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: 8/7/2023 11:09 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 78257126
By: Lisa Kelly
8/7/2023 11:38 AM

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
TRADITIONAL AND 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

Traditional and No-Evidence Motion for Partial Summary Judgment. Alamo asks

the court to sign a Summary Judgment against Plaintiff Diverse Equity, LLC

(“Diverse” 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 11
and Special Exceptions (“Answer”). On February 3, 2023, Plaintiff filed its Plaintiff,

Diverse Equity, LLC’s, Original Petition (“Amended Petition”), and on May 30, 2023,

Plaintiff filed its Plaintiff, Diverse Equity, LLC’s, Second Amended Petition (“Second

Amended Petition”). Within the Second 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. Traditional Summary Judgment

A party who moves for traditional summary judgment must establish that no

genuine issue of material fact exists and that the movant is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548 (Tex. 1985). If the movant seeks summary judgment on a claim for which

the movant does not bear the burden of proof, the movant may meet its burden by

either conclusively negating at least one essential element of the respondent’s claim

or by pleading and conclusively establishing each element of an affirmative defense

to the claim. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).

If the movant seeks summary judgment on a claim for which the movant does bear

the burden of proof the movant may meet its burden by conclusively establishing all

essential elements of its claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).

The Court need not provide the defendant with adequate time for discovery

when faced with a traditional motion for summary judgment. Allen v. United of

Motion for Summary Judgment Page 2 of 11
Omaha Life Ins. Co., 236 S.W.3d 315, 326 (Tex. App.—Fort Worth 2007, pet. denied)

(holding that the “adequate time for discovery” provision of Rule 166a does not apply

to traditional motions for summary judgment); Reynolds v. Murphy, 188 S.W.3d 252,

258 (Tex. App.—Fort Worth 2006, pet. denied).

B. No-Evidence Summary Judgment

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 requested, and received discovery from CLTIC.

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.

Motion for Summary Judgment Page 3 of 11
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)).

“[T]o establish the element of willful and intentional act of interference, the

plaintiff must produce evidence that the defendant was a more-than-willing

participant and knowingly induced one of the contracting parties to breach its

obligations under the contract.” Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 516

S.W.3d 147, 168 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see Funes v.

Villatoro, 352 S.W.3d 200, 213 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)

(same).

Motion for Summary Judgment Page 4 of 11
As part of the proximate-cause element, the plaintiff must prove the defendant

took an active part in persuading the party to breach its contract; proof that the

defendant benefited from a broken contract is not sufficient to establish proximate

cause. See Davis v. Hyd-Pro, Inc., 839 S.W.2d 137, 139 (Tex. App.—Eastland 1992,

writ denied) (stating that plaintiff must show that defendant knowingly induced

breach); see also John Paul Mitchell Sys. v. Randalls Food Mkts., Inc., 17 S.W.3d 721,

730-31 (Tex. App.—Austin 2000, pet. denied) (stating it is necessary that there be

some act of interference or of persuading party to breach for tort liability to arise;

merely participating in transaction does not constitute knowing inducement required

to impose liability for tortious interference); Texaco, Inc. v. Pennzoil Co., 729 S.W.2d

768 at 803 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.), cert. dism’d, 485

U.S. 994 (1988) (stating plaintiff must show defendant took active part in persuading

party to breach contract); Arabesque Studios, Inc. v. Acad. of Fine Arts, Int'l, Inc., 529

S.W.2d 564, 568 (Tex. App.—Dallas 1975, no writ) (stating that it is incumbent upon

plaintiff to demonstrate that defendant actually caused or brought about

interference).

Additionally, in an action for tortious interference with an existing contract,

the plaintiff must establish actual damage or loss. Prudential Ins. Co. of Am. v. Fin

Review Serves., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Bush Const., Inc. v. Texas Mutual

Ins. Co., 557 S.W.3d 817, 924 (Tex. App.—Texarkana 2018, no pet.).

1. No-Evidence Argument

Plaintiff cannot produce any competent summary judgment evidence

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

Motion for Summary Judgment Page 5 of 11
intentionally interfered with said contract by causing one of the parties to said contract

to breach its obligations; (3) that CLTIC’s interference with said contract proximately

caused Plaintiff’s injury by taking an active part in persuading one of the parties to

said contract to breach its obligations; and (4) that Plaintiff incurred actual damage or

loss as a result of CLTIC’s interference with said contract. The mere fact that an

alleged contract failed is simply not sufficient evidence to survive summary judgment.

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

Plaintiff alleges that CLTIC defamed Plaintiff “[b]y flagging Plaintiff’s fee as

over three times the rate of an acceptable fee, [and therefore] Commonwealth

essentially accused Plaintiff of extortion, working to tarnish Diverse Equity’s good

name”. 2d Am. Pet. § V.

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)).

1. Traditional Argument

The only communication complained of by Plaintiff is a February 10, 2021

email from Valerie Mercure to Plaintiff. 2d Am. Pet. § IV (“Valerie Mercure with the

Defendant Commonwealth transmitted an email to Diverse Equity noting issues with

the assignment fee and disclosure to the seller.”) A statement is not “published” if it

Motion for Summary Judgment Page 6 of 11
is made only to the plaintiff itself. Cunningham v. Waymire, 612 S.W.3d 47, 60-61

(Tex. App.—Houston [14th Dist] 2019, no pet.); Baubles & Beads v. Louis Vuitton,

S.A., 766 S.W.2d 377, 380 (Tex. App.—Texarkana 1989, no writ). To the extent that

this email comprises Plaintiff’s business defamation claim, it is only a communication

between Valerie Mercure and Plaintiff, and not a third-party. Therefore, the claim

fails as a matter of law.

2. No-Evidence Argument

Plaintiff cannot produce any competent summary judgment evidence

establishing (1) CLTIC 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 caused by the statement 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 the following violation of the DTPA:

a. Defendant Commonwealth, as a title company, held itself out as a neutral
agent for all parties to the transaction. By flagging a contract to which it
had not been a party, and imposing conditions not required by law or under
its own policy/commitment to issue title insurance;

b. Defendant Commonwealth told Plaintiff his contract was illegal, exorbitant
and what wrong with the industry and against public policy.

c. In violation of the Texas Deceptive trace Practice – Consumer Protection
Act section 17.456b: “disparaging the goods, services or business of
Plaintiff internally in Defendant’s institution and with third
parties.

d. In so doing, Defendant disparaged the services or business of Plaintiff by
falsely and/or misleadingly representing the facts, in violation of Tex. Bus.
& Comm. Code § 17.46(b)(8).

2d Am. Pet. § VI (emphasis in original).

Motion for Summary Judgment Page 7 of 11
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.). For DTPA violations, producing cause

must be shown. Transcont’l Ins. Co. v. Crump, 330 S.W.3d 211, 223 (Tex. 2010).

Producing cause requires actual causation in fact—proof that an act or omission was

a substantial factor in bringing about injury which would not otherwise have

occurred. Id. Furthermore, “[a] successful claim under the DTPA requires the

claimant to prove it detrimentally relied on a false, misleading or deceptive act or

practice.” Simpson v. Woodbridge Properties, LLC, 153 S.W.3d 682, 684 (Tex. App.—

Dallas 2004, no pet.) (citing TEX. BUS. & COM. CODE § 17.50(a)(1)(B)).

Section 17.46(b)(8), which is relied upon by Plaintiff, provides that

“disparaging the goods, services, or business of another by false or misleading

representation of facts” may be a false, misleading, or deceptive act. TEX. BUS. &

COM. CODE § 17.46(b)(8). This “section applies only to misrepresentations of fact, not

opinion.” Reynolds v. Murphy, 188 S.W.3d 252, 275 (Tex. App.—Fort Worth 2006,

pet. denied); Tweedell v. Hochheim Prairie Farm Mut. Ins. Ass’n, 1 S.W.3d 304, 309

n. 10 (Tex. App.—Corpus Christi 1999, no pet.).

1. Traditional Argument

Motion for Summary Judgment Page 8 of 11
For a claim under Section 17.46(b)(8), Section 17.46(b)(8) requires that

Defendants disparaged the goods, services, or business of a third-party, and that the

disparagement was relied upon by Plaintiff thereby causing Plaintiff damages. For

example “A” would have a potential claim against “B” when “B” told “A” that “A”

would not be treated fairly by “C” so “A” should do business with “B” instead, while

factually “C” would have treated “A” fairly. See, e.g., Pfirman v. Loss Analytics, Inc.,

No. 141-265587-13 (141st District Court of Tarrant County). Plaintiff, however,

alleges that Defendants disparaged Plaintiff’s own goods, services, or business and

not that Defendants disparaged a third-party. Therefore, as plead, Plaintiff’s claim

for violations of the DTPA fails as a matter of law.

2. No-Evidence Argument

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; (3) that Plaintiff detrimentally relied on a false,

misleading or deceptive act or practice of CLTIC; and (4) 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: August 7, 2023.

Respectfully submitted,

Motion for Summary Judgment Page 9 of 11
/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 10 of 11
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 August 7,
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 11 of 11
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: 78257126
Filing Code Description: Motion for Summary Judgment
Filing Description: DEFENDANT COMMONWEALTH LAND TITLE
INSURANCE COMPANYS TRADITIONAL AND NO-EVIDENCE MOTION
FOR PARTIAL SUMMARY JUDGMENT
Status as of 8/7/2023 11:39 AM CST

Associated Case Party: Diverse Equity, LLC