Starwood Management, LLC ex rel. Gonzalez v. Swaim

530 S.W.3d 688
CourtCourt of Appeals of Texas
DecidedMarch 7, 2016
DocketNo. 05-14-01218-CV
StatusPublished
Cited by1 cases

This text of 530 S.W.3d 688 (Starwood Management, LLC ex rel. Gonzalez v. Swaim) 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
Starwood Management, LLC ex rel. Gonzalez v. Swaim, 530 S.W.3d 688 (Tex. Ct. App. 2016).

Opinion

[692]*692MEMORANDUM OPINION

Opinion by Justice Lang

Appellant, Starwood Management, LLC, brought legal malpractice claims against appellees Rose Walker L.L.P. and Don Swaim. ■ The trial court granted summary judgment in favor of appellees. Appellant raises fifteen issues on appeal. We summarize those fifteen points as: (1) whether the trial court erred in striking the expert affidavits of George Crow and Steve Jumes; (2) whether the trial court erred in concluding there was insufficient evidence to raise a fact issue on the element of causation even without the expert affidavits of Crow and Jumes; and (3) whether the trial court erred in granting summary judgment for appellees on Starwood’s breach of fiduciary duty claims on the basis that they sound in negligence. The questions’ in this appeal turn on whether experts’ affidavits submitted by Starwood as to “causation” are conclusory and inadmissible. We conclude the affidavits are conclusory as to the experts’ opinions regarding causation. All fifteen issues are decided against appellant. We affirm the judgment of the trial court.

I. Factual and Procedural Background

Norma Gonzalez is the owner and sole managing member of the Nevada entity Starwood Management, LLC (“Star-wood”). Christian Eduardo “Ed” Esqui-no-Nunez, a Mexican national, is- actively involved in the day-to-day operations of Starwood. On May 31, 2011, Nunez signed an application as Starwood’s “manager” to register a 1982 Gulfstream aircraft (the “aircraft”) in the name of Starwood with the U.S. Department of Transportation. On February 3, 2012, the aircraft was seized by the U.S. Department of Justice Drug Enforcement Administration (“DEA”) at the Tucson International Airport based on what it contended was an illegal registration in violation of 49 U.S.C. § 46306. After the DEA seized the aircraft, Starwood’s insurer, Chartis Aerospace, retained Rose Walker L.L.P (“Rose Walker”) to recover the aircraft from the DEA. Don Swaim, an attorney employed by Rose Walker, was the attorney who was in charge of pursuing Starwood’s claim.

On March 15, 2013, the DEA sent a notice of seizure to Chartis Aerospace, care of Don Swaim, that set out the administrative and judicial procedures for contesting the seizure and seeking return of the aircraft. In a paragraph.entitled “TO REQUEST REMISSION OR MITIGATION OF FORFEITURE,” the letter stated, “If you want to request.the remission (pardon) or mitigation of the forfeiture, you must file a petition for remission or mitigation with the Forfeiture Counsel of the DEA within thirty (30) days of. your receipt of this notice.” Additionally, a paragraph in the letter entitled “TO CONTEST THE FORFEITURE,” stated:

You may contest the forfeiture of the seized property in United States District Court. To do so, you must file a claim with the Forfeiture Counsel of the DEA by April 19, 2012 ... Your failure to do so will result in the termination of your interest in the asset, and may preclude your contesting the forfeiture of the asset in any judicial proceeding—either civil or criminal—even if such a proceeding has already been commenced or is commenced in the future.

The letter provided the mailing address of the Forfeiture Counsel, and stated “A PETITION, CLAIM, OR OTHER CORRESPONDENCE SHALL .BE .DEEMED FILED WITH THE FORFEITURE COUNSEL, ASSET FORFEITURE SECTION, WHEN RECEIVED BY THE DEA AT EITHER OF THE ADDRESSES NOTED ABOVE.”

[693]*693On April 12, 2012, Rose Walker forwarded its “Petition for Remission or Mitigation” to the DEA’s forfeiture counsel and the U.S. Attorney for the District of Arizona. On June 15, 2012, the DEA served a subpoena on Norma Gonzalez requesting she appear to be “interviewed” and produce documents. When Gonzalez arrived at this “interview,” she was accompanied by a criminal defense attorney, invoked her Fifth Amendment rights, “and refused to testify or otherwise cooperate.”

On April 18, 2012, Rose Walker’s local counsel in Arizona filed a lawsuit on behalf of Starwood in the United States District Court for the District of Arizona. Another attorney at Rose Walker sent a courtesy copy of the complaint to the Forfeiture Counsel on April 20, 2012 by regular mail. The Forfeiture Counsel received a copy, of the complaint on April 24, 2012. However, no “claim” was ever filed directly .with the DEA’s Forfeiture Counsel. On' June 21, 2012, the DEA notified Starwood that “no claim has been filed,” it had sufficient information to support the forfeiture, and the DEA officially declared the property forfeited to the United States.

The DEA’s motion to dismiss the federal court action was granted on December 17, 2012. That court concluded it lacked subject matter jurisdiction over the case because Starwood’s complaint was untimely, it having been filed on April 18, 2012, prior to the DEA’s April 19, 2012 deadline, and the Forfeiture Counsel of the DEA did not receive a copy of the complaint until April 2Ó, 2012.

On May 23,2013, by letter to Swaim and Rose Walker, the DEA denied Starwood’s petition for remission.or mitigation, noting that a petitioner must show two things to be entitled to remission:

1. A valid, good faith, and legally cognizable interest in the seized property as an owner or lienholder; and
•2. Qualification as an “innocent owner” within the meaning of the applicable forfeiture statute.

In the letter, the DEA stated its conclusion that Sthrwood could not show a legally cognizable interest in the aircraft because Nunez’s involvement with Starwood made it ineligible to register the aircraft. The DEA emphasized that federal law requires two thirds of a corporation’s directors or managers to be United States citizens in order to register an aircraft. While the Nevada Secretary of State records showed Gonzalez to be the managing member of Starwood, the DEA noted in its letter that Nunez signed the aircraft’s registration application as a “manager” of Starwood.

On June 23, 2013, Rose Walker filed a motion to reconsider the denial of the Petition for Remission Or Mitigation. Attached to the motion were the declarations of Gonzalez and Nunez which Starwood contends established that Gonzalez was the only “member” and manager of Starwood, that Nunez was not a “member,” and accordingly, that registration of the aircraft by Starwood was not prohibited. Star-wood argued that Nunez’s signature on the registration application was a mistake that occurred through no fault of Gonzalez, asserting that Gonzalez was an “innocent owner.”

In response^ the DEA notified Starwood on July 12, 2013 that it was reviewing the request for reconsideration, but needed to “interview” Gonzalez “as the sole representative of Starwood Management” about the “activities of Starwood.” On July 17, 2013, Swaim emailed Gonzalez regarding the DEA’s request to “interview” her, stating: that Gonzalez’s “compliance with the DEA’s interview' demand is crucial to both the judicial and administrative remedies” and that her “willingness to be interviewed by the DEA is crucial to Starwood’s efforts [694]*694to get the aircraft back.” On July 29, 2013, Gonzalez responded to Swaim agreeing to be “interviewed” in San Diego between August -12,. 2013 and August 16, 2013.

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530 S.W.3d 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starwood-management-llc-ex-rel-gonzalez-v-swaim-texapp-2016.