Originally published by Carrington Coleman.
Starwood Management, LLC v. Swaim
Dallas Court of Appeals, No. 05-14-01218-CV (March 7, 2016)
Justices Lang (Opinion), Brown, and O’Neill
Kelli Hinson
The Dallas Court of Appeals affirmed summary judgment in favor of a lawyer and his firm because the plaintiff’s expert report was conclusory about causation. Starwood Management retained Don Swaim and the Rose Walker law firm to recover an aircraft seized by the DEA because of a purportedly illegal registration. The law firm allegedly failed to timely file a “claim” with the DEA’s Forfeiture Counsel, which resulted in termination of Starwood’s interests in the aircraft. The law firm filed a motion for reconsideration with the DEA on Starwood’s behalf, and the DEA appeared willing to reconsider its position—provided that Norma Gonzalez, the owner and managing member of Starwood, would agree to be interviewed by the DEA concerning the “activities of Starwood.” Negotiations about the scope of the DEA interview and Gonzalez’s Fifth Amendment rights eventually broke down, and Gonzalez never granted the interview. So, the DEA denied Starwood’s motion for reconsideration, and Starwood was unable to recover the aircraft.
Starwood then sued the law firm, alleging it was negligent in failing to secure return of the aircraft and breached its fiduciary duties by urging Gonzalez to give up her Fifth Amendment rights in order to remedy the firm’s own negligence. The law firm argued there was no evidence to support causation and that it was Gonzalez’s refusal to testify, and not the law firm’s negligence, that caused the loss of the aircraft. In response, Starwood filed an expert affidavit from George Crow, who based his opinion on his experience as legal counsel for Starwood in successfully recovering five of six aircraft that had been seized by the DEA. Crow contended he had succeeded in recovering these aircraft simply by initiating the proper judicial contest to the DEA’s forfeiture claims. He further opined that, had the law firm timely and properly filed a verified claim with the DEA’s Forfeiture Counsel, this case would have been successfully resolved as had the other five. The law firm objected to the affidavit as conclusory, and the trial court sustained the objection and granted summary judgment in the law firm’s favor.
On appeal, Starwood argued that Crow “stated and documented readily controvertible facts with which he was personally familiar, relating to other proceedings on which he based his opinion, and his conclusions were logically drawn from those experiences.” But the Dallas Court of Appeals disagreed. The Court noted that Crow made no case-by-case comparison of the facts in this case to those in the other aircraft seizure cases. In the Court’s opinion, “the affidavit says no more than that Crow, an experienced attorney, has considered the relevant facts and concluded that the aircraft would have been returned had Rose Walker filed a verified claim with the DEA Forfeiture Counsel.” Holding such testimony was conclusory, the Court affirmed summary judgment in favor of the law firm.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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