Motion for No Evidence Summary Judgment 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-Secondary 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: 9/8/2023 4:30 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 79371827
By: Shailja Dixit
9/8/2023 4:41 PM

CAUSE NO. 22-CV-0332

DIVERSE EQUITY, LLC § IN THE DISTRICT COURT OF
Plaintiff, §
§
V. §
§ GALVESTON COUNTY, TEXAS
§
COMMONWEALTH LAND TITLE §
INSURANCE COMPANY, D/B/A §
COMMONWEALTH TITLE OF §
HOUSTON, INC.; AND §
MAHMOUDRESA ABHASHEMI 56TH JUDICIAL DISTRICT
Defendants.

DEFENDANTS DALLAS RUSSELL, SR.’S REPLY TO
PLAINTIFF’S RESPONSE TO
DEFENDANT’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW DEFENDANT DALLAS RUSSELL, Sr. (“Russell”) and makes and files this

Defendant’s Reply to Plaintiff’s Response to Defendant’s No-Evidence Motion for Summary

Judgment and as grounds therefore would respectfully show unto the Court the following:

II.
BACKGROUND

This is a lawsuit arising out of a Purchase and Sales Agreement between Plaintiff and
Defendant Mahmoudresa Abhashemi (“Abhashemi”) in which Plaintiff was seeking to purchase
the property owned by Defendant Abhashemi for the sum of $75,000, for which reference is made
to the Plaintiff’s pleadings on file in this cause. Subsequent to the execution of the above
agreement, the discovery in this case reveals that Plaintiff entered into a separate agreement
entitled Agreement to Assign Contract for Sale and Purchase whereby Plaintiff assigned all rights
under the Purchase and Sales Agreement to David Smith and Tanner Plato in exchange for
compensation in the amount of $33,000. In short, the Plaintiff has brought this lawsuit as a result
of the decision on the part of Defendant Abhashemi to sell the subject property to a separate party
for an increased sum when the Plaintiff and the proposed buyer by assignment did not proceed to
purchase the subject property as contemplated under the contract documents. The essence of the
Plaintiff’s claims against Defendant Dallas Russell and Commonwealth is to attempt to blame both
Commonwealth and Russell for the failed purchase and sale resulting in the alleged loss of the
$33,000 contemplated under the assignment agreement referenced above. Defendant Russell
would show that at all times material to this lawsuit he was acting in his capacity as an escrow
officer under the authority granted by Defendant Commonwealth as it relates to this transaction.

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II.
DEFENDANT’S OBJECTIONS TO PLAINTIFF’S EVIDENCE

As this Court is well aware, the Texas Rules of Evidence fully apply to summary judgment
proceedings. See Fort Brown Villas III Condo Association v. Gillenwater, 285 S.W.3d, 879, 881
-82 (Tex. 2009 per curium). At the outset, Defendant Russell would note that the Plaintiff’s
Response to Defendant’s Motion for Summary Judgment is essentially an unsworn and
argumentative narrative, which refers to certain exhibits with no evidentiary foundation and are
otherwise objectionable on other grounds. The narrative response seeks to include various
unsworn opinions and conclusionary statements of Plaintiff’s counsel which are objectionable and
do not constitute proper summary judgment evidence…and similarly fails to provide any evidence
with a proper foundational bases.

In essence, the Plaintiff’s Response constitutes twenty-two pages of argumentative,
unsworn and inadmissible statements; which in no way constitutes admissible evidence in rebuttal
to Defendant Russell’s No-Evidence Motion for Summary Judgment with respect to the Plaintiff’s
claim of Tortuous Interference With Contract Business Defamation, Violations of the Texas
Deceptive Trade Practices – Consumer Protection Act. In addition, Defendant Russell would make
the following specific objections to the exhibits proffered on behalf of the Plaintiff:

1. Defendant joins and incorporates herein Defendant Commonwealth’s objections to
Plaintiff’s Exhibits 1, 3, 4, 5, 6 and 7 as set forth in Commonwealth’s Reply in Support
of Traditional and No-Evidence Motion for Partial Summary Judgment as though fully
restated herein. These exhibits are objectionable by reason of the failure on the part of
the Plaintiff to comply with this Court’s Order entered on March 29, 2023, thereby
precluding these exhibits from being introduced as evidence. In particular, Defendant
joins in the objection that these exhibits have not been properly authenticated and are
without proper evidentiary predicate.

2. Defendant additionally objects to Plaintiff’s Summary Judgment Exhibit 2, which is
the unsworn Declaration of Joseph Robinson for the reason that the declaration fails to
provide the required predicate of personal knowledge; lacks a proper predicate and
foundational basis to be admissible as evidence; constitutes an impermissible attempt
on the part of the unsworn witness to vouch for the unsworn and argumentative
statements of Plaintiff’s counsel; which includes inadmissible opinions, hearsay and
conclusionary statements; that the unsworn declaration is made by an interested party,
i.e. Joseph Robinson (President/Owner/Manager)…which is self-serving and
references conclusionary statements without any underlying factual detail…and
constitutes an unsworn statement of an interested party that is not clear, positive, direct,
credible, free from contradiction, and susceptible of being readily controverted. See
Haynes v. City of Beaumont, 35 S. W. 3d 166, 178 (Tex. App. – Texarkana 2000, no
pet.)

3. Defendant objects to Plaintiff’s Summary Judgment Exhibits 3, 4, 5 and 7 for a lack of
proper authentication, proper predicate, and inadmissible hearsay.

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Based upon the foregoing, Defendant Russell urges that its objections to Plaintiff’s
Summary Judgment Exhibits be granted by appropriate order of this Court finding that the said
exhibits constitute inadmissible evidence herein.

III.
PLAINTIFF HAS NOT PROVIDED ANY SUMMARY JUDGMENT EVIDENCE TO DEFEAT
DEFENDANT RUSSELL’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

A. Introduction

As a preliminary matter, Defendant Russell would note that the Plaintiff’s response to
Defendants’ Motions for Summary Judgment not only fails to identify and present any
evidence in support of its claims against Defendant Dallas Russell, Sr., Individually,
but also fails to assert any legal arguments in support of the Plaintiff’s claim of
Tortuous Interference with Contract, Business Defamation, and DTPA violations
against Defendant Russell. The Plaintiff’s Response is essentially nothing more than
an argumentative narrative setting forth inadmissible statements, opinions and
conclusions of Plaintiff’s counsel purportedly supported by the inadmissible
declaration of James Robinson. Nevertheless, Defendant Russell would specifically
address each of the Plaintiff’s causes of action herein below.

B. Tortuous Interference with Contract

As is clear from the pleadings and discovery in this case, Dallas Russell, Sr., at all times
material to this lawsuit, was acting under the authority and in compliance with the
underwriting guidelines and directives of Commonwealth Title. The Plaintiff’s Reply
to Defendant Russell’s No-Evidence Motion for Summary Judgement with respect to
this cause of action is totally devoid of presenting any evidence…much less
argument…purportedly supporting claims of individual liability on the part of Russell.
In addition, Defendant would show the Plaintiff has presented no admissible evidence
in support of these claims against Russell with respect to any of the following elements
of proof required under Texas law:

 The existence of a valid contract subject to interference;
 That the Defendant willfully and intentionally interfered with the contract;
 That the interference proximately caused the Plaintiff’s injuries; and
 That the Plaintiff incurred actual damage or loss. See Community Cmty. Health
Sys. Prof. Services Corp. v. Hanson, 525 S.W.3d 671, 689 (Tex. 2017):
Butnaruv Ford Motor Co. 84 S.W. 3d 198 (Tex. 2002)

Moreover, there is simply no evidence in this case that Russell willfully and
intentionally interfered with the contract; that the interference proximately caused the
Plaintiff’s injury; or that Plaintiff incurred actual damage or loss as result thereof. The
simple fact is…the seller, i.e. Abhashemi simply made the decision to sell the subject
property to another buyer for more money.

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C. Plaintiff’s Business Defamation Claim

The Plaintiff’s Response again with respect to this cause of action similarly fails to
present any admissible evidence…much less argument…to support its claims of
business defamation against Defendant Dallas Russell, Sr. Individually. The
argumentative narrative proffered by Plaintiff’s counsel purportedly “labeling
Plaintiff’s fee as extortion” is nothing more than an “admittedly” argumentative
statement of Plaintiff’s counsel unsupported by the evidence in this case.

Nevertheless, Defendant Russell would note that the Plaintiff has failed to provide any
admissible evidence to support any of the elements of proof required to support this
cause of action as follows:

 Publication of a false statement of fact to a third party;
 That was defamatory concerning the Plaintiff;
 With requisite degree of fault; and
 Damages.

It is further important to note that any communications regarding the Plaintiff’s
assignment fee were simply communications based upon the underwriting policies and
guidelines prescribed by Commonwealth Title…not Dallas Russell…that were
communicated to Plaintiff only. It is axiomatic that merely engaging in business
communications with a customer and explaining the basis of the underwriting
policies/practices prescribed by Defendant Commonwealth Title does not and cannot
constitute a false statement.

D. Plaintiff’s DTPA Claims

At the outset, Defendant Russell would note that the Defendant’s Response in support
of these claims (pages 17-22) does not even attempt to present any evidence…much
less admissible evidence…to purportedly support this cause of action. The Plaintiff’s
response is simply a resuscitation of selected provisions of the Act pertaining to
Sections 17.43, 17.44, 17.45, and 17.46 of the Act. Nevertheless, Defendant would
note that Plaintiff again has failed to provide any admissible evidence to support the
following elements of proof required to support a cause of action under the DTPA:

(1) The Plaintiff is a consumer;1

(2) That Russell can be sued under the DTPA;

(3) That Russell committed one or more of the following wrongful acts:

1
Under the DTPA, consumers are “those who purchase a good or service.” Guajardo v. JP Morgan Chase Bank, N.A.,
605 Fed. Appx. 240, 249 (5th Cir. 2015).

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a. A false, misleading, or deceptive act or practice that is
specifically enumerated in the “laundry list” found in
Texas Business & Commerce Code § 17.46(b) and that
was relied on by Plaintiff to the Plaintiff’s detriment;

b. Breach of an express or implied warranty;

c. Any unconscionable action or course of action;

d. The use or employment of an act or practice in violation
of Texas Insurance Code Chapter 541; or

e. A violation of one of the “tie-in” consumer statutes, as
authorized by Texas Business & Commerce Code §
17.50(h), which are classified as “false, misleading, or
deceptive acts or practices.”

(4) That Russell’s action was a producing cause of Plaintiffs’ damages.

TEX. BUS. & COM. CODE ANN. §§ 17.41–17.63; Guajardo v. JP Morgan Chase Bank, N.A., 605
Fed. Appx. 240 (5th Cir. 2015); Hunt v. City of Diboll, 574 S.W.3d 406, 431 (Tex. App.—Tyler
2017, pet. denied).

In short, Plaintiff has presented absolutely “nothing” in support of any of the elements of
proof required to establish a cause of action under the DTPA.

IV.
CONCLUSION

Based upon the foregoing, Defendant Dallas Russell, Sr. urges this Honorable Court sustain
Defendant’s objections to the Plaintiff’s Summary Judgment evidence and grant Defendant Dallas
Russell, Sr.’s No-Evidence Motion for Summary Judgment, thereby dismissing Plaintiff’s claims
and causes of action against Dallas Russell, Sr. Individually.

WHEREFORE, PREMISES CONSIDERED, Defendant Dallas Russell, Sr. prays that
upon final hearing herein, that this Honorable Court grant Defendant’s No-Evidence Motion for
Summary Judgment and dismiss the Plaintiff’s claims and causes of action against this Defendant,
sustain Defendant’s objections to Plaintiff’s Summary Judgment Exhibits that court costs be taxed
against the Plaintiff, and for such other and further relief, both general and special, at law or in
equity, to which your Defendant shall be justly entitled.

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Respectfully submitted,

KANE RUSSELL COLEMAN LOGAN PC

By:
Roland G. Hamilton
State Bar No. 24002217
rhamilton@krcl.com
Chris C. Pappas
State Bar No. 15454300
cpappas@krcl.com
Hannah Addison
State Bar No. 24117368
haddison@krcl.com
5151 San Felipe, Suite 800
Houston, Texas 77056
Telephone: 713.425.7400
Facsimile: 713.425.7700
ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document has been
sent to all known counsel pursuant to the Texas Rules of Civil Procedure on this the 8th day of
September, 2023.

Attorneys for Plaintiff: Attorney for Defendant
Ellyn Julia Clevenger MahmoudAbahashemi
1115 Moody Avenue Thomas W. McQuage
Galveston, TX 7550 P. O. Box 16894
ellynclevenger@gmail.com Galveston, TX 77552
clevengerlawoffice@gmail.com mcquage@swbell.net

Attorney for Defendant
Commonwealth Land Title Ins. Co.
Brandon Hakari
Gregory T. Brewer
Fidelity National Law Group
6900 Dallas Parkway, Suite 610
Plano, TX 75024
Brandon.hakari@fnf.com

Chris C. Pappas

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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
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Debra Bell on behalf of Chris Pappas
Bar No. 15454300
dbell@krcl.com
Envelope ID: 79371827
Filing Code Description: Reply
Filing Description: Deft Dallas Russell, Sr.'s Reply to Plaintiff's Response
to Defendant's No-Evidence Motion for Summary Judgment
Status as of 9/8/2023 4:42 PM CST

Associated Case Party: Diverse Equity, LLC