Restrepo v. Alliance Riggers & Constructors, Ltd.

• Decision Date: 22 September 2017
• Docket Number: No. 08-15-00348-CV,08-15-00348-CV
• Parties: Linda S. RESTREPO and Carlos E. Restrepo d/b/a Collectively RDI Global Services and R & D International, Appellants, v. ALLIANCE RIGGERS & CONSTRUCTORS, LTD., Appellee.
• Court: Texas Court of Appeals

538 S.W.3d 724

Linda S. RESTREPO and Carlos E. Restrepo d/b/a Collectively RDI Global Services and R & D International, Appellants,

v.ALLIANCE RIGGERS & CONSTRUCTORS, LTD., Appellee.

No. 08-15-00348-CV

Court of Appeals of Texas, El Paso.

September 22, 2017

ATTORNEY FOR APPELLEE: Hon. R. Wayne Pritchard, 300 East Main, Ste. 1240, El Paso, TX 79901.

APPELLANTS PRO SE: Linda S. And Carlos E. Restrepo, P.O. Box 12066, El Paso, TX 79912.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

YVONNE T. RODRIGUEZ, JusticeAppellants, Linda S. Restrepo and Carlos E. Restrepo d/b/a Collectively RDI Global Services and R & D International, appeal from a judgment awarding damages in the amount of $125,775 to Appellee, Alliance Riggers & Constructors, Ltd. (Alliance Riggers).¹ We affirm.

FACTUAL SUMMARY

Alliance Riggers has been in operation since 1978, and its business includes crane service as well as pre-cast and steel erection. On March 11, 2011, Alliance Riggers' president, Phillip H. Cordova, met with Linda S. Restrepo and Carlos E. Restrepo to discuss the production of a corporate marketing video and creation of a webpage for Alliance Riggers. The Restrepos operated a company known as RDI Global Services. According to Cordova, Ms. Restrepo represented that she had a Ph.D. and they were experts in producing corporate marketing videos and creating webpages. From this conversation, Cordova understood that Appellants had created numerous webpages. Based on these representations, Alliance Riggers entered into a written contract with Appellants to produce a five-minute high definition corporate marketing video and an e-commerce internet platform and mount the corporate marketing video on the platform. Alliance Riggers agreed to pay $18,500 for the corporate marketing video² and $4,500 for the webpage³ ($23,000 total). Cordova testified that the contract he signed on behalf of Alliance Riggers had been prepared by the Restrepos. In the contract, Ms. Restrepo's name is shown as "Dr. Linda S. Restrepo." After entering into the contract with Alliance Riggers, Appellants purchased the domain name, "allianceriggersandconstructors.com" in their own name. Alliance Riggers paid Appellants the money due under the contract except for the final payment of $1,000, and Appellants launched the webpage before Alliance Riggers saw or approved it. The webpage contained a statement that it was designed by RDI Global. The webpage was unacceptable to Cordova because it contained inaccurate information, it would not load properly, and it did not have Alliance Riggers' phone number under the contact information. When potential customers called the phone number shown on the webpage, they were directed to crane companies other than Alliance Riggers. Because Appellants maintained that they owned the webpage, Alliance Riggers could not correct the errors, and if the company wanted to make any changes to the webpage, Alliance Riggers had to contact Appellants and pay them additional sums of money.

The corporate marketing video and approximately 99 copies were delivered to Alliance Riggers' facility in a box by a runner. The label on the video stated "2012 RDI Global Services" and the video itself reflects that it was created and produced by RDI Global Services. Upon viewing the video, Cordova found it unacceptable because it contained factual misstatements and errors, it was not professionally done, the video made it appear that the cranes were being operated in an unsafe manner, and the video used the wrong logo for the company. Cordova subsequently learned that Ms. Restrepo did not have a Ph.D. and Appellants had previously created only one webpage.

On May 11, 2012, Alliance Riggers sent Appellants a letter demanding that they cease using its trademark through the webpage. Appellants did not comply with the demand, and Alliance Riggers filed suit asserting trademark infringement, breach of contract, and violation of the DTPA. Appellants answered and filed a counterclaim against Alliance Riggers alleging a suit on sworn account and breach of contract.

A jury found that Appellants breached the contract, knowingly engaged in an unconscionable action or course of action that was a producing cause of damages to Alliance Riggers, and knowingly engaged in a false, misleading, or deceptive act or practice that Alliance Riggers relied on to its detriment that was a producing cause of damages to Alliance Riggers. The jury awarded actual damages to Alliance Riggers in the amount of $34,000 for breach of contract and the DTPA violations, additional damages of $26,000 because the conduct which formed the basis of the DTPA violations was committed knowingly, and attorney's fees in the amount of $60,250.00 for trial, and conditional awards in the event of an appeal to the court of appeals and the Texas Supreme Court.⁴ The jury also found that Appellants infringed the common law service mark of Alliance Riggers. The trial court entered judgment in favor of Alliance Riggers based on the jury's verdict, awarding total damages in the amount of $125,775.00. The court also permanently enjoined Appellants from using Alliance Riggers' logo and the name "allianceriggersandconstructors.com." Appellants timely filed a motion for judgment notwithstanding the verdict, but the trial court did not grant it.

SUFFICIENCY OF THE EVIDENCE—DTPA

In Issue One, Appellants contends that the evidence does not support the jury's answers to the jury questions pertaining to the DTPA violations. We have construed this issue as challenging the legal and factual sufficiency of the evidence supporting the jury's verdict with respect to the DTPA violations.

Multifarious Issue

Issue One is multifarious because Appellants have raised numerous grounds of error in addition to the legal and factual sufficiency arguments. See In re S.K.A. , 236 S.W.3d 875, 894 (Tex.App.—Texarkana 2007, pet. denied) (observing that a multifarious issue or point of error is one that raises more than one specific ground of error). Courts may disregard any assignment of error that is multifarious. Rich v. Olah , 274 S.W.3d 878, 885 (Tex.App.—Dallas 2008, no pet.). Alternatively, courts may consider a multifarious issue if it can determine, with reasonable certainty, the error about which the appellant wants to complain. Id. In considering Appellants' brief, we also keep in mind that the Rules of Appellate Procedure require a brief to contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. TEX.R.APP.P. 38.1(i). "Bare assertions of error, without argument or authority, waive error." McKellar v. Cervantes , 367 S.W.3d 478, 484 n.5 (Tex.App.—Texarkana 2012, no pet.) ; see Fredonia State Bank v. General American Life Insurance Company , 881 S.W.2d 279, 284-85 (Tex. 1994).

Issue One challenges the sufficiency of the evidence to support the jury's findings regarding breach of contract, but Appellants' brief lists twelve sub-issues, ten of which complain about alleged trial error.⁵ The sub-issues include arguments that Alliance Riggers failed to comply with the notice requirements of the DTPA, the trial court made erroneous evidentiary rulings, the trial court erred by granting Alliance Riggers' motion in limine, the jury questions and charge were "framed" by a constitutionally disqualified judge, Linda Restrepo was never served, and the trial court lacked subject matter jurisdiction. These complaints are not raised by separate points of error or issues. Consequently, sub-issues B, D, E, F, G, H, I, K, and L will be disregarded. We will, however, address Appellants' sufficiency arguments and their complaint that Alliance Riggers failed to serve Ms. Restrepo.

Failure to Serve Ms. Restrepo

In sub-issue J, Appellants argue that the judgment must be reversed because Ms. Restrepo was never served with citation. This sub-issue is without merit because Ms. Restrepo entered a general appearance by obtaining a ruling on her motion to dismiss Alliance Riggers' suit for want of prosecution before the trial court ruled on her special appearance.

Alliance Riggers filed its petition on June 20, 2012. On October 29, 2012, Appellants filed a motion to dismiss and a motion to quash service of citation. The motion to dismiss is titled "VERIFIED MOTION TO DISMISS WITH PREJUDICE AGAINST THE PLAINTIFF," and it seeks dismissal of the suit on the ground that it is frivolous. In this motion, Appellants include a single sentence in which they assert that they are making a special appearance pursuant to TEX.R.CIV.P. 120a for the purpose of filing the motion to dismiss.⁶ On November 21, 2012, Appellants filed a motion to dismiss Alliance Riggers' suit for want of prosecution. The trial court conducted a hearing on the motion and denied it on December 7, 2012. The trial court denied Appellants' special appearance more than five months later on May 31, 2013. We affirmed the denial of the special appearance on February 28, 2014. See Linda S. Restrepo and Carlos E. Restrepo d/b/a Collectively RDI Global Services and R & D International v. Alliance Riggers & Constructors, Ltd. , 441 S.W.3d 453, 455 (Tex.App.—El Paso 2014, no pet.).

A party waives the absence of personal jurisdiction by making a general appearance in the case or by failing to timely object to the court's jurisdiction. Reata Const. Corp. v. City of Dallas , 197 S.W.3d 371, 379 (Tex. 2006). A party enters a general appearance when he (1) invokes the judgment of the court on any question other than the court's jurisdiction, (2) recognizes by his acts that an action is properly pending, or (3) seeks affirmative action from the court. Trenz v. Peter Paul Petroleum Co. , 388 S.W.3d 796, 800 (Tex.App.—Houston [1st Dist.] 2012, no pet.).

A special appearance must be made by sworn motion filed prior to a motion to transfer venue or any other plea, pleading or motion, but other pleas, motions, and instruments can be contained in the same...