Cause No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS. MARTIN GREENSTEIN, Appellant

Transcription

1 Cause No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS MARTIN GREENSTEIN, Appellant v. CURTIS LEO BAGGETT and BART BAGGETT, Appellees Appealed from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC A BRIEF OF APPELLEE BART BAGGETT E. Renee Crenshaw Law Office of E. Renee Crenshaw State Bar No P.O. Box Plano, Texas Telephone: (214) Fax: (214) ATTORNEY FOR APPELLEE BART BAGGETT

2 LIST OF PARTIES The following is a complete list of all parties to this action: Parties Attorneys in Trial Court APPELLANT Mr. Martin Greenstein Diamond Pantaze, P.C North Central Expressway High Hollows, No. 225 Suite 109 Dallas, Texas Box. No. 167 Dallas, Texas APPELLEES Curtis Leo Baggett, Pro se 533 Park Lane Richardson, Texas Bart Baggett E. Renee Crenshaw 5419 Hollywood Blvd, Suite C381 P.O. Box Los Angeles, CA Plano, Texas i

3 TABLE OF CONTENTS List of Parties and Counsel. Table of Contents Index of Authorities i ii iii Appellant s Brief. 1 Statement of the Case. 2 Issues.. 3, 4 Statement of the Facts 5 Summary of the Argument. 6 Argument and Authorities.. 7 Prayer. 13 Certificate of Delivery. 14 Appendix.. 15 ii

4 INDEX OF AUTHORITIES CASES PAGE Dir., State Employees Workers Comp. Div. v. Evans, 889 S.W.2d 266 Tex. 1994) Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71 (Tex.App.-Houston [14 th Dist.] 2007, pet. Denied). 7 Fort Bend City v. Wilson, 825 S.W.2d 251, (Tex.App. Houston [14 th Dist.] 1992, no writ). 7 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 231 (Tex. 1985), cert. denied, 476 U.S (1986) 8, 11 Baca v. Rubakaba, No CV (TC# ), El Paso [346 th Dist] 8, Royalton Condominium, LP v. Albright, Memorandum Opinion No CV (Tex.App.-Houston [1 st Dist.] October 8, 2009).. 12 RULES Tex. R. Civ. P , 6, 8,10, 11 iii

5 iv

6 Cause No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS MARTIN GREENSTEIN, Appellant v. CURTIS LEO BAGGETT and BART BAGGETT, Appellees Appealed from the County Court at Law No. 1 Dallas County, Texas Trial Court Cause No. CC A BRIEF OF APPELLEE BART BAGGETT TO THE HONORABLE COURT: Appellee Bart Baggett submits his brief. In order to maintain consistency with Appellant s brief, Appellee Bart Baggett will be referred to as Defendant Bart Baggett, Appellee Curtis Baggett will be referred to as 1

7 Defendant Curtis Baggett and Appellant Martin Greenstein will be referred to as Plaintiff Martin Greenstein. STATEMENT OF THE CASE Plaintiff Martin Greenstein (hereinafter Plaintiff ) sued Defendant Bart Baggett d/b/a/ Optic Measurements, Inc. and Defendant Curtis Baggett d/b/a Optic Measurements, Inc. seeking declaratory relief and requesting that the court find that Optic Measurements, Incorporated and other entities were the mere alter egos of Curtis Baggett. (CR. 37-CR. 41). Plaintiff asserted that Defendant Curtis Baggett was a judgment debtor of the Plaintiff. (CR. 40). Plaintiff filed an Original Petition for Declaratory Relief. Plaintiff subsequently filed a First Amended Petition for Declaratory Relief, a Second Amended Petition for Declaratory Relief and finally, a Third Amended Petition for Declaratory Relief and Request for Disclosure. (CR. 37-CR. 41). Thereafter, Defendant Bart Baggett filed an Original Answer, Motion to Dismiss, Motion for Sanctions and Objections to Service on January 5, 2009, asserting that Plaintiff s lawsuit was against Curtis Baggett who Plaintiff alleged was acting as the alter ego of Optic Measurements, Inc., not Bart Baggett (CR. 66-CR. 68 and CR. 38-CR. 40). 2

8 In addition to this, Defendant Bart Baggett rightfully argued that Plaintiff had failed to assert a cause of action against him, but instead, Plaintiff alleged that Curtis Baggett was acting as the alter egos of Optic Measurements, Inc. and other entities. (CR. 38-CR. 40) (Emphasis added). Further, Defendant Curtis Baggett filed an Answer to Plaintiff s Second and Third Amended Petitioner and a Motion to Strike on December 2, 2008 (CR. 59- CR. 65). On March 6, 2009, after having read the parties motions and after having heard the arguments of the parties and counsel, the trial court judge dismissed Plaintiff s claims against Bart Baggett and Bart Baggett d/b/a Optic Measurements, Inc. (CR. 117 and Appellee Bart Baggett s Exhibit 1) and Curtis Baggett (CR. 145 and Appellee Bart Baggett s Exhibit 2). Plaintiff then filed a Motion for New Trial on April 6, 2009 (CR CR. 150), however, Plaintiff s Motion was untimely and the court denied Plaintiff s motion on May 8, (CR. 179 and Defendant Bart Baggett s Exhibit 3). Finally, Plaintiff filed a Notice of Appeal on June 4, 2009 (CR. 4). ISSUES PRESENTED ISSUE ONE: The Trial Court did not err in granting Curtis Baggett s Motion to Dismiss with prejudice Plaintiff s suit against him, for failure to 3

9 state a cause of action, because such action is not barred by Rule 90 of the Texas Rules of Civil Procedure. ISSUE TWO: The Trial Court did not err in granting Bart Baggett s Motion to Dismiss with prejudice Plaintiff s suit against him, for failure to state a cause of action, because such action is not barred by Rule 90 of the Texas Rules of Civil Procedure. ISSUE THREE: The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Curtis Baggett. ISSUE FOUR: The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Bart Baggett. (The remainder of this page was intentionally left blank). 4

10 STATEMENT OF THE FACTS Plaintiff Martin Greenstein (hereinafter Plaintiff ) sued Defendant Bart Baggett d/b/a/ Optic Measurements, Inc. and Defendant Curtis Baggett d/b/a Optic Measurements, Inc. seeking declaratory relief and requesting that the court find that Optic Measurements, Incorporated and other entities were the mere alter egos of Curtis Baggett. (CR. 37-CR. 41). Plaintiff asserted that Defendant Curtis Baggett was a judgment debtor of the Plaintiff. (CR. 40). Plaintiff, however, never states a cause of action against Bart Baggett but merely asserts that Curtis Baggett transferred certain properties to family members so as to hide the property which Curtis Baggett would not have to pay the judgment which Plaintiff Martin Greenstein is allegedly owed. (CR. 37-CR. 41). Defendants Bart Baggett and Curtis Baggett filed Motions to Dismiss which were granted by the Trial Court. (CR. 66, CR. 117, CR. 145). Subsequent to the dismissals, Plaintiff asserts that Defendants failed to comply with Plaintiff s Discovery requests but the Trial Court dismissed Plaintiff s motions as moot as, at this point in the case, there was no justiciable controversy. (CR. 117, CR. 145). 5

11 Plaintiff then files a Motion for New Trial which was dismissed as it was not timely filed. (CR. 146, CR. 179). SUMMARY OF THE ARGUMENT ISSUE ONE: The Trial Court did not err in granting Curtis Baggett s Motion to Dismiss with prejudice Plaintiff s suit against him, for failure to state a cause of action, because such action is not barred by Rule 90 of the Texas Rules of Civil Procedure. ISSUE TWO: The Trial Court did not err in granting Bart Baggett s Motion to Dismiss with prejudice Plaintiff s suit against him, for failure to state a cause of action, because such action is not barred by Rule 90 of the Texas Rules of Civil Procedure. ISSUE THREE: The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Curtis Baggett as there was no justiciable issue, and hence, Plaintiff s issue was moot. ISSUE FOUR: The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Bart Baggett as there was no justiciable issue, and hence, Plaintiff s issue was moot.. 6

12 ARGUMENT AND AUTHORITIES Standard of Review A Trial Court s denial of a motion for new trial is reviewed for abuse of discretion. Dir., State Employees Workers Comp. Div. v. Evans, 889 S.W. 2d 266, 268 (Tex. 1994). A Trial Court only abuses its discretion if it reaches a decision that is so arbitrary and unreasonable as to amount to a clear prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. See Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 77 (Tex.App. Houston [14 th Dist.] 2007, pet. denied). In order to be entitled to a dismissal in the State of Texas a Defendant must merely make a complaint about a plaintiff s lawsuit, that if not cured, entitles movant to a dismissal. See Fort Bend City v. Wilson, 825 S.W.2d 251, 253 (Tex.App. Houston [14 th Dist.] 1992, no writ). (Emphasis added). In the present case, Defendant Bart Baggett moved to have Plaintiff s case against him dismissed based upon the fact that Plaintiff have failed to state a cause of action. (CR. 67). Defendant Bart Baggett alleged that Plaintiff s petition was defective as early as January 5, 2009, when he filed his answer to Plaintiff s petition. (CR. 66-CR.68). Plaintiff had filed his third amended petition and the Trial Court held that the Plaintiff had still failed to state a 7

13 cause of action. (Emphasis added). Therefore, Plaintiff had been given numerous opportunities wherein to cure any defects in his pleadings. A Trial Court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 231, (Tex. 1985). (Emphasis added). The question then becomes: assuming the Plaintiff can prove all of his allegations contained in his pleadings, whether a cause of action is recognized under Texas law. Baca v. Rubakaba, No CV (TC# ), El Paso [346 th Dist]. ISSUE ONE: The Trial Court did not err in granting Curtis Baggett s Motion to Dismiss with prejudice Plaintiff s suit against him, for failure to state a cause of action, because such action is not barred by Rule 90 of the Texas Rules of Civil Procedure. The Trial Court did not err in granting a Motion to Dismiss against Curtis Baggett since the Plaintiff had been given three opportunities to cure his defective pleadings. (CR. 37-CR. 41). Further, Plaintiff was put on notice that he did not have a cause of action against Defendant Curtis Baggett as early as December 22, 2008, and Defendant Bart Baggett as early as January 2009, however, Plaintiff failed to take any action wherein to cure his defective pleadings, and as a result, Plaintiff s actions against both Defendant Bart Baggett and Defendant Curtis Baggett were dismissed on 8

14 March 6, 2009 and March 23, 2009, respectively. (CR. 117 and CR. 145). Also, note that Plaintiff failed to state a cause of action against Optic Measurements, Inc. and it was Plaintiff who moved to nonsuit this Defendant from the lawsuit and such nonsuit was granted by the Trial Court. (CR. 140). (Emphasis added). The Order of Nonsuit was signed on March 17, (CR. 140). Specifically, Plaintiff had over ninety days (90) wherein to amend and cure his petition and cause of action against Curtis Baggett but he failed to do so. Therefore, the Trial Court did not err in dismissing the Plaintiff s action against Curtis Baggett. In the case at hand, even if we assume that the Plaintiff, Martin Greenstein, can in fact prove all of his allegations, it is Defendant Bart Baggett s position that Plaintiff still would not have stated a viable cause of action under Texas law. Moreover, Plaintiff s sole argument is that Curtis Baggett acted as the alter ego of Optic Measurements, Inc., not Bart Baggett. Hence, any claim that the Plaintiff may have would only be against Defendant Curtis Baggett, however, it would be res judicata for the court to have heard any claims against Bart Baggett as his case was previously decided. 9

15 Texas Rule of Civil Procedure, Rule 90 allows a Plaintiff to amend his pleadings and Plaintiff did so three (3) times, however, Plaintiff failed to allege a cause of action against the Defendants. Hence, the Trial Court did not err in granting Curtis Baggett s Motion to Dismiss. ISSUE TWO: The Trial Court did not err in granting Bart Baggett s Motion to Dismiss with prejudice Plaintiff s suit against him, for failure to state a cause of action, because such action is not barred by Rule 90 of the Texas Rules of Civil Procedure. In the present case, Plaintiff merely presents a warranty deed from Brett Baggett and Curtis Baggett to Optic Measurements, Inc. from December 4, 2008, alleging that this sole warranty deed proves or establishes that Curtis Baggett is the alter ego of Optic Measurements, Inc. (See CR. 67). The aforementioned deed was from property which was lost in bankruptcy by Optic Measurement, Inc. and which was discharged in (Id.). Plaintiff bases his sole argument pertaining to piercing the corporate veil and his allegations for which he believes to be a cause of action around this one warranty deed. But, at no time does the Plaintiff plead any cause of action against Defendant Bart Baggett. Plaintiff only asserts in his Third Amended Petition that Bart Baggett is the son of Curtis Baggett and that Bart Baggett never paid any consideration for any property which was transferred. (See CR. 38-CR. 39). Plaintiff makes no other allegations 10

16 against Defendant Bart Baggett outside of the fact that Bart Baggett is the beneficial owner of property (CR. 39). Further, Texas Rules of Civil Procedure, Rule 90 does not preclude a Trial Court from dismissing an action. The Trial Court Judge has discretionary powers. See Downer at Moreover, Plaintiff was given notice in Defendant Bart Baggett s Original Answer, Motion to Dismiss, Motion for Sanctions and Objection to Service that his petition as defective as early as January 5, (CR. 66-CR. 68). Defendant Bart Baggett even specifically urged Plaintiff to change his claim but Plaintiff failed to do so. (CR. 66). Hence, Plaintiff had time to cure his petition since the order dismissing Defendant Bart Baggett was not signed until March 6, (CR. 117). Specifically, Plaintiff had over sixty (60) days to cure his cause of action defect, he failed to do so and his action was justly dismissed. (Id.). Texas Rule of Civil Procedure, Rule 90 allows a Plaintiff to amend his pleadings and Plaintiff did so three (3) times, however, Plaintiff failed to allege a cause of action against the Defendants. Hence, the Trial Court did not err in granting Curtis Baggett s Motion to Dismiss. ISSUE THREE: The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Curtis Baggett. 11

17 The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Curtis Baggett as the court, after having reviewed the pleadings and heard arguments of the parties and counsel, found that the Plaintiff s motion against Defendant Curtis Baggett was moot since the Trial Court had already dismissed Plaintiff s action against Defendant Curtis Baggett. (CR. 142). Therefore, there was no justiciable controversy. See Royalton Condominium, LP v. Albright, Memorandum Opinion No CV (Tex.App.-Houston [1 st Dist.] October 8, 2009). Since there was no justiciable controversy the Trial Court did not err in finding that Plaintiff s discovery was moot subsequent to dismissing Plaintiff s action. ISSUE FOUR: The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Bart Baggett. The Trial Court did not err in denying Plaintiff s Motion to Compel and Motion for Sanctions against Bart Baggett as the court, after having reviewed the pleadings and heard arguments of the parties and counsel, found that the Plaintiff s motion against Defendant Bart Baggett was moot since the Trial Court had already dismissed Plaintiff s action against this Defendant on March 6, (CR. 117, CR. 144). Hence, Therefore, there was no justiciable controversy. See Royalton Condominium, LP v. Albright, 12

18 Memorandum Opinion No CV (Tex.App.-Houston [1 st Dist.] October 8, 2009). Since there was no justiciable controversy the Trial Court did not err in finding that Plaintiff s discovery was moot subsequent to dismissing Plaintiff s action. Defendant Bart Baggett requests that the Trial Court s findings be affirmed. Prayer WHEREFORE, premises considered, Defendant Bart Baggett respectfully requests that this Court affirm the Trial Court s decision insofar as the Trial Court dismissed Plaintiff s actions and claims against Defendant Bart Baggett, Bart Baggett d/b/a/ Optic Measurements, Inc., Defendant Curtis Baggett and Curtis Baggett d/b/a Optic Measurements, Inc. Further, Defendant Bart Baggett requests that the Trial Court s decision to dismiss Plaintiff s Motions to Compel and Motions for Sanctions against both Defendant Bart Baggett and Defendant Curtis Baggett be upheld as Plaintiff s motions were summarily moot. Defendant Bart Baggett prays for general relief and any and all other relief tat he may be entitled to under the 13

19 law. Respectfully submitted, E. Renee Crenshaw SBN: Law Office of E. Renee Crenshaw P.O. Box Plano, Texas Telephone: (512) Facsimile No. (214) ATTORNEY FOR APPELLEE BART BAGGETT CERTIFICATE OF DELIVERY This is to certify that a copy of the foregoing Brief of Appellee Bart Baggett was sent to the parties listed below on this, the 17th day of November, 2009, via regular mail to the address and parties listed below: Diamond Pantaze, P.C High Hollows, No. 225 Dallas, Texas Sent via Regular Mail Attorney for Appellant Curtis Leo Baggett 533 Park Lane Richardson, Texas Sent via Regular Mail Pro se Appellee E. Renee Crenshaw 14

20 APPENDIX EXHIBIT NO. 1 Order Regarding Motion to Dismiss Bart Baggett and Bart Baggett d/b/a Optic Measurements, Inc. 2 Order Regarding Motion to Dismiss Curtis Leo Baggett 3 Order Denying Plaintiff s Motion for New Trial 15