ACCEPTED
06-16-00021-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/14/2016 10:13:43 AM
DEBBIE AUTREY
CLERK
No. 06-16-00021-CV
AND
FILED IN
No. 06-16-00041-CV 6th COURT OF APPEALS
TEXARKANA, TEXAS
In the 10/14/2016 10:13:43 AM
DEBBIE AUTREY
Sixth Court of Appeals Clerk
Texarkana, Texas
BP AUTOMOTIVE LP BP AUTOMOTIVE LP
D/B/A BOSSIER DODGE, D/B/A BOSSIER DODGE,
Appellant, Appellant,
v. v.
RML WAXAHACHIE DODGE, LLC, RLJ-MCLARTY-LANDERS
RLJ-MCLARTY-LANDERS AUTOMOTIVE GROUP,
AUTOMOTIVE HOLDINGS, LLC, Appellee
RML WAXAHACHIE FORD, LLC, AND
RML WAXAHACHIE GMC, LLC
Appellees
___________________
On Appeal from the 87th District Court,
Freestone County, Texas (No. 10-030-B)
The Hon. J. Deborah Oakes Evans, Presiding
APPELLEES’ MOTION TO CONSOLIDATE
_____________________________
Blake L. Beckham Rodney F. Page
State Bar No. 02016500 Jennifer M. K. Mammen
Sarita A. Smithee BRYAN CAVE LLP
State Bar No. 2405254 1155 F Street, N.W., Suite 700
THE BECKHAM GROUP, P.C. Washington, D.C. 20004
3400 Carlisle, Suite 500 (202)508-6000 (telephone)
Dallas, Texas 75204 (202)508-6200 (facsimile)
(214) 965-9300 (telephone) Appearing Pro Hac Vice
(214) 965-9301 (facsimile)
ATTORNEYS FOR APPELLEES
ORAL ARGUMENT REQUESTED
TO THE HONORABLE COURT:
COME NOW Appellees RML WAXAHACHIE DODGE, LLC, RLJ-
MCLARTY-LANDERS AUTOMOTIVE HOLDINGS, LLC, RML
WAXAHACHIE FORD, LLC, RML WAXAHACHIE GMC, LLC, AND
RLJ-MCLARTY-LANDERS AUTOMOTIVE GROUP 1 and respectfully move
this Court to consolidate this Case, No. 06-16-00021-CV, with related case No.
06-16-00041-CV for all purposes but, at a minimum, oral argument. If these
appeals proceed separately, there would be a waste of judicial resources, undue
expense, and the potential for inconsistent and divergent decisions from different
panels of this Court. In support of their Motion, Appellees respectfully state as
follows:
FACTUAL BACKGROUND
On January 26, 2010, Appellant filed a lawsuit in the 87th Judicial District
Court of Freestone County, Texas (the “Trial Court”), naming RML Waxahachie
Dodge, LLC, RLJ-McLarty-Landers Automotive Holdings, LLC, RML
Waxahachie Ford, LLC, RML Waxahachie GMC, LLC, (collectively the “RML
Defendants”) and RLJ-McLarty-Landers Automotive Group as defendants
1
Putative Defendant RLJ-McLarty-Landers Automotive Group does not, by the
filing of this motion, admit or consent that it is a partnership or entity with the
capacity to be sued, or waive any argument that it is not a partnership or entity
with the capacity to be sued.
2
alleging theories in tort and contract arising out of a contract for the purchase of
Appellant's automobile dealership located in Waxahachie, Texas.
RLJ-McLarty-Landers Automotive Holdings, LLC is a limited liability
company that is the parent company of the other RML Defendants, which, in turn,
own and operate retail automobile dealerships in Waxahachie, Texas. Appellant
also named "RLJ-McLarty-Landers Automotive Group" (hereinafter the “Fictional
Group”) as a defendant, alleging that the automotive businesses owned and
operated by the defendant limited liability companies also constituted a
partnership with sufficient legal status to be independently sued in its own right
for the same conduct alleged as to all defendants generally. Appellees asserted,
and continue to assert, that the Fictional Group is not a proper party to any suit, as
it does not exist as a legal entity and therefore lacks the capacity to be sued.
PROCEDURAL HISTORY AND THE PRIOR APPEAL
The Trial Court severed the case against the Fictional Group after it granted
the RML Defendants’ traditional and no-evidence summary judgment motions in
2011. 2 The Trial Court later entered summary judgment in favor of the Fictional
Group on the same grounds. Appellant appealed all of those judgments. On the
basis of the relatedness of the appeals, the RML Defendants moved to consolidate
2
The only reason listed in the RML Defendants’ motion for severance was to
make the above-listed judgments final.
3
the cases on appeal. Appellant objected that consolidation would introduce
“unnecessary complexity” because the appeals involved different issues, including
the capacity of the Fictional Group and discovery issues related thereto. Over
Appellant’s objections, the First Court of Appeals 3 considered the appeals relating
to the RML Defendants and the Fictional Group together and issued one opinion
disposing of both appeals.
Following the First Court of Appeals decision and remand to the trial court,
all Appellees filed additional motions for summary judgment, and the Trial Court
decided all of those motions in Appellees’ favor. The RML Defendants’ motions
relate to collateral estoppel and the Fictional Group’s motion relates to both
capacity and collateral estoppel. Appellant has appealed those decisions, and both
cases were transferred to this Court.
ORAL ARGUMENT IN THIS CASE
On August 15, 2016, this Court notified the Parties that the Court had
determined that Case No. 06-16-00021-CV should be set for oral argument under
the considerations set forth in Tex. R. App. P. 39.1. In its brief filed October 14,
2016, in Case No. 06-16-00041-CV, the Fictional Group requested oral argument.
3
Those appeals were both transferred from the Tenth Court of Appeals to the First
Court of Appeals by order of the Supreme Court of Texas.
4
ARGUMENT
Appellant alleges exactly the same claims and cites exactly the same facts
against all Appellees. The issues in both cases are the same – whether Appellees
damaged Appellant related to a transaction for the sale of a car dealership – and
the same counsel represents Appellant and all Appellees, respectively, in both
cases. These parties have been through extensive litigation over the past six years
in parallel cases in the state and federal courts, to include multiple judgments from
the Bankruptcy Court of the Western District of Texas, the District Court of the
Western District of Texas, the Fifth Circuit Court of Appeals, the District Court for
Freestone County, Texas, and the First Court of Appeals of Texas. That procedural
history is relevant to both of the instant appeals.
Judicial economy would be served by consolidating these actions. While
these cases have been briefed separately, the pleadings and judgments upon which
all parties rely in their appellate briefing substantially overlap such that any panel
considering either appeal will necessarily review material that is relevant to the
other.
While the instant appeals are not identical, they are substantially
intertwined, in that they involve the same parties, the same claims, the same set of
facts regarding the interactions between the parties, and much of the same
procedural history. Further, Appellant’s claims against all Appellees are subject to
5
the same arguments regarding collateral estoppel because those arguments do not
depend on the status of any Appellee. The Fictional Group raised to the Trial
Court the issue of collateral estoppel. The lower court did not specify its grounds
for granting the Fictional Group’s motion, so this Court should consider the issues
of capacity and collateral estoppel with respect to the Fictional Group. As
collateral estoppel is a grounds for summary judgment in both appeals, those
appeals should be considered together because not consolidating these appeals and
permitting separate oral arguments, potentially before different panels of this
Court, risks inconsistent results while consolidating oral argument would ensure
consistency and uniformity of result. Accordingly, Appellees requests that these
related cases be consolidated.
Dated this 14th day of October 2016.
6
Respectfully submitted,
/s/ Blake L. Beckham
Blake L. Beckham
State Bar No. 02016500
blake@beckham-group.com
Sarita A. Smithee
State Bar No. 24054254
sarita@beckham-group.com
THE BECKHAM GROUP, P.C.
3400 Carlisle, Suite 550
Dallas, Texas 75204
(214) 965-9300 (telephone)
(214) 965-9301 (facsimile)
Rodney F. Page
Jennifer M. K. Mammen
Jennifer.mammen@bryancave.com
BRYAN CAVE LLP
1155 F Street, N.W., Suite 700
Washington, D.C. 20004
(202)508-6000 (telephone)
(202)508-6200 (facsimile)
Appearing Pro Hac Vice
ATTORNEYS FOR APPELLEES
7
CERTIFICATE OF CONFERENCE
As required by Tex. R. App. P. 10.1(a)(5), I certify that counsel for
Appellees has conferred with counsel for Appellant, and counsel for Appellant is
opposed the relief requested herein.
/s/ Blake L. Beckham_____________
Blake L. Beckham
8
CERTIFICATE OF SERVICE
I certify that on the 14th day of October 2016, I electronically filed the
foregoing motion with the clerk of the court using the electronic case filing system
of the court. I also certify that I have served the foregoing document upon all
counsel via the court’s electronic case filing system as follows:
Kevin J. Terrazas
CLEVELAND TERRAZAS PLLC
4611 Bee Cave Road, #306B
Austin, Texas 78746
(512) 680-3257
/s/ Blake L. Beckham
Blake L. Beckham
9
BP Automotive LP D/B/A Bossier Dodge v. RML Waxahachie Dodge, LLC, RLJ-McLarty-Landers Automotive Holdings, LLC, RML Waxahachie Ford, LLC, and RML Waxahachie GMC, LLC
Combined Opinion