HOUSTON – A condominium owner won his appeal of a Harris County trial court’s decision to dismiss his negligence claim against a security guard service.
The Texas First District Court of Appeals on June 6 reversed the Harris County District Court’s order dismissing Smith Protective Services Inc. from Igor Galperin’s lawsuit.
The background portion of the eight-page opinion explained that Galperin sued SPSI for allegedly allowing his personal possessions to be stolen from his unit, which had been foreclosed. SPSI filed a motion to dismiss the litigation on grounds that Galperin’s negligence cause of action has no basis in law or fact. The state district court granted SPSI’s motion, dismissed SPSI from the suit, and awarded attorney’s fees and costs to SPSI.
Submitting his appeal, Galperin asserted the following two issues: the trial court erred in dismissing his negligence claim against SPSI, and SPSI is not entitled to attorney fees.
The three-judge panel, consisting of justices Russell Lloyd, Peter M. Kelly, and Richard Hightower, agreed with Galperin’s first argument pertaining to his negligence claim, concluding that “[it] has a basis in law and fact.”
According to the opinion, at the time the appellant entered a revised version of his original petition, “the court did not have before it evidence of either the duties undertaken by SPSI or of Galperin’s relationship to the condominium association.”
The justices also sided with Galperin’s second issue in that the lower court erroneously awarded $983.24 in attorney’s fees and costs to SPSI.
“Because we conclude that the trial court erred in granting SPSI’s Rule 91a motion to dismiss, SPSI is not the prevailing party and is therefore not entitled to an award of attorney’s fees and costs with respect to Galperin’s negligence claim,” Lloyd wrote.
We reverse the trial court’s judgment granting SPSI’s Rule 91a motion to dismiss and awarding attorney’s fees and costs to SPSI as the prevailing party on the motion and remand the case for further proceedings consistent with this opinion.”