Weizhong Zheng v. Vacation Network, Inc. and Linh C. Dinh
468 S.W.3d 180
Tex. App.2015Background
- Appellant Weizhong Zheng appeals a trial court ruling dismissing his claims under Rule 91a and awarding fees to appellees Vacation Network, Inc. and Linh C. Dinh.
- Zheng contracted with Vacation Network on June 6, 2009; Dinh is Vacation Network’s president.
- Zheng paid $7,299 and seeks either damages equal to the price or rescission and a refund.
- Zheng alleges violations of the Texas Timeshare Act and common-law fraud; he claims Vacation Network refused cancellation and retained his payment.
- The trial court granted the 91a motion, dismissed all claims with prejudice, and later awarded appellees $9,806.81 in attorney’s fees.
- On appeal, the court reverses in part, affirms in part, and remands for further proceedings, including fee segregation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vacation Network’s Timeshare Act claim was properly dismissed under 91a. | Zheng argues the claim is based on the Act and not properly dismissible as baseless. | Vacation Network contends the contract is not a timeshare and evidence should support dismissal. | The Act claim was improperly dismissed; remanded for merits evaluation. |
| Whether Zheng adequately pleaded fraud against Vacation Network. | Zheng alleges fraudulent inducement but provides no specific misrepresentations. | Vacation Network argues lack of pleaded facts to support fraud. | Fraud claim properly dismissed for lack of pleaded facts. |
| Whether Zheng properly asserted personal liability against Dinh. | Zheng pleads only corporate liability; seeks injunctive/relief against Vacation Network. | Dinh is not personally liable; proper LLC/corporate liability only. | Claims against Dinh properly dismissed; no personal liability. |
| Whether appellate fees may be recovered and how to segregate fees on remand. | Zheng should recover appellate fees related to the 91a win; segregation may be required. | Fees should be limited to trial-court work on the challenged action. | Zheng entitled to reasonable appellate fees related to the challenged action; remand for fee segregation. |
Key Cases Cited
- Wooley v. Schaffer, 447 S.W.3d 71 (Tex. App.—Houston [14th Dist.] 2014) (de novo standard for 91a motion review)
- Roark v. Allen, 633 S.W.2d 804 (Tex. 1982) (pleading sufficiency and fair notice standard)
- GoDaddy.com, LLC v. Toups, 429 S.W.3d 752 (Tex. App.—Beaumont 2014) ( Rule 12(b)(6)-style analysis for 91a claims; plausibility standard)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (2007) (plausibility pleading standard applied by state courts through analogy)
- Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323 (Tex. 2011) (fraud elements and reliance in contract inducement)