Preview
Filed: 2/1/2023 3:29 PM
Envelope No. 72351683
CAUSE NO. 22-CV-0332
DIVERSE EQUITY, LLC, § IN THE DISTRICT COURT
§
Plaintiff, §
§
v. § 56TH JUDICIAL DISTRICT
§
COMMONWEALTH LAND TITLE §
INSURANCE COMPANY, D/B/A §
COMMONWEALTH TITLE OF §
HOUSTON, INC.; MAHMOUD REZA §
ABAHASHEMI, §
§
Defendants. § GALVESTON COUNTY, TEXAS
ORDER ON DEFENDANT COMMONWEALTH LAND TITLE INSURANCE
COMPANY’S SPECIAL EXCEPTIONS
On this day, the Court considered Defendant Commonwealth Land Title
Insurance Company’s (“CLTIC”) Special Exceptions. Having considered the Special
Exceptions, any responses and replies thereto, and the Court’s own records, the Court
rules as follows:
1. CLTIC specially excepts to Plaintiff’s Petition because Plaintiff did not
plead the maximum amount of relief sought. See TEX. R. CIV. P. 47.
SUSTAINED: ______________ OVERRULED: ______________
2. CLTIC specially excepts to § V of Plaintiff’s Petition because Plaintiff did
not plead all elements of its cause of action of tortious interference with an existing
contract. Specifically, the pleading did not allege (1) that Plaintiff had a valid contract;
(2) which contract CLTIC interfered with; (3) that CLTIC willfully and intentionally
interfered with the contract; (4) that CLTIC interference proximately caused Plaintiff’s
Order Sustaining Special Exception Page 1 of 5
injury. Community Health Sys. Prof’l Servs. v. Hansen, 525 S.W.3d 671, 689 (Tex.
2017).
SUSTAINED: ______________ OVERRULED: ______________
3. CLTIC specially excepts to § VI of Plaintiff’s Petition because Plaintiff did
not plead all elements of its cause of action of defamation. Specifically, the pleading
did not allege that: “(1) [CLTIC] published a false statement; (2) that defamed
[P]laintiff; (3) with the requisite degree of fault regarding the truth of the statement .
. .; or (4) damages (unless the statement constitutes defamation per se).” D Magazine
Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017).
SUSTAINED: ______________ OVERRULED: ______________
4. CLTIC specially excepts to § VII of Plaintiff’s Petition because Plaintiff
did not plead all elements of its cause of action of violations of the Texas Deceptive
Trade Practices and Consumer Protection Act. Specifically, the pleading did not allege:
(1) that Plaintiff was a consumer; (2) that CLTIC engaged in false, misleading, or
deceptive acts, breached an express or implied warranty, or acted unconscionably; or
(3) that CLTIC’s acts were a producing cause of plaintiff’s damages. See TEX. BUS. &
COM. CODE § 17.50(a); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478
(Tex. 1995); Christians v. Flores, No. 01-20-00307-CV, 2022 WL 619021, at *8 (Tex.
App.—Houston [1st Dist.] Mar. 3, 2022, no pet.); Roberts v. Healey, 991 S.W.2d 873,
878 (Tex. App.—Houston [14th Dist.], no pet.). Furthermore, Plaintiff did not allege:
a. That CLTIC caused confusion or misunderstanding about the source,
sponsorship, approval, or certification of goods or services. TEX. BUS. &
Order Sustaining Special Exception Page 2 of 5
COM. CODE § 17.46(b)(2);
b. That CLTIC caused confusion or misunderstanding about affiliation,
connection, or association with, or certification by, another. TEX. BUS. &
COM. CODE § 17.46(b)(3);
c. That CLTIC represented that goods or services had sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities they do not have,
or that a person has a sponsorship, approval, status, affiliation, or
connection she does not have. TEX. BUS. & COM. CODE § 17.46(b)(5);
d. That CLTIC disparaged the goods, services, or business of another by false
or misleading representations of facts. TEX. BUS. & COM. CODE § 17.46(b)(8);
or,
e. That CLTIC represented that an agreement conferred or involves rights,
remedies, or obligations that it did not, or was prohibited by law. TEX. BUS.
& COM. CODE § 17.46(b)(12).
SUSTAINED: ______________ OVERRULED: ______________
5. CLTIC specially excepts to paragraph VIII.3 of Plaintiff’s Petition
because the pleading asks for a finding of breach of contract despite not having
pleaded a claim for breach of contract.
SUSTAINED: ______________ OVERRULED: ______________
Order Sustaining Special Exception Page 3 of 5
6. CLTIC specially excepts to paragraph VIII.9 of Plaintiff’s Petition
because the pleading asks for attorneys’ fees in a general allegation but does not
specify what statute makes them available in this type of suit.
SUSTAINED: ______________ OVERRULED: ______________
7. CLTIC specially excepts to Plaintiff’s Petition because Plaintiff makes
numerous references to “Commonwealth Defendants” without “Commonwealth
Defendants” being a defined term creating confusion, uncertainty, and ambiguity as
to which party or parties are being referenced.
SUSTAINED: ______________ OVERRULED: ______________
IT IS ORDERED that within 21 days of this order, Plaintiff is required to
replead and cure the defects identified by the special exceptions that were sustained;
IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above
regarding special exception 1 (to the extent special exception 1 was sustained),
Plaintiff may not conduct any discovery in this matter;
IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above
regarding special exceptions 2, 3, 4, or 5 (to the extent each special exception was
sustained), the relevant cause(s) of action subject to the special exception shall be
dismissed from this matter with prejudice;
IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above
regarding special exception 6 (to the extent special exception 6 was sustained),
Plaintiff shall be barred from recovering their attorneys’ fees and costs;
Order Sustaining Special Exception Page 4 of 5
IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above
regarding special exception 7 (to the extent special exception 7 was sustained), any
allegation against “Commonwealth Defendants” or cause of action pleaded against
“Commonwealth Defendants” is not an allegation or cause of action directed at
Commonwealth Land Title Insurance Company; and,
IT IS FINALLY ORDERED that Defendant Commonwealth Land Title
Insurance Company’s is entitled to recover costs and reasonable and necessary
attorneys’ fees from Plaintiff Diverse Equity, LLC in the amount of
$___________________.
Dated: ____________________.
________________________
PRESIDING JUDGE
Order Sustaining Special Exception Page 5 of 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Rachel Perez on behalf of Robert Hakari
Bar No. 24107552
Rachel.M.Perez@fnf.com
Envelope ID: 72351683
Status as of 2/1/2023 4:17 PM CST
Associated Case Party: Diverse Equity, LLC
Name BarNumber Email TimestampSubmitted Status
Ellyn Clevenger 24058662 ellynclevenger@gmail.com 2/1/2023 3:29:03 PM SENT
Associated Case Party: Commonwealth Land Title Insurance Company
Name BarNumber Email TimestampSubmitted Status
Rachel M.Perez rachel.m.perez@fnf.com 2/1/2023 3:29:03 PM SENT
Brandon Hakari brandon.hakari@fnf.com 2/1/2023 3:29:03 PM SENT
Associated Case Party: MahmoudRezaAbhashemi
Name BarNumber Email TimestampSubmitted Status
Thomas McQuage mcquage@swbell.net 2/1/2023 3:29:03 PM SENT
Associated Case Party: Dallas Russe
Name BarNumber Email TimestampSubmitted Status
Chris C. Pappas cpappas@krcl.com 2/1/2023 3:29:03 PM SENT
Associated Case Party: Valerie Mercure
Name BarNumber Email TimestampSubmitted Status
Chris C. Pappas cpappas@krcl.com 2/1/2023 3:29:03 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Rachel Perez on behalf of Robert Hakari
Bar No. 24107552
Rachel.M.Perez@fnf.com
Envelope ID: 72351683
Status as of 2/1/2023 4:17 PM CST
Case Contacts
Krystal Clayton kclayton@krcl.com 2/1/2023 3:29:03 PM SENT
ELLYN CLEVENGER CLEVENGERLAWOFFICE@GMAIL.COM 2/1/2023 3:29:03 PM SENT
Debra Bell dbell@krcl.com 2/1/2023 3:29:03 PM SENT
Roland Hamilton rhamilton@krcl.com 2/1/2023 3:29:03 PM SENT
Searcy Houston SHouston@krcl.com 2/1/2023 3:29:03 PM SENT
Jared Vann JVann@krcl.com 2/1/2023 3:29:03 PM SENT
Giesla Delgado GDelgado@krcl.com 2/1/2023 3:29:03 PM SENT
Preview
Filed: 2/1/2023 3:29 PM Envelope No. 72351683 CAUSE NO. 22-CV-0332 DIVERSE EQUITY, LLC, § IN THE DISTRICT COURT § Plaintiff, § § v. § 56TH JUDICIAL DISTRICT § COMMONWEALTH LAND TITLE § INSURANCE COMPANY, D/B/A § COMMONWEALTH TITLE OF § HOUSTON, INC.; MAHMOUD REZA § ABAHASHEMI, § § Defendants. § GALVESTON COUNTY, TEXAS ORDER ON DEFENDANT COMMONWEALTH LAND TITLE INSURANCE COMPANY’S SPECIAL EXCEPTIONS On this day, the Court considered Defendant Commonwealth Land Title Insurance Company’s (“CLTIC”) Special Exceptions. Having considered the Special Exceptions, any responses and replies thereto, and the Court’s own records, the Court rules as follows: 1. CLTIC specially excepts to Plaintiff’s Petition because Plaintiff did not plead the maximum amount of relief sought. See TEX. R. CIV. P. 47. SUSTAINED: ______________ OVERRULED: ______________ 2. CLTIC specially excepts to § V of Plaintiff’s Petition because Plaintiff did not plead all elements of its cause of action of tortious interference with an existing contract. Specifically, the pleading did not allege (1) that Plaintiff had a valid contract; (2) which contract CLTIC interfered with; (3) that CLTIC willfully and intentionally interfered with the contract; (4) that CLTIC interference proximately caused Plaintiff’s Order Sustaining Special Exception Page 1 of 5 injury. Community Health Sys. Prof’l Servs. v. Hansen, 525 S.W.3d 671, 689 (Tex. 2017). SUSTAINED: ______________ OVERRULED: ______________ 3. CLTIC specially excepts to § VI of Plaintiff’s Petition because Plaintiff did not plead all elements of its cause of action of defamation. Specifically, the pleading did not allege that: “(1) [CLTIC] published a false statement; (2) that defamed [P]laintiff; (3) with the requisite degree of fault regarding the truth of the statement . . .; or (4) damages (unless the statement constitutes defamation per se).” D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017). SUSTAINED: ______________ OVERRULED: ______________ 4. CLTIC specially excepts to § VII of Plaintiff’s Petition because Plaintiff did not plead all elements of its cause of action of violations of the Texas Deceptive Trade Practices and Consumer Protection Act. Specifically, the pleading did not allege: (1) that Plaintiff was a consumer; (2) that CLTIC engaged in false, misleading, or deceptive acts, breached an express or implied warranty, or acted unconscionably; or (3) that CLTIC’s acts were a producing cause of plaintiff’s damages. See TEX. BUS. & COM. CODE § 17.50(a); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995); Christians v. Flores, No. 01-20-00307-CV, 2022 WL 619021, at *8 (Tex. App.—Houston [1st Dist.] Mar. 3, 2022, no pet.); Roberts v. Healey, 991 S.W.2d 873, 878 (Tex. App.—Houston [14th Dist.], no pet.). Furthermore, Plaintiff did not allege: a. That CLTIC caused confusion or misunderstanding about the source, sponsorship, approval, or certification of goods or services. TEX. BUS. & Order Sustaining Special Exception Page 2 of 5 COM. CODE § 17.46(b)(2); b. That CLTIC caused confusion or misunderstanding about affiliation, connection, or association with, or certification by, another. TEX. BUS. & COM. CODE § 17.46(b)(3); c. That CLTIC represented that goods or services had sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities they do not have, or that a person has a sponsorship, approval, status, affiliation, or connection she does not have. TEX. BUS. & COM. CODE § 17.46(b)(5); d. That CLTIC disparaged the goods, services, or business of another by false or misleading representations of facts. TEX. BUS. & COM. CODE § 17.46(b)(8); or, e. That CLTIC represented that an agreement conferred or involves rights, remedies, or obligations that it did not, or was prohibited by law. TEX. BUS. & COM. CODE § 17.46(b)(12). SUSTAINED: ______________ OVERRULED: ______________ 5. CLTIC specially excepts to paragraph VIII.3 of Plaintiff’s Petition because the pleading asks for a finding of breach of contract despite not having pleaded a claim for breach of contract. SUSTAINED: ______________ OVERRULED: ______________ Order Sustaining Special Exception Page 3 of 5 6. CLTIC specially excepts to paragraph VIII.9 of Plaintiff’s Petition because the pleading asks for attorneys’ fees in a general allegation but does not specify what statute makes them available in this type of suit. SUSTAINED: ______________ OVERRULED: ______________ 7. CLTIC specially excepts to Plaintiff’s Petition because Plaintiff makes numerous references to “Commonwealth Defendants” without “Commonwealth Defendants” being a defined term creating confusion, uncertainty, and ambiguity as to which party or parties are being referenced. SUSTAINED: ______________ OVERRULED: ______________ IT IS ORDERED that within 21 days of this order, Plaintiff is required to replead and cure the defects identified by the special exceptions that were sustained; IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above regarding special exception 1 (to the extent special exception 1 was sustained), Plaintiff may not conduct any discovery in this matter; IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above regarding special exceptions 2, 3, 4, or 5 (to the extent each special exception was sustained), the relevant cause(s) of action subject to the special exception shall be dismissed from this matter with prejudice; IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above regarding special exception 6 (to the extent special exception 6 was sustained), Plaintiff shall be barred from recovering their attorneys’ fees and costs; Order Sustaining Special Exception Page 4 of 5 IT IS FURTHER ORDERED that if Plaintiff fails to replead as stated above regarding special exception 7 (to the extent special exception 7 was sustained), any allegation against “Commonwealth Defendants” or cause of action pleaded against “Commonwealth Defendants” is not an allegation or cause of action directed at Commonwealth Land Title Insurance Company; and, IT IS FINALLY ORDERED that Defendant Commonwealth Land Title Insurance Company’s is entitled to recover costs and reasonable and necessary attorneys’ fees from Plaintiff Diverse Equity, LLC in the amount of $___________________. Dated: ____________________. ________________________ PRESIDING JUDGE Order Sustaining Special Exception Page 5 of 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Rachel Perez on behalf of Robert Hakari Bar No. 24107552 Rachel.M.Perez@fnf.com Envelope ID: 72351683 Status as of 2/1/2023 4:17 PM CST Associated Case Party: Diverse Equity, LLC Name BarNumber Email TimestampSubmitted Status Ellyn Clevenger 24058662 ellynclevenger@gmail.com 2/1/2023 3:29:03 PM SENT Associated Case Party: Commonwealth Land Title Insurance Company Name BarNumber Email TimestampSubmitted Status Rachel M.Perez rachel.m.perez@fnf.com 2/1/2023 3:29:03 PM SENT Brandon Hakari brandon.hakari@fnf.com 2/1/2023 3:29:03 PM SENT Associated Case Party: MahmoudRezaAbhashemi Name BarNumber Email TimestampSubmitted Status Thomas McQuage mcquage@swbell.net 2/1/2023 3:29:03 PM SENT Associated Case Party: Dallas Russe Name BarNumber Email TimestampSubmitted Status Chris C. Pappas cpappas@krcl.com 2/1/2023 3:29:03 PM SENT Associated Case Party: Valerie Mercure Name BarNumber Email TimestampSubmitted Status Chris C. Pappas cpappas@krcl.com 2/1/2023 3:29:03 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Rachel Perez on behalf of Robert Hakari Bar No. 24107552 Rachel.M.Perez@fnf.com Envelope ID: 72351683 Status as of 2/1/2023 4:17 PM CST Case Contacts Krystal Clayton kclayton@krcl.com 2/1/2023 3:29:03 PM SENT ELLYN CLEVENGER CLEVENGERLAWOFFICE@GMAIL.COM 2/1/2023 3:29:03 PM SENT Debra Bell dbell@krcl.com 2/1/2023 3:29:03 PM SENT Roland Hamilton rhamilton@krcl.com 2/1/2023 3:29:03 PM SENT Searcy Houston SHouston@krcl.com 2/1/2023 3:29:03 PM SENT Jared Vann JVann@krcl.com 2/1/2023 3:29:03 PM SENT Giesla Delgado GDelgado@krcl.com 2/1/2023 3:29:03 PM SENT