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Galperin v. Smith Protective Services, Inc.

Court of Appeals of Texas, First District

June 6, 2019

IGOR GALPERIN, Appellant
v.
SMITH PROTECTIVE SERVICES, INC., Appellee

          On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2017-32333-B

          Panel consists of Justices Lloyd, Kelly, and Hightower.

          MEMORANDUM OPINION

          Russell Lloyd, Justice.

         Igor Galperin appeals the dismissal of his negligence claim against Smith Protective Services, Inc. (SPSI) under Texas Rule of Civil Procedure 91a. In two issues, Galperin contends that the trial court erred in granting SPSI's motion, and that SPSI is not entitled to attorney's fees. We reverse and remand.

         Background

         Galperin owns a condominium unit at the Marlborough Square Condominiums, located at 594 Wilcrest, in Houston, Texas. While Galperin was out of the country, his condominium was foreclosed upon and the homeowners' association (HOA) purchased it at auction. When Galperin returned home, he discovered that his automobiles, safes, firearms, and business data had been stolen, and that his bank account had been emptied and his credit cards "maxed out."

         Galperin sued SPSI, among others, asserting a cause of action for negligence.[1]In his first amended petition, Galperin alleged that SPSI "has a contract to provide security services to the HOA and unit owners," and that, under the contract, SPSI acted as the HOA's agent in providing security for the complex. Galperin alleged that SPSI was negligent in failing to (1) "secure his condo and property to prevent the thefts that occurred"; (2) institute proper processes and procedures to ensure that the HOA and its various agents . . . adequately guarded against theft of property from condos foreclosed on and owned by the HOA during the redemption period"; (3) provide adequate security to prevent the thefts for [his] condo based on what was known or should have been known"; and (4) alert the HOA and its management company of suspicious activities surrounding access to his condo during the period it was owned by the HOA in the redemption period."

         SPSI filed a motion to dismiss pursuant to Texas Rule of Civil Procedure 91a, arguing that Galperin's negligence cause of action has no basis in law or fact. Galperin filed a response to the motion, and SPSI filed a reply. The trial court granted SPSI's motion, dismissed SPSI from the suit, and awarded attorney's fees and costs to SPSI. This appeal followed.

         Discussion

         In his first issue, Galperin contends that the trial court erred in dismissing his negligence claim against SPSI. In his second issue, he argues that SPSI is not entitled to attorney's fees.

         A. Texas Rule of Procedure 91a

         Rule 91a provides that "a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact." Tex.R.Civ.P. 91a.1. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the plaintiff to the relief sought. Id. Generally, a cause of action has no basis in law under Rule 91a in at least two situations: (1) the petition alleges too few facts to demonstrate a viable, legally cognizable right to relief; and (2) the petition alleges additional facts that, if true, bar recovery. Guillory v. Seaton, LLC, 470 S.W.3d 237, 240 (Tex. App.-Houston [1st Dist.] 2015, pet. denied). "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Tex.R.Civ.P. 91a.1. The trial court must determine the motion "based solely on the pleading of the cause of action, together with any pleading exhibits permitted by" the rules of civil procedure. Tex.R.Civ.P. 91a.6; Dailey v. Thorpe, 445 S.W.3d 785, 788 (Tex. App.-Houston [1st Dist.] 2014, no pet.).

         We review a trial court's ruling dismissing a case under Rule 91a de novo. Walker v. Owens, 492 S.W.3d 787, 789 (Tex. App.-Houston [1st Dist.] 2016, no pet.). We construe the pleadings liberally in favor of the plaintiff, look to the plaintiff's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact. Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). In doing so, we apply the fair notice standard of pleading. Id.; see also Tex. R. Civ. P. 47(a); Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982) ("A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim."). Under this standard, pleadings are sufficient if a cause of action can reasonably be inferred from the facts pleaded. McNeil v. Nabors Drilling USA, Inc., 36 S.W.3d 248, 250 (Tex. App.-Houston [1st Dist.] 2001, no pet.).

         B. Establishing a ...


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