Opinion
07-23-00367-CV
05-31-2024
DWIGHT H. MILES, SR., APPELLANT v. BIG FROG CUSTOM T-SHIRTS, INC., APPELLEE
On Appeal from the 395th District Court Williamson County, Texas Trial Court No. 23-0126-C395, Honorable Ryan D. Larson, Presiding
Before PARKER and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION
Alex Yarbrough, Justice.
Appellant, Dwight Miles, proceeding pro se, by his original brief and reply brief appeals the dismissal of his claims in a franchise dispute with Appellee, Big Frog Custom T-Shirts, Inc. ("Big Frog"). In his sole issue, Miles challenges the trial court's dismissal of his suit on the basis of collateral estoppel. We affirm.
Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001. Should a conflict exist between precedent of the Third Court of Appeals and this Court, this appeal will be decided in accordance with the precedent of the Third Court of Appeals. TEX. R. APP. P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022).
Background
Big Frog is a custom t-shirt business franchisor. In 2011, Big Frog entered into a ten-year agreement with DH Miles Enterprise, Inc., a company wholly owned and operated by Miles's son, Dwight Miles, Jr., for a franchise in Round Rock, Texas. In 2018, Miles's son passed away, and the franchise was transferred and assigned to his widow, Kelly Miles. By 2021, the original term of the franchise agreement expired, but a one-year extension of the agreement was executed by Miles, Sr. on behalf of DH Miles Enterprises, Inc.
These facts were revealed in attachments to Appellant's brief and are not part of the underlying record. Though we may not consider the attachments for the purposes of our disposition of the appeal, we include these facts for the sake of providing context and background only. In the Interest of D.L.W., No. 07-15-00243-CV, 2015 Tex.App. LEXIS 12372, at *2 n.3 (Tex. App.-Amarillo Dec. 4, 2015, no pet.) (mem. op.).
The following year, after the expiration of the extension, Big Frog elected not to renew the franchise agreement. Miles nonetheless continued to operate the franchise business under the Big Frog trademarks. Big Frog, in response, emailed a notice to all customers of DH Miles Enterprises, Inc. stating the t-shirt shop was "closed permanently," and then filed suit against DH Enterprises, Inc. and Miles in U.S. District Court in Florida.The Florida U.S. District Court issued a final order and injunction in favor of Big Frog, finding, among other things, that Miles was no longer permitted to operate the franchise.
The franchise agreement of the parties makes Florida the governing law and exclusive venue for any disputes.
Miles, in response and proceeding pro se, first filed suit in Williamson County requesting the Justice of the Peace direct Big Frog to cease doing business in Texas due to its failure to register with the Texas Secretary of State. The Justice of the Peace rendered a take-nothing judgment in favor of Big Frog. Miles then, proceeding pro se again, filed the underlying proceeding in district court to prosecute a claim of false advertising based on Big Frog's communication to the franchisee's customers the shop was "closed permanently." Big Frog answered the suit and also filed a motion to dismiss alleging res judicata and collateral estoppel based on the rulings in the Florida U.S. District Court case and the Justice of the Peace. It also moved to dismiss the suit under Rule 91a of the Texas Rules of Civil Procedure. The trial court conducted a hearing on Big Frog's motion in which Miles participated pro se. After conducting a hearing, the trial court issued an order dismissing the lawsuit with prejudice. This appeal followed.
Analysis
As his sole issue, Miles argues the trial court erred by granting Big Frog's motion to dismiss based on collateral estoppel. Collateral estoppel was one of several grounds on which Big Frog urged the trial court to dismiss the lawsuit. According to Miles's complaint, the trial court orally announced collateral estoppel as the rationale for its ruling. Big Frog contends Miles's claim that the trial court elicited a collateral estoppel argument from its counsel is unsupported by the record and factually untrue.
Miles filed a corrected brief after being advised by letter from this Court that his original brief did not comply with Rule 38.1 of the Texas Rules of Appellate Procedure.
The rationale for the trial court's ruling was not memorialized in the record because neither party requested the presence of a court reporter. Nor does the final order provide a basis for dismissal of Miles's claims. Without a reporter's record, Miles has not satisfied his burden to provide a sufficient record showing error requiring reversal. See Person v. MC-Simpsonville, SC-1-UT, LLC, No. 03-20-00560-CV, 2021 Tex.App. LEXIS 7155, at *4 (Tex. App.-Austin Aug. 27, 2021, no pet.) (mem. op.) (citing Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam)).
However, a trial court's dismissal may be affirmed on appeal if any theory advanced in the motion supports dismissal. See Hammer v. Hammer, No. 03-18-00028-CV, 2018 Tex.App. LEXIS 7574, at *10-11 (Tex. App.-Austin Sept. 18, 2018, pet. denied) (citing Brager v. James, No. 02-13-00130-CV, 2014 Tex.App. LEXIS 1689, at *5 (Tex. App.-Fort Worth Feb. 13, 2014, no pet.) (mem. op.)). Res judicata requires proof of three elements: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties, and (3) a second action based on the same claims as were raised or could have been raised in the first action. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 225 (Tex. 2022).
In the underlying case, Big Frog alleged res judicata as a ground in its motion to dismiss. The record shows two previous judgments have been entered against Miles in Justice Court and in a United States District Court concerning the same facts and the same contract. Specifically, the Florida judgment contained in the record permanently enjoined Miles from operating the store located at 2851 Joe Dimaggio Blvd., Bldg. 3, Suite 6, Round Rock, Texas, and enjoined Miles from utilizing the Big Frog trademarks, trade name, and service marks. Miles's claim of "false advertising" is entirely related to an email from Big Frog to its clients memorializing the Florida judgment that the Big Frog store located at 2851 Joe Dimaggio Blvd had closed. Thus, res judicata barred the underlying suit. The trial court did not abuse its discretion in dismissing Miles's suit with prejudice. His sole issue is overruled.
Conclusion
The trial court's judgment is affirmed.