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FILED
DALLAS COUNTY
12/19/2013 11:35:23 AM
GARY FITZSIMMONS
DISTRICT CLERK
CAUSE NO. DC-12-07867
MANGO FC, LLC, § IN THE DISTRICT COURT
§
Plaintiff-Counterdefendant, §
§
v. §
§
HOWARD GROSSER, §
§ 160TH JUDICIAL DISTRICT
Defendant-Counterplaintiff §
and Third-Party Plaintiff §
§
and §
§ DALLAS COUNTY, TEXAS
PHROZEN ASSETS, LLC, §
§
Third-Party Plaintiff. §
DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER’S NOTICE OF
SUPPLEMENTAL AUTHORITY SUPPORTING HIS SUMMARY JUDGMENT
RESPONSE
TO THE HONORABLE COURT:
1. At the discovery hearing before this Court on December 13, 2013, the Court
asked a question to the effect of whether it would be possible for Mr. Grosser to rely on
representations made after the signing of the franchise agreement. Grosser has identified the
following examples of Texas cases or federal cases applying Texas law where a party has been
allowed to maintain a claim based on post-contract misrepresentations:
Bank of America, N.A. v. Barth, 2013 WL 5676024, at *11-12 (Tex. App. – Corpus
Christi 2013, no pet. h.) (affirming trial judgment based on fraud for post-contract invoices that
misrepresented amounts were due when no payments were due).
Barzoukas v. Foundation Design, Ltd., 363 S.W.3d 829, 837-38 (Tex. App. – Houston
[14th Dist.] 2012, no pet. h.) (finding summary judgment fact issues on negligence and negligent
misrepresentation claims against engineers for post-contractual change in depth of piers).
1
Regent International Hotels, Ltd., 704 S.W.2d 101, 105 (Tex. App. – Dallas 1985, no
writ) (reversing summary judgment and finding that estoppel defense could be based on post-
contract representations about whether contracts were still in effect).
Sounds & Things v. Southwestern Bell Mobile Systems, Inc., 1995 WL 783345, at *5-6
th
(5 Cir. Nov. 27, 1995) (concluding that “damages for fraud relating to the chargebacks are not
foreclosed as a matter of law,” when the theory of damages “are not amounts due under the
contract, but amounts [claimant] would not have been charged but for [defendant’s] alleged
misrepresentations”).
Peterson Group, Inc. v. PLTQ Lotus Group, L.P., 2013 WL 6081451, at *13 (Tex. App. –
Houston [1st Dist.] Oct. 17, 2013, no pet. h.) (“While the development agreement enumerated
the various tasks that Yu and his entities would perform in furtherance of developing Royal
Oaks, PLTQ’s fraud claim was not based on a failure to accomplish these tasks or negligence in
carrying them out. Rather, PLTQ’s fraud claim was based on the separate harm it suffered as a
result of Yu’s misrepresentations and acts of dishonesty which did not further the goal of
developing the Royal Oaks Shopping Center.”).
Hoechst Celanese Corp. v. Arthur Bros., Inc. 882 S.W.2d 917, 923-24 (Tex. App. –
Corpus Christi 1994, writ denied) (finding that “representation regarding renewal was separate
from and not excluded by the contract” and that, accepting claimant’s version of events, “there
was a misrepresentation that ABI relied upon to its detriment.”)
American Commercial Colleges, Inc. v. Davis, 821 S.W.2d 450, 452-53 (Tex. App. –
Eastland 1991, writ denied) (finding sufficient evidence to support student’s reliance on
misrepresentations in college’s catalogue for purposes of DTPA claims, even though reliance
occurred after signing of enrollment agreement).
Newington Limited v. Forrester, 2008 WL 4908200 (N.D. Tex. Nov. 13, 2008) (Fish, J.)
(denying motion to dismiss based on economic loss doctrine and finding, even absent a formal
escrow agreement, an escrow owes the party remitting the funds “the duty of loyalty, the duty to
make full disclosure, and the duty to exercise a high degree of care.”).
2. Grosser also provides notice that he intends to rely on the Federal Trade
Commission franchise rule, which set forth requirements for the information that Mango was
required to disclose to Grosser. Grosser has not asserted an independent cause of action based
on this rule, but the rule is nonetheless relevant to the issues before the Court.
3. Grosser also submits two additional cases that underscore the fatal procedural
deficiency in Mango's motion, which does not challenge Grosser's affirmative defenses in the
part of its brief that lists the grounds for summary judgment:
2
McConnell v. Southside Independent School District, 858 S.W.2d 337 (1993)
(Hightower, J.) (held “that specific grounds for summary judgment must be expressly presented
in the motion for summary judgment itself and not in a brief filed contemporaneously with the
motion or in summary judgment evidence”).
Jose Fuentes Co., Inc. v. Alfaro, 2013 WL 6174488 (Tex. App. – Dallas 2013) (Evans, J.)
(held (1) no-evidence summary judgment motion that challenged “one or more” of the listed
elements of each claim, without identifying the specific element or elements being challenged,
was legally insufficient; (2) there is no “fair notice” exception to requirement that a no-evidence
motion for summary judgment fails to state the specific elements that the movant contends lack
supporting evidence is fundamentally defective and cannot support summary judgment as a
matter of law).
Dated: December 19, 2013 Respectfully submitted,
By: /s/Christopher J. Akin
Christopher J. Akin
Texas State Bar Number 00793237
Lynn Tillotson Pinker Cox, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
T 214 981 3805
F 214 981 3839
Email: cakin@lynnllp.com
and
Mitchell J. Kassoff
Admitted Pro Hac Vice
Two Foster Court
So. Orange, N.J. 07079-1002
T 973 762-1776
law@legal-franchise.com
ATTORNEYS FOR DEFENDANT-
COUNTERPLAINTIFF HOWARD GROSSER
AND PHROZEN ASSETS, LLC
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document and all exhibits was served
upon Mullin Law, PC, attorneys for plaintiff, 2425 N. Central Expy., Ste. 200 Richardson, TX
75080 via email (the method agreed to among counsel) on this 19th day of December 2013.
VIA ELECTRONIC MAIL
Cheryl Mullin
MULLIN LAW, P.C.
2425 N. Central Expressway, Suite 200
Richardson, Texas 75080
/s/Christopher J. Akin
Christopher J. Akin
4
Preview
FILED DALLAS COUNTY 12/19/2013 11:35:23 AM GARY FITZSIMMONS DISTRICT CLERK CAUSE NO. DC-12-07867 MANGO FC, LLC, § IN THE DISTRICT COURT § Plaintiff-Counterdefendant, § § v. § § HOWARD GROSSER, § § 160TH JUDICIAL DISTRICT Defendant-Counterplaintiff § and Third-Party Plaintiff § § and § § DALLAS COUNTY, TEXAS PHROZEN ASSETS, LLC, § § Third-Party Plaintiff. § DEFENDANT-COUNTERPLAINTIFF HOWARD GROSSER’S NOTICE OF SUPPLEMENTAL AUTHORITY SUPPORTING HIS SUMMARY JUDGMENT RESPONSE TO THE HONORABLE COURT: 1. At the discovery hearing before this Court on December 13, 2013, the Court asked a question to the effect of whether it would be possible for Mr. Grosser to rely on representations made after the signing of the franchise agreement. Grosser has identified the following examples of Texas cases or federal cases applying Texas law where a party has been allowed to maintain a claim based on post-contract misrepresentations: Bank of America, N.A. v. Barth, 2013 WL 5676024, at *11-12 (Tex. App. – Corpus Christi 2013, no pet. h.) (affirming trial judgment based on fraud for post-contract invoices that misrepresented amounts were due when no payments were due). Barzoukas v. Foundation Design, Ltd., 363 S.W.3d 829, 837-38 (Tex. App. – Houston [14th Dist.] 2012, no pet. h.) (finding summary judgment fact issues on negligence and negligent misrepresentation claims against engineers for post-contractual change in depth of piers). 1 Regent International Hotels, Ltd., 704 S.W.2d 101, 105 (Tex. App. – Dallas 1985, no writ) (reversing summary judgment and finding that estoppel defense could be based on post- contract representations about whether contracts were still in effect). Sounds & Things v. Southwestern Bell Mobile Systems, Inc., 1995 WL 783345, at *5-6 th (5 Cir. Nov. 27, 1995) (concluding that “damages for fraud relating to the chargebacks are not foreclosed as a matter of law,” when the theory of damages “are not amounts due under the contract, but amounts [claimant] would not have been charged but for [defendant’s] alleged misrepresentations”). Peterson Group, Inc. v. PLTQ Lotus Group, L.P., 2013 WL 6081451, at *13 (Tex. App. – Houston [1st Dist.] Oct. 17, 2013, no pet. h.) (“While the development agreement enumerated the various tasks that Yu and his entities would perform in furtherance of developing Royal Oaks, PLTQ’s fraud claim was not based on a failure to accomplish these tasks or negligence in carrying them out. Rather, PLTQ’s fraud claim was based on the separate harm it suffered as a result of Yu’s misrepresentations and acts of dishonesty which did not further the goal of developing the Royal Oaks Shopping Center.”). Hoechst Celanese Corp. v. Arthur Bros., Inc. 882 S.W.2d 917, 923-24 (Tex. App. – Corpus Christi 1994, writ denied) (finding that “representation regarding renewal was separate from and not excluded by the contract” and that, accepting claimant’s version of events, “there was a misrepresentation that ABI relied upon to its detriment.”) American Commercial Colleges, Inc. v. Davis, 821 S.W.2d 450, 452-53 (Tex. App. – Eastland 1991, writ denied) (finding sufficient evidence to support student’s reliance on misrepresentations in college’s catalogue for purposes of DTPA claims, even though reliance occurred after signing of enrollment agreement). Newington Limited v. Forrester, 2008 WL 4908200 (N.D. Tex. Nov. 13, 2008) (Fish, J.) (denying motion to dismiss based on economic loss doctrine and finding, even absent a formal escrow agreement, an escrow owes the party remitting the funds “the duty of loyalty, the duty to make full disclosure, and the duty to exercise a high degree of care.”). 2. Grosser also provides notice that he intends to rely on the Federal Trade Commission franchise rule, which set forth requirements for the information that Mango was required to disclose to Grosser. Grosser has not asserted an independent cause of action based on this rule, but the rule is nonetheless relevant to the issues before the Court. 3. Grosser also submits two additional cases that underscore the fatal procedural deficiency in Mango's motion, which does not challenge Grosser's affirmative defenses in the part of its brief that lists the grounds for summary judgment: 2 McConnell v. Southside Independent School District, 858 S.W.2d 337 (1993) (Hightower, J.) (held “that specific grounds for summary judgment must be expressly presented in the motion for summary judgment itself and not in a brief filed contemporaneously with the motion or in summary judgment evidence”). Jose Fuentes Co., Inc. v. Alfaro, 2013 WL 6174488 (Tex. App. – Dallas 2013) (Evans, J.) (held (1) no-evidence summary judgment motion that challenged “one or more” of the listed elements of each claim, without identifying the specific element or elements being challenged, was legally insufficient; (2) there is no “fair notice” exception to requirement that a no-evidence motion for summary judgment fails to state the specific elements that the movant contends lack supporting evidence is fundamentally defective and cannot support summary judgment as a matter of law). Dated: December 19, 2013 Respectfully submitted, By: /s/Christopher J. Akin Christopher J. Akin Texas State Bar Number 00793237 Lynn Tillotson Pinker Cox, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 T 214 981 3805 F 214 981 3839 Email: cakin@lynnllp.com and Mitchell J. Kassoff Admitted Pro Hac Vice Two Foster Court So. Orange, N.J. 07079-1002 T 973 762-1776 law@legal-franchise.com ATTORNEYS FOR DEFENDANT- COUNTERPLAINTIFF HOWARD GROSSER AND PHROZEN ASSETS, LLC 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document and all exhibits was served upon Mullin Law, PC, attorneys for plaintiff, 2425 N. Central Expy., Ste. 200 Richardson, TX 75080 via email (the method agreed to among counsel) on this 19th day of December 2013. VIA ELECTRONIC MAIL Cheryl Mullin MULLIN LAW, P.C. 2425 N. Central Expressway, Suite 200 Richardson, Texas 75080 /s/Christopher J. Akin Christopher J. Akin 4