American Idol, General, LP D/B/A the REO, and Randy Hanson A/K/A Randall Hanson v. Pither Plumbing Co., Inc.
12-14-00134-CV
| Tex. App. | Mar 6, 2015Background
- American Idol General, LP and Randy Hanson appeal after a summary judgment in favor of Pither Plumbing Co., Inc.
- Plaintiffs sued the entity that owned the liquor license; Hanson was not pled as a general partner, a0and defendants answered pro se as the case progressed.
- Summary judgment was sought on claims that allegedly were not pled, prompting defense counsel to respond and assemble evidence.
- Trial court purportedly found a damages issue but allowed communications outside the record to fix a new damage amount without an opportunity to respond.
- Appellants contend the trial court erred in disregarding their evidence and in relying on unpleaded or improperly considered damages.
- Appellants urge reversal on grounds that post-pleading affidavits/depositions create fact issues and that Hanson is not personally liable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hanson’s affidavit creates a fact issue. | Hanson’s affidavit is a sham to defeat summary judgment. | Hanson’s affidavit is legitimate and raises material facts preventing summary judgment. | Issue creates fact questions; reversal warranted. |
| Whether Texas recognizes the federal shame affidavit doctrine. | Texas recognizes the federal doctrine to defeat summary judgment. | Texas has not adopted the shame affidavit doctrine and conflicting evidence controls. | Texas has not adopted; conflicts require fact issues. |
| Whether Hanson is personally liable. | Hanson could be a general partner liable independently. | Only American Idol LLC is general partner; Hanson is not liable personally. | Hanson not liable personally; no evidence supports personal liability. |
| Whether quantum meruit was properly pleaded and proven. | Quantum meruit claim was asserted as a basis for relief. | No pleaded or proven basis for quantum meruit; landowner evidence lacking. | No basis to sustain quantum meruit; issue fails. |
| Whether damages could be determined outside the summary judgment record. | Damages amount could be fixed post-judgment without record supplementation. | Damages cannot be determined outside the record; trial court erred. | Damages must be within the record; reversal warranted. |
Key Cases Cited
- Gaines v. Hamman, 163 Tex. 618 (Tex. 1962) (deposition not controlling over conflicting affidavit)
- Randall v. Dallas Power & Light Co., 752 S.W.2d 4 (Tex. 1988) (conflicting inferences from deposition/affidavit create fact issues)
- Hassell v. Mo. Pac. R.R. Co., 880 S.W.2d 39 (Tex. App.—Tyler 1994) (conflicting deposition and affidavit resolved in non-movant's favor)
- Pierce v. Washington Mut. Bank, 226 S.W.3d 711 (Tex. App.—Tyler 2007) (conflicting interrogatory/affidavit create fact issues)
- Great American Reserve Ins. Co., 391 S.W.2d 188 (Tex. App.—Dallas 1965) (general summary judgment standard and evidence evaluation)