Motion for Summary Adjudication in Diverse Equity, LLC vs. Commonwealth Land Title Insurance Company, d/b/a Commonwealth Title of Houston, Inc., Et Al| Trellis.Law

On March 01, 2022 a Motion,Ex Parte was filed involving a dispute between Diverse Equity, Llc, and Abhashemi, Mahmoud Reza, Commonwealth Land Title Insurance Company, Russe, Dallas, Sr., for Contract - Debt - Commercial/Consumer in the District Court of Galveston County.

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Filed: 4/13/2023 1:56 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 74618668
By: Lisa Kelly
4/13/2023 2:05 PM

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

DEFENDANT COMMONWEALTH LAND TITLE INSURANCE COMPANY’S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT

Pursuant to Rule 166a of the Texas Rules of Civil Procedure, Defendant

Commonwealth Land Title Insurance Company (“CLTIC” or “Defendant”), files this

No-Evidence Motion for Partial Summary Judgment. Alamo asks the court to sign a

Summary Judgment against Plaintiff Diverse Equity, LLC (“DE” or “Plaintiff”), on

all of its causes of action pleaded against CLTIC, and in support of the motion shows

the Court the following:

I. CASE HISTORY

Plaintiff filed its Plaintiff, Diverse Equity, LLC’s, Original Petition (“Petition”)

on March 1, 2022, purporting to assert various causes of action against the

Defendants. CLTIC was served with citation and a copy of the Petition on July 26,

2022. In response, CLTIC filed Defendant Commonwealth land Title Insurance

Company’s Verified Plea in Abatement, and subject thereto, Original verified Answer

Motion for Summary Judgment Page 1 of 7
and Special Exceptions (“Answer”). On February 3, 2023, Plaintiff filed its Plaintiff,

Diverse Equity, LLC’s, Original Petition (“Amended Petition”). Within the Amended

Petition, Plaintiff brought claims against Commonwealth for tortious interference

with a contract; business defamation; and violations of the Deceptive Trade Practices

Act. Now, Commonwealth seeks summary judgment as to each claim brought forth

against it by Plaintiff.

II. SUMMARY JUDGMENT STANDARD

A party may move for summary judgment “on the ground that there is no

evidence of one or more essential elements of a claim or defense on which the adverse

party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). A no-evidence

motion for summary judgment must specifically state the elements for which there is

no evidence. Id. “The court must grant the motion unless the respondent produces

summary judgment evidence raising a genuine issue of material fact.” Id. Any such

evidence must be competent. Dolcefino v. Randolph, 19 S.W.3d 906, 917 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied). If a party files a no-evidence motion for

summary judgment, and the non-movant is unable to produce summary judgment

evidence raising a genuine issue of material fact, the court must grant the party's

motion for summary judgment. Id.; TEX. R. CIV. P. 166a(i).

A party may move for no-evidence summary judgment after an adequate time

for discovery has passed. See TEX. R. CIV. P. 166a(i). In this case an adequate time

for discovery has passed, the case has been pending since March 1, 2022, and Plaintiff

has not requested any discovery from CLTIC.

Motion for Summary Judgment Page 2 of 7
CLTIC is entitled to summary judgment because Plaintiff cannot, by

depositions, answers to interrogatories, admissions on file, or other admissible

evidence, demonstrate that there is any evidence to support their causes of action.

As shown below this claim fails because there are no genuine issues of material fact,

and CLTIC is entitled to summary judgment as a matter of law.

III. ARGUMENTS AND AUTHORITIES

A. Plaintiff’s First Cause of Action – Tortious Interference with Contract

Plaintiff alleges that “Defendant intentionally interfered with the contract

between Plaintiff and Defendant Abashemi, by refusing to assist Plaintiff unless and

until Plaintiff conducted an additional closing; that is, unless Plaintiff agreed to first

purchase the property, and then to sell the property as a discrete second transaction.”

Am. Pet. ¶ 41.

“To establish a claim for tortious interference with a contract, a plaintiff must

establish: (1) the existence of a valid contract subject to interference; (2) that the

defendant willfully and intentionally interfered with the contract; (3) that the

interference proximately caused the plaintiff's injury; and (4) that the plaintiff

incurred actual damage or loss.” Cmty. Health Sys. Prof’l Servs. v. Hansen, 525

S.W.3d 671, 689 (Tex. 2017) (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207

(Tex. 2002)).

Plaintiff cannot produce any competent summary judgment evidence

establishing (1) that Plaintiff had a valid contract; (2) that CLTIC willfully and

intentionally interfered with said contract; (3) that CLTIC’s interference with said

Motion for Summary Judgment Page 3 of 7
contract proximately caused Plaintiff’s injury; and (4) that Plaintiff incurred actual

damage or loss as a result of CLTIC’s interference with said contract.

B. Plaintiff’s Second Cause of Action – Business Defamation

Plaintiff alleges that “[b]y flagging Plaintiff’s fee as over three times the rate

of an acceptable fee, Commonwealth essentially accused Plaintiff of extortion,

working to tarnish Diverse Equity’s good name”. Am. Pet. ¶ 57.

To establish a business defamation claim, a plaintiff must prove “(1) the

defendant published a false statement; (2) that defamed the plaintiff; (3) with the

requisite degree of fault regarding the truth of the statement (negligence if the

plaintiff is a private individual); and (4) damages (unless the statement constitutes

defamation per se).” D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434

(Tex. 2017) (citing In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015); WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998)).

Plaintiff cannot produce any competent summary judgment evidence

establishing (1) CLITC published a false statement; (2) that defamed Plaintiff; (3) with

the requisite degree of fault regarding the truth of the statement; and (4) either

damages or that the statement constituted defamation per se.

C. Plaintiff’s Third Causes of Action – Violations of the Deceptive Trade
Practices Act (“DTPA”)

Plaintiff alleges that CLTIC’s committed numerous false, misleading, or

deceptive acts violated constitute violations of the DTPA:

a. CLTIC caused confusion or misunderstanding about the source,

sponsorship, approval, or certification of goods or services. TEX. BUS. &

Motion for Summary Judgment Page 4 of 7
COM. CODE § 17.46(b)(2);

b. CLTIC caused confusion or misunderstanding about affiliation, connection,

or association with, or certification by, another. TEX. BUS. & COM. CODE §

17.46(b)(3);

c. 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. 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. 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).

Am. Pet. ¶¶ 58a-e.

The elements of a DTPA action are “(1) the plaintiff is a consumer, (2) the

defendant engaged in false, misleading, or deceptive acts, and (3) these acts

constituted a producing cause of the consumer's damages.” Doe v. Boys Clubs of

Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995) (citing TEX. BUS. & COM. CODE

§ 17.50(a); 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.).

Motion for Summary Judgment Page 5 of 7
Plaintiff cannot produce any competent summary judgment evidence

establishing that (1) that Plaintiff was a consumer; (2) that CLTIC engaged in false,

misleading, or deceptive acts; and (3) that CLTIC’s acts were a producing cause of

plaintiff’s damages.

IV. PRAYER

WHEREFORE, Defendant Commonwealth Land Title Insurance Company

prays for summary judgment against Plaintiff by the Court granting this motion and

signing an order for summary judgment against all of Plaintiff’s causes of action

pleaded against CLTIC, and for all other relief the Court deems appropriate.

Dated: April 13, 2023.

Respectfully submitted,

/s/ Brandon Hakari
Brandon Hakari
State Bar No. 24107552
Gregory T. Brewer
State Bar No. 00792370
FIDELITY NATIONAL LAW GROUP
6900 Dallas Parkway, Ste 610
Plano, Texas 75024
Telephone No: (972) 812-6547
Telecopy No: (972) 812-9408
brandon.hakari@fnf.com

ATTORNEYS FOR DEFENDANT
COMMONWEALTH LAND TITLE
INSURANCE COMPANY

Motion for Summary Judgment Page 6 of 7
CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document was served on
the following parties in interest via the indicated methods of service on April 13, 2023.

Ellyn J. Clevenger Thomas W. McQuage
1115 Moody Avenue PO Box 16894
Galveston, Texas 77550 Galveston, Texas 77552
COUNSEL FOR PLAINTIFF COUNSEL FOR DEFENDANT MAHMOUD
ABHASHEMI
via electronic filing
via electronic filing
Chris Pappas
KANE RUSSELL COLEMAN LOGAN PC
5151 San Felipe Suite 800
Houston, Texas 77056
COUNSEL FOR DEFENDANTS DALLAS
RUSSEL, SR.

via electronic filing

/s/ Brandon Hakari
Brandon Hakari

Motion for Summary Judgment Page 7 of 7
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: 74618668
Filing Code Description: Motion for Summary Judgment
Filing Description: DEFENDANT COMMONWEALTH LAND TITLE
INSURANCE COMPANYS NO-EVIDENCE MOTION FOR PARTIAL
SUMMARY JUDGMENT
Status as of 4/13/2023 2:06 PM CST

Associated Case Party: Diverse Equity, LLC