Holmes v. Motor Home Specialist

• Decision Date: 30 August 2022
• Docket Number: 3:21-cv-00934-G-BT
• Parties: WILBERT R. HOLMES Plaintiff, v. MOTOR HOME SPECIALIST, Defendant.
• Court: U.S. District Court — Northern District of Texas

WILBERT R. HOLMES Plaintiff, v. MOTOR HOME SPECIALIST, Defendant.

No. 3:21-cv-00934-G-BT

United States District Court, N.D. Texas, Dallas Division

August 30, 2022

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

Before the Court are Defendant RV Retailer of Texas, LLC d/b/a Motor Home Specialist's (MHS) Corrected Motion for Summary Judgment (ECF No. 11) and MHS's Motion to Declare Plaintiff a Vexatious Litigant (ECF No 12).^[1] For the following reasons, the Court should grant-in part-MHS's summary judgment motion and dismiss all of pro se Plaintiff Wilbert R Holmes's claims and MHS's counterclaims for fraud and conversion. The Court should deny the summary judgment motion with respect to MHS's counterclaims for breach of contract and violation of the Texas Theft Liability Act (TTLA). The Court should also grant MHS's request to declare Holmes a vexatious litigant and bar him from filing in the Northern District of Texas any civil action against MHS related to the events giving rise to this litigation.

Background

On October 2, 2019, Holmes, a citizen of Nevada, responded to MHS's advertisement for the sale of a 1998 Tiffin Motorhome Allegro Bus 3 (the “bus”) and paid MHS a $1,000 deposit. Def.'s Corr. Mot. Summ. J. Ex. A-5 (ECF No. 111). One week later, Holmes entered into a sales agreement with MHS for the bus. Id. at Ex. A-2. Holmes paid $1,449.00 towards the purchase price using a credit card and provided MHS a cashier's check for $16,088.77 to cover the remaining balance. Id. at Ex. A-6. In addition to signing the sales agreement, Holmes signed a Dealer's Disclosure and Buyer's Guide providing that MHS sold him the bus “as is” and “with no warranty, expressed or implied.” Id. at Ex. A-3, A-4. Holmes then took possession of the bus in Texas.

On October 10, the day after Holmes purchased the bus, Holmes filed an affidavit, with his bank, swearing the cashier's check the bank issued to MHS was lost or stolen. Id. at Ex. B. On October 15, Holmes emailed MHS requesting it send him the title to the bus as soon as possible. Id. at Ex. A-7. Relying on its receipt of the cashier's check and unaware of the affidavit to Holmes's bank, MHS sent Holmes the certificate of title via overnight mail that same day. Id. at Ex. A-8. When Holmes's bank informed MHS that it issued a “stop payment” on the cashier's check, id. at Ex. A-8, MHS reported the bus stolen. Id. at p. 4 § D (ECF No. 11).

A flurry of legal proceedings ensued. On November 17, 2020, a Texas state judge issued a warrant for Holmes's arrest for violating section 31.03(e)(4)(A) of the Texas Penal Code (theft). Id. at Ex. C (ECF No. 11-1). And on March 29, 2021, a grand jury indicted Holmes for theft of the bus. Id. at Ex. E. Holmes also filed at least two civil lawsuits against MHS in Nevada, asserting claims under state and federal lemon laws and for intentional infliction of emotion distress (IIED) based on his allegation that MHS sold him a “dangerous and unroadworthy” motorhome.

Shortly before the grand jury returned the indictment, Holmes-proceeding pro se-filed this case in the 249th Judicial District Court of Johnson County, Texas. In his verified pleading, Holmes alleges MHS sold him the bus in “dangerous and un-roadworthy condition” and asserts claims against MHS for “bodily endangerment,” violations of the Texas Lemon Law, and IIED. (ECF No. 12). MHS answered Holmes's lawsuit in Texas state court; MHS denied all of Holmes's claims and asserted counterclaims against Holmes for fraud, breach of contract, conversion, and violation of the TTLA. (ECF No. 1-3). On April 23, 2021, MHS timely removed the case to federal court on the basis of diversity jurisdiction. (ECF No. 1).

Approximately three months later, on July 20, Holmes paid the remaining balance owed to MHS. Id. at Ex. G, G-1.

MHS then filed the two pending motions. By its summary judgment motion, MHS seeks (i) dismissal of all of Holmes's claims, (ii) dismissal of MHS's counterclaims for fraud and conversion, (iii) summary judgment in MHS's favor on its counterclaims for breach of contract and violation of the TTLA, and (iv) an award of taxable court costs, pre- and post-judgment interest, and the maximum penalty permitted under section 134.005(1) of the Texas Civil Practice and Remedies Code. By its motion to declare Holmes a vexatious litigant, MHS seeks a pre-filing injunction that requires Holmes to obtain court permission before filing any lawsuit against MHS or its employees in any federal district court in the state of Texas. Holmes did not file a response to either motion.

Legal Standards and Analysis

I. MHS's Summary Judgment Motion

Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the initial burden of showing the absence of a genuine issue for trial. Duffy v. Leading Edge Prods.,Inc., 44 F.3d 308, 312 (5th Cir. 1995) (citation omitted). The movant can satisfy its burden by demonstrating that there is an absence of evidence to support the nonmoving party's case, which the nonmovant bears the burden of proving at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to claims or defenses upon which the movant bears the burden of proof at trial, the movant “must establish ‘beyond peradventure all of the essential elements of the claim.'” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp. 943, 962 (N.D. Tex. 1995) (quoting Fontenot v. Upjohn Co., 78 F.2d 1190, 1194 (5th Cir. 1986)). This means the movant must demonstrate there are no genuine and material disputes and that it is entitled to summary judgment as a matter of law. Martin v.Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003).

Once the movant meets its initial burden, the nonmovant must show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992) (citation omitted). The parties may satisfy their respective burdens “by tendering depositions, affidavits, and other competent evidence.” Topalian v.Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992) (citing Int'l Shortstop, Inc. v. Rally's, 939 F.2d 1257, 1263 (5th Cir. 1991); Fed.R.Civ.P. 56(e)). All evidence must be viewed in the light most favorable to the party opposing the summary-judgment motion. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993) (citing Reid v. State FarmMut. Auto. Ins., 784 F.2d 577, 578 (5th Cir. 1986)).

The party opposing the summary-judgment motion must identify specific evidence in the record and state the precise manner in which that evidence supports the party's claim. Esquivel v. McCarthy, 2016 WL 6093327, at *2 (N.D. Tex. Oct. 18, 2016) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1988)). “Rule 56 does not impose a duty on the court to ‘sift through the record in search of evidence' to support the nonmovant's opposition to the motion for summary judgment.” Id. (citing Ragas, 136 F.3d at 458; Skotak v. Tenneco Resins,Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)).

A. MHS is entitled to summary judgment on all of Holmes's claims because he abandoned his claims by failing to respond to MHS's summary judgment motion.

It is well established in this Circuit that when a plaintiff fails to defend a claim in response to a motion to dismiss or motion for summary judgment, the claim is deemed abandoned. Mason v. AT&T Pension Benefit Plan, 2021 WL 965923, at *4 (N.D. Tex. Feb. 18, 2021) (Rutherford, M.J.), rec, adopted, 2021 WL 963756 (N.D. Tex. Mar. 15, 2021) (Fish, J.); see also Scales v. Slater, 181 F.3d 703, 708 n. 5 (5th Cir. 1999) (reasoning that the plaintiff abandoned her claim by failing to contest defendant's arguments for dismissal of that claim). Here, Holmes failed to respond to MHS's summary judgment motion. He did not dispute MHS's arguments; nor did he tender any competent evidence to show that summary judgment is not proper or identify specific evidence in the record and state the precise manner in which that evidence supports his claims. Accordingly, the Court should grant summary judgment in MHS's favor on all of Holmes's claims because he has abandoned his claims. Gray v. Wal-Mart Stores Tex., LLC, 2020 WL 7327994, at *4 (N.D. Tex. Nov. 6, 2020) (Rutherford, J.), rec. adopted, 2020 WL 7322737 (N.D. Tex. Dec. 11, 2020) (“Because Plaintiff has offered no evidence raising a material fact issue as to any element of her . . . claim-indeed, she has not responded or offered any evidence [at] all-the Court finds that Plaintiff has abandoned her claim . . . .”); Arias v. Wells Fargo Bank, N.A., 2019 WL 2770160, at *2 (N.D. Tex. Jul. 2, 2019) (determining that the plaintiff abandoned his claim by failing to respond to the defendant's motion for summary judgment).

B. Alternatively, MHS is entitled to summary judgment on Holmes's claim for “bodily endangerment” because it is not a legally recognized cause of action under Texas Law.

Bodily endangerment is not a cognizable civil claim under Texas law. See Emesowum v. Zeldes, 2016 WL 3579232, at *8 (W.D. Tex. June 27, 2016) (“As to [plaintiff's] claim for ‘Texas common law . . . reckless endangerment,' no such claim exists.”), aff'd, 697 Fed.Appx. 386 (5th Cir. 2017). Therefore, the Court should grant MHS's summary judgment motion as to Holmes's bodily endangerment claim. Sw. Materials Handling Co. v. Nissan Motor Co., 2000 WL 1664160, at *6 (N.D. Tex. Nov. 3, 2000) (holding Defendants entitled to summary judgment for Plaintiff's “not legally cognizable” claim).

Even if the Court liberally construed Holmes's pro se pleading as asserting a claim for...