Brendel v. Meyrowitz et al
Filing
116
MEMORANDUM OPINION AND ORDER granting 113 MOTION for Summary Judgment as to Count III filed by Greg Brendel. (Ordered by Judge Sidney A Fitzwater on 7/12/2018) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GREG BRENDEL,
Plaintiff,
VS.
SCOTT MEYROWITZ, et al.,
Defendants.
§
§
§
§ Civil Action No. 3:15-CV-1928-D
§
§
§
§
§
MEMORANDUM OPINION
AND ORDER
In this removed action arising from an investment in precious stones, plaintiff Greg
Brendel (“Brendel”) moves for partial summary judgment on his claim for conversion against
defendant Mary Meyrowitz (“Mary”). For the reasons explained, the court grants the motion
and enters judgment on liability for Brendel’s conversion claim against Mary.
I
Because this case is the subject of five prior memorandum opinions and orders—see,
e.g., Brendel v. Meyrowitz, 2018 WL 1210527 (N.D. Tex. Mar. 8, 2018) (Fitzwater, J.)
(“Brendel V”)—the court will recount only the background facts and procedural history that
are pertinent to this decision.
This is a removed action by plaintiff Brendel against defendants Scott Meyrowitz
(“Scott”), Mary, and SSB International, LLC (“SSB”), seeking to recover funds that Brendel
transferred to Scott for investment in a diamond venture. Before Brendel invested, Scott
advised Brendel that his investment money would be wired to an SSB account and would
remain in that account until Meyrowitz took possession of investment-quality rough cut
diamonds. Brendel then wired $250,000 to a Wells Fargo account controlled by Scott in the
name of SSB. A total of $135,000 was transferred from SSB’s Wells Fargo account into a
personal day-trading account registered in the name of, and owned solely by, Mary.1 In her
deposition, Mary testified that she opened the account in her name only in 2013 and that the
account was not used to purchase diamonds. Transfers into Mary’s account required her
approval by signed wired transfer forms. Scott never delivered any diamonds or proceeds
to Brendel in satisfaction of SSB’s obligations.
Brendel originally filed this lawsuit in Texas state court. Before the suit was removed
to this court, Brendel obtained a state court injunction requiring Scottrade, holder of an
account in the name of Scott’s wife Mary, to deposit the sum of $250,000 into the state court
registry (the “Registry Funds”).
After the case was removed, the claims against Scott and SSB were referred to
arbitration, and Brendel was awarded the sum of $1,018,254.22 against Scott and SSB. The
court later confirmed the Arbitration Award and entered judgment on the award in favor of
Brendel. Brendel’s entitlement to the Registry Funds2 and the claims in this lawsuit against
1
Scott withdrew a total of $135,000 from SSB’s Wells Fargo checking account and
deposited it into Mary’s Scottrade Account No. XXXX0609 on two separate occasions: Scott
transferred $55,000 on March 12, 2014 and $80,000 on March 25, 2014.
2
In Brendel v. Meyrowitz, 2017 WL 1178244, at *1 (N.D. Tex. Mar. 30, 2017)
(Fitzwater, J.), the court granted intervenor Sarah Pappas (“Pappas”) leave to intervene for
the purpose of determining her rights in the Registry Funds. Pappas had obtained a default
judgment against Scott and Mary in Superior Court, Maricopa County, Arizona based on
-2-
Mary remain pending.
Brendel now moves for partial summary judgment on his conversion claim against
Mary. Mary has not filed a response, and Brendel’s motion is now ripe for decision.
II
Because Brendel will have the burden of proof on his claim at trial, to be entitled to
summary judgment, he “must establish ‘beyond peradventure all of the essential elements of
the claim[.]’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962
(N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986)). “This means that [Brendel] must demonstrate that there are no genuine and
material fact disputes and that [he] is entitled to summary judgment as a matter of law.”
GoForIt Entm’t, LLC v. DigiMedia.com L.P., 750 F.Supp.2d 712, 722 (N.D. Tex. Oct. 25,
2010) (Fitzwater, C.J.) (citing Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir.
2003)). “The court has noted that the ‘beyond peradventure’ standard is ‘heavy.’” Carolina
Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting
Cont’l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex.
Aug. 23, 2007) (Fitzwater, J.)).
Pappas’ transfer of a $650,000 loan to Scott for the purpose of purchasing a diamond. The
default judgment awarded Pappas total damages of $2,759,946.94. Pappas domesticated the
judgment in Texas and effected service of two writs of execution on the Dallas County
District Clerk. Pappas moved for summary judgment and asked the court to enter judgment
awarding her the Registry Funds. The court denied her motion for summary judgment
because she failed to establish beyond peradventure that she holds a lien that entitles her to
the Registry Funds as a matter of law.
-3-
III
Under Texas law, to recover for conversion, Brendel must prove: (1) he owned, had
legal possession of, or was entitled to possession of the property; (2) Mary assumed and
exercised dominion and control over the property in an unlawful and unauthorized manner,
to the exclusion of and inconsistent with his rights; (3) he made a demand for the property;
and (4) Mary refused to return the property. Ojeda v. Wal-Mart Stores, Inc., 956 S.W.2d
704, 707 (Tex. App. 1997, pet. denied) (citations omitted). “The demand and refusal
elements of conversion are not required if other evidence establishes an act of conversion.”
Paschal v. Great W. Drilling, Ltd., 215 S.W.3d 437, 457 (Tex. App. 2006, pet. stricken).3
“An action for conversion of money will only lie where the money is (1) delivered for
safekeeping; (2) intended to be kept segregated; (3) substantially in the form in which it is
received or an intact fund; and (4) not the subject of a title claim by its keeper.” Id. (citing
Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 161 (Tex. App. 1996, writ denied).
IV
Brendel filed his motion for summary judgment on May 8, 2018. Under N.D. Tex.
Civ. R. 7.1(e), Mary’s response was due no later than May 29, 2018. Mary has not
responded to Brendel’s motion. Her failure to respond does not, of course, permit the court
3
The Texas Supreme Court has stated that “demand and refusal are merely evidence
of a conversion, and where a conversion by the bailee cannot otherwise be shown than by his
refusal to comply with the demand for possession, such a demand and refusal are necessary.
But they are not necessary if the other evidence establishes an act of conversion.” Presley
v. Cooper, 284 S.W.2d 138, 141 (1955).
-4-
to enter a “default” summary judgment. The court is permitted, however, to accept Brendel’s
evidence as undisputed. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117
(N.D. Tex. 1990) (Fitzwater, J.). “A summary judgment nonmovant who does not respond
to the motion is relegated to [her] unsworn pleadings, which do not constitute summary
judgment evidence.” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996)
(Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir.
1991)). “If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion[.]” Fed. R. Civ. P. 56(e)(2).
Brendel has offered evidence that establishes beyond peradventure Mary’s liability
for conversion. The undisputed facts establish that Brendel owned the $250,000, which he
wired to the SSB account with the express purpose of investing in the diamond venture
represented by Scott. The undisputed facts also show that the $250,000 investment was
specifically identifiable and traceable, and that Mary wrongfully took possession of at least
part of the funds when Scott made two transfers totaling $135,000 to Mary’s personal
Scottrade account. Because this evidence establishes conversion, Brendel need not show the
elements of demand and refusal.
The court thus concludes that Brendel has shown beyond peradventure that Mary is
liable for conversion under Texas law.
*
*
*
Accordingly, the court grants Brendel’s motion for partial summary judgment and
-5-
enters judgment in favor of Brendel establishes Mary’s liability on his conversion claim.4
SO ORDERED.
July 12, 2018.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
4
Because Brendel has not carried his burden to establish beyond peradventure that
Mary converted the entirety of his $250,000 investment, the court enters judgment only on
the issue of Mary’s liability for conversion.
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?