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Condo owner sues alarm company for negligence and wins first round
June 17, 2019
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Condo owner sues alarm company for negligence and wins first round
    These are the facts set forth in the court’s decision:
    Plaintiff owns a condominium unit at the Marlborough Square Condominiums, located at 594 Wilcrest, in Houston, Texas. While Plaintiff was out of the country, his condominium was foreclosed upon and the homeowners' association (HOA) purchased it at auction. When Plaintiff 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.”
    Plaintiff sued Smith Protective Services Inc (SPSI), among others, asserting a cause of action for negligence. Plaintiff 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. Plaintiff 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.”
    The alarm company moved to dismiss the Complaint arguing that the negligence cause of action had no merit in fact or law. In Texas this is known as Texas Rule of Civil Procedure 91a. The court noted that:
“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. “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;” citations omitted
    Every jurisdiction has a similar rule. This motion tests the sufficiency of the Pleading. In other words, if the Plaintiff alleges facts that if true would support or state a cause of action, the Pleading is sufficient and a motion to dismiss should be denied. In this case the court dismissed the action; the Plaintiff appealed and the Appellate Court reversed and reinstated the Complaint.
    Why? Because the defense attorneys mishandled the case. Yeah, I said. The defense attorneys argued that the alarm company contracted with the HOA, not the Plaintiff, and therefore owed no duty to the Plaintiff. Great argument, but not on a motion to dismiss based on sufficiency of Pleadings. In this case the Plaintiff alleged that:
    “[SPSI] has a contract to provide security services to the HOA and unit owners.” The Plaintiff correctly asserted that the pleading was adequate to give the alarm company notice that its contract with the HOA included the Plaintiff. Unlike a motion for summary judgment [a term familiar to most of you], the court won’t look to evidence, only to how the Complaint is worded. The defense attorneys should have filed an Answer and then moved for summary judgment supported by affidavits and other evidence that the alarm company had no duty to the Plaintiff. They still have time to get it right.
    Maybe you should ask your insurance carrier to engage K&K or consult with its local counsel, so you get it right the first time around.
  Case is Igor Galperin V Smith Protective Services, Inc, Court of Appeals of Texas, Houston (1st Dist.) June 6, 2019
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301