Background - Alliance Riggers (est. 1978) contracted with Linda and Carlos Restrepo (doing business as RDI Global) to produce a 5‑minute marketing video and an e‑commerce webpage for $23,000 total; Restrepos prepared the contract and billed under “Dr. Linda S. Restrepo.” - Appellants purchased the domain allianceriggersandconstructors.com in their own name, launched a webpage Alliance Riggers found defective (wrong phone number, bad load behavior, inaccurate info) and delivered videos the company found unprofessional and inaccurate. - Alliance Riggers withheld the final $1,000 payments for each deliverable, demanded cessation of use of its mark, then sued for breach of contract, DTPA violations, and common‑law service‑mark infringement; Restrepos counterclaimed on an account/breach theory. - A jury found Appellants breached the contract, committed knowing DTPA violations (including nondisclosure/misrepresentation), and infringed and diluted Alliance Riggers’ common‑law service mark; it awarded $34,000 actual damages, $26,000 DTPA knowing damages, $60,250 attorneys’ fees, and injunctive relief; total judgment $125,775. - Appellants challenged sufficiency of evidence on multiple grounds, raised procedural objections (service, judge disqualification, jury misconduct, evidentiary rulings), and contested a later vexatious‑litigant order; the appellate court affirmed. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---:|---|---| | DTPA: consumer status & sufficiency of evidence | Alliance Riggers: it purchased services and is a business consumer entitled to DTPA relief; evidence shows misrepresentations and nondisclosure caused damages | Restrepos: Alliance Riggers not a consumer (assets ≥ $25M); evidence insufficient as to who committed DTPA acts and as to producing cause | Court: Alliance Riggers is a consumer; Restrepos bore burden to prove $25M defense and failed to submit jury issue; evidence legally and factually sufficient to support DTPA findings and producing cause. | | Breach of contract & damages | Alliance Riggers: contract existed, it tendered performance, Appellants delivered unacceptable work, causing damages equal to monies paid/related losses | Restrepos: no valid contract with Carlos; work accepted; damages limited to cost to complete; sworn‑account entitlement to additional sums | Court: Restrepos judicially admitted contract with both; Alliance Riggers tendered performance; evidence supports breach and $34,000 damages; sworn‑account claim not preserved. | | Common‑law service‑mark infringement & dilution | Alliance Riggers: senior user since 1978; domain/web use was confusing, caused dilution by blurring/tarnishment; injunctive relief warranted | Restrepos: use authorized by contract; trademark not registered so claim invalid; jury charge and evidence insufficient | Court: Registration not required for common‑law claim; evidence supports senior use, likelihood of confusion, fame, and dilution; injunction proper. | | Vexatious litigant determination & attorney's fees | Alliance Riggers: Restrepos pursued numerous frivolous filings/appeals/removals; no reasonable probability they’d prevail on counterclaims; fees and sanctions justified | Restrepos: hearing was ex parte; state court lacked jurisdiction during removal; statute inapplicable to defendants; insufficient evidence | Court: notice for hearing provided; removal not effective until filed; sufficiency and adverse prior filings/appeals support vexatious finding; attorneys’ fees award supported under Tex. Civ. Prac. & Rem. Code and DTPA. | ### Key Cases Cited City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal‑sufficiency standard and appellate review guidance) Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995) (DTPA failure to disclose requires defendant knew the information) Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (more‑than‑a‑scintilla evidence standard) Dow Chemical Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (factual‑sufficiency standard) Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (waiver of personal‑jurisdiction objections by general appearance) Exito Electronics Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004) (special appearance procedural strictness under Rule 120a) Kennedy v. Sale, 689 S.W.2d 890 (Tex. 1985) (plaintiff must prove consumer status under the DTPA) Eckman v. Centennial Savings Bank, 784 S.W.2d 672 (Tex. 1990) (affirmative defenses and burden to plead/prove asset‑threshold defense) * Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279 (Tex. 1994) (multifarious/waiver principles for appellate briefs)