Chair King, Inc. v. Gte Mobilnet of Houston, No. 14-00-00711-CV.

CourtCourt of Appeals of Texas
Writing for the CourtKem Thompson Frost
Citation135 S.W.3d 365
PartiesThe CHAIR KING, INC., Chair King, S.A., Inc., Jerome Kosoy, M.D., M.E. Ford and Associates, Beautique, Inc., Discovery Services of Texas, Inc., Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., Jeffrey K. Musker, D.C., and Pope Escrow Company, Appellants v. GTE MOBILNET OF HOUSTON, INC. and Chick-Fil-A, Inc., Appellees.
Decision Date06 May 2004
Docket NumberNo. 14-00-00711-CV.
135 S.W.3d 365
The CHAIR KING, INC., Chair King, S.A., Inc., Jerome Kosoy, M.D., M.E. Ford and Associates, Beautique, Inc., Discovery Services of Texas, Inc., Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., Jeffrey K. Musker, D.C., and Pope Escrow Company, Appellants
v.
GTE MOBILNET OF HOUSTON, INC. and Chick-Fil-A, Inc., Appellees.
No. 14-00-00711-CV.
Court of Appeals of Texas, Houston (14th Dist.).
May 6, 2004.

[135 S.W.3d 369]

Julius Glickman, Thomas C. Wright and Chad M. Forbes, Houston, TX, for appellants.

Anne Cohl Gravelle, Kimberly Marie Phillips, Steve M. Zager, Douglas D. Turek, Houston, Jill Warren, Austin, TX, for appellees.

Panel consists of Justices YATES, HUDSON, and FROST.

OPINION

KEM THOMPSON FROST, Justice.


We overrule the motions for rehearing filed by appellants and by appellee GTE Mobilnet of Houston, Inc. We withdraw the opinion issued in this case on January 29, 2004, and we issue the following opinion in its place.

This is a complicated case1 in which we address several interesting and multi-faceted issues under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Appellants, plaintiffs below, challenge the trial court's judgment dismissing their private damage claims under the TCPA and

135 S.W.3d 370

their common-law claims and granting appellees/defendants' no-evidence and traditional motions for summary judgment. We conclude that the trial court correctly granted summary judgment as to appellants' common-law claims, all of their claims against appellee Chick-Fil-A, Inc. ("Chick-Fil-A"), and the TCPA claims of appellants The Chair King, Inc., Chair King, S.A., Inc., M.E. Ford and Associates, Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., and Pope Escrow Company. However, we reverse the trial court's judgment as to the TCPA claims of appellants Jerome Kosoy, M.D., Beautique, Inc., Discovery Services of Texas, Inc., and Jeffrey K. Musker, D.C. against appellee GTE Mobilnet of Houston, Inc. ("GTE Mobilnet") and remand these claims for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellants The Chair King, Inc., Chair King, S.A., Inc., Jerome Kosoy, M.D., M.E. Ford and Associates, Beautique, Inc., Discovery Services of Texas, Inc., Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., Jeffrey K. Musker, D.C., and Pope Escrow Company (collectively referred to herein as the "Recipients") allege they are individuals or entities engaged in commercial, professional, or personal matters in and around various major metropolitan areas of Texas, including Houston, Dallas, San Antonio, and Austin. The Recipients assert that, from as early as 1992, they have received numerous unsolicited fax advertisements on their fax machines.

Some of the fax communications in question were disseminated by AdverFax, a now defunct company that was formerly in the business of sending out fax advertisements for other businesses.2 Adver-Fax targeted recipients whom it perceived would be likely to buy its clients' products or services and then sent advertisements or coupons via fax to these targets. To facilitate its operations, Adver-Fax divided Houston into zones, each of which contained facsimile numbers for that geographic area. AdverFax maintained a database containing fax numbers, sorted according to zone, which enabled AdverFax's customers to send faxed advertisements to all of the fax numbers in any chosen geographic zone. With its customers' authorization, AdverFax sent fax advertisements to the numbers in its database pertaining to the requested zones. The summary-judgment evidence shows that Adverfax sent out large numbers of faxed advertisements for its customers' products and services.

In 1995, the Recipients filed suit against GTE Mobilnet in the United States District Court for the Sourthern District of Texas (the "Federal Suit"). Although the Recipients named several defendants (including GTE Mobilnet) in that suit, Chick-Fil-A was not among them. The United States Court of Appeals for the Fifth Circuit ultimately determined that the federal court lacked subject-matter jurisdiction. See Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir.1997). The Federal Suit was then dismissed.

The Recipients filed this case in Harris County District Court in 1995. On March 11, 1998, the Recipients added GTE Mobilnet and Chick-Fil-A (collectively referred to herein as the "Advertisers") to this case, suing Chick-Fil-A for the first time. The Recipients alleged that numerous fax-advertising companies (including AdverFax) as well as the Advertisers and many other businesses who also retained these faxadvertising companies had sent unsolicited

135 S.W.3d 371

fax advertisements to the Recipients.3 The Recipients asserted the following claims: (1) a private damage claim under the TCPA; (2) negligence; (3) negligence per se; (4) invasion of privacy; (5) trespass to chattels; and (6) gross negligence. The Recipients also alleged that the defendant advertisers had engaged in a conspiracy with their respective fax-advertising companies to send unsolicited fax advertisements.

The defendants filed a joint motion for summary judgment asserting the following grounds:

(1) The damages claims under the TCPA are barred because, at the time the faxes in question were sent, Texas had not authorized the filing of private damage claims under the TCPA in Texas courts;4

(2) The TCPA does not apply to any faxes sent solely within Texas;

(3) If the TCPA does apply to intrastate faxes, then Congress lacked the power to enact the TCPA under the Commerce Clause of the United States Constitution;

(4) The TCPA's minimum damages provision violates due process under the United States and Texas Constitutions because it is grossly disproportionate to any damage suffered by the Recipients;

(5) The TCPA violates the defendants' free-speech rights under the United States and Texas Constitutions;

(6) The TCPA violates the Equal Protection Clause of the United States Constitution because it unfairly discriminates against fax advertisements based on the content of their protected speech;

(7) The receipt of unsolicited fax advertisements does not constitute an invasion of privacy;

(8) The Recipients do not possess any right to privacy;

(9) Receipt of unsolicited fax advertisements does not constitute a trespass to chattels;

(10) The conduct about which the Recipients complain, as a matter of law, does not constitute negligence, gross negligence or negligence per se; and

(11) Because all of the Recipients' underlying claims fail, as a matter of law, their conspiracy claims also fail.

After the trial court denied this joint motion, GTE Mobilnet filed a separate motion for summary judgment and a supplemental motion asserting the following grounds:

(1) GTE Mobilnet allegedly did not send the faxes in question to the Recipients; rather they were sent by independently owned and operated agents;

(2) Jerome Kosoy, M.D. is a GTE Mobilnet customer so his consent to receive fax advertising from GTE Mobilnet is allegedly implied;

(3) The Recipients' claims are barred by the statute of limitations;

(4) There is no evidence GTE Mobilnet sent unsolicited fax advertisements to any of the Recipients; and

135 S.W.3d 372

(5) There is no evidence to support the essential elements of the Recipients' common-law claims.

Chick-Fil-A also filed an individual motion for summary judgment and asserted the following grounds:

(1) The two-year statute of limitations under section 16.003 of the Texas Civil Practice and Remedies Code bars all of the Recipients' claims;

(2) Chick-Fil-A did not use its fax machines to send faxes to the Recipients and there was no agency relationship between Chick-Fil-A and the fax-advertising companies that sent faxes to the Recipients;

(3) There is no evidence to support the essential elements of the Recipients' common-law claims; and

(4) Chick-Fil-A is not liable for the actions of its independent franchisees.

The Recipients filed responses to both the joint motion for summary judgment and the individual motions, and they also filed their own motion for a partial summary judgment relating to certain aspects of their TCPA claims against certain defendants, including the Advertisers.

After granting summary-judgment motions dismissing the Recipients' claims against certain defendants, the trial court reconsidered its ruling on the joint motion for summary judgment, granted the joint motion, and also granted the individual motions for summary judgment of the remaining defendants, including the Advertisers. The trial court also denied the Recipients' motion for partial summary judgment. Both in the trial court and on appeal, the Recipients settled with various defendants, so that only GTE Mobilnet and Chick-Fil-A remain as defendants/appellees in this case.

On appeal, the Recipients assert the trial court erred by granting the joint motion for summary judgment and the individual motions of GTE Mobilnet and Chick-Fil-A as well as by denying the Recipients' motion for partial summary judgment.

II. STANDARDS OF REVIEW

In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the non-movant's favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). If the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id.

In reviewing a no-evidence motion for summary judgment, we ascertain whether the non-movant produced any evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Id. We take as...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT