United States District Court, S.D. Texas, Galveston Division
JANET LYNN PELC, D/B/A RESTORE RENEW, ET AL., Plaintiffs.
AMY HOWARD, ET AL., Defendants.
MEMORANDUM AND RECOMMENDATION
M. EDISON, UNITED STATES MAGISTRATE JUDGE
before me is (i) Defendants' Partial Motion for Summary
Judgment on Plaintiffs' Causes of Action for Breach of
Contract and Attorney's Fees (Dkt. 31); and (ii)
Defendants' Partial Motion for Summary Judgment on
Plaintiffs' Causes of Action for Common-Law Fraud and
Violations of the DTPA (Dkt. 32). After carefully considering
the motions, the opposition briefs, and the applicable law, I
RECOMMEND that the motions be
DENIED and this case proceed to trial.
lawsuit arises from a five-year business relationship between
Plaintiffs Janet Lynn Pelc d/b/a Restore ReNew, Libby Golden
d/b/a Another Look by Libby, and Lollie & Gigi Custom
Painted Furniture (collectively, "Plaintiffs") and
Defendants Artisan Studios, LLC d/b/a Amy Howard at Home
("AHAH") and Amy Howard. Plaintiffs operate a
furniture restoration and home decor business. AHAH sells
high-end, boutique paint products. After trying AHAH's
products, Plaintiffs became interested in the possibility of
selling those products to the general public.
and AHAH entered into a contract on September 17, 2013, by
which Plaintiffs would purchase AHAH refinishing products and
resell those products to the public through their businesses
operating in Friendswood, Texas (the "2013
Contract"). As part of the contractual arrangement, AHAH
agreed to provide Plaintiffs with the full line of AHAH
products and, in return, Plaintiffs agreed to purchase a
minimum dollar amount of AHAH products at regular intervals.
The 2013 Contract also provided Plaintiffs "zip code
protection"-that is, the exclusive right to sell AHAH
products within a certain geographic area.
great surprise of Plaintiffs, AHAH entered negotiations with
Ace Hardware sometime in 2015 to make the well-known retailer
a nationwide distributor of AHAH products. When Plaintiffs
learned of the proposed Ace Hardware-AHAH deal, they grew
concerned that AHAH would breach the geographic exclusivity
agreement. There were several Ace Hardware stores within a
10-mile radius of Plaintiffs' location, including one in
the same shopping center as Plaintiffs' business.
Plaintiffs were also concerned that they would be unable to
compete with Ace Hardware's ability to advertise on a
to allay Plaintiffs' concerns, AHAH agreed to provide
Plaintiffs a 30 percent discount on all AHAH products. The 30
percent discount went into effect in November 2015 and
continued in place for more than two years. In January 2018,
however, AHAH informed Plaintiffs that it was revoking the 30
percent discount, purportedly because the Ace Hardware across
the street from Plaintiffs had stopped selling AHAH products.
Plaintiffs did not take the news well, strongly disputing
whether the nearby Ace Hardware store had discontinued
selling AHAH products and expressing frustration at
AHAH's actions. This lawsuit ensued.
present case, Plaintiffs advance causes of action for breach
of contract, common law fraud, and violations of the Texas
Deceptive Trade Practices Act ("DTPA"). Plaintiffs
also seek to recover reasonable attorney's fees pursuant
to Section 38.001 of the Texas Civil Practice & Remedies
district court "shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56. There is no genuine
issue of material fact if, viewing the evidence in the light
most favorable to the non-moving party, no reasonable trier
of fact could find for the non-moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
seeking summary judgment bears the initial burden of
establishing the absence of a genuine issue of material fact
by either (1) presenting evidence that affirmatively
demonstrates the absence of any genuine issue of material
fact, or (2) after adequate time for discovery, demonstrating
that "the nonmoving party has failed to make a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof."
Celotex Corp., v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets this burden, the nonmoving party
cannot defeat summary judgment by resting on mere denials or
allegations but must set forth specific facts sufficient to
raise a genuine issue of fact. See Id. at 324.
examining the summary judgment record, the court should do so
in. the light most favorable to the party opposing summary
judgment. See Matsushita Elec. Indus. Co., 475 U.S.
at 587. "Even so, barebones, conclusory, or
otherwise-unsupported assertions won't cut it; the
nonmovant must go beyond the pleadings and come forward with
specific facts indicating a genuine issue for trial."
Hassen v. Ruston La. Hospitality Co., LLC, 932 F.3d
.353, 355-56 (5th Cir. 2019) (internal quotation marks,
footnotes, and citation omitted).