Owen v. Jim Allee Imports, Inc.

380 S.W.3d 276, 2012 WL 3755750, 2012 Tex. App. LEXIS 7271
CourtCourt of Appeals of Texas
DecidedAugust 29, 2012
DocketNo. 05-10-01021-CV
StatusPublished
Cited by38 cases

This text of 380 S.W.3d 276 (Owen v. Jim Allee Imports, Inc.) 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.

Bluebook
Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 2012 WL 3755750, 2012 Tex. App. LEXIS 7271 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By

Justice BRIDGES.

Appellant/Cross-Appellee James H. Owen appeals from the trial court’s order granting Jim Allee Imports, Inc. d/b/a Rusty Wallis Volkswagen’s (“RW”) motion for sanctions. In eight issues, Owen contends the trial court erred in concluding that: (1) an intermediate appellate court’s decision that rejects a legal theory makes any subsequent lawsuit, filed within the deciding court’s jurisdiction and based on that theory, sanetionable; (2) he lacked a good faith argument for the reversal of this Court’s decisions concerning the inclusion of financed negative equity in a new vehicle’s cash price; (3) the Texas Finance Code provisions permitting the financing of negative equity rendered Kri-sle’s claims groundless; (4) Krisle’s knowledge that the dealer was financing her negative equity barred her from pursuing any claim for violation of the cash price provisions; (5) the legislature’s 2009 statutory amendments, eliminating civil recovery for cash price violations, could be applied retroactively to bar Krisle’s claims; (6) any information Owen may have withheld from Krisle could support the imposition of sanctions; (7) RW established that Owen lacked any factual basis for alleging DTPA, fraud, and intentional infliction of emotional distress claims on behalf of Kri-sle; and (8) sanctions were properly awarded against him under rule 13 or the DTPA. RW responds to Owen’s issues and raises a single cross-point, arguing this appeal is frivolous under rule 45 of the Texas Rules of Appellate Procedure and, thereby, warrants an award of just damages against Owen. We affirm.

Background

In August of 2007, Rhonda Krisle purchased a Volkswagen Eos from RW. The sticker price for the Eos was $35,964. Krisle was “upside-down” on her trade-in and agreed to finance her negative equity as part of the purchase price of the Eos. Krisle ultimately entered into a retail installment contract with RW and financed $46,437.27 to purchase the car. This amount included the balance of Krisle’s trade-in, listed as $14,500, in addition to tax, title, license and other fees.

Following her purchase, Krisle heard a radio advertisement1 by the Weinstein Law Firm2 that caused her to visit the firm’s website. After determining she might have been a victim of fraud, Krisle contacted the law firm and spoke with an employee who requested she send in the purchase contract and the window sticker. Krisle sent those documents and subsequently received a letter from the firm indicating that she appeared to have a claim. Krisle retained the Weinstein Law Firm to represent her.

Krisle testified she did not hear from the Weinstein Law Firm again until she contacted them in May of 2009, almost six [281]*281months later, in order to request the status of her case. At that point, an employee of the firm notified Krisle that a lawsuit had been filed on her behalf. Krisle had not received a copy of the lawsuit that had been filed on her behalf on April 20, 2009, alleging claims for fraud, violations of the Texas Finance Code, money had and received, DTPA violations, intentional infliction of emotional distress, and promissory estoppel.

In December of 2009,3 Owen, an attorney with the Weinstein Law Firm, contacted Krisle about a court-ordered mediation that needed to take place by December 29, 2009. During their conversation, Krisle indicated to Owen her willingness to mediate the case. In a December 29 email, Owen made an offer of settlement to RW’s counsel in the amount of $7,000 contingent upon RW’s acceptance prior to mediation. Krisle testified she was never told a $7,000 offer had been made to settle her case.

Krisle did not mediate the case and, as of the date of her deposition,4 she still did not know why the case had not been mediated. A December 28, 2009 email from the mediator’s office; however, states they were told by the Weinstein Law Firm that the firm had not been able to contact Krisle. On January 1, 2010, the mediator again contacted the Weinstein Law Firm in an attempt to obtain Krisle’s available dates for the mediation. Krisle testified she did not recall being contacted regarding her availability.

On February 22, 2010, RW filed its motion for summary judgment, asserting negative equity and this Court’s decision in Bledsoe Dodge, LLC v. Kuberski5 as a basis for a take nothing summary judgment on Krisle’s Texas Finance Code claims. Krisle stated she did not receive a copy of the motion. Krisle testified she learned of the motion for summary judgment when an employee of the Weinstein Law Firm called her, requesting she sign an affidavit to be attached to her response. Within a few days of signing the affidavit, an employee of the Weinstein Law Firm called Krisle about dismissing her case due to the “Dallas case.” Krisle agreed to non-suit her claims and, therefore, thought there would be no need to respond to RW’s motion for summary judgment.

However, Owen, on behalf of Krisle, responded to the motion and amended Kri-sle’s petition on March 15, 2010. Krisle testified she was unaware her petition had been amended. The first amended petition dropped all of her claims, except for her cash price claim under the Texas Finance Code. A few days later, Krisle filed a non-suit of all claims. Owen signed all of the pleadings filed on behalf of Krisle.

On March 24, 2010, RW filed its motion for sanctions against Krisle and her attorneys of record, Owen and Jeffrey Wein-stein, under rule 13 of the Texas Rules of Civil Procedure, sections 9.012 and 10.001 of the Texas Civil Practice & Remedies Code, and section 17.50(c) of the DTPA. RW then proceeded to take the deposition of Krisle. Based upon the deposition of Krisle, RW filed its nonsuit, with prejudice, of all claims against Krisle and the trial court dismissed those claims. Owen and Jeff Weinstein responded to the motion for sanctions. Following a hearing on the motion, the trial court granted RW’s motion for sanctions against Owen in the amount of $20,000.6 The trial court en[282]*282tered its order on July 6, 2010 and then amended the order at the request of RW, deleting all references to chapter 9 of the Texas Civil Practice and Remedies Code, on July 19, 2010. Thus, the amended order awarded sanctions to RW pursuant to rule 13 of the Texas Rules of Civil Procedure (“rule 13”), section 10.001 of the Texas Civil Practice and Remedies Code (“section 10”), and section 17.50(c) of the DTPA (“section 17.50(c)”).

Analysis

A. Standard of Review

We review the imposition of sanctions under an abuse of discretion standard. See Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007) (discussing standard of review for both rule 13 and chapter 10 sanctions); Mosk v. Thomas, 183 S.W.3d 691, 696 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (DTPA standard). An appellate court may reverse the trial court’s ruling only if the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004).

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Cite This Page — Counsel Stack

Bluebook (online)
380 S.W.3d 276, 2012 WL 3755750, 2012 Tex. App. LEXIS 7271, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owen-v-jim-allee-imports-inc-texapp-2012.