit for a breach of contract, by itself, does not constitute presentment. See Huff v. Fid. Union Life Ins. Co., 312 S.W.2d 493, 500 (Tex. 1958) (addressing predecessor statute).12
The claimant bears the burden of both pleading and proving presentment. See, e.g., Gibson, 440 S.W.3d at 157 (citing Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983)). “The purpose of the presentment requirement is to allow the party against whom the claim is asserted an opportunity to pay it or tender performance within 30 days after they have notice of the claim without incurring an obligation for attorney’s fees.” Id. (citing Jones, 614 S.W.2d at 100).13
12 See also Gutierrez v. Wright Lawfirm, PLLC, No. 05-10-00725-CV, 2012 WL 1898950, at *6 (Tex. App.—Dallas Apr. 27, 2012, no pet.) (mem. op.); Belew v. Rector, 202 S.W.3d 849, 857 (Tex. App.—Eastland 2006, no pet.); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Evans Cooperage of Houston, Inc. v. Port Drum Co., No. C14-92-00966-CV, 1994 WL 7243, at *4 (Tex. App.—Houston [14th Dist.] Jan. 13, 1994, writ denied) (not designated for publication); Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 904 (Tex. App.—Austin 1991, no pet.); Mackey v. Mackey, 721 S.W.2d 575, 579 (Tex. App.—Corpus Christi 1986, no writ). 13 The parties dispute when exactly presentment must be made, and this court appears to have conflicting precedent on the subject. Compare Caldwell & Hurst v. Myers, 714 S.W.2d 63, 65 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (“Proper presentment is the assertion of a claim and a request for payment made 30 days before initiation of a suit.”), with Peissel v. Peissel, 620 S.W.2d 796, 800 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ) (“The rule in Texas is presentment of the claim must be made at least 30 days before trial, even if made after the suit is filed.”), and Cano v. 10
102 Generally, presentment is an issue of fact. See id. at 157 n.7 (trial court’s finding of presentment was a finding of fact, not a conclusion of law); see also France v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex. 1983) (trial court erred to conclude that the plaintiff was not entitled to attorney’s fees when there was some evidence of presentment; “At the very least, a fact issue was raised here as to presentment.”); cf. Roylex, Inc. v. Avco Cmty. Developers, Inc., 559 S.W.2d 833, 838 (Tex. App.—Houston [14th Dist.] 1977, no writ) (“Since the evidence on presentment was conclusive, that issue did not have to be submitted to the jury.”); Turner v. Lubbock Cnty. Hosp. Dist., No. 07-96-0272-CV, 1998 WL 3554, at *5–6 (Tex. App.—Amarillo Jan. 6, 1998, no pet.) (not designated for publication) (finding reversible jury charge error because the issue of presentment “should have been submitted to the jury for determination” when the evidence was disputed).
When, as here, the issue of the amount of attorney’s fees is found by the jury without a request for a jury finding on the issue of presentment, Rule 279 of the Texas Rules of Civil Procedure operates so presentment is deemed found. See Adams v. Petrade Int’l, Inc., 754 S.W.2d 696, 720 (Tex. App.—Houston [1st Dist.] 1988, writ denied) (deemed finding on presentment); Atkin v. Cobb, 663 S.W.2d 48, 53 (Tex. App.—San Antonio 1983, writ dism’d) (same). Appellants now challenge the sufficiency of the evidence to support the deemed finding. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228–29 (Tex. 2011) (deemed findings may be reviewed for
Nino’s Paint & Body Shop, No. 14-08-00033-CV, 2009 WL 1057622, at *7 (Tex. App.—Houston [14th Dist.] Apr. 16, 2009, no pet.) (mem. op.) (“Presentment may be made either before or after filing suit, provided it is made at least 30 days before judgment.”). Because we hold that Store Fixtures failed to prove presentment under the latest timeframe possible—30 days before judgment—we need not resolve when presentment must be made.
103 sufficiency of the evidence); see also Adams, 754 S.W.2d at 720 (legally sufficient evidence supported deemed finding on presentment).14
Store Fixtures contends that it proved presentment in a number of ways: (1) by sending appellants an invoice; (2) by making a demand for payment during the credit card dispute; (3) by providing appellants discovery responses showing a claim for breach of contract; and (4) by engaging in settlement negotiations and orally making a demand for payment during those negotiations. We address each contention in turn.
A. Invoice
Store Fixtures contends that Genender admitted to receiving an invoice as well as having the credit card charge reversed, “thus constituting non-payment of the invoice.” Evidence that the plaintiff sent an invoice to the defendant can satisfy a plaintiff’s burden to prove presentment. See Gordon v. Leasman, 365 S.W.3d 109, 116 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Roylex, Inc., 559 S.W.2d at 838. But Store Fixtures cites to Plaintiff’s Exhibit No. 1, which is not an “invoice” but rather a “quote” dated April 18, 2011. It is undisputed that this quote was prepared several weeks before appellants agreed to purchase any shelving—before any contract was formed—and it did not reflect the parties’ actual agreement as to the amount of shelving and cost of shipping.
Because no contract then existed, Store Fixtures had no breach of contract claim against appellants, and there was no “just amount owed” to Store Fixtures.
14 An award of attorney’s fees must be reversed if there is no evidence of presentment. See Helping Hands Home Care, Inc. v. Home Health of Tarrant Cnty., Inc., 393 S.W.3d 492, 516–17 (Tex. App.—Dallas 2013, pet. denied) (trial court correctly granted JNOV denying attorney’s fees because there was no evidence of presentment); Border Gateway, L.L.C. v. Gomez, No. 14-10-01266-CV, 2011 WL 4361485 (Tex. App.—Houston [14th Dist.] Sept. 20, 2011, no pet.) (mem. op.) (trial court abused its discretion in a bench trial by awarding attorney’s fees because there was “no evidence” of presentment); Edinburg Meat Prods. Co. v. Vernon Co., 535 S.W.2d 432, 437 (Tex. Civ. App.— Corpus Christi 1976, no writ) (sustaining “no evidence” point on presentment issue).
104 Accordingly, Plaintiff’s Exhibit No. 1 is not evidence of presentment as a matter of law. See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 817–19 (Tex. 2006) (plaintiff’s demand for underinsured motorist benefits made before a court signed a judgment on the motorist’s liability and damages was not evidence of presentment as a matter of law because at the time of the alleged presentment there was no contractual duty to pay; when there is no contractual duty to pay, there is no “just amount owed” under Section 38.002; reasoning that a contract claim requires the existence of a duty or obligation that the opposing party has failed to meet); cf. McNeil v. BMC Software Inc., 306 Fed. App’x 889, 894 (5th Cir. 2009) (employee’s request that employer promise to pay a bonus that had not yet accrued was not presentment as a matter of law; at the time of the request, there was no “just amount owed” and no “claim” to present; request for a party to meet its future contractual obligations is not a claim for a just amount owed).15
B. During the Credit Card Dispute
Store Fixtures contends that it presented its breach of contract claim by “inform[ing] the credit card company during the credit card dispute that it would seek legal action if the charges were reversed,” and by making a demand for payment “during the entire dispute.” Store Fixtures cites Defendant’s Exhibits Nos. 26 and 32.
Defendant’s Exhibit No. 26 is a one-page document titled “chargeback notification” apparently sent from “merchant services” to Store Fixtures to notify Store
15 Although not cited by Store Fixtures on appeal, Plaintiff’s Exhibit No. 3 is an “invoice” contained in this the record. It is dated May 3, 2011, the date that appellants paid for the shelving on Genender’s credit card. But it shows a “Payments/Credits” of the full amount of the invoice and a “balance due” of $0.00. This does not show a demand for payment on an existing claim for a just amount owed. Further, we note that Store Fixtures contends that nonpayment occurred when the credit card charge was reversed. But Store Fixtures’ president testified that Store Fixtures never demanded payment or contacted Genender about a contract claim before initiating suit in the justice court. There is no evidence that Store Fixtures sent an invoice to appellants showing a balance owing—no demand for payment.
105 Fixtures of the chargeback and explain what Store Fixtures could do to contest the chargeback. This document does not show a demand for payment from Store Fixtures.
Defendant’s Exhibit No. 32 consists of about ninety pages of documents from Bank of America Merchant Services, Store Fixtures’ merchant account provider. Appellants had requested, among other things, any and all records reflecting “any communications by Chase, Merchant Services, and/or the parties.” We have reviewed the exhibit. It contains no demand for payment from Store Fixtures.
C. Discovery Responses
Store Fixtures contends that it presented its claim by providing appellants “discovery responses,” which “show[ed] Plaintiff’s claim for breach of contract, the basis of the claim and it[s] claim for damages.” Store Fixtures does not cite to the record for this assertion nor describe in any way how a demand for payment was made through its “discovery response.”16
D. Settlement Negotiations
Finally, Store Fixtures contends that it orally presented its claim to appellants’ counsel during settlement negotiations. As evidence, Store Fixtures first cites to Plaintiff’s Exhibit No. 6, which consists of copious billing records from Store Fixtures’ lawyers. Store Fixtures refers to an entry for July 12, 2012: “confer with opposing counsel re: potential to resolve.” Evidence that the parties participated in settlement negotiations, without more, is no evidence of presentment. See Border Gateway, L.L.C. v. Gomez, No. 14-10-01266-CV, 2011 WL 4361485, at *9 (Tex. App.—Houston [14th
16 We have reviewed Exhibit C to Store Fixtures’ response to appellants’ motion to disregard the jury’s answer to Jury Question No. 5 regarding attorney’s fees, which is Store Fixtures’ response to appellants’ request for disclosures. The document does not demand payment of the claim but rather explains the legal theories and factual bases for the claim. Regardless, the trial court would have abused its discretion by considering the document for the same reasons articulated below in Part IV.D of this opinion regarding the affidavit.
106 Dist.] Sept. 20, 2011, no pet.) (mem. op.). Such evidence is insufficient to prove presentment because it does not satisfy the purpose of the presentment requirement: to provide the defendant with “the opportunity, by undertaking specific action, to avoid paying attorney’s fees.” Belew v. Rector, 202 S.W.3d 849, 856–57 (Tex. App.— Eastland 2006, no pet.) (evidence that counsel “had some settlement discussions” was insufficient).
Next, Store Fixtures refers to an affidavit from its counsel, Jerrad Bloome, where he testified that he made a demand for payment of the invoice amount to appellants’ counsel on July 12, 2012. However, Store Fixtures filed this affidavit after the jury had reached a verdict, only in response to appellants’ motion to disregard the jury’s answer to Jury Question No. 5 concerning attorney’s fees. Appellants objected to the trial court’s consideration of the affidavit,17 but the trial court overruled the objection.
Although a trial court has discretion to permit additional evidence to be offered at any time, “in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” Tex. R. Civ. P. 270. Here, the issue of presentment was controverted. Appellants had pleaded in their answer that Store Fixtures failed to present its claim, and appellants objected during trial to the submission of Jury Question No. 5 because Store Fixtures had failed to offer any evidence of presentment. After the jury’s verdict, appellants filed a motion to disregard the jury’s finding on attorney’s fees and an amended JNOV on the issue because there was no evidence of presentment. At the hearing on the post-verdict motions, after the trial court had overruled appellants’ objection to the affidavit, the trial court allowed appellants to make a record about the lack of presentment. Counsel for appellants, Jan Fox, testified that she had no records of any July 12 conversation with Bloome, that it would have been her practice to
17 Appellants objected because the affidavit was “an improper and untimely attempt to supplement the record before the jury.”
107 document such a conversation, and that no such conversation occurred based on her records.18
Under these circumstances, the trial court abused its discretion by reopening the evidence on a controverted matter after dismissing the jury, and the trial court should have granted appellants’ motion to disregard the jury’s finding on the issue of attorney’s fees and entered judgment accordingly. See Helping Hands Home Car, Inc. v. Home Health of Tarrant Cnty., Inc., 393 S.W.3d 492, 516–17 (Tex. App.—Dallas 2013, pet. denied) (trial court correctly granted JNOV on attorney’s fees and refused to reopen the case for evidence of presentment because “the evidence is insufficient to show Specialties met the procedural requirements for the award”); see also Univ. of Tex. at Austin v. Ables, 914 S.W.2d 712, 718 (Tex. App.—Austin 1996, no writ) (trial court abused its discretion under Rule 270 by considering evidence about the amount of attorney’s fees after the jury’s verdict; rendering take-nothing judgment on attorney’s fees), cited with approval in Hatfield v. Solomon, 316 S.W.3d 50, 67 (Tex. App.— Houston [14th Dist.] 2010, no pet.).
Because there was no evidence before the jury to support a deemed finding that Store Fixtures presented its claim to appellants, we sustain appellants’ third issue.19
V. CONCLUSION
Appellant’s first and second issues are overruled, but appellants’ third issue is sustained. We modify the trial court’s judgment to delete the award of attorney’s fees— in particular, the following paragraph:
18 Although Bloome testified before the jury about the amount of his fees, he did not testify about the alleged July 12 demand. 19 Because we conclude Store Fixtures failed to prove presentment, we do not address appellants’ contention that Store Fixtures failed to plead presentment. See Tex. R. App. P. 47.1.
108 It is hereby ORDERED that Jamie Michele Genender and Critter Stuff, L.L.C., jointly and severally, pay to USA Store Fixtures the amount of $38,000, representing the reasonable and necessary attorneys’ fees in this case and a contingent award of attorneys’ fees in the amount of $20,000 if this case is appealed to the Court of Appeals, and $20,000 if this case is appealed to the Supreme Court of Texas.
We affirm the trial court’s judgment as modified.
/s/ Sharon McCally Justice
Panel consists of Justices McCally, Brown, and Wise.
109 APPENDIX 11
110 _:.:::;~~..::--~...::~;;...' .;:;;_•"'..;;;;.:.--."'"...:.~_:-_---~\....:..~.>_i-._._<.•_ ,_L-=--- , Plaintiff ••__ IN JUSTICE •s COURT
_i.:)';;.. ·'-. :S:.. .:"!-:.. .·:;;.-g_......~.;::;"··:........_,lc::...Y~_-::...::.,"'_.:.,_·_ _ _ _ ,Address JUSTICE PRECINCT NO. 3 \
-"'--~=---= ....•_""";:;. ·..s-'~-"-w_·_,_\ti---"----'-,r_·.~_.:._~1__5_-___ , City POSITION 1
VS. HARRIS COUNTY, TEXAS
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PLAINTIFF'S ORIGINAL PETITION
COMES-NOW the above style Plaintiff complaining of the above style defendant and for cause of action would show the court as follows:
I. THAT the defendant may be served at the above stated address.
IL
THAT the defendant is legally indebted to the plaintiff in the sum of$ _..:.:t·t=-;,~,r~g..:.:_;t"-'-":Jr:r._~_·_ _ _ _ _ based upon the following facts: -- ':·r:·'-'{ ''?..., ........~... ' I~ ..._J l·..,·\,)..." &<... ~ J/.._(_\ .. U, !-:...,, - ·---""""' --"' ....~'- )\_... ~ l •j l .: (. ,:·'.'!li·:'"'"t-\...t \\._, w..,. :·
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III.
THAT plaintiff reserves the right to plead further orally upon trail of this matter.
- - L -./ "' .,), _..c_,..-- ~ .. ~ 1,,,,,.,0 Plaintiff's Signature
·"· ....1 ... 1',,. {' ! • day of· 11 I_ .. · ; , 20_,_~_.
-~~~ Notary Public, State of Tex.as I Clerk of Court Judge Mike Parrot f Justice of the Peace Precinct 3-1, Harris County Texas
811 ::!::!nlS Cl3HICl:J
111 19 APPENDIX 12
112 CAUSE NO. 1016718
USA STORE FIXTURES, LLC § § § § vs. § § § § JAIME MICHELE GENENDER § HARRIS COUNTY, TEXAS
DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER AND ORIGINAL COUNTERCLAIM
COMES NOW, Jamie Michele Genender, Defendant in the above entitled and numbered cause, and makes this, her First Amended Original Answer and Original Counter Claim, and would show the Court the following:
I.
GENERAL DENIAL
1. Defendant generally denies all of the allegations contained in Plaintiffs
Petition pursuant to the provisions of Rule 92 of the Texas Rules of Civil Procedure.
2. Defendant demands a trial by jury.
II.
AFFIRMATIVE DEFENSES
3. Subject to and without waiving the foregoing, Defendant asserts and raises the
following affirmative defenses:
113 128 a. Defendant asserts the affirmative defense of failure of consideration.
b. Defendant asserts the affirmative defense of failure to mitigate damages.
c. Defendant asserts the affirmative defense of estoppel.
d. Defendant asserts the affirmative defense of truth in response to Plaintiffs allegations of
libel and slander.
e. Plaintiffs defamation, slander, and libel claims are unreasonable, frivolous, vexatious,
and/or brought to harass Defendant.
ORIGINAL COUNTERCLAIM
Defendant and Counter-Plaintiff Critter Stuff, LLC makes this its' Original Counterclaim against
Plaintiff USA Store Fixtures and would respectfully show the Court as follows:
A. BACKGROUND
I. This action arises from a sales contract between USA Store Fixtures and Critter Stuff,
LLC, of which Jamie Genender is shareholder and agent, for the sale and delivery of the parts to
construct some thirteen various shelving units. The order was finalized and agreed upon on May
3, 2011 at which time a Critter Stuff, LLC credit card was charged for the sale, $2,303.42. The
specified and agreed upon shipping dates came and went with no delivery. Only after Genender
made multiple efforts at communicating with the company were the items actually shipped.
Immediately upon arrival, the general defective and ramshackle nature of the goods was noted,
including specific damage so severe as to make some parts unusable. Beyond even this there
were multiple pieces missing from the order. These issues were noted by Critter Stuffs
employees on site at the time of delivery on the shipping receipt and notice was sent to the USA
Store Fixtures email immediately as per USA Store Fixtures' Return Policy. The reply stated that
114 129 there should have been extra parts delivered in case of damage. These turned out to be an
unusable collection of broken peg board and mismatched scrap which did nothing but add to the
sizable shipping cost Critter Stuff, LLC had absorbed. The USA Store Fixtures reply went on to
indicate that Defendant and Counter-Plaintiff should assemble the shelves and determine what
was missing or too badly damaged so that they could be replaced. This was attempted and found
to be largely impossible due to the incomplete and inoperative nature of the items delivered. To
date, no replacement part or reimbursement has ever been delivered to Defendant and Counter-
Plaintiff. Critter Stuff, LLC agent Jamie Genender made multiple efforts to contact the Plaintiff
and Counter-Defendant to rectify the situation. After being verbally assaulted and threatened by
USA Store Fixtures' President, Defendant and Counter-Plaintiff ceased contact and was forced
to get shelves from another provider in order to meet the store's grand opening deadline. At this
point, Defendant disputed the validity of the credit card charge of $2,303.42, whereupon Plaintiff
immediately filed suit with the Justice of the Peace.
B. CAUSES OF ACTION
1. Deceptive Trade Practices Violations
a. USA Store Fixtures, LLC committed the following false and misleading acts, which constitute
violations of the Deceptive Trade Practices Act, §17.46(5), (7), (9), (12), and (24):
1. The goods provided were deteriorated to the point of not being functional for the purpose
and use represented by USA Store Fixtures. §17.46(b)(5)
2. The quality of the goods provided fell so far below the standard represented as to be
unusable. The types of items provided also differed from those listed in the invoice. §17.46(b)(7)
3. The advertising on Store Fixture USA' s website represents that used shelving may have
superficial dings and scratches but that "it will still perform for what you need it to do most."
115 130 () This is patently untrue, as many of the parts were so defective as to fail to perform as shelving. .;·~'j: ::'....
§I 7.46(b)(9)
4. USA Store Fixtures, LLC's Return Policy as displayed on its website represents that
materials delivered damaged are subject to valid claim so long as their inferior quality is noted
:r.J on the delivery receipt with the driver's signature at the time of delivery, photographs are taken
<) of the damaged parts, all original packaging is retained, and the damaged goods are reported
within three days of delivery. Defendant and Counter-Plaintiff complied with all of these
requirements and was never furnished replacement parts or reimbursement. §I 7.46(b)(12)
5. Had USA Store Fixtures fully disclosed the level of disrepair and shabbiness that these
used shelves were in, the half measures and disorganization involved in shipping, and the
disdain, crudeness, and threats that constitute its customer service, Defendant and Counter-
Plaintiff never would have entered into the sale agreement. USA Store Fixtures, LLC failed to
make such disclosures, although the extent of the incompleteness and damage and the method of
dealing with customers, as in the instance described, were known to the seller at the time of the
transaction. §I 7.46(b)(24).
6. Each of the foregoing violations committed by USA Store Fixtures, LLC was committed
knowingly, entitling Defendant and Counter-Plaintiff to treble damages. §17.SO(b)(I)
2. Breach of Contract
a. Defendant and Counter-Plaintiff and USA Store Fixtures entered into a written Contract for
the purchase of shelving, and Counter-Plaintiff performed all conditions precedent to entitle it to
performance by USA Store Fixtures, LLC on the Contract. USA Store Fixtures, LLC breached
that Contract, through failed and refused performance, by not delivering goods as promised.
IV.
116 131 () ATTORNEYS' FEES r"' \J As a result of the facts alleged above, it has become necessary for Defendant and Counter-
Plaintiff to retain the services of Jan Woodward Fox, P.L.C., licensed and practicing attorney in
Harris County, Texas, to defend against the claims brought by Plaintiff and Counter-Defendant
f.i ·~ ...i' herein and to prosecute its counterclaims herein. Jamie Genender is entitled to the recovery of
her reasonable attorneys' fees incurred in said defense and prosecution, for which it now prays.
C. PRAYER FOR RELIEF
WHEREFORE, PREMESIS CONSIDERED, Defendant and Counter-Plaintiff prays for the
following relief:
(a) That Plaintiff take nothing from Defendant and Counter-Plaintiff;
(b) An order dismissing with prejudice all of USA Store Fixtures' claims against Defendant and
Counter-Plaintiff;
(c) Actual damages;
(d) Treble damages;
(e) Attorney's fees;
(f) Pre- and post -judgment interest; and also such other and further relief to which it may justly
be entitled.
B9V~· (Signed with permission)
117 132 ···"''
Jan Woodward Fox State Bar No. 07334500 The Lyric Centre 440 Louisiana, Suite 900 Houston, Texas 77002 (713) 623-8600 (telephone) (713) 807-1758 (facsimile)
ATTORNEY FOR DEFENDANT AND COUNTER-PLAINTIFF , JAMIE MICHELE GENENDER
118 133 '"j: ,(,.
I hereby certify that a true and correct copy of the foregoing instrument has been sent, by certified mail, return receipt request, and/or by regular U.S. mail, and/or by messeng~~ and/or by facsi · e transmission or electronically transmitted by the Court on the ?o ~ day of --=;:z~£=:3~--' 2012, to the following counsel ofrecord:
Jerrad Bloome Weycer, Kaplan, Pulaski & Zuber 11 Greenway Plaza, Ste. 1400 Houston, Texas 77046 Facsimile: (713) 961-5341
*
(Sigi;ied by permission)
----·--------'~"------------------ _....,.., _________ 119 134 APPENDIX 13
120 PLAINTIFF: USASTORE FIXTURESLLC COURT NO. IN JUSTICE JUSTICEPRECINCT VS. POSITION1 HARRISCOUNTY,TEXAS DEFENDANT:JAIMEMICHELEGENEDER
ANSWER The denies being indebted to the plaintiff in the sum of $10,000.
The Defendant did not purpose fully intended to deprive USA Store Fixtures from gain by refusing payment on the credit card. The invoice (#10025) was paid in full by credit card. The went into dispute after several attempts were made by Defendant to have plaintiff replace the damaged goods, ship the missing items and products from said order. (see attached)
The Defendant did not act outside her title. The Defendant, spoke with the company, placed the order, received less than the order, broken parts and misc scraps of metal in a box. (see attached )
The Defendant did not defraud or slander the USA Store Fixtures company. The Defendant contacted and attempted several times to give the Plaintiff the opportunity to fill the order as per the invoice. They also stated they would replace the missing items and the damages verbally and in an email. After several attempts made by the Defendant to the Plaintiff requesting a date when the missing items and damaged items will be send, the President of the company, Larry Kirkwood became very hostile. The Defendant asked for the items that were paid for, or an adjustment in the bill. The verbal attacked and threatened me. It was best at this time to try and resolve this matter through the credit card company. (see attached) It was not until it was disputed with the credit card company, that a law suit was filed.
The Defendant prays for relief that this citation/court case be dismissed, and the bill adjusted accordingly to what the Defendant received, minus damaged that are not usable at all, and box of scrap metal.
PRINTNAME: JamieMichelleGenender ADDRESS:220 (STREET) Lake (CITY) Lake Silver (STATE)Wisconsin (ZIP)53170 2244898884 PHONE: No. H—0l—60(Rev. 01/01/2011)
Subscribed and sworn to before me, this the day of 2011. , -¤ . Notary Public / State of Wisconsin
Number of Pages
121 17 APPENDIX 14
122 CV-Judgment for Defendant
Case Number: USA STORE LLC § In the Justice 14538 KENNY ST § Texas HOUSTON, TX 77015- § Precinct 3, Place 1 laintiff§ vs. 14350 WALLISVILLE ROAD JAIMEMICHELEGENDER SUITE102 220 E LAKE ST § TX 77049-4135 SILVER LAKE, WI 73170-
Judgment For Defendant BeforetheCourt This the 05/23/ 12 came on to be tried in its regular order the above-styled and numbered cause, wherein the above named Plaintiff(s) and Defendant(s) came in person and/or by their and ready for and neither party having demanded a jury, all matters in controversy, of fact and of law, were submitted to the sitting without a jury; and the pleadings, evidence and argument of counsel having been heard by the Court, it is the opinion of the that the Plaintiff should take nothing by his suit; that the Defendant, go hence with his costs without day and that execution issue in Defendant’s behalf for his said costs.
and signed on: 5/23/2012 JUDGE MIKE PARROTT Justice of the Peace, Precinct 3, Place 1 Harris County,
·
-
JUl5l-ICVJDCT41Page 1 ot`1
123 67 APPENDIX 15
124 11 County
CAUSENO. 1016718
USA STORE FIXTURES, LLC § IN THE COUNTY CIVIL COURT
VS. AT LAW NUMBER ONE (1)
JAMIE MICHELE GENENDER HARRIS COUNTY, TEXAS
[CONSOLIDATED WITH]
NO.1016719 CAUSE USA STORE FIXTURES, LLC § IN THE COUNTY CIVIL COURT
VS. AT LAW NUMBER TWO (2) § CRITTER STUFF, LLC § HARRIS COUNTY, TEXAS
PLAINTIFF USA STORE FIXTURE’S ORIGINAL PETITION
COMES NOW, USA STORE FIXTURES, LLC (“USA") and this
Petition of the acts of JAMIE MICHELE GENENDER and CRITTER
STUFF, LLC ("Defendants"); and in thereof, will show the Court as follows:
I. Introduction
USA is in the business of selling used shelvingand to businessesand individuals.
Defendants purchased shelving from USA. Defendants, after receipt of the merchandise,
disputed the credit charge and had the charge reversed. Defendants have failed to pay for the
merchandisewhich it is currentlyusing in its business.
II. Discovery Level
This matter should proceed under a Level l discovery plan under the Texas Rules of
Civil Procedure.
125 141 III. Parties is USA Store Fixtures,LLC is a limited companyduly formedand underthelawsoftheStateofTexas. authorized residentof Wisconsin is an individual JamieMicheleGenender Defendant andhas already an appearance in this matter and can be served by serving her attomey of record.
Defendant Critter Stuff, LLC is a limited liability company duly and authorized
under the laws of the State of Wisconsin and has already made an appearance in this matter and
can be served by serving its attorney of record. IV. Venue and Jurisdiction
This court has jurisdiction over this matter as it is an appeal from Justice Court and
within the jurisdictional limits of the Court. Venue is proper in Harris County as it is the proper
venue for the appeal as well as a substantialportion of the actions related to this matter occurred
in Harris County, Texas.V.
Facts
On or about May 3, 20ll, Defendants entered into a contract by way of a purchase
order/invoicewith USA. Defendantsagreed to pay for the merchandise,and was well aware that
the merchandise was "used" and being sold "As-Is, Defendants received the
merchandise and are utilizing the merchandise. Despite the fact that the merchandise was not
returned and is continued to be used by Defendants, almost 2 months after receiving the
merchandise, Defendants a on the credit card transaction. As a result of the
chargeback,Defendants never paid for the merchandisewhich it failed to return and continues to
utilize. The chargeback was not initiatedby Defendantsuntil almost a month after receipt of the
merchandisedfrom USA.
126 142 VI. CausesofAction Contract USA and Defendantsentered into a for the purchase of goods.
USA performed its obligations under the contract. Defendants have breached the contract by
failing to pay for the goods pursuant to the contract. As a result, USA suffered damages for
whichit nowsues. Fraud and Fraud in the Inducement
Defendants made certain representations regarding payment for the goods that USA
delivered as inducement to USA to enter into the Contract. USA relied upon those
representations,which were false, to its detriment. Defendantsmade those representationswith
the intent that USA rely upon them. As a result of the misrepresentationsmade by Defendants,
USA sufferedactual damagesfor which it now sues.
Quantum Meruit
In the altemative, USA provided Defendants with goods for which Defendants were
aware that USA expected payment. Defendants are utilizingthe goods and have failed to pay for the goods. As such, Defendants are unjustly enriched to USA’s detriment. USA has suffered
damages for which it now sues.Att0rneys’
Fees
As a result of Defendants’ actions and inactions, USA retained legal counsel, and
pursuant to applicable statutes and common law, USA demands all reasonable attorneys’ fees
incurredin this Lawsuit.
127 143 WHEREFORE, USA STOREFIXTURES,LLC requeststhat Defendants JAMIE MICHELE GENEDER be cited to and answer herein, and that upon trial
hereof,Plaintiff havejudgment against Defendantsfor the following:
1. All actual, special and consequentialdamages incurredby Plaintiff;
2. Attorneys’ fees, including conditional awards in the event of an appeal;
3. Pre- and post-judgmentinterest at the maximum rate permitted by applicable law;
4. All costs of Court; and
5. Such other and further relief to which the Plaintiff may be justly entitled.
Respectfullysubmitted,
D. JERRAD D. BLOOME State Bar No. 24001755 Eleven GreenwayPlaza Suite 1400 Houston, Texas 77046 Telephone:(713) 96l·9045 Facsimile: (713) 961-5341
ATTORNEYS FOR USA STORE FIXTURES, LLC
128 144 SERVICE CERTIFICATE I hereby that a true and correct copy of the Petition has been forwarded via facsimile on September l l, 2012, to:
Ms.JanWoodwardFox 440 Louisiana,Suite 900 Houston, Texas 77002 (713) 807·l758 (facsimile)
By: /S/ D. Bl00me JERRADD. BLOOME
129 145 APPENDIX 16
130 JUDGE MIKE PARROTT PEACE THE PRECINCT3, POSITION 1 TEXAS
14350WALLISVILLEROAD TEL713-450-2409 HOUSTON, TX 77049-4135 FAX 713-451-8074
5, 2012
StanStanart County Clerk P O Box 1525 Texas 7725 1-1525
USA STORE LLC VS:JAIME MICHELEGENDER
DearMr.
Enclosed please the above referenced case that has been appealed by Plaintiff, USA STORE FIXTURESLLC.
If you have any questions, please contact us at 713- 450-2409.
Yours very truly,
CivilDepartment
. __
131 73 APPENDIX 17
132 1
1 REPORTER'S RECORD VOLUME 4 OF 8 VOLUME 2 TRIAL COURT CAUSE NO. 1016718 FILED IN 14th COURT OF APPEALS APPELLATE COURT NO. 14-14-00048-CV HOUSTON, TEXAS 3 3/31/2014 12:31:43 AM 4 USA STORE FIXTURES, : IN THE CHRISTOPHER COUNTY CIVIL A. PRINE COURT L.L.C. : Clerk 5 : VS. : AT LAW NUMBER ONE (1) OF 6 : JAMIE GENENDER and : 7 CRITTER STUFF, L.L.C. : HARRIS COUNTY, T E X A S
9 10
11 ___________________________________
12 TRIAL PROCEEDINGS ___________________________________ 13
15 16 On the 22nd day of August, 2013, the following
17 proceedings came on to be held in the above-entitled and
18 numbered cause before the Honorable Debra Ibarra
19 Mayfield, Judge Presiding, held in Houston, Harris
20 County, Texas.
21 Proceedings reported by computerized stenotype
22 machine.
24 25
LETTIE B. WITTER, CSR 713-368-6613
133 143
1 Q You don't remember posting a negative comment?
2 A No, I don't.
3 Q Okay. If you did post a negative comment would
4 that be the action --
5 MS. FOX: Objection, Your Honor.
6 THE COURT: Yeah, we talked about it.
7 MR. BLOOME: Your Honor, at this time we
8 would like to show the video that is Defendant's 35,
9 which is the video that was taken by the private
10 investigator of the store.
11 THE COURT: Okay. No audio.
12 MR. BLOOME: No audio. I can make sure
13 there's no audio.
14 (Video, Defendant's Exhibit No. 35,
15 published without audio.)
16 THE COURT: You can go back on the record.
17 Q (By Mr. Bloome) And, again, Ms. Genender --
18 Genender, I'm sorry. You believe you rejected the
19 entire shipment on the day of delivery, correct?
20 A Yes, I do.
21 Q And you believe a reasonable time for USA Store
22 Fixtures to have come and picked up that product after
23 the rejection would have been immediately?
24 A They could have picked it up any time. It was
25 ready any time they wanted it.
134 190
1 THE STATE OF TEXAS 2 COUNTY OF HARRIS 3 I, LETTIE B. WITTER, Official Court Reporter in and 4 for County Court at Law No. 1 of Harris, State of Texas, 5 do hereby certify that the above and foregoing contains 6 a true and correct transcription of all portions of 7 evidence and other proceedings requested in writing by 8 counsel for the parties to be included in this volume of 9 the Reporter's Record in the above-styled and numbered 10 cause, all of which occurred in open court or in 11 chambers and were reported by me. 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, 14 if any, offered by the respective parties. 15 I further certify that the total cost for the 16 preparation of this Reporter's Record is $5,244.50 and 17 was paid/will be paid by Jan Woodward Fox. 18 WITNESS MY OFFICIAL HAND on this the 30th day of 19 March, 2014. 20
21 /s/ Lettie B. Witter __________ Lettie B. Witter, CSR 6772 22 Expiration Date: 12/31/2014 Official Court Reporter 23 County Civil Court at Law No. 1 Harris County, Texas 24 201 Caroline Street, 5th Floor Houston, Texas 77002 25 Telephone (713) 368-6613
Related
Cite This Page — Counsel Stack
Jamie Genender v. Larry Kirkwood and USA Store Fixtures, LLC, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamie-genender-v-larry-kirkwood-and-usa-store-fixtures-llc-texapp-2015.