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Fiatt v. Florsheim

Court of Appeals of Texas, First District

February 23, 2017

RODRIGO APESTEGUI FIATT, Appellant
v.
ROBERT FLORSHEIM AND RF MANAGEMENT LLC, Appellee

         On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2014-50297

          Panel consists of Chief Justice Radack and Justices Jennings and Bland.

          MEMORANDUM OPINION

          Sherry Radack, Chief Justice

         Appellant, Rodrigo Apestegui Fiatt, appeals a default judgment rendered in favor of appellees, Robert Florsheim and RF Management, L.L.C. In this appeal, we consider whether the trial court had subject-matter and personal jurisdiction. We affirm.

         BACKGROUND

         Florsheim and RF Management [collectively, "Florsheim"] filed suit in Harris County, Texas, against Fiatt, a resident of Costa Rica, alleging that Fiatt "wrongly induced Plaintiffs to invest and loan more than $5 million to open a franchise for multiple Chili's Restaurants in Costa Rica." Florsheim asserted causes of action for negligent misrepresentation and fraud.

         Fiatt was personally served, but did not file an answer.

         Twice Florsheim moved for sanctions and contempt because of Fiatt's failure to respond to discovery, and twice the trial court granted Florsheim's motion for sanctions and contempt. Fiatt appeared at one of sanctions hearings via telephone.[1] In the second contempt order, the trial court found that Fiatt was deemed to have admitted all of Florsheim's requests for admissions and waived all of his objections to Florsheim's discovery requests. The trial court further ordered Fiatt to provide written responses to discovery within 15 days of the order and to pay Florsheim $2500 in attorney's fees.

         When Fiatt did not respond within the time in which he was ordered to do so, Florsheim filed a Motion for Contempt, Sanctions, and Entry of Default Judgment.

         Fiatt, who had not filed an answer, nonetheless filed a motion for rehearing, requesting that the trial court set aside its sanctions order.

         On April 24, 2015, the trial court granted Florsheim's motion, finding as follows:

After considering Plaintiffs' Motion for Contempt, Sanctions, and Entry of Default Judgment, the response, and arguments of counsel, the pleadings and evidence on file, the Court finds that Defendant Rodrigo's Apestegui Fiatt's continued discovery abuse and failure to comply with the Court's Orders and lesser sanctions warrant a presumption that his defenses lack merit. The Court also finds that Defendant Rodrigo Apestegue Fiatt has failed to file an Answer or assert any defenses to the claims against him. The Court herby [sic] GRANTS the Motion in its entirety.

         The trial court then held a hearing on Florsheim's claim for unliquidated damages. According to the final judgment, "Defendant Rodrigo Apestegui Fiatt appeared [at the damages hearing] via telephone[, ]" and "[a]ll matters in controversy were submitted to the Court for its determination."

         After the hearing, the trial court signed a final judgment in Florsheim's favor, awarding him $2, 202, 518.00 in damages, ...


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