                                                                            ACCEPTED
                                                                        01-15-00058-CV
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                   4/29/2015 4:20:09 PM
                                                                  CHRISTOPHER PRINE
                                                                                 CLERK



          No. 01-15-00058-CV
_______________________________________________________
                                                  FILED IN
                                             1st COURT OF APPEALS
                                                 HOUSTON, TEXAS
              IN THE FIRST COURT OF APPEALS  4/29/2015 4:20:09 PM
                   AT HOUSTON, TEXAS         CHRISTOPHER A. PRINE
                                                     Clerk
_______________________________________________________

                  JAMIE GENENDER ,
                                  Appellant,

                            v.

                  LARRY KIRKWOOD
           AND USA STORE FIXTURES, LLC,
                                     Appellees.
_______________________________________________________

         On Appeal from the 55th Judicial District Court
         of Harris County, Texas, Cause No. 2013-59766
________________________________________________________

                BRIEF OF APPELLANT
_______________________________________________________



                                 Jan Woodward Fox
                                 Tex. Bar No. 07334500
                                 Cameron Weir
                                 Tex. Bar No. 24088616
                                 JAN WOODWARD FOX
                                 PROFESSIONAL LEGAL CORPORATION
                                 440 Louisiana Street, Suite 900
                                 Houston, Texas 77002-4205

                                 Counsel for Appellant



            ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

Jan Woodward Fox and Cameron Weir, Jan Woodward Fox A Professional Legal

Corporation, 440 Louisiana Street, Suite 900, Houston, TX 77002, trial counsel

for Appellant Jamie Genender, hereinafter “Genender”.



Jerrad D. Bloome, Weycer Kaplan, Pulaski, and Zuber, 11 Greenway Plaza, Suite

1400, Houston, Texas 77046, trial counsel for Appellees Larry Kirkwood,

hereinafter “Kirkwood” and USA Store Fixtures, LLC, hereinafter “USA”.




                                        ii
                                      TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .........................................................ii

TABLE OF CONTENTS…………………………………………………………iii

INDEX OF AUTHORITIES..................................................................................vii

STATEMENT OF THE CASE.............................................................................xiv

STATEMENT REGARDING ORAL ARGUMENT...........................................xvi

ISSUES PRESENTED.........................................................................................xvii

STATEMENT OF FACTS.....................................................................................1

SUMMARY OF ARGUMENT .............................................................................7

APPLICABLE LEGAL STANDARDS ................................................................9

ARGUMENT.........................................................................................................12

I.        THE DISTRICT COURT ERRED IN GRANTING SUMMARY
          JUDGMENT AS TO GENENDER’S DTPA CLAIMS ORIGINALLY
          FILED IN COUNTY COURT AS §16.064 TEX. CIV. PRAC. & REM. CODE
          APPLIED AND TOLLED THE APPLICABLE LIMITATION
          PERIOD………………………………………………………………….12

     A.      Summary of the Argument……………………………………………..12

     B.      Interpretation of §16.064 TEX. CIV. PRAC. & REM. CODE, the savings
             statute, its predecessor, and the purpose of the limitations affirmative
             defense.……………………………………………………………….15

     C.      Savings statute’s liberal interpretation of what constitutes dismissal and
             the courts’ common law severance procedure tantamount to
             dismissal………………………………………………………………..19




                                                        iii
       D.     The County Court’s lack of jurisdiction in a direct proceeding entitled
              Genender to the protection of the savings statute and her voluntary non-
              suit of the severed case had no effect on its application……………...21

II.         THE DISTRICT COURT ERRED IN DISMISSING GENENDER’S DTPA
            UNCONSCIONABILITY CLAIM FOR APPELLEES’ COURSE OF
            CONDUCT INCLUDING THEIR AGENT’S TRESPASS AS THERE IS
            NO SPECIFIC SUMMARY JUDGMENT EVIDENCE OR EVEN
            ARGUMENT OFFERED BY APPELLEES ON THIS CLAIM…………25

III.        THE DISTRICT COURT ERRED IN GRANTING SUMMARY
            JUDGMENT AS TO GENENDER’S FRAUD CLAIM AS RES
            JUDICATA DOES NOT PRECLUDE A CAUSE OF ACTION IN ONE
            CASE BECAUSE IT COULD HAVE BEEN ARGUED AS AN
            AFFIRMATIVE DEFENSE IN ANOTHER……………………………...26

       A.     Summary of the Argument……………………………………………..26

       B.     USA and Kirkwood’s proposition that not asserting an affirmative
              defense of fraud to a contract action forecloses a cause of action for
              fraud in a subsequent suit due to res judicata (claim preclusion) is not
              supported by the case law……………….……………………………..27

       C.     USA and Kirkwood’s motion conflates claim preclusion with issue
              preclusion and meets the statutory burden for neither ………………29

IV.         THE DISTRICT COURT ERRED IN GRANTING SUMMARY
            JUDGMENT AS TO GENENDER’S DTPA DISTANT FORUM ABUSE
            CLAIM, AS THE CREDIT CARD AGREEMENT - THE TRUE
            CONTRACT AT ISSUE – WAS ENTERED INTO FOR PRIMARILY
            PERSONAL REASONS………………...………………………………...34

V.          THE DISTRICT COURT ERRED IN GRANTING SUMMARY
            JUDGMENT AS TO GENENDER’S CLAIMS OF UNFAIR DEBT
            COLLECTION PRACTICES AS USA AND KIRKWOOD ARE DEBT
            COLLECTORS WHO, THROUGH THEIR AGENT, VIOLATED THE
            TEXAS DEBT COLLECTION ACT AND THE DTPA…………………39




                                            iv
VI.     THE DISTRICT COURT ERRED IN GRANTING A NO EVIDENCE
        MOTION FOR SUMMARY JUDGMENT AS TO GENENDER'S
        TRESPASS CLAIM AS THERE IS A FACT ISSUE AS TO WHETHER
        THE ULTERIOR MOTIVE OF USA AND KIRKWOOD’S AGENT
        INTERFERED WITH GENENDER’S RIGHT OF POSSESSION.……43

CONCLUSION AND PRAYER FOR RELIEF....................................................54

CERTIFICATE OF SERVICE...............................................................................56

CERTIFICATE OF COMPLIANCE.....................................................................57

APPENDIX

1.      Plaintiff’s Second Amended Original Petition…………………………….58

2.      Order for Interlocutory Summary Judgment………………………………69

3.      Order Granting Defendants’ Second Motion for Summary Judgment and
        No-Evidence Motion for Summary Judgment…………………..……...…72

4.      Plaintiffs’ Plea to the Jurisdiction and Motion to Dismiss Defendant’s
        Counterclaims (County Court) …………………...…………………..…...75

5.      Order on Plaintiff’s Plea to the Jurisdiction and Motion to Dismiss and on
        Defendants’ Motion for Severance and to Consolidate….........…..............81

6.      Texas Rule of Civil Procedure 574a (Repealed)…………………...……...84

7.      Texas Civil Practice and Remedies Code §16.064…………………..........86

8.      Deceptive Trade Practices Act §17.46(b)(23)……………………………..88

9.      Texas Finance Code Ann. §392.304(a)(19)……………………………….90

10.     Opinion – Cause No. 14-14-00048-CV; Jamie Genender and Critter Stuff,
        LLC v. USA Store Fixtures, LLC….……………………………………...92

11.     Plaintiff’s Original Petition (JP Court)…………………………………..110


                                                  v
12.   Defendant’s First Amended Answer and Original Counterclaim (County
      Court)…………………………………………………………………….112

13.   Defendant’s Answer (Justice Court and County Court) ………………...120

14.   Judgment for Defendant Before the Court (Justice Court)………………122

15.   Plaintiff USA Store Fixture’s Amended Original Petition (County
      Court)………………………………………………………………….…124

16.   Letter of Appeal (Justice Court to County Court)………………………..130

17.   Video Exhibit introduced in CC…………………………………………132




                                   vi
                        INDEX OF AUTHORITIES

Cases

Adedipe v. Guardian Transfer & Storage, Inc., 14-10-00752-CV, 2011 WL 61862
(Tex. App.—Houston [14th Dist.] Jan. 6, 2011, no pet., not designated for
publication)……………………………………………………………………….23

Alaniz v. Hoyt, 105 S.W.3d 330 (Tex. App. — Corpus Christi 2003, no pet.)……9

Ali v. State, 742 S.W.2d 749 (Tex. App.— Dallas 1987, writ ref'd)……………..49

Almanza v. Navar, 225 S.W.3d 14 (Tex. App. — El Paso 2005, no pet.)…….….52

Amberboy v. Societe de Banque Privee, 831 S.W.2d 793 (Tex. 1992)….........…24

American Industries Live Ins. Co. v. Ruvalcaba, 64 S.W.3d 126 (Tex. App. —
Houston [14th Dist.] 2001 pet. denied)……………………………...…………...50

Ayre v. J.D. Bucky Allshouse, P.C., 942 S.W.2d 24 (Tex. App.— Houston [14th
Dist.] 1996), writ denied)…………………………….………………………..…31

Barnes v. Bituminous Cas. Corp., 495 S.W.2d 5 (Tex. App. — Amarillo 1973,
writ ref'd n.r.e..)………………………………………………………………….20

Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165 (Tex. App. — Houston [1st
Dist.] 2012, pet. denied)……………………………………………...………31, 33

Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627 (Tex.
1992)………………………………………………………………………….29, 30

Beathard Joint Venture v. W. Houston Airport Corp., 72 S.W.3d 426 (Tex.
App.—Texarkana 2002, no pet.)……………………………………………….26

Bhalli v. Methodist Hosp., 896 S.W.2d 207 (Tex. App. — Houston [1st Dist.]
1995,writ denied)………………………………………………………………11

Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816 (Tex.1984)……………30, 31

Bracken v. Wells Fargo Bank, N.A., 2014 WL 31778 (E.D. Tex. 2014) ………..41
                                     vii
Brown v. Fullenweider, 135 S.W.3d 340, 342 (Tex. App. — Texarkana 2004, pet.
denied)…………………………………………………………………………...15

Burford v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex. Civ. App.—Austin 1944), writ
refused W.O.M. (Apr. 25, 1945)…………………………………………………19

Burnett v. New York Central Railroad Co., 380 U.S. 424 (1965)…………...…18

Burton Constru. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598 (Tex.
1954)………………………………………………………………………....43, 53

Carlisle v. J Weingarten, Inc.,137 S.W.2d 1073 (Tex. 1941)…………………..50

Carter v. Charles, 853 S.W.2d 667, 672 (Tex. App. — Houston [14th Dist.] 1993,
no writ)…………………………………………………………………………...31

Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986)………………….…….32

Century 21 Page One Realty v. Naghad, 760 S.W.2d 305 (Tex. App. —
Texarkana 1988, no writ)…………………………………………………….….47

Chacon v. Andrews Distrib. Co. Ltd., 295 S.W.3d 715 (Tex. App. — Corpus
Christi 2009, pet. denied)…………………………………...…………..…9, 15, 16

Champion v. Vincent, 20 Tex. 811 (1858)………………………………………45

City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671
(Tex.1979)……………………………………………………………………..…11

Clary Corp. v. Smith, 949 S.W.2d 452 (Tex. App. — Fort Worth 1997, pet.
denied)………………………………………………………………………16, 22

Clayton v. Richards, 47 S.W.3d 149 (Tex. App. — Texarkana 2001, pet.
denied)……………………………………………………………….….44, 47, 49

Culbertson v. Tisdale, 01-97-01020-CV, 1999 WL 82612 (Tex. App. — Houston
[1st Dist.] Feb. 4, 1999, no pet.)………………………………………………...33

Davis v. Wells Fargo Bank, N.A., 976 F. Supp. 2d 870 (S.D. Tex. 2013) on
                                     viii
reconsideration, 6:11-CV-00047, 2014 WL 585403 (S.D. Tex. Feb. 14,
2014)…………………………………………………………………………….40

El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362 (Tex.1993)…………..31

Elec. Data Sys. Corp. v. Tyson, 862 S.W.2d 728 (Tex. App. — Dallas 1993, no
writ)………………………………………………………………………………41

Fenno v. Sam Reece Air Conditioning & Heating, Inc., 572 S.W.2d 810 (Tex.
App.—Houston [14th Dist.] 1978, no writ)…………………………………..…20

First Bank of Deer Park v. Harris County, 804 S.W.2d 588, 593 (Tex. App.—
Houston [1st Dist.] 1991, no writ)………………………………………………..29

Ford v. City State Bank of Palacios, 44 S.W.3d 121 (Tex. App. — Corpus Christi
2001, no pet.)…………………………………………………………………….38

French v. Gill, 252 S.W.3d 748 (Tex. App. — Texarkana 2008, pet.
denied)……………………………………………………………………………16

Garza v. Bancorp Group, Inc., 955 F. Supp. 68 (S.D. Tex. 1996)……………..38

Gen. Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827 (Tex. App. —
Dallas 2000, no pet.)………………………………………………………….....45

Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571 (Tex.1975)…………32

Getty Oil v. Insurance Co. of N. America, 845 S.W.2d 794 (Tex.1992)……….30

Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970)…………10, 11

Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41
(Tex. 1965)……………………………………………………………………….10

Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645 (5th Cir. 1983)………18, 19

Hatmaker v. Farmers Texas County Mut. Ins. Co., 14-98-00552-CV, 1999 WL
459788 (Tex. App.—Houston [14th Dist.] July 8, 1999, no pet., not designated for
publication)……………………………………………………………………….20


                                       ix
Harrill v. A.J.'s Wrecker Serv., Inc., 27 S.W.3d 191, 195 (Tex. App.—Dallas
2000, pet. dism'd w.o.j.)………………………………………………………….31

Henry v. Williams, 132 S.W.2d 633 (Tex. App. — Beaumont 1939, no writ)….45

Hotvedt v. Schlumberger Ltd. (N.V.), 914 F.2d 79 (5th Cir. 1990), opinion
withdrawn and superseded on reh'g, 942 F.2d 294 (5th Cir. 1991)………….16, 23

Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78 (Tex. 2008)…….……28

Jeanes v. Henderson, 688 S.W.2d 100 (Tex.1985)………………………………30

Long Island Trust Co. v. Dicker, 659 F.2d 641 (5th Cir.1981)…………………..18

Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901 (Tex. App. — Houston
[14th Dist.] 2009, no pet.)………………………………………………51, 52, 53

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex.1993)………26

McDaniel Bros. v. Wilson, 70 S.W.2d 618 (Tex. App. — Beaumont 1934, writ
ref'd)……………………………………………………………………………..45

McNeil Interests, Inc. v. Quisenberry, 407 S.W.3d 381 (Tex. App. — Houston
[14th Dist.] 2013, no pet.)………………………………………………………..34

Meyers v. Ford Motor Credit Co., 619 S.W.2d 572 (Tex. App. — Houston [14th
Dist.] 1981, no writ)………………………………………………………….….45

Monroe v. Frank, 936 S.W.2d 654 (Tex. App. — Dallas 1996, no
writ)............................................................................................................37, 40, 41

Montes v. Indian Cliffs Ranch, Inc., 946 S.W.2d 103 (Tex. App. — El Paso 1997,
writ denied)………………………………………………………………………51

Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984)………………………..9, 10

Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546 (Tex. 1985)……………9, 10

Olivier v. Snowden, 426 S.W.2d 545 (Tex. 1968)………………………………50


                                                            x
Oncor Elec. Delivery Co., LLC v. Murillo, 01-10-01123-CV, 2013 WL 5372544
(Tex. App. Sept. 26, 2013)……………………………………………………….53

Phillips v. Allums, 882 S.W.2d 71, 74 (Tex. App. — Houston [14th Dist.] 1994,
writ denied)………………………………………………………………………30

Priddy v. Bus. Men's Oil Co., 241 S.W. 770, 773 (Tex. Civ. App.—Amarillo
1922), writ granted (Oct. 4, 1922), aff'd, 250 S.W. 156 (Tex. Comm'n App.
1923)……………………………………………………………………………24

Prof'l Sec. Patrol v. Perez, 01-12-00506-CV, 2013 WL 4478020 (Tex. App. —
Houston [1st Dist.] Aug. 20, 2013, no pet.)……………………………………..48

Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003)………10, 39

Renfro Drug Co. v. Lewis, 235 S.W.2d 609 (Tex. 1951)………………………..50

Rowland v. City of Corpus Christi, 620 S.W.2d 930 (Tex. App. — Corpus Christi
1981, writ refd n.r.e.)…………………………………………………………….51

Richmond Condos. v. Skipworth Commerical Plumbing, Inc., 245 S.W.3d 646
(Tex. App. — Fort Worth 2008, pet. denied)…………………………………..48

Rosas v. Buddie's Food Store, 518 S.W.2d 534 (Tex. 1975)…………………….50

Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983)……………………………………21

Smith v. Huizar, 1860 WL 5812 (Tex. 1860)……………………………………46

Stanley v. Hicks, 272 S.W.2d 917 (Tex. App. — Waco 1954, no writ)………..23

State Farm Fire and Casualty Co. v. Gross, 818 S.W.2d 908 (Tex. App. — Austin
1991, no writ)……………………………………………………………………41

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004)……….9

Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314 (Tex.2002)………………….15

Tex. Water Rights Comm'n v. Crow Iron Works, 582 S.W.2d 768 (Tex.1979)…28


                                     xi
Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50 (Tex.1970)…………..11

Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819 (Tex.1997)……………..45

Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex. App.—Austin 1990), writ
granted (Dec. 19, 1990), rev'd, 855 S.W.2d 619 (Tex. 1993)……………………25

United Food & Commercial Workers Intern. Union v. Wal-Mart Stores, Inc., 430
S.W.3d 508 (Tex. App. — Fort Worth 2014, no pet.)……………..…………….46

United States v. Torres, 751 F.2d 875 (7th Cir.1984)……………………………49

Vale v. Ryan, 809 S.W.2d 324 (Tex. App. — Austin 1991, no writ)..…19, 20, 24

Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005)………………..10

Valero Mktg. & Supply Co. v. Kalama Int'l, 51 S.W.3d 345 (Tex. App. —
Houston [1st Dist.] 2001, no pet.)………………………………………………11

Weaver v. KFC Management, Inc., 750 S.W.2d 24 (Tex. App. — Dallas 1988,
writ denied)………………………………………………………………………51

Wilcox v. St. Mary's University of San Antonio, 531 S.W.2d 589 (Tex.1975)…..9

Winston v. Am. Med. Intern., Inc., 930 S.W.2d 945, 954 (Tex. App.—Houston [1st
Dist.] 1996), writ denied (June 12, 1997)………………………………………17

Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex.1988)………………..15

Statutes and Rules

Deceptive Trade Practices Act §17.46(b)(23)………….…1, 6, 26, 34, 35, 36, 38

Federal Debt Collection Protection Act, 15 U.S.C.A. §1692a…………..………40

Tex. Civ. Prac. & Rem. Code §16.064…………1, 5, 7, 12, 13, 14, 15, 16, 17, 22

Texas Disciplinary Rule of Professional Conduct 4.02………………………….48

Tex. Fin. Code Ann. § 392………………………………………..………6, 39, 40
                                      xii
Tex. Gov’t. Code Ann. § 312.006(a)……………………………………………37

Tex. Rev. Civ. Stat. Ann. art. 5539………………………………………16, 17, 19

Tex. R. Civ. P. Rule 94…………………………………………….……………15

Tex. R. Civ. P. 574a [repealed]………………………………4, 23, 27, 29, 31, 33

Publications

Handbook of the Law of Torts § 46 (4th ed.1971)………………….……………47

Texas Civil Practice § 17.20 (rev. ed. 1984)……………………………………..20

Restatement (Second) of Torts § 332(1) and (2) (1965)…………………………50

Statute Permitting New Action after Failure of Original Action Commenced
within Period of Limitation, as Applicable in Cases Where Original Action Failed
for Lack of Jurisdiction, 6 A.L.R.3d 1043 (1966)………………….……………20

Webster’s Third New Int’l Dictionary 1686 (1981)……………………………..37




                                      xiii
                          STATEMENT OF THE CASE

Nature of the Case: This case is an appeal of orders granting summary judgment

against all of Genender’s causes of action including DTPA violations, fraud,

improper debt collection practices under §392 of the Tex. Fin. Code, and trespass.

(CR 144-153)

Trial Court: This is an appeal from the 55th District Court of Harris County.

Some of the DTPA claims involved were originally filed in the Harris County

Civil Court at Law Number 1, which was an appeal from two cases heard by the

Harris County Justice of the Peace, Precinct 3, Place 1.

Procedural Disposition: After a credit card dispute process was decided in the

customers’ favor and the money paid for a shipment of used shelving was

recredited, the merchant, USA Store Fixtures, LLC, brought suit in the Justice of

the Peace Court against the customer Jamie Genender, and her company Critter

Stuff, LLC (“Critter Stuff”). (APP 11) Upon an unsuccessful result, USA appealed

to the County Court at Law. (APP 16) Genender brought counterclaims for

Deceptive Trade Practices Act violations and upon the Court’s determination that

it had no jurisdiction to hear these claims, as not brought in the Justice Court, she

refiled the DTPA claims in District Court. (CR 6-13) Genender amended her

petition to include claims for DTPA violations, Texas Debt Collection Act

violations, trespass, and fraud. (CR 144-153) On June 19, 2014, the Court signed


                                         xiv
an interlocutory Order granting summary judgment in favor of USA and

Kirkwood on Genender’s DTPA claims originally brought in the County Court

which accrued before October 4, 2011, based on the affirmative defense of statute

of limitations. (CR 142-143, APP 2) On October 13, 2014, the Court signed a

second summary judgment order in favor of USA and Kirkwood as to all of

Genender’s remaining claims, making the same a Final Judgment in the case. (CR

490-491, APP 3) Genender filed a Motion for New Trial which was denied by

Order on November 24, 2014. (CR 511) Genender timely filed her Notice of

Appeal on January 9, 2015. (CR 515-517)




                                       xv
             STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument. The facts of this case span two states and

more than three years. The procedural background of this case is also intricate as

it is an appeal from a District Court case involving the same core facts and certain

operative orders as a County Court case, which was itself an appeal from the

Justice Court. The County Court’s judgment has since been reviewed by the

Fourteenth Court of Appeals, which reversed in part. Appellant believes oral

argument may facilitate deliberations for this Court as the factual and procedural

history underlying the issues to be determined is fairly detailed and voluminous

and can be placed in context through oral argument.




                                        xvi
                             ISSUES PRESENTED

     1. Whether the County Court’s act of granting USA’s Plea to the Jurisdiction
and Motion to Dismiss and severing Appellant’s DTPA claims for lack of
jurisdiction pursuant to former TEX. R. CIV. P. 574a (which was applicable at the
time on an appeal of a Justice Court decision), was sufficient to invoke the savings
provision of Section 16.064 of the Texas Civil Practice and Remedies Code such
that the limitations period was tolled and Genender’s refiling of her DTPA claims
in the District Court was timely.

    2. Whether Genender’s DTPA unconscionability claim related to Appellees’
course of conduct which include causing their agent to trespass upon her property
can be dismissed by summary judgment when Appellee’s motion never
specifically challenged or raised any affirmative defenses as to that cause of
action.

    3. Whether the availability of an unplead and unlitigated affirmative defense
of fraud to USA’s contract claims in the County Court can operate to bar on res
judicata grounds Genender’s fraud claims in the District Court, especially when
fraud was not available to Genender as a cause of action in the County Court
because of Rule 574(a) TEX. R. CIV. P..

    4. Whether Genender had consumer status under the DTPA §17.46(b)(23)
because the contract at issue was the extension of credit secured by Genender’s
cardholder agreement, made a part of the credit card sale contract with USA, and
was sufficiently personal in nature to demonstrate Genender’s standing to bring a
cause of action against USA for abuse of a distant forum in violation of DTPA
§17.46(b)(23).

    5. Whether USA and Kirkwood’s private investigator agent’s use of
fraudulent, deceptive and misleading representations for obtaining information
concerning Genender were in furtherance of Appellees’ efforts to collect a debt
from her and raises a fact issue as to whether violation of the Texas Debt
Collection Act occurred.

    6. Whether the entry gained to Genender’s premises by deceit interfered with
her right of possession of those premises and raises a fact issue as to trespass.




                                        xvii
                              STATEMENT OF FACTS

      The District Court in two orders (CR 142-143, APP 2 and CR 490-491, APP

3) which are the subject of this appeal granted final summary judgment as to all of

Genender’s causes of action (CR 146-151) on the following grounds:

   1. DTPA claims first filed in County Court. The District Court ruled that

      Genender’s DTPA claims which accrued before October 4, 2011 were

      barred by limitations. (CR 258) It held specifically that §16.064 of the Civil

      Practices and Remedies Code did not apply to toll limitations where a prior

      filing was not dismissed but severed, because the court lacked

      jurisdiction.(CR 142)

   2. DTPA claims first filed in District Court. The District Court dismissed all

      of Genender’s remaining DTPA claims in its second summary judgment

      order. The Court specifically noted that the transaction at issue in

      Genender’s DTPA distant forum abuse claim was not primarily personal as

      required for §17.46(b)(23) to apply. The Court gave no reason for dismissing

      Genender’s DTPA unconscionability claim which accrued after October 4,

      2011. (CR 490)

   3. Improper debt collection practices. The Court dismissed Genender’s Texas

      Debt Collection Act and DTPA violation claims based upon USA and

      Kirkwood’s summary judgment motion alleging that the private investigator


                                         1
      they sent to enter Genender’s store and secretly videotape her was not a

      “debt collector” as required under the statute. (CR 490 and 263-264)

   4. Fraud. Genender’s fraud claims against USA and Kirkwood were dismissed

      on res judicata grounds on the argument that fraud could have been, but was

      not, asserted as an affirmative defense to USA’s contract claim in its appeal

      to the County Court. (CR 490 and 264-272)

   5. Trespass. The Court granted a no evidence motion for summary judgment

      on the grounds that there was less than a scintilla of evidence that USA and

      Kirkwood’s agent’s actions in entering her property on false pretenses,

      misrepresenting his intentions and secretly recording Genender interfered

      with Genender’s right of possession. (CR 490 and 272)

      The underlying facts at issue plead in Genender’s petition are as follows.

Using her personal credit card, Genender purchased used shelving online in

Wisconsin from USA, a Harris County business. (CR 7) USA shipped the shelving

to Genender in Wisconsin, but the quantity and quality of the shelving she received

as well as USA’s response to her concerns were completely unacceptable to

Genender. Genender filed a dispute with her credit card company that resulted in a

chargeback to USA. (CR 8) Instead of abiding by the determination of the credit

card dispute process, USA sued both Genender individually and Critter Stuff, LLC

(a pet store she was opening) in the Harris County Justice of the Peace Court,


                                        2
alleging not only $10,000 in damages, but also claims for fraud, defamation, and

slander. (CR 8, APP 11)

      Genender, representing herself pro se, filed an answer denying that she was

indebted to USA in the amount of $10,000 and denying the causes of action

alleged by USA in its petitions. (APP 13)

      On May 23, 2012 in Harris County Justice of the Peace court, Precinct 3,

Place 1, the Court entered a take nothing judgment in favor of Genender and her

then co-Defendant Critter Stuff. (CR 8 and APP 14)

      USA appealed the result of the JP Court case in a trial de novo to the Harris

County Civil Court at Law ultimately alleging claims of breach of contract,

negligent misrepresentation, fraud, fraud in the inducement, and quantum meruit.

(APP 15)

      After the Justice of the Peace Court ruled in Genender’s favor and USA filed

the appeal to the County Court, Genender filed her DTPA counterclaims with the

County Court on July 30, 2012. (APP 12)

      On or about October 26, 2012, a private investigator hired by USA and

Kirkwood was able to gain entry to Genender’s pet supply store by falsely

representing himself to be a pet owner in need of supplies. His true purpose was to

take secret video of Genender and her property and to collect information for USA

and Kirkwood to use in their pending lawsuit against Genender, as well as her


                                        3
business Critter Stuff, LLC. Genender was not aware of the true identity and

purpose of the man to whom she had granted entry to her store until USA’s counsel

produced the secret recording on January 9, 2013, two and a half months later. (CR

434-435 and 437-438)

      Over a year after Genender filed her Original Petition in County Court, and

with the trial set to begin on August 19, 2013, USA filed a Plea to the Jurisdiction

and Motion to Dismiss Appellant’s Counterclaims on July 25, 2013. (APP 4) This

was two years and two months after the shelving sale in question.

      At the hearing on August 6, 2013 on USA’s motion, the County Court

determined that it had no jurisdiction of Genender’s DTPA counterclaims because

they were a new ground of recovery and/or a counterclaim not asserted in the JP

Court and, therefore, not maintainable in the Appeal pursuant to Texas Rule of

Civil Procedure 574a. The Court also found that it lacked jurisdiction over USA’s

newly asserted claim of negligent misrepresentation. (APP 5) Ultimately, the

parties proceeded to trial on the contract claims, while the claims and

counterclaims to which the Plea to the Jurisdiction and Motion to Dismiss were

granted were severed into a new cause in County Court. (APP 5) The Court

declined to entertain Genender’s motion to consolidate the severed causes of action

with the appeal for trial. (CR 216-221)

      On October 4, 2013, fifty-three (53) days following the Court’s order,


                                          4
Genender filed her Original Petition with the District Court (CR 6-13) Thereafter,

on October 18, 2013, following the filing of the severed causes of action in a court

of proper jurisdiction (the District Court) within the sixty days allotted by §16.064

Tex. Civ. Prac. & Rem. Code, a joint motion was filed to non-suit the causes of

action that were severed because of the County Court’s ruling that it lacked

jurisdiction in the action in which the claims were first filed. (CR 214-215)

      At the end of the trial in the County Court on the parties’ breach of contract

claims, the jury found in favor of USA and awarded a judgment for damages in the

amount of $2,303.42 plus attorneys’ fees. (CR 64-66) Genender appealed to the

Fourteenth Court of Appeals (Cause No. 14-14-00048-CV). The Fourteenth Court

of Appeals affirmed the judgment as to actual damages, but reversed the award of

attorneys fees. (APP 10)

      When Genender refiled the claims the County Court had severed for lack of

jurisdiction, she added Kirkwood, the owner and prime actor of USA, as a

defendant; and she added a claim for trespass and a DTPA claim for the

unconscionable actions and/or course of action taken by USA and Kirkwood which

resulted in and ratified their agent’s misrepresentations used to gain entry to

Genender’s property and secretly film her and her premises for use in their lawsuit

against her. Genender later amended her District Court petition to include a claim

against USA and Kirkwood for their trespass as an improper debt collection


                                          5
practice in violation of §392.304(19) of the Texas Finance Code and the DTPA.

(CR 8-11, 16-20)     Genender also added a claim under DTPA §17.46(b)(23) for

USA and Kirkwood’s actions in filing suit against her based on contract in Harris

County (the JP and County Court cases), despite their knowledge that that was not

the county in which she lived or signed the contract. (CR 18) In Plaintiff’s Second

Amended Original Petition, filed July 21, 2014, Genender added claims for fraud

against USA and Kirkwood. (CR 144-153, APP 1)

      On June 19, 2014 the Court signed an Order granting Summary Judgment in

favor of Kirkwood/USA on Genender's DTPA claims. (APP 2, CR 142-143) The

Court also noted in that same Order that, "the Plaintiff [Genender] has raised

material issues of fact related to Defendants' alleged trespass on October 26, 2012,"

denying Summary Judgment on that claim. (Id.) The Court clarified its order on

September 8, 2014 when it stated that "its June 19, 2014 Order on Appellees'

Motion for Summary Judgment granted summary judgment only as to those DTPA

claims of Appellant which were originally filed in the County Court and which

accrued before October 4, 2011." (CR 258)

      It was following this ruling, on July 21, 2014, that Genender filed her

Second Amended Original Petition, adding a claim of fraud against USA and

Kirkwood. (APP 1, CR-144-153)




                                         6
      On October 13, 2014, the Court granted USA and Kirkwood's Second

Motion for Summary Judgment and No Evidence Motion for Summary Judgment

as to all claims, making the same a Final Judgment. (CR 490-491, APP 3)

      Appellant timely filed her Motion for New Trial on November 12, 2014 and

her Notice of Appeal on January 9, 2015. (CR 492-500; CR 515-517)

                          SUMMARY OF ARGUMENT

      Genender seeks reversal of two orders by the District Court granting USA

and Kirkwood’s motions for summary judgment, which, together, granted a final

judgment against Genender on all of her causes of action, including: DTPA

misrepresentation and unconscionability violations, fraud, DTPA distant forum

abuse violation, DTPA and Texas Finance Code debt collection violations, and

trespass. The Court erred in granting summary judgment as to Appellant’s pre –

October 4, 2011 DTPA claims originally brought in the County Court because the

statute of limitations for these causes of action was tolled by the “savings clause”

of Section 16.064 of the Texas Civil Practice and Remedies Code, the County

Court having severed that action for lack of jurisdiction.

      The District Court erred in granting summary judgment as to Genender’s

fraud cause of action on res judicata grounds, as fraud was neither plead nor

litigated in the County Court. It was neither mandatory that it be litigated nor was

it within the jurisdiction of the County Court to entertain it as a cause of action in


                                          7
the appeal from the JP Court.

      The District Court erred in granting summary judgment as to Genender’s

Distant Forum DTPA claim, as the contract on which Genender was sued in a

distant forum was a contract for the extension of credit primarily for her personal

use and Genender, therefore, has standing as a consumer for DTPA distant forum

claim purposes.

      The District Court erred in granting summary judgment on Genender’s

claims of unfair debt collection practices as there are ample fact issues regarding

the “debt collector” status of USA, Kirkwood, and their admitted agent who,

uninvited and unsolicited, came on to Genender’s property under false pretenses in

connection with their ulterior purpose of secretly videotaping Appellant and her

personal property to gather information on a consumer for use in litigation

concerning an alleged debt.

      The District Court erred in granting a no-evidence summary judgment on

Appellant’s claim of trespass as issues of material fact exist as to the invitee status

of Kirkwood and USA’s agent.




                                          8
                     APPLICABLE LEGAL STANDARDS

General standard for review of orders granting defendants summary judgment

      The standards for reviewing a motion for summary judgment are well

established. As mandated by the Texas Supreme Court, they are:

      1.     The movant for summary judgment has the burden of showing that

             there is no genuine issue of material fact and that it is entitled to

             judgment as a matter of law.

      2.     In deciding whether there is a disputed material fact issue precluding

             summary judgment, evidence favorable to the non-movant will be

             taken as true.

      3.     Every reasonable inference must be indulged in favor of the non-

             movant and any doubts resolved in its favor.

      Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985);
      Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex.1984); Wilcox v. St.
      Mary's University of San Antonio, 531 S.W.2d 589, 592–93 (Tex.1975).

      The function of summary judgment is to eliminate patently unmeritorious

claims and defenses, not to deprive litigants of the right to a trial by jury. Chacon

v. Andrews Distrib. Co. Ltd., 295 S.W.3d 715, 721 (Tex. App.—Corpus Christi

2009, pet. denied); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

228 (Tex.2004); Alaniz v. Hoyt, 105 S.W.3d 330, 345 (Tex.App.-Corpus Christi

2003, no pet.).


                                         9
      The standard for appellate review of a summary judgment in favor of a

defendant is whether the summary judgment proof establishes, as a matter of law,

that there is no genuine issue of fact as to one or more of the essential elements of

the plaintiff's causes of action. Gibbs v. General Motors Corp., 450 S.W.2d 827,

828 (Tex.1970). In an appeal from a summary judgment, the standard of review

and presumptions favor reversal of the judgment. Nixon v. Mr. Property

Management Co., 690 S.W.2d 546, 548–49 (Tex.1985) On appeal, the granting of

a motion for summary judgment is reviewed de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life & Acc. Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). Because evidence that favors the movant

will not be “considered unless it is uncontroverted” and because it is reviewed de

novo, the usual presumption that the judgment was correct does not apply. Great

Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47

(Tex. 1965)

Standard for review of summary judgment based on affirmative defenses of

limitations and res judicata

      Where, as here, part of the defendants’ motion for summary judgment is

based on affirmative defenses, the defendants have the burden to prove

conclusively each element of each affirmative defense relied upon, as a matter of

law. Montgomery v. Kennedy, 669 S.W.2d 309, 310–11 (Tex.1984); City of


                                         10
Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Gibbs

v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). Unless the movant

conclusively establishes the affirmative defenses, the non-movant plaintiff has no

burden in response to a motion for summary judgment filed on the basis of

affirmative defenses. Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50, 52

(Tex.1970)

Standard of appellate review of no-evidence summary judgment as to trespass

      The District Court granted Appellees’ no-evidence motion for summary

judgment as to Appellant’s claim for trespassing. A no-evidence summary

judgment is essentially a pretrial directed verdict, and a reviewing appellate court

applies the same legal sufficiency standard in reviewing a no-evidence summary

judgment as is applied in reviewing a directed verdict. Valero Mktg. & Supply Co.

v. Kalama Int'l, 51 S.W.3d 345, 350 (Tex.App.-Houston [1st Dist.] 2001, no pet.)

Standard for disposing of entire case by summary judgment

      Summary judgment for a defendant that disposes of the entire case is proper

only if, as a matter of law, the plaintiff could not have succeeded upon any of the

theories in its petition. Bhalli v. Methodist Hosp., 896 S.W.2d 207, 209

(Tex.App.—Houston [1st Dist.] 1995, writ denied).




                                        11
                                  ARGUMENT

I.    THE DISTRICT COURT ERRED IN GRANTING SUMMARY
      JUDGMENT AS TO APPELLANT’S DTPA CLAIMS ORIGINALLY
      FILED IN COUNTY COURT AS §16.064 TEX. CIV. PRAC. & REM.
      CODE APPLIED AND TOLLED THE APPLICABLE LIMITATION
      PERIOD

      As noted above, Genender successfully defended herself from USA’s claims

in Justice of the Peace Court, USA appealed to the County Court. (CR 8 and APP

14) Genender filed counter claims for USA’s DTPA violations. (APP 12) Upon the

County Court’s determination that it did not have jurisdiction to hear these counter

claims and declined to consolidate the severed claims with the appeal for trial,

Genender refiled them in District Court. (CR 6-13) The parties non-suited the case

created by the County Court’s decision to sever rather than dismiss the claims it

did not have jurisdiction to hear. (CR 214-215)

      The District Court granted USA and Kirkwood’s motion for summary

judgment on limitations grounds as Genender’s pre – October 4, 2011 DTPA

causes of action originally filed in County Court accrued more than two years

before they were filed in District Court. (CR 142-143 and 258)

      A. Summary of the Argument

      To summarize the arguments below, Section 16.064 of the Texas Civil

Practice and Remedies Code (§16.064 Tex. Civ. Prac. & Rem. Code), the “savings

statute”, preserves causes of action which are dismissed for lack of jurisdiction if


                                        12
they are refiled in a court of proper jurisdiction within 60 days of the date of

dismissal. In support of its ruling that §16.064 Tex. Civ. Prac. & Rem. Code did

not apply to toll the statute of limitations on Genender’s pre October 4, 2011

DTPA claims, the District Court specifically cited Genender’s voluntary non-suit

of the case created when the County Court determined that it did not have

jurisdiction to hear her DTPA counterclaims and severed them into a new case.

(CR 142) As discussed below, the non-suit of the severed County Court case had

no operative effect in this circumstance as Genender had already filed her suit in

District Court (a court of proper jurisdiction) within the period provided by the

savings statute.

       The pre October 4, 2011 DTPA claims filed in County Court accrued more

than two years before the County Court granted USA’s motion to dismiss on

jurisdictional grounds and thus, more than two years before Genender refiled them

in District Court. However, §16.064 Tex. Civ. Prac. & Rem. Code provides a

tolling provision for litigation initially filed in a court without jurisdiction, if suit is

filed in a court of proper jurisdiction within 60 days of the dismissal, as was done

in the case at hand. With regard to this set of facts, it was the action of the County

Court in ruling that it had no jurisdiction of Appellant’s DTPA claims in the action

in which they were first filed that triggered Appellant’s right to the relief afforded

by §16.064 Tex. Civ. Prac. & Rem. Code. Appellant timely availed herself of that


                                            13
relief by filing suit in the District Court (CR 6); and the subsequent nonsuit of the

new County Court case, created by the Court’s jurisdictional severance had no

legal effect because suit was properly and timely filed in a court of proper

jurisdiction, the District Court, and would have had to be either dismissed by the

Plaintiff or by the Court in order for the District Court to proceed, as the same

causes of action may not be maintained simultaneously in different courts.

      The District Court’s interpretation of the savings statute was too narrow and

is contrary to a wealth of case law supporting a liberal interpretation in support of

its objective, granting relief from limitations. Further, the savings statute case law

prescribes that courts applying the savings statute use a liberal standard for what

constitutes dismissal. Under such a liberal standard, and in light of the open courts

doctrine discussed below, the courts’ common law practice of severing rather than

dismissing claims they did not have jurisdiction to hear on appeal would still

satisfy the dismissal requirement for savings statute application purposes.

      Finally, the District Court’s ruling ran contrary to a strict reading of the

statutory language of §16.064 Tex. Civ. Prac. & Rem. Code which supports the

proposition that only what happens in the direct proceeding is significant, and the

case law which holds that a subsequent non-suit has no effect on the application of

the savings statute.




                                         14
      B. Interpretation of §16.064 TEX. CIV. PRAC. & REM. CODE, the savings
         statute, its predecessor, and the purpose of the limitations
         affirmative defense.

             The applicability of §16.064 Tex. Civ. Prac. & Rem. Code is a

question of law, which the appellate court reviews de novo. Chacon v. Andrews

Distrib. Co. Ltd., 295 S.W.3d 715, 721 (Tex. App.— Corpus Christi 2009, pet.

denied); Brown v. Fullenweider, 135 S.W.3d 340, 342 (Tex.App. — Texarkana

2004, pet. denied) (citing Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318

(Tex.2002)). Limitations is an affirmative defense, and a defendant asserting

limitations must plead, prove, and secure findings on that issue. Tex. R. Civ. P. 94;

Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988).

      The period between the date of filing an action in a trial court and the date of

a second filing of the same action in a different court suspends the running of the

applicable statute of limitations for the period if:

             (1) because of lack of jurisdiction in the trial court where
                 the action was first filed, the action is dismissed or the
                 judgment is set aside or annulled in a direct
                 proceeding; and
             (2) not later than the 60th day after the date the dismissal
                 or other disposition becomes final, the action is
                 commenced in a court of proper jurisdiction.
             Tex. Civ. Prac. & Rem. Code §16.064.

      Genender filed the District Court suit within 60 days of the date the Court

granted USA’s Motion to Dismiss on jurisdiction grounds and severed the case. As

a result, the tolling provision applied and the statute of limitations had not expired.
                                           15
      Courts liberally construe the savings statute so that the tolling of limitations

can be applied under a variety of circumstances. Chacon v. Andrews Distrib. Co.,

Ltd., 295 S.W.3d 715, 722 (Tex.App. – Corpus Christi 2009, pet. denied). Case

law also notes that the statute is to be liberally construed to effectuate its objective

- relief from penalty of limitations bar to one who mistakenly brought his action in

the wrong court. French v. Gill, 252 S.W.3d 748, 750 (Tex. App. – Texarkana

2008, pet. denied) citing Clary Corp. v. Smith, 949 S.W.2d 452, 461 (Tex. App. –

Fort Worth 1997, pet. denied)

      The Texas Legislature codified Tex. Rev. Civ. Stat. Ann. art. 5539 (Vernon

1958) as Tex. Civ. Prac. & Rem. Code §16.064 (Vernon 1986). After careful

consideration of both, the Fifth Circuit determined that “the legislature merely

intended a codification of the statute. In others words, there is no substantive

difference between the old statute and the new.” Hotvedt v. Schlumberger Ltd.

(N.V.), 914 F.2d 79, 82 (footnote 11) (5th Cir. 1990), opinion withdrawn and

superseded on reh'g, 942 F.2d 294 (5th Cir. 1991)

      Analysis of the predecessor statute, Art. 5539a Tex. Rev. Civ. Stat. Ann., is,

therefore, useful in determining the application of Tex. Civ. Prac. & Rem. Code

§16.064.

      Tex. Rev. Civ. Stat. Ann. art. 5539a provides:

      When an action shall be dismissed in any way, or a judgment therein
      shall be set aside or annulled in a direct proceeding, because of a want
                                          16
      of jurisdiction of the Trial Court in which such action shall have been
      filed, and within sixty (60) days after such dismissal or other
      disposition becomes final, such action shall be commenced in a Court
      of Proper Jurisdiction, the period between the date of first filing and
      that of commencement in the second Court shall not be counted as a
      part of the period of limitation unless the opposite party shall in
      abatement show the first filing to have been in intentional disregard of
      jurisdiction.
      Tex. Rev. Civ. Stat. Ann. art. 5539a (Vernon 1958)

      A plain reading of Article 5539a’s language concerning the dismissal,

“…dismissed in any way, or a judgment therein shall be set aside or annulled in a

direct proceeding, because of want of jurisdiction of the Trial Court in which such

action shall have been filed… after such dismissal or other disposition” supports

the proposition that Section 16.064 and its predecessor require lack of jurisdiction

in the direct proceeding as the primary issue and that dismissal is to be liberally

interpreted. Houston’s First Court of Appeals urged reliance on the “many cases

mandating a liberal construction of the [savings] statute.” Winston v. Am. Med.

Intern., Inc., 930 S.W.2d 945, 954 (Tex. App.—Houston [1st Dist.] 1996), writ

denied (June 12, 1997)

      Granting the summary judgment relief requested by USA and Kirkwood,

despite the applicability of TEX. CIV. PRAC. & REM. CODE §16.064 does not

further the policy goals of limitations. In a Fifth Circuit case deciding whether Tex.

Rev. Civ. Stat. Ann. art. 5539a [the statutory predecessor to Tex. Civ. Prac. &

Rem. Code §16.064] would apply when the first suit was in a court of a different


                                         17
state, the Court stated:

      “Finally, we note that Dicker's suggested rule would not further the
      policies that ordinarily provide justification for the results otherwise
      created by statutes of limitations. Statutes of limitations are primarily
      designed to assure fairness to defendants. Such statutes “promote
      justice by preventing surprises through the revival of claims that have
      been allowed to slumber until evidence has been lost, memories have
      faded, and witnesses have disappeared. The theory is that even if one
      has a just claim it is unjust not to put the adversary on notice to defend
      within the period of limitations and that the right to be free of stale
      claims in time comes to prevail over the right to prosecute them.”
      Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85
      S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965)…. [where, as here, a
      defendant has notice] the defendant has no one but himself to blame if
      evidence is lost, memories fade, and witnesses disappear.”
      Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645, 650 (5th Cir.
      1983); Long Island Trust Co. v. Dicker, 659 F.2d 641, 647 (5th
      Cir.1981).

      Appellees had notice of Genender’s DTPA claims from the time they were

originally filed in County Court, July 30, 2012. Further, Appellees were given

notice that Genender had refiled them in District Court before the parties moved

jointly to non-suit the case created by the County Court’s severance. There is no

question that Appellees had sufficient notice of Genender’s DTPA claims to

preserve evidence and witnesses for their defense and that application of

limitations under these circumstances would not promote their purpose.




                                         18
      C. Savings statute’s liberal interpretation of what constitutes dismissal
         and the courts’ common law severance procedure tantamount to
         dismissal.

      Beyond being liberally interpreted in general to effectuate its purpose, under

Texas law, the savings statute is also to be liberally interpreted with respect to what

constitutes a dismissal. Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645, 651

(5th Cir. 1983); Burford v. Sun Oil Co., 186 S.W.2d 306, 310 (Tex. Civ. App.—

Austin 1944), writ refused W.O.M. (Apr. 25, 1945) (“[I]t is clear that the Act

[5539a] was intended to cover every case where the effect of the final judgment or

order of the first court was tantamount to a dismissal because the action was

mistakenly but in good faith brought in the wrong court. In other words, the effect

of the court judgment or order and not its form or the name by which it is called is

the determining factor.”)

      In a case determining that a Federal court’s refusal to exercise jurisdiction

was tantamount to a dismissal for lack of jurisdiction necessary to invoke the

savings statute, the Austin Court of Appeals held that “the effect of the order as

one of dismissal for want of jurisdiction cannot be obviated by means of

nomenclature. And this is true in the instant case regardless of the distinction in a

proper case between want of jurisdiction and refusal to exercise it.” Vale v. Ryan,

809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no writ)

      The Court further noted that the savings statute applies “whether the


                                          19
dismissal is one for want of jurisdiction of the subject matter or one based upon the

impropriety of exercising jurisdiction in a particular action.” 4 McDonald, Texas

Civil Practice § 17.20, at 123 (rev. ed. 1984) (emphasis added); see also

Annotation, Statute Permitting New Action after Failure of Original Action

Commenced within Period of Limitation, as Applicable in Cases Where Original

Action Failed for Lack of Jurisdiction, 6 A.L.R.3d 1043 (1966).

      Thus, a severance for lack of jurisdiction, which is analogous to a dismissal

for lack of jurisdiction, despite its different nomenclature, makes the tolling

provision applicable. Further, the County Court’s declining to entertain

Defendants’ Motion for Joint Trial after severance (CR 216-221) was tantamount

to a dismissal “based upon the impropriety of exercising jurisdiction in a particular

matter.” Vale v. Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no writ).

      It is well settled that when a court lacks jurisdiction in a matter, the only

valid action it may take is dismissal. (See e.g., Fenno v. Sam Reece Air

Conditioning & Heating, Inc., 572 S.W.2d 810, 811 (Tex. App. — Houston [14th

Dist.] 1978, no writ); Barnes v. Bituminous Cas. Corp., 495 S.W.2d 5, 11 Tex. Civ.

App.—Amarillo 1973, writ ref'd n.r.e..) Thus, for many years, when a counterclaim

was found to be inappropriately filed in a JP Appeal, the appropriate action to be

taken by the Court was dismissal. See, e.g., Hatmaker v. Farmers Texas County

Mut. Ins. Co., 14-98-00552-CV, 1999 WL 459788 (Tex. App.—Houston [14th


                                         20
Dist.] July 8, 1999, no pet., not designated for publication) (“When faced with this

situation, the proper procedure is to dismiss any added claims over which the court

lacks jurisdiction.”) Recognizing, however, that the defendant had an absolute right

to file its counterclaim as an original action, some courts determined that the

“better practice” for judicial economy upon dismissal from the action in which it

was first filed, was to sever it into a new case to be dealt with separately.

      However, what may be procedurally convenient and economical cannot act

to deprive the counterclaimant of her due process and open courts rights to select

the forum of proper jurisdiction in which she will proceed. Sax v. Votteler, 648

S.W.2d 661, 665 (Tex. 1983) (The test for an open courts-due process violation is

whether the statute unreasonably abridges a justiciable right to obtain redress for

injuries caused by the wrongful acts of others.) It was these rights that Genender

was exercising in filing suit in the District Court. The County Court’s choice that

the action be refiled in County Court cannot bind the claimant to that forum when

others are available.

      D. The County Court’s lack of jurisdiction in a direct proceeding
         entitled Genender to the protection of the savings statute and her
         voluntary non-suit of the severed case had no effect on its
         application.

      There is no question that the County Court ruled it lacked jurisdiction of the

claims in the action where it was first filed and there is no question that Appellant

commenced her action in a different court, the District Court – a court of proper
                                           21
jurisdiction – within sixty days of the Court’s ruling.

      The pertinent portion of subsection (a)(1) is that the action must be

dismissed by the trial court where the action was first filed [and] in a direct

proceeding. (Emphasis added). Only the Court’s actions in the direct proceeding

are to be considered for application of this section. The non-suit of Appellant’s

severed claims in County Court occurred in a separate proceeding and can have no

bearing on the applicability of section 16.064. The trial court where the action was

first filed had already determined that it did not have jurisdiction to hear the claims,

ordered them refiled in a separate case in the County Court before the claims were

non-suited, and did not grant Genender’s motion to consolidate them for trial. “The

plain language of both section 16.064 (‘second filing ... in a different court’) and

its predecessor (‘commencement in the second court’) indicates that the legislature

intended the saving statute to apply only to cases refiled in a different court after

dismissal, not in the same court.” Clary Corp. v. Smith, 949 S.W.2d 452, 460 (Tex.

App. – Fort Worth 1997, pet. denied.)

      As discussed below, so long as the claimant commences the action in a

different court of proper jurisdiction not later than 60 days after the date the

dismissal or other disposition becomes final, the claimant would be free to file,

non-suit, and refile an action.

      The grounds for the Court’s Order on Appellees’ Motion for Summary


                                          22
Judgment state that, because Appellant filed a voluntary nonsuit, the case did not

qualify as one dismissed because the court lacked jurisdiction. (CR 142-143)

However, based upon the County Court’s determination that Appellant’s pre

October 4, 2011 DTPA claims had not been raised in the JP Court and its

application of Tex. R. Civ. P. 574a [repealed], the County Court did not have

jurisdiction over the claims in the action in which it was first filed, the JP Appeal.

Adedipe v. Guardian Transfer & Storage, Inc., 14-10-00752-CV, 2011 WL 61862

(Tex. App.—Houston [14th Dist.] Jan. 6, 2011, no pet., not designated for

publication) citing Stanley v. Hicks, 272 S.W.2d 917, 919 (Tex.Civ.App.-Waco

1954, no writ). The Fifth Circuit Court of Appeals addressed the application of the

Texas saving statute to such a situation in a case in which a claim was filed in

California and stayed for forum non conveniens, then non-suited and refiled in

Texas state court. Hotvedt v. Schlumberger Ltd. (N.V.), 914 F.2d 79 (5th Cir. 1990)

(Opinion withdrawn and superseded on reh'g on other grounds, 942 F.2d 294 (5th

Cir. 1991).

        The Fifth Circuit initially held [although ultimately it re-determined the case

on California state law grounds] that the California Court’s ruling of forum non

conveniens was tantamount to a finding of no jurisdiction which it held was the

operative act for application of the Texas savings statute.1 It went on to rule that

1
    This is similar to the Austin Court of Appeals ruling discussed earlier, in which a court’s
    decision not to exercise jurisdiction was held to be effectively a dismissal for lack of
                                              23
Plaintiff’s later nonsuit of the California action had no bearing on the application

of the saving statute. Id at 82.

      The Fifth Circuit’s original opinion as it applied the Texas saving statute

was cited with approval in a Texas Supreme Court concurring opinion. (See

concurring and dissenting opinion in Amberboy v. Societe de Banque Privee, 831

S.W.2d 793, 800 (Tex. 1992).) The “issue presented [application of the saving

statute when the trial court ruling amounted to dismissal] had already been

answered correctly based on Texas law” in the Fifth Circuit’s first opinion. Id at

800, Footnote 8.

      Further, Genender had refiled her claims in the District Court before moving

jointly to with Appellees to nonsuit the new County Court suit. The new case

created by the County Court would have had to be either dismissed by the Plaintiff

or by the Court in order for the District Court to proceed, as the same causes of

action may not be maintained simultaneously in different courts. Priddy v. Bus.

Men's Oil Co., 241 S.W. 770, 773 (Tex. Civ. App.—Amarillo 1922), writ granted

(Oct. 4, 1922), aff'd, 250 S.W. 156 (Tex. Comm'n App. 1923) (“If the two suits

[between the same parties and for the same cause of action] had been still pending

at the same time [a] plea in abatement was filed that would have required the party

[maintaining the same cause of action in two suits] to dismiss one and pay the cost


   jurisdiction in applying the Texas saving statute. See Vale v. Ryan, 809 S.W.2d 324, 327
   (Tex. App.—Austin 1991, no writ).
                                             24
before proceeding with the other.”)

II.   THE DISTRICT COURT ERRED IN DISMISSING GENENDER’S
      DTPA UNCONSCIONABILITY CLAIM FOR APPELLEES’
      COURSE OF CONDUCT INCLUDING THEIR AGENT’S TRESPASS
      AS THERE IS NO SPECIFIC SUMMARY JUDGMENT EVIDENCE
      OR EVEN ARGUMENT OFFERED BY APPELLEES ON THIS
      CLAIM.

      USA and Kirkwood failed to address or raise any arguments supporting the

dismissal of Genender’s DTPA cause of action for their unconscionable acts or

course of action through and including causing their agent to trespass upon

Genender’s property on or about October 26, 2012. In analyzing an

unconscionability claim under Texas law, the courts have recognized that no single

incident can fairly be identified as the cause of harm, but rather the cumulative

effect of the continuous chain of tortious activity must be analyzed, and as such

apply the tolling concept of continuing tort to bring the entire course of conduct

within the statute of limitations if any part of it is. Twyman v. Twyman, 790 S.W.2d

819, 821 (Tex. App.—Austin 1990), writ granted (Dec. 19, 1990), rev'd, 855

S.W.2d 619 (Tex. 1993)

      Both of the summary judgment orders signed by the District Court use broad

language which seems to encapsulate and dismiss all of Genender’s DTPA causes

of action, however, the Court clarified its first order to state that only those claims

which were originally filed in County Court and which accrued before October 4,

2011 were barred by limitations and dismissed under that order.
                                           25
       In their next motion for summary judgment, USA and Kirkwood alleged

specific affirmative defenses and bars to recovery against Genender’s other

remaining causes of action, with the sole exception of her DTPA unconscionability

claim. Despite Appellees’ failure to specifically raise summary judgment against or

address this claim, the District Court’s second summary judgment order dismissed

“all of Plaintiff’s claims for violations of the Deceptive Trade Practices Act.” The

Court hand wrote its specific holding as to Genender’s DTPA claim under

§17.46(b)(23) and the summary judgment arguments raised against it but neglected

to provide any rational for dismissing Genender’s DTPA unconsionability claim. It

is well settled that a trial court cannot grant summary judgment on a ground not

asserted in the motion. Beathard Joint Venture v. W. Houston Airport Corp., 72

S.W.3d 426, 436 (Tex. App.—Texarkana 2002, no pet.); citing McConnell v.

Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).

III.   THE DISTRICT COURT ERRED IN GRANTING SUMMARY
       JUDGMENT AS TO GENENDER’S FRAUD CLAIM AS RES
       JUDICATA DOES NOT PRECLUDE A CAUSE OF ACTION IN ONE
       CASE BECAUSE IT COULD HAVE BEEN ARGUED AS AN
       AFFIRMATIVE DEFENSE IN ANOTHER.

       A. Summary of the Argument

       The District Court erroneously granted summary judgment as to Appellant’s

fraud claims based upon USA and Kirkwood’s affirmative defense of res judicata.

(CR 490-491) The crux of Appellees’ argument to the District Court was that


                                         26
Genender’s claim for fraud was precluded by the availability of fraud as an

affirmative defense to USA’s contract claim in County Court, an affirmative

defense which was neither asserted nor litigated by Genender.2 There is no

statutory or case law support cited by USA and Kirkwood for an application of res

judicata under these circumstances. The ruling is not supported by the essential

elements required for either claim preclusion or collateral estoppel. With respect to

claim preclusion, Larry Kirkwood was not a party to the JP Court case or the

County Court appeal; and, through the operation of Rule 574a [repealed], the

County Court did not have jurisdiction to hear Appellant’s fraud claims against

Larry Kirkwood or USA.

           Finally, the District Court’s grant of summary judgment as to Appellant’s

fraud claim had the effect of granting collateral estoppel or issue preclusion rather

than res judicata or claim preclusion, even though Appellees pleaded for relief on

res judicata grounds and failed to meet the burden for either claim or issue

preclusion.

           B. USA and Kirkwood’s proposition that not asserting an affirmative
              defense of fraud to a contract action forecloses a cause of action for
              fraud in a subsequent suit due to res judicata (claim preclusion) is
              not supported by the case law

           For res judicata (claim preclusion) to apply, the following elements must be

present: (1) a prior final judgment on the merits by a court of competent

2
    Of note is that because of Rule 574a Tex. R. Civ. P, Genender was precluded from pursuing fraud as a cause of
      action in the County Court appeal.
                                                          27
jurisdiction; (2) the same parties or those in privity with them; and (3) a second

action based on the same claims as were raised or could have been raised in the

first action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex.

2008) “Thus, a party may not pursue a claim determined by the final judgment of a

court of competent jurisdiction in a prior suit as a ground of recovery in a later suit

against the same parties.” Id at 86; Tex. Water Rights Comm'n v. Crow Iron Works,

582 S.W.2d 768, 771–72 (Tex.1979).

       Counsel for Genender have found no examples in case law or statutes which

support USA and Kirkwood’s argument that a defendant in a suit on a contract

claim must assert fraud as an affirmative defense or waive her right to sue for fraud

in a separate suit.

       The cases cited by USA and Kirkwood to the trial court, Igal and Barr, are

inapposite. In the Igal case, the Texas Supreme Court considered for the first time

whether res judicata should be applied to final decisions by the Texas Workforce

Commission. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex.

2008). Ultimately, the Court concluded that a final administrative order has

preclusive effect in a subsequent lawsuit when a claimant under the Payday Law

elected to utilize the administrative process rather than exercise a right of relief

under the common law. Id. at 88. The Barr case cited by Appellees held that under

res judicata analysis, a subsequent suit will be barred if it arises out of the same


                                          28
subject matter of a previous suit and which through the exercise of diligence, could

have been litigated in a prior suit. Barr v. Resolution Trust Corp. ex rel. Sunbelt

Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (emphasis added). In the Barr case,

the second suit was barred by res judicata where a take nothing judgment was

entered in the first suit on nearly identical allegations. Due to Rule 574a, Genender

could not have reached a final judgment on a fraud cause of action and an

affirmative defense of fraud to a breach of contract claim is not the same as a cause

of action for fraud. First Bank of Deer Park v. Harris County, 804 S.W.2d 588,

593 (Tex. App.—Houston [1st Dist.] 1991, no writ) “To determine if a claim of

fraud is an affirmative defense or a separate cause of action, the Courts look to the

pleadings to see if the party requested affirmative relief for fraud. If the fraud

allegation does not request damages, the fraud claim is an affirmative defense; if

the fraud allegations request damages, fraud is a counterclaim.”

      C. USA and Kirkwood’s motion conflates claim preclusion with issue
         preclusion and meets the statutory burden for neither.

      USA and Kirkwood’s motion for summary judgment, upon which the

District Court’s ruling is based, requested relief analogous to collateral estoppel for

its argument that it had met the requirements for res judicata. Under the rule

proposed by USA and Kirkwood, Genender could effectively be barred from all

claims surrounding the same nuclei of facts so long as there was a corresponding

affirmative defense that she did not argue when forced to defend herself in USA’s
                                          29
County Court appeal of its JP Court loss.

      The general doctrine of res judicata consists of two principal categories: (1)

res judicata or claim preclusion; and (2) collateral estoppel or issue preclusion.

Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628

(Tex.1992). The doctrines of res judicata (claim preclusion) and collateral estoppel

(issue preclusion) are not the same and may not be interchanged. Bonniwell v.

Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984). In discussing the

confusion over res judicata and collateral estoppel, the Texas Supreme Court states

that the argument that a claimant “should have brought all theories of liability in

one suit, is the defense of claim preclusion,” and that “[c]laim preclusion prevents

splitting a cause of action.” Barr 837 S.W.2d at 629 citing Jeanes v. Henderson,

688 S.W.2d 100, 103 (Tex.1985). An affirmative defense of fraud to a breach of

contract claim is neither a theory of liability nor a cause of action.

      Res judicata (claim preclusion) precludes a second action by the parties or

their privies on matters actually litigated and on causes of action or claims that

arise out of the same subject matter and could have been litigated in the first suit.

Getty Oil v. Insurance Co. of N. America, 845 S.W.2d 794, 798 (Tex.1992), On the

other hand, collateral estoppel (issue preclusion) prohibits relitigation of particular

issues already resolved in a prior suit. Barr, 837 S.W.2d at 628; Phillips v. Allums,

882 S.W.2d 71, 74 (Tex.App.—Houston [14th Dist.] 1994, writ denied).


                                           30
      To invoke the doctrine of collateral estoppel, a party must establish “(1) the

facts sought to be litigated in the first action were fully and fairly litigated in the

prior action; (2) those facts were essential to the judgment in the first action; and

(3) the parties were cast as adversaries in the first action.” Ayre v. J.D. Bucky

Allshouse, P.C., 942 S.W.2d 24, 27 (Tex. App.—Houston [14th Dist.] 1996, writ

denied); Phillips, 882 S.W.2d at 74 (quoting El Paso Natural Gas Co. v.

Berryman, 858 S.W.2d 362, 364 (Tex.1993)); Carter v. Charles, 853 S.W.2d 667,

672 (Tex.App.—Houston [14th Dist.] 1993, no writ).

      Collateral estoppel does not extend to an issue that was previously

determined but unessential to a prior judgment. Barnes v. United Parcel Serv., Inc.,

395 S.W.3d 165, 174 (Tex. App.—Houston [1st Dist.] 2012, pet. denied);

Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818-19 (Tex.1984) (holding

that collateral estoppel did not preclude relitigation of issue that was previously

determined but unessential to prior judgment)

      In the case at bar, Rule 574a barred both Jamie Genender and Critter Stuff

from prosecuting a cause of action for fraud against USA in the County Court

appeal, as it was not a claim raised in the JP Court. See Harrill v. A.J.'s Wrecker

Serv., Inc., 27 S.W.3d 191, 195 (Tex. App.—Dallas 2000, pet. dism'd w.o.j.) in

which the Dallas Court of Appeals points out that “even if Harrill's additional

causes of actions were “new grounds of recovery” under rule 574a, Harrill would


                                          31
not have been precluded from bringing these claims in a separate suit in county

court. See tex. Civ. Prac. & Rem.Code Ann. § 31.005 (Vernon 1997) (judgment or

determination of fact or law in justice court proceeding is not res judicata in

proceeding in county court or statutory county court, except that judgment

rendered is binding on the parties thereto as to recovery or denial of recovery)”

      Genender’s cause of action for fraud filed in the District Court case was

brought against both USA and Larry Kirkwood. (CR 147) Kirkwood was not a

party to the JP Court trial or the County Court appeal. Appellees argued in their

motion for summary judgment that because Kirkwood was not a party to the

contract, he can only be held liable by piercing the corporate veil. However,

Appellant, in her District Court petition sued Kirkwood individually for fraud, as

well as alleging that he is the alter ego of USA. (CR 144-153)

      The alter ego doctrine applies when: (1) there is such a unity between the

corporation and the individual that the separateness of the corporation has ceased;

and (2) the facts are such that holding only the corporation liable would promote

injustice. Castleberry v. Branscum, 721 S.W.2d 270, 278 (Tex. 1986); Gentry v.

Credit Plan Corp. of Houston, 528 S.W.2d 571, 573 (Tex.1975). Here, Kirkwood

has testified under oath that he is the sole owner, its president and only officer, and

even the board of directors of USA Store Fixtures. (CR 423-424) Actions taken by

USA, which were in fact decisions made by Larry Kirkwood, form part of the basis


                                          32
of Appellant’s causes of action. There is evidence that Kirkwood personally

participated in fraudulent misrepresentations to Genender. Kirkwood admitted that

he knew the condition of the shelving sent to Genender. (CR 428:22-25)

      Appellant never had an opportunity to have any of her claims against Larry

Kirkwood heard by the jury in the County Court case. Indeed, through the

operation of Rule 574a of the Texas Rules of Civil Procedure [repealed], the

County Court determined that the only claims it had jurisdiction to hear on appeal

were USA’s breach of contract claim and Genender’s counterclaim for the same.

      USA asserted in its motion to the District Court that Genender was required

to assert fraud as a defense even though she was unable to seek affirmative relief

on it, which runs counter to concepts of due process. (CR 264) To qualify as a

claim for affirmative relief, a defensive pleading must allege the defendant has a

cause of action, independent of the plaintiff's claim, on which he could recover

benefits, compensation, or relief. Culbertson v. Tisdale, 01-97-01020-CV, 1999

WL 82612 (Tex. App.—Houston [1st Dist.] Feb. 4, 1999, no pet.)

      Res judicata does not operate as a bar to litigation when the second claim

could not be raised in the previous litigation. Barnes v. United Parcel Serv., Inc.,

395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

Fundamentally, the application of res judicata to the particular facts of any case

must give assurance that the party to whom the doctrine is applied has had his day


                                        33
in court and, thereby, due process. McNeil Interests, Inc. v. Quisenberry, 407

S.W.3d 381, 387 (Tex. App.—Houston [14th Dist.] 2013, no pet.) Here, there is no

doubt that Genender would not be afforded due process and the purposes of res

judicata would not be served if, to receive compensation or relief for her fraud

cause of action, she were forced to defend a breach of contract case with an

affirmative defense of fraud and win, only to relitigate the claim in a subsequent

suit, this time alleging fraud as a cause of action. USA and Kirkwood’s

formulation of res judicata would require more litigation, not less, and place a

higher burden on anyone seeking recovery under a cause of action with a

corresponding affirmative defense.

IV.   THE DISTRICT COURT ERRED IN GRANTING SUMMARY
      JUDGMENT AS TO GENENDER’S DTPA DISTANT FORUM
      ABUSE CLAIM, AS THE CREDIT CARD AGREEMENT - THE
      TRUE CONTRACT AT ISSUE – WAS ENTERED INTO FOR
      PRIMARILY PERSONAL REASONS.

      The District Court erroneously granted USA and Kirkwood’s motion for

summary judgment on Genender’s claim for distant forum abuse based upon the

Court’s determination that “although Genender was sued in her individual

capacity, [Deceptive Trade Practices Act] §17.46(b)(23) relates to the shelving not

her. The transaction was not primarily personal.” (CR 490-491) The District

Court’s determination, however, focused on the reason for the shelving purchase

itself, when the real contract at issue was the extension of credit for shelving,


                                        34
provided upon Genender’s entering a cardholder agreement, which was the basis

for her credit card company’s rescission of Genender’s payment to USA. USA’s

suit against Genender for breach of contract was specific to the actions taken by

Genender pursuant to her cardholder agreement. Otherwise USA would have had

no basis for suing Genender individually. USA’s suit related to the contract for the

extension of credit between Genender and her credit card company, which

Genender entered into as an individual. (CR 413) (CR 465: 2-7) Further, USA and

Kirkwood were aware that Genender made payment for the shelving with her

personal credit card. (CR 275) (CR 298: 14-22)

      DTPA §17.46(b)(23) states that the following is defined as a false,

misleading, or deceptive act or practice for which the DTPA provides a cause of

action:

      [F]iling suit founded upon a written contractual obligation of and
      signed by the defendant to pay money arising out of or based on a
      consumer transaction for goods, services, loans, or extensions of
      credit intended primarily for personal, family, household, or
      agricultural use in any county other than in the county in which the
      defendant resides at the time of the commencement of the action or in
      the county in which the defendant in fact signed the contract…
      Deceptive Trade Practices Act §17.46(b)(23)

          USA and Kirkwood asserted in their motion for summary judgment that no

issues of material fact exist surrounding the determination that Genender had a

commercial purpose for the shelving rather than intending it for primarily personal,

family, or household use. (CR 263) However, USA and Kirkwood and the District
                                        35
Court disregarded the impact of suit against Genender individually, separate and

apart from the suit against the Critter Stuff, LLC pet store. While the affidavit of

Larry Kirkwood, used as summary judgment evidence by Appellees in support of

this point, acknowledges that he sued Appellant because she “reversed the

charges” on her personal credit card, USA and Kirkwood ignore that it was their

claim that Genender failed to honor her personal credit obligation that was the

basis for the suit, thus placing the cardholder agreement for her personal credit

card at the heart of the litigation as part of the consumer transaction. USA would

have retained Genender’s payment and had no basis for suit in the JP Court but for

the cardholder agreement upon which the charge was reversed. Genender’s act in

obtaining the credit card in her own name is some evidence that the extension of

credit was for primarily personal use, raising a fact issue in the matter. (CR 413)

(CR 465: 2-7) A material fact issue exists as to whether Appellant incurred an

obligation with the primary purpose of personal use, and the District Court erred in

granting summary judgment on Appellant’s DTPA distant forum claim.

      In their second motion for summary judgment, USA and Kirkwood cited no

law on this point besides the statute upon which Genender based her claim. There

is very little case law interpreting the “intended primarily for personal, family,

household, or agricultural use” provision of DTPA §17.46(b)(23). The Dallas

Court of Appeals, however, in grappling with the meaning of the identical phrase


                                        36
in a case involving both debt collection activities and whether the plaintiff was

engaged in a consumer transaction when he borrowed money for the bail bond of a

friend, the Court stated the following:

           The Act does not define “personal.” Thus, consistent
           with the purposes of the Act, we must give the term its
           common meaning. Tex. Gov’t. Code Ann. § 312.006(a);
           Trinity Universal, 837 S.W.2d at 204. “Personal” is
           defined as “of or relating to a particular      person;
           affecting one individual or each of many individuals;
           peculiar or proper to private concerns; not public or
           general.” Webster’s Third New Int’l Dictionary 1686
           (1981).
Monroe v. Frank, 936 S.W.2d 654, 660 (Tex.App.—Dallas 1996, no
writ)

      The Court went on to hold (1) that plaintiff incurred the debt to the bonding

company primarily for personal reasons and, therefore, was a consumer for the

purposes of the Act and (2) that the activities of the bail bonding company

involved debt collection. Monroe at 660. In Monroe, the Court held that the

borrowing of money for the use of another person but for the borrower’s own

reasons did not keep the transaction from being for primarily personal reasons.

Thus, by the same reasoning, the use of the extension of credit to Genender

personally, for her personal expenditures and use on other entities (a pet store and a

volunteer rescue shelter) do not keep that extension of credit from being intended

primarily for Genender’s personal use.

      Appellant has found only two cases which expressly consider whether a


                                          37
purchase or extension of credit was intended primarily for personal use for the

purposes of DTPA §17.46(b)(23): Garza v. Bancorp Group, Inc., 955 F. Supp. 68,

72 (S.D. Tex. 1996) and Ford v. City State Bank of Palacios, 44 S.W.3d 121, 135

(Tex. App.—Corpus Christi 2001, no pet.). Both are distinguishable on their facts

from the situation presented in our case.

      In Garza, the District Court for the Southern District of Texas in Laredo

ruled that security camera equipment which was leased under an agreement which

specifically stated it was not for personal, family, or household use and which was

installed in two family owned business locations were not intended primarily for

personal, family, household, or agricultural use. Garza v. Bancorp Group, Inc., 955

F. Supp. 68, 72 (S.D. Tex. - Laredo 1996) The Ford case, decided by the Corpus

Christi Court of Appeals, held that two loans with commercial security agreements

and another taken for the purpose of securing income for plaintiff’s family farming

enterprise were for commercial rather than personal use. Each of these cases is

clearly distinguishable from the case at hand. The contract at issue in this case is

the cardholder agreement, which Genender clearly entered into as an individual.

(CR 413) (CR 465: 2-7) Neither Garza nor Ford involved a personal extension of

credit to an individual which she used to benefit both a prospective commercial

enterprise as well as a volunteer rescue operation.

      There is unquestionably an issue of material fact as to whether the shelving


                                            38
Appellant purchased with an extension of credit pursuant to her personal credit

card agreement was primarily for Genender’s personal use. Where, as here, an

issue of material fact remains to be determined, summary judgment was improper.

Provident Life & Acc. Ins. Co. v. Knott, 128 S.W. 3d 211, 215-16 (Tex. 2003)

V.    THE DISTRICT COURT ERRED IN GRANTING SUMMARY
      JUDGMENT AS TO GENENDER’S CLAIMS OF UNFAIR DEBT
      COLLECTION PRACTICES AS USA AND KIRKWOOD ARE DEBT
      COLLECTORS WHO, THROUGH THEIR AGENT, VIOLATED
      THE TEXAS DEBT COLLECTION ACT AND THE DTPA.

      In Plaintiff’s First Amended Original Petition, Genender articulated a

specific cause of action for violations under Title 5 of the Texas Finance Code

§392 et seq., claiming that Appellees’ agent, a private investigator hired by

Kirkwood, made false representations and used deceptive means to obtain

information on Jamie Genender, a consumer, for the purpose of collecting an

alleged debt. (CR 19) The statute under which Genender made her claim provides

as follows: [A] debt collector may not use a fraudulent, deceptive, or misleading

representation that employs the following practices: (19) using any other false

representation or deceptive means to collect a debt or obtain information

concerning a consumer.” Tex. Fin. Code Ann. §392.304(19) (Vernon).

      USA and Kirkwood, in their Motion for Summary Judgment, argued that the

private investigator does not qualify as a "debt collector" under the Texas Finance

Code, claiming that the Finance Code adopts the federal definition of "debt


                                        39
collector," which describes the term as:

      “Any person who uses any instrumentality of interstate
      commerce or the mails in any business the principal purpose of
      which is the collection of any debts, or who regularly collects
      or attempts to collect, directly or indirectly, debts owed or due
      or asserted to be owed or due another.”
      15 U.S.C.A. §1692a(6) (1998).

      USA and Kirkwood went on to argue that, as the private investigator's

principal purpose was not the collection of any debts; but, rather, was the

collection of information, Genender’s claim for unfair debt collection practices

must be dismissed as a matter of law. (CR 263-264)

      The federal definition of “debt collector” upon which USA and Kirkwood

base their argument is inapplicable to the circumstances of this case. The Texas

Debt Collection Act (TDCA), under which Genender brought her claim, has a two-

tiered structure for analyzing who qualifies as a debt collector. It includes both

“third-party debt collectors” (defined the same as “debt collectors” under the

Federal Debt Collection Protection Act) and “debt collectors,” which include

anyone “who directly or indirectly engages in debt collection.” Davis v. Wells

Fargo Bank, N.A., 976 F. Supp. 2d 870, 885 (S.D. Tex. 2013) on reconsideration,

6:11-CV-00047, 2014 WL 585403 (S.D. Tex. Feb. 14, 2014). Unlike the federal

statute, the Act does not require that debt collection be the principal business of a

debt collector. [Tex. Fin. Code Ann. §392.001(6) (Vernon)] Monroe v. Frank, 936

S.W.2d 654, 660 (Tex. App.—Dallas 1996, writ dism'd w.o.j.).
                                           40
      The private investigator is an agent of the USA and Kirkwood. A

corporation can act only through its agents. Elec. Data Sys. Corp. v. Tyson, 862

S.W.2d 728, 737 (Tex. App.—Dallas 1993, no writ); State Farm Fire and Casualty

Co. v. Gross, 818 S.W.2d 908, 912–13 (Tex.App.—Austin 1991, no writ). USA

and Kirkwood are themselves “debt collectors” under the TDCA definition, as

USA, through Kirkwood’s actions, had alleged and even brought suit against

Genender over a debt which they said she owed. By October 26, 2012, the date

USA’s agent gained entry to Genender’s premises, USA had participated in and

lost a credit card charge dispute process, had had a take nothing judgment entered

against it on its claims in Justice of the Peace Court in Harris County against both

Critter Stuff and Genender individually, had filed an appeal of the JP Court

judgment in County Court, had hired legal counsel, was aware Genender had hired

legal counsel, and had sent written discovery requests. The creditor is not excused

from following the provisions of the Act because the debt is owed directly to him.

Monroe v. Frank, 936 S.W.2d 654, 659–660 (Tex.App.—Dallas 1996, writ dism'd

w.o.j.) (interpreting the Texas Debt Collection Act). A legal action such as

participation in a credit card dispute process or a civil suit upon a debt can be an

attempt to collect a debt. For example, the Texas Debt Collection Act (TDCA) has

been held to apply to foreclosure actions because such actions inevitably involve a

debt collection aspect. Bracken v. Wells Fargo Bank, N.A., 2014 WL 31778


                                        41
(E.D.Tex. 2014).

      Kirkwood acknowledged the agency relationship he formed with the private

investigator in his affidavit attached as Exhibit A to USA and Kirkwood’s motion

for summary judgment when he states that, after filing suit against her, USA hired

the investigator to enter Genender’s premises to make a video showing the

shelving was inside of the building and being used by Genender. (CR 36, CR 275-

276) Kirkwood’s affidavit also makes clear that he was aware of the investigator’s

actions in deceiving Genender and approved of them as he states that Genender

“never requested that the private investigator leave the premises.” (CR 37, CR 276)

Had USA, Kirkwood, USA’s counsel, or the private investigator himself disclosed

at the time of entry or thereafter that he was acting as an agent of USA and what

his purpose was and then was never told to leave, USA and Kirkwood’s argument

would carry more weight.

      USA and Kirkwood’s Second Motion for Summary Judgment admits that

the private investigator was hired to provide USA with evidence for the lawsuits it

initiated to recover the alleged debt for shelving. (CR 263) In the case at hand

there is certainly an alleged pecuniary debt, a perceived debtor/creditor

relationship, and an agent of the alleged creditor using deceptive means to obtain

information concerning a consumer in indirect furtherance of the creditor’s debt

collection efforts. These, together, satisfy the statutory requirements to maintain a


                                         42
claim under the TDCA.

VI.   THE DISTRICT COURT ERRED IN GRANTING A NO EVIDENCE
      MOTION FOR SUMMARY JUDGMENT AS TO GENENDER'S
      TRESPASS CLAIM AS THERE IS A FACT ISSUE AS TO
      WHETHER THE ULTERIOR MOTIVE OF USA AND
      KIRKWOOD’S AGENT INTERFERED WITH GENENDER’S
      RIGHT OF POSSESSION.

      The trial court also granted USA and Kirkwood’s No Evidence Motion for

Summary Judgment as to Genender’s claim for the trespass perpetrated by the

private investigator, USA and Kirkwood’s agent. There are three elements

involved in a trespass claim: (1) the plaintiff owned or had a lawful right to possess

the real property; (2) the defendant entered the plaintiffs land, and the entry was

physical, intentional, and voluntary; and (3) the defendant's trespass caused injury

to the plaintiff’s right to possession. Salazar v. Sanders, 440 S.W.3d 863, 876

(Tex. App.—El Paso 2013), review denied (July 11, 2014), cert. denied, 135 S. Ct.

1433 (2015) USA and Kirkwood’s No Evidence Motion for Summary Judgment

argued that there was less than a scintilla of evidence that defendant’s trespass

caused injury to Genender’s right of possession. (CR 272)


      Although the premises housed a business and rescue shelter open to the

public, the private investigator and his debt collecting employers’ ulterior motive

for his going into the building negated any invitee licensee status; and the

investigator was, therefore a trespasser. Burton Const. & Shipbuilding Co. v.

Broussard, 154 Tex. 50, 58, 273 S.W.2d 598, 603 (1954) USA and Kirkwood’s act
                                          43
of sending a private investigator to gain information and evidence through deceit

and artifice interfered with Genender’s right to determine who entered her business

property and for what purpose. Further, secretly recording Genender interfered

with her privacy rights while on her own premises. Clayton v. Richards, 47 S.W.3d

149, 156 (Tex. App.—Texarkana 2001, pet. denied) There is a clear fact issue as to

whether USA and Kirkwood interfered with Genender’s rights of possession; and

USA and Kirkwood’s motion should have been denied.

      In this case, USA and Kirkwood asserted the affirmative defense of

invitee/licensee to Genender's claim of trespass, asserting that the private

investigator who entered Genender’s building while the store and rescue operation

were open to the public, was either an invitee or licensee, and being an invitee or a

licensee, the private investigator's entrance onto Genender’s property was

permitted. (CR 26-28)

      Additionally, USA and Kirkwood argued that as an invitee and/or licensee,

such entry could not have caused injury to Genender's right of possession, as a

matter of law. In their No-Evidence Motion for Summary Judgment, USA and

Kirkwood asserted that there was less than a scintilla of evidence that their trespass

caused injury to Genender’s right of possession. (CR 272)

      In this connection, USA and Kirkwood allege that Appellant has no

evidence of damages related to her cause of action for trespass and that her cause


                                         44
of action should, therefore, be summarily dismissed. (CR 261) In the body of the

motion, however, Appellees’ claim transforms to an allegation that there is no

evidence that the trespass caused injury to Appellant’s right of possession. (CR

272) In answer to Appellees’ first argument, that there was no evidence of

damages, there is ample case law which states that evidence of trespass damages is

not necessary to maintain a trespass claim. Gen. Mills Restaurants, Inc. v. Texas

Wings, Inc., 12 S.W.3d 827, 833 (Tex. App.—Dallas 2000, no pet.) Every

unauthorized entry is a trespass “even if no damage is done.” See Trinity Universal

Ins. Co. v. Cowan, 945 S.W.2d 819, 827 (Tex.1997) (citing McDaniel Bros. v.

Wilson, 70 S.W.2d 618, 621 (Tex.Civ.App.-Beaumont 1934, writ ref'd)); see also

Champion v. Vincent, 20 Tex. 811, 815 (1858) (“The law supposes that every

trespass, committed upon property, is necessarily attended with some damage,

however inconsiderable the injury; and hence the right to a recovery of damages

for a trespass cannot be denied.”). Even if a plaintiff fails to plead or prove that the

defendant did any injury by entering plaintiff's property, the plaintiff is still entitled

to nominal damages. See Meyers v. Ford Motor Credit Co., 619 S.W.2d 572, 573

(Tex.Civ.App.-Houston [14th Dist.] 1981, no writ) (“The law is well settled that a

trespasser is liable to the property owner even though there is no proof of actual

damages in any specific amount.”); Henry v. Williams, 132 S.W.2d 633, 634

(Tex.Civ.App.-Beaumont 1939, no writ) (by alleging and proving trespass,


                                           45
appellants “were entitled, at least, to nominal damages”); see also Smith v. Huizar,

1860 WL 5812 (Tex. 1860) (if plaintiff fails to lay foundation for or prove

damages, he is entitled to nominal damages for trespass).

      USA and Kirkwood’s argument in their No Evidence Motion for Summary

Judgment was that there is not a scintilla of evidence that their agent’s actions in

lying about his purpose for entering Genender’s premises interfered with

Genender’s right of possession. One of Genender’s rights of possession of a

building in which she does business and volunteer work and which is open to the

public is the right to refuse entrance to persons not there to conduct such business.

United Food & Commercial Workers Intern. Union v. Wal-Mart Stores, Inc., 430

S.W.3d 508, 512 (Tex. App.—Fort Worth 2014, no pet.) Where a person’s true

purpose is outside the scope of a reasonable invitation to do business in a store,

that person does not have consent and is a trespasser. Id at 514 (Wal–Mart

established United Foods representatives were trespassers by clear and specific

evidence that after entering Wal–Mart's property, United Food's representatives

engaged in mass demonstrations and, by doing so, used Wal–Mart property on a

venture in their own interests that was not within the scope of Wal–Mart's

invitation to shop at Wal–Mart and that was not for the purpose for which the Wal–

Mart property was reasonably intended to be used.)

      Here, USA and Kirkwood’s agent knowingly interfered with Genender’s


                                         46
right to determine admission to her property by entering the premises, upon which

a No Trespassing and No Solicitation sign was displayed, by representing falsely

that he was there to conduct business. (CR 437) The agent’s true task was to

secretly obtain evidence for the purposes of collecting an alleged debt, as discussed

above. It was clear that USA and Kirkwood intended that this evidence be

extracted secretly, as they failed to inform Genender or her attorney that their agent

would be entering Genender’s property, that their agent would be representing

himself as someone interested in either pet supplies or pet adoption, or that their

agent would be secretly filming Genender and the facilities to gather evidence for

use against Genender in litigation. The general rule in Texas is that those who

pursue a common plan or design to commit a tortious act, actually take part in it or

further it by cooperation or request, or to lend aid to the wrongdoer, or ratify or

adopt his act are also liable for the tortious act. Clayton v. Richards, 47 S.W.3d

149, 154 (Tex. App.—Texarkana 2001, pet. denied); Century 21 Page One Realty

v. Naghad, 760 S.W.2d 305 (Tex.App.—Texarkana 1988, no writ) (quoting W.

Prosser, Handbook of the Law of Torts § 46 (4th ed.1971)).

      Had the attorney for USA and Kirkwood arranged for the private

investigator to visit Genender’s store, rather than his clients, or if he had directed

his clients’ plan, and/or encouraged it, he may well have been subject to

disciplinary action for violation of the Texas Disciplinary Rules of Professional


                                         47
Conduct, Rule 4.02(a) proscribing contact with one represented by counsel, as

USA and Kirkwood’s counsel had been aware for several months that Genender

was represented by an attorney at the time of the contact the private investigator

had with Genender.3 See Prof'l Sec. Patrol v. Perez, 01-12-00506-CV, 2013 WL

4478020, at *4 (Tex. App.—Houston [1st Dist.] Aug. 20, 2013, no pet.) citing

Richmond Condos. v. Skipworth Commerical Plumbing, Inc., 245 S.W.3d 646, 661

(Tex.App.-Fort Worth 2008, pet. denied) (holding that ex parte contact of

represented parties by opposing counsel constitutes abuse of discovery process).

USA and Kirkwood had sent written discovery requests to Appellant only seven

days before the private investigator entered Genender’s store to conduct secret

videotaping. A request for inspection of the property that is the subject of

litigation, sent to opposing counsel, is a standard discovery procedure that was

circumvented by USA and Kirkwood here; and the evidence obtained by deceit

was used before the jury that heard USA’s claim for contract breach in the County

Court case. (APP 17)

       As is clear from the Wal-Mart case discussed above, USA and Kirkwood

used Genender’s property on a venture in their own interests that was not within

3
  “(a) In representing a client, a lawyer shall not communicate or cause or encourage another to
communicate about the subject of the representation with a person, organization or entity of
government the lawyer knows to be represented by another lawyer regarding that subject, unless
the lawyer has the consent of the other lawyer or is authorized by law to do so.” TX ST RPC
Rule 4.02(a)


                                              48
the scope of her invitation to enter for the purchase of pet supplies or the adoption

of a rescue animal and that was not for the purpose for which Appellant’s property

was reasonably intended to be used.

      Genender submitted evidence that USA and Kirkwood’s actions interfered

with her possessory right not to have her property entered and not to be filmed on

her property, by artifice and fraud, without consent. (CR 91-92) This was a

violation of Genender’s right to privacy, as she had a reasonable expectation that

she was not being recorded on her own property. An individual's right of privacy is

compromised no less from being secretly videotaped than from being secretly

recorded. A secret videotape of an individual who presumes to be in a private

place is an even greater intrusion of privacy than secretly recording conversations.

Clayton v. Richards, 47 S.W.3d 149, 156-57 (Tex. App.—Texarkana 2001, pet.

denied); United States v. Torres, 751 F.2d 875 (7th Cir.1984). Videotapes are a

simultaneous audio and visual recording of events. Ali v. State, 742 S.W.2d 749,

754 (Tex.App.—Dallas 1987, writ ref'd). Genender’s evidence submitted to the

District Court included her affidavit, dated January 14, 2014, which stated that had

she been aware of the man’s true purpose for entering the store, she would not

have allowed him to enter the premises.(CR 438)

      USA     and   Kirkwood     argued    in   their   motion   that   the   private

investigator/detective was either an invitee or a licensee, and, as such, entry onto


                                          49
Genender’s property was permitted and could not have caused injury to

Genender’s right of possession.

      Texas has not adopted the "public invitee" concept of the Restatement

(Second) of Torts § 332(1) and (2) (1965), but has adopted a similar concept by

extending invitee status to members of the public who are invited into a store that

sells goods and that is open to members of the public for the purpose of allowing

them to buy and inspect goods. See American Industries Live Ins. Co. v.

Ruvalcaba, 64 S.W.3d 126 at 138-39 (Tex.App.- Houston [14th Dist.] 2001, pet.

denied) (citing Rosas v. Buddie's Food Store, 518 S.W.2d 534, 536 (Tex. 1975)).

Two central cases handed down by the supreme court, however, both suggest a

benefit to the store, even if remote, is still required. See Carlisle v. J Weingarten,

Inc., 137 Tex. 220. 137 S.W.2d 1073. 1076 (Tex. 1941) (children of tender years

deemed invitees if accompanying mothers to do shopping); Renfro Drug Co. v.

Lewis, 149 Tex. 507, 235 S.W.2d 609, 617 (1951)(invitee status conferred on

person crossing through drug store and falling because of potential that person may

stop and purchase item). A person is an invitee only where the owner or occupier

invites the person to enter the premises and where the visit involves, "at least a

potential pecuniary profit to the owner or occupier." American Industries Live Ins.

Co. v. Ruvalcaba, 64 S.W.3d 126 at 135 (Tex.App.- Houston [14th Dist.] 2001,

pet. denied); Olivier v. Snowden, 426 S.W.2d 545 at 550 (Tex. 1968). An invitee is


                                         50
a person who enters the premises of another in answer to an express or implied

invitation from the owner or occupier for their mutual benefit. Montes v. Indian

Cliffs Ranch, Inc., 946 S.W.2d 103, 105 (Tex.App.-El Paso 1997, writ denied). An

invitee is one who enters land with the owner's knowledge and for the mutual

benefit of both. Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 909

(Tex.App.-Houston [14th Dist.] 2009, no

pet.).

         The private investigator/detective in the case at bar does not meet the criteria

to be classified as an invitee as he was not there to buy or inspect goods, there was

no potential pecuniary profit to the owner, and there was unquestionably no mutual

benefit involved. Therefore, USA and Kirkwood's argument that the private

investigator/detective was an invitee fails and summary judgment was, therefore,

improper as to the invitee status of USA and Kirkwood’s agent.

         In contrast, a licensee is a person who for his or her own convenience,

pleasure, or benefit enters the premises with the express or implied permission of

the owner. See Rowland v. City of Corpus Christi, 620 S.W.2d 930, 933

(Tex.Civ.App.-Corpus Christi 1981, writ refd n.r.e.); Weaver v. KFC Management,

Inc., 750 S.W.2d 24, 26 (Tex.App.-Dallas 1988, writ denied). "A licensee enters

and remains on land with the owner's consent and for the licensee's own

convenience, or on business with someone other than the owner." Mayer v.


                                            51
Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 910 (Tex.App.-Houston [14th

Dist.] 2009, no pet.). Absent a relationship that inures to the mutual benefit of the

owner     and   the   entrant,   the   entrant   is   a   licensee.   Id.   The   private

investigator/detective hired by the Appellees does not meet the criteria for a

licensee either. While he was clearly there for his own benefit and for the benefit

of his employer, USA in this case, he was not there with Genender’s express or

implied consent. The private investigator/detective knew he did not have the

owner's consent to enter the store, as evidenced by his devious and deceptive

behavior in pretending to be a customer. Logically, a person who legitimately had

a store owner's consent to enter the premises as either an invitee or licensee, would

not need to undertake deceptive measures to intentionally hide who he was,

misrepresent his identity or purpose for being in said store and/or covertly film the

store. The investigator/detective's devious and deceptive behavior is circumstantial

evidence that he did not have the authority, invitation, permission and/or consent to

enter Genender’s building and conduct video surveillance of its interior. As such,

USA and Kirkwood’s argument that the private investigator/detective was a

licensee fails and USA and Kirkwood’s Motion for Summary Judgment should

have been denied.

        A trespasser is one who enters another's property without any lawful

authority, permission, or invitation for his or her own purpose, pleasure, or


                                           52
convenience. Almanza v. Navar, 225 S.W.3d 14, 21 (Tex.App. — El Paso 2005, no

pet.). "A trespasser enters another's property without lawful authority, permission,

or invitation." Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 909

(Tex.App.-Houston [14th Dist.] 2009, no pet.) as cited in Oncor Elec. Delivery

Co., LLC v. Murillo, 01-10-01123-CV, 2013 WL 5372544 (Tex. App. Sept. 26,

2013). A licensee who goes beyond the rights and privileges granted by the license

becomes a trespasser. Burton Constru. & Shipbuilding Co. v. Broussard, 273

S.W.2d 598, 603 (Tex. 1954). A licensee who exceeds the rights and privileges

granted by the license becomes a trespasser. Mayer v. Willowbrook Plaza Ltd.

P'ship, 278 S.W.3d 901, 910 (Tex. App. 2009).

      The private investigator/detective in this case knew he did not have implied

or express permission of the store owner, as evidenced by his deceptive conduct to

conceal and/or misrepresent his identity and his purpose for being in the store. He

knew that his interests were adverse to those of Genender and knew that he would

not be permitted to enter her building as a legitimate invitee or licensee under the

law if he had disclosed his true identity and purpose for being in the building. (CR

92) Clearly, the private investigator/detective that was hired by USA and

Kirkwood meets the criteria under the law to be classified as a trespasser in

Genender’s building; and, as such, USA and Kirkwood's argument that he was an

invitee or licensee fails. Given that the private investigator/detective was not an


                                        53
invitee or licensee, USA and Kirkwood's argument that he could not have caused

injury to Genender’s right of possession also fails. Therefore, the Court erred in

granting USA and Kirkwood’s Motion for Summary Judgment and dismissing

Genender’s trespass claims.

                CONCLUSION AND PRAYER FOR RELIEF

      WHEREFORE, PREMESIS CONSIDERED, Appellant Jamie Genender

respectfully requests that each of the Summary Judgments in the underlying case

be reversed and that she be allowed a trial on the merits of each of her causes of

action. Alternatively, Appellant requests that the Court reverse the final judgment

of the District Court as to such of her claims as the Court deems proper. Appellant

requests such other and further relief which she may show herself to be entitled to

and that this court may deem proper to grant.

                                             Respectfully submitted,


                                             JAN WOODWARD FOX,
                                             A Professional Legal Corporation


                                             By: /s/ Cameron Weir

                                                Jan Woodward Fox
                                                State Bar No.: 07334500
                                                Cameron Weir
                                                State Bar No.: 024088616
                                                The Lyric Centre
                                                440 Louisiana St., Suite 900
                                                Houston, TX 77002
                                        54
       (713) 623-8600
       (713) 807-1758 (fax)

     ATTORNEYS FOR APPELLANT
     JAMIE MICHELE GENEDER




55
                         CERTIFICATE OF SERVICE

      A true and correct copy of the foregoing was filed electronically and served

on the parties listed below in the manner specified on April 29, 2015.



USA Store Fixtures, LLC                            Via Electronic Service
Larry Kirkwood
c/o Jerrad D. Bloome,
WEYCER, KAPLAN, PULASKI & ZUBER,
11 Greenway Plaza, Suite 1400
Houston, Texas 77046,

Trial Counsel for USA Store Fixtures, LLC
and Larry Kirkwood




                                                       /s/ Cameron Weir
                                                       Cameron Weir




                                         56
                        CERTIFICATE OF COMPLIANCE

      This is to certify that, in compliance with Texas Rule of Appellate Procedure

Rule 9.4(i)(2)(B), the applicable sections of this computer-generated brief on the

merits contain 13,278 words total.


                                                      /s/ Cameron Weir
                                                      Cameron Weir

Dated: April 29, 2015




                                        57
APPENDIX 1




    58
                                                                                                        7f2112014 3:00:11 PM
                                                                                   Chris Daniel - District Clerk Harris County
                                                                                                       Envelope No. 1892153
                                                                                                    By: JONATHAN PATTON


                                         CAUSE NO. 2013·59766

JAMIE GENENDER                                  §             IN THE DISTRICT COURT OF
                                                §
                                                §
                                                §
VS.                                             §            HARRIS COUNTY, TEXAS
                                                §
                                                §
LARRY KIRKWOOD AND                              §
USA STORE FIXTURES, LLC                         §           55" DISTRICT COURT


                 PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

        COMES NOW Jamie Genender, Plaintiff, and files thi s her Second Amended Ori ginal

Petition complaining of Larry Kirkwood and USA Store Fixtures, LLC, Defendant s, and for cau se

of action would res pectfully show the Court as follows:

                                             INTRODUCTION

I.      Thi s is a civil action brought on behalf of Pl aintiff. Thi s ac tion seeks monetary

compensation for damages caused by Defe ndants' decepti ve trade practices, trespass, and fraud.

2.      Discovery in thi s case is to be conducted under Leve l T wo pursuant to Rul e 190.3 of the

Texas Rules of Civil Procedure.

                                               PARTIES

3.      Pl aintiff is an indi vidual res iding in Kenosha County, Wi sconsin at all times pertinent to

the event s giving ri se to thi s lawsuit.

4.      Defendant Larry Kirkwood is a natural person and the alter ego of USA Store Fixtures,

LLC. Defendant Kirk wood has been prev iously served and has answered herein.




                                                    59
5.       Defendant USA Store Fixtures, LLC is an ac ti ve Texas corporation with its principal

place of business in Harri s County, Texas. USA Store Fixtures, LLC has been prev iously served

and has an swered herein.

                                     VENUE AND JURISDICTION
6.       Venue is proper in Harri s County, Texas pursuant to Tex. Civ. Prac. & Rem. Code

§ 15.002 because at the time of th e event s givin g ri se to thi s cause of action Defendant Kirk wood

res ided in Harri s County.

7.      The court has jurisdicti on of thi s matter because the amount in controversy exceeds the

jurisdicti onal limit s of the court .

                                         FACTUAL BACKGROUND
8.       Pl ainti ff is a consume r who sought to acquire goods and serv ices by purchase from

Defendant s in Houston for deli very to SiJ ver Lake, Wi sconsin . Specifi call y, as the res ult of

mi srepresentations made in Defe ndants' adverti sing over the internet and telephone, which

Defendan ts knew to be false at the time they were made, Pl aintiff purchased and paid for

shelving sold by Defendant s to be deli vered to her in Wisconsin.

9.      The shelving was de l.i vered to Pl ainti ff later than the date represe nted by Defendants and

was defective and incomple te. The shelving sold by Defendants as used Lozie r brand shelving

was not of the quality or quantity represented and cont ained parts which were not made by

Loz ier. Defendants made representati ons prior to the sale regarding the shelv ing orders'

compl eteness, qual.ity, and brand . as we l.l as USA Store Fixtures' compliance with it s own return

policy, which were subsequentl y shown to be fal se.

10.      Defendants responded to atte mpt s by Pl ainti ff to seek redress from Defendant s pursuant

to the ir adverti sed policies by threa tening and vul gar verbal abuse of Pl aintiff.



                                                     2


                                                    60
II.     Defendants to date ha ve wholly fail ed to remedy or replace the defective shelving and/or

otherwise compl y with their ad verti sed representati ons.

 12.    Defendants res ponded to Plaintiffs exerc ise of her ri ght to seek and obtain redress

through the credit card co mpany procedures by making mi srepresentation s to the credit card

companies, then riling two law suits against PlaintiH in Harri s County, Texas, on

October 17,2011 , whi ch Plaintiff has been required to liti gate to their conclu sion . Meanwhile,

Defendants reiterated its mi srepresentation s concerning the she lving to Plaintiff and the COUl1S.

13.    Further, on October 26.2012, Defendant s and their agent, throug h the device of false and

deceptive state me nts made to Plaintiff, obtained access to Plaintifr s property and Plaintiff while

secretl y videotaping and audio recording both Pl aintiff and the interior o f her property.

                       ALTER EGO AND RESPONDEAT SUPERIOR

14.    As weU as being the alter ego of USA Store Fixtures, LLC from the time o f the event s

giving rise to thi s law suit through the present and being res ponsible for its conduct, Defendant

Larry Kirk wood at a U limes materia l to this cau se of action was e mployed by and acting in the

course and scope of hi s empl oy ment for Defendant USA Store Fixtures. Defendant USA Store

Fixtures is res ponsible for the conduct of De fendant Kirkwood under the doctrine of respondeal

superior.

                                      CAUSES OF ACTION

                                                Fraud

15.     Plaintiff incorporates by re ference all facts and allegations contained in pm'agraphs 1- 14.

l6.     Defendants made a material representation s which were fal se and which they knew to be

fal se when made and/or which were recklessly made as positive assertion s wilhout knowledge of

their truth and whi ch Defendant s made with the intent that they be acted upon . Plaintiff took

action in reliance upon the mi srepresentation s and thereby suffered injury . These fal se

                                                   3

                                                  61
representations of fact and opinion included representations that the shelving was of a qu ality, make,

consistency, and/or conditi on it was not and had attributes that it did not, incl uding, but not limited

to, representations that the shelv ing would be shipped complete and on time, would be a six or

better on a scaJe of one to ten in quality and appearance, and would be rep laced if defecti ve if

PlaintiFF complied with the replacement procedures.

17.        Pl aint iff justifiabl y relied upon the facts as represented by Defendants through and until the

intentionaJ faJ sity of their representati ons were made obv ious by DeFendants' course of conduct.

18.     The misrepresentations made by Defendants were material in that, among other things, they

induced Plai ntifF to purchase the shelving, to cease or not begin any efforts to seek alternate

shelving, to make plans based upon the representations, to expend time, effort and money to comply

with Defendants' instmctions and to attempt to ameliorate the obvious de ficits in the shelving.

Pl aint iff wou ld not have entered the transaction had she been aware of the falsit y of Defendants

representations above.

19.        In making the above mi srepresent ati ons, Defendants acted knowingly so as to deceive and

de fraud Ms. Genender and the Court . Accordingly, their conduct was such as to rise to the level of

common law fraud.

20.        Ms. Genender was damagcd as a direct and proximatc result of Dcfendants' fraudulent

conduct.

                                              011' A Violations

2 1.    Pl ainti ff incorporates by reference all Fac ts and allegations contained in paragraphs 1- 20.

22.     Pl ainti ff is a consumer who sought to acquire goods and/or services from Defendant USA

Store Fi xtures by purchase. In their transactio ns with PlaintifF relati ve to her purchase of goods

and services, Defendant s engaged in false. misleading, or decepti ve acts or practices. including.

but not li nti ted to. the acts or practices specified below. Plaintiff has performed or will perform

                                                      4


                                                     62
all conditions precedent to entitle her to bring thi s action.

        a.      Defendants used and employed one or more false, mi sleading and/or decepti ve

        acts and/or practices that is/are spec iJically enumerated in a subdi vision of Section 17.46

        of the Texas Business and Commerce Code, including, but not limited to, subdi vision (b),

        nllmbers (5), (7), (9), ( 12), (23) and (24) and that were relied on by Plaintiff. The fal se

        and mi sleading acts co mmilled by De fendant s inc lude, but are not limited to the

        follo wing:

                1.      The goods provided were damaged and deteriorated to the point of not

                being functional for the purpose and use represented by De fendants. § 17 .46(b)(5)

                u.      The qualit y of the goods pro vided fe U so far below the standard

                represented as to be unu sable. The ty pes of items provided al so differed from

                those listed on the website and in the in voice. § 17 .46(b)(7)

                Ill.    The advertising on Defe ndants' website represent s that "all orders usually

                ship within 1-2 bu siness days" and that "tran sit time mi ght vary, 3-5 bu siness

                days." This was false and mi sleading, as the processing and shipment of orders in

                fa ct is much longer th an represented. § 17.46(b)(5) and (9)

                I V.    The advertising on De fe ndants' website represent s that the used shelving

                of the ty pe purchased by Plaintiff may have superfi cial dings and scratches but

                that "it will still perform for what you need it to do most. " This is patently untrue,

                as man y of the part s were so defecti ve as to fail to perform as she lving.

                § 17.46(b)(5) and (9)

                v.      Defendant s represented thatl? complete she lving unit s were being sold to

                Plaintiff when they never intended to and did not provide the parts for the



                                                    5

                                                   63
assembly o f 17 complete shelving unit s as advertised. § 17.46(b)(5) and (9)

VI.      Defendants ad veJ1i sed images of shelving and parts o f she lving which they

did not prov ide and did no t inte nd to deli ver. § 17.46(b)(5) and (9)

VII.     Despite the represent ati on made on their website th at " Madix she lving and

Lozier shelving are the o nl y two brands we w ill sell ," and the assertions o f Larry

Kirkwood during the initi al sale and constructi on, the redress process atte mpted

by Pl aintif f, and at trial in the County Court, that Defendant s prov ided Lozier

brand shelving, Defendant s so ld Pl aintiff parts made by neither Lozier nor

Maddix. § 17.46(b)(5) (7) and (9)

VIl1 .   Defendants' Return Po !.icy as di splayed on it s website represent s th at

materi als deli vered damaged are subject to repl acement so lo ng as their inferior

qua!.it y is noted on the de li very receipt w ith the dri ver's signature at the time of

deli very, photograph s are taken o f the damaged pal1 s, all o ri ginal packag ing is

retained , and the damaged good s are reported within three days o f de li very.

Pl aintiff complied with all o f these req uireme nts and was never furni shed

repl acement parts or reimburse ment despite Pl aintiff s compli ance with the

De fendants' Return Policy's requirement s. § 17.46(b)( 12)

IX.      Defendants fil ed suit against Pl aintiff on the written contract in Ham s

County, a county other than that in which Plaintiff was known to res ide and/or in

whi ch the contract was sig ned. Thi s constituted di stant fo rum abu se in which

Defendants engaged on not o ne but two separate occas io ns, co mpounding the

damage to Pl aintiff. §17.46(b)(23)

x.       Had De fendants di sclosed its policy o f mix ing dif fe rent manufacturer's



                                     6

                                    64
        parts, the level of inco mpleteness and defec ti ve conditi on of the she lving, the half

        measures and di sorganizati on in volved in shipping, and the di sdain , crudeness,

        and threats that constitute it s customer service, Pl aintiff would not have purc hased

        the she lving and deli very. Defe ndants failed to make suc h di sc losures, a lth ough

        the extent of the inco mpleteness and defecti ve conditi on of the shelving and the

        meth od of dealing with customers, as in thi s case, were kn ow n to the selJ er at the

        time of the tran sac ti on. § 17.46(b)(24).

b.      Defendant s breached express warranti es, including, but not limited to, the

warranties contained in their adverti sing, their purchase order material s spec ified above,

and the express warranti es cont ained in the pubUc and pti vate communicati ons by

Defendants.

c.      Defendant s engaged in one or more unconsc ionable action s and/or courses of

acti on, incl uding, but not limited to, intentionall y suppl ying inco mplete and defecti ve

goods, failing and refusing to honor their adverti sed poli cies on shipment and/or return

and/or repl acement and verbally abusing custome rs who complain in an effort to

intimidate them int o accepting the inco mplete, damaged and deteri orated goods deli vered

by Defendant s, which were in gross di sproportion to the amount paid. Additionally,

Defendant s' acti ons which resulted in and rati fied mi srepresentati ons to gain

unauth orized entry of the ir agent onto Plaintiff' s property, personal contac t with Pl ainti ff

and secret videotaping and recording of Pl aintiH and her propert y constitute an

unconsc ionable course of action.

d.      The aforesaid agent ' s mi srepresentati ons were on behalf of Defendant s acting

directl y or indirectl y in the capac ity of debt collectors and were for the purpose of obtaining



                                             7

                                            65
        infonllation concerning a consumer, namely Pl aintiff, in violation of the Texas Finance

        Code secti on 392.304( 19), constituting a deceptive trade practkc under Subchapter E.

        Chapler 17, of the Business & Commerce Code. Tex. Fin. Code Ann. § 392.404(a)

        e.      Each of the above, indi viduaUy and cumul ati vely, was a producing cause of

        damages to Pl ainti ff.

        r.      Each of the foregoing violati ons co mmitted by Defendant s was co mmitted

        know ingly and/or intentionally, entitling Plaintiff to the remedies prov ided by 17 .50(b).

        As the above co nduct is in violati on of the Texas Decepti ve Trade Practices Act, Plainti ff

        is entitled to attorneys' fees and her damages, which include both economic damages and

        ment al angui sh. Further, Defendant s' violati on of the Texas Decepti ve Trade Practices

        Acl through the ir violation of the Texas Finance Code secti on 392.304( 19) entitles

        Pl ainti ff to aU of her actual damages at co mmon law.

                                                Trespass

23 .    Pl aintiff incorporates by reference all facts and allega tions contained in paragraphs 1- 22.

24.     Defendant s, through decepti on and artifice, and without Pl aintiff s effecti ve consent ,

made intentional e ntry onto Pl ainti ff's property and co mmitted trespass upon Plaintifr s property

and person in violati on of the laws of both the State of Texas and the State of Wi sconsin .

                                        ATTORNEYS' FEES

25.     As a result of the facts all eged above, it has become necessary for Pl aintiff to hire an

att orney 10 prosecute thi s action, and Pl ainti ff has incurred and will incur attorneys' fees for the

prosecuti on of thi s acti on. Plainti ff has retai ned the fir m of Jan Woodward Fox, P.L.e. to

represent her in this ac tion and has agreed to pay the firm reasonable attorneys' fees. Plaintiff is




                                                    8

                                                   66
entitled to recover judgment against Defendants for those attorneys' fees pursuant to § 17.50, et

seq of the Texas Business & Commerce Code. These fees include:

       a.      preparation and tri al of thi s laws uit;

       b.      post-tri al and pre-appeal legal services;

       c.      an appeal to the Court of Appeals;

       d.      an appeal to the Texas Supreme Court ; and

       e.      post judgment di scovery and co llection in the event execution on the judgment is

               necessary.

                                              DAMAGES

26.    As a direct result of the wrongful acts and/or omi ssions of the Defendants, Pl aint iff has

suffered damages above the minimum jurisdictional requirements of thi s Court, including but not

Umited to the fo Uow ing:

       a.      econornic damages;

       b.      other actual damages, including ment al anguish;

       c.      the ri ght to treble damages as provided by statute;

       d.      att orneys fees.

                                               PRAYER

27.     Pl aintiff prays th at the Defendants be ci ted to appear and answer and th at upon fin al

hearing, Plaintiff recover:

       a.      judgment against the Defendants, jointly and severall y, for Pl ainti ff's damages as

               set forth above in an amount over $ 100,000 but not more than $200,000, as of the

               rihng of this Petiti on.

       b.      attorneys' fees as allowed by law;



                                                    9

                                                   67
       c.       pre and post-judgment interest on Plaintirr s damages as allowed by law;

       d.       aU costs of court ; and

       e.       such other and furth er relief to which Plaintiff may be entitled.

                                                        RespectfuU y submitted,

                                                        J AN WOODWARD     Fox,
                                                        A Profess ional Legal Corporation


                                                        By: lsi Jan Woodward Fox

                                                            Jan Woodward Fox
                                                            State Bar No. 07334500
                                                            The Lyric Centre
                                                            440 Loui siana, Suite 900
                                                            Hou ston , Texas 77002
                                                            (7 13) 623-8600 (te lephone)
                                                            (7 13) 807- 1758 (facsimile)

                                                        ATTORNEY FOR PLAINTIFF
                                                        JAMIE GENENDER


                                      CERTIFICATE OF SERVICE

       The undersigned hereby certifies that a tme and correct copy of the forego ing in strument
was served by the Court' s electronic filin g notificati on sys1em on thi s 1he 21 st day of Jul y, 2014,
upon the roUowing counse l of record:


Mr. Jerrad Bloome,
WEYCER , KAPLAN , PULASKI & ZUBER,
11 Greenway Plaza, Ste. 1400,
Houston , Texas 77046
AUorney for Defendants
Larry Kirkwood and
USA Store Fixtures, LLC




                                                                lsI Jan Woodward Fox
                                                                Jan Wood ward Fox


                                                   10


                                                  68
APPENDIX 2




    69
JAMIE GENENDER
                                CAUSE NO. 2013-59766

                                              §   IN THE DISTRICT COURT OF
                                                                                      e
                                                                                     (1)A
                                              §
                                              §
                                              §
VS                                            §   HARRIS COUNTY, TEXAS
                                              §
LARRY KIRKWOOD, et al.                        §
                                              §
                                              §
                                              §   55TH JUDICIAL DISTRICT

     ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

      Upon consideration of Defendants' Motion for Summary Judgment, Plaintiffs

Response, the summary judgment evide nce and arguments of counsel, the Court

rules as follows:

      The Plaintiffs DTPA claims raised in this matter were originally brought in

County Court at Law #1. Because the DTPA claims were improperly joined with

claims which were in the county court through an appeal, a jurisdictional problem

was present.        The presiding judge ordered a severance of the DTPA claims.

Accordingly, Case no. 1016718-101 was created. The case, once seve red, was thus

initially filed in a court with jurisdiction over those claims. Plaintiff then filed a

voluntary non-suit on October 21, 2013. It was not dismissed because the court

lacked jurisdiction.

       Accordmgly, Section 16.064 of the Civil Practice and Remedies Code which is

relied upon by Plaintiff does not apply. The Plaintiffs DTPA claims originally filed

in the county court are barred by limitations.        To this extent the Motion is

GRANTED.




                                         70
      The Plaintiff has raised material issues of fact rela ted to Defendants' alleged

trespass on October 26, 20 12. To this extent the Motion is DENIED.

      IT IS SO ORDERED.

      SIGNED on the   fl day of           lM\ e.-   , 2014.


                                       JUD




                                          2


                                         71
APPENDIX 3




    72
     Un
       of
          fic
              ial
                  Co
                    py
                       O
                         ffic
                             e
                                of
                                  C




73
                                     hr
                                       is
                                          Da
                                             nie
                                                lD
                                                   ist
                                                         ric
                                                             t   Cl
                                                                    er
                                                                      k
     Un
       of
          fic
              ial
                  Co
                    py
                       O
                         ffic
                             e
                                of
                                  C




74
                                     hr
                                       is
                                          Da
                                             nie
                                                lD
                                                   ist
                                                         ric
                                                             t   Cl
                                                                    er
                                                                      k
APPENDIX 4




    75
        ENTRY
      DATA
            252
          JUL                                                                                        25A10:
                                               NO.1016718
      STORE
USA           FIXTURES, LLC                §               IN THE COUNTY CIVIL COURT

vs.                                                              ATLAW   ONE
                                                                     NUMBER
         GENENDER
    MICHELE
JAMIE                                                                     TEXAS
                                                                      COUNTY,
                                                                  HARRIS
                                 [CONSOLIDATED WITH]

                                        No.1016719
                                    CAUSE
USA STORE FIXTURES, LLC                     §              IN THE COUNTY CIVIL COURT

VS.                                                              AT LAW NUMBER TWO (2)


CRITTER STUFF, LLC                             §                  HARRIS COUNTY, TEXAS

      PLAINTIFF’SPLEATO THE         ANDMOTIONTO DISMISS
                              COUNTERCLAIMS
                    DEFENDANTS’

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES now                USA STORE FIXTURES, LLC, and                  this its Plea to the

            and Motion to Dismiss Defendants’ Counterclaims; and, in                          will

showtheCourtas follows:I.
                                           Introduction

       This case is a consolidatedappeal from Justice Court. Defendantsdid not assert any

counterclaims against USA Store Fixtures, LLC in the lower court. As this matter is an appeal,

the court lacks subject matter jurisdiction to hear any counterclaims          by the Defendants

which were not pleaded in the court below. Pursuant to Texas Rule of Civil Procedure 574a,       .

         ground of recovery shall be set up by the                      nor shall any set-off or
. no new
counterclaim be set-up by defendant which was not pleaded in the court below.” (emphasis




                                          76                                                       238
                                            Requested
                                     II.Relief
               lackssubject
       AstheCourt                        jurisdiction
                                                  tohearDefendants’
                                                               counterclaims,
seeks an order dismissingDefendant’scounterclaimsfor Deceptive Trade Practices, breach of

contractandattorneys’fees.
                                       III.

       USA Store Fixtures sold and delivered to Defendantused shelving. Not being

with the product, Defendant contested the charge on her credit card and received a credit.

Defendant has maintained possession of and utilized the shelving for the past two years without

paying USA Store Fixtures. As such, on or about October 17, 2011, USA Store Fixtures filed

two (2) Justice Court Actions: -- one action was against Jamie Michele Genender, individually,

for fraud and for defamation, (Exhibit A) —-the other action was against Critter        LLC for

fraud, breach of contract and defamation. (Exhibit B)

       Defendants did not assert any counterclaims or seek any damages from USA Store

Fixtures in the Justice Court. Defendants did not file a written pleading in Justice Court before

announcingready for trial.

       The Justice Court rendered a judgment for the Defendants in both actions.

the Justice Court entered a judgment for Defendants,        Plaintiff should take nothing by his

suit; that the Defendant, go hence with his costs without day and that execution issue in

Defendant’s behalf for his said costs." (Exhibits C & D) Plaintiff perfected the appeal of the

two cases to County Court. The two matters were consolidated into this action.

       On or about July 30, 2012, Defendantsfiled their First Amended Answer and Original

Counterclaims. (Exhibit E) For the first time, in that pleading, Defendants asserted claims for

breach of contract and violation of the Deceptive Trade Practices Act, in addition to seeking to




                                         77                                                     239
recover attorneys’fees.                        never           any claimsfor affirmativerelief in the Justice



                                      IV. Argumentand Authorities
       In a              appeal to the County Court at Law from Justice Court, the County Court’s

              . ..
              1S           by the     .         .   at the      .                                        ..
                                                                    Court. Pursuant to Texas Rule of C1v1l

Procedure574a, upon an appeal to CountyCourt:

                   Either party may plead any new matter in the county or district
                   court which was not presented in the court below, but no new
                   ground of recovery shall be set up by the            nor shall any
                   set-off or counterclaim be set up by the defendant which was not
                   pleaded in the         below. The pleading thereof shall be in
                   writing and filed in the cause before the parties have announced
                   ready for trial.

As Defendants never asserted a counterclaim in Justice Court, this Court lacks jurisdiction to

entertain Defendants’ counterclaims asserted for the first time in this appeal. Further, as no

cause of action upon which statutory attorneys’ fees is dependent was originally pleaded in the

Justice Court, a claim for attorneys’ fees cannot be asserted for the              time in a de       appeal

to the County Court.                      v.             936 S.W.2d 473 (Tex.App.—Fort Worth 1996, no

writ.) Additionally, Defendants never sought any award of damages or any                            relief in

Justice Court, and cannot seek such relief for the first time on appeal.

                                                    V.Conclusion
       As this matter is a de             appeal from Justice Court to County Court at Law, pursuant to

the Rules of Civil Procedure,this                      lacks subject matter jurisdiction to hear Defendants’

counterclaims asserted for the first time in the appeal. As such, Defendants’ counterclaims must

be
 dismissed.




                                                    78                                                      240
                                             Prayer
               premises
       WHEREFORE,                                       USASTOREFIXTURES,LLCpraysthat

this Court grant             Plea to the Jurisdiction and Motion to Dismiss, entering an order

dismissing Defendants’ counterclaims for violation of the Deceptive Trade Practice Act, breach

of contract, and request for attomeys’ fee; and, for all other relief either at law or in equity to

which it shows itself entitled.

                                             Respectfully submitted,

                                             WEYCER, KAPLAN, PULASKI & ZUBER, P.C.


                                             By:      /S/       D. Bl00me
                                                   JERRADD. BLOOME
                                                   StateBar No. 24001755
                                                   1400SummitTower
                                                   Eleven Greenway Plaza
                                                   Houston, Texas 77046
                                                   Telephone: (713) 961-9045
                                                   Facsimile: (713) 961-5341

                                                   FORPLAINTIFF
                                             ATTORNEYS




                                          79                                                      241
                                 CERTIFICATEOF SERVICE
        I hereby        that the foregoing instrument has been served upon the following counsel
of record via hand delivery, facsimile, and/or          mail, return receipt requested pursuant to
Tex. R. Civ. P. 2la this the      day ofJuly, 2013.

Jan WoodwardFox
JAN WOODWARD FOX, A
Professional Legal Corporation
440 Louisiana, St.
Ste900
Houston, TX 77002

FAX 713-425-7196/S/



                                                       D. Bloome
                                             JERRAD D. BLOOME




                            }




                                          80                                                     242
APPENDIX 5




    81
                                     CAUSE
                                        No.1016718
USA STORE FIXTURES, LLC                        §           IN THE COUNTY               COURT
vs.                                                              ATLAWNUMBER
JAMIENHCHELEGENENDER                                             HARRISCOUNTY,TEXAS
                                   [CONSOLIDATED WITH]

                                     CAUSE
USA STORE FIXTURES, LLC                        §           IN THE COUNTY CIVIL COURT

VS.                                                             AT LAW NUMBER TWO (2)

CRITTER STUFF, LLC                             §                 HARRIS COUNTY, TEXAS


                 ORDER ON PLAINTIFF’S PLEA TO THE JURISDICTION
                        AND MOTION TO DISMISSANDON
                 DEFENDANTS’MOTION TO SEVERAND CONSOLIDATE

        On the          day of           2013, came on to be heard                       to the
             and Motion to Dismissand                  Motion to Sever       Consolidate in the
above

             considering the pleadings, the evidence and the arguments of counsel, the Court has

determined that            Plea to the Jurisdiction and Motion to Dismiss should be granted in

part and denied in part and that Defendants’ Motion to Sever and Consolidate should be granted

in part and denied in     Accordingly, it is

        ORDERED, ADJUDGED AND DECREED that                         claims in the County Court

for negligent misrepresentation,                                               and Defendants’




                                                   l




                                         82                                                 325
      .
          . in
counterclarms . the County Court for .              .                     .
                                                             of the Deceptrve                .    Act be severed

and placed under a new           number (Cause Number 101671                     and it is, further

           ORDERED,
                  ADJUDGED
                         ANDDECREEDthattheclerkof the courtshallassignthe
severed action the separate cause number of                               copy the following documents, and
includetheminthat
           1.    Plaintiff USA Store Fixture’s                      Petition     on September 11, 2012.
           2.    Defendant’s First Amended Original Answer and Original Counterclaim                         on
                 July 30, 2012.

           3.    A copy of the docket sheet.

           4.    A copy of this order.

          All other requested relief not expressly granted herein is denied.

          Entered this          day of August, 2013.Hon




                                                                                    Coselli
                                                                         Pr     rng Judge


Approved as to



JerradBloome
AttorneyforPlaintiff                                                                                           -·-··



           for                                      ¤f
                                           to                  for
                                                               of
                                      photo copy,




                                                         2




                                                83                                                         326
APPENDIX 6




    84
                Tex.R.Civ.P. 574a

Texas Rules of Civil Procedure
Part V. Rules of Practice in Justice Courts
Section 6. Appeal
TX Rules of Civil Procedure, Rule 574a
Rule 574a. New Matter May be Pleaded

    Either party may plead any new matter in the
    county or district court which was not presented in
    the court below, but no new ground of recovery
    shall be set up by the plaintiff, nor shall any set-off
    or counterclaim be set up by the defendant which
    was not pleaded in the court below. The pleading
    thereof shall be in writing and filed in the cause
    before the parties have announced ready for trial.


<Text of rule is repealed effective August 31, 2013, pursuant
to Supreme Court order dated April 15, 2013.>




                              85
APPENDIX 7




    86
Tex. Civ. Prac. & Rem. Code §16.064

§ 16.064. EFFECT OF LACK OF JURISDICTION.
   (a) The period between the date of filing an action in a
   trial court and the date of a second filing of the same
   action in a different court suspends the running of the
   applicable statute of limitations for the period if:
       (1) because of lack of jurisdiction in the trial court
       where the action was first filed, the action is
       dismissed or the judgment is set aside or annulled
       in a direct proceeding; and
       (2) not later than the 60th day after the date the
       dismissal or other disposition becomes final, the
       action is commenced in a court of proper
       jurisdiction.
   (b) This section does not apply if the adverse party has
   shown in abatement that the first filing was made with
   intentional disregard of proper jurisdiction.




                            87
APPENDIX 8




    88
    Deceptive Trade Practices Act
            §17.46(b)(23)

(b) Except as provided in Subsection (d) of this section,
the term "false, misleading, or deceptive acts or
practices" includes, but is not limited to, the following
acts:

    (23) filing suit founded upon a written contractual
    obligation of and signed by the defendant to pay
    money arising out of or based on a consumer
    transaction for goods, services, loans, or extensions
    of credit intended primarily for personal, family,
    household, or agricultural use in any county other
    than in the county in which the defendant resides
    at the time of the commencement of the action or in
    the county in which the defendant in fact signed the
    contract; provided, however, that a violation of this
    subsection shall not occur where it is shown by the
    person filing such suit he neither knew or had
    reason to know that the county in which such suit
    was filed was neither the county in which the
    defendant resides at the commencement of the suit
    nor the county in which the defendant in fact
    signed the contract;



                             89
APPENDIX 9




    90
    Tex. Fin. Code §392.304(a)(19)
  FRAUDULENT, DECEPTIVE, OR
            MISLEADING
       REPRESENTATIONS.

(a) Except as otherwise provided by this section, in debt
collection or obtaining information concerning a
consumer, a debt collector may not use a fraudulent,
deceptive, or misleading representation that employs
the following practices:

    (19) using any other false representation or
    deceptive means to collect a debt or obtain
    information concerning a consumer.




                             91
APPENDIX 10




    92
Affirmed as Modified and Opinion filed December 23, 2014.




                                        In The

                       Fourteenth Court of Appeals

                                 NO. 14-14-00048-CV

          JAMIE GENENDER AND CRITTER STUFF, LLC, Appellants
                                           V.
                      USA STORE FIXTURES, LLC, Appellee

               On Appeal from the County Civil Court at Law No. 1
                             Harris County, Texas
                        Trial Court Cause No. 1016718

                                   OPINION
      Appellee USA Store Fixtures, LLC sued appellants Jamie Genender and her
business Critter Stuff, LLC in justice court after Genender successfully obtained a
chargeback on her credit card related to her purchase of $2,303.42 in used shelving from
Store Fixtures. Store Fixtures appealed a take-nothing judgment from the justice court
to the county court, which held a trial de novo. A jury awarded Store Fixtures damages
of $2,303.42 and attorney’s fees of $38,000 for trial, $20,000 for an appeal to the court
of appeals, and $20,000 for an appeal to the Supreme Court of Texas. In three issues,




                                           93
appellants contend the county court lacked jurisdiction over Store Fixtures’ breach of
contract claim, the evidence is legally insufficient, and Store Fixtures is not entitled to
attorney’s fees because it failed to plead and prove presentment of its claim.

      We hold that the trial court had jurisdiction over Store Fixtures’ breach of
contract claim and the evidence is legally sufficient to support the jury’s finding on that
claim, but Store Fixtures failed to prove presentment. Accordingly, we modify the trial
court’s judgment to delete the award of attorney’s fees and affirm the trial court’s
judgment as modified.

                                  I.     BACKGROUND

      Using a credit card, Genender purchased some used shelving from Store Fixtures
for Genender’s business. Store Fixtures shipped the shelving to Genender in Wisconsin.
But she was disappointed with the quantity and quality of the shelving she received and
with Store Fixtures’ response to her concerns, so she filed a dispute with her credit card
company that resulted in a chargeback to Store Fixtures. Store Fixtures sued appellants
in justice court; all parties were pro se. After a bench trial, the justice court signed a
take-nothing judgment in appellants’ favor, and Store Fixtures appealed to the county
court. The parties hired attorneys and ultimately proceeded to a de novo jury trial with
each side asserting claims for breach of contract and attorney’s fees.

      The only issues submitted to the jury were whether any party failed to comply
with the agreement, and if so, the amounts of damages and attorney’s fees. The jury
found that appellants failed to comply with the agreement, Store Fixtures did not fail to
comply with the agreement, Store Fixtures suffered damages of $2,303.42, and Store
Fixtures’ reasonable and necessary attorney’s fees were $38,000 for preparation and
trial, $20,000 for an appeal to the court of appeals, and $20,000 for an appeal to the
Supreme Court of Texas. The county court signed a final judgment consistent with the
jury’s verdict. This appeal followed.
                                             2


                                            94
                           II.    SUBJECT MATTER JURISDICTION

       In their first issue, appellants contend the county court’s judgment is void because
the county court lacked subject matter jurisdiction over the only claim and basis for
attorney’s fees supporting the judgment. Appellants argue that Store Fixtures did not
plead a breach of contract claim in the justice court, and Store Fixtures’ contract claim
was a “new ground of recovery” pleaded for the first time on appeal to the county court.
See Tex. R. Civ. P. 574a, 50 Tex. B.J. 868 (1987, repealed 2013) (on appeal from justice
court, “no new ground of recovery shall be set up by the plaintiff”).

       Store Fixtures contends that it pleaded a breach of contract claim in the justice
court because Store Fixtures reserved the right to plead orally and, at the justice court
trial, Store Fixtures “sought to recover the total invoice amount under the theory that
Genender and Critter Stuff had breached the contract by not paying for the shelving.”

       First we will review the relevant proceedings and evidence in the record. Then
we overrule appellant’s issue because appellants failed to rebut the presumption that
Store Fixtures orally pleaded its breach of contract claim in the justice court.

A.     Background and Evidence

       Store Fixtures, acting through its president,1 filed two petitions in justice court.
The petition naming Genender as a defendant alleged as follows:

       That the defendant is legally indebted to the plaintiff in the sum of
       $10,000.00 based upon the following facts: Defendant, Jaimie Michele
       Genender, purposefully intended to defraud USA Store Fixtures LLC from
       financial gain by refusing payment on her credit card. Defendant also
       acted outside of her title and personally defamed and slandered this
       company in writing. Invoice $2,303.42 damages for slander $7,697.58.
The petition naming Critter Stuff as a defendant alleged as follows:
       1
          See Tex. Gov’t Code Ann. 27.031(d) (“A corporation need not be represented by an attorney
in justice court.”).

                                                3


                                               95
       That the defendant is legally indebted to the plaintiff in the sum of
       $10,000.00 based upon the following facts: Defendant, Jamie Michele
       Genender, purposefully intended to defraud USA Store Fixtures LLC from
       financial gain by refusing payment on her credit card. Defendant also
       slandered and defamed this company in writing. Invoice amount $2,303.42
       plus damages for slander and defamation.

Both petitions stated, “THAT plaintiff reserves the right to plead further orally upon
trail [sic] of this matter.” See Tex. R. Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed 2013)
(in justice court, “[t]he pleadings shall be oral, except where otherwise specially
provided”).

       After Store Fixtures appealed to the county court and retained counsel, it filed an
amended petition asserting claims for breach of contract, negligent misrepresentation,
fraud, fraud in the inducement, and quantum meruit.                 Store Fixtures also sought
attorney’s fees. Appellants filed counterclaims for breach of contract and violations of
the Deceptive Trade Practices–Consumer Protection Act (DTPA), Tex. Bus. & Com.
Code Ann. subch. E. Appellants also sought attorney’s fees.

       Store Fixtures filed a plea to the jurisdiction and motion to dismiss all of
appellants’ counterclaims under former Rule 574a. The rule provided,

       Either party may plead any new matter in the county or district court which
       was not presented in the court below, but no new ground of recovery shall
       be set up by the plaintiff, nor shall any set-off or counterclaim be set up by
       the defendant which was not pleaded in the court below.
Tex. R. Civ. P. 574a, 50 Tex. B.J. 868 (1987, repealed 2013). Store Fixtures alleged
dismissal was the proper remedy because the county court lacked subject matter
jurisdiction over appellants’ newly pleaded counterclaims.2 Appellants responded that


       2
         See Hatmaker v. Farmers Tex. Cnty. Mut. Ins. Co., No. 14-98-00552-CV, 1999 WL 459788,
at *3 (Tex. App.—Houston [14th Dist.] July 8, 1999, no pet.) (not designated for publication); Kramek
v. Stewart, 648 S.W.2d 399, 401–02 (Tex. App.—San Antonio 1983, no writ); Tex. Co. v. Henderson,
154 S.W.2d 911, 911 (Tex. Civ. App.—El Paso 1941, no writ); Racugno v. Hanovia Chem. & Mfg.
                                                 4


                                                96
severance was the proper remedy3 and also requested severance of Store Fixtures’ newly
pleaded claims of breach of contract, quantum meruit, fraudulent inducement, and
negligent misrepresentation.      The county court granted partial relief to both sides,
ordering severance of Store Fixtures’ negligent misrepresentation claim and appellants’
DTPA claim. At the de novo trial, only the contract claims were tried, along with the
amounts of attorney’s fees.

B.     Analysis

       Regardless of whether Store Fixtures alleged a breach of contract claim in its
written petitions in justice court, the law recognizes a presumption that Store Fixtures
orally pleaded its breach of contract claim in justice court. See Gordon v. Zoes, 125
S.W.2d 1049, 1049–50 (Tex. Civ. App.—Galveston 1939, no writ) (holding that the
county court’s judgment was not void based on an allegation that the plaintiff brought a
new cause of action not pleaded in justice court; “While plaintiff filed certain written
pleadings in the justice court, he expressly reserved the right in said pleadings to plead
orally on the trial of the case. It is uniformly held in this State that in cases originating
in the justice court, pleadings may be either oral or written, or partly oral and partly
written. In the absence of a showing to the contrary, it will be presumed that said
written pleadings were supplemented by such oral amendments as cured any defects
therein, and that such pleadings as amended supported the judgment rendered by the
trial court.”); Garcia v. Rendon, 59 S.W.2d 881, 881 (Tex. Civ. App.—San Antonio
1933, no writ) (“If the oral plea made by appellee was not pleaded in the justice’s court,
appellant should have shown it. The mere fact that the justice of the peace did not note

Co., 110 S.W.2d 249, 250 (Tex. App.—Fort Worth 1937, no writ); see also Neal v. Beck Funeral
Home, 131 S.W.2d 778, 780–81 (Tex. Civ. App.—Fort Worth 1939, writ dism’d).
       3
          See New Wave Props., Inc. v. Wikoff, No. 13-11-00762-CV, 2012 WL 2929623, at *3 (Tex.
App.—Corpus Christi July 19, 2012, no pet.) (mem. op.); Harrill v. A.J.’s Wrecker Servs., Inc., 27
S.W.3d 191, 195 (Tex. App.—Dallas 2000, pet. dism’d w.o.j.); D’Tel Commc’ns v. Roadway Package
Serv., Inc., 987 S.W.2d 213, 214 (Tex. App.—Eastland 1999, no pet.).

                                                5


                                               97
the oral pleadings did not prove that they were not made.”).4 This presumption exists
because the rules specifically require oral pleadings in the justice court. See Tex. R.
Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed 2013) (“The pleadings shall be oral . . .”).5

       The presumption is rebuttable. See Gordon, 125 S.W.2d at 1049–50; Garcia, 59
S.W.2d at 881. For example, a statement regarding the oral pleadings may be noted on
the justice court’s docket. See Tex. R. Civ. P. 525, 3 Tex. B.J. 607 (1940, repealed
2013) (“The pleadings shall be oral . . . but a brief statement thereof may be noted on
the docket . . . .”); see also Subcomm. on Interpretation of Rules of Civil Procedure,
State Bar of Tex., Op. 27-a, 5 B.J. 287 (1942) (noting that this statement may be
necessary because “it may become important to show what the old pleadings were with .
. . contentions that a new cause of action has been set up for the first time in the county
court”).

       The record here contains no such notation, but the lack of a notation does not
rebut the presumption of oral pleading. See Gordon, 125 S.W.2d at 1049–50; Garcia,
59 S.W.2d at 881; Amarillo Commercial, 140 S.W. at 378. Nor does the record contain
any evidence that Store Fixtures did not orally plead a breach of contract claim in the



       4
         See also Fort Worth & D.C. Ry. Co. v. Brewer, 1 S.W.2d 686, 686 (Tex. Civ. App.—Amarillo
1928, no writ) (“If the record does not disclose that the written pleadings constituted the whole
pleadings, it will be presumed that there were oral pleadings necessary to support the judgment.”);
Amarillo Commercial Co. v. Chicago, R.I. & G. Ry. Co., 140 S.W. 377, 378 (Tex. Civ. App.—
Amarillo 1911, no writ) (“[If] no oral pleadings on the part of the plaintiff are noted on the docket, it
will be presumed that there was some oral pleading by plaintiff at the time the account was filed, from
which the justice received that information, and which he failed to note upon the docket.”).
       5
          Parties have pleaded orally in justice courts since the early days of the Republic, and the
practice continued in early statehood. See, e.g., Act approved Nov. 4, 1837, 2d Cong., R.S., § 1, 1837
Repub. Tex. Laws 14, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1356 (Austin,
Gammel Book Co. 1898) (“[A]ll civil proceedings before justices of the peace, shall be had in a
summary manner, and without the formality of a petition in writing . . . .”); Act approved Aug. 13,
1870, 12th Leg., C.S., ch. 65, § 7, 1870 Tex. Gen. Laws 87, 93, reprinted in 6 H.P.N. Gammel, supra,
at 261, 267 (“The pleading in a justice’s court shall be oral . . . .”).

                                                   6


                                                  98
justice court.6 Because appellants did not rebut the presumption of oral pleading, we
presume that Store Fixtures orally pleaded a breach of contract claim in the justice
court, and therefore, the claim was not a new ground of recovery in the county court.

       Appellants’ first issue is overruled.

                            III.    SUFFICIENCY OF THE EVIDENCE

       Appellants’ second issue is that “there is legally insufficient evidence that Jamie
Genender or Critter Stuff breached any contractual duty to USA Store Fixtures.”
Appellants argue that there is no evidence to support the jury’s “yes” answer for each
appellant in Jury Question No. 1, which asked, “Did Jamie Genender and/or Critter
Stuff fail to comply with the agreement?” Thus, appellants challenge the “breach”
element of Store Fixtures’ claim and contend that the claim “must be based entirely
upon Genender’s action in submitting a dispute of the transaction through the
chargeback process established by her credit card company.”

       Appellants contend that their “promise to pay was stipulated upon compliance
with the Cardholder Agreement” because when Store Fixtures charged Genender’s
credit card, Store Fixtures sent her an unsigned receipt (Defendant’s Exhibit No. 3),
which states, “I agree to pay above total amount according to card issuer agreement.
(Merchant Agreement if Credit Voucher).”7 So, because it is undisputed that Store
Fixtures lost the credit card dispute due to its “failure to comply” with its merchant



       6
          In fact, in the first pleading filed in county court—appellants’ answer—appellants pleaded an
“affirmative defense of failure of consideration,” thus indicating that Store Fixtures had previously
pleaded a breach of contract claim. At the time, the only written pleadings Store Fixtures had filed
were its justice court petitions.
       7
         Although some of these words on Defendants’ Exhibit No. 3 appear illegible, Store Fixtures’
does not contest appellants’ interpretation, so we accept as true this factual allegation. See Tex. R.
App. P. 38.1(g) (“In a civil case, the court will accept as true the facts stated unless another party
contradicts them.”).

                                                  7


                                                 99
account agreement, appellants claim they could not possibly have breached the contract
for the sale of the shelving.8

       Store Fixtures contends that there is evidence of appellants’ breach because they
agreed to purchase goods, accepted the goods, and ultimately did not pay for the goods.
We agree with Store Fixtures.

       We find no authority, and appellants have cited none, to suggest that in general
(or under any specific circumstances), a buyer has not breached a sale-of-goods contract
as a matter of law when a credit card company reverses a charge in favor of the buyer at
the buyer’s request. In fact, there is authority that a party’s obtaining a credit card
chargeback does not erase liability for obligations owed. See CSL Prop. Mgmt. Co. v.
Thyssenkrupp Elevator Co., No. 01-11-00665-CV, 2013 WL 396252, at *2, *6 (Tex.
App.—Houston [1st Dist.] Jan. 31, 2013, no pet.) (mem. op.) (upholding summary
judgment for the plaintiff on its indemnity claim where the factual basis for part of the
claim was the defendant’s failure to indemnify an amount reversed by a third party’s
credit card company). Defendant’s Exhibit No. 3 does not conclusively establish that
the parties agreed to resolve disputes solely under their credit card companies’
chargeback policies. To the extent there was an ambiguity, the jury resolved it in favor
of Store Fixtures. See Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex. 1987)
(ambiguity in contract creates question of fact for jury).9


       8
           Appellants suggest this case has
       enormous implications for consumers in Texas and across the country [because it]
       addresses an all-too-common occurrence but a novel legal question: whether a
       consumer who properly and successfully disputes a credit card charge pursuant to a
       merchant’s agreement with its credit card company may nevertheless be sued by and
       found liable to that same merchant for the full disputed amount despite the merchant’s
       failure to comply with such agreement.
       9
          Appellants also ask this court to consider several excluded exhibits related to the credit card
dispute, including Genender’s two-page complaint filed with her credit card company and a
notification from Store Fixtures’ credit card company that the dispute was resolved in Genender’s
                                                   8


                                                  100
       Store Fixtures adduced evidence that it sent appellants the shelving Genender
ordered, that appellants accepted the shelving, and that Genender initiated a chargeback
on her credit card, resulting in appellants’ failures to pay for the goods accepted.10 A
buyer’s failure to pay the contract rate for goods accepted constitutes a breach of
contract. See Tex. Bus. & Com. Code Ann. 2.607(a); see also Garden Ridge, L.P. v.
Advance Int’l, Inc., 403 S.W.3d 432, 445 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied) (proper to instruct the jury about what constitutes acceptance of goods and
about “the UCC’s provision that the buyer must pay the contract rate for goods it
accepts”).11    Accordingly, the evidence is legally sufficient to support the jury’s
affirmative answer to Jury Question No. 1.

       Appellants’ second issue is overruled.

                                      IV.     PRESENTMENT

       In their third issue, appellants contend “the county court erred in submitting to the
jury and entering judgment on [Store Fixtures’] attorney’s fee award because there are
no pleadings or legally or factually sufficient evidence of timely presentment.” We
agree with appellants that there is no evidence to support an implied finding that Store
Fixtures presented its claim.

       To recover attorney’s fees for a breach of contract claim under Section 38.001 of
the Texas Civil Practice and Remedies Code,


favor. These exhibits do not support appellants’ construction of the contract or remove any ambiguity
about the terms of the contract.
       10
           There was conflicting evidence about whether appellants accepted the shelving and whether
the shelving conformed to the contract. But the jury resolved this conflicting evidence in Store
Fixtures’ favor, finding that appellants failed to comply with the agreement and Store Fixtures did not
fail to comply with the agreement. We must defer to the jury’s resolution of conflicting evidence. See,
e.g., City of Keller v. Wilson, 168 S.W.3d 802, 820–21 (Tex. 2005).
       11
           The jury charge here defines “acceptance” and declares, “A buyer must pay at the contract
rate for any goods accepted.”

                                                  9


                                                 101
       (1) the claimant must be represented by an attorney;
       (2) the claimant must present the claim to the opposing party or to a duly
       authorized agent of the opposing party; and
       (3) payment for the just amount owed must not have been tendered before
       the expiration of the 30th day after the claim is presented.

Tex. Civ. Prac. & Rem. Code Ann. § 38.002. Presentment is a “demand or request for
payment or performance, whether written or oral.” Gibson v. Cuellar, 440 S.W.3d 150,
157 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Jones v. Kelley, 614
S.W.2d 95, 100 (Tex. 1981)). No particular form of presentment is required. Id.
However, merely filing suit for a breach of contract, by itself, does not constitute
presentment. See Huff v. Fid. Union Life Ins. Co., 312 S.W.2d 493, 500 (Tex. 1958)
(addressing predecessor statute).12

       The claimant bears the burden of both pleading and proving presentment. See,
e.g., Gibson, 440 S.W.3d at 157 (citing Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex.
1983)). “The purpose of the presentment requirement is to allow the party against
whom the claim is asserted an opportunity to pay it or tender performance within 30
days after they have notice of the claim without incurring an obligation for attorney’s
fees.” Id. (citing Jones, 614 S.W.2d at 100).13

       12
          See also Gutierrez v. Wright Lawfirm, PLLC, No. 05-10-00725-CV, 2012 WL 1898950, at
*6 (Tex. App.—Dallas Apr. 27, 2012, no pet.) (mem. op.); Belew v. Rector, 202 S.W.3d 849, 857
(Tex. App.—Eastland 2006, no pet.); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 719 (Tex.
App.—Houston [1st Dist.] 1998, pet. denied); Evans Cooperage of Houston, Inc. v. Port Drum Co.,
No. C14-92-00966-CV, 1994 WL 7243, at *4 (Tex. App.—Houston [14th Dist.] Jan. 13, 1994, writ
denied) (not designated for publication); Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 904 (Tex.
App.—Austin 1991, no pet.); Mackey v. Mackey, 721 S.W.2d 575, 579 (Tex. App.—Corpus Christi
1986, no writ).
       13
          The parties dispute when exactly presentment must be made, and this court appears to have
conflicting precedent on the subject. Compare Caldwell & Hurst v. Myers, 714 S.W.2d 63, 65 (Tex.
App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (“Proper presentment is the assertion of a claim and
a request for payment made 30 days before initiation of a suit.”), with Peissel v. Peissel, 620 S.W.2d
796, 800 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ) (“The rule in Texas is presentment of
the claim must be made at least 30 days before trial, even if made after the suit is filed.”), and Cano v.
                                                   10


                                                  102
       Generally, presentment is an issue of fact. See id. at 157 n.7 (trial court’s finding
of presentment was a finding of fact, not a conclusion of law); see also France v. Am.
Indem. Co., 648 S.W.2d 283, 286 (Tex. 1983) (trial court erred to conclude that the
plaintiff was not entitled to attorney’s fees when there was some evidence of
presentment; “At the very least, a fact issue was raised here as to presentment.”); cf.
Roylex, Inc. v. Avco Cmty. Developers, Inc., 559 S.W.2d 833, 838 (Tex. App.—Houston
[14th Dist.] 1977, no writ) (“Since the evidence on presentment was conclusive, that
issue did not have to be submitted to the jury.”); Turner v. Lubbock Cnty. Hosp. Dist.,
No. 07-96-0272-CV, 1998 WL 3554, at *5–6 (Tex. App.—Amarillo Jan. 6, 1998, no
pet.) (not designated for publication) (finding reversible jury charge error because the
issue of presentment “should have been submitted to the jury for determination” when
the evidence was disputed).

       When, as here, the issue of the amount of attorney’s fees is found by the jury
without a request for a jury finding on the issue of presentment, Rule 279 of the Texas
Rules of Civil Procedure operates so presentment is deemed found. See Adams v.
Petrade Int’l, Inc., 754 S.W.2d 696, 720 (Tex. App.—Houston [1st Dist.] 1988, writ
denied) (deemed finding on presentment); Atkin v. Cobb, 663 S.W.2d 48, 53 (Tex.
App.—San Antonio 1983, writ dism’d) (same).                     Appellants now challenge the
sufficiency of the evidence to support the deemed finding. See Serv. Corp. Int’l v.
Guerra, 348 S.W.3d 221, 228–29 (Tex. 2011) (deemed findings may be reviewed for




Nino’s Paint & Body Shop, No. 14-08-00033-CV, 2009 WL 1057622, at *7 (Tex. App.—Houston
[14th Dist.] Apr. 16, 2009, no pet.) (mem. op.) (“Presentment may be made either before or after filing
suit, provided it is made at least 30 days before judgment.”). Because we hold that Store Fixtures
failed to prove presentment under the latest timeframe possible—30 days before judgment—we need
not resolve when presentment must be made.

                                                  11


                                                 103
sufficiency of the evidence); see also Adams, 754 S.W.2d at 720 (legally sufficient
evidence supported deemed finding on presentment).14

       Store Fixtures contends that it proved presentment in a number of ways: (1) by
sending appellants an invoice; (2) by making a demand for payment during the credit
card dispute; (3) by providing appellants discovery responses showing a claim for
breach of contract; and (4) by engaging in settlement negotiations and orally making a
demand for payment during those negotiations. We address each contention in turn.

A.     Invoice

       Store Fixtures contends that Genender admitted to receiving an invoice as well as
having the credit card charge reversed, “thus constituting non-payment of the invoice.”
Evidence that the plaintiff sent an invoice to the defendant can satisfy a plaintiff’s
burden to prove presentment. See Gordon v. Leasman, 365 S.W.3d 109, 116 (Tex.
App.—Houston [1st Dist.] 2011, no pet.); Roylex, Inc., 559 S.W.2d at 838. But Store
Fixtures cites to Plaintiff’s Exhibit No. 1, which is not an “invoice” but rather a “quote”
dated April 18, 2011. It is undisputed that this quote was prepared several weeks before
appellants agreed to purchase any shelving—before any contract was formed—and it
did not reflect the parties’ actual agreement as to the amount of shelving and cost of
shipping.

       Because no contract then existed, Store Fixtures had no breach of contract claim
against appellants, and there was no “just amount owed” to Store Fixtures.

       14
           An award of attorney’s fees must be reversed if there is no evidence of presentment. See
Helping Hands Home Care, Inc. v. Home Health of Tarrant Cnty., Inc., 393 S.W.3d 492, 516–17 (Tex.
App.—Dallas 2013, pet. denied) (trial court correctly granted JNOV denying attorney’s fees because
there was no evidence of presentment); Border Gateway, L.L.C. v. Gomez, No. 14-10-01266-CV, 2011
WL 4361485 (Tex. App.—Houston [14th Dist.] Sept. 20, 2011, no pet.) (mem. op.) (trial court abused
its discretion in a bench trial by awarding attorney’s fees because there was “no evidence” of
presentment); Edinburg Meat Prods. Co. v. Vernon Co., 535 S.W.2d 432, 437 (Tex. Civ. App.—
Corpus Christi 1976, no writ) (sustaining “no evidence” point on presentment issue).

                                                12


                                               104
Accordingly, Plaintiff’s Exhibit No. 1 is not evidence of presentment as a matter of law.
See Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 817–19 (Tex. 2006)
(plaintiff’s demand for underinsured motorist benefits made before a court signed a
judgment on the motorist’s liability and damages was not evidence of presentment as a
matter of law because at the time of the alleged presentment there was no contractual
duty to pay; when there is no contractual duty to pay, there is no “just amount owed”
under Section 38.002; reasoning that a contract claim requires the existence of a duty or
obligation that the opposing party has failed to meet); cf. McNeil v. BMC Software Inc.,
306 Fed. App’x 889, 894 (5th Cir. 2009) (employee’s request that employer promise to
pay a bonus that had not yet accrued was not presentment as a matter of law; at the time
of the request, there was no “just amount owed” and no “claim” to present; request for a
party to meet its future contractual obligations is not a claim for a just amount owed).15

B.     During the Credit Card Dispute

       Store Fixtures contends that it presented its breach of contract claim by
“inform[ing] the credit card company during the credit card dispute that it would seek
legal action if the charges were reversed,” and by making a demand for payment
“during the entire dispute.” Store Fixtures cites Defendant’s Exhibits Nos. 26 and 32.

       Defendant’s Exhibit No. 26 is a one-page document titled “chargeback
notification” apparently sent from “merchant services” to Store Fixtures to notify Store

       15
          Although not cited by Store Fixtures on appeal, Plaintiff’s Exhibit No. 3 is an “invoice”
contained in this the record. It is dated May 3, 2011, the date that appellants paid for the shelving on
Genender’s credit card. But it shows a “Payments/Credits” of the full amount of the invoice and a
“balance due” of $0.00. This does not show a demand for payment on an existing claim for a just
amount owed. Further, we note that Store Fixtures contends that nonpayment occurred when the credit
card charge was reversed. But Store Fixtures’ president testified that Store Fixtures never demanded
payment or contacted Genender about a contract claim before initiating suit in the justice court. There
is no evidence that Store Fixtures sent an invoice to appellants showing a balance owing—no demand
for payment.


                                                  13


                                                 105
Fixtures of the chargeback and explain what Store Fixtures could do to contest the
chargeback. This document does not show a demand for payment from Store Fixtures.

       Defendant’s Exhibit No. 32 consists of about ninety pages of documents from
Bank of America Merchant Services, Store Fixtures’ merchant account provider.
Appellants had requested, among other things, any and all records reflecting “any
communications by Chase, Merchant Services, and/or the parties.” We have reviewed
the exhibit. It contains no demand for payment from Store Fixtures.

C.     Discovery Responses

       Store Fixtures contends that it presented its claim by providing appellants
“discovery responses,” which “show[ed] Plaintiff’s claim for breach of contract, the
basis of the claim and it[s] claim for damages.” Store Fixtures does not cite to the
record for this assertion nor describe in any way how a demand for payment was made
through its “discovery response.”16

D.     Settlement Negotiations

       Finally, Store Fixtures contends that it orally presented its claim to appellants’
counsel during settlement negotiations.            As evidence, Store Fixtures first cites to
Plaintiff’s Exhibit No. 6, which consists of copious billing records from Store Fixtures’
lawyers. Store Fixtures refers to an entry for July 12, 2012: “confer with opposing
counsel re: potential to resolve.” Evidence that the parties participated in settlement
negotiations, without more, is no evidence of presentment. See Border Gateway, L.L.C.
v. Gomez, No. 14-10-01266-CV, 2011 WL 4361485, at *9 (Tex. App.—Houston [14th

       16
           We have reviewed Exhibit C to Store Fixtures’ response to appellants’ motion to disregard
the jury’s answer to Jury Question No. 5 regarding attorney’s fees, which is Store Fixtures’ response to
appellants’ request for disclosures. The document does not demand payment of the claim but rather
explains the legal theories and factual bases for the claim. Regardless, the trial court would have
abused its discretion by considering the document for the same reasons articulated below in Part IV.D
of this opinion regarding the affidavit.

                                                  14


                                                 106
Dist.] Sept. 20, 2011, no pet.) (mem. op.). Such evidence is insufficient to prove
presentment because it does not satisfy the purpose of the presentment requirement: to
provide the defendant with “the opportunity, by undertaking specific action, to avoid
paying attorney’s fees.”     Belew v. Rector, 202 S.W.3d 849, 856–57 (Tex. App.—
Eastland 2006, no pet.) (evidence that counsel “had some settlement discussions” was
insufficient).

       Next, Store Fixtures refers to an affidavit from its counsel, Jerrad Bloome, where
he testified that he made a demand for payment of the invoice amount to appellants’
counsel on July 12, 2012. However, Store Fixtures filed this affidavit after the jury had
reached a verdict, only in response to appellants’ motion to disregard the jury’s answer
to Jury Question No. 5 concerning attorney’s fees. Appellants objected to the trial
court’s consideration of the affidavit,17 but the trial court overruled the objection.

       Although a trial court has discretion to permit additional evidence to be offered at
any time, “in a jury case no evidence on a controversial matter shall be received after
the verdict of the jury.” Tex. R. Civ. P. 270. Here, the issue of presentment was
controverted. Appellants had pleaded in their answer that Store Fixtures failed to
present its claim, and appellants objected during trial to the submission of Jury Question
No. 5 because Store Fixtures had failed to offer any evidence of presentment. After the
jury’s verdict, appellants filed a motion to disregard the jury’s finding on attorney’s fees
and an amended JNOV on the issue because there was no evidence of presentment. At
the hearing on the post-verdict motions, after the trial court had overruled appellants’
objection to the affidavit, the trial court allowed appellants to make a record about the
lack of presentment. Counsel for appellants, Jan Fox, testified that she had no records
of any July 12 conversation with Bloome, that it would have been her practice to

       17
         Appellants objected because the affidavit was “an improper and untimely attempt to
supplement the record before the jury.”

                                             15


                                            107
document such a conversation, and that no such conversation occurred based on her
records.18

       Under these circumstances, the trial court abused its discretion by reopening the
evidence on a controverted matter after dismissing the jury, and the trial court should
have granted appellants’ motion to disregard the jury’s finding on the issue of attorney’s
fees and entered judgment accordingly. See Helping Hands Home Car, Inc. v. Home
Health of Tarrant Cnty., Inc., 393 S.W.3d 492, 516–17 (Tex. App.—Dallas 2013, pet.
denied) (trial court correctly granted JNOV on attorney’s fees and refused to reopen the
case for evidence of presentment because “the evidence is insufficient to show
Specialties met the procedural requirements for the award”); see also Univ. of Tex. at
Austin v. Ables, 914 S.W.2d 712, 718 (Tex. App.—Austin 1996, no writ) (trial court
abused its discretion under Rule 270 by considering evidence about the amount of
attorney’s fees after the jury’s verdict; rendering take-nothing judgment on attorney’s
fees), cited with approval in Hatfield v. Solomon, 316 S.W.3d 50, 67 (Tex. App.—
Houston [14th Dist.] 2010, no pet.).

       Because there was no evidence before the jury to support a deemed finding that
Store Fixtures presented its claim to appellants, we sustain appellants’ third issue.19

                                      V.     CONCLUSION

       Appellant’s first and second issues are overruled, but appellants’ third issue is
sustained. We modify the trial court’s judgment to delete the award of attorney’s fees—
in particular, the following paragraph:



       18
          Although Bloome testified before the jury about the amount of his fees, he did not testify
about the alleged July 12 demand.
       19
           Because we conclude Store Fixtures failed to prove presentment, we do not address
appellants’ contention that Store Fixtures failed to plead presentment. See Tex. R. App. P. 47.1.

                                                16


                                               108
      It is hereby ORDERED that Jamie Michele Genender and Critter Stuff,
      L.L.C., jointly and severally, pay to USA Store Fixtures the amount of
      $38,000, representing the reasonable and necessary attorneys’ fees in this
      case and a contingent award of attorneys’ fees in the amount of $20,000 if
      this case is appealed to the Court of Appeals, and $20,000 if this case is
      appealed to the Supreme Court of Texas.

We affirm the trial court’s judgment as modified.



                                      /s/    Sharon McCally
                                             Justice



Panel consists of Justices McCally, Brown, and Wise.




                                            17


                                            109
APPENDIX 11




    110
_:.:::;~~..::--~...::~;;...'
                        .;:;;_•"'..;;;;.:.--."'"...:.~_:-_---~\....:..~.>_i-._._<.•_     ,_L-=--- , Plaintiff
                                                                                       ••__                                                 IN JUSTICE •s COURT

_i.:)';;.. ·'-. :S:.. .:"!-:.. .·:;;.-g_......~.;::;"··:........_,lc::...Y~_-::...::.,"'_.:.,_·_ _ _ _ ,Address                             JUSTICE PRECINCT NO. 3
                                                               \


-"'--~=---=
          ....•_""";:;. ·..s-'~-"-w_·_,_\ti---"----'-,r_·.~_.:._~1__5_-___ , City                                                           POSITION 1

                                                              VS.                                                                           HARRIS COUNTY, TEXAS



 _ _..::~:...a=.·'C.::.'___:L::.·~_.__::.:'· ·:. :•":..· .::.~::.:·-
                                                              • .~-~---==::.~...;.;:....:-
                                                                     ...                 •_ _ _ , Address




                                                                                                         PLAINTIFF'S ORIGINAL PETITION

 TO THE HONORABLE JUDGE OF SAID COURT:

      COMES-NOW the above style Plaintiff complaining of the above style defendant and for cause of
 action would show the court as follows:

                                                                 I.
                  THAT the defendant may be served at the above stated address.

                                                                                                                        IL

             THAT the defendant is legally indebted to the plaintiff in the sum of$ _..:.:t·t=-;,~,r~g..:.:_;t"-'-":Jr:r._~_·_ _ _ _ _ based
  upon the following facts:
   --
   ':·r:·'-'{ ''?..., ........~...
                              '        I~
                                   ..._J l·..,·\,)..." &<... ~
                                                               J/.._(_\ .. U, !-:...,,
                                                                   - ·---""""' --"'
                                                                                       ....~'-
                                                                                            )\_...
                                                                                               ~
                                                                                                                        l •j
                                                                                                   l .: (. ,:·'.'!li·:'"'"t-\...t \\._,
                                                                                                              w..,.            :·




                                                                                              .' ,._.
                                                                                                .
                                                                                                    ,.                                                                                                  ...
                                                                                                                                                                                                ......f,,_. .•~         t. ........
                                                                                                                                                                              ..J


 (\.•-r
 I                   •'.~ "• ~ ·-
                               :'~· .......                                                                                           ,)v   ~~~ r d._1__ ,.,_[ ·~,.,.,_;    ~.:.'.1, l< .·:,\.; f"·                ·; d     ,,,,. " ... ff~
                                                                                                                                                                                                                                          1'
                                                                                                                                                                                                                   -)




                                                                                                                        III.

                  THAT plaintiff reserves the right to plead further orally upon trail of this matter.




                                                                                                                                - - L -./
                                                                                                                                       "'
                                                                                                                                .,), _..c_,..--      ~       .. ~
                                                                                                                                                         1,,,,,.,0
                                                                                                                            Plaintiff's Signature

                                                                                                                                                             ·"·
                                                                                                                                                                   ....1 ... 1',,. {'                             ! •
                                                                                                                                                day of·              11    I_ .. ·   ;      ,   20_,_~_.


                                                                                                                                                  -~~~
     Notary Public, State of Tex.as I Clerk of Court                                                                                Judge Mike Parrot f Justice of the Peace
                                                                                                                                    Precinct 3-1, Harris County Texas

                                                                                                                                                         811 ::!::!nlS Cl3HICl:J




                                                                                                                      111                                                                                                         19
APPENDIX 12




    112
                                   CAUSE NO. 1016718


USA STORE FIXTURES, LLC                      §
                                             §
                                             §
                                             §
vs.                                          §
                                             §
                                             §
                                             §
JAIME MICHELE GENENDER                       §               HARRIS COUNTY, TEXAS




         DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER AND ORIGINAL
                              COUNTERCLAIM


TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Jamie Michele Genender, Defendant in the above entitled and numbered cause,
and makes this, her First Amended Original Answer and Original Counter Claim, and would
show the Court the following:

                                                 I.

                                        GENERAL DENIAL

1. Defendant generally denies all of the allegations contained in Plaintiffs

Petition pursuant to the provisions of Rule 92 of the Texas Rules of Civil Procedure.

2. Defendant demands a trial by jury.

                                                 II.

                                   AFFIRMATIVE DEFENSES

 3. Subject to and without waiving the foregoing, Defendant asserts and raises the

 following affirmative defenses:


                                                  1




                                          113                                           128
a.        Defendant asserts the affirmative defense of failure of consideration.

b.        Defendant asserts the affirmative defense of failure to mitigate damages.

c.        Defendant asserts the affirmative defense of estoppel.

d.         Defendant asserts the affirmative defense of truth in response to Plaintiffs allegations of

libel and slander.

e.         Plaintiffs defamation, slander, and libel claims are unreasonable, frivolous, vexatious,

 and/or brought to harass Defendant.

                                                   III.

                                     ORIGINAL COUNTERCLAIM

 Defendant and Counter-Plaintiff Critter Stuff, LLC makes this its' Original Counterclaim against

 Plaintiff USA Store Fixtures and would respectfully show the Court as follows:

                                           A. BACKGROUND

     I.     This action arises from a sales contract between USA Store Fixtures and Critter Stuff,

     LLC, of which Jamie Genender is shareholder and agent, for the sale and delivery of the parts to

     construct some thirteen various shelving units. The order was finalized and agreed upon on May

     3, 2011 at which time a Critter Stuff, LLC credit card was charged for the sale, $2,303.42. The

     specified and agreed upon shipping dates came and went with no delivery. Only after Genender

     made multiple efforts at communicating with the company were the items actually shipped.

     Immediately upon arrival, the general defective and ramshackle nature of the goods was noted,

     including specific damage so severe as to make some parts unusable. Beyond even this there

     were multiple pieces missing from the order. These issues were noted by Critter Stuffs

      employees on site at the time of delivery on the shipping receipt and notice was sent to the USA

      Store Fixtures email immediately as per USA Store Fixtures' Return Policy. The reply stated that



                                                      2




                                               114                                                129
there should have been extra parts delivered in case of damage. These turned out to be an

unusable collection of broken peg board and mismatched scrap which did nothing but add to the

sizable shipping cost Critter Stuff, LLC had absorbed. The USA Store Fixtures reply went on to

indicate that Defendant and Counter-Plaintiff should assemble the shelves and determine what

was missing or too badly damaged so that they could be replaced. This was attempted and found

to be largely impossible due to the incomplete and inoperative nature of the items delivered. To

date, no replacement part or reimbursement has ever been delivered to Defendant and Counter-

Plaintiff. Critter Stuff, LLC agent Jamie Genender made multiple efforts to contact the Plaintiff

 and Counter-Defendant to rectify the situation. After being verbally assaulted and threatened by

 USA Store Fixtures' President, Defendant and Counter-Plaintiff ceased contact and was forced

 to get shelves from another provider in order to meet the store's grand opening deadline. At this

 point, Defendant disputed the validity of the credit card charge of $2,303.42, whereupon Plaintiff

 immediately filed suit with the Justice of the Peace.

                                      B. CAUSES OF ACTION

          1. Deceptive Trade Practices Violations

 a. USA Store Fixtures, LLC committed the following false and misleading acts, which constitute

 violations of the Deceptive Trade Practices Act, §17.46(5), (7), (9), (12), and (24):

  1.     The goods provided were deteriorated to the point of not being functional for the purpose

  and use represented by USA Store Fixtures. §17.46(b)(5)

  2.     The quality of the goods provided fell so far below the standard represented as to be

  unusable. The types of items provided also differed from those listed in the invoice. §17.46(b)(7)

  3.      The advertising on Store Fixture USA' s website represents that used shelving may have

  superficial dings and scratches but that "it will still perform for what you need it to do most."



                                                    3




                                            115                                                  130
()
          This is patently untrue, as many of the parts were so defective as to fail to perform as shelving.
.;·~'j:
::'....


          §I 7.46(b)(9)

          4.        USA Store Fixtures, LLC's Return Policy as displayed on its website represents that

          materials delivered damaged are subject to valid claim so long as their inferior quality is noted

:r.J      on the delivery receipt with the driver's signature at the time of delivery, photographs are taken

<)        of the damaged parts, all original packaging is retained, and the damaged goods are reported

          within three days of delivery. Defendant and Counter-Plaintiff complied with all of these

           requirements and was never furnished replacement parts or reimbursement. §I 7.46(b)(12)

           5.        Had USA Store Fixtures fully disclosed the level of disrepair and shabbiness that these

           used shelves were in, the half measures and disorganization involved in shipping, and the

           disdain, crudeness, and threats that constitute its customer service, Defendant and Counter-

           Plaintiff never would have entered into the sale agreement. USA Store Fixtures, LLC failed to

           make such disclosures, although the extent of the incompleteness and damage and the method of

           dealing with customers, as in the instance described, were known to the seller at the time of the

           transaction. §I 7.46(b)(24).

            6.        Each of the foregoing violations committed by USA Store Fixtures, LLC was committed

               knowingly, entitling Defendant and Counter-Plaintiff to treble damages. §17.SO(b)(I)

                      2. Breach of Contract

                  a. Defendant and Counter-Plaintiff and USA Store Fixtures entered into a written Contract for

               the purchase of shelving, and Counter-Plaintiff performed all conditions precedent to entitle it to

               performance by USA Store Fixtures, LLC on the Contract. USA Store Fixtures, LLC breached

               that Contract, through failed and refused performance, by not delivering goods as promised.

                                                               IV.



                                                                4




                                                        116                                                  131
()
                                                 ATTORNEYS' FEES
r"'
\J           As a result of the facts alleged above, it has become necessary for Defendant and Counter-

           Plaintiff to retain the services of Jan Woodward Fox, P.L.C., licensed and practicing attorney in

           Harris County, Texas, to defend against the claims brought by Plaintiff and Counter-Defendant

f.i
·~ ...i'
           herein and to prosecute its counterclaims herein. Jamie Genender is entitled to the recovery of

           her reasonable attorneys' fees incurred in said defense and prosecution, for which it now prays.

                                               C. PRAYER FOR RELIEF

           WHEREFORE, PREMESIS CONSIDERED, Defendant and Counter-Plaintiff prays for the

           following relief:

           (a) That Plaintiff take nothing from Defendant and Counter-Plaintiff;

           (b) An order dismissing with prejudice all of USA Store Fixtures' claims against Defendant and

            Counter-Plaintiff;

            (c) Actual damages;

            (d) Treble damages;

            (e) Attorney's fees;

            (f) Pre- and post -judgment interest; and also such other and further relief to which it may justly

            be entitled.



                                                                 Respectfully submitted,


                                                                 JAN WOODWARD Fox,
                                                                 A Professional Legal Corporation



                                                                 B9V~·
                                                                 (Signed with permission)

                                                             5




                                                      117                                                 132
···"''




                   Jan Woodward Fox
                   State Bar No. 07334500
                   The Lyric Centre
                   440 Louisiana, Suite 900
                   Houston, Texas 77002
                   (713) 623-8600 (telephone)
                   (713) 807-1758 (facsimile)

                   ATTORNEY FOR DEFENDANT AND
                   COUNTER-PLAINTIFF ,
                   JAMIE MICHELE GENENDER




               6




         118                                    133
'"j:
,(,.




                                     CERTIFICATE OF SERVICE

               I hereby certify that a true and correct copy of the foregoing instrument has been sent, by
       certified mail, return receipt request, and/or by regular U.S. mail, and/or by messeng~~ and/or by
       facsi · e transmission or electronically transmitted by the Court on the          ?o ~ day of
       --=;:z~£=:3~--' 2012, to the following counsel ofrecord:

       Jerrad Bloome
       Weycer, Kaplan, Pulaski & Zuber
       11 Greenway Plaza, Ste. 1400
       Houston, Texas 77046
       Facsimile: (713) 961-5341


                                                                                                  *

                                                    (Sigi;ied by permission)




                                                       7




----·--------'~"------------------                                                   _....,..,   _________
                                                  119                                                 134
APPENDIX 13




    120
PLAINTIFF: USASTORE FIXTURESLLC                             COURT NO. IN JUSTICE
                                                                     JUSTICEPRECINCT
VS.                                                                       POSITION1
                                                                          HARRISCOUNTY,TEXAS
DEFENDANT:JAIMEMICHELEGENEDER

                                                 ANSWER
The               denies being             indebted to the plaintiff in the sum of $10,000.

The Defendant did not purpose fully intended to deprive USA Store Fixtures from                   gain by
refusing payment on the credit card. The invoice (#10025) was paid in full by credit card. The
       went into dispute after several attempts were made by Defendant to have plaintiff replace
the damaged goods, ship the missing items and products from said order. (see attached)

The Defendant did not act outside her title. The Defendant, spoke with the company, placed the
order, received less than the order, broken parts and misc scraps of metal in a box. (see attached )

The Defendant did not defraud or slander the USA Store Fixtures company. The Defendant
contacted and attempted several times to give the Plaintiff the opportunity to fill the order as per
the invoice. They also stated they would replace the missing items and the damages verbally and in
an email. After several attempts made by the Defendant to the Plaintiff requesting a date when the
missing items and damaged items will be send, the President of the company, Larry Kirkwood
became very hostile. The Defendant asked for the items that were paid for, or an adjustment in the
bill. The          verbal attacked and threatened me. It was best at this time to try and resolve
this matter through the credit card company. (see attached) It was not until it was disputed with the
credit card company, that a law suit was filed.

The Defendant prays for relief that this citation/court case be dismissed, and the bill adjusted
accordingly to what the Defendant received, minus damaged            that are not usable at all, and
box of scrap metal.




PRINTNAME: JamieMichelleGenender
ADDRESS:220
(STREET)
      Lake
(CITY)  Lake
    Silver
(STATE)Wisconsin
(ZIP)53170
    2244898884
PHONE:
      No. H—0l—60(Rev. 01/01/2011)


Subscribed and sworn to before me, this the                 day of                    2011.
                                                                                  ,               -¤
                                                                                              .
Notary Public       / State of Wisconsin

Number of Pages




                                                      121                                              17
APPENDIX 14




    122
CV-Judgment for Defendant



                                                    Case
                                                      Number:
USA STORE                   LLC                                  §                 In the Justice
14538 KENNY ST                                                   §                                 Texas
HOUSTON, TX 77015-                                               §                 Precinct 3, Place 1
 laintiff§
vs.                                                                                14350 WALLISVILLE ROAD
JAIMEMICHELEGENDER                                                                 SUITE102
220 E LAKE ST                                                    §                                  TX 77049-4135
SILVER LAKE, WI 73170-


                                                       Judgment For Defendant
                                                            BeforetheCourt
This the 05/23/ 12 came on to be tried in its regular order the above-styled and numbered cause, wherein the above named Plaintiff(s)
and Defendant(s) came in person and/or by their             and              ready for       and neither party having demanded a jury, all
matters in controversy, of fact and of law, were submitted to the       sitting without a jury; and the pleadings, evidence and argument
of counsel having been heard by the Court, it is the opinion of the            that the Plaintiff should take nothing by his suit; that the
Defendant, go hence with his costs without day and that execution issue in Defendant’s behalf for his said costs.


           and signed on: 5/23/2012
                                                                      JUDGE MIKE PARROTT
                                                                      Justice of the Peace, Precinct 3, Place 1
                                                                      Harris County,




                                                                                                                             ·


                                                                                                              -




JUl5l-ICVJDCT41Page
                                                                                                                                      1 ot`1




                                                            123                                                                  67
APPENDIX 15




    124
                                                                                                     11
                                                                                              County

                                    CAUSENO. 1016718

USA STORE FIXTURES, LLC                    §                 IN THE COUNTY CIVIL COURT

VS.                                                                AT LAW NUMBER ONE (1)

JAMIE MICHELE GENENDER                                              HARRIS COUNTY, TEXAS

                                 [CONSOLIDATED           WITH]

                                        NO.1016719
                                    CAUSE
USA STORE FIXTURES, LLC                     §                IN THE COUNTY CIVIL COURT

VS.                                                                AT LAW NUMBER TWO (2)
                                            §
CRITTER STUFF, LLC                          §                       HARRIS COUNTY, TEXAS


             PLAINTIFF USA STORE FIXTURE’S ORIGINAL PETITION

       COMES        NOW,           USA STORE FIXTURES, LLC (“USA") and                       this

         Petition              of the acts of JAMIE MICHELE GENENDER and CRITTER

STUFF, LLC ("Defendants"); and in              thereof, will show the Court as follows:

                                       I. Introduction

       USA is in the business of selling used shelvingand            to businessesand individuals.

Defendants purchased shelving from USA. Defendants, after receipt of the merchandise,

disputed the credit charge and had the charge reversed. Defendants have failed to pay for the

merchandisewhich it is currentlyusing in its business.

                                     II. Discovery Level

       This matter should proceed under a Level l discovery plan under the Texas Rules of

Civil Procedure.




                                         125                                                    141
                                           III. Parties
                is USA Store Fixtures,LLC is a limited                  companyduly formedand
         underthelawsoftheStateofTexas.
authorized
                                              residentof Wisconsin
                                is an individual
              JamieMicheleGenender
       Defendant                                                andhas
already an appearance in this matter and can be served by serving her attomey of record.

       Defendant Critter Stuff, LLC is a limited liability company duly              and authorized

under the laws of the State of Wisconsin and has already made an appearance in this matter and

can be served by serving its attorney of record.
                                    IV. Venue and Jurisdiction

       This court has jurisdiction over this matter as it is an appeal from Justice Court and

within the jurisdictional limits of the Court. Venue is proper in Harris County as it is the proper

venue for the appeal as well as a substantialportion of the actions related to this matter occurred

in Harris County, Texas.V.

                                                   Facts

       On or about May 3, 20ll, Defendants entered into a contract by way of a purchase

order/invoicewith USA. Defendantsagreed to pay for the merchandise,and was well aware that

the merchandise was "used" and being sold "As-Is,                          Defendants received the

merchandise and are utilizing the merchandise. Despite the fact that the merchandise was not

returned and is continued to be used by Defendants, almost 2 months after receiving the

merchandise, Defendants         a                  on the credit card transaction. As a result of the

chargeback,Defendants never paid for the merchandisewhich it failed to return and continues to

utilize. The chargeback was not initiatedby Defendantsuntil almost a month after receipt of the

merchandisedfrom USA.




                                           126                                                      142
                                   VI. CausesofAction
          Contract
       USA and Defendantsentered into a                            for the purchase of goods.

USA performed its obligations under the contract. Defendants have breached the contract by

failing to pay for the goods pursuant to the contract. As a result, USA suffered damages for

whichit nowsues.
                             Fraud and Fraud in the Inducement

       Defendants made certain representations regarding payment for the goods that USA

delivered as inducement to USA to enter into the Contract.          USA relied upon those

representations,which were false, to its detriment. Defendantsmade those representationswith

the intent that USA rely upon them. As a result of the misrepresentationsmade by Defendants,

USA sufferedactual damagesfor which it now sues.

Quantum Meruit

       In the altemative, USA provided Defendants with goods for which Defendants were

aware that USA expected payment. Defendants are utilizingthe goods and have failed to pay for
the goods. As such, Defendants are unjustly enriched to USA’s detriment. USA has suffered

damages for which it now sues.Att0rneys’

                                                  Fees

       As a result of Defendants’ actions and inactions, USA retained legal counsel, and

pursuant to applicable statutes and common law, USA demands all reasonable attorneys’ fees

incurredin this Lawsuit.




                                              3




                                        127                                                 143
      WHEREFORE,                  USA STOREFIXTURES,LLC requeststhat Defendants
JAMIE MICHELE GENEDER be cited to                    and answer herein, and that upon        trial

hereof,Plaintiff havejudgment against Defendantsfor the following:

       1.     All actual, special and consequentialdamages incurredby Plaintiff;

       2.     Attorneys’ fees, including conditional awards in the event of an appeal;

       3.     Pre- and post-judgmentinterest at the maximum rate permitted by applicable law;

       4.     All costs of Court; and

       5.     Such other and further relief to which the Plaintiff may be justly entitled.

                                             Respectfullysubmitted,

                                             WEYCER, KAPLAN, PULASKI & ZUBER, P.C.


                                                           D.
                                                 JERRAD D. BLOOME
                                                 State Bar No. 24001755
                                                 Eleven GreenwayPlaza
                                                 Suite 1400
                                                 Houston, Texas 77046
                                                 Telephone:(713) 96l·9045
                                                 Facsimile: (713) 961-5341

                                        ATTORNEYS FOR USA STORE FIXTURES, LLC




                                                 4




                                           128                                                   144
                                        SERVICE
                               CERTIFICATE
       I hereby        that a true and correct copy of the                  Petition has been
forwarded via facsimile on September l l, 2012, to:

Ms.JanWoodwardFox
440 Louisiana,Suite 900
Houston, Texas 77002
(713) 807·l758 (facsimile)



                                                      By: /S/        D. Bl00me
                                                                JERRADD. BLOOME




                                                5




                                          129                                               145
APPENDIX 16




    130
                                 JUDGE MIKE PARROTT
                                                        PEACE
                                                      THE
                                          PRECINCT3,
                                                POSITION
                                                      1
                                                   TEXAS


14350WALLISVILLEROAD                                                            TEL713-450-2409
HOUSTON, TX 77049-4135                                                          FAX 713-451-8074




     5, 2012



StanStanart
       County Clerk
P O Box 1525
          Texas 7725 1-1525


USA STORE        LLC
VS:JAIME
      MICHELEGENDER

DearMr.

Enclosed please       the above referenced case that has been appealed by Plaintiff, USA STORE
FIXTURESLLC.

If you have any questions, please contact us at 713- 450-2409.

Yours very truly,




CivilDepartment

                                                                                  .
                                                                                   __




                                              131                                                  73
APPENDIX 17




    132
                                                                         1



 1                         REPORTER'S RECORD
                         VOLUME 4 OF 8 VOLUME
 2                  TRIAL COURT CAUSE NO. 1016718 FILED IN
                                              14th COURT OF APPEALS
                  APPELLATE COURT NO. 14-14-00048-CV
                                                     HOUSTON, TEXAS
 3
                                                  3/31/2014 12:31:43 AM
 4   USA STORE FIXTURES,            :   IN THE    CHRISTOPHER
                                                 COUNTY    CIVIL  A. PRINE
                                                                      COURT
     L.L.C.                         :                      Clerk
 5                                  :
     VS.                            :   AT LAW NUMBER ONE (1) OF
 6                                  :
     JAMIE GENENDER and             :
 7   CRITTER STUFF, L.L.C.          :   HARRIS COUNTY, T E X A S

 8

 9
10

11               ___________________________________

12                        TRIAL PROCEEDINGS
                 ___________________________________
13

14

15
16              On the 22nd day of August, 2013, the following

17   proceedings came on to be held in the above-entitled and

18   numbered cause before the Honorable Debra Ibarra

19   Mayfield, Judge Presiding, held in Houston, Harris

20   County, Texas.

21              Proceedings reported by computerized stenotype

22   machine.

23

24
25



                LETTIE B. WITTER, CSR       713-368-6613

                              133
                                                                   143



 1       Q    You don't remember posting a negative comment?

 2       A    No, I don't.

 3       Q    Okay.     If you did post a negative comment would

 4   that be the action --

 5                    MS. FOX:     Objection, Your Honor.

 6                    THE COURT:       Yeah, we talked about it.

 7                    MR. BLOOME:       Your Honor, at this time we

 8   would like to show the video that is Defendant's 35,

 9   which is the video that was taken by the private

10   investigator of the store.

11                    THE COURT:       Okay.   No audio.

12                    MR. BLOOME:       No audio.   I can make sure

13   there's no audio.

14                    (Video, Defendant's Exhibit No. 35,

15                    published without audio.)

16                    THE COURT:       You can go back on the record.

17       Q    (By Mr. Bloome)          And, again, Ms. Genender --

18   Genender, I'm sorry.        You believe you rejected the

19   entire shipment on the day of delivery, correct?

20       A    Yes, I do.

21       Q    And you believe a reasonable time for USA Store

22   Fixtures to have come and picked up that product after

23   the rejection would have been immediately?

24       A    They could have picked it up any time.            It was

25   ready any time they wanted it.



              LETTIE B. WITTER, CSR              713-368-6613

                                 134
                                                           190



 1   THE STATE OF TEXAS
 2   COUNTY OF HARRIS
 3       I, LETTIE B. WITTER, Official Court Reporter in and
 4   for County Court at Law No. 1 of Harris, State of Texas,
 5   do hereby certify that the above and foregoing contains
 6   a true and correct transcription of all portions of
 7   evidence and other proceedings requested in writing by
 8   counsel for the parties to be included in this volume of
 9   the Reporter's Record in the above-styled and numbered
10   cause, all of which occurred in open court or in
11   chambers and were reported by me.
12       I further certify that this Reporter's Record of the
13   proceedings truly and correctly reflects the exhibits,
14   if any, offered by the respective parties.
15       I further certify that the total cost for the
16   preparation of this Reporter's Record is $5,244.50 and
17   was paid/will be paid by Jan Woodward Fox.
18        WITNESS MY OFFICIAL HAND on this the 30th day of
19   March, 2014.
20

21                          /s/ Lettie B. Witter __________
                          Lettie B. Witter, CSR 6772
22                        Expiration Date: 12/31/2014
                          Official Court Reporter
23                        County Civil Court at Law No. 1
                          Harris County, Texas
24                        201 Caroline Street, 5th Floor
                          Houston, Texas 77002
25                        Telephone (713) 368-6613



              LETTIE B. WITTER, CSR      713-368-6613

                           135
